aiarmil Ham ^rlyool SIthtatg 
 
Cornell University Library 
 KF 1266.T75 1890 
 
 A treatise on the wrongs called slander 
 
 3 1924 019 248 610 
 
Cornell University 
 Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/cletails/cu31924019248610 
 
A TREATISE 
 
 ON THE WRONGS CALLED 
 
 SLANDER AND LIBEL, 
 
 AND ON THE 
 
 REMEDY BY CIVIL ACTION FOR THOSE WRONGS, 
 
 TOGETHER WITH A CHAPTER ON 
 
 MALICIOUS PROSECUTION. 
 
 By JOHN TOWNSHEND. 
 
 FOURTH EDITION 
 
 NEW YORK: 
 
 BAKER, VOORHIS & CO., LAW PUBLISHERS, 
 
 66 NASSAU STREET, 
 
 1890. 
 
Entered, according to Act of Congress, in the year eighteen hundred and ninety, by 
 JOHN TOWNSHEND, 
 In the office of the Librarian of. Congress, at Washington. 
 
 I-2.U 
 
 Willis McDonald & Co., Printehs, 
 39-43 Gold Street, N. Y . 
 
PREFACE TO THE FOURTH EDITION. 
 
 Burdened with many other duties, it was with extreme reluctance 
 that I consented to prepare a Fourth Edition of this work. After ac- 
 cepting the task, at' a sacrifice of time that might have been, to me, 
 more profitably employed, I made an honest endeavor to produce a 
 result creditable to the author and acceptable to the reader. How far 
 the attempt has been successful my profession will judge. 
 
 My labor has been materially lightened by the aid of Mr. James B. 
 Clark, of the New York Bar, and I am at loss how adequately to ac- 
 knowledge my obligation for his valuable assistance. 
 
 JOHN TOWNSHEND. 
 
 Bennstt BimjsiNG, ) 
 
 New York, January, 1890. J 
 
PREFACE TO THE THIRD EDITION. 
 
 In introducing a third edition of the following essay, I desire to re- 
 turn my unfeigned thanks for the many flattering notices of previous 
 editions. One kind friend expressed regret that so much labor had 
 been bestowed in the endeavor to treat scientifically a subject which 
 does not admit of scientific treatment, and another described my text 
 as not so much an exposition of the law as it is, as of the law as it 
 probably will be. In reference to these remarks, I hope and believe 
 my labor has not been altogether fruitless, and the care taken in every 
 instance to distinguish my suggestion from the received rule of law 
 will prevent the reader confounding the one with the other. It is 
 gratifying to me to find that many of my suggestions have been legiti- 
 mized by judicial sanction. 
 
 I disclaim innovation ; my aim has been to elicit the true rule of 
 decision on some leading points in the law of libel, and present them 
 with more distinctness than had been theretofore attempted. Thus, 
 among other things, I have endeavored to demonstrate: 
 
 I. The gist of an action for slander or libel is the pecuniary injury. 
 
 II. The malice necessary to maintain an action for slander or libel is 
 only the absence of a legal excuse for making the publication. 
 
 III. The phrases malice in fact and malice in law do not mean differ- 
 
 ent kinds of malice, but describe only different kinds of proof. 
 
 IV. The existence of a distinction between language concerning a 
 
 person and language concerning a thing, and in what the dis- 
 tinction consists. 
 
VI PREFACE. 
 
 V. " Slander of title," so called, is within the class of language con- 
 cerning a thing. 
 
 VI. The right to give what is termed "a character to a servant" does 
 not arise out of any relation of master and servant, but out of 
 the general right to communicate one's belief, in a bona fide 
 desire to protect one's own or another's rights. 
 
 VII. The right of "criticism" is within the class of language con- 
 cerning a thing. 
 
 VIII. Malicious prosecution is the publication of defamatory language 
 in a court of justice. 
 
 The present edition differs from the preceding in containing several 
 hundred additional references to decisions in the American, English, 
 Irish, Scotch, Canadian and Australian reports, and also in the addition 
 of a chapter upon "Malicious Prosecution." 
 
 The numbering of the sections corresponds with previous editions. 
 
 A strenuous effort has been made to secure accuracy in the citation 
 of authorities, and, while it is known that many errors have occurred, it 
 is believed that more than ordinary correctness has been attained. 
 
 The references to Holt on Libel are to the American edition, and, 
 as the third edition of Starkie on Slander, by Folkard, has not been re- 
 produced in this country, the references to Starkie on Slander are to 
 the second American edition by Wendell. 
 
 JOHN TOWNSHEND. 
 
 BENNETt BtriLDING, 
 
 New York, July, 1877. 
 
CONTENTS 
 
 Prefaces ........ iii 
 
 Works on the subject of libel in addition to 
 
 THOSE REFERRED TO IN THE NOTES . . . xiii 
 
 Works referred to, exclusive of the reports . xxxiii 
 
 Abbreviations used in reference to the re- 
 ports xlv 
 
 Table of cases cited Iv 
 
 PART I. 
 
 the law of slander and libel. 
 
 CHAPTER I. 
 
 introductory. 
 
 Language as a means of effecting injury — Slander — Libel — Defamation 
 — Redress — The law of libel— Object in view — Division of subject 
 — Attempts to define libel ...... 
 
 CHAPTER II. 
 
 how one may affect another by language. 
 
 Language can have no effect unless published— It must be true or false, 
 commendatory or discommendatory — Must concern a person or 
 thing — Its effect, direct or indirect, or both — Reputation . 22 
 
VIU CONTENTS. 
 
 CHAPTER III. 
 
 RIGHTS; DUTIES; WRONGS; REMEDIES. 
 
 Description of rights and duties — Wrongs, rights and duties, undefin- 
 able — What determines of any act if it be a wrong — Remedies — 
 Original writs ... .... 27 
 
 CHAPTER IV. 
 
 WHAT IS THE GIST OF THE ACTION FOR SLANDER OR LIBEL. 
 
 History silent as to the introduction of the action for slander — Hypoth- 
 esis necessary — How the law protects reputation — Fiction — Pecuni- 
 ary loss the gist of the actions for slander and libel . . -37 
 
 CHAPTER V. 
 
 WRONGFUL ACTS. ELEMENTS OF A WRONG. 
 
 Wrongful acts— Liability— Presumptions of law— Questions of law and 
 
 fact— Essential acts in slander and libel — Defamatory — Falsity 
 
 Voluntary — Involuntary — Intention— Malice . . . .51 
 
 CHAPTER VI. 
 
 PUBLICATION. PUBLISHER. 
 
 A publication is necessary— Meaning of the term publication— The lan- 
 guage published must be understood— The publication may be 
 orally or in writing— What amounts to an oral and what to a writ- 
 ten publication— Publication of effigy- Requisites of an oral pub- 
 lication—Requisites of a written publication -Time of publica- 
 tion—Place of publication- Who is a publisher— Republication and 
 repetition, distinction between— Joint publication— Liability for pub- 
 lication—Voluntary and involuntary publications— Liability of prin- 
 cipal and agent— Nevvsijaper publisher-Bookseller . 8, 
 
CONTENTS. IX 
 
 CHAPTER VII. 
 
 CONSTRUCTION OF LANGUAGE. 
 
 Actionable quality of language dependent upon its construction — All 
 language ambiguous or unambiguous — Difficult to determine what 
 is and what is not ambiguous— Points upon which ambiguity may 
 arise — Causes of ambiguity — Ambiguity, how explained — Different 
 effect of language concerning a person and of language concerning 
 a thing — Materiality of questions, what person or thing affected, 
 and whether the person is affected as an individual merely, or in 
 some acquired capacity— Principles of construction ; before verdict ; 
 after verdict — Examples of construction — Divisible matter . . 109 
 
 CHAPTER VIII. 
 
 WHAT LANGUAGE IS ACTIONABLE. 
 
 Language must be such as does or does not occasion damage— What is 
 meant by actionable per se, and actionable by reason of special 
 damage — What language concerning a person as such, published 
 orally, is actionable per se — What language concerning a person as 
 such, published in writing, is actionable per se — What language 
 concerning one in an acquired capacity is actionable per se — What 
 language concerning a person is actionable by reason of special 
 damage — What language concerning the affairs of a person, his 
 property or his title thereto, is actionable . . . ' '57 
 
 CHAPTER IX. 
 
 DEFENSES. 
 
 Privileged publications generally— Repetition — Truth — Legislative pro- 
 ceedings and reports thereof— Judicial proceedings — Parties to pro- 
 ceedings—Counsel — Witnesses— Judges— Grand jurors— Reports of 
 judicial proceedings — Quasi judicial proceedings — Church discipline 
 — Seeking advice or redress other than judicially — Giving informa- 
 tion or advice generally— Attorney and client — Master and servant — 
 Candidates for office or employment — Insanity — Drunkenness — In- 
 fancy — Accord and satisfaction — Previous recovery— Apology — 
 Freedom of the Press — Criticism ... . 295 
 
 B 
 
X CONTENTS. 
 
 CHAPTER X. 
 
 CORPORATIONS. 
 
 Corporations are legal persons — Their rights and duties assimilated to 
 those of natural persons— Can act only through agents— May carry 
 on business, sue and be sued, and are liable for injuries committed 
 by agents— Corporations may have a reputation— Language con- 
 cerning corporations— Actions by corporations for libel — Corpora- 
 tions cannot be guilty of slander — May be guilty of libel . . 469 
 
 PART II. 
 
 REMEDY BY ACTION FOR THE WRONGS CALLED SLANDER 
 
 AND LIBEL. 
 
 CHAPTER XI. 
 
 PROCEEDINGS IN AN ACTION. 
 
 Action, how commenced — Within what time — In what court — Attach- 
 ment—Holding defendant to bail— Execution against the person — 
 Security for costs— Consolidating actions — Place of trial- Inspection 
 and discovery — Assessment of damages where no answer inter- 
 posed—Mode of trial— Struck jury — Refusing to try — Compromise 
 —Right to begin— Address of counsel— Reading libel to jury— Evi- 
 dence for plaintiff— Abandonment of one of several causes of action 
 or defense— Province of the court and jury— Damages — Verdict- 
 New trial— Costs— Staying proceedings until costs of former action 
 Pai'l 479 
 
 CHAPTER XII. 
 
 PARTIES. 
 Question as to parties anticipated— Action by alien— Outlaw— Rebel- 
 Executors or administrators— Married woman— Husband and wife 
 —Partners— General rule as to joinder— Action against husband 
 and wife — Contribution • • • . . eao 
 
CONTENTS. XI 
 
 CHAPTER XIII. 
 
 PLEADING. THE COMPLAINT. 
 
 General requisites of a complaint — Complaint for language concerning a 
 person only — Inducement— Colloquium — Publication — Matter pub- 
 lished — Innuendo — Special damage— Several counts — Supplemental 
 complaint ........ 537 
 
 CHAPTER XIV. 
 
 PLEADING. ANSWER. DEMURRER. 
 
 The answer corresponds to plea — ^What it must contain — Plea to part of 
 a count — Answer of justification must give color, show a lawful oc- 
 casion, and deny malice — Several answers — Defense of truth must 
 be pleaded — How pleaded — Where the charge is general — Where 
 the charge is specific — Certainty in statement of facts — Answer of 
 justification bad in part, bad altogether — Mitigating circumstances — 
 Demurrer — Counter-claim ...... 5^^ 
 
 CHAPTER XV. 
 
 VARIANCE. AMENDMENT. 
 
 Allegation of pleading and proof should correspond — Variance in New 
 York — General rule as to variance — Immaterial variance — Material 
 variance — Amendment ...... 609 
 
 CHAPTER XVI. 
 
 EVIDENCE FOR PLAINTIFF. 
 
 Proof of publication ; of oral publication ; of publication in writing; of 
 its application to plaintiff ; of defendant's liability — Opinion of wit- 
 nesses as to meaning— Proof of inducement; of plaintiff's good 
 reputation ; of malice ; to aggravate damages — Falsehood not evi- 
 dence of malice — Other publications by defendant ; subsequent pub- 
 lications; publication after commencement of action — Defendant's 
 wealth — Ill-will to plaintiff — Ill-will to plaintiff of persons other than 
 the defendant — The publication itself evidence of malice — At- 
 tempted justification an aggravation — Evidence in reply . . 626 
 
Xll CONTENTS. 
 
 CHAPTER XVII. 
 
 EVIDENCE FOR DEFENDANT. 
 
 What evidence is admissible depends upon what plea or answer is inter- 
 posed — What may be proved under the general issue — Evidence to 
 support a justification — Plaintiff's reputation in issue — Inquiry lim- 
 ited to plaintiff's general reputation, and to his reputation prior to 
 the publication complained of — Truth in mitigation — Conduct of 
 plaintiff leading to belief in truth — Report or suspicion of plaintiff's 
 guilt in mitigation— Plaintiff's standing and condition in society — 
 Prior or subsequent declarations of defendant — Heat and passion — 
 Previous publications by the plaintiff— Controversies between plaint- 
 iff and defendant prior to the publication — Mitigation — Circum- 
 stances not admissible in mitigation ..... 66r 
 
 Injunction ........ 687 
 
 PART III. 
 
 MALICIOUS PROSECUTION. 
 
 CHAPTER XVIII. 
 
 Right of appeal to criminal tribunal— What is malicious prosecution — 
 
 Distinction between malicious prosecution and false imprisonment 
 
 Essentials to a cause of action— Prosecution commenced— Termi- 
 nated in favor of plaintiff— Conviction— Reasonable and probable 
 cause— Advice of counsel— Not guilt or innocence, but knowledge 
 and belief of prosecutor, the question— Probable cause a question 
 of law— Malice — Parties— Pleadings ..... 699 
 
 Appendix. 
 
 Swadling v. Tarpley • • . . . 74.-1 
 
 King V. Townsend ..... 7^8 
 
 Foote V. Rowley ..... 7<o 
 
 Martinere v. Mackay .... ^ri 
 
 Index 
 
 7SS 
 
WORKS OF REFERENCE. 
 
 [For the convenience of those who may desire further information on the subject 
 of Slander and Libel, we subjoin the following list of publications, to which reference 
 may be made. These are in addition to the works referred to in the text.] 
 
 Adair, J. W. " Discussion of the Law of Libel as at present receired, in 
 which its authenticity is examined ; with incidental observations on the 
 legal effect of Precedent and Authority." Pamphlet. London, 1785. 
 [Ascribed to J. W. Adair.] 
 
 American Encyclopedia, art. Libel. 
 
 Anonymous Articles* and Pamphlets; entitled, 
 
 Abuses of the Press. Edinburgh Review, April, 1838. 
 
 Actions for Defamation. L. J. 6: 457. 
 
 Actions for Words not in Themselves Defamatory. L. T. 63: 321. 
 Wash. L. Rep. s : 61. Jr. L. T. 11 : 469. 
 
 Action for being called a Blackleg. Jour. Jur. 2 : 593. 
 
 A Digest of the Law concerning Libels, containing all the resolutions in 
 the books on the subject, and many MS. cases, &c., by a gentleman of 
 the Inner Temple. 4to. London, 1765. To which is added a supple- 
 ment containing considerable additions, by John Rayner, 1770. 
 
 A Letter on Libels and Warrants. (Referred to, I Biographical Anec- 
 dotes, by Almon, p. 226.) 
 
 " Another Letter to Mr. Almon on Matters of Libel." " The position that 
 it is not material whether the libel be true or false, or whether the person 
 that made it be of good or ill fame, is a proposition of truth and the pro- 
 vision of a sanctuary for weak and wicked men, who may be employed 
 as ministers or judges." 
 
 Amendment of Criminal Libel Act. Jour. Jur. 26: 303. 
 
 American View of the Law of Defamation. Sol. J. & Rep. 18: 384. 
 Among the Papyri unearthed from the ruins of Herculaneum is an essay 
 on Freedom of Speech, by Philodemus. It forms part of a work entitled 
 " Philodemi Utgl 'P^TOQiK^c, ex Herculanensi Papyro restituit, Latine 
 vertit, et Dissertationibus auxit." [E. Gros, Parisiis: 1840. Publisher.] 
 Ancient Journalism, American Journalist and Advertiser's Index. Phila. 
 Vol. I, No. VI. July, 1872. 
 
 * We acknowledge our indebtedness for many of these items to Leonard A. Jones' 
 valuable work : An Index to Legal Periodical Literature. Boston, 1888. 
 
XIV WORKS OF REFERENCE. 
 
 Anonymous Articles, &c. — continued. 
 
 Beware Libellers. L. J. 7 : 237. 
 
 Blasphemous Libel. Man. L. J. 1:81. 
 
 Blasphemy and Blasphemous Libel. The Fortnightly Review, March, 
 1884. 
 
 Can Corporations sue and be sued for libel.? Leg. Int. 13: 404; 14: 5. 
 
 Character, Defamation ; The Medical Practitioner's Legal Guide, London, 
 1870. [Chapter v, p. 43.] 
 
 Charging Clergyman with Drunkenness. Exemplary Damages. Cent. L. 
 J. 3:716. 
 
 Commissioner's proposed Alterations to Law of Libel. Leg. Obs. 33: 
 149. 
 
 Committee to Consider Law of Libel. Leg. Obs. 7 : 434. 
 
 Costs in Actions for Libel. Ir. L. T. 10: n8. 
 
 Criminal Proceedings in Private Libel. L. Mag. & Rev. 18: 13. 
 
 Criminal Informations for Libel. L. J. 11 : 143; 13: 346, 565. Same art. 
 Ir. L. T. 12 : 308, 479. Same art. Wash. L. J. 6: 227. L. T. 55 : 177. 
 Same art. Ir. L. T. 7 : 361. Alb. L. J. 3 : 46. L. T. 50: 54. 
 
 Criminal Libel. " Sold himself for $S,ooo " to support a Candidate. 
 Charge of Judge T. K. Ramsay. Leg. News, 8 : 105. 
 
 Criminal Proceedings for Libel. Sol. J. & Rep. 25 : 403. 
 
 Criminal Responsibility of a Newspaper Proprietor for Libel. L. T. 64 : 
 95. Sol. J. & Rep. 23: 169. 
 
 Criticism of Candidates for Public Office. Annotated Case. Cent. L. J. 
 18: 109. 
 
 Dialogue between a country farmer and a juryman, on the subject of libels. 
 London, 1770. [Attributed to Sir' William Jones.] 
 
 Discouragement of Private Libel. L. T. 79: 138. 
 
 Distinction between Verbal and Written Slander. Cent. L. J. 7: 361. 
 
 Editorial License and the Law of Libel as it affects Newspaper Proprie- 
 tors, Editors and Publishers. American Journalist and Advertiser's 
 Index, Phila. Vol. I, Nos. iv, v, vi. May, June and July, 1872. 
 
 Encyclopedia Britannica, supplement ; art. Liberty of the Press. 
 
 English Law of Libel. Platform Slanderers and Newspaper Libelers. 
 Dub. Rev. 45; 413. 
 
 English Political Satires. London Quarteriy Review, April, 1857. 
 
 Enquiry into the doctrine lately propagated concerning libels, warrants 
 and the seizure of papers, with a view to some late proceedings and the 
 defense of them by the majority upon the principles of law and constitu- 
 tion, in a letter to Mr. Almon from the Father of Candor. London, 1 764. 
 Pamphlet. 
 
 Evidence in Actions of Slander. L. T. 46 : 44. 
 
 Evidence justifying libel. L.J. 14:664. Same art. Ir. L. T. 13: 560. 
 
 Evidence of defendant's pecuniary standing in Slander. Alb. L. J. 23 : 
 44, 103. 
 
 Evidence of Reputation in Libel. L. J. 17 : 449. Same art. Ir. L. T. 
 16:436 
 
WORKS OF REFERENCE. XV 
 
 Anonymous Articles, &.c.— continued. 
 
 Fox's Libel Act. So. L. Rev. (N. S.) i : 139. 
 
 Freedom of Speech and Writing upon Public Affairs considered, with an 
 
 Historical view, &c., &c. London, 1766. Pamphlet. 
 Free Press, its trials, duties and responsibilities ; Anomalous condition of 
 the law of Libel; Slight advance over antiquated notions; Historical 
 Reminiscences; Revival of Libel suits. New Yorlc Herald, June ist, 
 1869. 
 French Law of Libel. Ed. Rev. 22: 72; 27: 102; 32: 192. 
 Functions of the Judge in Actions of Libel. L. T. 54: 165. Same art. 
 
 Chic. L. N. 5: 271. 
 Growth of the Law of Libel. L. Mag. & Rev. (N. S.) 3 : 679. 
 History of an Elizabethan Libel. The Athenasum (London), Sept. 3d, 
 
 1887. 
 Imputation of Crime. Alb. L. J. 26: 444. Same art. Va. L. J. 7: 15. 
 Imputing Insolvency. Cent. L. J. 16; 386. Same art. Ir. L. T. 17: 
 
 226. 
 Indictments for Libel. Ir. L. T. 19 : 347. 
 
 Injunctions against Libel. L. T. 15: 248. Same art. Ir. L. T. 14: 308. 
 Injunctions to Restrain Libel. Sol. J. & Rep. 23: 865, 877. Same art. 
 
 Cent. L. J. 9; 314. 
 Injunctions to Restrain Defamation. Ir. L. T. 18: 627. 
 Injunctions in Cases of Libel. L. T. 70: 22. Same art. Chic. L. N. 13: 
 
 98. O. L. J. 1 : 252. 
 Innocent Dissemination of Libel. L. J. 21 : 61. 
 Juryman's Touchstone (The); or, A full refutation of Lord Mansfield's 
 
 opinion in Crown Libels. London, 1784. 
 Law of Defamation. L. T. 30: 222; 42: 203. U. C. L. J. 4: 53, 63. 
 
 Cornh. 14: 174. 
 Law of Libel. New Haven, Conn., 1887. Pamphlet. 
 Law of Libel. London Times, 21st April, 1863. 
 
 Law of Libel. Jour. Jur. 30: 580. L. T. i : 265; 28: 291; 44: 224; 45: 
 156; 75: 38. So. Q. Rev. 12: 236. Sol. J. & Rep. i: 182; 2:497; 8: 
 142; II: 984, 1052. Cornh. 15: 36. Mo. L. Mag. 10: 241. Cent. L. 
 J. 5:74. Leg. Obs. 22:166-519. L. Mag. 11:432. Eel. Mag. 68: 
 300. Loc. Cts. Gaz. 3: 180. U. C. L. J. (N. S.) 3: 315. West. L. J. 
 7: 499. L. J. 2: 167. Am. L. Mag. 3: 23 Chic. L. N. 14: 200. Sol. 
 Jour., vols. 8 and 10. 
 Law of Libel as applied to Publications on Subjects of Public Interest. L. 
 
 T. 50: 131. 
 Law of Libel and Slander in England. Journal of Jurisprudence and 
 
 Scottish Law Magazine, March, 1880. 
 Law of Libel and its Results. L. J. 13: 611. 
 
 Law of Libel and its Application. Pamphlet. Jones & Bruce, N. Y., 1881. 
 Law of Libel. Comhill Magazine, January, 1867; reprinted. Eclectic 
 
 Magazine, March, 1867. 
 Law of Libel. The summing up to the Jury of Lord Chief Justice Cock- 
 
XVI WORKS OF REFERENCE. 
 
 Anonymous Articles, Scc— continued. 
 
 burn in the case of Seymour v. Butterworth. The Monthly Law Re- 
 porter. Boston, May, 1863. 
 
 [The case of Seymour v. Butterworth is reported verbatim, 150 pages, 
 in Law Magazine & Law Review, Feb., 1863.] 
 Law of Libel in the Lords. L. J. 18: 207. Same art. Ir. L. T. 17: 215. 
 Law of Libel in the Queen's Bench. L. T. 52 : 57. 
 Law of Libel and the O'Keefe Case. L. T. 55 : 75- Same art. Ir. L. T. 
 
 7 : 295-443- 
 Law of Libel as applied to Public Discussion. L. Mag. & Rev. 1 5 : 193. 
 Law of Libel as against Christianity. Ed. Rev. 58 : 387. 
 Law of Libel and the Army. Sol. J. & Rep. 14: 148. 
 Law of Libel and the Press. L. T. 81 : 308. 
 Law of Libel and the Press. Sol. J. & Rep. 12 : 716. 
 Law of Libel and Liberty of the Press. Westm. Rev. 3: 285. 
 Law of Libel and Liberty of Criticism. Fraser, 68: 35. 
 Legal Immunity of Libelers and Impostors. L. T. 52 ; 382. Same art. 
 
 Can. L. J. 8: 135. Same art. Ir. L. T. 6: 171. 
 Liability for Libel. L. J. 12: 728. 
 
 Liability for Libel of Vendor of Newspapers. Leg. Adv. 2 : 21 1. 
 Liability for Libel of Innocent Printers, L. T. 50: 452-492. Same art. 
 
 Ir. L. T. 5 : 199. 
 Liability for Libel of Newspaper Proprietors. Sol. J. & Rep. 22: 107. 
 Liabilities for Libel of Editors. L. T. 48: 142. 
 Liability for Libel of the Printer. L. J. 6: 225. 
 Libel, Actions of. Co. Ct. Chro. 21 : 453. 
 Libel, Application of. London Law Magazine, vol. 2. The Law of 
 
 Libel, vol. 11. Communicating slanderous words in answer to inquiries, 
 
 vol. 34. Presumptions of law and presumptive evidence, vol. 6. The 
 
 province of the judge distinguished from the piovince of the jury, vol. 12. 
 Libel and Defamation Bill. L. Mag. 30: 152. 
 Libel. Actionable Words. What are ? Jour. Jur. 2 : 458. 
 Libel and Freedom of the Press. London Quarterly Review, April, 1865. 
 Libel Bill, 1868. L. Mag. & Rev. 25 : 90. 
 Libel Charges against M. About. L. J. 7: 655. 
 Libel in Chancery. Law J. 10: 73. 
 Libel in Newspapers. L. T. 56: 85. 
 Libel Charges before Justices of the Peace. L. J. 8 : 22. Same art. Ir. 
 
 L. T. 7: 32. 
 Libel by Sub-Editors, Criminal Liability of Editors for. L. T. 50: 18. 
 Libel by Post-Card. Leg. News, 2 : 77. 
 Libel on Postal Cards. Can. L.J. 7 : 340. 
 Libel by Husband on his Wife. Sol. J. & Rep. 30; 416, 
 Libel by Magistrates. Leg. Obs. 26: loi. 
 Libel between Man and Wife. Ir. L, T. 20 : 546. 
 Libel on Professional Men. Sol. J. & Rep. 9: 518. 
 Libel and Slander. Limits of Privilege. L. T. 47 : 102. 
 
WORKS OF REFERENCE. XVH 
 
 Anonymous Articles, &c. — continued. 
 
 Libel and Slander. Payment into Court in Actions of Defamation. Sol. 
 
 J. & Rep. 24 : 646. 
 Libel published in Newspapers without Proprietor's Knowledge. Ir. L. T. 
 
 12: 83. 
 Libel and Slander. Injunctions to restrain. Man. L. J. 2 : 49. 
 Libel and Defamation, Evidence before the Select Committee. Leg. Obs. 
 
 27 : 97. 
 Libel and Defamation. Law of. Report of the Lords' Committee. L. T. 
 
 1:341- 
 Libel and Freedom of the Press. London Quar. Rev. 117: 519, April, 
 
 1865. 
 
 Libel and Literary Criticism. Sol. J. & Rep. 11:4. 
 
 Libel and Slander, in England. Law of. Jour. Jur. 24: 147. Ir. L. T. 
 14: 187. Same art. Sol. J. & Rep. 2: 477. 
 
 Libel and Slander. Costs in. L. J. 12: 468. 
 
 Libel and Slander. Admissibility of Evidence in Actions for Defamation. 
 Sol. J. & Rep. 26: 445. 
 
 Libel on Christian Religion. Mr. Buckle and Sir John Coleridge. Leg. 
 Int. 26: 237. 
 
 Libel on Deceased Persons. L. T. 59: 257. Same art. Alb. L. J. 12 : 173. 
 Same art. Ir. L. T. 9:411. 
 
 Libel on the Clergy. Brougham's Speech for Defendant. L. Mag. 2 : 102. 
 
 Libel touching Persons in their Calling. L. T. 70: 41. Same art. Chic. 
 L.N. 13:116. Cent. L. J. 1 1 : 483. 
 
 Libel of the Dead. W. L. Bui. 12: 39, 408. 
 
 Libels on the Dead. Ir. L. T. 9: 411, from the London Law Times. 
 
 Libeling the Dead. Cent, L. J. 18: 4g7. 
 
 Libeling from a Sense of Duty. Ir. L. T. 20: 154. Can. L. J. 22: 240, 
 481. 
 
 Libeling Candidates for Office. Cent. L. J 3 : 572. 
 
 Libelous Publications, Restraint of. L. J. 53.: 112. 
 
 Libelous Reports of Judicial Proceedings. Ir. L. T. 14: 207. Same art. 
 Jour. Jur. 24 : 363. 
 
 Libelous Reports of Police Cases. Ir. L. T. 20: 319. 
 
 Liberty of the Press. Dublin Review, 7 : 518; 81 : 193. Portfolio Den. 5: 
 522; 23: 153. Fortnightly Review, 24: 178. 
 
 Limits of Libel. L. T. 47 : 421. Same art. Chic. L. N. 2 : 36. 
 
 Malicious Defamation of Character by an Attorney. Leg. Adv. 4: 259. 
 Same art. Wis. Leg. News, 5 : 433. O. L. J. 3: 741. 
 
 Memorials of London, and London Life in the 13th, 14th and 15th Cen- 
 turies, refers to conviction for making a false accusation, and a protection 
 from the king alleged (12 Richard II, A. D. 1388). Punishment of the 
 Pillory and Whetstone for circulating lies (48 Edward III, A. D. 1374)- 
 Punishment of the Thewe inflicted upon a common scold (49 Edward 
 III, A. D. 1375). Punishment for practicing the art of magic, and for 
 
XVlll WORKS OF REFERENCE. 
 
 Anonymous Articles, &c. — continued. 
 
 defamation (3 Richard II, A. D. 1386). Punishment of imprisonment 
 
 for reviling the Mayor (6 Richard II, A. D. 1389). 
 Mence on Libel. Review of. 3 West. Rev. 
 Modern Aspect of Law of Slander. L. T. 75: 123. Same art. Chic. L. 
 
 N. 15: 356. Ir. L. T. 17: 332. 
 Newspaper Law. Albany Law Journal, 19: 188, 208, 228, 248. 
 Newspaper Libels. Hackstaff 's Monthly, vol. i. No. i, January, 1880. 
 Newspaper Libel. Colum. Jur. 2: 592. 
 Nominal Damages in Actions for Libel. L. T. 54 : 90. Same art. Jour. 
 
 Jur. 17: 40. 
 Notes on Slander .^f/2<7 /K/«rzar«»«. Jour. Jur. 18:407. 
 Oral Slander of One's Business. Injunction against. Annotated Case. 
 
 Cent. L. J. 20: 13. 
 Parliamentary Debates on the statute (32 Geo. Ill, ch. 60) for removing 
 
 doubts respecting the functions of juries in cases of libel. London, 
 
 1792. 
 Parliamentary Reports and other Public Documents and History of British 
 
 Journalism. American Law Review, Sept., 1881. 
 People, The. Dedicated to Sir Francis Burdett, Bart. By an unlettered 
 
 man. Printed for the Author, and sold by M. Jones, 5 Newgate Street, 
 
 London, 181 1. 
 [This work professes to contain an analysis of Pitt's system, and to 
 show the great danger of the theory with regard to libels. To trace 
 that theory to its origin, and that it is directly contrary to the re- 
 formed religion and the New Testament.] 
 Points of Law in the Bradlaugh Prosecution. L. T. 74: 445, 464. 
 Practical Working of Law of Libel. L. T. 3 : 309. 
 Privilege of an Advocate's Words. L.J. 18:692. Same art. Ir. L. T. 
 
 18:8. 
 Privilege of Counsel or Advocate as a Defense to Actions of Slander. Jour. 
 
 Jur. 27: 617. 
 Privilege of Counsel against Actions for Libel. Cent. L. J. 20: 182. 
 Privileged Communications and Express Malice. L. T. 47 : 63. 
 Privileged Criticism. L. T. 53: 310. Alb. L. J. 6: 180. 
 Privileged Communications. Leg. Obs. 13:225, 274; 23:70. U. S. L. 
 
 Mag. I : 209; L. Mag. 39: 45; 40: 125. 
 Privileged Publications. L. J. 12: 275. 
 Proceedings for Blasphemous Libel. Mo. L. Mag. 9 : 144. 
 Proof of Libel by Evidence in support of the Innuendo. L. T. 69 : 57 
 
 Same art. Chic. L. N. 12: 332. 
 Propagation of Slander. U. S. L. Mag. 2 : 442. 
 Prosecutions for Libel. Ir. L. T, 8 : 439. 
 Publication of Injurious Falsehood. L. Rev. 22 : 380. 
 Publication of Libel by Dissemination of Defamatory Newspaper. Ir. L. 
 
 T. 20: 13. 
 Publication of Proceedings before a Magistrate. Sol. J. & Rep. 11 : 325. 
 
WORKS OF REFERENCE. XIX 
 
 Anonymous Articles, ^c— continued. 
 
 Publication of Printed Papers. Edinburgh Review, January, 1838. 
 Religious Offenses indictable at Common Law. Monthly Repository, 
 
 1817. 
 Remedies for Defamation. L. T. 45: 141. 
 Republication of Slander, Leg. Exam. l: 533. 
 Responsibility of Newspapers, i Southern Law Review, New Series, St. 
 
 Louis, 1875. 
 Restraining Libel by Injunction. Ir. L. T. 17 : 40. 
 Restriction of the Diffusion of Opinions among the Ancients. Edinburgh 
 
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 Scotch Law of Defamation, and the Actio Injuriarum. Jour. Jur. 19: 57. 
 Seditions. L.T. 48:431. 
 
 Slander. City Hall Rep. 1 : 160. L. Mag. & Rev. 28: 295. 
 Slander of Females. U. C. L. J. 8: 281. 
 Slander and Libel, Review of Starkie's. Am. L. Mag. 2: 247. 
 Slander and Libel. Chambers' Journal, 8th May, 1869. 
 Slander and Special Damage. Ir. L. T. 17: 373. Same art. Cent. L. J. 
 
 17: 105. 
 Slander by a Solicitor. Privilege. L. T. 75 : 31. 
 Slander from the Pulpit. Cent. L. J. 3. 637. Wash. L. Rep. 3 : 228. 
 Slander of Goods. Sol. J. & Rep. 19 : 151. 
 Slander of Title. Mo. West. Jur. 3 : 313. 
 Slander on the Chastity of a Married Woman. Remoteness of Damage. 
 
 L. T. 61 : 37. Same art. Ir. L. T. 10: 431. 
 Slandered Chastity and Special Damages. Alb. L. J. 2 : 490. 
 Slandered Modesty and Special Damage. L. T. 49: 4. Same art. 
 
 Pitts. Leg. J. 18: 97. 
 Slandering the Judges. Can. L. J. 12: 76. 
 Special Damage for Slander. Ir. L. T. 17 : 188. 
 Special Damage in Slander, L. T. 74: 376. Sol. J. & Rep. 27 : 359. 
 Suit against News Company as Sellers of Newspaper containing the Libel- 
 ous Publication. Alb. L. J. 23: 401. 
 The Adams-Coleridge Case. L. T. 78 : 76, 101. Same art. Wash. L. 
 
 Rep. 13: 441. Cent. L. J. 21 : 41. Sol. J. & Rep. 29: 78. L. J. 19: 
 
 712. Pump Ct. 2 : 92. Leg. News, 7 : 401. 
 The Belt Case. Jour. Jur. 28 : 183. 
 The Freheit Prosecution, L. T. 70 : 400. 
 The Hatcham Case. L. J. 12: 40, 113. 
 The Irish Press Prosecution. Sol. J. & Rep. 12 : 223. 
 The Reform Club Case. L. T. 74 : 369, 376. 
 The Sentence of the '' Times." L. T. 24 : 202. 
 The Workhouse Case. L. T. 50 : 1 12. 
 Two Recent Cases of Libel. L. J. 14: 291. Same art. Ir. L. T. 13: 
 
 290. 
 What are Actionable Words. Jour. Jur. 2 : 458. 
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J5X WORKS OF REFERENCE. 
 
 Anonymous Articles, &c.— continued. 
 
 What amounts to Defamation. Sol. J. & Rep. i8 : 484. 
 
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 What is Justification. L. T. 64: 59. 
 
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 Rep. 8 : 355. Leg. News, 3 : 257. 
 Which is no Libel ? Ir. L. T. 1 5 : 204. 
 
 Words Actionable /«r se. Annotated Case. Cent. L. J. 22 : 14. 
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 an Appendix. 
 Baby, Mr. Justice. Address to Grand Jury at Montreal. Leg. News, 
 
 6: 281. 
 
 Bacon's Abridgment, tit. Slander, Courts Ecclesiastical. 
 
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 [It is referred to in a note to T. Holt White's edition of Milton's Areo- 
 pagitica, and the annotator adds : "My inquiries after this posthu- 
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 one entitled " Certain observations upon a Libel. By Lord Bacon, 
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 Ball, W. E , LL. D. Leading cases on the Law of Torts, with notes. Lon- 
 don, 1884. 
 
 Bantz, Gideon D. Privileged Communications. Annotated Case. Cent. 
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 Same. Newspaper Privileges. Cent. L. J. 21 : 86. 
 
 Berneye, John. Slander and Libel. Can. L. J. 8 : 272. 
 
 Black, H. Campbell. Libel of the dead. American Law Review, July- 
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 Blount, CHARiiES. A just vindication of learning and of the liberty of the 
 Press. 1695. 
 
 Blue Laws of Connecticut. 
 
 bollan on the right of every man to think and speak freely. 
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 BONNEY, C. C. Lecture on Libel. Chic. L. N. 8 : 133. 
 
 BORTHWICK. Observations upon the Mode of prosecuting for libel according 
 to the laws of England. London, 1830. 
 
 [This is not the work referred to in the following pages as Borthwick on 
 Libel. ] 
 
WORKS OF REFERENCE. XXV 
 
 Bowles, John. Considerations on the respective rights of judge and jury, 
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 Hon. C. J. Fox. London, 2d ed., 1 791. 
 
 Same. Two Letters to the Hon. C. J. Fox, occasioned by his late motion in 
 the House of Commons, respecting libels, and suggesting the alarming 
 consequences likely to ensue if the bill now before the legislature should 
 pass into a law. London, 1792. 
 
 Brady, James T. Lecture on the Law of Libel. 
 
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 Brewer, David J. Libel. Address. Kans. Bar Asso. (1886) 55. Same 
 art. Cent. L. J. 22 : 363. West. Jur. 5:1. 
 [Comments on the foregoing. New York Daily Register, May 3d, 
 1 886.] 
 
 Browne, Irving. Defamation. Alb. L. J. 9: 118, 135. Same art. Ir. L. 
 J. 8 : 125, 141. Jour. Jur. i : 450. 
 
 Same. Is a lunatic liable for Slander. Alb. L. J. 25 : 284. 
 
 Same. Evidence of Defendant's Pecuniary Standing in Actions of Slander. 
 Alb. L. J. 23 : 44. 
 
 Brydon, Fredk. W. Criminal Libel. Alb. L. J. 23 : 46. Wash. L. Rep. 
 
 9: 33- 
 Burn's Ecclesiastical Law, tit. Defamation. 
 
 Calhoun's Report on the attempt to circulate through the mails inflamma- 
 tory appeals, &c., made to the United States Senate, February 4, 1836. 
 
 Christian Discipline, vol. 3. 
 
 Christian Examiner, vols. 16, 17. 
 
 City Hall Reporter. Slander, p. 160. 
 
 Clapp, Robert P. Injunction to Restrain Slander in Respect to Business 
 Annotated Case. Am. L. Reg. (N. S.) 23: 701. 
 
 COCKBURN, Lord Chief Justice. The Summing up to the Jury of, in the 
 case of Seymour v. Butterworth. Monthly Law Rep. 25 : 385. Boston, 
 1863. 
 
 Coleridge, Lord. On Society Journals. Leg. News, 7: 137. 
 
 Cook, John T. Privileged Communications in Petition for Removal of Police 
 Officer. Annotated Case. East. Rep. i : 616. 
 
 Same. Law of Slander. Wash. L. Rep. 8: 114, 353. L. T. 80:435. 
 
 Cooley. Constitutional Construction. Chapter xii. " Liberty of Speech and 
 
 of the Press." 
 Cooper on Libel. Review of; and of the case of The People v. Croswell, 
 
 12 Southern Quarterly Review, 236, A. D. 1847. 
 
XXU WORKS OF REFERENCE. 
 
 Coote's Ecclesiastical Courts, tit. Defamation. 
 
 CORNHILL Magazine, January, 1867. 
 
 Craftsman, The, No. 281, toI. viii, p. 213. 
 
 [Contains the reasons why the Commons would not agree to the clause 
 which revived the old printing act, delivered at a conference with the 
 Lords, 1695.] 
 
 Crump, F. O. Libel and Slander. Co. Ct. Chr. 21:76, 97, 120. Chamb. J. 
 46: 300. 
 
 Dawes, M. England's Alarm ! on the Prevailing doctrine of Libels, as laid 
 down by the Earl of Mansfield in a letter to his Lordship, by a country 
 gentleman, to which is added by way of appendix, the celebrated dialogue 
 between a gentleman and a farmer, written by Sir. William Jones, with 
 remarks thereon, and on the case of the Dean of St. Asaph. London, 
 1785. 
 
 Defamation. Albany Law Journal, 9 : 118, 135. 
 
 Desty, Robert. Privileged Communications. Annotated Case. Fed. Rep. 
 10: 622. 
 
 Dodsley's Annual Register. A. D. 1792. 
 
 Domestic Annals of Scotland. By Chambers. Vol. i, p. 126. 
 
 DONNER, A. J. Recent Phases of Defamation. Cent. L.J. 15: 202. 
 
 Dream. The Dream ; or, the true History of Deacon Giles' Distillery and 
 Deacon Jones' Brewery. Cheever's Defense in Abatement of Judgment for 
 an alleged Libel in the story entitled, "Inquire at Amos Giles' Distillery." 
 2 Vols. 8vo. and i8mo. New York, 1836-48. 
 
 Earle, George H., Jr. Defamatory words uttered by an Advocate. Anno- 
 tated Case. Am. L. Reg. (N. S.) 23: 12. 
 
 Eclectic Review, March, 1867. 
 
 Edinburgh Review. Review of George on Libel. Abuses of the Press, 
 vol. 22. Review of Holt on Libel, 2d edition, vol. 27. French Law of 
 Libel, vol. 32. Libels on Christianity, vol. 38. 
 
 Elliott, George. The Newspaper Libel and Registration Act, 1881, with 
 a statement of the Law of Libel as affecting Proprietors, Publishers and 
 Editors of Newspapers. London, 1884. 
 
 Erskine's Speeches on subjects connected with the Liberty of the Press. 
 
 Ewell, Marshall D. Slander of a Public Officer, actionable per se. Anno- 
 tated Case. Am. L. Reg. (N. S.) 18: 186. 
 
 Same. Libel of Candidate for office. Annotated Case. Am. L. Reg. (N. S ) 
 24: 640. 
 
 Same. Privileged Communications to. Newspapers about Candidate for office. 
 Annotated Case. Am. L. Reg. 25 : 509. 
 
WORKS OF REFERENCE. Xxiii 
 
 Field, David Dudley. Law of Libel and the Newspaper Press. Internal. 
 Rev. 3:479. 
 
 FiNLASON, W. F. Right of Free Discussion. Case of Catch v. Shaen. L 
 J. 6: 8. 
 
 FiSK, G. Liberty of Opinion. 14 Ex. H. Lee. 300. 
 
 Flood, John C. H. A Treatise on the Law concerning Libel and Slander. 
 1880, London. 
 
 Ford, Charles. The Law of Libel as applied to Newspapers, by Mr. Charles 
 Ford of London, a Solicitor of the English Supreme Court ; a paper read 
 at the meeting of the Incorporated Law Society, A. K., held at Cambridge 
 on the 7th and 8th October, 1879. London, 1879. 
 
 Ford, Douglas M. The growth of the Freedom of the Press. English His- 
 torical Review, January, 1889. 
 
 Freedom of Speech and writings upon public affairs considered, with an 
 Historical view of 
 
 The Roman Imperial Laws against Libels as violations of Majesty or 
 lesser offenses. 
 
 The Nature and Use of Torture among the Romans and modern Euro- 
 peans. 
 
 The bringing of the Rack into the Tower where it remains, for a begin- 
 ning of the Civil Laws in England. 
 
 The different treatment of Libels there. 
 
 The origin, legal and assumed jurisdiction, subservience to Arbitrary 
 Power and Abolition of the Court of Star-Chamber, and of Trial by 
 Juries, with observations on the proper use of the Liberty of the Press, 
 and its Abuses, particularly of late with respect to the colonies, and 
 a brief state of their origin and political nature, collected from various 
 Acts of Princes and Parliament. London, 1766. 
 
 Freeman, A. C. Enjoining the Publication of Libel. Cent. L. J. 4 : 171. 
 
 FuRNEAUX, Dr. Letters to Sir William Blackstone on Toleration. 
 
 Geary, W. N. M. The Law of Theatres and Music Halls. London, 1885. 
 
 George on Libel, Review of. Edinburgh Review, vol. 22. 
 
 GODKIN, E. L. Libel and its Legal Remedy. Am. J. Soc. Sci. 12: 69. Same 
 art. Allan. 46: 729. 
 
 Gray, Earl. Speech on Lord Sidmouth's circular respecting Libels. House 
 of Lords, 18 1 7. 
 
 Greene, N. St. J. Slander and Libel. Am. L. Rev. 6 : 593. 
 
 Hagerman, John Frelinghuysen. Privileged Communications as a 
 branch of Legal Evidence. 1889. 
 
 [Contains Ch. XX, Privileged Communications in the Law of Libel and 
 Slander. Ch, XXI, Journalistic Privileges.] 
 
XXIV WORKS OF REFERENCE. 
 
 Hall, Rev. Mr. Robert. An Apology for the Freedom of the Press. Lon- 
 don, 1 82 1. 
 
 Harris, George. Libel cases under Lord Campbell's Act. L. T. 16 : 5^8^ 
 561; 17: 17, 192. 
 
 Hastings, Sydney, B. A., Oxon. A Treatise on Torts and the legal remedies 
 for their redress. London, 1885. 
 
 Hayter, Bishop. An Essay on the Liberty of the Press, chiefly as it respects 
 personal slander. 
 
 [In Marvin's Legal Bibliography, a treatise with a precisely similar title 
 is attributed to John Asgill. I know not if it is the same work.] 
 
 Holmes, Oliver Wendell, Jr. The Theory of Torts of American Law 
 Review, 652. 
 
 Holt's Law of Libel, Review of. American Quarterly Review, vol. 5 (A. 
 D.), 1829. 
 
 Hopkins, J. B. Liberty and Libel. 9 Gentleman's Magazine, N. S. 185. 
 
 Hunt, John. Law of Libel (on the), with strictures on the self-styled Con- 
 stitutional Society. 8vo. London, 1823. 
 
 Jacob's Law Dictionary, titles Justification, Court of Piepowders, Copia 
 Libelli Deliberanda, Scandal. 
 
 JEBB, R. C. Ancient organs of Public Opinion. Oration, Sander's Theatre of 
 Harvard University, June 26th, 1884. 
 
 Johnson, H. B. Justification by Proof of Charge. Annotated Case. Am. 
 L. Reg. (N. S. 18: loi. 
 
 Jones, John, LL. D., &c. De LibelUs Fantosis; or, the Law of Libels. 
 London, 18 12. 
 
 Kerr, James M. Actionable Words. Annotated Case. Fed. Rep. 25: 133. 
 Atl. Rep. 2: 397. N. W. Rep. 25: 14. Pac. Rep. 11 : 179. N. E. Rep. 
 I ■■ 738. 
 
 Same. Newspaper Publications concerning Candidate for office. Annotated 
 Case. N. W. Rep. 26: 671. 
 
 Kerr, William Williamson, A. M., Oxon. &c. A Treatise on the Law 
 and Practice of Injunctions. Third edition. With notes and American 
 cases, by Franklin S. Dickson, L. Q. B. Phil. 1889. 
 
 [Ch. XIII, Injunction against the publication of a Libel and against 
 Slander of Title.] 
 
 King, J. Law of Libel and the Newspaper Press. Canad. Mo. 8 : 394. 
 
 Knickerbocker Magazine. Scandal and Envy, vol. 33. 
 
 Lawson, John D. Slander of a person in his calling. Am. L. Rev. 15: 573. 
 Same art. Ir. L. T. 16: 7, 85. Leg. Add. 2: 291. 
 
 Lewis, W. D. Liberty of Opinion in Relation to Blasphemous Libel. Paper. 
 Jurid. Soc. Pap. 2 : 250. 
 
WORKS OF REFERENCE. XXV 
 
 LOVEJOY, Rev. Elijah P. Memoir of, who was murdered in defense of the 
 Liberty of the Press, at Alton, 111. Nov. 7th, 1837. New York, 1838. 
 
 Madox, p. B. (supposed). An Essay on the Liberty of the Press, chiefly as 
 it respects Personal Slander. London, 1755. 
 
 Mallett, Sir Thomas, Judge of the Queen's Bench, England. Treatise on 
 Libel. (Referred to by Finnerty when brought up for judgment.) 
 
 Massey's History of England. Vol. 2. As to Dowdeswell's Bill to 
 
 make juries judges of the law in libel cases. 
 Merrill, Samuel. Newspaper Libel. Boston, 1888. 
 
 [A valuable and interesting book.] 
 Miller, John. Criminal Libel on Non-Residents. Alb. L. J. 22: 505. 
 Morgan, James Appleton. The Law of Literature. New York, 1875. 
 
 Murfree, W. L., Sr. Privileged Publications, Legislative and JudiciaL 
 Cent. L. J. 21 : 450. 
 
 Napier, Prof. Lecture on Law of Defamation. Leg. Rep. 1 : 128. 
 
 Newlin, James W. M. Law of Libel and Trial by Jury. Leg. Int. 30 : 155. 
 
 Otto, Thesaurus. Vols. 3, 4, 
 
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 ship : being commentaries on the Liberty of the Subject, and the Laws of 
 England. London, 1880. 
 
 Peel, Sir Robert. Speech of, in vindication of the House of Commons 
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 moyen age, sur la liberty de la press, &c., &c. 
 
 Pemberton, Thomas, M. P. A Letter to Lord Langdale on the recent pro- 
 ceedings of the House of Commons on the subject of Privilege. 2d ed. 
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 Platt, Charles M. Malice in Actions for Slander and Libel. Alb. L. J. 
 
 26 : 247. 
 Pope, Alexander. A curious and complete collection of Libels published on 
 
 Pope, collected by himself, with a few remarks in his own handwriting. 
 
 4 vols. 
 
 [Brockley Hall Sale Catalogue, October 30, 1849, lot 1431.] 
 Porter, James Neville. Libel Law Reform. Macmil. 47 : 437. 
 
 Powell, Arthur. The Law specially affecting Printers, Publishers and 
 
 Newspaper Proprietors. London, 1887. 
 PrOFFAT, J. Law of Libel and the Newspaper IJress. N. A. Rev. 131 : 109. 
 
 Quincy's Massachusetts Reports, A. D. 1761 to A. D. 1777. See pages 
 260, 267, 270, 278, 309. — Charge as to law of libel. 
 Page 245 — As to right of the court to commit for libel. 
 Page 561 — Discussion on the right of juries to judge of law and fact. 
 
 C 
 
XXVi WORKS OF REFERENCE. 
 
 Reade, W., Jr. Law of Slander, its Present State and Possible Improvement. 
 L. Mag. & Rev. 21 : 215. 
 
 Redfield, Isaac F. Reputation of Plaintifl proved in Defense. Annotated 
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 Same. Justification by Proof of Alleged Crime. Annotated Case. Am_. L. 
 Reg. (N. S.) 12:426. 
 
 Report from the select Committee on the Law of Libel, together with the pro- 
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 TThis was the report upon the Hutchinson Bill to amend the Law of 
 Libel. The report contains much to interest the student of Libel Law. 
 Amongthewitnessesexamined was a Dr. RoUit, attorney for six hun- 
 dred newspapers ; he testified : ' ' The American Press is under no fear 
 of either actions or criminal proceedings." " In America the practice 
 is not to bring actions. " " As a matter of practice I believe actions are 
 not brought in America. The tendency of American Law is to let the 
 individual take care of himself." He further stated there were in the 
 " United Kingdom, 1,188 provincial newspapers, and there are on an 
 average a score of libel actions in a year." Before the same Committee 
 Mr. Robinson, proprietor of the Dublin Daily Express, in giving an 
 account of the actions against him, stated, " We one night had a tele- 
 gram announcing the death of an individual who, it was stated, com- 
 mitted suicide in a fit of delirium tremens, this was published in the 
 paper, and the individual referred to sued us for libel, we paid a sum 
 of money into court which the plaintiff accepted. We afterwards 
 learned that the telegram was sent us by the man himself.] 
 
 RoCKEL, William M. Privileged Communications. W. L. Bui. 13:586. 
 Ir. L. T. II : 145. Same art. L. J. 12 : 247. 
 
 ROUTLEDGE, James. Chapters in the History of Popular Progress, chiefly 
 in relation to the Freedom of the Press and Trial by Jury. London, 1876, 
 
 ROYER, COLLARD. Discussion upon the Law of the Press. 
 
 Sackett, H. W. The Law of Libel. How to Guard against Libel suits, and 
 
 how to be prepared to defend them when brought. New York, 1885. 
 Salmon's Chronological Historian. 1723. 
 
 Sandford's Penal Codes of Europe, pp. 70, 100, 105, 106, 116. Prus- 
 sian Code, ch. 13, part II. Verletzungen der Ehre, translated of Slander 
 and Libel. 
 
 Search, John. Considerations on the Law of Libel, as relating to publica- 
 tions on the subject of religion. Ridgway, 1833. 
 
 [This pamphlet is referred to 11 London Law Magazine, 444. John 
 Search is a fictitious name.] 
 
 Seward, William H. Extract from Speech of. West. L. J. 2 : 465. 
 Shaftesbury, Lord. Freedom of Wit and Humor. 1709. 
 Sheppard's Abridgment, tit. Libel. 
 
WORKS OF REFERENCE. XXVll 
 
 Shortt, John, LL. B. The Law relating to works of Literature and Art, em- 
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 SiDMOUTH's, Lord, Circular respecting libels. 
 
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 the views of Mr. Justice Stephen, by Lindsay Middleton Ashland ; with an 
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 Rep. 10: 216. 
 
 Tindal'S Continuation of Rapin's History of England as to Pulteney's 
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 can Law Review, 594. 
 
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 A Case of Libel. By Thomas Moore. 
 An account of the hanging of two Ministers of the Gospel for words spoken 
 
 of the Earl of Morton, i Chambers' Domestic Annals of Scotland, 79. 
 An account of the conviction and hanging of "Twa Poets of Scotland." 
 
 For slandering the Earl of Morton. Id. 126. 
 Philip, J. Arcularius v. William Coleman, Gent, etc. A faithful report 
 
 of the trial, being an action for Libel. Held at the sittings, before his 
 
 Hon. Judge Livingston, on the 3d of January, 1807, &c., taken by Mr. 
 
 Sampson in short hand, &c. New York, 1807. 
 A Letter to John Dunning, Esq., Barrister at Law, on the trial of the Rev. 
 
 Henry Bate, upon the Information of his grace, the Duke of Richmond, 
 
 for a Libel, with an apologetic dedication to his Grace of Richmond. By 
 
 a student of the Middle Temple. London, 1780. 
 Trial of Francis S. Beattie. Pamphlet. 
 Trial of Berkley v. Fraser. 15 Eraser's Magazine, 100. 
 Commonwealth v. Duane, Commonwealth v. Corbett, State of Maryland 
 
 V, Irvine, Carr v. Hood, Van Vechten v. Hopkins, The People v. Froth- 
 
 ingham, Libel on General Hamilton, Rex v. Creavy. American Law 
 
 Jour. Baltimore. Vols. I, 3, 4. 
 An Inroad upon the sacred right of Trial by Jury, or the case of John 
 
XXVlll WORKS OF REFERENCE, 
 
 Trials, ^continued. 
 
 Bentley, Gaoler of Baltimore County Gaol, and Isaiah Green, Turnkey of 
 said Gaol, against whom Summary Proceedings for a contempt of the 
 Court were begun in the County Courts. Baltimore County, March, 
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 Bath, 1820. 
 
 Mrs. Booty's trial, 1687. 5 British Lady's Magazine, 289; and Notes and 
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 Trial of Joseph T. Buckingham for Libel on John N. Maffit. Pamphlet. 
 
 Commonwealth v. J. T. Buckingham, on an Indictment for Libel, before 
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 Trial of David Lee Childs for Libel on John King. Pamphlet. 
 
 The Tryal and Sentence of Elizabeth Collier, for Writing, Printing and 
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 Sept., 1680. Whereunto is adde'd several Depositions made before the 
 Right Honorable the Lord Mayor, London. Printed for Thomas Col- 
 lins, at the Middle Temple Gate, 1680. 
 
 Daniel Isaac Eaton. Proceedings on the trial of, upon an indictment for 
 selling a supposed libel, " The second part of the Rights of Man, com- 
 bining principle and practice, by Thomas Paine," at Justice Hall, in the 
 Old Bailey, before the Recorder of London, June 3d, 1793. London 
 1794- 
 
 Same. Trial of, before Lloyd Lord Kenyon, and a special jury, in the 
 Court of King's Bench, Guildhall, London, July loth, 1793. For selling 
 a supposed Libel, " A Letter, addressed to the Addressers, by Thomas 
 Paine." London, 1794. 
 
 Same. Trial of, for publishing a supposed Libel, comparing the King of 
 England to a game cock, intituled Politics for the People or Hog's 
 Wash, at Justice Hall, in the Old Bailey. London and New York, 1794. 
 
 Fairchild v. Graham. Trial for defamation of character, both parties Sur- 
 geons at Rochford. 1819. 
 
 Proceedings on the Trial of Robert Faulder, Bookseller (one of Forty 
 against whom actions were brought for selling the Baviad), for publish- 
 ing a libel on John Williams, alias Anthony Pasquin, Esq. 1798. 
 
 Hone, William. The three trials of. 1818. 
 
 The Case of Baptis Irvine in a matter of contempt of court, with an appen- 
 dix, by a gentleman of the Bar. From the Reporter's short-hand notes. 
 Baltimore, 1808. 
 
 An accurate Report; of the argument on a motion of attachment against 
 Baptis Irvine, Editor of the Whig, for a contempt against the Court of 
 Oyer and Terminer for Baltimore County. By A. C. Hanson, one of the 
 Counsel for the State. Baltimore, 1808. 
 
WORKS OF REFERENCE. XXIX 
 
 Trials. — continued. 
 
 An Essay on constructive contempt of court, by Theodoruk Bland. 
 Written for George Bourne's Report of the case of Baptis Irvine in a 
 matter of contempt. Baltimore. 
 
 Abner Kneeland. Review of the Prosecution against, for Blasphemy. By 
 a Cosmopolite. Boston, 1835. 
 
 Report of the arguments of the Attorney of the Commonwealth at the 
 Trials of Abner Kneeland for Blasphemy, in the Municipal and Supreme 
 Courts in Boston, January and May, 1834. Collected and published at 
 the request of some Christians of various denominations. Boston, 1834. 
 
 The Englishman's Right ; or, a Dialogue between a Barrister at Law and 
 a Juryman, concerning the antiquity, use, power, and duty of Jurors, by 
 the Law of England. Extract in appendix to trial of John Lambert for 
 libel. — Trials, vol. xv, N. Y. State Library. 
 
 Opinion of the Court, delivered at the meeting and sitting of the Judges at 
 Charleston, at the conclusion of the Spring Circuits in the year 181 1, &c., 
 on a motion for a new trial on behalf of Colonel Lehre, who, on a pros- 
 ecution against him, had been convicted of publishing a libel by James 
 Madan, a member of the Charleston Bar. Charleston, 181 1. 
 
 DeWitt C. Littlejohn agst. Horace Greeley. The case of, tried at the 
 Oswego Term of the Supreme Court of the State of New York at Pulaski, 
 Sept. 10-13, 1861, before Hon. William J. Bacon, containing the rulings 
 of the Judge, and the arguments and points of the counsel. Phono- 
 g^aphically reported by James L. Crosby. New York, 1861. 
 
 Livingston v. Cheetham. The Trial of the Hon. Maturin Livingston 
 against James Cheetham for a Libel, 28th November, 1807, before the 
 Hon Judge Spencer. Taken in short-hand by William Sampson, Esq., 
 Counsellor at Law, &c. New York, 1807. 
 
 McDougall's Case, 3 Documentary History of New York, 534; cited 10 
 Abbott's Practice Reports, 170; and see Id. p, 169. 
 
 Report of the Maharaj Libel Case, Bombay, 1862, as to which see West- 
 minster Review, January, 1864, p. 65, Amer. Reprint. 
 
 Trial of Dr. Newman. Pamphlet. 
 
 Opdyke v. Weed. A full report of the great Libel case of, with speeches 
 of Counsel, Testimony, etc., etc. New York, 1865. 
 
 The Whole Proceedings on the trial, &c., of Thomas Paine, for a libel en- 
 titled "The Rights of Man," London, 1792. 
 
 Erskine's Speech in the case of the King v. Williams, for publishing Paine's 
 Age of Reason; with Mr. Kyd's reply and Lord Kenyon's charge to the 
 Jury. — Trials, vol. xviii, N. Y. State Library. 
 
 Trial, condemnation and execution of Palm, a Nuremberg Bookseller, for 
 the circulation of Ubels against Napoleon L (Dec, 1806.) See Edin- 
 burgh Review, Jan'y, 1863; and Scott's Life of Napoleon, Ch. XXXIV, 
 note. 
 
 Trial of Theodore Parker for the "Misdemeanor of a Speech in Faneuil 
 Hall, against Kidnapping." Boston, 1855. 
 
 People V. Crosswell. The Speeches at full length of Mr. Van Ness, Mr. 
 
XXX WORKS OF REFERENCE. 
 
 Is^XKLS.— continued. , tt -i 
 
 Cairns, the Attorney General, Mr. Harrison, and General Hamilton in 
 the Great Case of the People agst. Harry Crosswell, on an Indictment for 
 a Libel on Thomas Jefferson, President of the United States. New York, 
 
 1804. , OL 11 , 
 
 Queen v. Moxon. Speech for the defendant, for the Publication of Shelley s 
 Works, delivered in the Court of Queen's Bench, June 23d, 1841, and 
 revised by T. N. Talfourd, Sergeant at Law. London, 1841. 
 Archibald Hamilton Rowan. Report of the trial of, on information filed 
 ex officio by the attorney general, for the distribution of a libel, &c. Dub- 
 lin, 1794. 
 Scandalum Magnatum, or the Great Trial at Chelmsford Assizes, Mar. 6th, 
 betwixt Henry Bishop of London and Edm. Hickeringill, Rector of 
 All Saints. Colchester, faithfully related, 1682. 
 Trial of W. J. Snelling, for a libel on the Hon. Benjm. Whitman, Senior 
 
 Judge of the Police Court, 1833. Boston, 1834. 
 Azell Snow v. John Ford and John S. Sleeper. Trial for Libel before the 
 Supreme Judicial Court (Boston, Mass.), April 25th, 1838. Chief Justice 
 Shaw, Presiding. Boston, 1838. 
 Mr. Stammer's Pamphlet on the case of Rex v. DTsraeli. 
 
 [I have been unable to find a copy. It is referred to i Townsend's 
 Modern State Trials, 260.] 
 Trial of John Stockdale for a libel on the House of Commons, in the Court 
 of King's Bench, in 1789— with an argument in support of the Rights of 
 Juries. London, 1790. 
 Trial of William L. Stone for Libel. L. Rep. 5 : 145. 
 
 The Trial of Theophilus Swift for a libel on the Fellows of the Dublin Uni- 
 versity, and the Trial of the Rev. Dr. Burrows for a libel on Theophilus 
 Swift, pubUshed together, with notes by Theophilus Swift. 
 
 [The result of these trials was that both Swift and Burrows found 
 
 themselves inmates of the same jail, each for libeling the other. See 
 
 Barring[ton's Memoirs.] 
 
 John Taylor v. Edward C. Delavan. A Report of the Trial of the case of, 
 
 prosecuted for an alleged Libel. Tried at the Albany Circuit, April, 
 
 1840, etc. Albany, 1840. 
 
 Trial of Rev. Robert Taylor for a blasphemous discourse against our Lord 
 
 Jesus Christ, London, 1827. N. Y. 1827. 
 Report of the trial, Hutchinson Titus v. B. F. Kendall, for libel — The Ex- 
 Chief Justice and the Printer. Woodstock, Vt., 1836. 
 Report of the Trial of Dr. Samuel Thompson, founder of the Thompsonian 
 practice, for libel in warning the public against the imposition of Paine 
 D. Badger as a Thompsonian physician. Boston. 
 The Triumph of Virtue. The Trial of Miss Mary Ann Tocker, who plead 
 her own cause. For an alleged Libel on R. Gurney, Jun., Vice-Warden 
 of the Stannary Court in the County of Devon, which trial took place 
 before Mr. Justice Borrough, one of the Judges of the Court of King's 
 Bench, on Wednesday, the 5th of August, 1818, at the town of Bodmin, 
 in the County of Cornwall. To which is prefixed a letter to Miss Tocker, 
 
WORKS OF REFERENCE. XXXi 
 
 Trials. — continued. 
 
 and to which is added an address to Jurymen on their duties as jurors 
 
 and especially on trials for criminal libel, by William Cobbett. Boston, 
 
 1818. 
 Report of the Trial, Timothy Upham v. Hill and Barton, for an alleged 
 
 libel, at the Court of Common Pleas, Rockingham County, October Term, 
 
 1830. Concord, 1831. 
 Trial of Aston Williams. Pamphlet. 
 Whitmarsh, Joseph A. Letter to Messrs. John C. Cook, Foreman ; Richard 
 
 Bartlett, Thomas Chamberlain, John P. Coolidge, Joseph H. Cotton, 
 
 David Eckley, John F. Elliot, Daniel Goodnow, James Goddard, John T. 
 
 Heard, Ridgeway E. Holbrook, all of Boston, and Henry Slade of 
 
 Chelsea, Jurors empanelled to try the Indictment against Joseph A. 
 
 Whitmarsh for an alleged crime of Libel. Boston, 1838. 
 Trial of B. W. Williams and others. Editors and Printers of the " Dew 
 
 Drop," Taunton, Mass., for libel against William Wilmar, a Rumseller 
 
 of Taunton. Taunton, Mass., 1846. 
 Trial of Andrew Wright, for libels against Gov. Strong. 1806. 
 Case of J. V. N. Yates, decided in the Supreme Court of New York in 
 
 August Term. 1809. 
 Young and Minns. The defense of Young and Minns, Printers to the 
 
 State, before the Committee of the House of Representatives. Mass., 
 
 1805. 
 
 [This was an alleged libelous publication affecting President Jefferson, 
 entitled, "The Monarchy of Federalism."] 
 Trial of John Peter Zenger, of New York, Printer, who was tried and ac- 
 quitted of printing and publishing a libel against the Government. Bos- 
 ton, 1799. 
 Truax, C. H.* Precepts for Slandering Safely. Scrib. 15 : 214. 
 ViNER's Abridgment. Tit. Good Behavior. 
 Webster, Daniel. Free Speech. An Oration. A. D. 18 14. 
 Whittaker, W. H. Law of Slander as applicable to Physicians. Am. L. 
 
 Reg. (N. S.) 19 : 465. 
 Williams, Sydney E. W. Forensic Facts and Fallacies. Lon., 1885, 
 Ch. IV, Libel and Slander. 
 
 Wooler, T. W. a verbatim report of the two trials of, for alleged libels, be- 
 fore Justice Abbott and a special jury. London, 1817. 
 Yelverton Damages. Jour. Jur. 10: 7. 
 
 Newspaper Libel. The law of, with special reference to. the state of the law 
 as defined by The Law of Libel Amendment Act, 1888, and all preceding 
 acts upon the subject and the full text of all the libel acts, and a report of 
 every important case to date. By Richard J. Kelly, Barrister at Law. 
 Clewes & Son, London, Nov. , 1889. 
 
 Law of Libel in its Relation to the Press. By Hugh Fraser, M. A., LL. M., 
 Barrister at Law. Reeves & Turner, London, 1889. 
 
 * Now a Justice of the Superior Court, New York. 
 
TABLE 
 
 OF WORKS REFERRED TO, EXCLUSIVE OF THE 
 
 REPORTS. 
 
 [The reference is to the page.] 
 
 Abbe Gailiani, The, 450. 
 
 A Caveat for Common Cursetors, &c., 209. 
 
 Adams' Equity, 694. 
 
 Addison on Contracts, 440. 
 
 Addison on Torts, 475. 
 
 Addison on Wrongs, 18. 
 
 Advice to the Lord Keeper, by a Country Parson, 1 19. 
 
 Albany Law Journal, 17, 42, 54, 56, 64, 72, 78, 82, 89, 106, 149, 201, 209, 210, 
 
 271, 289, 290, 352, 381, 417, 445, 671, 679,702. 
 American Encyclopedia, 17. 
 American Jurist, 41. 
 American Law Journal, New Series, 25. 
 American Law Record, 305. 
 American Law Register, 105, 687. 
 
 American Leading Cases, 163, 167, 203, 305, 504, 699, 722. 
 American Quarterly Review, 70. 
 An Inquiry into the Doctrine lately Propagated concerning Attachments for 
 
 Contempt, 364. 
 An Institute of the Laws of England, 2. 
 
 Ancient Law or an Inquiry into the Origin of Legal Ideas, 27. 
 Ancient Laws and Institutes, 47. 
 Andrews, Joseph, 5. 
 Anthon's Law Student, 47, 305. 
 Appleton's Law of Literature, 526. 
 Areopagitica, a Plea for Unlicensed Printing, 444. 
 
 Austin's Lectures on Jurisprudence, 27, 32, 36, 47, 53,61, 63, 64, 65, 66, 67, 70. 
 Bacon's Abridgment of the Law, 4, 12, 43, 106, 122, 187, 349, 382, 403, 452. 
 Bacon's (Lord) Charge against Lumsden, 147. 
 Bacon's Introduction to his Reading on the Statute of Uses, 10. 
 Bacon's Maxims of the Law, 71, 72. 
 Bacon's The Use of the Law, 32. 
 Bacon, Roger, Works of, 40. 
 Baltimore Sun, 358. 
 Bancroft's History of the United States, 42. 
 
XXXIV TABLE OF WORKS REFERRED TO. 
 
 Barnes' Notes, 530. 
 
 Baron's War, The, 5. 
 
 Harrington on Penal Statutes, 128. 
 
 Bartal, 6. 
 
 Bentham's Judicial Evidence, 25, 
 
 Bentham's Principles of Morals and Legislation, 61. 
 
 Bentham's Writings, 18. 
 
 Bible, The, 532. 
 
 Bigelow's Leading Cases of the Law of Torts, 699. 
 
 Bigelow's Edition, Odgers' Libel and Slander, 167. 
 
 Bill of Rights, 445. 
 
 Bishop's Criminal Procedure, 99. 
 
 Bishop on Criminal I^aw, 3, 95, 348. 
 
 Bishop on Marriage and Divorce, 8. 
 
 Blackstone's Commentaries, J, 13, 32, 66, 127, 309, 310. 
 
 Blackwrell's Tax Titles, 55. 
 
 Blackwood's Magazine, 160. 
 
 Bolingbroke, Lord, Letter of, 13. 
 
 Book of Entries, 1 5. 
 
 Borthwick on Libel, 13, 14, 46, 64, 73, 99, 119, 122, 123, 127, 160, 309, 332, 
 360. 
 
 Bosworth's Anglo Saxon Dictionary, 40. 
 
 Bouvier's Law Dictionary, 3, 6, 18, 66, 67, 73. 
 
 Boyd Kinnear's Digest of H. C. Cases, 116. 
 
 Bracton, De Legibus, 30, 71. 
 
 British Quarterly Review, 367, 
 
 Broom's Commentaries, 12. 
 
 Broom's Legal Maxims, 71. 
 
 BuUer's Nisi Prius, 3. 
 
 Burke, Letter to his Son, I. 
 
 Burns' Ecclesiastical Law, 368, 403. 
 
 Burnt Njal, The Story of, 12. 
 
 Burrill's Circumstantial Evidence, 25. 
 
 Burrill's Law Dictionary, 17, 21, 66, 71. 
 
 Burrill on Presumptive Evidence, 55. 
 
 Burton's Anatomy of Melancholy, 10. 
 
 Butler, Bishop, 711. 
 
 Calendar of State Papers, Domestic Series of the Reign of Charles I, 5, 65, 
 
 California, Statute of 1850, of State of, 20. 
 
 Campbell's (Lord) Libel Act, 126. 
 
 Campbell's (Lord) Lives of the Lord Chancellor's, 12, 21, 57, 82, 326, 370, 440, 
 
 496, 534, 688, 694, 700. 
 Campbell's (Lord) Lives of the Chief Justices, 328, 360, 370, 510. 
 Canada Law Journal, 82. 
 Capgrave's Chronicle of England, 4. 
 Carolina Law Repository, 331. 
 Cassil's Digest, Supreme Court Decisions of Ontario. 
 
TABI.E OF WORKS REFERRED TO. XXXV 
 
 Central Law Journal, 335. 
 
 Chitty's Criminal Law, 7cx>. 
 
 Chitty's General Practice, 12, 66. 
 
 Chitty on Pleading, 32, 601. 
 
 Civil Code of California, 296. 
 
 Civil Code of New York, Proposed, 20. 
 
 Cobb's Digest of Georgfia Laws, 20. 
 
 Cockbum, Lord, Second Letter on the Proposed New Criminal Code, 513. 
 
 Code Criminal, 127. 
 
 Code of Remedial Justice, 20. 
 
 Coke's Institutes, 5, 8, 43. 
 
 Coleridge, Biographia Literaria, 123. 
 
 Comyn's Digest of the Laws of England, 17, 32, 74, loi, 122, 160, 166, 173, 
 
 195, 238, 261, 266, 271. 
 Constitution of the United States, 327. 
 Contempt, Inquiry into Doctrine concerning, 364. 
 
 Cooke on Defamation, 69, 115, 207, 225, 263, 271, 318, 348, 457, 566, 643. 
 Cousin, History de la Philosophie, 123. 
 Cowen and Hill's Notes to Phillips' Evidence, 25. 
 Cushing's Manual, 326. 
 Dakota Penal Code, 20. 
 
 Danske Erobring (Den.) of England og Normandict, 6, 38. 
 D'Anver's Abridgment, 84. 
 Davies' Supplementary English Glossary, 16, 17. 
 De Civili Dominio, 26. 
 Det Norske Folkes Histoire, 6. 
 Digest of the Law concerning Libels, 13. 
 Digest, Roman, 18, 310. 
 
 Disney's Ancient Laws against Immoralities, 37, 162. 
 Doctor and Student, 43, 71. 
 Dodderidge's English Lawyer, 71. 
 Domat's Civil Law, 26, ic6, 175, 207, 330, 536. 
 Dome-Book of Alfred, 42. 
 Doria and McCrea's Law of Bankruptcy, 482. 
 Drewry on Injunctions, 689. 
 Drone on Copyright, 226, 694. 
 Dublin Review, 302. 
 Dugdale's Origines Juridicales, 37. 
 Dunlap's Admiralty Practice, 330. 
 Ecclesiastical Commissioners' Report, 43, 
 Edinburgh Review, 21, 32, 60, 175, 694. 
 Edwards on the Will, 61. 
 Eldon, Lord, Life of, 694. 
 Encycolopedia Britannica, 9, 14, 17. 
 England, Statutes of, 43. 
 English Etymology, 688. 
 English Parliament, Ordinances of, 14. 
 
XXXVl TABLE OF WORKS REFERRED TO. 
 
 English Pleader, 15. 
 
 English Record Commissioners', Publication of, 37, 42, 47. 
 
 Erskine, Institutes, 64. 
 
 Essai Sur I'Histoire de la Civilization en Russia, 13. 
 
 Essay on Ultimate Civilization, 27. 
 
 Ethica Christiana, 40. 
 
 Evans' Pothier on Obligations, 104. 
 
 Federalist (The), 444. 
 
 Field, David Dudley, in International Review, 445. 
 
 Finch's Law, 14. 
 
 Finlason's Common Law Procedure Act, 540. 
 
 Flood on Libel, 16, 513, 608. 
 
 Folkard on Libel, 7. 
 
 Folkard, Starkie Slander, 481. 
 
 Ford's MS., 12. 
 
 Forsyth's History of Trial by Jury, 40, 57, 362, 510. 
 
 Fortescue, De Laudibus Legum Angliae, 40, 71. 
 
 Foss' Judges of England, 82. 
 
 Fourth Estate (The), 444. 
 
 Fox's Martyrology, 73, 672. 
 
 Eraser's Magazine, 360. 
 
 Freedom of the Press, 329. 
 
 Geary's Law of Theaters and Music Halls, 268. 
 
 George on Libel, 15, 16, 17, 33, 73, 74, loi, 103, 129, 203. 
 
 Gibson's Law Notes, 535. 
 
 Gilbert's Cases, 66. 
 
 Girard Will Case, Argument in, 41. 
 
 Greenleaf on Evidence, 69, 106, 120, 305, 307, 442, 519, 653. 
 
 Guizot, History de la Civilis. en Europe, 123. 
 
 Gurdon's History of Court Baron and Court Leet, 37. 
 
 Hale's History of the Common Law, 201. 
 
 Hale's Pleas of the Crown, 66. 
 
 Hallam's History of the Middle Ages, 40, 42. 
 
 Halliwell's Dictionary of Archaic Terms, 193, 209, 565. 
 
 Hamilton, Sir William, 11. 
 
 Hardwicke, Lord, Life of, 57. 
 
 Hare on Discovery, 635. 
 
 Hawkins' Pleas of the Crown, 17, loi, 113, 306, 332, 349, 363. 
 
 Hayter, Bishop, Essay on the Liberty of the Press, 444. 
 
 Hazard on the Will, 61,62. 
 
 Hazlitt's Essay on Wills, 82. 
 
 Heard on Libel and Slander, 14, 50, 99, 112, 130, 137, 148, 149, 156, 164, 167, 
 
 183, 191, 522. 
 Heineccius, 88. 
 
 Hilliard on Torts, 4, 19, 66, 89, 99, loi. 
 Historical Law Tracts (Lord Kames), 46. 
 Holt's Nisi Prius Cases, 25. 
 
TABLE OF WORKS REFERRED TO. XXXVH 
 
 Holt on Libel, lo, 12, 19, 32, 37, 41, 78, 84, 86, 91, 95, 96, loi, 103, 107, 113, 
 115, il8, 119, 122, 127, 209, 254, 360, 366, 367, 440, 444. 
 
 [The References to Holt on Libel are to the American Edition.] 
 
 Hotchkiss' Georgia Digest, 20. 
 
 House of Lords, Journals of, 73. 
 
 House of Lords, Report of Committee on Law of Defamation, 66. 
 
 Howell's State Trials, 57, 65, 73, 347, 386. 
 
 Hudson on the Star Chamber, 687. 
 
 Hume's History of England, 82, 325. 
 
 Imaginary Conversations, Walter Savage Landor, 480. 
 
 Institutes, 127. 
 
 International Review, 445. 
 
 Introduction to the Law relating to Trials at Nisi Prius by a learned Judge, 4. 
 
 Jacobs' Law Dictionary, 2, 6, 8, 40, 46. 
 
 Jefferson, Thomas, Letter to Major Cartwright, 41. 
 
 Johnson's Institutes of the Civil Law of Spain, 37. 
 
 Jones on Libel, 74. 
 
 Joseph Andrews, 5. 
 
 Journals of Congress, 685. 
 
 Justinian's Institutes, 5. 
 
 Kent's Commentaries, 32, 73, 309, 445. 
 
 Kerford and Box's Digest of Victoria Cases, 709. 
 
 Kerr, W. W., The Law and Practice of Injunctions, Notes by Franklin J. 
 Dickerson, 687. 
 
 Kerr on Receivers, 106. 
 
 Kinnear, Boyd, Digest of House of Lords Cases, 632. 
 
 Lappenburg's History of England, 40. 
 
 Law of Theatres and Music Halls, 268. 
 
 Laws. See Statutes. 
 
 Law Magazine and Law Review, 458. 
 
 Law Times. See Reports. 
 
 Lea, Superstition and Force, 207. 
 
 Lee, Sir George, Cases in Ecclesiastical Courts, 13. 
 
 Legal Advertiser, 108. 
 
 Legal Gazette, 418. 
 
 Legal Observer, 485. 
 
 Leges Gul. Conq., 47. 
 
 Leigh's Law of Nisi Prius, 203. 
 
 Lewis on Authority in Matters of Opinion, 41. 
 
 Libels, Digest of the Laws concerning, 13. 
 
 Liberty of the Press. Essay on, by Bishop Hayter, 444. 
 
 Lieber on Civil Liberty. 21, 33, 352. 
 
 Lilly's Entries, 270. 
 
 Lindley's Studies of Jurisprudence, 65, 72. 
 
 Locke on the Conduct of the Human Understanding, 7I) 128. 
 
 Loft, Capel, Essay on Libels, 17. 
 
 Lombard's Saxon Laws, 37. 
 
XXXViii TABLE OF WORKS REFERRED TO. 
 
 London Athenaeum, 65. 
 
 London Gazette, 445. 
 
 London Law Magazine, 44, 5;. 
 
 London Punch, 361. 
 
 London Quarterly Review, 81, 82, 460, 499. 
 
 London Times, The, 32, 329, 589, 690. 
 
 McNally's Criminal Evidence, 47. 
 
 Mackenzie's (Mr. T.) Narrative, a false libel, a defense of Mr. G. Walker, etc., 
 
 14- 
 Maine's Ancient Law, 47. 
 
 Maine's Inquiry into the Origin of Legal Ideas, 27. 
 Manning's Digested Index to the Nisi Prius Reports, 403. 
 March on the Action of Slander, 38. 250, 363. 
 Massachusetts, Sketches of Judicial History of, 37. 
 Maunder, 17. 
 
 May's Law and Practice in Parliament, 328. 
 Mayne on Damages, 442, 519, 522, 582. 
 Mechanical Euclid, 21. 
 
 Mence on Libel, 7, 19, 32, 37, 39, 41, 78, 444. 
 Merrill, Newspaper Libel, 132, 695. 
 Merry Wives of Windsor (Shakespeare), 207. 
 Michaelis' Commentary on the Law of Moses, 37. 
 Mill's Logic, 69, 123. 
 Milton, John, Areopagitica, 444. 
 Minshcei, a Guide into the Tongues, 18. 
 Mirrour of Justices, 4, 5. 
 Montford, Simon de, Miracles of, 40. 
 Monthly Law Bulletin, 285. 
 Monthly Law Reporter, 441, 458. 
 Moore, Sir Thomas, in Howell's State Trials, 65. 
 New Jersey Law Journal, 106. 
 New Testament, 13, 193. 
 
 New York, Constitution of State of, 325, 327, 445, 470. 
 New York Daily Transcript, 1 . 
 New York Judicial Repository, 524. 
 Newspaper Libel, by Samuel Merrill, 448, 480. 
 Nicholson, Prefat. ad Leg. Anglo-Sax., 37. 
 Noisy Nuisances, i. 
 Norske Folkes' Histoire, 6. 
 North British Review, 6. 
 Notes and Queries, 25, 26, 307, 688. 
 O'Connell, Daniel, 44. 
 Odger on Libel, &c., 44, 167, 488, 683. 
 Outlaw's Song, The, 81. 
 
 Palgrave's History of Normandy and of England, 41. 
 Palgrave's Rise, &c., of the English Commonwealth, 40. 
 Pall Mall Gazette, 330. 
 
TABLE OF WORKS REFERRED TO. XXXix 
 
 Parker's Criminal Reports, 25. 
 
 Parliamentary History, 309. 
 
 Parry's Edition of Lord Campbell's Act, 125. 
 
 Parsons on Contracts, 99. 
 
 Pascal's Letters, 40. 
 
 Penal Code of New York, 19, 105, 108, 149, 152, 183, 246, 268, 298. 
 
 Percy's Anecdotes, 440. 
 
 Petit's Leges Attica, 37. 
 
 Phillips on Copyright, 694. 
 
 Phillips on Evidence, 666. 
 
 Phillips' Outlines, Life of Shakespeare, 43. 
 
 Pitcaim's Criminal Trials in Scotland, 37. 
 
 Points of Practice, Price's Notes, 483. 
 
 Pomeroy's Introduction to Municipal Law, 38. 
 
 Pope's Anonymous Satires and Epistles, 5. 
 
 Popular Progress in England, 28, 57. 
 
 Pothier on Obligations (Evans), 104. 
 
 Price's Points of Practice, 483. 
 
 Prince's Digest, Georgia, 20. 
 
 Proposed Civil Code of New York, 296. 
 
 Prostitution in relation to National Health, 202. 
 
 Prussian Code, 207. 
 
 Quarterly Law Journal, 653. • 
 
 Quarterly Law Magazine and Review, 370. 
 
 Rae's Medical Jurisprudence, 440. 
 
 Rapin.'s History of England, 444. 
 
 Rastell's Entries, 89. 
 
 Reading on the Statute Law, 366. 
 
 Redfield on Wills, 207. 
 
 Reeves' History of the Common Law, 35, 36, 40, 128. 
 
 Reg. Aberd., 4. 
 
 Reg. Gen., 664. 
 
 Remarks on Mathematical Reasoning, 21. 
 
 Report of Criminal Law Commissioners, 510. 
 
 Report of House of Lords on Contagious Diseases, 202. 
 
 Report of Committee of House of Lords on Defamation and Libel, 16, 45, 210, 
 
 309, 329- 
 Report on Leprosy to the Royal College of Surgeons, &c., 201. 
 Report to House of Commons on Publication of Printed Papers, 328. 
 Ridley's Civil Law, 4, 6. 
 Rights of Corporations and Reporters, 364. 
 Rights of Criticism, 459. 
 Robinson's Practice, 331, 702. 
 
 Rolle's Abridgment, 40, 115, 124, 177, 180, 183, 187, 189. 
 Russell's Treatise on Crimes and Misdemeanors, 17, 66. 
 Saltern De Antiq. Leg. Brit., 37. 
 Saunders on Pleading and Evidence, 166. 
 
Xl TABLE OV WORKS REFERRED TO. 
 
 Scott, Sir Walter, 279. 
 Sedgwick on Damages, 521. 
 Selwyn's Nisi Prius, 187, 360. 
 Seven Bishop's, Trial of, 73. 
 Shakespeare, 5, 207, 441. 
 Sbarswood's Blackstone's Commentaries, 40. 
 Shaw's Appeal Cases, 632. 
 Shaw's Digest, 41 5. 
 Shelley, Memoir of, 359. 
 Sheppard's Actions upon the Case, 2, 546. 
 Shortt, John, Information, Mandamus and Prohibition, 7. 
 Shower's Parliamentary Cases, 326. 
 Sketches of the Judicial History of Massachusetts, 37. 
 Smith's Leading Cases, 91, 261, 272, 291. 
 Smith, Sidney, Elementary Sketches of Moral Philosophy, 63. 
 Solicitor's Journal, 364. 
 Somer's, Lord, Tract on Grand Juries, 5. 
 Southern Law Review, 78. 
 Spence on Origin of Laws, 310, 440. 
 Spencer, 4. 
 St. Augustine, 128. 
 Starkie on Evidence, 70, 84, 116, 670. 
 
 Starkie on Libel and Slander, 7, 37, 46, S9. 60, 66, 68, 73, 82, 83, 84. 85, 88, 
 95, 96, loi, 106, 107, no, 116, u8, 122, 127, 132, 136, 137, 139, 156, 160, 
 167, 168, 170, 172, 173, 176, 177, 187, 189, 196, 204, 205, 225, 226, 227, 
 233, 257, 263, 272, 286, 307, 308, 309, 320, 324, 353, 354, 363, 364, 377, 
 546, 548, 549, 553. 555, 565, 575, 595, 638, 695. 
 [The References to Starkie on Slander are to the second American 
 Edition by Wendell.] 
 State Papers, Calendar of, Domestic Series of the Rejgn of Charles I, 5. 
 State Trials. See Howell's State Trials. 
 Statutes. Arkansas, Revised Statutes of, 20. 
 California, 20. 
 
 Civil Code of, 296. 
 Code of Procedure of, 546. 
 Delaware, Laws of, vol. 17, 532. 
 England. 4 Anne, 483. 
 16 & 17 Car. H, 483. 
 Common Law Procedure Act, 484, 689. 
 3 Edward I, 4. 
 14 Edward H, 38. 
 22 Edward HI (Ass. 41), 36. 
 
 1 Elizabeth, 37. 
 
 2 George H, 556. 
 24 George HI, 159. 
 32 George HI, 448. 
 
 38 George HI, 448, 682. 
 
TABLE OF WORKS REFERRED TO. xH 
 
 Statutes . — continued. 
 
 58 George III, 528. 
 
 60 George III, 449. 
 
 George IV, 187. 
 
 1 George IV, 149. 
 
 9 George IV, 168. 
 
 21 Jac. I, 159. 
 
 Married Women's Act of 1882, 106, 636. 
 
 Judicature Act of 1873, 689. 
 
 1 Philip & Mary, 37. 
 
 2 Richard II, 37. 
 
 2 & 3 Victoria, 281. 
 
 3 & 4 Victoria, 329, 528. 
 
 6 & 7 Victoria, 307, 441, 442, 449, 634, 681. 
 
 8 & 9 Victoria, 449, 681. 
 
 9 & 10 Victoria, 481. 
 
 11 & 12 Victoria, 352. 
 
 12 & 15 Victoria, 481. 
 
 13 & 14 Victoria, 481. 
 
 14 & 15 Victoria, 489. 
 
 15 & 16 Victoria, 442, 481, 509. 
 
 18 & 19 Victoria, 7. 
 
 19 & 20 Victoria, 481. 
 
 20 & 21 Victoria, 352. 
 
 23 & 24 Victoria, 7. 
 
 24 & 25 Victoria, 703. 
 
 30 & 31 Victoria, 481, 482. 
 32 & 33 Victoria, 636. 
 
 45 & 46 Victoria, 166, 636. 
 
 46 & 47 Victoria (Patents Act), 691. 
 2 William IV, 35. 
 
 4 William IV, 664. 
 
 5 William IV, 448. 
 
 6 & 7 William IV, 449, 636. 
 Florida, Constitution of, 307. 
 Georgia, 560. 
 
 Illinois, Revised Statutes of, 659. 
 
 Criminal Code of, 20. 
 Iowa, 20, 531, 659. 
 
 Code of, 348. 
 Kansas, 307. 
 Kentucky, 189. 
 Louisiana, 307. 
 Maine, 20. 
 Maryland, 307. 
 
 Revised Code of, 161, 532. 
 Massachusetts, 541, 659. 
 
 D 
 
Xlii TABLE OF WORKS REFERRED TO. 
 
 Statutes. — continued. 
 Michigan, 449, 659. 
 Mississippi, 509. 
 New Jersey, 161. 
 
 Revised Code, 161. 
 New Yorlt, Code of Civil Procedure of, 161, 307, 351, 354, 359, 480, 481, 
 484, 485, 495, 527, 531, 534, 586, 587, 601, 604, 608,609, 623. 703. 
 
 Penal Code of, 19, 105, 108, 149, 152, 183, 246, 268, 298, 449. 
 
 Constitution of, 325, 327, 445, 470. 
 
 Laws of, 1853,481. 
 
 Laws of, 1854, 329. 
 
 Laws of, i860, 532. 
 
 Laws of, 1870, 481. 
 
 Laws of, 1872, 481. 
 
 Laws of, 1874, 481. 
 
 1 Revised Statutes of, 326, 327. 
 
 2 Revised Statutes, 342, 352, 363. 
 North Carolina, Revised Statutes of, 321. 
 Ohio, Act of, 1861, 531. 
 
 Code of, 525. 
 
 Pennsylvania, 437, 532. 
 
 Texas, Code of Criminal Procedure of, Penal Code of, 689. 
 
 United States, Constitution of, 327. 
 
 Vermont, 57, 177. 
 
 Virginia, 74, 307, 509, 560, 591. 
 Code of, 160. 
 
 Wisconsin, 177, 659. 
 Stattler, Father Benedict, Ethica Christiana, 40. 
 Stephens' Commentaries on English Law, 444. 
 Stephen's (Digest) Criminal Law,'54, 55,'^6i,[6s, 66, 74, 76, 91. 
 Stephen's Ecclesiastical Statutes, 6. 
 Stephens on Pleading, 35, 36, 40. 
 
 Stiernhook De Jure Vetusto Suconum et Gothorum, 37. 
 Story, Joseph, Life and Letters of, 41. 
 Story on Agency, 469. 
 Story on Contracts, 226. 
 Story on Equity Jurisprudence, 695. 
 Story on the Constitution, 444, 451. 
 Sullivan's Lectures, 36. 
 Supplication of Beggars, The, 82. 
 Swinburn on Wills, 207. 
 Tacitus De Mor. Germ., 37. 
 Tattler, The, 81, 
 Taylor on Evidence, 679. 
 Texas Law Review, 445. 
 Thacher's Criminal Cases, 18, 106, ii6,|_639. 
 Thibaut's System of Pandekten Rechts, 27. 
 
TABLE OF WORKS REFERRED TO. xliii 
 
 Thomas, History of Printing in America, 38, 308. 
 
 Tidd's Practice, 1 59. 
 
 Tindal's Continuation of Rapins' History of England, 444. ' 
 
 Tomlin's Law Dictionary, 14. 
 
 Trcmayne's Pleas of the Crown, 41. 
 
 Trench, Dean, 122. 
 
 Trench's English, Past and Present, 1 22. 
 
 Trials at Nisi Prius, 3. 
 
 David Lee Childs, 18. 
 
 Finnerty's, 18. 
 
 Gibbs V. Arthur, 364. 
 
 Per Paz's, 623. 
 Truth Vindicated, 452. 
 Upper Canada Law Journal, N. S,, 680. 
 Valentine's Manual of the Common Council, 37, 38, 440. 
 Van Santvoord's Pleadings, by Moak, 678. 
 Vermont Judiciary Act, 1 58. 
 Victoria Law Journal, 120. 
 Victoria Law Times, 1 50, 293. 
 Vidian's Entries, 2. 
 Viner's Abridgment, 3, 40, 43, 84, 89, 
 
 148, 151, 156, 172, 176, 177, 178, 
 
 200, 202, 207, 224, 234, 242, 243, 
 
 270, 271, 290, 332, 340, 343, 533. 
 Voorhies' Code, 495, 590. 
 Walford on Parties, 530. 
 Warren's Law Studies, 526. 
 
 Webster s Dictionary of the English Language, 202. 
 Weekly Packet of Advice from Rome, The, 188. 
 Wentworth's Pleadings, 208. 
 Western Law Bulletin, 417. 
 Westminster Review, 13, 14, 21, 202. 
 Wharton on Negligence, 261. 
 Whateley's Logic, 175. 
 Whewell, The Mechanical Euclid, 21. 
 Whittier, 445. 
 
 Wilkins' Leges Anglo-Sax., 37. 
 Wilkins' Political Ballads, 57. 
 Willards' Equity Jurisprudence, 352. 
 
 Wood, Thomas, of Libel, an Institute of the Laws of England, 2. 
 Wooddeson's Lectures, 21. 
 Woodfall's Case, 72. 
 Wood's Civil Law, 2, 46, 53, 44°. 
 Wood's Institutes, 2,46, 106, 118. 
 Wright, Thomas, Political Songs of England, 81, 82. 
 Yates' Pleadings and Forms, 281, 601, 
 
 114, 115, 
 
 1 20, 
 
 123, 131, 139, 146, 147, 
 
 179, 183, 
 
 190, 
 
 193, 194, 195, 196, 197. 
 
 244, 245, 
 
 246, 
 
 248, 249, 252, 258, 266, 
 
ABBREVIATIONS AND THEIR MEANINGS. 
 
 Abb. N. C— Abbott's New Cases (New 
 York). 
 
 Abb. Pr. R.: Abb. Pra. R.— Abbott's 
 Practice Reports (New York). 
 
 Abb. Pr. R., N. S.— Same, New Series. 
 
 Add. — Addams' Ecclesiastical Reports. 
 
 Addison's R. — Addison's Reports (Penn- 
 sylvania). 
 
 A. & E. : Ad. & El. : Ad. & Ell. : Adol. 
 & El.: Adol. & Ell.— Adolphus and 
 Ellis' Reports, King's Bench. 
 
 Ad. & El., N. S. : Ad. & Ell., N. S.— Same, 
 New Series. 
 
 Aik. — Aiken's Reports (Vermont). 
 
 A. J. R.: Aust. Jur. Rep. — Australian 
 Jurist Report. 
 
 Ala. — Alabama Reports. 
 
 Ala. O. S. — Alabama Reports, Old Series. 
 
 Alb. L. J.— Albany (N. Y.) Law Journal. 
 
 Aleyn — Aleyn's Reports, King's Bench. 
 
 All. : Allan — Allan's Reports, New Bruns- 
 wick. 
 
 AUe — Allen's Reports (Massachusetts). 
 
 Am.- Dec. — American Decisions, U. S. 
 
 Amer. Law J., N. S. — American Law 
 Journal, New Series. 
 
 Amer. Lead Cas. — American Leading 
 Cases. 
 
 Amer. Law Record — American Law 
 Record (Ohio). 
 
 Amer. Quarterly Rev. — American Quart- 
 erly Review. 
 
 Amer. Rep. — American Reports. 
 
 And.: Andr. — Andrews' King's Bench 
 Reports. 
 
 Anst. — Anstruther's Exchequer Reports. 
 
 Anthon — Nisi Prius Repi.rts (New York). 
 
 App.— Appleton's Reports (Maine). 
 
 App. C: App. Cas. — Law Reports; Ap- 
 peal Cases (England). 
 
 Ark. — Arkansas Reports. 
 
 Arm., Mac. H. Og. — Armstrong, Macart- 
 ney and Ogle's Reports (Ireland). 
 
 Am. — Arnold's Reports, Common Pleas. 
 
 Atk. — Atkyn's Ch,ancery Reports. 
 
 Atl. Rep. — Atlantic Reporter (U. S.) 
 
 B. & A.: B. & Ad.: B. & Adol.— Bame- 
 wall and Adolphus' Reports, King's 
 Bench. 
 
 B. &Ald.: sometimes B. & A.: Barn. & 
 
 A. — Barnewall and Alderson's Re- 
 ports, King's Bench. 
 
 B. & C: B. & Cr.: Barn. & C— Barne- 
 wall and Cresswell's Reports, King's 
 Bench. 
 
 B. & P.: Bos. & P.: Bos. & Pul.— Bosan- 
 quet and Puller's Reports, Common 
 Pleas, Exchequer and House of Lords. 
 
 B. & S.: Best & S.: Best & Sm.— Best 
 and Smith's Queen's Bench Reports. 
 
 Bail Court Rep. — Queen's Bench. 
 
 Bailey. — Law Reports (South Carolina). 
 
 Barb. — Barbour's Supreme Court Re- 
 ports (New York). 
 
 Barnard. — Barnardiston's King's Bench 
 Reports. 
 
 Barnes' Notes. — Barnes' Notes of Cases 
 in the Common Pleas. 
 
 Barr. — Barr's Reports (Pennsylvania). 
 
 Barton. — Barion's Reports (New Bruns- 
 wick). 
 
 Bay. — Bay's Reports (Missouri). 
 
 Beav.: Beavan. — Beavan's Chancery Re- 
 ports. 
 
 Bennett. — Missouri Reports. 
 
 Bennett & Heard: Leading Cr. Cases. — 
 Bennett and Heard's Leading Criminal 
 Cases (Boston, U. S.) 
 
 Bibb. — Kentucky Reports. 
 
 Bing. — Bingham's Reports, Common 
 Pleas, etc. 
 
 Bing., N. C. — Same, New Cases. 
 
 Binney: Binn. — Pennsylvania Report':. 
 
 Bissell. — U. S. District Court Reports. 
 
 Bl., H. — Henry Blackstone's Reports, 
 Common Pleas and Exchequer. 
 
 Bl., W.: Black., R., W.— William Black- 
 stone's Reports. 
 
 Black. U. S. Rep.— Black's United States 
 Reports. 
 
 Blackf. — Blackford's Stipreme Court Re- 
 ports (Indiana). 
 
 Bli., N. S.— Bligh's Parliamentary Re- 
 ports, New Series. 
 
 Boston Law Rep. — Law Reports (Bos- 
 ton, U. .S.) 
 
 Boston Law Rep., N. S. — Same, New 
 Series. 
 
 Boston Monthly Law Reports.— Same. 
 
 Brad.: Bradw. — Bradwell's Appellate De- 
 cisions (Illinois). 
 
xlvi 
 
 ABBREVIATIONS. 
 
 Brev.: Brevard.— Brevard's Reports of 
 the Constitutional Court (South Car- 
 olina). 
 
 Brod. & B. — Broderip and Bingham's 
 Reports, Common Pleas. 
 
 Bro. Pari. Cas.: Brown's Cas. Pari.— 
 Brown's Cases in Parliament. 
 
 Browne, P. A. — Pennsylvania Reports. 
 
 Brownl. — Brownlow Entries. 
 
 Bulst.— Bulstrode's Reports, King's 
 Bench. 
 
 Burr. — Burrows' Reports, King's Bench. 
 
 Busbee. — Busbee's Law Reports (North 
 Carolina). 
 
 Bush. — Bush's Reports (Kentucky). 
 
 C. B.: Com. B. — Common Bench Re- 
 ports. 
 C. B., N. S.: Com. B., N. S.— Same, 
 
 New Series. 
 C. & E.: Cababe & E.— Cababe and 
 
 Ellis, Queen's Bench Reports. 
 C. & F.: CI. & F.— Clark and Fiunelly's 
 
 Reports, House of Lords. 
 C. & K.: Car. & K.: Car. & Kir.— Car- 
 
 rington and Kirwan, Common Law 
 
 Reports. 
 C. & M.: Car. & M.: Car. & Marsh.— 
 
 Carrington and Marshman's Nisi Prius 
 
 G. M. & R.: Cr. M. & R.— Crompton, 
 Meeson and Roscoe's Exchequer Re- 
 ports. 
 
 C. P. — Common Pleas. 
 
 C. P. D. — Common Pleas Division. 
 
 C. & P.: C. & P. (N. P.): Car. & P.— 
 Carrington and Payne, Nisi Prius Re- 
 ports. 
 
 Cai.: Caines: Cai. T. R. — Caines' Term 
 Reports (New York). 
 
 Cai. — California Reports. 
 
 Camp.: Camp. N. P. Cas. — Campbell's 
 Reports, Nisi Prius. 
 
 Can. Sjip. Ct. Rep. — Supreme Court Re- 
 ports (Ontario). 
 
 Car. Law Repos. — Carolina Law Repos- 
 itory. 
 
 Cart.: Carter. — Carter's Reports (In- 
 iana). 
 
 Carth. — Carthew's Reports, King's 
 Bench. 
 
 Cas. Pr., K. B. — Cases of Practice, King's 
 Bench. 
 
 Cent. Law Jour. — Central Law Journal 
 (St. Louis, Mo.) 
 
 Cent. Rep.— Central Reporter (U. S.) 
 
 Ch. D. — Chancery Division. 
 
 Chand. — Chandler's Reports (New 
 Hampshire; also Wisconsin). 
 
 Charley's Cases at Chambers (England). 
 
 Cheves. — Law Reports (South Carolina). 
 
 Chip. — Chipman's Reports (Vermont). 
 
 Cine: Cinn. — Cincinnati Superior Court 
 Reports (Ohio). 
 
 City Hall Recorder (New York City). 
 
 City Hall Reporter (New York City). 
 
 Ciiy Cr. Rep. — City Court Reports (New 
 York City). 
 
 Clarke.— Clarke's Iowa Reports. 
 
 Clayt.: Clayton. — Clayton's Assizes Re- 
 ports. 
 
 Cliff. — Clifford's United States Circuit 
 Court Reports. 
 
 Code Rep.— Code Reports (New York) 
 
 Code Rep., N. S. — Same, New Series. 
 
 Co.: Coke: Coke R.— Reports of Sir 
 Edward Coke. 
 
 Cold. : Coldw.— Coldwell's Reports (Ten- 
 nessee). 
 
 Colo. — Colorado State Reports. 
 
 Comb.— Comberbach's Reports, King's 
 Bench. 
 
 Comyns' R.: — Comyns' Reports, King's 
 Bench and Common Pleas (England). 
 
 Conn. — Connecticut Reports. 
 
 Const. Rep. — Constitutional Reports 
 (South Carolina). 
 
 Cooke & Ale. — Cooke & Alcock, King's 
 Bench (Ireland). 
 
 Cow.: Cowen. — Cowen's Reports (New 
 York). 
 
 Cowp. — Cowper's King's Bench Reports. 
 
 Cox C. C: Cox Crim. Cas.: Cox Cr. Cas. 
 — Cox's Criminal Cases. 
 
 Cr. & Jer.: Cromp. & J. — Crompton & 
 Jervis, Exchequer Reports. 
 
 Cr. & M. — Crompton and Meeson's Ex- 
 chequer Reports (England). 
 
 Cr. C. C: Cranch Cir. Ct.— Cranch's 
 United States Circuit Court Reports. 
 
 Cro. Car. — Croke, King's Bench and 
 Common Pleas Reports, Time Charles 
 I. 
 
 Cro. Cas. Res.: C. C. Reserved. — Law 
 Reports, Crown Cases, Reserved. 
 
 Cro. Eliz.: Cro. Jac: Cro. J. — Same, 
 Time Elizabeth ; James I. 
 
 Curt.: Curtis C. C— Curtis' United States 
 Supreme Court and Circuit Reports. 
 
 Curt.: Curteis Ecc. R. — Curteis' Eccle- 
 siastical Reports. 
 
 Cush. — Cushing's Reports (Massachu- 
 setts). 
 
 Cush. — Cushman's Reports (Mississippi). 
 
 D. & M.: Dav. & Mer. — Davison and 
 
 Merrivale's Reports, Queen's Bench. 
 D. & R.: D. & Ry.: Dowl. & R.: DowL 
 
 & Ry. — Dowling and Ryland's King's 
 
 Bench Reports. 
 Dak. — Dakota Reports. 
 Dal. — Dalison's Reports, Common Pleas 
 
 (England). 
 Dall.: Dallas.— Dallas' Reports, United 
 
 States Courts (Pennsylvania). 
 
ABBREVIATIONS. 
 
 xlvii 
 
 Daly.— Daly's Reports, Common Pleas 
 
 (New York City). 
 Dana. — Dana's Reports (Kentucky). 
 Day. — Connecticut Reports. 
 De G. M. & G.— De Gex, MacNaghten 
 
 and Gordon, Chancery Repons. 
 De Gex. — Bankruptcy Reports. 
 Den.: Denio. — Denio's Repoits (New 
 
 York). 
 Dev.: Devereux's Law Reports (North 
 
 Carolina). 
 Dev. & B.: Dev. & Bat.— Devereux and 
 
 Battles, Law Reports (North Carolina). 
 Dick. — Dickens' Chancery Reports. 
 Dill.: Cir. Ct. R.— Dillon's Reports, 
 
 United States Circuit Court. 
 Doug. — Douglas, King's Bench Reports. 
 Doug. — Douglass' Michigan Reports. 
 Dow. & Clark. — House of Lords Ckses. 
 Dowl.: Dowl. P. C: Dowl. Pr.: Dowl. 
 
 Pr. C: Dowl. Pr.Cas.—Dowling's Prac- 
 tice Cases, King's Bench, Common 
 
 Pleas and Exchequer. 
 Dowl. P. C, N. S.: Dowl., N. S.— Same, 
 
 New Series. 
 Dowl. & L. — Dowling and Lowndes, 
 
 Practice Cases. 
 Draper's Up. Can. Rep. — King's Bench 
 
 Reports ( Upper Canada). 
 Duer. — Duer's Superior Court Reports 
 
 (New York City). 
 Dudley. — Dudley's Reports (Georgia). 
 Dutch.: Dutcher. — Dutcher's New Jersey 
 
 Law Reports. 
 Dnvall. — Duvall's Reports, Kentucky. 
 Dyer. — Dyer's Reports. 
 
 E.: East. — East's Reports, King's Bench. 
 
 East P. C— East's Pleas of the Crown. 
 
 Edmonds' Rep. — Edmonds' Reports 
 (New York). 
 
 Edm. Sel. Cas.: Edmonds' Sel. Cas.— 
 Edmonds' Select Cases (New York). 
 
 Edw. — Edwards' Chancery Reports. 
 
 E. & B.: El. & B.: El. & Bl.: Ell. & Bl.— 
 Ellis and Blackburn's Reports, King's 
 Bench. 
 
 El. B. & E.: Ellis, B. & E.— Elli.s Black- 
 bum and Ellis' Reports, Queen's Bench 
 and Exchequer (England). 
 
 El. & El.— Ellis and Ellis' Reports. 
 
 Eng. — English's Reports (Arkansas). 
 
 Eng. C. Law Rep. — English Common 
 Law Reports. 
 
 Eng. Law & Eq. Rep. — English Law and 
 Equity Reports. 
 
 Esp.: Esp. Cas. — Espinasse's Cases at 
 Nisi Prius, King's Bench and Com- 
 mon Pleas. 
 
 Ex.: Exch. — Exchequer Reports. 
 
 Ex. D. — Exchequer Division Reports. 
 
 Ex. Div. (C. A.) — Exchequer Division 
 Reports, Cases on Appeal. 
 
 F. & F.: Fos. & F.: Post. & F.: Fost. & 
 
 Fin. — Foster & Finlason, Nisi Prius 
 
 Reports. 
 Fed. R.: Fed. Rep.— Federal Reporter 
 
 (United States Courts). 
 Fitzg. — Fitzgibbon's Reports, King's 
 
 Bench. 
 Fla. — Florida Reports. 
 Fost.: Foster. — Foster's New Hampshire 
 
 Reports. 
 Fox & Sm. — Fox and Smith's Reports, 
 
 King's Bench (Ireland). 
 Freem.: Freeman. — Freeman's Reports 
 
 (Illinois). 
 
 G. & B.: G. & D.: Gale & Dav.— Gale 
 and Davison's Reports, Queen's Bench. 
 
 Ga. — Georgia Reports. 
 
 Gale — Gale's Term Reports, Exchequer. 
 
 Gilb. Cas. — Gilbert's Cases in Law and 
 Equity. 
 
 Gill. — Maryland Reports. 
 
 Gill & Johns. — Gill and Johnson's Re- 
 ports (Maryland;. 
 
 Gilman. — Illinois Reports. 
 
 Godb. — Godbolt's Reports, Queen's 
 Bench. 
 
 Golds.: Goldsb. — Goldsborough's Re- 
 ports, King's Bench. 
 
 Grant: Grant's Cases. — Grant's Cases 
 (Pennsylvania). 
 
 Gratt. — Grattan's Reports (Virginia). 
 
 Gray. — Massachusetts Reports. 
 
 Green. — New Jersey Reports. 
 
 Greenl. Rep. — Greenleaf's Reports 
 (Maine). 
 
 Greene, G. — Iowa Reports. 
 
 H. & C: Hurl. & C: Hurl. & Colt.— 
 Hurlstone and Coltman's Reports, Ex- 
 chequer. 
 
 H. & N.: Hurl. & N.: Hurl. & Nor.- 
 Hurlstone and Norman's Exchequer 
 Reports. 
 
 Hagg. Ece. R. — Haggard's Ecclesiastical 
 Reports. 
 
 Hall. — Superior Court Reports (New 
 York). 
 
 Halst.— Halstead's New Jersey Law Re- 
 ports. 
 
 Ham. — Hammond's Reports (Ohio). 
 
 Har. & J.: Har. & Johns. — Harris and 
 Johnson's Reports (Maryland). 
 
 Har. & McHen. — Harris and McHenry's 
 Reports (Maryland). 
 
 Har. & W. — Harrison's and Wollostan's 
 Reports, King's Bench. 
 
 Hard.: Hardin. — Hardin's Reports (Ken- 
 tucky). 
 
 Hard.: Hardres. — Reports, Exchequer 
 (Ireland) 
 
xlviii 
 
 ABBREVIATIONS. 
 
 Harring. — Harrington's Reports (Del- 
 aware). 
 
 Harils. — Pennsylvania State Reports. 
 
 Harr.: Harrison. — New Jersey Law 
 Reports. 
 
 Hawaiin R. — Reports, Hawaii (Sand- 
 wich Islands). 
 
 Hawks. — North Carolina Reports. 
 
 Hayw. — Haywood's Reports (North Car- 
 olina). 
 
 Head. — Tennessee Reports. 
 
 Heath — Maine Reports. 
 
 Heisk. — Heiskell's Reports, Tennessee. 
 
 Het. — Hetley's Reports, Common Pleas. 
 
 Hill.— Hill's Reports (New York). 
 
 Hill. — Hill's Law Reports (South Car- 
 olina). 
 
 Hill and Denio. — Hill and Denio's Re- 
 ports (New York). 
 
 Hilt.: Hilton. — Hilton's Reports, Com- 
 mon Pleas (New York). 
 
 Hob.: Hobart.— The Reports of Sir 
 Henry Hobart. 
 
 Hodges. — Term Reports, Common Pleas. 
 
 Holt.: Holt N. P.: Holt's N. P. C— 
 Holt's Reports of Cases at Nisi Prius, 
 Common Pleas. 
 
 Holt. — Cases temp. Sir John Holt. 
 
 Holt R. — Holt's Reports, King's Bench. 
 
 Ho. Lords' Cas.: House L. — House of 
 Lords' Cases. 
 
 How. — Howard's Reports (Mississippi). 
 
 How.: Howard's Ct. of Appeal Cases. 
 
 How.— Pr. R.: How. Pra. Rep.— How- 
 ard's Practice Reports (New York). 
 
 How. U. S.: How. U. S. Rep.— How- 
 ard's Reports, United State's Supreme 
 Court. 
 
 How. St. Tr.— Howell's State Trials. 
 
 Hud. & Br.: Hudson & Br.— Hudson 
 and Brooke's Reports, King's Bench 
 (Ireland). 
 
 Humph. — Humphrey's Reports (Tennes- 
 see). 
 
 Hun. — Hun's Reports, Supreme Court 
 (New York). 
 
 Hutt. — Hutton's Reports, Common Pleas. 
 
 111. — Illinois Reports. 
 
 Ind. — Indiana Reports. 
 
 Iowa. — Iowa Reports. 
 
 Ir. Com. Law Rep. — Irish Common 
 Law Reports. 
 
 Ired.: Ired. L. R.: Ired. Law Rep. — Ire- 
 dell's Law Reports (North Carolina). 
 
 Ir. Ex. Rep. — Irish Exchequer Reports. 
 
 Irish Com. Law Rep. N. S. — Irish Com- 
 mon Law Reports, New Series. 
 
 Ir. Jur. — Irish Jurist. 
 
 Ir. Jur. O. S.— Irish Jurist, Old Series. 
 
 Irish Law R.: Irish Law Reps. — Irish 
 Law Reports. 
 
 Ir. L. T. R. — Irish Law Times Reports. 
 Ir. R. Com. L. — Irish Reports, Common 
 Law. 
 
 J. & S.: Jones & S. — Jones and Spencer, 
 Superior Court Reports (New York). 
 
 J. P. — Law Reports, Justice of the 
 Peace. 
 
 Jac. — Jacobs' Chancery Reports (En- 
 gland). 
 
 Jac. & Walk. — Jacob and Walker, Chan- 
 cery Reports. 
 
 Jebb. & S.: Jebb. & Symes.— Queen's 
 Bench Reports (Ireland). 
 
 Jenk. — Jenkins' Reports (Jenkins' Cen- 
 turies), Exchequer. 
 
 Jo., Sir T. — Sir Thomas Jones' King's 
 Bench Reports. 
 
 Johns. — Johnson's Reports, Supreme 
 Court, etc. (New York). 
 
 Johns. Cas. — Johnson's Cases, Court of 
 Errors (New York). 
 
 Jones. — Exchequer Reports (Ireland). 
 
 Jones: Jones' L.: Jones' Law. — Jones' 
 Law Reports (North Carolina). 
 
 Jones, W. — King's Bench Reports. 
 
 Jur.— The Jurist (England). 
 
 Jur., N. S. — Same, New Series. 
 
 Kan.: Kans. — Kansas Reports. 
 
 Keb.: Keble.— Keble's Reports, King's 
 
 Bench. 
 Kel.: Kely. — Kelyng's Reports, King's 
 
 Bench. 
 Kelly. — Kelly's Reports (Georgia). 
 Kent.: Ky. — Kentucky State Reports. 
 Kerr. — Kerr's Reports (New Brunswick). 
 Keyes. — Keyes' New York Reports. 
 Kirby.— Kirby's Reports (Connecticut). 
 
 L. C. J.: Low. Can. J. — Lower Canada 
 Jurist. 
 
 L. J. C. P.: Law Jour. C. P.— Law 
 Journal Reports, Common Pleas. 
 
 L. J. R.: Law Jour. R. — Law Journal 
 Reports. 
 
 L. J. R., N. S.: Law Jour. R., N. S.— 
 Same, New Series. 
 
 L. N.: Leg. N. — Legal News (Quebec). 
 
 L. R. C. P.: Law R. C. P.— Law Re- 
 ports, Common Pleas. 
 
 L. R. Ch.: Law R. Ch.: Ch.— Law Re- 
 ports, Chancery. 
 
 L. R. C. P. D.: Law R. C. P. D.: C. 
 P- D. — Law Reports, Common Pleas 
 Division. 
 
 L. R. Ch. D. or Div.: Law R. Ch. D. 
 or Div.: Ch. D. or Div.— Law Reports, 
 Chancery Division. 
 
 L. R. C. C. Res.: Law Rep. C. C. R.— 
 Law Reports, Crown Cases, Reserved. 
 
ABBREVIATIONS. 
 
 xlix 
 
 L. R. Ex.: Law R Ex, — Law Reports, 
 Exchequer. 
 
 L. R. Ex. D.: Law R. Ex. D. or Div.: 
 Ex. D. or Div. — Law Reports, Ex- 
 chequer Division. 
 
 L. R. I. — Law Reports, Irish. 
 
 L. R. Q. B.: Law K. Q. B.— Law Re- 
 ports, Queen's Bench. 
 
 L. R. Q. B. D.: Law R. Q. B. D. or 
 Div.: Q. B. D. or Div. — Law Reports, 
 Queen's Bench Division. 
 
 L. T.: L. T. R.: Law Times R. — Law 
 Times Reports. 
 
 L. T., N. S.: L. T. R., N. S.: Law 
 Times R., N. S. — Same, New Series. 
 
 La. Ann.: La. Ann. R. — Louisiana An- 
 nual Reports. 
 
 Lane. — Exchequer Reports. 
 
 Lansing. — Supreme Court Reports (New 
 York). 
 
 Lat. : Latch. — Latch's Repons, King's 
 Bench. 
 
 Law Reporter — London (England). 
 
 Ld. Ken. — Lord Kenjon's R. ports, 
 King's Bench. 
 
 Ld. Raym. — Lord Raymond's Reports, 
 King's Bench and Common Pleas. 
 
 Lea. — Lea's Reports (Tennessee). 
 
 Leach's C. C: Leach Cr. L. — Leach's 
 Crown Law Cases. 
 
 Leg. Adv. — Legal Adviser (Chicago, 111,) 
 
 Leg. Gaz. Rep — Legal Gazette Reports 
 (Philadelphia). 
 
 Leg. Int. — Legal Intelligencer (Philadel- 
 phia). 
 
 Leg. Int. Cond. — Legal Intelligencer 
 Condensed (Philadelphia). 
 
 Legal Notes. — Quebec, Canada. 
 
 Leg. Rep.: Legal Reporter. — Legal Re- 
 porter (Ireland). 
 
 Leigh. — Leigh's Reports (Virginia). 
 
 Leon. — Leonard's Reports, King's Bench. 
 
 Lev. : Levinz. — Levinz's Reports, King' 
 Bench. 
 
 Lewin C. C. — Lewin's Crown Cases. 
 
 LiUy Ent. — Lilly's Entries. 
 
 Lit. Sel. Cas. — Liitell'.s Select Cases 
 (Kentucky). 
 
 Litt.— Litteli's Reports (Kentucky). 
 
 Litt. Rep.: Litt. R. — Littleton's Reports, 
 
 C'imraon Pleas (England). 
 Lo£ft. — King's Bench Reports. 
 Low. Can. Rep. — Lower Canada Re- 
 ports. 
 Lutw. — Lutwychis' Reports and Entries. 
 
 M. & G. . Man. & G.: Mann. & G. 
 
 Manning and Granger, Common Pleas 
 
 Reports. 
 M. G. & S. — Manning. Granger and 
 
 Scoit, Common "Bench Reports, Old 
 
 Series. 
 
 M. &M.: M. & Malk.— Moody & Mal- 
 kin's Nisi Piius Reports. 
 
 M. & P.: Mo. & P.: Moo. & P.— Moore 
 and Payne's Common Pleas. 
 
 M. & R.: Man. & R.: M. & Ry.— Man- 
 ning and Ryland's Report.^, King's 
 Bench. 
 
 M. & Rob.. Moo. & R.: Moo. & Rob.— 
 Moody and Robinson's Nisi Prius Re- 
 ports. 
 
 M. & S.: M. & Sel.: Mau. & Sel.— 
 Maule and Selwyn, King's Bench Re- 
 pons. 
 
 M. & Sc: Mo. & Sc: Moo. & S.: Moo. 
 & Sc. — Moore and Scott's Reports, 
 Common Pleas (England). 
 
 M. & W.: Mees. & W. — Meeson and 
 Welsby's Reports, Exchequer. 
 
 McCleJ. — McCleland's Exchequer Re- 
 ports. 
 
 McCord. — McCord's Law Reports (South 
 Carolina). 
 
 McMuUan: McMiil. — McMullan's Re- 
 ports (South Carolina I. 
 
 Macq. : H. L. Cas. — Macqueen's Re- 
 ports, House of Lords. 
 
 Maine. — Maine Reports. 
 
 Manitoba Law Journal. — British Amer- 
 ica. 
 
 Manitoba Law Reports. — British Amer- 
 ica. 
 
 Manning's Mich. R. — Manning's Michi- 
 gan Reports. 
 
 Mar. — March's Reports, King's Bench. 
 
 Marsh. A. K. — A. K. Marshall's Reports 
 (Kentucky) 
 
 Marsh. C. — Charles Marshall's Reports, 
 Common Pleas (England). 
 
 Marsh. J. J. — J. J. Marshall's Reports 
 (Kentucky). 
 
 Mason. — Mason's United States Circuit 
 Court Reports. 
 
 Mass.: Mass. R. — Massachusetts Re- 
 ports. 
 
 Maule & Selw. — Maule and Selwyn's 
 Reports, King's Bench. 
 
 Md. — Maryland Reports. 
 
 Me. — Maine Reports. 
 
 Melbourne Argus Rep. — Australia. 
 
 Menzies: Menzies' Rep., N. S. — Men- 
 zies' Reports, New Series, Cape of 
 Good Hope (Africa). 
 
 Men: Meriv. — Merivale's Chancery Re- 
 port^ (Eni;land). 
 
 Met.: Mete. — Mctcalf's Reports (Massa- 
 chusetts). 
 
 Melc. — Metcalfe's Reports (Kentucky). 
 
 Midi. — Michigan Slate Reports. 
 
 Middlebrook's Cases (Connecticut). 
 
 Miles.— Miles' Pennsylvania Reports. 
 
 Minn. — Minnesota Reports. 
 
 Minor. — Alabama Reports. 
 
 Miss. — Mississippi Reports. 
 
ABBREVIATIONS. 
 
 Mis'T. St. Cas. — Morris' Missssippi State 
 Cases. 
 
 Mo.: Mo. R. — Missouri Repoits. 
 
 Mo. App. — Missouri Appeal Cases. 
 
 Mod. — Modern Reports. 
 
 Men. B.: Monr. B.: Monroe, B. — B. 
 Monroe's Reports (Kentucky). 
 
 Monr. — T. B. Monroe's Reports (Ken- 
 tucky). 
 
 Month. Law Bui. — Monthly Law Bulle- 
 tin (New York). 
 
 Mont. & Ayr.— Montagu & Ayrton, 
 Bankruptcy Cases. 
 
 Mont. D. & G. — Montagu, Deacon & 
 De Gex, Bankruptcy Cases. 
 
 Monthly Law Reporter — Boston, Mass. 
 
 Moo. & Mai. : Moo. & Malk. — Moody and 
 Malkin Nisi Prius Reports. 
 
 Moore: Moore, F. : Moore, Pri. C. C. — 
 Moore's Reports, Privy Council (En- 
 gland). 
 
 Munf. — Munford's Reporls (Virginia). 
 
 Mur. Rep. — Murray's Jury Court Reports 
 (Scotland). Muiray's Rep. of Jury 
 Cas. 
 
 Murph. : Murphey. — Murphey's Reports 
 (North Carolina). 
 
 N. & M.: Nev. & M.: Nev. & Man. — 
 Neville and Manning, Magistrates' 
 
 N. C: N. Car.: No. Car.: Nor. Car.— 
 North Carolina Reports. 
 
 N. E.: N. East.: No. East.— Northeast- 
 ern Reporter (U. S.) 
 
 N. H. : N. H. Rep. : New Hamp.— New 
 Hampshire Reports. 
 
 N. J.: N. J. L.: N. J. L. R.— New Jer- 
 sey Law Reports. 
 
 N. R. : New R. — Bosanquet and Puller, 
 New Reports, Common Pleas. 
 
 N. W. : N. W. Rep. : N. West. Rep. : 
 No. West.: No. West. R.— North- 
 western Reporter (U. S.) 
 
 N. Y. — Court of Appeals Reports (New 
 York). 
 
 N. Y. Civ. Pro. Rep.— New York Civil 
 Procedure Reports. 
 
 N. Y. Crim. R.— New York Criminal 
 Reports. 
 
 N. Y. Legal Observer — New York Legal 
 Observer. 
 
 N. Y. St. Rep.— New York State Re- 
 porter. 
 
 N. Y. Suppl. — New York Supplement to 
 New York State Reporter. 
 
 N. Y. Weekly Dig.— New York Weekly 
 Digest. 
 
 Neb. — Nebraska Reports. 
 
 J^ew Eng. Rep. — New England Re- 
 porter. 
 
 New Mag. Cases.— New Magistrates' 
 
 Cases. 
 Nott & M.: Nott & McC— Nott and 
 
 McCord's Reports (South Carolina). 
 Noy. — Noy's Reports, King's Bench. 
 
 Ohio. : Ohio R. — Ohio Reports. 
 Ohio St.— Ohio State Reporis. 
 Oldbright. — Supreme Court Reports 
 
 (Nova Scotia). 
 Onario Supreme Ct. Rep. — Ontario's 
 
 Supreme Court Reports (Canada). 
 Ore.: Oregon. — Oregon Stale Reports. 
 Oito.—Otto's United States Supreme 
 
 Court Reports. 
 Overt. — Overton's Reports (Tennessee). 
 
 p. & w. — Penrose and Watts, Pensylva- 
 nia Reports. 
 
 P. Wms.— Peere Williams' Chancery 
 Reports. 
 
 Pa. C. C. Rep.— Philadelphia Circuit 
 Court Reports. 
 
 Pac. Rep.— Pacific Reporter (U. S.) 
 
 Pa. St. : Pa. St. R.— Pennsylvania State 
 Reports. 
 
 Paige. — Paige's New York Reports. 
 
 Palm. . Palmer. — Palmer's Reports, 
 King's Bench. 
 
 Paiker's Crim. R. — Parker's Criminal 
 Reports (New York). 
 
 Pat. Cas. Rep. — Patent Cases Reports. 
 
 Paton. — Appeal Cases, House of Lords. 
 
 Peake: Peake's Cas.— Peake's Nisi Prius 
 Cases. 
 
 Peake's Add. Cas. — Peake's Additional 
 Cases at Nisi Prius. 
 
 Pearson. — Pearson's Reports (Pennsyl- 
 vania). 
 
 Peck. — Peck's Tennessee Reports. 
 
 Penn.— Pennsylvania Reports (Penrose 
 and Watts). 
 
 Penn. N. J.Rep. : Pennington. — Penning- 
 ton's New Jersey Reports. 
 
 Penn. St. : Penn. St. R. : Penn. St. Rep. : 
 — Pennsylvania State Reports. 
 
 Penr. & Watts: Pen. & W. : Penrose & 
 Watts. — Penrose .and Watts' Pennsyl- 
 vania Reports. 
 
 Per & D.: Peir. & D.— Perry and Davi- 
 son's Reports, Queen's Bench (Eng- 
 land). 
 
 Peters. — Peters' United States Supreme 
 Court Reports. 
 
 Peters' C. C. R. — Same, Circuit Court 
 Reports. 
 
 Phil. Rep.: Phila.: Phila. Rep.— Phila- 
 delphia (Pa.) Reports (Legal Intellig- 
 encer). 
 
 Phill. Eccl. Cas. — Phillimore's Ecclesasti- 
 cal Reports. 
 
 Pick. — Pickering's Reports (Massachu- 
 setts). 
 
ABBREVIATIONS. 
 
 H 
 
 Pike. — Pike's Reports (Arkansas). 
 
 Pittsb. — Pittsburg Reports (Pennsyl- 
 vania). 
 
 Poph. — Popham's Reports. King's Bench. 
 
 Port.: Porter. — Porter's Reports (Ala- 
 bama). 
 
 Price. — Price's Exchequer Reports. 
 
 Price Pra. Cas. — Price's Practice Cases 
 (England). 
 
 Priv. C. C. — Privy Council Cases. 
 
 Prob. & Div. — Law Reports, Probate and 
 Divorce. 
 
 Prob. & Matri. — Same, Probate and Ma- 
 trimonial. 
 
 Pug. — Pugsley's Reports (New Bruns- 
 wick). 
 
 Q. B. — Queen's Bench Reports. 
 
 Q. B. D. — Law Reports, Queen's Bench 
 
 Division. 
 Q. B., N. S.— Queen's Bench Reports, 
 
 New Series. 
 Quebec L. R. — Quebec Law Reports. 
 
 R. I. — Rhode Island Reports. 
 
 R. & M.: Ry. & M.— Ryan and Moody, 
 
 King's Bench and Common Pleas Nisi 
 
 Prius Cases. 
 Ramsay's App. Cas. — Ramsay's Appeal 
 
 Cases (Ontario). 
 Rawle. — Rawle's Reports (Pennsylvania). 
 Raym. Ld. — Lord Raymond's Reports, 
 
 King's Bench and Common Pleas. 
 Raym. T, — Thomas Raymond's Reports, 
 
 King's Bench. 
 Red. — Redington's Reports (Maine). 
 Rep. Con. Ct.: Rep. Const. Ct.— Mills' 
 
 Reports, Constitutional Court (South 
 
 Carolina). 
 Rep. of Cas. of Prac. in C. P.— Reports 
 
 of Cases of Practice in the Common 
 
 Pleas. 
 Rep. Temp. Hardwicke. — King's Bench 
 
 Reports, Time of Lord Hardwicke. 
 Reporter, The. — Reports of Cases In the 
 
 different States (Boston, U. S.). 
 Rich. : Rich. Law. — Richardson's Law 
 
 Reports (South Carolina). 
 Ridgeway, L. & S. Ir. Term Rep. — 
 
 Ridgeway, Lapp and Schoale's Irish 
 
 Term Reporter. 
 Rob. Ecc. — Robertson's Ecclesiastical 
 
 Reports. 
 Robertson. — Robertson's Reports, Su- 
 perior Court (New York City). 
 RoUe: RoUe R. — Rolle's Reports, King's 
 
 Bench. 
 Root. — Root's Reports (Connecticut). 
 Russ. C. R. — Russell's Chancery Ca>es. 
 Russ. & R. Cr. Cas. Resd. — Russell and 
 
 Ryan, Crown Cases Reserved. 
 
 S. & R. . Serg. & R. — Sergeant and 
 Rawle's Reports (Pennsylvania). 
 
 Salk. — Salkeld's King's JBench Reports 
 (England). 
 
 Sand. : Sandf. — Sandford's Superior 
 Court Reports (New York City). 
 
 Saund. — Saunders' Reports, King's 
 Bench 
 
 Saund. W. : Saunders, W. — Saunders' 
 Reports, by Williams. 
 
 Say.: Sayer. — King's Bench Reports. 
 
 Scam. — Scammon's Reports (Illinois). 
 
 Scott. — Scott's Reports, Common Pleas. 
 
 Sc. N. R.: Scott, N. R.— Scott's New 
 Reports, Common Pleas. 
 
 Selw. N. P. — Selwyn's Nisi Prius Re- 
 ports. 
 
 Sess. Cas. — Cases in the Court of Ses- 
 sions (Scotland). 
 
 Shaw, App. Cas. — Shaw's Scotch Appeal 
 Cases. 
 
 Shaw. — Shaw's Vermont Reports. 
 
 Shep. — Shepley's Reports (Maine). 
 
 Show. — Shower's Reports, King's Bench. 
 
 Sid. : Siderfin. — Siderfin's Reports, King's 
 Bench. 
 
 Sim. — Simons' Chancery Reports. 
 
 Sim., N. S.— Same, New Series. 
 
 Sim. & S. — Simons and Stuart's Chancery 
 Reports. 
 
 Sir Geo. Lee's Cas. in Eccl. Cts. — Sir 
 George Lee's Judgments of Phillimore's 
 Ecclesiastical Reports (England). 
 
 Sir T. Jo. — Sir Thomas Jones' Reports, 
 King's Bench. 
 
 Skin. — Skinner's Reports, King's Bench. 
 
 Sme. & M. : Smedes & Marsh. — Smedes 
 and Marshall's Reports (Mississippi). 
 
 Smith. — Smith's Reports (Indiana). 
 
 Smith, E. D.— E. D. Smith's Reports, 
 Common Pleas (New York City). 
 
 Smith, J. P. — King's Bench Reports. 
 
 Smith, P. F. — Pennsylvania State Re- 
 ports. 
 
 Sneed. — Sneed's Reports (Kentucky). 
 
 Sneed. — Sneed's Tennessee Reports (i 
 vol.) 
 
 So.: So. Rep. — Southern Reporter (U. S.) 
 
 So. East.: So. East. Rep. — Southeastern 
 Reporter (U. S.) 
 
 So. West. : So. West. Rep.— Southwestern 
 Reporter (U. S.) 
 
 Speers. — Speers' Reports (South Caro- 
 lina). 
 
 Spencer. — Spencer's Reports (New 
 Jersey). 
 
 Stark.: Stark. R.: Stark. Cas.— Starkie's 
 Reports of Cases at Nisi Prius. 
 
 St. Tr. : State Tr. . State Trials.— How- 
 ell's State Trials. 
 
 Stew.: Stew. & For.: Stew. & Port.— 
 Stewart's Reports (Alabama); Stuart 
 and Porter's Reports (Alabaima). 
 
lii 
 
 ABBREVIATIONS. 
 
 Stock. — Stockton, New Jersey Equity 
 Reports. 
 
 Story. — United States Circuit Court Re- 
 ports. 
 
 Str. : Stra. : Strange. — Strange's Reports, 
 King's Bench. 
 
 Strob.: Strobh.: Strobhart.— Strobhart's 
 Reports (South Carolina). 
 
 Sty.: Style. — Style's Reports, King's 
 Bench. 
 
 Sup. Ct. : Supr. Ct. — Superior Court Re- 
 ports (New York). 
 
 Sup. Ct. Rep. (T. & T.)— Thompson and 
 Cook's Supreme Court Reports (New 
 York). 
 
 Supreme Court Reporter. — United States 
 Supreme Court. 
 
 Supp. to Hill & Denio's Rep. — Supple- 
 ment to Hill and Denio's Reports (New 
 York). 
 
 Sw. & "Tr. — Swabey and Tristram's Re- 
 ports, Courts of Probate and Divorce. 
 
 Swans. — Swanston's Chancery Reports. 
 
 Sweeny. — Sweeny's Superior Court Re- 
 ports (New York City). 
 
 T. & C. — Thompson and Cook's Reports, 
 Supreme Court (New York). 
 
 T. R. : Term R. — Term Reports, King's 
 Bench. 
 
 Taunt. — Taunton's Reports, Common 
 Pleas. 
 
 Tayl. — Taylor's Reports (North Caro- 
 lina). 
 
 Tenn. — Tennessee Reports. 
 
 Tex.: Texas. — Texas Reports. 
 
 Texas App. — Texas Appeal Cases. 
 
 Tex. Law Rev. — Texas Law Review. 
 
 Thach. Crim. Cas. — Thacher's Criminal 
 Cases (Massachusetts). 
 
 Trans. App. — Transcript Appeals, New 
 York Court of Appeals. 
 
 Tyler. — Tyler's Reports (Vermont). 
 
 Tyr. & Gr. — Tyrwhitt and Granger's Re- 
 ports, Exchequer (England). 
 
 Tyrw. — Tyrwhitt's Reports, Exchequer. 
 
 U. S. — United States Supreme Court Re- 
 ports. 
 
 U. S. Rep. — United States Reporter. 
 
 Up. Can. C. P. R.— Upper Canada, Com- 
 mon Pleas Reports. 
 
 Up. Can. L. J. — Upper Canada Law 
 Journal. 
 
 Up. Can. L. J., N. S.— Same, New 
 Series. 
 
 Up. Can. Q. B.: Up. Can. Q. B. R.— 
 Upper Canada, Queen's Bench Reports. 
 
 Up. Can. Q. B., O. S.— Upper Canada, 
 Queen's Bench Reports, Old Series. 
 
 Va. — Virginia Reports. 
 
 Vent.: Ventr. : Ventris'. — Ventris' Re- 
 ports, Common Pleas (England). 
 
 Vern. R. — Vernon, King's Bench Re- 
 ports (England). 
 
 Ves. — Vesey's Chancery Reports. 
 
 Ves. Jr. — Vesey's, Jr. Chancery Reports. 
 
 Vict. L. J. — Victoria Law Journal (Aus- 
 tralia). 
 
 Vict. Law Rep. — Victorian Law Reporter 
 (Australia). 
 
 Vict. Law Times. — Victoria Law Times 
 (Australia). 
 
 Vroom. — Vroom's New Jersey Law Re- 
 ports. 
 
 Vt. : Vermont. — Vermont Reports. 
 
 Walk. : Walker.— Walker's Reports (Mis- 
 sissippi). 
 
 Wall. — Wallace's Reports, U. S. Supreme 
 Court. 
 
 Wall. J.— Wallace's, Jr. Reports, U. S. 
 Supreme Court. 
 
 Wallace, J. B.— Reports U. S. Third 
 Circuit. 
 
 Washb. — Washburne's Reports (Ver- 
 mont). 
 
 Wash. C. C— Washington's United 
 States Circuit Court Reports. 
 
 Watts. — Watts' Supreme Court Reports 
 (Pennsylvania). 
 
 Watts & Serg. — Watts and Sergeant's Re- 
 ports (Pennsylvania). 
 
 Week. Dig.: Weekly Dig.: W'kly Dig. 
 — Weekly Digest (New Yorkjt 
 
 Week. Notes. — Weekly Notes (London). 
 
 Week. Rep. : Weekly Rep.— Weekly Re- 
 porter (England). 
 
 Wend.— Wendell's Reports (New York). 
 
 West. Jur. — Western Jurist (Des Moines, 
 Iowa). 
 
 West. Law Bui.— Western Law Bulletin 
 (U. S.) 
 
 West. Law Jour. — Western Law Journal 
 (Cincinnati, U. S.) 
 
 Whart. — Wharton's Reports (Pennsyl- 
 vania). 
 
 W. Va.— West Virginia Reports. 
 
 Williams.— Williams' Reports (Vermont); 
 also I vol. (Massachusetts). 
 
 Wills.: Willes' R.— WiUes' Reports, Com- 
 mon Pleas. 
 
 Wils.: Wilson.— Wilson's Reports, 
 King's Bench. 
 
 Wis. — Wisconsin Reports. 
 
 With.— Withrow's Reports (Iowa). 
 
 Wood. & M.— Woodbury and Minot, U, 
 S. Circuit Court Reports. 
 
 Wright.— Wright's Nisi Prius Reports 
 (Ohio). 
 
 W. W. & D.— Willimore, WoUaston and 
 Davison's Term Reports. 
 
ABBREVIATIONS. 
 
 liii 
 
 W. W. & H.— Willimore, WoUaston and 
 Hodges, Queen's Bench Reports. 
 
 Wyatt & Webb. — Law Repi^rts (Victoria). 
 
 Wyatt, Webb & ABeckett.— Law Re- 
 ports (Victoria). 
 
 Wythe. — Wythe's Reports (Virginia). 
 
 V. & J. : Y. & Jer. : You. & Jer.— Younge 
 and Jervis, Exchequer Reports. 
 
 Yeates. — Yeate's Reports (Pennsylvania). 
 Yelv. — Yelverton's Reports, King's 
 
 Bench. 
 Yerg. — Yerger's Reports (Tennessee). 
 
 Zabr. — Zabriskier's New Jersey Law Re- 
 ports. 
 
TABLE OF CASES. 
 
 [ The references are to pagrsT^ 
 
 Abarillo v, Rogers, 6lo 
 
 Abbey v. LiU, 628 
 
 Abendvoth v. Boardley, 542 
 
 Abraham v. Cooper, 702 
 
 Abrams v. Foshee, 171 
 
 Abrams v. Smith, 121, 305, 514, 606, 653, 
 
 663 
 Abrath ii. No. East. R. R. Co., 470, 713, 
 
 735 
 Abshire v. Cline, 195, 306, 307, 313 
 Accident Transit Co. v. McCerren, 730 
 Achurn v. Piper, 171, 560 
 Achu V. Wong Kuai, 725 
 Acker V. Gundy, 728 
 Acker v. McCullough, 123, 191 
 Ackerman v. Jones, 351,358, 359,36$, 
 
 658. 
 Acton V. Co£fman, 718 
 Adams v. Kelly, 95 
 
 Adams » Lawson, 203, 209, 214, 639, 646 
 Adams v. Meredew, 257 
 Adams v. Rankin, 192 
 Adams v. Rivers, 3 
 Adams v. Stone, 196 
 Adams v. Ward, 668 
 Adcock V. Marsh, 191, 411, 652 
 Addington v. Allen, 522 
 Adkins v. Williams, 440, 655 
 Aefele v. Wright, 184 
 Ahern v. Maguire, 83, 427 
 Aier v. Frost, 178 
 Aird V. Fireman's Journal, 659 
 Alan V. Parke, 725 
 Albrecht v. Patterson, 263, 519 
 Albin w. Parks, 6ll 
 Alcorn v. Hooker, 313, 319 
 Alden v. Monel), 491 
 Alderman v French, 302, 307, 590, 626, 
 
 659, 669, 670, 678, 681 
 Aldrich v. Brown, 121, 668 
 Aldrich v. Press Printing Co., 439, 470, 
 
 476 
 Alexander v. Alexander, 143, 163, 178, 
 
 179, 182 
 Alexander v. Angle. 224, 240, 548, 575 
 Alexander v. N. East. R. R. Co. 322, 476 
 Alfred v. Farlow, 193, 523 
 Alges V. Duncan, 525 
 Allardice v. Robertson, 349 
 Allcott V. Barber, 226 
 
 Allen V. Cape Fear & Y. R'y Co, 207, 298 
 
 Allen V, Crofoot, 96, 340, 341, 602 
 
 Allen V. Dixon, 241 
 
 Allen V. HiUman, 148, 182, 198, 235 
 
 Allen V. London & S. W. R'way, 104 
 
 Allen V. Neely, 629 
 
 Allen V. Patterson, 132 
 
 Allen V. Perkins, 561, 643 
 
 Allen V. Pioneer Press Co. 450 
 
 Alleusworih z^. Coleman, Ii6, 130, 624, 650 
 
 Alleston v. Moor. 256 
 
 Alley V. Neely, 152, 180 
 
 Alliger v. Brooklyn Daily Eagle, 677 
 
 Allsop V. Allsop, 131, 190, 261, 271 
 
 Alpin V. Morton, 387, 530, 653 
 
 Alward v. Alward, 532 
 
 Amann v. Damm, 85, 412 
 
 Am. Multiple Fabric Co. v. Eureka Fire 
 
 Hose Co., 491 
 Ames V. Hazard, 589. 592 
 Ames V. Raihbun, 709 
 Ames V. Webber, 531 
 Amick V. O'Hara, 72 
 Anderson v. Hamil'on, 350, 632 
 Anderson v. Hart, 641, 642 
 Anderson v. Hill, 583 
 Anderson v. Leibig's Extract of Meat Co. 
 
 693 
 
 Anderson v. Stewart, 115, 577 
 
 Andres v. Koppenheafer, 163, 167, 168, 
 197, 207 
 
 Andres v. Wells, 105 
 
 Andrew v. Dcshler, 559 
 
 Andrew v. N. Y. Bible, &c., Soc. 41 
 
 Andrews v. Bird, 178 
 
 Andrews v. Chapman, 356 
 
 Andrews v. Murray, 536 
 
 Andrews v. Raeburn, 352 
 
 Andrews v. Thornton, 311, 527 
 
 Andrews v. Van Duzer, 307, 315,668,671 
 
 Andrews v. Wilson, 245, 384 
 
 Andrews «< Woodmansee, 119, I2i, 143, 
 178, 502, 565 
 
 Angle w. Alexander, 522 
 
 Anibal v. Hunter, 593 
 
 Annison v. Blofield, 250 
 
 Anonymous, 131, 139, I74, 178, 179, 183, 
 190, 191, 193, 194, 197, 199,240, 242, 
 243, 248, 249, 263, 26b, 269, 290, 309, 
 574, 575. 593, 623. 669; 670, 687 
 
Ivi 
 
 TABLE OF CASES. 
 
 Anonymous v. Farm, 202 
 
 Anonymous v. Moor, 669 
 
 Anthony v. Stephens, 669, 678, 685 
 
 Aon v. McNiel, 347 
 
 Archbold v. Sweet, 252, 509 
 
 Armentrout v. Moianda, 18 
 
 Armitage v. Dunster, 610 
 
 Armstrong v. Barlle, 536 
 
 Armstrong v. Jordan, 250 
 
 Armstrong v. Pierson, 517 
 
 Arne v. Johnson. 126 
 
 Arnold v. Clifford, 536 
 
 Arnold v. Cost, 178 
 
 Arrington v. Jones, 307, 665 
 
 Artieta v Anieta, 196, 681 
 
 Ashford V. Choate, 265, 291 
 
 Ashley v. Bates, 498 
 
 Ashley v. Billington, 120 
 
 Ashley v. Harrison, 3, 59, 274 
 
 Ashmore v. Borthwick, 358 
 
 Aspenwall v. Whitmore, 631 
 
 Astley V. Younge, 324, 335, 339, 341 
 
 Aston V. Blagrave, 256 
 
 Atchison T. and S. F. R. Co. v. Watson, 
 
 7:4. 724, 730- 
 Atherley v. Harvey, 486, 635 
 Atkins V. Johnson, 536 
 Atkins V. Ferrin, 288 
 Atkins V. Thornton, 525 
 Atkinson v. Congreve, 383 
 Atkinson w. DetroitFree Press Co. 305,602 
 Atkinson v. Down, 339 
 Atkinson v. Fosbrooke, 485 
 Atkinson v. Hartley, 123, 198 
 Atkinson v. Raleigh. 739 
 Atkinson v. Rawley, 700, 739 
 Atkinson v. Reding, 179 
 Atkinson v. Scammon. 143 
 Atlantic Dock Co. v. The Mayor, 531 
 Atlantic Glass Co. v. Paulk, 102, 470, 535 
 Attebury v. Powell, 552, 591, 593, 631 
 Attorney General v. Daken, 34 
 Attorney General ». Ennis, 526 
 Attorney General v. Merchant, 631 
 Attorney General v. Perrin, 104 
 Attorney General v. Pierson, 41 
 Attorney General v. Siddon, 106 
 Atwell V. Mackintosh, 396, 411 
 At winger ». Felner, 555 
 Ausman v. Veal, 124 
 Ausiie V Mason, 178 
 Austin V. Bacon, 91, 636, 652 
 Austin V. Culpepper, 3 
 Austin V. Dowling, 702 
 Austin V. Hanchett, 304, 305 
 Ausin V. Remington, 647 
 Austin V. White, 202 
 Austin V. Wilson, 521 
 Avarillo v. Rogers, 610 
 Avery v. Blair, 717, 738 
 Kv^Tj V. Wilson, 440 
 Axman v Lund, 292, 6g2 
 Aylesworth v. St John, 349 
 
 Ayrault w. Chambeilain, 498, 501 
 
 Ayre v. Craven, 191, 233, 240, 548 
 
 Ayres' Case, 180 
 
 Ayies V. Covell, 539, 604, 626 
 
 Ayres v. Elbrough, 727 
 
 Ayres v. Russell, 341, 348, 377. 1°° 731 
 
 Avrey v. Fearnsides, 522 
 
 Baal V. Baggerley, 136 
 
 Baboneau v. Farrell, 213, 226, 245, 246, 
 
 571, 576, 6£3 
 Backus V. Richardson, 131, 234, 495 
 Bacon 7/. Beach, 212 
 Bacon's Case, 130 
 Bacon I'. Michigan Cent. R. R. 88, 389, 
 
 471 
 Bacon v. Towne, 710, 712 
 Bacon V. Townsend, 709, 738 
 Badcock v. Atl<ins, 575 
 Badgley v. Decker. 48 
 Badgley v. Hedges, 341, 343 
 Bagley v. Hedges, 188 
 Bagley v. Johnson, 561 
 Bagnall v. Underwood, 645 
 Bailey v. Abercrombie, 251 
 Bailey v. Dean, 6, 112, 284, 335, 524, 635 
 Bailey, ex parte, 504, 527, 640 
 Bailey v. Hyde, 675 
 Bailey w. Maynard, 155 
 Bailey v. Mogg, 226 
 Baker v. Bailey, 72 
 Baker v. Briggs, 525 
 Baker v. Hait, 360 
 Baker v. Lane, 486 
 Baker v. McClellan, 5,55, 557 
 Baker v. Morfue, 252 
 Baker v. Pierc^-, 39, 123, 132, 136, 139, 
 
 149, 150, 160 
 Baker v. Prilchard, 634 
 Balier v. Sanderson, 522 
 Baker v. Swackhamer, 481 
 Baker v. Wilkinson, 636 
 Baker v. Young, 535, 615 
 Baldwin v. Elrhinstone, 88, 555, 557 
 Baldwin v. Flower. 532 
 Baldwin ». Hildreth, 553 
 Baldwin v. Soule, 611, 655 
 Baldwin v. Weed, 714, 722 
 Ball V Bridges, 131 
 Ball V. Evening Post Pub. Co. 485, 492, 
 
 592 
 Ballard v. Lockwood, 64 
 Banbury w Duckwoith. 341 
 Banfield v. Lincoln, 179 
 Bank of British N. America v. Strong, 
 
 335 
 Bank of New South Wales v. Owston, 
 
 737 
 Bank of U. S. v. Owens, 30 
 Banner Pub. Co. v. State, 437 
 Banning v. Perry, 482 
 Banton v. Cleary, 124, 182 
 Barbaud v. Hookham, 379 
 
TABLE OF CASES. 
 
 Ivii 
 
 Barber v. Bennett, 358 
 
 Barber v. Gould, 708 
 
 Barber v. Lissiter, 738 
 
 Barber v. St. Louis Dispatch Co. 335, 
 
 748 
 Barclay v. Thompson, 170 
 Baretto v. Pirie, 595 
 Barfield v. Britt, 665, 680 
 Barger v. Barger, 506 
 Barham v. Nethersall, 139, 170, 178, 566, 
 
 568 
 Barbara's Case, 178 
 Barhyte v. Hughes, 608 
 Barker v. Angell, 717 
 Barker v. Dixon , 663 
 Barkley v. Copeland, 605 
 Barmund's Case, 269 
 Barnabas v. Taunter, 195 
 Barnard v. Whiting, 522 
 Barnes v. Bruddell, 270 
 Barnes v. Campbell, 447, 652 
 Barnes v. HoUoway, 483, 6lo 
 Barnes v. Hurd, 522 
 Barnes v. McCrate, 338 
 Barnes v. Prudlin, 265 
 Barnes v. The State, 106 
 Barnes v. Trundy, 260, 554, 579 
 Bamelt v. Allen, 135, 141, 196, 267, 274, 
 
 502, 582, 642 
 Bamett v. Ward, igi, 611 
 Barney v. United Telephone Co. 694 
 Earns v. Webb, 307, 674 
 Baron v. Beach, 204 
 Barr v. Gaines, 611, 614 
 Barr v. Hack, 661, 677, 678. 
 Barr v. Moore, 203, 467, 647, 655 
 Barr v. Shaw, 739 
 Barren v. Mason, 64 
 Barrett v. Chouteau, 735 
 Barrett v. Collins, 73,6 
 Barrett v. Jarvis, 123, 198 
 Barrett v. Long, 241, 570, 574, 576, 579, 
 
 650, 654, 657 
 Barron v. Mason, 722 
 Barrens v. Ball, 132, 179 
 Barrow v. Bell, 374, 509. 
 Barrow v, Lewellin, loi 
 Barrows v. Carpenter, 320, 589, 591, 593, 
 
 630, 674 
 Barry v. Fisher, 91 
 Barry v. McGrath, 449, 591 
 Barthe v. Brondreault, 378 
 Barthelemy v. The People, 315, 667, 668 
 Bartholomew v. Bentley, 132, 134 
 Bartlett v. Brown, 706 
 Bartlett v. Christhilf, 331, 334, 336, 340, 
 
 701 
 Bartlett v. Hawley, 706, 718, 725, 731 
 Bartlett v. Lewis, 486 
 Bartlett v. Robins, 43 
 Bartlett v. Robinson, III 
 Bartley v. Richtmeyer, 49 
 Barton v. Barbour, 106 
 
 E 
 
 Barton v. Barton, 556 
 
 Barton v. Holmes, 640 
 
 Barton v. Port Jackson Plank Road, 226 
 
 Bartow v. Brands, 654 
 
 Barwell v. Adkins, 650, 654 
 
 Basebee v. Matthews, 710 
 
 Bash V. Sommer, 122, 131, 150, 171, 443, 
 
 533 
 Baskett v. University of Cambridge, 445 
 Bassell v. Elmore, 94, 153, igo, 265, 579 
 Bassett v. Spofford, 561, 611 
 Bateman v. Lyall, 583 
 Bates V. Loomis, 495 
 Bathrick v. Post and Tribune Co. 448 
 Battell V. Wallace, 608, 675 
 Baum V. Clause, 59, 168, 307 
 Baxter's Case, 574 
 Bayard v. Passmore, 363 
 Baylis v. Lawrence, 503, 510, 511, 520 
 Bays V. Hunt, 150, 467 
 Beach v. Beach, 533 
 Beach v. Ranney, 50, 261, 264, 271, 533, 
 
 587, 607 
 Beach v. The Mayor, 489 
 Beal V. Robeson, 718 
 Beamond v. Hastings, 257 
 Beaney v. Fitzgerald, 314 
 Beardsley v. Bridgraan, 190, 192, 674, 
 
 678 
 Beardsley v. Dibblee, I22, 167, 197 
 Beardsley v. Maynard, 683, 684 
 Beardsley v. Tappan, 121, 229, 244, 418, 
 
 565, 566 
 Beasley v. Meigs, 659 
 Beatson v. Skene, 380, 416, 495, 632 
 Beaumond v. Hastings, 547. 
 Beaumont v. Reeves, 2 
 Bearor v. Hides, i6g, 309 
 Beazley v. Raid, 509 
 Bechlell v. Shatler, 85 
 Beck V. Stitzel, 163, 168, 258 
 Beckett v. Sterrett, 148, 181 
 Bedell v. Powell, 39, 271 
 Bedford Charity, 41 
 Beebe v. Bank of New York, 12 
 Beechey v. Sides, 480 
 Beeler v. Jackson, 421 
 Beers v. Root, 526 
 Beers v. Strong, 131, 137, 138, 184 
 Behee v. Mo. Pacific Railway Co. 68, 102, 
 
 434, 631, 633, 654 
 Behrens v. Allen, 365, 593, 594 
 Bell V. Bugg, 551 
 Bell V. Byrne, 618 
 Bell V. Farnsworth, 184, 188 
 Bell V. Femald, 66, 182 
 Bell V. Howard, 524 
 Bell V. Keepers, 709, 725 
 Bell V. McGinness, 665 
 Bell V. Matthews, 707, 709, 729 
 Bell V. Midland Ry. Co. 3 
 Bell V. Parke, 381, 383, 588, 670 
 Bell V. Pearcy, 714 
 
Iviii 
 
 TABLE OF CASES. 
 
 Bell V. Quinn, 226 
 
 Bell V. Stone, 203, 207 
 
 Bell V. Sun Print. & Pub. Co. 206, 211, 
 263, 567, 580 
 
 Bell V. Thatcher, 194, 238, 545 
 
 Bellamy ». Barker, ig6 
 
 Bellamy v. Burch, 225, 235, 236 
 
 Bellingham v. Mynors, 193 
 
 Beloe V. Wren, 388 
 
 Belt V. Lawes, 526, 588, 593 
 
 Benaway v. Conyne, 523, 565, 579 
 
 Bendish v. Lindsey, 194, 544 
 
 Benedict v. Westover, 557 
 
 Benkelt v. McCarty, 189 
 
 Bennett v. Barry, 370 
 
 Bennett v. Bennett, 306, 685 
 
 Bennett v. Deacon, 298 
 
 Bennett v. Hyde, 646, 652 
 
 Bennett v. Matthews, 312, 586, 604, 659 
 669, 676, 679 
 
 Bennett v. Smith, 675, 677 
 
 Bennett v. Williamson, 131, 204, 219, 502 
 
 Benson v. Flowers, 531 
 
 Benson v. Morley, 182 
 
 Bent V. Mink, 639 
 
 Bentley v. Reynolds, 260, 272 
 
 Benton v. Pratt, 281 
 
 Berens ii. Allen, 594 
 
 Bergman v. Jones, 203, 503, 521 
 
 Bergold v. Puchta, 251 
 
 Beriiford v. Press, 193 
 
 Berry v. Adamson, 156, 705 
 
 Beny v. Carter, 189, 192 
 
 Berry v. Dryden, 611, 622 
 
 Berry v. Massey, 640 
 
 Berryman v. Wise, 236, 644, 645 
 
 Besson v. Southard, 725, 726, 729, 730, 
 732. 735 
 
 Best V, Bauder, 226 
 
 Beswick v. Chappel, 185, 565, 567 
 
 Beth V. Wilmot, 692 
 
 Bettner v. Hall, 214 
 
 Bettner v. Holt, 203 
 
 Bicker v. Potts, 539 
 
 Bickford v. JJarcy, 486 
 
 Biddulph V. Chamberlayne, 156, 317, 527, 
 592, 602 
 
 Biering v. First Nat. Bank, 700, 731 
 
 Bigelow V, Sprague, 651 
 
 Biggs V. Great Eastern Railway Com- 
 pany, 324. 576, 600 
 
 Bignell v. Buzzard, 267 
 
 Bihin v. Bihin, 62 
 
 Bihler v. Gockley, 164 
 
 Billing V. Knight, 539 
 
 Billingham v. Mynors, 316 
 
 Billings V. Fairbanks, 420, 421, 422 
 
 Billings V. Russell, 99, 418 
 
 Billings V. Waller, 593 
 
 Billings V. Wing, 163, 165, 167, igS 
 
 Binford v. Young, 129, 161, 639, 641 
 
 Binns v. McCorcle, 304 
 
 Binns v. Stokes, 302 
 
 Birch V. Benton, 165, 198, 579, 608 
 
 Birch v. Simms, 610 
 
 Birch V. Walsh, 363 
 
 Bird V. Higginson, 498 
 
 Bisbey v. Shaw, 307. 664, 672, 676 
 
 Bishop V. Latimer, 357 
 
 Bishop V. Martin, 738 
 
 Bishop of Norwich v. Pricket, 253 
 
 Bissell V. Cornell, 122, 171, 311, 323, 600, 
 
 603 
 Black V. Holmes, 120, 242, 296, 633 
 Black V. Hunt, 196, 197 
 Blackburn j/. Blackburn, 514, 527 
 Blackham v. Pugh, 298, 391 
 Blackman v. Bryant, 197 
 Blackwell v. Wiswall, 104 
 Blagg V. Sturt, 383, 506, 576, 648 
 Blair v. Sharp, 185 
 
 Blaisdell v. Raymond, 503, 541, 576, 587 
 Blake v. Pilford, 378, 633 
 Blake v. Stevens, 316, 357 
 Blakelee v. Buchanan, 481 
 Blakeman v. Blakeman. 313, 502, 642 
 Blanchard v. Fisk, 181, 182 
 Bianchard v. Lewis, 604 
 Blanchard v. Tulip, 650, 675 
 Blessing v. Davis, 561 
 Bleverhasset v. Baspoole, 257 
 Blickenstaff v. Perrin, 133, 153, 189, 604 
 Bliss V. Wyman, 718 
 Blizzard v. Hays, 717 
 Blizzard v. Kelly, 561, 737 
 Bloodworth v. Gray, 200 
 Bloom V. Bloom, 137, 167, 522 
 Bloss V. Tobey, 122, 133, 164, 178, 537 
 Blumenthal v. Brainerd, 106 
 Blumhardt v. Rohr. 541, 582 
 Blunden v. Eustace, 247 
 Blunk V. Atchison, &c. R. R. Co. 713, 
 Blunt V. Guntz, 606 
 
 718, 731, 739 
 Blunt V. Little, 714, 718, 726, 731 
 Blunt V. Mason, 524 
 Boaler v. Holder, 710 
 Bodwell V. Osgood, 209, 241, 378, 514, 
 
 525, 659, 679 
 Bodwell V. Swan, 307, 647, 649 
 Boeger v. Langenburg, 732 
 Bogle V. Lawson, 496 
 Boldroe v. Porter, 46, 125 
 Boldt V. Budwig, 647 
 Bolton V. O'Brien, 500, 505 
 Bonanza Development Co. v. Hayes, 285 
 Bond V. Douglass, 88, 96, 639, 650, 680 
 Bond V. Kendall, 686 
 Bonner v. Boyd, i8l 
 Bonner v. McFhail, 497, 551 
 Bonner's Case, 202 
 Bonomi v. Backhouse, 52, 71, 480 
 Bonyon v. Trotter, 117 
 Boosey v. Wood, 441 
 Boot V. Cooper, 701 
 Booth V. Briscoe, 535 
 
TABLE OF CASES. 
 
 lix 
 
 Booth V. Leach, 176, 177 
 Booth V. Milnes, 498 
 Booth V. Sweezy, 64 
 Borbidge v. Herst, 196 
 Bornman v. Boyer, 151, 183 
 Boston v. Tatam, 168, 169 
 Boston Diatite Co. v. Florence Manufac- 
 turing Co. 691 
 Bostwick V. Hawley, 579 
 Bostwick V. Lewis, 340 
 Bostwick V. Nicholson, 579 
 Botelar v. Bell, 650, 682, 687 
 Botterell v. Whytehead, 250, 253, 324 
 Boulton V. Clapham, 342 
 Boulton V. Shields. 290, 293 
 Boun V. Seideker, 667 
 Bourke v. Warren, 119, 129, 612 
 Bourland v. Eidson, 684 
 Bourreseau v. Detroit Ev'g Jour. 257, 
 
 467. 503. 565 
 Bowden v. Allen, 634 
 Bowden v. Bailes. 520 
 Bowden v. Russell, 334 
 Bowdish V. Peckham, 552, 669 
 Bowe V. Rogers, i8l 
 Bowen v. Hall, 291, 670, 678 
 Bowers v. Hutchinson, 540 
 Bowman v. Brown, 710 
 Bowman v. Earle, 521 
 Box V. Barnaby, 193 
 Boxes' Case, 202 
 Boyd V. Brent, 190, 606 
 Boyd V. Cross, 710 
 
 Boydell v. Jones, 119, 245, 250, 502, 538 
 Boyle V. Wiseman, 631, 634 
 Boynton v. Boynton, 662 
 Boynton w. Kellogg, 25 
 Boynton v. Remington, 458 
 Boynton v. Shaw Stocking Co. 279 
 Boys V. Boys, 190 
 Brace v. Brink, 186 
 Bracebridge v. Watson, 270 
 Bracegirdle v. Bailey, 669 
 Bracegirdle v. Orford, 2 
 Bradbury v. Cooper, 486, 490 
 Braden v. Walker, 660 
 Bradford v. Edwards, 680, 681 
 Bradlaugh v. Brooks, 517 
 Bradlaugh v. Gossett, 325 
 Bradlaugh v. Newdegate, 332 
 Bradley v. Bradner, 684 
 Bradley v. Cramer, 146, 163, 521, 653, 
 
 658 
 Bradley v. Fisher, 347 
 Bradley v. Gibson, 678 
 Bradley v. Heath, 300, 369, 372, 396. 678 
 Bradley v. Kennedy, 523, 664, 665, 666 
 Bradley v. Methuen, 12 
 Bradner v. Falkner, 676 
 Bradshaw v. Perdue, 555 
 Bradstreet Co. v. Gill, 68, 417, 520, 546, 
 
 580, 641 
 Bradt v. Towsley, 271, 52° 
 
 Brady v. Goulden, 267 
 
 Brady v. Wilson, 163, 177 
 
 Brandford v. Freeman, 498 
 
 Brandon Manf. Co. v. Bridgman, 485, 486 
 
 Brandreth v. Lance, 688 
 
 Brandrick v. Johnson, igg, 253 
 
 Brandt v. Craddock, 737 
 
 Branstetter v. Dorrough, 129 
 
 Srashear v. Shepherd, 553 
 
 Braveboy i'. Cockfield, 706, 715 
 
 Bray v. Andrews, 172 
 
 Brayne v. Cooper, 164, 194, 240, 502 
 
 Brecheley v, Atkins, 177 
 
 Breckenridge v. Auld, 700, 730 
 
 Bree v. Marescaux, 94 
 
 Breen v. McDonald, 559 
 
 Breeze v. Sails, 254 
 
 Brembridge v. Latimer, 323, 324, 540, 573 
 
 Brent v. Ingram, 115 
 
 Brentrcan v. Note, 273. 285 
 
 Brett V. Watson, 388, 398 
 
 Brettun v. Anthony, 178, 559 
 
 Breull, ex parte, 224 
 
 Brewer v. Day, 2 
 
 Brewer v. Jacobs, 719, 725 
 
 Brewer v. Shaw, 700 
 
 Brewer v. Temple, 583, 739 
 
 Brewer v. Weakley, 231, 439 
 
 Bricker v. Potts, 188 
 
 Brlckett v. Davis, 594, 602, 624, 650 
 
 Bridges v. Horner, 523 
 
 Bridgman v. Hopkins, 669, 678 
 
 Brigg's Case, 193 
 
 Briggs V. Byrd, 116, 332, 334 
 
 Briggs V. Garrett, 298, 299, 300, 330, 436, 
 
 438, 447, 513. 648, 70Z 
 Brill V. Flagler, i 
 Brine v. Bazalgette, 649 
 Brinsmead v. Harrison, 443 
 Bristow V. Heywood,705 
 Brite w. Gill, 125. 151, 170 
 Brittain v. Allen, 541, 654 
 Britton v. Richards, 481 
 Brittridge's Case, 121 
 Broad w. Ham, 721 
 Broadbent v. Small, 453 
 Brockleman v. Brandt, 732 
 Broderick v. James, 89 
 Brodribb v. Brodribb, 360 
 Bromage v. Prosser, 66, 67, 69, 72, 102, 
 
 405, 514. 647 
 Bronson v. Bruce, 437, 675 
 Bronson, Re, 408 
 Brook's Case, 234 
 
 Brook V. Bemiss, 146, 207, 317, 596 
 Brook V. Evans, 360 
 Brook V. Monlague, 73, 344 
 Brook V. Rawl, 288, 290 
 Brook v. Wise, 202 
 Brooker v. Coffin, 160, 190, 191 
 Brooks V. Blair, 729 
 Brooks V. Blanshard, 384, 403, 622 
 Brooks V. Bryan, 305 
 
Ix 
 
 TABLE OF CASES. 
 
 Brooks V. Dutcher, 626, 647, 671 
 
 Brooks V. Harrison, 39, 162, 241, 271, 
 
 272, 508, 513, 514, 583 
 Brooks V. McLellan, 481 
 Brooks V. Sanger, 700 
 Brooks V. Tichbourne, 306 
 Broome v. Gosden, 527, 576 
 Broomfield v, Snoke, 197 
 Brothers v, Fobes, 433 
 Brow V. Hathaway, 374, 422, 424 
 Brown v. Autrey, 524, 683 
 Brown v. Barnes, 652 
 Brown V. Beatty, 320, 322 
 Brown v. Brashier, 89 
 Brown v. Brooks, 681 
 Brown v. Brown, 146, 566, 567 
 Brown V. Burnett, 566, 599 
 Brown v. Chadsey, 702 
 Brown V. Champlin, 662 
 Brown v. Chapman, 700, 706 
 Brown v. Charlton, 125, 176 
 Brown V. City of Girardeau, 470, 701 
 Brown v. Croome, 419 
 Brown v. Foster, 739 
 Brown v. Gibbons, 266 
 Brown v. Griffin, 717 
 Brown v. Hall, 671 
 Brown v. Hirley, 100 
 Brown v. Hook, 248 
 Brown v. Kennedy, 264 
 Brown v. Lamberton, 137, 546, 553 
 Brown v. Leeson, 497 
 Brown v. Lisle, 131 
 Brown v. Michel, 332 
 Brown v. Mims, 245, 248 
 Brown v. Murray, 501 
 Brown v. Myers, 151, 152 
 Brown v. Nickerson, 199 
 Brown v. Orvis, 248 
 Erown v. Finer, 184. 568 
 Brown v. Purdy, 388 
 Brown v. Randall, 708, 715 
 Brown v. Remington, 208 
 Brown v. Smith, 223, 242, 243, 348, 519 
 Brown v. Thurlow, 555 
 Browne v. Daukes, 193 
 Browne v. McKinley, 463 
 Browning v. Alwyn, 489. 
 Browning v. Newman, 582 
 Brownlow's Case, 549 
 Brace V. Nicolopulo, 631, 633 
 Bruce v. Reed, 302 
 Bruff V. Mali, 104 
 Bruington v. Wingate, 713 
 Bruley v. Rose, 714 
 Brunson *. Lynde, 669 
 Brunswick v. Harmer, 96, 480, 516, 683 
 Brunswick, Duke of, v. Pepper, 587, 664 
 Bruton V. Downes, 336, 525, 593 
 Bryan v. Gurr, 595, 66g 
 Bryan v. Wikes, 149 
 Bryant v. Foot, 47 
 Bryant v. Jackson, 440 
 
 Bryant v. Loxton, 226, 245 
 
 Buchs V. Barker, 333 
 
 Buck V. Hersey, 164, 199, 237, 254 
 
 Buckingham v. Murray, 563 
 
 Buckley v. Kiernan, 390. 
 
 Buckley v. Knapp, 105, 524, 652, 680 
 
 Buckley v. O'Niel, 194 
 
 Buckley 11. Wood, 332, 333 
 
 Bucklin v. Ohio, 25 
 
 Buckman v. Cowell, 72 
 
 Buckmaster v. Reynolds, 71 
 
 Buddington v. Davis, 463, 589, 593 
 
 Buffalo Lub. Oil Co. v. Standard Oil Co. 
 
 103, 104. 279, 470, 475 
 Buford V. McLuny, 669 
 Buhler v. Wentworth, 591 
 Bulkley v. Keteltas, 725, 729 
 Bulkley v. Smith, 726, 732 
 Bull V. Chapman, 534 
 Bullard v. Lambert, 667 
 Bullock V. Babcock, 72, 440 
 Bullock V. Cloyes, 650 
 Bullock V. Koon, 187, 541 
 Bulnois V. Mann, 55 
 Bundy v. Hart, 170, 178, 609 
 Bundy v. Maginess, 7, 521 
 Bunton v. Worley, 333 
 Burbank v. Horn, 89, 149, 182, 555, 558 
 Burbato v. De Libero, 166 
 Burcher v. Orchard, 535 
 Burdett v. Abbott, 639 
 Burdett v. Cobbett, 88, 96 
 Burdock v. Freeman, 91 
 Burford v. Wible, 312, 319 
 Burges v. Bracher, 13b 
 Burgett V. Burgett, 718 
 Burgis's Case, 615 
 Burhans v. Sanford, 708, 714, 731 
 Burk V. McBain, 652 
 Burke v. Miller, 670, 671, 674 
 Burke v. N. Y. & Greenwood Lake R. R. 
 
 517 
 Burkelt v. Lanata, 709 
 Buikett V. McCarty, i8g 
 Burkey v. Judd, 733 
 Burley v. Belhune, 701, 719 
 Burlingame v. Burlingame, 333, 709, 722 
 Burnett v. Chetwood, 688 
 Burnett v. Tak, 689 
 Burnett v. Wells, 241, 522 
 Burnham v. Seaverns, 735 
 Burns v. Erben, 726 
 Bums V. Williams, 559 
 Burnside v. Matthews, 529 
 Burnstein v. Davis, 87 
 Burratt v. Collins, 99 
 Eurrell v. Nicholson, 498 
 Burr's Trial, 632 
 Burson v. Edwards, 650, 653 
 Burt V. McBain, 421, 535, 627, 677, 685 
 Burt V. Place, 710 
 Burtch V. Nickerson, 163, 234, 567 
 Burton v. Burton, 163, 193, 556 
 
TABLE OF CASES. 
 
 Ixi 
 
 Burton v. March, 646, 649 
 
 Burton v. Plummer, 629 
 
 Burton v. St. Paul R. R. 712, 713, 726 
 
 729, 730 
 Burton v. Tokin, 257 
 Bury V. Wright, 182 
 Buscher v. Scully, 144, 161, 5S4, 610 
 Bush V. Prosser, 73, 74, 75, 604, 668, 676, 
 
 679 
 Bush V. Smith, 175 
 Busst v. Gibbons, 724, 725, 739 
 Bustros V. White, 486 
 Butler V. Butler, 360 
 Butler V. Howes, 248, 580 
 Butler V. Maples, 636 
 Butler V. Wood, 573, 607 
 Butterfield v. Buffum, 118, 137 
 Button V. Heyward, 46, 117, 130, 131, 144, 
 
 179. 544 
 Button V. Richards, 511 
 Butts V. Burnett, 481 
 Buys V. Gillespie, 191 
 Byam v. Collins, 301, 397, 402, 411 
 Byass V. Smith, 488 
 Byers v. Martin, 25S 
 Byne v. Moore, 730 
 Byrket v. Monohon, 646, 647, 659, 666, 
 
 676 
 Byrn v. Judd, 605 
 Byrnes v. Matthews, 210 
 Byron v. Elmes, 189 
 
 Cade V. Redditt, 302 
 
 Caddy v. Barlow, 64S, 732 
 
 Caesar v. Curseny, 256 
 
 Calder v. Halket, 351 
 
 Caldwell v. Abbey, 154, 196, 198, 565 
 
 Caldwell v. N. J. Steamboat Co. 476, 
 
 520 
 Caldwell V. Raymond, 210, 541, 542 
 Calhoun w. McMeans, 686 
 Calkins w.Colburn, 600, 604, 672, 673, 677, 
 
 680 
 Calkins v. Sumner, 34, 338 
 Calkins v. Wheaton, 502, 503 
 Call V. Foresman, 146, 551 
 Call V. Larabee, 161 
 Callaher v. Cavendish, 483 
 Callan v. Gaylord, 628, 638 
 Calloway v. Middleton, 302 
 Camfield v. Bird, 624 
 Camp V. Barney, 106 
 Camp V. Martin, 250, 251, 253 
 Campagnon v. Martin, 610 
 Campbell v. Butts, 442, 443, 653, 654 
 Campbell v. Campbell, 118, 640 
 Campbell v. Lewis, 522 
 Campbell v. Linton, 518 
 Campbell v. Press Pub. Co. 354 
 Campbell v. Spottiswoode, 309, 324, 447, 
 
 451, 460, 464 
 Campbell v. White, 197, 270 
 
 Canada Life Assur. Co. v. O'Loane, 313 
 
 Candler v. Petit, 716 
 
 Cane v. Goulding, 290 
 
 Cann v. Cann, 360 
 
 Cannell v. Curtis, 645 
 
 Cannon v. Phillips, 538, 551 
 
 Canterbury v. Hill, 185, 551 
 
 Capel V. Jones, 204, 219 
 
 Capital and Counties Bank v. Henty, 125, 
 
 127, 511 
 Cardival 7). Smith, 700, 707, 708 
 Carey v. Allen, 554, 556 
 Carl V. Ayers, 709, 711, 719, 722, 723, 
 
 724 
 Carlock v. Spencer, 185, 523, 589 
 Carman v. Truman, 738 
 Carmichael v. Shiel, 125, 152 
 Carn v. Osgood, 257 
 Carpenter z/. Bailey, 298., 633 
 Carpenter v. Dennis, 223, 242, 244, 548 
 Carpenter v. Hammond, 213 
 Carpenter v. Shelden, 723, 725 
 Carpenter v. Tarrant, 169 
 Carpenter v. The People, 25 
 Carr v. Duckett, 292 
 Carr v. Hood, 282, 293, 452, 453 
 Carr v. James, 103 
 Carr v. Jones. 357, 462 
 Carr v. Torre, 701, 731 
 Carratt v. Morley, 706 
 Carrier v. Garrant, 99 
 Carrol v. Bird, 428 
 Carrol v. Falkiner, 273 
 Carroll v. White, n8, 144, 179, 180, 251, 
 
 541. 579 
 Carslake v. Mapeldoram, 200 
 Carson v. McFadden, 531 
 Carter v. Andrews, 125, 126, 127, 148, 
 
 198, 256, 542, 545, 579 
 Carter v. Good, 91 
 Carter v. Jones, 498 
 Carter v. Leeds, 488 
 Carter v. McDowell, 656 
 Carter v. Smith, 270 
 Cartwright v. Gilbert, 497 
 Cartwright v. Wright, 619 
 Case of the Dean of St. Asaph, 56 
 Case of the Seven Bishops, 92, 637, 638, 
 
 639 
 Case V. Belknap, 528 
 Case V. Buckley, £77, 182, 522, 539 
 Case V. Marks, 526, 652, 678 
 Casebeer v. Drahoble, 708, 735 
 Casebeer v. Rice, 708, 720 
 Casey v. Arnott, 279 
 Casey v. Sevatson, 708, 712 
 Casneau v. Bryant, 495 
 Cass V. Anderson, 118, 138, 188, 542 
 Cass V. Times, 157 
 Casselman v. Winship, 185, 550 
 Cassin v. Delany, 40. 525, 526, 736 
 Castle v. Houston, 307 
 Castleberry v. Kelly, 171 
 
Ixii 
 
 TABLE OF CASES. 
 
 Castleman v. Hobbs, 566, 575 
 
 Castro V. DeUriaite, 725, 729, 730 
 
 Castro V. Murray, 528 
 
 Gates V. Kellogg, 94 
 
 Catterall v. Catterall, 8 
 
 Catterall v. Kenyon, gg, 536 
 
 Caulfield v. Whitworth, 407, 514, 590, 
 
 625, 649, 653, 659 
 Cavanagh w. Austin, 653, 659 
 Cave V. Shelor, 553 
 Cavel V. Birket, 191 
 Caverly v. Caverly, 565 
 Cawdrey v. Tetley , 251 
 Ceely v. Hoskins, 122, 136 
 Cefret v. Burch, 170 
 Center v. Finney, 53, 64 
 Center v. Spring, 64, 708, 718 
 Chace v. Sherman, 177 
 Chaddock v. Briggs, 133, 137, 164, igg, 
 
 204, 256 
 Chadwick v. Herepath, 442, 449, 608 
 Chaffin V. Lynch, 74, 160, 400 
 Challender v. Royle, 692, 6g4 
 Chalmers v. Payne, 356, 357, 504 
 Chalmers v. Shackell, 156, 543, 548 
 Chamberlain v. Boyl, 264, 580 
 Chamberlain v. Gaillard, 498 
 Chamberlain w. Vance, 565, 643 
 Chamberlain v. White, 99 
 Chamberlain v, Wilmore, gg 
 Chambers v. Caulfield, 525 
 Chambers v. Robinson, 524, 707, 709, 
 
 732 
 Chambers v. Upton, 701, 718 
 Chambers v. White, 545 
 Chandler v. HoUoway, 115, 144, I7g, 545, 
 
 6n 
 Chandler v. Robison, 601 
 Chanller v. Lindsey, 534 
 Chapin v. White, 613 
 Chaplin v. Cruikshanks, 193 
 Chaplin v. Lee, 142 
 Chaplin, Re, 449 
 Chapman v. Calder, 307, 664 
 Chapman v. Dunn, 723 
 Chapman v. Gillett, 184, 187 
 Chapman v. Hislop, 729 
 Chapman v. Lamphire, 242, 243 
 Chapman v. Ordway, 668 
 Chapman v. Pickersgill, i, 700, 701 
 Chapman v. Smith, 137. 185, 551 
 Chapman w. Wright, 406 
 Charlter v. Barrett, 612 
 Charlton's Case, 360 
 Charlton v. Walton, 366, 664 
 Charlton v. Watton, 359, 664 
 Charnel's Case, 171 
 Charter v. Hunter, i8i 
 Chase v. Whitlock, 196, 197 
 Chatfield v. Comerford, 395, 396, 723 
 Cheadle w. Buell, 164, 170, 194, 611, 625 
 Cheatwood v. Mayo, 193 
 Cheese v. Scales, 258 
 
 Cheetham v. Tillotson, 523, 584 
 
 Chelf V. Penn, 7og 
 
 Cheltenham Ry. Car. Co. 363 
 
 Chenango Bridge Co. v. Paige, 78 
 
 Chenery v. Goodrich, 227 
 
 Cheritree v. Roggen, 653 
 
 Chesley v. Thompson, 652 
 
 Chester v. Worlley, 486 
 
 Chetwind v. Meeston, 256 
 
 Chevalier v. Brush, 306 
 
 Chicago R. R. Co. v. Dunn, 532 
 
 Child V. AiBeck, 432, 648 
 
 Child, David Lee, trial of, 18 
 
 Child V. Homer, 684 
 
 Childs V. State Bank of Mo. 470 
 
 Childs V. Tuttle, 2g3, 494 
 
 Chilvers v. Greaves, 517 
 
 Chipman v. Cook, 194, 24S, 248, 256 
 
 Chisholm v. State of Georgia, 31 
 
 Chisley v. Tompson, 271, 580 
 
 Christ V. Bradstreet Company, 417 
 
 Christie v. Christie, 334 
 
 Christie v. Covi'ell, 121, 122, 151 
 
 Chubb V. Flannagan, 54, 107, 602 
 
 Chubb V. Gsell, 646 
 
 Chubb V. Westley, 650, 655 
 
 Church V. Bridgman, 130, 198, 303, 305, 
 
 553. 566 
 Churchill v. Hunt, 154, 155, 213, 318,. 
 
 561, 592, 594 
 Churchill v. Kimble, 583 
 Churchill v. Siggers, 331, 700, 702 
 Cilley V. Jenness, 5go, 670 
 Cincinnati, &c. Co. v. Timberlake, 356^ 
 
 364 
 City of Joliet v. Weston, 524 
 City of London v. Vanacker, 441 
 Clapp V. Devlin, 3g3, 514 
 Clapp V. Hudson River R. R. Co. 525 
 Clapper v. Fitzpatrick, 487 
 Clare v. Blakesley, 497 
 Clark V. Binney, 203, 204, 207, 214 
 Clark V. Brown, 324, 669, 678 
 Clark V. Cleveland, 708 
 Clark V. Creitzburgh, 114 
 Clark V. Dibble, 323 
 Clark V. Everett, 709, 714 
 Clark V. Freeman, 689 
 Clark V. Gilbert, 149, 180 
 Clark V. Lamb, 522 
 Clark V. Munsell, 492 
 Clarke v. AUbut, 623 
 Clarke v. Fitch, 135 
 Clarke v. Gilbert, 180 
 Clarke -v. Molyneaux, 68, 367, 404, 514, 
 
 647 
 Clarke v. Morgan, 263 
 Clarke w. Mount, 150 
 Clarke v. Munsell, 301, 321, 492 
 Clarke v. Periam, 582 
 Clarke v. Postan, 705 
 Clarke v. Rankin, 57 
 Clarke v. Roe, 300, 397 
 
TABLE OF CASES. 
 
 Ixiii 
 
 Clarke v. Taylor, 319, 320, 323, 5S9, 592, 
 
 602 
 Clarkson v. Lawson, 136, 154, 155, 317, 
 
 589, 606 
 Clarkson v. McCarty, 306 
 Clason V. Bailey, 3 
 Clay V. Barkley, 198 
 Clay V. Roberts, 216, 588 
 Clay V. The People, 561 
 Clay V. The State, 95 
 Clay V. Yates, 534 
 Cleaver v. Senaude, 412 
 Cle^ V. Laffer, 209, 572, 575 
 Cleghorn v. N. Y. & H. R. R. Co. 517 
 Clement v. Chivis, 203, 209 
 Clement v. Fisher, 522, 554 
 Clement v. Lewis, 357, 523 
 Clement v. O'Brien, 357 
 Clements, Re, 449 
 Clements v. Newcombe, 483 
 Clements v. Odorless Excavating Co. 
 
 332, 701 
 Clements v. Ohrly, 724, 735 
 Clerk V. Dier, 118 
 Clerk V. James, 483 
 Cleveland v Detweiler, 124, igo, 192 
 Clifford V. Cochrane, 95, 237 
 Clift V. White, 63 
 Clifton V. Wells, 202 
 Clinton V. Henderson, ego, 591 
 Clinton v. Mitchell, 501 
 Clissold V. Clissold, 483 
 Clontier v. Blackburn, 380 
 Closson V. Staples, 331 
 Clover V. Royden, 6go 
 Clutterbuck v. Chaffers, 83, 86 
 Cobum V. Harwood. 163, 171 
 Cochran v. Butterfield, 94, 95, 687 
 Cochran v. Melendy, 128, 607 
 Cock V. Rief, 547 
 Cock V. Weatherby, I4g, 523, 610 
 Cockaine v. Hopkins, 225 
 Cockaine v. Witnam, 175 
 Cockayne v. Hodgkisson, 203, 299, 398 
 Cocking V. Curtis, 589 
 Coe V. Chambers, 115 
 Coffin V. Coffin, 326, 525, 555 
 Coghill V. Chandler, 609, 611 
 Cohen v. Huskisson, 702 
 Cohen v. Morgan, 331, 706 
 Colabyn v. Viner, 190 
 Colbert v. Caldwell, 545 
 Colburn v. Patmore, 536 
 Colbum V. Whiting, 457 
 Colby V Reynolds, 165, 203, 207 
 Cole V. Babcock, 558 
 Cole V. Curtis, 718 
 Cole V. Fisher, i 
 Cole V. Grant, 188 
 Cole V. Perry, 524, 672 
 Cole V. Wilson, 399 
 Cole V. Woodson, 591 
 Coleman's Case, 683 
 
 Coleman v. Alien, 725, 733, 739, 740 
 Coleman v. Harcourt, 266, 533 
 Coleman v. Playsted, 149, 151, 182, 648 
 Coleman v. Southwick, 524, 544, 685 
 Coleman v. West Hartlepool Railway 
 
 Co. 361 
 Coles w. Haviland, 123 
 Collier v. Bourn, 177 
 Collins V. Carnegie, 251, 612 
 Collins V. Cave, 272, 331 
 Collins V. Love, 706 
 Collins V. Matthews, 266 
 Collins V. Middle Level Com'rs, 97 
 Collins V. Shannon, 700 
 Collins V. Welch, 57 
 Collins V. Whitehead, 285, 289 
 Collins V. Yates, 484, 486, 635 
 Collis V. Malin, 235, 236, 547 
 Colman v. Goodwin, 118 
 Colome's Case, 185 
 Colson V. Radcliffe, 733 
 Colton V. James, 700 
 Colyer v. Colyer, 171, 182 
 Commons v. Walters, 184, 615, 665, 678 
 Commonwealth w. Abbott. 510 
 Commonwealth, v. Anthes, 510 
 Commonwealth v. Barney, 613 
 Commonwealth v. Batchelder, 18 
 Commonwealth v. Beamish, 466 
 Commonwealth v. Blanding. 92 326, 634 
 Commonwealth v. Buckingham, 116, 680 
 Commonwealth v. Chambers, 204 
 Commonwealth v. Child, lig 
 Commonwealth v. Clapp, 18, 73, 439 
 Commonwealth v. Damon, 661, 677 
 Commonwealth v. Featherstone, 412 
 Commonwealth v. Godshalk, 345 
 Commonwealth v. Guild, 639 
 Commonwealth v. Holmes, 562 
 Commonwealth v. Kneeland, 106, ng, 
 
 129 
 Commonwealth v. Morgan, 105, 502, 634, 
 
 641, 642 
 Commonwealth v. Odell, 437 
 Commonwealth v. Porter, 510 
 Commonwealth v. Presby, 29 
 Commonwealths. Runnels, 118, 120 
 Commonwealth v. Sharpless, 563 
 Commonwealth v. Snelling, 67, 73, 576, 
 
 579 
 Commonwealth v. Stacey, 418 
 Commonwealth v. Tarbox, 562 
 Commonwealth v. Varney, 613 
 Commonwealth v. Wardwell, 237, 436 
 Commonwealth v. Willard, 448 
 Commonwealth v. Winchell, 466 
 Commonwealth v. Wright, 203, 258, 559, 
 
 560, 561 
 Comslock V. Dodge, 531 
 Comtement v. Cropper, 718 
 Conneck v. Wilson, 146, 183, 398, 539 
 Connelly v. McDermolt, 709 
 Connors v. Justice, 250, 265 
 
Ixiv 
 
 TABLE OF CASES. 
 
 Conro V. Port Henry Iron Co. 469 
 
 Conroe v. Conroe, 623, 670, 673 
 
 Cooban v. Holt, 322 
 
 Cook V. Baikley, 74, 304, 678, 682 
 
 Cook V. Batchellor, 229, 534 
 
 Cook V. Bostwick, 184, 185 
 
 Cook V. Cook, 267, 340, 525, 582 
 
 Cook V. Cox, 522, 560, 561 
 
 Cook V. Ellis, 521, 687 
 
 Cook V. Field, 308, 580. 592, 650 
 
 Cook V. Hill, 297, 376, 378, 386, 417, 524 
 
 Cook V. Rief, 194 
 
 Cook V. Stokes. 617 
 
 Cook V. The People, 662 
 
 Cook V. Tribune Association, 114, 127, 
 320, 499, 593 
 
 Cook V. Ward, 306, 636 
 
 Cook w. Wingfield, 190, 620 
 
 Cooke V. Bangs, 347 
 
 Cooke V. Hughes, 127, 499, 500, 564, 631 
 
 Cooke V. Maxwell, 632 
 
 Cooke V. O'Brien, 676 
 
 Cooke V, Smith, 619 
 
 Cooke V. Wildes, 411, 514, 658 
 
 Coombs V. Rose, 146, 147, 369 
 
 Coons V. Robinson, 186 
 
 Cooper V. Barber, 312, 674, 676 
 
 Cooper V. Bissell, 522 
 
 Cooper V. Greeley, 18, 24, 127, 145, 204, 
 
 321, 506, 579, 589, 595 
 Cooper V. Hawkeswell, 183 
 Coopers. Lawson, 154, 155, 320, 321,461, 
 
 463, 507, 589 
 Cooper j;. Marlow, 611 
 Cooper V. Perry, 122 
 Cooper w. Smith, 144, 179 
 Cooper ». Stone, 203, 204, 208, 212, 452, 
 
 453.455, 457 
 Cooper w. The Butcher of Croydon, 497 
 Cooper V. Weed, 482 
 Cooper w. Witham, 2 
 Cooper V. Young, 659 
 Coote V. Gilbert, 131, 149 
 Cope V. Rowland, 226 
 Coppers V. N. Y. C. R. R., 524 
 Corbett v. De Comeau, 483, 485, 635 
 Corbett v. Gibson, 484 
 Corbett v. Jackson, 377 
 Corbett v. 23d St. E. R. Co. 531 
 Corbin v. Knapp, 585 
 Corbley v. Wilson, 660 
 Corcoran v. Corcoran, 197, 270 
 Core V. Morton, 187 
 
 Cornelius v. Van Slyck, 119, 137, 145, 150 
 Cornell v. Day, 655 
 Comer v. Shew, 522 
 Corning w. Corning, 521 
 Cornwall v. Gould, 522 
 Cornwall v. Richardson, 646 
 Cortland Co. v. Herkimer Co. 662 
 Cory V. Bond, 602 
 
 Cosgrave v. The Trade Auxiliaiy Co. 
 351, 514 
 
 Ccssham v. Leach, 483 
 
 Cotes V. Ketle, 238 
 
 Cotton V. Beaty, 449 
 
 Cotton V. Brown, 739 
 
 Cottrell V. Jones, 495, 519 
 
 Cousins V. Merrill, 292, 5S3 
 
 Coventry v. Barton, 536 
 
 Cowan V. Milboum, 226 
 
 Coward v. Wellington, 390, 533 
 
 Cowdry v. Coit, 662 
 
 Cowell V. Day, 521, 661, 677 
 
 Cowles V. Potts, 439 
 
 Cowley V. Pulsifer, 359 
 
 Cox V. Bunker, 190 
 
 Cox V. Coleridge, 360 
 
 Cox ». Cooper, 135, 216, 540 
 
 Cox V. Feeney, 366, 461 
 
 Cox V. Humphries, 193 
 
 Cox V. Lee, 204, 220, 510, 522 
 
 Cox V. N. Y. Cent. R. R. 531 
 
 Cox V. Smith, 332 
 
 Cox V. Thomason, 543, 614 
 
 Cox %/. Thompson, 614 
 
 Coxhead v. Richards, 74, 298, 408, 426 
 
 Cracraft v. Cochran, S84 
 
 Craft V. Boite, 482 
 
 Craig V. Brown, 173, 259 
 
 Craig V. Catlet, 686 
 
 Ciaig V. Hasell, 701 
 
 Grain v. Petrie, 274 
 
 Cramer v. Noonan, 143, 207, 212, 52'l, 
 
 565 
 Cramer v. Riggs, 236 
 Crampton o. Swete & Main, 292 
 Cranage v. Price, 584 
 Crandon v. Walden, 253 
 Crane v. Boston Advertiser Co. 451 
 Crane v. Douglass, 305 
 Crane v. O'Reilly, 115, 546, 553 
 Crane v. Waters, 271, 667 
 Crawfoot v. Dale, 234 
 Crawford v. Melton, 185 
 Crawford v. Middleton, 303 
 Crawford v. Milton, 589 
 Crawford v. Ryan, 706, 731 
 Crawford v. Wilson, I63, 165, 184 
 Crawford, Re, 363 
 Crean v. Gamble, 293 
 Creebnan v. Morley, 371 
 Creek v. Newlands, 298 
 Creelman v. Marks, 178, 195, 321, 611 
 Creemer v. Benton, 78 
 Creevy v. Carr, 325, 686 
 Cregier v. Bunton, 504 
 Creighton v. Finlay, 325, 686 
 Crescent Live Stock Co. v. Butcher's 
 
 Union, 66, 332. 703, 710, 719, 724 
 Cressmger v. Reed, 85, 130 
 Crisp V. Gill, 415 
 Cristie v. Cowell, 121, 122, 151 
 Crocker v. Hudly, 205 
 Crofoot V. Allen, 374 
 Croft V. Richardson, 691 
 
TABLE OF CASES. 
 
 Ixv 
 
 Croft V. Stevens, 346 
 
 Crofts V. Brown, 131, 172 
 
 Croke v. O'Giady, 633 
 
 Crone v. Angell, 186 
 
 Crook V. Averin, 131 
 
 Crookshank v. Gray, 186, 188, 542 
 
 Cropp V. Tilney, 304 
 
 Crosby v. Cobb, 647 
 
 Croskeys v. O'Driscoll, igS 
 
 Crosley v. Cobb, 652 
 
 Crosswell v. Weed, 579 
 
 Crotty V. McMahon, 457, 612 
 
 Grotty V. Morrissey, 612 
 
 Crow, Ex parte, 360 
 
 Crowe V. Barnicot, 608 
 
 Crozier v. The People, 25 
 
 Cruger v. Hudson River R. R. Co. 132 
 
 Cruikshanks v. Gordon, 232, 639, 655, 
 
 657, 659 
 Crump V. Adney, 312 
 Cuddington v. Wilkins, 168 
 Culbertson v. Stanley, 610 
 Culver V. Van Anden, 563 
 Cummerford v. McAvory, 305 
 Cummin v. Smith, 184 
 Cummings v. Bird, 530 
 Cummins v. Butler, 558 
 Cunard v. Francklyn, 489 
 Cundell v. Dawson, 226 
 Cunningham v. Brown, 340 
 Curl's Case, 13 
 Curry v. Collins, 120, 196 
 Curry v. Walter, 353, 364, 633 
 Curtis V. Curtis, 82, 151, 154, 174, 195, 
 
 486 
 Curtis V. Lawrence, 521 
 Curtis V. Mussey, 105, 302, 439, 647 
 Curtis V. Perkins, 312, 364, 591 
 Curvel V. McLeod, 171 
 Custis V. Sandford, 664 
 Cuthbert v. Galloway, 700, 716, 718 
 Cutler V. Friend, 122 
 
 Da Costa v. Paz, 41 
 
 Dada v. Piper, 332 
 
 Dadd V. Crease, 527 
 
 Dailey v. Reynolds, 190, 191 
 
 Daily v. Gaines, 610 
 
 Daily Telegraph Co. v. Berry, 487 
 
 Dain v. Wyckoff, 49 
 
 Daines v. Hartley, 85, 130, 135, 137, 244, 
 
 504, 641 
 Dale w. Lyon, 95 
 Dalrymple v. Lofton, 168, 185, 187, 550, 
 
 551 
 Dalton V. Higgins, 187, 189 
 Daly V. Byrne, 587, 592, 593, 676 
 Daly V. Van Benthuysen. 157 
 Dame v. Kenney, 302, 646 
 Darner v. The State, 56 
 Damport v. Sympson, 339, 340 
 Danby v. Beardsley, 736 
 
 Dancaster v. Hewson, 333, 374, 615 
 
 Dane v. Kenney, 302, 646 
 
 Daniel v. Daniel, 495 
 
 Daniels v. Fieldmg, 700 
 
 Dann v. Crease, 527 
 
 Darby v. Ouseley, 295, 324, 499, 500, 510, 
 
 511, 513 
 Darcy v. Markham, 81 
 Darling v. Banks, 188 
 Darry v. The People, 66, 68 
 Dauphin v. Times Pub. Co. 226, 227 
 Davey v. Pemberton, 495 
 Davidson v, Isham, I 
 Davidson v. New Orleans, 17 
 Davidson v. Smyth, 729 
 Davies v. Duncan, 370, 466 
 Davies v. Snead. 374, 391, 422, 424 
 Davies v. Solomon, 191, 265 
 Davies v. Taylor, 202 
 Davis" Case, 184 
 Davis V. Cutbush, 517, 675, 685 
 Davis V. Davis, 226, 245, 524 
 Davis V. Gardiner, 231, 265 
 Davis V. Gray, 634 
 Davis V. Griffith, 684 
 Davis V. Hardy, 726 
 Davis V. Johnson, 180, 504 
 Davis V. Lewis, 242, 243, 303 
 Davis V. McNees, 333 
 Davis V. Matthews, 589 
 Davis V. Miller, 199, 245 
 Davis V. Noake, 174, 561, 616, 736, 738 
 Davis V. Ockham, 180, 442 
 Davis V. Reeves, 395, 408 
 Davis V. Ruff, 230, 238 
 Davis V. Scott, 481 
 Davis V. Shepstone, 302, 437 
 Davis V. Sherron, 615, 617 
 Davis V. Stewart, 323 
 Davis V. Weltner, 211 
 Davison v. Duncan, 328, 369, 370, 372, 
 
 447 
 Davison v. Smyth, 729 
 Davy V. Pemberton, 495 
 Daw V. Ely, 360, 363 
 Dawes V. Bolton, 193 
 Dawkins v. Lord Paulet, 350 
 Dawkins v. Prince Edward, &c. 528 
 Dawkins v. Rokeby, 339, 632 
 Dawling v. Venman, 332, 337 
 Dawling v. Wenman. 332 
 Dawson v. Holt, 275 
 Dawson v. Van Sandau, 717 
 Day V. Bream, 83, 102 
 Day V. Buller, 250, 252 
 Day V. Homer, 561 
 
 Day w. Robinson, 120, 148, 522, 573, 575 
 Day V. Tuckett, 489 
 Dayton v. Rockwell, 188, 189 
 Dayton v. Wilkes, 106 
 Dean v. Miller, 146 
 De Armond v. Armstrong, 130 
 Dearmond v, St. Amant, 729 
 
Ixvi 
 
 TABLE OF CASES. 
 
 De Bode v. Regina, 91 
 
 De Bourne, Johannes, v. De Potsgrove, 
 
 Ricardus, 359 
 Deboux V. Lehind, 562 
 Decker v. Gaylord, 297, 398, 659 
 De Costa v. Jones, 497 
 Decow V. Tait, 198 
 De Crespigny v. Wellesly, 306 
 Dedway v. Powell, 343, 639 
 Delord v. Miller, 165 
 Defries v. Davies, 441 
 Defries v. Davis, 441, 481, 482, 654 
 De Gaillon v. S. Aigle, 496 
 De Hart ii. Hatch, 481 
 Delacroix v. Thevenot, 83 
 Delamater v. Russell, 32 
 Delany v. Jones, 214, 391 
 De La Poll's Case, 702 
 Delaware v. Pawlet, 256 
 Delegal v. Highley, 291, 356, 583, 653, 
 
 719, 739 
 De Lettre v. Kilner, 637 
 Dellevene v. Percer, 119 
 De Linancour v. Societi Prevoyance, 627 
 Demarest v. Haring, 118, 129, 131, 163, 
 
 164, 165, 254, 640 
 De Medina v. Grove, 75, 700, 702 
 De Mestre v. Syme, 457, 463, 514 
 De Moss V. Haycock, 129 
 Dempewolf v. Hills, 490, 492 
 Dempsey v. State, 708 
 Dengate v. Gardiner, 271, 532 
 Denis v. Thioret, 161 
 Dennis v. Ryan, 706, 709, 722 
 Derry v. Handley, 94, 276 
 De Senancour v. Soc. La Prevoyance, 
 
 476 
 Desmond v. Brown, 89, 609 
 Detroit Daily Press Co. v. McArthur, 517 
 Dewe V. Waterbury, 423 
 De Witt V. Buchanan, 91 
 De Witt V. Greenfield, 669, 670 
 De Witt V. Wright, 149 
 Dexter v. Spear, 18, 67, 79, 95, 647 
 Dexter v. Taber, 149, 503, 504 
 Deyo V. Brundage, 564 
 Dial.!'. Holter, 164, 369 
 Dias V. Short, 118, 193, 541 
 Dibdin v. Swan, 267, 455 
 Dicken v. Sheperd, 94, 235, 275 
 Dickerson v. Fletcher, 347 
 Dickeson v. Hilliard. 385 
 Dickey v. Andros, 175, 616 
 Dickinson v. Barber, 440 
 Dickinson v. Mayor of N. Y. 51 
 Dicks V. Brooks, 292, 528, 694 
 Dickson v. Earl Wilton, 381, 515 
 Dickson v. Phillips, 173, 262 
 Didway v. Powell, 343, 639 
 Diemer v. Herber, 710 
 Digby V. Thompson, 137, 203, 214, 567 
 Dillard v. Collins, 315, 558 
 Dillaye v. Hart, 495 
 
 Dillon V. Anderson, 661, 728 
 
 Dillon V. Balfour, 326, 328 
 
 Dioyt V. Tanner, 583 
 
 Distin V. Rose, 655, 659 
 
 Ditchburn v. Goldsmith, 497 
 
 Dixon V. Allen, 241, 652 
 
 Dixon V. Enoch, 485 
 
 Dixon V. Holden, 46, 689, 6go 
 
 Dixon V. Parsons, 430 
 
 Dixon V. Smith, 94, 267, 274 
 
 Dixon V. Stewart, 125 
 
 Dobson V. Thornistone, 226, 242, 243 
 
 Dod V. Robinson, 236, 253, 254, 547 
 
 Dodds V. Henry, 195, 258, 372 
 
 Dodge V. Bradstreet Co. 470 
 
 Dodge V. Colby, 280, 289, 290, 583, 585, 
 
 607 
 Dodge V. Lacey, 140, 143, 565, 575 
 Doe V. Brayne, 498 
 Doe V. Doe, 659 
 Doe V. Earnhart, 55 
 Doherty v. Brown, 620 
 Dole V. Lyon, 305, 306, 651 
 Dole V. Van Rensselaer, 257 
 Dolevin v. Wilder, 604, 605, 664, 676, 
 
 681, 682 
 DoUoway v- Turrill, 7, 69, 132, 134, 256, 
 
 307, 510 
 Dominion Tel. Co. v. Silver, 82 
 Donage w. Rankin, 555 
 Donaghue v. Gaffey, gg, 206, 229, 509, 
 
 520, 527, 591, 607 
 Donaghue v. Hervey, 380 
 Donnelly v. Burkett, 712, 718 
 Donnelly v. Daggett, 718 
 Donnelly v. Swain, 675 
 Donne's Case, 174 
 Donoghue v. Hayes, 440, 502 
 Dooling V. Budget Pub. Co. 294 
 Dorland v. Patterson, 118, 121, I2g 
 Dorrel v. Jay, 539 
 Dorrell t. Grove, 177 
 Dorset v. Adams, 550 
 Dorsey v. Whipps, 170, 193, 538, 53g, 565, 
 
 606 
 Doss V. Jones, 590, 625, 659 
 Dottarer v. Bushey, 114, 151, 164, 180, 
 
 181, 507, 567 
 Dotter V. Ford, 235 
 Doty w. Wilson, 536 
 Douge V. Pearce, 307, 629 
 Douglas V. Corbett, 721 
 Douglass V. Tousey, 25, 524, 66g, 673 
 Dowd v. Winter-, 614 
 Dowling V. Brown, 531 
 Downey v. Dillon, 146, 184, 660 
 Downing v, Bulcher, 717 
 Downing v. Marshall, 334 
 Downing v. Wilson, 192 
 Downs V. Hawley, 315 
 Doyle V. O'Doherty, 337 
 Doyley v. Roberts, 205, 237, 238, 239, 643 
 Drake v. Beckham, 531 
 
TABLE OF CASES. 
 
 Ixvii 
 
 Drake v. Drake, 253 
 
 Dri^s V. Burton, 708 
 
 Drown v. Allen, 669 
 
 Drummond v. Leslie, 118 
 
 Drummond v. Pigou, 700, 739 
 
 Dry den v. Dry den, 522 
 
 Dubois V. Keats. 736 
 
 Du Host V. Beresford, 3, n6, 118, 688, 
 
 694 
 Duckett V. Satchwell, 530 
 Dudley v. Briggs, 269 
 Dudley V. Horn, 165, 198 
 Dudley v. Press Pub. Co. 4S5 
 Dudley v. Robinson, 151, 179, iSo 
 Dudley v. Van Horn, 165 
 Duel V. Agan, 555 
 DufiBeld V. Linseed Cake Co. 694 
 Duffy V. The People, 510 
 Dufresne v. Weise, 170, 611 
 Dukes V. Jostling, 543 
 Dukes V. Clark, 171, 195 
 Dumont v. Smith, 64 
 Duncan v. Brown, 117, 131, 173, 324, 512, 
 
 516, 682 
 Duncan v. Little, 55 
 Duncan v. Thwaites, 75, 364 
 Dunckle v. Wiles, 156 
 Duncombe v. Daniell, 438, 498 
 Dunham v. Powers, 34S 
 Dunlap V. Glidden, 340 
 Dunman v. Bigg, 403 
 Dunn V. Hall, 105 
 Dunn V. Winters, 203, 346, 665 
 Dunne v. Anderson, 458 
 DunneU v. Fiske, 149, 507 
 Durant v. Duraui, 3 
 Durham v. Muss Iman, 59 
 Durrah v. Stillwell, 545 
 Dutton V. Eaton, 200, 201 
 Duvall V. GriflSih, 654 
 Dwinells v. Aiken, 665, 666 
 Dwyer v. Fireman's Journal Co. 145, 151 
 Dwyer v. Macartney, 579 
 Dwyer v. Meehan, 270 
 Dyer v. Morris, 120, 192 
 Dymmockz/. Fawset, 123 
 
 Eade v. Jacobs, 486, 492 
 
 Eagan v. Gantt, 307 
 
 Eagar v. Dyott, 736 
 
 Eagleton v. Dutchess of Kingston, 334 
 
 Eakins v. Evans. 526 
 
 Eames v. Whitaker, 374 
 
 Earl V. Vass. 632 
 
 Early v. Smith, 490 
 
 Easley v. Moss, 413. 611 
 
 East V. Chapman, 366, 664 
 
 Eastern Counties Railway v. Brown, 470 
 
 Easterwood v. Quinn, 305, 685 
 
 Eastland v. Caldwell, 168, 315, 669 
 
 Eastmead v. Witt, 431 
 
 Eastwood V. Holmes, 116, 461, 642, 643 
 
 Eaton V. Allen, 173, 175, 198 
 
 Eaton V. Avery, 417 
 
 Eaton V. Johns, 155, 575, 607 
 
 Ebersoll v. Krug, 532, 533 
 
 Eccles V. Shannon, 184 
 
 Echlin V. Singleton, 590 
 
 Eckart v. Wilson, 123, 144, 545 
 
 Edden v. Thorniloe, 717 
 
 Eddowes v. Hopkins, 522 
 
 Edds V. Waters, 607 
 
 Ede v. Scott, 313, 596 
 
 Eden V. Legare. 123. 198 
 
 Edgall w. Fiancis, 717 
 
 Edgar v. McCutchen, 120 
 
 Edgar v. Newell, 525, 670 
 
 Edgerley v. Swain, 133, 165, 170, 538, 
 
 564. 617 
 Edgworth v. Carson, 717, 731 
 Edmonds v. Walter, 594 
 Edmonson v. Stephenson, 428 
 Edmunds v. Greenwood, 486 
 Edsall V. Brooks, 116, 120, 209, 257, 351, 
 
 358, C02, 658 
 Edsall V. Russell, 133, 134, 144, 166, 180, 
 
 240 251, 324, 589 
 Edwards v. Bell, 156, 255, 320, 321, 589 
 Edwards v. Burris, 283 
 Edwards' Case, 46 
 Edwards v, Chandler, 639, 648 
 Edwards v. Howell, 235 
 Edwards v. Kansas City Times, 314, 318^ 
 
 447, 675. 677. 680 
 Edwards v. Knapp, 594, 666 
 Edwards v. Lowther, 535 
 Edwards v. Midland R'way Co. 737 
 Edwards v. Reynolds, 522 
 Edwards v. Times Co. 307 
 Edwards v. Wooton, 83 
 Egerton v. Furzeman, 497 
 Eiffe V. Jacob. 442 
 Eislie V. Walther, 375 
 Elam V. Badger, 120, 560 
 Eldred v. Fawdrey, 701 
 Eldridge v. Bell, 534 
 Elliott V. Ailsberry, 164, 189 
 Elliott V. Boyles, 653, 675 
 Elliott V. Brown, 518 
 Ellis V. Abrahams, 716 
 Ellis V. Buzzell, 666 
 Ellis V. Kimball, 115, 563 
 Ellis V. Lindley, 655, 665 
 Ellis V. The People, 64 
 Else V. Ferris, 242, 243, 307, 674, 8 
 Elsee V. Smith, 701, 705. 706 
 Elsworth V. Hays, 389, 503, 640, 641 
 Emerson v. Cochran, 715, 732 
 Emery, v. Mdler. I2i, 620 
 Emery v. Prescott, 566, 575 
 Emington v. Gardiner, 533 
 Emmens v. Potile, 108 
 Emmerson v Marvel, 123, 161, 482, 5561 
 Empson v. Fairfax, 527 
 
Ixviii 
 
 TABLE OF CASES. 
 
 Empson v. Fairford, 507, 511 
 
 Empson v. Griffin, 522 
 
 England v. Burke, 592 
 
 Engurst w. Browne, 2;) 8 
 
 Ensor v, Bolgiano, 285 
 
 Entick V. Carrington. 347 
 
 Erber v. Dun, 242, 396, 647, 244, 245, 
 
 495, 417, 516, 520, 521 
 Erwin v. Sumrow, 647, 648 
 Estes V. Antrobns, 647 
 Estes V. Carter, 171 
 Estopinal v. Peroux, 330 
 Eure V. Odom, 171 
 Evans v. Franklin, 594 
 Evans v. Fraser, 377 
 Evans v. Gwyn, igi 
 Evans v. Harlovir, 112, 282 
 Evans v. Harris, 266, 519, 581 
 Evans v. Smith, 301, 686 
 Evans v. Tibbins, 144 
 Evarts v. Smith, 188, 610 
 Evening Journal Asso. v. McDermott, 
 
 654 
 Evening News Asso. v. Tryon, 582, 675 
 Everts v. Kiehl, 348 
 Eviston V. Cramer, 208, 521 
 Ewing V. Cullen, 532 
 Express Printing Co. v. Copeland, 436 
 
 Fagan v. Knox, 714, 721, 723, 724, 729, 
 
 730 
 Fagnan v. Knox, 714, 721, 723, 724, 
 
 730 
 Fahr v, Hayes, 297, 324, 375, 391, 421 
 
 423, 654 
 Fairchild v. Adams, 368 
 Fairman v. Ives, 309, 378, 382, 385, 648 
 Faith V. Carpenter, 530 
 Falkner w. Cooper, 115, tgo 
 Fallenstein v. Boothe, 117, 131 
 Falvey v. Stanford, 525 
 Fanning w. Osborne, 471 
 Faris v. Starke, 410 
 Farley v. Danks, 700 
 Farley v. Ranck, 647, 649 
 Farmer v. Darling, 730 
 Farmers' Bank v. Butchers' Bank, 104 
 Farnham v. Feeley, 702, 709, 722 
 Farnswrorth v. Storrs, 138, 196, 367, 369 
 Farr v. Rascoe, 305, 324 
 Faucett v. Booth, 659 
 Faulkner v. Wilcox, 524 
 Fawcett v. Booth, 384 
 Fawcett v. Charles, 350, 372 
 Fawcett v. Clark, 641 
 Fay V. O'Neill, 708 
 Feise v. Linder, 582 
 Felkin v. Ld. Herbert, 360, 361, 462 
 Fellennan v. Dolan, 608 
 Fellowes v. Hunter, 152, 238, 593, 602 
 F^ltonv. U. S. 319 
 
 Feray v. Foote, 157 
 
 Ferdon v. Cunningham, 226 
 
 Fero V. Ruscoe, 311, 312, 323, 424, 659, 
 
 674 
 Ferry v. Breed, 655 
 Fetter v. Beal, 442 
 Fidler v. Delavan, 127, 230, 312, 313, 321, 
 
 323. 535, 589, 593 
 Fiedler w. Darrin, 662 
 Figgins V. Cogswell, 548 
 Filberw. Dauterman, 151, 192 
 Finch V. Gridley, 226 
 Finch V. Vifquain, 18, 197 
 Finden v. Wesilake, 391, 412 
 Findlay v. Bear, 149 
 Fink V. Justh, 587 
 Finlay w. Lindsay, 48B 
 Finley v. Chirney, 531 
 Finn v. Hunter. 389 
 Finnerty v. Barker, 559 
 Finnerty v. Tipper, 638 
 Finney v. Smith, 520 
 First Baptist Church v. Brooklyn Fire 
 
 Ins. Co. 469 
 First Baptist Church in Schen. v. Sohen. 
 
 & Troy R. R. Co. I, 470 
 Fish V. Dodge, I 
 Fish V. Scott, 729 
 Fisher v. ApoUinaris Co. 693 
 Fisher v, Atkinson, 174 
 Fisher v. Bristow, 707, 738 
 Fisher v. Clement, 527 
 Fisher v. Forrester, 718, 719 
 Fisher v. Patterson, 685 
 Fisher v. Ronalds, 487 
 Fisher v. Rotereau, 151, 180, 682 
 Fisher v. Tice, 668 
 Fisk V. Chester. 64 
 Filch V. De Young, 208 
 Fitch V. Lemmon. 319, 540, 595 
 Fittler v. Veal, 271 
 Fitzgerald v. Ferguson, 501 
 Fitzgerald v. Quann, 99, 536 
 Fitzgerald v. Redfield. 253 
 Fitzgerald v. Robinson, 199 
 Fitzgerald v. Stewar , 664, 671 
 Fitzgibbon v. Greer, 634 
 Fitzjohn v. Mackinder, 736 
 Fitzsimmons v. Byrne, 333 
 Fitzsimmons v. Cutter, 566 
 Flagg V. Roberts, 682 
 Flamingham v. Boucher, 654 
 Flanders v. GrofF, 655 
 Fleetwood v. Curley, 84, 85, 577, 641 
 Fleischman v. Bennett, 544, 555, 584, 
 , 585. 607 
 Fleming v. Albeck, 139, 516, 564, 582, 
 
 584 
 Fleming v. Jales, 182 
 Fleming v. Newton, 366, 688 
 Flemington v. Smithers, 39 
 Fletcher v. Braddyll, 628 
 Fletcher v. Burroughs, 678 
 
TABLE OF CASES. 
 
 Ixix 
 
 Flint V. Clark, 519, 670 
 
 Flint V. Hutchinson Smoke-Burning Co. 
 
 691 
 Flint V. Pike, 345, 353, 354. 356, 357, 
 
 359 595 
 Fliti craft v. JenVs, 646 
 Flower's Case, 251 
 Flower v. Pedley, 611 
 Floyd V. Jones, 174 
 Folger V. Hoogland, 363 
 Folsom V. Brown, 589, 665 
 Fonville v. McNease, 12, 83, 87 
 Foot V. Brown, 245 
 Foot V. Tracy, 669, 678 
 Foote V. Milbier, 709, 728 
 Foote V. Rowley, 617, 744 
 Forbes v. Gregory, 527 
 Forbes v. Johnson, 115, 333 
 Forbes v. King, 120, 123, 134, 136, 203, 
 
 219 
 Forbes v. Myers, 650 
 Forbes v. WaUer, 64 
 Force v. Warren, 83, 420 
 F»rd V. Bennett, 560 
 Ford V. Johnson, 196 
 Ford V. Primrose, 137, 144 
 Fores v. Johns, 534 
 Forrest v. Hanson, 120, 197, 246, 666 
 Forsdike v. Stone, 525, 528 
 Forshee v. Abrams, 665, 685, 687 
 Forster v. Lawson, 229, 230, 244 
 Forsyth v. Edmiston, 99, 561 
 Forward v. Adams, 235, 236 
 Foshay v. Ferguson, 714, 719, 729, 733 
 Foss V. Hildreth, 59 
 Fosier v. Browning, 132, 151 
 Foster v. Cronkhite, 64 
 Foster v. Lawson, 534 
 Foster v. Orr, 738 
 Fosier v. Pointer, 527, 623, 624 
 Foster v. Scripps, 252 
 Foster i'. Small, 122, 240, 621 
 Fonlger v. Newcomb, 46, 50, 224, 264, 
 
 539. 580 
 Fountain v. Boodle, 434, 647, 649 
 Fountain v. West, 498, 665, 671. 676 
 Foval V. Hallett, 121, 504, 641, 642 
 Fowle V. Kobbins, 187. 
 Fowler v. Chichester, 305, 535 
 Fowler v. Dowdney, i6g 
 Fowler i. Hoffman, 30, 480 
 Fowler v. Homer, 422 
 Fowler v. Lindsay, 30 
 Fowles V. Bowen, 94, 209, 232, 238, 245, 
 
 248, 276, 277, 427, 433, 648 
 Fox V. Broderick. 87, 587 
 Fox V. Vanderbeck, 610 
 Fox V. Wilson. 610 
 Fradley v. Fradley, 587, 643, 665 
 Frame v. Sewing Mach. Co. 700 
 Francis v. Flinn, 689 
 Francis v. Roose, 137, 174, 569 
 Frank n. Dunning, 177, 566 
 
 Franklin's Appeal, 535 
 
 Fraser v. Berkeley, 455, 684 
 
 Fray v. Blackburn, 347 
 
 Fray v. Fray, 216, 5o3, 509 
 
 Frazier v. McCloskey, 500, 650, 651, 655 
 
 Frean v. Sergent, 497 
 
 Frederitze v. Odenwalder, 315, 591 
 
 Freeborn v. Singer Sewing Mrchine Co. 
 
 104, 475 
 Freeman v. Price, igo, 671. 
 Freeman v. Tinsley, 525, 659 
 Freethy v. Freethy, 532 
 French v. Creath, i6g. 
 French v. Millard, 25 
 Frescoe v. May, 95, 443, 687 
 Frierson v. Hewitt, 704 
 Frisbie v. Fowler, 189 
 Frisby v. The State, 620 
 Frost V. Ayer, 178 
 Fry V. Bennett, 69, 73, 75, 226, 227, 236, 
 
 268, 324, 463, 497, 498, 501, 509, 514, 
 
 520, 521, 522, 524, 538, 541, 576, 590,. 
 
 593. 598. 604, 606, 630, 634, 636, 647, 
 
 652, 653, 654, 665, 686 
 Fryer v. Gathercole, 632 
 Fryer v. Kinnersley, 435 
 Fuller V. Cook, 705 
 Fuller V. Dean, 302, 669, 678 
 Fuller V. Fenner, 271, 520 
 Fulton V. Onesti, 725 
 Funk V. Beverly, 138, 192. 306, 596 
 Funk V. Tribune Asso. 486, 663 
 Fysh V. Thorowgood, 315 
 
 Gabe v. McGinness, 186, 203, 579, 647 
 
 Gadsen v. Woodward, 587 
 
 Gage V. Robinson, 323, 324, 548 
 
 Gage V. Shelton, 140, 153, 163, 193, 198, 
 
 574.579- 
 Gainford v. Tuke, 169 
 Gainsford v. Blatchford, 56S 
 Gale V. Bohanan, 731 
 Gale V. Hays, 550 
 Gale V. Leckie, 534 
 Gall V. Fleming, 665 
 Gallager v. Brunei, 281 
 Gallagher v. Stoddard, 708, 709 
 Gallaway v. Burr, 713, 720, 723, 732 
 Galloway z/. Courtney, I2g, i8i, 538, 68j 
 Galloway v. Stewart, 718, 722 
 Gallwey v. Marshall, 171, 222, 228, 233, 
 
 240, 253, 254, 547 
 Gandy v. Humphries, 650 
 Ganea v. Railroad Co. 710, 711, 713 
 Ganet v. Babbitt, 572 
 Gants V. Vinard, 665 
 Gardener v. Knox, 490, 495 
 Gardiner v, Spurdant, 179 
 Gardiner v. Thomas, 92 
 Gardiner v. Williams, 569, 579 
 Gardner v. Dyer, 561 
 Gardner v. Helvis, 207 
 
Ixx 
 
 TABLE OF CASES, 
 
 Gardner v. Slade, 428, 433, 514 
 
 Gardyner v Hopwood, 235 
 
 Garford v. Clerk, 202 
 
 Garland, Ex parte, 168 
 
 Garnett v. Ferrand, 347, 360 
 
 Garr v. Selden, 250, 253, 337, 559 
 
 Garret v. Bradley, 481 
 
 Garret v. Taylor, 3 
 
 Garrett v. Dickerson, 424, 653 
 
 Garrett v. Manheimer, 733 
 
 Garrison v. Pearce, 708, 731 
 
 Garseii v. Jacobsen, 308 
 
 Garvey v. Wayson, 651 
 
 Gascoigne v. Ambler, igo 
 
 Gassett v. Gilbert, 389, 420 
 
 Gates V. Bowker, 137, 225, 613, 633 
 
 Gates w. Meredith, 685 
 
 Gath V. Lubach, 135 
 
 Gathercole v. Mials, 205, 451, 468, 631, 
 
 633, 636 
 Gaudie v. Smith, ig6 
 Gaul V. Fleming, 181 
 Gault V. Babbitt, 541, 592 
 Gautier v. St. Pierre, 344 
 Gauvreau v. Superior Pub. Co. 253 
 Gay V. Homer, 143, 245, 247 
 Gazynski v. Colburn, 533 
 Geare 9. Britton, 579 
 Geary v. Connop, 611 
 Geary 7. Physic, 31 
 Gee w. Culver, 719, 730 
 Gee V. Pritchard, 694 
 Geeve v. Copshil, 257 
 Gelen v. Hall, 347, 351 
 Genenz v. De Forest, 99 
 Genet w. Mitchell, 70, 317, 497, 501, 502, 
 
 508 
 George v. Goddard, 370, 440. 515 
 George v. Lemon, 599 
 Georgia v. Kipford, 197, 565 
 Gerard v. Dickinson, 290 
 Gerard Will Case, 41, 105 
 Getting v. Foss, 417 
 Gfroerer v. Hoffman, 499, 524 
 Gibbons 11. Allison, 700 
 Gibbs V. Ames, 706 
 Gibbs V. Arthur & Burdell, 364 
 Gibbs V. Dewey, 143, 163, 165 
 Gibbs V. Pike, 289 
 Gibbs V. Tucker, 186 
 Gibhardt v. England, 106 
 Gibson v. Gibson, 161, 531, 532 
 Gibson v. Veasey, 700 
 Gibson v. Williams, 85, 116, 130, 132, 
 
 503, 640 
 Giddens v. Mirk, 139, 140, 163 
 Gidney v. Blake, 115, 553, 576 
 Gidney v. Johnson, 129 
 Gierhorn v. Ludlow, 720 
 Gilberd v. Rodd, 147 
 Gilbert v. Burtenshaw, 524 
 Gilbert v. Chrystal Fountain Lodge, 94, 
 
 99, 474, 529 
 
 Gilbert v. Emmons, 708 
 
 Gilbert v. Rounds, 496 
 
 Gilbert v. Sheldon, 25 
 
 Gilbert v. The People, 333 
 
 Gilbertson v. Fuller, 718, 725 
 
 Gilden v. O'Brien, 337 
 
 Gilding V. Eyre, 700 
 
 Giles V. The State, 96, 108, 207, 557, 579, 
 
 627 
 Gill V. Bright, 181 
 Gillespie V. Hudson, 707 
 Gillett V. Mason, 149 
 Gillett V. BuUivant, 268, 276 
 (iillett V. Mo. Valley R. R. Co. 470 
 Gillis V. McDonald, 401 
 Oilman v. Lowell, 196, 305, 664, 669, 674, 
 
 676, 679 
 Gilmer v. Eubank, 324, 647 
 Gilmore v. Borders, 660 
 Gilpin V. Fowler, 299, 415, 515, 658 
 Gilreath v. Allen, 521 
 Girard Will Case, 41, 105 
 Giraud v. Beach, 115, 472, 488 
 Given v. Webb, 738 
 Glasgow V. Owen, 707, 712, 718, 732 
 Glass V. Stewart, 535 
 Glen V. Hall, 701 
 Glen V. Hodges, 92 
 Glenny v. Siedwell, 485, 489 
 Glines v. Smith, 193 
 Goddard 11. Smith, 707 
 Godfrey v. More, 179 
 Godfrey v. Owen, 249 
 Godshalk v. Metzar, 359 
 Godson V. Home, 509 
 Goff V. Gt. North. R'way Co. 737 
 Goffin V. Donnelly, 338, 339 
 Goft V. Star Print Co. 587 " 
 Golderman v. Si earns, 200, 307 
 Goldsmith v. Glalz, 223. 491 
 Goldstein v. Foss, 136, 229, 576 
 Gompertz v. Levy, 565, 570, 573 
 Good V. French, 713, 725 
 Goodale v. Castle, 178 
 Goodall V. Ensall, 527 
 Goodbread v- Leadbitter, 687 
 Goodburne v. Bowman, 317 
 Goodenow v. Tappan, 348 
 Goodman v. Robb, 589, 590 
 Goodman v. Stroheim, 709. 728 
 Goodrich v. Davis, 137, 500, 510, 512, 
 
 539. 631 
 Goodrich ». Hooper, 260 
 Goodrich «. Stone, 116, 658 
 Goodrich t. Warner,. 89, 613, 709 
 Goodrich ». Woolcot, 137, 171, 502, 567, 
 
 640 
 Goodspeed v. East Haddam Bank, 470 
 Goodwin «. Daniels, 663 
 Goodyear Dental Co. ■». White, 664 
 Gordon's Case, 236 
 Gordon «. McGlbbon, 283, 580 
 Gordon n. Spencer, 96 
 
TABLE OF CASES. 
 
 IXXl 
 
 Gordon ». Upham, 714, 722. 725 
 
 Gore V. Gibson, 441 
 
 Gorham v. Ives, 143, 175,4176, 502 
 
 Gorman v. Sutton, 659, 665 
 
 Gorton v. De Angelis, 707, 708, 715, 735 
 
 Gorton v. Keeler, 184, 323, 605, 676 
 
 Gosden v. Elfick, 735 
 
 Goslin V. Corry, 519, 656 
 
 Goslin V. Wilcock, 700, 737 
 
 Gosling V. Morgan, 133, 164, 522, 538, 
 
 565 
 Gosslin v. Cannon, 332, 340 
 Goslling v. Brooks, 40, 244, 503, 506, 526 
 Golt V. Pulsifer, 285, 452, 455 
 Gottbehuet v. Hubachek, 199 
 Gough v. Goldsmith, 274 
 Goulard v. Lindsay, 692 
 Gould V. Glass, 132 
 Gould v. Hulme, 334 
 Gould V. Oliver, 522 
 Gould V. Sherman, 709 
 Gould V. Weed, 501, 683, 684, 687 
 Goulding V. Herring, 2S8 
 Gouraud v. Fitzgerald, 490, 491 
 Gourley v. PlimsoU, 494, 594, 635 
 Gove V. Blethan, 238 
 Gower v. Heath, 525 
 Grace v. Brink, 186 
 Graff V. Evans, 104 
 Graham v. Jones, 604 
 Graham v WoodJhull, 623 
 Granger v. Hill, 331 
 Grant v. Astle, 522 
 Grant v. Hover, 667, 674 
 Grant v. Mosely, 104 
 Grater ». CoUard, 518 
 Grau V. Morgan, 700 
 Grave's Case. 183 
 Giraves v. Blanchet, 190 
 Graves v. Waller, 505, 522 
 Gray v. Nellis, 558 
 Gray v. Pentland, 350, 377 
 Gray v. Wayle, 183 
 Gray v. West, 528 
 Grayson v. Meredith, 497 
 Green v. Button, 272, 273, 285, 288, 291, 
 
 292 
 Green v. Chapman, 457 
 Green v. How, 190 
 Green v, Hudson River R. R. Co. 39 
 Green v. Hutt, 702 
 Green v. Lincoln, 177 
 Green v. London Omnibus Co. 470 
 Green I/. Long, 551 
 Green v. Telfair, 509 
 Green v. Warner, 179 
 Greene v. U. S. Dealers and Protective 
 
 Assn. 68g 
 Greenfield's Case, 245 
 Greenfield v. Reay, 486 
 Greenshields v. Crawford, 113 
 Greenslade v. Ross, 483 
 Greenwood v. Prick, 672 
 
 Gregor v. Eakin, 665 
 
 Gregory, /?e, 449 
 
 Gregory v. Atkins, 312, 506, 508, 667 
 
 Gregory v. Derby, 705 
 
 Gregory v. Duke of Brunswick, I, 268, 
 
 311, 522 
 Gregory v. Regina, 204 
 Gregory v. Williams, 442, 519 
 Grenfell v. Pierson, 527 
 Greville v. Chapman, 227 
 Gribble v. Pioneer Press Co. 235, 245, 
 
 . 639, 655, 656 
 Griffin v. Chubb, 714 
 Griffin v. Marquardt, 64 
 Griffin «/. Moore, 191 
 Griffin v. Walker, 483 
 Griffith v. Lewis, 96, 133, 242, 246, 420, 
 
 523, 572. 575, 584 
 Griffith V. Wells, 226 
 Griffith V. Williams, 531 
 Griffiths V. Hardenburgh, 536 
 Griggs v. Vickroy, 131 
 Grills V. Maunell, 590 
 Grimes v. Coyle, 324, 374, 
 Grimes ®. Gates, 205 
 Grosvenor v. Hunt, 497 
 Grove v. Brandenburg, 340 
 Grove v. Hart, 532, 533 
 Grubs V. Keyser, 561 
 Guards. Risk, 191, 555, 556 
 Guest V. Warren, 703 
 Gugy V. Kerr, 347 
 Guilderslew ». Ward, 149 
 Guille «. Swan, 72 
 Gulf C. & S. R'way Co. ■». James, 718, 
 
 7.30. 737 
 Gulf Railroad Co. I). Levy, 39 
 Gulford's Case, 176 
 Gunning v. Appleton, 206 
 Gumeth B. Derry, 147, 187 
 Gutsole V. Mathers, 292, 553, 559, 563 
 Guy e. Gregory, 271, 520 
 Gwynn 1). Southeastern Railway Co. 322 
 Gwynne 1J. Sharpe, 587, 643 
 Gyles V. Bishop, 252, 665 
 
 Hackett v. Brown, 668, 682 
 
 Haddan v. Lott. 261 
 
 Hadrick v. Heslop, 720, 739 
 
 Hagan v. Hendry, 67, 129, 587, 591, 680 
 
 Haggart's Trustee v. Hope, 347 
 
 Hahn «i. Hull, 629 
 
 Hahnemannian Life Ins. Co. v. Beebe, 
 
 470, 473 
 Haight V. Cornell, 373, 379, 509, 5 14 
 Haight V. Hayt, 175 
 Haile v. Fuller, 89 
 Hailes ®. Marks, 725 
 Haine v. Welling, 305 
 Haines v. Schultz, 448, 521 
 Haines v. Sepultz, 103 
 Hains v. Elwell, 707 
 
Ixxii 
 
 TABLE OF CASES, 
 
 Haire ®. Wilson, 55, 516 
 
 Hakewell 9. Ingram, 510, 512 
 
 Haldeman v. Martin, 6, gg 
 
 Hale B. Blandy, 538, 567 
 
 Halford B. Smith, 43, 527 
 
 Hall V. Adkins, 150, 152, 183 
 
 Hall V. Blandy, 546 
 
 Hall ®. Dunn, 448 
 
 Hall «. Fisher, 707, 708 
 
 Hall v. Montgomery, 184, 185, 188 
 
 Hall «. Nees, 584 
 
 Hall ®. Smith, 243 
 
 Hall «. Suydam, 714, 7ig, 722, 72g, 731 
 
 Hall V. Vreeland, 92 
 
 Hall V. Warner, ijg 
 
 Hall V. Weedon, 185 
 
 Halley «. Gregg, 654, 655 
 
 Halley ». Stanton, I7g 
 
 Halliday v. Ontario Farmers' Ins. Co. 218 
 
 Halliwood's Case, 82 
 
 Hallock V. Miller, 210, 262, 541, 582 
 
 Halloran v. Thompson, 409 
 
 Hallowell «. Guntle, 314, 558 
 
 Halsey v. Brotherhood, 280, 292, 694 
 
 Halsteads. Nelson, 300, 381, 513, 592 
 
 HamberB. Roberts, 113 
 
 Hamer v. McFarlin, 66g, 670 
 
 Hamilton ». Dent, 188 
 
 Hamilton ». Eno, 39, 300, 453, 521, 605 
 
 Hamilton v. Glenn, 502 
 
 Hamilton v. Langley, 614, 616 
 
 Hamilton v. Smith, 137 
 
 Hamilton?). Walters, 112, 281, 581 
 
 Hammersmith Co. v. Dublin Co. 694 
 
 Hammond v. Hussey, 28g, 2gg 
 
 Hampton ». John, 73g 
 
 Hampton v. Wilson, 301, 302 
 
 Hancock a. Case, 3g3 
 
 Hancock v. Stephens, 117, 137, 610, 678 
 
 Hancock v. Winter, 174, 621 
 
 Hand v. Winton, 194, 210, 453, 540 
 
 Haney ». Trost , 389 
 
 Hankinson v. Bilby, 72, I2i, 124, 125, 
 
 126, 128, 130 
 Hanna v. De Blaquiere, 209, 398 
 Hanners v. McClelland, 650, 670, 673 
 Hansbrough s. Stinnett, 568, 655 
 Hansler v. Harding, 682 
 Hanson v. Hill, 535 
 Hanson ®. Veatch, 443 
 Harbison v. Shook, 551, 646, 652, 659 
 Harcourt «. Harrison, 579, 646 
 Hardin 7,. Cumstock, 105, 333 
 Harding 1). Brooks, 145, 193, 523 
 Harding v. Bulman, 339, 340 
 Harding 9. Greening, 104 
 Hardwick v. Chandler, 249 
 Hare D. Meller, 377 
 Hargrave B. Le Breton, 69, 72, 102, 112, 
 
 284, 287 
 Harker ». Orr, 522 
 Harkrader B. Moore, 729, 731 
 Harle v. Catherall, 451, 652 
 
 Harley v. Gregg, 194, 208 
 
 Harman v. Brotherson, 348 
 
 Harman fl. Delany, 120, 207, 223, 309 
 
 Harman v. Carrington, 143, 544 
 
 Harmon v. Falle, 391 
 
 Harmon v. Harmon, 657 
 
 Harnett v. Wilson, 266, 293 
 
 Harpers. Delp, 114, 152, 546, 553 
 
 Harper B. Harper, 398, 591 
 
 Harper B. Luffkin, 49 
 
 Harpham B. Whitney, 712, 731 
 
 Harrington B. Miles, 149 
 
 Harris B. Amery, 224 
 
 Harris B. Avery, 583 
 
 Harris B. Bailey, 235 
 
 Harris B. Briscoe, 332 
 
 Harris B. Burley, 567 
 
 Harris v. Dignum, 735 
 
 Harris B. Dixon, 172 
 
 Harris B. Gamble, 587 
 
 Harris B. Huntington, 378, 535 
 
 Harris B. Lawrence, 609 
 
 Harris B. Porter, 270 
 
 Harris B. Pritchard, 245 
 
 Harris v. Purdy, 186. 550, 552 
 
 Harris B. Smith, 195 
 
 Harris B. Thompson, 402, 514, 515, 649 
 
 Harris B. Warre, 559, 560, 736 
 
 Harris B. Wilson, 656 
 
 Harris B. Woody, 185, 601 
 
 Harrison B. Bevington, 115, 230, 535, 
 641 
 
 Harrison B. Bush, 27, 300, 350, 378, 382, 
 397, 527 
 
 Harrison B. Findlay, 122 
 
 Harrison B. Eraser, 377 
 
 Harrison B. King, 135, 175, 239 
 Harrison B. Pearce, 95, 443, 519, 656,. 
 
 687 
 Harrison B. Pirree, 448 
 Harrison b. Stratton, 133, 172, 173 
 Harrison B. Thomborough, 122, 129, 131,. 
 
 175, 242, 244 
 Hart B. Baxter, 336 
 Hart B. Coy, 150 
 Hart B. Crow, 533 
 Hart B. Hatch, 481 
 Hart B. Reed, 209, 307, 592 
 Hart V. Storey, 528 
 Hart B. Townsend, 351 
 Hart B. Von Gimbach, 378 
 HartB. Wall, 293, 407, 508, 509 
 Hartln v Hopkins, 541, 543 
 Hartley B. Herring, 264, 267, 581 
 Hartranft B. Hes'^er, 649 
 Hartsock B. Reddick, 334 
 Hartwell v. Vesey, 399, 410, 648, 649 
 Harvey B. Boies, 168, 185, 187 
 Harvey B. Broad, 120 
 Harvey v. Coffin, 113 
 Harvey v. Dunlap, 53 
 Harvey v. French, 117, 152, 575, 579 
 Harwood v. Astley, 74, 221, 227, 439, 547 
 
TABLE OF CASES. 
 
 Ixxiii 
 
 Harwood v. Cotton, 387 
 Harwood v. Green, 387 
 Harwood «. Keech, 378, 397, 398, 399, 
 
 410, 649, 663 
 Harwood v. McKean, 398 
 Haskins v. Lumsden, 302, 678 
 Hastings v. Giles Litho. Co. 292 
 Hastings v. Lusk, 74, 342, 350 
 Hastings v. Palmer, 261 
 Hastings v. Stetson, 91, 685 
 Hat Sweat Comp. v. Reinoehl, 495 
 Hatch V. Lane, 218, 3S8, 420 
 Hatch V. Potter, 440 
 Hatchard v. Miege, 531 
 Hatcher v. Rocheleau, 113 
 Hatfield v. Gano, 192 
 Hatfield v. Lasher, 605, 668, 671, 673, 
 
 676, 677, 679, 682 
 Hathom v. Congress Spring Co. 596 
 Haun V. Wilson, 646 
 Haupt V. Pohlmann, 708, 710, 728 
 Havenneyer v. Fuller, 200, 554, 5 So 
 Hawk V. Evans, 336 
 Hawk V. Harman, 535 
 Hawkes v. Coster, 304 
 Hawkes v. Hawkey, 566, 570, 579 
 Hawkesley v. Bradshaw, 449, 591 
 Hawks V. Patton, 129, 560, 629 
 Hawley v. Sidenham, 183 
 Hawn V. Smith, 121, 154, 181 
 Haws V. Stanford, 184, 499 
 Hawver v. Hawver, 532, 659 
 Hay V. Weakley, 700 
 Hayes v. Ball, ii8, 121, 133, 149, 503, 641 
 Hayner v. Cowden, igg, 652 
 Haynes v. Leland, 96, 305 
 Haynes v. Ritchey, 124, 197 
 Haynes v. Ware, 709 
 Hays V. Allen, 259 
 Hays V. Berryman, 495 
 Hays V. Blizzard, 708 
 Hays V. Brierly, 502, 577 
 Hays V. Hays, 144, 179, 504 
 Hays V. Leland, 96 
 Hays V. Mather, 233, 506 
 Hays V. Mitchell, 120, 122, 566 
 Hayter v. Moat, 522 
 Haythorn v. Lawson, 229, 520, 534 
 Hayward v. Cuthbert, 705 
 Hajrward v. Hayward, 693 
 Hayward v. Naylor, 180 
 Hayward v. Newton, 525 
 Haywood v. Foster, 678 
 Hea V. McBeath, 644 
 Head v. Briscoe, 535 
 Heake v. Moulton, 168, 174, 193 
 Healy v. Dettra, 248, 358 
 Heap V. Parrish, 699, 731, 733 
 Hearne v. Stowell, 255. 352, 353, 356, 
 
 372, 672 
 Heath 9. Heape, 734 
 Heath v. Hubbell, 524 
 Heaton v. Wright, 604 
 
 Hecker v. DeGroot, 54, 474 
 Hedley v. Barlow, 462, 500 
 Heilman v. Shanklin, 208, 307, 498, 676 
 
 678 
 Helly V. Hender, 183 
 Helsham v. Blackwood, 155, 318, 608 
 Heming v. Elliott, 161, 189, 523, 532 
 Heming v. Power, 121, 126, 166, 168, 503, 
 
 544. 570, 587, 643. 665 
 Hemmenway 11. Woods, 131 
 Hemming v. Gasson, 506, 540, 576, 655 
 
 Henacre v. , 115 
 
 Henderson v. Broomhead, 335, 337, 347 
 
 Henderson v. Com'l Advertiser, 212, 256 
 
 Henderson v. Fox, 592, 675 
 
 Henderson v. Hale, 209 
 
 Henderson v. Jackson, 702, 739 
 
 Henderson v. Midland R. Co. 737 
 
 Hendrick v. Sixth Ave. R. R. Co. 517 
 
 Henkin v. Gerse, 497 
 
 Hennessey e. Morgan, 594 
 
 Hennessy v. Wright, 484, 494, 632 
 
 Henry v. Bank of Salina, 488 
 
 Henry v. Hamilton, 188 
 
 Henry v. Norwood, 674 
 
 Henshaw v. Foster, 3 
 
 Henson v. Veatch, 674, 678 
 
 Henton v. Heather, 721 
 
 Henwood v. Harrison, 462, 464, 515 
 
 Her V. Cromer, 646 
 
 Heriot v. Stuart, 282, 454, 456, 548 
 
 Herle v. Osgood, 236 
 
 Herman Loog v. Bean, 694 
 
 Herman v. Bradstreet Co. 681 
 
 Herman v. Brookerhoff, 710 
 
 Herman v. Seneschal, 396 
 
 Herr v. Bamberg, 246, 593 
 
 Herrick t. Lapham, 50, 579 
 
 Hersh v. Ringwalt, 50, 304, 611 
 
 Hershey v. O'Neill, 736 
 
 Herst V. Borbidge, 196 
 
 Herver v. Dowson, 402 
 
 Herzman v. Oberfelder, 642, 652 
 
 Hesler v. Degant, 501, 644, 650 
 
 Heslop ». Chapman, 720, 729 
 
 Hess V. Fockler, 627 
 
 Hess V. Jockley, 145 
 
 Hetherington v. Sterry, 237 
 
 Hewett V. Pioneer Press Co. 677, 686 
 
 Hewit V. Mason, 200, 582 
 
 Hewlett V. Crutchley, 525, 719 
 
 Heyne v. Blair, 711, 714, 724, 726, 728 
 
 Heyward v. Cuthbert, 705 
 
 Heywood v. Ceilings, 700 
 
 Heywood v. Tilson, 72, 290 
 
 Hibbins v. Lee, 462, 627 
 
 Hibbs V. Wilkinson, 452, 455, 682 
 
 Hibler v. Servoss, 613 
 
 Hickenbotham v. Leach, 599 
 
 Hickey v. O'Keefe, 717 
 
 Hickley v. Giosjean, 562 
 
 Hicks' Case, 83 
 
 Hicks V. Faulkner, 713, 722, 729 
 
Ixxiv 
 
 TABLE OF CASES. 
 
 Hicks V. Foster, 517 
 
 Hicks V. Hollingshead, 191 
 
 Hicks V. Joyce, igo 
 
 Hicks V. Rising, 666 
 
 Hicks V. Walker, 580 
 
 Higginson v. O'Flaherty, 344 
 
 Highmore v. Harrington, 524 
 
 Hill V. Hart- Davis, 387, 693 
 
 Hill V. Hogg, 665, 667 
 
 Hill V. Miles, 333, 561, 617 
 
 Hill V. Patterson, 528 
 
 Hill V. Sellick, 348 
 
 Hill V. Wallace, 161 
 
 Hill V. Ward, 284, 291, 292 
 
 Hillhouse v. Dunning, 186, 203, 204 
 
 Hillhouse v. Peck, 154, 163, 165, 170, 
 
 194 
 Hilliard v. Constable, 257 
 Hills' Case, 242 
 
 Hills V. University of Oxford, 445 
 Hilsden ». Mercer, 315 
 Hilton V. Playters, 250 
 Hinkle v, Davenport, 99, 686 
 Hinman v. Hare, 302, 369, 648, 657, 676 
 Hinsworth v. Fowkes, 740 
 Hirst V. Goodwin, 267 
 Hitchcock V. Moore, 498, 605, 646, 673 
 Hitcliin V. Campbell, 442 
 Hitchon v. Best, 483, 627 
 Hix V. Drury, 590, 596, 626 
 Hoag V. Cooley, 149 
 Hoag V. Hatch, 163, 164, 194, 522 
 Hoarw. Ward, 114, 164, 197, 584 
 Hoar V. Wood, 332, 342, 345 
 Hoare v. Dickson, 498, 528 
 Hoare v. Silverlock, 120, 123, 137, 213, 
 
 354. 365 
 Hobart v. Wilkins, 483 
 Hobbs V. Bryers, 392 
 Hobson V. Hudson, 200 
 Hodge V. Churchyard, 483 
 Hodge V. Hochelaga, 338 
 Hodges V. Abell, 358 
 Hodgson V. Bulpit, 121 
 Hodgson v. Scarlett, 173, 342, 344, 345 
 Hoey V. Felton, 651 
 Hogan V. Sutton, 468 
 Hogan V. Wilmoth, 550, 551 
 Hogg V. Dorrah, 118, 259 
 Hogg V. Vaughan, 254 
 Hogg V. Wilson, 118, 180, 522 
 Hogle V. Hogle, 188, 526 
 Holbrow V. Cotton, 350 
 Holcombe v. Roberts, 560 
 Holland v. Stoner, 132 
 Hollenbeck v. Clow, 591 
 HoUey v. Burgess, 145, 169, 646 
 HoUiday v. Ontario Farmers' Mut. Ins. 
 
 Co. 389, 420 
 Holliugsworth w. Duane, 363 
 HoUingsworth v. Shaw, 192, 194, ig6 
 HoUis V. Bri-cow, 257 
 HoUis V. Meaux, 343 
 
 Holmes v. Brown, 655 
 
 Holmes v. Catesby, 593, 599 
 
 Holmes v. Harrington, 417 
 
 Holmes v. Johnson, 379 
 
 Holmes v. Jones, 319, 492, 495, 522, 526, 
 
 564, 584, 602 
 Holt -0. Astrigg, 133 
 Holt V. Parsons, 68, 324, 369, 653 
 Holt v. Scholefield, 46, 133, 166, 167, 170, 
 
 204, 522, 569 
 Holt V. Taylor, 539 
 Holton «. Muzzy, 314, 567, 584 
 Holwood V. Hopkins, i75 
 Home n, Bentick, 350, 632 
 Home Machine Co. a. Sender, 470 
 Homer ». Battyn, 3 
 Homer v. Englehardt, 220 
 Homer v. Taunton, 120, 502, 503, 639 
 Honeggar v. Weltstein, 226 
 Honess v. Stubbs, 591 
 Honeywell v. Burns, 528 
 Hood e. Palm, 6, 99 
 Hooker v. Tucker, 543 
 Hooper B. Martin, 194 
 Hooper v. Truscott, 374 
 Hope v. Evered, 701, 706 
 Hopkins ». Beedle, 170, 184, 185, 52a 
 Hopkins v. Smith, 666 \ 
 
 Hopton fl. Baker, 258 
 Hopwood t. 1 horn, 170, 254, 399 
 Horn V. Foster, 185, 188 
 Home's Case, 688 
 Home V. Milne, 396 
 Home V. Powell, 172 
 Homer v. Marshall, 441 
 Horstock V. Boniface, 210 
 Hort ». Reade, 323 
 Horlon v. Banner, 591, 623 
 Horton v. Byles, 533 
 Horton t. Payne, 535 
 Horlon v. Reavis, 609 
 Hoskins v. Tarrance, 183 
 Hosley v. Brooks, 521, 558, 649, 652, 686 
 Hosmer o. Loveland, 34, 335, 350, 384 
 Hotchkiss V. Lothrop, 651, 683 
 Hotchkiss V. Oliphant, 175, 306, 651, 681 
 Hotchkiss V. Porier, 324, 424, 450, 647 
 Houghtaling ®. Kildeihouse, 646 
 Houghton ®. Davenport, 555 
 Houlden v. Smith, 351 
 Hounsfield B. Drury, 739 
 House V. House, 177 
 Household t. Fairburn, 692, 694 
 Hovey v. Rubber Tip Pencil Co., 283, 
 
 691 
 How V. Primm, 233 
 Howard v. Crowther, 531 
 Howard v Sexton, 6g, 73, 189, 424, 654, 
 
 655 
 Howard v. Stephenson, 165, 193 
 Howard v. Thompson, 350, 376, 378, 385, 
 
 632, 675 
 Howe ®. Buffalo & Erie R. R. 536 
 
TABLE OF CASES. 
 
 Ixxv 
 
 Howe V. Perry, 649, 679, 685 
 
 Howe Machine Co. v. Sonder, 642, 670 
 
 Howell V. Cheatem, 656 
 
 Howell t. Edwards, 709 
 
 Howell V. Howell, 441, 646, 685 
 
 Howell i\ Jackson, 702 
 
 Howell V. Pioneer Press Co., 685 
 
 Hoyle n. Cornwallis, 120 
 
 Hoyle V. Voung, 138 
 
 Hoyt V. McKenzie, 688 
 
 Hoyt V. Smith, 572, 583, 584 
 
 Hoyt V. Thompson, 91 
 
 Huckle V. Reynolds, 140, 194, 616, 625 
 
 Huckman v. Fernie, 498 
 
 Huddlestone n. Swope, igi 
 
 Hudson V. Garner, 579, 647 
 
 Hudson V. Plets, 531 
 
 Huff V. Bennett, 105, 365, 508, 629, 634 
 
 Huffer V. Allen, 700, 722 
 
 Huffman v. Shumate, 610 
 
 Hughes V. Rees, 137, 154, 523, 583 
 
 Hughley v. Hughley, 118 
 
 Hull V. Smith, 242 
 
 Hull V. Vreeland, 482, 583, 702 
 
 Humbard v. The State, 611 
 
 Humber v. Ainge, 403 
 
 Humbley v. Trott, 530 
 
 Hume V. Arrasmith. 124 
 
 Humfries' Case, 151 
 
 Humphrey v. Douglass, 72 
 
 Humphreys v. Miller, 504, 643 
 
 Humphreys v. Stanfield, 197 
 
 Humphreys v. Stillwell, 381, 396 
 
 Humphries v. Parker, 652 
 
 Hunckel v. Voneiff, 338, 339 
 
 Hungerford v. Watts, 179 
 
 Hunt V. Algar, 358, 506 
 
 Hunt V. Bell, 226 
 
 Hunt V. Bennett, 231, 437, 510, 521, 527, 
 555, 557. 559 
 
 Hunt V. Goodlake, 217, 503, 506, 569 
 
 Hunt V. Jones, 202 
 
 Hunt V. Lane, 536 
 
 Hunt V. Merrychurch, 177 
 
 Hunt V. R. R. Co. 652 
 
 Hunt V. Thimblethorp, 176 
 
 Hunter v. French, 738 
 
 Hunter v. Hudson River R. R. Co. 470 
 
 Hunter v. Hunter, 146 
 
 Hunter v. Sharpe, 330, 573 
 
 Hunter v. The Publishers of the Pall Mall 
 
 Gazette, 330 
 Huntington v. Conkey, 497 
 Huntley v. Simson, 716 
 Huntley v. Ward, 400 
 Hurd V. Moore, 555 
 Hurd V. Shaw, 700 
 Hurley v. Fall River Pub. Co. 204 
 Hurrell v. Ellis, 308 
 Hurst V. Borbidge, 193 
 Hurtert v. Weins, 527, 627 
 Hurton v. Hopkins, 524 
 Huson V. Dale, 324, 676 
 
 Hussey v. King, 470, 737 
 
 Hussey v. Norfolk So. R'way Co. 737 
 
 Huston V. McPherson, 480 
 
 Hutchins v. Blood, 551 
 
 Hutchinson v. Wheeler, 676 
 
 Hutton V. Beech, 258 
 
 Hutts V. Hutts, 148, 185, 188, 555 
 
 I'Aiison V. Stewart, 120, 197, 207, 307^ 
 
 309, 577. 593. 607 
 Idol V. Jones, 149, 196 
 Ilderton v. Ilderton, 91 
 Indianapolis Sun Co. v. Horrel, 557 
 Ingallsz'. Allen, 114 
 Ingle V. Bell, 702 
 Inglebath v. Jones, 177 
 Ingraham v. Root, 700 
 Ingram v. Ferguson, 442 
 Ingram v. Lawson, 112, 241, 281, 313, 520,. 
 
 580 
 Ings V. London & Southwest. R. R. 528 
 Inman v. Foster, 302, 306, 646, 654, 680 
 Inman v. Jenkins, 486, 634 
 Ireland v. Champneys, 530 
 Ireland v. King, 237, 465 
 Ireland v. McGarvish, 239 
 Ireland v. Smith, 122 
 Irons V. Field, 200 
 Irvine v. Duvernay, 92 
 Irwin V. Brand wood, 199 
 Irwin V. Cook, 525 
 Iseley v. Lovejoy, 441, 611 
 Isham V. York, 256 
 
 Jackson v. Adams, 124, 176 
 
 Jackson v, Christman, 113 
 
 Jackson v. Cody, 113 
 
 Jackson v. Goes, 113 
 
 Jackson v. Greer, 140 
 
 Jackson v. Hopperton, 435, 520, 65S 
 
 Jackson v. King, 113 
 
 Jackson v. Mayne, 366 
 
 Jackson v. Stetson, 590, 626, 659, 670 
 
 Jackson v. Weisiger, 178 
 
 Jacob V. Lawrence, 400, 515 
 
 Jacob V. Miles, 131 
 
 Jacobi V. Baur, 481 
 
 Jacobs V. Fyler, 170, i86 
 
 James v. Boston, 378 
 
 James v. Brook, 174, 232, 233, 258 
 
 James v. Clarke, 687 
 
 James v. Phelps, 720, 722 
 
 James v. Rutlech, 113, 202 
 
 Jarnigan v. Fleming, 129, 304, 443, 515 
 
 Jarvis v. Hathaway, 74, 367, 368, 514, 
 
 524 
 Jauch V. Jauch, 682 
 Jaycocks v. Ayres, 593 
 Jeffersonville R. R. v. Rogers, 476 
 
Ixxvi 
 
 TABLE OF CASES. 
 
 Jeffras v. McKillop & Sprague Co. 82, 
 
 605, 680 
 Jeffries v. Duncombe, 2, 92, 558 
 Jeffryes v. Payhem, 249 
 Jekyel v. Moore, 349 
 JelUson V. Goodwin, 653 
 Jenkins v. Cockerham, 323, 680 
 Jenkins v. Phillips, 562 
 Jenkins v. Smith, 249 
 Jenkins v. Wheeler, 71 
 Jenkinson v. Mayne, 174 
 Jenkinson v. Wray, 249 
 Jenner v. A'Beckett, 241, 281 
 Jenner v. Carson, 737 
 Jenner v. Harbison, 723 
 Jennings ». Paine, 345 
 Jewett V. Whitney, 526 
 Joannes v. Bennett, 410 
 Joannes v. Burt, 200 
 Joannes w. Jennings, 307, 308, 410 
 Johns V. Gittings, 156, 316 
 Johnson v. Berley, 483 
 Johnson v. Brown, i6o, 174, 198, 653, 654 
 Johnson v. Chambers, 715, 732 
 Johnson v. Commonwealth, 3 
 Johnson v. Oalton, 92 
 Johnson v. Daws, 706 
 Johnson v. Dicken, 170 
 Johnson v. Emerson, 332 
 Johnson v. Evans, 333, 374 
 Johnson v. Grove, 593 
 Johnson v. Hedge, 152, 568 
 Johnson v. Hudson, 633, 63b 
 Johnson v. McDonald, 576 
 
 Johnson v. Miller, 717, 718, 730, 735, 737 
 
 Johnson v. Morrow, 163, 171 
 
 Johnson v. Robertson, 144, 179, 251, 253, 
 579. 582 
 
 Johnson v. St. Louis Despatch Co. 145, 
 173, 180, 470 
 
 Johnson v. Shields, 163, 167, 174, 195, 
 259 
 
 Johnson v. Shove, 708 
 
 Johnson v. Shrewsbury R. R. Co. 690 
 
 Johnson v. Simonton, 226 
 
 Johnson v. Stebbins, 203, 258 597 
 
 Johnson v. Tait, 622 
 
 Johnston v. Lance, 305 
 
 Johnston w. Laud, 306 
 
 Johnston v. McDonald, 527 
 
 Johnston v. Moorman, 347 
 
 Johnston v. Morrow, 163, 171, 193 
 
 Johnston v. Stebbins, 593 
 
 Johnston w. The Anthenseum, 526 
 
 Johnston v. The Commonwealth, 114 
 
 Johnstone v. Sutton, 702, 714, 726 
 
 Jones V. Bewicke, 494, 593 
 
 Jones v. Cecil, 593 
 
 Jones V. Chapman, 148, i8i, 305, 610 
 
 Jones V. Diver, 251 
 
 Jones, Ex parte, 361, 363 
 
 Jones V. Finch, 715 
 
 Jones V. Givin, 63 
 
 Jones V. Gwynn, 707 
 
 Jones V. Heme, 178, 193 
 
 Jones V. Howell, 703 
 
 Jones V. Hungerford, 177 
 
 Jones V. Joice, 224 
 
 Jones w. Jones, 113, 650] 
 
 Jones V. Kirksay, 710 
 
 Jones V. Littler, 233, 238, 242, 243 
 
 Jones V. McDowell, 181 
 
 Jones V. McGovern, 351 
 
 Jones V. Mackie, 449 
 
 Jones V. Marrs, i8g, 551 
 
 Jones V. Powell, 250, 252 
 
 Jones V. Pritchard, 482 
 
 Jones V. Richards, 486, 487, 635 
 
 Jones V. Rivers, 504 
 
 Jones V. Stevens, 235, 544, 670 
 
 Jones V. Thomas, 422, 424 
 
 Jones V. Townsend, 530 
 
 Joralemon v. Pomeroy, 133, 191, 195, 566. 
 
 572 
 Jordan v. Alabama, 737 
 Jordan v. Lyster, 176, 235, 236 
 Justice V. Kirlin, 506, 639, 649, 684 
 
 K. V. V. 562 
 
 Kane v. Mulvany, 345, 356, 366, 447, 
 
 462 
 Karney v. Paisley, 652 
 Katterman v. Stitzer, 714 
 Kaucher v. Blinn, 200 
 Kay V. Frediigal, 307 
 Kean v. McLaughlin, 188, 342, 650 
 Kearney v. Gough, 645 
 Keegan v. Robson, 664 
 Keeler v. Dusenbury, 484 
 Keeling v. McCall, 552 
 Keemle v. Sass, 247 
 Keene v. Sprague, 381, 422 
 Keenholts v. Becker, 50, 54, 94, 264, 274, 
 
 277, 519. 562, 654 
 Keesling v. McCall, 183 
 Keighley v. Ball, 339 
 Keller v. Lessford, 189 
 Keiser ». Smith, 684 
 Kelly V. Craig, 591 
 Kelly V. Dillon, 153, 190, 305, 307 
 Kelly V. Flaherty, 153, i6l 
 Kelly V. Huffington, 579, 580 
 Kelly V. Hutton, 106 
 Kelly V. Midland Ct. West. &c. R'way 
 
 Co. 727, 729 
 Kelly V. Partington, 50, 59, 72, 134, 199, 
 
 261, 262, 264, 527, 648 
 Kelly V. Sage, 709 
 Kelly V. Sherlock, 255, 466, 525 
 Kelly V. Taintor, 596 
 Kelly V. Tinling, 455, 468 
 Kelly V. Waterbury, 592 
 Kemp V. Housgoe, 256 
 Kemp V. King, 700 
 Kendall v. Stone, 112, 274, 284, 290, 655 
 
TABLE OF CASES. 
 
 Ixxvii 
 
 KendiUon v. Maltby, 276, 347, 349 
 
 Kenedy v. The People, 61 
 
 Kennedy v. Dear, 307 
 
 Kennedy v. Giffo:rl, 124, 125, 129, 138, 
 
 302. 655 
 Kennedy v. Gregory, 304, 685 
 Kennedy v. Hilliard, 334, 337 
 Kennedy v. Holborn, 673. 
 Kennedy v. Lowry, 522, 561. 
 Kennedy v. Press Pub. Co. 283, 295, 607 
 Kenney v. McLoughlin, 301, 525 
 Kennon v, Gilmer, 524 
 Kent V. Bongartz, 416, 648, 658 
 Kent V. Bonzey, 681 
 Kent V. David, 601 
 Kent V. Gaddis, 601 
 Kent V. Pocock, 256 
 Kerle v. Osgood, 257 
 Kern v. Bridwell, 489 
 Kern v. Towsley, 146, 184, 545 
 Kerr v. Force, 129, 175, 207, 209, 212, 
 
 312, 324, 509, 593, 597, 598, 602 
 Kerr v. Sheddon, 282 
 Kerrains v. The People, 663 
 Kerschbaugher v. Slussor, 562 
 Kershaw v. Bailey, 334 
 Keyter v. Leroux, 396 
 Keyworth v. Hill, 99 
 Keyzor v. Newcomb, 253 
 Kidd V. Fleck, 665 
 Kidd V. Horry, 689 
 Kidder v. Parkhurst, 335, 386 
 Kiene w. Ruff, 83, 84, 92, 556 
 Kightly V. Birch, 523 
 KiUick V. Bams, 176 
 Kilmore v. Abdoolah, 518 
 Kimball v. Herald Co. 605, 677 
 Kimm v. Steketee, 241 
 Kimmel v. Kimmel, 25 
 Kimmis v. Stiles, 185. 
 Kinahan v. McCuUough, 196 
 Kincade v. Bradshaw, 665, 666 
 Kine v. Evershed, 703. 
 Kine v. Sewell, 298, 406, 421, 627, 648 
 King of Two Sicilies v. Wilcox, 488 
 King V Bagg, 132 
 King's Case, 196, 207 
 King V. Fisher, 359 
 King V. Lake, 13, 120, 126, 166 
 King V. Leighton, 485 
 King V. Parsons, 309 
 King?/. Patterson, 66, 69, 300, 376, 417, 
 
 520 
 King V. Root, 25, 350 
 King V. Sea Ins. Co. 334 
 King V. Shore, 248 
 King V. Townsend, 335, 583, 748 
 King V. Waring, 96, 429, 442, 583, 646 
 King V. Watts, 273, 406. 582 
 King V. Whiiley, 610 
 King V. Wood. 123, 198. 
 Kingsbury v. Bradstreet Co. 121, 245 
 Kingsbury v. Garden, 73° 
 
 Kingsley v. Bill, 522 
 
 Kinnersly v. Cooper, 121 
 
 Kinney v. Hosea, 163, 165, 521, 647 
 
 Kinney v. Nash, 232, 233, 238, 256, 612, 
 
 643 
 Kinney v. Roberts, 485, 489, 496 
 Kinyon v. Palmer, 205, 207 
 Kirby v. Simpson, 351, 624 
 Kirk V. Nowell, 590 
 Kirkaldie v. Paige, 501, 657 
 Kirkpatrick v. Eagle Lodge, 379 
 Kirksey v. Fike, 145 
 Kirwan v. Dennan, 312 
 Kirwan v. Tally, 2io 
 Kitcat V. Sharp, 361, 362 
 Kitchenman v. Skeel, 522 
 Klein v. Hentz, 533 
 Kleizer v. Symmes, 369 
 Klewin v. Bauman, 190, 521 
 Klinck V. Colby, 298, 335, 386, 396, 423, 
 
 658, 659 
 Kline v. Shuler, 706 
 Kloppenberg v. Neefus, 482 
 Klumph V. Dunn, 91, 167, 650 
 Knapp V. Fuller, 129, 653, 654 
 Kneeland v. Rogers, 536 
 Kneeland v. Spitzka, 705 
 Knickerbacker v. Colver, 442 
 Knickerbocker Ins. Co. v, Ecclesine, 481 
 Knight V. Foster, 302, 521, 665, 678 
 Knight V. Gibbs, 263, 268, 412 
 Knight V. Jermin, 713 
 Knight V. Knight, 360 
 Knight V. Wilcox, 48, 49 
 Knightly v. Marrow, 572 
 Knobel v. Fuller. 678 
 Knot ®. Burwell, 682 
 Knowles v. Peck, 390 
 Knox V. Coml. Agency, 594, 595, 605, 676 
 Koch v. Heideman, 138 
 Koenig v. Ritchie, 392, 418 
 Kramer c. Waymark, 530 
 Kraus v. Sentinel Co., 484, 579 
 Krebs v. Oliver, 410 
 Kredolivansky v. Niebaum, 199 
 Krom V. Schoonmaker, 70, 440 
 Krulevitz v. East. R. R. Co. 725, 727 
 Kuhn ®. Chicago, M. & St. P. R. R. 521 
 Kuklence v. Vocht, 532, 535 
 Kurtz v. Spence, 691, 694 
 
 Labar v. Crane, 710 
 Labrow v. Worman, 528 
 Lacy V. Mitchell, 711 
 Lafone v. Smith, 442, 527 
 Lafontaine v. Boklere. 714 
 Laine v. Wells, 182, 663 
 Laird v. Taylor, 714, 719, 732 
 Lake v. Hutton, 307, 309 
 Lake v. King, 327, 333, 335, 377 
 Lambert v. Pharis, 671 
 Lamb's Case, 557 
 
Ixxviii 
 
 TABLE OF CASES. 
 
 Lamb v. Galland, 723 
 
 Lamb v. Munster, 486, 487, 635 
 
 Laroos v. Snell, 66g, 670 
 
 Lancaster v. French, 247 
 
 Lancey v. Bryant, 514 
 
 Lande ». Smith, 536 
 
 Landis v. Shanklin, 665, 675 
 
 Lane v. Applegate, 441, 442 
 
 Lane v. Howman, 5g6 
 
 Lane v. Williams, 489, 491 
 
 Lang V. Gilbert, 184, 217, 390 
 
 Langdon v. Young, 92, 169, 170 
 
 Langdon t). Syme, 
 
 Lange v. Benedict, 347 
 
 Langley 1. Colson, 177 
 
 Langton B. Haggerty, 543, 588, 669 
 
 Lanius ». Druggist Pub. Co. 521 
 
 Lanning is. Christie, 334 
 
 Lanning ». Lonsdale, 417 
 
 Lansing v. Carpenter, 203, 256, 258 
 
 Lansing v. Christie, 336 
 
 Lansing v. Smith, i 
 
 Lanter v. McEwen, 650, 665 
 
 Lareau v. Minerve, 264 
 
 Larkin ». Noonan, 377, 378, 623 
 
 Larkins v. Tarter, 305 
 
 Lamed ». Buffinton, 649, 652, 679 
 
 Larocque v. Willett, 713 
 
 Larrabee v. Minn. Tribune Co. 467, 655, 
 
 679 
 Lassels v. Lassels, 257 
 Lathan ®. Berry. 681 
 Lathrop v. Hyde, 333, 374 
 Latimer v. West. Morning News Co. 
 
 282, 293, 456, 470 
 Laughlin v. Clawson, 718 
 Laughlin v. Cowley, 345 
 Laughton v. Bishop of Sodor and Man, 
 
 381, 386, 421 
 Laurie v. Wells, 241 
 Law V. Cross, 502 
 Law V. Hammond, 290 
 Law V. Scott, 437, 633 
 Lawler v. Earle, 401, 676 
 Lawless ». Anglo-Egyptian Cotton Co. 
 
 387, 412, 470 
 Lawrence «. Smith, 694 
 Lawson's Case, 99 
 Lawson v. Hicks, 336 
 Lawton t. Green, 700 
 Lawton v. Hunt, 593 
 Lawyer o. Loomis, 524, 662, 705, 708, 
 
 732 
 Lawyer v. Smith, 524 
 Lay V. Lawson. 392 
 Layer's Case. 631 
 Layton v. Harris, 12, loi 
 Lea V. Charrington, 706 
 Lea V. Robertson, 184, 185, 501, 659 
 Lea ». White, 333, 340 
 Leach v. Thomas, 522 
 Lechmere Charlton's Case, 361 
 Leddy v. Tousey, 25 
 
 Lee Ti. Bennett, 638 
 
 Lee V. Dudd, 181 
 
 Lee V. Huson, 650 
 
 Lee V. Kane, 559 
 
 Lee V. Village of Sandy Hill, 104 
 
 Lee V. Hart, 173 
 
 Le Fanu v. Malcolmson, 115, 229, 534, 
 
 577 
 Lefroy v. Burnside, 465, 488 
 Lehman v. Brooklyn City R. R. Co. 271 
 Lehman v. City of Brooklyn, 39 
 Leicester v. Walter, 678 
 Leigh V. Webb, 701, 706 
 Leister v. Smith. 304, 685 
 Le Merchant's Case, 631 
 Lemon v. Simmons, 166 
 Lennox v. Langdon, 737 
 Lent V. Butler, 501 
 Lentall's Case, 195 
 Leonard v, Allen, 116, 640, 647, 652, 671, 
 
 673 
 Leonard v. Pope, 532, 650 
 Lester v. Thurmond, 344 
 Lettman v. Ritz, 562 
 Letton V. Young, 650, 657 
 Leutner v. Mirfield, 408 
 Lever v. Torrey, 520 
 Levermore v. Martin, 186 
 Levi V. Milne, 510, 512, 517, 526 
 Levy V. Ginsburg, 583 
 Lewin v. Edvrards, 522 
 Lewis V. Acton, 139 
 Lewis V. AUcock, 60 
 Lewis V. Badcock, 534 
 Lewis V. Black, 186, 313, 551 
 Lewis V. Chapman, 68, 73, 242, 407, 414, 
 
 505, 652 
 Lewis V. Clement, 357, 523 
 Lewis V. Few, 339. 369, 372, 439, 495, 
 
 628 
 Lewis V. Graham, 224 
 Lewis V. Hawley, 235, 242, 243 
 Lewis V. Higgins, 345 
 Lewis V. Levy, 137, 350, 353, 356, 358, 
 
 364, 367 
 Lewis V. Niles, 302 
 Lewis V. Soule, 114, 185 
 Lewis V. Walter, £56, 221, 227, 304, 306, 
 
 356, 596, 613 
 Lewsay v. Fletcher, 608 
 Lexington Ins. Co. ■». Payer, 498 
 Leycroft ®. Dunker, 242, 243, 244 
 Leyman w. Latimer, 142, 168, 207, 323 
 Lick V. Owen, 6g, 680 
 Liddle v. Hodges, 69, 401, 424, 648 
 Lidster v. Borrow, 480 
 Life Asso. of America v. Boogher, 35, 
 
 120, 689 
 Like V. McKinstry, 284, 291, 292 
 Lillard v. Carter, 730 
 Lillie V. Price, 74, 663 
 Linck V. Kelley, 189 
 Lincoln v. Chrisman, 654, 671 
 
TABLE OF CASES. 
 
 Ixxix 
 
 Linden v. Graham, H2, 284, 291 
 
 LindenmuUer v. The People, 41 
 
 Lindley v. Hoi ton, 208, 241 
 
 Lindsey v. Smith, 194, 256, 553, 566 
 
 Linney v. Maton, 190, 681 
 
 Linville v. Earlywine, 92, 169 
 
 Lipe V. Eisenlerd, 49 
 
 Lipprant v. Lipprant, go 
 
 Lister v. McNeal, 624 
 
 Lister v. Ferryman, 331, 396, 723, 728 
 
 Lister v. Wright, 92, 684 
 
 Litman v. West, 249 
 
 Little w. Barlow, 176 
 
 Little z: Clements, 515 
 
 Little V. Pomeroy, 348 
 
 Littlejohn -v. Greeley, 69, 75, 213, 231, 
 
 236, 497, 653 
 Littler V. Thompson, 361, 462 
 Litton V. Young, 524 
 Liverpool Household Store Asso. v. 
 
 Smith, 693 
 Livingston v. Cheatham, 209 
 Livingston v. Rogers, 522 
 Lloyd V. Morris, 522, 523 
 Lock V. Ashton, 706 
 Locke V. Bradstreet Co. 298, 300, 417, 
 
 513, 649 
 Lockenour v. Sides. 700, 731 
 Lockwood V. Lockwood, 3 
 Logan V. Maytag, 718 
 Logan V. Steele, 140, 153 
 London v. Eastgate, 247, 252 
 Long p. Brougher, 313,325 
 Long V, Chubb, 644, 654 
 Long V. Eakle, 440, 512 
 Long V. Fleming, 620 
 Long V. Hitchcock, 531 
 Long w. Long, 532. 533 
 Long V. Peters, 395 
 Long V. Rogers, 708, 714 
 Longden v. Weigall, 729 
 Longman v. Pole, 535 
 Loomis.w. Swick, 542, 611 
 Lothrop V. Adams. 102, 653, 677, 679 
 Loubz V. Hafner. I 
 Longhead v. Bartholomew, 497 
 Lounds V. Delaware, &c. R. R. Co. 75 
 Lovell V. Houghton, 283 
 Lovett V. Weller, 290 
 Lowe V. Collum, 722 
 Lowe V. Hammond, 290 
 Lowe V. Hartman, 707 
 Lowe V. Harwood, 46, 112 
 Lowenstein v. The People, 54 
 Lows V. Telford, 725, 736, 737 
 Loyd V. Pearse, 177 
 Lucan v. Cavendish, 483 
 Lucan v. Smith, 590, 591, 664 
 Lucas V. Flinn, 196, 197 
 Lucas v. Nichols, 191, 504, 656 
 Ludwell V. Hole, 245 
 Ludwig V. Cramer, 245, 351, 529, 535 
 Lukehart v. Byerley, 133, 151, 165,559,567 
 
 Lumby v. AUday, 232, 233, 240, 606 
 
 Lumley v. Gye, 273, 291 
 
 Lumpkins v. Just ce, 131, 538 
 
 Lunsford v. Deitrich, 716 
 
 Luther v. Skeen, 671, 673 
 
 Lyle V. Clason, 47, 82, 87, 522, 557 
 
 Lym V. Hockley, 202 
 
 Lyman v. Gowing, 341, 364, 383 
 
 Lynch v. Febiger, 206, 415 
 
 Lynch v. Henderson, 484 
 
 Lynch v. Knight, 263, 272 
 
 Lynde v. Johnson, 253, 500 
 
 Lyon V. Brown, 726 
 
 Lyon V. Guild, 509 
 
 Lyons v. Townsend, 114, 389 
 
 McAlexander v. Harris, 193, 681, 686, 687 
 
 McAlister v. Libby, 674 
 
 McAlister v. Sibley, 674 
 
 McAnnally v. Williams, 146 
 
 McArthur v. Detroit, &c. 470, 653 
 
 McBean v. Williams, 622 
 
 McBee v. Fulton, 364, 515, 660, 665 
 
 McBrayer v. Hill, 189, 191 
 
 McBride v. Ellis, 210 
 
 McCabe v. Cauldwell, 351, 366 
 
 McCabe v. Foot, 167 
 
 McCabe v. Jones, 448 
 
 McCabe v. Platter, 646, 670 
 
 McCaleb v. Smith, 150 
 
 McCallum v. Lambie, 113, 552 
 
 McCampbell v. Thornburgh, 674 
 
 McCann v. Benjamin, 374 
 
 McCarren v. Sire, 491 
 
 McCarty v. Barrett, 148 
 
 McCarty v. De Best, 535 
 
 McCarty v. Pugh, 684 
 
 McClaughry v. Wetmore, 186, 188, 565 
 
 McClintock v. Crick, 611, 681 
 
 McClurg V. Ross, 154, 171 
 
 McCIuskey v. Cromwell, in, 572 
 
 McConnell v. McCoy, 610 
 
 McConnell v. McKenna, 610 
 
 McCoombs v. Tuttle, 87, 61 1, 628, 639 
 
 McCorkle v. Binns, 74, 204, 208, 634 
 
 McCormick v. Perry, 732, 733 
 
 McCormick v. Sheridan, 364 
 
 McCormick v. Sisson, 707, 714, 729 
 
 McCormick v. Woodworth, 662 
 
 McCoy V. McCoy, 498 
 
 McCrosson v. Cummings, 714 
 
 McCue V. Ferguson, 116 
 
 McCue V. Tribune Association, 485 
 
 McCuen v. Ludlum, 154, 163, 164, 170, 
 
 194, 259, 260, 565 
 McCullough V. Mclntee, 390, 395 
 McDaniel v. Baca, 112, 284, 289, 291 
 McDermott v. Eve. Journal Assn. 364, 
 
 376, 471 
 McDonald v. Atlantic & Pacific R. R. 
 
 Co. 721 
 McDonald v. Board of Lands and Works, 
 
 421 
 
Ixxx 
 
 TABLE OF CASES. 
 
 McDonald v. Brooke, 730 
 
 McDonald v. Dun, 559 
 
 McDonald w. Murchison, 656 
 
 McDonald v. Rooke, 730 
 
 McDonald v. Ryland, 423 
 
 McDonald v. Walker, 525 
 
 McDonald v. Woodruff, 105, 301 
 
 McDougald v. Coward, 440, 681 
 
 McDougall V. Claridge, 398 
 
 McDougall V. Sharp, 525 
 
 MgDougall v. Tyrrell, 237 
 
 McDowell ». Bowles, 197, 255 
 
 McElroy v. Meredith, 733 
 
 McElveny v. Conellan, 632 
 
 McFadin v. David, 165 
 
 McFadzen v. Mayor of Liverpool, 470 
 
 McFarland v. Even. Post Pub. Co. 494 
 
 McGee v. Ingalls, 73 
 
 McGee v. Sodusky, 646 
 
 McGee v. Wilson, 164, 189 
 
 McGlbbon v. Young, 181 
 
 McGlemery v. Keller, 650. 666 
 
 McGough V. Rhodes, 185, 189, E39, 601 
 
 McGovern v. McNamara, 340 
 
 McGowan v. Manifee, 118, 639, 680 
 
 McGrath v. Cox, 631 
 
 McGrath v. Finn, 415 
 
 McGregors. Eakin, 151 
 
 McGregor <o. Gregory, 120, 136, 156, 588, 
 
 592, 607 
 McGregor ®. Thwaites, 203, 306, 350 
 McGuire v. Blair, 256 
 Mclntire v. Levering, 723 
 Mcintosh V. Matherly, 628 
 Mclntyre v. McBean, 385, 398 
 Mclvor V. McCabe, 91 
 McKee v. Ingalls, 151, 172, 441, 611, 
 
 647, 648 
 McKenney v. Roberts, 191 
 McKennon v. Greer, 180 
 McKinley v. Rob, 128, 189, 312, 503, 509, 
 
 666 
 McKinn ». United States, 167 
 McKown V. Hunter, 661, 708, 728, 733 
 McLaughlin v. Bascom, 1 16, 502 
 McLaughlin ». Cowley, 338 
 McLaughlin v. Russell, 116, 637, 642 
 McLean v. Scripps, 300 
 McLeod B. Wakley, 236, 454 
 McLoughlin v. Dwyer, 635 
 McMahon v. Hallock, 162 
 McManus v. Jackson, 185, 198 
 McMillan v. Boucher, 442 
 McMillen v. Birch, 199, 223, 254, 344 
 McNab V. McGrath, 139, 178 
 McNally «. Oldham, 18, 319, 351, 583 
 McNamara v. Shannon, 151 
 McNaught V. Allen, 621 
 McNeely v. Driskill, 706 
 McNichoU V. Kane, 535 
 McNulty V. Walker, 725, 726, 730 
 McNutt v. Young: 670 
 McPhearson a. Runyon, 701 
 
 McPherson v. Daniels, 74, 3o4 
 
 McQueen w. Fulgham, igo, 271, 535 
 
 McWilliams «. Hoban, 730 
 
 Macaulay v. Shackell, 485, 635 
 
 Macdougal J). Knight, 359 
 
 Macdougall ». Maguire, 619 
 
 MacGill, Ex parte, 334 
 
 Mackay v. Ford, 198, 343 
 
 Mackay ®. McCankie, 219 
 
 Macleod ®. Wakely, 236 
 
 Macdougall v. Maguire, 608 
 
 Maconnehey v. The State, 440 
 
 Maddox v. McGinnis, 738 
 
 Madison Ave. Baptist Church, Re, 284 
 
 Magee v. Stark, 187 
 
 Magnay v. White, 700 
 
 Maguire v. Knox, 573 
 
 Mahoney v. Fitzsimmons, 583 
 
 Mair v. Culy, 293 
 
 Maitland v. Bramwell, 378, 381, 396,412' 
 
 Maitland v. Goldney, 46, 59, 73, 229. 304 
 
 Malachy v. Soper, 112, 282, 284, 290, 291, 
 
 292 
 Mallison v. Sutton, 114 
 Mallory v. Pioneer Press Co. 142, 336, 
 
 448 
 Malone v. Fitzgerald, 486 
 Malone v. Huston, 705 
 Malone v. Stewart, 189, 199, 241 
 Malone v. Stillwell, 99 
 Maloney v. Bartley, 350 
 Maloy V. Dagnal, 162 
 Manby v. Witt, 422, 431 
 Mangan v. Atterton, 103 
 Mangan v. Peck, 99, 536 
 Mankleton v. Lilly, 495, 496, 516 
 Mankletow u. Lilly, 495 
 Manly v. Corry, 620 
 Mann v. Hauls, 555 
 Mann v. Morewood, 132 
 Manner v. Simpson, 142 
 Manning v. Clement, 227, 307, 591 
 Manning v. Finn, 718 
 Manning v. Fitzherbert, 583 
 Manufacturers' B'k v. Koch, 663 
 Mapes V. Weeks, 302, 306 
 Marable v. Mayer, 701 
 Marbourg v. Smith, 738 
 March v. Davison, 131, 227, 251, 485 
 Maretzek v. Cauldwell, 598, 604, 609 
 Marker v. Dunn, 679 
 Markett v. Comm'rs of Hearne Bay, 695 
 Markham v. Russell, 516, 653, 685 
 Marks v. Baker, 300 
 
 Marks v. Conservative Newspaper Co. 445 
 Marriner v. Cotton, 256 
 Marriott v. Chamberlain, 486, 635 
 Marsden v. Dennis, 195 
 Marsden v. Henderson, 577 
 Marsh v. Elsworth, 336, 338 
 Marsh v. Marsh, 82 
 Marshall v. Addison, 194 
 Marshall v. Dean, 187 
 
TABLE OF CASES. 
 
 Ixxxi 
 
 Marshall v. Gunter, 333, 340, 508, 522 
 
 Marshall v. Martin, 528 
 
 Martin t'. Hooker, 646 
 
 Martin z: Kennedy, 482 
 
 Martin v. Loei, 642, 680 
 
 Martin v. Mattison, 583, 702, 739 
 
 Martin i. Melton, 185 
 
 Martin z'. Nutkin, i 
 
 Martin v. Stillwell, 163, 164, 194 
 
 Martin v. Strong, 412 
 
 Martin v. Van Schaick, 106 
 
 Martindale v. Murphy, 190 
 
 Martinere v. Mackay, 135, 751 
 
 Martyn v. Burlings, 249 
 
 Martyn v. Williams, 625 
 
 Marzetti T. Williams, 2, 242 
 
 Masham v. Bridges, 256 
 
 Mason v. Keeling, 440 
 
 Mason v. Mason, 647 
 
 Mason v. Stratton, 117, 162 
 
 Mason v. Thompson, 137 
 
 Mass V. Meire, 335 
 
 Massauere v. Dickens, 128, 207, 511, 682, 
 
 683 
 Masten zi. Deyo, 726, 729 
 Matson v. Buck, 302, 678 
 Matthew v. Crass, 197, 266 
 Matthews v. Beach, 365, 509, 511, 517, 
 
 606, 607 
 Matthews v. Davis, 668, 671 
 Matthews z>. Huntley, 646 
 Mauger v. Dick, 691, 
 Maulsby v. Reifsnider, 344, 345 
 Maurice v. Worden, 350 
 Mawe V. Pigott, 207, 216, 217, 221, 509 
 Maxwell v. Allison. 114 
 Maxwell v. Hogg, 689 
 Maxwell z>. Kennedy, 669 
 May V. Brown, 614, 638, 683, 687 
 May V. Burras, 226 
 Maybee v. Avery, 666 
 Maybee v. Fisk, no, n5, 129 
 Mayer, J!e, 363 
 Mayer v. Schleichter, 190 
 Mayer v. Walter, 705, 709, 710, 714 
 Maynard v. Beardsley, 640, 683, 684, 
 
 687 
 Maynard v. Fanners' Fund Ins. Co. 
 
 218 
 Maynard zr. Fireman's Ins. Co. 470, 556 
 Mayne v. Digle, i66 
 Mayne v. Fletcher, loi, 107, 636 
 Mayo V. Sample, 193, 375 
 Mayott zi. Gibbons, 176 
 Mayrant v. Richardson, 209, 439 
 Mayson z>. Sheppard, 180, 524 
 Mead v. Daubigny, 654 
 Mead z>. Perkins, 249 
 Meade v. Axe, III 
 Meade and Belt's Case, 2 
 Mears v. Griffin, 517, 525 
 Mebane v. Sellars, l8s 
 Medaugh v. Wright, 650 
 
 Melia v. Neate, 700 
 
 Mellissick v. Lloyds, 345, 351 
 
 Mellor V. Baddeley, 710, 738 
 
 Melton V. The State, 203 
 
 M'Elveney v. Cunellan, 643 
 
 Melvin ». Weiant, 197 
 
 Menmer v. Simpson, 154 
 
 Menter z'. Stewart, 158 
 
 Mercer v. Sparks, 74 
 
 Mercer v. Whall, 498 
 
 Merchants' Bank v. Curtis, 442 
 
 Merewether v. Shaw, 396 
 
 Merivale v. Carson, 451, 456, 462, 464, 
 
 513 
 Merk w. Gelshaeuser, 665 
 Merriam v. Mitchell, 722 
 Merrill v. Peaslee, 611 
 Merryweather v. Nixon, 536 
 Mersey Nav. Co. zi. Douglass, 92 
 Merwin v. Rogers, 347 
 Meserole v. Goldsmith, 695 
 Mesher zi. Iddings, 718 
 Messire v. Blanchard, 415 
 Metcalf V. Williams, 631 
 Metcalfe v. Brooklyn Life Ins. Co. 730 
 Metcalfe v. Markham, 483 
 Metropolitan Saloon Omnibus Co. zr. 
 
 Hawkins, 473, 489 
 Meyer z/. Bohlfing, 653 
 Meyer v. Devries, 361 
 Meyer v. Press Pub. Co. 515 
 Meyer v. Schultz, 606 
 Mezzara's Case, 3, 118 
 Middleton zi. Earned, 632 
 Middleton v. Walker, 503 
 Mielenz v. Quasdorf, 84, 556, 557, 647 
 Milam v. Burnsides, 350 
 Miles V. Harrington, 68i, 682 
 Miles V. Oldfield, 194, 197 
 Miles ZI. Spencer, 301, 305 
 Miles V. Van Horn, 123, 191, 561, 623, 
 
 646 
 Miles z/. Weber, 424 
 Miles V. Weston, 702 
 Miles z/. Wimp, 194 
 Miller v. Brown, 705 
 Miller v. Buckdon, 146 
 Miller v. Butler, 95, 96, 116, 203, 535,. 
 
 642, 648 
 Miller's Case, 200 
 Miller v. David, 217, 261 
 Miller ». Deere, 710 
 Miller v. Fenton, 536 
 Miller v. Graham, 591 
 Miller z/. Gunn, 531 
 Miller v. Holstein, 157 
 Miller v. Hope, 347 
 Miller v. Houghton, 192 
 Miller v. Johnson, 151, 421, 585 
 Killer®. Kerr, 305, 655 
 Miller z/. Maxwell, 114, 121 
 Miller v. Miller, 130, 140, 164, 193, 610^ 
 
 611 
 
Ixxxii 
 
 TABLE OF CASES. 
 
 Miller w. Milligan, 707, 711. 723. 725. 
 
 732, 735 
 Miller v. Parish, 164, 191, 546, 577 
 Miller v. Rittinger, 178 
 Miller Tobacco Factory v. Commerce, 
 
 281 
 Miller v. Wimp, 164 
 Milligan v. Thorn, 553, 566, 583 
 Millison w. Sutton, 659 
 Mills V. Monday, 84 
 Mills V. Taylor, 143, 178 
 Mills V. The State, 532, 628 
 Mills V. Wimp, 194 
 Milner v. Gilbert, 666 
 Milton V. Elmore, 738 
 Miner v. Post and Tribune Co. 447 
 Minesinger v. Kerr, 675, 678 
 Minnes v. Johnson, 536 
 Mirest v. Harvey, 3 
 Mitchell V. Borden, 323, 603 
 Mitchell V. Jenkins, 66, 714, 731 
 Mitchell V. Kerr, 334, 514, 670 
 Mitchell V. MulhoUand. 186 
 Mitchell V. Williams, 716 
 Mix ». Woodward, 114, 116, 146, 509, 
 
 572, 611, 655 
 Moberly v. Preston, 189, 195, 302, 303, 
 
 306 
 Moffat V. Fisher, 739 
 Moffatt V. Caldwell, 220 
 Moffet V. Sackett, 525 
 Mohar v. Simmons, 712 
 Moises I/. Thornton, 251, 550 
 Moloney v. Bartley, 54, 474, 634 
 Molony v. Dows, 91, 580 
 Monkman v. Shepherdson, 156 
 Monsette v. Jodoin, 237 
 Montgomery v. Deeley, 170 
 Montgomery v. Knox, 139, 140, 203, 205, 
 
 395, 421, 521, 580, 678 
 Montgomery v. Richardson, 5go 
 Montifiori v. Montifiori, 686 
 Montreal v. Hall, 703 
 Moody V. Baker, 273, 275, 524 
 Moody V. Libby, 334, 529 
 Moon V. Towers, 105, 735 
 Moor V. Roberts, 486 
 Moore v. Ames, 347 
 Moore v. Bennett, 531 
 Moore f. Bond, 610 
 Moore v. Butler, 502 
 Moore v. Edmiston, 587 
 Moore v. Foster, 236 
 Moore v. Francis, 510, 595, 675, 677 
 Moore v. Gardner, 700 
 Moore v. Green, 481 
 Moore v. Horner, 187 
 Moore v. Mank, 526, 676 
 Moore v. Manufacturers' Bank, 298, 299, 
 
 336. 396, 605 
 Moore v. Meagher, 260, 263, 582 
 Moore v. Munk, 677 
 
 Moore v. North. Pac. R. Co. 718, 724, 
 
 730 
 Moore ■v. Oastler, 637, 684 
 Moore v. Stevenson, 324, 450, 647, 651 
 Moore v. Synne, 236 
 Moore 11. Terrill, 320 
 Moorhead v. Brown, 244 
 Moran v. Lyon, 514 
 More V. Bennett, 134, 207 
 Morehead v. Jones, 127, 675 
 Morey -v. Morning Journal, 210, 605, 
 
 681 
 Morey B. Newfane Township, 441 
 Mordaunt 71. Mordaunt, 440 
 Morgan v. Booth, 342 
 Morgan v. Hughes, 738 
 Morgan v. Lingen, 200, 209. 241 
 Morgan v. Livingston, 116, 118, 181, 186, 
 
 552, 611, 642, 657 
 Morre v. Clay, 684 
 Morrell's Case, 362 
 Morris v. Barker, 652, 678 
 Morris v. Barkley, 195 
 Morris v. Bloxam, 258 
 Morris w. Corson, 708 
 Morris v. Duane, 304 
 Morris v. Lachman, 311, 675, 676, 677 
 Morris v. Langdale, 225, 235, 272, 67* 
 Morris v. Scott, 706, 709, 737 
 Morrison ». Belcher, 461 
 Morrison v. Harmer, 320, 527, 667 
 Morrison v. Moat, 362 
 Morrow v. McGaver, 312, 612, 624 
 Morthland v. Cadell, 115 
 Mortimer v. M'Callan, 3, 631, 633 
 Mosbury v. Madison, 632 
 Moscati V. Lawson, 536 
 Moseley v. Moss, 307, 560, 566, 579 
 Moshier w. Utica & Sch. R. R. Co. I 
 Mosier v. Stoll, 648 
 Mostyn v. Fabrigas, 91 
 Motley V. Slany, 178 
 Mott V. Comstock, 242, 244 
 Mott V. Consumer's Ice Co. 103 
 Mott v. Danforth, 6 
 Mott V. Dawson, 395, 436, 665 
 Moulton V. Beecher, 708 
 Moulton V. Clapham, 363 
 Mountney v. Watton, 1^6, 311, 358 
 Mousler v. Harding, 681 
 Mower v. Watson, 188 
 Moyer v. Moyer, 680 
 Moyer v. Pine, 325, 678 
 Moyle V. Drake, 708 
 Muchler v. Mulhollen, 188 
 Muck's Case, 574 
 Mulkern v. Ward, 689 
 Mull v. McKnight, 311, 312, 601 
 MuUett V. Hulton, 207, 683 
 Mulligan V. Cole, 2i8, 389, 509, 511, 514 
 Mulvehall tj. Milward, 49 
 Muma V. Harmer, 301, 596 
 
TABLE OF CASES. 
 
 IXXXIU 
 
 Munns v. Dupont, 711, 722, 726, 731, 
 
 732 
 Munson v. Curtis, 518 
 Munster v. Lamb, 344, 349 
 Murphy v. Antley, 150 
 Murphy z/. Cent. Park R. R. Co. 517 
 Murphy v. Dougherty, 660 
 Murphy v. Halpin, 393 
 Murphy v. Hobbs, 731, 739 
 Murphy v. Kellett, 413 
 Murphy v. Larson, 718 
 Murphy v. Moore, 708 
 Murphy v. Stout, 659 
 Murray v. Benbow, 694 
 Murray v. DeGross, 481 
 Murray v. McLane, 331, 714, 718, 731 
 Murray v. McSwiney, 2, 481 
 Murray v. Murray, 190, 319 
 Musgrave v. Newall, 713 
 Musgrove v. Bovey, 254 
 Mutual Reserve Fund Asso. v. The 
 
 Spectator Co. 472 
 Myers v. Curray, 525, 670 
 Myers v. Dresden, no 
 Myers v. Malcolm, 652, 685 
 
 Naber v. Miecock, 131 
 
 Nagle-Gilman v. Christopher, 352 
 
 Nail V Hill, 600 
 
 Napier v. Daniell, 524, 665 
 
 Nash V. Benedict, 208, 499, 651, 683 
 
 Nealz/. Lewis, 522, 525 
 
 Neale v. MaUard, 192 
 
 Nearing v. Bell, 498 
 
 Nebenzhal v. Townsend, 709 
 
 Neeb v. Hope, 73, 203, 298, 436, 513, 
 521, 647, 664 
 
 Needham v. Dowling, 343 
 
 Negley v. Farrow, 203 
 
 Neill V. Thorn, 732 
 
 Nelson v. Borchenius, 197, 248, 515, 640 
 
 Jfelson V. Evans, 302 
 
 Nelson v. Musgrave, 153, 208, 315 
 
 Nelson V. Robe, 340 
 
 Nelson v. Staff, 197, 266 
 
 Nesmith v. Atlantic Mutual Ins. Co. 497 
 
 Nestle V. Van Slyke, 553, 610, 611 
 
 Nettles V. Harrison, 525 
 
 Nettleton v. Dinehart, 530 
 
 Nevin v. Spieckemann, 95, 471 
 
 Newbit V. Statuck, 184, 665, 666 
 
 Newbold v. Bradstreet, 242, 244, 501; 
 
 Newbraugh v. Curry, 18. 553 
 
 Newell v. How, 242, 417, 541 
 
 Newfield v. Copperman, 339, 378 
 
 New Haven R. R. Co. v. Schuyler, 470 
 
 Newlyn v. Fassett, 167, 193 
 
 Newman v. Bailey, 598 
 
 Newman v. Copperman, 705, 706 
 
 Newman v. Davis, 706 
 
 Newman v. Goddard, gi 
 
 Newman v. Harrison, 604 
 
 Newman v. Jones, 104 
 
 Newman v. Octo, 604, 606 
 
 Newsam v. Carr, 717 
 
 Newton v. Boodle, 482, 700 
 
 Newton v. Chaplin, 631 
 
 Newton v. Masters, 194 
 
 Newton v. Rowe, 481, 482, 532 
 
 Newton v. Stubbs, 257, 560 
 
 New York Infant Asylum v. Roosevelt, 
 
 493 
 Nicholas v. Badger, 193, 194 
 NichoUs V. Reeve, 523 
 Nichols 'B. Badger, 199 
 Nichols V. Guy, 200 
 Nichols V. Hayes, 611, 615 
 Nichols V. Packard, 528, 565, 566, 567 
 Nichols ». The People, 124 
 Nicholson ®. Coghill, 715 
 Nicholson v. Lyne, 240, 253 
 Nicols V. Hayes, 178 
 Nidever v. Hall, 161, 189, 641, 643 
 Nile v. Swanston, 236 
 Ninety-nine Plaintiffs v. Vanderbilt, 483 
 Niven v. Munn, 189, 551, 552, 563, 611 
 Nix V. Caldwell, 369 
 Nixon's Case, 362 
 Noah's Case, 220 
 Noeninger v. Vogt, 179, 243 
 Nolan V. Connell, 400 
 Nolan V. Traber, 165 
 Nolton V. Moses, 517 
 Noonan v. Orton, 401, 535, 583 
 Norden v. Oppenheim, 340 
 Norman v. Simons, 271 
 Norrel v. Vogel, 718, 723 
 Norris V. Corkill, 532 
 Norris v. Elliot, 558, 630 
 Norris v. Palmer, 701 
 Norris v. Smith, 480 
 Norrish v. Richards, 700 
 Northern Cent. R. R. Co. v. Canton Co. 
 
 137 
 Northern Railroad v. Miller, 67 
 Northrup v. Hill, 480 
 Norton v. Gordon, 610 
 Norton w. Ladd, 122, 149 
 Norwich, Bishop of. Case, 253 
 Nott V. Stoddard, 592 
 Novion V. Hallett, 91 
 Nuton's Case, 246 
 Nutt's Case, loi, 106 
 Nutting V. Goodridge, 531 
 Nye V. Otis, 150, 153, 561 
 N. Y. Juvenile Guard So. v. Roosevelt, 
 
 689 
 
 Oakes v. Barrett, 525 
 Oakley «. Farrington, ] 96, 238 
 Obaugh V. Finn, 203, 245 
 O'Brien v. Barry, 707 
 O'Brien v. Bryant, 313 
 
Ixxxiv 
 
 TABLE OF CASES. 
 
 O'Brien z/. Clement, 114, 203, 442, 449, 
 
 553, 591, 663 
 O'Brien v. Frazier, 706, 717 
 O'Brien v. The People, 440 
 O'Connell v. Manhattan Comm'l Agency, 
 
 417 
 O'Connell v. Mansfield, 141, 156, 311, 
 
 589 
 O'Conner v. O'Conner, 606 
 O'Conner v. Sill, 396, 465 
 O'Connor v. Lloyd, 137 
 O'Connor v. Wallen, 599 
 Oddy V. Paulet, 416 
 Odger V. Mortimer, 466, 527 
 Odiorne v. Bacon, 171, 197, 229, 245, 312 
 O'Donaghue «. Hussey, 393, 682 
 O'Donaghue v. McGovern, 350, 369, 377, 
 
 378, 663 
 O'Donnell v. Hastings, 145, 149 
 O'Driscoll V. McBurney, 705 
 Offutt V. Earlywine, 92, 169, 665 
 O'Gara t>. Eis'enlohr, 55 
 Ogden ». Riley, 117, 131, 149, 151 
 O'Hanlon v. Myers, 171, 199, 254 
 Ohio R. R. V. Kasson, 397 
 O'Keefe v. CuUen, 591 
 O'Keefe v. Earl of Kingston, 304, 305 
 O'Keson v. Barclay, 441 
 Oldham v. Peake, 574 
 Oliver v. Bentinck, 349, 632 
 Oliver v. Pate, 717 
 Olmstead v. Brown, 263, 271, 274 
 Olmstead v. Miller, 265, 610, 639 
 Olson V. Neal, 710 
 O'Malley v. Elder, 120 
 Ombony v. Jones, 243 
 Onslow V. Home, 7, 46, 167, 204, 232, 
 
 259 
 Opdyke v. Marble, 485 
 Opdyke v. Weed, 75, 558 
 Oram v. Franklin, 235, 256 
 Ormsby v. Douglass, 312, 396, 417, 591, 
 
 659 
 Orpwood V. Barkes, 155, 616 
 Orpwood V. Parkes, 155, 616 
 Orr V. Skofield, 246 
 Orton V. Fuller, 177, 184 
 Orvis V. Dana, 494, 595 
 Osborn v. Forshee, 553, 627 
 Osborne v. London Dock Co. 486 
 Osterman v. Bateman, 719 
 Ostheimer v. Blumert, 379 
 Ostrom V. Calkins, 225, 242, 243, 524, 
 
 686 
 Oswald's Case, 4 
 
 Owen V. McKean, 189, 482, 674, 676 
 Owens V. Roberts, 395, 396 
 Owseley v. Montgomery, &c. R. R. Co. 
 
 470 
 
 Packer v. Sprangler, 185 
 Paddock v. Salisbury, 527, 669 
 
 Paddock v. Watts, 712. 718, 719 
 Padgett V. Sweeting, 186, 370, 670, 674, 
 
 680, 712 
 Padmore v. Lawrence, 374, 423, 515 
 Padwick v. Wittcomb, 25 
 Page V. Fawcett, 120 
 Page V. Hatchett, 156 
 Page V. Merwin, 195, 639 
 Paige V. Smith, io5 
 Pain V. Rochester, 713 
 Paine v. Prestny, 193 
 Pallet V. Sargent, 314, 659, 667, 675, 687 
 Palmer v. Anderson, 185 
 Palmer v. Avery, 709 
 Palmer v. City of Concord, 115, 447 
 Palmer v. Cohen, 531 
 Palmer v. Edwards, 148, 257 
 Palmer v. Haight, 601 
 Palmer v. Harris, 556 
 Palmer v. Haskins, 652, 685 
 Palmer z;. Hummerston, 421, 648 
 Palmer v. Hunter, 552 
 Palmer v. Keith, 700 
 Palmer v. Lang, 681, 682 
 Palmer v. Travis, 692 
 Pangburn v. Bull, 729 
 Panton v. Williams, 729 
 Pantsune v. Marshall, 700 
 Paris V. Levy, 458 
 Park V. Detroit Free Press Co. 35I,''359 
 
 450, 651 
 Parka v. Blackiston, 647 
 Parker w. Farley, 714 
 Parker t. Huntington, 710 
 Parker v. Lewis, 180 
 Parker v. McQueen, 301, 305, 591, S02 
 Parker v. Meader, 140 
 Parker Mills v. Commissioners of Taxes, 
 
 224 
 Parker v. Raymond,' 546, 577 
 Parkes v. Prescott, 54, 95 
 Parkhurst v. Ketchum, 324, 669, 671 
 Parkhurst v. Mastellar, 720 
 Parkins ». Scott, 94, 194, 263, 275 
 Parli V. Reed, 707, 709 
 Parmer v. Anderson, 125 
 Paimiter I/. Coupland, 203,466, 510, 511 
 Parret v. Parret, 193 
 Parrett v. Carpenter, 240, 254 
 Parrett Nav. Co. v. Slower, 607 
 Parry v. CoUis, 549 
 Parsons v. Bellows, 561 
 Parsons v. Surgey, 371, 402 
 Parsons v. Tinling, 481 
 Parsons v. Young, 158 
 Parton v. Hill, 738 
 Pasley v. Freeman, 427 
 Pasley v. Kemp, 150, 152, 615 
 Passie v. Mondford, 175 
 Passman v. Fletcher, 263 
 Patch V. Tribune Asso. 216, 508 
 Pater v. Barker, 112, 287, 290, 625 
 Patten v. Gumey, 99, 522, 736 
 
TABLE OF CASES. 
 
 Ixxxv 
 
 Patterson v. Collins, 193, 242 
 
 Patterson v. Edwards, Il5, 144, 565, 566, 
 
 611 
 Patterson v. Patterson, 144 
 Patterson v. Wilkinson, 144, 566 
 Pattison v. Jones, 300, 406, 408, 427, 
 
 434, 514, 647 
 Patton V. Hamilion. 526 
 Paul V. Halferty, 284 
 Paul V. Harden, 522 
 Pauley v. Drain, g5 
 Payne v. Beumorris, 254 
 Payne v. Rerons, 732 
 Payne v. Revans. 732 
 Payson v. Caswell, 710 
 Payson v. Macomber, 561, 591, 6li 
 Peake v. Oldham, 146, 175, 195 
 Pearce v. Brower, 514, 517 
 Pearce's Case, 120 
 Pearce v. LeMaitre, 653, 655 
 Pearce v. Oard, 330, 331, 336 
 Pearce v. Ormsby, 650, 655 
 Pearce ». Whale, 235 
 Peard v. Jones, 250, 252 
 Peaieson v. Picket, 481 
 Pearse v. Rogers, 625 
 Pearson v. Skelton, 536 
 Pearson v. Stingo, 527 
 Pease v. Shippen, 678 
 Pechell V. Watson, 332, 534 
 Peck V. Chouteau, 732, 735 
 Peck V. Ellis, 536 
 Peck V. Small, 740 
 Peckington's Case, 202 
 Peden v. Mail, 724 
 Pedro V. Barrett, 707 
 Pegram v. Stoltz, 588 
 Pegram v. Styron, 121 
 PeUenz v. BuUerdieck, 730 
 Peltier v. Mict, 650 
 Pelton V. Ward, 167, 186 
 Pelzer w. Benish, 562 
 Pemberton v. Colls, 254, 522 
 Pencavin v. Trapping, 736 
 Penfold V. Westcote, 122, 151 
 Penn. State of, v. Honeyman, 66 
 Penn. State of, v. Lewis, 66 
 Pennington v. Meeks, 67, 611 
 Pennyman v. Rabanks, 290 
 Penters v. England, 99 
 People. See The People 
 Peoples V. Evg. News Asso. 644 
 Pepper w. Gay, 257 
 Pircival v. Hickey, 72, 91 
 Percy 9. Seward, 482 
 Perdue v. Burnett, 163, 164, 165, 193 
 Perkins r>. Crummer, 633 
 Perkins v. Mitchell, 209, 296, 338, 340, 
 
 344. 377, 383, 497> 580 
 Perkins v. Scott, 94 
 Perratt «i. Times Newspaper, 105 
 Perrell v. New Orleans Times, 448 
 Perrine t. Winter, 650, 652, 685 
 
 Perring v. Harris, 664 
 
 Perrit v. King, 536 
 
 Perrott v. Morviss, 488 
 
 Perrow e. Lindsay, 483 
 
 Perry ». Breed, 631 
 
 Perry «. Man, 121, 125, 142, 307 
 
 Perryman «. Lister, 396 
 
 Perselly «. Bacon, 146, 187 
 
 Perzel v. Tousey, 332, 342, 344 
 
 Peters •«. Ulmer, 502 
 
 Peterson v. Morgan, 678 
 
 Peterson ». Sentman, 140, 575 
 
 Petrie v. Lamont, 700 
 
 Petrie ». Rose, 646. 675, 685 
 
 Petsch V. St. Paul Dispatch Printing Co. 
 
 552, 572 
 Pettibone «. Simpson, 143, 189, 265 
 Phelps ». Lane, 575 
 Phelps V. Nowlen, 72 
 Philadelphia R. R. Co. ». Quigley, 90, 
 
 418, 470, 476, 519 
 Phillips «. Badby, 253 
 Phillips n. Barber, no, 149, 182 
 Phillips 11. Beene, 617 
 Phillips V. Chapman, 483 
 Phillips V. Eyre, 91 
 Phillips ». Hoefier, 242, 243 
 Phillips v. Homfray, 531 
 Phillips v. Jansen, 83, 87, 90, 239, 248 
 Phillips V. Kalamazoo, 710 
 Phillips V. Naylor, 729 
 Phillips V. Odell, 610 
 Phillips V. Waller, 712 
 Phillips V. Wiley, 195 
 Phinclew. Vaughn, 185, 186 
 Phoenix v. Dupuy, 485, 635 
 Pickard v. Collins, 72 
 Pickfordw. Gutch, 251 
 Picton V. Jackman, 409 
 Pierce v. Ellis, 372, 373 
 Pierce v. The State, 510 
 Pierrepoint v. Shapland, 501 
 Pigot's Case, 308 
 Pigot V. Pigot, 308 
 Pike«. Hanson, 3 
 Pike V. Van Wormer, 118, 120, 130, 131, 
 
 192, 200, 541, 584 
 Pinckney v. Collins, 483 
 Pinero ». Goodlake, 365 
 Pink V. Catanich, 151, 543. 544, 659 
 Pippet V. Hearn, 561, 707, 714 
 Pisani v. Lawson, 529 
 Pitt V. Donovan, 288 
 Pittock V. O'Neil, 355, 502, 506, 5ii 
 Pitts V. Pace, 641 
 Pittsburgh R'y Co. w. McCurdy, 116, 142, 
 
 504, 550, 567, 568, 576, 640 
 Pizani V. Lawson, 482 
 Platto V. Geilfuss, 219 
 Playford v. Brown, 725 
 Pledger v. Hathcock, 190 
 Pledger v. The State, 69, 207 
 Plummer B.Johnson, 375, 396, 669. 673,720 
 
Ixxxvi 
 
 TABLE OF CASES. 
 
 Plunkett «. Cobbett, 309, 633, 650 
 
 Poe V. Grever, 165, 168, 170 
 
 Poe B. Mondford, 251 
 
 Poe's (Dr.) Case, 172 
 
 Pollard V. Lyon, 191, 195, 265, 671 
 
 Pond V. Hartwell, 561, 643 
 
 Pool 0. Devers, 521, 659, 685 
 
 Pool t. Sacheverel, 360 
 
 Poole 0. Whitcomb, 517 
 
 Pope V. Pollock, 701 
 
 Pope V. Welsh, 869 
 
 Popham V. Pickburn, 353, 373, 467 
 
 Poplett D. Stockdale, 534 
 
 Poppenheim v. Wilkes, 302 
 
 Porter v. Botkins, 674 
 
 Porter v. Choen, 180 
 
 Porter v. Henderson, 684, 686, 687 
 
 Porter v. Hughey, 198 
 
 Porter v. Knight, 718 
 
 Porter ii. McCreedy, 589 
 
 Porter v. Weston, 700 
 
 Porter v. White, 725 
 
 Portman v. Stowell, 193 
 
 Potter V. Gjertsen, 707 
 
 Potter V. Seale, 718, 730 
 
 Potter V. Thompson, 525, 558, 613 
 
 Pott's Case, 172 
 
 Poturite v Barrel, 195 
 
 Poulet V. Chatto, 6go 
 
 Poulton V. Rintel, 150 
 
 Powell V. Cleaver, 55 
 
 Powell V. Hutchins, 132 
 
 Powell V. Jones, 154 
 
 Powell V. Kane, 334 
 
 Powell V. Plunkett, 137, 171, 325 
 
 Power V Miller, 1S5 
 
 Power V. Price, 189, 551 
 
 Power V. Shaw, 190 
 
 Powers V. Dubois, 212, 231 
 
 Powers V. Presgroves, 673, 681 
 
 Powers ads. Skinner, 312, 316, 325 
 
 Powis V. Smith, 64, 514 
 
 Powree v. Waters, 370 
 
 Praeger w. Shaw, 590 
 
 Pratt V, Gardner, 349 
 
 Pratt Tj. Pioneer Press Co. 204, 253 
 
 Preckington's Case, 202 
 
 Prescott V. Tousey, 108, 332, 334, 336, 
 
 516. 627 
 Press Co. v. Stewart, 18, 298, 307, 464, 513 
 Prettyman v. Shockley, 242, 243 
 Price V. Hutchinson, 362 
 Price V. Seeley, 702 
 Price zr. Wall, 653 
 Price V. Whiteley, 208 
 Prichard v. Lloyd, 183 
 Prickett v. Greatrex, 72 
 Pridhara v. Tucker, 236 
 Prime s. Eastwood, 271, 652, 653 
 Prinn v. Howe, 173, 231, 233 
 Prior V. Wilson, 204, 246 
 Pritchard v. Corporation of Georgetown, 
 
 470 
 
 Proehazka v. Field, 564 
 
 Proctor V. Owens, 192, 609 
 
 Proctor «. Smiles, 486 
 
 Proctor V. Webster, 377 
 
 Prough ®. Entriken, 733 
 
 Prowse V. Loxdale, 528 
 
 Prudential Asso. Co. «. Knott, 6go, 691 j 
 
 692 
 Prudhomme v. Fraser, 625 
 Prynne fl. Brown, 527 
 Pugh V. McCarty, 185, 682 
 Pugh V. Neal, 550 
 Punch V. Boyd, 694 
 Purcell V. Archer, 6l2 
 Purcell V. McNamara, 708, 713, 715 
 Purcell V. Sowler, 373 
 Purdy V. Carpenter, 75 
 Purdy 7j. Rochester Print Co. 203, 239 
 Purdy V. Stacey, 194, 208, 563 
 Purple V. Horton, 610, 674, 676 
 Purton ®. Honnor, 700 
 Pybus B. Scudamore, 483 
 Pye V. Wallis, 265. 
 
 Quartz HUl Cons. Gold Mine Co. •>, 
 
 Eyre, 331 
 Quartz Hill Gold Mining Co. v. Beal, 
 
 692, 700 
 Queen's (The) Case, 500 
 Quick ®. Miller, 99 
 Quigley v. McKee, 39, 73, 630 
 Quigley v. Phil. &c. R. R. Co. 686 
 Quinby V. Minnesota Tribune Co. 6gi, 
 
 684 
 Quinn v. Hession, 608 
 Quinn v. O'Gara, 151, 163, 164, 196, 204 
 Quinn v. Wilson, 592. 
 
 R. V. Aickles, 631 
 
 R. V. Llanfaethly, 631 
 
 Radcliff 7). Michael, 150 
 
 Rahauser v. Schwerger, 562 
 
 Raikes v. Richards, 649 
 
 Railroad Co. w. Conybeare, 476 
 
 Railroad Co. v. Watson, 716 
 
 Railway Co. v. Harris, 470 
 
 Railway Co. v. Quigley, 476 
 
 Rainbow v. Benson, 336 
 
 Rainey B. Bravo, 186, 619, 629, 631, 638 
 
 Rainey v. Thornbury, 185 
 
 Ralph V. Davye, 115 
 
 Ram V. Lamley, 330 
 
 Ramscar v. Gerry, 120, 541, 567 
 
 Ramsdale v. Greenacre, 238, 502, 624, 
 
 625 
 Ramsden v. Brearly, 532, 635 
 Ramsey «. Elms, 138 
 Randall v. Brigham, 347 
 Randall v. Henry, 705 
 Randall v. Holsenbake, 314, 315, 654 
 Ranger v. Goodrich, 189, 681 
 
TABLE OF CASES. 
 
 Ixxxvii 
 
 Ranger v. Great West. Railway Co. 476 
 Rangier *. Hummel, 116, 532, 576, 640, 
 
 642 
 Ransone v. Christian, 498, 659, 665, 666, 
 
 684 
 Ratcliff V. Long, 130 
 RatclifF V. Shubley, i8l 
 Rathbun v. Emigii, 234, 583 
 Ravenga v. Macintosh, 719, 726 
 Rawlings v. Norbury, 120, 565, 642 
 Ray V. Law, 700 
 Ray V. Wakefield, 534 
 Raymond v. Russell, 689 
 Rayne v. Taylor, 307 
 Rayner v. Kinney, 659 
 Re Bronson, 363 
 
 Cary, 364 
 
 Chaplin, 449 
 
 Cheesemau, 361 
 
 Clark, 531 
 
 Clements. 449 
 
 Courtney, 364 
 
 Crawford, 363 
 
 Dill, 326 
 
 Eliz. Mayor, 363 
 
 Ferry, 364 
 
 Frew, 362 
 
 Gregory, 449 
 
 Griffin, 362 
 
 Hackley, 488 
 
 Honeywood, 82 
 
 Investigating Commission, 388 
 
 Johnson, 362 
 
 Licensed Victuallers' Society, 506 
 
 Madison Avenue Baptist Church, 
 284 
 
 Mayer, 363 
 
 Mulock, 362 
 
 Spooner, 363 
 
 State Prisun Investigating Com. 379, 
 388 
 
 Strongs, 363 
 
 Van Hook, 363 
 
 Van Sandau, 363 
 
 Wartnaby, 82 
 
 Yates, 363 
 Rea V. Harrington, 125, 652, 655, 685 
 Read v. Ambridge, 128, 137, 174 
 Read v. Hudson, 242, 243 
 Read v. Hutson, 243 
 Reade v. Sweetzer, 452 
 Rearick v. Wilcox, 437, 439, 682 
 Rector v. Smith, 348, 646 
 Redfem v. Todd, 195 
 Redman v. Pjme, 252 
 Redway v. Gray, 163, 171, 177, 178, 196, 
 
 237 
 Redway v. McAndrew, 701, 738 
 Reed v. Harper, 441 
 Reed v. Home Savings Bank, 475 
 Reed v. Taylor, 716 
 Reeves v. Bowden, 545 
 Reeves v. Templar, 221, 509, 510 
 
 Reeves v. Winn, 650, 652 
 
 Regensperger v. Kiefer, 302, 447, 517, 
 
 521, 675 
 Regina v. Aickles, 631 
 
 V. Ardley, 175 
 
 V. Boardman, 127 
 
 V. Boucher, 63 S 
 
 V. Bradlaugh, 503, 552, 562 
 
 V. Browne, ng, 502 
 
 V. Bull, 54 
 
 tj. Burke, 60 
 
 V. Cooper, 95 
 
 ■u. Duffy, 449 
 
 V. Faulkner, 362 
 
 V. Foxy, 6 
 
 V. Gathercole, 41 
 
 V. Hetherington, 41 
 
 V. Hicklin, 53, 55, 78, 463 
 
 V. Holbrook, 103, 448, 449, 587, 
 627 
 
 V. Hurt, 119 
 
 V. Hutchins, 341 
 
 V. Judd, 448 
 
 V. Labouchere, 18, 320, 676 
 
 V. Langley, 6, 257 
 
 V. Ledger, 461 
 
 V. Llanfaethly, 631 
 
 V. Lord Mayor of London.'^ssa, 
 690 
 
 V. Lovett, 638 
 
 V. Lowe, 530 
 
 V. Marshall, 147 
 
 V. Mawgridge, 67 
 
 V. Miliis, 8 
 
 V. Mills, 8 
 
 V. Newman, 302, 312 
 
 V. Perry, 375 
 
 V. Ramsey, 448 
 
 V. Sleep, 70 
 
 V. Stanger, 630, 634, 636 
 
 V. Sullivan, 3 
 
 V. Templeton, 66 
 
 ■V. Thompson, 133 
 
 V. Tuchin, 453 
 
 V. Veley, 390 
 
 V. Verrier, 522, 565 
 
 V. Wallace, 67, 73 
 
 V. Yates, 217 
 Regnier v. Cabot, 675, 678, 679 
 Reicheltenham v. Wagon Co. 359 
 Reid V. Delorme, 377 
 Reid V. McLendon, 336 
 Reid V. The State, 192 
 Reignald's Case, 235 
 Reilly v. Scripps, 653 
 Reily v. Timme, 605 
 Reitan v. Goebel, 655 
 Remington v. Congdon, 367, 369, 664 
 Rendall «. Hay ward, 525 
 Renehan v. Geriken, 710 
 Renner v. Canfield, 271 
 Renwick v. Wilcox, 447 
 Respublica v. Davis, 639 
 
1 xxxviii 
 
 TABLE OF CASES. 
 
 Respublica v. Duane, 695 
 
 Respublica v. Oswald, 363 
 
 Restell V. Steward, 312 
 
 Reston v. Pomfreict, 266 
 
 Revis V. Smith, 337, 339 
 
 Rex V. Abingdon, 54, 73, lOl, 528 
 
 V. Alderton, 579 
 
 V. Alexander, 106, 168 
 
 V. Almon, 96, 107 
 
 V. Amphlit, 88 
 
 „. Aylett, 565, 574 
 
 V. Baillie, 379, 382, 386 
 
 V. Baxter, 115 
 
 ■V. Beare, 560, 631 
 
 V. Berry, 6og, 610 
 
 V. Bradlaugh, 559 
 
 V. Brereton, 557, 563 
 
 -i). Brown, 119 
 
 V. Burdett, 81, 88, 90, 92, 96, 510, 
 
 639 
 11. Burke, 60 
 V. Carlile, 355 
 ■V. Cator, 638 
 ■V. Clement, 360 
 ■V. Cobbett, 444 
 ■V. Commerell, 735 
 V. Cieevey, 209, 328 
 V. Cuthell, 21 
 
 V. Dean of St. Asaph, 510, 631 
 •V. Dixon, 55 
 'V. Dodd, 107 
 ■V. Donnison, 636 
 V. Dover, 95 
 •V. Drake, 95 
 V. Edgar, iig 
 V. Elms, 388 
 •V. Fisher, 107 
 V. Fleet, 359 
 -v. Foster, 187 
 V. Gilham, 360 
 V. Girdwood, 92, 628 
 V. Godfrey, 220 
 V. Greepe, 565 
 •V. Griffin, 115 
 V. Gutch, 106 
 •V. Hall, 639 
 V. Hart, 368, 636 
 V. Harvey, 67, 209 
 ■u. Hedges, 183 
 V. Holt, 10 1, 302 
 V. Home, 115, 126 
 V. Hunt, 633, 636 
 V. Jenneaur, 403 
 V. Johnson, 91, 92 
 V. Kinnersley, 2io 
 V. Lambert, 134, 499, 631 
 V. Lee, 363 
 V. Lord Abingdon, 328 
 V. Lord Cochrane, 225 
 V. Marsden, 553 
 V. Matthews, 574 
 V. May, 561 
 V. Middleton, 9 2 
 
 Rex V. Miller, 510 
 
 V. Moore, 55 
 
 ■V. O'Brien, 357 
 
 ■a. Osborne, 115 
 
 V. Paine, 41 
 
 w, Pearce, 631, 636, 637 
 
 ■V. Pbcock, 238 
 
 V. Powell, 560 
 
 V. Roberts, 309, 452 
 
 V. Rosenstein, 96 
 
 V. Salisbury, 332, 386 
 
 V. Shelly, 236 
 
 V, Skinner, 339, 347, 348 
 
 V. Staples, 379, 386 
 
 V. Sutton, 441 • 
 
 V. Taylor, 41 
 
 V. Topham, 639 
 
 V. Tutcin, 453 
 
 V. Vantandillo, 53 
 
 V. Watson, 92, 362, 627, 636, 638 
 
 V. Webster, 41 
 
 w. Wegener, 83 
 
 V. White, 362, 363 
 
 ■I/. Williams, 95, 628 
 
 11. Woodfall, lig, 506, 510, 686 
 
 V. Wright, 328, 356 
 Reynell v. SackBeld, 178 
 Reynolds v. Kennedy 710 
 Reynolds v. Ross. 180 
 Reynolds v. Tucker, 678, 682 
 Rhinehardt v. Potts, 186 
 Rhodes v. Anderson, 153, 190 
 Rhodes v. Brandt, 730 
 Rhodes v. James, 646 
 Rhodes v. Naglee, 120, 149, 546, 652 
 Rice V. Cottrell, 630, 651 
 Rice V. Pidgeon, 266 
 Rice V. Simmons, 12 
 Rice v. Withers, 628, 681 
 Rich «. Holt, 194, 250, 316 
 Richards v. Boulton, 663 
 Richards v. Cohen, 527 
 Richards v. Judd, 496, 663 
 Richards v. Richards, 679 
 Richards v. Turner, 717 
 Richards w. Van Nostrand, 512 
 Richardson v. Allen, 171, igS 
 Richardson v. Barker, 677, 686 
 Richardson v. Boulton, 663 
 Richardson v. Northrup, 608, 669, 681 
 Richardson v. Roberts, Ig2, 630, 659, 667 
 Richardson «. The State, 324, 663 
 Richardson v. Virtue, 700, 719, 730, 731, 
 Richmond v. Dayton, 363 
 Ricket V. Stanley, igi, 196, 319, 625 
 Ricks -u. Cooper, 179 
 Riddell v. Clydesdale, etc., 694, 6g5 
 Riddle v. Thayer, 153 
 Riding v. Smith, 266, 281, 293, 581, S|2 
 Ridley v. Perry, 314, 315, 671 
 Rietan v. Goebel, 161 
 Rigdon V. Jordan, 718, 723 
 Rigby V. Heron, I3g, 53g 
 
TABLE OF CASES. 
 
 Ixxxix 
 
 Riggs V. Denniston, 203, 245, 249, 259, 
 
 317, 318, 324, 593, 597, 606 
 Riley v. Byrne, 497 
 Riley v. Norton, 665 
 Riley v. Nugent, 524 
 Ring V. Wheeler, 342 
 Rippon V. Dennis, 729 
 Rish Allah Bey v. Johnstone, 449 
 Rish Allah Bey v. Whitehurst, 355, 462, 
 
 499 
 Ritchie v. Stenius, 682 
 Roach V. Garvan, 360 
 Roach V. Read, 119 
 Robbins v. David, 723 
 Robbins v. Fletcher, 599, 615, 655, 662 
 Robbins v. Treadway, 256 
 Roberts v. Bayles, 714, 715 
 Roberts v. Brown, 356, 462, 592 
 Roberts ». Camden, 117, 131, 137, 169, 
 
 184, 579. 647, 648 
 Roberts v. Champlin, i8g 
 Roberts v. Lovell, 555 
 Roberts v. Richards, 432 
 Roberts v. Roberts, 50, 263, 265, 579 
 Robertson v. Bennett, 122, 209, 358, 448 
 Robertson v. Lea, 151 
 Robertson v. McDougall, 211, 420 
 Robertson w. Powell, 190 
 Robertson v. Wylde, 658 
 Robinett v. McDonald, 91, 529, 609 
 Robinett v. Ruby, 420 609, 614 
 Robins v. Hildredon, 149, 176 
 Robinson v. Day, 579 
 Robinson v. Drummond, 114, 659 
 Robinson v. Harvey, 305 
 Robinson w. Hatch, 299, 592, 594 
 Robinson v. Jermyn, 217 
 Robinson v. Jones, 82, 418 
 Robinson v. Keyser, 122, 151, 539 
 Robinson v. Marchant, 2, 230, 242, 535, 
 
 580, 583 
 Robinson v. May, 374, 387, 514, 648 
 Robinson v. MeUor, 177 
 Robinson v. Willis, 616 
 Robson V. Blackman, 483 
 Robson V. Smith, 405 
 Rochester White Lead Co. v. The City 
 
 of Rochester, 348, 470 
 Rockwell V. Brown, 443, 497, 701 
 Rodebaugh v. Hollingsworth, 123, 189, 
 
 565. 579. 644 
 Rodgers v. Kline, 251, 253 
 Rodgers v. Lacey, 189, 195 
 Rodriguez v. Tadmire, 717 
 Roe v. Birkenhead Railway Co. 470 
 Roe V. Hawkes, 525 
 Roediger v. The Staats Zeitung, 445 
 Roella V. Follow, 185, 565 
 Rogers v. Clifton, 432, 648 
 Rogers v. Elliott, i 
 Rogers v. Gravat, 197 
 Rogers v. Kline, 251, 253 
 Rogers v. Macnamara, 78, 308 
 
 Rogers v. Munns, 526 
 
 Rogers v. Rogers, 16 
 
 Rogers v. Spaulding, 377 
 
 Rolin V. Steward, 223, 244 
 
 RoUand v. Batchelder, 84, 87, 88, l6o 
 
 Rollins V. Hicks, 292, 692 
 
 Romayne v. Duane, 306, 646, 675, 685 
 
 Root V. King, 18, 72, 74, 75, 175, 259, 
 
 307, 439, 444, 483, 501, 524, 527, 
 
 647, 653, 669, 679 
 Root V. Lowndes, 69, 442, 654 
 Root V. Woodruff, 606 
 Ropke V. Brooklyn Daily Eagle, 600 
 Ropke «. Smith, 305 
 Rosbothara v. Campbell, 410 
 Rose V. Groves, 267, 581 
 Rosekrans v. Barker, 717, 735 
 Rosalie v. Buchanan, 491 
 Rosenburg v. Nesbit, 337 
 Rosenwald v. Hammeistein, 535, 588, 
 
 623, 650, 653 
 Rosewater v. Hofman, 18, 521, 652 
 Rosewell's Case, 576 
 Ross V. Langworthy, 730, 732 
 Ross V. Pines, 72, 292 
 Ross V. Ross, 524 
 Ross V. Rouse, 187, 188, 189 
 Rost V. Harris, 708 
 Roth V. Coursen, 490 
 Rotherham v. Priest, 608 
 Rounds V. Delaware R. R. Co. 103, 104 
 Rouse V. Ross, 187, 188, 189 
 Row V. Clargis, 123 
 Rowan's Case, 123 
 Rowcliffe V. Edmonds, 137, 182 
 Rowe V. London Pianoforte Co. 735 
 Rowe V. Roach, 292, 558, 559, 597 
 Rowland v. De Camp, 451, 640 
 Rowlands v. Samuel, 702, 729 
 Royce v. Maloney, 539, 545, 592, 640 
 Ruckley v. Kiernan, 424 
 Rue V. Mitchell, 185 
 Ruel V. Tatnel, 573, 644 
 Rumsey v. Webb, 307 
 Rundell v. Butler, 164, 184, 524, 526, 640, 
 
 654 
 Runkle v. Myers, 305 
 Ruohs V. Backer's Next Friend, 336, 359 
 Rush V. Cavanaugh, 245, 248, 501 
 Rushton V. Aspinwall, 138 
 Russ V. Brooks, 675 
 Russell V. Anthony, 236 
 Russell V. Corn, 534 
 Russell V. Kelly, 642, 644 
 Russell V. Ligon, 207 
 Russell V. Webster, 282, 534 
 Russell V. Wilkes, 215 
 Russell V. Wilson, 171, 198 
 Ruth V. Kutz, 522 
 
 Rutherford v. Evans, 499, 611, 644, 645 
 Rutherford v. Holmes, 347 
 Rutherford v. Moore, 152, 192, 6io 
 Ryalls V. Leader, 353, 355, 356, 365 
 
Ic 
 
 TABLE OF CASES. 
 
 Ryan v. Madden, 534 
 
 Ryckmanw. Delavan, 115, 116, 246, 642 
 
 Ryckman v. Parkins, ?;24 
 
 Ryder v. Burke, 483 
 
 Ryer ». Fireman's Journal Co. 115, 302, 
 
 592 
 Ryneveld v. Bain, i6l 
 
 Sabin v. Angell, 193 
 
 Safford v. The People, 25 
 
 Saflord v. Wyckoff, 64, 72 
 
 Sale V. Marsh, 179 
 
 Salinger v. Lusk, 586 
 
 Salisbury v. Cresswell, 708 
 
 Salisbury v. Union & Advertiser Co. 354, 
 
 357, 364 
 Salma v. Trosper, 39 
 Salmon v. Isaacs, 351 
 Salt Lake City v. Hollister, 470 
 Salter v. Browne, 197, 269 
 Sample v. Wynn, 646 
 Sampson v. Mackay, 528 
 Samuel v. Bond, 307, 589 
 Samuels v. Even'g Mail Asso. 39, 264, 
 
 J71, 587, 648, 686 
 Sanders v. Johnson, 524, 669, 678 
 Sanders v. RoUinson, 335, 633 
 Sanderson v. Caldwell, 114, 119, 199, 207, 
 
 227, 237, 245, 509, 517, 568, 640, 
 
 647 
 Sanderson v. Hubbard, 550, 552 
 Sanderson v. Jackson, 3 
 Sanderson v. Ruddes, 231 
 Sands 1>. Robison, 335, 348 
 Sandwell ti. Sandwell, 629 
 Sanford n. Bennett, 250, 301, 366, 449, 
 
 497, 531 
 Sanford «. Gaddis, 184, 188, 315, 319, 550, 
 
 551, 560, 601, 610, 611, 620 
 Sans «. Joerris, 304, 306 
 Sargent v. Helmbold, 481 
 
 Sargent v. , 525 
 
 Sartwell v. Parker, 725, 730 
 Sasser v. Rouse, 641 
 Saunders v. Bate, 560, 624, 625 
 Saunders v. Baxter, 359, 498, 655 
 Saunders v. Mills, 325, 356, 686 
 Saunderson v. Jackson, 3 
 Savage v. Robery, 579 
 Savile v. Jardine, 197, 527 
 Savill V. Kirby, 194 
 Savill v. Roberts, 700, 701 
 Saville t>. Sweeney, 533 
 Sawyer B. Eifert, 175, 669, 670 
 Sawyer v. Hopkins, 497, 653 
 Saxby v. Easterbrook, 689 
 Sayer v. Begg, 399, 400 
 Sayles v. Briggs, 708 
 Sayles v. Wooden, 593 
 Sayre v. Jewett, 522, 553, 566 
 Sayre v. Sayre, 671 
 Sayres S. Bachelor, 237 
 
 Scanlan v. Cowley, 64, 719, 722 
 
 Scarll V. Dixon, 385 
 
 Schaus, V. Putscher, 4S2 
 
 Schenck v. Schenck, 84, 635, 639, 650 
 
 Schepmoes v. Bousson, 489 
 
 Schewer v. Klein, 495 
 
 Schinisseur v. Kreilich, 190 
 
 Schippel V. Norton, 709, 740 
 
 Schnaderbeek v. Worth, 608 
 
 Schoiield v. Ferrers, 733 
 
 Schoonhoven v. Beach, 503 
 
 Schoohover v. Rower, 443, 611 
 
 Schrimper v. Heilman, 655 
 
 Schurick v. Kollman, 153, 575 
 
 Schwartz v. Thomas, 631 
 
 Scoble V. Lee, 166 
 
 Scot V. Hilliar, 172 
 
 Scott V. Cook, 523 
 
 Scott V. Hallock, 585 
 
 Scott V. McKinnish, 190, 307, 611, 615, 
 
 654, 655. 657, 669, 674, 678, 680 
 Scott V. Montsinger, 656 
 Scott V. Peebles, 161, 305, 646 
 Scott V. Renforth, 611 
 Scott V. Sampson, 671, 678 
 Scott V. Seymour, 91 
 Scott V. Shepherd, 97 
 Scott V. Simpson, 714 
 Scott V. Stansfield, 347 
 Scotten v. Longfellow, 717, 738 
 Scovel V. Kingsley, 90 
 Scovill V, Geddings, 348 
 Scoville V. New, 587 
 Scranton v. Chase, 647, 661, 677 
 Scrimper v. Heilman, 650 
 Scripps V. Foster, 506, 677 
 Scroker v. Kuttenburg, 535 
 Seaman v. Bigg, ig8 
 Seaman v. Nethercliff, 339, 340 
 Seaton v. Cordray, 172 
 Secor V. Babcock, 708, 709 
 Secor B. Harris, 251 
 Seely v. Blair, 24, 439, 665 
 Seely v. Cole, 608 
 Seine v. The State, 104 
 Selby V. Carryer, 176, 177 
 Selby V. Crew, 634 
 Self V. Gardner, 315, 623 
 Sell V. Facy, 266 
 Sellars v. Killen, 225, 612 
 Sellars v. Till, 225, 574, 612 
 Sempsey v. Levy, 245 
 Seneca Co. Bank v. Lamb, 226 
 Senior v, Medland, 371 
 Senter v. Carr, 673 
 Sergart «. Carter, 125 
 Servatlus v. Pichel, 199 
 Sesler s. Montgomery, 84, 296, 647 
 Seton «. Lafone, 128 
 Severance v. Hilton, 646 
 Sewall V. Catlin, 242, 243, 261, "267, 
 
 419 
 Sewall V. Evans, 113 
 
TABLE OF CASES. 
 
 Ici 
 
 Seward v, Jackson, 68 
 
 Sexlon V. Brock, 649 
 
 Sexton 0. Todd, i8g. 305 
 
 Seymour v. Butterworth. 458 
 
 Seymour v. Merrills, 66g 
 
 Seymour v. Wilson, 64 
 
 Shackell v. Rosier, 536 
 
 Shafer v. Ahalt, 189 
 
 Shafer v. Loucks, 722 
 
 Shaffer v. Kintzer, 167, 185, 522 
 
 Shaf tsbury's Case, 483 
 
 Shale V. Schwartz, 531 
 
 Shalmer v. Foster, 575. 
 
 Shank v. Case, 659 
 
 Sharp V. Mayor of New York, 2, 470 
 
 Sharp V. Scoggin, 25 
 
 Sharp V. Stephenson, 613, 667 
 
 Sharp V. Wilhite, 550 
 
 Sharps v. Johnston, 718, 719 
 
 Sharpe v. Stevenson, 314, 600 
 
 Shattac v. McArthur, 203, 516, 520, 521, 
 
 682 
 Shattuck V. Allen, 203, 373, 5^0, 511 
 Shaver v. Linton, 526 
 Shaw V. Shaw, 362 
 Shaw V. Stine, 64 
 Shaw V. Sweeney, 384 
 Shaw V. Thompson, 187 
 Shaw ». Wakeman, 249 
 Shay V. Tuolumne Water Co. 517 
 Sheahan v. Ahearne, 261 
 Sheahan v. Collins, 307, 665, 670, 675, 
 
 678 
 Shean v. Shay, 531 
 Shearlock v. Beardsworth, gg, 115 
 Sheckell v. Jackson, 447, 686 
 Shecut V. McDowell, 121, I2g 
 Sheddon v. Patrick, 132 
 Sheehee v. Resler, 739 
 Sheehey v. Cokeley, 313, 319 
 Sheely ». Biggs, 185 
 Sheffield V. Van Deusen, 8g 
 Sheik V. Hobson, 521 
 Shelby v. Carryer, 176, 177 
 Shelby v. Sun Print. Asso. 197, 208, 209 
 Sheldon v. Carpenter, 443, 702, 709 
 Shelfer v. Gooding, 333, 343 
 SheUenbarger v. Norris, 551 
 Shelton v. Nance, 207, 208, 367 
 Shelton v. Simmons, 675 
 Shepard v. Merrill, 307, 314, 600, 603 
 Shepard v. Watrous, 441, 497 
 Shepheard v. Whitaker, 242, 510 
 Shepherd v. Bliss, 622 
 Shepherd v. Wakeman, igi, 266 
 Sherburne v. Rodman, 733 
 Sheridan v. Sheridan, 541 
 Sherry v. Frecking, 522 
 Sherwin v. Swindall, 66, 68 
 Sherwood v. Chace, 137, 186 
 Sherwood v. Gilbert, 417 
 Shields v. Cunningham, 189 
 Shigley v. Snyder, 315 
 
 Shilling V. Carson, 653, 671, 675 
 
 Shimer v. Bronenburg, 528, 550, 553 
 
 Shinloub v. Ammerman, 185, 556 
 
 Shipley v. Todhunter, 137, 203, 398, 627, 
 
 Shipman v. Burrows, 263, 579, 581, 646 
 
 Shipp V. McCraw, 47, 163, 168, 170 
 
 Shippell V. Norton, 718 
 
 Shire v. King, 248, 249 
 
 Shirley v. Keathey, 501, 664, 674 
 
 Shock V. McChesney, 331, 655 
 
 Shodden v. McElwee, 338 
 
 Shoe & Leather Bank ». Thompson, 474 
 
 Shore v. Jones, 6go 
 
 Shore V. Smith, 583 
 
 Shoulty V. Miller, 650, 65g, 660, 665, 678 
 
 Shrosbery v. Osmaston, 726 
 
 Showell ®. Haman, i6g 
 
 Shroyerw. Miller, 551, 646 
 
 Shultz V. Chambers, 568 
 
 Shurtleff v. Stevens, 99, 367, 369 
 
 Shute V. Barrett, 525 
 
 Sibley, v. Tomlins, 232, 237, 238, 239 
 
 Sibson V. Nivin, 530 
 
 Sibthorp's Case, 182 
 
 Sidgreaves v. Myatt, 189, 307 
 
 Sidman v. Mayo, 172, 563 
 
 Siebert v. Price, 719 
 
 Silkman v. Crosby, 717 
 
 Silvers v. Nerdlinger, 536 
 
 Simmonds v. Brinkmeyer, 719 
 
 Simmonds v. Duane, 389, Jgo 
 
 Simmons v. Holster, i8o, 487, 636 
 
 Simmons v. Mitchell, 173 
 
 Simmons v. Morse, 505 
 
 Simonds v. Carter, 650 
 
 Simonsen v. Herold Co. 448, 556, 557, 
 
 562 
 Simpsey v. Levy, 571 
 Simpson v. Barlow, 244 
 Simpson v. Dismore, 1 13 
 Simpson v. Downs, 4ig 
 Simpson v. Hurdiss, 527 
 Simpson v. Robinson, 365, 4g9, 657, 659 
 Simpson v. Wiley, 631 
 Sims V. Kinder, 42g. 664 
 Sinclair v. Charles Phillippe, 225 
 Sinclair v. Fitch, 584 
 Singer v. Bender, 556, 640 
 Singer Sewing Machine Co. v. Domestic 
 
 Sewing Machine Co. 6g2 
 Skelton v. Seward, 527 
 Skidmore ». Bricker, 718 
 Skinner s. Kronnenburg, 544 
 Skinner v. Grant, 238, 305, 312, 317, 
 
 610, 672 
 Skinner v. Kitch, 3 
 Skinner v. Powers, 312, 316, 317, 325, 
 
 678 
 Skinner v. Shoppee, 527 
 Skinner v. White, 163, 198 
 Skutt V. Hawkins, 553 
 Slater «. Slater, 490 
 Sloan V. Gilbert, 666 
 
Icii 
 
 TABLE OF CASES. 
 
 Sloan V. Petrie, 659 
 
 Slocumb V. Kuykendall, 610 
 
 Sloman v. Chisholm, 247 
 
 Slowman v. Button, 137, 148, 180 
 
 Sluder v. Wilson, 185 
 
 Smale v. Hammon, 166, 169, 185 
 
 Small V. Clewley, 184, 185 
 
 Small V. McKenzie, 674 
 
 Smalley v. Anderson, 189, 191, 196, 302 
 
 Smawley v. Stark, 116, 642 
 
 Smart v. Blanchard, 85, 115, 116, 324, 
 
 611, 640 
 Smayles v. Smith, 235, 250 
 Smiley v. McDougal, 615 
 Smith's Case, 150, 193, 200, 201 
 Smith V. Andrews, 249 
 
 V. Armstrong, 395 
 
 V. Ashley, 69, 74, 102 
 
 V. Austin, 714 
 
 V. Bennett, 398 
 
 ■V. Buckecker, 315, 325 
 
 V. Bull, 92 
 
 ■V. Carey, 136, 568, 572, 573 
 
 V. Cattel, 700 
 
 V. Cleveland, 522 
 
 V. Coe, 154 
 
 V. Collins, 170 
 
 V. Cook, 652, 671 
 
 V. Cooker, 535, 577 
 
 V. Ege, 709 
 
 Ex parte, 361 
 
 V. GafFard, 129, 171, 538, 575 
 
 V. Hamilton, 539 
 
 ■V. Harrison, 449 
 
 V. Higgins, 370, 661 
 
 ■». Hixon, 533 
 
 V. Hobson, 533 
 
 ■V. Hodgeskins, 193, 374 
 
 ■■v. Hollister, 578, 609 
 
 ■V. Howard, 68, 338 
 
 V. Joyce, 227 
 
 V. Kerr, 374, 442, 526 
 
 V. Knowelden, 624 
 
 V. Lewis, 340 
 
 V. Lovelace, 649 
 
 V. Lynch, 531 
 
 V. Macdonald, 717 
 
 V. Matthews, 386, 420 
 
 V. Mawhood, 226 
 
 ■d. Miles, 125, 504, 640 
 
 V. Minor, 191 
 
 V. Musgrove, 375 
 
 V. Ottendorfer, 539, 544, 562, 580, 
 589, 669 
 
 V. Parker, 311, 312 
 
 V. Powell, 488 
 
 V. Richardson, 310, 678 
 
 V. Scott, 356, 365, 664 
 
 V. Silence, 190 
 
 V. Smith, 164, 165, 167, 189, 209, 
 307. 396. 532. 591. 623, 664, 
 700 
 
 V. Spooner, 112, 284, 286 
 
 Smith V. Stewart, 153, 168, i6g, 305 
 
 V. Taylor, 613, 645 
 
 V. Thackerah, 51 
 
 V. Thomas, 519, 5 go, 664 
 
 V. Tracy, 226 
 
 V. Tribune Co. 455, 607 
 
 V. Walter, 718 
 
 V. Ward, 151 
 
 V. Wilcox, 226 
 
 V. Williams, 539 
 
 V. Wood, 96, 207 
 
 V. Wyman, 313. 319, 655, 659 
 
 V. Youmans, 368, 648 
 Smithies v. Harrison, 310, 314 
 Snag V. Gee, 125 
 Snag V. Grey, 250 
 Sneade v. Badley, 290 
 Snediker v. Poorbaugh, 190 
 Snell V. Snow, 116, 129, 148, 575, 641 
 Snell V. Webling, 118 
 Snewln v. Doherty, 308 
 Snow V. Judson, 281, 691 
 Snow V. Witcher, 189, 313, 321, 594 
 Snowdon v. Lindo, 207, 314 
 Snyder v. Andrews, 87, 143, 307, 504, 
 
 510, 511, 600 
 Snyder v. Fulton, 209, 521 
 Soane v. Knight, 457 
 Societe Anonyme des Manuf. des Glacis 
 V. Tighlman Pat. Sand Blast Co. 
 692 
 Society Francais des Asphaltes v. Farrell, 
 
 273 
 Society of Solicitors v. Robertson, 99 
 Solomon v. Lawson, 114, 542, 561 
 Solomons v. Medex, 230, 617 
 Soltau V. Deheld, i 
 Solverson v, Peterson, 171, 207 
 Somers v. Holt, 530 
 Somers !<. House, n8, 130, 136 
 Somers v. Torrey, 334 
 Somerstaile's Case, 197 
 Somerville v. Hawkins, 431, 514, 515, 
 
 568, 648 
 Sonneborn v. Bernstein, 90, 656 
 South V. The State of Maryland, 347 
 Southam v. Allen, 224, 242, 243 
 Southee v. Denny, 137, 233, 251, 253, 
 
 624 
 Southey v. Sherwood, 694 
 Southoid V. Daunston, 266, 
 South West. K. R. Co. v. Mitchell, 713, 
 
 717, 726 
 Southwick v. Stevens, 209, 524, 634, 643, 
 
 683 
 Spaits V. Poundstone, 87 
 Spalding v. Lowe, 717 
 Spall V. Massey, 2, 548 
 Sparham v. Pye, 183 
 Sparrow v. Maynard, 170, 551 
 Speaker v. McKenzie, 198 
 Spear v. Hiles, 723, 740 
 Spencer v. Amerton, 370, 386 
 
TABLE OF CASES. 
 
 Iciii 
 
 Spencer v. McMasters, 189, 524, 534, 563, 
 
 659 
 Spencer v. Southwick, 117, 127, 313, 589 
 Spencer v. Tabele, 605 
 Spiering v. Andrae, 238, 453 
 Spill V. Maule, 395, 648, 658 
 Spooner, Se, 363 
 Spooner v. Keeler, 146, 185, 188, 525, 
 
 531. 545 
 Spotorno v. Fourichon, 157, 197 
 Springhead Spinning Co. v. Riley, 689, 
 
 690 
 Springstein v. Field, 646, 669, 678 
 Sproui », PilUbury, 557 
 Spruil V. Cooper, 666 
 Squier 7'. Gould, 579 
 Squire v. Johns, 243 
 Squires v. Whisken, 497 
 Stacei/. Griffith, 515 
 Stafford v. Green, 170, 522 
 Stafford v. Grier, 185 
 Stainbank v. Backett, 593 
 Stall V. Massey, 633 
 Stallings v. Newman, 125, 410, 545, 680 
 Stamp V. White, 171 
 Stancliff v. Palraeter, 708 
 Stanfield v. Boyer, igi, 6og 
 Stanhope v. Blith, 132, 185 
 Stanley v. Boswell, 249 
 Stanley v. Osbaston, 243 
 Stanley v. Webb, 357, 365, 606, 670, 
 
 676 
 Stannard v. Harper, 610 
 Stannus «. Finlay, 68, 510, 663 
 Stansbury v. Fogle, 736 
 Stanton v. Andrews, 377 
 Stanton *. Hart, 708, 718 
 Stanton v. Smith, 243 
 Stanwood v. Whitmore, 652 
 Stapleton v. Macartney, 210 
 Stapp V. Partlow, 705 
 Stark V. Chetwood, 284 
 Starr v. Gardner, 171, 238, 254 
 Starr v. Harrington, 315, 5o2, 659 
 State. See the People 
 
 V. Atchison, 470 
 
 V. Atkins, 566 
 
 V. Avery, 204 
 
 V. Barnes, 557 
 
 V. Balch, 438 
 
 V. Banner Pub. Co. 339, 447, 509 
 
 V. Beach, 436 
 
 V. Bixler, 167 
 
 V. Briggs, 650 
 
 V. Brown, 73, 161, 563 
 
 V. Burnham, 73, 323 
 
 V. Burroughs, 163 
 
 V. Butman, 306 
 
 V. Chace, 119 
 
 V. Civ. Dist. Ct. 689 
 
 V. Croteau, 510 
 
 V. Davis, 636 
 
 V. Dowd, 557 
 
 State, Ex rel. Lanning v. Lonsdale, 417 
 
 V. Farley, 18, 204 
 
 V. Henderson, 546, 565, 566, 568, 
 576 
 
 V. Honeyman, 66 .•aw— 1| 
 
 V. Jeandall, 18, 116, 510, 613, 630, 
 634. 653 
 
 V. Lewis, 129 
 
 V. Massey, 319 
 
 V. Mayberry, 667 
 
 V. Moody, l6i 
 
 V. Morgan, 319 
 
 V. Neese, 538 
 
 V. Oswald, 363 
 
 V. Powers, 619 
 
 ■"■ Riggs, 627, 655 
 
 11. Roulstone, 99 
 
 V. Schmitt, 213 
 
 V. Simmons, 66 
 
 V. Smiley, 193 
 
 V. Syphrett, 83 
 
 V. Vanderford, 319 
 
 V. Verry, 315 
 
 V. Wittner, 319 
 Staverton v. Relfe, 177, 184 
 Steadman v. Arden, 489 
 Steams v. Cox, 653 
 Steams v. Howe, 57 
 Stebbing v. Warner, 193 
 Steele v. Brannon, 355 
 Steele v. Phillips, 594 
 Steele v. Southwick, 18, 74, 114, I46,'2e9 
 Stees V. Kemble, 118, 144, .622, 675 
 Steever v. Beehl'er, 681 "^ 
 
 Steiber v. Wensel, 161, 189, 195, 546,(555 
 Stein V. Tabor, 634 ^^ 
 
 Steinman v. Clark, 595 
 Steinman ». McWilliams, 551, 646, 665, 
 
 666, 670, 671 
 Steketee v. Kimm, 85, 518, 556 
 Stener». The State, 559 
 Stephens v. Corben, 150 
 Sterling v. Jugenheimer, 171 
 Sterling v. Sherwood, 606 
 Stern v. Katz, 197 
 Stern v. Sevastopulo, 486 
 Stern v. Lowenthal, 621,654 
 Sterry v. Foreman, 263, 581, 621 
 Stevens v. Ask, 124 
 Stevens «. Handley, 122, 562, 565 
 Stevens v. Hartley, 274 
 Stevens v. Lacour, 709, 729 
 Stevens v. Midland Counties Railway, 
 
 470, 714. 737 
 Stevens v. Sampson, 68, 297, 345, 351 
 Stevenson v. Hayden, J 96, 197 
 Stevenson v. Newnham, 700 
 Steventon v. Higgins, 193 
 Steward v. Gromett, 707 
 Steward v. Yonng, 289 
 Stewart v. Beaumont, 715, 732 
 Stewart v. Hall, 341, 344 
 Stewart v. Howe, 171 
 
Iciv 
 
 TABLE OF CASES. 
 
 Stewart v. Layton, go 
 
 Stewart v. McKinley, 437, 463 
 
 Stewart v. Nugent, 485 
 
 Stewart v. Palmer, 33 
 
 Stewart v. Press Co. 298 
 
 Stewart v. Rowlands, 320 
 
 Stewart v. Swift Specific Co. 213 
 
 Stewart v. Wilkinson, 686 
 
 Stewart v. Wilson, 185 
 
 Stich V. Wisedome, 175 
 
 Stichd V. The State, 610, 630 
 
 Stiebeling v. Lockhaus, 490, 494, 495 
 
 Stiern v. Sevastopulo, 635 
 
 Sties V Kemble, 634 
 
 Stile V. Finch, 177 
 
 Stiles V. Comstock, 315, 650 
 
 Stiles V. Nokes, 311, 353, 357, 601 
 
 Stiles «. White, 99 
 
 Stilwell V. Barter, 209, 312, 316 
 
 Stirley v. Hill, 153 
 
 Stith V. FuUenweider, 497, 498, 665 
 
 Stitzel V. Reynolds, 146, 164, 183, 519, 
 
 522, 566 
 St. John V. St. John's Church, 536 
 St. Johnsbury, &c. R. R. Co. v. Hunt, 
 
 718 
 St. Martin v. Desnoyer, 149, 182, 504, 
 
 524 
 Stockdale w. Hansard, 328, 495 
 Stockdale v. Onwhyn, 534 
 Stockdale v. Tarte, 504, 633 
 Stocken v. CoUen, 628 
 Stockley v. Clement, 219 
 Stoke V. Miller, 144 
 Stokes V. Arey, 183 
 Stokes V. Stokes, 481 
 Stokes v. Stuckey, 181 
 Stokes V. White, 700 
 Stokley v. Hornidge, 700 
 Stoll V. Houde, 554 
 Stone V. Clark, 125, 126, 189, 256, 545, 
 
 550 
 Stone V. Cooper, 1,34, 149, 216, 542 
 Stone V. Hooker, 536 
 Stone V. Hutchinson, 738, 740 
 Stone zi. Katr, 151 
 Stone V. Smalcombe, 179, 193 
 Stone t/. Swift, 719 
 Stone V. Varney, 670 
 Stoner v. Audley, 172 
 Storey v. Challands, 403, 582 
 Storey v. Early, 652, 673, 676 
 Story V. The People, 362 
 Stout V. Wood, 92, 170 
 Stow V. Converse, 173, 209, 315, 501,646, 
 
 650, 660, 674, 679 
 Stowell V. Beagle, 316 
 Strachan v. Barton, 599 
 Strachey's Case, 543 
 Strader ». Snyder, 573, 633, 643, 678 
 Strakosch v. Press Pub. Co. 485, 489 
 Strang v. Holmes, 442 
 Strang v. Whitehead, 579 
 
 Straus V. Young, 709, 714 
 
 Strauss V. Francis, 452, 457, 528 
 
 Strauss v. Meyer, 115, 333, 334 
 
 Strauss v. Schwaizwaelden, 481 
 
 Street v. Bushnell, 622 
 
 Street v. Licenced Victr.allers' Society, 
 
 516 
 Streety v. Wood, 379 
 Strode v. Holmes, 258 
 Stroebel v. Wheney, 128 
 Stroebel v. Whitney, 163 
 Strong V. Kean, 517 
 Strong, J!e, 363 
 Stroop V. Swartz, 533 
 Stroud B. Roper, 736 
 Stuart V. Lovell, 60, 453 
 Stubbs V. Marsh, 106, 242 
 Stucker v. Davis, 568 
 Studdard v. Trucks, 184, 186 
 Stumer v. Pitchman, 151 
 Sturgenegger v. Taylor, 90, ig8 
 Sturgis V. Wiltsie, 677 
 Stutley V. Bulhead, 257 
 Styles V. Fuller, 656 
 Subley v. Mott, 534 
 SuUings v. Shakespeare, 503 
 Sullivan v. Holker, 522 
 Sullivan v. Lenihen, 502 
 Sullivan v. O'Leary, 630, 687 
 Sullivan v. White, 559 
 Sully V. Spearing, 291 
 Summers v. City Bank, 223 
 Sumner v. Buel, 113, 115 
 Sumner v. Utley, 253 
 Sunderlin v. Bradstreet, n8, 418 
 Sunman v. Brewin, 315 
 Supprenant v. Gobeille, 388 
 Surman v. Shelletto, 171 
 Sutherland v. McDonald, 155 
 Sutton V. Aiken, 738 
 Sutton V. Johnstone, 349, 558, 702 
 Sutton V. Plumridge, 381, 424, 625 
 Sutton V. Smith, 96 
 Suydam v. Moffat, 337, 653 
 Swadling v. Tarpley, 428, 658, 743 
 Swails V. Butcher, 659, 665 
 Swaim v. Stafford, 719 
 Swan V. Clelland, 525 
 Swan V. Rary, 319 
 Swan V. Tappan, 112, 114, 298 
 Swart V. Kimball, 739 
 Swartwout w. Dickerman, 709 
 Swearingen v. Stanley, 546 
 Sweeney v. Baker, 436, 447, 593 
 Sweeney ii. Michie, 506 
 Sweeney v. Pemey, 716, 730 
 Sweetapple v. Jesse, 138, 566 
 Swensgaard v. Davis, 70S 
 Swift V. Dickerman, 520, 652, 653, 664 
 
 671, 673, 674, 683 
 Swift V. Poughkeepsie, 30 
 Swinney v. Nave, 558 
 Swithen v. Vincent, 99, 534, 535 
 
TABLE OF CASES. 
 
 lev 
 
 Sybthorp's Case, 177 
 Symonds v. Carter, 192, 195 
 Symons v. Blake, 308, 524, 526, 650, 654, 
 655 
 
 Tabart v. Tipper, 74, 452, 457, 564, 6n, 
 
 618, 619 
 Tabbe v. Matthew, 131 
 Taft V. Howard, 566 
 Tait V. Culbertson, 99, 535 
 Tail V. Snewin, 717 
 Talbot's Case, 179 
 Talbutt V. Clark, 301, 685 
 Tallent v. Morton, 483 
 Talmadge v. Baker, 315 
 Tamlin v. Tamhn, 198 
 Tancred v. Leyland, 702 
 Tapham v. Wilson, 220, 451 
 Tapley v. Wainwright, 156 
 Tappan ». Beardsley, 418 
 Tappan v. Wilson, 45 1 
 Tardrew v. Brook, 497 
 Tarleton v. McGawley, i , 291 
 Tarpley v. Blabey, 638, 682, 683 
 Tasburgh v. Day, 290 
 Tassan v. Rogers, 266 
 Tate V. Humphrey, 656 
 Taverner v. Little, 538 
 Taylor v. Carpenter, 521 
 Taylor v. Carr, 227, 233, 238, 606, 607 
 Taylor v. Casey, 144, 179 
 Taylor v. Church, 75, 209, 230, 417, 521, 
 
 535. 680 
 Taylor v. Crowland Gas Co., 226 
 Taylor v. Hawkins, 298, 422, 430, 514, 
 
 515 
 Taylor v. How, 257, 556 
 Taylor w. Kneeland, 75, 114, 163, 259, 
 
 559. 565. 568, 576, 620 
 Taylor v. Moran, 559, 609, 610, 653. 
 Taylor v. Neri, 291 
 Taylor v. Perkins, 200 
 Taylor v. Robinson, 307, 510 
 Taylor v. Rowan, 308 
 Taylor v. Short, 149 
 . Taylor v. Starkey, 248, 250 
 Taylor v. State of Georgia, 499, 554 
 Taylor, v. Sturgingger, 90 
 Taylor v. Talley, 195, 266 
 Taylor v. Willans, 715 
 Teacy v. McKenna, 216, 509 
 Teagle v. Deboy, 307, 482, 501, 524, 
 
 656, 674 
 Teague v. Williams, 613, 629 
 Teal V. Fissel, 702, 706, 713 
 Teall V. Felton, 348 
 Tebbetts v. Goding, 139, 170, 178, 541 
 Teesdale v. Clement, 549, 644 
 Tempest v. Chambers, 174, 503, 620, 
 
 706 
 Templeton v. Graves, 297, 521 
 
 Tench v. Great Western Railway Co. 
 
 471 
 Tench v. Swinyard, 600 
 Tenney v. Clement, 125, X65, 545, 571 
 Terry v. Bright, 189, 560 
 Terry v. Fellows, 339, 366 
 Terry d. Hooper, 225, 241, 246 
 Terwilliger v. Wands, 39, 50, 261, 262, 
 
 263, 264, 271, 274, 277, 520, 652 
 Tettal V. Osborne, 172 
 Thaule v. Krekeler, 706, 713 
 The King. See Jtex. 
 The People. See State. 
 
 V. American Institute, 326 
 
 V. Atkins, 213 
 
 V. Booth, 608 
 
 ■V. Briggs, 665 
 
 V. Chase, 114 
 
 V. Compton, 362 
 
 V. Crosswell, 18, 73, 444, 510 
 
 V. Ev. News Assoc, 316 
 
 V. Fancher, 639 
 
 V. Few, 363 
 
 V. Freer, 72, 363 
 
 V. Girardin, 562 
 
 V. Green, 335, 345 
 
 V. Isaacs, 196 
 
 V. Jerome, 219 
 
 V. Jones, 237, 560 
 
 «. Kelly, 488 
 
 V. McCann, 55 
 
 V. McDowell, 317 
 
 V. Moore, 661 
 
 ■u. Parr, 116, 167, 630, 642 
 
 V. Rathbun, 2 
 
 V. Saxon, 64 
 
 V. Seaman, 648 
 
 V. Sharp, 488 
 
 V. Sherman, 649 
 
 V. Snyder, 629 
 
 e. Sturtevant, 362 
 
 V. Taylor, 67 
 
 v. Townsend, 441 
 The Queen. See Regina 
 The State. See State 
 Thimmelthorp's Case, 199 
 Thirman v. Matthews, 165, 193 
 Thomas v. Axworth, 179 
 Thomas v. Blaisedale, 200 
 Thomas' Case, 257 
 Thomas v. Churton, 347 
 Thomas v. Croswell, 259, 355, 357, 497. 
 
 508, 565, 579.654 
 Thomas v. Dunaway, 659, 664, 675, 682 
 Thomas v. Hunter, 737 
 Thomas v. Jackson, 245, 246 
 Thomas v. Piatt, 188 
 Thomas v. Rumsey, 100, 497, 736 
 Thomas v. Williams, 692 
 Thomason v. Demotte, 709, 738 
 Thompson v. Barkley, 563 
 Thompson v. Beacon Valley Rubber Co. 
 712, 713, 719, 732 
 
Icvi 
 
 TABLE OF CASES, 
 
 Thompson v. Bernard, 121, 151 
 
 Thompson v. Blasdale, 144 
 
 Thompson v. Bowers, 307, 323, 324, 594, 
 
 653, 674. 68s 
 Thompson v. Downing, 677 
 Thompson v. German Valley R. R. 632 
 Thompson v. Grimes, 504, 509 
 Thompson v. Knott, 183 
 Thompson v. Nye, 679 
 Thompson v. Pioneer Press Co. 307, 312 
 Thompson v. Powing, 335, 448 
 Thompson v. Shackell, 453, 457 
 Thompson v. The State, 445 
 Thompson v. Twenge, 243 
 Thorley's Case, 12, 14 
 Thorley Cattle Food Co. v. Massam, 692 
 Thorley v. Kerry, 208 
 Thorn v. Blanchard, 74, 332, 335, 378 
 Thorn v. Moser, 73, 96, 419 
 Thornton v. Stephen, 449, 631 
 Thorpe v. Macauley, 634 
 Thrall v. Smiley, 596, 613 
 Throgmorton v. Davis, 650, 654 
 Thurling v. No. Cornish Co. 737 
 Thurston v. Cornell, 64 
 Tibbs V. Brown, 532, 646 
 Tibbutt J/. Holt, 700 
 Tice V. Dmmpoole, 207 
 Tichborne v. Mostyn, 359, 360, 363 
 Tidman v. Ainslie, 306 
 TidweU v. Wotherspoon, 703 
 Tifft V. Tifft, 105 
 Tighe ». Cooper, 121, 322, 599 
 Tighe V. Wicks, 199 
 Tildesley w. Harper, 587 
 Tilk V. Parsons, 291, 582 
 Tilley v. Hudson River R. R. Co. 39 
 Tillotson V. Cheetham, 495, 524, 649, 687 
 Tillson V. Robbins, 194 
 Tilson V. Clark, 594. 601 
 Tilton V. Beecher, 489, 490 
 Timmennan v. Morrison, 225 
 Timothy v. Simpson, 702 
 Tindall v. Moore, 542 
 Titius V. Sumner, 650, 586 
 Titus V. FoUett, 229, 553, 554 
 Tobias v. Harland, 112, 293, 582, 623 
 Todd V. Dunn, 417 
 Todd V. Hastings, 234, 410 
 Todd V. Hawkins, 410 
 Todd V. Redford, 534 
 Todd V. Rough, 163, 164 
 Tomlinson v. Britilebank, 137, 148, 182, 
 
 238, 509 
 Tompkins v. Wisener, 1 16 
 Tompson v. Dashwood, 83, 385, 421 
 Tompson v. Knott, 183 
 Tonneman v. De Witt, 440 
 Toogood V. Spyring, 29S, 409, 422, 514, 
 
 648 
 Toose Case, 179 
 Torbitt V. Clare, 135. 165, 194 
 Torrance v. Hurst, 18 
 
 Torrey v. Field, 312, 315, 323. 33', 589^ 
 
 597 
 Townsend v. Barker, 197, 258 
 Townsead v. Hughes, 254, 525 
 Toye V. McMahon, 197 
 Tozer v. Child, 701 
 Tozer v. Marshford, 122, 174, 508 
 Trabue v. Mays, 121, 305, 524> ^47 
 Tracy v. Luke, 207, 686 
 Traphagen v. Carpenter, 682, 685 
 Travis v. Smith, 722 
 Treanor v. Donahue, 525 
 Treat v. Browning, 148, 302, 304, 307, 
 
 615, 685 
 Trekler v. Butter, 652 
 Tremain ». Cohoes Co. 72 
 Tremaine v. Parker, 430 
 Trenton Ins. Co. v. Perrine, 266, 471, 473,. 
 
 582 
 Trimmer v. Hiscock, 211, 243, 665 
 Tripp V. Thomas, 495, 519 
 Trogden v. Deckard, 739 
 Trotman 0. Dunn, 341 
 True V. Plumley, 153, 516. 519. ^53 
 Truman v. Taylor, 118, 190 
 Trumbull v. Gibbons, 84, 88, 91, 524 
 Trussell v. Scarlett, 417 
 Trustees, &c. ■». Utica, &c. I 
 Tryon «. Even. News Asso. 681 
 Tuam V. Robeson, 255 
 Tucker v. Call, 665 
 TuU V. David, 312,601 
 Tunnicliffe v. Moss, 94, 275 
 Tupling V. Ward, 486 
 TurnbuU v. Bird, 461 
 Turner w. Ambler, 721, 729 
 Turner v. Dinnegan, 720 
 Turner, £x parte, 363 
 Turner v. Foxall, 244, 676 
 Turner v. Horton, 527 
 Turner v. Merryweather, 114, 153, 204, 
 
 578 
 Turner v. O'Brien, 661, 725 
 Turner v. Ogden, 167 
 Turner v. Phoenix Ins. Co. 737 
 Turner v. Pullman, 356 
 Turner v. SuUivan, 357 
 Turner v. Turner, 700, 738 
 Turner v. Wright, 723 
 Turrill v. DoUoway, 504 
 Tuscan 7/. Maddox, 157 
 Tuson V. Evans, 399, 424, 504 
 Tut V. Kerton, 197 
 Tutchin's Case, 574 
 Tuthill V. Milton, 236, 547 
 Tuttle V. Bishop, 118, 138, 139 
 Tutty V. Alewin, 251 
 Tweed v. Davis, 347 
 Twombley v. Monroe, 509 
 Tyler v. Tillotson, 114, 553 
 
 Ullman v. Abrams. 732 
 
TABLE OF CASES. 
 
 Icvii 
 
 Ulmer v. Leland, 711 
 
 Underbill v. Taylor, 682 
 
 Underbill v. Wdton, 190, 191, 271 
 
 Underwood v. Parks, 307, 310 
 
 Union Electric Co. v. Electric Power Co. , 
 
 694 
 Union Turnpike Co. v. Jenkins, 522 
 United States v. Clark, 152 
 United States v. Cornell, 67 
 United States v. Jones, 149 
 United States v. Mathias, 152 
 United States v. Morris, 510 
 United States v. Paddleford, 168 
 United States v. Stone, 149 
 Updegrove v. Zimmerman, 307, 6ig 
 Upbam V. Dickinson, 526 
 Upsheer v. Betts, 316 
 Upton V. Pinfold, 150, 195 
 Upton V. Upton, 640 
 Usher v. Severance, 356, 504, 512, 647, 
 
 683 
 Usill V, Hales, 353, 364, 367 
 
 Vail V. Owen, 348 
 
 Vanada's Heirs v. Hopkins, 122 
 
 Van Aemam v. Bleistein, 471, 513 
 
 Van Aemam v. McCune, 448, 471 
 
 Van Aiken v. Caler, 506, 512 
 
 Van Ankin v. Westfall, 168, 169, 170, 
 
 307. 592 
 
 Van Benscboten v. Yaple, 604 
 
 Van Benthuysen v. Staub, 102 
 
 Van Cleef o. Lawrence, 87 
 
 Vanderbilt v. Matbis, 709, 714, 730 
 
 Vanderlip v. Roe, 119, 143, 506 
 
 Vanderslice v. Newton, 261 
 
 Van Derveer v. Sutphin, 311, 312, 589, 
 602, 653, 664, 676, 678 
 
 Vanderzee v. McGregor, 335, 377, 386, 
 423 
 
 Van Deusen v. Sutpbin, 673 
 
 Van De Wiele v. Callanan, 717 
 
 Van Epps v. Jones, 238 
 
 Van Hook, Xe, 363 
 
 Van Keurin v. Griffis, 621 
 
 Van Ness v. Hamilton, 163, 593, 597 
 
 Van Pelt v. McGraw, 261 
 
 Van Renseelaer z;. Dole, 121, 151, 171, 
 179 
 
 Van Rensselaer v. Jones, 31 
 Van Sandau, jRe, 363 
 Van Slyke v. Carpenter, 546 
 Van Spike v. Cleyson, 402 
 Van Steenbergh v. Kortz, 189 
 Van Tassel v. Capron, 235, 238 
 Van Tuyl v. Riner, 285, 293 
 VanVecbten v. Hopkins, 85, iii, 116, 
 1^0, 503, 508, 509, 546, 565, 566, 576 
 Van Voorhes v. Leonard, 705, 709 
 Van Wyck v. Aspinwall, 379, 386 
 Van Wyck v. Gutbrie, 379, 595. 607 
 Vasseur v. Livingston, 625 
 
 Vaugh V. Congdon, 347 
 
 Vaughan v. Havens, 185, 565 
 
 Vaus V. Middlebrook, 163, 164, 503 
 
 Vausse v. Lee, 340 
 
 Venafra v. Johnson, 728 
 
 Vennard v. Wotton, 178 
 
 Verner v. Verner, 339 
 
 Vessey v. Pike, 156, 311, 675 
 
 Vicars v. Wilcocks, 59, 270, 272 
 
 Vick V. Whitfield, 669, 671 
 
 Viele V. Gray, 50, 54, 55, 65, 72, 75, loi, 
 
 207, 370, 558 
 Vifquain v. Finch, 651 
 Villers v. Monsley, 200, 208 
 Vincent v. Dixon, 650 
 Vines ®. Serell, 680 
 Vivian's Case, 175, 244 
 Vogel V. Gruaz, 331, 378 
 Von Latham v. Rowan, 708 
 Von J^athan v. Libby, 702 
 
 Wachter v. Quenzer, 313, 502, 594, 595, 
 
 598, 601, 639 
 Waddington v. Cousins, 638 
 Wadsworth v. Bentley, 442, 443 
 Waffle V. Dillenback, 518 
 Wagaman v. Byers, 167, 171, 510, 623 
 Waggoner v. Richmond, 179 
 Wagner v. Holbrunner, 307, 674 
 Wagner v. Renk, 739 
 Wagstaff V. Ashton, 307, 674 
 Waistel v. Holman, 557 
 Waithman v. Weaver, 302 
 Wakefield v. Smithwick, 297, 399, 404 
 Wakelin v. Morris, 506, 517, 518, 680 
 Wakley v. Cooke, 207, 319, 443, 524 
 Wakley ». Healey, 114, 131, I37, 13*. 
 
 204, 251, 554, 578, 645 
 Wakley v. Johnson, 638, 682, 687 
 Walcot V. Walker, 694 
 Walcott V. Hind, 120 
 Walden (Sir L.) v. Mitchell, 122, 123, 
 
 167, 236 
 Waldheim v. Sichel, 725 
 Wales ®. Norton, 155 
 Walker v. Brogden, 255, 467, 483, 591 
 Walker v. George, 665 
 Walker v. Goe, 272, 331 
 Walker v. Kamp, 712 
 Walker v. Pitman, 717, 739 
 Walker v. So. East. Ry. Co. 713 
 Walker v. Tribune Co. 209, 541, 580 
 Walker v. Winn, 208, 684 
 Wall V. Hoskins, 163, 170 
 Wallace v. Bennett, 211, 243, 245, 541, 
 
 580 
 Wallace v. Carroll, 423 
 Wallace v. Storey, 681 
 Wallace v. Young, 177, 178 
 Waller v. Loch, 388 
 Wallis V. Alpine, 714 
 Wallis V. Mease, 149 
 
icviii 
 
 TABLE OF CASES. 
 
 Wallis V. Morgan, 555 
 
 Walmsley ». Russell, 166 
 
 Walrath v. Nellis, Ii8, 184, 185 
 
 Walser v. Thies, 736 
 
 Walsh V. Henderson, 563 
 
 Walsh V. The State, 559 
 
 Walter v. Beaver, 141 
 
 Walters v. Mace, 618, 622 
 
 Walters v. Nettleton, 530 
 
 Walton V. Singleton, 137, 144, 191, 195 
 
 Wans V. Stephens, 727 
 
 Wanzer v. Wyckoff, 700, 711, 719, 734, 
 
 739 
 Ward V. Clark, 170, 185, 561 
 Ward V. Colyhan, 566 
 Ward V. Dick, 609, 655, 659 
 Ward V. Haight, 496 
 Ward V. Reynolds, 135 
 Ward V. Smith, 83, 402 
 Ward V. Thome, 176 
 Ward V. Weeks, 94, 275 
 Warden v. Bailey, 349 
 Ware v. Cartledge, 652 
 Ware v. Clowney, 248 
 Ware v. Johnson, 13, 43 
 Waring v. M'Caldin, 419 
 Warman v. Hine, 508 
 Warne v. Chadwell, 656 
 Warner v. Bruen, 731 
 Warner v. Lockerby, 604, 669, 68 1, 682 
 Warner v. Paine, 296, 337, 340 
 Warr v. Jolly, 397 
 Warren v. Norman, 199 
 Warren v. Warren, 396, 628 
 Wartnaby, Re, 82 
 Warton v. Gearing, 540 
 Warton v. Searing, 239 
 Washburn v. Cooke, 69, 413, 414 
 Wason, Ex parte, 325 
 Wason V. Walter, 17, 329, 365 
 Waterhouse v. Hatfield, 480 
 Waters v. Guthrie, 623 
 Waters v. Jones, 140, 177, 178 
 Watkin v. Hall, 302, 311, 313, 323, 324, 
 
 509, 540, 573. 592. 678 
 Watkins v. Lee, 708, 739 
 Watson V. Bennett, 470 
 Watson V. Churchill, 672 
 Watson V. Hampton, 170, 185, 567 
 Watson V. Hazard, 702, 739 
 Watson V. McCarthy, 200 
 W tson V. Moore, 324, 656, 675, 687 
 Watson V. Musick, 561, 610 
 Watson V. Nicholas, 122, 151, 565, 572 
 Watson V. Reynolds, 284, 286, 290, 674 
 Watson V. The People, 364 
 Watson V. Trask, 208 
 Watson V. Whitmore, 725 
 Walters v. Smoot, 314, 663 
 Watts V. Fraser, 95, 520, 535, 637, 682, 
 
 683, 684 
 Watts V. Greenleaf, 567 
 Watts V. Greenlee, 89, 171, igo, iq6, 616 
 
 Watts V. Hilton, 583, 739 
 
 Watts V. Morgan, 555 
 
 Waugho. Waugh, 164, 191 
 
 Wavle V. Wavle, 132, 525 
 
 Weatherhead v, Armitage, 199 
 
 Weatherstone v. Hawkins, 395, 429 
 
 Weaver v. Devendorf, 348 
 
 Weaver v. Hendrick, 647, 664, 685 
 
 Weaver v. Lloyd, 155, 311, 500, 59S 
 
 Weaver v. Townsend, 721 
 
 Weaver v. Ward, 440 
 
 Web V. Poor, 179 
 
 Webb J/. Beavan, 151, 163, 166 
 
 Webb V. Cecil, 99, 100 
 
 Webb V. East, 486, 487, 635 
 
 Webb V. Fitch, 168 
 
 Webb V. Hill, 707 
 
 Webb V. NichoUs, 249 
 
 Weblin v. Mayer, ri8, 179 
 
 Weckerley v. Geyer, 67 
 
 Weed V. Bibbins, 194, 565, 639 
 
 Weed V. Foster, 208 
 
 Weed V. Stimson, 213 
 
 Weeks' Case, 193 
 
 Weil V. Altenhofen, 197 
 
 Weil V. Schmidt, 128, 178, 640 
 
 Weiman v. Maybee, 378, 380 
 
 Weinberger v. Shelly, 708, 738 
 
 Weir V. Allen, 293 
 
 Weir V. Hoss, 82, loi, 107, 114, 563, 566, 
 
 574, 633 
 Weirback v. Trone, 171 
 Weiss V, Whittemore, 222, 267 
 Welch V. Boston & Prov. R. R. 710. 
 Welker v. Butler, 515 , 
 Wells V. Com. Mut. Ins. Co. 57 
 Wells V. Webber, 203, 639 
 Welsh V. Eakle, 504 
 Wenman v. Ash, 84, 294, 300, 384, 513, 
 
 514.515 
 Wennhak v. Morgan, 84, 308 
 Wentworth v. Bullen, 700 
 Wertheim w. Altschuler, 731 
 Wesley v. Bennett, 134 
 West. Counties Manure Co. v. Lawes 
 
 Chem. Manure Co. 281, 284 
 West Ti. Callaghan, 290 
 West V. Hanrahan, 178 
 West. News Co. v. Wilmarth, 737 
 West V. Smallwood, 706 
 West V. Smith, 579 
 West V. Walker, 675 
 Weston V. Beeman, 731 
 Weston t. Dobniet, 339 
 Weston V. Lumley, 591 
 Weston V. Worden, 623 
 Westwood V. Cowne, 582 
 Wetherbee v. Marsh, 678 
 Wetherhead v. Armitage, 199, 241 
 Wetherell v. Clerkson. 582 
 Wetsel v. Lennon, 551 
 Wetzlar v. Zachariah, 717 
 Whalley v. Pepper, 700, 705 
 
TABLE OF CASES. 
 
 Icix 
 
 Wharton v. Brook, 224, 252 
 
 Wharton v. Clover, 252 
 
 Wharton v. Gearing, 573 
 
 Wheatcrof t v. Mouselejr, 483 
 
 Wheatley v. Wallis, 181 
 
 Wheaton ®. Beecher, 437 
 
 Wheeler v. Haines, 575, 607 
 
 Wheeler v. Hayes, 607 
 
 Wheeler v. Nesbitt, 713, 714, 726. 732, 
 
 734 
 Wheeler v. Robb, 590, 611, 625 
 Wheeler v. Shields, 302 
 Whistler v. Ruskin, 455 
 Whitaker v. Bradley, 46, 225, 242, 243 
 Whitaker v. Carter, 315, 367, 368, 550, 
 
 663 
 Whitaker v. Freeman, 559, 590, 625, 670 
 White V. Beck, 733 
 White V. Carroll, 251, 388 
 White V. Cheesbro, 246 
 White V. Delavan, 115, 246, 642 
 White v. Harwood, 533 
 White V. Jordan, 519 
 White V. Merritt, 281 
 White V. Nellis, 49 
 White V. Nicholls, 18, 73, 75, 297, 300, 
 
 .424. 514. 559 
 
 White V. Sayward, 116, 644 
 
 White V. Tyrrell, 66l 
 
 Whitehead v. Fownes, 252 
 
 Whitehead v. Kennedy, 526 
 
 Whitehead v. Kitson, 691 
 
 Whitfield V. South East. R. R. Co. 476 
 
 Whiting V. Smith, 561, 611 
 
 Whitley v. Adams, 395, 482 
 
 Whitlocke v. Musgrove, 113 
 
 Whitney v. Janesville Gazette, 669, 679, 
 682 
 
 Whitney v. Peckham, 710 
 
 Whittemore v. Ware, 587 
 
 Whittemore v. Weiss, 682 
 Whittington ti. Gladwin, 225, 242, 243 
 Whitworth v. Hall, 700, 738 
 Whrede v. Bennett, 678 
 Whyte V. Young, 524 
 Wicker v. Hotchkiss, 718 
 Wickham v. Baker, 482, 495 
 Wicks V. Fentham, 707, 709, 714 
 Wicks V. MacNamara, 490 
 Wicks v. Shepherd, 266 
 Widrig B. Oyer, 162, 192 
 Wierback v. Trone, 171 
 Wies V. Fanning, 590 
 Wiggin V. Coffin, 524, 714, 731 
 Wilbom V. Odell, 501, 610, 612, 613 
 Wilby V. Elston, 171, igo, 260, 664 
 Wilcox V. Edwards, 150, 171 
 Wilcox V. Moon, 740 
 Wilcox ». Webb, 560 
 Wildee v. McKee, 6 
 Wiley V. Campbell, 169, 613 
 Wilkinson v. Howel, 707 
 
 Wilks' Case, 151 
 
 Willans ». Taylor, 713, 714, 715 
 
 Willet V. Harmer, 674, 675 
 
 Williams v. Beaumont, 474 
 
 Williams v. Bickerton, 147 
 
 Williams t>. Breedon, 522 
 
 Williams v. Bryant, 190, 620 
 
 Williams v. Cooper, 623 
 
 Williams ». Cowley, 122 
 
 Williams v. Gardiner, 145 
 
 Williams v. Godkin, 214 
 
 Williams v. Greenwade, 190, 646, 675 
 
 Williams v. Haig, 646 
 
 Williams «. Harrison, 610, 650 
 
 Williams v. Hill, 263 
 
 Williams v. Holdridge, 190, 200, 533 
 
 Williams v. Hutchinson, 66 
 
 Williams v. Karnes, 171, 193. 2«4. 207 
 
 Williams v. McManus, 161, 271 
 
 Williams v. Minor, 152, 609, 614, 655, 
 
 664, 667, 674, 676 
 Williams v. Ramsdale, 490 
 Williams v. Smith, 352 
 Williams n. Spears, 550 
 Williams v. Spowers, 465, 514 
 Williams v. Stott, 125, 198, 572, 617 
 Williamson v. Freer, 82, 299, 418 
 Williamson v. McRavey, 713, 725 
 Willis V. Shepherd, 258 
 Williston V. Smith, 680 
 Willmett V. Harmer, 655, 666 
 Willower v. Hill, 605, 675, 677, 684, 
 
 686 
 Willymote v. Wetton, 183 
 Wilmarth v. Mountford, 711, 731. 732 
 Wilmot V. McCabe, 485 
 Wilner v. Hold, 179 
 Wilson ®. Barnett, 123, 191, 384. 398 
 
 V. Beighler, 312, 539. 589 
 
 V. Bennett, 587 
 
 V. Bishop of Salisbury, 499 
 
 V. Cloud, 189 
 
 V. Collins, 348 
 
 V. Cottman, 137, 262 
 
 v. Crow, 177 
 
 V. Dubois, 285, 290, 291. 293, 
 580. 581 
 
 Ex parte, 167 
 
 V. Fall River Herald Pub. Co. 642 
 
 V. Fitch, 324, 541, 643. 668 
 
 V. Goit, 39, 50, 264, 268, 271, SI9. 
 652 
 
 V. Hamilton, 114 
 
 ■V. Harding. 186 
 
 V. King, 719 
 
 V. Lawson, 142 
 
 V. Marks, 307 
 
 V. Mayor of New York, 348 
 
 t. McKenzie, 91 
 
 V. Mitchell, 620 
 
 V. Nations, 319 
 
 V. Natrons, 611, 659 
 
TABLE OF CASES, 
 
 Wilson V. Noonan, 95, 236, 259, 647, 66r, 
 678 
 V. Oliphant, 188 
 V. Pattrick, 156 
 V. Reed, 372, 461, 5 17 
 V. Robbing, 189, 191, 195 
 ■V. Robinson, 659, 660 
 V. Runyon, 189, 241, 579 
 V. Stephenson, 69, 102, 403, 404 
 V. Sullivan, 335, 336, 592 
 V. Tatum, 172 
 V. Walter, 17 
 
 Wiltham ®. Gowen, 710 
 
 Wilton v. Brignell, 635 
 
 Winchell t. Strong, 681 
 
 Windsor v. Oliver, 235, 525 
 
 Wing V. Wing, 150 
 
 Wingard v. Cox, 490 
 
 Winston v. English, 489 
 
 Winter®. Donovan, 501, 609, 631 
 
 Winter v. Sumvalt, 196 
 
 Wiseman v. Wiseman, 575 
 
 Wissing V. Combs, 503 
 
 Witcher's Case, 197, 2b6 
 
 Witcher v. Richmond, 551, 552 
 
 Witham v. Gowen, 710 
 
 Wodkrop V. Thacher, 142 
 
 Wogan V. Somerville, 613 
 
 Wolbrecht v. Baumgarten, 551 
 
 Wolcott V. Hall, 669 
 
 Wolf V. Rodifer, 610 
 
 Wolmer v. Latimer, 679 
 
 Wombley v. Monroe, 503 
 
 Wonderly v. Nokes, 665 
 
 Wonson v. Sayward, 182 
 
 Wood v. Adam, 621 
 
 Wood V. Bailey, 709 
 
 Wood n. Brown, 246, 561, 562 
 
 Wood V. Durham, 669, 671 
 
 Wood V. Graves, 709 
 
 Wood V. Gunston, 344, 525 
 
 Wood V. Helbish, 675 
 
 Wood V. Jones, 493 
 
 Wood V. Pringle, 497 
 
 Wood V. Scott, 550, 552 
 
 Wood V. Southwick, 188, 666 
 
 Wood V. Sutor, 709 
 
 Wood V. Wiman, 380 
 
 Woodard v. Dowsing, 203, 259 
 
 Woodard v. Eastman, 210 
 
 Woodbeck v. Keller, 601, 665, 666 
 
 Woodburn v. Miller, 207, 208, 637, 674 
 
 Woodbury v. Sackrider, 132 
 
 Woodbury v. Thompson, 191, 264, 580 
 
 Woodcock V. Houldsworth, 628 
 
 Woodfall's Case, 72, 107 
 
 Woodford v. Ashley, 738 
 
 Woodgate w. Ridout, 356, 462 
 
 Wooding V. Oxley, 702 
 
 Woodling V. Knickerbocker, 102, 211, 
 
 503 
 Woodruff V. Bradstreet Co. 580 
 
 Woodruff V. Richardson, 324, 325 
 
 Woodruff V. The Bradstreet Co. 35a, 580 
 
 Woodruff V. Vaughan, 546 
 
 Woodruff V. Wooley, 258 
 
 Woods V. Anderson, 669 
 
 Woods V. Pangburn, 193 
 
 Woods V. Vernon, 532 
 
 Woodward v. Andrews, 591 
 
 Woodward v. Cotton, 474 
 
 Woodward v. Lander, 378 
 
 Woodworth v. Mills, 717. 722 
 
 Woolcott V. Goodrich, 152 
 
 Woolcott V. Hall, 302 
 
 Woolfe V. Burke, 691 
 
 Woolnoth V. Meadows, 117, i37. I53. 303 
 
 Woolsey v. Judd, 695 
 
 Wormouth v. Cramer, 556, 562, 674 
 
 Worth V. Butler, 92, 144, 189, 565 
 
 Worthington v. Houghton, 209 
 
 Worton V. Smith, 483 
 
 Wren v. Heslop, 739 
 
 Wren v. Weild, 292, 331, 494 
 
 Wright V. Ascheim, 332 
 
 Wright V. Britton, 630 
 
 Wright V. Church, 713 
 
 Wright V. Clements, 559. S^O, 563 
 
 Wright V. Lindsay, 170, 590, 625 
 
 Wright V. Moorhouse, 256 
 
 Wright V. Orient Mut. Ins. Co. 57 
 
 Wright V. Page, 85, 118, 140. 163, 164, 
 194, 641 
 
 Wright V. Shroeder, 646, 671 
 
 Wright V. Sullivan, 592 
 
 Wright V. Tallis, 694 
 
 Wright V. Woodgate, 299, 400, 648, 658 
 
 Wyant v. Smith, 170, 606 
 
 Wyatt V. Buell, 333 
 
 Wyatt V. Cocks, 623 
 
 Wyatt V. Gore, 83, 632 
 
 Wyatt V. Webb, 314 
 
 Wyatt V. White, 701, 724 
 
 Yardley v. Ellis, 177, 248 
 
 Yardrew v. Brook, 441 
 
 Yates V. Lansing, 347 
 
 Yates, Re, 363 
 
 Yates V. Reed, 647 
 
 Yearley v. Ashley, 193 
 
 Yearsley v. Heame, 700 
 
 Yeates v. Reed, 440, 588, 645, 647, 680, 
 
 681 
 Yocum V. Polly, 714 
 York's Case, 66 
 York V. Cecil, 177 
 York V. Johnson, 138, 390, 395 
 York V. Pease, 346, 501, 657 
 Yotto V. Lano, 632 
 Young v. Bennett, 669, 678, 
 Young V. Kuhn, 246, 542, 653 
 Young V. Lyall, 712, 727 
 Young V. McCrae, 261, 280, 281 
 
TABLE OF CASES. 
 
 CI 
 
 Young V. Miller, 162, 164, 193, 204 
 
 Young V. Slemons, 678 
 
 Younger v. Duffin, 655 
 
 Youngs V. Ransom, 8 
 
 Yrisarri v. Clement, 227, 522, 527, 576, 
 
 644 
 Yundt V. Yundt, 561 
 
 Zantmeyer, v. Weightman, 700 
 
 Zantzinger v. Weightman, 730, 732 
 Zebley ». Storey, 740 
 Zeig V. Orts, 5'56, 561, 562 
 Zenobia v. Axtell, 561, 562 
 Zier V. Hoflin, 121, 213, 263 
 Zimmer v, Schleehauf, 531 
 Zuckerman v. Sonnenschein, 345, 314 
 
 • V. Moor, 669, 679 
 
PART I. 
 
 THE LAW 
 
 OF 
 
 SLANDER AND LIBEL. 
 
SLANDER AND LIBEL. 
 
 CHAPTER I. 
 
 INTRODUCTORY. 
 
 Language as a means of effecting injury — Slander — 
 Libel — Defamation — Redress — The law of libel — 
 Object in view — Division of subject — Attempts to de- 
 fine libel. 
 
 § I. Among the means which one individual may em- 
 ploy to affect another or to affect society in general are 
 sounds and signs.^ Language, in so far as it is the me- 
 dium for communicating or exciting ideas, consists of a 
 system of Sounds and signs, and is the chief among the 
 sounds and signs which affect individuals or society in 
 genera].^ Language expressed in sound is oral language 
 
 ' As ringing bells, firing g-uns.beat- 
 ing drums, clapping hands, hooting, 
 &c., see Martin v. Nutkin, 2 P. Wms. 
 266 ; Soltan v. De Held, 2 Sim. N. S. 
 133; 16 Jur. 326: First Bap. Ch. v. 
 Sch. R. R. Co. 5 Barb. 79; Tarleton 
 V. McGawley, Peake's Cas. 205 ; Mo- 
 shier V. Utica & Sch. R. R. Co. 8 
 Barb. 427 ; Cole v. Fisher, 1 1 Mass. 
 137; Loubz V. Hafner, i Dev. 185; 
 Gregory v. Brunswick, 6 M. and G. 
 953; Trustees. &c. v. Utica, &c. 6 
 Barb. 313; Davidson v. Isham, i 
 Stock. 186; Rogers v. Elliott, 25 The 
 Reporter, 496 ; Supreme Court, Mass. 
 March, 1888, and see 37 Alb. L. J. 
 347 ; noise of pupils in schools. Com. 
 Dig. Act. on Cas. c. 294; noise in 
 
 manufacturing steam boilers. Fish v;_ 
 Dodge, 4 Denio, 311; barking of dogs,. 
 Brill V. Flagler, 23 Wend. 354. See 
 an article entitled " Noisy Nuisances," 
 published in New York Daily Tran- 
 script, January 10th, 1871. In Lan- 
 sing V. Smith, 8 Cow. 146, Sutherland, 
 J., compares theaction for a nuisance 
 to an action for slander for words not 
 actionable in themselves. 
 
 2 "There is nothing in nature but 
 may be an instrument of mischief." 
 (Ld. Chief J. Pratt, in Chapman v. 
 Pickersgill, 2 Wils. 145.) 
 
 " A very great part of the mischiefs 
 which vex the world arise from words." 
 (Burke, in a letter to his son.) Incau- - 
 tious language is the dry rot of the- 
 
2 EFFECT OF LANGUAGE. [CH. I, 
 
 or speech. Language expressed in signs is written lan- 
 
 world. ''Arnqng the abounding in- 
 iquities of this age, the iniquity of the 
 tongue, that little member, set on fire 
 by hell, is not least. And among the 
 evils of the tongue is there any more 
 pernicious and deadly, and yet more 
 common and epidemical than back- 
 biting and slander ? And hence it is, 
 I have been encouraged to engage in 
 this work, which is nothing else but a 
 naked and methodical collection of the 
 remedies prescribed by the law against 
 this malady." (Preface to Shepard on 
 Slander.) 
 
 Murder may be done lingua del 
 facto. (14 Q. B. D. 282.) Hero was 
 done to death by slanderous tongues. 
 
 Words are contained under the 
 general expression of a human act, as 
 also sig^s which have the same effect 
 with words. (Wood's Civil Law, 28.) 
 A fraudulent representation is in effect 
 a wrongful action. (Sharp v. Mayor 
 of N. Y. 25 How. Pr. R. 396.) Scri- 
 bere est agere. (The People v. Rath- 
 bun, 21 Wend. 509, 540.) On the trial 
 of Algernon Sidney, the prisoner in- 
 quired. And is writing an actf to 
 which Lord Jeffries replied. Yes, it is 
 agere. Words spoken are a thing 
 done. Murray v. McSwyney, 9 Ir. R. 
 Com. L. 543. Words are things. Note 
 to § 267, post. 
 
 Language is not the only mode by 
 which reputation may be injured. 
 " Scandal signifies a report or rumor 
 or an action whereby one is affronted 
 in public." (Jacob's Law Diet.) Thus, 
 in Brewer v. Day, 11 M. and W. 625, 
 one cause of special damage was, that 
 defendants, by causing plaintiff's goods 
 to be seized on an unfounded claim 
 for debt, occasioned his customers to 
 think him insolvent; and in trespass 
 for breaking and entering plaintiff's 
 dwelling, upon false charge of having 
 stolen property concealed therein, /^r 
 iquod she was injured in her credit, it 
 was held that the jury might give 
 damages as aggravated by the false 
 ■charge. (Bracegirdle v. Orford, 2 
 Maule and Selw. "]"]. See Jeffries v. 
 Duncombe, 11 East, 226; Spall v. 
 Massey, 2 Stark. Cas. 559.) As to 
 injury to reputation by act, see Beau- 
 
 mont V. Reeve, 8 Adol. and Ell. 483 ; 
 and I Siderfin, 375, where one Cooper 
 brought an action upon the case 
 against Witham and his wife, for that 
 the wife maliciously intending to marry 
 him, did often affirm that she was sole 
 and unmarried, and importuned et 
 strenue inquisivit the plaintiff to 
 marry her; to which affirmation he 
 gave credit, and married her, when in 
 acta she was wife of the defendant; 
 so that the plaintiff was much trou- 
 bled in mind, and put to great charges, 
 and damnified in his reputation. He 
 had a verdict, but no judgment; for 
 by Twisden, J., the action lies not, be- 
 cause the thing here done is felony; 
 no more than if a servant be killed, 
 the master cannot have an action per 
 quod servitiuin amisit, quod curia 
 concessit; see also Vidian's Entries, 
 where is a form of declaration for say- 
 ing : Regard brothers went to a house 
 which was a brothel and ought to be 
 torn down, special damage that the 
 house was torn down. As to defama- 
 tion by deed, see Of Libels : An Insti- 
 tute of the Laws of England, by 
 Thomas Wood, LL.D., 1720. Where 
 a banker having sufficient funds in 
 hand belonging to his customer, dis- 
 honors that customer's check, he is 
 liable to an action for damages. (Rob- 
 inson V. Marchant, 7 Q. B. 918; and 
 see Marzetti v. Williams, i B. & A. 
 415.) And where a notary protested 
 a note for non payment, without hav- 
 ing previously presented the note to 
 and demanded payment of the maker, 
 he was held liable in an action for the 
 damage thereby occasioned to the 
 reputation of the maker. (MS.) 
 
 The following case occurred in 
 Lower Canada: Lebeau sued Turcot 
 for damages, arising out of the facts 
 that both were members of the same 
 church, that Turcot took up the col- 
 lection in that church, and that Turcot 
 intentionally, and for the purpose of 
 humiliating Mr. Lebeau and holding 
 him up to ridicule, passed him by 
 without giving him the opportunity of 
 making the usual contribution. The 
 defendant plead that his services were 
 gratuitous ; that he was therefore un- 
 
§2.] 
 
 EFFECT OF LANGUAGE. 
 
 guage, or writing and effigy. By writing ^ is intended to 
 be understood, every means of symbolizing language by 
 alphabetic characters, with every kind of implement, as 
 pen, pencil, graver, type ; with every kind of pigment, as 
 ink, lead, chalk ; on any kind of substance, as paper, 
 parchment, linen, wood, copper, steel, stone, or on any 
 fence, wall or post.- And by effigy being intended to be 
 understood every other means of communicating or ex- 
 citing ideas other than by speech or by writing.^ Kffigy, 
 therefore, includes pictures, statues, gestures. 
 
 § 2. The eflFects of language may be beneficial or in- 
 
 der no obligation to take the collec- 
 tion from Lebeau, and that moreover 
 it was through inadvertence that he 
 omitted to pass the plate to that gen- 
 tleman. The court held the latter al- 
 legation disproved ; it was shown that 
 defendant had spoken to several peo- 
 ple about the aflair, laughed with them 
 about it, and told them to watch Le- 
 beau and see what he would do. Even 
 if defendant's services were gratuitous, 
 he was bound to perform them in a 
 right manner and without subjecting 
 any one to ridicule. It was a very 
 small matter, but the defendant was in 
 the wrong. Judgment was given for 
 $5, with costs. 
 
 Language, however licentious and 
 abusive, is not a trespass (Adams v. 
 Rivers, 1 1 Barb. 397) nor an assault 
 (Meade and Belts case, i Lewin C. C. 
 184J, but language may aggravate a 
 trespass. (Mirest v. Harvey, 5 Taunt. 
 442; Bell v. Midland Ry. Co. 10 C. B. 
 N. S. 308.) Language may constitute 
 an imprisonment (Homer v. Battyn, 
 Buller's N. P. 62 ; Pike v. Hanson, 9 
 N. H. Rep. 491), and cruelty. (Du- 
 rant v. Durant, i Hagg. Ecc. R. 769; 
 Lockwood -v. Lockwood, 2 Curteis' 
 Ecc. R. 281, cited and approved Bihin 
 V. Bihin, 17 Abb. Pr. R. 26.) A re- 
 cognizance to keep the peace is not 
 forfeited by reproachful words. (4 Bl. 
 Com. ch. xviii.) As to speech being 
 the foundation of a criminal prosecu- 
 tion, see 2 Bishop on Crim. Law, § 813, 
 and note to § 8, /losi. 
 
 If a man menaces my tenants at 
 will, of life and member, per quod 
 they depart from their tenures, an ac- 
 tion upon the case will lie against him, 
 but the threatening without their de- 
 parture is no cause of action. (Vin. 
 Ab. Actions on Case, N. c. 21.) 
 
 Action lies for threatening work- 
 men to maim and prosecute them, 
 whereby the master lost the selling of 
 his goods, the men not daring to go 
 on with their work. (Garret v. Tay- 
 lor, Cro. J. 567, pi. 4, A. D. 1621; 
 Skinner v. Kitch, Law Rep. 2 Q. B. 
 393; see, however, Ashley v. Harri- 
 son, I Esp. 48, axiApost, § 201.) 
 
 1 Writing includes printing (Saun- 
 derson w. Jackson, 2 Bos. and Pul. 238 ; 
 Henshaw v. Foster, 9 Pick. 318) and 
 marks with a lead pencil ((3eary v. 
 Physic, 5 B. and C. 238 ; Classon v. 
 Bailey, 14 Johns. 484), or chalk 
 (Mortimer v. M'Cullan, 6 M. & W. 
 58). An English clergyman was tried 
 for libelling another by sowing in his 
 garden seeds in such a manner that 
 when they germinated they exhibited 
 the words "Whitehead is a scamp." 
 See Bouvier's Law Diet. tit. Effigy. 
 
 2 Austin v. Culpepper, Skin. 123; 
 Show. 314. 
 
 ' Reg. V. Sullivan, 11 Cox's Crim. 
 Cas. 44; DuBost v. Beresford, 2 
 Camp. 512; Jeffries 7/. Duncombe, 11 
 East, 226; Mezzara's Case. 2 City 
 Hall Recorder, 113; Johnson v. Com- 
 monwealth, 14 Atl. Rep. 425. 
 
SLANDER. 
 
 [CH. I. 
 
 jurious. If injurious, the injury may amount to a wrong, 
 entitling the party wronged to redress by law. The 
 designations of the wrong and of its remedy and of the 
 wrong-doer diifer according to the means employed to 
 effect the wrong. 
 
 § 3. One may be so injuriously affected by speech as 
 to be what is termed slandered ; and, in that event, the 
 speech so affecting him is called slander^ or a slander, and 
 the speaker is denominated a slanderer. 
 
 ' Slander is defaming a nnan in his 
 reputation by speaking or writing 
 words which affect his life, office or 
 trade; or which tend to his loss of 
 preferment in marriage or service, or 
 to his disinheritance, or which occa- 
 sion any particular damage. Intro- 
 duction to the Law relative to trials at 
 Nisi Prius. By a Learned Judge 
 [Lord Bathurst]. Vol. I, p. 3). 
 
 Slander is the imputation: I. 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 to perform an office or em- 
 ployment of profit, or want of integrity 
 in an office of honor. 4. Words pre- 
 judicing a person in his lucrative pos- 
 session [profession] or trade. 5. Any 
 untrue words occasioning actual dam- 
 age, (i Hilliard on Torts, ch. vii, § 3.) 
 
 Slander is defined to be " the pub- 
 lishing of words in writing or by 
 speaking, by reason of which the per- 
 son to whom they relate becomes ha- 
 ble to suffer some corporeal punish- 
 ment, or to sustain some damage." 
 (Bac. Abr.) 
 
 " Slander being an unwritten or 
 unprinted libel, and libel a written or 
 printed slander." (i Hilliard on 
 Torts, ch. vii, § 2.) 
 
 The word slander, as used in for- 
 mer times, seems to have had a mean- 
 ing different to that in which it is now 
 used. Thus: " But because some are 
 wrongfully slandered {accused). King 
 Henry I ordained that none should be 
 
 arrested or imprisoned for a slander 
 {accusation) of mortal offense, before 
 he was thereof indicted by the oaths 
 of honest men before those who had 
 authority to take such indictments." 
 (Mirrour of Justices, ch. xi, § 22.) " In 
 this same year the mysseles (lepers) 
 thorowoute Cristendom were slaun- 
 dered that they had made covenant 
 with Sarasenes for to poison all Cris- 
 ten men." (Capgrave's Chronicle of 
 England, p. 186.) 
 
 In a document addressed by the 
 Dean and Chapter of Aberdeen to 
 Bishop Gordon, dated January 5, 1558, 
 is the following: 
 
 ^'■Imprimis, that my Lord Bishop 
 cause the kirkmen within his diocie to 
 reform themselves in all their slan- 
 derous manner of living, and to re- 
 move their open concubines, as well 
 great as small. Secundo, that his 
 Lordship will be so good as to show 
 edificative example — in special in re- 
 moving and discharging himself of the 
 company of the gentlewoman by whom 
 he is greatly slandered ; without the 
 which be done, diverse that are part- 
 ners say they cannot accept counsel 
 and correction of him which will not 
 correct himself," &c., &c. (Reg. 
 Aberd. Ixi.) 
 
 If any slanderously charge another 
 with any false crime (Ridley's Civil 
 Law, 31); and in the statute 3 Edw. 
 I, ch. xxxiv, none are to publish false 
 news whereby slander may grow be- 
 tween the king and his people. 
 
 Mis-say, to slander, to speak ill. 
 (Spencer.) 
 
J§ 4, 5-J 
 
 IJBEL. 
 
 § 4. One may be so injuriously affected by writing or 
 effigy as to be what is termed libeled ; and, in that event, 
 the writing or effigy so affecting him is called libel or a 
 libel, and he who puts forth such writing or effigy (the 
 publisher or venter) is denominated a libeler,^ "one whose 
 heart is more dark and base than that of an assassin, or 
 than his who commits a midnight arson." ^ 
 
 § 5. So, too, formerly in England, one might be so 
 injuriously aflfected by language, whether in the form of 
 speech, writing, or effigy, as to be what was termed de- 
 famed ; ^ in which event the language so affecting him was 
 
 " I would not, . . 
 
 Have you so slander any moment's 
 leisure 
 
 As to give words or talk with the 
 Lord Hamlet." (Shakespeare.) 
 1 "Libeler — he who shall, to the 
 infamy of another, write, compose, or 
 publish a book, song, or fable, or ma- 
 liciously procure any of those acts to be 
 done, is guilty of a libel.'" (Just. Inst.) 
 " The distinction between the sa- 
 tirist and the libeler is, that the one 
 speaks of the species, the other of the 
 individual ; the one holds the glass to 
 thousands in their closets, that they 
 may contemplate the deformity, and 
 thereby endeavor to reduce it, and 
 thus by private mortification avoid 
 public shame. Thus the satirist pri- 
 vately corrects the fault, like a parent, 
 while the libeler mangles the individ- 
 ual Uke an executioner." (Joseph 
 Andrews, vol. H, 5.) 
 
 " And indeed there is not in the 
 world a greater error than that which 
 fools are apt to fall into, and knaves 
 with good reason to encourage, the 
 mistaking a satirist for a libeler." 
 (Pope, Anon. Satires and Epistles — 
 Advertisem ent.) 
 
 "The early English satirists were 
 mighty in their vocation against the 
 lawyers, the regular and secular cler- 
 gy, and the more eminent professors. 
 The political ballad-mongers aimed 
 higher. They stoutly supported Simon 
 de Montfort against Henry the Third. 
 This support was probably the occa- 
 
 sion for the statute of 1275, 'against 
 slanderous reports or tales to cause 
 discord betwixt king and people.'" 
 (See The Barons' War, &c., by W. H. 
 Blaauw, M. A.; The Miracles of Si- 
 mon de Montfort, Camden Soc. Pub.) 
 
 A barrator is a mover of suits and 
 quarrels in courts .... by 
 spreading false rumors and reports to 
 raise discord among neighbors, (i 
 Coke's Inst. 368.) Lampooner, see 3 
 Lev. 248. 
 
 2 Oswald's Case, i Dall. 329. 
 Fielding gives the following descrip- 
 tion of a slanderer: " Vice hath not, I 
 believe, a more abject slave ; society 
 produces not a more odious vermin ; 
 nor can the devil receive a guest more 
 worthy of him, nor possibly more wel- 
 come to him, than a slanderer." 
 
 ' Defamed seems formerly to have 
 been used in the sense of charged, 
 thus in the form of indictment referred 
 to in "The Mirrour of Justices," we 
 find it so used; as thus: " I say, Se- 
 bourge there is defamed by good peo- 
 ple of the sin of heresy," &c., and in 
 Lord Somers' Tract on Grand Juries, 
 "the constitution intrusts such inqui- 
 sitions in the hands of persons of un- 
 derstanding . . . that might suf- 
 fer no man to be falsely accused or 
 defamed:''' " Thieves openly defamed 
 and known." (4 Bl. Com. ch. xxii.) 
 " There is a. fame against Mr. Spencer 
 for not burying Edward Merrick as a 
 Christian ought to be." (Calendar of 
 State Papers, Domestic Series, of the 
 
DEFAMATION. 
 
 [CH. 
 
 called defamation,^ and he from whom the language pro- 
 ceeded was denominated a defamer. 
 
 § 6. Again, by means of language may be effected a 
 wrong termed " a malicious prosecution," as also the wrong 
 termed " slander of title." Neither to the authors of these 
 wrongs, nor to the parties affected, has any descriptive 
 appellation been assigned. 
 
 § 7. Besides slander, libel, defamation, malicious pros- 
 ecution and slander of title, language is the means by 
 which may be or might formerly have been effected the 
 offenses called treason,^ heresy, sedition, blasphemy, pro- 
 fanity, scandalum magnatum, calumny, scolding, brawling, 
 menaces, deceit, perjury, and many more.* 
 
 § 8. Slander is a private wrong or tort, cognizable by 
 the common law, the remedy for which is a civil action 
 formerly, known as an "action on the case for words," and 
 now as an action or the action of or for slander.* 
 
 reign of Charles I, 1633-34. Edited Ecclesiastical Statutes, p. 336, and 
 
 by John Bruce.) copious notes ; and see Jacob's Law 
 
 " To diffame is, as Bartal saith, to Diet. tit. Cuckinstool An action lies 
 
 utter reproachful speeches of another for a conspiracy to defame. Wildee 
 
 with an intent to raise up an ill fame v. McKee, I Central Reporter, 919; 
 
 of him, and therefore himself express- 21 The Reporter, 469; Mott v. Dan- 
 
 eth the act itself in these words : Dif- forth, 6 Watts, 304; Haldeman v. 
 
 famare est in mala fama ponere. Martin, 10 Barr. 369; Hood w. Palmer, 
 
 Albeit diffamations properly consist in 8 Id. 237; Buffalo Lubricating Oil Co. 
 
 words, yet may they also be done by v. Standard Oil Co. 42 Hun, 1 53-7- 
 
 writing, as by diffamatory libels, and In Denmark, there was a species of 
 
 also by deeds, as by signs and gestures libel called Bersoglisvisur or free- 
 
 of reproach, for these no less show the speaking song. When King Magnus 
 
 malicious mind of the difFamer than (say about A. D. 1040) gave dissatis- 
 
 words do." (Ridley's Civil Law, 339.) faction to his subjects, a meeting was 
 
 > See § 10, post. held at which lots were drawn as to 
 
 " In the United States, there must which one of those assembled should 
 
 be some overt act to constitute the act address one of these songs to the king, 
 
 of treason. (Bouvier's Law Diet. tit. See Det Norske Folkes Historic, 3 
 
 Treason.) vols., Christiania, 1852-5; also Den 
 
 ' Scolding often repeated, to the Danske Erobring of England og Nor- 
 disturbance of the neighborhood, mandict, Copenhagen, 1863, and 
 makes it a nuisance, always punisha- North British Review, Nov., 1863. 
 ble at the leet, and therefore indict- * Slander is not, like libel, an in- 
 able. (The Queen v. Foxby, 6 Mod. dictable offense. (Bailey v. Dean, 5 
 145.) As to brawling, see Stephen's Barb. 207.) Nor is a single precedent 
 
§§9-II-] DEFAMATION. 7 
 
 § 9. Libel is both a public wrong or crime and a pri- 
 vate wrong or tort, cognizable by the common law. The 
 remedy for the public wrong is by indictment or by crim- 
 inal information.^ The remedy for the private wrong is a 
 civil action, known as an action or the action of or for 
 libel. 
 
 § 10. Defamation was an ecclesiastical offense, cogni- 
 zable only in the ecclesiastical courts, by a proceeding in 
 such courts.^ 
 
 § II. The redress sought in the actions of slander and 
 libel is a pecuniary compensation, called damages, for the 
 injury sustained by the party complaining, to be recovered 
 from the party complained against, and is intended 
 solely for the benefit of the complainant;® on the other 
 hand, the proceeding in the ecclesiastical court was, in 
 theory at least, one solely for the benefit of the party com- 
 plained against. It was to awaken him to a sense of the 
 
 of any criminal proceeding for unwrit- the same publication. Folkard, 686. 
 
 ten imputations upon the characters Said not to be a mitigation of damages, 
 
 of individuals to be found, except in Bundy w. Maginess, 18 Pac. Rep. 668. 
 cases of high treason, . . . and ^ See Information, Mandamus, and 
 
 it must have been as constituting Prohibition, by John Shortt. 
 rather an offense against the govern- ^ Suits in ecclesiastical courts for 
 
 ment, than an injury to the individual, defamation were abolished in England 
 
 and being therefore seditious, that by statutes 18 & 19 Vict. ch. xli, and 
 
 words reflecting on a magistrate in the in Ireland by statutes 23 & 24 Vict, 
 
 immediate execution of his office were ch. xxxii. 
 
 for the first time in the reign of Queen ' " Action for slander is to recover 
 
 Anne held to be indictable. (Reg. v. damages for words spoken of a person 
 
 Langley, 2 Ld. Raym. 1060; Holt R. who is thereby injured in his reputa- 
 
 654. But I am not aware that Mr. tion, and for words spoken of a person 
 
 Starkie has adverted to this case, or which affect his life, office, profession, 
 
 to the doctrine which is laid down in or trade, or which tend to his loss, or 
 
 it. (i Mence on Libel, 90.) See Pre- occasion any particular or special 
 
 cedent of Indictment for Slander, 13 damage to him." (Onslow v. Home, 
 
 Texas App. 220; 2 Index Reporter, 3 Wilson, 177.) Suits for slander are 
 
 357. "sometimes rendered necessary for 
 
 In Folkard on Libel, 586, it is said : the protection of character wickedly 
 
 " In all cases where the matter charged and unjustly assailed, but much more 
 
 is not actionable, except on proof of frequently prosecuted by men of ques- 
 
 special damage, it cannot be the sub- tionable character from a wicked spirit 
 
 ject of an indictment." of litigation and a sordid hope of gain." 
 
 The party libeled may resort to Senator Lee, in Dolloway v. Turrill, 
 
 both remedies. The conviction for a 26 Wend, iff]; post, note to § 142. 
 libel is no defense to a civil action for 
 
8 LAW OF LIBEL. [CH. 1. 
 
 sin he had committed, and cause him to do penance there- 
 for pro salute animcs. In a proceeding for defamation, no 
 damages were nor could be awarded to the party defamed. 
 The defamer might be censured, compelled to recant the 
 defamation, to perform penance and pay costs, and for dis- 
 obedience to the court's decree be excommunicated. Be- 
 yond this the ecclesiastical court had no power.^ 
 
 § 12. The law applicable to the wrongs here termed 
 slander and libel is sometimes designated the law of libel, 
 sometimes the law of defamation, and sometimes the law 
 of slander and libel. For no better reason than that it is 
 the one most in use, we shall adopt the term law of libel. 
 
 § 13. The term law of libel, as generally understood, 
 comprises the law as applicable to nearly all the wrongs 
 which may be effected by means of language. Our pur- 
 pose, however, is not to consider the whole of the law of 
 libel so understood, but so much of it only as applies to 
 slander, and to libel as private wrongs. 
 
 § 14. As it is sometimes only that words which affect 
 another amount to a wrong, we propose to ascertain and 
 state, what are the rules by which to test, in any particular 
 instance of words affecting another, whether such words do 
 or do not constitute a wrong, what kind of wrong, and 
 what is its appropriate remedy. In the execution of this 
 
 » The ecclesiastical law is part of As to suits in spiritual or ecclesias- 
 
 the English common law (Reg. v. tical courts, they are for the reformation 
 
 Milhs, 10 CI. and F. 534, 671 ; and see of manners or for punishing of heresy, 
 
 Catterall v. Catterall, i Robertson, defamation, laying violent hands on a 
 
 580; Bishop on Marriage and Divorce, clerk, and the like. . . . Things 
 
 g 9), but has no status in the State of that properly belong to these jurisdic- 
 
 New York. (Young v. Ransom, 31 tions are matrimonial and testamen- 
 
 Barb. 49. 60.) tary and defamatory words for which 
 
 The power of the ecclesiastical no action lies at law, as for calling 
 
 court IS the infliction of penance pro one adulterer, fornicator usurer or 
 
 jfl/«^^ a^zwzffi and awarding costs, but the like (Jacob's Law Diet tit Courts 
 
 not damages. (4 Co. 20; 2 Inst. 492.) Ecclesiastical). The courts of Pie- 
 
 The sentence of an ecclesiastical court powder had jurisdiction of certain ac- 
 
 in a proceeding for defamation has its tions for slander. (Jacob's Law Diet 
 
 counterpart in the Scotch law under tit. Court of Piepowders ) 
 the name of Palinode. 
 
§ 1 5-] DIFFICULTIES. . 9 
 
 purpose we desire not merely to collect, epitomize and 
 classify under appropriate titles, the reported adjudications, 
 but to probe the subject to its core and unfold the prin- 
 ciples which it involves ; to show not only what has been 
 decided, but the principles of those decisions ; to lay down, 
 if we can, such rules as will enable one under any given 
 state of circumstances to determine when a wrong, as 
 slander or libel, has occurred, when a remedy may prop- 
 erly be sought, and how it may be pursued and obtained. 
 To accomplish this aim, we shall advert to some element- 
 ary principles, the relevancy of which may not at once 
 be apparent, but the reason for which will be observed 
 as we proceed, and without a reference to which we 
 should in vain attempt to make ourselves or our subject 
 understood. 
 
 § 15. A thorough investigation into elementary prin- 
 ciples seems peculiarly necessary in treating on the law of 
 libel, because it is a branch of the law in which, perhaps, 
 more than any other, principles have, from various causes, 
 been most subject to perversion by undue influences, have 
 been less scientifically treated and more superficially con- 
 sidered. The law of libel has been denounced as vague, 
 fluctuating and incomprehensible. Of the decisions on 
 the subject many are conflicting, more are scarcely recon- 
 cilable, and the reasoning in support of all is, with very 
 few exceptions, more or less weak, obscure, and unsatis- 
 factory. It has almost been claimed or conceded that 
 there is something so subtle in the principles of the law of 
 libel as to elude detection, and the law of libel has come 
 to be regarded as a parasitical growth on the main body 
 of the law, presenting features so exceptional as to render 
 inapplicable those general principles which govern other 
 branches of legal science.^ It will be our endeavor to 
 
 » A noted peculiarity of the law of (Encyc. Brit, voce Libel.) Holt, writ- 
 libel is its vagueness and uncertainty, ing in 1816, says: " It is indeed in the 
 
IG 
 
 DIFFICULTIES. [CH. I. 
 
 show that properly understood there is nothing excep- 
 tional in the wrongs called slander and libel, nor in the 
 legal principles applicable to these wrongs ; that these 
 wrongs are governed by the same principles which apply 
 to all other wrongs ; and that there is nothing in the law 
 of libel itself which should render it more difficult to 
 comprehend than any other division of jurisprudence. 
 
 § 1 6. While profoundly sensible of the difficulty prop- 
 erly to execute this, our self-imposed task, and of our com- 
 parative inability to do justice to the subject, we neverthe- 
 less flatter ourselves that we shall be able to lay before our 
 readers a more systematic outline of the principles of the 
 law of libel than any which has hitherto been offered or 
 attempted.^ 
 
 § 1 7. Chief among the difficulties to be encountered is 
 the combating many of the existing theories and ideas on 
 the subject, most of them coming down to us with the 
 prestige of high authority, hallowed by time, and all of 
 them received for law. We esteem it an error and a mis- 
 fortune that among text writers on legal subjects there 
 has been such a reverence for precedent, such an unques- 
 tioned following the one of the other,'' so little attempt 
 
 very nature of the subject (the Law shall many times, with patience and 
 
 of Libel) that it is extremely difficult meditation, dissolve and undo many 
 
 to clear it of those popular conceits knots, which a greater wit, distracted 
 
 and of that vagueness of generality with many matters, would rather cut 
 
 which adhere to it as a question of in two than unknit ; and at the least, 
 
 political discussion. (Holt on Libel, if my invention or judgment be too 
 
 Preface.) barren or too weak, yet, by the bene- 
 
 1 ■' Though I could not be ignorant fit of other arts, I did hope to dispose 
 
 either of the difficulty of the matter or digest the authorities and opinions 
 
 which he that taketh in hand shall . . in such order and method as 
 
 soon find, or much less of my own in- they should take light one from 
 
 ability, which I had continual sense another, though they took no light 
 
 and feeling of, yet because I had more from me." (Bacon's Introduction to 
 
 means of absolution than the younger his Reading on the Statute of Uses.) 
 sort, and more leisure than the greater » Making new books, as apothe- 
 
 sort, I did think it not impossible to caries make new mixtures by pouring 
 
 work some profitable effect, the rather out of one vessel into another. (Bur- 
 
 because where an inferior wit is bent ton Anatomy of Melancholy, repeated 
 
 and conversant upon one subject, he by Sterne.) 
 
§ l8.] DIVISION OF SUBJECT. II 
 
 at enlarged and connected views of their subjects in their 
 principles untrammeled by precedent, rendering text-books 
 collections of materials for essays rather than essays. For 
 ourselves, we brave being deemed presumptuous, in the 
 hope that we may be useful, and where, after the many years 
 of patient reflection we have bestowed upon our subject, we 
 have arrived at any conclusion which conflicts with exist- 
 ing ideas or decisions, we shall be deterred neither by the 
 antiquity of the precedent, nor the high position of its 
 author or its indorsers, from expressing our dissent.^ Be- 
 sides a general and connected view of the subject, we shall 
 study to present a faithful record of all the adjudged de- 
 cisions and dicta, and as really we have no pet theory to 
 maintain, and are influenced solely by the desire to elicit 
 the true principles on which the law concerning our sub- 
 ject is based, we shall be especially careful throughout to 
 distinguish from received authorities what are merely our 
 inferences or suggestions ; and we promise our readers 
 most religiously to abstain from any intentional garbling 
 of authority or the willful withholding of any decision or 
 dictum in order to support any particular view or theory. 
 The meager attempts heretofore made to reduce the subject 
 into any systematic form obliges us, to a considerable ex- 
 tent, to treat the subject as res nova. 
 
 § 1 8. We have divided our subject into two principal 
 divisions — slander and libel. Slander and libel have this 
 in common, that each may be, and usually is, effected by 
 means of language. As we have described them, their 
 distinguishing feature of difference is, that the one is effect- 
 ed by oral language, the other by written language. To 
 language in writing is, in mosi cases, attributed a greater 
 capacity for injury than is attributed to language spoken 
 or speech, so that language which, if spoken, gives no 
 
 1 " Of what account are the most At best they are only venerable delu- 
 venerated opinions if they be untrue ? sions." Sir William Hamilton. 
 
12 
 
 DIVISION OF SUBJECT. 
 
 [CH. I. 
 
 > A distinction was very early 
 taken in the Roman law between slan- 
 der spoken and written, and the in- 
 juria verbalis was deemed to consti- 
 tute a much lower degree of injury 
 than the malum carmen and famosus 
 melius. (Holt on Libel, 21.) Holt 
 wrote in 1816. He says, p. 225: "It 
 has lately become a question whether 
 there be any difference between writ- 
 ten and unwritten slander;" and then 
 he refers to Bradley v. Methuen, 2 
 Ford's MS. 78, in which Lord Hard- 
 wicke is reported to have said that 
 courts do make a distinction "between 
 words written and bare words." In 
 Thorley's Case, 4 Taunt. 355, the 
 question was: Whether an action 
 would lie for words written, when 
 such action would not lie for them if 
 en ? " For myself," said Chief 
 
 right to redress, may, if reduced to writing, give a cause 
 of action.! It is proper to say that the broad distinction 
 
 are actionable without proof of special 
 damage." (Broom's Com. p. 513 
 [762].) 
 
 Words written and published may 
 be actionable which, if spoken, would 
 not be so without special damage. 
 But they must be such as, in the com- 
 mon estimation of mankind, are cal- 
 culated to reflect shame and disgrace 
 upon the person concerning whom 
 they are written, or hold him up as an 
 object of hatred, ridicule and con- 
 tempt. (Fonville v. McNease, i Dud- 
 ley [So. Car.], 303.) As to what is 
 libelous, and as to the distinction be- 
 tween libel and slander. (Rice v. 
 Simmons, 2 Harring, 417; Layton v. 
 Harris, 3 Harring, 406.) Vox emissa 
 valet, litera scripta manet. (Beebe 
 V. Bank of N. Y. I Johns. 529, 571.) 
 
 In 1685, on the occasion of bring- 
 ing in a bill to make words disparag- 
 ing the King's (James II) person or 
 government treason, it was opposed 
 by Serjeant Maynard, on the ground, 
 among others, that words " were often 
 ill heard, and ill understood, and were 
 apt to be misrecited by a very small 
 variation." When others insisted that 
 " out of the abundance of the heart 
 the mouth speaketh." he brought the 
 instance of our Saviour's words : De- 
 stroy this temple, &c., and showed 
 how near the temple was to this tem- 
 ple, pronouncing it in Syriac, so that 
 the difference was almost impercepti- 
 ble. (5 Camp. Lives of Chanc. ch. 
 ciii, p. 21.) 
 
 There was something superstitious 
 in the horror with which the Iceland- 
 ers regarded a Hbel, and no offense 
 among them was more surely or 
 bloodily avenged than the publication 
 of satirical verses, or the setting up of 
 aTVzi^— that is, an insulting or inde- 
 cent figure, or a horse's head on a 
 pole— on the lands of another. (See 
 " The Story of Burnt Njal ; or, Life in 
 Iceland at the End of the Tenth Cen- 
 tury." By George W. Dasent, D. C. 
 S.) It is a marked trait in the char- 
 acter of the Russian people to " feel 
 corporeal punishment less sensibly 
 than a verbal insult. This idea has a 
 
 Justice Mansfield, " I cannot, upon 
 principle, make any difference between 
 words written (as to the right which 
 arises out of them to bring an action) 
 and words spoken ; but the difference 
 has been recognized by the courts for 
 at least a century backwards, and has 
 been established by Lords Hardwicke, 
 Hale, Holt, and others." 
 
 This species of defamation (libel) 
 is usually called written scandal, and 
 hereby receives an aggravation in that 
 it is presumed to have been entered 
 upon with coolness and deliberation, 
 and to continue longer, and to propa- 
 gate wider and farther than any other 
 scandal. (Bac. Abr.) 
 
 The distinction between verbal 3.r\i 
 written slander proceeds upon the 
 principle that words are often spoken 
 in heat upon sudden provocations, and 
 are fleeting and soon forgotten, and 
 therefore less likely to be permanently 
 injurious; while written slander is 
 more deliberate and malicious, more 
 capable of circulation in distant places, 
 and consequently more hkely to be 
 permanently injurious, (i Chit. Gen. 
 Pr. 45.) 
 
 The great distinction between li- 
 bel and slander is, " that from a libel 
 damage is always implied by law, 
 whereas some kinds of slander only 
 
§i8.] 
 
 DIVISION OF SUBJECT. 
 
 13 
 
 we have drawn between slander and libel is not one uni- 
 versally adopted ; ^ indeed it is not the one, in our judg- 
 ment, the most logically correct ; but we adopt it partly in 
 deference to a very prevalent use of the terms slander and 
 libel, to distinguish between an injury by speech and an 
 injury by writing, and partly because by this arrangement 
 one word suffices to denote to which particular branch of 
 the subject we refer. In our opinion, the more logical 
 arrangement would be to take slander or defamation as 
 the generic term, and then indicate the division by the 
 epithets oral and written. There are, however, objections 
 to this division — among others, that it omits effigy. An- 
 other mode of dividing the subject is to take libel for the 
 generic term, and then distinguish the kind by the epithets 
 defamatory, seditious, &c.^ This is objectionable on many 
 
 religious foundation ; a good Christian 
 cannot admit that the punishment of 
 fustigation which has been inflicted on 
 the Saviour of humanity can be for a 
 man a stain of infamy; he believes 
 that a verbal insult affects the immor- 
 tal part of man, whereas a blow only 
 produces suffering in the least noble 
 part of his being." (Essai sur I'His- 
 toire de la Civilization en Russie, par 
 Nicolas de Gerebtzoff, Paris, 1858, vol. 
 "> P- 575 i Westminster Review, Jan- 
 uary, 1864, art. Russia.) 
 
 * It does not apply to the wrong 
 called slander of title, nor to language 
 affecting one in his calling or office, 
 nor to proceedings in the ecclesiastical 
 courts. As to this last, see Ware v. 
 Johnson, 2 Sir Geo. Lee's Cases in 
 Eccles. Courts, 103. Holt says, p. 
 211: "It is evident, moreover, from 
 the authorities,, that words written of 
 a man tending to disparage him in his 
 profession will support an action, al- 
 though the same words when spoken 
 will not;" and he refers to King z/. 
 Lake, Hardres, 471 ; but that case 
 does not authorize any such doctrine. 
 
 2 Blackstone speaks of blasphe- 
 mous, immoral, treasonable, schismat- 
 ical, seditious or scandalous libels. 
 (4 Bl. Com. ch. xi.) And Lord Bol- 
 ingbroke, writing to Queen Anne, Oct. 
 
 17, 171 1, says: "I have discovered 
 the author of another scandalous libel, 
 who will be in custody this afternoon ; 
 he will make the thirteenth I have 
 seized, and the fifteenth I have found 
 out." In Borthwick on Libel, 25, 
 note, it is said : His Lordship seems 
 to have retained the adjective [infa- 
 mous] in reference to the usual mean- 
 ing of the word libel, when not qual- 
 ified, in the law of Scotland, which is 
 the same [meaning] as it still has in 
 the spiritual courts of England. It 
 would appear, however, that, even in 
 the courts of common law in England, 
 there was formerly some doubt wheth- 
 er libel, or libellus, by itself, was the 
 proper technical expression. This we 
 learn from a note (a, p. 4) in the " Di- 
 gest of the Law Concerning Libels." 
 " Lord Chief Justice Raymond," says 
 the author, " in Curl's Case, said that 
 he did not think that libellus was 
 always to be taken as a technical 
 word, and asked whether action would 
 lie de quodatn libello intitulat — the 
 New Testament — and whether the 
 spiritual court did not proceed upon a 
 libel.? Mr. Justice Fortescue said a 
 libel was a technical word at common 
 law. Mr. Justice Reynolds said that 
 libellus did not, ex vi termini, import 
 defamation, but was to be governed 
 
H 
 
 DIVISION OF SUBJECT. 
 
 [CH. 
 
 grounds. Upon the whole, we conclude that the division 
 we have adopted will be found obnoxious to fewer objec- 
 tions, and be more convenient, than any other we could 
 have selected. In describing the matter of a slander or a 
 libel — that is, the speech or writing which may or may not 
 constitute a slander or a libel, but which is charged to be 
 a slander or a libel — we shall designate it speech or writing, 
 as the matter of slander or libel may be intended ; but 
 generally, and where both slander and libel are used, shall 
 employ the term language or defamatory matter. Neither 
 judges, advocates, nor text writers confine themselves to 
 the terms slander and libel, but employ the terms libel, 
 slander, scandal, calumny, defamation, detraction, verbal 
 injury, and some others, without any accord as to, and with 
 very little regard for, their definitions or connotations. 
 
 by the epithet added to it." (2 Stra. 
 
 791.) 
 
 In Thorley's Case, 4 Taunt. 355, 
 the expression " written and unwritten 
 slander " is used, and Lord Coke says : 
 Every infamous libel is in writing or 
 not in writing. 
 
 Mr. Heard, in his treatise on libel 
 and slander (§ 8), uses the phrase " ac- 
 tionable libel." This implies that 
 there may be a libel which is not ac- 
 tionable. He also uses the phrase 
 printed libel. In the index to the 
 same treatise is the phrase " ironical 
 libel." 
 
 The Encyclopaedia Britannica, voce 
 Libel, uses the phrase "defamatory 
 libel ;" and the statute 6 and 7 Vict, 
 ch. xcvi, uses the term " defamatory 
 words and libel " in lieu of " slander 
 and libel." 
 
 " The high court of the Paris Par- 
 liament commenced a prosecution 
 against him for libelous defamation." 
 (Westminster Review, July, i860, art. 
 The French Press, page 118, Am. Re- 
 print.) 
 
 "Mr. J. Mackenzie's Narrative, a 
 false libel., a defense of Mr. G. Walk- 
 er, &c., 1690," is the title of a pam- 
 phlet published in 1690. And the 
 phrase "false slander" is used. 
 Finch's Law, 185. 
 
 In an ordinance agreed to by both 
 houses of the English Parliament, 
 30th September, 1647, the word libel 
 seems to be used in the sense of a 
 book or pamphlet. The ordinance 
 runs thus : '' That what person soever 
 shall make, write, print, publish, sell 
 or utter any book, pamphlet, treatise, 
 ballad, libel, or sheet of news whatso- 
 ever, or cause so to be done, except 
 the same be licensed by both or either 
 house of Parliament," &c. The word 
 libel cannot here mean a defamatory 
 publication, as it is not to be supposed 
 the Parliament would in any case li- 
 cense a defamatory publication. 
 
 Sometimes any unfair statement is 
 called a libel, and we say it is a libel 
 on humanity, on the goodness of God, 
 &c. 
 
 " The phrase, ' action for words J 
 might seem to be always, as it gene- 
 rally is, employed by the English law- 
 yers, in reference alone to words 
 spoken. This, however, is not the 
 case. Thus, Mr. Tomlins, in his Law 
 Dictionary {voce Action, II, § i), says: 
 ' Action on the case for words, which 
 is brought for words spoken or writ- 
 ten.'' This passage may be remarked 
 as another instance of the varied 
 meaning of legal phrases."' (Borth- 
 wick on Libel, 22, n^te.') 
 
§§ 19, 20.] DEFINITION. 
 
 15 
 
 We shall confine ourselves throughout to the terms slander 
 and libel, and employ them as distinct terms and as mark- 
 ing the division between an offense by means of speech 
 and an offense by means of writing or effigy ; but in using 
 the phrase law of libel, we desire, nothing being said to the 
 contrary, to be understood as meaning and including as 
 well the law applicable to what we call slander as to what 
 we call libel. 
 
 § 19. From some cause — perhaps from the fact that 
 language in writing may amount to a public wrong — it has 
 happened that the wrong occasioned by writing (libel) has 
 occupied a larger share of attention than has the wrong 
 occasioned by speech (slander).^ Whether this is sufficient 
 to account for the circumstance or not, these facts result, 
 that while it is common to speak of the law of libel, it is 
 quite uncommon to speak of the law of slander ; and while 
 ingenuity has been tortured to frame a definition of libel 
 or a libel, scarcely any attempts have been made to frame 
 a definition of slander or a slander. 
 
 § 20. The attempts which have been made to define 
 libel or a libel are so many as to be practically innumer- 
 able, yet they have in reality been unavailing; no defini- 
 tion, properly so called, of libel or a libel exists.^ The 
 
 ^ Notwithstanding, we observe that which guilt may be incurred as tend- 
 
 " A Book of Entries, by W. B." A. D. ing to a breach of the peace, to other 
 
 1671, contains eighteen precedents of proceedings of a violent nature, 
 
 declarations for slander and not one and to a variety of other heads, 
 
 for libel — "The English Pleader," A. . , Any definitions that I have ever 
 
 D. 1734. contains several declarations seen given had one or other of two 
 
 in slander, but not one in libel. faults, . . . they were either so 
 
 ^ " It is to be observed that no vague as not to specify or define any- 
 correct, no logical definition of a libel thing, or . . they were only ren- 
 has ever been given." (George on dered particular and definite by omit- 
 Libel, 14.) ting some species of libel 
 
 Lord Lyndhurst, in answer to the which ought to have been compre- 
 
 question, how far it was possible to hended. ... I have never yet 
 
 define libel, said : " It is a subject to seen, or been able myself to hit upon 
 
 which I have paid considerable atten- anything like a definition of libel . . 
 
 tion, but I must freely own without which possessed the requisites of a 
 
 any success whatever. I hold it to be definition, and I cannot help thinking 
 
 hardly possible to define libels by that the difficulty is not accidental, but 
 
1 6 DEFINITION. [CH. I. 
 
 term libel being connotative, its definition to be complete 
 should unfold the whole meaning it involves, the whole of 
 what is connoted; should "select from among the whole 
 of its properties those which shall be understood to be 
 designated and declared by its name;" "those which un- 
 fold its nature, which are peculiar to it, and which are not 
 found in a like combination elsewhere." This describes a 
 real definition, of the kind called essential, and before we 
 can frame such a definition, we must know all the proper- 
 ties of our subject, and then select those proper for the 
 purpose. As a libel comprehends a complex aggregate of 
 particulars, either not all known or not all agreed upon, it 
 may be impossible to circumscribe them by a correct and 
 compact general description.^ 
 
 § 21. The definitions which have been attempted have 
 been framed as supposed standards by which to determine 
 of any given proposition whether or not it constitutes a 
 libel ; and experience demonstrating the total worthless- 
 ness for any practical purpose of these supposed definitions, 
 it has come to be taken for granted, at least by some, that 
 there is that inherent in the subject which prevents the 
 
 essentially inherent in the nature of The word libel " as a term of law, in 
 the subject. . . . The Latin of the sense we have agreed to attribute 
 libel is not libellus but libellus famo- to it here, like the offense it serves to 
 sus. . . . Libel then means, in indicate, may perhaps be better de- 
 its original, not 'little book' but a scribed, if not indeed defined, than 
 'defamatory little book.' . . . almost any other in the whole of our 
 Libel is an offense of a somewhat jurisprudence." 
 
 vague description, but sufficiently At Rome, the cards of the races, 
 
 known in law, and, perhaps, as well with the names and colors of the 
 
 defined as assaults and some others; riders and drivers, were called libelli. 
 and I do not believe, from all the ex- Davies, in his Supplementary En- 
 
 perience I have had, that in practice glish Glossary, gives as a definition of 
 
 any considerable difficulty is felt on Libel : Lye, because false ; bell, be- 
 
 account of its indistinctness." (Re- cause loud. 
 
 port of House of Lords on Defama- ' " As certain acts done with cer- 
 tion and Libel, July, 1843.) "This tain motives must combine with such 
 confusion or uncertainty is probably to meanings to make up the offense of 
 be ascribed as much to the intrinsic libel, . . . it is not strictly cor-' 
 difficulty of the subject as to any strik- rect to say of any meaning whatso- 
 ing defectiveness in the rules." (Mar- ever, apart from those acts and infan- 
 cy, J., Rogers v. Rogers, 3 Wend, tions, that it is a libel." (George on 
 522.) In Flood on Libel, 29, it is said : Libel, 57.) 
 
21.] 
 
 DEFINITION OF LIBEL. 
 
 17 
 
 possibility of its definition. This, although imputed to 
 libel as a peculiarity, is not so in fact ; the like difficulty 
 attaches to many other terms/ and particularly to every 
 other wrong. An attempt to frame a concise, real, essen- 
 tial definition of any other wrong will disclose the like 
 difficulties as occur in the case of libel.* 
 
 ' See Davidson v. Bd. of Ad., &c., 
 of N. Orleans, 96 U. S. 104; 17 Alb. 
 L. J. 223, as to evolving by gradual 
 process of judicial decision the mean- 
 ing of the phrase "Due process of 
 law." 
 
 * As Cousin said, when asked to 
 state in a single sentence the spirit of 
 German philosophy: "These things 
 do not sum themselves up in single 
 sentences, " another has said, ' ' Most 
 definitions are but phrases to cover 
 our ignorance." 
 
 We subjoin some specimens of the 
 attempts to define libel : 
 — J> In Wilson v. Walter, see in note 
 to § 219, post, the plaintiff, a barrister, 
 gave the following neat designation of 
 fibel: "Defamation without legal ex- 
 cuse." We esteem this as the most 
 successful among the many attempts 
 to define libel. (See § 50, postal 
 
 It is not infamous matter or words 
 which make a libel: for, if a man 
 speak such words, unless they are 
 written, he is not guilty of the making 
 of a libel ; -writing is of the essence of 
 a libel. (Ld. Raym. 416.) In order 
 to constitute a libel, the subject-matter 
 complained of must be a subject of 
 visible perception. But, provided only 
 it be an object of visible perception, a 
 libel does not appear to be confined to 
 any particular form or shape. By the 
 requisite, which is essential to the ex- 
 istence of a libel, that it be an object 
 of visible perception, libel, is distin- 
 guished from what is technically called 
 defamation or spoken slander. Again : 
 " The words most nearly synonymous 
 to the word libeling, are defaming, 
 disparaging, aspersing, slandering.'" 
 (George on Libel, pp. 33, 36, 41.) 
 
 "A libel is a contumely or re- 
 proach, published to the defamation 
 of the government, of a magistrate, 
 or of a private person." (Comyn's 
 Digest.) 
 
 3 
 
 A libel is a malicious publication, 
 tending to the disrepute of an indi- 
 vidual, the breach of the peace, the 
 seditious violation of the good order 
 of government. (Capel Loft's Essay 
 on Libels, edit. 1785, p. 6.) 
 
 The American Encyclopedia, voce 
 Libel, refers to the following defini- 
 tion of libel as the best definition : 
 " A libel is any published dsfamation."' 
 And the same article states the differ- 
 ence between libel and slander to con- 
 sist in this, that libel is published de- 
 famation, and slander is spoken de- 
 famation. 
 
 Written defamation is otherwise 
 termed libel, and oral defamation 
 slander. (Burrill's Law Diet.) 
 
 Defamatory words, written and 
 published, constitute a libel. (Maun- 
 der.) 
 
 Libel, a word which has many dif- 
 ferent meanings, but is chiefly known 
 in this country as the name of a de- 
 partment of the law, which, from in- 
 cidental circumstances, has come to 
 include the naturally distinct heads ot 
 written slander, seditions, and out- 
 rage against religion. (Encyc. Brit. 
 voce- Libel.) 
 
 A libel has been usually treated 01 
 as scandal, written or expressed by 
 symbols. Libel may be said to be a 
 technical word, deriving its meaning 
 rather from its use than its etymology. 
 (Russell's Treatise on Crimes and 
 Misdemeanors, edit. 1819, p. 308.) 
 
 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 
 applied 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 shame- 
 ful and ignominious manner. (Haw- 
 kins' PI. Cr.) 
 
 Libel, a criminous report of any 
 
i8 
 
 DEFINITION OF LIBEL. 
 
 [CH. I. 
 
 § 2 2. It is rare, indeed, that we can frame a real, es- 
 sential definition, but by a definition is sometimes under- 
 
 man, cast abroad or otherwise unlaw- 
 fully published in writing, but then, 
 for difference sake, it is called an in- 
 famous libel -fainosus libellus. (Min- 
 shoei: A Guide into the Tongues, &c., 
 London, 1627.} 
 
 Written or printed slanders are 
 libels. (Bouvier.) 
 
 In the indictment against the Seven 
 Bishops the expression libel in writing 
 is used, and by Coke, every infamous 
 libel is in writing or not in writing. 
 " All publications injurious to private 
 character or credit of another are 
 libelous." (Addison on Wrongs, re- 
 ferred to as, a good definition, McNally 
 V. Oldham, 8 Law Times Rep. N. S. 
 604.) 
 
 '■ A libel is anything of which any 
 one thinks proper to complain." (Es- 
 say prefixed to report of Finnerty's 
 Trial, supposed to be from Jeremy 
 Bentham's Writings.) It is also 
 quoted thus : "A libel is anything 
 published upon any matter ot any- 
 body, which any one was pleased to 
 dishke." (Attributed to Bentham, 
 cited in pamphlet : Trial of David Lee 
 Child. See, however. Popular Pro- 
 gress in England, 446.) In answer 
 to this it has been said : " An action- 
 able libel cannot be created out of 
 nothing." (Press Co. v. Stewart, 12 
 Cent. Rep. 278.) 
 
 A libel is a censorious or ridiculing 
 writing, picture, or sign, made with a 
 mischievous and malicious intent to ■ 
 wards government, magistrates, or in- 
 dividuals. (Per Hamilton arg. People 
 V. Crosswell, 3 Johns. Cas. 354; adopt- 
 ed Steele w. South wick, 9 Johns. 214; 
 Cooper 7/. Greeley, i Den. 347.) 
 
 A libel is a malicious publication 
 in printing, writing, signs, or pictures, 
 imputing to another something which 
 has a tendency to injure his reputa- 
 tion, to disgrace or to degrade him in 
 society, and lower him in the esteem 
 and the opinion of the world, or to 
 bring him into public hatred, con- 
 tempt, or ridicule. (State v. Jeandell, 
 5 Harring. [Del.] 475.) 
 
 Everything written of another, 
 holding him up to scorn and ridicule, 
 
 and calculated to provoke a breach of 
 the peace, is a libel. (Torrance v. 
 Hurst, Walker, 403; Newbraugh v. 
 Curry, Wright, 47.) 
 
 Every pubhcation 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 in- 
 famous, odious, or ridiculous, is prima 
 facie a libel, and implies malice in the 
 publisher. (White v. NichoUs, 3 How. 
 U. S. 266.) 
 
 A publication, to be a libel, must 
 tend to injure the plaintiffs reputation, 
 and expose him to public hatred, con- 
 tempt and ridicule. (Armentrout v. 
 Moranda, 8 Blackf. 426.) 
 
 Any publication, the tendency of 
 which is to degrade and injure another 
 person, or to bring him into contempt, 
 hatred, or ridicule, or which accuses 
 him of a crime punishable by law, or 
 of an act odious and disgraceful in 
 society, is a libel. (Dexter v. Spear, 
 4 Mason, 115.) 
 
 A libel is a malicious pubhcation, 
 expressed either in printing or writing 
 or by signs and pictures, 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. (Common- 
 wealth V. Clapp, 4 Mass. 163, 168. 
 Per Ch. J. Parsons, quoted in Root v. 
 King, 7 Cow. 613. See Finch v.^ 
 Vifquain, 11 Neb. 280; Rosewater7'. 
 Hofman, 38 N. W. Rep. 857.) 
 
 Contemptuous demeanor towards 
 a corpse was by the Roman Law an 
 insult to the heir of the deceased. 
 (Dig. 47; 10, I.) Libelling the dead, 
 see Reg. v. Labouchere, 12 Q. B. D. 
 320; Comw. ■v. Batchelder, Thach. 
 Crim. Cas. 191. 
 
 A libel is a censorious or ridicul- 
 ing writing, picture, or sign, made 
 with a mischievous intent. (The 
 State V. Farley, 4 McCord, 317.) 
 
 A publication is a libel which tends 
 to injure one's reputation in the com- 
 mon estimation of mankind, to throw 
 contumely or reflect shame and dis- 
 grace upon him, or hold him up as an 
 
2 2. J 
 
 DEFINITION OF LIBEL. 
 
 19 
 
 Stood such an explanation of a given term as conveys an 
 idea of its connotation, and enables us to distinguish it 
 
 object of hatred, scorn, ridicule, and 
 contempt, although it imputes no 
 crime liable to be punished with in- 
 famy, or to prejudice him in his em- 
 ployment. So every publication by 
 writing, printing, or painting, which 
 charges or imputes to any person that 
 which renders him liable to punish- 
 ment, or which is calculated to make 
 him infamous or odious or ridiculous, 
 1% prima facte a libel, (i Hilliard on 
 Torts, ch. vii, § 13.) 
 
 Holt, in his treatise, p. 213 [223], 
 defines libel as against private persons 
 thus: " Everything, therefore, written 
 of another which holds him up to 
 scorn and ridicule, that might reason- 
 ably (that is, according to our natural 
 passions) be considered as provoking 
 him to a breach of the peace, is a 
 libel." Mr. Mence (Law of Libel, 
 vol. I, p. 120), referring to this pas- 
 sage in Holt, says : " This agrees with 
 his two preceding definitions, and with 
 the common acceptation of the term 
 libel, by making it essential that the 
 subject or object of the attack should 
 be some person or persons ; but it dis- 
 agrees with them, by introducing the 
 tendency to provoke a breach of the 
 peace. It follows that, if this be a 
 
 . correct definition, the other two must 
 be defective, because, in one of them, 
 the tendency, or (as is there said) the 
 intent to provoke is required only in 
 cases where the object of the slander 
 is a deceased person, and in that from 
 Lord Coke it is wholly omitted. On 
 the other hand, if the two former de- 
 finitions be correct, the third must 
 necessarily be inaccurate, for an ac- 
 curate definition is one which neither 
 omits what is essential, nor admits 
 
 what is superfluous And 
 
 it is to be further observed that the 
 third definition disagrees with the two 
 former and the common acceptation 
 of the term libel, not only by introduc- 
 ing the intent or the tendency te pro- 
 voke, but by leaving out the falsehood 
 and malice. For libel, in common 
 acceptation, signifies written slander; 
 and the term slander and all its 
 
 synonyms, as defamation, detraction, 
 
 calumny, even without the epithets 
 malicious and injurious, imply false- 
 hood and malice." 
 
 " The familiar acceptation of the 
 word libel is no less simple and in- 
 telligible [than the term horse steal- 
 ing], but the legal and technical use 
 is as if horse stealing stood not only 
 for stealing a horse, but for murder, 
 arson, larceny, and other crimes more 
 or less atrocious ; and even for actions 
 not criminal, or of which the criminal- 
 ity is at least doubtful, and not to be 
 measured or ascertained till we have 
 separated them from the greater 
 crimes with which they are confound- 
 ed. This perverse and cabalistic use 
 of language it is that has given birth 
 to so much of the obscurity with which 
 the law of libel is reproached. And 
 nothing can be easier than to reform 
 it. We have only to consider written 
 challenges to fight as a class by them- 
 selves ; to class blasphemous writings 
 under the head of blasphemy ; obscene 
 and grossly indecent or immoral writ- 
 ings under the head of obscenity; or 
 both these heads, together, under that 
 of offenses immediately against God ; 
 seditious writings under the head of 
 sedition; and all other writings de- 
 nominated libels under the two dis- 
 tinct heads of libels and censure, as 
 they are either tainted with falsehood 
 and malice, or criminal by carrying 
 upon them the manifest intent to pro- 
 voke a breach of the peace, or by 
 having a tendency, or of being merely 
 suspected of having a tendency, so to 
 do." And, on page 181, he says: 
 " Thus is blasphemy, under the title 
 of libel upon the Christian religion, 
 classed or confounded, as is obscenity 
 also, with crimes (if crimes they be), 
 from which it differs as much, both in 
 kind and degree, as murder does from 
 picking a pocket or robbing a hen- 
 roost." (i Mence on Libel, 125.) 
 
 In several of the States, libel has 
 been defined by statute. Thus, the 
 Criminal Code of New York, § 24^: 
 A malicious publication by writing, 
 printing, picture, effigy, sign, or other- 
 wise than by mere speech, which ex- 
 
20 
 
 DEFINITION OF LIBEL. 
 
 [CH. I. 
 
 from, and prevents our confounding it with, any other term 
 of a similar, but not the jfl»2e, import. When we employ 
 definition in this sense, and for this purpose merely, it 
 ceases to be important whether the definition adopted be 
 strictly accurate. If we always employ the term in that 
 one predetermined sense, it serves to avoid confusion, and 
 enables us to reason upon it with certainty. Mathemat- 
 ical science is certain, not because its definitions are true, 
 but because they are certain ; and legal science is uncertain 
 only because its definitions are uncertain.^ We may in- 
 
 poses any living person, or the memory 
 of any person deceased, to hatred, 
 contempt, ridicule or obloquy, or 
 which causes, or tends to cause any 
 person to be shunned or avoided, or 
 which has a tendency to injure any 
 person, corporation or association of 
 persons, in his or their business or oc- 
 cupation, is a libel. And iheproposed 
 Civil Code of New York, § 32 : Libel 
 is a false and unprivileged publication 
 by writing, printing, picture, effigy, 
 sign or other wise than by mere speech, 
 which exposes any person to hatred, 
 contempt, ridicule or obloquy, or 
 which causes him to be shunned or 
 avoided, or which has a tendency to 
 injure him in his occupation. 
 
 § 33. Slander is a false and un- 
 privileged publication, other than libel, 
 which : 
 
 1. Charges any person with a 
 crime involving moral turpitude, or 
 with having been indicted, convicted, 
 or punished for such crime. 
 
 2. Imputes in him the present ex- 
 istence of a loathsome disease ; 
 
 3. Tends directly to injure him in 
 respect to his office, profession, trade 
 or business, either by imputing to him 
 general disqualification in those res- 
 pects, which the office or other oc- 
 cupation peculiarly requires, or by 
 imputing something with reference to 
 his office, profession, trade or busi- 
 ness that has a natural tendency to 
 lessen its profit ; 
 
 4. Imputes to him impotence or a 
 want of chastity; or, 
 
 5. Which by a natural consequence 
 causes actual damage. 
 
 In Maine, it is enacted that "a 
 libel shall be construed to be the 
 malicious defamation of a person, 
 made public either by any printing, 
 writing, sign, picture, representation, 
 or effigy, tending to provoke him to 
 wrath, or expose him to public hatred, 
 contempt, or ridicule, or to deprive 
 him of the benefits of public confi- 
 dence and social intercourse; or any 
 malicious defamation, made public as 
 aforesaid, designed to blacken and 
 vilify the memory of one that is dead, 
 tending to scandalize or provoke his 
 surviving relatives or friends." And 
 in Illinois it is enacted : " A libel is a 
 malicious defamation, expressed either 
 by printing or by signs, or the hke, 
 tending to blacken the memory of one 
 who is dead, or to impeach the honesty, 
 integrity, virtue or reputation, or pub- 
 lish the natural defects of one who is 
 alive, and thereby to expose him or 
 her to public hatred, contempt or 
 ridicule.'' Definitions of the hke im- 
 port are to be found in the statute 
 books of some other States. 
 
 See Maine Rev. Stat. 1840, ch. 
 clxv, § i; Iowa Rev. Code of 185 1, 
 ch. cli, art. 2767 ; Arkansas Rev. Stat. 
 1837, div. VIII, ch. xliv, art 2, § I, 
 p. 280 ; Georgia, Prince's Dig. pp. 643, 
 644; Hotchk. Dig. p. 739; Cobb's 
 Dig. vol. ii, p. 812; California Stat. 
 1850, ch. xcix, § 120; Illinois Rev. 
 Stat, .1845, Crim. Code, § 120; Dakota 
 Penal Code, § 6511. "Any malicious 
 injury to good names, other than by 
 words orally spoken, is a libel." 
 
 ' " Mathematics will, in no greater 
 degree than theology or metaphysics. 
 
§22.] 
 
 DEFINITION OF LIBEL. 
 
 21 
 
 sure certainty by having definitions which, however defec- 
 tive in other respects, at least admit of our using the terms 
 defined always in one and the same sense, and by always 
 so using them. We shall not attempt to construct real 
 definitions of slander and libel ; but to definitely mark 
 what is meant when those terms are employed ; we define 
 slander and libel as wrongs occasioned by language or 
 effigy — that is to say, slander is a wrong occasioned by 
 speech, and libelis a wrong occasioned by writing or effigy. 
 
 give us ' certainty by rigid demonstra- 
 tion,' without the assumption of those 
 primary truths which we accept be- 
 cause we are so constituted that we 
 must accept them." (Westminster 
 Review, October, 1864, art. Dr. New- 
 man's Apologia.) The question, 
 What is the foundation of mathema- 
 tical demonstration ? was discussed 
 by Dugald Stewart, and the conclu- 
 sion at which he arrived was, that the 
 certainty of mathematical reasoning 
 arose from its depending on defini- 
 tions. And further, that mathemati- 
 cal truth is hypothetical ; if the defini- 
 tions are assumed, the conclusions fol- 
 low. Mr. Whewell controverts these 
 views. See " The Mechanical Euclid,'' 
 &c,, and Remarks on Mathematical 
 Reasoning, &c., by the Rev. W. 
 Whewell, M. A., and Edinburgh Re- 
 view, April, 1838. 
 
 " Nothing is harder than a defini- 
 tion. While, on the one hand, there 
 is for the most part no easier task than 
 to detect a fault or a flaw in the de- 
 finition of those who have gone before 
 
 us, nothing, on the other hand, is more 
 difficult than to propose one of our 
 own which shall not also present a 
 vulnerable side.'' (Dean Trench. See 
 Burrill's Law Diet, voce Definition, 
 and 2 Wooddes. Lect. 196.) 
 
 " The greater portion of all law 
 business arises from the impossibility 
 of giving absolute definitions for things 
 that are not absolute in themselves." 
 (Lieber's Civil Liberty, 23, note.) 
 
 Lord Campbell, in describing the 
 effect of Fox's libel act, says it in effect 
 defines a libel to be " a publication 
 which, in the opinion of twelve honest, 
 independent and intelligent men, is 
 mischievous and ought to be punish- 
 ed." (5 Lives of the Chancellors, 
 350.) And by Lord Kenyon, " A man 
 may publish anything which twelve of 
 his countrymen think is not blamable, 
 but he ought to be punished if he pub- 
 lishes that which is blamable." (Rex 
 V. Cuthell, 27 How. St. Tr. 675.) 
 These observations must be taken as 
 applicable to criminal prosecutions. 
 
CHAPTER II. 
 
 HOW ONE MAY AFFECT ANOTHER BY LANGUAGE. 
 
 Language can have no effect unless published — It must 
 be true or false, commendatory or discommendatory — 
 Must concern a person or thing — Its effect, direct or 
 indirect, or both — Reputation. 
 
 § 23. Language may exist as mere thought, but before 
 it can have any effect extra the individual with or in whom 
 it originated, it must be expressed ; it must come into ex- 
 istence as an expression, by sound as in speech, or by sign 
 as in writing or effigy ; and not only must it be expressed,, 
 it must also be published — that is, communicated by the 
 individual with or in whom it originated to some other. 
 
 § 24. Language when employed to communicate ideas 
 must assume the form of a proposition, or a series of prop- 
 ositions ; by a proposition being meant, " discourse which 
 affirms or denies something of some person or thing, the 
 subject of the proposition." Every proposition is an as- 
 sertion, and must be either true or false — that is, it must 
 assert of its subject that which is true, or that which is false, 
 and the assertion may be either of commendation or dis- 
 commendation. 
 
 § 25. Language must concern either a person or a 
 thing, or both, and it may concern a person in his indi- 
 vidual and natural capacity merely, or in some acquired 
 or artificial relation or capacity as a trader, an office- 
 holder, or as the author, owner, or possessor of some cer- 
 tain thing. 
 
26-29] EFFECT OF LANGUAGE. 
 
 23 
 
 § 26. The effect of the publication of language upon a 
 person, other than the author or publisher of the language, 
 must be direct or indirect, or both. 
 
 § 27. Language cannot directly affect a thing; what- 
 ever direct effect it has must be upon a person. (§§ 130, 
 203.) 
 
 § 28. Language, whether it concerns a person or a 
 thing, may have a direct effect upon the person to whom it 
 is published, but upon none other. It may directly affect 
 the feelings, health, belief, or opinion of him to whom it 
 is published, and it may influence or excite him towards a 
 particular course of action or forbearance by himself, or in 
 respect of himself or his affairs, or in respect of some 
 other person or some thing, or the affairs of some other 
 person. It may either please or displease him, or cause 
 him to feel pleased or displeased with some other person 
 or thing, or cause him to do some act or to abstain or 
 resolve to abstain from doing some act to the advantage 
 or disadvantage of himself or some other, or cause him to 
 think better or worse of himself or of some other person 
 or of some thing. That other person may be either he 
 who makes the communication or he whom the language 
 concerns. All the direct effects of the publication of 
 language are personal to the individual to whom the 
 publication is made, and can extend no further. The pub- 
 lication of language can have no direct effects other than 
 those we have enumerated ; whatever other effects may 
 result from the publication of language must be indirect 
 or consequent upon one or some of these enumerated 
 direct effects. 
 
 § 29. The kind of effect produced, t. e., the direct or 
 indirect effect, must be the same, whether the publication 
 be by sound (speech) or by sign (writing or effigy), but 
 
24 EFFECT OF LANGUAGE. [CH. II. 
 
 the mode of publication may affect the amount of effect 
 produced. 
 
 § 30. It is scarcely supposable that the publication of 
 language which concerns another or his affairs can produce 
 no direct effect, but it is easy to suppose that it may not 
 produce any indirect effect. The publication may occasion 
 a resolve (a direct effect), and that resolve may never be 
 put into execution (produce no indirect effect) ; or it may 
 occasion a change in the opinion entertained of another, 
 and that other may never be otherwise in any the least 
 degree affected by that change of opinion. The change of 
 opinion may not prevent or occasion any action different 
 from what would otherwise have been done or forborne. 
 While, however, this is supposable, it is improbable ; the 
 possibility, however, of such an occurrence suffices for our 
 purpose. Sometimes, indeed, the direct and indirect effects 
 are apparent, and their extent ascertainable ; and again, it 
 may be that neither the direct nor the indirect effect is 
 apparent nor its extent ascertainable. 
 
 § 31. It is impossible to anticipate all the indirect 
 effects which may result from the publication of language; 
 experience has made us acquainted with some of them, 
 and to these we shall have occasion to refer by way of 
 illustration. 
 
 § 32. Among the direct effects of the publication of 
 language which we have enumerated is the occasioning the 
 person to whom the publication is made to think well or 
 ill of another. Now, what one thinks of another is the 
 reputation of that other, and hence, when by language one 
 is induced to think ill of another, the reputation of that 
 other suffers disparagement.^ That others think well of 
 
 1 Reputation is the estimate in Character is conduct, it is independent 
 
 which an individual is held by public of reputation. Character must be 
 
 fame in the place where he is known. true, while reputation may be false 
 
 (Cooper V. Greeley, i Denio, 347, 365.) (Seely v. Blair, Wright [Ohio], 683 ) 
 
§32.] 
 
 EFFECT OF LANGUAGE. 
 
 25 
 
 him is as gratifying to a man as that others think ill of him 
 is distasteful, but their merely thinking well or ill of him 
 by itself can neither benefit nor prejudice him. Unless in 
 consequence of the opinion thus entertained, some act is 
 done or forborne in reference to him or his affairs, which 
 
 " Character is defined by Webster 
 to be the peculiar qualities impressed 
 by nature or habit on a person, which 
 distinguish him from others; these 
 constitute real character, and the 
 qualities he is supposed to possess 
 constitute his estimated character or 
 reputation.'''' (P^r Welles, J., in Car- 
 penter V. The People, 8 Barb. 6o8.) 
 
 Character is used by Bentham in 
 the sense of " disposition," or rather 
 of "reputation for disposition." ^3 
 Jud. Ev. 190-192.) Character " is the 
 particular moral quality, not necessa- 
 rily as it absolutely exists, but as it 
 appears, or has appeared to exist. It 
 is the exterior of life which the party 
 habitually wears, or has worn, in his 
 intercourse with others, as it becomes, 
 or has become, a subject of observa- 
 tion, inference and ultimate opinion 
 on their part. It is the grade or point 
 at which he stands in their estimation 
 in that particular respect. It is, in 
 short, his reputation among them of 
 possessing the quality in question." 
 {Burrill Circ. Ev. 2d ed. 527.) 
 
 " If the word reputation, when 
 unqualified, does, ex vi termini, or in 
 common parlance, mean general rep- 
 utation — as we think it does — it is un- 
 necessary to prefix the word general." 
 (French v. Millard, 22 Ohio R. 50.) 
 
 " Reputation is thinking. I repute 
 a man to be good or bad — that is, I 
 think him to be so." (Maule, J., Doe 
 dem. Padwick v. Wittcomb, 15 Jur. 
 778 ; 5 Eng. Law & Eq. Rep. 487.) 
 
 "The mere entry of something 
 that was in a lease is not any expres- 
 sion of opinion or reputation." (Cress- 
 well, J., Id.) 
 
 " The words character and reputa- 
 tion are often used as synonymous 
 terms, though in fact not synony- 
 mous." (Bucklin v. Ohio, 20 Ohio R. 
 18 ; French v. Millard, 22 Id. 50.) 
 
 " For a character and reputation 
 of the above school." (School ad- 
 
 vertisement published in 1775. Notes 
 & Queries, 7th, S. 11, 205.) 
 
 "Character is a term convertible 
 with common report." (Kimmel v. 
 Kimmel, 3 Serg. & R. 237, Gibson, J.) 
 
 " Character and reputation are the 
 same." {Id. Duncan, J.) 
 
 " General character is the estima- 
 tion in which a person is held in the 
 community where he resides." (Mar- 
 cy, J., Douglass v. Tousey, 2 Wend. 
 
 354.) 
 
 " Public opinion is the question in 
 common cases where character is in 
 issue." (Boynton v. Kellogg, 3 Mass. 
 R. 192, Parsons, Ch. J.) 
 
 The word character has been vari- 
 ously used in legal proceedings, and 
 sometimes denotes the personal, offi- 
 cial, or special character in which a 
 party sues or is sued as executor, offi- 
 cer, &c., but it more frequently refers 
 to reputation or common report, (i 
 Cow. & Hill's Notes, 460, 1768; Led- 
 dy V. Tousey, 2 Wend. 352; King v. 
 Root, 4 Wend, 113.) It is seldom 
 used as synonymous with mere incli- 
 nation or propensity, or even secret 
 habit, nor is descriptive of the mere 
 qualities of individuals, only so far as 
 others have formed opinions from 
 their conduct. (Safford v. The Peo- 
 ple, I Parker's Crim. R. 478.) 
 
 General character is the result of 
 general conduct. (Sharp v. Scoggin, 
 Holt's N. P. C. 541 ; 3 Amer. Law J. 
 N. S. 1450 
 
 Proof of general bad character— as 
 that term is generally understood and 
 used in society — does not necessarily 
 and legally prove the fact that the 
 witness's character for veracity is bad. 
 (Gilbert v. Sheldon, 13 Barb. 627.) 
 
 " Chaste character " means actual 
 personal virtue, not mere reputation. 
 (Carpenterz/. The People, 8 Barb. 603; 
 Crozierz/. The People, i Parker's Crim. 
 R. 453: Safford v. The People, Id. 
 474-) 
 
26 EFFECT OF LANGUAGE. [CH. II. 
 
 would not otherwise have been done or forborne, he is 
 physically and pecuniarily in no wise better nor worse for 
 such opinion. It cannot aflfect his person nor his proper- 
 ty. In the ordinary course of events, some indirect effect 
 does always result from the publication of language. The 
 probability or improbability of any indirect effect result- 
 ing depends sometimes on the kind of language published, 
 sometimes on the circumstances of the publication, and 
 sometimes on both the kind of language published and 
 the circumstances of the publication. 
 
 § 33. We conclude, therefore, that there may be an 
 injury to the reputation without, and independently of, an 
 injury to the person or property, and that an injury to the 
 reputation does not necessarily imply in every instance an 
 injury to the person or the property.^ 
 
 ' Domat Civil Law, Public Law, by opprobrious language without les- 
 
 Book III, enumerates " defamatory sening his reputation, and we may 
 
 libels" among private offenses, and in blemish his honor by words, by writ- 
 
 the same book, title i, "of crimes and ing, and other attempts against his 
 
 offenses," enumerates three kinds of reputation, or one may attack by one 
 
 ^'' goods ;" "the third is that good and the same way both the reputation 
 
 vvhich is called honor, and which men and person of another. {Post, § 57.) 
 
 value above all other goods." The A passage in Wycliff' s " De Civili 
 
 author then proceeds to inquire what Dominio" is thus translated. Notes & 
 
 is signified by the term honor, and Queries, 7th 8.1:65: " It is untrue 
 
 concludes, " lastly, it signifies reputa- then that men. when they speak false- 
 
 tion." Further on it is laid down that ly, blacken the fame of a consistently 
 
 honor may be wounded, either by in- good man, for that fame is written in 
 
 jurious treatment of the honor or by the book of life, and the good man is 
 
 assaulting the reputation, for one may ' a mirror unspotted.' " 
 offend another's honor by actions or 
 
CHAPTER III.i 
 
 RIGHTS; DUTIES; WRONGS; REMEDIES. 
 
 Description of Rights and Duties — Wrongs, Rights, and 
 Duties undefinable — What determines of any act if it 
 be a wrong — Remedies — Injunction — Original writs. 
 
 § 34. Having in a preceding chapter [Ch. I] described 
 slander and libel as wrongs, it is proper to explain what is 
 meant by a wrong, and to that end we must briefly con- 
 sider the nature of rights and duties. For the opposite to 
 a right is not a wrong, but a duty. 
 
 § 35. Rights and duties are neither persons nor things, 
 but powers and obligations. A right is a power to do or 
 forbear or require another to do or forbear. A duty is an 
 obligation, a necessity to do or forbear, or to submit to 
 some act of another. We hear of " moral and social duties 
 of imperfect obligation,"* but there is no such thing as a 
 duty of imperfect obligation ; what is so denominated is 
 really a right — a right which should be exercised — which, 
 as in the case of all rights, the person in whom it is vested, 
 may or may not exercise at his option. " Rights are 
 universal and unexceptive, or, if not so, then they are none 
 at all." « 
 
 § 36. The object of a right or duty is a transaction. 
 By transaction is meant an act, its occasion and its effect. 
 
 1 For the tenor of this chapter we As to rights and duties, reference may 
 
 acknowledge our indebtedness to the be had to Austin's Lectures on Juris- 
 
 general part of " Thibaut's System of prudence. 
 
 Pandekten Rechts," as translated by ^ Harrison v. Bush, 5 El. & Bl. 
 
 Lindley; also to Mr. Maine's ad raira- 344. 
 
 ble book, ■' Ancient Law, or an In- •' Essay on Ultimate Civilization, 
 
 quiry into the Origin of Legal Ideas." by Isaac Taylor. 
 
28 RIGHTS AND DUTIES. [CH. HI. 
 
 § 37. Rights and duties are reciprocal. The act which 
 one has the right, the power, to do or forbear, that act no 
 other can or should hinder or compel the doing or for- 
 bearing ; but to such doing or forbearing it is the duty, 
 the necessity, of every other to submit ; and what one has 
 the right, the power, to command another to do or for- 
 bear, that it is the duty, the necessity, of that other to do 
 or forbear ; what it is the duty, of one to do or forbear, that 
 it is the right of some other to have done or forborne ; 
 what it is the duty of one to do. to that it is the duty of 
 every other to submit. 
 
 § 38. Rights and duties pertain solely to persons. A 
 thing cannot have any rights and cannot owe any duties. 
 And as a thing has no rights, a person cannot owe a duty 
 to a thing. 
 
 § 39. The exercise of a right is always optional ; the 
 performance of a duty is always compulsory. One may 
 forego the exercise of a right, or exercise it, at his option, 
 for either way no right of any other suffers ; but one can- 
 not, as his option, forego the performance of a duty ; be- 
 cause to omit the performance of a duty is to take away 
 a right somewhere, either in society or an individual — the 
 right to have such duty performed. Therefore, every act 
 done in exercise of a right is a voluntary [optional] act, 
 and every act done in the performance of a duty is an in- 
 voluntary [not optional] act. One may in fact perform 
 his duties willingly, but as the performance or non-perform- 
 ance is not optional, and may be enforced, performance is 
 properly regarded as involuntary. 
 
 § 40. Rights must be exercised and duties must be 
 performed strictly and in good faith.^ (§ 88.) An act 
 which exceeds the prescribed limits of a right is not the 
 
 ^ " A person may exercise a right Popular Progress in England, 332. 
 in such a way that it becomes a See^ gi,posi.) 
 wrong." (Lord Sidmouth quoted 
 
§§ 4I-43-J WRONGS AND REMEDIES. 
 
 29 
 
 exercise of that right, and an act which falls short of the 
 prescribed limits of a duty is not the performance of that 
 duty. 
 
 § 41. Rights and duties cannot exist, nor have any 
 certainty of existence, in the absence of a supreme power 
 somewhere, which protects the exercise of the one and en- 
 forces the performance of the other; that supreme power 
 is called law, and that branch of it which relates to the 
 rights and duties of individuals in their social relations 
 constitutes the municipal law. In some sense, therefore, 
 it is proper to say that rights and duties are the results of 
 law, and if this be granted, it must follow that all rights 
 and duties of which the municipal law takes cognizance 
 are legal rights and legal duties. There can be no such 
 right recognized by law as a natural right. A right ante- 
 rior to or independent of the law can be a right only of 
 superior physical power. 
 
 § 42. Every act must be done either in the exercise of 
 a right or in the performance of a duty, or neither in the 
 exercise of a right nor in the performance of a duty ; and 
 every act must be either such as the law permits and does 
 not punish, or such as the law does not permit and will 
 punish. Every act done in the exercise of a right or in 
 the performance of a duty is a permitted act. Every act 
 done neither in the exercise of a right nor the performance 
 of a duty is an unpermitted act. Every act which the law 
 permits is lawful, and every act which the law does not 
 permit is unlawful.^ 
 
 § 43, A lawful act cannot amount to a wrong, but 
 every unlawful act is a wrong ; and as every act must be 
 either lawful or unlawful, every act must be either a wrong 
 or not a wrong. An act may be such as not to be obnox- 
 
 1 Bv an unlawful act is meant tion or excuse. (Hoar, J., Com'th v. 
 intentional violence, without justifica- Presby, 14 Gray [80 Mass.], 65.) 
 
30 RIGHTS AND DUTIES. [CH. III. 
 
 ious to every remedy, but if it is obnoxious to any remedy 
 it is a wrong.^ Tlie rule tiiat for every wrong the law pro- 
 vides a remedy, holds true only by postulating that only 
 that act is a wrong for which the law provides a punish- 
 ment or a remedy. The rule that for every wrong the law 
 provides a remedy does not imply that for every wrong 
 the subject of the wrong — the wronged can obtain redress, 
 because sometimes although a wrong has been committed, 
 the subject of the wrong is for some reason estopped from 
 claiming redress. The formula by which this exception 
 to the general rule is expressed is, that one cannot take 
 advantage of his own wrong. 
 
 § 44. Different laws prescribe different rules of right 
 and duty^ and where there are courts of different jurisdip- 
 tions, that may be a wrong in one jurisdiction which is not 
 a wrong in another ; as where there are civil and criminal 
 courts, and as in England when there were common-law 
 courts and ecclesiastical courts. We may sometimes de- 
 termine of any act whether or not it is a wrong, by inquiring 
 whether or not the law provides for it any remedy or 
 punishment. There can be no civil right where there is 
 no remedy.^ " It is a mockery to talk of existing rights 
 without applying corresponding remedies."^ If there is 
 no remedy we conclude there is no wrong — meaning, of 
 course, legal wrong. This, it must be conceded, is an 
 illogical and inverse method of arriving at the desired 
 conclusion, but we find it oftentimes resorted to, as the 
 
 Injury is whatever is not done 31 Mich. 216.) In an unreported case 
 
 according to law. (Bracton, ch. xxxvi, against Walter Savage Landor, the au- 
 
 p. 155.) There are hardships which thor of Imaginary Conversations, &c., 
 
 the law cannot redress. (Swift v. &c., one count in the declaration was 
 
 Po'keepsie, 37 N. Y. 515-6.) An upon the agreement of the defendant 
 
 agreement not to permit the columns not to libel the plaintiff, and alleged 
 
 of a newspaper to be used for the a breach of that agreement 
 
 publication of matter detrimental to s Bank of U. S «/. Owens, 2 Peters, 
 
 the covenantee, held to be too vague 539. 
 
 to be enforced. (Fowler v. Hoffman, » Fowler v. Lindsay, 3 Dallas, 413. 
 
§§ 45-47- j WRONGS AND REMEDIES. 3 1 
 
 best attainable standard by which to determine of any act 
 if it be a wrong.^ 
 
 § 45. Wrongs which only affect society in general, and 
 so far as they affect society in general, are distinguished 
 from wrongs affecting only individuals by denominating 
 them crimes. Hereafter we shall invariably use the term 
 wrong to signify an act injuriously affecting only individ- 
 uals. Wrongs are direct or indirect. A direct wrong is 
 where the act done may be per se a violation of a right —a 
 blow is of this character. An indirect wrong is where 
 the act done cannot be per se a violation of a right, and 
 only becomes a violation of a right by reason of some con- 
 sequence resulting from that act. The act of publishing 
 language is of this character. 
 
 §46. We are accustomed to describe law as the su- 
 preme power in the State, commanding what is right and 
 prohibiting what is wrong; but this, besides being un- 
 true,'^ does not aid in determining what is a legal right or 
 a legal wrong. So, too, a wrong is correctly enough de- 
 scribed, not defined, as an invasion of a right, but unless 
 or until we know what is a right, we cannot know when a 
 right has been invaded. 
 
 § 47. If we could catalogue rights, and distinguish each 
 by an intelligible and unvarying definition, we should then 
 have no difficulty in ascertaining when a wrong has been 
 done. But the nature of a right forbids any such proceed- 
 ing. We do, indeed, find text writers and judges speaking 
 of the right of speech, the right of the press, and the right 
 of property. Blackstone, and others following him, state 
 that the absolute natural rights are the rights of life, 
 liberty and reputation. Text writers also speak of relative 
 rights and tangible rights, but all these are mere words, 
 
 » " The remedy may always be ^ See Chisholm v. State of Georgia, 
 
 referred to as illustrating the right, 3 Peters' Cond. R. 74- 
 and e converse.'''' (Van Rensselaer v. 
 Jones, 2 Barb. 656.) 
 
32 
 
 RIGHTS AND DUTIES. 
 
 [CH. 
 
 III. 
 
 entirely illusory^ capable of no practical application. The 
 utmost that can be derived from all that has ever been 
 written on this subject is, that a man has some rights per- 
 taining to his person, his property and his reputation ; the 
 natiu-e of a right is nowhere attempted to be defined or 
 explained, except in the illogical way of stating a rule with 
 a multitude of exceptions, leaving us in doubt as to each 
 particular case which arises, whether it comes within the 
 rule or is one of the exceptions.^ 
 
 § 48. While defining a wrong as an invasion, meaning 
 every invasion of a right, text writers have contented 
 themselves with speaking of the absolute right of prop- 
 erty, the absolute right of reputation, &c.^ Now, if the 
 words '■'■absolute right of property"" have any meaning, 
 
 • In English Jurisprudence the 
 chief purport of a principle seems to 
 be to afford a nucleus for an enormous 
 undergrowth of exceptions. The 
 London Times, 16 March, 1880. 
 
 2 " Rights of persons are divided 
 into absolute and relative, 1 Chit. PI. 
 137. This classification is recognized 
 by all elementary writers. 2 Kent's 
 Com. 129; 3 Bl. Com. 138." (Del- 
 amater v. Russell, 4 How. Pr. R. 
 235.) '' The character of individuals 
 is unquestionably one of their absolute 
 and personal rights. It is, therefore, 
 unnecessary to make any distinct 
 affirmation that the protection of it 
 most immediately falls within the 
 common law. Reputation, indeed, is 
 not only one of our perfect rights, but 
 that which alone gives a value to all 
 our other rights." (Holt on Libel, 
 p. 15.) "The security of his reputa- 
 tion or good name, from the arts of 
 detraction and slander, are rights to 
 which every man is entitled by reason 
 and natural justice." (i Bl. Com. 
 book I, ch. i.) "The use of the law 
 consisteth principally in these three 
 things: .... III. For preserva- 
 tion of man's good, name from shame 
 and infamy." (Bacon's The Use of 
 the Law.) His Lordship says nothing 
 further on the subject in that essay. 
 
 Slander or libel is an infringement 
 
 of the absolute rights of persons. 
 (Parker, J., Delamater v. Russell, 4 
 How. Pr. R. 235.) •' Whether reputa- 
 tion be by the law of nature one of the 
 absolute rights of persons or not, the 
 common law of England does not so 
 consider it. The law of unwritten 
 slander is incompatible with it, and in 
 part establishes a different principle. 
 For it would follow from that principle, 
 and he evidently means by it, that no 
 man can lawfully say or publish any- 
 thing to the disadvantage of another, 
 even though it be true, and he is pre- 
 pared to prove its truth." (l Mence 
 on Libel, 132.) Blackstone and 
 others, translating personos, person, 
 instead of status or condition, place 
 among the rights of persons the right 
 of personal security, the reputation, 
 &c., whereas the right to reputation is 
 among the rights in rem. (Edinburgh 
 Review, Oct. 1863, p. 239, Amer. Re- 
 print.) The right which Blackstone 
 styles the right of reputation is origi- 
 nal or innate as opposed to acquired. 
 This right has no connection with a 
 natural right in the other sense of the 
 term. Blackstone has confounded 
 them, and, supposing the right of rep- 
 utation to belong to the law of per- 
 sons, has called it an absolute right of 
 persons. (2 Austin's Lect. on Juris. 
 268, 476; 3 Id. 179; post, § 57.) 
 
§ 48.] WRONGS AND REMEDIES. 33 
 
 they must mean that one has such a right to his property 
 that no one may, under any circumstances, take it from 
 him ; and if this be so, and every invasion of a right be a 
 wrong, it must follow that every deprivation of property 
 is a wrong. We know this is not true ; one may be de- 
 prived of his property in many ways without a wrong 
 being done. A man's property may be taken from him 
 directly for public use,, on making due compensation, or 
 it may be taken from him to satisfy his obligations, and it 
 may be indirectly taken from him in many ways by acts 
 subjecting him to loss^ for which the law affords him no 
 remedy. So, too, if the supposed right to reputation be 
 an absolute right, then every invasion of it must be a 
 wrong ; but reputation is often invaded without such in- 
 vasion amounting to " a wrong," hence the inutility, for 
 any practical purpose, of the definition of a wrong as an 
 invasion of a right. The truth is, that a man has the 
 right to the uninterrupted enjoyment of his -property to 
 such an extent only, and subject to such conditions, as 
 the general welfare of the community demands, and so of 
 reputation. It must be, therefore, that instead of saying 
 of one he has an absolute right to property or reputation, 
 we should say he has a right thus and so, describing it 
 with such limitation and qualification as will make it true 
 that every interference by another with such an enjoy- 
 ment of it will amount to a wrong. This may be difficult, 
 or it may be impossible ; if the latter, as we conceive it to 
 be,^ let the attempt be abandoned, but it furnishes no 
 
 1 " The time is passed when . . It misleads." (Lieber's Civil Liberty, 
 . . it was believed that everything 23.) Any definition which could be 
 was strictly definable, and must be given would probably fail to compre- 
 compressed within the narrow limits hend all the cases to which it would 
 of an absolute definition before it apply. It is wiser, as suggested by 
 could be entitled to the dignity of a Mr. Justice Miller, to leave the mean- 
 thorough discussion. The hope of ing to be evolved by the gradual pro- 
 being able absolutely to define things cess of judicial inclusion and exclijsive 
 . . . . betrays a misconception as the cases presented for decision 
 of human language, which, itself, is should require. (Earl, J. Stewart v. 
 never absolute except in mathematics. Palmer, 74 N. Y. 191.) 
 
34 RIGHTS AND DUTIES. [CH. III. 
 
 reason for describing that as an absolute right which is 
 something else. " It is difficult to say when night ends or 
 day begins, or to draw the line between them, yet day and 
 night are not the same thing." ^ 
 
 § 49. It is not so proper to say that the law prescribes 
 what is right and prohibits what is wrong, as to say that 
 law determines rights by prescribing duties, and indepen- 
 dently of any positive enactment, all legal duties are com- 
 prised in this one prohibition. No one shall, without a 
 legal excuse^ do or forbear any act, by which doing or 
 forbearing there results a breach of the peace, injury to 
 the community, or damage to the person or property of 
 another. 
 
 § 50. What determines of any given act whether or 
 not it is permitted, i, e., lawful ; or unpermitted, i. e., un- 
 lawful ; whether there is or is not a legal excuse for the 
 doing such act, is the occasion upon which it is enacted ; ^ 
 the occasion being the entire group of circumstances 
 surrounding the act, including the actor, the patient or 
 person acted upon, the kind of act, the manner of effecting 
 the act, the motive of the actor, and the consequences of 
 the act. It is the occasion to which we must, in every 
 instance, refer to ascertain whether there was or was not a 
 legal excuse for the act. Everything considered, was the 
 act lawful or unlawful ? Was it in exercise of a right or 
 performance of a duty ? As it is manifestly impossible to 
 preconceive or anticipate every possible group of circum- 
 stances, so necessarily it is impossible to catalogue rights 
 and duties — that is, to catalogue the acts which may or 
 may not be done or forborne. 
 
 § 51. The impossibility of framing such a definition of a 
 right or of a duty as shall enable us to say of any particular 
 
 1 Att'y Gen'l v. Daken, Law Rep. ^ Hosmer v. Loveland, ig Barb 
 
 2 Ex. 295. 115. ^ 
 
§§ 52, 53-] WRONGS AND REMEDIES. 
 
 35 
 
 act by itself, that it is lawful or unlawful, is evident. The 
 utmost we can do is to say that an act done under a cer- 
 tain given state of circumstances is a permitted act, one the 
 actor had the right to do, or that it is an unpermitted act, 
 one the actor had not the right to do — that is, the doing 
 of which it was his duty to forbear. 
 
 § 52. The law, besides prescribing duties, provides the 
 means called remedies for protecting rights and redressing 
 wrongs. It will, in some cases, interpose by injunction to 
 prevent the perpetration of a wrong, but, as a general rule, 
 the publication of an alleged libel will not be stayed by 
 injunction.^ 
 
 § 53. The ordinary mode of remedying a wrong is by 
 an action. Actions were anciently commenced by original 
 writ. These writs differed from each other according to 
 the nature of the wrong to be redressed. These writs 
 were preserved in the chancery in The Register of Writs, 
 which register was printed and published in the reign of 
 Henry VIII of England.^ The most ancient writs pro- 
 vided for the most obvious kinds of wrongs, as nuisance, 
 waste, trespass, &c. ; but in the progress of society it 
 seems that cases of injury arose new in their circumstances, 
 and not within any of the writs then known, and that the 
 power to issue writs of a new kind was conceived not to 
 exist without the authority of the Parliament; accord- 
 ingly, by the statute of 13 Edward I, ch. xxiv, called the 
 statute of Westminster the I Id (say A. D. 1285), it was 
 provided " That as often as it shall happen in the chancery, 
 that in one case a writ is found, and in a like case {in con- 
 
 ' Seeposi, Part 11. Constantine, who abolished the judi- 
 
 * One of the eariiest refinements in cial formula. These formula in the 
 
 forensic science was that of classifying English law were called writs. How, 
 
 the various subjects of litigation, and or when, or whence introduced into 
 
 allotting to each class an appropriate England, is undetermined. (Stephens' 
 
 formula of complaint or claim. Such PI. ch. i, and Id. appendix, note 2.) 
 was the practice in ancient Rome al- 4 Reeve's Hist. 426, 432. Original 
 
 most as early as the law of the twelve writs were abolished in England by 
 
 tables, and continued until the time of statute 2 Will. IV, ch. xxxix. 
 
36 RIGHTS AND DUTIES. [CH. III. 
 
 similu casu) falling under the same right, and requiring 
 like remedy, no writ is to be found, the clerks in the chan- 
 cery shall agree in making a writ," &c. Under the sanction 
 of this act, large accessions were made to the existing 
 stock of original writs. These new writs were said to be 
 issued upon the case, and the actions commenced by them 
 were designated actions upon the case, or actions of trespass 
 on the case. Among this class was the action of trespass 
 on the case for words — the ancient form of the action — 
 now known as the action of slander or libel, and which is 
 the only civil remedy for slander or libel.^ 
 
 § 54. The consideration of the course of procedure in 
 an action pertains more properly to a subsequent stage of 
 our inquiry.^ The rules by which we determine whether 
 or not a wrong has been committed, and the rules of 
 pleading, of evidence and of practice, although they have 
 a certain interdependence, are in fact, and, if we would 
 avoid confusion, must ever be regarded as separate and 
 distinct. 
 
 1 Although the new writs were to be (Reeve's Hist.) That would be A.D. 
 framed only in consimilu casu, " many 1 349. We have not verified this state- 
 writs were framed for various kinds of ment, and doubt its correctness. The 
 trespass unknown in former ages." action an the case has its counterpart 
 (Sullivan's Lectures, Lect. 33 ; Ste- in the actio utilis of the Roman Law. 
 phens' PI. 7.) The first reported ac- (See 2 Austin's Lect. Jur. 303.) 
 tion of trespass on the case is said '' Part 11, post. 
 to be found in 22 Edw. Ill, Ass. 41. 
 
CHAPTER IV. 
 
 WHAT IS THE GIST OF THE ACTION FOR SLANDER OR LIBEL. 
 
 History silent as to the introduction of the action for 
 slander — Hypothesis necessary — How the law protects 
 reputation — Fiction — Pecuniary loss the gist of the 
 actions for slander and libel. 
 
 § 55. It is not known with certainty, or, rather, all are 
 not agreed, either as to the origin of the remedy by action 
 for slander or libel, nor as to the gist of such an action, 
 and neither history nor judicial decision furnishes any sat- 
 isfactory solution of these questions. We know that all 
 nations have recognized the capacity for injury inherent 
 in language, and have provided some means for punishing 
 offenses arising from an abuse of the gift of speech ; but 
 we seek in vain among these laws for a clew to the prin- 
 ciples by which at this day we may determine when a 
 wrong by slander or libel has been occasioned, and when 
 we may properly invoke the remedy by action for slander 
 or libel.-' As the action of trespass on the case owed its 
 
 1 After a reference to all available Juridicales ; Disney's Ancient Laws 
 
 authorities on the subject of the an- against Immoralities : Gurdon's His- 
 
 cient laws against offenses by Ian- tory of Court Baron and Court Leet ; 
 
 guage, and preparing a lengthy note Petit's Leges Atticae; Johnson's Insti- 
 
 on the subject, we conclude that how- tutes of the Civil Law of Spain ; Mi- 
 
 ever interesting as history, its publica- chaelis' Com. on the Law of Moses, 
 
 tion here would not advance the object Smith's Translation ; The English 
 
 of this essay. The curious student Statutes, 3 Edw. I ; 2 Rich. II ; i Phil. 
 
 may refer to Helton Libel, ch. i, vol. and Mary; i Eliz. ; the pubhcations of 
 
 II; I Mence on Libel, ch. viii, ix; the English Record Commissioners; 
 
 Starkie on Slander ; 3 Johns. Cas. 382 ; Pitcairn's Criminal Trials in Scotland. 
 
 Wilkins' Leg. Anglo-Sax. ; Lombard's For seventeenth century ideas of the 
 
 Saxon Laws; Nicholson's Prefat. ad law of libel in Massachusetts, see 
 
 Leg. Anglo-Sax. ; Stiemhook De Jure Sketches of the Judicial History of 
 
 Vetusto Suconum et Gothorum; Tac- Massachusetts; and among the Dutch 
 
 itus' De Mor. Germ. ; Saltern De An- in New York, see Valentine's Manual 
 
 tiq. Leg. Brit.; Dugdale's Origines of Common Council for 1849, pp. 402, 
 
38 GIST OF ACTION. [CH. IV. 
 
 origin to the provisions of the statute 13 Edward I, A. D. 
 1285, it seems necessarily to follow that the action of 
 trespass on the case for words must date its origin at some 
 period subsequent to that statute ; ^ but it does not thence 
 follow that anterior to the introduction of the action of 
 trespass on the case for words, there existed in England 
 no remedy for wrongs by language. We know that for 
 centuries prior to the statute of 13 Edward I, offenses 
 which we at this day designate slander and libel were 
 'recognized and punished; but of the time and manner of 
 introducing the remedy by action of trespass on the case 
 for words we know absolutely nothing. The reported 
 decisions in the courts of law in England, printed and in 
 manuscript, reach back at least so far as A. D. 12 16, but 
 we find in those reports no reference to an action for 
 words earlier than A. D. 1321.^ That decision merely 
 serves to inform us that at that time existed the struggle 
 for jurisdiction which probably commenced on the division 
 of the courts into courts temporal and courts ecclesiastical 
 or Christian, and which continued certainly until after the 
 reign of the first James of England. 
 
 § 56. As we can obtain no positive information on the 
 subject of our inquiry, we are driven to hypothesis. Our 
 
 421 ; and under English rule, Valen- it was an attachment upon a prohibi- 
 
 tine's Manual for 1847, p. 359; and tion against proceeding in a court 
 
 Thomas' Hist, of Printing in America. Christian for defamatory words. There 
 
 And see List of Authors following is nothing in the report to indicate 
 
 Table of Cases, ante. that it was a novel proceeding. March, 
 
 1 Section 53, ante, and note 2, p. in his Treatise on Slander, says he 
 
 35, ante. Mr. Pomeroy, in his intro- could find no action for scandalous 
 
 duction to Municipal Law, says, § 1 99 : words before Edward the Third's time, 
 
 That before the statute "there was and only one such action during fifty 
 
 absolutely no provision for a vast ma- years of that king's reign ; three such 
 
 jority of the legal rights . . which actions during the reign of Edward the 
 
 are now the most common and im- Fourth ; not one in the reign of Henry 
 
 portant." And § 201: The effect of the Seventh; and only five in thirty- 
 
 the statute " was to extend this action eight years of Henry the Eighth. At 
 
 to cases where the injury was conse- pajje 5 he says : Actions for scandal 
 
 ffuentzal or indirecV are amongst the most ancient in the 
 
 ' That case is in the year book of law. 
 Edward H (Hil. 14 Edw. II, p. 416); 
 
56.] GIST OF ACTION. 
 
 39 
 
 unwriiien law is based on the so-called common law of 
 England, and whatever the number of sources which con- 
 tributed to make up that complex, vaguely understood and 
 imperfectly ascertained set of legal ideas denominated the 
 common law of England, it is certain that so much of it 
 as pertains to the rights of persons is mainly derived from 
 the Anglo-Saxon and Roman civil laws. Of both of those 
 systems of laws history furnishes us ample details. We 
 know that Rome held possession of Britain from about 
 the end of the first half century of the Christian era to 
 about the middle of the fifth century (say from A. D. 45 
 to A. D. 448), and during this period Roman civil law was 
 administered in England. When the Romans abandoned 
 Britain, the Saxons became its masters, and, alternately 
 with the Danes, so continued until the Norman conquest 
 (A. D. 1066). The Saxons introduced their own system 
 of laws. The controlling idea of those laws was the main- 
 tenance of the peace and protecting the person and prop- 
 erty. They did not, nor does the law at this day, give 
 directly any remedy for outraged feelings or sentiments.^ 
 
 ' See Tilley v. Hudson R. R. Co. that " the common law took cogniz- 
 23 How. Pr. R. 370; Green v. Hudson ance only of injuri^e to the person and 
 R. R. Co. 32 Barb. 25; Lehman v. property." (i Mence on Libel, 333.) 
 City of Brooklyn, 29 Barb. 234 ; Flem- Perhaps among the reasons why there 
 ington V. Smithers, 2 C. & P. (N. P.) were so few actions for slander, one 
 292; Terwilliger z/. Wands, 17 N. Y. may be that the parties themselves 
 54; Wilson V. Goit, 17 N. Y. 442; Be- undertook to redress the injury with- 
 dell V. Powell, 13 Barb. 183; Samuels out resorting to the law. When King 
 V. Evening Mail Asso. 13 Sup. Ct. Harold required of Reidar, the Ice- 
 Rep. (6 Hun), 5 ; Salma v. Trosper, lander, a blood fine for killing one of 
 27 Kan. 544. The cases to the contrary his (Harold's) followers, Reidar refused 
 were overruled. But where there ex- to pay it, because the man brought his 
 ists an independent cause of action, in death upon himself by behaving rude- 
 that event injury to the feelings is an ly to him. See Den Danske Erobring 
 element of damage. Hamilton z/. Eno, of England og Normandict; Copen- 
 16 Hun, S99; 81 N.Y. 122; Brooks z/. hagen, 1863. In Baker v. Pierce (2 
 Harrison, 91 N. Y. 83 ; Gulf R. R. Co. Ld. Raym. 960), Holt, Ch. J., said he 
 V. Levy, 17 Cent. L.J. 11. Mence, remembered a story told by Mr. Jus- 
 commenting on the statement of Holt, tice Twisden, of a man who had 
 that the few actions for slander to be brought an action for slander, who, 
 found in the earlier law reports was on judgment being given against him, 
 creditable to the people of those times, said if he had thought he should not 
 remarks that the credit was not due have recovered he would have cut the 
 to the good manners but to the fact defendant's throat. See Quigley v. 
 
40 
 
 GIST OF ACTION. 
 
 [CH. 
 
 IV. 
 
 With few exceptions, these laws designed to remedy every 
 wrong by a pecuniary mulct or fine (weref proportioned 
 and adjusted to the kind and degree of the wrong com- 
 mitted. In that form of trial which corresponded to our 
 present jury trial, the question in Saxon times was only 
 the guilt or innocence of the accused.^ The penalty (the 
 damages) was fixed by the codes. At a later period, after 
 the Norman invasion, and when the Anglo-Saxon codes 
 had been lost by desuetude, the courts fixed the amount 
 of damages; this power, when jury trials assumed their 
 present phase, appears to have been transferred by the 
 court to the jury — the court, however, retaining its power 
 to regulate the damages.^ For ages the courts always re- 
 vised the allowance by the jury of damages, and the power 
 
 McKee, 12 Oregon, 22. The Jesuits 
 sanctioned killing for slander, partic- 
 ularly for slander of one in religious 
 orders, but they held that the killing 
 should be secret, and not open, 
 to create scandal. (Pascal Letters, 
 xiii.) In the "Ethica Christiana," by 
 Father Benedict Stattler, published in 
 1789, it is stated, paragraphs 1889, 
 1891 and 1892, that a Christian may, 
 to prevent a " contumelia gravis certot 
 provisa . . . aut calumnia " . . 
 murder the " injusti aggresoris aut ca- 
 lumniatoris." Father Stattler's book 
 was published " cum permissu su- 
 periorum," and is said to be still in 
 use as a manual for ecclesiastics. See 
 post, note to § 142. 
 
 The necessity of protecting charac- 
 ter by law could not obtrude itself till 
 society had begun to assume a com- 
 plicated form. (Borlhwick on Libel, 
 I.) The coarseness of language in- 
 dulged in formerly must strike every 
 student of history. Henry III (A. D. 
 1248) spoke of the Aldermen of Lon- 
 don as " London Boors," applied a like 
 epithet to the Bishop of Ely, and dis- 
 missed Bishop Aymer by telling him 
 to go to the devil. See Miracles of 
 Simon de Montfort and works of 
 Roger Bacon. 
 
 ' Damages correspond to the An- 
 
 glo-Saxon were: i Palgrave's Rise, 
 &c., Eng. Commonwealth, 205; Bos- 
 worth's Anglo-Saxon Diet. tit. Were 
 and Wite ; 2 Lappenburg's History 
 of England (Thorp's Translation), 
 336. 
 
 ^ As to the origin of trial by jury, 
 &c., see Forsyth's Hist, of Trial by 
 Jury, and Stephen's PI. Appendix, 
 note 40 ; 2 Reeves' Hist. 270 ; Fortes- 
 cue de Laudibus Legum Angliae, ch. 
 XXV, xxvi, xxvii, and notes to the edi- 
 tion by Amos; 2 Hallam's Middle 
 Ages, 388-406, note, nth edit.; Pal- 
 grave's English Commonwealth, 272. 
 
 ' See Viner's Abr. tit. Damages, 
 J, K, L, M, as to powers of courts to 
 increase or mitigate damages. The 
 right was denied in an action for slan- 
 der, because there is in such an action 
 nothing apparent for the judgment of 
 the court to act upon. (Id. K.) See 
 Cassinz/. Delaney, 38 N. Y. 178; but 
 in Gostling v. Brooks, 2 F. & F. 76, 
 the court in bank upheld the verdict 
 for the plaintiff, but reduced the 
 amount of damages. The damages 
 increased for giving plaintiff bad food 
 to eat. (i RoUe, 89.) And in cases 
 of mayhem. (See Jacobs' Law Diet, 
 tit. Mayhem ; Rolle Abr. tit. Damages ; 
 2 Sharswood's Blackstone's Com. I2i, 
 note, and the last note to § 293, post. 
 
S^-] GIST OF ACTION. 
 
 41 
 
 is Still held and exercised by the courts, although at the 
 present time it is customary to make the revision by either 
 granting a new trial or ordering a reduction of damages, 
 at the election of the party to whom damages have been 
 awarded. The Anglo-Saxon ^ codes provide for offenses 
 occasioned by language, but they are all offenses which 
 amount to public wrongs or crimes, sedition, or treason, 
 rather than private wrongs or torts. These codes are in 
 fact barren of any provision of a pecuniary fine or penalty 
 for a private injury by language. While the Saxons were 
 yet dominant in Britain, Christianity, which had been early 
 introduced into England and become extinct, was re-intro- 
 duced through the Church of Rome — say A. D. 596. The 
 introduction of Christianity did not abrogate the Saxon 
 laws, but it at least supplemented upon them many pre- 
 cepts of Christianity, and, beyond a doubt, laid the founda- 
 tion for the dictum that Christianity is part of the common 
 law of England.^ The clergy rose to great power in the 
 
 1 Sir Francis Palgrave, in his " His- cole, 2 Lewin C. C. 237 ; Reg. v. Heth- 
 tory of Normandy and of England," erington, 5 Jur. 529, Q. B. ; Rex v. 
 which unhappily he was not spared to Paine, i East P. C. 5 ; LindenmuUer 
 complete, objects to the term Anglo- v. The People, 33 Barb. 548 ; Bedford 
 5fl:;r(?« as a designation of the English Charity, 2 Swans. 527; Da Costa 7/. 
 of the ante-Norman period. He de- Paz, 2 Swans. 420, note; Atty. Gen. 
 nies there was any Anglo-Saxon people v. Pearson, 3 Men 399; Andrew v. N. 
 or language, properly so called, and Y. Bible & Prayer Book Soc. 4 Sandf. 
 says : " If you had asked Alfred what 1 57 ; i Bish. Cr. Law, §§ 945, 947 ; 2 
 he had in his hand, he would have Id. % 87. Jefferson, in a letter to Ma- 
 answered it was an Englisc-boc. . . jor Cartwright, controverts the dictum 
 The name of our nation then, as now, that Christianity is a part of the com= 
 was English." (Vol. iii, p. 631, edit. mon law. This letter is commented 
 1864.) Mr. Palgrave himself employs upon in the Inaugural Discourse de- 
 the term Anglo-Saxon in his earlier livered by Joseph Story on taking the 
 works. chair of Dane Professor at Harvard 
 
 2 We do not intend to assert that University, and in an article in 9 
 Christianity is parcel of the English American Jurist; and see Life and 
 common law. Sir Matthew Hale, in Letters of Joseph Story, vol. I, pp. 430 
 Rex V. Taylor (Ventris, 293; 3 Keble, -434; vol. II, pp. 8, 462, 463; and on 
 621 ; Tremayne's Pleas of the Crown, this subject see the arguments of 
 226), following Lord Coke, uttered a Webster and Sergeant in the Girard 
 dictum that " Christianity is part of will case ; and Lewis on Authority in 
 the laws of England." That dictum Matters of Opinion. Holt says Alfred 
 has been repeated in subsequent cases. made Christianity part and parcel of 
 See, among others, Rex v. Webster, the common law. (Holt on Libel, 32.) 
 Fitzg. 64; 2 Str. 834; Reg. v. Gather- See strictures on this dictum (i Mence 
 
42 GIST OF ACTION. [CH. IV. 
 
 State, they sat in the courts of justice, and took part in the 
 decision of all judicial controversies, and they claimed and 
 exercised a sole jurisdiction over all questions involving 
 considerations of moral right and wrong (stns), rather than 
 considerations of legal rights or rights of property ; those 
 rights in fact which were provided for by the letter of the 
 laws. The jurisdiction thiis claimed and exercised included 
 heresy, adultery, perjury, and defamation. This jurisdiction 
 was assumed and exercised with the avowed design not of 
 compensating the injured party, but for the reformation 
 of the offender. Reparation in damages was made only 
 in the cases and for the offenses provided for in the codes. 
 In the exercise of their powers the clergy adopted — at 
 least to some extent — the forms of procedure in use in the 
 Roman law. 
 
 On the Norman accession, William introduced the 
 feudal system, but professed to respect and continue in 
 force the Saxon laws. He separated the courts into 
 courts of diflFerent jurisdictions, the clergy no longer sat in 
 the temporal courts, but apart in courts Christian or eccle- 
 siastical. It would seem they were debarred the exercise 
 of any jurisdiction in controversies in which money dam- 
 ages were claimed. The line of demarcation between the 
 jurisdiction of the temporal and ecclesiastical courts ap- 
 pears to have been that, where compensation was sought, 
 resort was to be had to the temporal courts ; and where 
 
 on Libel, 303; 13 Albany Law Jour- the Apostolical council at Jerusalem, 
 
 nal,366; 2 How. U. S. 127; 8 Johns. Alfred refers to the command, "As ye 
 
 290; I Bancroft's Hist, of U. S. 243). would that men should do unto you. 
 
 The Dome-Book of Alfred, said by do ye also to them ;" adding, " from 
 
 Blackstone to have been extant so this one doom, a man may remember 
 
 late as the reign of King Edward the that he judge everj' one righteously, 
 
 Fourth, and to have been lost, was he need heed no other doom-book." 
 supposed by both Hallam and Turner The Puritan Colony of New En- 
 
 never to have existed. It has since gland resolved at a " General Court, 
 
 been published by the Record Com- October 25th, 1639, . . . The 
 
 missioners, vol. I, pp. 55-101. It worde of God shall'be'the onely rule 
 
 commences with the ten command- to be attended vnto in ordering the 
 
 ments, followed by many Mosaic pre- afFavres of government in this planta- 
 
 cepts. After quoting the canons of tio." 
 
56.] 
 
 GIST OF ACTION. 
 
 43 
 
 the reformation of the offender only was desired, then 
 resort was to be had to the ecclesiastical courts. And 
 where the ecclesiastical courts entertained jurisdiction of 
 suits in which money might be demanded, the temporal 
 courts restrained them from proceeding therein by the writ 
 of prohibition. As there is now, so there must ever have 
 been, a distinction between language occasioning pecuniary 
 or temporal injury, and language insulting and provoking 
 and harrowing to the feelings, without occasioning pecu- 
 niary or temporal injury. This distinction seems to have 
 been clearly recognized by the statute drcumspecte agatis} 
 and leads almost irresistibly to the conclusion that the gist 
 of the action of trespass on the case for words, was the 
 pecuniary loss, and not for the injury to the reputation — 
 the defamation. In the early stages of society, only that 
 language which put one in peril of punishment, loss of in- 
 
 * The statute thus styled was 
 passed, 13 Edward I, stat. 4, ch. i, A. 
 D. 1285. The King to his justices 
 sendeth greeting: "Use yourselves 
 circumspectly {circumspecte agatis) in 
 all matters concerning the Bishop of 
 Norwich and his clergy, not punishing 
 them if they hold pleas in courts 
 Christian of such things as be meer 
 spiritual . . . and for laying vio- 
 lent hands on a clerk, and in canons 
 of defamation it hath been granted 
 already that it shall be tried in a spir- 
 itual court when money is not de- 
 manded but a thing done for punish- 
 ment of sin." By this it appears, said 
 Lord Coke, that the cognizance of 
 defamation was granted by act of Par- 
 liament. (2 Inst. 492.) See Appendix 
 D. No II, to Ecclesiastical Com'rs 
 Report, Feb. 27, 1832; and Stephens' 
 Ecclesiastical Statutes, pp. 26-34. 
 The statute, 9 Edward II. stat. i, ch. 
 iv, A. D. 1 31 5, enacted: " In defama- 
 tion, prelates shall correct also in 
 manner above said, the King's prohibi- 
 tion notwithstanding." Dr. Hall, son- 
 in-law of Shakespeare, in 1613, brought 
 suit in the ecclesiastical court against 
 John Lane for reporting that Mrs. Hall 
 " had the runninge of the raynes and 
 
 had been caught with Rafl Smith and 
 John Palmer.'' The defendant was 
 excommunicated. (Phillips' Outlines, 
 Life of Shakspeare, 182.) 
 
 It seems of those defamations by 
 which the party is damnified the spir- 
 itual court cannot hold plea. (Vin. 
 Abr. tit. Prohibition, D, 5.) In Ba- 
 con's Abr. tit. Courts Ecclesiastical, 
 D, it is said : " No suit can be institu- 
 ted in an ecclesiastical court for de- 
 famatory words in writing, because 
 they may be the subject of an action 
 at law." (Comb. 71.) This, however, 
 appears not to be correct. In Ware 
 V. Johnson, 2 Sir Geo. Lee's Cas. in 
 Eccl. Cts. 103 (A D. 1755), the words, 
 " He keeps a whore in his house," 
 were held to be defamation, and that 
 whether the language was in writing 
 or by parol. And see 2 Phill. Eccl. 
 Cas. 106; Halford v. Smith, 4 E. 567; 
 Bartlett v. Robins, i Wils. 258. 
 
 See Doctor and Student, Additions 
 to the Second Dialogue — not in all 
 editions of that work — ch. ix. If it 
 were enacted, that if one call another 
 thief or murderer, that the suit should 
 be taken thereupon to the King's court 
 and not in the Spiritual court, I think 
 the statute were good. 
 
44 
 
 GIST OF ACTION. [CH. IV. 
 
 heritance, or of social companionship, was supposed to oc- 
 casion pecuniary loss;^ but as society progressed, as more 
 faith and reliance had to be placed by men each in the 
 integrity of the other, so increased the power to inflict 
 pecuniary injury by means of language. The theory of 
 the law being to redress all wrongs by a pecuniary fine ; 
 whenever it appeared that a pecuniary wrong was oc- 
 casioned by language, there the temporal courts undertook 
 to afford redress. It may be that at first, in all cases, in 
 order to maintain an action for words in the temporal 
 courts, it was necessary to prove a pecuniary loss ; but 
 those courts, by laying it down as a rule of evidence, that 
 certain words per se, and without any further evidence, 
 were proof of pecuniary loss, facilitated a resort to the 
 temporal courts, and, by gradually extending the list of 
 words which were regarded per se as evidence of pecuniary 
 loss, so did those courts extend their jurisdiction. Thus, 
 probably, originated the distinction between words action- 
 able per se and words actionable only on proof of pecuni- 
 ary loss by other evidence than the words themselves. 
 It may be that originally the English law recognized no 
 distinction between the effect of written and spoken words. 
 When or why that distinction was introduced is unknown. 
 Probably the desire of the temporal courts to enlarge their 
 jurisdiction led them to adopt this distinction, for which 
 they found some warrant in the Roman law.** 
 
 1 " It is said that formerly no ac- in public trust), an action on the case 
 
 tions were brought for words unless may be had without proving any par- 
 
 the slander was such as, if true, would ticular damage to have happened, but 
 
 endanger the life of the object of it. merely upon the probability that it 
 
 (Noy, 64; I Freem. 277.) But too might happen. (3 Bl. Com. ch. viii.) 
 great an encouragement being given " See note, p. 12, ante. Daniel 
 
 by this lenity to false and -malicious O'Connell, in 1834, proposed a bill in 
 
 slanders, it is now held that for the English Parliament, intended, 
 
 scandalous words of the species before amongst other things, to assimilate 
 
 mentioned (that may endanger a man libel to slander as to what language 
 
 by subjecting him to the penalties of should give a right of action. See this 
 
 the law, may exclude him from society, bill commented upon, 1 1 London Law 
 
 may impair his trade, or may affect a Mag. 432. 
 peer of the realm, a magistrate, or one 
 
§ 57-J GIST OF ACTION. 
 
 45 
 
 § 57. We attempted to explain in Chapter II, the 
 difference between an injury to reputation and an injury 
 to property ; and to show that an injury to the reputation 
 did not necessarily imply an injury to the person or prop- 
 erty. In Chapter III, we undertook to show that reputa- 
 tion was not an absolute right, and in the preceding por- 
 tion of this chapter we have attempted to show that the 
 temporal courts of common law recognized only injuries 
 involving pecuniary or temporal loss. It nowhere appears 
 that the temporal courts recognized any right to reputa- 
 tion, and it is entirely consistent with all our knowledge 
 of the law to assert that, in theory at least, the temporal 
 courts of England never did, and, as the law in this respect 
 has not been changed, they do not now, otherwise than 
 inferentially, recognize reputation as a right which the law 
 protects. And if this be so in England, then is it so in 
 the United States. When we consider that by common 
 law "falsely and maliciously to impute, in the coarsest 
 terms and on the most public occasion, want of chastity to 
 a woman of high station and unspotted^ character, or want 
 of veracity or courage to a gentleman of undoubted hon- 
 esty and honor, cannot be made the foundation of any 
 proceeding civil or criminal ; whereas an action may be 
 maintained for saying that a cobbler is unskilled in mend- 
 ing shoes, or that any one has held up his hand in a threat- 
 ening posture to another," ^ it would seem to need nothing 
 more to satisfy the most skeptical that the protection is to 
 the property, and not to the reputation. Notwithstand- 
 ing some adverse criticism upon the statement, we conclude 
 to repeat as law, that pecuniary loss to the plaintiff is the 
 gist of the action for slander or libel.^ If the language 
 
 1 Report of Committee of House by what we have already written, we 
 
 of Lords on Defamation and Libel, cannot hope to do better in a note, we 
 
 July, 1843. therefore leave our work to be our 
 
 ^ Odgers Libel, 18-21. If we have answer to our critic, 
 not succeeded in establishing this view 
 
46 
 
 GIST OF ACTION. 
 
 [CH. IV. 
 
 published has not occasioned the plaintiff pecuniary loss 
 (actual or implied), then no action can be maintained.^ 
 
 1 A note to the " Preliminary Dis- 
 course" to the American edition of 
 Starkie on Slander, after referring to 
 the Roman law as making personal 
 contumely and insult the essence of 
 the offense of slander, adds : " This, it 
 will be seen, is a circumstance which 
 constitutes a very essential and 
 characteristic distinction between the 
 law of England and that of Rome, and 
 of those countries which have adopted 
 the civil law ; .... for the law 
 of England has from very distant times 
 considered the temporal injury to a 
 man's estate, and not the contumely 
 or insult of the agent as the ground of 
 compelling reparation in damages." 
 (Prelim. l3isc. vii.) " There must be 
 some certain or probable temporal loss 
 or damage to make words actionable." 
 This was said of oral words by De 
 Gray, Ch. J., in Onslow v. Home, 3 
 Wils. 177, and this was approved by 
 Lawrence, J., in Holt v. Scholefield, 6 
 T. R. 691. And per Bayley, J., in 
 Whittaker v. Bradley, 7 D. & R. 649: 
 " The principle on which this species 
 of action [action for saying orally 
 plaintiff, an innkeeper, was a bankrupt] 
 is, that the slander has the effect of 
 producing temporal damage to the 
 party complaining." To maintain the 
 action there must be injury to the 
 plaintiff. (EUenborough, Ch. J., 
 Maitland v. Goldney, 2 East, 426.) 
 An action on the case is not maintain- 
 able in any case without showing 
 especial prejudice. (Lowe v. Har- 
 wood, Cro. Car. 140; s. C. Palmer, 
 529; Ley, 82.) See in note to § 198, 
 post. 
 
 Reputation or fame is under the 
 protection of the law, because all per- 
 sons have an interest in their good 
 name, and scandal and defamation are 
 injurious to it, though defamatory 
 words are not actionable otherwise 
 than as they are a damage to the estate 
 of the person injured. (Wood's Ins. 
 17; Jacob's Law Diet, voce Reputa- 
 tion or Fame.) An action on the case 
 lies for words and for deeds. For 
 words spoken to or concerning another, 
 whereby one is defamed and damni- 
 
 fied. (Wood's Ins. 535.) " One essen- 
 tial ingredient of a good cause of ac- 
 tion for defamation is damage." 
 (Channell, B., Foulger v. Newcomb, 
 Law Rep. 2 Ex. 330.} Reputation is 
 property. (Dixon v. Holden, Law 
 Rep. 7 Eq. 492.) This case was not 
 ■followed. See Injunction to restrain 
 publication of a libel. Part II, post. 
 
 " In England, by the common law, 
 defamatory words are not actionable 
 otherwise than as they are a damage 
 to the estate of the person injured." 
 (Wood's Civil Law, 244, note.) " I am 
 not certain," says Lord Kames, " that 
 in England any verbal injury is ac- 
 tionable, except such as may be at- 
 tended with pecuniary loss or damage. 
 If not, we. in Scotland are more del- 
 icate. Scandal, or any imputation 
 upon a man's good name, may be sued 
 before the commissaries, even when 
 the scandal is of such a nature that it 
 cannot be the occasion of any pecuni- 
 ary loss. It is sufficient to say, I am 
 hurt in my character." (Historical 
 Law Tracts, p. 225.) 
 
 " The party injured [by libel] may 
 no doubt bring an action on the case. 
 This process, however, is not compe- 
 tent unless it is grounded on an actual 
 loss, which must be. shown to have 
 been sustained " (Borthwick on Libel, 
 4.) In Boldroe v. Porter, Yelv. 20, 
 the declaration alleged per quod the 
 plaintiff was in danger to lose her 
 goods and life. In Edward's Case, 
 Cro. Eliz. 6, held the charge action- 
 able, and assigned as the reason, that 
 '' by such speech the plaintiff's good 
 name is impaired.''' In Button v. 
 Heywood, 8 Mod. 24, Fortescue, J., 
 observed : " It was the rule of Holt, 
 Ch. J., to make words actionable 
 whenever they sound to the disreputa- 
 tion of the person' oi whom they were 
 spoken ; and this was also Hale's and 
 Twisden's rule, and I think it a very 
 good rule." 
 
 ' ' I will cite rights to forbearances 
 merely. A man's right or interest in 
 his good name is a right which avails 
 against persons as considered gener- 
 ally and indeterminately. They are 
 
§ 5 7- J GIST OF ACTION. 
 
 47 
 
 Let us not be misunderstood. We concede all that can 
 be urged as to the value of a " good reputation.^'' We be- 
 lieve, with Lord Bacon, that " men's reputations are tender 
 things, and ought to be like Christ's coat, without seam."^ 
 And " who can see worse days than he that, yet living, 
 doth follow in the funeral of his own reputation ? " We 
 do not intend to deny that the law does in fact, and 
 to a great extent, protect reputation ; but we desire to be 
 understood as insisting that, where the law does protect 
 reputation, it does so indirectly, by means of a fiction — an 
 assumption of pecuniary loss. In theory, the action for 
 slander or libel is always for the pecuniary injury, and not 
 for the injury to the reputation.^ There are many such 
 fictions introduced into the administration of the law, by 
 means of which, without changing the rule of law, the law 
 is, in effect, changed.* When this is the case, this difficulty 
 arises : Shall the rule be stated as it is in theory or as it is 
 in effect ? and then this further difficulty that these two 
 phases of the same rule are sometimes stated as two dis- 
 
 bound to forbear from such imputa- Murphey, 466.) Certainly the grava- 
 
 tions against him as would amount to men of an action for slander or libel 
 
 injuries towards his rights in his rep- concerning a corporation, is nothing 
 
 utation. But though the right is a more than its pecuniary loss. (§§ 262, 
 
 real right, there is no subject, thing or 263, fiosi.) 
 
 person over which it can be said to ^ Lord Bacon's charge against 
 exist. If the right has any subject, its Lumsden. Good reputation has ever 
 subject consists of the contingent ad- been, as it is now, of great value as a 
 vantages which he may possibly derive shield against imputation of crime ; 
 from the approbation of others." (2 by a law of William the Conqueror, if 
 Austin's Lect. Juris. 51.) Right to a man of good reputation was charged 
 reputation may be classed with prop- with theft, he might clear himself by 
 erty. It is a right to the chance of the his single oath. (Leges Gul. Conq. 
 favorable opinion and the good offices 14, in the Ancient Laws and Insti- 
 of others. There is no obligation to tutes, published by the English Re- 
 do me good, but an obligation to for- cord Commissioners. See Anthon's 
 bear from lessening the chances of Law Student, Thesis X: Character, 
 deriving good from voluntary service, how far a Universal Shield. Also, 
 &c. (2 Id. 479, and 3 Id. 179, 184.) McNally's Crim. Ev. 573.) 
 The basis of the action is damages for ^ The New York Code of Civ. Pro. 
 the injury to character in the opinion § 3343, defines personal injury to in- 
 of others. (Kent, J., Lyle v. Clason, elude Libel, Slander, and Malicious 
 I Caines, 583.) The gravamen in an prosecution. 
 
 action of slander, is social degradation. ^ See Maine's Ancient Law, 26, and 
 
 (Henderson, J., Shipp v. McCraw, 3 Bryant f. Foot, Law. Rep. 2 Q. B. 181. 
 
48 GIST OF ACTION. [CH. IV. 
 
 tinct rules, and the rule being stated sometimes one way 
 and sometimes the other, creates confusion and apparent 
 contradiction. It may be practically the same thing, 
 whether the remedy is given by law for the injury to the 
 reputation, or. for the pecuniary injury by means of an 
 attack on the reputation ; but in reasoning on this, as on 
 any other subject, it makes all the difference whether we 
 start with a true proposition or a false one. With a false 
 premise we may arrive at a conclusion which is true ; but 
 under such circumstances, we can never be sure that our 
 conclusion is true. 
 
 § 58. Among the fictions referred to in the last pre- 
 ceding section, perhaps the most noticeable, and the one 
 which best illustrates our meaning, is that by which more 
 than nominal damages are recovered by a parent for the 
 seduction of a daughter. At the present day, no lawyer 
 doubts that at common law an action could not be main- 
 tained for the seduction of a daughter, merely as a daugh- 
 ter, nor merely for the seduction. But at common law, to 
 deprive one of the services of his hired servant gave a 
 cause of action, because it occasioned a pecuniary injury. 
 The common law gave a parent a right to the services of 
 his minor children ; then, in order to afford a remedy for 
 seduction, which was not contemplated by the common 
 law, the daughter is styled servant, and the remedy is given 
 in theory, not for the grief and shame of the seduction, but 
 because, by means of the seduction, the servant was the 
 less able to perform the services required of her, and the 
 parent thereby sustained a pecuniary loss.^ This was the 
 first step ; and where the daughter was, in fact, one of the 
 parent's household, the change from the status of daughter 
 
 1 There can be no doubt that the disgrace and wounded feelings con- 
 
 wTl.nv I N T !T^ T^'t^ ""■■ ^'''"te the gravamen of the^act°on. 
 
 Wilcox, 14 N. Y. 413) ; and yet it is (See Badgley v. Decker /ul Barb C77 
 
 but candid to say that there are dicta knd cases^th'Lre cited ? 
 to the effect that the mortification and 
 
5S.] 
 
 GIST OF ACTION. 
 
 49 
 
 to that of servant was easy enough. The next step was 
 where the infant daughter was not in fact one of the 
 parent's household, but was in the service of another, by 
 her own contract, and not by the contract of the parent: 
 then the action was allowed on these grounds : the daugh- 
 ter, being an infant, could not lawfully contract for her 
 services, therefore the parent could at will rescind the con- 
 tract, and take the daughter to the parental service ; but if 
 the parent did so, the servant would be less efficient, and 
 so a pecuniary injury might or did result. The next and 
 final step thus far is, that where the infant daughter was, 
 by the contract of the parent, the servant of another, still 
 the action can be maintained if the seducer by his fraud 
 had procured the making of the contract, and this on the 
 ground that the fraud vitiated the contract, and leaves the 
 parent an option to reclaim the daughter's services.^ 
 
 § 59. By processes similar to those detailed in the last 
 preceding section it has come to pass that the remedy for 
 injuries by language, in theory given only to redress a 
 pecuniary loss, is now applied to and embraces cases in 
 which no pecuniary loss is or can be shown to have oc- 
 curred. The process by which this result has been arrived 
 at is by adopting the rule of evidence above referred to 
 (§ 56), that certain language is per se, and without other 
 evidence, conclusive proof of pecuniary loss ; this, however, 
 is only a rule of evidence, and the rule of right remains 
 intact — that a pecuniary loss must be shown to entitle to 
 a remedy. That the rule is so is demonstrated by the 
 case of words to which the rule of evidence just referred 
 to does not apply, or to words which are said not to be 
 
 ' See Lipe v. Eisenlerd, 32 N. Y. 413; Harper v. Luffkin, 7 B. & Cr. 
 
 229; White V. Nellis, 31 N. Y. 405; 387; i M. & R. 166. This last case 
 
 Dain w. Wyckoff, 18 N. Y. 45; s. c. 7 is a noticeable instance of how far 
 
 N. Y. 191; Mulvehall v. Milward, 11 courts will in effect depart from the 
 
 N. Y. 343; Hartley v. Richtmeyer, 4 rule of law, while they uphold it in the 
 
 N. Y. 38 ; Knight v. Wilcox, 14 N. Y. letter. 
 
so 
 
 GIST OF ACTION. 
 
 [CH. IV. 
 
 actionable per se — that is, which are not per se evidence of 
 pecuniary loss. As to these, it has never been doubted 
 that a pecuniary loss must be shown to entitle the plaintiff 
 to a remedy.^ 
 
 ' Beach v. Ranney, 2 Hill, 309; 
 Herrick v. Lapham, 10 Johns. 291 ; 
 Hallock V. Miller, 2 Barb. 630 ; Hersh 
 V. Ringwalt, 3 Yeates, 508. "The 
 real foundation of the action [for libel] 
 is the right to recover pecuniary satis- 
 faction.'' (Viele V. Gray, 10 Abb. 
 Pr. R. 7.) The special damage must 
 be of a pecuniary nature. (Beach v. 
 Ranney, 2 Hill, 309.) And see ante. 
 
 note to § 57, and post, note to § 72; 
 Heard on Libel, ch. v, § 54 ; Kelly v. 
 Partington, 3 Nev. & M. 116; 5 B. & 
 Ad. 645; Keenholts v. Becker, 3 
 Denio, 346 ; Foulger v. Newcomb, 
 Law. Rep. 2 Ex. 330; Terwilligerz/. 
 Wands, 17 N. Y. 62; Wilson v. Goit, 
 17 N. Y. 444; Roberts v. Roberts, 33 
 Law Jour. Q. B. 250. 
 
CHAPTER V. 
 
 WRONGFUL ACTS. — ELEMENTS OF A WRONG. 
 
 Wrongful acts — Liability — Presumptions of law — Ques- 
 tions of law and fact — Essential acts in slander and 
 libel — Defamatory — Falsity — Voluntary — Involunta-^ 
 ry — Intention — Malice. 
 
 § 60. Although we are unable to predicate of any act 
 per se whether or not it is a wrong (§ 51), we may, at least 
 as to some acts, determine of them per se whether or not 
 they are wrongful. 
 
 § 61. An act is wrongful which, as a necessary or as a 
 natural and proximate consequence, occasions hurt of body 
 or pecuniary loss to another than the actor.^ When the 
 necessary consequences of the act must be hurt of body 
 or pecuniary loss, then the act is patently wrongful, or 
 wrongful per se. When the act is one the consequences 
 of which are not necessarily hurtful to the person or prop- 
 erty of another, but is an act the natural and proximate 
 consequences of which may occasion hurt to the person or 
 property of another, then it is latently wrongful. It is 
 wrongful, provided that as a natural and proximate conse- 
 quence there ensues personal hurt or pecuniary loss to 
 another. One and the same act may occasion harm to 
 the person and loss of property to another, and either by 
 its necessary or its natural and proximate consequences, or 
 
 ' Bonomi v. Backhouse, 9 Ho. a wrong and an action for negligence. 
 
 Lords Cas. 503 ; Smith v. Thackerah, Dickinson v. Mayor of N. Y. 92 N. T. 
 
 Law Rep. i C. P. 566. It is said there 588. 
 is a distinction between an action for 
 
52 WRONGFUL ACTS. [CH. V. 
 
 both. It is not always easy to determine what are neces- 
 sary and natural and proximate consequences, and to dis- 
 tinguish them from those which are not necessary, not 
 natural, or not proximate {remote) consequences. The 
 rules for making this determination and distinction will be 
 hereafter considered. We have here but to remark that 
 the necessary, natural and proximate consequences of an 
 act are those of which alone the law takes cognizance, and 
 these it is which constitute in legal phraseology damage or 
 injury. Any consequence which is neither necessary nor 
 natural and proximate is disregarded in law. 
 
 § 62. No act but a wrongful act can become a wrong. 
 In the absence of any excuse for it being shown, every 
 wrongful act is prima facie a wrong. It is a wrong pro- 
 visionally or conditionally ; that is to say, it is regarded for 
 all purposes as a wrong, unless and until a legal excuse for 
 the doing it is shown. That which does not exist and 
 that which is not shown to exist are the same. A legal 
 excuse not shown to exist is the same as though no legal 
 excuse existed. The burden of showing the existence of 
 a legal-excuse or a defense is always upon the doer of the 
 wrongful act. 
 
 § 63. The theory is that anything which must be 
 shown to establish a legal excuse or a defense is no part of 
 the essential element of a wrong. In practice, to entitle 
 to a remedy, it is required only to show a wrongful act 
 done, and nothing more appearing, the right to the remedy 
 follows as of course. Reason and expediency alike demand 
 that in this respect the theory should correspond to the 
 practice. 
 
 § 64. Legal excuses are of two kinds — such as consti- 
 tute an absolute defense and such as constitute a condi- 
 tional defense. A legal excuse of the latter kind is a 
 defense, until some additional fact is shown which takes 
 
§§ 65-67.] ELEMENTS OF A WRONG. 53 
 
 from it the character of a legal excuse. The legal excuse 
 that the language was spoken by a judge as such (§ 227), 
 or by a witness as such (§ 223), is of the first or absolute 
 kind. The legal excuse that the language was published 
 to one who was interested to know it, and with a belief 
 that it was true, is a legal excuse of the second or qualified 
 kind (§ 241). The excuse exists only provided it does 
 not appear that the language was published not believing 
 it to be true, or published to one not interested to know 
 it. 
 
 § 65. There is this distinction between legal excuse and 
 defense. Legal excuse is such a state of facts as prevents 
 a wrongful act amounting to a wrong. Defense includes 
 legal excuse and more, namely, those cases in which the 
 wrong is admitted to have been done, but where, from 
 some circumstance, such as the statute of limitations, or 
 satisfaction, or in the action for libel the truth of the lan- 
 guage published, the plaintiff has forfeited or waived his 
 right of action. 
 
 § 66. The question what constitutes a wrong or when 
 has a wrong been committed, and the question who is 
 liable therefor, are essentially distinct questions, and to be 
 determined by different rules, 
 
 § 67. As regards liability, no one is responsible for 
 involuntary acts,^ nor for any other than wrongful acts 
 
 1 A man must will an act before there had been any necessity for the 
 he can be responsible for it. (Wood's defendant's conduct, it would have 
 Civil Law, 18.) No action lies for an been matter of defense. (Ld. Ellen- 
 inevitable accident. (Harvey v. Dun- borough, Rex v. Vantandillo, 4 M. & 
 lop, Hill & Denio Sup. 193 ; see Center S. 73 ; Reg. v. Hicklin, Law Rep. 3 Q. 
 -z/. Finney, 17 Barb. 94; affi'd, 2 Sel- B. 376.) The act must be intention- 
 den's Notes, 44.) No man is liable ally done, the meaning of which is, 
 civiUy or criminally for a purely acci- that the defendant should know what 
 dental mischief, that is to say, for the he published, for, as in the case put by 
 consequences of an act not his own Starkie, if a servant should deliver a 
 which he was unable to foresee, or, sealed letter containing the defamatory 
 foreseeing, was unable to prevent. (2 matter, without knowing its contents, 
 Austin's Lect. Juns. 165, 167.) If he would not, though the actual in- 
 
54 WRONGFUL ACTS. [CH. V. 
 
 (§ 62). All who, without legal excuse, concur in a wrong- 
 ful act are alike liable, either jointly or separately. No 
 one can excuse his concurrence in a wrongful act merely 
 on the ground that in what he did he acted as agent for 
 another.^ It sometimes happens that those who are in 
 nowise concerned in the actual doing of a wrongful act, 
 or a wrong, are nevertheless liable therefor; this, be it ob- 
 served, is not on account of any presumed connection with 
 the act, but because under the circumstances they are 
 legally responsible for the acts of the actual wrong-doers.-' 
 It may also occur that the one who actually does the act 
 may not be liable, while for that same act another may be 
 liable.8 
 
 § 68. The proposition that one is liable for his wrong- 
 ful act implies, in terms, liability for the necessary, natural, 
 and proximate consequences of the act. This leaves no 
 room for any question as to the intent with which the act 
 is done. There may or may not be any intent, good or 
 bad; but intent or no intent, the liability is for the act and 
 
 strument of publication, be liable to an an act with a guilty intent,' he is not 
 
 action. (Daly, F. J., Viele v. Gray, the agent of any one. If he does it 
 
 10 Abb. Pr. R. 7; 18 How. Pr. R. innocently, at the instance of another, 
 550.) If published inadvertently it he is the agent of that person ; and if 
 would not be a libel. (Rex v. Abing- two have agreed to employ him, he is 
 don, I Esp. Cas. 228.) Being the sale the agent of both. (Alderson, B., Reg. 
 of a few copies of a periodical paper v. Bull, 7 Law Times, 8 ; and see Mo- 
 containing the libel, it was for the jury loney v. Bartley, 3 Camp. 210 ; Hecker 
 to say if the defendants were cognizant v. De Groot, 15 How. Pr. R. 314, and 
 of what they sold. (Chubb v. Flanna- ^ost, §§ 265-7.) The acts of an attor- 
 gan, 6 C. & P. 431.) Since intention ney at law, in carrying out the instruc- 
 and will are essential to every act, and tions of his client, are in certain cases 
 intention, will and malice to every exceptions to the rule stated in the 
 crime, the absence of any intention or text. (See 34 Alb. L. J. 479, and post^ 
 will will prevent any occurrence from note to § 122.) "There is a great 
 being actionable, and the absence of distinction between the authority 
 malice . . . will prevent any ac- which will make a man liable crimi- 
 tion from being a crime. (Stephen's nally and the authority which will 
 Crim. Law, 85.) make him liable civilly." (Byles, B., 
 
 1 "There are no agencies in crime." Parkes v. Prescott, L. R. 4 Ex. 169- 
 
 (Lowenstein v. The People, 54 Barb. 182.) 
 305; Keenholtz v. Becker, 3 Denio, = See /m/, Publisher. 
 
 346, and § 11/^ post; also cases cited s See ante, note to § 67, and post, 
 
 1 1 Abb. Pr. R. 100.) If a person does Publisher, § 121. 
 
§ 68.] ELEMENTS OF A WRONG. 55 
 
 its consequences, not for the intent. By the law of En- 
 gland, intent alone, without any overt act, may constitute 
 treason ; with this exception, there is no case in which 
 intent alone, without an act, can constitute a wrong. The 
 prima facie liability for the commission of a wrongful act 
 can be avoided, only by showing some defense or lawful 
 excuse. Showing the act to have been done with a good 
 intent would not of itself, in any case, constitute a defense 
 or lawful excuse. The consequences of an act are inci- 
 dents to the act, and inseparable from the act. Liability 
 for the one is inseparable from liability for the other. The 
 usual ground upon which this liability for the consequences 
 of an act is placed is, that the law presumes every one to 
 intend the necessary and natural consequences of his acts.^ 
 The phrase, the law presumes, is objectionable. The law 
 does not presume.* It is customary to say that the law 
 presumes every one innocent ; every one of good repute ; 
 every wrongful act to be malicious ; every one to intend 
 the consequences of his acts, &c. But it is not so. If 
 
 • The law presumes a person to The inference, for it is absurd to call 
 intend the injury his acts are calculated it a presumption. (Stephen's Crim. 
 to produce. (Haire v. Wilson, 9 B. & Law. iSa.) " Presumptions of fact are 
 Cr. 643 ; Viele v. Gray, 10 Abb. Pr. R. but inferences drawn from other facts." 
 7, and a series of dicta.) A man is as (Mason, J„ O'Gara v. Eisenlohr, 7 
 much answerable for the probable Trans. App. 317.) Distinction be- 
 consequences of his act as for the ac- tween presumption of evidence and 
 tual object. (Rex v. Moore, 3 B. & A. presumption of law, see The People v. 
 184.) "It is a universal principle McCann, 16 N.Y. 66; Powell z'.Cleav- 
 that, when a man is charged with doing er, 2 Brown Ch. R. 499 Presump- 
 an act (that is a wrongful act without tions are not based on the supposition 
 any legal justification) of which the that the fact presumed exists, but be- 
 probable consequences may be highly cause the policy of the law requires 
 injurious, the intention is an inference such a presumption. (Doe v. Eam- 
 of law resulting from the doing the hart, 10 Ired. Law Rep. 516.) Pre- 
 act." (Rex v. Dixon, 3 M. & S. 15; sumption "is the inference of one fact 
 cited Reg. v. Hicklin, Law Rep. 3 Q. from another." (Duncan v. Little, 2 
 B. 375.) Bibb, 426.) Counsel : It must be as- 
 
 * We are not unmindful of the fact sumed that the trustee will do his duty, 
 that the books are full of such expres- Pollock, Ch. B. . We must assume 
 sions, as the law presumes, presump- nothing either way, but he may not. 
 tion of law, &c. But the phrase is ob- (Bulnois v. Mann, Law Rep. i Ex. 
 jectionable and should be reformed. 30,) The presumption that every one 
 Burrill says, the presumption is rather is bound to know the law has no f oun- 
 an assumption. (Presump. Ev. 10, dation in fact. (Judge Taney, Black- 
 43; and see 6 Lond. Law Mag. 354.) well's Tax Titles, 575, note.) 
 
56 WRONGFUL ACTS. [CH. V. 
 
 one is accused of wrong, the law requires proof of his 
 guilt, not because it presumes him innocent, but because 
 it does not presume him guilty, and requires the fact to be 
 proved. One complaining of injury to his reputation is 
 not excused from proving his reputation to be good 
 because the law presumes his reputation to be good, but 
 because the law does not presume it bad.^ On proof of a 
 wrongful act the law will punish if as a wrong, not because 
 it presumes the act to be malicious, but because it does 
 not presume there was any legal excuse for doing the act. 
 An act being wrongful is prima facie a wrong, and if it 
 is not, the burden of showing the legal excuse to exist 
 is on the actor, or whoever is liable for the act. One is 
 liable for the consequences of his acts because the law 
 will not presume the actor intended any other than the 
 consequences of his act, not because the law presumes 
 any intention. It would be as illogical and unfair to pre- 
 sume that one did not intend to do exactly what he has 
 done, as it would be unwise to allow one to say he did not 
 intend to effect the necessary and natural consequences of 
 his acts. 
 
 § 69. In every transaction brought before a court of 
 law for adjudication two questions always arise : (i) what 
 are the facts, and (2) what is the law applicable to those 
 facts? The court always decides the questions of law. 
 Some questions of fact are decided by the court, and 
 some by the jury.^ Courts control the decisions of juries 
 
 » Good reputation is not presumed. T. R. 428, note), Lord Mansfield mis- 
 
 (See Damer v. The State, 54 Ala. 127, quoted the above lines as thus : 
 
 and cases collected 24 Alb. Law Jour. For twelve honest men have de- 
 
 283.) cided the cause, 
 
 2 For twelve honest men have de- Who are judges of facts, though 
 
 cided the cause, not judges of laws 
 
 Who are judges alike of the facts The author was Mr. Pulteny, and 
 
 and the laws. they were written on the occasion of 
 
 On the motion for a new trial in the failure of the prosecution against 
 
 the case of the Dean of St. Asaph (3 " The Craftsman." (See 21 State 
 
§ 69.] ELEMENTS OF A WRONG. 57 
 
 on questions of fact.^ (i ) By determining whether or not 
 the evidence adduced tends any way to prove the fact in 
 issue ; whether there is some evidence or no evidence. (2) 
 By deciding in some cases that certain established facts 
 warrant or do not warrant certain inferences, and requir- 
 ing the jury to accept such inferences as proved. (3) 
 By deciding what evidence is to be regarded, and what 
 disregarded, whether as going to prove or disprove a fact, 
 or to affect damages. (4) By granting new trials when 
 they deem the verdict as contrary to or as against evidence, 
 or the damages excessive or inadequate. The connection 
 between one fact and another, as cause and effect, is always 
 a question of fact. It is the degree of probability of such 
 connection which leads courts to determine whether they 
 decide the question, or whether they leave it to the jury 
 to decide, (i) If one event is very generally the cause of 
 a certain other event, the courts lay down the general rule 
 that the proof of the one event is the proof of the other, 
 and do not allow juries to decide contrariwise. (2) If 
 one event is often but not so generally the cause of a cer- 
 tain other event, then the courts leave it to the jury in each 
 case to decide whether or not in that particular case that 
 certain other event has followed. 
 
 The necessary consequences of an act always follow the 
 act, and therefore the courts pronounce it a rule of evi- 
 dence that the proof of the act is proof of its necessary 
 
 Trials, 847, 1046; 17 Id. 625; For- Co. 46 Barb. 413; Clarke v. Rankin, 
 
 syth's Hist, of Trial by Jury, 272; 46 Barb. 571, and numerous cases.) 
 
 Popular Progress in England, 89 ; 2 Juries are assistants to the courts in 
 
 Political Ballads of 17th and i8th determining itf»z^ issues of fact. (For- 
 
 Centuries, by Wilkins ; Lord Camp- syth's Hist. Trial by Jury.) " Actions 
 
 bell. Lives of the Chancellors, Vol. are not tried by juries, they try only 
 
 VI, p. 176, Lifeof Lord Hardwicke.) issues." (Bramwell, J., Collins v. 
 
 1 The judge put back the jury Welch, L. R. 5 C. P. Div. 27.) In 
 
 twice because they offered their ver- Vermont, /5j/j^a^«/^, the courts are for- 
 
 dict contrary to the evidence. (Clay- bidden to grant new trials because 
 
 ton, 50.) Instances of judges taking they differ from the jury as to the 
 
 questions of fact out of hands of jury, weight of testimony. (Steams v. 
 
 (Wright V. Orient Mut. Ins. Co. 6 Howe, 12 Vt. 579.) 
 Bosw. 269; Wells V. Com. Mut. Ins. 
 
58 WRONGFUL ACTS. [CH. V. 
 
 consequences, and the jury may not find otherwise. The 
 natural and proximate consequences of an act do often, 
 but not always, follow the act ; therefore the jury decide 
 in each case whether or not those consequences have fol- 
 lowed in that particular case. 
 
 § 70. In every slander there are two acts: (i) the 
 composing, and (2) the publishing. In every libel there 
 are three acts: (i) the composing, (2) the writing, and 
 (3) the publishing. The act which is the essential ele- 
 ment in the wrongs slander and libel, is a wrongful pub- 
 lication of language (§ 23), and the general prohibition 
 (§ 49) as applicable to those wrongs would be : No one 
 shall, without legal excuse, publish language concerning 
 another or his affairs which shall occasion him damage. 
 In other words: Every publication of language concerning 
 a man or his affairs, which, as a necessary or natural and 
 proximate consequence occasions pecuniary loss to him, is 
 prima facie a slander or a libel — a slander, if the publica- 
 tion be oral ; a libel, if the publication be by writing. This, 
 it must be remembered, is not a description, much less a 
 definition of a slander or a libel, but merely a description 
 of what \s prima facie a slander or a libel. 
 
 § 71. In describing or defining a slander or a libel, it is 
 customary to enumerate among its requisites that the lan- 
 guage must be (i) defamatory, (2) false, and (3) that the 
 publication must be with malice, or made maliciously. We 
 shall endeavor to give sufficient reasons for omitting these 
 three supposed requisites from our description. 
 
 § 72. To constitute a slander or libel, must the lan- 
 guage be defamatory? This question suggests others: 
 What is meant by defamatory ? Does defamatory mean 
 more than discommendatory .? It appears to us that to 
 say the language must be defamatory, is only stating a 
 portion of what is implied in saying that it must be such 
 
§ 73-] ELEMENTS OF A WRONG. 59 
 
 language as by a necessary or natural and proximate con- 
 sequence occasions pecuniary loss to him whom, or whose 
 affairs, it concerns. It is scarcely conceivable that any 
 other than discommendatory language can by a necessary 
 or natural and proximate consequence occasion damage ; 
 it may therefore not be improper to say that the language 
 must be defamatory, but that alone does not express so 
 much as is implied in the requisite of occasioning damage. 
 We shall hereafter have occasion to advert to this subject 
 more in detail.^ 
 
 § 73. To constitute a slander or libel, must the lan- 
 guage be false ? If the language is true, it is a defense ; '^ 
 but it does not thence follow that falsity is an essential 
 element of the wrong. We know that the fact of the 
 language being true is not alone an answer to a prosecu- 
 tion for a libel as a public offense ; the fact, then, of the 
 language being true does not prevent its amounting to a 
 wrong (§ 43). To say that showing the truth of the lan- 
 guage published is a defense, and to say the language 
 must be false, are not identical propositions. It may be 
 correct to say one has the right to speak the truth,^ but it 
 is not correct to say one has the right to publish the truth 
 by writing (§ 43). In certain cases, as will hereafter be 
 explained, a cause of action for slander or libel cannot be 
 
 ' " But if the matter was not in its v. Musselman, 2 Blackf. 99. See § 179, 
 
 nature defamatory, the rejection of the post:) 
 
 plaintiff cannot be considered the na- ^ " The truth of the supposed 
 
 tural result of the speaking of the slander is in effect a ground of justifi- 
 
 words. To make the speaking of the cation, which must be substantiated 
 
 words wrongful, they must in their by the defendant." (i Starkie on 
 
 nature be defamatory." (Patterson, Libel, 9.) To maintain the action, the 
 
 J., Kelly V. Partington, 5 B. & Ad. words should be untrue. (EUen- 
 
 645; 3 Nev. & M. 116; and to the borough, Ch. J., Maitland z/. Goldney, 
 
 same effect see Vicars v. Wilcocks, 8 2 East, 426.) 
 
 East, I ; Ashley v. Harrison, i Esp. ^ " Our laws allow a man to speak 
 
 48 ; Peake, 194.) " We cannot have the truth, although it be done mali- 
 
 a definite idea of a design to injure un- ciously." (Bronson, J., Baum v. 
 
 connected with some degree of pro- Clause, 5 Hill, 199 ; and to the like 
 
 bability that the means made use of effect, Foss v. Hildreth, 10 Allen, 
 
 would effect the design." (Durham 76.) 
 
6o WRONGFUL ACTS. [CH, V. 
 
 shown without alleging the language to be false ; but in 
 the ordinary case of language concerning the person, no 
 allegation of falsity is required to show a cause of action. 
 In the latter instance the allegation of falsity is not neces- 
 sary in a civil action, nor even in a criminal prosecution.^ 
 But where, as often happens, the language is alleged to be 
 concerning the person and also concerning the affairs, then 
 the allegation of falsity becomes material. The approved 
 precedents of pleadings all contain the allegation of falsity, 
 and thus, probably, falsity has come to be regarded as es- 
 sential to the wrongs and to the descriptions of the wrongs 
 slander and libel. 
 
 In those cases in which falsity must be alleged to show 
 a cause of action, then the language cannot, as a necessary 
 or natural and proximate consequence, occasion a pecuni- 
 ary loss unless it is false ; in such cases, therefore, if not in 
 every case, the requirement that the publication must, as a 
 necessary or natural and proximate consequence, occasion 
 pecuniary loss, includes the requirement that the language 
 be false. As will appear hereafter, where the language is 
 concerning the person, the plaintiff is not allowed in 
 the first instance, nor, except to disprove a defense of 
 truth, to give any evidence of the falsity of the language 
 published.^ 
 
 § 74. To constitute a slander or a libel, must the publi- 
 cation of the language be with malice or maliciously ? To 
 answer this question it is material to inquire what is malice, 
 and what is meant by the term malice as used in the text- 
 books and the reports.^ 
 
 1 Rex V. Burke, 7 T. R. 4 ; and if ' How much bad law and bad 
 falsity is alleged, it cannot be travers- philosophy of law have arisen from 
 ed. (Lewis v. AUcock, 3 M. & W. imperfect comprehension of the terms 
 188; 6 Dowl. Pr. C. 389; ^^di post, will, motive, intention and negligence, 
 § 328.) may be seen in the nonsense of Eng- 
 
 2 Starkie on Libel, 59; Stuart v. lish law writers concerning malice. 
 Lovell, 2 Starkie's Cas. 93; § 388, (Edinburgh Review, Oct., 1863, p. 230, 
 i>»st. Amer. reprint.) 
 
§§ 75-77- J ELEMENTS OF A WRONG. 6 1 
 
 § 75. We have seen that every act must be lawful or 
 unlawful (§ 42). Lawful, such as has a legal excuse ; un- 
 lawful, such as has not a legal excuse. Acts done without 
 lawful excuse are said to be done with malice or to be 
 malicious acts. All acts, must be either voluntary or in- 
 voluntary.^ 
 
 § 76. A voluntary act is an act done under no legal or 
 other obligation to perform it, and which the actor may 
 do or forbear at his option ; as an act done in the exercise 
 of a right. An act done with a consciousness or knowl- 
 edge of the character of the act, or under such circum- 
 stances as that the actor ought to know, and by the exer- 
 cise of a degree of care proportionate to the exigences of 
 the occasion the actor might know, the character of the 
 act. A voluntary act does not mean a mere act of voli- 
 tion, but an act of volition coupled with a means of know- 
 ing the character of the act about to be performed, and an 
 intention to do that very act.^ It is the act sometimes 
 called an intentional act. Every act is prima facie, and 
 without more, a voluntary act ; it is regarded for all pur- 
 poses as a voluntary act unless and until it is shown to be 
 involuntary.* 
 
 § "J"]. An involuntary act is an act done under circum- 
 stances which permit to the actor no option as to whether 
 he will do or forbear the act; an act done under some 
 legal obligation to perform it as an act done in discharge 
 of a duty ; an act done under duress ; an act done uncon- 
 
 1 " I purposely abstain from the and Legislation, 22, 79, 81, and see 2 
 use of the words voluntary and in- Austin's Lect. Juris. 88.) 
 voluntary, on account of the extreme ^ " An act of the will is the same 
 ambiguity of their signification. By a as an act of choosing or choice, 
 voluntary act is meant sometimes an (Edwards on the W^ill, pt. i, §1; corn- 
 act in the performance of which the mented on, Hazard on the Will, i77-) 
 wiU has had any concern at all— in As to the will and intention, see 
 this sense, it is synonymous to 'in- Stephen's Crim. Law, 70- 
 tentionaV-s,oxix&x^ts it means un- » " Men do not act wholly without 
 coerced, and sometimes spontane- motive." (Woodruff, J., Kenedy v. 
 ous " (Bentham's Principles of Morals The People, 39 N. Y. 254.) 
 
62 WRONGFUL ACTS. [CH. V. 
 
 sciously and without knowledge as to the character of the 
 act, the unconsciousness not being self-imposed ; and the 
 act done without the opportunity, by the exercise of a 
 degree of care proportioned to the exigency of the occa- 
 sion, of knowing the character of the act. 
 
 § 78. Besides, and in addition to the intention of per- 
 forming any act, there may be an intention in the mind 
 of the actor to accomplish, by means of the act done, cer- 
 tain ends, or to produce certain consequences. Passing 
 over the metaphysical distinctions between will and intent^ 
 we may draw a distinct line of demarcation between the 
 intent to do an act and the intent to produce the conse- 
 quences of an act. This line we draw. 
 
 § 79. Intent may or may not, in fact, be synonymous 
 with motive, but we desire it understood that we use in- 
 tent and motive as synonymous. By intent we mean 
 motive, and if the term motive be employed instead of in- 
 tent, it must be divided as we have divided intent, and a 
 distinction observed between the motive for doing the act 
 and the motive to produce the consequences of the act. 
 The intent or motive which goes towards the doing the 
 act we include in the term voluntary. The intent or mo- 
 tive which refers to the consequences of the act we de- 
 nominate intent or intention. 
 
 § 80. A voluntary act may be done without any intent 
 to produce its consequences, and an involuntary act may 
 be done with an intent to produce its consequences.^ In 
 
 1 " Nor does the nature of the re- " Feeling that will implies intention, 
 suiting effect make any difference to numerous writers on jurisprudence 
 the moral quality or character of the employ will and intention as synony- 
 effort. A man's intentions may be mous. They forget that intention 
 most virtuous, and yet the actual con- does not imply will. • • ■ The 
 sequences of his efforts be most per- agent may not intend a consequence 
 nicious. • ■ The moral nature of of his act. In other words, when the 
 the volition is not, then, in any way agent wills the act, he may not con- 
 affected by what actually follows that template the given event as a conse- 
 volition." (Hazard on the Will, 1 54.) quence of the act which he wills " (2 
 
§§ 81-83.] ELEMENTS OF A WRONG. 63 
 
 the cases in which there exists any intent to do more than 
 commit the act itself, the intent may be either to produce 
 all or some of the consequences of the act, or to produce 
 an effect not a consequence of the act done. As one is 
 responsible only for the necessary and natural and proxi- 
 mate consequences of his acts, at least any intent to pro- 
 duce any other consequence or effect must be immaterial. 
 If the intent is at all material, it must be the intent to 
 produce the necessary and natural and proximate conse- 
 quences of the act. 
 
 § 81. The various kinds of intents with which an act 
 may be done are all resolvable into two classes: (i) an in- 
 tent to injure some one; (2) an intent to benefit some one. 
 The one to be injured or benefited may be the actor or 
 some other. One and the same act may be done with an 
 intent to injure one and benefit another. 
 
 § 82. Intent may be divided into general Andi particu- 
 lar. Particular intent, or the intent with which any cer- 
 tain act may be done, is to be distinguished from the 
 general intent. One may have a general intent to injure 
 or benefit another, and synchronously with that intent 
 may do some act concerning that other without any ref- 
 erence to the general intent, or without any particular 
 intent, or with a particular intent different from or contra- 
 dictory to the general intent. As a question of probabil- 
 ity, the particular intent will follow the general, but not 
 necessarily so; whether it does or does not is in every case 
 a question of evidence. 
 
 § 83. Intent or intention is a mental conception — an 
 existence. It is a fact,^ impalpable, intangible, invisible, 
 
 Austin's Lect. Juris. 94.) " It is per- ' The existence of mind is as much 
 
 fectly manifest that badness or good- a matter of fact as the existence of 
 
 ness cannot be affirmed of the will, matter. (Elementary Sketches of 
 
 and that a criminal intention may ac- Moral Philosophy, by Sidney Smith, 
 
 cord with a good disposition." {Id. Introductory Lecture.) Intention is a 
 
 133,) fact. (Clift V. White, 12 N. Y. 538.) 
 
64 
 
 WRONGFUL ACTS. 
 
 [CH. V. 
 
 but nevertheless a fact. The existence or non-existence 
 of an intent or an intention, and the kind or character 
 of the intent or intention are always questions of fact. 
 Save the declarations of the individual in whose mind the 
 intent is supposed to exist, we can have no direct testi- 
 mony as to the existence or non-existence of any intent, 
 or of the kind or character of the intent. Save such dec- 
 larations, we can have none but indirect testimony. That 
 indirect testimony is, the inference we may draw from 
 one's acts.^ 
 
 § 84. Not technically, but in reality, when the intent 
 is to injure, it is a bad intent, and bad intent is malice} 
 
 A witness may be asked with what 
 intent he did an act. (Seymour v. 
 Wilson, 14 N. Y. 567 ; Griffin v. Mar- 
 quardt, 21 N. Y. 121 ; Forbes v. Wal- 
 ler, 25 N. Y. 439,) But his evidence 
 is not conclusive. (Griffin v. Mar- 
 quardt, 21 N. Y. 121; Thurston v. 
 Cornell, 38 N. Y. 287; Foster v. 
 Cronkhite, 35 N. Y. 147.) And it 
 seems this question is not permissible 
 in certain cases, as where the intent 
 may be or must be inferred from the 
 act. (The People v. Saxton, 22 N.Y. 
 309; Shaw 7/. Stine, 8 Bosw. 161 ; Bal- 
 lard V. Lockwood, I Daly, 164.) We 
 are not aware of the right to put the 
 question as to intent having been 
 mooted in an action for slander or li- 
 bel. We suppose it could not prop- 
 erly be' put in any action for slander 
 or libel, because we are of opinion the 
 question of mere intent can never be 
 material in those actions. But assum- 
 ing that intent is or may be material, 
 then the question might be put in con- 
 nection with a state of facts which 
 discloses a qualified legal excuse. In 
 our opinion the decisions show the 
 rule to be : you may inquire into the 
 intent directly, as by inquiring of the 
 party, in cases where the intent is 
 material, and the act complained of is 
 as consistent with a good intent as with 
 a bad intent, but in no other cases. (See 
 supra, and Booth v. Sweezy, 8 N. Y. 
 281 ; ElHs V. The People, 21 How. Pr. 
 R. 356; Powis V. Smith, 5 B. & A. 
 850; seenoteto§402,j>oj// an article, 
 
 14 Albany Law Jour. 385, entitled, 
 " The admission of direct testimony 
 to the witnesses' intent.") " Because," 
 says Mr. Erskine (Inst, iv, 4, 80), 
 " the intention of the defender cannot 
 always be known with certainty, in 
 the trial of this crime [verbal injury], 
 doctors are generally of opinion that 
 his oath in supplement may, in doubt- 
 ful cases, be admitted towards his ex- 
 culpation." (Borthwick on Libel, 172, 
 note.) 
 
 1 The state of a man's mind can 
 only be known by others through his 
 acts, through his own declarations, or 
 through other conduct of his own. (2 
 Austin's Lect. Juris. 106; Fisk v. 
 Chester, 8 Gray, 508.) Previous in- 
 tentions are judged by subsequent 
 acts. (Dumont v. Smith, 4 Denio, 
 319, 320.) The intention of an act 
 done must be judged by its necessary 
 consequences. Where these are di- 
 rectly pernicious, the intent to work 
 mischief becomes a conclusion of law. 
 (Safford v. Wyckoff, I Hill, 11, refer- 
 ring to Reg. V. Boardman, 2 Moo. & 
 Rob. 147, 148.) Where the guilt or 
 innocence of the act depends upon the 
 motive of the actor, his conduct and 
 declarations as to other similar trans- 
 actions about the same time are al- 
 ways admissible to show it. (Barren 
 V. Mason, 31 Vt. [2 Shaw], 189; Scan- 
 Ian V. Cowley, 2 Hilton, 489; Center 
 V. Spring, 2 Clarke [Iowa], 393.) 
 
 ^ " Hardly any word in the whole 
 range of the criminal law has been 
 
§§ 85, 86.J 
 
 ELEMENTS OF A WRONG. 
 
 65 
 
 The act by means of which a bad intent is sought to be 
 realized, is a malicious act, and the act is done maliciously . 
 
 § 85. Upon reference to the text-books and reports to 
 discover the meaning in use of the terms intent^ and 
 malice, we find : 
 
 § 86. As respects the term intent, it is sometimes em- 
 ployed to signify done intentionally, and in that sense is 
 equivalent to will, or to what we have designated volun- 
 tary ; sometimes employed to signify an intent to produce 
 the consequences, or some certain consequences, by means 
 of the act done, and sometimes employed to signify bad 
 intent or bad motive. When employed iii the sense of 
 will or intentionally, it is sometimes divided into express, 
 tacit, presumed, and fictitious.^ 
 
 used in such various and conflicting 
 senses, nor is there any which it is 
 more important to understand correct- 
 ly." (Stephen's Crim. Law, 81.) The 
 etymological meanings of the words 
 malice and malicious are simply wick- 
 edness and wicked (,Id. 82), and it 
 will be found in practice impossible to 
 attach to these terms any other mean- 
 ing. {Id.) " I apprehend that there 
 is no ground for distinguishing be- 
 tween the legal and the popular sense 
 of the word, and that it means in its 
 legal sense exactly what it means in 
 its popular sense, namely, a mischiev- 
 ous design or intent to do an injury to 
 an individual or to the public." (Daly, 
 F. J., Viele v. Gray, 10 Abb. Pr. R. 5 ; 
 18 How. Pr. R. 550.) The law pre- 
 sumes from the act an intent to bnng 
 about its consequences ; " to denomi- 
 nate this intent malice or malice in 
 law, when it may have arisen from a 
 good motive, the defendant believing 
 what he alleges to be true, is to em- 
 ploy the word malice in a sense nei- 
 ther justified by its etymology, its ordi- 
 nary meanmg, nor its previous legal 
 signification." (/</.) The difference 
 in the import of the word malice in 
 legal and in common acceptation is 
 commented on, 17 Howell's State 
 
 Trials, 43, 63. And see Sir Thomas 
 Moore's distinction between malitia 
 and malevolentia (I Id. 391). and re- 
 marks on the introduction of the words 
 falso et malitose into indictments for 
 libel. (I Id. 30; (> Id. 11 13.) 
 
 The term " malice," it is said, was 
 formerly used in the sense of " cun- 
 ning" as in the following sentence: 
 " It [the letter] seemed very sensible, 
 and composed with great malice^ and 
 in no sort to be suspected of being the 
 letter of a madman.'' (Calendar of 
 State Papers, Domestic Series of the 
 Reign of Charles the First, London 
 Athenaeum. August 7, 1869, p. 169.) 
 
 1 " If we would know the nature 
 of wrongs, we must try to determine 
 the meaning of intention and negli- 
 gence with precision, for both of them 
 run in a continued vein through the 
 doctrine of wrongs, and one of them, 
 intention, meets us at every step in 
 every department of jurisprudence." 
 (2 Austin's Lect. Juris. 80.) Unless 
 the import of those terms is deter- 
 mined at the outset, the subsequent 
 speculations will be a tissue of uncer- 
 tain talk. (3/1/. 353) 
 
 2 See Lindley's Studies of Juris- 
 prudence, 168, § 187, and Id. App. 
 civ. Malice "seldom has any mean- 
 
66 
 
 WRONGFUL ACTS. 
 
 [CH. V. 
 
 § 87. As respects the term malice^ it is sometimes em- 
 ployed to signify the absence of legal excuse/ sometimes 
 as meaning a bad or wicked motive or intent,^ sometimes 
 as meaning scienter^ or knowingly, sometimes as meaning 
 
 ing 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 im- 
 portant matter. (Stephen's Dig. Crim. 
 Law, 190, n. 6.) 
 
 1 Malice, the doing any act without 
 a just cause, (i Chit. Gen'l Pr. 46.) 
 Malice in its legal sense always ex- 
 cludes a just cause. (Jones v. Givin, 
 Gilb. Cas. 185.) It is a technical ex- 
 pression, and means the absence of 
 any excuse. (Penn. v. Lewis, Addi- 
 son's R. 282.) It is implied in every 
 [wrongful] act for which there is no 
 legal justification, excuse, or extenua- 
 tion. (Penn. v. Honeyman. Addison's 
 R. 149.) A term of law denoting di- 
 rectly wickedness, and excluding just 
 cause or excuse, (i Russ. C. R. 483.) 
 A wrongful act, done intentionally, 
 without just cause or excuse. (Brom- 
 age V. Prosser, 4 B. & Cr. 247 ; Bell v. 
 Fernald, 38 No. West. Rep. 912 : King 
 V. Patterson, 9 Atl. Rep. 705.) If 
 malice be used as a descriptive term, 
 it must be understood of malice in a 
 technical and artificial sense, as merely 
 signifying the absence of any legal 
 justification or excuse, (i Starkie on 
 Libel, 3.) If malice be used as de- 
 scriptive, ... it must be under- 
 stood in its legal and technical sense, 
 as merely denoting that which is in- 
 ferred from the doing of a wrongful 
 act without lawful justification or ex- 
 cuse. {Id. 213.) Malice, the doing 
 any act injurious to another without 
 just cause. (Bouvier's Law Diet. tit. 
 Malice ; see York's Case, 9 Mete. 93 ; 
 Darry v. The People, 10 N. Y. 139; 
 Hilliard on Torts, ch. vii, § 106 ; Mitch- 
 ell V. Jenkins, 5 B. & A. 590.) Malice 
 is the deliberate disregard of the 
 rights of others. (Abbott, Ch. J., 3 
 B. &Cr. 584.) Malice may be implied 
 against the declared motive of the 
 actor. (Williams v. Hutchinson, x N 
 Y. 318.) 
 
 2 Malice. In criminal law and 
 
 general practice, wickedness of pur- 
 pose ; a spiteful or malevolent design 
 against another ; a settled purpose to 
 injure or destroy another. Any formed 
 design of doing mischief, (i Hale's 
 P. C. Am. ed. 455, note; 2 Stra. 766) 
 Any evil design in general. (4 Bl. 
 Com. 198.) A disposition or inclina- 
 tion to do a bad thing. (2 RoUe's R. 
 461.) General wickedness of heart; 
 inhuman or reckless disregard of the 
 lives or safety of others, as when one 
 coolly discharges a gun, or throws any 
 dangerous missile among a multitude 
 of people, or strikes, even upon provo- 
 cation, with a weapon that must pro- 
 duce death. (4 Bl. Com. 199, 200.) 
 Deliberate disregard of the rights of 
 others, as when one carries on the 
 trade of melting tallow to the annoy- 
 ance of the neighboring dwellings. 
 (Abbott, Ch. J., 3 B. & Cr. 584; Bur- 
 rill's Law Diet, tit Malice ; and see p. 
 64, note 2, ante.) Legal malice, i. e. 
 improper or sinister motives. (Cres- 
 cent Live Stock Co. v. Butchers' 
 Union, 120 U. S. 148.) 
 
 " In common parlance we associate 
 the idea of malice with the passions of 
 anger, hatred, and revenge; but malice, 
 in contemplation of law, may exist 
 without the presence of either of these 
 passions." (The State v. Simmons, 4 
 West. Law Jour. N. S. 411.) 
 
 * " Maliciously is sometimes equiv- 
 alent to scienter." (3 Austin's Lect. 
 Juris. 327.) A "conscious violation" 
 of law. (9 CI. & Fin. 321; and see 
 Sherwin v. Swindall, I2 M. & W. 787.) 
 In the Code prepared by Messrs. Aus- 
 tin & Lewis for the Island of Malta, 
 they employ the phrase '■^culpable 
 knowledge^' in lieu of "■ implied mal- 
 ice." See Appendix A to House of 
 Lords' Report on Law of Defamation, 
 A. D. 1843. Maliciously must be 
 taken to imply an intention either ac- 
 tual or constructive. (Lush, J., Reg. 
 V. Templeton, Law Rep. 2 C. C. Re- 
 served, 123 ) 
 
§8;.] 
 
 ELEMENTS OF A WRONG. 
 
 67 
 
 intentionally or voluntarily/ and often without any defi- 
 nite or ascertainable meaning whatever.* The term malice 
 is also divided into malice in factf and express malice and 
 
 1 If I am arraigned of felony and 
 willfully stand mute, I am said to do 
 it of malice, because it is a wrongful 
 act and done intentionally. (Bailey, 
 J., Bromage v. Prosser, 4 B. & Cr. 
 247.) Any unlawful act done willfully 
 is malicious. (Commonwealth v. Snel- 
 ling, 15 Pick. 337.) In this respect, 
 malice resembles a promise. A prom- 
 ise may be express or implied, but the 
 only difference between an express and 
 implied promise is the mode of proof. 
 (North. R. R. Co. v. Miller, 10 Barb. 
 260.) In an action of libel, malice 
 consists in intentionally doing what is 
 injurious to another, falsely or without 
 justifiable cause, and the presumption 
 is against the truth or justifiable cause 
 of the publication, until the contrary is 
 expressly proved by evidence from the 
 defendant. (Hagan v. Hendry, 18 
 Md. 177.) 
 
 ^ In the English law, in certain 
 cases we have employed the word 
 malice to mean intention generally. 
 As malice implies intention, it has 
 been extended to cases in which there 
 is no malice. As I shall show, it does 
 not denote the motive. And it 'is 
 manifest that the motive to a criminal 
 action may be laudable — the intention 
 of an act, suggested by a blamable 
 motive, lawful. (2 Austin's Lect. 
 Juris, no.) It hdving been assumed 
 inconsiderately that malice or criminal 
 design is of the essence of every crime, 
 the term is extended abusively to neg- 
 ligence, ... it is often confounded 
 with malice, as denoting malevolence, 
 insomuch that malevolence (though 
 the motive or inducement of the party 
 is foreign to his guilt or innocence) is 
 supposed to be essential to the crime. 
 (3 Id. 327.) Malice has also been de- 
 fined "as the plain indication of a 
 heart regardless of social duty, and 
 fatally bent on mischief" (U. S. v. 
 Cornell, 2 Mason, 60) ; improper mo- 
 tives (Weckerly v. Geyer, 11 S. & R. 
 35) ; willfulness (Dexter v. Spear, 4 
 Mason, 115; Holt on Libel, 55); a de- 
 sign formed of doing mischief to an- 
 
 other (Reg. V. Mawgridge, Kely. R. 
 127); any wicked or mischievous in- 
 tention of the mind (Rex v. Harvey, 2 
 
 B. & Cr. 257.) Malice, as applied to 
 torts, does not necessarily mean that 
 which must proceed from a spiteful, 
 malignant, or revengeful disposition, 
 but a conduct injurious to another, 
 though proceeding from an ill-regula- 
 ted mind not sufficiently cautious be- 
 fore it occasions an injury to another. 
 (II S. & R. 39, 40.) Indeed, in some 
 cases it seems not to require any inten- 
 tion in order to make an act malicious. 
 When slander has been published, 
 therefore, the proper question for the 
 jury is not whether the intention of the 
 publication was to injure the plaintiff, 
 but whether the tendency of the mat- 
 ter published was so injurious. (10 
 B & Cr. 472; s. C. 21 Eng. C. Law 
 Rep. 117; and see 3 B. & Cr. 584; S. 
 
 C. 10 Eng. C. Law Rep. 179; Pen- 
 nington V. Meeks, 46 Mo. 216; People 
 V. Taylor, 36 Cal. 256; Reg. v. Wal- 
 lace, 3 Irish Com. Law Rep. N. S. 38 ; 
 Bouvier's Law Diet, voce Malice.) 
 
 * Malice " has been sometimes di- 
 vided into legal malice or malice in 
 law, and actual malice or malice in 
 fact. These terms might seem to im- 
 ply that the two kinds of malice are 
 different in their nature. The true 
 distinction, however, is not in the 
 malice itself, but simply in the evidence 
 by which it is established. In all or- 
 dinary cases, if the charge complained 
 of is injurious, and no justifiable mo- 
 tive for making it is apparent, malice 
 is inferred from the falsity of the 
 charge. The law in such cases does 
 not impute malice not existing in fact, 
 but presumes a malicious motive for 
 making a charge which is both false 
 and injurious, when no other motive 
 appears. When, however, the circum- 
 stances show that the defendant may 
 reasonably be supposed to have had a 
 just and worthy motive for making the 
 charge, then the law ceases to infer 
 malice from the mere falsity of the 
 charge, and requires from the plaintiff 
 
68 
 
 WRONGFUL ACTS. 
 
 [CH. V. 
 
 implied malice} Probably the phrase implied malice is 
 identical with the phrase malice in law, and the phrase 
 express malice with the phrase malice in fact ; for among 
 the definitions we find malice in law defined as "The 
 malice which is inferred from the doing a wrongful act 
 without lawful justification or excuse."^ The distinction 
 between malice in law and malice in fact has been sup- 
 posed to consist in this, that the one is inferred and the 
 other is proved. The supposed distinction is unreal and 
 unsound, for, first, there is no distinction between what is 
 inferred and what is proved — what is or is supposed to be 
 rightly inferred, is proved. " We say of a fact, it is proved, 
 
 other proof of its existence. It is ac- 
 tual malice in either case, the proof 
 only is different." (Selden, J., Lewis 
 V. Chapman, i6 N. Y. 372.) The 
 jury may infer malice from want of 
 probable cause, but they are not bound 
 to make this inference. And if malice 
 is deduced from want of probable 
 cause, it is as much malice in fact, 
 within the meaning of the law, as 
 though shown or deduced from any 
 other fact or facts. (Smith v. Howard, 
 28 Iowa, 51.) Strictly speaking there 
 is no such thing as fraud in law ; fraud 
 or no fraud is and ever must be a fact ; 
 the evidence of it may be so strong as 
 to be conclusive, but still it is evidence, 
 and as such must be submitted to a 
 jury. No court can draw it against 
 the finding of a jury. (Spencer, Sen- 
 ator, Sewhrd v. Jackson, 8 Cow. 430.) 
 ' The distinction between express 
 and implied malice is well illustrated 
 in the argument of that distinguished 
 lawyer, Nicholas Hill, in Darry v. The 
 People, 10 N. Y. 123, as thus: The 
 term, express malice, originally meant 
 malice proved independently of the 
 mere act from which death resulted, 
 and implied malice the reverse. They 
 therefore described only different 
 modes of proving actual guilt, not 
 different degrees of it ; and they be- 
 longed to the law of evidence, not to a 
 definition of homicide. They did not 
 even indicate different degrees of evi- 
 dence, both kinds when sufficient, 
 
 being conclusive until overcome. And 
 they were applicable to every case 
 where proof of the actual intent was 
 requisite to characterize an offense." 
 He supports these views by a profuse 
 citation of authorities. The opinions 
 in this case should be perused by those 
 who desire information on the subject 
 of implied malice. And see Stanners 
 V. Finlay, 8 Irish Com. Law Rep. 283. 
 Malice in fact is " of two kinds, either 
 personal malice against an individual, 
 or that sort of general violation of the 
 right consideration due to all mankind 
 which may not be personally directed 
 against any one." (Pollock, Ch. B., 
 Sherwin v. Swindall, 12 M.&W. 783.) 
 By malice I mean not a pleading ex- 
 pression, but actual' malice, or what is 
 termed malice in fact, i. e. a wrong 
 feeling in the mind. (Brett, J., Clarke 
 V. Molineux, 3 Q. B. D. 237.) " Mal- 
 ice in law is such as the law infers to 
 exist, without just or lawful excuse; 
 also, in malice of either kind, you can- 
 not have shades or degrees." (Cole- 
 ridge, C. J , Stevens v. Sampson, 49 
 L. J. C. L. [App.] 120.) Malice, in 
 fact, -is ill will, bad or evil motive, or 
 such gross indifference to the rights of 
 others as will amount to a willful or 
 wanton act. (Holt v. Parsons, 23 
 Texas, 9; Behee v. Railway Co. 9 So. 
 West. Rep. 449; Bradstreet Co. v. 
 Gill, Id. 757.) 
 
 ^ I Starkie on Libel, 213. 
 
§87.] 
 
 ELEMENTS OF A WRONG. 
 
 69 
 
 when we believe its truth by reason of some other fact 
 from which it is said to follow ;"^ and, secondly, malice in 
 fact is as frequently established by inference as by direct 
 proof. Some judges have avoided this objection by deny- 
 ing that malice in law is a question of fact^ and styling it 
 a conclusion of law, which conclusion is not required to be 
 proved, and is not permitted to be denied.^ If malice in 
 law is a conclusion of law, then is malice in fact a conclu- 
 sion of law ; and if this be so, it is still true that they are 
 not distinguishable the one from the other. Whether 
 malice in fact is here employed in the sense of want of 
 legal excuse or in the sense of bad intent is immaterial on 
 this point. The non-existence of legal excuse in the one 
 case, and the existence of bad intent in the other can be 
 proved only by inference. No argument can make it more 
 
 ' Mill's Logic, b. 2, c. I, § I. 
 
 * '■ The malicious intent of the pub- 
 lication is not a question of fact, but a 
 conclusion of law. It is the intent 
 which the law implies, and which the 
 plaintiff is, therefore, not required to 
 prove, nor the defendant permitted to 
 deny." (Duer, J., Fry v. Bennett, i 
 Code Rep. N. S. 243; 5 Sandf. 54; 
 Lick V. Owen, 47 Cal. 252.) The only 
 case in which malice may be proved is 
 where privilege is pleaded. (Root v. 
 Lowndes, 6 Hill, 529; Washburn v. 
 Cook. 3 Denio, 112; Howard v. Sex- 
 ton, 4 N. Y. 157.) " Malice, so far as 
 the law requires it to sustain the ac- 
 tion, is implied from the pubUcation of 
 that which is untrue— the law presum- 
 ing it to exist in such a case. There- 
 fore, express malice is not required to 
 sustain the action?'' (Littlejohn v. 
 Greeley, 13 Abb. Pr. R. 55; King v. 
 Patterson [N. J.], 9 Atl. Rep. 705; 
 Pledger v. The State [Ga.], 3 So. East. 
 Rep. 320.) " It is said that malice is 
 involved in the issue. . . . The 
 answer to this suggestion is, that in 
 the action of slander, except in case of 
 privileged communications, express 
 malice forms no part of the issue. 
 Legal malice only is affirmed or denied, 
 and this results from proof of the 
 
 transaction . . . which the law 
 pronounces wrongful, and therefore 
 malicious. 2 Greenl. Ev. §§ 410, 421, 
 518." (Gardiner, J., Howard v. Sex- 
 ton, 4 N. Y. 160) "In an ordinary 
 action for a libel or for words, though 
 evidence of malice may be given to 
 increase the damages, it never is con- 
 sidered as essential, nor is there any 
 instance of a verdict for the defendant 
 on the ground of a want of malice." 
 (Mansfield, Ch. J., Hargrave v. De 
 Breton, 4 Burr. 2425, repeated by 
 Bayley, J., in Bromage v. Prosser, 4 
 B. & Cr. 247; 6 Dowl. & R. 296.) 
 Such an instance is Wilson v. Stephen- 
 son, 2 Price, 282, where the jurj' found 
 that the speaking of the words by the 
 defendant was not maliciously, on 
 which a verdict was recorded for the 
 defendant, and the court refused to 
 disturb it. And see Smith v. Ashley, 
 1 1 Met. 367. Others say malice must 
 be proved. ■' The jury have no more 
 right to find malice in the defendant, 
 without sufficient evidence, than they 
 have to find any other fact in the 
 plaintiff's favor without proof." (Wood- 
 ruff, J., Liddle v. Hodges, 2 Bosw. 
 544.) And see Dolloway v. Turrill, 
 26 Wend. 396 ; Cooke on Defamation, 
 ch. iv. 
 
•JO WRONGFUL ACTS. [CH. V. 
 
 clear than the mere statement, that the non-existence of a 
 legal excuse does not admit of direct proof, and can be 
 proved only by inference. As to the proof of malice in 
 fact or of a bad intent, we have already considered how 
 intent may be proved (§ 83) ; and from the nature of the 
 subject it will conclusively appear that, inasmuch as, at the 
 time when this division of malice took place parties to a 
 transaction were not allowed to testify, there could at that 
 time be none other than indirect evidence of bad intent or 
 malice. At that time the existence of bad intent or malice 
 could be proved in no other manner than by inferring it 
 from the acts or declarations of the actor, or by the like 
 means as the proof of so-called malice in law. 
 
 § 88. Pursuing the subject, and upon reference to the 
 text-books and reports to ascertain whether intent and 
 malice are elements of a wrong, we find some authors and 
 judges laying down the rule that intent, meaning bad in- 
 tent, is the essential ingredient of every wrong,^ and this is 
 
 • Every wrong supposes intention sanity that the wrong was not the 
 
 or negligence on the part of the wrong- consequence of unlawful intention or 
 
 doer. (2 Austin's Lect. Juris. 2.) inadvertence; and (p. 185) the reason 
 
 Intention, negligence, heedlessness, or assigned by Blackstone and other 
 
 rashness, is of the essence of a wrong, writers is hardly worth powder and 
 
 is a necessary condition precedent to shot. He tells us that a wrong is the 
 
 the existence of guilt. (Id. 144.) effect of a wicked will. And (says) 
 
 Guilt imports that the party has broken infants and madmen are exempted, 
 
 a duty (/<?. 147, 149); it denotes the because the act goes not with their 
 
 intention, and connotes the act, for- will, or is not imputable to a wicked 
 
 bearance or omission, which was the will. ... He cannot mean to 
 
 effect o{ his intention {Id. 147); and affirm that an infant or madman has 
 
 at p. 165: Unlawful intention or un- not as much will as the adult or the 
 
 lawful inadvertence is of the essence sane. [It must be observed that 
 
 of injury. And on examining the Austin makes a distinction between 
 
 grounds of exemption from liability, will and motive. By will, if we inter- 
 
 we find the party is, or is presumed to pret him aright, he intends only the 
 
 be, clear of intention or inadvertence; mere act of volition.] 
 and (p. 168) the ultimate ground of Intent is the essence of crime, 
 
 exemption for ignorance or error of (Krom ^i. Schoonmaker, 3 Barb. 647.) 
 
 fact is, the absence of unlawful inten- The criminality of the act depends 
 
 tion or unlawful inadvertence. At altogether upon the intent with which 
 
 p. 179: An infant or a person insane it was done. (Genet v. Mitchell. 7 
 
 is exempt from liability, not because Johns. 120; and see 2 Starkie on Ev. 
 
 he is an infant or insane, but because tit. Intention ; 5 Am. Quart. Rev. 79.) 
 
 it is inferred from his infancy or in- " It is a principle of our law that to 
 
§88.J 
 
 ELEMENTS OF A WRONG. 
 
 71 
 
 SO universally conceded that all collections of legal maxims 
 include this : " Actus non facit reum, nisi mens sit rea ; " 
 which is translated : " An act does not make guilty, unless 
 the mind be guilty " — that is, unless the intention be crimi- 
 nal ; others assert that intent is immaterial in civil actions, 
 except in the civil actions for slander and libel ; ^ others 
 
 constitute an offense there must be a 
 guilty mind." (Reg. v. Sleep, Leigh 
 & Cave, 44 Cockburn, C. J.) "A 
 man cannot be said to be guilty of a 
 delict unless to some extent his mind 
 goes with the act.'' (Buckmaster 7/. 
 Reynolds, 13 C. B. N. S. 62, Erie, 
 C.J.) 
 
 1 See Burrill's Law Diet. tit. Actus, 
 where he adds: "The intent and the 
 act must both concur to constitute the 
 crime. (Kenyon, Ch. J. 7 T. R. 514; 
 Broom's Max. 144.) This maxim is 
 exclusively applicable to criminal law, 
 and to civil proceedings for slander 
 and libel; in [query, other] civil ac- 
 tions, the intent is immaterial if the 
 act done is injurious to another. (Id. 
 155,161.) The maxim. " Affectio tua 
 nomen imponit operi tuo " [your dis- 
 position or intention gives name or 
 character to your work or actj. em- 
 bodies the same principle. (Bract, fol. 
 loi b.) See Broom's Maxims, tit. 
 Actus non facit, &c., where he says: 
 With respect to libel and slander the 
 rule is ... . where an occasion 
 exists, if fairly acted upon, furnishes 
 a legal protection to the party who 
 makes the communication complained 
 of, the actual intention of the party 
 affords a boundary of legal liability. 
 See also Burrill's Law Diet. tit. 
 Voluntas, citing Voluntas et proposi- 
 tutn distinguunt maleficia — Will and 
 purpose characterize crimes. Crimen 
 non contrakitur, nisi voluntas nocendi 
 intercedat — Crime is not contracted 
 unless the intention of doing harm be 
 present. Tolle voluntatem et erit 
 omnis actus indifferens. Take away 
 will and every act becomes indiffer- 
 ent. 
 
 We cannot pass the quotation of a 
 so-called law maxim without entering 
 
 our protest against the reception of 
 law maxims as legal axioms. We 
 believe that not a single law maxim 
 can be pointed out which is not ob- 
 noxious to objection. The old law 
 maxims must be put aside or forgotten 
 or remembered only as things of the 
 past and dead, even as we have put 
 aside and forgotten maxims in science, 
 supplying their places with maxims 
 drawn from a larger experience and 
 more philosophical analysis. " Per- 
 haps there is a period in every system 
 of law previous to which the formation 
 ot maxims will be productive of bad 
 effects, as leadmg to the establish- 
 ment of principles which it is not per- 
 mitted to controvert, but which more 
 enlightened views would repudiate." 
 (Fortesque de Laudibus, &c. ch. viii, 
 note to editions by Amos. See Dod- 
 deridge's English Lawyer; Doctor 
 and Student, Dialogue I, ch. viii. ix ; 
 Bacon's Preface to his Maxims.) The 
 benefit which science has received 
 from the use of maxims is of a ques- 
 tionable nature, and the adoption ot 
 these is of a questionable nature when- 
 ever the ideas are confused. (Locke 
 on the Understanding, Bk. IV, ch. 
 vii.) In Bonomi v. Backhouse (27 
 Law Jour. Q. B. N. S. 388), Erie, J., 
 says: "The maxim, sic utere tuo ut 
 alienum non ladas, is mere verbiage. 
 A party may damage the property ot 
 another where the law permits, and 
 he may not where the law prohibits ; 
 so that the maxim can never be 
 applied until the law is ascertained, 
 and when it is, the maxim is super- 
 fluous." And in Jenkins v. Wheeler 
 (4 Robertson, 575) the court said that 
 the maxim, " freight is the mother of 
 wages,'' is not universally true. 
 
72 
 
 WRONGFUL ACTS. 
 
 [CH. V. 
 
 that intent is immaterial in slander and libel, or immaterial 
 except under certain circumstances ;^ and others, that the 
 
 ^ The secret intention of the pub- 
 lisher is immaterial. (Hankinson v. 
 Bilby, i6 M. & W. 442.) "It is an 
 error to suppose that motive, except 
 where the words are privileged, is in 
 any way essential to a cause of ac- 
 tion." The motive of the defendant is 
 wholly immaterial as respects the right 
 of action. The motive may be a good 
 or a bad one. (Daly, F. J., Viele v. 
 Gray, 10 Abb. Pr. R. 6, 7; 18 How. 
 Pr. R. 550.) In an action brought by 
 A. against B. for slandering the title of 
 the former to certain slaves by him 
 exposed to public sale, a verdict was 
 found for him; B. brought his bill 
 praying for relief, and an injunction 
 against the verdict, and it was held 
 that as the loss in the sale of the slaves 
 was caused by B., ez'en though he was 
 believed to have designed no injury, 
 he was bound to make reparation, and 
 his bill was dismissed. (Ross v. Pines, 
 Wythe, 71.) There is no instance ol 
 a verdict for the defendant on the 
 ground of want of malice. (Mans- 
 field, Ch. J„ Hargrave v. Le Breton, 
 4 Burr. 2425; repeated by Bayley, J., 
 Bromage v. Prosser, 4 B. & Cr. 247. 
 See post, note to § 121.) If I give a 
 man slanderous words, whereby I 
 damnify him in his name and credit, 
 it is not material whether I use them 
 upon sudden choler and provocation, 
 or of set malice, but in an action upon 
 the case I shall render damages alike. 
 (Bacon's Maxims of the Law, Regula, 
 VII.) 
 
 The intent with which an act is 
 done is by no means the test of the 
 liability of a party to an action of tres- 
 pass. (Guille V. Swan, 19 Johns. 381 ; 
 Percival v. Hickey, 18 Id. 257; 
 Tremain v. Cohoes Co. 2 N. Y. 164; 
 Buckman v. Cowell, i N. Y. 507 ; 
 Safford v. Wyckok, i Hill, 1 1 ; note 
 to § 91, post.) Bona fide will not pro- 
 tect a magistrate who does an illegal 
 act. (Prickett v. Greatrex, i New 
 Mag. Gas. 543; 7 Law Times, 139.) 
 It is immaterial with what motive a 
 man does a legal act (Humphrey v. 
 Douglass, 1 1 Vt. 22) ; and so of an 
 unlawful act. (Amick v. O'Hara, 6 
 
 Blackf. 258.) Intention held to be 
 immaterial. (Bullock v. Babcock, 3 
 Wend. 391 ; Baker v. Bailey, 16 Barb. 
 60.) Intent immaterial if the words 
 are a libel. (People v. Freer, i Gaines, 
 485.) In a private action for libel the 
 motives are out of the question. (Root 
 V. King, 7 Cow. 633.) If the words 
 are not actionable per se and have not 
 occasioned any special damage, no 
 amount of malice in the publisher will 
 make them actionable. (Kelly v. 
 Partington, 3 Nev. & M. 116; 5 B. & 
 Adol. 645; and see 2 Nev. & M. 460; 
 4 B. & Adol. 700.) " Bad motives in 
 doing an act which violates no legal 
 right of another, cannot make that 
 act a ground of action." (Pickard v. 
 Collins, 23 Barb. 459; Phelps v. 
 Nowlen, 72 N. Y. 39; Heywood v. 
 Tilson, 29 Alb. L. J. 37; collecting 
 many authorities, and see in note to 
 § ^i,post.) If the facts be justified, 
 the motive, intention, and manner are 
 immaterial. (2 Burr. 807.) '■ Many 
 cases may be cited to show that the 
 question is not, from what motive did 
 an act proceed.' but, was the act jus- 
 tified by any right of the doer ? . . . 
 The motive, except so far as it is evi- 
 dence of the end in view, is, judicially 
 speaking, unimportant. (Lindley's 
 Introd. to Juris. App. xxx ) 
 
 Where an act in itself indifferent, 
 if done with a particular intent be- 
 comes criminal, there the intent must 
 be proved and found : but when the 
 act is in itself unlawful (z. e. prima 
 facie and unexplained), the proof of 
 justification or excuse lies on the 
 defendant, and in failure thereof the 
 law implies a criminal intent ; in the 
 latter case the intention is immaterial, 
 and therefore not a question of fact in 
 issue, for the crime consists in pub- 
 lishing a libel ; '' a criminal intention 
 in the writer is no part of the defini- 
 tion of the crime of libel at the com- 
 mon law:' {Per Lord Mansfield, in 
 Woodfall's Case.) The words quoted 
 are from the opinion of the twelve 
 English judges, delivered in the House 
 of Lords, upon questions put to them 
 on the subject of libel. (Journals of 
 
§88.J 
 
 ELEMENTS OF A WRONG. 
 
 IZ 
 
 essential element of a slander or a libel is malice or a 
 malicious intent, the mind must be in fault ;^ and some 
 
 the House of Lords, 1792, Appendix 
 27 ; and 22 Howell's State Trials, 300 ; 
 The People J/. Crosswel),^ Johns. Cas. 
 364.) Except in the cases of privi- 
 leged comm-unications, express malice 
 forms no part of the issue. (Howard 
 V. Sexton, 4 N. Y. 1 57, and see p. 72, 
 note I, ante ) "In which case [privi- 
 leged communication] express malice 
 must be shown, while in other cases 
 express malice forms no part of the 
 issue. Thorn v. Moser, i Denio, 488 ; 
 The State v. Burnham, 9 New Hamp. 
 34; Howard v. Sexton, 4 N. Y. 157." 
 { W. F. Allen, J., Bush v. Prosser, 1 1 
 N. Y. 355; s^e. Id. 358, and the next 
 following note.) 
 
 ' '"To constitute that injury 
 [slander] malice must be proved, not 
 mere general ill-will, but malice, in 
 the special case set forth in the plead- 
 ings, to be inferred from it and the 
 attending circumstances."' (Gardiner, 
 J., Howard v. Sexton, 4 N. Y. 161 ; 
 quoted and approved by Rosekrans, 
 J., Fry V. Bennett. 28 N. Y. 328; and 
 by 'iV. F. Allen, J., Bush v. Prosser, 
 1 1 N. Y. 357.) '' Malice is essential 
 to every action for libel." (Selden. J., 
 Lewis V. Chapman, 16 N. Y. 372.) 
 '• But it is malice in a special and 
 technical sense, which exists in the 
 absence of lawful excuse.'' (Trunkey, 
 J , Nee.b v. Hope, 2 Central Reporter, 
 72. ) " In all cases malice is essential 
 to the action. Not imputed malice 
 merely, but actual malice, malice es- 
 tablished by proof." (Selden, J. , Bush 
 ■V. Prosser, 11 N. Y, 358.) To main- 
 tain the action, there must be: (l) 
 "malice in the defendant; (2) injury 
 to the plaintiff; (3) that the words 
 should be untrue." (EUenborough, 
 Ch. J., Maitland v. Goldney, 2 East, 
 426.) The malice of the publication, 
 or the intent to defame the reputation 
 of another, is the essence of the offense 
 of libel. (Commonwealth v. Clapp, 4 
 Mass. 163 ; Commonwealth v. Snel- 
 ling, 15 Pick. 337.) In order to ren- 
 der the publisher amenable to the law, 
 the publication must be maliciously 
 made, but malice will be presumed if 
 the matter be libelous. (Bouvier's 
 
 Law Diet, voce Publisher.) "The 
 criminality of the charge in the indict- 
 ment consisted in a malicious and 
 seditious intention. There can be no 
 crime without a wicked mind." (Kent, 
 J., The People v. Crosswell, 3 Johns 
 Cas. 364); and ''as a libel is a de- 
 famatory publication made with a 
 malicious intent}'' {Id. 377.) The 
 injury consists in "falsely and mali- 
 ciously'''' charging another with, &c. 
 (Kent's Com. part IV, sect. 24, p. 706, 
 of vol I, iithed.;and/<? P- 617.) "The 
 essential ground of action for defama- 
 tion consists of the malicious inten- 
 tion, and when the mind is not in fault 
 no prosecution can be maintained ; " 
 and the story recited from Fox's 
 Martyrology, in Brook v. Montague, 
 Cro. Jac. 91, is referred to. " The 
 mind must be in fault and show a 
 malicious intent to defame,'' (Kenyon, 
 J., Rex V. Abingdon, i Esp. 226 ; Reg. 
 V. Wallace, 3 Irish C. L. Rep. N. S. 
 38.) " The guilt of the accused must 
 depend upon the circumstances as they 
 appear to him." Parke, B., see State 
 V. Brown, 16 Pac. Rep. 261.) "By 
 the law of England, malice is an essen- 
 tial ingjredient in every action on the 
 case for slander.'' (Borthwick on 
 Libel, 194; Quigley 7/. McKee, 19 The 
 Reporter, 250 (Oregon.) And in a 
 note {Id) attributed to Starkie, it is 
 said : Every definition of the subject- 
 matter of an action for slander, to be 
 found in the books of reports or ele- 
 mentary writers, includes malice as an 
 essential ingredient. Malice is the 
 gist of the action for slander. (Mc- 
 Ge.e.v. Ingalls, 4 Scam. 30; Whiter/. 
 Nicholls, 3 How. U. S. Rep. 266.) 
 There must be a mischievous inten- 
 tion. (George on Libel, 162.) The 
 guilt [gist] of an essential ground of 
 action for defamation consists in the 
 malicious intention, and when the 
 mind is not in fault, no prosecution 
 can be maintained. (2 Kent's Com. 
 26 ; W. F. Allen, J., Bush v. Prosser, 
 II N. Y. 355.) In the trial of the 
 Seven Bishops, Justices HoUoway and 
 Powell both say, to make a libel it 
 must be malicious. '' The inain ques- 
 
74 
 
 WRONGFUL ACTS. 
 
 [CH. 
 
 expressly, and some by implication, assert that this fault in 
 the mind, this bad intent or malice must be, in fact or 
 impliedly, in the mind of the defendant in the action. 
 And the divisions of will and of malice heretofore referred 
 to (g§ 86, 87) appear to have been designed to meet this 
 requirement in those cases in which there is no pretense of 
 any bad intent, or no possibility of any bad intent in the 
 mind of the defendant in the action. There will be no 
 necessity for any such division of will or malice, if the dis- 
 
 tion is, quo animo the defendant pub- 
 lished the article complained of. . . 
 The plaintiff is bound to show that the 
 defendant was actuated by malice." 
 (EUenborough, Ch. J., Tabart v. 
 Tipper, i Camp. 350, 351.) "The 
 gist of an action of slander, for words 
 in themselves actionable, is the malice 
 which produced them ; take away this, 
 and the suit is not maintainable in any 
 shape.' (Russell, J., Cookz'. Barkley, 
 I Penn. N. J. Rep. 180, and p. 183, 
 per Pennington, J.) " The quo animo 
 with which the words were spoken 
 was the point in issue, as malice con- 
 stitutes the gist of the action." '■ It 
 is said there need be no express malice, 
 except in the case of privileged com- 
 munications, that, in other words, im- 
 plied or legal malice is all that is re- 
 quired. What is meant by implied 
 malice ? Does it mean malice which 
 the law imputes without any proof of 
 its existence? I apprehend not. It 
 means this : that the fact that the de- 
 fendant is shown to have published a 
 false charge against another, which 
 was calculated to injure him, proves 
 that the defendant was actuated by 
 malicious motives, unless the circum- 
 stances are such as to suggest some 
 other and innocent motive. This is 
 nothing more than the application of 
 a familiar rule of evidence, viz.. that 
 every person is presumed to intend 
 that which is the natural consequences 
 of his actions. . . . But is malice 
 any more the ground of the action in 
 cases of privileged communication 
 than in others ' Clearly not. It is 
 called, for the sake of convenience, 
 express malice in the one case, and 
 
 implied in the other; but the malice is 
 the same, the difference is in the proof 
 alone. We may, therefore, assume 
 that in all cases malice is essential 
 to the action; not imputed malice 
 merely, but actual malice; malice es- 
 tablished by proof." (Selden, J., 
 Bush -v. Prosser, 11 N. Y. 358.) In 
 actions for slander, it is of the essence 
 of the action that the words be spoken 
 maliciously. (Jarvis v. Hatheway, 3 
 Johns. 180.) No doubt but malice, as 
 well as falsehood, is essential to sus- 
 tain an action of slander. (Thorn v. 
 Blanchard, 5 Johns. 529.) This is so 
 under the Virginia Statute. (Chaifin 
 ■V. Lynch, i So. East Rep. 803.) 
 
 The case of Mercer u. Sparks 
 (Owen, 51 ; Noy, 45) was cited in Mc- 
 Pherson v. Daniels (10 B. & Cr. 266) 
 as an authority for the proposition that 
 in an action for slander, malice need 
 not be alleged; but, per Parke, J., 
 " that' was after verdict, and mahce 
 must have been proved at the trial." 
 Malice " may be said to be a neces- 
 sary ingredient, in one form or another, 
 of all crimes whatever." (Stephen's 
 Crim. Law, 81.) As to necessity of 
 proving malice in actions for slander 
 and libel, see George on Libel, 149 ; 
 Jones on Libel, 8, 9, 11, 14; Comyn's 
 Dig. Action for Defamation, G ; 
 Smith V. Ashley, 1 1 Met. 486 ; Mc- 
 Corkle v. Binns, 5 Binney, 340; Cox- 
 head V, Richards, 2 C. B. 608 ; Lillie 
 V. Price, 5 Ad. & El. 645 ; Harwood 
 V. Astley, 4 Bos. & Pul. 47; and 
 Hastings v. Lusk, 22 Wend. 416; 
 Steele v. Southwick, 9 Johns. 214; 
 Root V. King, 4 ^yend. 113; 7 Cow. 
 613; I Saund. 243, note 4. 
 
§ 88.] ELEMENTS OF A WRONG. 75 
 
 tinction between the wrong and the liability be observed 
 (§ 66). At the same time that courts hold malice, mean- 
 ing bad intent, to be a necessary ingredient of slander and 
 libel, they hold that it is not absolutely necessary to allege 
 malice in a declaration,^ and that the introduction of an 
 allegation of malice in a declaration for libel is " rather to 
 exclude the supposition that the publication had been made 
 on some innocent occasion, than for any other purpose." * 
 And except to aggravate the damages, courts will not allow, 
 on a trial, any evidence of malice (bad intent) in addition 
 to that which is said to be inferred, until evidence has been 
 given which countervails or reverses the so-called presump- 
 tion of malice, or malice in law ; * nor will they allow this 
 presumption, nor malice in fact, to be contradicted by any 
 mere denial, or shown not to exist by proving an actual 
 good intent. They permit but one way of evading this 
 malice in law, and that is by showing the existence of a 
 legal excuse for the act of publication. If the legal excuse 
 shown be a prima facie one only, its effect is merely to 
 remove the alleged presumption of malice, and raise an 
 alleged presumption of absence of malice, and, as it is said, 
 require the plaintiff to show malice in fact. This very in- 
 tricate course of procedure arises from erroneously treating, 
 in practice, as an affirmative part of the essential element 
 of a wrong that which is more properly a negative part. 
 
 ' In a complaint for libel it is not same meaning. (Loundst/. Delaware, 
 
 necessary to aver malice. (Purdy ■z'. &c., R. R. Co. 3 Hun, 329; affi'd, Ct. 
 
 Carpenter, 6 How. Pr. R. 366.) Ma- App. Feb. 8, 1876; § y2&,post.) 
 liciously need not be used, if words of ^ Abbott, Ch. J., Duncan v. 
 
 an equivalent import are used. (White Thwaites, 3 B. & Cr. 585. 
 V. Nicholls, 3 How. U. S. Rep. 266 ; * In the adjustment of damages, 
 
 Opdyke v. Weed, 8 Abb. Pr. R. 223; malice \bad intenf\ may become an 
 
 Viele V. Gray, 10 Id. 6.) The omis- element. (Viele v. Gray, 10 Abb. Pr. 
 
 sion is cured by verdict. (McPherson R. 6; 18 How. Pr. R. 566; Root z/. 
 
 V. Daniels, 10 B. & Cr. 266 ; Taylor King, 7 Cow. 633 ; Fry v. Bennett. 28 
 
 V. Kneeland, i Doug. 67.") Wrong- N. Y. 327; s. C. 3 Bosw, 200; Taylor 
 
 fully and injuriously are not equivalent v. Church, i E. D. Smith, 279: and 8 
 
 to maliciously. (De Medina z/. Grove, N. Y. 452; Littlejohn v. Greeley, 13 
 
 iojur.426.) Willfully and maliciously Abb. Pr. R. 57; Bush v. Prosser, 11 
 
 have essentially, if not precisely, the N. Y. 359; and set post. Damages.) 
 
76 WRONGFUL ACTS. [CH. V. 
 
 not required to establish the fact of a wrong done, but 
 required only when it is designed to show that what is a 
 wrongful act, and prima facie a wrong, is not so in fact 
 (§ 63). Let a wrongful act stand for a wrong, unless and 
 until a legal excuse be shown, and we make intelligible and 
 consistent what is now difficult to understand, and only to 
 be reconciled by a series of fictions.^ 
 
 § 89. One meaning in which intent or intention is em- 
 ployed is will. When so employed, it corresponds to what 
 we have described as voluntary. And if instead of saying 
 intent is necessary to constitute a wrong, we say will is 
 necessary to constitute a wrong, and then keep in view the 
 distinction between will (voluntary) and intent, we at once 
 remove very much of the difficulty which has been sup- 
 posed to be inherent in the law relating to slander and 
 libel. It is conceded, at least by some, that in civil 
 actions other than those for slander and libel, intent, in 
 the sense of intending the consequences of an act, is im- 
 material;^ why should the civil actions for slander and 
 libel be exceptions .? Certainly the burden of proving 
 them to be exceptions lies upon those who insist that they 
 are not within the rules which govern in every other civil 
 action for a tort. 
 
 § 90. One meaning of malice is absence of legal excuse. 
 This is the sense in which the term is most frequently em- 
 ployed, and it is, we conceive, the only sense in which it is 
 properly employed.^ Substitute " absence of legal excuse " 
 for " malice " in many opinions in the reports which are 
 difficult to be understood, and they will become easily 
 
 1 Mr. Stephen, after referring to the that persons who do acts of which the 
 
 manner in which the word "malicious" natural consequence is to kill, &c., 
 
 operates in shifting the burden of shall be punished, instead of introduc- 
 
 proof from the prosecutor to the pris- ing the question of intent at all. (Ste- 
 
 oner, and stating that legal fictions phen's Crim. Law. 304.) 
 are matters of regret, says: " It would 2 ^^/^_ p. 71, note i. 
 
 be better to throw the law into a dif- » See p. 66, note i, ante. 
 
 ferent shape, and to enact specifically 
 
^ 9^] ELEMENTS OF A WRONG. 
 
 17 
 
 intelligible, and accord with the principles we venture to 
 propound. 
 
 To illustrate, that what is called malice in fact really 
 means nothing more nor less than absence of legal excuse ; 
 suppose A. has untruly said B. is a thief, under circum- 
 stances that A. believing B. to be a thief, would constitute 
 a legal excuse. A familiar instance of this is the case of 
 giving, as it is termed, the character of a former employee. 
 In the case supposed, the material inquiry is : What was 
 A.'s belief? To answer this inquiry, and only for the pur- 
 pose of answering this inquiry, it may be material to ascer- 
 tain what feeling or intention A. had towards B. ; if the 
 feeling or intention is found to be friendly, it is a link in 
 the chain of evidence that A. spoke believing what he said. 
 If the feeling or intention of A. towards B. was unfriendly, 
 it is a link in the chain of evidence that A. spoke rather 
 from that feeling or intent or for some purpose other than 
 from his belief; and being spoken not in a belief of its 
 truth, the speaking was out of the pale of legal excuse, and 
 was wrongful, not merely or in anywise because of the 
 intent, which may have been good or bad, but because the 
 speaking was under circumstances which do not constitute 
 a legal excuse ; that is, under a belief that the words 
 spoken were true. If in such a case A. was allowed to 
 testify, and was to admit that he did not believe to be true 
 what he said concerning B., but that he spoke without any 
 intent to injure or with a good intent towards B. or any 
 other, that testimony would not constitute any defense ; 
 admitting that he did not believe what he spoke would 
 take away the legal excuse. 
 
 § 91. The intent — meaning the intent to effect certain 
 consequences — with which an act is done is material on 
 the question of the amount of damages ; the absence of a 
 bad intent will mitigate the damages ; the presence of a 
 bad intent will aggravate them (§ 2^0, post). The intent 
 
78 WRONGFUL ACTS. [CH. V. 
 
 of the actor is sometimes material as a link in the chain of 
 evidence to determine whether or not some certain act was 
 or was not done under circumstances constituting a legal 
 excuse, as where the legal excuse is dependent upon the 
 question, What was the belief of the actor? (§ 2A^\,post.') 
 With these exceptions, we conceive that intent is never 
 material, and that intent is never an essential element of a 
 wrong. No amount of good intent will excuse an act 
 otherwise wrongful; and no amount of bad intent will make 
 wrongful that which is otherwise a permitted act.* If 
 intent is not an essential element of a wrong, neither, in 
 the sense of ,bad intent, is malice. If the term malice is 
 to be retained in use as a technical term, it must be only in 
 the sense of want of legal excuse. 
 
 § 92. This view is not, we are pleased to say, any inno- 
 vation or novel doctrine ; it is but a return to the old paths 
 from which the departure has been very wide. Holt, after 
 referring to the objections urged against the law of libel, 
 says:^ " It is urged that the motive of many publications 
 which the law decrees libels, may be innocent and even 
 laudable ; and that without the proof of malice, or what is 
 equivalent to malice, the mere act of composing or pub- 
 lishing a libel ought not to be the subject of punishment. 
 This objection only becomes specious from the misappre- 
 
 > Legal criminality is merely legal 83 N. Y. 178 ; and see in note to § 88, 
 
 responsibility, and may exist where ante.) 
 
 there is no nioral criminality whatever. " If there be an infraction of the 
 
 (Holt on Libel, 53.) "It would be law, the intention to break the law 
 
 morally right perhaps, and yet action- must be inferred, and the criminal 
 
 able." Qervis, Ch. J., Rogers v. Mac- character of the publication is not 
 
 namara, 14 C. B. 37; ante, p. 72, affected or qualified by there being 
 
 note I, and note to § 40, ante.) some ulterior object in view (which is 
 
 •'An act which does not amount the immediate and primary object of 
 
 to a legal injury cannot be actionable the parties) of a different and of an 
 
 because it is done with a bad intent." honest .character." (Reg. v. Hicklin, 
 
 (14 Albany Law Journal, 61, article Law Rep. 3 Q B 370) 
 
 copied from Southern Law Review, 2 Holt on Libel, conclusion of ch. 
 
 citing numerous authorities. See, in iii. bk. i, p. 55 ; and see comments on 
 
 addition, Creemer v. Benton, 4 Lan- this, 2 Mence on Libel 21; 
 
 sing, 290; Chenango Bridge v. Paige, ' 
 
§ 92-J ELEMENTS OF A WRONG, 7g 
 
 hension of the term malice. Malice, in legal understand- 
 ing, implies no more than willfulness.^ The first inquiry 
 of a civil judicature, if the fact do not speak for itself as a 
 malum in se, is to find out whether it be willfully com- 
 mitted ; it searches not into the intention or motive any 
 further or otherwise than as it is the mark of a voluntary 
 act ; and having found it so, it concerns itself no more 
 with a man's design or principle of acting, but punishes 
 without scruple what manifestly to the offender himself 
 was a breach of the command of the legislature. The 
 law collects the intention from the act itself — the act being 
 in itself unlawful [wrongful], an evil intent is inferred, and 
 needs no proof by extrinsic evidence. That mischief 
 which a man does he is supposed to mean, and he is not 
 permitted to put in issue a meaning abstracted from the 
 fact. ' The crime consists in publishing a libel ; a criminal, 
 intention in the writer is no part of the definition of the 
 crime of libel at common law.' ' He who scattereth fire- 
 brands, arrows, and death (which if not an accurate, is a 
 very intelligent description of a libel) is ea ratione crim- 
 inal.' It is not incumbent on the prosecution to prove 
 his intent, and on his part he shall not be heard to say, 
 ' Am I not in sport.' To determine, therefore, the guilt of 
 a civil act, and to inflict punishment on the offender, there 
 is no need of knowing his motives. Human laws require 
 no justification in imposing penalties for an act prohibited 
 by the magistrate, in its consequences injurious, and which 
 has indubitable marks of being voluntarily committed." 
 This exhibits and illustrates our view that the intent which 
 law regards is that intent which enters into the question, 
 Was the act voluntary ? and this it determines by the 
 knowledge of the actor. Did he know, or ought he to 
 have known, that his act would produce an injury ? If he 
 had this knowledge, or might, but for his own misfeasance 
 
 1 See Dexter v. Spear, 4 Mason, 1 1 5. 
 
8o WRONGFUL ACTS. [CH. V. 
 
 or omission, have had this knowledge, he is liable for his 
 act and its consequences. And it is altogether immaterial 
 whether we say he is liable for the act and its conse- 
 quences, or say he is liable for the act because it was 
 voluntary, and for the consequences because he must be 
 presumed to have intended them. The latter mode of 
 statement is the more usual, but we think less correct, and 
 may have contributed to the confusion which pervades our 
 subject. 
 
CHAPTER VI. 
 
 PUBLICATION— PUBLISHER. 
 
 A publication is necessary — Meaning of the term publica- 
 tion — The language published must be understood — 
 The publication may be orally or in writing — What 
 amounts to an oral and what to a written publication 
 — Publication of effigy — Requisites of an oral publica- 
 tion — Requisites of a written publication — Tim,e of 
 jmblication — Place of publication — Who is a publisher 
 — Republication and repetition, distinction between — 
 Joint publication — Liability for publication — Volun- 
 tary and involuntary publications — Liability of prin- 
 cipal and agent — Newspaper Publisher — Bookseller. 
 
 93. As heretofore observed ^ (§ 23), for language to 
 
 ' To publish means not only a 
 "giving out," but a "taking in." In 
 English we have only one word to ex- 
 press the idea, in the German they 
 have two words. They say of a book 
 herausgegeben that it is " given out," 
 but not that it is published until sales 
 of it have been effected. The word 
 "published" was formerly used as 
 equivalent to exhibit ; thus in an ad- 
 vertisement which appeared in " The 
 Tatler," No. 113, Dec. 29, 1709, it 
 announced that a picture will be pub- 
 lished, meaning exhibited, at a certain 
 place on a certain day. 
 
 " Publication [of a writing] is noth- 
 ing more than doing the last act for 
 the accomplishment of the mischief 
 intended by it." (Rex v. Burdett, 4 
 B. & Aid. 126.) 
 
 " The sense in which the word pub- 
 lished is used in law, is in uttering of 
 the libel. Though in common par- 
 lance that word may be confined in its 
 
 6 
 
 meaning to making the contents 
 known to the public, yet the meaning 
 is not so limited in law. The making 
 it known to an individual only is in- 
 disputably, in law, a publishing.)' {Id.) 
 The mode of publication of writings 
 in early times was by scattering them 
 in the highways or fields. (See Darcy 
 V. Markham, Hobart, 120.) The con- 
 clusion of "The Outlaw's Song of 
 Trail-le-baston," temp. Edward II, is 
 as follows : 
 
 Escrit estoit en parchemyn pur mout 
 remember 
 
 E gittg en haut chemyn qe urn le 
 dust trover. 
 [It is written on parchment to be better 
 remembered, and cast on the highway 
 that people may find it.] See Political 
 Songs of England from John to Ed- 
 ward II. Edited and translated by 
 Thomas Wright, Camden Society, 
 1839. (Astor Library.) And see Lon- 
 don Quarterly Review, April, 1857. 
 
82 
 
 PUBLICATION. 
 
 [CH. VI. 
 
 aflFect another than its author the language must be pub- 
 lished ; that is to say, it must be communicated to some 
 other than its author. There must be a publication.^ 
 
 This method of pubhcation seems 
 to have continued at least until the 
 sixteenth century. John Fox men- 
 tions " A libel or book entitled the 
 Supplication of Beggars, thrown and 
 scattered at the procession at West- 
 minster, on Candlemas day (2d Feb- 
 ruary, 1526), before King Henry the 
 Eighth, for him to read and peruse ; " 
 and again, Wolsey immediately went 
 to his Majesty (Henry Eighth) com- 
 plaining of divers seditious persons 
 having scattered abroad books. A 
 single sheet may be a book. The hke 
 mode of publication was adopted by 
 Burdet, tried "for conspiring to kill 
 the king and the prince by casting 
 their nativities, foretelling the speedy 
 death of both, and scattering letters 
 containing the prophesy among the 
 people." (9 Foss's Judges of England, 
 and Croke Car. 121.) 
 
 The meaning and Etymology of 
 the word trail-le-baston is discussed 
 in 3 Foss's Judges of England, 30, and 
 note to Political Songs of England, and 
 claimed to be different from that given 
 in the law dictionaries. 
 
 That the mode of publication of 
 libels among the Romans was by 
 scattering them on the highways, may 
 be inferred from the provisions in the 
 codes in reference to the finding and 
 finders of libels. The 4th resolution 
 in Halliwood's Case, in Coke's fifth 
 report, commences: "If any one find 
 a libel." (See 2 Starkie on Libel, 226.) 
 
 A new method of framing and 
 dispersing libels was invented, says 
 Hume, by the leaders of popular dis- 
 content : Petitions to Parliament were 
 drawn up, stating particular griev- 
 ances, presented and immediately 
 printed. And Lord Campbell (6 Lives 
 of the Chancellors, 149) speaks of "a 
 dispersion of libels in Westminster 
 Hall, by means of an explosion of gun- 
 powder, while the judges were sitting 
 there." Of this he gives a further 
 account, same volume, p. 186. 
 
 A most cowardly and atrocious, 
 yet ingenious method of defaming is 
 mentioned by Hazlitt in his " Essay on 
 Wills," and referred to in the London 
 Quarterly Review for October, i860, 
 as thus: "A wealthy nobleman hit 
 upon a still more culpable device for 
 securing posthumous ignominy. He 
 gave one lady of rank a legacy ' by way 
 of compensation for injury he feared 
 he had done her fair fame;' a large 
 sum to the daughter of another, a mar- 
 ried woman, ' from a strong conviction 
 that he was the father;' and so on 
 through half a dozen more items of 
 the sort, each leveled at the reputation 
 of some one from whom he had suf- 
 fered a repulse ; the whole being nul- 
 lified (without being erased) by a cod- 
 icil." 
 
 A court of probate, it seems, has 
 power to order the omission from the 
 registry of a will of any defamatory or 
 offensive matter contained in such 
 will. (Re Honeywood, Law Rep. 2 
 Pro. & Div. 251 ; i?^ Wartnaby, I Rob. 
 Ecc. 423 ; Curtis v. Curtis, 3 Add. 33 ; 
 Marsh v. Marsh, i Sw. & Tr. 528.) 
 In Texas, by statute, on conviction of 
 one for publishing a libel, the court 
 may order the destruction of the libel. 
 
 The publication may be made by 
 the telegraph. (See Jeffras u. McKil- 
 lop, 4 Sup. Ct. Rep. [T. & C] 578.) 
 A telegraph company is liable for the 
 subsequent publication in a newspaper 
 of a communication which passed over 
 its line. (Dominion Tel. Co. v. Silver, 
 10 Ontario Supreme Ct. Rep. 238.) 
 
 Publication by mailing postal card 
 (Williamson v. Freer, L. R. 9 C. P. 
 393) ; and by postal telegram (Robin- 
 son V. Jones, 4 Irish Law Rep. 391). 
 See note to § 244, post; and see " Libel 
 on Postal Cards," 7 Canada Law Jour. 
 340; 20 Alb. L. J. 203. 
 
 > Lyle V. Clason, i Caines, 581 ; 
 Weir V. Hoss, 6 Ala. 880. 
 
§ 94, 95.] 
 
 PUBLICATION. 
 
 83 
 
 § 94. Publication is an ambiguous term, employed to 
 signify, sometimes the matter published, sometimes an act 
 of publishing only,^ and sometimes such an act of publish- 
 ing as may subject the publisher to legal liability. Ordi- 
 narily the context will disclose in which of these several 
 senses the term is employed. 
 
 § 95. Every communication of language by one to 
 another is a publication. But to constitute an actionable 
 publication, that is, such a publication as may confer a 
 remedy by civil action, it is essential that there be a publi- 
 cation to a third person, that is, to some person other than 
 the author or publisher and he whom or whose affairs the 
 language concerns (§ 107). No possible form of words 
 can confer a right of action for slander or libel, unless 
 there has been a publication to some third person.'' The 
 
 ' A fault very common in the En- 
 glish language; the Greek distin- 
 guishes between Kriai and KTiafia, an 
 act and a thing. 
 
 * 2 Starkie on Libel, 13, 14, citing 
 I W. Saund. 132, note 2; Phillips v. 
 Jansen, 2 Esp. Cas. 226; Hick's Case, 
 Hob. 215; Rex V. Wegener, 2 Stark. 
 Cas. 245; Force v. Warren, 15 C B. 
 N. S. SoiS; Edwards v. Wooton, 12 
 Coke R. 35 ; Ahern v. Maguire, Arm. 
 Mac. & Og. 39. Where the defendant, 
 knowing that letters addressed to the 
 plaintiff were opened and read by his 
 clerk, wrote and sent a letter directed 
 to the plaintiff, which was opened and 
 read by his, plaintiff's, clerk, this was 
 held to be a publication. (Delacroix 
 V. Thevenot, 2 Stark. Cas. 63.) Where 
 a letter, folded but not sealed, was 
 delivered to a third person to be con- 
 veyed to the plaintiff, and was so con- 
 veyed without being read by any one, 
 held there was no publication. (Clut- 
 terbuck v. Chaffers, i Stark. Rep. 471 ; 
 Day V. Bream, 2 Moo. & Rob. 54.) 
 A letter intended for W., and which to 
 him would have been privileged, was 
 by mistake addressed to and opened 
 by another, held privileged. (Tomp- 
 son V. Dashwood, n Q. B. D. 43.) 
 Where a writing is sent to the plaintiff, 
 
 and he, in the presence of a third 
 person, repeats the contents of such 
 writing to the writer, who admits hav- 
 ing sent such a writing, this is not a 
 publication of the writing to the third 
 party. (Fonville v. McNease, 1 Dud- 
 ley [So. Car.], 303.) So where a letter 
 containing libellous matter was sent to 
 the prosecutor, and he not being able 
 to read, got his wife to read it for him, 
 he afterwards, in presence of defendant 
 and others, mentioned receiving the 
 letter and its contents, and defendant 
 admitted writing the letter, held, there 
 being no evidence that defendant knew 
 the prosecutor could not read, there 
 was no publication. (State v. Sy- 
 phrett, 2 So. East. Rep. 624.) 
 
 The delivery of a writing by the 
 governor of a colony to his attorney- 
 general, not for an official purpose, is 
 an actionable publication. (Wyatt v. 
 Gore, Holt, 299.) So is the delivery 
 of a writing to any third person. 
 (Ward V. Smith, 6 Bing. 749.) Giving 
 a writing to a witness to copy, the 
 copy being immediately sent to a 
 foreign country and the original re- 
 tained in the defendant's possession, is 
 a publication upon which the cause of 
 action arises here. (Kiene v. Ruff, i 
 Clarke [lowaj, 482.) 
 
84 
 
 PUBLICATION. 
 
 [CH. VI. 
 
 husband of the author or publisher, or the husband or wife 
 of him whom or whose affairs the language concerns, is 
 regarded as a third person.^ 
 
 § 96. There cannot properly be said to be a com- 
 munication of language by one to another, unless that 
 other understands the signification or meaning of the lan- 
 guage sought to be communicated.* When we say the 
 language must be understood by the one to whom it is 
 published, we mean only that the matter published must 
 be in a language which the person to whom it is published 
 can interpret to some meaning. To one who does not un- 
 derstand the language in which a publication is made, it is 
 as to him nothing more than unmeaning sounds or signs, 
 and not language (§ i).^ 
 
 ' A sealed letter, addressed and 
 delivered to the wife, containing a libel 
 on her husband, is a publication. 
 (Schenck v. Schenck, i Spencer, 208 ; 
 Wenman v. Ash, 13 Com. B. 836 ; and 
 see Mills v. Monday, Lev. 112; Rol- 
 land V. Batchelder, 5 So. East. Rep. 
 
 695.) 
 
 Gibbons wrote defamatory matter 
 of Trumbull, and had fifty copies 
 printed in pamphlet form in Massa- 
 chusetts. Forty-five copies he retained, 
 and five copies he sent to his wife in 
 New Jersey, indorsing four of them 
 with the names of certain persons, 
 acquaintances of the wife, but without 
 any instructions to the wife as to how 
 she should dispose of the copies so 
 sent her. The wife delivered two of 
 the copies in New Jersey to the persons 
 whose names were indorsed thereon, 
 and the others she delivered in New 
 Jersey to Trumbull, who exhibited 
 them to various persons. On Trum- 
 bull suing Gibbons in New York for 
 libel, it was contended for defendant, 
 (l) that there was no publication by 
 defendant ; (2) or no publication with- 
 in the State. The second point was 
 overruled, and as to the first it was 
 held that the delivery of the manu- 
 script to be printed 'was a publication, 
 although a delivery to a wife in confi- 
 
 dence would not be a publication, yet 
 in the case then before the court the 
 wife acted as the agent of her husband, 
 and her delivery of the pamphlets 
 amounted to a publication by the 
 defendant. (Trumbull v. Gibbons, 3 
 City Hall Recorder, 97.) 
 
 " The uttering of a libel by a hus- 
 band to his wife is no publication." 
 (Wennhak v. Morgan, 20 Q. B. D. 
 635.) Such utterance was held to be 
 a publication in a case where husband 
 and wife were living apart. (Sesler v. 
 Montgomery, 19 Pac. Rep. 686. See 
 38 Alb. L. J. 24.) 
 
 2 Kiene v. Ruff, i Clarke (Iowa), 
 482 ; Miellenz v. Quasdorf, 22 The Re- 
 porter, 268. 
 
 ' " Scandalous words, if they be 
 spoken in an unknown tongue which 
 none of the auditors understand, will 
 not bear an action, because they do 
 no injury." (D'Anvers' Abr. 146, pi. 
 I, 2.) " Where slander is published 
 in a foreign language, it is necessary 
 to show that the hearers understood 
 the language." (2 Starkie on Slander, 
 52; Fleetwood v. Curley, Hob. 267; 
 Viner's Abr. tit. Actions for Words, 
 A, b; 2 Stark. Ev. 844; Holt on Libel, 
 245 ; for the slander and damage con- 
 sist in the apprehension of the hearers. 
 (Cro. Eliz. 496, pi. 16) 
 
§§ 97) 98-] PUBLICATION. 85 
 
 § 97. The publication of language may, in reference 
 to the place at which the publication is made, be either in 
 the vernacular or in a foreign language. Where the lan- 
 guage published is the vernacular of the place of publica- 
 tion, it requires no proof that those who heard or read it 
 understood it ; but it may be shown that those who heard 
 or read such language did not in fact understand its signi- 
 fication. Where the language published is one foreign to 
 the place of publication, it will not be assumed that those 
 who heard or read understood it, but it may be shown that 
 such hearers or readers did in fact understand what they 
 heard or read.^ Where the matter published is in a lan- 
 guage which he who hears or reads it understands, it will 
 be assumed he understood it in the sense which properly 
 belongs to it. In all cases of doubt, the question whether 
 or not the third person to whom the publication was made 
 understood the language employed, is a question of fact. 
 How such third person understood the language, that is to 
 say, the sense in which he understood it, is ordinarily a 
 question of interpretation. In our courts, ordinarily a 
 witness cannot be asked how he understood the language, 
 or what he understood by the language.^ (§ 384.) 
 
 § 98. The publication of language may be orally or in 
 writing. The distinction between these two modes of 
 
 1 Amann v. Damm, 8 Com. B. N. A witness who has heard a conversa- 
 S. 597. But in Ohio, it is held that tion cannot be aslced : "What did you 
 where words are spoken in German in understand by that ? " without pre- 
 a German county, it will be presumed viously laying a foundation for such a 
 that they were understood, and no question by showing that something 
 averment that they were understood had previously occurred in conse- 
 is necessary. (Bechtell v. Shatler, quence of which the words would 
 Wright [Ohio], 107. See Steketee v. convey a meaning different from their 
 Kimm, 48 Mich. 322. And as to ordinary meaning; having done so, the 
 Welsh words, see what is said in i witness may then be asked: "What 
 W. Saund. 242, note i. See § 530, post. did you understand," &c. (Daines v. 
 
 2 Smart v. Blanchard, 42 N. H. Hartley, 3 Ex. 200; 11 Law Times, 
 137; Wright V. Paige, 36 Barb. 438; 271; see 2 Starkie on Libel, 52; 
 Gibson v. Williams, 4 Wend. 320 ; Fleetwood v. Curley, Hob. 267. See 
 Van Vechten v. Hopkins, 5 Johns, post, Construction, § 140, and Evi- 
 21 1 ; Cresinger v. Reed, 25 Mich. 250. dence, § 384.) 
 
86 PUBLICATION. [CH. VI. 
 
 publication is material to be observed, as it marks the 
 boundary line between slander and libel. That alone is a 
 libel which "has an existence/^;' se off the tongue."^ 
 
 § 99. Where the language has not been reduced to 
 writing, its communication from one to another cannot be 
 other than an oral publication. Where the language has 
 been reduced to writing, its communication from one to 
 another may, according to the circumstances of the com- 
 munication, amount to either an oral publication or a pub- 
 lication in writing. 
 
 § 100. As respects oral language, speech, we must dis- 
 tinguish between the sound itself and- the signification of 
 the sound. As respects language in writing, we must dis- 
 tinguish between the writing, z. e., the paper, or other sub- 
 stance written upon ; the writing, z. e., the characters in- 
 scribed upon the paper or other substance written upon^ 
 and the signification of those inscribed characters, the sub- 
 ject-matter of the writing. 
 
 § loi . The possession of a writing, the material written 
 upon, may be parted with, and the writing itself, the ma- 
 terial written upon, may be passed from hand to hand 
 without any communication of either the characters in- 
 scribed upon such material written upon, or of the signifi- 
 cation of such characters. As, for example, the delivery 
 of a sealed letter to another. Such a parting with the 
 writing does not of itself, and without more, amount to a 
 publication of any kind. Thus where a folded letter was 
 delivered to a third person to deliver to him whom the' 
 subject-matter of the letter concerned, and the third person: 
 delivered the letter as addressed, without reading its con- 
 tents, it was held that there was not any publication to 
 such third person.'' But if a messenger open and read a 
 
 ' Holt on Libel, 254. Throwing a sealed letter, addressed' 
 
 2 Clutterbuck v. Chaffers, i Stark, to the plaintiff or a third person, inta 
 
 Rep. 471. the inclosure of another, who ddivera 
 
§§ I02-I04.] PUBLICATION. 8/ 
 
 letter intrusted to him to carry, his reading it would be a 
 publication to him, and it would be no defense to say the 
 sender did not intend that the messenger should read the 
 letter.^ 
 
 § 1 02. The characters inscribed upon a paper may be 
 communicated by one to another without any parting with 
 the possession of the writing, the material written upon, 
 itself ; as by an exposure of the writing, the material 
 written upon, in such a manner as that the characters in- 
 scribed upon it may be seen and read by another. 
 
 § 103. The subject-matter of a writing, the significa- 
 tion of the characters inscribed upon a paper, may be 
 communicated orally by one to another ; and if this be 
 done without any parting with the possession of the writ- 
 ing itself, and without any exposure of such writing to 
 any other person — as where one reads the contents of a 
 writing to another without parting with the writing itself, 
 and without permitting the other to read the contents of 
 such writing — this we suppose would amount only to an 
 oral publication.* 
 
 § 104. Parting with the possession of a writing, the 
 material written upon, in such a condition and under such 
 circumstances as that the characters inscribed upon it may 
 
 it unopened to the plaintiff himself, the defendant avowed himself the 
 
 is not a publication. (Fonville v. author of it. (Fonville v. M'Nease, i 
 
 M'Nease, l Dudley [So. Car.]. 303, and Dudley [So. Car.], 303.) 
 
 see Bumstein v. Davis, 7 L. N. 378 * Fox v. Broderick, 14 Irish Law 
 
 [Quebec].) Rep. 453 ; RoUand v. Batchelder, 5 
 
 Sending to the person whom the So. East. Rep. 695. Baron Pollock 
 
 writing concerns, a closed (sealed) held that defendant having the letter 
 
 letter is no publication ; and a letter is copied by his clerk before mailing, 
 
 always to be understood as being so was a publication. See note to § 349, 
 
 closed, unless otherwise expressed, post. 
 
 (Lyle z/. Clason, I Caines, 581 ; Phil- 2 The writer's reading to a stranger 
 
 lips V. Jansen, 2 Esp. 625 ; see i W. his letter to the plaintiff, before dis- 
 
 Saund. 132, note 2 ; Spaits v. Pound- patching it, is a publication. (Snyder 
 
 stone, 87 Ind. 522.) v. Andrews, 6 Barb. 43; McCoombs 
 
 Nor would it amount to a publica- v. Tuttle, S Blackf. 431 ; Van Cieef v. 
 
 tion, though the plaintiff afterward re- Lawrence, 2 City Hall Recorder, 41.) 
 
 peated the contents of it publicly, and Query, the kind of publication. 
 
88 PUBLICATION. [CH. VI. 
 
 be and are seen and read and understood by another, is a 
 publication in writing. It amounts to a publication if or 
 provided the subject-matter be read and understood.' 
 
 § 105. An exposure by one person to another of a 
 writing, the material written upon, without parting with 
 the possession of such writing, but permitting the writing, 
 the characters inscribed, to be read by the other, is a pub- 
 lication in writing. 
 
 § 106. Effigy resembles a writing, the material written 
 upon, as distinguished from the subject-matter of a writing. 
 An exposure of an effigy or a parting with the possession 
 of it in such a condition that it may be seen by another is 
 a publication.* 
 
 § 107. The requisites of an oral publication are: (i) 
 that the language be spoken to or in the presence of at 
 least some one third person (§ 95). No possible form o\ 
 
 ' RoUand v. Batchelder, 5 So. lishing of it, and he prints and pub- 
 East. Rep. 695. Posting a writing in lishes it in that publication, A. is the 
 a public place, and taking it down publisher, and liable to an action, 
 before any one had read it, would not (Burdett v. Cobbett, S Dowl. 301 ; see 
 be a publication. 2 Starkie on Libel, Bond v. Douglass, 7 Car. & P. 626.) 
 1 6, note «. See § 124, ;«oj^, and note. Printing, .... unless quali- 
 
 A publication by delivery of letters fied by circumstances, is prima facie 
 containing the defamatory matter, or a publishing; the manuscript must be 
 by posting the writing on a church delivered to the compositors. (Bald- 
 door, is termed constructive publica- win v. Elphinstone, 2 W. Black Rep. 
 tion in Baldwin v. Elphinstone, 2 W. 1037 ; Holt on Libel, 293 ; Trumbull 
 Black. Rep. 1037, referring to Rastell's v. Gibbons, 3 City Hall Recorder 
 Entries, tit. Action sur le case, 13. 97.) Plaintiff was in employ of de- 
 Mailing held a publication. (Rex v. fendant, a corporation, and was dis- 
 Burdett, 3 Barn. & A. 717.) charged. Defendant had a discharged 
 
 By section 17 of statute 38 Geo. list on which was placed the name of 
 
 III, ch. Ixxviii, the printer or publisher piaintifF with the cause of his discharge 
 
 of every newspaper, or other such and copies of this list was sent to the 
 
 paper, was required to deliver a copy Heads of Departments in plaintifPs 
 
 of the paper at the stamp office, and it business, held a publication. (Bacon 
 
 was held that such delivery was a v. Mich. Cent. R. R. 55 Mich 224 ) 
 publication. (Rex v. Amphlit, 4 B. & 2 The civil law makes a distinction 
 
 Cr. 35.) not only between oral and written de- 
 
 If A. sends a manuscript to the famation but between a publication 
 
 printer of a periodical publication, and by writing and by pictures. (Heinec- 
 
 does not restrain the printing and pub- cius, lib. 47, tit. 10.) 
 
§ I08.] PUBLICATION, 89 
 
 words can be the basis of an action for slander if at the 
 time of their utterance the only persons present are the 
 speaker and the person to whom or whose affairs the lan- 
 guage concerns.^ (2) The third person present must hear 
 the language spoken.^ Whether the third person present 
 at the speaking did or did not hear the language spoken 
 is, in every case, a question of fact. And this is not the 
 less the rule because where the speaking is in the presence 
 of a third person, under such circumstances that he might 
 have heard what was spoken, he may, as a rule of evidence, 
 be assumed to have heard it, until it be shown that he did 
 not hear.^ The burden is on him who alleges a publica- 
 tion to establish that the third person heard the language 
 spoken. (3) The third person must understand the lan- 
 guage (§ 96). When hereafter we speak of an oral publi- 
 cation, or a publication orally, we shall intend a publica- 
 tion with the requisites above mentioned. 
 
 § 108. The requisites of a publication in writing are 
 (i) that the writing, the material written upon, be so ex- 
 posed as that the subject-matter of the writing is read by 
 at least some one third person (§ loi). No possible form 
 of language in writing can be the basis of an action forli- 
 bel if read only by the writer and the person whom or 
 whose affairs the language concerns.* (2) The subject- 
 
 ' Uttering slanderous words in the ing of others. (Watts v. Greenlee, 2 
 
 presence of the person slandered only Dev. 115; Viner's Abr. tit. Actions for 
 
 is not actionable. (SheffiU v. Van W^ords, L, iJ, 4; contra. Desmond v. 
 
 Deusen, 13 Gray, 304; Broderick v. Brown, 33 Iowa, 13. See Goodrich 
 
 James, 3 Albany Law J. 232; Haile v. v. Warner, 21 Conn. 432; i Hilliard 
 
 Fuller, 5 Sup. Ct. Rep. [T. & C] 716; on Torts, 319, note.) In slander it is 
 
 S. C. 2 Hun, 519; Desmond v. Brown, sufficient if the words are said to have 
 
 33 Iowa, 1 3 ; Heller v. Howard, 1 1 been spoken " in the presence " of 
 
 Bradw. [111.] 554 ; and see note to others (Brown v. Brashier. 2 Penn. 
 
 I95, a«/^.) [Penrose & Watts], 114), or in the 
 
 *'' If none heard the words it is no presence and hearing of divers per- 
 
 slander." (Viner's Abr. tit. Actions sons, or of certain persons named, 
 
 for Words, L, *, 4; and see cases cit- (Burbank v. Horn, 39 Maine, 233 ; and 
 
 ed, I Caines R. 582.) see i W. Saund. 242, n. i ; see § 324, 
 
 » The word "publish," as applied post>, , , , , 
 
 to speech, implies that the language * But delivery to the party libeled 
 
 was spoken in the presence and hear- is a sufficient publication to support 
 
90 
 
 PUBLICATION. [CH. VI. 
 
 matter of the writing must be understood by at least some 
 one third person by whom it is read (§ 96). When here- 
 after we speak of a publication in writing, we shall intend 
 a publication with the requisites above mentioned. 
 
 § 109. The publication must be prior to the com- 
 mencement of the action, and a publication prior to the 
 commencement of the action should be proved.^ Where 
 a witness called to prove publication was unable to say 
 whether the speaking the words referred to was before or 
 after the date when the action was commenced, it was de- 
 cided that his testimony was not admissible.^ But it was 
 held not to be a ground for arresting the judgment that it 
 appeared on the face of the record that the writ issued 
 prior to the alleged publication.^ 
 
 § 1 10. The place of publication may be within or with- 
 out the territorial limits of the State or country within 
 which redress is sought. The decisions, so far as they go, 
 all hold, that as a question of jurisdiction, it is immaterial 
 whether the publication was within or without the terri- 
 torial limits of the State or country within which redress 
 is .sought, and this on the ground that the wrong follows 
 the person, and may be redressed by civil action in any 
 court having jurisdiction of the person at the time redress 
 is sought. It is conceded, however, that as regards crimes 
 no redress can be had in one State for a crime enacted 
 within the territorial limits of another State, because a 
 crime is a violation of the law of the State within which it 
 
 an indictment. (Philips v. Jansen, 2 note to § 396, /cj^. Where the com- 
 
 Esp. 624.) The moment a man de- plaint alleged that the words were 
 
 livers a libel from his hand and ceases spoken in the year 1871, it was held 
 
 to have control over it, there is an end equivalent to an allegation of a publi- 
 
 oi\a% locus penitentia, Xhe. injuria is cation prior to the commencement of 
 
 complete. (Holroyd, J., Rex v. Bur- the action. (Sonneborn v. Bernstein,, 
 
 dett, 4 B. & Aid. 143.) 49 Ala. 168; see § ^27, post.) 
 
 1 Taylor v. Sturgingger. 2 Rep. 2 Steward v. Layton, 3 Dovvl. Pr. 
 
 Con. Ct. 367 ; Phila &c. R. R. v. Cas. 430. 
 
 Quigley, 21 How. U. S. Rep'. 202; Lip- a Scovel v. Kingsley, 7 Conn. 284. 
 
 prant v. Lipprant, 52 Ind. 273; see 
 
§ no.] 
 
 PUBLICATION. 
 
 91 
 
 is enacted. This concession seems to imply that for a 
 wrong committed in one State there can be no remedy in 
 another; because the right to remedy is based on a viola- 
 tion of some general prohibition of the law, and not like a 
 remedy on contract for a breach of a private convention 
 between the parties, which of course follows the persons of 
 the parties to the convention.' The effect of the place of 
 
 > Mr. Stephens, in his " Treatise 
 on Criminal Law," insists that a crime 
 and a tort differ only as regards their 
 consequences. 
 
 No court " administers justice in 
 general" (De Bode v. Reg. 13 Ad. & 
 El. N. S. 386), and " the laws of a 
 State have no force propria vigore 
 beyond its territorial limits." (Hoyt 
 V. Thompson, 5 N. Y. 340.) " If two 
 persons fight in France, and both hap- 
 pening casually to be here [in Eng- 
 land], one should bring an action of 
 assault against the other, it might be 
 doubtful whether such an action could 
 be maintained here [in England]. 
 • ■ It might perhaps be triable only 
 where both parties at the time were 
 subjects." (Mostyn v. Fabrigas, 20 
 State Tr. 82 ; I Smith's Leading Cas- 
 es.) In Molony v. Dows (8 Abb. Pr. 
 R. 316) it was held at nisi prius, but 
 after elaborate argument and deliber- 
 ation, that an action for an assault in 
 California could not be maintained in 
 the courts of the State of New York. 
 In Mclvor v. McCabe (16 Abb. Pr. R. 
 319), it was held that the courts of 
 New York had jurisdiction of an ac- 
 tion for a personal injury committed 
 in New Jersey by one citizen of that 
 State upon another. As to action for 
 tort committed in a foreign country, 
 see Scott v. Seymour, 6 Law Times 
 Rep. N. S. 607; I Hurt. & Colt. 219 ; 
 32 Law Jour. Ex. 6i ; DeWitt v. Bu- 
 chanan, 54 Barb. 31. "As a general 
 rule, in order to found a suit in Eng- 
 land for a wrong alleged to have been 
 committed abroad, two conditions 
 must have been fulfilled. First, the 
 wrong must be of such a character 
 that it would have been actionable if 
 committed in England. • " • Sec- 
 ondly, the act must not have been justi- 
 
 fiable by the law of the place where it 
 was done. (Phillips z*. Eyre, Law Rep. 
 6 O. B. 29; and see S. C. Law Rep. 4. 
 Q. B. 225 , The M. Moxam, Law. Rep. 
 I Prob. & Div. 107; Barry 7/. Fisher, 
 39 How. Pr. R. 521 ; Newman v. God- 
 dard, 5 Sup. Ct. Rep. [T. & C] 299; 
 S. C. 10 Sup. Ct. Rep. [3 Hun], 70; 48 
 How. Pr. R. 363; Klumph v. Dunn, 
 66 Penn. St. 141 ; Carter v. Goad, 6 
 So. West, Rep. 719 [Ark.] ; Hastings 
 V. Stetson, 126 Mass. 329; Robinett 
 V. McDonald, 6; Cal, 612; Austin v. 
 Bacon, 19 N. Y. St. Rep. 662; § 159, 
 postal 
 
 " Of matters arising in a foreign 
 country, pure and unmixed with mat- 
 ters arising in this country, we have 
 no proper original jurisdiction, but of 
 such matters as are merely transitory 
 and follow the person, we acquire a 
 jurisdiction by the help of that fiction 
 to which I have already alluded [the 
 fiction of laying the venue], and we 
 cannot proceed without it." (Eyre,. 
 Ch. J., Ilderton v. Ilderton, 2 H. Bl. 
 14s, 162.) As to torts committed at 
 sea. (Percival v. Hickey, 18 Johns. 
 257; Novion V. Hallett, 16 /i^. 327; 
 Wilson v. McKenzie, 7 Hill, 95 ) 
 
 Courts may refuse to entertain ju- 
 risdiction of torts committed out of 
 the State. (Burdock v. Freeman, 27 
 N. Y. Week. Dig. 313; 46 Hun, 138; 
 10 N. Y. St, Rep. 756.) 
 
 To maintain an indictment for li- 
 bel, the publication must be proved to 
 have been made in the county laid in 
 the indictment, all matters of crime 
 being local. (Holt on Libel, 299, cit- 
 ing Rex V. Johnson, 7 East, 65.) In 
 Trumbull v. Gibbons, 3 City Hall Re- 
 corder, 97, the libel was printed in 
 Boston and published in New Jersey, 
 but it was held the courts of New 
 
92 
 
 PUBLISHER. 
 
 [CH. VI. 
 
 publication upon the construction of the language pub- 
 lished, and as a question of venue, and as affecting the lia- 
 bility, will hereafter be considered. 
 
 § III. The person who makes a publication is a pub- 
 lisher. In the text-books, and in reference to slander and 
 libel, the term publisher is employed sometimes to signify 
 the person who actually makes a publication, and some- 
 times the person who, not being the actual publisher, is 
 liable for the publication — is liable as publisher. We shall 
 always employ the term publisher in the sense of and to 
 signify the person who actually makes the publication. 
 
 § 1 1 2. Republication is a second or subsequent publi- 
 cation of the same language. Repetition is a publication 
 of language of the same im.port or meaning, as the Ian- 
 
 York had jurisdiction; and see Glen 
 V. Hodges, 9 Johns. 76; Smith v. 
 Bull, 17 Wend. 323; Johnson v. Dal- 
 ton, I Cowen, 548 ; Gardner v. Thom- 
 as, 14 Johns. 134. 
 
 If a citizen of New Yorlc goes into 
 Canada and slanders his neighbor, an 
 action will lie in the State of New 
 York. (Lister v. Wright, 2 Hill, 320 ; 
 Hall V. Vreeland. 42 Barb. 543; 18 
 Abb. Pr. R. 182; Bree v. Marescaux, 
 7Q. B.D. 434) 
 
 An action for slander will lie, in 
 Indiana, for words, actionable at com- 
 mon law, spoken in another State. 
 (Offut V. Earlywine, 4 Blackf. 460; 
 Linville v. Earlywine, 4 Blackf. 469 ; 
 Stout 7/. Wood, I Id.Ti.) And the 
 same in Vermont. (Langdon v. 
 Young, 33 Vt. [4 Shaw], 136.) 
 
 It will be presumed until the con- 
 trary appears, that the words were 
 spoken in the State in which the ac- 
 tion is brought. (Worth v. Butler, 7 
 Blackf. 251.) 
 
 It is sometimes necessary to show 
 a pubhcation in a particular county. 
 Where the defendant wrote letters in 
 Ireland, and sent them to Middlesex 
 county, England, to be printed and 
 published, and the letters were there 
 published, it was held to be a publica- 
 tion by the defendant in Middlesex 
 
 county. (Rex v. Johnson, 7 East, 65 ; 
 and to the like effect. Rex v. Middle- 
 ton, Str. JJ \ Kiene v. Ruff, i Clarke 
 [lowal, 482.) Where A. wrote a letter 
 and sent it by mail to B., in the county 
 of B., and it was again sent to the 
 county of M., at which county B. re- 
 ceived and read it, held to be a publi- 
 cation in the county of M. (Rex v. 
 Watson, I Camp. 215; and see Rex v. 
 Girdwood, East's P. C. 1 16, 1 120 ; Case 
 of the Seven Bishops, 4 State Trials, 
 304: Rex V. Burdetti 4 B. & Aid. 95; 
 2 Starkie on Slander, 39-43; Com- 
 monwealth V. Blanding, 3 Pick. 304.) 
 A newspaper printed in Montreal and 
 mailed in Quebec, is published in Que- 
 bec. (Irvine v. Duvernay, 4 Queb. L. 
 R. 85.) 
 
 In an action for suspending a lamp 
 before the plaintiff's house, intimating 
 that it was a house of ill-fame, held 
 that the parish in which the declara- 
 tion states the house to have stood 
 and the tort to have been committed, 
 was to be considered as venue merely, 
 and not as local description, and it 
 was immaterial whether there was any 
 such parish in existence. (Jeffries v. 
 Duncombe, 2 Camp. 3 ; 11 East, 226. 
 And see Mersey Navigation Company 
 V. Douglas, 2 East, 497.) 
 
§§ 113, II4-] PUBLISHER. 95 
 
 guage of a previous publication.^ Repetition is a subse- 
 quent publication independent and distinct from the first 
 publication. There may be a republication of a writing, 
 i. e. a publication of the material written upon, with the 
 writing thereon, and there may be a repetition of the sub- 
 ject-matter of a writing, also there may be a repetition of 
 oral language (speech), but there cannot be a republication 
 of oral language. 
 
 § 113. Speech is but sound, a mere vibration of the 
 atmosphere, cognizable only by the auditory sense. From 
 its nature it necessarily follows that the same sound cannot 
 be repeated ; a similar or a like sound may be produced, 
 undistinguishable in every respect from the first, and of 
 the like character and signification, but that will not be 
 the same sound. One who repeats a word previously 
 spoken does not utter the identical word, but a similar or 
 like word : he repeats a like sound of the same significa^ 
 tion as the first. The two sounds are separate and distinct, 
 although each has the same meaning. Hence each pub- 
 lication of oral language is a new, distinct, and separate 
 publication. 
 
 § 114. As respects oral publications, the person who 
 actually makes the publication, the publisher, and the 
 person liable as the publisher, must be always one and the 
 same person. Every speaker is the publisher of what he 
 speaks, and is solely liable therefor. That the words 
 spoken have been previously published by another, can 
 neither relieve the subsequent speaker from his liability 
 for the publication made by him, nor impose any liability 
 on the previous publisher. The act of publication is, as to 
 each publisher, an entirely distinct act. Each person can 
 
 > Every publication of the same Where defendant, after judgment 
 
 matter is a distinct injury for which against him for one publication, malces 
 
 action lies. (Woods v. Pangbum, 75 a republication, he is liable therefor. 
 
 N. Y. 495; rev'g S. C. 14 Hun, 540.) (/</.) 
 
94 PUBLISHER. [CH. VI. 
 
 be liable only for the publication made by him.^ If one 
 makes an oral publication, and another repeats it, without 
 authority from the first speaker, the first publisher is not 
 liable for the repetition." Besides that, the repetition is 
 not a repetition of the same language (§ 113), the repeti- 
 tion is neither a necessary nor a natural and proximate 
 consequence of the first publication. It is not an excep- 
 tion, but a corollary of this rule, that where the repetition 
 is privileged, the author of the defamation is liable for the 
 consequences of such privileged repetition. The repetition 
 is a natural consequence of the first publication. Thus, 
 where the defendant made a defamatory communication 
 to A. respecting the plaintiff, in the employment of his, 
 A.'s wife, which A. repeated to his wife, who in conse- 
 quence dismissed the plaintiff from her service, held that 
 the defendant was liable for the damages occasioned by the 
 dismissal.^ 
 
 § 115. As respects a publication by writing, a libel, not 
 only the publisher but all who in anywise aid or are con- 
 cerned in the production of the writing are liable as pub- 
 lishers; the publication of the writing is the act of all 
 concerned in the production of the writing (§ 113). 
 Thus, if one composes and dictates, a second writes, and 
 
 » See a case where several partners B. D. 434-7; Dicken v. Shephard, 22 
 
 slandered a fellow-partner. (Gilbert Md. 399.) Query. If the first publish- 
 
 V. Chrystal Fountain Lodge, 4 So. er requests a repetition. (Keenholts 
 East. Rep. 995 [Ga.].) - v. Beeker, 3 Denio, 346, and § 67 ante.) 
 
 2 Where A. uttered a slander of B. But the person who originates the 
 
 the wife of C, and B. repeated the slander can be liable only for the 
 
 slander to C, in consequence of which special damage occasioned by his own 
 
 C. refused to cohabit with B., held communication of it. (Gates v. Kel- 
 
 that no action could be maintained logg, 9 Ind. 506; Dixon v. Smith, S 
 
 against A.; the publication was not Hurl. & Nor. 450; Fowler v. Bowen, 
 
 A.'s, and A. was not responsible for 30 N. Y. 20 ; Ward v. Weeks, 7 Bing. 
 
 the consequences of it. (Parkins v. 211; Cochran v. Butterfield,' 18 New 
 
 Scott, 6 L. T. N. S. 394; s. C. Perkins Hamp. 115.) But see Bassell v. El- 
 
 ■V. Scott, I Hurl. & Colt. 153; § 202, more, 48 N. Y. 561. 
 
 post; and see Tunnicliflfe v. Moss, 3 s Derry w Handley, 16 Law Times, 
 
 C. & K. 83; Bree v. Marescaux, 7 Q. N. S. 263; and, sec post, § 202. 
 
§^i5.J 
 
 rUBLISIIER. 
 
 95 
 
 a third publishes, all are liable as publishers, and each is 
 liable as a publisher.^ 
 
 • All concerned in making a libel 
 are alike liable. "The law denomi- 
 nates them all makers.'' (Holt on 
 Libel, 288, 289; 2 Starkie on Slander, 
 225; Bishop's Crim. Law, § 931 [814], 
 citing Rex v. Drake, Holt, 425; Rex 
 V. Paine, 5 Mod. 163; Rex v. Bear, 
 Carth. 407 ; Rex v. Williams, 2 Camp. 
 646.) "All persons who concur and 
 show their assent or approbation to 
 do an unlawful act, are guilty ; so that 
 murdering a man's reputation by a 
 scandalous libel may be compared to 
 murdering his person; and if several 
 are assenting and encouraging a man 
 in that act, though the stroke was 
 given by one, yet all are guilty of 
 homicide." (Quoted by Kent, Ch. J., 
 in Dale v. Lyon, 10 Johns. 461 ; Coch- 
 ran V. Butterfield, 18 New Hamp. 1 1 5.) 
 See § 383, post. 
 
 Where a newspaper is owmed by a 
 corporation, one who is merely an 
 officer thereof cannot be held respon- 
 sible individually for a libellous publi- 
 cation made without his knowledge or 
 direction, but if he was engaged in the 
 general management [of the business 
 or newspaper] he would be liable. 
 (Penn. Sup. Ct., Feb. i, 1886, Nevin 
 V. Spieckemann, Opinion per Curiam, 
 30 Alb. L. J. 56.) 
 
 The publisher is equally responsible 
 with the author of a libel. (Dexter v. 
 Spear, 4 Mason, 115.) Printer and 
 editor are both liable. (Watts v. Fra- 
 ser. 7 Car. & P. 369; Rex v. Dover, 
 16 Charles H, 2 St. Tr. 547, Har- 
 greaves' ed.) The proprietor of a 
 newspaper is liable for defamatory 
 matter, published in the form of an 
 advertisement in his paper, although 
 others are also liable for the same 
 pubhcation (Harrison v. Pierce, i 
 Fos. & Fin. 567) ; and the author of a 
 libel may be sued for its publication, 
 notwithstanding that the publisher of 
 the libel has been sued in respect of it. 
 (Frescoe v. May, 2 Fos. & Fin. 123.) 
 The responsibility of the writer-of a 
 private letter for the publication of its 
 contents, is not limited to the conse- 
 quences of a communication of them 
 
 to the person to whom the letter is 
 addressed, but extends to the probable 
 consequences of thus putting the letter 
 in circulation. (Miller v. Butler, 6 
 Cush. 71; see Bassell v. Elmore, 48 
 N. Y. 561.) 
 
 Where, in case for oral and written 
 slander, to support the count on the 
 latter, a reporter to a newspaper was 
 called, who proved that he had written 
 down from the defendant's mouth 
 (who said at the time it would make a 
 good case for the newspapers) the 
 statement which he afterwards sent to 
 the editor, and that a paragraph, 
 which afterwards appeared, was in 
 substance the same, held, that what 
 was so published in consequence of 
 what passed with the defendant, might 
 be considered as published by the 
 defendant ; but to prove that what was 
 published was the same as that given 
 to the editor by the reporter, could 
 only be done by producing the written 
 paper itself. (Adams v. Kelly, i Ry. 
 & M. 158) See Clay v. The State, 86 
 111. 147; Clifford V. Cochrane, 10 Brad- 
 well (111.), 577. 
 
 Two persons having participated 
 in the composition of a libelous letter 
 written by one of them, which was 
 afterwards put into the post-office, and 
 sent by mail to the person to whom it 
 was addressed ; such participation was 
 held to be competent and sufficient 
 evidence to prove a publication by 
 both. (Miller z/. Butler, 6 Cush. 71; 
 and see Reg. v. Cooper, 1 5 Law Jour. 
 Rep. Q. B. 206; 8 Q. B. 533; Parkes 
 V. Prescott, Law Rep. 4 Ex. 168.) 
 One who writes an article in English, 
 and employs another person as his 
 agent to translate it into German and 
 publish it, will be liable if the German 
 article so published is libelous, al- 
 though the translation is inaccurate. 
 (Wilson V. Noonan, 27 Wis, 598.) In 
 Kentucky, instigators of slander may 
 be sued jointly with the utterer of the 
 slander. (Pauley v. Drain, 6 So. 
 West. Rep. 329.) (The slanderer was 
 ' about 12 years old.) 
 
96 PUBLISHER. [CH. VI. 
 
 § 116. The mere composing or writing any certain 
 form of words, and keeping the writing and its contents 
 confined to the custody and to the knowledge of the com- 
 poser or writer, so that it is not communicated to any 
 other person, does not render the composer or writer liable 
 either to indictment or to civil action, for there is no pub- 
 lication. So, having or retaining possession of a writing, 
 no matter by whom written, cannot amount to a wrong 
 by the person so having or retaining possession of such 
 writing ; for as to him, at least, there is no publication.* 
 The composer and the writer of matter which is afterwards 
 published is liable as publisher for such publication.* And 
 this liability, as we suppose, is not to be qualified by the 
 circumstances under which the publication occurred. It 
 would be no excuse to say that the writing was kept 
 guarded and concealed, and was taken from him by force, 
 or obtained from him by fraud or by the procurement of 
 the party by whom or whose affairs it concerns.* If the 
 matter written is of an injurious tendency, and any injury 
 ensues from its publication, the composer and the writer 
 are liable, not because of any imputed or presumed malice 
 in making the publication, but because, unless such a 
 writing had been created, the injury occasioned by it could 
 
 > Until publication, possession of bett, 5 Dowl. 301 ; Giles v. The State, 
 
 a libel is no more than the possession 6 Ga. 276. 
 
 of a man's thoughts. (Rex v. Almon, » Where the plaintiff sent his agent 
 
 5 Burr. 2689.) So long as the writer to the office of the defendant, the 
 
 retains possession of the writing, he publisher of a newspaper, to purchase 
 
 has a locus pceniteniiee ; but "The a copy of the paper, held that a sale 
 
 moment a man delivers a libel from to such agent was a publication to a 
 
 his hands, and ceases to have control third person. (Brunswick v. Harmer, 
 
 over it, there is an end to his locus 14 Q. B. 185; see King v. Waring, 5 
 
 poenitentice; the injuria is complete, Esp. Cas. 13; Thorn v. Moser, I De- 
 
 and the libeler [the writer] may be nio, 488 ; Griffiths v. Lewis, 7 Ad. & 
 
 called upon to answer for his act." El. N. S. 61 ; contra, see Sutton v. 
 
 (Rex V. Burdett, 4 B. & Aid. 143, Hoi- Smith, 13 Miss. 120; Smith v. Wood, 
 
 royd, J. : and see 5 Mod. 167 ; Holt on 3 Camp. 323 ; Allen v. Crofoot, 2 Wend. 
 
 Libel, 294 ; 2 Starkie on Slander, 228 ; 515; Gordon v. Spencer, 2 Blackf. 286 ; 
 
 Rex V. Rosenstein, 2 Car. & P. 414.) Hays v. Leland, 29 Maine [16 Shep.], 
 
 2 Holt on Libel, 289; Bond v. 233; and see in notes to §§ 121, 123, 
 
 Douglass, 7 C. & P. 626 ; Miller v. post.) 
 Butler, 6 Cush. 71 ; Burdett v. Cob- 
 
§ II7-J PUBLISHER. 
 
 97' 
 
 not have happened ; creating the writing and preserving 
 it were wrongful acts, for the necessary or natural and 
 proximate consequences of which the authors are liable, 
 on the general principle that a wrong-doer cannot excuse 
 his act, by reason of the act whether rightful or wrongful 
 of others.' 
 
 § 117. The material written upon, and the subject- 
 matter inscribed upon such material, are substantial enti- 
 ties. The very identical writing may be passed from hand 
 to hand, and each such passage is as well a separate and 
 distinct publication as a republication of such writing. 
 Every person concerned in making such a publication is 
 liable not alone for the consequences of that publication, 
 but for the consequences of any subsequent publication of 
 the same writing. One and the same writing may be 
 many times published at the same or at several and dis- 
 tinct places, and may have many publishers; and many 
 persons may be liable as publishers at one and the same 
 time, or at several times. The subject-matter of a writing 
 cannot be republished apart and separate from a republica- 
 tion of the writing, the material written upon. Apart 
 from the material on which the matter is inscribed, it is 
 as impossible to republish the same subject-matter of a 
 writing as it is to republish the same sound of oral lan- 
 guage or speech. If one copies the subject-matter of a 
 writing upon another piece of material, the copy is no 
 more the same subject-matter as the subject-matter copied 
 from, than is the repetition of a sound an uttering of the 
 same sound. The copy is not the same writing, but an- 
 other—a second and independent writing, having the like 
 but not the same subject-matter. A publication of this 
 copy would have no other connection with the original 
 than that it contained the like subject-matter. The per- 
 
 ' Collins w. Middle Level Comm'rs, principle in Scott v. Shepherd, 2 W. 
 Law: Rep. 4 C. P. 279; affirming the Bl. 892. 
 
gS PUBLISHER. [CH. VI. 
 
 sons liable for the publication of the first writing would 
 not be liable for the publication of the second or the copy, 
 and the persons responsible for the publication of the 
 second writing would not be responsible for the publica- 
 tion of the original writing. The publication of the 
 second writing is neither a necessary nor a natural and 
 proximate consequence of the publication of the first writ- 
 ing, nor is a publication of the first writing a necessary or 
 a natural and proximate consequence of the publication of 
 the second writing. It may be urged that but for the pub- 
 lication of the first writing the second might not, or per- 
 haps could not, have come into existence. The author of 
 the second writing could not have possessed the material 
 or knowledge requisite for its production. The same ob- 
 jection would apply, and with equal force, to an oral pub- 
 lication. If the first speaker had not uttered the words, 
 the second speaker could not have repeated them. We 
 know such an objection would be unavailing. Again, it 
 may be urged that the one who dictates the language 
 forming the subject-matter of a writing, which is after- 
 wards published by another, is responsible for such publi- 
 cation, either solely or jointly with the publisher, or that 
 the writing first published is equivalent to a dictation of 
 the language of the second writing ; but this is not so ; 
 the dictation, to incur any responsibility for a subsequent 
 publication of the language dictated, must, we submit, be 
 made with an intent or a request that the language so dic- 
 tated shall be subsequently published (§§ 114, 1155, 118, 
 202, 210). 
 
 § 118. There may be a joint publication by writing, 
 but, for the reasons heretofore stated (§ 113), there can- 
 not be a joint oral publication. If two or more utter the 
 like words, either simultaneously or separately, it is not a 
 joint publication, but a several publication by each, for 
 which each must be sued separately, and for which they 
 
§ii8.J 
 
 PUBLISHER. 
 
 99 
 
 cannot be sued jointly.^ Within this rule husband and 
 wife are considered as separate individuals. If husband 
 and wife utter the like words, either simultaneously or 
 separately, there are two publications — a separate publica- 
 tion by each (§ 304). For the words uttered by the hus- 
 band he must be sued alone ; for the words uttered by the 
 wife, the husband and wife must be sued together.^ Two 
 or more may agree together (conspire) in composing a 
 set of words which one or both shall speak ; that is to say, 
 two or more may conspire to injure another by an oral 
 publication of language ; for this the remedy would be, 
 not an action for slander, but an action for a conspiracy 
 to defame.* 
 
 ' A joint action cannot be main- 
 tained agfainst two or more persons for 
 slander. (Webb v. Cecil, 9 B. Mon. 
 198; Forsyth v. Edminston, 2 Abb. 
 Pr. R 431: 5 Duer, 653; Chamber- 
 laine v. Willmore, Palm. 313; i Bulst. 
 15; 2 W. Saund. U7a; The State v. 
 Roulstone, 3Sneed, 107; 2Bish. Crim. 
 Pro. § 766 ; Patten v. Gumey, 17 
 Mass. 182; Heard on Libel, 222, note 
 I ; Chamberlain v. White, Cro. Jac. 
 647 ; Burratt v. Collins, 10 Moore, 451 ; 
 Carrier v. Garrant, 23 Up. Can. C. 
 P. R. 276; Donaghue v. Gaffy, 53 
 Conn. 43; 54 Conn. 257; Gilbert v. 
 Crystal Fountain Lodge, 4 So. East. 
 Rep. 90s (Ga.) ; Shurtleff v. Stevens, 
 51 Vt. 501; 37 Alb. L. J. 227.) "It 
 is an established rule, both here and 
 in England, that two persons cannot 
 join as pursuers in an action of cal- 
 umny; but if defamatory language is 
 published of partners in trade, where- 
 by they are injured in their trade, a 
 joint action will lie at the suit of the 
 partners; and, upon an extension of 
 the same principle, it has been deter- 
 mined that a body corporate or an as- 
 sociation of individuals may be injured 
 by scandal, and may accordingly pros- 
 ecute for redress of it. Society of So- 
 licitors V. Robertson, November 16, 
 1781, Mor. 13, 935; Shearlock v. 
 Beardsworth, December 20, 1 8 16, 2 
 
 Mur. Rep. 19." (Borthwick on Libel, 
 174.) It is impossible for three men 
 to make arbitrament by word of mouth, 
 because it cannot be jointly pro- 
 nounced. (Lawson's Case, Clayt. 17, 
 A. D. 1663; and see Billings v. Rus- 
 sell, 8 Boston Law Rep. N. S. 699; 
 Hinkle v. Davenport, 38 Iowa, 35.) 
 
 2 Tait V. Culbertson, 57 Barb. 9. 
 There must be separate actions for 
 words spoken by a husband and a 
 wife. (Penters v. England, i Mc- 
 Cord, 14; Malone v. Stillwell, 15 Abb. 
 Pr. R. 425 ; Swithen v. Vincent, 2 
 Wils. 227.) Husband and wife may 
 be jointly sued for a libel published by 
 them jointly. (Catterall v. Kenyon, 3 
 Q. B. 310; Keyworth v. Hill, 3 B. & 
 Aid. 685 ) In New York the husband 
 is still (Feb., 1889) liable for the tort 
 of his wife. (Fitzgerald v. Quann, 109 
 N. Y. 441; Genenz v. De Forest, 17 
 N. Y. St. Rep. 523 ; Mangan v. Peck, 
 19 Id. 78.) And so in Pennsylvania. 
 (Quick 7/. Miller, 17 The Reporter, 379. 
 Apr. 1883.) Husband and wife can- 
 not sue jointly for slander. (Parsons 
 on Contracts, vol. i, pt. i, ch. i, p. 20, 
 3d ed; see Parties, §§ 301, 304. post. 
 
 » See 2 Hilliard on Torts, 444, 558, 
 n.; Hood v. Palm, 8 Barr (Pa. St.) 237 ; 
 Haldeman v. Martin, 10 Id. 369; Stiles 
 V. White, 52 Mass. (n Met.) 356. 
 
lOO PUBLISHER. [CH. VI. 
 
 § 119. Where the publication is the joint act of two 
 or more, they may be sued jointly or separately ; if sued 
 separately, the plaintiff can have hut one satisfaction, but 
 may elect de melioribus damnis. Thus, where A. brought 
 an action for libel against B., who pleaded puis darrein 
 continuance., that he was a partner with C. in the printing 
 and publishing the newspaper which contained the libel, 
 and that A. brought a previous action against C. for the 
 same identical publication, and recovered a judgment 
 which had been satisfied, &c. On demurrer this was held 
 a good plea, and that the plaintiff could have but one sat- 
 isfaction, but might elect de melioribus damnis} 
 
 § 120. A publication, the act of publishing, must be 
 upon some occasion (§ 50), and must either be voluntary 
 or involuntary (§ 67), Liability as publisher depends 
 upon the occasion and upon whether, as to the person 
 sought to be charged, the publication was voluntary or 
 involuntary, and generally upon the principles to which 
 reference has heretofore been made (§§ 50, 67, 68, 70). 
 In the text-book and reports much is said on the subject 
 of privileged publications, employing the term publication 
 to mean as well the act of publishing as the matter pub- 
 lished ; and these privileged publications are divided into 
 such as are absolutely privileged and such as are condition- 
 ally privileged. Reserving the subject of privileged pub- 
 lication to be hereafter considered at length, we limit our- 
 selves here to stating that all involuntary (§ 124) and 
 some voluntary publications are privileged. 
 
 § 121. Where a closed paper is given to an employee 
 to deliver to another, it becomes the duty of the employee 
 to deliver such paper as directed, and without inspecting 
 its contents. In making the delivery without ascertaining 
 
 ' Thomas v. Rumsay, 6 Johns. 26; (O. S.) 734; Webb -v. Cecil, 9 B. Mon. 
 Brown t/. Hirley, 5 Up. Can. Q. B. R. 198. See/oj/, §§ 251, 305. ' ' 
 
121. j 
 
 PUBLISHER. 
 
 lOI 
 
 the contents of the paper, he but performs a duty ; and, as 
 the performance of a duty is an involuntary act (§ 39), 
 and cannot amount to a wrong (§ 42), if it happen that 
 the paper contained defamatory matter, the employee 
 should incur no liability. The act of publishing defama- 
 tory matter was as to him involuntary. He did not know 
 and was not under any obligation to know, the contents 
 of the paper carried and delivered by him. He could 
 have known the contents of the paper only by a violation 
 of his duty ; having simply performed his duty, no liability 
 attached to him.^ But if, in such a case, the employee 
 
 > It is not the duty of a carrier to 
 know tiie contents of a paclcage, and 
 he is not liable for its contents. (See 
 36 Alb. L. J. 102.) In Nutt's case, as 
 reported, Barnard. 306, it is said : If a 
 servant carries a libel for his master, 
 he certainly is liable for what he does, 
 though he cannot so much as read or 
 write. Mr. Starkie (2 Starkie on 
 Slander, 29, note /), referring to this 
 dictum, says : " It is impossible not to 
 dissent from this doctrine, so expressed 
 without the qualification added that 
 the servant had some reason to know 
 that he was discharging an illegal 
 mission." That the defendant could 
 not read, and therefore was ignorant 
 of the contents of the paper published 
 may be urged in mitigation. (Rex 
 V. Holt, 5 T. R. 444.) To constitute 
 a publication, such as will render the 
 publisher liable to an action, the pub- 
 lication must be knowingly. (Layton 
 ■v. Harris, 3 Harring. 406.) Inter- 
 national. (Viele V. Gray, 10 Abb. Pr. 
 R. 22; 18 How. Pr. R. 567.) One is 
 not liable for a publication inadvert- 
 ently. (Rex V Abingdon, i Esp. Cas. 
 228.) As by delivering by mistake a 
 paper out of his study. (5 Mod. 167 ; 
 Holt on Libel. 290 ) Or if it be stolen 
 from him. (See Weir v. Hoss, 6 Ala. 
 881; Barrow v. Lewellin. Hob. 62; 
 I Hill, Torts. 321, note 7 ; § 116, ante.) 
 Reading a libel in the presence of 
 another without knowing it before to 
 be a libel, with or without malice, 
 does not amount to a publication. (4 
 Bac. Abr. 458; Holt on Libel, 290.) 
 
 But if he who has either read a libel 
 himself, or has heard it read by another, 
 do afterwards maliciously read or re- 
 peat any part of it in the presence of 
 others, or lend or show it to another, 
 he is guilty of an unlawful publication 
 of it. (Hawk. P. C. ch. 73, § 10; 
 Holt on Libel, 291.) Reading a 
 libel by command of his father or 
 master is not an actionable publication 
 — so said in Comyn's Dig. tit. Libel, 
 B, II, and cited George on Libel, 162. 
 
 If a man delivers by mistake a 
 libelous paper out of his study, he 
 would probably be held liable civilly, 
 for the publication was by his careless- 
 ness. (Mayne v. Fletcher, 4 M. & 
 Ry. 312; 2 Stark. Sland. 30, note z.) 
 
 " The mere act of communicating 
 that which is slanderous will not sub- 
 ject a party even to civil liability with- 
 out some degree of culpability on his 
 part. If, for instance, a servant or 
 agent were in the ordinary course of 
 his duty to deliver a sealed libel, with- 
 out any knowledge of its contents, 
 though he were thus the actual instru- 
 ment of publication, yet if he acted 
 but as the agent of another, without 
 any reason for suspecting that any 
 wrong was intended, he would not 
 subject himself to any civil, still less 
 to any criminal responsibility." (i 
 Starkie on Libel, 226 [227].) 
 
 In an action against the defendant 
 for publishing libels, it appearing that 
 five packets, addressed to individuals 
 and inclosed in one addressed to him, 
 had been received at the coach-office 
 
I02 
 
 PUBLISHER. 
 
 [CH. VI. 
 
 does in fact know the contents of the paper, he cannot ex- 
 cuse himself by saying he carried and delivered it as agent 
 or employee (§ 67). Ordinarily it would be said that the 
 non-liability of the employee, in the instance above put, 
 arose from the absence of malice on his part in making the 
 publication; but this can only mean that he had a legal 
 excuse for performing the act, namely, that the act, so far 
 as it was wrongful, was as to him involuntary. This is the 
 true ground for the decisions in which the non-liability is 
 said to be the absence of malice. Decisions that cannot be 
 explained on this ground were either erroneously decided 
 or decided upon erroneous grounds. The true grouiid for 
 the decision in Smith v. Ashley,^ was, the absence of 
 '■''conscious violation" of law, and the absence of " culpable 
 knowledge^ * The work of fiction published had nothing 
 
 where he was porter, and he delivered 
 them ; held that if the jury found that 
 he did so in the course of his business 
 and in ignorance of the contents, he 
 was not liable; but being prima facie 
 liable, it was for him to show such 
 ignorance. (Day zi. Bream, 2 M. & 
 Rob. 54.) Van Benthuysen v. Slaub, 
 36 La. Ann. R. 467 ; 17 The Reporter, 
 588, was an action for libel against a 
 news-dealer. A boy in the employ of 
 defendant had sold a copy or copies 
 of the paper containing the libel. De- 
 fendant did not show ignorance of the 
 contents of the paper and he was held 
 liable. 
 
 * An action for a libel cannot be 
 maintained against the publisher of a 
 newspaper for the publication of 
 matter not on its face defamatory, if 
 he has at the time of publication no 
 knowledge that the matter is de- 
 famatory. Hence, if he publishes an 
 article which he believes to be a ficti- 
 tious narrative, or mere fancy sketch, 
 and does not know that the article is 
 applicable to any one, he cannot be 
 held responsible, although it was in- 
 tended by the writer to be libelous, 
 and to apply to the party who brings 
 the action. In such" case, the writer 
 only is answerable to the party libeled. 
 
 (Smith V. Ashley, 11 Met. 367.) In 
 Wilson .7/. Stephenson (2 Price, 282), 
 the jury found the words charging 
 plaintiff with being a murderer were 
 spoken by defendant, but not mali- 
 ciously, on which a verdict was ren- 
 dered for the defendant. The court 
 refused a new trial. (See Beehe v. 
 Mo. Pac. R'way, 9 So. West. Rep. 
 449.) In Bromage v. Prosser, i C. & 
 P. 475, Bayley, J., speaking of what 
 he terms "an ordinary action for a 
 libel, "meaning, we suppose, an action 
 in which the publication is not claimed 
 to be privileged, says: " Nor is there any 
 instance of a verdict for the defendant 
 on the ground of a want of malice," 
 and see per Mansfield, Ch. J., in Har- 
 grave v. Le Breton, 4 Burr. 2425. 
 
 One partner in a furniture store is 
 not liable for a libel published without 
 his consent or connivance by another 
 partner. (Woodlingz/. Knickerbocker, 
 31 Minn. 268. With partners in a 
 publishing business it would be other- 
 wise. (Lothrop V. Adams, 133 Mass. 
 471.) When the partners unite, ac- 
 tually or impliedly in the pubhcation, 
 all are liable. (Atlantic Glass Co. v. 
 Paulk, 3 South. Rep. 800.) 
 
 2 See note to § 87, anU. '' He 
 who shall be convicted in the said case 
 
§ 122.] PUBLISHER. 
 
 103 
 
 on its face to indicate that it reflected upon any individual 
 or his affairs ; the publisher did not know, and had no 
 means of knowing, that it reflected on any individual or 
 his affairs ; in so far, therefore, as it did reflect upon any- 
 individual, it was as to the publisher an involuntary act, 
 equally as much as the unconscious delivery by an em- 
 ployee of defamatory matter by the direction of his em- 
 ployer. This subject will be further discussed hereafter, 
 when we come to treat of defenses. 
 
 § 122. Upon the principles of law condensed in the 
 expression respondeat superior^ one is responsible not only 
 for what he does or omits to do in his own proper person 
 but also for all that his agents, within the scope of their 
 authority actual or implied, may do or omit to do in and 
 about his business.^ Every one is charged with the duty 
 to exercise such a vigilance in the selection of agents 
 animate and inanimate, as are competent and adequate to 
 the performance of the business they may be required to 
 transact, and the ends they may be designed to accom- 
 plished; he must exercise such a control over them that in 
 the transaction of his business they neither do nor omit to 
 do any act amounting to a wrong. He cannot escape this 
 liability by omitting to exercise this vigilance ; for such 
 omission is itself negligence. It is upon this principle, and 
 not upon any presumption of malice, that an employer or 
 principal is held responsible for the act of his servant or 
 agent.^ 
 
 either ought to be a contriver of the - Haines v Sepultz, 1 2 Cent. Rep. 
 
 hbel, or a procurer of the contriving of • 806. Legal criminality is merely legal 
 
 it, or a malicious publisher of it, responsibility, and may exist where 
 
 knowing it to be a libel.'''' (9 Co. 59; there is no moral criminality whatever. 
 
 Mo. 813; George on Libel, 107.) (Holt on Libel, 53.) Malice, in legal 
 
 • Mott V. Consumers Ice Co. 73 N. understanding, implies no more than 
 
 Y. 543; Buffalo Oil Co. v. Standard willfulness (Id. 55; note r, p. 67, 
 
 Oil Co. 3 N. Y. St. Rep. 450,453. ante ; Rounds t/. Delaware R. R. Co. 
 
 Absence of knowledge as an excuse 10 Sup. Ct. Rep. [3 Hun], 329) ; and 
 
 see Carr v. James. L. R. 7 Q. B. D. between negligence and willfulness 
 
 135; Reg. f. Holbrook, 39 Law Times there is no difference but of degree. 
 
 Rep. 536. (Bramwell, B., Mangan v. Atterton, 
 
I04 PUBLISHER. [dH. VI. 
 
 § 1 23. The proprietor of a newspaper is responsible for 
 all that appears in its columns, although the publication 
 
 Law. Rep. i Ex. 240.) Negligence 
 embraces acts of commission as well as 
 acts of omission, and diligence implies 
 action as well as forbearance to act. 
 (Grant v. Mosely, 29 Ala. 302.) But 
 the only principle on which a man can 
 be rendered liable for the wrongful 
 acts of another, is that such a relation 
 exists between them that the former, 
 whether he be called principal or 
 master, is bound to control the con- 
 duct of the latter, whether he be agent 
 or servant. The maxim of the law is 
 respondeat superior. (Blackwell v. 
 Wiswall, 14 How. Pr. R. 258.) The 
 managers of one branch of defendant's 
 company wrote letters to another 
 braiich These letters contained libel- 
 ous matter concerning plaintiff, a for- 
 mer employee of the company, there 
 being no evidence that the defendant, 
 a corporation or its directors or manag- 
 ing board, had authorized such letters, 
 held, action could not be maintained. 
 (Freeborn v. Singer Sewing Machine 
 Co. 2 Manitoba Law Rep. 253.) 
 
 The rule of liability |of a principal 
 for the acts of his agents], is not based 
 upon any presumed authority in the 
 agent to do the acts, but upon the 
 ground of public policy. (Lee v. 
 Village of Sandy Hill, 40 N. Y. 448 ; 
 Farmers' Bk. v. Butchers' Bk. 16 N. 
 Y. 133.) The wrongful act is the 
 servant's in fact and the principal's by 
 construction. (Bruff v. Mali, 34 How. 
 Pr. R. 344.) "A servant in a glass- 
 house nowise employed in filling the 
 pots, and not having anything to do 
 with the management of them, threw 
 in some broken glass to secret it from 
 his master— held this rendered the 
 master liable to the penalty for putting 
 materials into a pot without notice to 
 an excise officer. (Atty. Gen. v. Per- 
 rin, cited in appendix No. VI, to Evans' 
 Pothier on Obligations.) It is said to 
 be the law that a master is responsible 
 for all wrongful acts of his servant, 
 within the scope of his employment, 
 and in executing the matter tor which 
 he was engaged at the time. (See 
 Allen V. London-& S. W. R'way, Law 
 
 Rep. 6 Q. B. 67 ; Rounds v. Delaware 
 R. R. Co. 10 Sup. Ct. Rep. [3 Hun], 
 329.) But not if done contrary to the 
 orders of the employer. fliJewinan 
 V. Jones, 17 Q. B. D. 132; Buffalo 
 Oil Co. V. Standard Oil Co. 42 Hun, 
 153; 34 Alb. L. J. 66; citing Seine 
 V. The State, 55 Md. 566: 39 Am. 
 Rep. 419. 433, note 32 ; Graffs/. Evans, 
 8 Q. B. D. 373 
 
 In an action for a libel contained 
 in a letter, proof that it was written by 
 defendant's daughter, who was author- 
 ized to make out his bills and write his 
 general letters of business, is not suffi- 
 cient, unless it can be shown that such 
 libel was written with the knowledge 
 of or by the procurement of the de- 
 fendant. (Harding v. Greening, I 
 Moore, 477; i Holt N. P. 531; 8 
 Taunt. 42.) Writing the letter was 
 not within the scope of the daughter's 
 authority to act for her father. {Id.') 
 
 In 1874, Appleton & Co., book 
 publishers, had a contract with Cham- 
 bers, by which they gave him the ex- 
 clusive sale of the American Cyclo- 
 paedia. In 1877 they terminated the 
 contract, but agreed to furnished him 
 with volumes of the work to supply 
 old subscribers ; they afterwards con- 
 tracted with one Holland substantially 
 as with Chambers. 
 
 Disputes arose between Chambers 
 and Holland The Appletons attempt- 
 ed to keep the peace between them. 
 
 Meantime one, Swope, who had 
 been employed by Chambers, but had 
 entered the service of Holland, issued 
 a circular regarding his former em- 
 ployer in libelous language. Shortly 
 after one of these circulars came to the 
 Appletons by mail. After reading it, 
 they handed it to James C. Derby, the 
 head of the Cyclopa2dia department of 
 their business, denouncing it, and in- 
 structing him to have nothing to do 
 with its circulation. He took it to his 
 desk, showed it to one or two persons, 
 and in a day or so it was missing. He 
 thereupon, in his own name, and upon 
 his own responsibility, wrote Swo^^e 
 for other copies which he obtained, 
 
^ 123.] 
 
 PUBLISHER. 
 
 10 = 
 
 may have been made without his knowledge, in his ab- 
 sence, and contrary to its orders. His liability is not on 
 the ground of his being the publisher, nor of being pre- 
 sumed to be the publisher, but because he is responsible 
 for the acts of the actual publisher.^ 
 
 and there was evidence tending to 
 show that he had given one of these 
 away. 
 
 Upon this state of facts Chambers 
 sued the Appletons for $20,000 dam- 
 ages, the case was tried before Judge 
 Barrett and a jury. Judge Barrett 
 charged the jury that the delivery of 
 the circular to Derby by the defendants 
 ■was not a publication, for, as between 
 them, it was a privileged communica- 
 tion; that the defendants were not 
 liable for Derby's independent un- 
 authorized acts in showing it to other 
 persons, nor for his negligence in 
 finally losing it, although they would 
 be liable if they were negligent in en- 
 trusting it to him, taking into con- 
 sideration his age, experience and posi- 
 tion. 
 
 The jury found a verdict for the 
 ■defendants, and the General Term 
 affirmed the judgment, April, 1883. 
 
 A parent is not liable as such for 
 the viTongful act of his child. (Tifft 
 J'. Tifft, 4 Denio, 175 ; and see Moon 
 V. Towers, 8 Com. B. N. S. 611; 
 American Law Register for October, 
 1884.) 
 
 If an attorney introduces slander- 
 ous matter into the pleadings, without 
 the direction of his client, the client is 
 ■not responsible. (Hardin v. Cumstock, 
 2 A. K. Marsh. 480.) And so by 
 statute in Louisiana. See ante, p. 54, 
 note I. 
 
 1 The Penal Code of New York 
 provides: § 246, " Every editor or pro- 
 prietor of a book, newspaper or serial, 
 and every manager of a partnership or 
 incorporated sissociation, by which a 
 book, newspaper or serial is issued, is 
 chargeable with the publication of any 
 matter contained in such book, news- 
 paper, or serial. But in every pros- 
 ecution for libel the defendant may 
 show in his defense that the rnatter 
 complained of was published without 
 
 his knowledge or fault and against his 
 wishes, by another who had no 
 authority from him to make the pub- 
 lication, and whose act was disavowed 
 by him so soon as known." The pro- 
 prietor of a newspaper is responsible 
 for whatever appears in his columns. 
 It is unnecessary to show that he knew 
 of the publication, or authorized it 
 (Huff V. Bennett, 4 Sandf. 120), for he 
 is liable even though the publication 
 was made in his absence and without 
 his knowledge, by an agent to whom 
 he had given express instructions to 
 publish nothing exceptionable, per- 
 sonal, or abusive, which might be 
 brought in by the author of the libel. 
 (Dunn V. Hall, i Carter [Ind.], 345;; 
 and see Curtis v. Mussey, 6 Gray 
 [Mass.], 261 ; Comm. v. Morgan, 107 
 Mass. 199,) See in note to § 349, post^ 
 and 1 2 Irish Law Times, 88 ; Libel 
 published in newspaper without pro- 
 prietor's knowledge. 
 
 An action for a libel lies against 
 the proprietor of a gazette edited by 
 another, though the publication waS 
 made without the knowledge of such 
 proprietor. (Andres v. Wells, 7 Johns. 
 260; and see Buckley v. Knapp, 48 
 Mo, 152; McDonald v. Woodruff, 2 
 Dill. Cir. Ct. R. 244 ; Perrat v. Times 
 Newspaper, 25 La. Ann. 170.) 
 
 But if a printing press and news- 
 paper establishment be assigned to a 
 person merely as security for a debt, 
 and the press remains in the sole pos- 
 session and management of the assig- 
 nor, the ownership of the person hold- 
 ing the security or lien is not such as 
 will render him liable to an action as 
 proprietor. (Andres t/. Wells, 7 Johns. 
 260.) 
 
 A receiver of a newspaper estab- 
 lishment, appointed to take charge 
 thereof, and continue the publication 
 of the newspaper, would be responsible 
 for any defamatory matter published 
 
io6 
 
 PUBLISHEK. 
 
 [CH. VI. 
 
 § 124. The liability of the proprietor of a newspaper 
 is shared in common with the proprietor of a printing- 
 press, a printer, book publisher and bookseller. The pro- 
 prietor of a bookstore or newspaper store is responsible 
 for the contents of every book and paper sold in his store/ 
 
 in the newspaper while the same was 
 under his control. (Martin v. Van 
 Schaick, 4 Paige, 479. ) Although a 
 receiver having charge of the publica- 
 tion of a newspaper is responsible for 
 what is published, his responsibility is 
 not to be tested by an action. A re- 
 ceiver is an arm of the court, he is not 
 to be sued. (Camp v. Barney, 6 Sup. 
 Ct. Rep. [T. & C] 622; Barton 
 V. Barbour. 104 U. S. 126.) The 
 proper mode of procedure is by peti- 
 tion to the court appointing the re- 
 ceiver. This was the course pursued 
 in Stubbs z/. Marsh, 15 Law Times, 
 N. S. 312. In that case damages were 
 awarded the petitioner, and it being 
 found that the libel was published 
 through the carelessness of the re- 
 ceivers, they were ordered personally 
 to pay the costs of the petition. A 
 receiver of a railroad was held liable 
 as a common carrier. (See Blumen- 
 thal V. Brainerd, 38 Vt. 408 ; Paige v. 
 Smith, 99 Mass. 395; Kerr on Re- 
 ceivers, 193. note; Camp v. Barney, 
 6 Sup. Ct. Rep. [T. & C] 622.) A 
 receiver was appointed to carry on the 
 publication of a newspaper in Dayton 
 V. Wilkes, 17 How. Pr. R. 510; Kelly 
 V. Hutton, 17 Weekly Rep. 424, and 
 in many unreported cases. 
 
 The editor and publisher of a 
 newspaper is answerable in law, if its 
 contents are libelous, unless the libel- 
 ous matter was inserted by some one 
 without his order and against his will. 
 (The Commonwealth v. Kneelaiid, 
 Thacher's Crim. Cas. 346.) 
 
 The liability of the proprietor for 
 all that appears in his paper, proceeds 
 from this : He puts the instrument for 
 wrong doing in the handsof the wrong- 
 doer. He may be compared to one 
 who keeps a dangerous animal, and 
 who is bound so to keep it that it does 
 no harm ; if harm ensues he must 
 answer for it. (See Domat, § 1568, 
 
 and note— One maliciously setting a 
 bear loose.) 
 
 Rex V. Gutch, i Moo. & Mai. 433: 
 on the trial of defendant for publishing 
 a libel in a newspaper of which he was 
 the proprietor, it was contended on 
 his behalf that he was not liable, be- 
 cause he took no part in the publica- 
 tion of the newspaper; but he was 
 held liable and the court said: "A 
 person who derives profit from and 
 who furnishes means for carrying on 
 the concern, and intrusts the conduct 
 of the publication to one whom he 
 selects, and in whom he confides, may 
 be said to cause to be published what 
 actually appears ; " and see Rex v. 
 Alexander, i Moo. & Mai. 437; 3 
 Albany Law Jour. 46 ; and see Atty. 
 Gen. V. Siddon, i Cr. & Jer. 220. 
 
 ' " It is not material whether the 
 person who disperses libels is ac- 
 quainted with their contents or other- 
 wise, lor nothing would be more easy 
 than to publish the most virulent 
 papers with the greatest security, if 
 the concealing the purport of them 
 from an illiterate publisher would 
 make him safe in dispersing them. 
 (2 Starkie on Slander, 30, note v; 
 Moore, 627; Wood's Inst. 431 ; Bac. 
 Abr. tit. Libel, 458; 3 Greenl. Ev. 
 §171; Gibhardt -u. England, 8 New 
 Jersey Law Jour. 146; see note, p. loi, 
 ante. ) 
 
 Nutt's Case, Fitzg. 47; Barnard. 
 306: The defendant was tried for 
 publishing a libel. It appeared in 
 evidence the defendant kept a pamph- 
 let shop, and that the libel was sold in 
 defendant's shop, by her servant, for 
 her account, in her absence, and that 
 she did not know the contents of it, 
 nor of its coming in or going out. This 
 was held to be a publication by the 
 defendant, but a juror was withdrawn. 
 (See Barnes v. The State, 19 Conn. 
 407.) 
 
§ 124.] PUBLISHER. 
 
 107 
 
 unless he can show that he did not know, and had no 
 reason to suppose that the book or newspaper contained 
 any defamatory matter. In an action for libel against a 
 news-vender, the defendant denied the publication, and 
 pleaded that he was a news-vender carrying on a large busi- 
 ness; that he sold copies of the newspaper containing the 
 alleged libel in the ordinary course of his business, and 
 without any knowledge of the contents. Upon the trial^ 
 the jury found : (i) that the defendant did not know that 
 the newspapers at the time he sold them contained libels 
 on the plaintiff; (2) that it was not by reason of any neg- 
 ligence on defendant's part that he did not know there was 
 any libel in the newspapers ; and (3) that defendant did 
 not know that the newspaper was of such a character that 
 it was likely to contain libellous matter, nor ought he to 
 have known so. Upon the findings judgment was given for 
 defendant. The plaintiff appealed. Lord Esher, in affirm- 
 ing the judgment, said: The finding comes to this, defend- 
 ant was the innocent disseminator " of a thing containing a 
 libel, which he had no reason to suppose contained one. 
 
 Rex V. Dodd, 2 Sess. Cas. 33: privity or connivance." And refer- 
 
 The defendant was tried for publish- ence is made to Rex v. Almon, supra, 
 
 ing a libel. It was insisted for the and to Woodfall's Case, where the 
 
 defendant that she was sick, and that publication was by a servant of the 
 
 the libel was taken into her house defendant, the defendant being at the 
 
 without her knowledge. This was time within prison walls. In Rex v. 
 
 held no excuse : the law presumed her Fisher, i Moo. & Mai. 433, it is said 
 
 acquainted with what her servant did. the presumption arising from proprie- 
 
 In Rex V. Almon, 5 Burr. 2689, torshipof a newspaper may be rebutted 
 the liability of booksellers was much and an exemption established. If the 
 discussed, and the court expressed an publication is made without the con- 
 opinion that the sale of a libel in a sent of the writer, the offense is not 
 bookseller's shop was prima facie complete as to him. (Weir v. Hoss, 
 evidence of a publication, though not 6 Ala. 881. See Holt on Libel, 294.) 
 so conclusive but that it might be As if the writing be stolen from him. 
 rebutted by circumstances. It is said (Mayne v. Fletcher, 9 B. & Cr. 382.) 
 (2 Starkie on Slander, 34), " But the In Chubb v. Flanaghan, 6 Car. & 
 defendant may rebut the presumption P. 431, it was held that if a publication 
 by evidence that the libel was sold consists in merely selling a few copies 
 contrary to his orders, or clandestinely; of a periodical in which the libel was 
 or that some deceit or surprise was contained among the articles, it was 
 practiced upon him; or that he was a question for the jury whether the 
 absent under circumstances which defendant knew what he was selling, 
 entirely negative any presumption of 
 
io8 PUBLISHER. [CH. VI. 
 
 The consequences of holding him liable in such a case would 
 be too enormous. A mere carrier of a thing containing a 
 libel would be liable — even a railway company that carried 
 a paper containing a libel over the country, though the 
 paper was one not at all likely to contain libellous matter. 
 The consequences would be too great ; and as this ques- 
 tion depetids upon common law, and not upon statute, it 
 may be safely laid down that any proposition which alleges 
 that the common law of England is wholly unreasonable 
 , and unjust must be an erroneous proposition."' In a case 
 against the American News Company for publishing a 
 libel by selling copies of the newspaper, a verdict for a 
 large amount was obtained against the defendant, but the 
 Judgment was reversed upon the ground that although it 
 was shown the defendant had distributed two hundred and 
 forty copies of the libel, it was not shown that anyone had 
 read the libel.* 
 
 ' Emmens v. Pottle, i6 Q. B. D. of New York, provides: § 245. To 
 
 356; see 2 Leg. Adv. 211 (Liability sustain a charge of publishing a libel, 
 
 for libel of vendor of newspaper), and it is not necessary that the matter 
 
 23 Alb. L. J. 401 (Suits against news complained of should have been seen 
 
 ■companies as sellers of newspapers), by another, it is enough that the de- 
 
 and ante, n. i, p. 106, and % 120. fendant khowingly displayed it, or 
 
 ^ Prescott V. Tousey, 50 N. Y. parted with its immediate custody, 
 
 Superior Ct. Rep. 12; see § 104, ante, under circumstances which exposijed it 
 
 and contra^ see Giles v. The State, in to be seen or understood by another 
 
 note to § 373, post. The Penal Code person than himself. 
 
CHAPTER VII. 
 
 CONSTRUCTION OF LANGU'AGE. 
 
 Actionable quality of language dependent upon its construc- 
 tion — All language ambiguous or unambiguous — 
 Difficult to determine what is and what is not ambig- 
 uous — Points upon which ambiguity may arise — Causes 
 of ambiguity — Ambiguity, how explained — Different 
 e^ect of language concerning a person and of language 
 concerning a thing — Materiality of questions, what 
 person or thing affected, and whether the person is 
 affected as an individual merely, or in some acquired 
 capacity — Principles of construction ; before verdict ; 
 after verdict — Examples of construction — Divisible 
 matter. 
 
 § 125. Language as a means for effecting a wrong must 
 be either such as is actionable or such as is not actionable. 
 To wbiph of these divisions any particular language is to 
 be referred may depend upon the construction of the lan- 
 guage in question. Anterior, therefore, to an inquiry into 
 what language is and what language is not actionable, it 
 is proper here to consider at least the principal rules by 
 which alleged defamatory language is construed. The 
 question as to when the construction is with the court, and 
 when by the jury, is discussed in a subsequent chapter 
 (§§ 281-286). 
 
 § 126. Language may be ambiguous or unambiguous.' 
 
 1 " Words or signs may be divided on the face of them are of dubious 
 
 into three classes: (i) those which import, and are capable either of a 
 
 bear an obvious and precise meaning criminal or innocent meaning ; as if 
 
 on the face of them ; as if A. say to A. says to B., you were the death of 
 
 B., you tmirdered C. ; (2) those which C. ; (3) those which are prima facie 
 
no CONSTRUCTION OF LANGUAGE. [CH. VII. 
 
 It is not easy in every case to determine what is ambig- 
 uous and what is unambiguous language. Language may 
 be unambiguous on its face, which, by reason of some cir- 
 cumstances connected with it, is in fact ambiguous. This 
 is always the case with language used ironically. When 
 language is unambiguous on its face, it must be construed 
 as unambiguous, unless its ambiguity be shown ; and on the 
 one who asserts the ambiguity of language unambiguous 
 on its face, is the burden of establishing the ambiguity.^ 
 
 § 127. When language is ambiguous, the ambiguity 
 may be either (i) whether the language concerns a person 
 or a thing, or (2) what person or what thing it concerns, 
 or (3) if it concerns a person does it concern him as an 
 individual merely or in some acquired capacity, as in an 
 office, trade or profession ; (4) what is the import or sig- 
 nification of the language, and (5) is the charge or matter 
 divisible or indivisible. 
 
 § 128 The ambiguity may be patent or latent, that is 
 
 and abstractedly innocent, and which " As doubtful or apparently inno- 
 derive their offensive quality from some cent words may by circumstances be 
 collateral or extrinsic circumstances ; shown to be actionable, so may words 
 as if A. says to B., you did not mur- apparently actionable be explained by 
 der C, which words, from the ironical circumstances to have been intended 
 manner of speaking them, may convey and understood in an innocent sense, 
 to the hearers as unequivocal a charge Thus, though the defendant should 
 of murder as the most direct imputa- say. Thou art a murtherer, the words 
 tion." (i Starkie on Slander, 46.) would not be actionable if the defend- 
 » " Where the words of themselves ant could make it appear that he was 
 impute a larceny, and are unaccompa- conversing with the plaintiff concern- 
 nied by an explanation showing the ing unlawful hunting, when the plaintifi 
 hearers that they were not so intended, confessed that he killed several hares 
 the defendant must show that they with certain engines, upon which the 
 referred to a transaction that was not defendant said. Thou art a murtherer, 
 larceny, and were so understood by meaning a murtherer of hares so killed, 
 all who heard them. And where the 4 Co. 13." (i Starkie on Slander, 98; 
 plaintiff had taken wood through mis- § 134, n.) Where the words are de- 
 take, and defendant, knowing the ex- famatory on their face, the burden is 
 cuse for taking it, persists in charging on the defendant to show they have 
 him with stealing, in reference to such not the meaning they plainly import, 
 taking, he cannot fall back and rest (Myers v. Dresden, 40 Iowa, 660; 
 upon the plaintiff's innocence." (Phil- § 134, ^oj/.) 
 lips V. Barber, 7 Wend. 439 ; and see 
 Maybee v. Fisk, 42 Barb. 336.) 
 
§§ J 29, 130.] CONSTRUCTION OF LANGUAGE. 
 
 I II 
 
 to say, the ambiguity may be inherent in the language and 
 apparent upon its face, or the ambiguity may arise by 
 reason of the language in question being connected with 
 some other language or event in such a manner as that its 
 accustomed signification is affected and changed bv such 
 other language or event. 
 
 § 1 29. The ambiguity of language unambiguous upon 
 its face is shown, and the ambiguity of language in every 
 case is explained, by introducing the other language or 
 event which exhibits or which explains the ambiguity, and 
 by alleging the supposed true meaning of the language in 
 question. The manner by which ambiguity is shown and 
 explained is by allegations in pleading, termed averments, 
 colloquia, and innuendoes, the nature and offices of which 
 several allegations will be considered under the head of 
 Pleading.^ 
 
 § 130. Whether the language concerns a person or a 
 thing, i. e., the affairs of a person (§§ 25, 2J, 28), is mate- 
 rial in this respect : that language, when it concerns a 
 person and is discommendatory, is always, in the absence 
 of any evidence to the contrary, regarded as uncalled for, 
 
 > An averment is to ascertain that on its face, the plaintiff will not be 
 to the court which is generally or allowed to treat it as ambiguous, and 
 doubtfully expressed, so that the court give, it a meaning different from that 
 may not be perplexed of whom, or of it ordinarily bears. Thus the words 
 ■what it [the language] ought to be spoken of a dyer were : " Thou art not 
 understood, and to add matter to the worth a groat." The plaintiff alleged 
 plea to make doubtful things clear. A that at E., where the words were 
 colloquium serves to show that the spoken, they were all one as calling 
 words were spoken in reference to the him bankrupt. The court held the 
 matter of the averment An innuendo averment idle, because the words in 
 is explanatory of the subject-matter themselves imply a plain and intelli- 
 sufficiently explained before, and it is gible sense. (Meade v. Axe, Mar. 1 5, 
 explanatory of such matter only; for pi. 37.) "It is not allowable to inter- 
 it cannot extend the sense of the words pret what has no need of interpreta- 
 beyond their own meaning unless tion, and when the words have a defi- 
 something is put upon the record for nite and precise meaning, to go else- 
 it to explain. (Van Vechten v. Hop- where in search of conjecture in order 
 kins, 5 Johns. 220; see post, \\ 308, to restrict or extend the meaning." 
 323,335.) (McCluskey v. Cromwell, 11 N. Y. 
 
 It seems that in some instances 601 ; Bartlett v. Robinson, 6 Trans, 
 
 where the language is unambiguous App. 166.) 
 
112 CONSTRUCTION OF LANGUAGE. [CH, VII. 
 
 as published without any lawful excuse, and as not to be 
 believed or considered as true unless its truth bp estab- 
 lished ; or, as the phrase is, such language is presumed to 
 be malicious and false. But as to language concerning a 
 thing, no such presumption is indulged ; and upon those 
 who allege language concerning a thing to be false and 
 malicious is the burden of establishing those conclusions 
 by other evidence than that afforded by a mere publica- 
 tion of the language. And besides, to give a cause of 
 action for language concerning a thing, damage, general or 
 special, must in all cases be alleged and proved.' 
 
 While a distinction has been recognized between lan- 
 guage concerning a person and language concerning a 
 thing, the essential grounds of the distinction seem not to 
 have been clearly, nor indeed rightly, apprehended. That 
 branch of the law of libel known as " slander of title," has 
 been regarded as something distinct from slander and libel, 
 properly so called, whereas in reality slander of title is but 
 a portion of that division of the law relating to wrongs by 
 language which includes language concerning things.* The 
 
 » .See Swan v. Tappan, 5 Cush. spoken or libel written and ptiblished, 
 
 104; Ingram v. Lawson, 6 Bing. N. C. but an action on the case for special 
 
 212; 8 Scott, 371; Evans v. Harlow,, damage sustained by reason of the 
 
 5.Q. B. 624 ; Kendall v. Stone, 5 N. Y. speaking or publication of tiie slander 
 
 14; rev'g s. C. 2 Sand. 269; Hargrave of the plaintiff's title. This action is 
 
 V. Le Breton, 4 Burr. 2422 ; Smith v. ranged under that division of actions 
 
 Spooner, 3 Taunt. 246 ; Bailey v. Dean, in the digests and other writers on the 
 
 5 Barb. 297 ; Linden v. Graham, i text law, and is so held by the courts 
 
 Duer. 670; Tobias v. Harland, 4 at the present day. Malachy z/. Soper, 
 
 Wend. 537; McDaniel 7/. Baca, 2 Cal. 3 Bing. N. C. 371 ; 3 Scott, 723." 
 
 326; Hamilton v. W^alters, 4 Up. Can. (Heard on Libel, § 59.) " An action 
 
 Q. B. Rep. O. S. 24 ; post, § 205. of slander of title is a sort of meta- 
 
 2 Debated if slander of title within phoriqal expression." (Maule, J., Pa- 
 
 the statute (21 Jac. I, ch. xvi), actions ter v. Baker, 3 C. B. 831.) "The 
 
 on the case Jor slander, held by three cause of action is denominated slander 
 
 judges against one, that it was not; of title by a figure of speech^ in wrhich 
 
 that " action on the case for slander" the title to land is personified and 
 
 referred to the person of a man and make subject to many of the rules 
 
 not to the title of lands. For this is applicable to personal slandar, when 
 
 not properly a slander, but a cause of the words in themselves are not ac- 
 
 damage. (Lowe v. Harwood, Cro. tionable." (Gardiner, J, Kendall w. 
 
 Car. 140.) " An action for slander of Stone, 5 N. Y. 14; see post, npte to 
 
 title is not properly an action for words § 1 50.) 
 
§ I3I-] CONSTRUCTION OF LANGUAGE. II3 
 
 rules relating to slander of title apply to all language con- 
 cerning things, but where the language concerns both a 
 person and a thing, it is governed by the rules which relate 
 to language concerning the person. The question whether 
 the language concerns a person or a thing arises in cases 
 of alleged privileged publications in the form of criticisms 
 on books, works of art, or places of public entertainment. 
 It must be determined in those cases whether in point of 
 fact the language of the criticism was concerning the 
 thing : the book, the work of art, the entertainment, or 
 concerning the person : the author, the artist, or the pro- 
 prietor of the place; and according to the decision of that 
 question may the language be, or not be, actionable. We 
 shall advert to this hereafter, in treating of the actionable 
 quality of language concerning things, and of defenses 
 (§§ 203, 207, 254). 
 
 § 131. What person or what thing the language con- 
 cerns is material; as upon the answer to this question 
 depends whether the party complaining has, or has not, 
 any right to redress.^ Of course unless the language con- 
 cerns either the person or the affairs of the person com- 
 plaining, no wrong can have been done him of which he 
 can rightfully complain.^ (§§ 310, 316, 343.) 
 
 1 A complaint which does not al- (Holt on Libel, 247 ; Harvey v. Coffin, 
 lege that the defamatory matter was 5 Blackf. 566.) It is not material 
 published of and concerning the whether the person is described nomi- 
 plaintiff is bad on demurrer. (McCal- nally or indirectly, provided his iden- 
 lum V. Lambie, 145 Mass. 234.) tity be ascertained. (Sumner v. Buel, 
 
 2 In an action for scandalous 12 Johns. 475.) Identity is presumed 
 words, it is requisite that " the person from identity of name. (Jackson v. 
 scandalized be certain." (James v. Goes, 13 Johns. 518; Jackson w. King, 
 Rutlech, 4 Coke, 17.) "No writing 5 Cow. 237 ; Jackson w. Cody, 9 Cow. 
 whatever is to be esteemed a libel un- 140; Hamber v. Roberts, 18 Law 
 less it reflects upon some particular Jour. Rep. N. S. 250 C. P. ; 7 C. B. 
 person." (Hawk. P. C, ch. 79, §9.) 861; Sewell v. Evans, 4 Q. B. 626; 
 After quoting the foregoing sentence, Simpson v. Dismore, 9 M. & W. 47 ; 
 Holt (Holt on Libel, 246) adds: "This I Dowl. P. C. N. S. 357; Hatcher v. 
 is unquestionably true, as it relates to Rocheleau, 18 N. Y. 86; but see Jack- 
 the action on the case for slander, in son v. Christman, 4 Wend. 277; White- 
 which the party complaining must locke v. Musgrove, i C. & M. 511 ; 
 show himself to be meant by the libel." Jones v. Jones, 9 M. & W. 75 ; Green- 
 
 8 
 
114 
 
 CONSTRUCTION OF LANGUAGE. 
 
 [CH. VII, 
 
 § 132. When the language concerns a person, it is 
 material further to inquire whether it concerns him as an 
 
 shields v. Crawford, Id. 2,i\\ i Dowl. 
 P. C. N. S. 439.) Where the language 
 is not applicable to the plaintiff (does 
 not concern the person) no averment 
 or innuendo can make it so. (Solomon 
 V. Lawson, 8 Q. B. 823; Ingram v. 
 Lawson, 6 Bing. N. C. 212; 8 Scott, 
 571 ; Dottarerz/. Bushey, 16 Penn. 208 ; 
 Swan V. Tappan, 5 Cush. 104; Vin. 
 Abr. Act. for Words, H. *, 12, 13; 
 Sanderson v. Caldwell, 45 N. Y. 398.) 
 Where the language is applicable to 
 the plaintiff, although not so upon its 
 face, to maintain an action therefor, 
 he must, by averment, introduce such 
 facts as make it apparent that persons 
 who knew him would, on hearing or 
 reading such language, perceive its 
 application to him. (Miller v. Max- 
 well, 16 Wend. 9.) He cannot show 
 the application of the language to 
 himself by an innuendo alone. (Wil- 
 son V. Hamilton, 9 Rich. Law [So. 
 Car.], 382; Maxwell v. Allison, 1 1 S. & 
 R. 343; Turner v. Merryweather, 7 
 C. B. 251 ; Tyler v. Tillotson, 2 Hill, 
 507 ; see § 343, post.) Thus, it is not 
 sufficient to allege that the defendant 
 said, " R. saw z. young man (meaning 
 the plaintiff) ravishing a cow." (Har- 
 per V. Delp, 3 Ind. 225.) Or, W. or 
 somebody altered the indorsement on a 
 note. (Ingalls v. Allen, Breeze, 233.) 
 I know of but one man who owes me 
 enmity enough to do such a thing, and 
 you know whom I mean. (Robinson 
 V. Drummond, 24 Ala. 174.) A. was 
 supervisor of an election, at which 
 there was false swearing. (Lewis v. 
 Soule, 3 Mich. 514.) And held that 
 the postmaster of J. could not main- 
 tain an action for words spoken of a 
 missing letter containing the resigna- 
 tion of one M. : "I do not think M.'s 
 resignation has gone to Washington. 
 I have no doubt it was embezzled at 
 J." (Taylor v. Kneeland, i Doug. 67.) 
 For the words, " All the bravery you 
 (A.) ever showed was sleeping with 
 your sisters," held that the sisters of 
 A. could not sue. (Mallison v. Sutton, 
 I Smith [Ind.], 364.) For calling W. 
 a bastard, the mother of W. could not 
 sue for the imputation upon her with- 
 
 out proper averments connecting the 
 allegation with her. (Maxwell v. Alli- 
 son, 1 1 S. & R. 343 ; Hoar v. Ward, 
 47 Vt. 657.) An action may be sup- 
 ported for language in which the 
 plaintiff is described directly or indi- 
 rectly, though his name is not given, 
 in which case the whole of the publi- 
 cation must be considered, in deter- 
 mining whether the averments be suf- 
 ficient to make it apphcable to the 
 plaintiff. (Cook v. Tribune Associa- 
 tion, S Blatch. C. C. 3S2.) With 
 proper averments showing the plaintiff 
 to be intended, one may bring an 
 action for words concerning on their 
 face " his friend" (Clark v. Creitz- 
 burgh, 4 McCord, 491); or the "surgeon 
 of whiskey memory " (Miller v. Max- 
 well, 16 Wend. 9); or the "man at 
 the sign of the Bible " (Steele v. South- 
 wick, 9 Johns- 214); or O. B. (O'Brien 
 V. Clement, 16 M. & W. 159); or 
 " desperate adventurers " (Wakley v. 
 Healey, 18 Law Jour. 241, C. P.); "the 
 writer in the Register who was de- 
 prived of a twopenny justiceship for 
 malpractice in packing a jury " (Mix 
 V. Woodward, 12 Conn. 262); and see 
 " One who edits the Times " (Tyler v. 
 Tillotson, 2 Hill, 507); "Filly Horse" 
 (Weir V. Hoss, 6 Ala. 881); Goody 
 Two Shoes, meaning Nancy Irwin 
 (The People v. Chace, i Miss. St. Cas. 
 30); By George the old Liar (Johnson 
 V. Com' wealth, 13 Cent. Rep. 80); the 
 Pilot; which Pilot is a question for the 
 jury (Lyons v. Townsend, 2 Edmonds 
 Sel. Cas. 452). Where B. had been 
 accused of stealing a tray of biscuits, 
 and A. said in the hearing of B. and 
 of other persons, that if they did not 
 look out he would make the tray of 
 biscuits roar, held, that with proper 
 averments connecting B. with this 
 language of A., B. might maintain an 
 action against A. (Briggs v. Byrd, 
 II Ired. 353.) The words "I am a 
 true subject, and thou servest no true 
 subject," spoken to the servant of I. S., 
 held sufficient to give a right of action 
 to I. S. (Vin. Abr. Act. for Words, 
 C, b, I.) And so of the words, " Thy 
 master, Mr. Browne, hath robbed me." 
 
§ 132.] 
 
 CONSTRUCTION OF LANGUAGE. 
 
 115 
 
 individual merely, or in some acquired capacity, as in an 
 office, trade or profession, because language which would 
 
 {Id. 3.) If A. says to B., One of us 
 two is perjured, and B. say to A., It 
 is not I, and A. says again, It is not I, 
 B. may maintain an action. (Id. 4; 
 Coe V. Chambers, i RoUe Abr. 75.) 
 For the words " Thy son hath robbed " 
 me, the son of the person spoken to 
 may maintain an action if he be the 
 only son ; and if one say to a son, thy 
 father, or to a wife, thy husband hath 
 robbed me, the father or the husband 
 may have an action. (Vin. Abr. Act. 
 for Words, C, b, 6 ; H, b ; K, b ; and 
 see Ralph v. Davye, Sty. 150; Brent 
 V. Ing^m, Cro. Eliz. 343.) Barker, 
 that was the name of his reputed 
 father, his mother's name was not 
 Barker, gives a right of action to the 
 mother. (Anderson v. Stewart, 8 Up. 
 Can. Rep. Q. B. 243.) For the words 
 "Your boys stole my com," "Your 
 children are thieves, " either ol the sons 
 in the one case, and of the children in 
 the other, may sue. (Maybeew. Fisk, 42 
 Barb 326 ; Gidney v. Blake, 1 1 Johns. 
 59; and see Henacre v. Vt., i Keb. 525; 
 Crane v. O'Reilly, 11 N. Y. St. Rep. 
 277.) For the words, A. or B. killed 
 T. S., either A. or B. may sue. (Falkner 
 V. Cooper, Carth. 56.) Where several 
 are included in the same libel, they 
 may each maintain a separate action. 
 (Smart v. Blanchard, 42 New. Hamp. 
 137; Ellis V. Kimball, 16 Pick. 132.) 
 Where the language affects a particu- 
 lar class of men, as, for instance, men 
 of the gown, it gives no right of action 
 to an individual of that class. (Ryck- 
 man v. Delavan, 25 Wend. 186; rev'g 
 White V. Delavan, 17 Wend. 49; and 
 see Ellis v. Kimball, 16 Pick. 132; Le 
 Fanu V. Malcolmson, i Ho. of Lords 
 Cas. 637.) Thus, where Ensign Sum- 
 ner brought an action against Buel for 
 defamatory matter published by Buel, 
 reflecting on the character of the offi- 
 cers generally of the regiment to which 
 the plaintiff belonged, it was held by a 
 majority of the court that the action 
 could not be maintained, and that the 
 appropriate remedy in such a case was 
 indictment. (Sumner v. Buel, 12 
 Johns. 475.) An information may 
 issue in such a case. (See Rex v. Bax- 
 
 ter, 12 Mod. 139; 2 Ld. Raym. 879; 
 Rex V. Osborne, 2 Barnard. 138; Kel. 
 230, pi. 183; Rex V. Griffin, Rep. 
 temp. Hardwicke, 39; Rex v. Home, 
 Cowper, 672; Holt on Libel, 249; 
 Cooke on Defamation, 215.) In Scot- 
 land, under the circumstances of the 
 case, a civil suit was sustained by a 
 lieutenant colonel, in behalf of his 
 regiment, for calhng the regiment a 
 regiment of cowards and blackguards. 
 (Shearlock v. Beardsworth, i Murray's 
 Rep. of Jury Cas. 196; and see Palmer 
 V. City of Concord, 48 N. H. 211.) 
 Where the defamatory matter is con- 
 cerning a class, as an unincorporated 
 fire company, the members of the class 
 cannot maintain a joint action. (Gi- 
 raud V. Beach, 3 E. D. Smith, 337. ) 
 A man may be libeled, not by name, 
 or any specific description of himself, 
 but under some such description of 
 persons as includes him with others — 
 as all the brewers in a designated por- 
 tion of a city. (Ryckman v. Delavan, 
 25 Wend. 186; rev'g White v. Dela- 
 van, 17 Wend. 49; and see Le Fanu 
 V. Malcolmson, i Ho. of Lords Cas. 
 637.) A statement that the entire 
 staff of harness-makers, New York 
 Fire Department, had been dismissed 
 for thefts of leather, any one of the 
 staff might sue. (Ryer v. Fireman's 
 Journal Co. 11 Daly, 251.) And "a 
 scandal published of three or four, or 
 any one or two of them, is punishable 
 at the complaint of one or more of all 
 of them." (Holt on Libel, 247 ; Har- 
 rison V. Bevington, 8 C. & P. 708.) 
 Thus, where there was an indictment 
 against sixteen persons for conspiracy, 
 and I. S. said the defendants were 
 those who helped to murder W. N., 
 held, either of the sixteen defendants 
 might have his action. (Vin. Abr. 
 Act. for Words, C, b, 5 ; and see 
 Forbes v. Johnson, 11 B. Mon. 48; 
 Strauss -v. Meyer, 48 111. 385 ; Chand- 
 ler V. Holloway, 4 Port. 17; and see 
 Parties, pest.) And where the charge 
 was against the deputy lieutenants 
 engaged in suppressing a riot, held 
 one of such lieutenants might sue. 
 (Morthland v. Cadell, 4 Paton, 385 ; 
 
ii6 
 
 CONSTRUCTION OF LANGUAGE. 
 
 [CH. 
 
 VII. 
 
 not be actionable if it concerned one as an individual 
 merely, may be actionable if it concerns him in his office, 
 trade, or profession (§ 1 79). 
 
 § 133. The different effect which in certain cases is 
 attributed to written as distinguished from oral language, 
 does not extend to the construction of language with a 
 view to determine its proper meaning.^ For the purpose 
 
 Boyd Kinnear's Dig. of H. C. Cas. 
 227.) But where the allegation was 
 that a number of articles had been put 
 into the market, and fraudulently sold 
 as antiquities, held that a dealer in 
 antiquities could not maintain an ac- 
 tion. (Eastwood V. Holmes, i Fos. 
 & F. 347.) Where the intention to 
 apply defamatory remarks to the pros- 
 ecutor is rendered doubtful and am- 
 biguous by the defendant having left 
 blanks for names, or from his having 
 given merely the initials or introduced 
 fictitious names, it is always a question 
 for the opinion and judgment of the 
 jury whether the prosecutor was the 
 party really aimed at. (2 Starkie on 
 .Slander, 32'; The State v. Jeandell, 5 
 Harring, (Del.) 475: Mix z*. Wood- 
 ward, 12 Conn. 262; Ryckman v. Del- 
 avan, 25 Wend. 186.) For this pur- 
 pose the judgment and opinion of 
 ■witnesses who, from their knowledge 
 of the parties and the circumstances, 
 are able to form a conclusion as to the 
 defendant's intention and application 
 of the libel, is evidence for the informa- 
 tion of the jury. (2 Starkie on Slander, 
 321.) And he adds in a note: Lord 
 EUenborough held that the declara- 
 tions of spectators while they looked 
 at a libelous picture, publicly exhibited 
 in an exhibition room, was evidence to 
 show that the figures portrayed were 
 meant to represent the parties alleged 
 to have been libeled. (Du Bost v. 
 Beresford, 2 Camp. 512 ; and see Star- 
 kie on Evidence, part iv, p. 861.) 
 Where the plaintiff proved that the 
 defendant spoke certain words of her, 
 by the name of Mrs. Edwards, the 
 defendant was not allowed to show 
 that, in other conversations, he had 
 used similar words respecting another 
 Mrs. Edwards. (Patterson v. Ed- 
 
 wards, 2 Oilman, 720.) In New York, 
 a witness is not allowed to state his 
 conclusion from the facts as to the 
 intention of the defendant to apply the 
 words or libel to the party or circum- 
 stances as alleged. (Van Vechten v. 
 Hopkins, s Johns. 211; Gibson v. 
 Williams, 4 Wend. 320 ; The People 
 V. Parr, 25 Week. Dig. 113; §375, 
 post. ) In some other States witnesses 
 have been allowed to testify as to the 
 sense in which they understood the 
 words, and the application of the words 
 to the plaintiff. (Morgan v. Living- 
 ston, 2 Rich. 573; Miller v. Butler, 6 
 Cush. 71; Leonardo. Allen, 11 Cush. 
 241 ; McLaughlin v. Russell, 17 Ohio, 
 475; Goodrich z/. Davis, 11 Mete. 473; 
 Goodrich v. Stone, 11 Mete. 486; Al- 
 lensworth v. Coleman, 5 Dana, 315; 
 White V. Sayward, 33 Maine, 322; 
 Mix V. Woodward, 12 Conn. 262; 
 Smart v. Blanchard, 42 N. H. 137; 
 Smawley v. Stark, 9 Ind. 386; Tomp- 
 kins z/. Wisener, i Sneed, 458; Com- 
 monwealth V. Buckingham, Thatcher's 
 Crim. Cas. 29.) But the rule adopted 
 in New York appears to have been 
 followed in Snell v. Snow, 13 Mete. 
 278; Rangier v. Hummell, 37 Penn. 
 St. Rep. [Wright], 130; McCue v. 
 Ferguson, 73 Id. 333; Briggs v. Byrd, 
 II Ired. 353; Pittsburgh R'y Co. v. 
 McCurdy, 6 Cent. Rep. 719; 35 Alb. 
 L. J. 202.) How the hearers under- 
 stood the words is for the jury. (Mc- 
 Laughlin V. Bascom, 38 Iowa, 660; 
 § 384, post.) 
 
 1 In Edsall v. Brooks, 3 Robertson, 
 295, it is said : " Although greater 
 liberality seems to be exercised in the 
 case of words when they are spoken 
 than when they are contained in 
 written or printed articles, yet in both 
 cases it must be one of intent; of 
 
§ 1 33-] 
 
 CONSTRUCTION OF LANGUAGE. 
 
 I 17 
 
 of its construction, language is to be regarded not merely 
 in reference to the words employed, but according to the 
 sense or meaning which, all the circumstances of its pub- 
 lication considered, the language may be fairly presumed 
 to have conveyed to those to whom it was published. The 
 language is always to be regarded with reference to what 
 has been its effect, actual or presumed, and the sense is to 
 be arrived at with the help of the cause and occasion of its 
 publication.^ The court or the jury is to place itself in the 
 situation of the hearer or reader, and determine the sense 
 or meaning of the language in question according to its 
 natural and popular construction.* 
 
 course a person must be presumed to 
 have used words in their ordinary im- 
 port among those who speak the lan- 
 guage to which such words belong, in 
 the community in which they are 
 uttered or published, but if they have 
 acquired by local usage a different 
 meaning, it must be presumed that 
 they were used to convey the ideas 
 attached to them by such usage, and 
 such meaning may be alleged as a fact 
 in the pleadings, and the evidence 
 upon it may be passed upon by the 
 jury. The meaning of all words in 
 the English language is not every- 
 where the same, and the only criterion 
 of the meaning of them, as used on 
 any occasion, is the understood mean- 
 ing in the community, society or in- 
 dividuals to whom they were address- 
 ed ; it is only when understood in that 
 sense they do the party at whom they 
 are aimed any injury." 
 
 * In actions for words we are to 
 consider the words themselves and the 
 causa dicendi, for sometimes in the 
 first case they will bear an action, and 
 yet when the causa dicendi is con- 
 sidered they will not. (Barclay, J., 
 Mar. 20, p. 45.) " 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 oc- 
 casion of speaking them ; for sensus 
 verberutn ex causa dicendi accipien- 
 dus est." (4 Co. 18,) The construc- 
 tion which it behooves a court of jus- 
 
 tice to put on a publication which is 
 alleged to be hbelous, is to be derived 
 as well from the expression used, as 
 from the whole scope and apparent 
 object of the writer. (Spencer v. 
 Southwick, II Johns. 592; Mason v. 
 Stratton, 17 N. Y. St. Rep. 302.) 
 
 ^ " Words are now construed by 
 courts as they always ought to have 
 been in the plain apd popular sense in 
 which the rest of the world naturally 
 understand them." (Roberts v. 
 Camden, 9 East, 93.) '' It is quite 
 clear, from all the modem authorities, 
 that a court must read these words in 
 the sense in which ordinary persons, 
 or in which we ourselves, out of court, 
 reading this paragraph, would under- 
 stand them." (Tenterden, C. J., Har- 
 vey z;. French, I Cr. & M. 11.) We 
 cannot pervert the words and alter 
 the ordinary construction of them. 
 (Bonyon v. Trotter, Sty. 231.) The 
 words must be understood by the 
 court in the same sense in which the 
 rest of mankind would ordinarily un- 
 derstand them. (Woolnoth v. Mea- 
 dows, 5 East, 463 ; Spencer v. South- 
 wick, II Johns. 579.) We "ought to 
 expound words according to their 
 general signification " (Pratt, C. J., 
 Button V. Heyward, 8 Mod. 24); or 
 acceptation (Fallenstein v. Boothe, 15 
 Mo. 429; Ogden v. Riley, 2 Green, 
 186); their popular sense (Duncan 2>. 
 Brown, 15 B. Men. 186; Hancock v. 
 Stephens, 11 Humph. 507); their most 
 
ii8 
 
 CONSTRUCTION OF LANGUAGE. 
 
 [CH, VII. 
 
 It is said that words, to confer a cause of action for 
 slander or libel, ought to be in the affirmative,^ and that 
 actions for slander do not lie upon inferences,^ but nega- 
 tive or ironical language may be shown to be in fact 
 affirmative, and if so found, has the like effect as affirma- 
 tive words.^ "The law cannot be evaded by any of the 
 
 obvious meaning (Hogg v. Wilson, i 
 N. & M. 216;) or common import 
 (Tliirman v. Matthews, i Stew. [2 
 Ala.] 384; Hogg V. Dorrah, 2 Port. 
 212); as understood by the hearer 
 (Dorland v. Patterson, 23 Wend. 422; 
 Butterfield v. Buffum, 9 New Hamp. 
 156; McGowan v. Manifee, 7 Mon. 
 314); and according to the ideas they 
 are calculated to convey (Demarest v. 
 Haring, 6 Cow. 76 ; Truman v. Taylor, 
 4 Iowa, 424) ; according to their na- 
 tural meaning and common accepta- 
 tion (Wright V. Paige, 36 Barb. 438 ; 
 S. C. on appeal, 3 Trans. App. 134). 
 The jury are to be guided in forming 
 their opinion [on the meaning of the 
 alleged defamatory matter] by the im- 
 pression which the words or signs used 
 were calculated to make on the minds 
 of those who hear3 or saw them, as 
 collected from the whole of the cir- 
 cumstances, (i Starkie on Slander, 
 60.) Words are to be taken in that 
 sense in which they are generally un- 
 derstood, and when that puts upon 
 them a guilty sense they are action- 
 able. (Pike V. Van Wormer, 6 How. 
 Pr. R. 99; Dias v. Short, 16 Id. 322; 
 Walrathz/. Nellis, ij Jd.y2\ Hugleyt/. 
 Hugley, 2 Bailey, 592 ; Tuttle v. Bish- 
 op, 30 Conn. 80; Campbell v. Camp- 
 bell, 1 1 No. West Rep. 456.) The words 
 are to be taken in their natural mean- 
 ing and according to common accep- 
 tation (Carroll v. White, 33 Barb. 618), 
 and the vulgar intendment of the by- 
 standers. (Somers v. House, Holt, 
 39.) Without explanatory circum- 
 stances the ordinary meaning is to be 
 given to words. (Hayes v. Ball, 72 
 N. Y. 418.J 
 
 1 Webhn v. Mayer, Yelv. 1 53. 
 
 2 Jenk. 302, pi. 72. To sustain an 
 action, plaintiff must show (i) that the 
 words used, either " of themselves or 
 by reference to circumstances, are 
 
 capable of the offensive meaning attri- 
 buted to them ; (2) that the defendant 
 did, in fact, use them in that sense." 
 (i Starkie on Slander, 44.) " Words 
 imputing crime must be precise." (Id.) 
 See note to § 142, post. 
 
 ' Words calculated to induce the 
 hearers to suspect that the plaintiff 
 was guilty of the crime alleged, are 
 actionable. (Drummond v. Leslie, 5 
 Blackf. 453.) It is not necessary that 
 the words in terms should charge a 
 crime. If such is the necessary in- 
 ference, taking the words altogether 
 and in their popular meaning, they are 
 actionable. (Morgan v. Livingston, 2 
 Rich. 573 ; Cass v. Anderson, 33 Vt. 
 182; Colman v. Godwin, 3 Doug. 90; 
 2 B. & Cr. 285 ; Commonwealth v. 
 Runnels, 10 Mass. 518.) "A libel in 
 hieroglyphics is as much a libel as an 
 open invective. Not only an allegory 
 but a rebus or an anagram may be a 
 libel." (Holt on Libel, 245; Sunder- 
 lin V. Bradstreet, 46 N. Y. 188.) The 
 man that is painted with a fool's cap 
 or coat, or with horns, or whose pic- 
 ture is drawn with asses's ears, is cer- 
 tainly abused, (i Wood's Inst. 445 ; 
 Holt on Libel, 244 ; Du Bost v. Beres- 
 ford, 2 Camp. 512; Mezzara's Case, 2 
 City Hall Recorder, 113, ante, p. 3. n. I .) 
 
 " I know what I am, and I know 
 what Snell is; I never buggered a 
 mare." These words held to import 
 a charge of buggery against Snell. 
 (Snell V. Webling, 2 Lev. 150.) But 
 the words, " I never came home and 
 poxed my wife," held not capable of 
 being construed as a charge that the 
 party to whom the words were address- 
 ed had gone home and poxed his wife. 
 (Clerkz'. Dier, 8 Mod. 290.) And so 
 the words, '' A man that would do that 
 would steal," held not to amount to a 
 charge of stealing. (Stees v. Kemble, 
 27 Penn. St. Rep. 112.) 
 
§ U3-'] 
 
 CONSTRUCTION OF LANGUAGE. 
 
 119 
 
 artful and disguised modes in which men attempt to con- 
 ceal libelous or slanderous meanings ; " ^ and the fact of 
 language being ungrammatical, or such as is not usually 
 found in any dictionary,^ will not suffice to prevent the 
 
 The defendant wrote a pamphlet 
 called " Advice to the Lord Keeper, 
 by a Country Parson," wherein he 
 would have him love the church as 
 well as the Bishop of Salisbury, 
 manage as well as Lord Haversham, 
 be brave as another Lord, &c. The 
 defendant was found guilty, and upon 
 motion in arrest of judgment, it was 
 urged that no ill thing was said of any 
 person, and all he said was good of 
 them ; but by the court the words were 
 laid to be ironical, and the jury found 
 them to be so, and the motion was re- 
 fused. (Reg. 2/. Browne, Holt, 435; II 
 Mod. 86; recognized, Andrews v. 
 Woodmansee, 1 5 Wend. 232 ; Boydell 
 Jones, 4 M. & W. 446 ; 7 Dowl. Pr. 
 Cas. 210.) So where the words were, 
 "You will not play the Jew nor the 
 hypocrite " (Rex v. Brown, Popham, 
 1 39 ; Hob. 2 1 5) ; " An honest lawyer " 
 (Boydell v. Jones, 4 M. & W. 446; 7 
 Dowl. P. C. 210), they being alleged 
 to have been spoken ironically, and so 
 found by the jury, held to be action- 
 able. " Sober moments " may impute 
 drunkenness. (Sanderson v. Cald- 
 well, 45 N. Y. 398.) 
 
 ' Shaw, Ch. J., Commonwealth v. 
 Child, 13 Pick. 198. The court will 
 regard the use of fictitious names and 
 disguise in a libel in the sense that 
 they are commonly understood. (The 
 State V. Chace, Walk. 384.) "If, 
 therefore, obscure and ambiguous 
 language is used, or language which 
 is figurative or ironical, courts and 
 juries will understand it according to 
 its true meaning and import ; and the 
 sense in which it was intended is to be 
 gathered from the context and from 
 all the facts and circumstances under 
 which it was used." (Shaw, Ch. J., 
 Commonwealth v. Kneeland, 20 Pick. 
 206; and see Vanderlip v. Roe, 23 
 Penn. State Rep. [11 Harris], 82.) 
 " One half of the English language is 
 interpreted by the context." (Alder- 
 
 son, B., Dellevene v. Percer, 9 Dowl. 
 P. C. 245.) 
 
 A defamatory writing expressing 
 only Aie or two letters of a name, in 
 such a manner that from what goes 
 before and follows after it must neces- 
 sarily be understood to signify a cer- 
 tain person, in the plain, obvious, and 
 natural construction of the whole, is 
 to be understood as if the same were 
 written in full. (Reg. v. Hurt, Hawk. 
 PI. Cr. 194; Rex v. Woodfall, Lofft, 
 776; Roach V. Read, 2 Atk. 469; 
 Holt on Libel, 243.) If in a libel as- 
 terisks be put instead of the name of 
 the party libeled, it is sufficient that 
 the plaintiff should be so designated 
 that those who knew him may under- 
 stand that he is the party meant. It 
 is not necessary that all the world 
 should understand that the plaintiff is 
 the party intended. (Bourke v. War- 
 ren, 2 C. & P. 307 ; and see in note i , 
 p. 120, and note 2, p. 113, ante?) 
 
 ' One " cannot protect himself 
 from an action by the mere gramma- 
 tical structure of the phrase.'' (Cowen, 
 J., Cornelius v. Van Slyck, 21 Wend. 
 70.) ' ' The etymology of words, or 
 the grammatical construction of sen- 
 tences, will be fallacious if followed as 
 the only guides in the interpretation 
 of language." (Borthwick on Libel, 
 142.) '"Here is three cockels in this 
 place we now them well, he is a nave, 
 he cheats and rongs the country, and 
 is the cur of a son of a whore." The 
 indictment for these words was 
 demurred to, because the words were 
 not intelligible, but the court overruled 
 the demurrer, and said "it would be 
 hard that a court of justice must not 
 understand what is spelt badly, when 
 all the world besides makes no scruple 
 to find the signification of the words." 
 (Rex V. Edgar, 2 Sess. Cas. 29, pi. 
 33.) '' Common sense is not to be 
 deemed a stranger to legal process, 
 but as very influential in ascertaining 
 
I20 
 
 CONSTRUCTION OF LANGUAGE, 
 
 [CH. VII, 
 
 law taking cognizance of such language, or of the meaning 
 it really conveys.^ 
 
 § 134. Whenever language charged to be defamatory 
 
 the force and effect of words and sen- 
 tences which, although technical, are 
 to receive a sensible construction." 
 (Parker, Ch. J., Commonwealth v. 
 Runnells, 10 Mass. 518). ' 
 
 1 Courts take judicial notice of the 
 meaning of words and idioms in the 
 vernacular language, (i Greenl. Ev. 
 i 5, citing 6 Vin. Abr. 491, pi. 6, 7, 8, 
 tit. Court, C; Hoyle v. Cornwallis, i 
 Stra. 387 ; Page v. Faucet, Cro. Eliz. 
 227; Harvey v. Broad, 2 Salk. 626; 
 and see note i, p. 122, post.) And no 
 averment or innuendo is necessary to 
 point their meaning. (Elam v. Badger, 
 23 111. 498 ; Forbes v. King, i Dowl. 
 P. C. 672; Hoare v. Silverlock, 12 
 Adol. & Ell. N. S. 624; Homer v. 
 Taunton, 5 Hurl. & Nor. 661.) Fuck 
 is an English word, and no innuendo 
 is necessary to point its meaning. 
 (Edgar v. McCutchen, 9 Mo. 758 ; see 
 Rhodes v. Naglee, 66 Cal. 678.) In 
 Hoare v. Silverlock (12 Adol. & Ell. 
 N. S. 624), the court took judicial 
 notice, without an innuendo, of the 
 reproachful meaning of the term 
 " frozen snake," and so in Ashley v. 
 Billington (Carth. 231), of the term 
 "Jezebel," and so of the terms "em- 
 pirick" and "mountebank." (Vin. 
 Abr. Act ofWords,.S, a, 12.) "He 
 is off." (Black v. Holmes, i Fox & 
 Sm. 28.) In King v. Lake (2 Ventr. 
 18), the court said they could not take 
 notice of " milk your purse,'' because 
 it had not become an idiom ; and so 
 of " bunter." (Rawlings v. Norbury, 
 
 1 Fost. & F. 341.) See as to " Man 
 Friday," "gambling fracas" (Forbes 
 V. King, I Dowl. 672) ; shooting out 
 of a leather gun (Harman v. Delany, 
 
 2 Stra. 898). "Bogus pedlar" was 
 said not to have acquired a meaning 
 sufificiently definite to allow the court 
 to take judicial notice of its import 
 (Pike V. Van Wormer, 6 How. Pr. R. 
 loi; 5 /d. 175); and so of "black- 
 mail " (Life Asso. of Am. v. Boogher, 
 4 Cent. Law Jour. 40; but see Edsall 
 V. Brooks, 17 Abb. Pra. R. 221; 2 
 
 Robertson, 29); "Bushwhacker 
 
 (Curry v. Collins, 37 Mo. 324). The 
 law does not take notice of what a 
 " cozener " is (Walcott v. Hind, 
 Hutt. 14); or the meaning of "tan 
 money " (Day v. Robinson, i Ad. & 
 El. 5 54). ' ' Woolcomber " held not to 
 need an innuendo to show it means 
 one who buys wool to work with. 
 (Anon. Lofft, 322.) " Truckmaster," 
 a word said not to be found in any 
 dictionary, was used without an in- 
 nuendo ; it was left to jury to decide 
 if used in libelous sense. (Homer v. 
 Taunton, S Hurl. & Nor. 661.) Doubt- 
 ed if the term " swindler " was one of 
 which the court would take judicial 
 notice. (I'Anson v. Stuart, i T. R. 
 748 ; but see Forrest v. Hanson, i Cr. 
 C. C. 63, and/oj/, note to § 174.) The 
 court refused to take notice that 
 " hooked '' is sometimes used to mean 
 " stole " (Hays v. Mitchell, 7 Blackf. 
 117); or '■'■goose-house'''' to mean 
 " brothel '' (Dyer v. Morris, 4 Miss. 
 214). Bogtrotter may be explained by 
 evidence. (Omalley v. Elder, 2 Vict. 
 L. J. 39, Law.) 
 
 The court is to inform itself of the 
 meaning of English words, although 
 unusual and peculiar to a particular 
 place (Parke, B., McGregor v. Gregory, 
 2 Dowl. N. 8. 769; II M. & W. 287; 
 Com. Dig. Act, for Defam. C), as 
 healer of felons (Rolle Abr. 86); or 
 Welsh words (Hobart, 126), Daffa- 
 down-dilly, by averment meaning 
 ambo dexter (Pearce's Case, Cro. Car. 
 382); and where particular English 
 words have acquired some sense dif- 
 ferent from their natural one, an aver- 
 ment by way of inducement of that 
 acquired sense is necessary; an in- 
 nuendo without such an averment 
 would be insufficient (McGregor v. 
 Gregory, 2 Dowl. N. S. 769) : so held 
 of the terms black sheep and black 
 legs (7(5?.); Baby farming (Ramscar 
 V. Gerry. i6 N. Y. St. R. 789) ; and 
 see notes i, p. 122, and 4, p. 126, 
 post. 
 
1 34-] 
 
 CONSTRUCTION OF LANGUAGE. 
 
 121 
 
 has any reference to^ or is connected with, any other lan- 
 guage or event, which affects its meaning or effect, it must 
 be construed in relation to such other language or event. ^ 
 and this, although on the face of the alleged defamatory 
 matter there is no reference to any other language or 
 event.* In the absence, however, of any allegation or 
 proof to the contrary, matter which has on its face no ref- 
 erence to any other language or event, will not be pre- 
 sumed to have any such reference, and must be construed 
 as standing alone.* 
 
 ^ But a circular issued by a com- 
 mercial agency, containing the names 
 of the plaintiff, his address and busi- 
 ness followed by asterisks with the 
 reference at its foot, " for explanation 
 please call at our office," was held 
 not capable of a construction which 
 was actionable. (Kingsbury v. Brad- 
 street Co. 35 Hun, 212; and see note 
 to this case.) 
 
 2 Tighe V. Cooper, 7 Ell. & Bl. 639; 
 § 126, ante. The defendant has always 
 been permitted, by way of defense, to 
 show the matter aifecting the meaning 
 of the alleged defamatory matter, as 
 in an action for calling plaintiff a mur- 
 derer, it may be urged that the words 
 were used in the course of a conversa- 
 tion about unlawful hunting, and 
 merely imported that plaintiff was a 
 murderer of hares. (4 Co. 14.) So 
 where the charge was maintenance, 
 defendant might show that lawful 
 maintenance was intended. (Cro. 
 Jac. 90; Kinnersly v. Cooper, Cro. 
 Eliz. 168 ; and see Brittridge's Case, 4 
 Cro. 18.) A charge of theft explained. 
 (Hawn V. Smith, 4 B. Monroe, 385.) 
 Action cannot be maintained where 
 the words, although imputing a crime, 
 where accompanied by such an ex- 
 planation as showed they referred to 
 an innocent transaction, or in law 
 could not have constituted a crime, or 
 were then understood by all the hearers 
 as referring to such a transaction. 
 (Hayes v. Ball, 72 N. Y. 418.) The 
 words "wanted E. B. Z.. M. D., to 
 pay a drug bill," are not libelous on 
 their face, but they may become libel- 
 
 ous from the circumstances under 
 which they are published. (Zier v. 
 Hofiin, 21 No. West. Rep. 862, 
 Minn.) And where defendant charged 
 plaintiff with the commission of an 
 offense, but alleged that plaintiff was 
 insane at the time : Held^ that, although 
 otherwise actionable, yet as insanity 
 would be an excuse for the offense, the 
 charge was not actionable. (Abrams 
 V. Smith, 8 Blackf. 95 ; post, § 248.) 
 
 ' Explanatory circumstances 
 known to both parties, speaker and 
 hearer, are to be taken into the ac- 
 count as part of the words. (Dorland 
 V. Patterson, 23 Wend. 422; citing 
 Andrews v. Woodmansee, 1 5 Id. 232 ; 
 Miller z/. Maxwell, 16 Id. 9; Heming 
 V. Power, 10 M. & W. 569; and see 
 Hankinson v. Bilby, 2 Car. & Kir. 
 440; 16 M. & W. 446; Perry v. 
 Mann, i R. I. 263; Foval v. Hellett, 
 10 Bradw. (111.) 265.) Words other- 
 wise actionable explained at the time 
 of publication by referring to a known 
 and particular transaction are to be 
 construed accordingly. (Van Rens- 
 selaer V. Dole, I Johns. Cas. 279; 
 Aldrich v. Brown, 1 1 Wend. 596 ; 
 Trabue v. Mays, 3 Dana, 138 ; Emery 
 V. Miller, l Denio, 208 ; Thompson v. 
 Bernard, i Camp. 48 ; Shecut v. Mc- 
 Dowell, 3 Brevard, 38; Cristie v. 
 Cowell, Peake, 4; Pegram v. Styron, 
 I Bailey, 595; Hodgson v. Bulpit, 6 
 Vict. L. R. 440, Law.) Words which 
 do not necessarily import anything in- 
 jurious, may do so when taken in 
 connection with other charges (Beards- 
 ley V. Tappan, I Blatchf. C. C. R 
 
122 
 
 CONSTRUCTION OF LANGUAGE. 
 
 [CH. VII. 
 
 It is impossible to anticipate or catalogue all the cir- 
 cumstances which may affect the meaning of language, but 
 among them are the circumstances of time, place, and 
 usage/ and some others to be presently mentioned. 
 
 588), or according to the common un- 
 derstanding of them. (Cooper v. 
 Perry, Dudley, 247.) The defendant 
 may show the language related to 
 some transaction (Ceeley v. Hoskins, 
 Cro. Car. 509 ; Norton -u. Ladd, 5 
 N. H. 203), or was uttered in connec- 
 tion with other words, which controlled 
 its meaning. (Stevens v. Handly, 
 Wright, 123; Williams v. Cowley, 18 
 Ala. 206 ; Hays v. Mitchell, 7 Blackf. 
 117; Harrison v, Findley, 23 Ind. 265 ; 
 Robinson v. Keyser, 2 Foster [N. H.], 
 
 323) 
 
 Where the language \% prima facte 
 actionable, the burden is on the de- 
 fendant to show that it is not action- 
 able. (2 Starkie on Slander, 85; 
 Penfold V. Westcote, 2 N. R. 335 ; 
 Cristie v. Cowell, Peake's Cas. 4; 
 Sel. N. P. 1250; Bissell 7/. Cornell, 24 
 Wend. 354; Watson v. Nicholas, 6 
 Humph. 174.) 
 
 * " Libel . . . has been vari- 
 ously construed at various times; 
 being a mere legal reason, and there- 
 fore variable not only according to all 
 the circumstances of the times, but 
 according to the ability and informa- 
 tion of the judges. In ignorant and 
 despotic times it had not the same 
 limits and precision as in the days of 
 liberty and science." (Holt on Libel, 
 43.) " In judging of the meaning of 
 language, our juries have been direct- 
 ed to attend to the criteria of the time, 
 the place, when and where, and 
 the persons by and to whom the 
 language has been employed." (Borth- 
 wick on Libel, 142.) " It would be no 
 excuse, having applied an insulting 
 epithet to any one, if we should after- 
 wards plead that, tried by its etymo- 
 logy and primary usage, it had nothing 
 offensive or insulting about it, although 
 indeed Swift assures us that in his 
 time such a plea was made and was 
 allowed. "I remember," he says, " at 
 a trial in Kent, where Sir George 
 Rooke was indicted for calling a 
 
 gentleman 'knave' and ' villain,' the 
 lawyer for the defendant brought off 
 his client by alleging that the words 
 were not injurious, for ' knave,' in the 
 old and true signification, imported 
 only a servant, and "villain,' m Latin 
 is villicus, which is no more than a man 
 employed in country labor or rather a 
 baily." (Trench's EngUsh, Past and 
 Present.) The words published should 
 be construed in the sense in which 
 they are understood by those who read 
 them. An obsolete or antiquated and 
 practically unused meaning of words, 
 cannot be searched for and studied 
 out, to show that at some remote 
 period of history, they were not op- 
 probrious in order to shield a person 
 publishing and using them. (Robert- 
 son V. Bennett, 44 N. Y. Superior Ct. 
 [J. & S.] 66.) 
 
 " Precedents in actions for words 
 are not of equal authority as in other 
 actions; norma loquendi is the rule 
 for the interpretation of words, and 
 this rule is different in one age from 
 what it is in another. The words 
 which a hundred years ago did not im- 
 port a slanderous sense, may now, and 
 vice versa.'' (Harrison v. Thorn- 
 borough, 10 Mod. 196; cited Beards- 
 ley V. Dibblee, i Kerr. 246.) And it 
 is the duty of courts to take notice of 
 the mutations in language. (Vanada's 
 Heirs v. Hopkins, i J. J. Marsh. [Ky.] 
 R. 287.) This was done. (Walden v. 
 Mitchell, 2 Vent. 265.) " The preced- 
 ents in Croke's reports are beginning 
 to be considered apocryphal." (Gib- 
 son, J., Bash V. Sommer, 20 Penn. St. 
 R. 1 59.) " Many of those cases [in 
 Cro. Jac. and Cro. Car.] could not be 
 supported at the present day. I do 
 not mean to cast any doubt upon the 
 cases quoted from Bacon's Abridg- 
 ment andComyn's Digest." (Pollock, 
 C. B., Tozer v. Mashford, 6 Ex. 539; 
 and see Beardsley v. Dibblee, I Kerr, 
 260; Foster v. Small, 3 Whart. 143; 
 Bloss V. Tobey, 2 Pick. 320.) Bridge- 
 
§ I35-J 
 
 CONSTRUCTION OF LANGUAGE. 
 
 123 
 
 § 135. In allowing extraneous circumstances to affect 
 the construction of language, courts inquire whether or 
 not the hearer or reader of the language knew such cir- 
 cumstances. If the hearer or reader was acquainted with 
 those extraneous circumstances, the construction will be 
 with reference to them, not because it is important how 
 the hearer or reader understood the language, but because 
 those circumstances form a proper element in determin- 
 ing the meaning to be attributed to the language in ques- 
 
 man, Ch. J., said he was not satisfied 
 to go by precedents, because he held 
 that to be scandalous now which was 
 not twenty years ago. That it is use 
 makes words have force, and words 
 that are actionable now hereafter may 
 not be so. (Carth. 55.) " The opinions 
 of later times have been in many in- 
 stances different from those in former 
 days in relation to words." (Holt, 
 Ch. J., Baker v. Pierce, 6 Mod. 23.) 
 Common sense differs in different ages. 
 What was bom in the schools passes 
 by degrees into the world at large, and 
 becomes the property of the market 
 and the tea-table (Coleridge, Biogra- 
 phia Literaria, vol. i, p. 84, ed. 1847), 
 and to the effect that there is more 
 truth in the general acceptation than 
 in the etymology of terms. (See 
 Guizot Hist, de la Civihs. en Europe, 
 vol. I, p. 10, ed. 1846; Cousin Hist. 
 ^ /a Philosophic, vol. 2, p. 221, ed. 
 1846.) It is necessary to attend to the 
 circumstances and history of the times 
 in which the libel was published. 
 They tend to explain the motives 
 which induced the publication and the 
 meaning of the libel itself. It is im- 
 possible for the court or jury to shut 
 their ears against the history of the 
 times. (Per L'd Kenyon, cited in 
 trial of Arth. H. Rowan, 1794.) 
 
 In the time of Charles the Second 
 of England, it was held actionable to 
 call one a Papist or to say he went to 
 mass (Row v. Clargis, i Ld. Raym. 
 482 ; 2 Salk. 696 ; Walden v. Mitchell, 
 2 Vent. 265 ; Cutler v. Friend, 2 Show. 
 140) ; but held otherwise in the reign 
 of King James. (Ireland v. Smith, 2 
 Brown, 166.) So in England, to write 
 
 of one that he was a " Man Friday, ^^ 
 was held not actionable (Forbes v. 
 King, I Dowl. P. C. 672 ; i Cr. & M. 
 435 ; 2 Law Jour. Rep. N. S. 109 Ex.), 
 for the reason as stated in Hoare v. 
 Silveriock, 12 Adol. & El. N. S. 624, 
 that being a black man might be a 
 great misfortune, but was no crime ; 
 while in the United States it has been 
 held actionable to call one a mulatto. 
 (King V. Wood, i N. & M. [So. Car.] 
 184; Eden v. Legare, i Bay, 171; 
 Atkinson v. Hartley, i McCord, 203; 
 contra, Barrett v. Jarvis, i Ham. 83, 
 note; see Borthwick on Libel, 176; 
 Mills' Logic, bk. iv, ch. v. — The his- 
 tory of variations in the meaning of 
 terms.) 
 
 The word " screwed," ox '■'■strain- 
 ed,'' does not of itself import sexual 
 intercourse, but in certain localities it 
 may have that import. (Coles v. 
 Haveland, Cro. Eliz. 250 ; Miles v. 
 Van Horn, 17 Ind. 245; Rodebaugh 
 V. HoUingsworth, 6 Ind. 339; Vin. 
 Abr. Act for Words, L, b, 7.) She 
 is getting fat. held to mean she is 
 pregnant (Emmerson v. Marvel, 55 
 Ind. 265), and so of she is in a fix 
 (Acker v. McCullough, 50 Ind. 447 ; 
 and see Wilson v. Barnett, 45 Ind. 
 163). In London, England, pimp 
 signifies common bawd. (Dymmock 
 V. Fawset, Cro. Car. 393, pi. 5.) 
 Healer of felons means, in some local- 
 ities, aider of felons : limir means 
 thief, and outputter means receiver of 
 felons (Vin. Abr. Act. for Words, L, 
 b, I, 6,) and see Id. 4, 7, as to the 
 word champertor and the phrase cut 
 him out of doors ; and see note i, 
 page 120, ante.) 
 
124 
 
 CONSTRUCTION OF LANGUAGE. 
 
 [CH. VII. 
 
 tion. If the hearer or reader was not acquainted with 
 those extraneous circumstances, then they will not be 
 taken into consideration in determining the meaning of 
 the language. The hearer or reader not being acquainted 
 with those circumstances which affect the meaning of the 
 language, its effect upon such hearer or reader is as if no 
 such circumstances existed, and the language is to be con- 
 strued without reference to such circumstances. The cir- 
 cumstance that the act charged is physically or legally im- 
 possible, does not always prevent the language being ac- 
 tionable. The alleged test in such a case is the knowledge 
 possessed by those to whom the language is published. 
 Thus where the defendant attributed to the plaintiff sexual 
 intercourse with a dog, and of having given birth to a 
 litter of pups in consequence of such intercourse, it was 
 held not to be a defense that such a result was impossible.' 
 
 ' Kennedy v. Gifford, 19 Wend. 
 296. Courts cannot say judicially 
 whether it be possible for a woman to 
 have connection with a dog, or to 
 have pups by him, but as it is not pop- 
 ularly believed to be impossible, the 
 people not being presumed to know 
 scientific facts, the injury to the plaint- 
 iff wjl be the same in either case, and 
 the action will lie. (Ausman v. Veal, 
 10 Ind. 355; Cleveland z/. Detweiler, 
 1 8 low^, 299; Haynes v. Ritchey, 30 
 Iowa, 76.) 
 
 "Thou art a bastard-bearing whore, 
 and hadst two bastards." It was ob- 
 jected that these words spoken of a 
 married woman were not actionable, 
 because a married woman cannot have 
 a bastard, but held actionable because 
 they purported that she was not mar- 
 ried when she had the bastards. 
 (Stevens v. Ask, Sty. 424.) 
 
 These words concerning a church- 
 warden, " Who stole the bell ropes, 
 you scamping rascal?" Not action- 
 able, because the property of the bell 
 ropes was in the plaintiff as church- 
 warden, and as he could not steal his 
 own property, the words imputed no 
 felony. (Jackson v. Adams, 2 Bing. N. 
 C. 402; 2 Scott, 599.) " If a man says 
 
 to a miller who keeps a com mill' 
 thou hast stolen three pecks of meal' 
 an action lies ; for, although the corn 
 was delivered to him to grind, never- 
 theless, if he steal it, it is felony, being 
 taken from the rest." (l Roll's Abr. 
 73, § 16, cited Nichols v. The People, 
 17 N. Y. 1 17 ; and see Hume v. Arra- 
 smith, I Bibb, 165 ; and § i6g, post.) 
 
 In an action for slander the words 
 were: "You area thief; you robbed 
 Mr. L. of ;£3o." The words were 
 spoken in the hearing of B. and of 
 several strangers. B. knew that the 
 words did not mean to impute felony, 
 but meant to impute that the plaintiff 
 had improperly obtained £^0 from Mr. 
 L. to compromise an action for a dis- 
 tress : Held, that under these circum- 
 stances the question to be left to the 
 jury was not what the defendant 
 meant by the words he spoke, but what 
 reasonable men, hearing the words, 
 would understand by them.. Semble, 
 also, that if all the persons, present 
 when the words were spoken had 
 known that the words did not impute 
 felony, that would have been an answer 
 to the action. (Hankinson v. Bilby, 2 
 Car. & Kir. 440; 16 M. & W. 442 ; 
 Bannon v. Cleary, 25 N. Y. Weekly 
 
§ I35-] 
 
 CONSTRUCTION OF LANGUAGE. 
 
 125 
 
 But semble that it might have been a defense if it had been 
 shown that the defendant and those who heard the words 
 knew that such a result was impossible.^ 
 
 To charge A. with the murder of B., although B. was 
 alive at the time, would be actionable ; but semble not so 
 if those to whom the publication was made knew that B. 
 was alive.^ So, semble^ one tenant in common of chattels 
 cannot be guilty of larceny of the chattels held in common ; 
 and therefore to charge one of several tenants in common 
 with larceny of a chattel held in common, would be ac- 
 tionable, unless those to whom the publication was made 
 
 Dig. 439-) The mere fact that the 
 defendant charged the plaintiff with 
 theft, in regard to an article of prop- 
 erty which had been either loaned 
 or sold to the plaintiff, but which sale 
 or loan was not known to those in 
 whose presence he made the charge, 
 will not be a ground of showing either 
 that the act charged was impossible, 
 or that the charge was not seriously 
 made. (Smith v. Miles, i5Vt. 245; 
 and see Dixon v. Stewart, 33 Iowa, 
 125.) 
 
 1 The words were not defamatory 
 in their primary sense, the only part 
 which might have given them a second- 
 ary and defamatory meaning, viz., the 
 part that the manager had refused 
 assistance was not known to the per- 
 sons to whom the circular was ad- 
 dressed. (Capital, &c. Bk. v. Henty, 5 
 C. P. D. 514; aff'd, 7 App. C. 741.) 
 
 ^ So held, Sergart v. Carter, i Dev. 
 & Bat. 8; Snag v. Gee, 4 Coke, 16. 
 '• You have killed A. ; you have 
 poisoned him," are slanderous words, 
 though, at the time they were spoken, 
 A. was living in a distant part of the 
 country. "Eckart v. Wilson, \o S. 
 & R. 44 ; and see Tenney v. Clement, 
 10 N. H. 52; Carter v. Andrews, 16 
 Pick. I ; Stone v. Clark, 21 Pick. [38 
 Mass.] 51 ; Stallings v. Newman, 26 
 Ala. 300] "Wilt thou murder my 
 sister as thou didst thy wife ? " ac- 
 tionable, although the wife was alive. 
 (Brown v. Charlton, Keb. 359, pi. 52.) 
 
 Imputation of a possible crime ac- 
 tionable, although the charge could 
 not be true. (Rea v. Harrington, 2 
 Atl. Rep. 475 [Vt.], 21 The Reporter, 
 603.) "Thy father says thou hast 
 murdered thy husband." Judgment 
 was arrested after verdict for plaintiff 
 for these words, because it was not 
 alleged that the husband was dead at 
 the time the words were spoken. 
 (Boldroe v. Porter, Yelv. 20.) Words 
 actionable per se are not so when 
 spoken of a transaction not amounting 
 to the crime charged, if known to the 
 hearers to be so spoken. (Parmer v. 
 Anderson, 33 Ala. 78 ; Hankinson v. 
 Bilby, 2 Car. & K. 440; Carmicliael v. 
 Shiel, 21 Ind. 66; Perry v. Man, i R. 
 I. 263 ; Kennedy v. Gifford, 19 Wend. 
 296 ; Williams v. Stott, i Cr. & M. 675 ; 
 3 Tyrw. 688 ; Brite v. Gill, 2 Monr. 
 65 ; and see ante^ % 126, note to § 160.) 
 Action for slander in calling plaintiff 
 " a rogue and thief " The parties were 
 neighbors and rival milkmen. Plaint- 
 iff annoyed defendant by selling milk 
 outside his shop and loudly assuring 
 his customers it was real, " no chalk 
 and water here ; " defendant retaliated 
 by accusing plaintiff of robbing a man 
 out of ^50 in reference to the sale of a 
 milk walk. Lord Campbell said there 
 could not be larceny of a milk walk, 
 and directed the jury that if the words 
 declared upon, " rogue and thief," 
 were used merely as indefinite terms 
 of abuse, to find for the defendant. 
 
I20 CONSTRUCTION OF LANGUAGE. [CH. VII. 
 
 knew of the tenancy in common.^ For " if, at the time 
 the words are uttered, there are circumstances (known to 
 the hearers) which clearly show the words are not used in 
 the sense of imputing a felony, then the charge falls to the 
 ground and no action will lie." * " Words uttered must 
 be construed in the sense which hearers of common and 
 reasonable understanding would ascribe to them, even 
 though particular individuals better informed on the 
 matter alluded to might form a different judgment on the 
 subject." ^ 
 
 § 136. In the case of all oral, and of some written 
 publications, it may be possible to prove whether or not 
 the hearer or reader was acquainted with such extraneous 
 circumstances, but in the majority of cases it would be im- 
 possible to make such proof. Some circumstances are of 
 general notoriety that every person is presumed to be ac- 
 quainted with them, and then all language must be con- 
 strued in reference to them.* With circumstances of less 
 general notoriety, the knowledge of the hearer or reader is 
 in every case a question of proof, and the burden of making 
 
 * Carter v. Andrews, 16 Pick. I ; word is not to be taken." These 
 
 Stone V. Clark, 21 Pick. (38 Mass.) words, spoken of an upholsterer, held 
 
 51; and see note, p. 12^, ante. actionable, it being known to be a 
 
 2 Parke, B., Heming v. Power, 10 common practice for tradesmen topro- 
 
 M. & W. 567. tect themselves from arrest by their 
 
 8 Hanicinson v. Bilby, 16 M. & W. creditors by a counterfeit listing. 
 
 445; and see note to § \^,post. (Ame v. Johnson, lo Mod. in.) 
 
 ■* " It is the duty of the jury to con- In an action for libel for writing to 
 strue plain words and clear allusions a client of the plaintiff, a barrister, 
 to matters of universal notoriety, ac- '' He would gpve her ill counsel and 
 cording to their obvious meaning and stir up a suit ; he would milk her 
 as everybody else who reads must un- purse and fill his own large pockets," 
 derstand them. But the defendant per Vaughan, C. J., "Saying he will 
 may give evidence to show they were milk your purse, taken annunciatively, 
 used on the occasion in question in a signifies no more than milking a bull; 
 different or qualified sense. If no the phrase is not come to an idiom." 
 such evidence is given, the natural (King v. Lake, 2 Ventr. 18.) Mr. 
 interpretation of the words and the Parry, in his edition of Lord Camp- 
 obvious meaning to every man's under- bell's Libel Act, says (p. 13) it is 
 standing must prevail. (Lord Mans- doubtful if this decision could now be 
 field, Rex v. Home, 2 Cowper, 672.) supported, and we agree with him. 
 
 " You are a soldier; I saw you in (See note, page 120, ante:) 
 your red coat doing your duty ; your 
 
§§ ^Z7, I38.J CONSTRUCTION OF LANGUAGE. 1 27 
 
 such proof rests upon him who claims that the hearer or 
 reader possessed such knowledge. 
 
 § 137. The construction to be put upon any language 
 spoken or written must be that which is consistent with 
 the whole of the speech or writing. Thus the language of 
 any part of a writing is to he construed with reference to 
 the entire writing, and the language of any part of an oral 
 discourse is to be construed with reference to the entire 
 discourse. Hence words which, standing alone, would be 
 actionable, may not be actionable when taken in connec- 
 tion with their context.^ 
 
 § 138. Formerly the condition in life of the person 
 spoken of materially affected the construction, and words 
 concerning " great men of the realm " were held action- 
 able, which would not have been so held when published 
 concerning private persons. Language defaming these 
 '■ great men " was called scandalum magnatum. In the 
 United States no such distinction of persons is known.* 
 
 ' The sense is to be gathered from to give a defamatory sense to the docu- 
 
 the whole of the words or writing, ment." Capital, &c. Bk. v. Henty, 5 
 
 (2 Starkie on Slander, 85; Cooke v. C. P. D. 514; afi'd, 7 App. Cas 741. 
 Hughes, I R. & M. 112; Carter v. A defendant should be tried by all 
 
 Andrews, 16 Pick, i ; Cook v. Tribune that he has published in the same 
 
 Association, 5 Blatch. C. C. 352.) The pamphlet or paper. (Morehead v. 
 
 construction which it behooves a court Jones, 2 B. Mon. 210; seeposi, § 278.) 
 
 of justice to put on a publication is to Brittridge brought an action for the 
 
 be derived as well from the expres- words, "Mr. Brittridge is a perjured 
 
 sions used as from the whole scope old knave, anti that is to be proved by 
 
 and apparent object of the writer, a stake parting the lands of Martin & 
 
 (Cooper z/. Greely, I Denio, 358; citing Wright." The judgment was arrested 
 
 Spencer v. Southwick, 1 1 Johns. 592 ; on the ground that the latter words 
 
 Fidler v. Delavan, 20 Wend. 57.) explained the former as not meaning 
 
 " God forbid that a man's words should judicial perjury. (4 Co. 18; Yelv. 10, 
 
 by strict and grammatical construction, 34; Mo. 666.) 
 
 be taken 6y parcels, against the mani- * For information as to scandalum 
 
 fest intent of the party upon considera- magnatum, the reader is referred to 
 
 tion of all the words which import the Starkie on Slander; Holt on Libel, 
 
 true cause and occasion which mani- Secundum gradum dignitatis^ &c., 
 
 fest the true sense of them." (4 Co. was the rule of the Roman law, and is 
 
 18.) " It seems tome unreasonable," the rule in Scotland and France, 
 
 says Brett, L. J., "that where there (Borth wick on Libel, 176, 177, n., Inst. 
 
 are a number of good interpretations, Lib. IV, tit. 4; Code Criminal, tit. in, 
 
 the only bad one should be seized upon art. i; Black. Com. bk. Ill, c. vii, 
 
128 
 
 CONSTRUCTION OF LANGUAGE. 
 
 [CH. VII, 
 
 How far the condition in life of the parties will affect the 
 damages will hereafter be considered (§§ 391, 417). 
 
 § 139. The sense in which the publisher meant the 
 language cannot be material. The dicta which appar- 
 ently sanction such a rule will, on a comparison with their 
 context, be found in reality to be, not what did the defend- 
 ant mean, but what properly may he be taken to have 
 meant. How might the language be understood by those 
 to whom it was published. It cannot, therefore, be correct 
 to say that the language is to be constirued in the sense in 
 which the publisher intended it to be understood. " When 
 a party has made a charge that clearly imputes a crime, he 
 cannot afterwards be permitted to say, I did not intend 
 what my words legally imply." ^ 
 
 S. 5; Selwyn's N. P. 11 55; Barring- 
 ton on Penal Statutes ; 3 Reeve's 
 Hist, of the Common Law. See note 
 to § 182.) 
 
 1 Woodworth, J., McKinly v. Rob, 
 20 Johns. 351. In an action for libel 
 in calling plaintiff a skunk, a charge 
 to the jury, that if the word was in- 
 tended, as it ordinarily would be to 
 render plaintiff ridiculous and odious, 
 it was actionable, held proper. 
 (Massuere v. Dickens, 35 N. West. 
 Rep. 349.) Words having naturally 
 none of their own, carry that signifi- 
 cation to the hearer that he is used to 
 put upon them, whatever be the sense 
 of him that uses them. (Locke, Con- 
 duct of the Understanding, § 35.) 
 Hobbes terminates one of his chapters 
 with the conclusion that the interpre- 
 tation of language is with him to whom 
 it is addressed, and Shakespeare says : 
 " A jest's prosperity lies in the ear of 
 him who hears it." 
 
 The question in an action for words 
 is not what the party using them con- 
 sidered their meaning by any secret 
 reservation in his own mind, but what 
 he meant to have understood as their 
 meaning by the party to whom he 
 uttered them. (Read v. Ambridge, 
 6 C. & P. 308.) In words, as in all 
 other symbols of the mind, it is the 
 
 mind itself which is to be sought for. 
 (St. Augustine.) "Was the state- 
 ment reasonably calculated to produce 
 the result which it did ? .... A 
 cause is not the less proximate be- 
 cause the [publisher] may not have 
 calculated its effect. The injury does 
 not depend upon the intention of the 
 person making the statement. In in- 
 quiring whether a certain statement 
 by one person has brought about a 
 certain action on the part of another, 
 you must examine the circumstances 
 and condition of mind of the person to 
 whom the statement was made and 
 not of the person who made it." (Fry, 
 L. J., Seton v. Lafone, 57 L. T. R. N. 
 S. 547 ; 25 The Reporter, 32.) 
 
 The question is, how would ordi- 
 nary men naturally understand the 
 language. (Stroebel v. Wheney, 17 
 The Reporter, 595 [Minn. Jan. 1884]; 
 and see Cochran v. Melendy, 17 The 
 Reporter, 542 [Wis. Jan. 1884]; Weil 
 V. Schmidt, 28 Wis. 139.) 
 
 " The effect of the words used, and 
 not the meaning of the party in utter- 
 ing them, is the test of their being ac- 
 tionable or not." That is, first ascer- 
 tain the meaning of the words them- 
 selves, and then give' them the effect 
 any reasonable bystander would affix 
 to them. (Hankinson v. Bilby, 16 M. 
 
§ HO.] 
 
 CONSTRUCTION OF LANGUAGE. 
 
 129 
 
 § 140. Where the language is ambiguous, in that case 
 the manner in which it was or might be understood by 
 those to whom it was published, is material, and will con 
 trol in determining the meaning ; ^ but where the language 
 is unambiguous, it is to be construed in its ordinary sense, 
 and without reference to how those to whom it was pub- 
 lished understood it, or what was intended by the pub- 
 lisher.^ (§384.) 
 
 & W. 442.) " The secret intent of the 
 pubHsheris immaterial." (/</.) The 
 injury caused by slander depends on 
 the effect of the words on the hearers. 
 (Hawks V. Fatten, i8 Ga. 52.) 
 
 The speaker " is accountable for 
 the import of the words as they will 
 naturally be understood by the hearer." 
 (Borland v. Patterson, 23 Wend. 424 ; 
 citing Harrison v. Thornborough, 10 
 Mod. 196; Gidneyz/. Johnson, 11 Johns. 
 59.) " It was not enough that the 
 defendant could point the slander in 
 his own mind, so long as it appears to 
 have been pointless in the minds 
 of the hearers." {Id.) It is the 
 sense in which the hearers under- 
 stood the words on which the jury are 
 to pronounce. (Demarest v. Haring, 
 6 Cow. 76 ; Kennedy v. Gifford, 19 
 Wend. 296; Hagan v. Hendry, 18 Md. 
 177.) A defendant in an action for 
 slander is accountable for the import 
 of his words, as they will naturally be 
 understood by the hearer, and ex- 
 planatory circumstances known to 
 both speaker and hearer are to be 
 taken into account as a part of the 
 words. (De Moss v. Haycock, 15 
 Iowa [7 With.], 149.) " Language 
 shall be construed and understood in 
 the sense in which the writer or speaker 
 intended it." (Commonwealth v. 
 Kneeland, 20 Pick. 206; Kerr v. 
 Force, 3 Cranch Cir. Ct. 8.) If the 
 words impute a crime, it is not neces- 
 sary to allege an intention to charge 
 such crime. (Galloway v. Courtney, 
 10 Rich. Law, 414.) 
 
 " Nor by the term meaning are we 
 to understand what the defendant in- 
 tended to express; for he may have 
 designedly written that which, in its 
 literal sense, should be imperfect. 
 
 9 
 
 But we are to understand the meaning 
 which he intended others should be- 
 lieve him to have — the sense in which 
 he designed his production should be 
 received by others." (George on Libel, 
 36; st&post, § 281.) 
 
 1 Charges of unchaste conduct are 
 seldom made in plain terms, and in 
 such cases it became necessary to 
 prove what the person who heard or 
 read the words understood was the 
 meaning of the publisher. (Brans- 
 tetter V. Dorrough, 81 Ind. 527; Bin- 
 ford V. Young, 16 N. East. Rep. 142 ; 
 Knapp V. Fuller, 55 Vt. 311 ; 29 Alb. 
 L. J. 140; Bourke v. Warren, 2 C. & 
 P. 307 ; see post, § 144, subd. /.) 
 
 ^ A man is to some extent respon- 
 sible for the hearing of the bystanders, 
 if he uses language which imputes 
 crime, with an explanation ; if the by- 
 standers did not hear the explanation, 
 he is liable to an action. (Maybee v. 
 Fisk, 42 Barb. 336; see, however, ap- 
 parently contra, Shecut v. M'Dowell, 
 3 Brevard, 38.) But the understanding 
 of the bystanders cannot be shown to 
 make words actionable per se, which, 
 as alleged in the declaration, are not 
 actionable per se. (Smith v. Gaffard, 
 33 Ala. 168.) Where the charge was 
 actionable per se, and unambiguous, 
 and there were no circumstances to 
 qualify it, it was held error to charge 
 the jury that unless the words were 
 understood by the hearers in a slan- 
 derous sense, they must find for the 
 defendant. (Jarnigan v. Fleming, 43 
 Mo. 711.) 
 
 ''Taken by itself, and without 
 more, the understanding of a person 
 who hears an expression is not the 
 legal mode by which it is to be ex- 
 plained. If words are uttered or 
 
I30 
 
 CONSTRUCTION OF LANGUAGE. 
 
 [CH. VII. 
 
 § 141. The construction of language as actionable or 
 not actionable, is sometimes determined by the knowledge 
 or imputed knowledge of the person spoken of. Thus, the 
 words, "that thief, A., hath stolen my goods and delivered 
 them to Bacon," held not to give any right of action to 
 Bacon, it not being alleged he knew the goods were 
 stolen.^ So of the words, he received goods that were 
 stolen, and will be hanged for them.^ You have passed 
 counterfeit money.* So, to allege that one got his sister 
 with child, or had carnal intercourse with his daughter. 
 
 printed, the ordinary sense of those 
 words is to be taken to be the mean- 
 ing of the speaker." (Daines v. Hart- 
 ley, 3 Ex. 200.) "There can be no 
 doubt that words may be explained by 
 bystanders to import something very 
 different from their obvious meaning. 
 The bystanders may perceive that 
 what is uttered is uttered in an ironi- 
 cal sense, and therefore that it may 
 mean directly the reverse of what it 
 professes to mean. Something may 
 have previously passed which gives a 
 peculiar character and meaning to 
 some expression; and some word 
 which ordinarily is used in one sense 
 may, from something that has gone 
 before, be restricted and confined to a 
 particular sense, or may mean some- 
 thing different from that which it ordi- 
 narily and usually does mean." {Id.') 
 "We are to understand words in 
 the same sense as the hearers under- 
 stood them." (Button v. Heyward, 8 
 Mod. 24.) "In a common sense, ac- 
 cording to the vulgar intendment of 
 the bystanders." (Somers v. House, 
 Holt, 39; ante, § 135; Hankinson w. 
 Bilby, 16 M. & W. 442.) Language 
 imputing an indictable offense is ac- 
 tionable or not, according to the sense 
 in which, it may fairly be understood 
 by those who hear or read it, and who 
 are not acquainted with the matter to 
 which it relates, or which may render 
 it a privileged communication. {Id.) 
 To accept the understanding of the 
 words by the hearer or reader as their 
 true meaning "would be to make the 
 defendant's liability depend, not on his 
 own malicious intent and purpose, in 
 
 using the language, which might be 
 quite innocent and free from blame, 
 but upon the misconception or morbid 
 imagination of the person in whose 
 hearing they were spoken." (Heard 
 on Libel, § 268, citing Snell v. Snow, 
 13 Mete. 278; Van Vechten v. Hop- 
 kins, 5 Johns. 211; Gibson «/. Williams, 
 4 Wend. 320; AUensworth v. Cole- 
 man, 5 Dana, 315.) The judgment of 
 the witness is not to be substituted 
 for the judgment of the jury. (Heard 
 on Libel, § 269 ; Cresinger v. Reed, 25 
 Mich. 450.) " Words are to be taken 
 in that sense that is most natural and 
 obvious, and in which those to whom 
 they are spoken will be sure to under- 
 stand them." (Heard on Libel, § 163.) 
 Where a certain meaning is alleged, 
 plaintiff may call a witness to show 
 that he (witness) so understood the 
 words. (De Armond v. Armstrong, 
 37 Ind. 35.) See post, % 384. 
 
 * Bacon's Case, Dal. 41, pi. 21. 
 
 " Ratcliff V. Long, Palm. 67. In 
 Miller v. Miller, 8 Johns. 58: Held, 
 that where the offense charged was 
 concealing stolen goods, it was not 
 necessary to allege that the plaintiff 
 knew the goods were stolen. (See 
 notes to § 173, post) " It would be 
 strange to say, and more to g^ve out 
 as the law of the land, that a man 
 should be allowed to defame in one 
 sense and defend himself in another." 
 (Van Vechten v. Hopkins, 5 Johns. 
 211.) 
 
 ' Pike V. Van Wormer, 6 How. Pr. 
 R. 99 ; Church v. Bridgman, 6 Mo. 
 190. 
 
I42.J 
 
 CONSTRUCTION OF LANGUAGE. 
 
 131 
 
 does not impute incest without an allegation that the 
 plaintiff was guilty of the act charged with a knowledge 
 of the relationship.^ Without an allegation of knowledge 
 it was held not actionable to charge, " He hath gotten 
 much wealth by trading with pirates,"^ or, " He was con- 
 federate with Campion the Jesuit,"^ or, " He poisoned 
 Smith,"* or, " He is a maintainer of thieves,"^ or, "He of- 
 fered or was about to offer for sale unwholesome meal."* 
 
 § 142. It is customary to concede (i) that formerly 
 courts construed language in mitiori sensu, and (2) that 
 the practice of so construing language has been aban- 
 doned.''' These propositions require some qualification. 
 
 ' Lumpkins z/. Justice, i Ind. 557; 
 Griggs V. Vickroy, 12 Ind. 549. 
 
 ^ Crook V, Averin, Godb. 252; 2 
 Bulst. 216. 
 
 ' Brown v. Lisle, Cro. Eliz. 251. 
 
 ■* Jacob V. Miles, Vin. Abr. Act. 
 for Words, E, b; and see Marsh v. 
 Davison, 9 Paige, 580, and post^ § 144, 
 subd. X. 
 
 ' Ball V. Bridges, Cro. Eliz. 746; 
 and see Tabbe v. Matthew, i Bulst. 
 109. 
 
 « Hemmenway v. Woods, i Pick. 
 (18 Mass.) 524. See note 2, page 125, 
 ante. 
 
 ' Where words are ambiguous, so 
 that they maybe expounded in good or 
 ill part, nQ action lies, for they shall 
 be expounded in the best sense. 
 (Anon. Cro. Eliz. 672.) "The law 
 strains not to hurt, but to heal." 
 (Coote V. Gilbert, Hob. 77 ^.) And 
 " where words are indifferent, and 
 are equally liable to two distinct in- 
 terpretations, we ought to construe 
 them in mitiori sensu., but we will 
 never make any exposition against the 
 plain, natural import of the words." 
 (Pratt, Ch. J., Button v. Heyward, 8 
 Mod. 24; and see Naber v. Miecock, 
 Skin. 183.) Words are not to be 
 taken in a milder sense than they have 
 in common acceptation. (Beers v. 
 Strong, Kirby, 12.) The maxim for 
 expounding words in mitiori sensu 
 has for a great while been exploded. 
 (Fortescue, J., Button v. Heyward, 8 
 
 Mod. 24; Roberts v. Camden, 9 East, 
 93; and see Wakley v. Healey, 7 
 Com. B. 591; Ogden v. Riley. 2 Green, 
 186; Duncan v. Brown, 15 B, Monr. 
 186; Fallenstein v. Boothe, 13 Mo. R. 
 427; Demarest v. Haring, 6 Cow. 76; 
 Pike V. Van Wormer, 6 How. Pr. R. 
 99; Backus V. Richardson, 5 Johns. 
 476.) "The earlier English judges 
 discouraged the actions of slander by 
 all sorts of evasions." (Gibson, J., 
 Bash V. Sommer, 20 Penn. St. R. 159; 
 and see Harrison v, Thomborough, 10 
 Mod. 196 ) "We will not give more 
 favor unto actions on the case for 
 words than of necessity we ought to 
 do, where the words are not apparent- 
 ly scandalous, these actions being now 
 too frequent." (Coke, Ch. J., Crofts 
 V. Brown, 3 Bulst. 167.) In AUsop v. 
 AUsop (5 Hurl. & N. 534) the court 
 says actions for slander are not to be 
 encouraged ; and see Bennett v. Wil- 
 liamson, 4 Sandf. 67, where it is said : 
 '• The law of libel ought to be consid- 
 ered and is in its spirit a benevolent 
 and salutary provision for the peace 
 and security of the community, but it 
 cannot redress every injury sustained 
 by a breach of morals or of good 
 manners. We may not approve of the 
 taste of publications such as is set 
 forth in the declaration in the cases. 
 We may lament the existence of a 
 disposition to make private character 
 too much the subject of comment and 
 abuse, without having it in our power 
 
132 
 
 CONSTRUCTION OF LANGUAGE. 
 
 [CH. 
 
 VII. 
 
 Alleged defamatory matter comes before the court for con- 
 struction in the form of a pleading, and then, of course, is 
 governed by the rules for construing pleadings, and among 
 these rules, that by which the pleader is supposed to have 
 stated his case in the manner most favorable to himself.^ 
 
 through the instrumentality of the law 
 to arrest the evil ; " and in Dolloway 
 V. Turrill, 26 Wend. 397, the action 
 for libel is designated as a sordid ac- 
 tion. "Such actions [slander, libel 
 and malicious prosecution] generally 
 involve more of passion than of prin- 
 ciple or actual damage." By the 
 Court, Wavle v. Wavle, 16 Hun, 
 126. "Generally speaking, a civil 
 action for libel is a dangerous ex- 
 periment. In a large majority of cases 
 the plaintiff, after advertising to all the 
 world that he is willing to sell his 
 reputation for money, discovers that 
 his reputation won't bring enough, 
 after all, to more than pay his counsel 
 fees." Merrill, Newspaper Libel, 97. 
 " Although slanders are to be sup- 
 pressed, yet the judges had resolved 
 that actions for scandals should not 
 be maintained by any strained con- 
 struction." (Wray, Ch. J., Stanhope v. 
 Blith, 4 Co. 15.) Ch. J. Holt said 
 that, whenever words tended to take 
 away a man's reputation, he would 
 encourage actions for them, because 
 so doing would contribute to the pre- 
 servation of the peace ; and he repeat- 
 ed a story attributed to Justice Twis- 
 den, of a man who, failing in his 
 action for words, said, if he thought 
 he should not have recovered dam- 
 ages, he would have cut the defend- 
 ant's throat. (Baker v. Pierce, 2 Ld. 
 Raym 959; 6 Mod. 24; Cas. temp. 
 Holt, 654; and see ante, note, p. 39. 
 One who couches his slander in am- 
 biguous terms, in the hope of blast- 
 ing the reputation of his neighbor 
 without incurring any legal responsi- 
 bility, cannot claim an indulgent con- 
 struction of his words. (Gibson v. 
 Williams, 4 Wend. 320.) 
 
 Starkie (l Starkie on Libel, 47) 
 refers to the following cases as speci- 
 mens of the doctrine of benignior 
 sensus : "Thou art as arrant a thief 
 as any in England, for thou hast 
 
 broke up J. S.'s chest, and taken away 
 ;£40." After verdict for plaintiff, held 
 not actionable. (Foster v. Browning, 
 Cro. Jac. 688.) " Thou art a lewd 
 fellow ; thou didst set upon me by the 
 highway, and take my purse from me, 
 and I will be sworn to it." After 
 judgment for the plaintiff, held on 
 error not actionable. (Holland v. 
 Stoner, Cro. Jac. 315.) " Thou art a 
 thievish rogue, and hast stolen bars of 
 iron out of other men's windows ; " 
 not actionable. (Powell v. Hutchins, 
 Cro. Jac. 204.) " J. D. was robbed of 
 ^40, and Alice Bagg [plaintiff] and 
 T. S. had it, and for that they will be 
 hanged ; " after judgment for plaintiff, 
 held not actionable. (King v. Bagg, 
 Cro. Jac. 351.) And so of "Thou 
 dost lead a life in manner of a rogue ; 
 I doubt not but to see thee hanged for 
 striking Mr. Sydman's man, who was 
 murdered." (Barrons v. Ball, Cro. 
 Jac. 33I-) 
 
 1 The law will not assume int avor 
 of a party anything he has not averred 
 (Cruger v. Hudson River R. R. Co., 
 12 N. Y. 201), or that the pleading is 
 less strong than the facts warrant. 
 (Id:) A pleading is to be .construed 
 in its popular sense (Woodbury v. 
 Sackrider, 2 Abb. Pr. R. 405 ; Mann 
 V. Morewood, 5 Sandf. 557); accord- 
 ing to what it says, and not what the 
 pleader intended. (Gould v. Glass. 
 19 Barb. 185 ; and see Allen v. Patter- 
 son, 7 N. Y. 480; Sheddon v Patrick, 
 I Macq. H. L. Cas. 535.) The court 
 will not, in support of a pleading, infer 
 a criminal intention where the pleader 
 has not ventured directly to aver its 
 existence. (Bartholomew v. Bentley, 
 15 Ohio, 670.) " It is a clear principle 
 that the language of an indictment [a 
 pleading] must be construed by the 
 rules of pleading, and not by the 
 common interpretation on ordinary 
 language, for nothing indeed differs 
 more widely in construction than the 
 
§ H2.J 
 
 CONSTRUCTION OF LANGUAGE. 
 
 133 
 
 We are of the opinion that an examination of the de- 
 cisions will disclose the fact that what are regarded as con- 
 structions in mitiori sensu are usually a more or less rigor- 
 ous application of this rule of pleading. The words ad- 
 mitting of two constructions, the one actionable and the 
 other not actionable, where the pleader failed to point the 
 language to the actionable meaning, courts have refused to 
 put the actionable meaning on the language, supposing 
 that, if the language had such a meaning, the pleader 
 would have pointed it out. The rule requiring certainty 
 in the allegations of a pleading was, no doubt, carried to 
 excess,^ but we take it to have always been and to be still 
 the rule, that where a party makes a charge of having been 
 injured by language, it is for him to show that the words 
 have a defamatory sense,^ and that, where the language is 
 
 same matter when viewed by the 
 rules of pleading and when construed 
 by the language of ordinary life." 
 (Per Earle, J., in Reg. v. Thompson, 
 16 Q. B. 832, 846; 4 Eng. Law & Eq. 
 R. 287, 292; and see BlickenstafF v. 
 Perrin, 27 Ind. 527 ; Lukehart v. Byer- 
 ley, S3 Penn. St. Rep. 418.) 
 
 • Action for the words, Home dit : 
 Sir Th. Holt hath taken a cleaver and 
 stricken his cook upon the head, so 
 that one side of the head fell upon 
 one shoulder and the other upon the 
 other shoulder, et [the declaration] ne 
 averr que le cook fuit mort, et pur 
 ceo fuit adjudge nemy bon. For it 
 not being averred that the cook was 
 killed, the striking was a trespass 
 only. (Holt v. Astgrigg, Cro. Jac. 1 84 ; 
 RoUe R. 286.) In England such a 
 striking is by statute (7 Wm. IV & i 
 Vict. ch. 85, § 4) a felony. 
 
 2 Tindal, Ch, J., Edsall v. Russell, 
 5 Scott's N. R. 801 ; 2 Dowl. N. S. 
 614; 4 M. & G. 1090; 12 Law Jour. 
 Rep. N. S. C. P. 4; note 2, p. n8, 
 anie. " Either the words themselves 
 must be such as can only be under- 
 stood in a criminal sense, or it must 
 be shown by the introductory allega- 
 tions that they have that meaning, 
 
 otherwise they are not actionable." 
 (Holt V. Scholefield, 6 T. R. 691.) 
 Words, to be actionable, should be 
 unequivocally so. (Harrison v. Straf- 
 ton, 4 Esp. Cas, 218.) Where there is 
 no introductory averment, plaintiff 
 must be held to allege that the words 
 were used in their natural and ordi- 
 nary signification (Edgerly v. Swain, 
 32 New Hamp. 478) ; and they will be 
 so construed, and not in mitiori sensu. 
 (Chaddock v. Briggs, 13 Mass. 248; 
 Bloss V. Tobey, 2 Pick. 320.) The 
 rule is that the language employed is 
 to be given its ordinary import and 
 meaning, unless an explanation accom- 
 panies the words which gives them a 
 different meaning, or unless all the 
 hearers understand that they refer to 
 a transaction which cannot constitute 
 the crime which the words imply. 
 (Hayesz/. Ball, 72 N.Y. 418.) Where 
 the words have two meanings, one of 
 them harmless and the other injurious, 
 the innuendo may properly point out 
 the injurious meaning. (Joralemon 
 V. Pomeroy, 22 N. J. 271 ; Griffith 
 V. Lewis, 8 Q. B, 841; 7 Law Times, 
 177; Gosling z/. iVIorgan, 32 Penn. St. 
 Rep. 273.) 
 
134 CONSTRUCTION OF LANGUAGE. [CH. VII. 
 
 equally as susceptible of a harmless as of an injurious 
 meaning, it is the duty of the pleader, and not of the court, 
 to point out the injurious meaning ; and if he fails to do 
 this, the court will not put upon the language the injurious 
 meaning. Although there may be no rule by which courts 
 are required to put on ambiguous language its non-action- 
 able sense, certainly there is no rule by which courts are 
 required to put on ambiguous language the actionable 
 sense. The rule is that the natural meaning is to be 
 taken,^ and if in that view the language will bear a non- 
 actionable meaning, equally as well as an actionable one, 
 courts will adopt the non-actionable construction. Where 
 the meaning is doubtful, the pleader may, by an innuendo, 
 point the language to the sense in which he wishes it to 
 be understood. Where the alleged defamatory matter was 
 that A., a prostitute, was under the patronage or protec- 
 tion of the plaintiff, there was no innuendo pointing an 
 injurious meaning, yet the language was held actionable.^ 
 " Where words in their ordinary sense do not bear a de- 
 
 >" Words " are not to be taken in judgment." There being no innuendo 
 the more lenient or the more severe that the defendant meant to impute 
 sense, but in the sense which fairly be- that the medicines occasioned any in- 
 long to them, and which they were in- jury, the court refused to put that 
 tended to convey." (Ld. EUenborough, meaning upon them, and held the 
 Rex V. Lambert ; 2 Camp. N. P. Cas. words not actionable. And see 
 .398.) See note 2, p. 117, ante. The Forbes v. King, I Dowl. 672; Kelly 
 court will not, in support of a plead- v. Partington, 5 B. & Adol. 645. The 
 ing, infer a criminal intention, when head note to Wesley v. Bennett (5 
 the pleader has not ventured directly Abb. Pr. R. 498), that, "where the 
 to aver its existence. Bartholomew v. words alleged in a complaint for libel 
 Bentley, 15 Ohio, 670.) are fairly susceptible of a construction 
 
 2 More V. Bennett, 48 N. Y. 472 ; which would render them actionable, 
 
 rev'g s. c. 33 How. Pr. R. 180; 48 the complaint will be sustained upon 
 
 Barb. 229 ; and see DoUoway v. Tur- demurrer, although the words may 
 
 rill, 26 Wend. 383, where the court, in also be interpreted in a way which 
 
 the absence of an innuendo, construed would render them innocent," although 
 
 in a harmless sense a charge of using it may be a correct statement of the 
 
 money for shaving purposes. (Stone law, seems not to be justified by the 
 
 V. Cooper, 2 Denio, 293.) In Edsall opinion of the court. The decision 
 
 V. Russell (5 Scott N. R. 801 : 2 Dowl. was that the alleged libel might ■' fairly 
 
 N. S. 614; 4 Man. & G. 1090) the be held to mean " that plaintiff was 
 
 words were: " He made up the medi- engaged in the conspiracy mentioned 
 
 ernes wrong through jealousy, because in the charge. 
 I would not allow him to use his owa 
 
§ 1 42. J CONSTRUCTION OF LANGUAGE. I 35 
 
 famatory construction, there must be a distinct averment 
 that the words bear a meaning that is actionable." ^ Courts 
 will not strain to find an innocent meaning, nor will the 
 court put a forced construction on words having an in- 
 nocent meaning. The words, " He was guilty of most 
 abominable conversation and exposure of his person," held 
 not actionable per se? Where the allegation was that de- 
 fendant, speaking of certain spoons belonging to her, said : 
 " 1 dare say she [the plaintiff] has some of them in her 
 pocket." There being no innuendo, held not actionable, 
 as plaintiff might have the spoons in her pocket inno- 
 cently.* Publishing of plaintiff that he figured prominently 
 in the squatter riots, not explained by innuendo, held not 
 actionable, as it did not follow plaintiff was wrongly or 
 unlawfully engaged in said riots.* Where the words were 
 of persons in trade, " Look out sharp to get your bills met 
 by them," the court held that prima facie the words were 
 harmless.® And the word " blackleg " unexplained was 
 held not actionable.® So, there being no proper averment 
 to point the meaning of the words, " he was taken to court 
 on a charge of forgery," were held not actionable, as they 
 might mean plaintiff was taken to court as a witness.'' 
 Among other reasons which might be urged for requiring 
 the plaintiff to allege in what sense he considers and de- 
 sires the court and jury to consider the language was used 
 is this, that, unless he does so, he deprives the defendant 
 of the right to traverse the sense which the plaintiff im- 
 putes to the language of which he complains. [§ 3381.] 
 An instance of the advantage to a defendant of this right 
 
 1 Blackburn, J., Cox v. Cooper, 9 ' Daines v. Hartley, 3 Ex. 200. 
 Law Times Rep. 329. " Barnett v. Allen, i Fos. & F. 1 25 ; 
 
 3 Torbitt V. Clare, 9 Irish Law 3 Hurl. & N. 376. 
 
 Rep. 89; W^ard v. Reynolds, l Dav. ' Harrison v. King, 7 Taunt. 431 ; 
 
 & Mer. 507. aifi'g 4 Price, 46. A charge that 
 
 2 Martinere v. Mackay, 2 Law Re- plaintiff used his daughter, held to im- 
 porter, 126 (London, 1822), in Appen- pute incest. (Gath v. Lubach, 40 N. 
 dix, post. West. Rep. 68 1 . ) 
 
 * Clarke v. Fitch, 41 Cal. 473. 
 
136 
 
 CONSTRUCTION OF LANGUAGE. 
 
 [CH. VII. 
 
 is the case where the plaintiff alleged that defendant had 
 applied to him the term " black sheep," and that the de- 
 fendant was accustomed to use that term to mean a person 
 of bad reputation, and that the term was so used on the 
 occasion of which the plaintiff complained. The defend- 
 ant pleaded that he had not so used the term on the oc- 
 casion in question, and upon demurrer the plea was sus- 
 tained.^ 
 
 § 143. Where language may be' taken in a double 
 sense, the court, after a verdict, will usually construe it in 
 that sense which will support the verdict.^ If the language 
 
 ^ McGregor v. Gregory, 11 M. & 
 W. 287 ; affi'g Clarkson v. Lawson, 6 
 Bing. 587, and see Smith & Carey, 3 
 Camp. 361. 
 
 = In Surges v. Bracher (8 Mod. 
 240), it is said that, after verdict, the 
 court will always construe the words 
 to support the verdict, and the dictum 
 is repeated by Starkie without quali- 
 fication. (2 Starkie on Slander, 108.) 
 But such a rule as was pointed out by 
 Best, Ch. J., in Goldstein v. Foss (6 
 B. & Cr. 154; 9 D. & R. 197; 4 Bing. 
 489; Moo. & P. 402; 2 Y. & Jer. 146), 
 would practically deprive a party of 
 the right to move in arrest of judg- 
 ment ; and see Forbes v. King, i Dowl. 
 Pr. Cas. 672. In Ceely v. Hoskins 
 (Cro. Car. 509), the words were: 
 ' ' Thou art forsworn in a court of re- 
 cord, and that I will prove." It was 
 contended, after verdict for plaintiff, 
 that the action would not lie, because 
 it was not said in what court of record 
 he was forsworn, nor that he was for- 
 sworn in giving any evidence to a 
 jury ; that it might be intended only 
 that he was forsworn, not judicially, 
 but in ordinary discourse in some 
 court of record : Held^ the words must 
 be taken as an accusation of perjury. 
 The court adds : To say such an one 
 is a murderer, without saying whom 
 he murdered, or when, an action lies, 
 and it shall not be intended that he 
 was a murderer of hares, unless such 
 foreign intendment be shown or dis- 
 covered in pleadings. In Baal v. 
 
 Baggerly (Cro. Car. 326), the words 
 were : " Thou hast forged a privy seal 
 and a commission ! why dost thou not 
 break open thy commission ? " After 
 verdict for plaintiff it was contended 
 that the words were not actionable, 
 but by the court being found guilty, 
 the words are to be intended accord- 
 ing to the vulgar interpretation, that 
 the king's privy seal was meant, the 
 counterfeiting whereof is treason. In 
 Somers v. House (Holt, 39), the words 
 were : " You are a rogue, and broke 
 open a house at Oxford; and your 
 grandfather was forced to bring over 
 £30 to mend the breach." After 
 verdict for plaintiff, it was urged in 
 arrest of judgment that the word rogue 
 was not actionable, that breaking open 
 a house was but a trespass, and mend- 
 ing the breach might be repairing ; 
 but the court held the contrary, for, 
 taking all the words together, one 
 who heard them could not but under- 
 stand a felonious breaking ; the court 
 would take the words in a common 
 sense, according to the vulgar intend- 
 ment of the bystanders. In Baker v. 
 Pierce (2 Ld. Raym. 959; 6 Mod. 234; 
 Holt, 654), the words were: "Baker 
 stole my boxwood, and I will prove 
 it." After verdict for plaintiff, it was 
 urged in arrest of judgment, that the 
 words mean wood growing, of which 
 only a trespass could be committed ; 
 that to say you are a thief, and have 
 stolen my timber, or my apples, or my 
 hops, is not actionable, for it imports 
 
§ ^43-\ 
 
 CONSTRUCTION OF LANGUAGE. 
 
 137 
 
 admits of a harmless as well as an injurious meaning, which 
 is the meaning to be attached to it will be resolved by the 
 verdict.^ It is not sufficient to show by argument that the 
 language will admit of some other meaning than that which 
 obviously the jury have attached to it,^ and therefore, after 
 verdict for plaintiff, language which admits of an innocent 
 and an injurious meaning, will be construed to have its in- 
 jurious meaning.^ After verdict all averments on the side 
 of the successful party, which were involved in the issue 
 tried, will be taken to have been duly proved, unless the 
 
 only a trespass ; but the court ordered 
 judgement for the plaintiff, and denied 
 the authority of the case of Mason v. 
 Thompson (Hutt. 38), in which the 
 words, " I charge thee with felony in 
 taking forth from J. D.'s pocket, and 
 
 1 will prove it," were held not action- 
 able. In 3 Salk. 325; 2 Vent. 172; 
 
 2 Lev. 51 ; 2 Sir T. Jo. 235, the words 
 were: " He is a clipper and coiner.'' 
 After verdict for plaintiff, it was moved 
 in arrest of judgment, that it was not 
 a charge of clipping and coining 
 money, but held a clipping and coin- 
 ing of money must be intended. 
 Where the words were spoken by a 
 married woman, charging the theft 
 of ^er goods, to support a verdict, it 
 was held that she meant a theft of her 
 goods before marriage. (Powell v. 
 Plunket, Cro. Car. 52.) 
 
 ' Ford v. Primrose, 5 D. & Ry. 
 287; Giddings v. Merk, 4 Ga. 364; 
 O'Connor v. Lloyd, 2 Hudson & Br. 
 626; Chapman z/. Smith, 13 Johns. 78; 
 Sherwood v. Chace, 1 1 Wend. 38. 
 
 ^ Woolnoth V. Meadows, 5 East, 
 463 ; Roberts v. Camden, 9 East, 93. 
 
 ' " Words or signs will, after a 
 verdict for the plaintiff, be considered 
 by the courts to have been used in 
 their worst sense." (l Starkie on 
 Slander, 60; repeated, Heard on Libel, 
 § 173, citing Southee v. Denny, i 
 Ex. 196; Slowmanz/. Button, loBing. 
 402; 4 M. & Sc. 174; Wakley v. 
 Healey, 7 Com. B. 591 ; Tomlinson v. 
 Brittlebank, 4 B. & Adol. 630; 1 Nev. 
 & M. 455; Francis v. Roose, 3 M. & 
 
 W. 191 ; Hughes v. Rees, 4 M. & W. 
 204; Rowcliffe V. Edmonds, 7 M. & 
 W. 12; Digby V. Thompson, 4 B. & 
 Adol. 821 ; I Nev. & M. 485; Daines 
 V. Hartley, 3 Ex. 200; Read v. Am- 
 bridge, 6 C. & P. 308; Shipley v. 
 Todhunter, 7 C. & P. 680 ; Chaddock 
 v. Briggs, 13 Mass. 248; Goodrich v. 
 Davis, 1 1 Mete. 473 ; Brown v. Lam- 
 berton, 2 Binn. 35; Bloom z/. Bloom, 5 
 Serg. & R. 391; Cornelius v. VanSlyck, 
 21 Wend. 70; Butterfield v. Buflum, 9 
 New Hamp. 1 56 ; Hamilton v. Smith, 
 2 Dev. & B. [Law], 274; Hancock v. 
 Stephens, 1 1 Humph. 509 ; Goodrich 
 V. Woolcott, 3 Cow. 231; Walton v. 
 Singleton, 7 Serg. & R. 451 ; and see 
 Beers v. Strong, Kirby, 12; Wilson v. 
 Cottman, 2 Central Reporter, 868 ; Ct. 
 of App. M'd, N. Cent. R. R. Co. v. 
 Canton, 24 Md. 492.) 
 
 One of the reports commenced, 
 ' ' Willful and corrupt perjury ; " held 
 that, after verdict for the defendant, 
 this must be taken as a description of 
 the nature of the charge, not as an im- 
 putation, by the publisher, of the per- 
 jury in fact. (Lewis v. Levy, i Ellis, 
 B. & E. 537.) 
 
 Publishing in writing that the 
 plaintiff had realized the fable of the 
 frozen snake ; after verdict for plaintiff, 
 the court refused to arrest the judg- 
 ment, as the jury might have under- 
 stood the words " frozen snake " to 
 impute a charge of ingratitude to 
 friends, although not so explained by 
 innuendo. (Hoare v. Silverlock, 12 
 Ad. & Ell. N. S. 624.) 
 
138 CONSTRUCTION OF LANGUAGE. [CH. VII. 
 
 contrary appear upon the record/ and thus, after verdict 
 for plaintiff, if the language published may, in its ordinary 
 acceptation and without the aid of extrinsic circumstances, 
 be reasonably understood as having an actionable meaning, 
 judgment will not be arrested upon the ground that the in- 
 ducement and innuendoes do not sufificiently apply the 
 language to the plaintiff, nor because the innuendoes, in 
 so far as they apply the language to the plaintiff, are un- 
 warranted.^ If the innuendoes are unwarranted in any 
 other respect, it is a ground for arresting the judgment." 
 
 § 144. We here give some additional illustrations of 
 the manner in which the courts have construed certain 
 language ; many more illustrations will be found in the 
 next succeeding chapter : 
 
 a. Adultery, — A charge of violating the seventh com- 
 
 mandment, held not to import a charge of adultery.* 
 
 b. And — F'or. — A distinction has been taken between say- 
 
 ing. Thou art a thief, for thou hast stolen such a 
 
 1 Gates V. Bowker, 18 Vt. (3 * Farnsworth v. Storrs, 5 Cush. 
 Washb.) 23 ; Cass v. Anderson, 33 Vt. 412. A count in slander alleged that 
 (4 Shaw), 182; Hoyle v. Young, i defendant accused plaintiff of adultery, 
 Wash. 150; Ramsey v. Elms, 3 Jur. by words spoken of her, as follows: I 
 1 1 89. But nothing more will be pre- [defendant] was speaking to a certain 
 sumed after verdict than is necessary lady about Mrs. Y., or Mrs. Y.'s case, 
 to support the allegations. (Sweet- meaning the accusation that Mrs. Y. 
 apple V. Jesse, 2 Nev. & M. 36 ; 5 B. [plaintiff] had a loathsome disease, 
 & Adol. 27.) Where the words taken and had communicated it to a married 
 by themselves do not necessarily im- man named C. W. : held, the count did 
 port a charge of crime, yet where it is not set forth circumstances showing an 
 alleged in the innuendo that the de- accusation by defendant that plaintiff 
 fendant meant by the words that the had committed adultery, and the want 
 act was maliciously done, they will be of such averment was not cured by in- 
 taken, after verdict, to have been in- nuendo, and that the count was bad. 
 tended to import such a charge. (Tut- (York v. Johnson, 1 16 Mass. 482.) " I 
 tie v. Bishop, 30 Conn. 80; and see know all about that case, while she 
 Kennedy z/. Gifford, 19 Wend. 256; was out there .claiming to be the wife 
 Beers t/. Strong, Kirby, 12 ; Ramsey w. Of Funk, she was back here claiming 
 Elms, 3 Jurist. 1 189.) What defects to be my wife." Held not actionable, 
 are cured by Verdict, see Rushton v. per se. (Funk v. Beverly [Ind.], 13 
 Aspinall, Doug. 679; and i Smith's Mo. Est. Rep. 573.) " She has been ly- 
 Lead. Cas, ing on the lounge with a male boarder " 
 
 ^ Wakleyj'. Healey, 18 Law Jour, not actionable. (Koch w. Heideman, 
 
 C. P. 241 ; 7 C. B. 591. 16 Bradw. [111.] 478.) 
 
 ' §§335 to 344, /M/. 
 
§ 1 44-] CONSTRUCTION OF LANGUAGE. 139 
 
 thing, as a tree, which could not be a felony, and the 
 saying, Thou art a thief, and hast stolen such a thing, 
 since in the former case the subsequent words show 
 the reason for calling the plaintiff a thief, and that no 
 felonious imputation was meant ; but in the latter the 
 action lies for calling him a thief, and the addition, 
 Thou hast stolen, is another distinct sentence by itself, 
 and not the reason for the former speech, nor any 
 diminution thereof.^ To say one has been in jail for 
 stealing, in some cases held not to imply that the 
 party stole, and in others that it did. In the latter 
 class of cases, it was said he could not be imprisoned 
 for stealing if he did not steal .^ 
 
 c. Arson. — The words " Thou set fire to those buildings, 
 and thou wilt never be easy till thou hast told of it," 
 do not impute arson.^ So of the words, "he fired 
 his house ;* he burnt my barn ;^ he set the store on 
 fire, and none but him ;6 T. burned the mill himself ;'' 
 but the words. He set fire to and burned my factory 
 were construed to mean a willful burning,^ and the 
 words, " Public opinion says you was the author of it 
 [firing a stable], and what public opinion says I be- 
 lieve to be true," held to amount to a charge of 
 
 1 Cro. Jac. 114; Bull. N. P. 5; that the fire was not accidental, con- 
 Hob. JT, 106; Cro. Eliz. 857; Brownl. sequently we did not feel it right to 
 2; Godb. 241 ; Hard. 7; AH. 31 ; Sty. assess this association to pay what we 
 66; I Starkie on Slander, 99. This had reason to believe a fraudulent 
 distinction was referred to, and its cor- loss." Held to amount to a charge of 
 rectness questioned by. Holt, Ch. J., arson. (Montgomery v. Knox. 3 So. 
 Baker v. Pierce, 6 Mod. 23, where it is Rep. 211 [Fla.].) Charge of setting fire 
 said and and for have the same mean- to building of another actionable per 
 ing ; and see Lewis v. Acton, Yelv. 34. se. (Fleming v. Albeck, 67 Cal. 
 ^ Vin. Abr. Act. for Words, P, 227.) 
 
 a, 2. ^ Anon. 11 Mod. 220. 
 
 ' Rigby V. Heron, i Jur. 558. ' Barham v. Nethersall, Yelv. 21. 
 
 " We have recently been defending a « McNab v. McGrath, 5 Up. Can. 
 
 suit brought against this association Q. B. Rep. O. S. 516. 
 
 by K., who lost his stock of goods by ' Tebbetts v. Coding, 9 Gray 
 
 lire last October. There were circum- (Mass.), 254. 
 
 stances which satisfied the directors * Tuttle v. Bishop, 30 Conn. 80. 
 
I40 CONSTRUCTION OF LANGUAGE. [CH. VII. 
 
 arson ; ^ and so of the words, " I have every reason to 
 believe he burnt the barn, and I believe he burnt the 
 barn."^ " You set your house on fire; you are a bad 
 character," thereby meaning that plaintiflF had been 
 guilty of willfully setting his house on fire, and was a 
 person of bad character, and had subjected himself to 
 the penalties of the law for setting his house on fire, 
 there being no colloquium that the words were con- 
 cerning a house insured by the plaintiff against fire, 
 nor of a house situated in or contiguous to a populous 
 neighborhood, held on motion in arrest of judgment 
 after a verdict for plaintiff, that the words were not 
 actionable.* 
 
 d. Bawdy-house. — Your house is no better than a bawdy- 
 
 house, is equivalent to charging that the party kept a 
 bawdy-house ; * but public house, or house of ill-fame, 
 cannot be so construed.^ Whore-house is equivalent 
 to a bawdy-house, or house of ill-fame.® 
 
 e. Bigamy. — The words " he was married to a woman 
 
 [naming her], and kept her till he got sick of her, 
 and then sent her away, having all this time two 
 wives," amount to a charge of bigamy.'' 
 
 1 Gage V. Shelton, 3 Rich. 242. It * Huckle v. Reynolds, 7 C. B. N. 
 
 is the general opinion of the people in S. 114. 
 
 J.'s [plaintiffs] neighborhood that he ^ IDodge v. Lacey, 2 Carter (Ind.), 
 
 burnt C.'s gin-house, held actionable. 212. House of ill-fame, or bad house, 
 
 (Waters v. Jones, 3 Port. 442.) means the house is one of bad reputa- 
 
 * Logan V. Steele. I Bibb. 593; I tion, not that it is a bawdy-house, 
 believe A. [plaintiff] burnt the camp- unless there is an inducement that de- 
 ground, held actionable, (Giddens v. fendant was in the habit of using the 
 Merk, 4 Ga. 364.) My watch was words " house of ill-fame," to convey 
 stolen in Polly Miller's bar; I have the idea of "bawdy-house." {Id.; 
 reason to believe that Tina M. [plain- Peterson v. Sentman, 37 Md. 140.) 
 tiff] took it, and Polly Miller, her " Wright v. Paige, 36 Barb. 438; 
 mother, concealed it, actionable. (Mil- affi'd, Ct. of Appeals, 3 Trans. App. 
 ler V. Miller, 8 Johns. 60.) 134. 
 
 ' Jackson v. Greer, i Law Report- ' Parker v. Meader, 32 Vt. (3 
 
 er, 5 (London, 1821"). See Montgom- Shaw), 300. 
 ery v. Knox, 3 So. Rep. 211. 
 
§ I44-J CONSTRUCTION OF LANGUAGE. 
 
 141 
 
 / Blackleg. — The term blackleg does not necessarily mean 
 a cheating gambler.^ 
 
 g. Clipper. — Where the words were, Thou art a clipper, 
 and Shalt be hanged for it— it was held that the word 
 clipper, taken in connection with the words which fol- 
 lowed it, meant a clipping of money — a felony.^ 
 
 h. Conspiracy. — A libel which was alleged to be concern- 
 ing a false charge of felony, made through feelings of 
 religious bigotry, by the plaintiff against one D. S., 
 went on to allege that plaintiff was aided in making 
 said charge by one C. R., who was stated to " have 
 been for some time back employing every means 
 to win the confidence of this young gentleman, their 
 intended victim (meaning thereby that plaintiff and 
 said C. R. had been contriving some plan to assail 
 the character of said D. S.), as taking him on country 
 visits, and inviting him to the continent, with the 
 hope, it is alleged, of getting him altogether to them- 
 selves, and destroying his prospects the more easily, 
 by some foul charge, which he might not find means 
 of contradicting, there being no one else of the com- 
 pany. They had met with a direct refusal, it seems, 
 to their invitation to the continent, and therefore, 
 rather prematurely, opened their present plot (mean- 
 ing said charge of felony). Affidavits are, we under- 
 stand, shortly to be laid before the law offices of the 
 crown, charging the above facts, together with certain 
 conversations between the pair of Romanists, who 
 have trained this ingenious manoeuvre (meaning the 
 charge of felony aforesaid)." Held that the language 
 did not amount to a charge of conspiracy.^ 
 
 1 Bamett v. Allen, 3 Hurl. & N. » O'Connell v. Mansfield, 9 Irish 
 376; I Fos. & F. 125. Law R. 179. 
 
 2 Walter v. Beaver, 3 Lev. 166. 
 
142 CONSTRUCTION OF I,ANGUAGE. [CH. VII. 
 
 i. Convicted Felon. — Plaintiff having been convicted of 
 selling liquor in violation of law, was termed in a 
 printed circular a " convicted felon /" held, that if these 
 terms, taken in connection with the context and 
 the evidence, were understood to mean only an 
 offender against the license law, they were no cause 
 of action.^ 
 
 ii. Embezzling. — " H. B. McC. (plaintiff, a railroad con- 
 ductor), has been discharged for failing to ring up all 
 fares collected." Held, not in its ordinary sense 
 to imply that plaintiff had been discharged for em- 
 bezzling fares, but only for failing to "ring them up," 
 and there being no evidence that the meaning of the 
 words in the particular instance were other than their 
 ordinary meaning, the defendant was entitled to judg- 
 ment.^ To publish of the late manager of a factory, 
 among other things, that he became very neglectful of 
 his duty, the factory was badly managed besides which 
 reports were in circulation that all the materials of the 
 company sent to the factory were not used in the 
 construction of their pianos ; held, to amount to a 
 charge of embezzlement.^ 
 
 j. Embracery. — 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 
 
 » Perry v. Man, l Rhode Island, « Manner z/. Simpson, 13 Daly, 156, 
 
 263. Convicted scoundrel, with an and see Woddrop v. Thacher, 1 1 Atl. 
 
 innuendo meaning plaintiff had been Rep. 621 (Pa.), charging jury as to 
 
 guilty of a crime and had been con- what amounts to. (Chaplin v. Lee, 
 
 victed of such crime, was on demurrer 25 No. West. Rep. 609 fNeb-l.) 
 
 held actionable. (Wilson v. Lawson, Stating that plaintiff had " disappear- 
 
 Melboume Argus Rep. 30 Nov. 1857; ed with some of his employer's funds, 
 
 see Leyman v. Latimer, L. R. 3 Ex. and the police have been notified," 
 
 Div. 15.) may import embezzlement. (Mallory 
 
 2 Pittsburgh R'y Co. v. McCurdy, v. Pioneer Press Co. 26 No. West. 
 
 35 Alb. L. R. 202; 6 Cent. Rep. 719; Rep. 904, [Minn.].) 
 see in note to § 384, post. 
 
§ I44-] CONSTRUCTION OF LANGUAGE. 
 
 143 
 
 that he handed papers to the jury to influence or 
 bribe them — imputes embracery, and is actionable 
 per se} 
 
 k. Forgery. — The term forgery does not necessarily mean 
 a felonious forgery,* as to say one forged words and 
 sentiments for Silas Wright;^ and to deny having 
 signed a note, or authorized his name being indorsed, 
 does not import a charge of forgery ; * nor does a 
 charge, if you have any letters from them, you forged 
 them ; * or, I never put my name on the back of the 
 note, but he must have done it.^ A charge of alter- 
 ing books may impute forgery.'^ Exhibiting a note 
 and saying, " Do you think it is G.'s handwriting?" 
 may import a charge of forgery ; ' and so the words, 
 " He altered the note to get better security, to bind 
 me to pay it." ^ The words, I would give five dollars 
 if I could write as well as that — I never signed the 
 note,^* do not necessarily impute forgery. But a letter 
 charging plaintifT with having subscribed defendant's 
 name to a receipt without authority, and to defraud 
 him out of the money, and adding, It is not my pur- 
 pose to call hard names — the statute fixes the name 
 and punishment — imputes forgery." 
 
 /. Fornication. — To allege that a woman is not a decent 
 woman,^* or a bad character, a loose character, ^^ or has 
 
 1 Gibbs V. Dewey, 5 Cow. 503. » Harmon v. Carrington, 8 Wend. 
 
 2 Alexander v. Alexander, 9 Wend. 488. 
 
 141. See§ 167, ^oj^. *° Andrews v. Woodmansee, 15 
 
 3 Cramer ■v. Noonan, 4 Wis. 231. Wend. 232. 
 
 * Andrews v. Woodmansee, 15 1 1 Snyder w. Andrews, 6 Barb. 43. 
 
 Wend. 232. ' ^ Dodge v. Lacey, 2 Carter [Ind.], 
 
 « Mills V. Taylor, 3 Bibb, 469. 212. 
 
 « Atkinson v. Scammon, 2 Fost. 1 » Vanderlip v. Roe, 23 Penn. St. 
 
 40. Rep. (II Harris). 82. Charging an 
 
 ' ' Gay ». Homer, 14 Pick. (30 unmarried female with having had 
 
 Mass.) 535. illicit intercourse with a man named 
 
 8 Gorham v. Ives, 2 Wend. 534. is not actionable per se. (Pettibone 
 
 V. Simpson, 66 Barb. 492.) 
 
144 CONSTRUCTION OF LANGUAGE. [CH. VI. 
 
 raised a family of children to a negro, does not amount 
 to a charge of fornication ; ^ but to say of an unmar- 
 ried woman, she had a child and buried it in the 
 garden, imputes fornication.^ To say " Malvina 
 [plaintiff] has been to swear a young one," fairly con- 
 veys the idea that the plaintiff had been guilty of for- 
 nication.^ So do, with proper innuendoes, the words, 
 " A. caught them [plaintiff and B.] together in the 
 packing-room." * " 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 nd 
 coarse language."^ See § i'] 2, post. 
 
 m. Kill— Killed— Killing. — The words kill, killed, and 
 killing, unexplained, have a felonious signification.^ 
 The words, " I think the business ought to have the 
 most rigid inquiry, for he murdered his first wife, that 
 is, he administered improperly medicines to her for a 
 certain complaint, which was the cause of her death," 
 after verdict for plaintiflF, held actionable as imputing 
 a charge of manslaughter.'^ 
 
 1 Patterson v. Edwards, 2 Oilman, v. Hays, i Humph. (Tenn.) 402 ; Tay- 
 720. lor V. Casey, Minor (Ala.), 258; Eckart 
 
 2 Worth V. Butler, 7 Blackf. 251. v. Wilson, loSerg. & R. 44; Johnson 
 See § 172, post. Scandalous and v. Robertson, 4 Porter (Ala.), 486; 
 familiar converse with a woman can Chandler v. HoUoway, /i/. 18; Edsall 
 only mean illegal connection. (Patter- v. Russell, 5 Scott N. R. 801 ; 2 Dowl. 
 son V. Patterson, 15 Law Times, JST. S. 614; 4 Man. & G. 1090. 
 
 539.) ' Ford V. Primrose, 5 Dowl. & R. 
 
 8 Patterson ^z. Wilkinson, 55 Maine, 287. See § 168, /oiA " He killed her 
 
 42, ante, p. 129, note i. by his bad conduct, and I think he 
 
 * Evans v. Tibbins, 2 Phila. 210, knows more about her being drowned 
 A charge that plaintiff had crab-lice than anybody else," without any in- 
 upon her and got them from her lover ; ducement ; held not to import a crimi- 
 held to impute fornication. (Stoke v. nal homicide, and not to be action- 
 Miller, 3 Cent. Rep. 34 [Pa.], and 5 able. (Thomas v. Blasdale, 16 N. 
 Atl. Rep. 621.) East. Rep. 214.) " He knows how 
 
 ' Duncan, J., Walton v. Singleton, she came to her death. He killed her. 
 
 7 S. & R. 449; Buscher v. Scully, 107 He is to blame for her death. There 
 
 Ind. 246. was foul play there," without any in- 
 
 « Carroll v. White, 33 Barb. 620; ducement; held to impute a crime and 
 
 Button V. Heywafd, 8 Mod. 24 to be actionable. 
 Cooper V. Smith, Cro. Jac. 423 ; Hays 
 
§ I44-] CONSTRUCTION OF LANGUAGE. 145 
 
 n. Knave. — Imports dishonesty.^ 
 
 o. Known. — Stating plaintiff is about to commence an 
 action, but that he will not bring it to trial in a par- 
 ticular county because he is known there, amounts 
 to a charge that the plaintiff is in bad repute in that 
 county.** 
 
 /. Larceny. — The words, A man that would do that would 
 steal, do not impute a larceny ; * but to say one was 
 whipped for stealing hogs, does.* You will steal, im- 
 putes a charge of larceny.® The words '' he is mighty 
 smart after night," and " put him in the dark, and he 
 would get it all," spoken with reference to a dispute 
 which existed between plaintiff and defendant, relative 
 to the division of a certain tan-yard ; held not to im- 
 pute the crime of larceny, and not actionable.* I have 
 reason to suppose that many of the flowers of which 
 I have been robbed are growing on your premises, 
 held to amount to a charge of larceny.'' The words, 
 " my table-cloths are gone, and you know where they 
 are gone. If you will bring them back, I will say 
 nothing about it. My husband has gone down town 
 to get a warrant to search your house and imprison 
 you," impute a crime.^ 
 
 1 Hording V. Brooks, 5 Pick. 244.- 5°'^ f • S*. Louis Dispatch Co 65 Mo. 
 
 c B i„ j,gst 539-) -^""^ ^° °' ^^^ words " he stole 
 
 » Coopfr V. Greeley, i Denio, 347- "^y b""- I can prove it ; if he don't 
 
 3 Stees V. Kemble:27 Penn. H2; set le up I'll put him through and 
 
 : SrSu" 5 Vrsyk^ii ^td. N 1 R^p. 433 [Iowa].). PublUhing 
 
 -^ that persons employed m a depart- 
 
 ^°' • Kirksev v Fike, 20 Ala. 206. ment " have been dismissed for alleged 
 
 ' WaifamsVcardiner, i M. & W. theft of leather belongmg to the de- 
 ^., ^!^ «.» r,r,tP t n 126 ante partment," with a comment that "the 
 ^^^\ Hes/l Jo^eVr^ lowa'^t. A Pascals ought to feel thankful for 
 charge ?hat plaintiff had been accused getting off without more severe punish- 
 ofh?rse steal ng, had sued his accus- ment," is actionable, as amounting to 
 CTS and defendant had a verdict; a charge of theft. (Dwyer ^Fire- 
 Ted to rmputgrLd larceny. (John- man's Journal Co. n Daly, 248.) 
 
 10 
 
146 CONSTRUCTION OF LANGUAGE. [CH. VII. 
 
 q. Liar.— The words, " This is not the first time the idea 
 of falsehood and B. [plaintiff] have been associated 
 in the minds of many honest men," import that B. is 
 a liar.^ 
 
 r. Made away with.-^K charge of making away with does 
 not amount to a charge of larceny.^ 
 
 s. Murder. — To say one is guilty of the death of another 
 imports a charge of murder. The word guilty im- 
 plies a malicious intent, and can be applied only to 
 something which is universally allowed to be a crime. 
 But to say one was the cause of another's death does 
 not import a crime, for a physician may be the cause 
 of a man's death, and very innocently.* 
 
 /. Packing. — The charge of "packing a jury" imports the 
 corrupt selection of a jury.* 
 
 u. Perjury. — To publish a direct and positive contradic- 
 tion of what a witness, at a certain trial, had sworn 
 that A. had said ; held, not to amount to a charge of 
 perjury." Nor do the words, Thou wert detected of 
 perjury, imply being guilty of perjury." Words 
 
 ^ Brooks v. Bemiss, 8 Johns. 356. the exactions of his wife, and by her 
 
 2 The words, " Uncle Daniel must fraudulent conduct in taking wages 
 
 settle for some of my logs he has made for her son which he had not earned, 
 
 away with," do not of themselves held actionable per se. (Bradley v. 
 
 amount to a charge of larceny. (Brown Cramer, 59 Wis. 309.) 
 V. Brown, 2 Shep. 317; Connick v. * Mix v. Woodward, 12 Conn. 
 
 Wilson, 2 Kerr [New Brun.], 496.) A 262. 
 
 charge of carrying away com does = Steele v. Southwick, 9 Johns, 
 not impute felony, but trespass. (Stit- 214: see /m^, note to § 171; Perselly 
 zell V. Reynolds, 59 Penn. 488.) Go v. Bacon, 20 Mo. 330 ; Kern v. Tows- 
 home and steal more potatoes from ley, 51 Barb. 385; Spooner 7/. Keeler, 
 Peggy's field, held actionable, as the 51 N. Y. 527. Charge of taking false 
 potatoes might havebeen severed from oath not a charge of perjury (Downey 
 the soil, and the words implied a prior v. Dillon, 52. Ind. 442 ; Coombs v. 
 stealing. (Hunter z/. Hunter, 25 Up. Rose, 8 Blackf. 155. See Dean v. 
 Can. Q. B. 145.) Miller, 66 Ind. 440.) 
 
 ' Peake v. Oldham, Cowp. 275; « Vin. Abr. Actions for Words. P. 
 
 Miller v. Buckdon, 2 Bulst. 10. See a, 21. The words, "Thou didst take 
 
 § 168, post. A newspaper publication a false oath before Justice Scawen," 
 
 of the suicide of a man, falsely charg- may mean not a justice of the peace 
 
 ing, in effect, that it was caused by named Scawen, but one named Justice 
 
§ 144-j CONSTRUCTION OF LANGUAGE. 1 47 
 
 charging a grand juror with having " forsworn him- 
 self by neglecting or refusing to present an offense 
 within his knowledge," do not amount to a charge of 
 perjury, or any indictable offense.^ To say one is 
 forsworn, was indicted for it, and compounded for it, 
 imputes perjury ; for the alleged compounding is 
 equivalent to a confession of the indictment being 
 true.^ And to say, Thou art forsworn, and I will set 
 thee on the pillory, or I will have his ears cropt, im- 
 ply perjury.* Loss of life was occasioned by the 
 collision of two steamboats. An inquest was after- 
 wards held, and a person named Granger, who was on 
 board of one of the steamboats at the time of the 
 accident, gave his evidence. The defendant, in giving 
 an account of the accident and inquest, stated: "Had 
 requisite means been employed, the lives of the two 
 children might have been saved, in spite of the story 
 of Mr. Granger, who swore through thick and thin, 
 and who, although asleep at the moment of the acci- 
 dent, had yet sufficient time to dress himself and 
 assist his wife:" held, that the language did not charge 
 Granger with perjury.* The following was published 
 by A.: "Charge 4. Refusing to correct G. C. in his 
 statement as a witness before Esq. B., when I believe 
 he, J. C , knew his, G. C.'s, statement was not true." 
 Held, that this writing, when shown by proper aver- 
 ments to have been applied by A. to the testimony of 
 G. C, on the trial of a cause, imputed perjury to G. C., 
 and was actionable.^ 
 
 Scawen. (Gurneth v. Derry, 3 Lev. Vin. Abr. Actions for Words, F, a, 11. 
 
 166; note to § 177, post; and Call v. "I could prove J. S. perjured, if I 
 
 Foresman, 5 Watts, 331, in § 321, would;'' implies that J. S. committed 
 
 post.) perjury. (Id.") 
 
 ' McAnnally w. Williams, 3 Sneed, * Reg. n/. Marshall, 2 Jur. 254; 
 
 26. and see note to ji 1 37, ante. 
 
 2 Gilberd v. Rodd, 3 Bulst. 304. '' Coombs v. Rose, 8 Blackf. 155. 
 
 ' Williams v. Biclcerton, Het. 63; 
 
148 CONSTRUCTION OF LANGUAGE. [CH. VII. 
 
 V. Pilfering.— The term pilfering imports a crime,^ 
 
 w. Plundered.— The term plundered does not import a 
 felonious taking." 
 
 X. Poison. — Saying of a surgeon that he did poison the 
 wound of his patient, may mean that he poisoned the 
 wound to cure it. But if it be charged that he poi- 
 soned the wound to get money, that is different* 
 
 y. Prostitute. — She is a bad girl, and unworthy to be em- 
 ployed, will not support an innuendo, a prostitute.* 
 " If I am not misinformed, she is a prostitute," is the 
 same as saying she is a prostitute.'' 
 
 z. Robbed — Robbing. — The prima facie meaning of robbed 
 is to impute a crime, an unlawful taking ; * but the 
 words. You have robbed me of one shilling tan 
 money, amount only to a charge of embezzlement.^ 
 Robbing is a word of an uncertain signification.* The 
 words, " He robbed the treasury and bought a farm 
 with it," were held not to impute a felony.' 
 
 a. a. Shaving Purposes. — Shaving, as applied to promissory 
 notes, means buying notes at a discount, beyond the 
 
 ' Beckett/. Sterrett, 4 Blackf. 499; part of money received as the plaint- 
 
 contra, see Carter v. Andrews, 16 iff' s servant, for and on account of 
 
 Pick. I. the plaintiff, on the sale of tan, and 
 
 * Carter v. Andrews, 16 Pick. i. for which he was accountable; held, 
 " Yin. Abr. Actions for Words, R, that the facts being stated in the in- 
 
 a, 10, 40. nuendo without any previous intro- 
 
 * Snellv. Snow, 13 Mete. 278. ductory allegation, and showing em- 
 ' Treat v. Browning, 4 Conn. 408. bezzlement rather than robbery, the 
 ' TomHnson v. Brittlebank, i Nev. count was bad. 
 
 & M. 455; 4 B. & Adol. 630; Slow- » Palmer v. Edwards, Rep. of Cas. 
 
 man v. Dutton, lo Bing. 402; Jones of Prac. in C. P. 160. 
 V. Chapman, 5 Blackf. 88; Heard on » Allen v. Hillman, 12 Pick. loi. 
 
 Libel, § 38. Robbed held actionable The words, " You did rob the town of 
 
 per se. (Hutts v. Hutts, 51 Ind. 581.) St. Cloud; you are a public robber," 
 
 ' Day V. Robinson, i Ad. & El. are not actionable, for the crime of 
 
 554. The words alleged in the declara- robbery cannot be committed against 
 
 tion were, "You have robbed me of a town. (McCarty v. Barrett, 12 
 
 IS. tan money;" innuendo, that he Minn. 494.) See^iyo.posi. 
 had wrongfully taken to his own use 
 
§ I44-] CONSTRUCTION OF LANGUAGE. 1 49 
 
 debt and interest, which is neither dishonorable nor 
 discreditable.^ 
 b. b. Steal — Stolen. — The natural and obvious meaning of 
 steal is a felonious taking or larceny.* The term 
 stolen imputes a larceny.* Stealing unexplained, ex 
 vi termini^ imports felony.* Stealing and feloniously 
 stealing are not the same ; in common parlance, 
 stealing does not always import felony.* If the ar- 
 ticle alleged to have been stolen is of the kind of 
 which felony can be committed, the term steal or 
 stolen imputes a larceny, otherwise if the article al- 
 leged to have been stolen could not be the subject of 
 a felony.^ Thus it has been held not actionable to 
 say, You stole my wood,' or my apples ; ^ or a load of 
 hop-poles ; ' or a tree ; ^^ or a dog ; " or a bee-tree ; ^* 
 or wild bees ; ^* or a sable caught in a trap ; " or marl, 
 earth or furze ; ^* because felony cannot be committed 
 of such things. A charge of having stolen boards,^® 
 
 ' Stone w. Cooper, 2 Denio, 293. Jones, 3 Dev. 162; Heard on Libel, 
 
 ' Dunnell v. Fiske, 11 Mete. 551; 37, note 3; contra, Phillips v. Barber, 
 
 C'Donnell v. Hastings, 68 Iowa, 271. 7 Wend. 439.) 
 Steal is not the technical term to de- ' Clarke v. Gilbert, Hob. 331a. 
 
 scribe larceny. (U. S. v. Stone, 37 " Guilderslew v. Ward, Cro. Eliz. 
 
 Fed. Rep. 247; U. S. v. Jones, 37 225; Dexter z/. Taber, 12 Johns. 239. 
 
 Fed. Rep. III.) See § 170, post. He stole my com; actionable. (Hoag 
 
 ' Burbank v. Horn, 39 Maine (4 v. Cooley, 33 Kans. 387.) 
 Heath), 233 ; Coleman v. Playsted, 36 * " Coote v. Gilbert, Hob. 77(5. See 
 
 Barb. 26 ; Taylor v. Short, 40 Ind. Bryan v. Wikes, Cro. Car. 572. 
 506; contra, Dunnell v. Fiske, 11 " Findlay v. Bear, 8 Serg. & R. 
 
 Mete. 551; St. Martin v. Desnoyer, i 571. Charging larceny of a dog is 
 
 Minn. 156. actionable in Kansas. (Harrington 
 
 ■•Powell, J., Baker v. Pierce, 6 f. Miles, 11 Kan. 480; and see 2 Alb. 
 
 Mod. 23; De Witt z/. Wright, 57 Cal. Law Jour. 101, and note, 15 Amer. 
 
 576; Rhodes v. Naglee, 66 Id. 677. Rep. 356.) 
 
 The words spoken were, " When he ' * Cock v. Weatherby, 5 Sme. & M. 
 
 was highway commissioner he stole 333. 
 
 $1,000 from the town," there being no »' Wallis v. Mease, 3 Binn. 546; 
 
 explanatory circumstances; held to Gillet z*. Mason, 7 Johns. 16. 
 impute a larceny. (Hayes v. Ball, 72 >* Norton v. Ladd, 5 New Hamp. 
 
 N.Y. 418.) 203. 
 
 5 Holt, Ch. J., Baker v. Pierce, "6 >' Ogden v. Riley, 2 Green, 186; 
 
 Mod. 23. Clarke v. Gilbert. Hob. 331. See Penal 
 
 « Cock V. Weatherby, S Sme. & Code of N. Y., 5 640, subd. 4. 
 M. 333. See note, p. 124, ante. " Burbank v. Horn, 39 Maine (4 
 
 ' Meaning standing timber. (Rob- Heath), 233. 
 ins V. Hildredon, Cro. Jac. 65; Idol v. 
 
150 CONSTRUCTION OF LANGUAGE. [cH, VII, 
 
 or "my boxwood,"^ held to impute a larceny; and a 
 charge of stealing the property of A., deceased, im- 
 ports a larceny from the personal representatives of 
 A.^ He will steal, and I can prove it, is equivalent 
 to saying he had stolen ; ^ and to allege, I will venture 
 anything he has stolen the book, is equivalent to a 
 charge of stealing the book * To say. You are as great 
 a rogue as your master, who stole rugs, is not a charge 
 of stealing, without an averment that the master had 
 committed felony.^ It is not actionable to charge acts 
 which amount only to a trespass, and although the de- 
 fendant may use the word steal ox stole, yet, if the con- 
 text shows the word was intended to refer to such 
 acts, and was so understood, no action lies.^ If you 
 do not give me up the bills I shall give you in charge 
 for stealing them, innuendo, meaning that plaintiff 
 had stolen the bills, held to amount to a charge of 
 stealing and to disclose a cause of action.'' " I have 
 seen women steal yarn before." These words not ac- 
 tionable with an innuendo, but without a colloquium.® 
 
 c. c. Suffer. — To suffer, held to import suffer death, as 
 where the defendant said, " I will make you suffer for 
 a witch," it was held to mean suffer death for a witch.* 
 
 * After verdict for plaintiff. Baker tiffj have done as ill and worse ; it will 
 
 V. Pierce, 6 Mod. 23. not cost you as much to be quit as it 
 
 2 Bash V. Sommer, 20 Penn. St. R. cost him. Court doubted if actionable. 
 
 159- (Smith's Case, Cro. Eliz. 31.) 
 
 5 Cornelius z/. Van Slyck, 21 Wend. » McCaleb v. Smith, 22 Iowa, 242; 
 
 70, and see Bays v. Hunt, 60 Iowa, 251. Wing v. Wing, 66 Maine, 62. There 
 
 « Nye V. Otis, 8 Mass. 122. the charge was plaintiff stole windows 
 
 ' Upton V. Pinfold, Comyn's R. from C. D.'s house, and held not ac- 
 
 268. You are as bad as thy wife when tionable as imputing only a trespass, 
 
 she stole my cushion, not actionable. (And see Hall v. Adkins, 59 Mo. 144; 
 
 (Radcliff V. Michael, Cro. Jac. 331.) Palsey v. Kemp, 22 Mo. 409.) A 
 
 The words, " I expect Murphy will charge of maUcious trespass would be 
 
 have plenty of bacon to sell, as he has actionable. Wilcox v. Edwards, 5 
 
 killed some of my hogs," after verdict Blackf. 183. 
 
 for plaintiff, were held to amount to ' Poulton v. Rintel, i Vict. Law 
 
 a charge of hog-stealing. (Murphy v. Times, 44. 
 
 Antley, 2 Boston Monthly Law Rep. » Hart v. Coy, 40 Ind. 535. See 
 
 N. S. 520.) R. S. was attainted of Larceny, fl«/f, p. 145. 
 felony, and defendant said. You [plain- « Stephens v. Corben, 3 Lev. 394. 
 
§ H4-J 
 
 CONSTRUCTION OF LANGUAGE. 
 
 151 
 
 d. Taketi. — Words which charge the taking of the per- 
 sonal property of another, ma)^ be slanderous or not, 
 according to circumstances.' Ordinarily, taken is not 
 equivalent to stolen ; ~ but where the words were, I 
 have lost a calf-skin, . . Bornman must have 
 taken it, then they were held to impute a larceny.^ 
 
 e. e. 
 
 Thief. — To call one a thief is not actionable, unless it 
 is intended to impute to him a felony.* Unexplained 
 it will be construed in a felonious sense,^ but subject 
 to explanation by the context.* To say of one, he is 
 
 ' Watson V. Nicholas, 6 Humph. 
 
 174- 
 
 - Robertson v. Lea, i Stew. 141 ; 
 
 Coleman v. Playsted, 36 Barb. 26. 
 
 The words. Thou hast picked my 
 
 pocket, and taken away ten shillings, 
 
 held not actionable, although the 
 
 charge of picking the pocket without 
 
 more would be. (Humfries Case, cited 
 
 Godb. 287.) Taking away implies a 
 
 lawful taking. (Foster v. Browning, 
 
 Cro. Jac. 688, pi. 2 ; Wilks' Case, Vin. 
 
 Abr. Act. for Words, R, a, 3; see Dot- 
 
 tarer v. Bushey, 16 Penn. St. R. 204.) 
 
 ' Bornman v. Boyer, 3 Binn. 515. 
 
 He is a thief, for he hath stolen com 
 
 from Mr. Kay, held actionable (Smith 
 
 V. Ward, Cro. Jac. 674), for com 
 
 threshed, and not in the sheaf, shall be 
 
 intended; but if the words had been 
 
 katk taken away, instead of hath 
 
 stolen, no action would lie — a lawful 
 
 taking would be intended. (Foster v. 
 
 Browning, Cro. Jac. 688, pi. 2.) Thou 
 
 art as arrant a thief as any in England, 
 
 for thou hast broken up J.'s chest, 
 
 snA taken away £/^; not actionable. 
 
 (Id.; see Lukehart v. Byerly, 53 Penn. 
 
 418.) Thou art a thief, forthou takest 
 
 my beasts by reason of an execution, 
 
 and I will hang thee. (Wilks' Case, 
 
 Vin. Abr. Act. for Words, R. a, 3.) 
 
 * Brite v. Gill, 2 T. B. Monroe 
 (Ky.), 66; Quinn v. O'Gara, 2 E. D. 
 Smith, 388. See § 2^1, post, and Dwyer 
 V. Firemen's Journal, 11 Daly, 248; 
 Van Rensalaer v. Cole, i Johns. Cas. 
 279 ; Brown v. Myers, 40 Ohio St. 99 ; 
 29 Alb. L J. 169. 
 
 5 Penfold V. Westcote, 2 Bos. & P. 
 N. R. 335; Curtis v. Curtis, 10 Bing. 
 447 ; Fisher v. Rotereau, 2 McCord, 
 189; Dudley v. Robinson, 2 Ired. 141 ; 
 McNamara v. Shannon, 8 Bush (Ky.), 
 557; Miller t/. Johnson, 79 III. 58; Mc- 
 Gregor z/. Eakin, 3 Bradw. (111.) 214; 
 Pink 7/. Catanich, 51 Cal. 420; Stumer 
 V. Pitchman, 15 No. East. Rep. 757. 
 The words, He is a thief and a liar, 
 and I can prove it, import a charge of 
 larceny, and are actionable, (Robin- 
 son V. Keyser, 2 Foster [New Hamp.], 
 
 3230 
 
 * Thompson v. Bernard, i Camp. 
 48; Cristie v. Crowell, Peake's Cas. 4; 
 McKee v. Ingalls, 4 Scam. 30; Ogden 
 V. Riley, 2 Green, 186; Vin. Abr. Act. 
 for Words, G. a, 1, 2. To say, 
 " Thou art as very a thief as any in 
 Warwick gaol," no thief being then in 
 the gaol, would not be actionable, 
 but if a thief is in the gaol at the time, 
 the words would be actionable. (Fen- 
 ner, J., i Bulst. 40) " He is a swind- 
 ler and thief, and stole $8,000 from 
 me," these words, explained to mean 
 only that by false entries plaintiff had 
 defrauded defendant, were held not 
 actionable. (Stone v. Katz, 38 Wis. 
 156.) And so of the words, "You 
 have cheated and robbed orphan child- 
 ren out of fourteen hundred dollars." 
 (Filber v. Dauterman, 28 Wis. 124.) 
 I know enough to put you in gaol, im- 
 putes a crime. (Webb f. Beavan, 11 
 Q. B. D. 609.) The charge, " A B. is 
 stealing my corn," is. of itself, action- 
 able, but when at the same time de- 
 
152 
 
 CONSTRUCTION OF LANGUAGE. 
 
 [CH. VII. 
 
 a thieving person,^ or "he gets his living by thiev- 
 ing," ^ is the same as saying he is a thief. 
 
 / /. Threatening Letters.— K charge of sending threat- 
 ening letters, and that the plaintiff had been indicted 
 therefor, must mean that they were unlawful threaten- 
 ing letters.* 
 
 g. g. Unnatural Offense. — To allege that one has been 
 with a beast,* was seen ravishing a cow, amounts to a 
 charge of buggery ; ^ but an allegation that one was 
 seen " a /out of a cow," or " with a heifer," * does not 
 amount to a charge of buggery. To say of one, his 
 character is infamous, he would be a disgrace to any 
 
 fetvdant communicated the facts of the 
 taking, which he dona Jide believed to 
 be larcenous, held not actionable ; as 
 defendant explained the circumstance, 
 there was no malice. (Hall v. Adkins, 
 59 Mo. 144; and see Pasley v. Kemp, 
 22 Mo. 407.) Accompanied by a state- 
 ment of qualifying circumstances, the 
 words, "The fact is, he is a villain 
 and a thundering thief," were held not 
 actionable. (Fellowes v. Hunter, 18 
 Up. Can. Q. B. Rep 382.) "Myers 
 is a thief and ought to have been in the 
 Penitentiary long ago," these words 
 spoken being shown to relate to a 
 transaction not amounting to a crime 
 and that fact known tp the hearers, 
 held not actionable. (Brown v. Myers, 
 16 The Reporter, 182; Carmichael i*. 
 Shiel, 21 Ind. 66; Williams v. Miner, 
 18 Conn. 473.) 
 
 ^ Alley V. Neeley, 5 Blackf. 200. 
 
 2 Rutherford v. Moore, i Cranch 
 C. C. 388. 
 
 ' Harvey 7/. French, i Cr. & M. 
 ii;affi'd, 2M00. &Sc. 591. "Threat- 
 ening letters. The grand jury have 
 returned a true bill against a gentle- 
 man named French," construed to 
 mean that the grand jury had found a 
 true bill against French for sending 
 threatening letters, but that the words 
 would not bear the meaning that 
 French had sent threatening letters to 
 extort money, {/d.) The Penal Code 
 of New York provides ; § 254. A per- 
 
 son who threatens another of a libel, 
 concerning the latter or concerning 
 any parent, husband, wife, child or 
 other member of the family of the lat- 
 ter, and a person who offers to prevent 
 the publication of a libel upon another 
 person upon condition of the payment 
 of, or with intent to extort, money or 
 other valuable consideration from any 
 person, is guilty of a misdemeanor. 
 By Act of Congress all matter, other- 
 wise mailable by law, upon the enve- 
 lope or outside cover of which, or pos- 
 tal card upon which . . "'libel- 
 ous, scurrilous, or threatening delinea- 
 tions, epithets, terms or language, or 
 reflecting injuriously upon the charac- 
 ter or conduct of another, may be 
 written or printed, are declared to be 
 non-mailable matter, and shall not be 
 conveyed in the mails nor delivered 
 from any Post Office nor by any letter 
 carrier." The act further provides, as 
 a penalty for depositing such objec- 
 tionable matter in a Post Office, a fine 
 of from $100 to $5,000, or imprison- 
 ment at hard labor from one to ten 
 years, or both. (U. S. v. Mathias, 36 
 Fed. Rep. 892; U. S. v. Clark, 37 Id. 
 106.) 
 
 * Woolcott V. Goodrich, 5 Cow. 
 714 
 
 " Harper v. Delp, 3 Ind. 225. 
 
 " /</.; Johnson v. Hedge, 6 Up. 
 Can. Q, B. Rep. N. S. 337. 
 
§ I44-J CONSTRUCTION OF LANGUAGE, 1 53 
 
 society ; I will publish his infamy ; delicacy forbids 
 me bringing a direct charge, but it was a male child 
 who complained to me ; held, without an innuendo, 
 to impute unnatural practices.^ 
 
 h. h. Whore. — To assert that '' A. is a whore, or else she 
 would never ride with B.," is to assert that A. is a 
 whore.* 
 
 i. i. — To say, there is strong reason to believe,^ or there is a 
 rumor,* or if report be true,^ a certain fact occurred, 
 is equivalent to an allegation that such fact occurred ; 
 and so to say, I would venture anything,* or public 
 opinion says so, and what public opinion says I be- 
 lieve to be true,^ or I have every reason to believe,® is 
 equivalent to a positive allegation. But the words 
 •' Sparkham did steal or else Godwin is forsworn," 
 was held too indirect a charge to give a right of ac- 
 tion,' so of the allegation, she had a child, and either 
 she or some one else made away with it.^" 
 
 j. j. — To say of one, he is thought no more of than a 
 horse-thief and a counterfeiter, is to call him a horse- 
 thief and a counterfeiter;" and when it is said of one, 
 he has committed an act for which he could be trans- 
 
 ' Woolnoth V. Meadows, 5 East, * Kelly v. Dillon, 5 Porter (Ind.), 
 
 463. See note 3, on p. 118, ante. 426. 
 
 2 True V. Plumley, 36 Me. 466 ; ^ Smith v. Stewart, 5 Barr. 372 : 
 
 Bassil V. Elmore, 65 Barb. 627; affi'd, Johnson v. Brown, 57 Barb. 118. 
 
 48 N. Y. 561 ; Rhodes v. Anderson, 13 « Nye v. Otis. 8 Mass. 122. 
 
 Atl. Rep. 823. " E. P. was one week 'Gage v. Shelton, 3 Rich. 242; 
 
 in L. in a whore-house," implies a and see note i, p. M^o, ante. 
 
 charge of whoredom. (Blickenstaff v. ' Logan v. Steele, i Bibb. 593; and 
 
 pPerrin, 27 Ind. 527.) Bitch does not see note 2, p. 140, ante. 
 
 import whoredom, and no innuendo » i Starkie on Slander. 70. 
 
 can give it that meaning. (Schurick z/. '"Carth. 55. The words thy brother 
 
 Kollman, 50 Ind. 336. See Kelly v. was whipped for stealing sheep, or 
 
 Flaherty, 14 Atl. Rep. 876.) Bad burned in the hand or shoulder, held 
 
 woman,jury to consider what intended. too uncertain to warrant an action, as 
 
 (Riddle v. Thayer, 127 Mass. 487.) one could not be burned in the shoul- 
 
 ' Turner v. Merryweather, 12 Law der for stealing sheep. (Stirley v. Hill, 
 
 Times, 474; 7 C. B. 251. Cro. Car. 283.) 
 
 i> Nelson v. Musgrave, 10 Mo. 648. 
 
154 CONSTRUCTION OF LANGUAGE. [CH. VII. 
 
 ported, it must be understood he has been guilty of a 
 crime punishable by transportation.^ 
 
 k. k. — To charge, he has broken open my letters in the 
 post-oflfice, do not import an unlawful breaking 
 open.^ 
 
 /. /. — Thou canst not read a declaration, construed to 
 mean from ignorance, not blindness.^ 
 
 m. m. — The words " we again assert the cases formerly 
 put by us on record ; we assert them against [the 
 plaintiff] ; we again assert they are such as no gentle- 
 man or honest man would resort to." Construed not 
 to be a mere denial of some assertion made by plaint- 
 iff, but as an accusation against the plaintiff.* 
 
 n. n. — '' He was an United Irishman, and got the money 
 of the United Irishmen into his own hands and ran 
 away with it," imputes a breach of trust, not a felony 
 and not actionable.* 
 
 § 145. What allegations are divisible. One rule where- 
 by to test whether a charge is divisible or not, is to in- 
 quire if the measure of damages would be different for the 
 whole or for a part ; and if it would, then the charge is 
 divisible, and part may be justified.® Another rule would 
 be to inquire if a part of the charge would sustain an 
 action. Where the charge was that the plaintiff, a proctor, 
 had been suspended three times for extortion, held divi- 
 sible, and that the defendant might justify as to one sus- 
 
 1 Curtis V. Curtis, 4 Moo. & Sc. » M'Clurg v. Ross, 5 Binn. 218. 
 
 337; 10 Bing. 477. Charge of embezzling goods not ac- 
 
 * McCuen u. Ludlum, 2 Harrison tionable. (Caldwell v. Abbey, Hardin 
 
 (17 N. J. Law), 12; Hillhouse v. Peck, [Ky.], 529; and see Hawn v. Smith, 4 
 
 2 Stew. & Per. (6 Ala. O. S.) 395. A B. Monr. 385, and contra Menmer v. 
 
 charge of stealing letters and keeping Simpson, 12 Daly, 156.) 
 them for extortion is actionable. « Clarkson v. Lawson, 6 Bing. 587 ; 
 
 (Smith V. Coe, 22 Minn. 276.) Cooper v. Lawson, i Perr. & D. 15; 
 
 3 Powell V. Jones, i Lev. 297. Churchill v. Hunt, 2 B. & Aid. 685. 
 
 "• Hughes V. Rees, 4 M. & W. 204. 
 
§ I45-] CONSTRUCTION OF LANGUAGE. 1 55 
 
 pension.^ Where the alleged defamatory matter professed 
 to give a report on an election petition, and commented 
 on a person, bail for one of the petitioners, and stated 
 " he is hired for the occasion," held divisible.* The charge 
 was, acts of barbarity to a horse, and " beating out one of 
 his eyes, and that plaintiff had ordered the person having 
 charge of the horse not to let any one see it," held divi- 
 sible.^ So of the words : Ware, hawk, you must take care 
 of yourselves there, mind what you are about ;* and where 
 the charge was that plaintiff had killed his adversary in a 
 duel, and that a portion of the night preceding the duel 
 was spent in practicing with a pistol, held to be divisible 
 allegations;^ and where the charge was that the plaintiff 
 had, by furious driving, caused the death of a person, and 
 then commented, in terms held to be actionable, on the 
 fact of the plaintiff, on the same evening, attending a pub- 
 lic ball, held that the charges were divisible ; ' so of the 
 words, she is a forsworn whore and a perjured whore. ^ 
 and thou art a roguish knave and a thief.^ Where the 
 charge was that plaintiff was in prison and unable to pay 
 his rent, and a mere man of straw, held not divisible, but 
 one charge of insolvency.' A charge of robbery to a serz- 
 
 ' Clarkson v. Lawson, 6 Bing. 587. on my capital for the last twelve years 
 
 * Cooper V. Lawson, i Perr. & to their own benefit, and they will do 
 D. IS- the same with your property, or that 
 
 ' Weaver v. Lloyd, 2 B. & Cr. 678 ; of any other they can get hold of, "held 
 
 4 I). & R. 230. these charges were to be taken in con- 
 
 * Orpwood V. Barkes, 4 Bing. 261 ; junction, and could not be justified by 
 S. C. sub nam. Orpwood v. Parkes, 12 showing the plaintifT guilty of revenue 
 Moore, 492. frauds. (Sutherland v. McDonald, 3 
 
 ' Helsham v. Blackwood, 11 C. B. Menzies Rep. N. S. 6.) 
 
 Ill; 5 Eng. Law & Eq. R. 409. The libel was- "Defendant com- 
 
 ' Churchill v. Hunt, 2 B. & Aid. plained to plaintiff that a ditch on 
 
 685; I Chit. 480. plaintiff's premises was injurious to 
 
 ' Wales f. Norton, Hard. 7. public health and a nuisance; that 
 
 ' Bailey 7/. Maynard, 2 Bulst. 134. plaintiff, after fencing with defendant, 
 
 ' Eaton V. Johns, i Dowl. Pr. C. refused to do anything; that proceed- 
 
 N. C. 602. Where the charge was ings taken to remove the nuisance 
 
 that defendant had been obliged to get were defeated by technical objections 
 
 rid of plaintiff, " in consequence of on plaintiff's part ; that the ditch was 
 
 frauds and delinquency," and that a nuisance which had occasioned fever 
 
 "these Sutherlands have been trading in the neighborhood, of which plaintiff 
 
156 
 
 CONSTRUCTION OF LANGUAGE. 
 
 [CH. VII. 
 
 ous amount is divisible.^ Allegations of time, and space, 
 and number are divisible.^ 
 
 had notice; and that the nuisance 
 continued unabated." Plea justifying 
 as true parts of the libel. Jury found 
 some allegations of plea true and some 
 not true— held the issue was indivi- 
 sible. CBiddulph v. Chamberlayne, 17 
 Q- B. 351.) 
 
 ' Starkie on Slander, 494. 
 
 ^ Monkman v. Shepherdson, 3 
 Perr. & D. 182; 11 Ad. & El. 411 ; so 
 said in argument. Page v. Hatchett, 6 
 Law Times, 218; and as to divisible 
 allegations, see McGregor v. Gregory, 
 2 Dowl. Pr. C. N. S. 769; II M. & W. 
 289: Wilson V. Pattrick. 3 C. B. 772; 
 
 Mountney v. Watson, 2 B. & Ad. 673 ; 
 Tapley v. Wainwright, 5 B. & Ad. 
 395 ; cited Dunckle v. Wiles, 6 Barb. 
 523; Vessey v. Pike, 3 C. & P. 512; 
 Berry v. Adamson, 2 C. & P. 503 ; 
 O'Connell v. Mansfield, 9 Irish Law 
 Rep. 179: Edwards v. Bell, i Bing. 
 403; Lewis I/. Walter, 4 Dowl. & R. 
 810; 3 B. & Cr. 1 38 ; Johns v. Gittings, 
 Cro. Eliz. 239 ; Vin. Abr. Actions for 
 Words, F, a, 43 ; Heard on Libel. 286, 
 note 2. and 4 M. & S. 548 ; Chalmers 
 V. Shackell, 6 C. & P. 475; see § 212, 
 post. 
 
CHAPTER VIII. 
 
 WHAT LANGUAGE IS ACTIONABLE. 
 
 Language must be such as does or does not occasion dam- 
 age — What is meant by actionable per se, and action- 
 able by reason of special damage — What language 
 concerning a person as such, published orally^ is ac- 
 tionable per se — What language concerning a person 
 as suchf published in writing, is actionable per se — 
 What language concerning one in an acquired capacity, 
 is actionable per se — What language concerning a per- 
 son is actionable by reason of special damage — What 
 language concerning the affairs of a person, his prop- 
 erty, or his title thereto, is actionable. 
 
 § 146. All language concerning a person or his affairs, 
 which, as a necessary or natural and proximate conse- 
 quence, occasions him pecuniary loss, is prima facie ac- 
 tionable (§§ 57, 59, 70). Language must be either (i) 
 such as necessarily, in fact, or by a presumption of evidence, 
 occasions damage to him of whom or whose affairs it is con- 
 cerning; or, (2) such as does not necessarily, or as a neces- 
 sary consequence, but does by a natural and proximate 
 consequence, occasion damage to him of whom or whose 
 affairs it is concerning ; or, (3) such as neither as a neces- 
 sary nor as a natural and proximate consequence occasions 
 damage to him of whom or of whose affairs it is concerning.' 
 
 ^ In the jurisprudence of Louisiana, 12 La. Ann. 894; Miller 7/. Holstein, 16 
 
 a distinction is not made between La. Ann. 389; Daly v. Van Benthuysen, 
 
 words actionable and words not ac- 3 La. Ann. 69 ; Tuscan .v. Maddox, 
 
 tionable, as the basis of damages in a 11 La. Ann. 206; Cass v. Times, 27 
 
 suit for slander, where no special La. Ann. 214; Spotorno w. Fourichon, 
 
 damages are proved. (Feray z/. Foote, 4 So. Rep. 71.) 
 
158 WHAT LANGUAGE IS ACTIONABLE. [CH. VIIL 
 
 The loss which ensues as a " necessary consequence^' is 
 termed damage ; the loss which ensues as a " natural and 
 proximate consequence^'' is termed " special damageV One 
 and the same set of words may both necessarily occasion 
 damage, and also occasion damage as a natural conse- 
 quence. 
 
 § 147. Language of the first of these classes is com- 
 monly termed libelous /^r se, or actionable />^r se. because 
 its publication confers 2i prim.a facie right of action, and is 
 prima facie a wrong without any evidence of damage other 
 than that which is implied or presumed from the fact of 
 publication. Probably language of this class might more 
 correctly be termed injurious per se, or language which 
 imports damage. 
 
 ^ § 148. The publication of language of the second of 
 these classes does not, per se, confer s. prima facie right of 
 action, and is not, per se, a. prima facie wrong. It confers 
 a right of action only in those cases in which, as a natural 
 and proximate consequence of the publication, loss (special 
 damage) has in fact ensued to him of whom or of whose 
 affairs the language was concerning. 
 
 § 149. The publication of language of the third of these 
 classes cannot in any event amount to a wrong, and cannot 
 in any event confer a right of action. 
 
 § 150. We attempted to explain, in Chapter IV, that 
 pecuniary loss, actual or presumed, is the gist of the action 
 for slander or libel, and we stated (pp. 42, 43) the basis 
 as we suppose, of the distinction between words actionable 
 per se and words only actionable by reason of special dam- 
 age, to consist solely of a rule of evidence ; the rule by 
 which courts decide what words ' shall be considered by 
 
 ' Words mean written or spoken written slander may be an action for 
 words. (Menter v. Stewart, 2 How. "slanderous words," within the Ver- 
 [3 Misfe.] 698.) And an action for mont judiciary act. (Parsons v 
 
§ 1 5 2. J WHAT LANGUAGE IS ACTIONABLE. 
 
 159 
 
 their publication necessarily to occasion pecuniary loss or 
 damage. The courts, while exercising this power, have 
 failed to promulgate a formula which can be "applied with 
 any degree of certainty, to distinguish the cases in which 
 damage is necessarily implied, from the cases in which no 
 such, implication occurs, and in which, to give a right of 
 action, special damage must be proved. 
 
 § 151. As the injurious, or presumed injurious effect of 
 language depends upon whether (i) the language concerns 
 a person or a thing, (2) or the person as such or in some 
 acquired capacity, or (3) in certain cases, whether the lan- 
 guage be published orally or by writing, it will be neces- 
 sary to consider the topic of actionable language under the 
 following heads: 
 
 I. — What language concerning a person, as such, pub- 
 lished orally, is actionable per se. 
 
 II. — What language concerning a person, as such, pub- 
 lished in writing, is actionable per se. 
 
 III. — What language concerning one in an acquired 
 capacity or special character, as in a business, profession, 
 or office, or as a partner, or as heir-at-law, is actionable 
 per se. 
 
 IV. — What language is actionable by reason of special 
 damage. 
 
 \". What language concerning things, as the affairs of 
 a person, his property, or his title thereto, is actionable. 
 
 § 152. What language concerning a person, as such, 
 published orally, is actionable per se. Although it has 
 been said that " The law of England defines with much 
 greater distinctness than is usually found in other codes, 
 
 Young, 2 Vt. 434: but see ^ 53, ante.) libel was not within the statute 21 Jac. 
 And in Hall v. Warner (T. 24 Geo. I, ch. 16, relating to actions for 
 III), Tidd, 861, held that an action for " slanderous words." 
 
:6o WHAT LANGUAGE IS ACTIONABLE. [CH. VIIL 
 
 the limits of the civil action for oral slander in the absence 
 of special damage,"^ it is nevertheless true that "There is 
 not perhaps so much uncertainty in the law upon any sub- 
 ject as when words shall be in themselves actionable."* 
 " The line of demarcation seems never to have been satis- 
 factorily defined," * and is " more satisfactorily determined 
 by an accurate application of the principles upon which 
 actions on the case for words depend, than by a reference 
 to adjudged cases, especially those in the more ancient 
 authors." * The diversity of opinion as to what words 
 should be treated as imputing damage, or actionable /^r se, 
 arose from a wavering in the minds of the judges between 
 two opposite inconveniences. The fear of encouraging a 
 spirit of vexatious litigation, by affording too great a 
 facility for this species of action, was contrasted with the 
 mischief resulting to the public peace from refusing legal 
 redress ; and according as the former or latter of these 
 considerations preponderated, so was the rule of decision 
 rigid or relaxed.® 
 
 § 153. Several of the States provide by statute what 
 words shall be actionable ; thus, in Mississippi, Virginia,' 
 and Georgia, it is enacted that all words which, from their 
 usual construction and common acceptation, are consid- 
 ered as insults, and lead to violence and breach of the 
 peace, shall be actionable.'^ In Tennessee, imputing orally 
 
 ^ Prelim. Discourse to Starlcie on ' Borthwick on Libel, 5. Lord 
 
 Slander, XXX (30) notev; see note Holt said it was not worth while to be 
 
 to § 57, anie. In Scotland, any words learned on the subject. (Baker v. 
 
 that produce " uneasiness of mind " Pierce, 6 Mod. 24.) 
 are said to be actionable. (Borthwick * i Comyn's Dig. 273, note, 4th 
 
 on Libel, 184, note.) But words edit. 
 
 merely "uncivil" are not actionable. " i Starkie on Slander, 12. 
 
 In Iceland, to say of a gentleman, he ' RoUand v. Batchelder, 5 So. 
 
 did menial labor, is punishable. East. Rep. 695. The Virginia Code 
 
 (Blackwood's Magazine, Feb'y, 1869.) applies to written as well as spoken 
 
 Mere words of obloquy, not written, works. (Chaffin v. Lynch, 83 Va. 
 
 are not actionable. (Johnson v. Brown, 106.) 
 4 Cranch C. C. 235.) ' It is not necessary, to support an 
 
 ' Spencer, J., Brooker v. Coffin, 5 action under these statutes, that the 
 
 Johns. 192. words should have been spoken in the 
 
§ 153'] WHAT LANGUAGE IS ACTIONABLE. l6l 
 
 or in writing, adultery or fornication, or calling one coward 
 or poltroon for not fighting a duel, or otherwise insinuat- 
 ing such a charge, is actionable.^ In Arkansas and Illinois, 
 to impute adultery, fornication, or false swearing, or having 
 sworn [or affirmed in Illinois] falsely in common accepta- 
 tion, whether in a judicial proceeding or not, is action- 
 able. In Missouri, to impute adultery or fornication is 
 actionable.* In Indiana, to impute to a female incest, for- 
 nication, adultery, or whoredom, or to impute to any one 
 incest, or an infamous crime against nature with man or 
 beast, is actionable.^ In Florida, a charge by any citizen 
 of that State against another, imputing incest, fornication, 
 or adultery, is actionable.* In North Carolina, any words 
 written or spoken of a female which amount to a charge 
 of incontinency, are actionable;* and, in Maryland, all 
 words tending to the injury of the reputation for chastity 
 of a feme sole, are actionable.® In Michigan, willfully to 
 insult or indecently to annoy any female, with any obscene 
 or indecent word or act, is a misdemeanor ; and, in New 
 York,'' " An action may be maintained by a female, whether 
 
 presence of the plaintiff. (Scott v. Carolina, see State v. Moody, 4 So. 
 
 Peebles, 3 Smedes & Marsh. 546.) East. Rep. 119. In Rhode Island, see 
 
 1 Coward held actionable at com- Kelly v. Flaherty, 14 Atl. Rep. 876. 
 
 monlaw. (Hill z/. Wallace, i Menzies In Quebec, calling an unmarried 
 
 Rep. 347.) But held not actionable woman une putain actionable. (Denis 
 
 to say of plaintiff, the head of a com- v. Thioret, 5 Leg. News, 163.) 
 mando (or burgher force), that he was * In Wisconsin a charge of forni- 
 
 by no means exculpated from the sus- cation is actionable. (Gibson v. Gib- 
 
 picioo, at least, of having forced them son, 43 Wis. 23.) 
 to a disgraceful retreat. (Ryneveld v. » State v. Moody, 4 So. East. Rep. 
 
 Bain, 3 Menzies Rep. 11.) 119; State z/. Brown, 6 Id. 568; and in 
 
 * Steiber v. Wensel, 19 Mo. 513; Minnesota, Rietan v. Goebel, 22 No. 
 and in Iowa, Call v. Larabee, 60 Iowa, West. Rep. 291. 
 
 212; andin California, Nidever?/. Hall, « See in note, p. 20, ante, and 
 
 67 Cal. 80. § 172, post, and note. 
 
 * The Statute is Constitutional. ' Laws N. Y. 1871, ch. 219, and 
 (Emmerson v. Marvel, 55 Ind. 265.) N. Y. Code of Civ. Proc. § 1906, and 
 See Binford v. Young, :6 No. East, see a similar law in New Jersey. 
 Rep. 142; Buscher v. Scully, 107 Ind. (Revised Code, Art. 22;) in Maryland, 
 246, saying of an unmarried female, (Heming v. Elliott, 5 Cent. Rep. 592 ;) 
 she was getting fat; some one had in Louisiana, see Williams v. Mc- 
 slipped up on the blind side of her, Manus, 38 La. Ann. 161. The words 
 held not actionable perse. (Emmer- to a female, " Go over to my office; 
 son V. Marvel, 55 Ind. 265.) In North my wife is particular what company 
 
 11 
 
1 62 WHAT LANGUAGE IS ACTIONABLE. [cH. VIII. 
 
 married or single, to recover damages for words hereafter 
 spoken, imputing unchastity to her, and it shall not be 
 necessary to allege or prove special damages in order to 
 maintain such action. In such actions, a married woman 
 may sue alone, and any recovery therein shall be her sole 
 and separate property." 
 
 § i53«. In the absence of any statutory provision on 
 the subject, all language concerning a person in his indi- 
 vidual capacity merely, when published orally, is action- 
 able per se^ which, 
 
 I. Charges an indictable offense involving moral tur- 
 pitude; or, 
 
 II. Charges the being afflicted with certain diseases. 
 
 § 154. In New York, oral language is actionable /^r 
 se^ when it imputes a charge which, if true, will subject the 
 party charged to an indictment for a crime involving 
 moral turpitude, or subject him to an infamous punish- 
 ment. This was the rule laid down by Justice Spencer, in 
 Brooker v. Coffin,^ and as to which Justice Bronson said, 
 that, although it was not entirely satisfactory to his mind, 
 he felt bound to follow it." It was proposed by counsel 
 to modify the rule as stated above, by altering or into and^ 
 but the court refused assent to the suggestion,* and the 
 
 she keeps; she does not wish to be ities, &c., tit. i, chap. I.) Where a 
 
 annoyed by such characters as you." married woman fails in an action ior 
 
 Held not actionable, not charging un- slander or libel, she is not liable to 
 
 chastity. (McMahon v. Hallock, 1 5 imprisonment on an execution against 
 
 N. Y. St. Rep. 828.) Unriiastity in a her person for the costs. The costs 
 
 woman means one who hSshad un- can be collected only out of her sep- 
 
 lawful sexual intercourse, or is guijty arate estate. (Maloy v. Dagnal, i 
 
 of such conduct as would tend to in- Sup. Ct. Rep. [T. & C], Addenda 10; 
 
 dicate that she was willing so to do. § 267, yx>,post.') 
 (Mason v. Stratton, 17 N. Y. St. Rep. 1 5 Johns. 188. See Brooks v. 
 
 302.) What amounts to a charge of Harrison, 91 N. Y. 83. 
 unchastity. (Jd.) The Roman civil * Young w. Miller, 3 Hill, 22. 
 
 law gave a woman her action f or ut- » Widrig v. Oyer, 13 Johns. 124. 
 
 tering obscene words in her presence. Held, that words imputing that plaint- 
 
 (See supposed reason of this law, Dis- iff had been guilty of a criminal 
 
 ney's Ancient Laws against Immoral- offense will support an action for 
 
§ I54.J 
 
 WHAT LANGUAGE IS ACTIONABLE. 
 
 .163 
 
 rule, as laid down in Brooker v. Coffin, has been followed 
 in numerous cases in New York and other States.^ In ref- 
 erence to the above rule it has been remarked that, " when 
 the courts say the words are actionable if they subject the 
 party to indictment and infamous punishment, provided 
 they are true, we clearly understand what is the extent of 
 the rule ; " but when they add " or subject the party to an 
 indictment for an offense involving moral turpitude, we 
 are left in doubt what charges are embraced within the 
 sentence ; it lacks precision.'"* And again, " this element 
 of moral turpitude is necessarily adaptive ; for it is itself 
 defined by the state of public morals, and thus far fits the 
 action to be at all times accommodated to the common 
 sense of the community." ^ Chief Justice Parker refused 
 to adopt the rule as laid down in Brooker v. Coffin, supra, 
 and laid down the rule as thus : An accusation is action- 
 
 slander withont an allegation that the 
 words impute an indictable offense. 
 (Webb V. Beavan, n Q. B. D. 609; 
 Stroebel v. Whitney, 31 Minn. 34; 
 Bradley v. Cramer, 18 No. West. Rep. 
 268.) By statute in New York, a 
 mortgagor of chattels, who afterwards 
 sells them, without disclosing the fact 
 of the mortgage, is guilty of a misde- 
 meanor, and held that the words, 
 " Vaus is a rascal not to be trusted ; I 
 have papers on which he could be 
 sent to State prison; he gave me a 
 chattel mortgage, and sold the prop- 
 erty before paying the mortgage," 
 were actionable. (Vaus v. Middle- 
 brook, 3 N. Y. St. Rep. 277.) In 
 Wisconsin it is a misdemeanor to fur- 
 nish watered milk to a factory and 
 therefore actionable in that State to 
 charge one with such an offense. 
 (Geary v. Bennett, 10 No. West. Rep. 
 602.) See 91 N. Y. 89. 
 
 » Wright V. Paige, 36 Barb. 438 ; 
 afii'd, 3 Trans. App. 134; Quinn v. 
 O'Gara, 2 E. D. Smith, 388 ; Martin 
 V. Stillwell, 13 Johns. 275 ; Burtch v. 
 Nickerson. 17 Johns. 219; Van Ness 
 V. Hamilton, 19 Johns. 367; Gibbs z/. 
 Dewey, 5 Cow. 503; Demarest v. 
 
 Haring, 6 Cow. 88 ; Crawford v. Wil- 
 son, 4 Barb. 504; Alexander v. Alex- 
 ander, 9 Wend. 141 ; Hoag v. Hatch, 
 23 Conn. 590; Redway v. Gray, 31 
 Vt. 292; Andres v. Koppenheafer, 3 
 Serg. & R. 25s; Todd v. Rough, 10 
 Serg. & R. 18; McCuen?:/. Ludlum, 2 
 Harrison (17 N. J. L.), 12; Johnson v. 
 Shields, i Dutcher (25 N. J. L.), 118; 
 Giddens v. Mirk, 4 Ga. 360 ; Burton 
 V. Burton, 3 G. Greene (Iowa), 316; 
 Gage V. Shelton, 3 Rich. 242 ; Kinney 
 V. Hosea, 3 Harr. jy \ Coburn v. 
 Harwood, Minor, 93 ; Perdue v. Bur- 
 nett, Minor, 138 ; Hillhouse v. Peck, 
 2 Stew. & Por. (6 Ala. O. S.) 395 ; 
 Johnson v. Morrow, 9 Porter, 525 ; 
 Taylor v. Kneeland, l Doug. (Mich.) 
 67; Beck V. Stitzel, 21 Penn. St. R. 
 522; Billings V. Wing, 7 Vt.439; The 
 State V. Burroughs, 2 Halst. 426 ; i 
 Amer. Lead. Cas. 113, 3d ed. 
 
 2 Daniel, J., Skinner v. White, i 
 Dev. & Bat. 471 ; and see Brady v. 
 Wilson, 4 Hawks, 93; Wall v. Hos- 
 kins, 5 Ired. 177; Shipp v. McCraw, 3 
 Murph. 463. 
 
 ' Lowrie, J., Beck v. Stitzel, 21 
 Penn. St. Rep. 522. 
 
164 
 
 WHAT LANGUAGE IS ACTIONABLE.. [CH. VIII. 
 
 able whenever an offense is charged which, if proved, may 
 subject the party to a punishment, though not ignominious, 
 and which brings disgrace upon him.* The same judge 
 has also laid down the rule as thus : '' Words imputing 
 crime in the party against whom they are spoken, which, 
 if true, would subject him to disgraceful punishment, are 
 actionable without special damages."* To render the im- 
 putation of a crime actionable, there needs not the same 
 certainty in stating the crime as in an indictment for such 
 
 a crime; 
 
 8 
 
 § 155. The following offenses, among others, have 
 been held to involve moral turpitude : Keeping a bawdy- 
 house,* removing landmarks,* selling spirituous liquor to a 
 slave,^ paying money to secure election as a justice of the 
 peace,'^ opening a letter addressed to another,^ altering the 
 
 1 Miller v. Parish, 8 Pick. 385. 
 
 ' Chaddock v. Briggs, 13 Mass. 
 248 ; and to the like effect, Bloss v. 
 Tobey, 2 Pick. 320. " Words to be 
 actionable must charge an offense 
 subject to corporal or infamous pun- 
 ishment." (Elliott V. Ailsberry, 2 
 Bibb, 473 ; McGee v. Wilson, Lit. Sel. 
 Cas. 187.) Words are not actionable 
 per se when " they impute no crime 
 which could be visited by infamous 
 punishment." (Buck v. Hersgy, 31 
 Maine, 558; Gosling v. Morgan, 32 
 Penn. St. Rep. [8 Casey], 273.) The 
 charge of a misdemeanor, to be ac- 
 tionable per se, must be one which 
 " implies some heinous offense involv- 
 ing moral turpitude." (Miller v. 
 Wimp, 10 B. Monr. 417; Dottarerz/. 
 Bushey, 4 Harris [16 Penn. St.], 204; 
 Stitzel V, Reynolds, 9 P. F. Smith [59 
 Pa. St.], 488.) An indictment lies for 
 many acts not involving moral turpi- 
 tude. (Quinn v. O'Gara, 2 E. D. Smith, 
 388.) 
 
 Words charging an offense involv- 
 ing moral turpitude and indictable, 
 although not subjecting the offender 
 to infamous punishment, are action- 
 able in themselves. (Purdee v. Bur- 
 nett, Minor, 138.) 
 
 Any words which, according to 
 their natural import, impute a crime 
 or misdemeanor, which is punishable 
 in the temporal courts by corporal 
 punishment, are actionable in them- 
 selves. (Demarest v. Haring, 6 Cow. 
 76.) 
 
 " An action will lie for all words 
 spoken of another, which impute to 
 him the commission of a crime involv- 
 ing moral turpitude, and which is 
 punishable by law." (Heard on Libel, 
 25.) 
 
 « Miller v. Miller, 8 Johns. 58, 60 ; 
 Rundell v. Butler, 7 Barb. 260 ; Bihler 
 V. Gockley, 18 Bradw. (111.) 496; Vaus 
 V. Middlebrook, 3 N. Y. St. Rep. 277 ; 
 and see Hoar v. Ward, 47 Vt. 657 ; 
 Waugh V. Waugh, 47 Ind. 580. 
 
 * Martin v. Stillwell, 13 Johns. 275 ; 
 Brayne v. Cooper, 5 M. & W. 249; 
 Wright V. Paige, 36 Barb. 438; 3 
 Trans. App. 134. See § 173, post. 
 
 ^ Young V. Miller, 3 Hill, 24; Todd 
 V. Rough, 10 S. & R. 18; Dial v. 
 Holter, 6 Ohio St. 228. 
 
 ' Smith V. Smith, 2 Sneed, 473. 
 
 ' Hoag V. Hatch, 23 Conn. 585. 
 
 * Cheadle v. Buell, 6 Ham. 67; 
 contra, McCuen v. Ludlum, 2 Harr. 
 (17 N. J. Law), 12; and see Hillhouse 
 
§ 1 56. J WHAT LANGUAGE IS ACTIONABLE. 165 
 
 owner's marks on animals/ soliciting one to commit mur- 
 der,* indecent exposure of the person,^ embracery,* mak- 
 ing a false declaration of a right to vote,* and counterfeit- 
 ing." 
 
 § 156. In some of the States, it seems that all oral 
 language which imputes an indictable offense or an offense 
 punishable at law, is actionable per se; thus it is said : 
 "All that is essential to the maintenance of the action for 
 slander is that the words shall impute the commission of a 
 punishable offense."'' To be actionable, the effect of the 
 language must be, " to charge some crime or offense pun- 
 ishable by law ; " * "a charge of crime or some punishable 
 offense ; " ' or " words imputing to another a crime punish- 
 able by law ; " ^" or " an indictable offense." " While in 
 other States it is held that words, to be actionable, must 
 impute not only an indictable offense, but an indictable 
 offense for which corporal punishment may be inflicted as 
 the immediate penalty.^* 
 
 ■V. Peck, 2 Stew. & Port. (6 Ala. O. S.) trespass, assault, battery, and the like, 
 
 395. are not actionable per se, and yet 
 
 ^ Perdue v. Burnett, Minor, 138. these offenses are punishable by in- 
 
 2 Demarest v. Haring, 6 Cow. 76. dictment." (Smith v. Smith, 2 Sneed, 
 
 ' Torbitt V. Clare, 9 Irish Law 478; Dudley v. Horn, 2i Ala. 379; 
 
 Rep. 86. Billings v. Wing, 7 Vt. 444.) Oral 
 
 * Gibbs V. Dewey, 5 Cow. 503 ; language, to be actionable, must im- 
 
 see ante, § 144, subd. j. pute something criminal or that would 
 
 ' Crawford v. Wilson, 4 Barb. exclude from society. (Colby v. Rey- 
 
 505. nolds, 6 Vt. 489.) 
 
 « Howard v. Stephenson, 2 Const. ' Dunnell v. Fiske, 11 Mete. 552. 
 
 Rep. 2d series, 408 ; Thirman v. Mat- ' Edgerly v. Swain, 32 New Hamp. 
 
 thews, I Stew. (2 Ala. O. S.) 384. 481. 
 
 All words imputing a crime are ac- i" Tenney v. Clement, 10 New 
 
 tionable. (Deford v. Miller, 3 Penn. Hamp. 57; Lukehart v. Byeriey, 53 
 
 103.) See Arson, Forgery, Larceny, Penn. St. 418. 
 
 Perjury, Homicide. Words charging ^^ Kinney w. Hosea, 3 Harring. 77. 
 that plaintiff administered morphiije Action lies for words imputing to a 
 to another on the day he made his wife the commission of a felony joint- 
 will, and that " if it had not been for ly with her husband, but not in his 
 that, the plaintiff's daughters would presence. (Nolan v. Traber, 49 Md. 
 not have got what they did," held ac- 460.) 
 
 tionable. (McFadin v. David, 78 Ind. ^ ^ Birch v. Benton, 26 Mo. (5 
 
 445.) Jones), 153; Billings v. Wing, 7 Vt. 
 
 ' McKinney, J., Poe v. Grever, 3 439. 
 Sneed, 666. "Words which impute 
 
1 66 
 
 WHAT LANGUAGE IS ACTIONABLE. [CH. VIII. 
 
 § 157. Judging from the language of many English 
 dicta, the rule in England would seem to be that all oral 
 language is actionable per se which imputes a crime or 
 indictable offense.^ "An action lies for any words which 
 import the charge of a crime for which the party may be in- 
 dicted.'"* "The test is, whether the crime is indictable or 
 not." * " Where an offense of a criminal nature is imputed 
 by the slander, for which the party is liable to indictment 
 or punishment by the common or statute law, those words 
 are actionable per se." * " It is well known that words are 
 not actionable unless they impute some crime or indict- 
 able offense." ^ " The words, to be actionable, must im- 
 pute a criminal offense ; that is, the words, if true, must be 
 such that the plaintiff would be guilty of a criminal of- 
 fense." * While other decisions seem to require that an of- 
 
 1 I will lock you up in Gloucester 
 gaol ; I know enough to put you there, 
 meaning that plaintiff had been guilty 
 of some criminal offense, held action- 
 able. (Webb V. Beavan, 1 1 Q. B. D. 
 609.) Pollock, B., Words which allege 
 any criminal offense are actionable 
 per se. Lopez, J., I think it enough 
 to allege that the words impute a 
 criminal offense. (Id., and see in 
 note to § 163, posi.) The words : 
 "This man obtained from me $30 up- 
 on a promise to get me work ; he now 
 refuses to give me work or my mon- 
 ey, " held not actionable. (Burbato v. 
 De Libero, City Co't, N. Y., April, 
 1888.) 
 
 ' Mayne v. Digle, Freeman, 46. 
 Words, to be actionable in themselves, 
 must charge some scandalous crime; 
 they must be such as to impute to the 
 party an offense for which he may be 
 indicted. (Walmsley v. Russel, 6 
 Mod. 200.) In Smale v. Hammon (i 
 Bulst. 40) it was said where the words 
 spoken do tend to the infamy, dis- 
 credit or disgrace of the party, they 
 shall be actionable; but this dictum 
 was said to go too far. (Holt v. 
 Scholefield, 6 T. R. 691.) In Scoble 
 V. Lee (2 Show. 33) it was held not 
 actionable to call one regrattr, be- 
 cause regrating, althougn criminal, 
 
 was not punishable by loss of life or 
 limb. In ancient books we do not 
 read of an action for words unless the 
 slander concerned life. (Vaughan, 
 Ch. J., King V. Lake, 2 Vent. 28.) 
 
 ' Comyn's Dig. Actions for De- 
 famation, F. 20. 
 
 In slander for saying that plaintiff 
 robbed his wife of £ 75 before her re- 
 moval to a lunatic asylum, and was 
 anxious to get rid of her, in order that 
 he might take the remainder of her 
 money. 
 
 Held, that as such words did not 
 impute to plaintiff that he stole his 
 wife's money while they were living 
 apart, or when he was about to leave 
 or desert her, they were not action- 
 able, inasmuch as they did not, even 
 under the Married Woman's Property 
 Act of 1882, 45 & 46 Vict. c. 75, im- 
 pute an indictable offense. (Lemon 
 V. Simmons, 57 L. J. Q. B. 260; 36 
 Week. Rep. 351.) 
 
 " 2 Saund. PI. & Ev. 898, 2d Eng. 
 ed. 
 
 » Tyndall.Ch. J., Edsallz/. Russell, 
 S Sc. N. R. 815; 2 Dowl. N. S. 648; 4 
 M. & G. 1099; 12 Law Jour. N. S. C. 
 B. 7. 
 
 '• Alderson, B., Heming v. Power, 
 10 M. & W. 570. 
 
§ 1 5 7-] WHAT LANGUAGE IS ACTIONABLE. 167 
 
 fense must be imputed which would not only subject the 
 party charged to imprisonment, but to an infamous punish- 
 ment. To make the words actionable per se^ " there must 
 not only be imprisonment, but an infamous punishment ; " ^ 
 and, therefore, in that case, it was held that the words, 
 " Thou art one of those that stole my Lord Shaftesbury's 
 deer," were not actionable per se, because, although the of- 
 fense of deer stealing was punishable by imprisonment, it 
 was not an infamous punishment.^ " The words [to be ac- 
 tionable] must contain an express imputation of some 
 crime liable to punishment, some capital offense, or other 
 infamous crime or misdemeanor."^ Mr. Starkie says: 
 " Perhaps it may be inferred generally, that to impute any 
 crime or misdemeanor for which corporal punishment may 
 be inflicted in a temporal court is actionable, without 
 proof of special damage. Where the penalty for an of- 
 fense is merely pecuniary, an action will not lie for charg- 
 ing such ofiense,* even though in default of payment im- 
 prisonment should be prescribed, imprisonment not being 
 the primary and immediate punishment for the offense."^ 
 
 * Holt, Ch. J., Turner v. Ogden, 2 What is an infamous crime. See Ex 
 Salk. 696. parte Wilson, 19 The Reporter, 643; 
 
 * Mr. Bigelow, note to Odgers on State v. Bixler, 31 Alb. L. J. 458; 
 Libel, 84, says there is no such thing McKinn v. U. S., 117 U. S. 348. 
 
 in the present day as an infamous * McCabe v. Foot, 18 (11 N. S.) 
 punishment, except the whipping-post Irish Jurist, 287; 15 L. T. N. S. 115. 
 of Delaware. See Klumph v. Dunn, ' i Starkie on Slander, 43 ; 6 Mod. 
 66 Penn. St. 141. 104. This view of the law is adopted 
 ' De Grey, Ch. J., Onslow v. in Billings v. Wing, 7 Vt. 439; Wag- 
 Home, 3 Wilson, 186. This rule, says aman v. Byers, 17 Md. 183; and in a 
 Mr. Heard (Heard on Libel, 16), is note at page 90 of Metcalf's edition of 
 universally referred to as the correct Yelverton's Reports ; but is questioned 
 rule, and was repeated in Holt v. in i Amer. Lead. Cas. 112, 2d ed., and 
 Scholefield, 6 T. R. 694, and in Beards- in Smith v. Smith, 2 Sneed, 478. Say- 
 ley V. Dibblee, i Kerr (New Bruns.), ing that plaintiff went to mass was 
 258, and adopted in Shaffer v. Kintzer, held actionable, because it was by 
 1 Binn. 542 ; Andres v. Koppenheafer, statute an offense punishable by fine 
 3 Serg. & R. 257; Bloom v. Bloom, 5 and imprisonment. (Sir Lionel Wal- 
 /k^. 392 ; Pelton z/. Ward, 3 Caines, 79 ; den v. Mitchell, 2 Vent. 265.) And 
 Smith V. Smith, 2 Sneed, 478; John- concealing a felony was held action- 
 son V. Shields, i Dutch. 119. The able at a time when such an offense 
 pubUcation of a libel is not an in- was punishable by fine only. (New- 
 famous crime. The People v. Parr, lyn v. Fassett, Yelv. 154.) But the 
 25 Week. Dig. 113; 42 Hun, 313. words, thou art a common barrator, it 
 
1 68 
 
 WHAT LANGUAGE IS ACTIONABLE. [CH. VIII. 
 
 § 158. It has been supposed that the gist of the ac- 
 tion for slander was the peril of prosecution to which a 
 person was exposed by the charge, and therefore that for 
 charging an offense which has been pardoned or atoned 
 for, or which is barred by the statute of limitations, no 
 action can be maintained.^ Thus it is said, " The ground 
 of the matter being actionable is, that a charge is made 
 which, if it were true, would endanger the plaintiff in 
 point of law." * The better opinion is, that the action of 
 slander " is always for the loss of character, and not the 
 danger of punishment,"^ or the hazard of a criminal pros- 
 ecution.* " It is a great slander to be once a criminal ; and 
 although a pardon may discharge the punishment,^ yet the 
 scandal of the offense remains." * It is in this view that 
 it has been held actionable, subject to justification on the 
 ground of truth,'^ to say of one, " He was a thief and stole 
 
 was said, would not support an action, 
 because the punishment was merely 
 fine and binding to good behavior. 
 (Heake v. Moulton, Yelv. 90.) 
 
 ' A charge of crime is actionable, 
 although the crime is stated to have 
 been committed so long before that a 
 prosecution would be barred by the 
 statute. (Webb v. Fitch, i Root 
 [Conn.], 544.) 
 
 * Parke, B., Heming v. Power, 10 
 M. & W. 569. See Harvey v. Bois, i 
 Penn. (Penrose & Watts), 12; Andres 
 ». Koppenheafer, 3 Serg. & R. 258; 
 Dalrymple v. Lofton, i McMullen 
 (S. C), 118. " The grounds of ac- 
 tion are to be found in the degradation 
 of the party in society, or his liability 
 
 to criminal animadversion 
 
 The party's jeopardy, in a legal point 
 of view, is regarded by the law as the 
 principal ground of action." (I Star- 
 kie on Slander, 18.) But criminal li- 
 ability is not always the peculiar and 
 exclusive ground of action ; instances 
 are to be found of remedy for imputa- 
 tions which could not subject the par- 
 ty to any future penalty. (Jd. 19.) 
 
 ' Van Ankin v. Westfall, 14 Johns. 
 233 ; Shipp V. McCraw, 3 Murph. (N. 
 C.) 466. 
 
 " Eastland v. Caldwell, 2 Bibb, 241 
 Smith V. Stewart, 5 Barr. 372; Beck 
 V. Stitzel, 21 Penn. St. R. 524; Poe v. 
 Grever, 3 Sneed, 664. 
 
 " "In the eye of the law the [par- 
 doned] offender is as innocent as if he 
 had never committed the offense." 
 (Ex parte Gariand, 4 Wall. 380 ; U. S. 
 V. Padelford, 9 Wall. 542.) " The par- 
 don makes him a new man, and gives 
 him a new capacity and credit" (2 
 Hawk. P. C. ch. 57, § 48.) See Ley- 
 man ». Lattimer, 3 Ex. D. 1 5. In that 
 case plaintiff had been convicted of a 
 felony, sentenced and endured the pen- 
 alty. By statute, 9 Geo. 4, c. 32, en- 
 during the punishment of a felony has 
 the same effect as a pardon. Defend- 
 ant published of plaintiff he was " a 
 convicted felon " and "a felon editor," 
 held plaintiff having been convicted of 
 a felony was under the circumstances 
 no defense and plaintiff recovered. 
 The court distinguished between say- 
 ing plaintiff was " a convicted felon " 
 and saying " he had been convicted of 
 a felony." 
 
 ' Boston V. Tatam, Cro. Jac. 623, 
 and see Cuddington v. Willkins, Ho- 
 bart, 67-81 b. 
 
 ' Baum V. Clause, 5 Hill, 196; Van 
 
§ 1 59-] WHAT LANGUAGE IS ACTIONABLE. 1 69 
 
 my gold ; " ^ or, " He is a returned convict ; "" or, " He is a 
 convict and has been in the Ohio penitentiary ; " ' or, '' You 
 have been cropped for felony ; " * or, " Thou wast in Laun- 
 ceston gaol for coining, and burnt in the hand for it ; " "^ or, 
 " Robert Carpenter [the plaintiff] 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 ; " ® or, " He was whipped 
 for stealing hogs ; " '' or, " He was put in the roundhouse 
 for stealing ducks or Crowland ; " ' or, " Thou hast been in 
 gaol for stealing a pan." ' For the words, " Thou wert in 
 gaol for robbing on the highway," the court was divided if 
 actionable or not ; " " a charge of committing a statutable 
 offense was held actionable, although intermediate the 
 speaking of the words and the commencement of the 
 action the statute was repealed." 
 
 § 1 59. Where the offense is charged to have been com- 
 mitted in a foreign State, it will be actionable if it appear 
 that the offense charged is one by the law of that State 
 punishable by indictment, and involving moral turpitude 
 (§ no). Where the offense charged is one punishable by 
 indictment at common law, it will be presumed to be in- 
 dictable everywhere ; but if the offense charged be one 
 created by statute or punishable by indictment by statute, 
 then, as courts cannot take judicial notice of the statutes 
 of foreign States, to make the charge actionable, the stat- 
 ute relating to the offense charged must be pleaded and 
 proved like any other fact.^" Thus it is actionable ^er se, 
 
 Ankin v. Westfall, 14 Johns. 233 ; and Hard. 339, cited by Ld. EUenborough ; 
 
 se.e.post, Defenses. Roberts v. Camden^ 9 East, 97. 
 
 * Boston V. Tatam, Cro. Jac. 622. ' Holley v. Burgess, 9 Ala. 728. 
 
 ' Fowler v. Dowdney, 2 Moo. & ' Beavor v. Hides, 2 Wils. 300. 
 
 Rob. 119; and see the reporter's note ' Showel v. Haman, Cro. Jac.154. 
 
 of this case. * " Smale v. Hammon, i Bulst. 40. 
 
 ' Smith V. Stewart, 5 Barr, 372. " French w.Creath.Breese (111.), 12. 
 
 ' Wiley V. Campbell, 5 Monr. 396. ^ * Offut v. Earlywine, 4 Blackf. 
 
 » Gainiord v. Tuke, Cro. Jac. 536. (Ind.) 460; Linville v. Earlywine, Id. 
 
 « Carpenter!/. Tarrant, Rep. temp. 469; Langdon v. Young, 33 Vt. 136; 
 
170 
 
 WHAT LANGUAGE IS ACTIONABLE. [CH. VIII. 
 
 to charge one with stealing in a foreign State or country,^ 
 or with murder,^ and an action may be maintained for charg- 
 ing a crime committed in another State, which it would 
 not be actionable to charge the commission of in the State 
 in which the action is commenced.* 
 
 § 160. " No charge upon a plaintiff, however foul, will 
 be actionable without special damage, unless it be of an 
 offense punishable in a temporal court of criminal juris- 
 diction," * and therefore at the times when and at the places 
 
 Stout V. Wood, I Blackf. 71 ; Barclay 
 V. Thompson, 2 Penn, 148; Poe v. 
 Grever, 3 Sneed, 664; Sparrow v. May- 
 nard, 8 Jones L. (N. C.) 195. Burn- 
 ing a barn is an offense by the statute 
 of Indiana, but not at common law, 
 therefore a charge, " He had to leave 
 Indiana for burning a bam," is not ac- 
 tionable without a colloquium of the 
 law of Indiana. (Bundy v. Hart, 46 
 Mo. 460.) Thus the steahng of bank 
 notes not being indictable at common 
 law, to charge a theft of bank notes in 
 South Carolina, was held not to be ac- 
 tionable in North Carolina, unless it 
 was shown that, by the laws of South 
 Carolina, such stealing was subject to 
 an infamous punishment. (Wall v. 
 Hoskins, 5 Ired. 177.) A. and B. be- 
 ing in North Carolina, A. charged B. 
 with stealing a note from him in Vir- 
 ginia, and it appearing that stealing 
 notes was a larceny in Virginia, the 
 charge was held to be actionable. 
 (Shipp V. McCraw, 3 Murph. [N. C] 
 463.) 
 
 * As to say in Canada, Old Smith 
 [plaintiff] is a damned thief, he stole 
 a cow in the States [United States]. 
 (Smith V. Collins, 3 Up. Can. Q. B. 
 R. I ; and see Johnson v. Dicken, 25 
 Mo. [4 Jones], 580; Cefret v. Burch, 
 I Blackf. 400.) 
 
 2 Words chargfing the commission 
 of murder in Ireland are actionable 
 without proving murder to be an in- 
 dictable offense in that country. 
 (Montgomery v. Deeley, 3 Wis. 709.) 
 To charge one with administering poi- 
 son in a foreign country, with intent to 
 kill, is actionable, semhle the court will 
 presume such an offense to be indicta- 
 
 ble. (See Langdon v. Young, 33 Vt. 
 
 136.) 
 
 3 Van Ankin, v. Westfall, 14 Johns. 
 233 ; and see Stout v. Wood, i Blackf . 
 71 ; Dufrasne v. Weise, 46 Wis. 290. 
 
 * I Starkie on Slander, 21, and he 
 proceeds to establish this proposition 
 by referring to the cases in which it 
 has been decided that to say that a 
 man is "forsworn," or has "taken a 
 false oath, " is not actionable unless the 
 charge connects it with some judicial 
 proceeding. Without this connection, 
 be says, the charge only imputes a 
 breach of morality, for which no 
 action lies. (See Perjury, post.) Be- 
 sides the older authorities, there is 
 cited Hopkins v. Beedle, i Cai. 347 ; 
 Stafford v. Green, i Johns. 505 ; Ward 
 V. Clark, 2 Id. 10; Watson v. Hamp- 
 ton, 2 Bibb (Ky.), 319; Jacobs v. 
 Fyler, 3 Hill, 572. To these we add 
 Hopwood V. Thorn, 8 C. B. 293 ; Brite 
 V. Gill, 2 T. B. Monr. 65; Dorsey 
 V. Whipps, 8 Gill, 457; Holtz/. Schole- 
 field, 6 T. R. 694; Wyant v. Smith, 5 
 Blackf. 293; Tebbetts v. Coding, 9 
 Gray (75 Mass.), 254; Edgerly v. 
 Swain, 32 N. H. 478; Wright v. Lind- 
 say, 20 Ala. 428 ; Barham v. Nether- 
 sall, Yelv. 22 ; and see Heard on Libel, 
 § 28. A charge of having "broken 
 open and read a letter," sent by mail, 
 held not actionable, because the 
 offense, although indictable, is not, 
 morally speaking, a crime. (Hillhouse 
 V. Peck, 2 Stew. & Port. 395 ; and see 
 McCuen v. Ludlum, 2 Harr. [N. J. 
 Law], 12; Cheadle v. Buell, 6 Ham. 
 67; post, note to § 178, and ante, p. 
 164, note 2.) 
 
 Where the words on their face 
 
§ i6o.] 
 
 WHAT LANGUAGE IS ACTIONABLE. 
 
 171 
 
 which the following named offenses were not indictable, it 
 was held not actionable /^r se to charge a breach of trust,^ 
 or a malicious trespass,^ or of burning, destroying, and sup- 
 pressing a will,* or attempting to procure, or causing or 
 procuring a miscarriage,* or with incest,® or adultery,* or 
 crime against nature,' or with cheating,* or " mismarking " 
 cattle,' or living by imposture.^" 
 
 charge a criminal offense, but are 
 shown by their context or otherwise, 
 not to have that meaning, they are not 
 actionable; thus the words, they are 
 highwaymen, robbers, and murderers, 
 being shown to relate to a transaction 
 not amounting to a criminal offense, 
 were held not to be actionable. (Van 
 Rensselaer v. Dole, i Johns. Cas. 
 279; and see § 134 and note to § 137, 
 ante, and Curvel v. McLeod, 4 All. 
 332 [New Brunswick].) 
 
 It has been held that a charge by a 
 married woman of having stolen her 
 goods is not actionable (she having no 
 separate estate), as a married woman 
 could not have goods of her own. (i 
 RoUe Abr. 74; 6 Bac. Abr. 238; i 
 Starkie on Slander, 77.) But where a 
 married woman said, my turkeys are 
 stolen, Chamel has stolen them, it 
 was held Chamel might have his 
 action. (Chamel's Case, Cro. Eliz. 
 279.) And so where a married woman 
 said, thou hast stolen my faggots. 
 (Stamp V. White, Palmer, 358; and 
 see Powell v. Plunket, Cro. Car. 52.) 
 
 As it is not a crime to buy intoxica- 
 ting liquors from one illegally selling 
 the same, it is not actionable per se to 
 charge that one thus bought liquor. 
 (Sterling v. Jugenheimer, 69 Iowa, 
 210.) So words charging grain deal- 
 ers with combining to reduce the price 
 of grain were held not to charge a 
 crime and were not actionable /^r se. 
 (Achom V. Piper, 66 Iowa, 694.) 
 
 By the statute of Illinois, no child 
 under the age of ten years can be pun- 
 ished for larceny; but an action may 
 be sustained by such child for slander- 
 ous words accusing her of theft. 
 (Stewart v. Howe, 17 111. 71 ; and see 
 Red way v. Gray, 31 Vt. [2 Shaw], 292 ; 
 Dukes V. Clark, 2 Blackf. [Ind.] 20; 
 Bash V. Sommer, 20 Penn. St. [8 Har 
 
 ns], 159; see notes, pp. 123, 124 and 
 note 12, p. 149 and § 144, subd. b. b. 
 ante.) 
 
 In Wisconsin held actionable to 
 call one a hog. (Solverson v. Peterson, 
 25 No. West. Rep. 14.) 
 
 * M'Clurgz/. Ross, 5 Binn, 218. 
 
 2 Wilcox V. Edwards, 5 Blackf 183. 
 
 ' O'Hanlon v. Myers, 10 Rich. 
 Law [S. C], 128; and see 3 Salk. 
 327. Charge of stealing a will action- 
 able in New York. (Colyerz/. Colyer, 
 50 Hun, 422.) 
 
 * Not within the exceptions of the 
 statute. (Bissell v. Cornell, 24 Wend. 
 354; Abrams v. Foshee, 3 Clarke, 274 ; 
 Smith V. Gaffard, 31 Ga. 45.) And 
 held not actionable to charge an 
 attempt to commit a robbery. (Rus- 
 sell V. Wilson, 7 B. Mon. 261.) 
 
 " Eure V. Odom, 2 Hawks (N. C), 
 52; and as to charge of incest, see 
 Starr v. Gardner, 6 Up. Can. Q. B. 
 Rep. O. S. 512; Watts v. Greenlee, 2 
 Dev. 115; Gallwey v. Marshall, 9 Exch. 
 294; ante, % 141. 
 
 * Wagaman v. Byers, 17 Md. 183; 
 Castleberry v. Kelly, 26 Ga. 606 ; see 
 ante, § 144; subd. a, a.nd post. 
 
 ' Coburn v. Harwood, Minor, 93 ; 
 Estesz/. Carter, 10 Iowa, 400; and see 
 ante, §§ 144, 1 53, and post. Where 
 a crime against nature is indictable, to 
 charge the commission of it is action- 
 able. (Goodrich v. Woolcot, 3 Cow. 
 231 ; 5 Cow. 714.) 
 
 * Odiome v. Bacon, 6 Cush. 185 ; 
 Richardson v. Allen, 2 Chit. 657; 
 Weirback v. Trone, 2 Watts & Serg. 
 408. Thou hast cheated me of sev- 
 eral pounds, held actionable. (Sur- 
 man v. Shelleto, 3 Burr. 1688.) 
 
 " Williams v. Karnes, 4 Humph. 
 9; Johnston v. Morrow, 9 Port. (18 
 Ala. O. S.) 525. 
 
 1 Wilby V. Elston, 1 8 Law Jour. 
 
172 WHAT LANGUAGE IS ACTIONABLE. [CH. VIII. 
 
 § i6i. A purpose or intent to do an unlawful act, with- 
 out any act being done, is not punishable criminally, and 
 therefore, within the rule stated in the last preceding sec- 
 tion (§ 1 60), it is not actionable orally to charge one with 
 a mere intent to commit an offense,^ " and this rule seems 
 in all times to have been adhered to with more consistency 
 than is generally observable in decisions relating to slan- 
 der." ^ Thus, it has been held not actionable to say of 
 one, Thou hast procured J. S. to come thirty miles to com- 
 mit perjury against his father, . . . and hast given 
 him ;^io for his pains ; or Harris hath procured and sub- 
 orned one Smith to come thirty miles to commit perjury 
 against his father, . . . and given Smith ^10 for that 
 purpose ; * or. Thou wouldst have killed me ; * or. She 
 would have cut her husband's throat ; ® or, Thou wouldst 
 have taken my purse from me on the highway ; * or. Thou 
 wouldst have murdered me;^ or. Sir Harbert Crofts 
 keepeth men to rob me ;* but for the words. He sent his 
 man A. to kill me, the court was divided if actionable or 
 not ; ' and the words. He will lie in wait to rob J. S. within 
 two days, were held actionable.^" So were the words, " You 
 may well spend money at law, for you can coin money 
 out of half pence and farthings," because the words im- 
 plied an act, for by a mere power the plaintiff could never 
 be able to spend money at law." From the fact that, in 
 England, a mere intent may constitute the crime of treason, 
 
 320, C. p.; 13 Jur. 706; 7 Dowl. & L. being added, and did attempt it, the 
 
 143 ; 8 C. B. 142. ^ j. latter words were held actionable. 
 
 1 McKee v. Engalls,''4 Scam. 30; « Godb. 202. 
 
 Seaton v. Cordray, Wright, loi ; Har- ' TettalT/. Osborne, cited in Stoner 
 
 risen v. Stratton, 4 Esp. 218 ; Wilson v. Audley, Cro. Eliz. 215. He sought 
 
 V. Tatum, 8 Jones L . [N. C] 300. to murder me, held actionable, because 
 
 2 I Starkie on Slander, 23. sought implies more than a mere in- 
 » Harris w. Dixon, Cro. Jac. 158; tent. (Cro. Eliz. 308.) 
 
 Yelv. 72. 8 Crofts v. Brown, 3 Bulst. 167. 
 
 * Potts' Case, Vin. Abr. Act. for ' Bray v. Andrews, Moore, 63 ; 
 
 Words, Q. a. 8; cited as Dr. Poe's Case, Dal. 66. 
 2 Bulst. 206. *» Sidften v. Mayo, 3 Bulst. 261. 
 
 ' Scot V. Hilliar, Lane, 98 ; but it 1 ' Horne^Powell, Salk. 697. 
 
§ 1 63. J WHAT LANGUAGE IS ACTIONABLE. 1 73 
 
 a charge of treasonable intention has there been held to 
 be actionable ; thus, for saying, " He is a Jacobite, and for 
 bringing in the Prince of Wales and popery to the des- 
 troying of our nation," held an action could be main- 
 tained.' 
 
 § 162. It has been said the cases are uniform on the 
 point that for an imputation of evil inclinations or prin- 
 ciples no action lies, unless it affects the plaintiff in some 
 particular character, or produces special damage.* But 
 unless by inclinations znd principles are meant intentions 
 (§ 161), or the assertion be limited to oral language, the 
 dictum seems to be unwarranted. It was held actionable 
 to publish in writing that plaintiff had openly avowed the 
 opinion that government had no more right to provide by 
 law for the support of the worship of the Supreme Being 
 than for the support of the worship of the Devil ; ^ or 
 that plaintiff would put his name to anything that T. 
 would request him to sign, that would prejudice D.'s 
 character;* and the words, " He would rob the mail for 
 one hundred dollars," spoken of a postmaster, were held 
 actionable,® 
 
 § 163. It is held, in some cases, that words which 
 denote the opinion or the suspicion entertained by the 
 publisher, are not equivalent to a direct charge, and there- 
 fore are not actionable ; ° thus, where the words were, " I 
 
 * Prinn v. Howe, i Bro. Pari. Cas. and see Simmons v. Mitchell, 6 App. 
 64; and see Eaton v. Allen, 4 Co. Cas. 156; Dickson w. Phillips, 51 Sup. 
 16. Ct. N. Y. [19 J. & S.] 162.) " What is 
 
 ' I Starkie on Slander, 24 ; Harri- the difference between suspicion and 
 
 son 7/. Stratton, 4Esp. 218. belief? Suspicion may rest on no 
 
 ' Stow V. Converse, 3 Conn. 325. grounds, belief rests upon some 
 
 * Duncan v. Brown, 15 B. Mon. grounds." (Byles, J., Leet v. Hart, 
 186. Law Rep. 3 C. P. 824.) " The stereo- 
 
 5 Craig w. Brown, 5 Blackf. 44; see typed formulas of slander, ' they say,' 
 
 § 197,/w/. 'it is said,' 'it is generally believed,' 
 
 « Words which denote opinion or are about as effectual modes of blast- 
 suspicion are not actionable. (Comyn's ing reputation as distinctly and directly 
 Dig. Act. for Defam. F, 13; cited in to charge the crime." (Johnson z/. St. 
 Hodgson V. Scarlett, i B. & Aid. 233: Louis Dispatch Co. 65 Mo. 541.) 
 
174 WHAT LANGUAGE IS ACTIONABLE. [CH. VIII. 
 
 have a suspicion that you, B., have robbed my house, and 
 therefore I take you into custody," it was held the judge 
 rightly directed the jury that if they believed the defendant 
 meant to impute only a suspicion of felony, and not an 
 absolute charge of felony, their verdict must be for the de- 
 fendant.^ The words, " she ought to have been trans- 
 ported," were held not actionable, because they expressed 
 only the opinion of the speaker.^ But the words, He 
 ought to be hanged as much as A., who was in fact hanged, 
 were construed to charge an offense which deserved hang- 
 ing, and actionable ; ® and it was held actionable to say of 
 one. If you had your deserts, you had been hanged before 
 now ;* and so of the words. He hath deserved his ears to 
 be nailed to the pillory,^ but not actionable to say : Thou 
 deservest to be hanged ; * or. Thou shouldst have sat on 
 the pillory if thou hadst thy deserts ; "^ or, Thou has done 
 that for which thou deservest to be hanged.' But the 
 words. You have done things with the company for which 
 you ought to be hanged, and I will have you hanged before 
 the first of August, were held actionable ; ' and so of the 
 words, '' I know enough he has done to send him to the 
 penitentiary."^" It was held not to be actionable to say of 
 one, " He is a great rogue, and deserves to be hanged as 
 
 » Tozer v. Mashford, 4 Eng. L. & 'On the ground that they imputed 
 
 Eq. R. 451; 6 Exch. 539; 20 Law the commission of a crime punishable 
 
 Jour. Rep. (N. S.) Ex. 224. by hanging. (Francis v. Roose, 3 M. 
 
 s Hancockz/. Winter, 7 Taunt. 205. & W. 191.) " I will have him trans- 
 
 The words, I will transport him for ported for perjury and forgery," with 
 
 felony, were held actionable. (Tern- special damage, held actionable, 
 
 pest V. Chambers, i Stark. Cas. 67.) (Floyd v. Jones, 2 Barnard. loi.) 
 
 s Read v. Ambridge, 6 Car. & P. 10 Johnson v. Shields, i Dutcher. 
 
 308 ; and see Davis v. Noak, i Stark. 116. A general charge of having been 
 
 Rep. 377 ; Johnson v. Brown, 57 Barb, guilty of crime, without naming the 
 
 1 1 8- particular crime, seems sufficient. 
 
 * Donne's Case, Cro. Eliz. 62. (Curtis v. Curtis, 4 Moo. & S. 337.) 
 
 5 Jenkinson v. Mayne, Cro. Eliz. But held not sufficient to say he had 
 
 384- been guilty of conduct unfit for pub- 
 
 « Heake v. Moulton, Yelv. 90. lication, (James 7/. Brook, 10 Jur. 541.) 
 
 ' Anon. Moore, 243. Note l, page 166, ante. 
 
 « Fisher v. Atkinson, Yin. Abr. 
 Act. for Words, G, a, 5. 
 
§ 164.] WHAT LANGUAGE IS ACTIONABLE. 1 75 
 
 well as Gale," who was condemned to be hanged. Because 
 the words show opinion merely, and perhaps the speaker 
 might not think Gale deserved hanging.^ It was held not 
 actionable to say, I will take him to Bow street (a police 
 office so called) on a charge of forgery.^ It was held ac- 
 tionable for one to say he supposed the plaintiff was guilty 
 of a crime ;* or, I think he is a horse stealer.* It seems 
 no more than the expression of an opinion to say, " Two 
 dyers have gone off, and for ought I know, Harrison will 
 be so too within this time twelve month." Yet these 
 words were held to be actionable ; ' so of the words, " All 
 is not well with Daniel Vivian ; there are many merchants 
 who have lately failed, and I expect no otherwise of Daniel 
 Vivian;"* and so of the words, " I am thoroughly con- 
 vinced you are guilty of the death of D. D." '^ But held 
 not actionable to express a supposition or belief that one 
 ^ went to a certain place for the purpose of persuading 
 another to commit adultery with him.^ 
 
 § 164. One may charge another with the commission 
 of an offense as well by way of a question as by a direct 
 assertion,' as " Is H. the man who broke jail P"^" " What 
 
 ■ Bush V. Smith, 2 Jones, 1 57. words denoting opinion are not ac- 
 
 2 Harrison v. King, 4 Price, 46 ; 7 tionable, must have their origin in the 
 
 Taunt. 431. j«^/<?j«^ distinction between matters 
 
 ^ Dickey t/. Andros, 32 Vt. 55. of tact and matters of opinion. See 
 
 * Stich i/.Wisedome, Cro. Eliz. 348. this distinction discussed in a case of 
 If a man says he believes another misrepresentation (Haight v. Hayt, 1 9 
 committed a certain offense, his be- N. Y. 468), in an essay on the influ- 
 lief, although sincere, is no justifica- ence of authority in matters of opinion 
 tion. (Kerr v. Force, 3 Cranch C. by George Comewall Lewis, and in 
 C. 8.) the review of that work, Edinburgh 
 
 ' Harrison v. Thomborough, 10 Review, April, 1850; and in Whate- 
 
 Mod. II. ley's Logic; Domat's Civil Law, note 
 
 • Vivian's Case, 3 Salk. 326. to § 1962; and see the distinction 
 ' Peake v. Oldham, Cowper, 275 ; noticed, Root v. King, 7 Cow. 629 ; 
 
 2 W. Black. 960. Reg. v. Ardley, Law Rep. i Cro. Cas. 
 
 « Dickey v. Andros, 32 Vt. 55 ; and Res. 304. 
 as to a charge of inciting one to com- ' Gorham v. Ives, 2 Wend. 534; 
 
 mit a crime, see Passie v. Mondford, Sawyer v Eifert, 2 Nott. & M. 511. 
 Cro. Eliz. 747; Cockaine v. Witnam, '» Hotchkiss v. Oliphant, 2 Hill, 
 
 Cro. Eliz. 49; Eaton v. AUon, 4 Cow. 510. 
 16. The dicta and decisions that 
 
176 WHAT LANGUAGE IS ACTIONABLE. [CH. VIII. 
 
 art thou ? a bankrupt ; " ^ '' When will you bring home 
 the nine stolen sheep you stole from I. S. ? " * " Have you 
 brought the ^40 you stole .? " * " Wilt thou murder my 
 sister as thou didst thy wife ? " * " Who stole the bell- 
 ropes ? " ^ Asking as to a forgery, whether the witness did 
 not think it was in G.'s handwriting, and asserting that he 
 had shown it to some persons who said it was in G.'s hand- 
 writing, would seem to show an intent to impress a belief 
 of G.'s guilt of the forgery.* 
 
 § 165. In some of the older cases it was held that "ad- 
 jective words," or '' words spoken adjectively," do not con- 
 fer a right of action. But, as was well said by Lord Coke, 
 " sometimes adjectives will maintain an action, and some- 
 times not."^ Thus it was held not actionable to call one 
 " conjuring knave," ^ or " murderous villain/'* or " pocky 
 whore," ^^ or "rebellious knave;"" but held actionable to 
 call one a " traitorous knave," ^^ or a " traitor knave." " We 
 conceive the true rule to be, that when the word imputes 
 an act it is actionable, and when it imputes an intention 
 or inclination only, it is not actionable." Thus it has been 
 held not actionable to call one a " thievish knave," or to 
 say to one, " thou hast thievishly taken my money," be- 
 cause the word thievish or thievishly implies an inclina- 
 tion only ; " but to call one a thieving rogue was held ac- 
 
 1 See Jordan v. Lyster, Cro. Eliz. » 2 Ld. Raym.236. So "murder- 
 
 273- ous quean " held not actionable. (Vin. 
 
 » Hunt V. Thimblethorp, Moore, Abr. Act. for Words, I, a, 4.) 
 418- " Gulford's Case, 2 RoUe R. 71; 
 
 8 Mayott V. Gibbons, 2 RoUe R. and " pocky rascal," see Vin. Abr. 
 
 166. Act. for Words, G, b, 5. 
 
 * Brown v. Charlton, Keb. 359, pi. n Ward v. Thome, Cro. Eliz. 171 ; 
 
 52. Booth V. Leach, Lev. 90. 
 
 ' Jackson v. Adams, 2 Scott, 590; *« Id. 
 2 Bing. N. C. 402. The words in this ^^ Shelby z/. Carryer, 2 Bulst. 210. 
 
 case were held not actionable. See in »* i Starkie on Slander, 71, and 
 
 note p. 124, ante. § 162, ante. 
 
 « Gorham v. Ives, 2 Wend. 534. le Vin. Abr. Act. for Words I, a, 
 
 1 4 Coke, 19. 4, II ; Robins v. Hildredon, Cro. Jac. 
 
 « Killick V. Barns, 2 Bulst. 138. 65. 
 
§ 1 66,] WHAT LANGUAGE IS ACTIONABLE. 
 
 177 
 
 tionable, because thieving implies an act.^ " Thieving 
 puppy" was held actionable," and so were "thievish 
 pirate," * " bankrupt knave," " pocky knave," * and " bank- 
 rupt scrub." ^ "Bankrupt rogue" was held not action- 
 able when spoken of an individual as such ; * but those 
 words, when spoken of one in trade (a shoemaker), were 
 held actionable.'' " Bankrupt knave " was said not to be 
 actionable, because the phrase implies only bankrupt-like 
 knave.^ And so " Cuckoldy rogue " was held actionable.* 
 A participle, it is said, implies an act done, and therefore 
 held actionable to call one a " murdering rogue." " or a 
 " buggering rogue," " or to say he is robbing or ravishing." 
 
 § 166. Words charging a burning amounting to arson, 
 whether at common law or by statute, are actionable;^* thus 
 
 ' Hunt V. Merrychurch, 2 Keb. 440 ; 
 Dorrell v. Grove, Freem. 279. 
 
 * Little V. Barlow, 26 Ga. 423 ; and 
 stepost, % 169. 
 
 » Vin. Abr. Act for Words, I, a, 
 12. 
 
 * Inglebath v. Jones, Cro. Eliz. 99 ; 
 but it was doubted in Robinson v. 
 Mellor (Cro. Eliz. 843), if " bankrupt 
 knave " was actionable, and the phrase 
 was held not actionable when spoken 
 of a tanner. (York v. Cecil, Brownl. 
 16.) The words "base, beggarly, 
 bankrupt knave," were held actionable 
 in Stile v. Finch (Cro. Car. 381) ; and 
 so of the words "bribing knave," 
 spoken of an attorney. (Yardly v. 
 Elliss, Hob. 8a.) 
 
 ' Wilson V Crow, Sty. 75. 
 
 ' Loyd V. Pearse, Cro. Jac. 424. 
 
 ' Langley v. Colson, Godb. 151. 
 
 « Selby V. Carrier, Cro. Jac. 345 ; 
 but said otherwise. Booth v. Leach, 
 Lev. 90. See Vin. Abr. Act. for 
 Words, I, a, 3. 
 
 » The words were spoken in Lon- 
 don, and held actionable as implying 
 his wife was a whore, (i Str. 471.) 
 lo Green v. Lincoln, Cro. Car. 318. 
 1 » Collier v. Bourn, 2 Keb. 377 ; or 
 " perjured knave " (Staverton v. Relfe, 
 Yelv. 160) ; or " perjured rogue " 
 (Orton V. Fuller, Lev. 65) ; but where 
 
 13 
 
 the words were : '' Thou art a per- 
 jured knave, that is to be proved by a 
 stake that parts the lands of J. S. and 
 J. D.," it was doubted if they were ac- 
 tionable. (Brecheley v. Atkins, Yelv. 
 10.) 
 
 12 Sybthorp's Case, i RoUe Abr. 
 176 ; I Starkie on Slander, 72. 
 
 •3 Brady v. Wilson, 4 Hawks (N. 
 Car.) 93; Case v. Buckley, 15 Wend. 
 327; Jones V. Hungerford, 4 Gill & 
 Johns. 402 ; House v. House, 5 Har. 
 & Johns. 124; Wallace v. Young, 5 
 B. Monr. 155. Saying, "He [plaint- 
 iff] has been at different times close 
 about where C.'s gin-house was burned, 
 in disguise," held not to amount to a 
 charge of arson, and not actionable. 
 (Waters v. Jones, 3 Port. 442.) The 
 willful burning of an insured building, 
 with intent to injure the insurer, is, by 
 statutes of Wisconsin and Vermont, a 
 felony. Where the complaint alleged 
 that defendant knew plaintiff's hop- 
 house was insured, and nevertheless 
 charged him with setting fire to it, 
 there being no evidence of defendant's 
 knowledge, plaintiff was nonsuited. 
 (Frank v. Dunning, 38 Wis. 270.) In 
 absence of any statute, such a charge 
 would not be actionable. (Redway v. 
 Gray, 31 Vt. 292; and see Chace v. 
 Sherman, 119 Mass. 387.) Plaintiff 
 
178 
 
 WHAT LANGUAGE IS ACTIONABLE. [CH. VIII, 
 
 charging one with burning his own store/ or the barn of 
 another, is not actionable.^ But to charge one with burn- 
 his own store to defraud the insurers would be action- 
 able.' 
 
 § 167. A general charge oi forgery made orally is ac- 
 tionable;* and so to charge, " You are a rogue, for you 
 forged my name,"^ or " you signed my name without my 
 permission."* But held not actionable to say, "Thou hast 
 forged my hand," or " thou art a forger." ^ The writing 
 charged to have been forged must, it seems, be one which, 
 if genuine, would operate as the foundation of another's 
 liability.^ It has been held actionable to charge the forg- 
 
 owned a building in A. It was in- 
 sured, and accidentally burned. De- 
 fendant said of plaintiff: " He is cap- 
 able of anything. When the lightning 
 struck K.'s house, how slow it went to 
 the premises of A.; but he had them 
 insured in three companies. He is 
 the meanest man that ever lived. If 
 he had lived in some counties, he 
 would have been hung long ago." 
 Held actionable. (Weil v. Schmidt, 
 28 Wis. 138.) See ante, % 144, subd. 
 c. 
 
 1 Bloss V. Toby, 2 Pick. 320; Mc- 
 Nab V. McGrath, 5 Up. Can. Q. B. 
 Rep. O. S. 516; or a building belong- 
 ing to the wife of plaintiff, but occu- 
 pied by plaintiff. (Redway v. Gray, 
 31 Vt. 292.) " He has burnt my 
 barn," not actionable; it cannot, by 
 innuendo merely, be extended to a 
 barn with corn. (Barham's Case, 4 
 Coke, 20; Yelv. 21.) 
 
 2 Barham v, Nethershall, Yelv. 22 ; 
 Bundy v. Hart, 46 Mo. 460. Charging 
 one with burning a school-house was 
 held actionable (Wallace v. Young, 5 
 B. Monr. 155); and so of a gin-house. 
 (Waters v. Jones, 3 Port. 442.) 
 
 ' I Am. Lead. Cas. 3d ed. 1 17 ; and 
 see Tebbets v. Coding, 9 Gray (75 
 Mass.), 254; Brettun v. Anthony, 103 
 Mass. 37; West v. Hanrahan, 28 
 Minn. 385; contra, Redway v. Gray, 
 31 Vt. 292. 
 
 * Alexander v. Alexander, 9 Wend. 
 
 141 ; Andrews v. Woodmansee, 15 
 Wend. 232; Nicols v. Hayes, 13 Conn. 
 15s; Arnold «/. Cost, 3 Gill & Johns. 
 219. " Thou hast forged a deed or 
 bond," actionable; but "thou hast 
 forged a writing," not actionable 
 (Motley V. Slany, Keb. 273 ; Austie v. 
 Mason, Cro. Eliz. 554; Reynell v. 
 Sackfield, 2 Bulst. 132; Aier v. Frost, 
 RoUe R. 431 ; s C. Frost v. Ayer, 3 
 Bulst. 265 ; Andrews v. Bird, Het. 31), 
 unless with an innuendo, a deed. 
 (Anon. Sid. 16; and see Goodale v. 
 Castle, Cro. Eliz. 554.) " You have 
 falsely forged your father's hand, and 
 thereby falsely have procured your 
 father's tenants to pay rents to you 
 which were due to your sister," held 
 not actionable. (Vennard v. Wotton, 
 Cro. Eliz. 166.) Charging forgery of a 
 testimonial of a patent medicine, not 
 actionable. (Miller v. Rittinger, 2 
 Pearson [Pa.], 351.) See ante, % 144, 
 subd. k. 
 
 ' Jones V. Heme, 2 Wils. 87. 
 
 ' Creelman v. Marks, 7 Blackf. 
 
 281. 
 
 ' Vin. Abr. Act. for Words, G, a, 
 20. 
 
 ' Jackson v. Weisiger, 2 B. Monr. 
 214. " You say you were authorized 
 by P. to draw bills on him. You never 
 were authorized ; if you have any let- 
 ters from him, they are forged." These 
 words held not actionable. (Mills v. 
 Taylor, 3 Bibb, 469.) 
 
§ i68.j 
 
 WHAT LANGUAGE IS ACTIONABLE. 
 
 179 
 
 ery of a deposition/ a warrant,^ a petition to the Legisla- 
 ture for a grant of land ; ^ and so of a letter containing 
 these words : " I have to inform you I have received your 
 money, and want you to come and receive it." * 
 
 § 168. A general charge of being a murderer,^ or of 
 having killed another, is actionable,^ Thus held action- 
 able to say, ''Thou hast killed a man;"'' " You killed my 
 brother;"® "You killed one negro and nearly killed an- 
 other ; " ^ " George Button is the man who killed my hus- 
 band;''^" "I will call him in question for poisoning his 
 own aunt, and make no doubt but to prove he hath poi- 
 soned his aunt ; " " and the words, " He killed my child ; 
 
 1 Atkinson v. Reding, 5 Blackf. 
 39 ; or forging writs. (Hungerford -v. 
 Watts, 4 Lev. 181 ; Sale v. Marsh, 
 Cro. Eliz. 178; contra, Halley v. Stan- 
 ton, Cro. Car. 268.) 
 
 2 Stone V. Smaicombe, Cro. Jac. 
 648 ; Thomas v. Axworth, Hob. 2. 
 
 ' Alexander v. Alexander, 9 Wend. 
 141. 
 
 * Ricks V. Cooper, 3 Hawks (N. 
 Car.), 587. See § 144, subd. k, ante. 
 
 ' Dudley v. Robinson, 2 Ired. 141; 
 Noeninger v. Voght, 88 Mo. 589. 
 Vin. Abr. Act. for Words, G. a, 
 II; ante, § 144, subd. m, s; but the 
 words, " Thou art a murderer and a 
 bloody fellow, and I am afraid of you," 
 were held not actionable. (Id. 25.) 
 To call one murderer because he 
 killed a dog, not actionable ; (dictum, 
 Waggoner v. Richmond, Wright 
 [OhioJ, 173; see note p. no, and note 
 2, p. 136, ante) ; and the words, 
 " They are highwaymen, robbers, 
 and murderers," appearing to be 
 spoken in reference to a transaction 
 not involving robbery or murder, were 
 held not actionable. (Van Rensselaer 
 V. Dole, I Johns. Cas. 279 ) 
 
 « Johnson v. Robertson, 4 Port. 
 4-86; Chandler v. HoUoway, Id. 18. 
 It need not be alleged the party 
 charged to have been killed is in fact 
 dead. (Carroll v. White, 33 Barb. 
 618; see ante, notes 2, p. 125, and 2, 
 p. 170, and § 144, subd. m, s.) 
 
 ' Cooper V. Smith, Cro. Jac. 423 ; 
 Banfield v. Lincoln, Freem. 278. 
 
 " Taylor v. Casey, Minor, 258. 
 " Thou art a rogue and rascal, and 
 hast killed thy wife," held actionable. 
 (Wilner v. Hold, Cro. Car. 489 ) 
 
 » Hays V. Hays, i Humph. 402. 
 ' " Button V. Heyward, 8 Mod. 24. 
 Held actionable to say, " Thou didst 
 poison thy husband." (Gardiner v. 
 Spurdant, Cro. Jac. 438) ; or, " T. 
 [plaintiff] killed thy husband " (Toose 
 Case, Cro, Jac. 306) ; or, " Thou hast 
 killed a man " (Godfrey v. More, Cro. 
 Eliz. 317); or, "Thou hast killed my 
 wife" (Talbot Case, Cro. Eliz. 823); 
 or, " Thou hast killed thy wife " (Wil- 
 ner V. Hold, Cro. Car. 489). 
 
 1 » Web V. Poor, Cro. Eliz. 569. See 
 ante, § 144. subd. x. Not actionable 
 to say, " It could be proved by many 
 violent presumptions that he [plaintiff] 
 was the death of P." (Weblin v. 
 Mayer, Yelv. 153); or, "I doubt not 
 but to see thee hanged for killmg Mr. 
 Sydman's man who was murdered." 
 (Anon. Jenk. 302.) It was held ac- 
 tionable to say, " Thou hast murdered 
 A., thy late servant." If A. is not 
 dead, or if there were no such person, 
 the scandal is the greater (Green v. 
 Warner, 3 Keb. 624); or, "Thou 
 didst kill thy master's cook." (Cooper 
 V. Smith, Cro. Jac. 423 ; and see Bar- 
 rons V. Ball, Id. 331.) 
 
i8o 
 
 WHAT LANGUAGE IS ACTIONABLE. [CH. VIIL 
 
 it was the saline injection that did it," with an innuendo 
 that it was meant to charge the plaintiff with feloniously 
 killing a child by improperly and with gross negligence 
 and culpable want of caution administering the injec- 
 tion.^ 
 
 § 169. A general charge of being a thief ^ is actiona- 
 ble, as to call one "A hog thief," » "A bloody thief."* It 
 is actionable to say of one, " He is a thieving person, he 
 stole and ran away;"* or, "He is a thief, he stole ray 
 wheat and ground it and sold the flour to the Indians ; " * 
 or, " He is a thief ; you have robbed me of my bricks." '' 
 The charge is not the less actionable because made indi- 
 rectly.^ Thus it was held actionable to say, "Tell him 
 [plaintiff] he is riding a stolen horse, and has a stolen 
 watch in his pocket ; " ' or, " I saw him take corn from 
 A.'s crib twice, and look round to see if any person saw 
 
 ' Edsall V. Russell, 5 Scott N. R. 
 801 ; 2 Dowl. N. S. 614; 4 Man. & G. 
 1090; and see Carroll v. White, 33 
 Barb. 615, and ante, % 144. The 
 words. " That knave Davis, the apo- 
 thecary, hath poisoned my uncle; I 
 will have him digged up again, and 
 hang him," held actionable. (Davis 
 V. Ockham, Sty. 245.) 
 
 * Dudley v. Robinson, 2 Ired. 141 ; 
 and see ante, note 2, p. 177; or of 
 having been a thief, ante, note 5, p. 
 168 ; and see § 144, subd, /, r, z, bb, 
 dd, ee. "You are no thief," held to 
 be ironical and actionable. (Johnson 
 V. St. Louis Dispatch Co., 65 Mo. 
 
 5390 
 
 » Hogg V. Wilson, i Nott & McC. 
 (So. Car.) 216; Porter v. Choen, 60 
 Ind. 338. 
 
 * Fisher v. Rotereau, 2 McCord 
 (So. Car.), 189. 
 
 ' Alley V. Neely, 5 Blackf. 200; 
 Reynolds v. Ross, 42 Ind. 387; and 
 see ante, note 5, p. 1 58. 
 
 ' Parker v. Lewis, 2 G. Greene 
 (Iowa), 311. 
 
 ' Slowman v. Dutton, 10 Bing. 
 402; 4 M. & Sc. 174. "Thou art a 
 
 thief, and hast stolen twenty loads of 
 my furze," held not actionable. (Clarke 
 V. Gilbert, Hob. 331.) As to furze, 
 the presumption is it is attached to 
 the soil ; as to bricks, the presumption 
 is they are chattels. "Ayres is a 
 thief and hath stolen my apple trees," 
 actionable. (Ayres' Case, 2 Brownl. 
 280.) 
 
 * McKennon v. Greer, 2 Watts 
 (Pa.), 352; Mayson v. Sheppard, 12 
 Rich, Law (So. Car.), 254. " I believe 
 he will steal and I believe he did 
 steal, " amount to a charge of larceny. 
 (Dottarer v. Bushey, 16 Penn. St. R. 
 204; and ante, § 144, subd. bb.) The 
 wife of B. was asked by C, " Where- 
 fore will your husband hang S.?" She 
 answered, "For breaking our house 
 in the night and stealing our goods." 
 Held actionable, although spoken in 
 answer to a question. (Hayward v. 
 Naylor, i RoUe Abr. 50.) So pub- 
 lishing in writing, that certain proper- 
 ty had been stolen and the thief was 
 believed to be plaintiff, held action- 
 able. (Simmons v. Holster, 13 Minn. 
 249.) 
 
 ° Davis V. Johnston, 2 Bailey, 579. 
 
§ 170.] WHAT LANGUAGE IS ACTIONABLE. 
 
 I»I 
 
 him measuring;"^ or, " You get your living by sneaking 
 about when other people are asleep. What did you do 
 with the sheep you killed ? Did you eat it ? It was like 
 the beef you got the negroes to bring you at night. Where 
 did you get the little wild shoats you always have in your 
 pen ? You are an infernal roguish rascal ; " * or, " There 
 is the man who stole my horse and fetched him home this 
 morning." * A charge by one partner against his copart- 
 ner of " pilfering " out of the store, held actionable ; * and 
 held actionable to say of one, " He took my wood, and is 
 guilty of any and everything that is dishonest ; " ^ or, " He 
 robbed the United States mail ; " ^ and it is actionable to 
 charge one having the custody of goods with stealing 
 them ; ^ but held not actionable to charge a weaver 
 with stealing filling sent to his house to be woven into 
 cloth.^ 
 
 § 170. A charge of larceny, that is, the taking animo 
 furandi the personal property of another, the subject of 
 larceny^ is actionable ; " thus the words, " You have stolen 
 
 ' Jones V. M'Dowell, 4 Bibb, 188. To charge one with stealing cotton 
 
 ^ Morgan v. Livingston, 2 Rich. held actionable, although the charge 
 
 573. was made in allusion to cotton which 
 
 ' Bonner v. Boyd, 3 Har. & J. the plaintiff had to g^n for the defend- 
 
 278. ant's brother (Stokes v. Stuckey, i 
 
 * Beckett v. Sterrett, 4 Blackf 499. McCord, 562) ; and so of charging a 
 Pilfering held not actionable. (Char- dressmaker with appropriating mater- 
 ter V. Hunter, Cro. Eliz. 424.) Ac- ial of her customer (Bowe v. Rogers, 
 tionable to say, " She is as very a thief 50 Wis. S98); and as an overseer of 
 or a worse thief than any that robbeth an estate may be guilty of stealing the 
 by the highway." (Ratcliff v. Shub- goods of his employer intrusted to 
 ley, Cro. Eliz. 224). Defendant said him, it was held actionable to charge 
 of plaintiff, his partner, "He is a thief. an overseer with stealing corn of his 
 When I came down town this morn- employer. (Wheatley v. Wallace, 3 
 ing, my bookkeeper reported to me Har. & J. i.) 
 
 that he had gutted the drawer." " He » Lee v. Dudd, Mo. App. 2 West, 
 
 has scuttled a ship to get the insur- 465. 
 
 ance," actionable. (McGibbon v. »" Galloway i'. Courtney, 10 Rich. 
 
 Young, 20 Wkly. Dig. 12.) 414; Blanchard v. Fisk, 2 N. H. 398; 
 
 ' Dottarer v. Bushey, 16 Penn. St. Bonner v. Boyd, 3 Har. & Johns. 278; 
 
 Rep. 204. Wheatley -v. Wallis, i Id. \\ Stokes 
 
 • Jones r/. Chapman, 5 Blackf. 88. v. Stuckey, i McCord, 562; Gill v. 
 ' Gill V. Brite, 6 B. Mon. 130. Brite, 6 B. Mon. 130; Gaul v. Flem- 
 « Hawn V. Smith, 4 B. Mon. 385; ing, 10 Ind, 253; and see ante, % 144, 
 
 but see a«/tf, in note, p. 124, and § 144. subd. p, z, bb. dd, ee, and note 4, 
 
l82 
 
 WHAT LANGUAGE IS ACTIONABLE. [CH. VIII. 
 
 my belt," ^ or " my boards," ^ or " my tea," ^ were held ac- 
 tionable. And so of the words, " You robbed me, for I 
 found the thing you done it with ; " * or, " You robbed 
 W."^ " For some months back I have missed things from 
 my laundry, Jennie (the plaintiff) has stolen them, and I 
 have come to search your house ; " ^ or, he " stole and des- 
 troyed my sister's will ;"'' the words, " He robbed the trea- 
 sury and bought a farm with it,"^ or " Bear witness he hath 
 stolen my cloth," held not actionable.' Charging plaintiff 
 with having stolen a barrel of pork, may or may not be 
 actionable, according to the circumstances of the publica- 
 tion ; ^^ but semble to render them non-actionable it must 
 appear that the facts could not in any view amount to a 
 felony." Where the words were, " I have lost a calf-skin 
 
 p. 170. A charge of taking clothes, 
 animo furandi, from a dead body, 
 held actionable. (Wonson v. Sayward, 
 13 Pick. 402.) 
 
 * St. Martin v. Desnoyer, i Minn. 
 156; and so of the words, "Thou 
 hast stolen my goods, and I will have 
 thy neck. " (^Fleming v. Jales, 2 Brownl. 
 280.) 
 
 * Burbank v. Horn, 39 Md. 233. 
 
 ^ Coleman v. Playsted, 36 Barb. 
 26. 
 
 " Rowcliffe V. Edmonds, 7 M. & 
 W. 12. 
 
 ° Tomlinson v. Brittlebank, I Nev. 
 & M. 455 ; 4 B. & Adol. 630. " Thou 
 hast robbed the church, and thou hast 
 stolen the lead off from the church, " 
 held actionable. (Benson v. Morley, 
 Cro. Jac. 153.) And so of the words, 
 " He hath robbed the church." (Sib- 
 thorp's Case, W. Jones, 366.) 
 
 « Bell V. Fernald, 38 No. M^est. 
 Rep. (Mich.) 910. 
 
 ' Collyer v. Collyer, 21 N. Y. St. 
 Rep. 118. 
 
 ' Allen V. Hillman, 12 Pick. loi ; 
 and see in § 144, subd. z. 
 
 » Bury V. Wright, Yelv. 126. 
 * ° Phillips V. Barber, 7 Wend. 439 ; 
 and see § 144. " You [plaintiff] have 
 stolen a file of bills out of my desk," 
 
 with an innuendo that by file of bills 
 was intended a file of unsatisfied ac- 
 counts, held not actionable. (Blan- 
 chard v. Fisk, 2 N. Hamp. 398.) De- 
 fendant stated to several persons that 
 plaintiff had robbed her, but these 
 persons knew there had been a law 
 suit between the parties, and testified 
 that they did not understand defend- 
 ant to charge plaintiff with a crime, 
 held not actionable. (Bannon v. 
 Cleary, 25 Wkly. Dig. 439.) 
 
 1* Laine v. Wells, 7 Wend. 175; 
 Alexander v. Alexander, 9 Id. 141 ; 
 Case V. Buckley, 1 5 Id. 327. B. spoke of 
 A., that A. and B. and one C. sat down 
 to gamble in a house in D., and while 
 there C. took from his pocket-book a 
 five dollar bill and proposed to bet one 
 dollar; that after the bill was put 
 down on a chance it was missing, and 
 search was made for it but it could 
 not be found, whereupon the parties 
 agreed to submit to a search, which 
 was made, but the bill was not found ; 
 that after this search, all the parties 
 went out of the house to search for the 
 missing bill; near the window they 
 found a pocket-book with the clasp 
 unfastened, and in it was the missing 
 bill; that C. took out the bill and handed 
 the pocket-book to A., who took it. 
 
I70.] 
 
 WHAT LANGUAGE IS ACTIONABLE. 
 
 183 
 
 out of my cellar. . . . There was no one in the cellar 
 but you, Bornman and Gray. I do not blame you nor 
 Gray, but Bornman must have taken it," they were held 
 actionable.^ Charging one with stealing a key out of the 
 lock of a door, held actionable.^ By the laws of Penn- 
 sylvania, taking and carrying away fruits, vegetables, &c., 
 whether attached to the soil or not, is a misdemeanor, yet 
 where the words were, '' Mrs. Reynolds has stolen corn 
 out of Gubbles' field," "He was confident Pat. Reynolds' 
 wife stole Gubbles' corn," held the words were not action- 
 able, if they referred to growing corn.^ To charge plaintiff 
 with having wrongfully taken defendant's logs, sawing 
 them up, and selling the lumber, is actionable without 
 averring that larceny was intended.* "He sheared two of 
 
 and then said. " Boys, don't tell this 
 on me, for if you do it will ruin me." 
 Held that these words did not of 
 themselves import a charge of larceny. 
 (Prichard v. Lloyd, 2 Ind. 154.) 
 
 • Bornman v. Boyer, 3 Binn. 515; 
 ante, § 144, subd. dd, and see Kees- 
 ling V. McCall, 36 Ind. 321. 
 
 * Hoskins v. Tarrence, 5 Blackf. 
 417. This decision was on the 
 hypothesis that stealing a key out of 
 the lock of a door is larceny. It was 
 so held in Rex v. Hedges, i Leach's C. 
 C. 201, 4th ed., but is said to be 
 "clearly wrong." Heard on Libel, 
 p. 37, note 4. Actionable to say : 
 " You never thought well of me since 
 G. [plaintiff] did steal my lamb" 
 (Grave's Case, Cro. Eliz. 289); or, 
 " I dealt not so unkindly by you 
 [plaintiff J when you stole a sack of 
 com." (Cooper v. Hawkeswell, 2 
 Mod. 58.) "J. W. [plaintiff] was in 
 question for stealing a mare, and hue 
 and cry went out after him, and he 
 durst not show his face hereabouts," 
 doubtful if actionable. (Gray v. Wayle, 
 Sty. 1 59.) A. said to B. [the defend- 
 ant], "My sheep were feloniously 
 stolen away." B. replied, "I know 
 who took them ; it was J. S. " Held 
 actionable. (Helly v. Hender, 3 Bulst. 
 83.) "Go follow suit against W [the 
 
 plaintiff ] for stealing thy two kine, and 
 hang him," held actionable. (" Willy- 
 mote V. Wetton, Cro. Eliz. 904.) So 
 were the words, " He is infected of 
 the robbery and murder lately com- 
 mitted, and doth smell of the murder." 
 (Hawley v. Sidenham, Vin. Abr. Act. 
 for Words, P, a, 14.) " You might 
 have known your own sheep and not 
 have stolen mine," court divided if ac- 
 tionable or not. (Tompson v. Knott, 
 Yelv. 144.) "Thou [plaintiff] hast 
 stole my mare or was consenting to 
 it," held not actionable; the plaintiff 
 might consent and yet be faultless, and 
 the latter part of the sentence con- 
 trolled the first. (Anon. Noy, 172.) 
 " S. [plaintiff] did steal a mare, or 
 else G. is forsworn," not actionable, 
 not being a direct charge of stealing. 
 (Sparham v. Pye, Cro. Jac. 532.) So 
 the words, ' ' You as good as stole the 
 canoe of J. H.," were held not action- 
 able per se. (Stokes v. Arey, 8 Jones 
 L. [N. Car.] 66.) 
 
 8 Stitzell V. Reynolds, 9 P. F. 
 Smith, 488 ; and see Hall v. Adkins, 
 59 Mo. 144. By statute in New York 
 taking soil is a criminal offense. 
 (Penal Code, § 640, subd. 4.) 
 
 * Connick v. Wilson, 2 Kerr (New 
 Bruns.) 496. 
 
1 84 
 
 WHAT LANGUAGE IS ACTIONABLE, 
 
 [CH. 
 
 VIII. 
 
 Zack. Austin's sheep," " He sheared two of Zack. Austin's 
 sheep and kept the wool," with an innuendo that a larceny 
 was intended, but without any colloquium, held not action- 
 able.^ An action will not lie, without allegation of special 
 damage for the words, " You had a share in breaking into 
 the store," alleged to refer to a robbery of a store belong- 
 ing to the plaintiff and defendant as copartners,^ 
 
 § 171, A direct charge of perjury is actionable per sef 
 and it is actionable to say of one, " The Reverend Thomas 
 Smith is a perjured man," * or " He perjured himself," ^ or 
 " He committed perjury by swearing in his vote at the 
 school district meeting ;" ^ and where the defendant, speak- 
 ing of an allegation in an affidavit made by the plaintiff, 
 said it was not true and plaintiff had perjured himself, it 
 
 1 Brown v. Finer, 6 Bush (Ky.), 
 518. 
 
 = Aefele v. Wright, 17 Ohio, 238. 
 
 3 Newbit V. Statuck, 35 Maine (5 
 Red.) 315; Bell v. Famsworth, 11 
 Humph. 608; Eccles v. Shannon, 4 
 Harring. 193; Cook v. Bostwick, 12 
 Wend. 48 ; Hopkins v. Beedle, i Cai. 
 T. R. 347; Kern v. Towsley, 51 Barb. 
 385 ; Gorton v. Keeler, Id. 475 ; 
 Commons v. Walters, i Port. 377; 
 Hall V. Montgomery, 8 Ala. 510; 
 Haws V. Stanford, 4 Sneed, 520 ; Lea 
 V. Robertson, i Stew. (Ala.) 1 38; Chap- 
 man V. Gillet, 2 Conn. 40; Downey 
 V. Dillon, 52 Ind. 442, as to perjured 
 knave, see note 11, p 177, ante. Not 
 actionable, to say, I would not believe 
 him under oath. (Studdard 7/. Trucks, 
 31 Ark. 726.) A., speaking with re- 
 ference to a complaint preferred by 
 him before the grand jury against B., 
 said that " he went before the grand 
 jury, and asked them if they wanted 
 any more witnesses, and they said they 
 had witnesses enough to satisfy 
 them ; " held, actionable, if he there- 
 by meant to impute perjury to B. 
 (Rundell v. Butler, 7 Barb. 263.) Say- 
 ing of plaintiff, he was under a charge 
 of prosecution for perjury, and that 
 G. W. (an attorney of that name) had 
 
 the attorney general's directions to 
 prosecute the plaintiff for perjury, held 
 actionable after verdict for plaintiff. 
 (Roberts v. Camden, 9 East, 93.) And 
 saying, " I would not swear to what 
 C. W. has for the town of R. ; P. W. 
 is honestly mistaken, but C. W. is 
 willful," imputes perjury to C. W., 
 and is actionable. (Walrath v. Nellis, 
 17 How. Pr. R. 72; see ante, \ 144, 
 subd. u.) A charge of subornation 
 of perjury is actionable (Cro. Jac. 158; 
 Beers v. Strong, Kirby, 12), as " You 
 have caused this boy to perjure him- 
 self." (Brownl. 2). 
 
 * Cummin v. Smith, 2 S. & R. 440. 
 If he swears that, he swears to a lie, 
 held not actionable, because hypothe- 
 tical. (Lang V. Gilbert, 4 Allen [New 
 Bruns.]; 445.) 
 
 ' Sanford tj. Gaddis, 1 3 111. 329. I 
 will prove thee a perjured knave, ac- 
 tionable. (Staverton v. Relfe, Yelv. 
 160.) O. [plaintiff] says I am a per- 
 jured rogue ; he is a perjured rogue 
 as well as I — held actionable. (Orton 
 V. Fuller, Lev. 65.) If I list I can 
 prove him perjured — held not to im- 
 pute perjury, and therefore not action- 
 able. (Davis' Case, Hutt. 127.) 
 
 * Crawford 7/. Wilson, 4 Barb. 504; 
 Small V. Clewley, 60 Maine, 262. 
 
§ 171.] 
 
 WHAT LANGUAGE IS ACTIONABLE. 
 
 185 
 
 was held to be actionable if the intent was to impute per- 
 jury.^ The words, " he swore a false oath," or " he swore 
 a lie," or " he swore false," are not actionable per se, nor 
 can an action be maintained for them merely by an innuen- 
 do that they imputed or were intended to impute perjury. 
 There must be an averment and colloquium of a judicial 
 proceedings.® To say of one, You are a liar; you swore to 
 a lie; you get your living that way — held not to be action- 
 able /^r se? To say of one, he is "mainsworn," was held 
 
 1 Cook V. Bostwick, 12 Wend. 48. 
 The words, " he has delivered false 
 evidence and untruths in his answer to 
 a bill in chancery," held not actionable, 
 (i RoUe Abr. 70; 3 Inst. 167.) Where 
 the allegation was " we have no reply 
 to make to a lad [plaintiff] convicted 
 of perjury, by the solemn oath of a 
 gentleman whose veracity is unim- 
 peached," and the context showed 
 that, by convicted it was really meant 
 that the plaintiff was contradicted by 
 the gentleman referred to, held error 
 to instruct the jury that the charge, 
 "convicted of perjury," was action- 
 able, per se, as such instruction im- 
 plied that the charge was of technical 
 perjury. (Pugh v. McCarty, 40 Ga. 
 
 444-) 
 
 2 Packer v. Spangler. 2 Binn. (Pa.) 
 60 ; Sheely v. Biggs, 2 Har. & J. 363 ; 
 Power V. Miller, 2 McCord, 220; 
 Martin v. Melton, 4 Bibb (Ky.), 99 ; 
 Sluder v. Wilson, 10 Ired. 92; Bes- 
 wick V. Chappel, 8 B. Mon. 486; 
 Roella V. Follow, 7 Blackf. 377; 
 Vaughan v. Havens, 8 Johns. 109; 
 Chapman v. Smith, 13 Johns. 78; 
 Hopkins v. Beedle, i Cai. T. R. 347 ; 
 Phincle v. Vaughan, 12 Barb. 215; 
 Barger v. Barger, i8Penn. State Rep. 
 489 ; Blair v. Sharp, Breese, 1 1 ; Mc- 
 Manus v. Jackson, 28 Miss. (7 Jones), 
 56; Watson 7/. Hampton, 2 Bibb, 319; 
 Shinloub v. Ammerman, 7 Ind. 347; 
 Mebane v. Sellars, 3 Jones' Law (N. 
 Car.) 199; Harris v. Woody, 9 Miss. 
 113; Horn V. Foster, 19 Ark. 346; 
 Harvey v. Boies, i Penn. (Penr. & W.) 
 12 ; Dalrymple v. Lofton, 2 Speers CSo. 
 C.).588; Shaffer z/. Kintzer, 2 Binn. (Pa.) 
 537 ; Hall V. Montgomery, 8 Ala. 510; 
 
 Walrath v. Nellis, 17 How. Pr. R. 72; 
 Ward Tj. Clark, 2 Johns. 10 ; Stafford 
 V. Grier, i Johns. 505 ; Lea v. Robert- 
 son, I Stew. (Ala.) 138 ; but see Rue v. 
 Mitchell, 2 Dall. 58 ; Canterbury v. 
 Hill, 4 Stew. & Porter, 224 ; Smale v. 
 Hammon, I Bulst. 40 : Lewis v. Soule, 
 3 Mich. 514 ; Hall v. Weedon, 8 Dowl. 
 & R. 140 ; Colomes' Case, Cro. Jac. 
 204; Hutts V. Hutts, 62 Ind. 214; 
 Casselman v. Winship, 3 Dak. 292 ; 
 Stewart v. Wilson, 23 Minn. 449. 
 '' Mr. H.'s oath is not to be taken, for 
 he has been a forsworn man. I can 
 bring people to prove it, and they that 
 know him will not sit in the jury-box 
 with him." Without any colloquium, 
 referring the words to the conduct of 
 the plaintiff as a juryman, and no 
 special damage, held not in themselves 
 actionable, and judgment arrested. 
 (Hall V. Weedon, 8 D. & R. 140.) 
 You swore to a lie in that suit we had 
 at Liberty, held actionable per se. 
 (Spooner v. Keeler, 51 N. Y. 527.) 
 " Stanhope hath but one manor, and 
 that he got by swearing and forswear- 
 ing." (Stanhope v. Blith, 4 Co. 15.) 
 In Arkansas, by statute, to charge a 
 person with having sworn falsely or 
 sworn a lie, is actionable, without an 
 averment or proof of special damage, 
 ox ^colloquium. (Carlocki'. Spencer, 
 2 Eng. (Ark.) 12; McGough v. Rhodes, 
 7 Id. 625.) And so in Mississippi, 
 (Crawford v. Mellton, 12 S. & M. 328; 
 see ante, § 153) 
 
 3 Kimmis v. Stiles, 44 Vt. 351 ; 
 Small V. Clewley, 60 Maine, 262. The 
 words, " You dirty stinking liar, you 
 got on the stand and swore false oaths 
 against me," are actionable per se. 
 
1 85 WHAT LANGUAGE IS ACTIONABLE. [CH. VIII. 
 
 actionable when spoken at a place where mainsworn meant 
 perjured.^ A charge of being forsworn is not actionable 
 perse ; it imports only " false swearing," and not " perjury." 
 But a charge of "false swearing," may convey to the 
 minds of the hearers an imputation of perjury, and when 
 it does, such a charge is actionable per se : ^ as, where, after 
 a charge of false swearing, the defendant added, " I will 
 attend to the grand jury about it ;"* or, " If you had your 
 deserts, you would have been dealt with in the time of 
 it ; " * or, " For which you would now stand indicted " ® or, 
 " to my injury $600 ; " * or, " and done it meaning to cut my 
 throat ; " '^ or, " and I will put him through for it, if it costs 
 me all I am worth." ^ And held actionable to say of any 
 one, " Thou art a forsworn man. I will teach thee the 
 price of an oath, and will set thee on the pillory;"' or, 
 " You swore a lie, and I can prove it," used in reference to 
 a judicial proceeding in which the plaintiff had testified as 
 a witness ; ^^ or, under similar circumstances, the words, 
 " He swore a lie."" Where the charge is of false swear- 
 
 provided " stand " means witness ' Oilman v. Lowell, 8 Wend. 573. 
 
 stand in a judicial proceeding. (Pad- " Phincle v. Vaughan, 12 Barb, 
 
 gett w. Sweeting, 4 Atl. Rep. 887.) But 215. 
 
 to say of one that he is a man of bad * Pelton v. Ward, 3 Cai. 73. " You 
 character in the neighbourhood in have been indicted before the grand 
 which he lives as regards truth and jury for false swearing," held action- 
 veracity, and that the speaker would able ^er se. (Brace v. Brink, 33 Mich, 
 not believe him on oath is not action- 91.) 
 
 able/i?r se. (Studdard v. Trucks, 31 " Jacobs v. Fyler, 3 Hill, 572. 
 
 Ark. 726.) ■' Coons v. Robinson, 3 Barb. 625. 
 
 ' Hob. 12. 8 Crone v. Angell, 14 Mich. 340. 
 
 ' Sherwood v. Chace, 11 Wend. ' i Starkie on Slander, 91. 
 
 38 ; Crookshank v. Gray, 20 Johns. ' » Lewis v. Black, 27 Mass. (5 
 
 344; McClaughry v. Wetmore, 6 Cush.) 425; Rhinehardt v. Potts, 7 
 
 Johns 82 : Jacobs z/. Fyler, 3 Hill, 572 ; Ired. Law (N. Car.) 403; Rainey v. 
 
 Coons V. Robinson, 3 Barb. 625; Mor- Thornbury, 7 B. Mon. 475 ; Sherwood 
 
 gan V. Livingston, 2 Rich. 573 ; Hill- v. Chace, 1 1 Wend. 38. 
 house V. Dunning, 6 Conn. 391 : Gabe 11 Harris v. Purdy, i Stew. 231 ; 
 
 V. McGinness, 68 Ind. 538. Defend- and see Wilson v. Harding, 2 Blackf. 
 
 ant said, Thou art 3. forsworn fellow; 241 ; Gibbs v. Tucker, 2 A. K. Marsh, 
 
 plaintiff answered, Will you say that I 219; and 6 T. R. 691; Grace v. 
 
 am perjured? defendant said. Yes, if Brink, 33 Mich. 91; Mitchell v. Mul- 
 
 you will have it so — held not action- holland, 106 111. 105. 
 able. (Levermore v. Martin, Cro. Eliz. 
 297.) 
 
§ I7I-] WHAT LANGUAGE IS ACTIONABLE. 1 87 
 
 ing before a particular court or tribunal, or in a particular 
 proceeding, naming it, the charge is actionable, if the 
 court or tribunal named is one authorized to administer an 
 oath, or if the proceeding named is a judicial proceeding ; 
 thus, it has been held actionable to say of one, he swore 
 false before the grand jury ; ^ or, " Thou art a forsworn 
 knave, and I will prove thee to be forsworn in the spiritual 
 court ; " ^ or, " Thou wast forsworn before my Lord Chief 
 Justice in evidence ; " ® or " before a justice of the peace," * 
 or, "in lllston Court," a court leet so named ;^ or, "I had 
 a lawsuit with A., and B. [the plaintiff] swore falsely 
 against me, and I have advertised him as such ; " * or, " You 
 swore false at the trial of your brother John."^ Held not 
 actionable to say of one, " Thou wert forsworn at White- 
 church court ; "® or " Thou art a false and forsworn knave, 
 and that I will prove, for thou forswore thyself against 
 Peter Rumball in the hundred court." * An arbitration or a 
 proceeding de lunatico inquirendo is a judicial proceeding, 
 and false swearing in such a proceeding is perjury; there- 
 fore, to charge false swearing in such a proceeding is ac- 
 tionable ; ^^ but perjury cannot be predicated of evidence in 
 
 1 Perselly v. Bacon, 20 Mo. 330. trial of a case between me and A., be- 
 
 2 Shaw V. Thompson, Cro. Eliz. fore Squire J., were held not action- 
 609 ; and see Rex v. Foster, Russ. & able. (Dalrymple v. Lofton, 2 Speers 
 R. Cr. Cas. Resv. 439; Stat. 40 Geo. (So. Car.) 588.) 
 
 IV, ch. 76. False swearing before an * Cro. Car. 378. Because it did 
 
 ecclesiastical tribunal is not perjury in not appear that Whitechurch court 
 
 Pennsylvania. (Harvey v. Boies, i wasacourt of record, and for the same 
 
 Penn. [Penr. & W.] 12; contra, in reason the words, "Thou hast for- 
 
 Connecticut, Chapman v. Gillet, 2 sworn thyself in Leet court," were 
 
 Conn. 40.) held not actionable, (i Rolle Abr. 
 
 ' Lev. 127 ; Starkie on Slander, 90. 39 ; 6 Bac. Abr. 207; see Dalton v. Hig- 
 
 • Gumeth v. Derry, 3 Lev. 166 ; 4 gins, 34 Ga. 433.) But the words, 
 
 Coke, 17. " A. C. is a forsworn man, and hath 
 
 ' Marshall v. Dean, Cro. Eliz. taken a false oath in his deposition at 
 
 720. Tiverton, where he waged his law 
 
 « Magee v. Stark, i Humph. 506. against me," were held actionable, be- 
 
 The words, I had a lawsuit, imply a cause the forswearing appeared to 
 
 judicial proceeding. {Id.) amount to perjury. (Cro. Jac. 204.) 
 
 ' Fowlew. Robbins, 12 Mass. 498. » Core v. Morton, Yelv. 28. So 
 
 The words were held actionable after ruled after verdict. 
 verdict (and see Cro. Car. 378) ; but ^ » Moore v. Horner, 4 Sneed, 491 ; 
 
 the words, You swore falsely on the Rouse v. Ross, i Wend. 475; Bullock 
 
1 88 WHAT LANGUAGE IS ACTIONABLE. [CH. VIII. 
 
 a controversy relative to pre-emption rights before the reg- 
 isters, &c., of the land ofifice, and therefore a charge of 
 false swearing in such a controversy is not actionable.^ 
 Ordinarily words are actionable which imply in their cus- 
 tomary import that a false oath has been taken in a judic- 
 ial proceeding," as, you swore false in court,* and this, 
 although the proceeding referred to never had any exist- 
 ence.^ Saying of one, he swore to a damned lie, but I am 
 not liable, because I have not said in what suit he testified, 
 was held not actionable.* To say to a witness, whilst giv- 
 ing his testimony on a trial in court, '' that is a lie ; " * or, 
 '' I believe you swear false. It is false what you say ; " '' or, 
 " You have sworn a manifest lie," * is actionable.' 
 
 Swearing falsely as to immaterial matter does not 
 amount to perjury, and therefore to charge false swearing 
 as respects matter which is immaterial to the issue involved, 
 cannot, in any event or under any circumstances, be ac- 
 tionable ; ^^ thus, saying of one that on a certain trial he 
 
 V. Koon, 9 Cow. 30; Hutts v. Hutts, ton v. Rockwell, 11 Wend. 140; and 
 
 62 Ind. 214; and see Sanford w. Gad- see Bell v. Farnsworth, 11 Humph, 
 
 dis. 13 111. 329. 608.) Slander will lie on an accusation 
 
 1 Hall V. Montgomery, 8 Ala. 510. of perjury in a criminal cause, although 
 
 I/eld not actionable to charge a voter the complaint therein was too defec- 
 
 with swearing falsely at an election for tive for an irreversible judgment 
 
 alderman for the city of Toronto. (Wood z/. Southwick, 97 Mass. 354.)- 
 (Thomas v. Piatt, i Up. Can. Q. B. ' Muchler v. Mulhollen, Supp. to 
 
 217.) Where the imputation was that Hill & Denio's Rep. 263. 
 plaintiff had taken a false oath, but ' Mower v. Watson, 11 Vt. 536. 
 
 not in a judicial proceeding, the plain- Probably not actionable to say, " He 
 
 tiff had a verdict ior £2 los. damages. swore to a lie if he swore as Jones 
 
 The court refused a new trial, but ar- says he did." (Evarts v. Smith, 19 
 
 rested the judgment, the words not be- Mich. 55; see § 224, post.) 
 ing actionable. (Hogle v. Hogle, 16 ' Cole v. Grant, 3 Harr. (N. J.) 
 
 Up. Can. Q. B. 518.) 327. 
 
 ' Cass V. Anderson, 33 Vt. 182. » Kean v. M'Laughlin, 2 S. & R. 
 
 ' Hamilton v. Dent, i Hayw. (N. 469 ; McClaughry v. Wetmore, 6 
 
 Car.) 116; see ante, note 7, p. 187. Johns. 82: contra, Ba.gley v. Hedges, 
 
 * Brickeri/. Potts, 12 Penn. St. R. i Penn. (N. J.) 233; Spooner v. 
 
 200; Henry v. Hamilton, 7 Blackf. Keeler, 51 N. Y. 527. 
 506. And though an affidavit for a ' As to publishing comments on 
 
 warrant be insufficient to justify the witnesses, see § 256a;, />ost. 
 granting of it, an action may be main- » » Horn v. Foster, 19 Ark. 346 ; Dar- 
 
 tained for imputing perjury in making ling v. Banks, 14 111. 47 ; Wilson v. 
 
 the affidavit, if any fact set forth in it Oliphant, Wright, 153; Crookshank 
 
 be material to the application. (Day- v. Gray, 20 Johns. 344 ; Rouse v. Ross, 
 
§ 172.] 
 
 WHAT LANGUAGE IS ACTIONABLE. 
 
 189 
 
 testified to what was false, that the matter so testified to 
 was immaterial, but that he, the party testifying, showed 
 great disregard for the truth, was held not actionable.^ The 
 test of materiality is not whether the witness believes the 
 testimony to be material, but whether, if false, he can 
 be indicted for perjury. If the testimony is in fact imma- 
 terial, it cannot be perjury, though it may be false, and 
 whatever may be the opinion of the witness.'' Another 
 essential element of perjury is, that the oath alleged to 
 have been broken was administered by competent author- 
 ity, and therefore to charge the breach of an oath not ad- 
 ministered by competent authority would not be action- 
 able.» (§§ 321, 322). 
 
 § 172. Ordinarily, and in the absence of any statutory 
 provision (§ 153), words published orally charging a 
 woman with want of chastity are not actionable per se;* 
 
 1 Wend. 475 ; Dayton v. Rockwell, 1 1 
 Wend. 140; Power t/. Price, 12 Wend. 
 500; S. C. 16 Wend. 450; Roberts v. 
 Champlin, 14 Wend. 120; Wilson z/. 
 Cloud, 2 Speers (So. C), i ; Owen v. 
 McKean, 14 111. 459 ; M'Gough v. 
 Rhodes, 7 Eng. (Ark.) 625. 
 
 * Stone V. Clark, 21 Pick. 51 ; and 
 see M'Kinley v. Rob, 20 Johns. 351; 
 Smith V. Smith, 8 Ired. 29 ; Wilson v. 
 Cloud, 2 Speers (So. Car.), i. 
 
 * Rouse V. Ross, i Wend. 475. 
 Perjury may be alleged in swearing to 
 a promise within the statute of frauds, 
 and therefore a charge of false swear- 
 ing as to such a promise may be ac- 
 tionable. (Howard v. Sexton, 4 N. 
 
 ^- '57-) „ , 
 
 » Jones V. Marrs, 11 Humph. 214; 
 Dalton V. Higgins, 34 Ga. 433; Burk- 
 ett V. McCarty, 10 Bush (Ky.), 758 ; 
 and see Van Steenbergh v. Kortz, 10 
 Johns, 167 ; Niven v. Munn, 13 Johns. 
 48; Cro. Car. 378; i RoUe Abr. 39. 
 
 * I Starkie on Slander, 28 ; Byron 
 V. Elmes, 2 Salk. 693; Berry ». Carter, 
 4 Stew. & Port. 387 ; Eliot v. Ails- 
 berry, 2 Bibb, 473 ; Keiler v. Lessford, 
 
 2 Cr. C. C. 190; Ranger v. Goodrich, 
 
 17 Wis. 78 ; Rodgers v. Lacey, 23 
 Ind. 507 ; Pettibone v. Simpson, 66 
 Barb. 493 ; Shafer v. Ahalt, 48 Md. 
 71 ; contra, in Connecticut (Frisbie v. 
 Fowler, 2 Conn. 707), in Kentucky, 
 since the statute of 181 1 (McGee v. 
 Wilson, Litt. Sel. Cas. 187; Smalley v. 
 Anderson, 2 T. B. Mon. 56), in Illi- 
 nois (Spencer v. M'Masters, 16 111. 
 405), in Missouri (Moberly v. Preston, 
 8 Mo. 462 ; Steiber v. Wensel, 19 Mo. 
 513), in New Jersey (Heming v. El- 
 liott, 5 Cent. Rep. 592), in California, 
 (Nidiver v. Hall, 67 Cal. 80), in Ohio, 
 (Malone v. Stewart, 15 Ohio, 319; 
 Wilson V. Robbins, Wright, 40 ; W il- 
 son V. Runyon, Id. 651 ; Sexton v. 
 Todd, Id. 317), in Maryland (Terry w. 
 Bright, 4 Md. 430), in Alabama (Sid- 
 greaves V. Myatt, 22 Ala. 617 ; but see 
 Berry v. Carter, 4 Stew. & Port. 387), 
 in Indiana (Shields v. Cunningham, I 
 Blackf. 86; Worth v. Butler, 7/^. 251 ; 
 Rodeburg v. HoUingsworth, 6 Ind. 
 339 ; Rodgers v. Lacey, 23 Ind. 507 ; 
 Linck V. Kelley, 25 Ind. 278 ; Blicken- 
 staff V. Perrin, 27 Ind. 527), in North 
 Carolina (McBrayer v. Hill, 4 Ired. 
 136; Snow V. Witcher, 9 Id. 346), in 
 
I go 
 
 WHAT LANGUAGE IS ACTIONABLE. [CH. VIII. 
 
 as, thus, except in the city of London and borough of 
 Southwark it is not actionable to call a woman a whore/ 
 or prostitute, or common prostitute,^ or to charge an un- 
 married woman with having had a bastard,* or to call a 
 
 South Carolina (Watts v. Greenlee, 2 
 Dev. 115; Freeman v. Price, 2 Bailey, 
 115), in Iowa (Beardsley ^z. Bridgman, 
 
 17 Iowa, 290; Cleveland v. Detweiller, 
 
 1 8 Id. 299 ; Cox V. Bunker, Morris, 
 369 ; Daiiey v. Reynolds, 4 G. Greene, 
 354 ; Truman v. Taylor, 4 Iowa, 424; 
 Smith V. Silence, Id. 321 ; Snediker v. 
 Poorbaugh, 29 Id. 488.) Ante, §§ 144, 
 
 154- 
 
 1 12 Mod. 106; Holt R. 40; Keb. 
 418 ; Sid. 97 ; Robertson v. Powell, 2 
 Selw. N. P. 1224 ; Allsopi'. AUsop, 5 
 Hurl. & Nor. 534; Williams w. Hold- 
 redge, 22 Barb. 397 ; Linney v. Maton, 
 13 Texas, 449; Underbill v. Welton, 
 32 Vt. 40; Boyd V. Brent, 3 Brev. 241 ; 
 contra, Pledger v. Hathcock, I Kelly, 
 (Ga.) 550; Cox V. Bunker, i Morris, 
 269; Mayer v. Schleichter, 29 Wis. 
 646. ' • Drunken whore,'' held action- 
 able (Williams v. Greenwade, 3 Dana 
 [Ky.] 432); and so was "whore." 
 (Smith V. Silence, 4 Iowa, 321 ; Kelly 
 •V. Dillon, 5 Ind. 426 ; Clarke v. Mount, 
 Opinions in the Mayor's Ct. 18; Mar- 
 tindale v. Murphy, Barton [N. Bruns- 
 wick], 85 ; Schinisseur v. Kreilich, 92 
 111. 347. The following words have 
 been held actionable : " You are a 
 whore. I can have a better whore for 
 a groat. You get your living by your 
 tail;" or, "You are a whore, and 
 have played the whore with so many 
 men you cannot number them ; " or 
 " Thou art a whore and hast been 
 carted ; " or, " Thou art a whore and 
 hast been in Bridewell ; " or, "Thou 
 art a whore, and hast emptied thy 
 cask in the country;" or, " Thou art a 
 whore, and thy plying place is in 
 Cheapside, where thou gettest 40s. a 
 day." (Vin. Abr. Act. for Words, D, 
 a, 39, 42, 45.) The words import 
 more than the bare calling a woman 
 whore. (Hicks v. Joyce, Sty. 394; 
 Bassil V. Elmore, 65 Barb. 627 : 48 N. 
 Y. 561.) " Common whore," held ac- 
 tionable. (Green v. How. Sty. 323.) 
 
 And held actionable to call one "A 
 whore who held a copyhold dum casta 
 vixerit." (Boys v. Boys, Sid. 214.) 
 But held not actionable to say to or of 
 a woman, " You are a whore, and keep 
 a man to lie with you." (Gascoigne v. 
 Ambler, 2 Ld. Raym. 1004); or, " She 
 is a whore, and had a bastard by her 
 father's apprentice." (Graves v. Blan- 
 chet, 3 Salk. 696 ; and see Anon. Id. 
 694.) Calling a woman " whorish 
 bitch," actionable in Alabama. (Scott 
 V. McKinnish, 15 Ala. 662.) To call 
 a woman a strumpet is not equivalent 
 to calling her a , whore. (Williams 
 V. Bryant, 4 Ala. 44; contra. 
 Cook V. Wingfield, i Stra. 555.) By 
 custom in the city of Bristol, it is ac- 
 tionable to call a woman strumpet. 
 (Power V. Shaw, i Wills. 62.) See in 
 § 213, post. You come round here to 
 be ridden by men actionable. (Rhodes 
 V. Anderson, 12 Cent. Rep. 727.) 
 
 * Brooker v. Coffin, 5 Jolins. 188; 
 Wilby V. Elston, 8 C. B. 142; 7 Dowl. 
 & L. 143; I Starkie on Slander, 28; 
 contra of a married woman, Klewin v. 
 Bauman, 10 No. West. Rep. 398. See 
 ante, § 144, subd. j/. 
 
 3 Vin. Abr. Act. for Words D, a, 
 19, 23; Graves v. Blanchet, 3 Salk. 
 696, in note 1, supra , and saying to a 
 married woman, " Thou bold Cola- 
 bynes, bastard-bearing whore, thou 
 didst throw thy bastard into the dock," 
 at Whitechapel, held not actionable. 
 (Colabyn v. Viner, W. Jones, 356.) 
 So saying of a woman, " She had a 
 child, and either she or somebody else 
 made away with it," was held not ac- 
 tionable. (Falkner v. Cooper, Carth. 
 S5.) "She had a child while at Mrs. 
 Kirkwood's," spoken of an unmarried 
 woman, not actionable. (McQueen v. 
 Fulgham, 27 Texas, 463.) In Ohio, 
 held actionable to charge a woman 
 with having had a bastard by the man 
 she afterwards married. (Murray v. 
 Murray, i Cine. [Ohio], 290.) . 
 
§ 172.] 
 
 WHAT LANGUAGE IS ACTIONABLE. 
 
 191 
 
 woman a bawd/ or to charge an unmarried woman with 
 fornication,^ or a married woman with adultery,^ or a 
 woman with being of a wanton and lascivious disposition,* 
 or of being addicted to self-pollution,^ or to say of a 
 woman, " She was hired to swear the child on me ; she has 
 had a child before this, when she went to Canada; she 
 would come damned near going to the State prison." * But 
 it has been held actionable to say of a woman, she is a 
 "loose woman,"'' or to charge conduct amounting to 
 open and gross lewdness,* or to say of a married woman, 
 " She slept with one not her husband," * or to charge an 
 unmarried woman with being in the family-way,^" and ad- 
 ding, " I can prove it by A. that she has been taking cam- 
 phor and opium pills to produce an abortion ;" or, " She 
 
 * Cavel z/. Birket, Sid. 438; contra. 
 Hicks V. Hollingshead, Cro. Car. 261. 
 
 * Buys V. Gillespie, 2 Johns. 115 ; 
 such a charge is actionable in Kentucky. 
 (Smalley v. Anderson, 2 T. B. Mon. 
 56), in Ohio (Wilson v. Robbins, 
 Wright, 40). in North Carolina (Mc- 
 Brayer v. Hill, 4 Ired. 136), in Indiana 
 (Ricket V. Stanley, 6 Blackf. 169; Hud- 
 dlestone v. Swope, 71 Ind. 430, and in 
 New Jersey (Joralemon -v. Pomeroy, 
 22 N. Jersey, 271.) Charging an un- 
 married woman with being " a bad 
 character," and guilty of fornication, 
 held actionable in Iowa. (Dailey v. 
 Reynolds, 4 G. Greene, 354.) And see 
 ante, § 144, subd. /, and post, note 
 to § 173- 
 
 ' Woodbury v. Thompson, 3 N. 
 Hamp. 194; Stanfield z/. Boyer, 6 Har. 
 & J. 248; Griffin v. Moore, 43 Md. 
 246; contra. Miller v. Parish, 8 Pick, 
 384; and see Walton v. Singleton, 7 
 S. & R. 449. To charge a woman 
 with fornication or adultery, or incon- 
 tence in any form, is not actionable at 
 common law. (Heard on Libel, p. 46, 
 citing in addition to the cases already 
 noted, Ayer v. Craven, 2 Adol. & L. 2 ; 
 4 Nev. & M. 220; Evans v. Gwyn, 5 
 Q. B, 844. And see Davies v. Solo- 
 mon, Law Rep. 7 Q. B. 112.) 
 
 * Lucas V. Nichols, 7 Jones' Law 
 (N. Car.) 32. 
 
 ' Anon, 60 N. Y, 262. 
 
 « Brooker v. Coffin, 5 Johns. 188. 
 
 ' Adcock V. Marsh, 8 Ired. Law 
 (N. Car.) 360, 
 
 " Underhill v. Welton, 32 Vt, 40, 
 
 9 Guard v. Risk, 1 1 Ind, 1 56 ; Bar- 
 nett V. Ward, 36 Ohio St, 107 ; contra. 
 Pollard V. Lyon, i Otto (91 U, S,) 225, 
 Charging a married woman with tak- 
 ing men into her bedroom, with aver- 
 ments showing it was for adulterous 
 purposes, held actionable, (Waugh v. 
 Waugh, 47 Ind. 580.) Saying a 
 woman is the paramour of a man, ac- 
 tionable, (McKenney v. Roberts, 
 8 Pac. Rep. 857.) 
 
 1" Smith V. Minor, Coxe, 16; Miles 
 V. Van Horn, 17 Ind. 245; contra, see 
 Shepherd v. Wakeman, Sid. 79 ; Lev. 
 37. To say of a married woman she 
 " is in a fix" meaning, by local usage, 
 she is pregnant, is not actionable, but 
 actionable if said of an unmarried 
 woman, (Acker v. McCuUough, 50 
 Ind. 447 ; and see Wilson v. Barnett, 
 45 Ind. 163.) And ante, note to p. 
 
 183. 
 
 » ' Miles V. Van Horn, 17 Ind, 245, 
 "Its my soul's opinion that nothing 
 else kept that girl in the house last 
 winter but taking medicine to banish 
 the young baker," innuendo that plain- 
 tifif had taken medicine to procure an 
 abortion, held actionable, (Miller v. 
 
192 WHAT LANGUAGE IS ACTIONABLE. [CH. VIII. 
 
 had two or three little ones to A. ; " ^ or, " Her child is A's, 
 and A. was keeping her unmarried for his own purposes ; " ^ 
 or charging sexual intercourse with a dog * and where the 
 defendant said of the plaintiff, that B. told him that on 
 Sunday, at the camp-meeting, he scared the plaintiff and a 
 man up from behind a log; that they broke and run, and 
 that he (B.) got her (plaintiffs) parasol and handkerchief, 
 held that these words were actionable ; * but saying of a 
 woman, " She went down the river to the goose-house^'' 
 without averring any special meaning to goose-house, was 
 held not actionable.^ To say of a woman, "While she 
 was there claiming to be the wife of F., she was here 
 claiming to be my wife," is not an imputation of want of 
 chastity and is not actionable /^r se.^ 
 
 § 173. The following words and phrases published oral- 
 ly of an individual as such, have been held actionable ^^r 
 se : Bogus pedler,' dealer in counterfeit money ,^ deserter,* 
 
 Houghton, 10 Up. Can. Q. B. R. 348.) 215 : Downing v. Wilson, 36 Ala. 717. 
 And held actionable to say of a woman: She [plaintiff] is not chaste. I have 
 " She procured or took medicines to kept her, and had criminal intercourse 
 kill the bastard child she was like to with her; or, "I have had sexual 
 hav e, and she did kill or poison the intercourse with her," held not action- 
 bastard child she was like to have." able. (Berry v. Carter, 4. Stew. & 
 (Widrig V. Oyer, 13 Johns. 124.) In Port. 387; contra, Adams v. Rankin, 
 slander, held that to charge a woman i Duval [Ky.], 58.) The words" I have 
 with causing or procuring an abortion lain with her and pockified her," held 
 upon herself was not charging her actionable. (Neale v. Mallard, 2 Show, 
 with an indictable offense, under the 312.) 
 
 statute of Iowa, unless it appeared ' Cleveland v. Detweiller, 18 Iowa, 
 
 that the child was quick, and that an 299; and see ante, note i, p. 124. 
 
 action could not be maintained upon * Proctor ?/. Owens, 18 Ind. 21. 
 
 such a charge. (Hatfield v. Gano, " Dyer v. Morris, 4 Mo. 214. As 
 
 15 Iowa [7 With.] 177.) Charge of to words of a woman with allegation 
 
 administering pills to drive off a child, of special damage, see § 198, post. 
 
 equivalent to a charge of abortion, « Pike v. Van Wormer, 6 How. 
 
 and actionable. (Filberz/.Dautermann, Pr. R. loi ; t, Id. 175. 
 
 25 Wis. 518, and see Reid v. State, 53 ' Funk v. Beverly, 11 No. West. 
 
 Ala. 402.1 Rep. 227. 
 
 » Symonds v. Carter, 32 N. Hamp. s pj^e v. Van Wormer, 6 How. Pr. 
 
 458, and ante, note 3, p. 190; Beards- R. 99. 
 
 ley V. Bridgman, \^ Iowa, 290. s Hollingsworth v. Shaw, 19 Ohio 
 
 * Richardson v. Roberts, 23 Ga. St. 430. 
 
§ m.] 
 
 WHAT LANGUAGE IS ACTIQNABLE. 
 
 193 
 
 knave/ pickpocket/ sheepstealer,^ traitor* common 
 barrator or champertor," receiver of stolen goods,' counter- 
 feiterJ I charge you with felony ; ® you are a rogue and I 
 will prove you a rogue, for you forged my name ; » con- 
 cealing stolen goods," purchasing stolen goods, knowing 
 them to have been stolen." Hog thief/^ He is a rogue, and 
 has stolen my sheep." You have altered the marks of four 
 of my hogs ; " he killed a horse.^'* You have removed my 
 landmarks ; cursed is he that removeth a landmark.^^ She 
 
 ^ Knave imports dishonesty, and is 
 actionable. (Harding v. Brooks, 5 
 Pick. 244 ; contra, see Week's Case, 1 
 Sid. 149; Latch, 159; and Monthly 
 Law. Rep. Oct. 1862, p. 716.) Pillory 
 knave held actionable (Browne v. 
 Daukes, Cro. Eliz. 11); denied 
 (Smith's Case, Cro. Eliz. 31). In the 
 time of Henry VI, knave was a good 
 addition to a man's name, and the 
 term had not a defamatory meaning. 
 There is said to be an edition of the 
 New Testament which reads : Paul, a 
 knave of Jesus Christ, instead of Paul, 
 an apostle. (See Halliwell's Diet, of 
 Archaic Terms, j 
 
 ^ Stebbing v. Warner, 11 Mod. 
 255: and see note 2, p. 151, ante. 
 
 * Parret v. Parret, 3 Bulst. 303 ; 
 Vin. Abr. Act. for Words, I, a, 5. 
 
 * Dal. 17; Bellingham v. Mynors, 
 Cro. Eliz. 133. "Thou hast spoken 
 treason, and that I will prove;'' "I 
 wiU hang him. for he hath spoken 
 treason," actionable. (Berisford v. 
 Press, Cro. Jac. 275.) See Rebel. 
 
 " Vin. Abr. Act. for Words, H, a, 
 7; Heake v. Moullon, Yelv. 90; Box 
 V. Bamaby, Hob. 117 a, but maintain- 
 er of suits is not actionable.' (Id.) 
 See contra, Portman v. Stowell, cited 
 in Nicholas v. Badger, F. Moore, 428. 
 
 « Dias v. Short, 16 How. Pr. R. 
 322. To charge one with having re- 
 ceived stolen goods is not actionable, 
 unless the receiving was with a guilty 
 knowledge (Id. ; and Patterson v. Col- 
 lins, II Up. Can. Q. B. R. 63. See 
 Dorsey v. Whipps, 8 Gill, 457 ; Cox v. 
 Humphries, Cro. Eliz. 877: Steventon 
 V. Higgins, 2 Keb. 338; Dawes v. 
 Bolton, Cro. Eliz. 888 ; see note 2, p. 
 
 13 
 
 130, ante.) Charge that plaintiffs 
 house had been searched for stolen 
 goods. State v. Smily, 37 Ohio St. 30. 
 ' Howard v. Stephenson, 2 Rep. 
 Cons. Ct. 408 ; Thirman v. Matthews, 
 I Stew. (2 Ala.) 384. The law takes 
 notice of the word counterfeit, as im- 
 porting a felony. (Stone v. Smal- 
 combe, Cro. Jac, 648.) 
 
 « Vin. Abr. Act. for Words G, a, 3; 
 Jones, 32 ; Smith v. Hodgeskins, Cro. 
 Car. 276; Poph. 210; Paine z/. Prestny, 
 Sty. 235. 
 
 * Jones V. Heme, 2 Wils. 87 ; and 
 see Hurst v. Borbidge, 57 Penn. St. 
 Rep. 62. 
 
 1 " Miller v. Miller, 8 Johns. 58 ; and 
 see Newlyn v. Fasset, Yelv. 1 54. 
 
 1 » Alfred v. Farlow, 8 Adol. & El. 
 N. S. 854; Mayo v. Sample, 18 Iowa, 
 306; Brigg's Case, Godb. 157; and 
 see Dorsey v. Whipps, 8 Gill, 457. 
 
 * ^ Cheatwood v. Mayo, 5 Munf 16. 
 Thief. (Sabin v. Angell, 46 Vt. 740.) 
 He gets his living by thieving. (Ruth- 
 erford V. Moore, i Cranch C. C. Rep. 
 388.) 
 
 1 ' McAlexander v. H;.rris, 6 Munf. 
 465. 
 
 »* Perdue v. Burnett, Minor, 138; 
 contra, Williams v. Karnes, 4 Humph. 
 9; Johnston v. Morrow. 9 Porter, 525; 
 Glines v. Smith, 48 N. H. 259. 
 
 ^^ Gage V. Shelton, 3 Rich. 242. 
 He cut my horse's throat is actionable. 
 (Yearly v. Ashley, 4 Har. & J. 314.) 
 He poisoned my cow, held actionable. 
 Burton t/. Burton, 3 G. Greene, 316); 
 contra of he poisoned my horse. 
 (Chaplin v. Cruikshanks, 2 Har. & J. 
 247.) 
 
 18 Young V. Miller, 3 Hill, 21. 
 
194 
 
 WHAT LANGUAGE IS ACTIONABLE. 
 
 [CH. 
 
 VIIT. 
 
 put poison in a barrel of drinking water to poison me.* 
 You are a vagrant,** a corn-stealer,^ concealer of felony* 
 aiding in a felony.® He is a rogue and villain ; he has 
 ruined many families, and the curses of widows and chil- 
 dren are on him ; he has wronged my father's estate, and 
 cheated my brother." She produced a false heir, or a bogus 
 baby ; '' she kept a bawdy-house,^ or she keeps a whore- 
 house.' He makes his money easy ; he keeps a gambling 
 hell or a gambling place ; " indecent exposure ; " bribery 
 to secure election ;*^ breaking open a letter addressed to 
 another, and taking out money and using the money 
 so taken.'* You have committed an act for which I can 
 
 • Mills V. Wimp, lo B. Monr. 417 
 == Miles V. Oldfield, 4 Yeates, 423 ; 
 
 see note 4, p. 197. 
 
 3 Vin. Abr. Act. for Words, G, a. 
 24 Anon. Cro. Eliz. 563. 
 
 * Thou art a concealer of felony, 
 and it lieth in my power to hang thee. 
 (Vin. Abr. Act. for Words, G, a, 21 ; 
 Yelv. 154.) M. hath stolen sheep, 
 and Nicholas, by agreement, hath 
 taken a meadow to help him to cloak 
 and escape the felony, held actionable, 
 although not alleged that Nicholas 
 knew of the felony, for taking the 
 meadow to cloak the felony implied he 
 had notice of it. (Nicholas v. Badger, 
 F. Moore, 428 ; and see Rich v. Holt, 
 Cro. Jac. 268.) 
 
 ' Words imputing to A. a felony 
 by night, with the addition that when 
 
 1 [defendant] drove him off, 1 saw B. 
 standing at the road holding a torch 
 for him. A., held to impute felony in 
 the second degree to B., and to give 
 him a cause of action. (Hooper v. 
 Martin, 54 Ga. 648.) 
 
 * Marshall v. Addison, 4 Har. & 
 McHen. 537. 
 
 ' Weed V. Bibbins, 32 Barb. 315. 
 
 ' The offense, although past, is 
 Still punishable. (Newton v. Masters, 
 
 2 Lev. 233; Martin v. Stillwell, 13 
 Johns. 275 ; Vin. Abr. Act. for Words, 
 H, a, 8; see ante, % 144, subd. d.) A 
 charge of keeping a bawdy-house was 
 
 held not actionable. (Anon. Cro. 
 Eliz. 643.) See § 155, a«^^. 
 
 » Wright V. Paige, 36 Barb. 438 ; 
 affi'd 3 Trans. App. 134; Brayne v. 
 Cooper, 5 M. & W. 249 ; Huckle v. 
 Reynolds, 7 C. B. N. S. 114 ; 8 C. B. 
 142 ; Parkins v. Scott, i Hurl. & C. 
 153 ; see ante, § 144, subd. d; § 155, 
 and Savill v. Kirby, 10 Mod. 385. 
 Those people upstairs keep a whore- 
 house, held actionable per se. (Cook 
 V. Rief, 52 Superior Co't [20 J. & S.], 
 302.) Charge of letting a house for a 
 brothel, actionable. (Harley v. Gregg, 
 38 No. West. Rep. 416.) • 
 
 *» Buckleyz/. O'Niel, 113 Mass. 193. 
 
 1 > Torbit V. Clare, 8 Irish Law Rep. 
 86. 
 
 12 Bendish v. Lindsey. 11 Mod. 
 194; Hoagi/. Hatch. 23 Conn. 585; or 
 to procure an appointment under the 
 government. (Purdy v. Stacey, 5 
 Burr. 2698; see Lindsey v. Smith, 7 
 Johns. 359; Chipman v. Cook, 2 Tyler, 
 456,) Actionable to charge a member 
 of a nominating convention of a polit- 
 ical party with having been influenced 
 by a bribe. (Hand v. Winton, 38 N. 
 J. 122; and see Tillson v. Robbins, 68 
 Me. 295, and note to § 177. post.) 
 
 »' Cheadle v. Buell, 6 Ham. (Ohio) 
 67; see McCuen v. Ludlum, 2 Harr. 
 12; Bell V. Thatcher, Freeman. 276; 
 Hillhouse v. Peck, 2 Stew. & Port. 
 395- 
 
§ I73.J 
 
 WHAT LANGUAGE IS ACTIONABLE. 
 
 195 
 
 transport you.' I know enough he has done to send him 
 to the penitentiary.^ I am thoroughly convinced that you 
 are guilty (innuendo of the death of D.), and rather than 
 you should go without a hangman I will hang you.^ 
 Fraudulently destroying a vote ;* signing a name to a note 
 without authority ; ^ he has been excommunicated/ whore- 
 monger,' fornication, when or where punishable by indict- 
 ment.* He hath got M. N. with child." He should 
 [would] have been hanged for a rape, but it cost him all 
 the money in his purse." You will lie with a cow again 
 as you did. If you had your deserts you deserve to be 
 hanged," You [plaintiff] are as great a rogue as your 
 master, who is a rogue for that he stole rugs.^^ Adultery 
 
 ' Curtis V. Curtis, 4 Mo. & Sc. 337 ; 
 10 Bing. 477. 
 
 * Johnson v. Shields, i Dutcher, 
 116. 
 
 ' Peake v. Oldham, Cowp. 275 ; 2 
 W. Black. 960. 
 
 * Dodds V. Henry, 9 Mass. 262. 
 
 » Creelman v. Marks, 7 Blackf. 
 281. 
 
 " The defendant, a minister, pro- 
 nounced in church that the plaintiff 
 had been excommunicated, and refused 
 to proceed with the service until plain- 
 tiff left the church, held actionable. 
 (Barnabas v. Taunter, Vin. Abr. Act. 
 for Words, D, a, 1 5,) and s&tpost, note 
 to § 241^. 
 
 ' Vin. Abr. Act. for Words, D, a, 
 26; see note 12, p. 197, post. 
 
 ' Anon. 2 Sid. 21 ; Joralemon v. 
 Pomeroy. 22 N. J. 271 ; Page v. Mer- 
 win, 8 Atl. Rep. 675. Fornication, 
 although it involves moral turpitude, 
 is not indictable, and therefore not ac- 
 tionable ; and held the words of a mar- 
 ried woman, " I saw her in bed with 
 Captain Denty," were not actionable 
 without special damage. (Pollard v. 
 Lyon. I Otto [91 U. S.], 225). In Ken- 
 tucky, a man may maintain an action 
 of slander for words charging him 
 with having been guilty of fornication. 
 (Morris v. Barkley. i Litt. 64; see 
 also Phillips v. Wiley, 2 Id. 153); so 
 in Indiana, under the statute of that 
 
 tate (Rodgers v. Lacey, 23 Ind. 507) ; 
 so in Pennsylvania, though he be a 
 married man (Walton v. Singleton, 7 
 S. & R. 449) ; but not so in Ohio. 
 (Wilson V. Robbins, Wright, 40; and 
 see Dukes v. Clark, 2 Blackf. 20). 
 And for such a charge a woman may 
 maintain an action in Missouri. Indi- 
 ana and New Hampshire. (Moberly 
 V. Preston, 8 Mo. 462; Abshire v. 
 Cline, 3 Ind. 115; Symons v. Carter, 
 32 N. H. 468 ; and see note 2, p. 191, 
 ante.) 
 
 ' Marsden v. Dennis, 2 Sid. 1657. 
 Sir Edward Lentall lay with me, and 
 had the use of my body by force, held 
 actionable; the majority of the court 
 being of opinion that the words by 
 force imputed a rape. (Lentall's Case, 
 Litt. Rep. 337; and see Taylor v. 
 Tally, Palmer, 385, where a charge 
 that T. ravished H.'s wife was held 
 actionable.) The words. He had the 
 use of my wife's body by force, with 
 allegation of special damage that in 
 consequence of the words plaintiff was 
 arrested on a charge of rape, and put 
 to expense in making his defense, held 
 actionable. (Harris v. Smith, Vin. 
 Abr. Act. for Words, D, a, 9.) 
 
 » » Redfem v. Todd, Cro. Eliz. 589. 
 
 ' • Poturite v. Barrel, i Sid. 220. 
 
 '2 Upton V. Pinfold. Comyn's R. 
 267. 
 
196 
 
 WHAT LANGUAGE IS ACTIONABLE. [cH. VIIL 
 
 in certain States in which it is punishable as a crime/ In- 
 continence.* 
 
 § 174. The following words and phrases published 
 orally of an individual as such, have been held not action- 
 able per se : Adulterer,* bawd,* bankrupt,* blackleg,* 
 bushwhacker,'' cheat,* common filcher,' companion of cut- 
 throats,'" deserter," enchanter,'^ insolvent,^' liar," rogue,'* 
 arrant rogue,'* damned rogue," you are a rogue, and cheated 
 J. S. out of ^100,'* sacrilege," scoundrel,^" sorcerer,*' sod- 
 
 ^ Stieberw. Wensel, 19 Mo. 513; 
 Famsworth v. Storrs, 5 Cush. 412 ; 
 Ricket w. Stanley, 6 Blackf. 169; see 
 ante, § 144, subd. a, and infra, note 
 
 3- 
 
 ' Watts V. Greenlee, 2 Dev. 115; 
 see ante, § 153, zxiApost, § 195. 
 
 » Vin. Abr. Act. for Words, G, a, 
 12; D, a, 27. Charging a man with 
 being intimate with a married woman 
 does not imply adultery, and is not 
 actionable. (Adams v. Stone, 131 
 Mass. 433; seef§ 153, 172, ante:) But 
 a charge that a person at a time and 
 place mentioned, met the wife of 
 another, " and committed an abomina- 
 tion in the sight of the Lord," is not 
 libelous per se. (People v. Isaacs, i 
 N. Y. Crim. R. 148.) 
 
 * Vin. Abr. Act. for Words, H, a, 
 9- 
 
 » Vin. Abr. Act. for Words, H, a, 
 6. 
 
 " Barnett v. Allen, 3 Hurl. & Nor. 
 376. 
 
 ' Curry v. Collins, 37 Mo. 324. 
 The word " bushwhacker " is now in 
 the Constitution of Missouri. 
 
 8 Chase v. Whitlock, 3 Hill, 139; 
 Stevenson v. Hayden, 2 Mass. 406; 
 Lucas V. Flinn, 35 Iowa, 9. The 
 words were, Cheat and swindle, you 
 defrauded me. (See Vin. Abr. Act. 
 for Words, G, a, and note I, p. 199, 
 post.) 
 
 » Vin. Abr. Act. for Words, G, a. 
 " Vin. Abr. Act. for Words. G, a. 
 *• Hollingsworth v. Shaw, 19 Ohio 
 St. 430. 
 
 12 Vin. Abr. Act. for Words, H, 
 a. 
 
 1' Redway v. Gray, 31 Vt. 292. 
 
 '* Smalley v. Anderson, 4 T. B. 
 Monr. 367 ; King's Case. 4 Inst. 181 ; 
 and see ante, § 144, subd. g. 
 
 ' ° Artieta v. Artieta, 1 5 La. Ann. 
 48 ; Idol V. Jones, 2 Dev. 162 ; Quinn 
 V. O'Gara, 2 E. D. Smith, 388 ; Black 
 ■V. Hunt, 12 Ir. L. T. R. 24; distin- 
 guishing Kinahan v. McCuUough, 11 
 Id. 45. " Your father was a horse- 
 stealing rogue, and you [plaintiff] are 
 a great rogue," not actionable. (Bel- 
 lamy t/. Barker, I Strange, 304.) Rogue, 
 rascal, scoundrel, and the like, are not 
 actionable. (i Starkie on Slander, 
 24.) After verdict for plaintiff in an 
 action for calling him " a rogue," the 
 court refused to arrest the judgment 
 (Borbridge 21. Herst, 6 Phila. Rep. 
 [Legal Intel. Cond.] 391 ; S. C. Herst 
 V. Borbidge, 57 Penn. St. Rep. 62.) 
 
 i« Vin. Abr. Act. for Words, G, 
 a. 
 
 *' Oakley v. Farrington, i Johns. 
 Cas. 129; Caldwell v. Abbey, Hardin 
 (Ky.), 529. God damned rogue, not 
 actionable. (Ford -v. Johnson, 21 Ga. 
 
 399-) 
 
 ^ ' Winter v. Sumvalt, 3 Har. & J. 
 38. Saying one was a rogue of re- 
 cord was held actionable. (Sty. 
 220.) 
 
 1 » Gaudie v. Smith, I Sid. 376. 
 
 2 Quinn v. O'Gara, 2 E. D. Smith, 
 388. 
 
 »i Vin. Abr. Act, for Words, H, 
 a. 
 
§174.] 
 
 WHAT LANGUAGE IS ACTIONABLE. 
 
 197 
 
 omite/ swindler,^ libeler,* vagrant or vagabond,* rebel,^ 
 welcher,* negro,'' free negro,^ varlet,' villain," witch," whore- 
 master,^* seducer of innocent girls, ^' bastard.** He is father 
 of a bastard.*® He cozened J. S. of one hundred marks." 
 He cozened the Earl of H. of as much as he [plaintiff] is 
 worth." You cozened me of ^1,200 at onetime.** Your 
 master [plaintiff] is a cozening, cheating knave, and a 
 
 » Anon. 29 Up. Can. Q. B. R. 456; 
 Melvin v. Weiant, 36 Ohio St. 184. 
 Charging a woman with sodomy, ac- 
 tionable. (Haynes v. Ritchey, 30 Iowa, 
 76.) 
 
 2 Chase i/. Whitlock, 3 Hill, 139; 
 Savile v. Jardine, 2 H. Black. 531 ; 
 Odiome v. Bacon 6 Cush. 185; 
 Stevenson v. Hayden, 2 Mass. 406; 
 Weil V. Altenhofen, 26 Wis. 708; 
 Lucas z/. Flinn, 35 Iowa, 9; Black w. 
 Hunt, 3 Ir. L. R. 10 Q. B. D. Swind- 
 ler and thief actionable. (Stern v. 
 Katz, 38 Wis. 136.) To say of a 
 bank director he is a swindler, held 
 actionable. (Forrest v. Hanson, i 
 Cranch C. C. Rep 63.) To write of 
 one he is a swindler, is actionable. 
 (I'Anson v. Stuart, i T. R. 748 ; see 
 notes 3. 4. p. 7,Qr],post. 
 
 ' Andres v. Koppenheafer, 3 Serg. 
 & R. 255 ; see § 177, post. 
 
 * Corcoran v. Corcoran, 7 Ir. L. 
 R. N. S. 272 ; Campbell v. White, 5 
 Id. 312; but see Miles v. Oldfield, 4 
 Yeates, 423. 
 
 ' Unless used in a treasonable 
 sense. (Beardsley v. Dibblee, I Kerr 
 [New Brunswick], 246.) 
 
 ' To call one a " welcher,'' z. e., 
 one who receives money deposited to 
 abide the result of a race, and who has 
 a predetermined intention to keep the 
 money and not part with it in any 
 event, held not actionable. (Black- 
 man V. Bryant, 27 Law Times, N. S.- 
 
 491 •) 
 
 ' Toye V. McMahon, 21 La. Ann. 
 308; Sportono ?'. Fouricher, 4 So. 
 Rep. 71. 
 
 ' McDowell V. Bowles, 8 Jones 
 Law (N. Car.), 184. 
 
 » Vin. Abr. Act. for Words, G, 
 a. 
 
 ' Vin. Abr. Act. for Words, G. a. 
 
 Villain, rascal, cheater, not actiona ble 
 (Nelson v. Borchenius, 52 111, 236.) 
 
 " Vin. Abr. Act. for Words, H. a. 
 Witch and sorcerer were actionable 
 whilst the statutes against witchcraft 
 remained in force. (Rogers v. Gravat, 
 Cro. Eliz. 571.) "Heretic" or 
 " Papist," not actionable. (Vin. Abr. 
 Act. for Words, D, a.) 
 
 '^ Witcher's Case, Keb. 119; Vin. 
 Abr. Act for Words, D, a. Contra, 
 when spoken of a married man. 
 (Georgia v. Kipford, 45 Iowa, 48.) But 
 actionable with special damage. (Mat- 
 thew V Crass, Cro. Jac. 323 ; 2 Bulst. 
 89.) 
 
 1' Finch V. Vifquain, 9 No. West. 
 Rep. 43- 
 
 ^* Not actionable unless special 
 damage. (Vin. Abr. Act. for Words, 
 D, a. 16, 17, 18, 21, 22, 31; Nelson 
 V. Staff, Cro. Jac. 422 ; Humphreys v. 
 Stanfield, Cro. Car. 469; Hoar v. 
 Ward, 47 Vt. 657.) But actionable if 
 in writing. (Shelby v. Sun Print. Asso. 
 38 Hun, 474.) Calling the children of 
 a married woman bastards does not 
 give any right of action to either 
 mother or children, unless there be 
 appropriate allegations to show the 
 words imputed a crime to the mother. 
 (Hoar V. Ward, 47 Vt. 664. See § 177, 
 post.) 
 
 ' ' Unless the bastard is chargeable 
 to the parish. (Salter v. Browne, Cro. 
 Car. 436.) 
 
 •' Somerstaile's Case, Goldsb. 125. 
 
 " Tut V. Kerton. i Bulst. 162. 
 
 ' 8 Townsend v. Barker, Sty. 388. 
 Thou hast no more than thou hast 
 got by cozening, not actionable. 
 (Broomfield v. Snoke, 12 Mod. 307.) 
 He swindled me out of $500, not ac- 
 tionable. (Weil V. Altenhofen, 26 
 Wis. 708.) 
 
198 WHAT LANGUAGE IS ACTIONABLE. [cH. VIII. 
 
 rogue to boot, and cozened and cheated all the parish and 
 all persons he deals with.^ Those two rascals [plaintiff 
 and his brother] killed my hogs and converted them to 
 their own use.^ The library has been plundered by C. 
 [the plaintiff].^ He killed and salted one of my hogs.* 
 He defrauded a meal man of a horse.^ He robbed the 
 treasury and bought a farm with it.* He embezzled goods.^ 
 He attempted to commit a robbery.* He passed counter- 
 feit money.' He cut off the tail of my horse.^" He har- 
 bored my negroes." He whipped his wife/** or his mother.** 
 He snaked his mother out of doors by the hair of her 
 head, the day before she died.** He is a mulatto and akin 
 to negroes.** He gave a free pass to a negro.*^ He [plaint- 
 iff] is a brabbler and a quarreler, for he gave his champion 
 counsel to make a deed of gift of his goods, to kill me and 
 then fly out of the country, but God preserved me." His 
 [plaintiff's] boys did frequently come to our house and hire 
 our negroes and take the dogs and go down into the river 
 bottom and killed cattle no more theirs than mine.'* You 
 cheated the lawyer of his linen, and stood bawd to your 
 
 > Tamlin v. Tamlin, Show. 181. ' Russell v. Wilson, 7 B. Mon. 
 
 " Thou art a cozening knave, and hast 261. 
 
 cozened thy master of a bushel of ' Church v. Bridgman, 6 Mo. 190. 
 
 barley," spoken of a servant in hus- »» Gage ?/. Shelton, 3 Rich. 242. 
 
 bandry, held actionable. (Seaman v. » » Croskeys v. O'DriscoU, i Bay, 
 
 Bigg, Cro. Car. 480.) The misap- 481 ; Skinner v. White, i Dev. & BaL 
 
 propriation of funds by a trustee of 471. 
 
 public works being a misdemeanor, to ^^ Birch z;. Benton, 26 Miss. 153; 
 
 charge such a misappropriation held Dudley v. Horn, 21 Ala. 379. 
 
 actionable per se. (Decow v. Tait, 13 Speaker v. McKenzie, 26 Mo. 
 
 25 Up. Can. Rep. 188.) 255. 
 
 2 Sturgenegger v. Taylor, 2 Bre- 1* Billings v. Wing, 7 Vt. 439. 
 vard, 480. 1 5 Barrett v. Jarvis, i Ham. 83, 
 
 3 Carter v. Andrews, i6 Pick, i ; note. But such a charge was held 
 and see Mackay v. Ford, 5 H. & N. actionable. (Eden v. Legare, i Bay, 
 792- 171 ; Atkinson v. Hartley, i McCord, 
 
 * Clay V. Barkley, Ky. Dec. 203; King v. Wood, I N. & M. 184.) 
 
 (Sneed) 67. Yellow negro, villain and liar, not ac- 
 
 ' Richardson v. Allen, 2 Chit. tionable. (Johnson z/. Brown, 4 Cranch 
 
 654- Cir. C. Rep. 235.) 
 
 « Allen V. Hillman, 12 Pick. loi. 1 e McManus z/. Jackson. 28 Miss. 56. 
 
 ' Caldwell v. Abbey, Hard. 529; i' Eaton 7/. Allen, 4 Co. 16. 
 
 and see Williams v. Scott, I Cr. & M. 18 Poner v. Hughev. 2 Bibb 2^2. 
 
 675; 3Tyrw. 688. ^ ^ ' ^ 
 
§ 1 74-] WHAT LANGUAGE IS ACTIONABLE. 
 
 199 
 
 daughter to make it up with him ; you cheat everybody ; 
 you cheated me of a sheet; you cheated T. S., and I will 
 let him know it.^ She secreted one shilling under the 
 till ; and these are not times to be robbed.^ She is an 
 hermaphrodite.^ He is a bloodsucker, and not worthy 
 to live in a commonwealth, and his child, unborn, is bound 
 to curse him.* Thy credit hath been called in question, 
 and a jury being to pass upon it, thou foistedst on a jury 
 early in the morning, and the lands thou hast are gotten 
 by lewd practices.^ Thou wast the cause that J. S. did 
 hang himself, and that R. N. did cut his own throat, and 
 thou beginnest with no man but thou undoest him;* 
 drunkenness;^ he got drunk on Christmas day.* "He 
 killed her by his bad conduct, and I think he knows more 
 
 ' Davis V. Miller, 2 Strange, 1169; 
 and see note 8, p. 196, ante. 
 
 * Kelly V. Partington, 2 Nev. & 
 M. 460. 
 
 * The words were spoken of one 
 who taught dancing, and held not ac- 
 tionable, because men as well as 
 women taught dancing. (Wetherhead 
 V. Armitage, 2 Levinz, 233.) But in 
 Ohio it has been held actionable to 
 call a woman an hermaphrodite. (Ma- 
 lone V. Stewart, 15 Ohio, 319.) 
 
 * Thimmelthorp's Case, Noy, 64. 
 
 ' Nichols V. Badger, Cro. Ehz. 348 ; 
 see ante, § 144, subd. j. 
 
 ' Anon. Dal. 89. See Kedrolivans- 
 ky 7/. Niebaum, 11 Pac. Rep. 641. 
 
 ' Buck V. Hersey, 31 Me. 558; 
 O'Hanlon v. Myers, 10 Rich. Law (So. 
 Car.), 128. But held actionable when 
 charged against a preacher or settled 
 minister (McMillen v. Birch, i Binn. 
 178; Chaddock v. Briggs, 13 Mass. 
 248; Hayner v. Cowden, 27 Ohio St. 
 292), or a female (Brown v. Nicker- 
 son, 5 Gray, i), or a chief engineer of 
 a fire department (Gottbehuet v. Huba- 
 chek, 36 Wis. 515), or a lawyer (San- 
 derson V. Caldwell, 45 N. Y. 398), or 
 a master mariner in command of a 
 vessel (Irwin v. Brandwood, 2 Hurl. 
 & C. 960). There is a statute by which 
 conviction of drunkenness deprives a 
 master mariner of his certificate. The 
 
 words, he will get drunk, I have seen 
 him drunk, spoken of a clergyman, 
 held not actionable. (Tighe v. Wicks, 
 33 Up. Can. Q. B. Rep. 479.) Saying 
 of a schoolmaster, " He was drunk 
 and fell on the floor," held not action- 
 able /^rj^, but there being an innuen- 
 do, meaning a man of intemperate 
 habits, it was, after verdict for plaint- 
 iff, held that the words might impute 
 habitual drunkard, and so be action- 
 able. (Brandrick v. Johnson, i Vict. 
 Law Rep. 306.) 
 
 ' Warren v. Norman, Walker, 387. 
 "May the Lord have mercy on two 
 men who brought me to court yester- 
 day, bringing shame and scandal on 
 me. My curse and the curse of God 
 be down on F." [plaintiif]. These 
 words, spoken by a Roman Catholic 
 priest during church service, held not 
 actionable. (Fitzgerald v. Robinson, 
 112 Mass. 371.) But the words, 
 "This P. S. [plaintiff] is excommuni- 
 cated because he laid hands on a priest 
 to put him out of church. I will not 
 pray for him. If he die, the burial 
 rights of the church shall be denied 
 him," spoken by a priest of a member 
 of his congregation, were, on demur- 
 rer, held actionable. (Servatius v. 
 Pichel, 34 Wis. 292; post, note to 
 § 24i'5-) 
 
200 WHAT LANGUAGE IS ACTIONABLE. [CH, VIII. 
 
 about her being drowned than anybody else ; " ^ he adul- 
 terated sugar, cheated the government, and swore he did 
 not do so.* 
 
 § 1 75. With respect to a charge of haying a disease, it 
 is actionable to charge one with having the venereal dis- 
 ease,^ or gonorrhoea,* or leprosy,® or semble, falling sickness,* 
 but not the itch or sraall-pox,'' or with being insane,* un- 
 less it affects him in his business.' To call one leprous 
 knave was held actionable." But it has been held not 
 actionable to charge one with having had any of the dis- 
 eases above indicated ;" thus it was held not actionable to 
 say of one, Thou art a base fellow and hadst [or, hast haii] 
 the French pox,^^ or to say of a woman, " I have kept her 
 common these seven years, she hath given me the bad dis- 
 order, and three or four other gentlemen." ^^ The reason 
 assigned for these decisions is, that to charge the having 
 such a disease is actionable because the disease, being 
 contagious, the having it renders the person an improper 
 member of society, but there is no reason why the com- 
 
 1 Thomas v. Blaisdale, 18 No. ' See Villers -v. Monsley, 2 Wils. 
 East. Rep. 214. The words do not 403, and notes 3, p. 121, ante, and 
 import murder. note 12, p. 20Z, post. 
 
 2 Havemeyer w. Fuller, 10 Abb. ' Joannes z/. Burt, 6 Allen (Mass.), 
 N. C. 9. 236. The charge was made orally. 
 
 8 Bloodworth v. Gray, 7 M. & G. » Morgan v. Lingen.S Law Times, 
 
 334; 8 Sc. N. S. 9; Golderman v. N. S. 800. The charge of insanity 
 
 Stearns, 73 Mass. 181; Williams v. was in writing and held actionable. 
 
 Holdridge, 22 Barb. 398 ; Hewit v. » » Taylor v. Perkins. Cro. jac. 144. 
 
 Mason, 24 How. Pr. R. 366; Vin. " Carslake w. Mapeldoram, 2 T. R. 
 
 Abr. Act. for Words, D, a, 56; H, a, 474; Bloodworth v. Gray, 7 M. & G. 
 
 3. 4> 5, 9; U, a, 15; Nichols v. Guy, 334. 8 Sc. N. S. 9; Pike v. Van Wor- 
 
 2 Carter, 82; Kaucher v. Blinn, 29 mer, 5 How. Pr. R. 171. 
 
 Ohio St. 62. "I will tell you what is >2 Smith's Case, Noy, 157; Dutton 
 
 the matter with her, she has had the v. Eaton, All. 31. But in Miller's 
 
 pox," held actionable because the Case (Qro. Jac. 430), the words Mrs. 
 
 words import that plaintiff was still Miller is a whore, and katk had the 
 
 then suffermg from said disease. pox, were held actionable. So were 
 
 (Irons V. Field, 9 R. I. 216.) the words, " She went to the spa to 
 
 * Watson 7/. McCarthy, 2 Kelly, 57; be cured of the French pox." The 
 
 Williams V. Holdredge, 22 Barb. 398. words imply she had that disease. 
 
 " ^'^•, , (Hobson V. Hudson, Sty. 199.) 
 
 « Spoken of a lawyer. (Taylor v. ' s Carslake v. Mapeldoram, 2 T. R. 
 
 Perkins, Noy, 117.) 47^.. 
 
§ 1 75-] WHAT LANGUAGE IS ACTIONABLE. 20I 
 
 pany of a person who has had a contagious disease should 
 be avoided ; and therefore, to say one has had such a dis- 
 ease is not actionable.^ A distinction is taken between 
 having had a disease and having been guilty of a crime, 
 the stain of which remains.'' These decisions assume that 
 it is the fact of the disease being contagious which renders 
 the charge of having it actionable. We are not satisfied 
 that this assumption is warranted. The charge of leprosy 
 certainly involved more than a mere charge of having a 
 contagious disease. The leper lost his civil rights and all 
 ecclesiastical privileges, he was at once cast off by society 
 and excommunicated by the church. The physician held 
 out no hope to him of being cured, and the priest no hope 
 of being saved ; and, besides, leprosy impeded the descent.^ 
 And there was a writ of de leproso amavendo commanding 
 the sheriff to remove him to a solitary place. Even at 
 this day, in those countries in which leprosy prevails, the 
 slightest ascertained taint of the disease entails upon the 
 sufferer a compulsory exclusion tantamount to banishment 
 from the rest of the community, or even to perpetual de- 
 tention in a lazaret; yet, strange to say, it seems, that 
 leprosy is not a contagious disease,^ although beyond doubt 
 it was so esteemed at the period when the dicta to which 
 we have above referred were pronounced. The charge, 
 too, of having the lues venerea, was something more than 
 a charge of having a contagious disease, at least it in- 
 volved a charge of lewdness. That the bare fact of the 
 disease being contagious was not the ground for making 
 
 ' Unless special damage ensues. his company, though he had the plague 
 
 (I Alb. L. J. 162.) in times past. (Coke, Ch. J.; see 
 
 2 There is this difference of scan- Smith's Case, Noy, 157: Dutton v. 
 
 dal in the past tense, when it touches Eaton, All. 31.) As to charges in the 
 
 the mind and when it touches the past tense, see § 1 58, ante. 
 
 body. If it be a scandal to the mind, » Hale's Hist. Com. Law, ch. vi. 
 
 and the affections as perjury, felony, * Report on Leprosy to the Royal 
 
 &c., then the mind that remains is College of Physicians, prepared for 
 
 slandered : but if it be of an accidental Her Majesty's Secretary of State to 
 
 infirmity or disease of the body, it is the Colonies. (London, 1867.) 
 otherwise, for none now will forbear 
 
202 WHAT LANGUAGE IS ACTIONABLE. [cH. Vllf. 
 
 the charge actionable, seems to be apparent from this : 
 Lues venerea, vulgarly called pox, was formerly called the 
 French pox, or the great pox, to distinguish it from vari- 
 ola or small-pox. Now the small-pox is a contagious dis- 
 ease, but it has never been held actionable to charge one 
 with having the " small-pox," and we find in the reports 
 that when the charge was simply of having the pox — with- 
 out any other words or facts to indicate that the French 
 pox was intended — the charge was held rot actionable.^ 
 To such an extent was the distinction carried that where 
 the charge was simply of having the pox, it was held the 
 meaning of French pox could not be given to the word 
 by an innuendo, without an averment which warranted it.* 
 Notwithstanding the dicta above referred to, probably a 
 better reason for holding actionable a charge of having the 
 leprosy or lues venerea is that those diseases are supposed 
 to be ineradicable from the system, and their taint heredi- 
 tary.^ But if this reason were the true one, then the charge 
 of having had should be actionable equally with a charge 
 of having such a disease. If, indeed, the disease be inerad- 
 icable, then to have had it, is always to have it, and lan- 
 
 > It was held not actionable to say pox " (Davies v. Taylor, Cro. Eliz. 
 
 of a man, " Hang him, he is full of the 648), or, " Thy pocky wife, her nose is 
 
 pox" (James v. Rutlech, 4 Coke, 17), eaten with the pox" (Brook v. Wise, 
 
 or of a woman, '■ You are a pocky Cro. Eliz. 878), or, '• The pox haunts 
 
 whore; go to the leech [doctor] for the you twice a year" (Peckington's Case, 
 
 pox" ( V. Farm, Vin. Abr. Act. Vin. Abr. Act. for Words, Y, a. 17), 
 
 for Words. Y, a, 23), or, " Thou art a or, " You were laid for the pox " (Aus- 
 
 scurvy pocky whore " (Hunt v. Jones, tin w. White, Cro. Eliz. 214), or, " Thou 
 
 Cro. jac. 499), because it was not ap- art burnt and hast the pox" (Boxe's 
 
 parent that French pox was intended, Case, Cro. Eliz. 2), was held action- 
 
 but it was said in another case that able because French pox is implied, 
 
 when the word pox was coupled with Webster, in his Dictionary, says that 
 
 the word whore, the French pox would the word pox, without an epithet, im- 
 
 be intended (i Sid. 50; Clifton v. -^oxXs lues venerea. 
 Wells, 12 Mod. 633; Garford v. Clerk, 2 Bonner's Case, F. Moore, 573; 4 
 
 Cro. Eliz. 857; and see note 4, p. 189, Coke, 17. 
 
 ante). So saying of one, ^'U^ caught ^ See Report from Select Commit- 
 
 the pox," was held not actionable, as tee of House of Lords on the Conta- 
 
 not implying the French pox, but say- gious Diseases Act of 1866, Wegf. 
 
 ing, "He got the pox by a yellow- Rev. July, 1869; Prostitution in rela- 
 
 I,aired wench " (Lym v. Hockley, i tion to the National Health, West. 
 
 Sid. 324J, or, "He is rotten with the Rev. Oct. 1869. 
 
§ 176.] WHAT LANGUAGE IS ACTIONABLE. 
 
 203 
 
 guage charging the having had such a disease should be 
 actionable. 
 
 § 1 76. What language published in writing concerning 
 an individual as such, is actionable per se (§§ 308-323). 
 That language in writing is actionable per se which denies 
 "to a man the possession of some such worthy quality as 
 every man is a priori to be taken to possess," ^ or, which 
 "tends to bring a party into public hatred or disgrace,"^ or 
 "to degrade him"* "in society,"* or, expose him to "hat- 
 red, contempt or ridicule," ^ or obloquy,^ or " which reflects 
 upon his character,"' or "imports something disgraceful 
 to him," ® or "throws contumely" on him,' or "contumely 
 and odium," ^" or "tends to vilify him,"" or "injure his 
 character or diminish his reputation," ^^ or which is '' in- 
 jurious to his character," ^* or to his " social character," " or 
 
 ' George on Libel, 17. See § 21, 
 ante. 
 
 ' Tenterden, Ch. J., Woodard v. 
 Dowsing, 2 Man. & Ry. 74. 
 
 ' Holroyd, J., Id.; Montgomery v. 
 Knox, 3 So. Rep. 211; Bergman v. 
 Jones, 94 N. Y. 51. 
 
 * Bailey, B., Forbes v. King, i 
 Dowl. Pr. C. 627. 
 
 ' Parmiter v. Coupland, 6 M. & 
 W. 105 ; Gathercole v. Mials, 15 M. & 
 W. 319; Miller «/. Butler, 6 Cush. 71; 
 Shattuck V. Allen, 4 Gray, 540; Com- 
 monwealth V. Wright, I Cush. 46; 
 Hillhouse "v. Dunning, 6 Conn. 391; 
 McGregor v. Thwaites, 3 B. & C. 24; 
 Clement v. Chivis,-9 B. & C. 172; 4 
 Man. & R. 127; Clark v. Binney, 2 
 Pick. 113; Cooper v. Stone, 24 Wend. 
 434; Colby V. Reynolds, 6 Vt. 489; 
 Johnson v. Stebbins, 5 Ind. 364; Lan- 
 sing V. Carpenter, 9 Wis. 540 ; Gabe 
 V. McGinnis, 68 Ind. 538; Barr v, 
 Moore, 87 Penn. St. 385; Negley v. 
 Farrow, 60 Md. 158; Neeb v. Hope, 
 III Pa. 145. 
 
 « Bettner v. Holt, 11 Pac. Rep. 
 713; Purdy V. Rochester Print. Co. 
 26 Hun. 20(5. 
 
 ' O'Brien v. Clement, ij M & W. 
 435; Johnson v. Stebbins, 5 Ind. 364; 
 Adams v. Lawson, 17 Gratt. 250. 
 
 " Digby V. Thompson, 4 B. & 
 Adol. 821 ; I Nev. & M. 485. Plaint- 
 iff published a medical work not 
 proper for general circulation ; he sent 
 a copy to defendant, a surgeon. De- 
 fendant published that plaintiff had 
 improperly left the work in a public 
 place ; that this was a rcToIting viola- 
 tion of decency, and a demoralizing 
 system of puffing, etc.; held action- 
 able. (Wells V. Webber, 2 Fos. & F. 
 
 715-) 
 
 « Bell V. Stone, 1 Bos. & P. 331 ; 
 Obaugh V. Finn, 4 Ark. no. 
 
 "> Riggs V. Denniston, 3 Johns. 
 Cas. 198. 
 
 *• Shipley v. Todhunter, 7 C & P. 
 680. 
 
 12 2 Leigh N. P. 1360; Dunn v. 
 Winters, 2 Humph. 512; Melton v. 
 The State, 3 Id. 389. 
 
 '' Cockayne v. Hodgkisson, 5 C. & 
 P. 543. The statement that the gen- 
 eral passenger agent of a railroad 
 company " had grown rich by making 
 his local ticket agents, or some of 
 them, divide their commissions with 
 him," held libelous. (Shattuck v. Mc- 
 Arthur, 29 Fed. R. 136.) 
 
 1* I Am. Lead. Cas. 138, 3d ed. 
 
204 WHAT LANGUAGE IS ACTIONABLE. [CH. VIII. 
 
 shows him to be "immoral or ridiculous," ^ or " induces an 
 ill opinion of him," * or " detracts from his character as a 
 man of good morals," ^ or alters his " situation in society 
 for the worse,"* or "imputes to him a bad reputation"* or 
 "degradation of character,"* or "ingratitude,"'' and "all 
 defamatory words injurious in their nature."^ A news- 
 paper article headed " Was his a 'Graveyard' Case?" and 
 following : " The death of D. has revived the matter of 
 graveyard insurance. It is reported that several men had 
 policies on his life, knowing when they were issued he was 
 suffering from consumption, which policies, it is alleged, 
 were obtained through a fraudulent physical examination 
 by Dr. H." " He had been informed that policies on his 
 son's life was held by [among others] plaintiff." ' But to 
 sustain an action for libel the plaintiff must either show 
 special damage, or "the nature of the charge must be 
 such that the court can legally presume he has been de- 
 graded in the estimation of his acquaintances, or of the 
 public, or has suffered some other loss either in his prop- 
 erty, character or business, or in his domestic or social re- 
 lations, in consequence of the publication." " Where de- 
 
 • The State v. Farley, 4 McCord, Williams v. Karnes, 4 Humph. 9; 
 
 317. Clark V. Binney, 2 Pick. 113^ Baron 
 
 2 Hillhouse v. Dunning, 6 Conn. v. Beach, 5 N. Y. Legal Observer, 
 
 391. 448. A defamatory statement is not 
 
 ' Young V. Miller. 3 Hill, 21 ; the less actionable because accom- 
 
 Quinn v. O'Gara, 2 E. D. Smith, 383. pahied by a statement of the publisher 
 
 ^ I Starkie on Slander, 169; and see that he disbelieves it. (Com. v. Cham- 
 Turner V. Meryweather, 7 C. B. 251; bers, 39 Leg. Int. [Pa] 158.) 
 Wakley v. Healey, Id. 594; Gregory ' Hurley v. Fall River Pub. Co. 
 ■V. Reg. 15 Q. B. 957; Capel v. Jones, 138 Mass. 334. 
 
 4 C. B. 259; Priori'. Wilspn, i C. B. '» Cooper v. Stone, 2 Denio, 29$; 
 
 N. S. 95. repeating Bennett v. Williamson, 4 
 
 ° Cooper 7/. Greeley, i Denio, 347. Sandf. 65. "There must be some 
 
 ° McCorkle v. Binns, 5 Binney, certain or probable temporal loss or 
 
 340. damage to make words actionable; 
 
 ' Cox V. Lee, Law Rep. 4 Ex. but to impute to a man the mere de- 
 
 284. . feet or want of moral virtue, moral 
 
 s Chaddock v. Briggs, 13 Mass. duties or obligations, which renders a 
 
 248; Pratt V. Pioneer Press Co., 28 man obnoxious to mankind, is not ac- 
 
 No. West. Rep. 708. For some defini- tionable. (DeGrey, Ch. J., Onslow i/. 
 
 tions of libel, see ante, note to § 21; Home, 3 Wils. 177; approved by 
 
 The State v. Avery, 7 Conn. 267; Lawrence, J., Holt v. Scholefield, 6 
 
§ 176.] WHAT X.ANGUAGE IS ACTIONABLE. 205 
 
 fendant published: To the liquor dealers of Hartford: In 
 order that you may be on your guard and protect your- 
 selves against the base treachery of a concern you may be 
 doing business with, I desire to state a few facts in re- 
 gard to ray experience with this firm. The concern I refer 
 to is Donague Brothers. I have been in the habit of buy- 
 ing goods of them for years, but because I quit buying of 
 them they went to my landlord and offered ten dollars 
 more a month than I was paying, and after getting a lease 
 of the premises served a notice on me to vacate. Consid- 
 ering the mean and unfair manner in which this firm have 
 treated me, I have wondered whose turn would come next 
 should anybody, like myself, exercise their right to buy of 
 whom they like. I believe it is time to warn the trade 
 against a firm who, because we buy of somebody else, sub- 
 ject ourselves to the same treatment I have received. The 
 firm of Donague Brothers are not worthy of our support, 
 being guilty of foul and unfair dealing to '• get square," as 
 they say, with one who exercises that right which every 
 honest man has, who pays his bills, to trade where he likes. 
 I believe they deserve that kind of warfare known as boy- 
 cotting, and request those who believe in the fair thing be- 
 tween man and man to give their support to some other 
 house. For further particulars call on J. H. Gaffy. For 
 this publication Donague Brothers brought an action and 
 
 T. R. 691.) Held not actionable to Hudley, 102 Ind. 416. "A person 
 
 publish of plaintiff, "He foameth." cannot say anything disparaging of 
 
 (Kinyon v. Palmer, 18 Iowa, 377.) another that has not a tendency to in- 
 
 But it is said (I Starkie on Slander, 2), jure him morally or professionally." 
 
 "an action lies in respect of any will- (Tindal, Ch. J., Doyley v. Roberts. 3 
 
 ful communication, oral or written, to Bing. N. C. 835 ; 5 Scott, 40. See in 
 
 the damage of another in law or in notes to § 197, /(?.?/.) In Vermont, an 
 
 fact, made without lawful justification action was sustained for writing the 
 
 or excuse." " Scandalous matter is plaintiff a threatening letter. (Grimes 
 
 not necessary to make a libel. It is v. Gates, 47 Vt. 594.) In Florida, see 
 
 enough if the defendant induce an ill Montgomery v. Knox, 3 So. Rep. 211, 
 
 opinion to be had of the plaintiff, or and note at end of that case ; and see 
 
 make him contemptible and ridic- notes, 38 No. West. Rep. 416, 857, 
 
 ulous." (Holt. Ch. J., Cropp v. Til- 910. 
 ney, 3 Salk. 226.) See Crocker v. 
 
2o6 WHAT LANGUAGE IS ACTIONABLE. [CH. VIII. 
 
 were nonsuited.* Afterwards, by amendment, the action 
 was continued in the name of one of the firm, and upon 
 the trial he was nonsuited.^ The appellate court said: the 
 publication was a hostile comment upon the manner in 
 which the plaintiff, within the pale of the law, used the 
 power of money, in disregard of the interests of others. 
 The public may disapprove the plaintiff's acts, but the pub- 
 lication does not expose him to hatred or contempt in the 
 sense or to the degree required by the law of libel. So it 
 was held not actionable for one who sold paint prepared 
 ready for use, to charge the purchaser, a painter by trade, 
 with having adulterated the paints bought by him of the 
 defendant.^ 
 
 The following language was held not actionable on its 
 face, viz.: "'The late William H. Seward, when at Yoko- 
 hama, Japan, required the services of a dentist. Upon ex- 
 amination it was found that the inferior maxilla was com- 
 pletely useless for masticating purposes, there being a false 
 joint at the seat of the original fracture, no union having 
 taken place. This case will be remembered from the 
 world-wide notoriety of the circumstances attending the 
 injury, as well as the reports, which have been universally 
 believed, that the patient was benefitted by the treatment 
 he received for the cure of his fracture." 
 
 It assumes to give an account of a circumstance in 
 which many may be presumed to have an interest, and 
 does not refer to any one personally or as one of a class.* 
 To impute that one has acted in business matters under a 
 contract or obligation entered into by an assumed name — 
 for example, that a wife made a contract by an assumed 
 name, is not actionable.^ 
 
 ' Donague v. Gaffy, 53 Conn. 43. " Bell v. Sun Printing & Pub. As- 
 
 ' Donague v. Gaffy, 54 Conn. 257. soc, 42 Superior Ct. (10 J. & S.) 567. 
 
 " Lynch v. Febiger, 39 La. Ann. "You are instructed to ship no lunn- 
 
 336. ber or merchandise of any description 
 
 * Gunning v. Appleton, 58 How. to J. L. Allen [plaintiff], except when 
 
 Pr. R. 471. all freight and charges are paid," held 
 
§ ^77--] 
 
 WHAT LANGUAGE IS ACTIONABLE. 
 
 207 
 
 § 177. It is actionable to charge one in writing with 
 being a villain/ liar,^ rogue, rascal,* swindler,* skunk,'' 
 drunkard,^ hog,'' cuckold and tory,^ informer," libelous jour- 
 nalist,^* the author or publisher of a libel or slander," a hypo- 
 
 not actionable. (Allen v. Cape Fear & 
 Y. Ry. Co. [N. Car.l 6 So. East. Rep. 
 105.) This was an exceptional case ; 
 the complaint was not framed as for a 
 libel. 
 
 > Bell V. Stone, i Bos. & P. 331. 
 
 ^ Brooks V. Bemiss, 8 Johns. 356; 
 approved More v. Bennett, 33 How. 
 Pr. R. 180; and see ««/<?, § 144, subd. 
 g. Liar and knave, see King's Case, 
 4 Inst. 181. A charging that one shot 
 out of a leather gun, meaning that he 
 was guilty of falsehood, held action- 
 able. (Harman v. Delany, 2 Str. 898 ; 
 and post, note 15, p. 208.) 
 
 ' Rogue, rascal, swindler, villain, 
 are libelous. (Cooke on Defam. 2.) 
 " I look upon him as a rascal," action- 
 able. (Williams v. Karnes, 4 Humph. 
 9.) Felon, debauchee, and seducer 
 are actionable. (MuUett v. Hulton, 4 
 Esp. Cas. 248.) As to felon, Leyman 
 V. Latimer, L. R. 3 Ex. Div. 352 
 (C. A.). 
 
 ■* I'Anson v. Stuart, i T. R. 748 ; 
 see note 2, p. 197, ante, and note to 
 § 192, post. 
 
 ' Massuere v. Dickens, 35 No. 
 West. R. 349; Pledger ?7. State, 3 So. 
 East. Rep. 320. 
 
 • Sanderson v. Caldwell, 45 N. Y. 
 402. Charging a coroner with being 
 drunk while holding an inquest, ac- 
 tionable (Tice V. Drumpoole, 33 
 Hun, 365.) 
 
 ' Solverson v. Peterson, 64 Wis. 
 198. 
 
 * Giles V. The State, 6 Ga. 276. 
 In Smith v. Wood (2 Salk. 692), it is 
 said to call a man cuckold is not an 
 ecclesiastical slander, but to call him 
 wittol is, for wittol imports his knowl- 
 edge and consent Shakespeare says : 
 Wittol-cuckold, the devil himself hath 
 not such a name. (Merry Wives of 
 Windsor, act II, scene 2.) A charge 
 in writing of want of loyalty is action- 
 able. (Kinyon v. Palmer, 18 Iowa, 
 
 377-) 
 
 » 2 Law Reporter, 126 (London, 
 
 1821). Informer, not actionable. 
 (M^we V. Pigott, 4 Irish C. L. Rep. N. 
 S. 54.) 
 
 '" Wakley z/. Cooke, 4 Ex. 511. 
 
 ' ' Andres v. Koppenheafer, 3 Ser. 
 & R. 255; Colby V. Reynolds, 6 Vt. 
 489; Viele V. Gray, 10 Abb. Pr. R. i : 
 Kerr v. Force, 3 Cranch C. C. 8; 
 Russell V. Ligon, Vin. Abr. Act. for 
 Words, H, a, 27; Clark v. Binney, 
 2 Pick. 113; Tracy v. Luke, 1 Vict. 
 L. R. L. 222. Held actionable to 
 publish "a report circulated by B. 
 [the plaintiff] against C, stating he, 
 C., made him, B., pay a note twice, 
 and proved by B. to be false." (Shel- 
 Xovlv. Nance, 7 B. Monr. 128.) "A 
 report has gone abroad through the 
 instrumentality of S. W. [the plaintiff], 
 stating that R. W. had a load of falsely 
 packed cotton bales, which report is a 
 direct falsehood," was held action- 
 able. (Woodburn v. Miller, Cheves, 
 194.) ■' His slanderous reports nearly 
 ruined some of our best merchants," 
 held actionable. (Cramer v. Noonan, 
 4 Wis. 231.) "He is a lying and 
 slanderous rascal." (Snowden v. 
 Lindo, I Cr, C. C. 569.) Proof in the 
 case of an imputation of being the 
 author of a libel (Tracy v. Luke, i 
 Vict. Law Rep. 222.) Formerly a 
 hbeler was disqualified from making a 
 will. (See Swinburne on Wills, pt. i, 
 § 8, et seq. ; Redfield on Wills, ch. 
 Ill, § 14 a, p. 118); and the author 
 or publisher of a libel could receive no 
 benefit under the will of the person 
 libelled. (See Domat's Civil Law, 
 bk. I, pt. ii, tit. I, §111, subd. vii; 
 Gardner v. Helvis, 3 Lev. 248.) The 
 Prussian Code gives the right to a 
 parent to disinherit a child who uses 
 defamatory words concerning him. 
 Anciently the ''homo infamatus" 
 was denied the privilege of conjura- 
 tors (Lea, Superstition and Force, 
 340), and one suspected of crime, 
 though no accuser came forward, was 
 kept in prison till he could prove his 
 
208 WHAT LANGUAGE IS ACTIONABLE. [CH. VIII. 
 
 crite, and using the cloak of religion for unworthy pur- 
 poses ;^ imp of the devil," a miserable fellow, it is impos- 
 sible for a newspaper article to injure to the extent of six 
 cents, and that the community can hardly despise him 
 worse than they now do ; * or with having kidnapped a 
 free colored man and hurried him into slavery ; * or, paid 
 money to procure an appointment to an office, or received 
 money for offices ; ® or that while sealer of weights and 
 measures he " tampered with," or " doctored " weights, 
 measures and scales, to increase the fees of his office,* or, 
 charging, hiring, or offering to buy directly or indirectly, 
 or furnishing money or other means to hire, buy or induce 
 any persons to vote for any candidate for a public office,'' 
 or charging one with letting a house for the purposes of 
 prostitution ; ' or, of having been deprived of the ordinances 
 of the church ; * or of being illegitimate ; ^" or, with being 
 thought no more of than a horse-thief and a counterfeiter ;" 
 or, with stinking of brimstone and having the itch ; ^^ or, 
 with voting twice on the same ballot for the election of 
 State officers ; ^^ with infracting a patent," with falsehood,'* 
 
 innocence. {Jd. 337.) A man so ' * ViUers w. Monsley, 2 Wils. 403. 
 
 generally suspected that he is out- In this case the words complained of 
 
 sworn in compurgation, must either were: 
 
 confess or submit to the ordeal. (Id. old ViUars, so strong of brimstone you smeU, 
 
 339.) As if not long since you had got out of hell. 
 
 1 Thnrlpv v Kprrv A Taunt ict But this damnable smell I no longer can bear, 
 
 inorley V. K.erry, 4 launt. 355. Therefore I desire you would fomeno more 
 
 " Price V. Whiteley, 50 Mo. 439. here. 
 
 ' Brown v. Remineton. 7 Wis ^°" °''' stinking, old nasty, old itchy, old 
 
 f- o t / toad, 
 
 4"2. If you coine any more you shall pay for your 
 
 *■ Nash V. Benedict, 25 Wend. 645. board. 
 
 ■ Weed V. Foster, 11 Barb. 203; YouUl^ therefore take this as a warning from 
 
 and see Fitch v. De Young, 66 Cal. And never enter the doors while they belong 
 
 339; Purdy V. Stacey, 5 Burr. 2698. to I. p. 
 
 » Eviston V. Cramer, 3 No. West. For a precedent of a declaration on 
 
 Rep. 392. a rhyming libel. The Miller and the 
 
 ' Heilman v. Shanklin, 60 Ind. 424. Laundress, see 4 Wentworth's Plead- 
 
 It amounts to a charge of felony in ings, 204. 
 
 Indiana. > » Walker v. Winn, 8 Mass. 248. 
 
 8 Hailey v. Gregg, 38 No. West. '* Watson v. Trask, 6 Ham. 531. 
 Rep. 416, under Code of Iowa. le Cooper v. Stone, 24 Wend. 434; 
 
 9 McCorkle v. Binns, 5 Binn. 340. Lindley v. Horton, 27 Conn. 58 : 
 '» Shelby v. Sun Print. Asso. 38 Woodbum v. Miller, Cheves, 194; 
 
 Hun, 474. Shelton v. Nance, 7 B. Monr. 128: 
 
 »i Nelson v. Musgrave, 10 Mo. 648. and ante, note 2, p. 207. 
 
§ ^77-'] 
 
 WHAT LANGUAGE IS ACTIONABLE. 
 
 209 
 
 dishonesty,^ blackmailing,* moral obliquity,' smuggling,* 
 blasphemy,^ false swearing,* insanity,'^ or being illegitimate,' 
 or being fit for a lunatic asylum, and unsafe to go at 
 large ;^ being guilty of gross misconduct in insulting fe- 
 males, &c. ; ^^ with want of chastity ; " as engaged in serving 
 
 1 Hart V. Reed, i B. Monr. 166; 
 Taylor v. Church, i E. D. Smith, 279 ; 
 S. C. on appeal, 8 N. Y. 452; Fowles 
 ■v. Bowen, 30 N. Y. 20 ; and see Hen- 
 derson V. Hale, 19 Ala. 154; Hanna 
 •V. Blaquiere, 11 Up. Can. Q. B. R. 
 310. Actionable to publish of one 
 that he had been detected in cheating 
 at cards. (Livingston v. Cheatham, 
 Pamphlet Report ; Holt on Libel, 239, 
 note.) Detected implies guilt {ante, 
 § 144, subd. u). Where the defend- 
 ant wrote concerning the plaintiff, his 
 late servant, '• He has now become so 
 inflated with self-importance by the 
 few hundreds made in my service, God 
 only knows whether honestly or other- 
 wise." There was an innuendo that 
 defendant meant that plaintiff was 
 dishonest in the service of defendant. 
 The jury having found a verdict for the 
 plaintiff, the court refused to disturb 
 the verdict. (Clegg v. Laffer, 3 Mo. 
 & Sc. 727.) 
 
 * Robertson v. Bennett, 44 Superior 
 Ct. (12 J. & S.) 66; Edsall v. Brooks, 
 2 Robertson, 29; 17 Abb. Pr. R. 221. 
 
 ' Kerr v. Force, 3 Cranch C. C. 8 ; 
 see post, note to § 206 c. 
 
 * Stilwell 7/. Barter, 19 Wend. 487; 
 and see Worthington v. Houghton, 
 109 Mass. 481. 
 
 ' Stow V. Converse, 3 Conn. 325 ; 
 note to § 190, post. 
 
 « Steele v. Southwick, 9 Johns. 214. 
 The words were : " 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 A., the plaint- 
 iff] is no slouch at swearing to an old 
 story; " keld that these words, if they 
 do not import a charge of perjury, 
 were libelous, as they hel<i,up the 
 plaintiff to contempt and ridicule, as 
 being so thoughtless or so criminal as 
 to be regardless of the obligation of an 
 oath. " I hope you will stop swearing 
 
 lies about the trees. ... I advise 
 you either to quit lying or preaching 
 — one, " actionable. (Adams v. Law- 
 son, 17 Gratt. 250.) 
 
 ' Southwick V. Stevens, 10 Johns. 
 443 ; Morgan v. Lingen, 8 Law Times 
 Rep. N. S. 800; Rex v. Harvey, 2 B. 
 & C. 258; Rex V. Creevey, i M. & 
 Sel. 273; see, however, Mayrant v. 
 Richardson, i Nott & McCord, 348. 
 
 » Shelby v. Sun Print. Co. 38 Hun, 
 474 ; 1 1 Cent. Rep. 869 ; and see Bas- 
 tard, § 174, ante. 
 
 ' Perkins v. Mitchell, 31 Barb. 461. 
 The word ' ' crank " has no necessary 
 defamatory meaning, and to write of a 
 pamphlet written by a lawyer, that it is 
 the "effusion of a crank," is not ac- 
 tionable per se. (Walker v. Tribune 
 Co. 29 Fed. Rep. 827.) Crank is not a 
 modem term. A book published A. 
 D., 1 566, is entitled " A Caveat , . 
 for Common Cursetors, vulgarly called 
 Vagabonds, . . whereto is added 
 the tale of the second taking of the 
 Counterfeit Crank." A glossary at 
 the end of the book defines cranke, 
 " young knaves and harlots that deep- 
 ly dissemble the falling sickness." In 
 Halliwell's Dictionary of Archaic 
 Terms, one of the definitions of crank 
 is impostor. 
 
 1° Clement v. Chivis, 9 B. & Cr. 
 172; 4 M. & R. 127. Allegation in 
 writing that plaintiff [a newsboy] 
 "takes every occasion to insult Re- 
 publican passengers," ," he appears to 
 have been in collusion with ruffians," 
 actionable per se. (Snyder v. Fulton, 
 34 Md. 128.) Held to be actionable 
 to write of a woman that she deserted 
 her husband in his sickness. (Smith 
 V. Smith [Mich.], 39 Alb. Law Jour. 
 287. 
 
 1 ' Bodwell V. Osgood, 3 Pick. 379. 
 A charge in writing that a certain man 
 had planned an elopement with a mar- 
 ried woman, naming her, was held to 
 
 14 
 
210 WHAT LANGUAGE IS ACTIONABLE. [CH, VIIL 
 
 writs on the anti-renters and catching Indians;^ or for 
 charging that the plaintiff, a married man, went through 
 the ceremony of marriage with an actress ; " or with having 
 been sued for a breach of promise of marriage ; * and to 
 publish an obituary notice of a living person, was held ac- 
 tionable,* So it was held actionable to publish " his 
 [plaintiff's] sons are vicious and brought up and supported 
 in vice by their father [plaintiff] with his unlawful earn- 
 ings." * It is actionable to charge that plaintiff, being a 
 member of a political party, at a nominating convention 
 of such party, offered, from the influence of a bribe, a reso- 
 lution that no nomination of a candidate for a particular 
 office should be made.* And publishing a notice that a 
 charitable society acknowledged to have received from de- 
 fendant a sum of money, being his moiety of a fine levied 
 from the plaintiff for not discharging his excise duties.^ 
 So to publish inter alia, " There may be an explanation. 
 The only decent one we can imagine is that the Board of 
 Health wanted something done in the line of spying and 
 sneaking, meaner and dirtier than they had the face to ask 
 the police department to do, so they went to Col. Byrne " 
 [plaintiff].^ A placard on a piece of furniture in a store, 
 " Taken back from A. B. [plaintiff], who would not pay 
 for it ; to be sold at a bargain," with another placard on 
 
 give a cause of action to the woman. a telegram one night announcing the 
 
 (Wocdard v. Eastman, 118 Mass. death, from delirium tremens, of a 
 
 403-) certain individual in the town of Cavan. 
 
 1 Hallock V. Miller, 2 Barb. 632. It was published. The individual in 
 
 « Rex V. Kinnersley, i W. Black. question immediately brought an ac- 
 
 294: and see Caldwell v. Raymond, 2 tion for libel. We paid ;^io into court, 
 
 Abb. Prac. Rep. 193. which he took out, and afterward we 
 
 « Morey I/. Morning Journal, 17 N. learned the telegram was sent by the 
 
 Y. St. Rep. 266. individual himself. Report on the Law 
 
 *■ McBride v. Ellis, 9 Rich. Law of Libel, 1879. 
 (So. Car.), 313; and see Horstok v. s Kirwan v. Tally, Cr. & Dix. Ab. 
 
 Boniface, i Menzies' Rep. 467. Libel Not. Cas. 388. 
 
 in form of a proposed epitaph. See « Hand v. Winton, 38 N. J. 122. 
 
 35 Alb. Law Jour. 302. The pro- ' Stapleton v. Macartney, Ridge- 
 
 prietor of a Dublin paper, upon his way, L. & S. Ir. Term Rep. 90. 
 examination before a committee of the » Byrnes v. Matthews 1 2 N. Y. St. 
 
 House of Commons, stated: We had Rep. 74. 
 
§ 177A.] WHAT LANGUAGE IS ACTIONABLE. 2 11 
 
 another piece of furniture in the same store, " Beware of 
 dead beats," held actionable.^ Charging that plaintiff's 
 wife did public work for the government, and received 
 pay therefor under an assumed name, is not libelous ^^rjr^, 
 and the husband cannot maintain an action therefor in 
 his own name alone, unless for special damage.^ A news- 
 paper notice as follows : " 6 E. Y. St. Boarding. Appli- 
 cants, before locating here, inform yourselves as to table, 
 attention and characteristics of the proprietors," is not 
 libelous per se? In that case there was no allegation that 
 the words affected the plaintiff in her business ; had there 
 been such an allegation the result might have been the 
 reverse of what it was. Where it was said of an hotel- 
 keeper that " he kept no accommodations, and a person 
 could not get a decent meal or decent bed [in his house] 
 if he tried," held that the language reflected upon plaintiff 
 in his business and was libelous per se^ 
 
 § 177 a. Plaintiff having defendant's bond, the validity 
 of which was disputed, advertised it for sale ; defendant, in 
 a statement of the circumstances under which the bond 
 was given, wrote : " His [plaintiff's] object is either to 
 abstract money from the pocket of an unwary purchaser, 
 or what is more likely, by this threat of publication to ex- 
 tort money from me ; " held to be actionable.* And held 
 
 1 Woodling V. Knickerbocker, 31 ' Wallace v. Bennett, i Abb. N. 
 
 Minn. 268. C. 478. 
 
 Where a barber, claiming that a * Trimmer v. Hiscock, 27 Hun, 
 
 customer was in his debt, put in his 364. 
 
 store window a cup with the custom- ' Robertson v. McDougall, 4 Bing. 
 
 er's name on it, inscribed, " this man 670. Joseph Coghlan was indicted for 
 
 owes this shop for shaving $1.1 5 since a libel on an attorney named Gee, and 
 
 1885." In a suit by the customer for for threats to extort money. Gee had 
 
 libel, he denied owing anything, and transactions with the brother of the 
 
 recovered a verdict. Davis v. Welt- accused, and each party alleged the 
 
 ner. City Court of New York, Feb., other was indebted to him. Defend- 
 
 1889. ant applied to Gee for a settlement, 
 
 * Bell V. Sun Pr. & Pub. Assn. 3 and not being satisfied, he threatened 
 
 Abb N C 1 57 ; S. C. 42 N. Y. Super- to and did post publicly a placard as 
 
 ior (10 J & S ) 567. follows : " To be sold in the last week 
 
212 
 
 WHAT LANGUAGE IS ACTIONABLE. [CH. VIIL 
 
 actionable to charge one with the unauthorized publication 
 of private letters ; ^ or with entering into a corrupt agree- 
 ment to benefit himself at the expense of the public, and, 
 if elected to the Senate, would lose his influence to defeat 
 the public interest and benefit himself;^ or imputing to 
 one who is an author a disregard of justice and propriety 
 as a man, and as being infatuated with vanity, mad with 
 passion, and the apologist from force of sympathy of an- 
 other stigmatized with ingratitude and perfidy, and as hav- 
 ing published as true statements falsified and encomiums 
 retracted.^ So it was held actionable to publish of one 
 that he was " as versatile as Monroe Edwards [a noted 
 forger] in circumventing the law of right ; " * or that he 
 fraudulently deceived another as to a fact, so as to induce 
 him to indorse a note for a larger sum than he intended ;' 
 
 of December, at Garraway's, unless 
 previously disposed of by private con- 
 tract, a debt of £'i.giy is. 6d., owing 
 by Mr. W. Gee, solicitor, of Bishop's 
 Stortford. All particulars may be ob- 
 tained of Mr. Joseph Coghlan, at," 
 
 ■&.C. 
 
 Baron Bramwell, at the close of 
 the case for the prosecution, expressed 
 his opinion that the placard in question 
 -was not a libel, and that consequently 
 there was nothing to go to the jury. 
 A libel meant something that was 
 scandalous and defamatory, concern- 
 ing the person to whom it referred, 
 but all that was represented in this 
 placard was that the prosecutor owed 
 a debt which he was either unable or 
 unwilling to pay. This, in his opinion, 
 ^was not a libel, for it might be said of 
 the Bank of England that it owed so 
 many millions of money, but no one 
 -would have any fear in consequence of 
 such a statement that he would not 
 receive his dividends when they be- 
 came due. At the same time he must 
 express his opinion that the proceed- 
 ing adopted by the defendant was a 
 most improper one. If a man had a 
 -claim against another it was his duty 
 to enforce it in a court of justice, and 
 
 if that did not give him a remedy he 
 must put up with it, and he had no 
 right to endeavor to obtain what he 
 required by a threat to publish a doc- 
 ument of this description. With re- 
 gard to the count of the indictment 
 which charged defendant with endeav- 
 oring to extort money, he did not see 
 that there was any evidence to support 
 it, and the object rather appeared to 
 be to obtain a statement of accounts. 
 Verdict of not guilty. Hertford Assizes, 
 March, 1865. 
 
 ' Bacon v. Beach, 5 N. Y. Legal 
 Observer, 448. 
 
 2 Powers V. Dubois, 17 Wend. 63. 
 
 " Cooper V. Stone, 24 Wend. 434. 
 
 * Cramer v. Noonan, 4 Wis. 231. 
 
 5 Kerr v. Force, 3 Cranch C. C. 8. 
 In the meantime K. investigated the 
 matter, and learned that ten of the 
 sureties did not know they were on the 
 bond, although H. [plaintiff], a notary 
 public, had certified that they acknowl- 
 edged the execution of such bond; 
 held libelous per se. (Henderson v. 
 Com'l Advertiser, 12 N. Y. St. Rep. 
 649; 46 Hun, 504; affi'd in Ct. of Ap- 
 peals.) Alleging that plaintiff said her 
 mother had been bitten by a cat, was 
 afflicted with hydrophobia, . . that 
 
§ I77A.] WHAT LANGUAGE IS ACTIONABLE. 21 i 
 
 or that he was prominent in the corrupt legislation of last 
 winter ; ^ or of one soliciting charity that she prefers un- 
 worthy claims;^ or of one that, although aware of the 
 death of a person occasioned by his improperly driving a 
 carriage, he attended a public ball on the evening of the 
 same day ; ® or of a man, that he attended a political meet- 
 ing while his wife lay dead and unburied ;* or of one who 
 had contracted to relay a road with new material, that he 
 had used old material;^ and held actionable where a pub- 
 lic officer published, in a report of an official investigation 
 into his conduct, the following comments upon the testi- 
 mony of a witness before the commissioners of inquiry : 
 " I am extremely loathe to impute to the witness, or his 
 partner, improper motives in regard to the false accusa- 
 tions against me ; yet I cannot refrain from the remark 
 that, if their motives have not been unworthy of honest 
 men, their conduct in furnishing materials to feed the 
 flame of calumny has been such as to merit the reproba- 
 
 she acted like a cat, . . assuming leged to be aimed at the complaining 
 
 the attitude of a cat in the effort to witness, a candidate for public office, 
 
 catch rats, &c., held actionable. viz. : " Up to date President Cleveland 
 
 (Stewart v. Swift Specific Co. 76 Ga. has not seen fit . . .to tie hungry 
 
 280.) Actionable to publish of plaint- spoilshunters to the crib, who . . . 
 
 iff that he was in debt, spent moneys have aimed to carry very doubtful 
 
 intrusted to him in a fiduciary capac- pension grants and anti-convict labor 
 
 ity, that he used improper methods of bills to catch votes." Held libelous, 
 
 business, doctored accounts to de- (The State v. Schmitt, 49 N. J. 579.) 
 
 ceive, was visionary, and had unsound Charging that plaintiff, a politician, 
 
 business ideas, a treacherous wretch, had been paid $5,000 for securing 
 
 with shallow liead and unprincipled the appointment of an official, and 
 
 heart. (Carpenter v. Hammond, I N. that large sums had also been paid to 
 
 Y. St. Rep. 551.) him for other lucrative offices, held 
 
 ' Littlejohn v. Greeley, 13 Abb. actionable /^r .f^. (Weed «<. Stimson, 
 
 Prac. Rep. 41. To publish, "Want- 11 Barb. 203; and see ante, page 194, 
 
 ed, Z. [plaintiff] to pay a drug bill," note 12.) 
 
 was held not to be actionable, but ^ Hoare v. Silverlock, 12 Q. B. 
 
 "wanted Z. (plaintiff) to pay his room 624. 
 
 rent, and not to go deadheading his ' Churchill v. Hunt, I Chit. R. 
 
 way," held actionable. (Zier^/. Hoflin, 480. 
 
 33 Minn. 66.) A newspaper article * The People v. Atkins, 42 Vt. 
 
 set out the procurement of a pension 252. 
 
 by a congressman in a case of fraudu- " Baboneau v. Farrell, 15 Com. B. 
 
 lent enlistment, and afterwards used 360 ; 24 Law Jour. R. N. S. C. P. 9 ; 
 
 the following language, which was al- i Jur. N. S. 114. 
 
214 WHAT LANGUAGE IS ACTIONABLE. [CH. VIII. 
 
 tion of every man having a particle of virtue or honor. 
 They have both much to repent of for the groundless and 
 base insinuations they have propagated against me."* 
 Charging that plaintiff had corruptly failed to make a 
 proper exhibit of fruit sent to him, but had appropriated 
 it to himself, and entered it in his own name, &c., held 
 actionable.'' The defendant wrote a letter, in which, refer- 
 ring to plaintiff, he said ; " D. keeps a well-spread table, 
 but I always consider myself in a family hotel when my 
 legs are under his table, for the bill is sure to come in 
 sooner or later, though I rarely dabble in the mysteries of 
 ecarte or any other game. The fellow is as deep as Crock- 
 ford and as knowing as the Marquis." This language was 
 held libelous.^ So this language was held actionable : " As 
 you will make considerable by being summoned to court, 
 I will advise you to go and pay George Bowman the bal- 
 ance you owe him for his wild hogs you killed."* In a 
 newspaper article describing the means by which the stock 
 of a worthless silver mine was, by a fraudulent scheme, 
 sold for a large sum, the plaintiff was stated to have been 
 employed to prepare the mine by plastering and engraft- 
 ing silver ore on the limestone rock, while armed men 
 guarded the entrance to the mine; and it was also stated 
 that the plaintiff was an expert in preparing a mine in this 
 way, and that his services in this regard were as valuable 
 as those of the person through whose influence and stand- 
 ing the stock of the company was sold — held, on demur- 
 rer, that the article was actionable per se} The declara- 
 tion averred that plaintiffs were watchmakers, and that 
 
 ■» Ckrki/. Binney, 2 Pick. 113. It present wife. (Delany w. Jones, ^ 
 
 was held actionable to publish : If any Esp. 191.) 
 
 person can ascertain that I. D. [the s Bettner v. Hall, 70 Cal. 270. 
 
 plaintiff] was married previous to loth » Digby v. Thompson, 4 B. & 
 
 August, 1799, with an innuendo mean- Adol. 821. 
 
 ing that he was married prior to the * Adams v. Lawson, 17 Grat. 250. 
 
 date mentioned, and had another wife » V^filliams v. Godkin, 5 Daly, 499. 
 living, he being then married to E., his 
 
§ 177^-] WHAT LANGUAGE IS ACTIONABLE. 215 
 
 they sold watches made for them in Switzerland, and other 
 and superior watches made in England ; that they marked 
 the former with their firm name only, and the latter they 
 marked with the firm name and the words, " Chronometer 
 makers to the Queen;" and then alleged that defendant 
 published of plaintiffs that the watches advertised by them 
 were merely Swiss watches, and that plaintiffs imposed 
 them upon the public as English, and at twice their true 
 value. In a second count it was alleged that defendant 
 charged plaintiffs with selling watches made in Switzerland 
 as English watches, and thereby defrauded the public — 
 held that each count disclosed a cause of action.^ Where 
 the declaration set out a letter addressed by defendant to 
 the clerk of the board of guardians of a poor-law union, in 
 respect of an allowance ordered by said board toward the 
 maintenance of the mother of plaintiff and defendant, 
 the letter stated that the plaintiff " has for years, without 
 the slightest cause, systematically done everything she can 
 to annoy me [defendant], and I am sorry to say my mother 
 is only too glad to assist her. Some years ago they drag- 
 ged me into chancery, and almost every term I am obliged 
 to appear by counsel before the vice chancellor. They 
 had no business to include me in the bill, as I make no 
 claim to my late father's property. But of course it is a 
 pleasure to my mother and Miss Fray [plaintiff] to put me 
 to all the expense they can. Doubting as I do my mother's 
 extreme poverty, I think the proper test of it is an order 
 for the workhouse, the expense of which should be borne 
 proportionately by all her children ; and as Miss Fray 
 [plaintiff] is a lady of independence, and a single woman, 
 and can find the money for carrying on all sorts of law 
 proceedings, she should not be exempted," — held, on de- 
 
 ' Russell V. Wilkes, 27 Up. Can. Sons, London & Liverpool," and not 
 
 Q B. 280. To this declaration there "Thomas Russell" only. The plea 
 
 was a plea that plaintiffs marked their was held bad, as raising an immaterial 
 
 Swiss watches, " Thomas Russell & issue. 
 
2l6 WHAT LANGUAGE IS ACTIONABLE. [cH. VIH. 
 
 murrer, thbt the declaration disclosed a cause of action.* 
 And so where the defendant wrote and published of the 
 plaintiff, a hotel and job coach proprietor by trade, and a 
 Presbyterian by religion, that from mere motives of intol- 
 erance, he had refused the use of his hearse for the funeral 
 of his deceased servant, because the body was about to be 
 interred in a Roman Catholic cemetery, — held, overruling- 
 a demurrer to the declaration, that the court could not so 
 clearly see that the language might not be actionable as to 
 justify the withdrawal of the case from a jury.** And as a 
 rule the court, on demurrer, will not construe the words 
 mitiori sensu, but will see if there is anything in the lan- 
 guage which by a reasonable intendment is actionable.* 
 
 § 178. It is not actionable to charge one in writing 
 with a breach of conventional etiquette,* or with an inten- 
 tion to put money into Wall street for shaving purposes,* 
 or of having brought suit against one's mother-in-law,* or 
 
 » Fray v. Fray, 34 Law Jour. C. P. N. S. 397 ; 9 Jur. N. S. 580. The 
 45. It may interest some of our read- charge was that plaintiff, an allopathic 
 ers to know that the plaintiff, a lady, physician, met homceopathists in con- 
 argued the demurrer in person. "John sulfation, and that, in the opinion of 
 Dick " published of William Black the the profession, it was improper to do 
 novelist : " He twice married an heir- so, and against etiquette ; and further, 
 ess, and has made a large fortune from that in the opinion of the profession, 
 his works, but he is reported to be very it was disgraceful for an allopath to 
 close, and his poor relations he affects meet a homoeopath in consultation, 
 to ignore. Lately an appeal was made ' Stone v. Cooper, 2 Denio, 293. 
 to him to assist an aunt who had done . ' Cox v. Cooper, 9 Law Times, N. 
 much for him when he was young. S. 329. Defendant published in a 
 She had a small income of her own, newspaper as a report of a proceeding 
 and only needed two shillings and six- in court: " C. w. G. When this cause 
 pence a week to keep her out of the was called, the plaintiff was not in 
 poorhouse, but Mr. Black would not court, upon which A., who appeared 
 pay it. Every one has his or her for the defendant (the plaintifPs moth- 
 weakness, and close fistedness, even er-in-law), applied for costs, which 
 to meanness, is Mr. Black's," held ac- were allowed, and the case struck 
 tionable. out." The declaration alleged that it 
 
 * Teacy v. McKenna, 4 Ir. R. Com. did not appear by the proceedings in 
 Law, 374. court that the defendant was plaintifPs 
 
 ^ Mawe V. Pigott, 4 Ir. R. Com. mother-in-law, and that that fact was 
 
 Law, 54; Patch v. Tribune Asso. 38 maliciously stated to create an unfavor- 
 
 Hun, 368; ante, note 2, p. 134, and able impression against plaintiff, and a 
 
 see §i 286, 309, 362, post. suspicion of him, and that he ought to 
 
 * Clay V. Roberts, 8 Law Times, be regarded with suspicion of being 
 
§ 178.] WHAT LANGUAGE IS ACTIONABLE. 21/ 
 
 that plaintifTs outward appearance is more like ah assassin 
 than an honest man.^ So the words, " the Rev. John Rob- 
 inson and Mr. James Robinson, inhabitants of this town, 
 not being persons that the proprietors and annual subscrib- 
 ers think it proper to associate with, are excluded this 
 room," published by posting a paper on which they were 
 written, purporting to be a regulation of a particular soci- 
 ety, held not to be actionable.^ It was held that to publish 
 B. O., "game and rabbit destroyer, and his wife the seller 
 of the same," was not libelous without innuendoes and 
 colloquium showing the words charged an indictable 
 offense, or affected plaintiff in his trade.* So to publish of 
 plaintiff, He is the ringleader of the nine hours' system, he 
 ruined the place by bringing about that system ; not ac- 
 tionable, even with special damage alleged.* Where the 
 language complained of was, " We are requested to state 
 that the honorary secretary of the Tichbourne defense 
 fund is not, and never was, a captain in the Royal Artillery ; 
 innuendo that plaintiff was an imposter, and fraudulently 
 represented himself as a captain — held that the innuendoes 
 were not warranted, and the language was not actionable.'* 
 So this language published of the plaintiff was, on demur- 
 rer, held not actionable : " Otherwise he would never have 
 had a Mawe [plaintiff] as his chairman, and heard him de- 
 clare that men who gave up all — life, liberty and home — 
 for what they deemed the sacred cause of old Ireland, were 
 guilty of infamous conduct ; otherwise he never would 
 have sat in silent approval while his chairman declared, ' I 
 will watch them, and will denounce them to the tender 
 mercies of the Corydons, the Talbots, and the Barrys.' " * 
 
 ffuilty of something wrong in suing * Miller v. David, 22 Weekly Rep. 
 
 his mother-in-law, but held no cause 332. 
 
 of action disclosed. " Hunt v. Goodlake, 29 Law Times, 
 
 1 Lang V. Gilbert, 4 Allan (New N. S. 472. 
 
 Brunswick), 445. ' Mawe v. Pigott. 4 Ir. Rep. Com. 
 
 * Robinson 7/. Jermyn, i Price, 11. Law, 54. 
 
 ' Reg. 7/. Yates, 12 Cox. Cr. Cas. 
 233- 
 
2l8 WHAT LANGUAGE IS ACTIONABLE. [CH. VIII. 
 
 '' This company, for good and sufficient reasons, have 
 resolved to dismiss M." [plaintiff], entered on the books of 
 a corporation — held not actionable, in absence of any 
 averments to give the language an injurious meaning.^ 
 
 The declaration alleged that the defendant published 
 in a newspaper a notice, as follows : " Walsall Science 
 Institute. — The public are informed that Mr. M.'s [the 
 plaintiflPs] connection with the institute has closed, and 
 that he is not authorized to receive subscriptions on its be- 
 half." Innuendo, that plaintiff falsely pretended to be 
 authorized to receive subscriptions on behalf of the insti- 
 tute. At the trial it appeared that plaintiff was a certifi- 
 cated art master, and had been master at the institute. 
 His engagements with defendants ceased in June, 1874, 
 and he got up and became master of another school, 
 which was called "The Walsall Government School of 
 Art," and was opened in August, 1874; in September fol- 
 lowing, the notice complained of appeared — held that 
 plaintiff was properly nonsuited, that the notice was not 
 capable of the defamatory meaning attributed to it by the 
 innuendo.^ Where the declaration, after stating that plain- 
 tiffs, as share brokers, had bought on account of the de- 
 fendant certain shares in a certain railroad company, set 
 out the alleged libel, and which, after commencing with 
 the word "warning," proceeded to inform the plaintiffs 
 that the shares so bought, " under false representations of 
 the market value," and " sanctioned " by defendant, were 
 being sent to the committee of the railway company, with 
 instructions to return deposit balance. to defendant; and 
 that, unless plaintiffs arranged to return such deposit 
 money to defendant, with certain expenses, the defendant 
 would adopt legal measures. " The amount will be taken 
 
 1 Maynard v. Farmers' Fund Ins. was a privileged one. (See Hatch v. 
 Co. 47 Cal. 207. Lane, 105 Mass. 394; Halliday v. On- 
 
 2 Mulligan V. Cole, Law Rep. 10 tario Farmers' Mut. Ins. Co. 33 Up. 
 Q. B. 550. Perhaps the publication Can. Q. B. Rep. 558.) 
 
§ 178.] WHAT LANGUAGE IS ACTIONABLE. 2I9 
 
 by installments, on security being deposited with any 
 bankers but those who recommended plaintiffs : " Held, 
 that in the absence of any colloquium or innuendo explain- 
 ing the meaning to be attached to the words, the publica- 
 tion was not libelous.^ It was held not libelous to publish 
 of one who was a druggist, " The above druggist refusing 
 to contribute his mite with his fellow merchants for water- 
 ing Jefferson avenue, I have concluded to water the avenue 
 in front of his store for one week gratis."^ And held not 
 actionable to publish of one that he was engaged in a 
 " gambling fracas " arising out of a dispute at play^ there 
 being no averment that illegal play was intended.^ Where 
 a paragraph in a newspaper merely stated that a bill had 
 been drawn, and that the acceptance had been forged or 
 obtained by fraud, but threw no imputation on the drawer 
 [the plaintiff], nor insinuated that the plaintiff had prac- 
 ticed the fraud or committed the forgery, it was held 
 not to amount to a libel on the plaintiff* And where it 
 was stated that the plaintiff purchased a newspaper and 
 gave his note for it ; that he was unable to pay the note, 
 and begged for delay; and that subsequently, when sued 
 upon it, he pleaded the statute of limitations successfully ; 
 held that, there being no charge of dishonesty, the publica- 
 tion was not libelous.^ So where the defendant published 
 
 • Capel V. Jones, 11 Jur.396; 4 C. * Stockley v. Clement, 4 Bing 162. 
 B. 259. The cashier of a bank sent The holder of a promissory note, 
 back to the drawer, without presenta- wrote plaintiff, " The promissory note 
 tion to the drawee, a draft, with these handed by you to me, signed by your- 
 written words, "we return unpaid self and B., was presented for pay- 
 draft. He [drawee] pays no attention ment. He repudiates all knowledge 
 to notices." In an action for libel by of said note, and unless the note is 
 the drawee against the cashier held, paid to me before 11 to-morrow, I 
 that as plaintiff was only bound to ac- shall hand the case to the procurator 
 cept and pay the draft on presentation, fiscal." Held to impute forgery, and 
 the words did not impute to him any actionable. (Mackay v. McCankie, 
 want of integrity and were not action- 10 C. of S. Cases, 537.) 
 able per se. (Platto v. Geilfuss, 47 » Bennett v. Williamson, 4 Sandf. 
 Wis. 401.) 60. The author was of counsel with 
 
 2 The People v. Jerome, I Man- the plaintiff in this case, and believes 
 
 nmg's Mich. R. 142. the decision has never been regarded 
 
 ' Forbes v. King, i Dowl. 672. as authoritative. The case was re- 
 
220 WHAT LANGUAGE IS ACTIONABLE.. [CH. VIII. 
 
 of the plaintiff that he was a " purse-proud aristocrat ; " 
 that he desired to put down the United States Bank to 
 make stock held by him in other banks more valuable ; 
 that he was an office-holder, and that he wanted to increase 
 his means by oppressing the farmer and mechanic ; that 
 he attacked Mr. Webster to gratify his propensity for mis- 
 representation, with other charges — on demurrer to the 
 declaration, the court held that there was nothing in this 
 language "calculated seriously to degrade" plaintiff, and 
 allowed the demurrer.^ Defendant wrote of plaintiff, an 
 attorney : " I will give you an anecdote of R. [plaintiff], 
 as told to me. W., who was considered an opulent farmer, 
 and thought himself such, sent for R. to make his will, 
 which he did, and bequeathed to his wife and family 
 ;^7,500. R attended the opening of the will. The family 
 were pleased, when lo, and behold ! and now comes the 
 tale. R. produces a bill for ;^7,500 for business done for 
 the last fifteen years, pounces on the property, and possesses 
 every shilling to this day. So the story has been told to 
 
 versed in the Court of Appeals on (C. 9, 35, 9.) A newspaper article, 
 another point. In Homer v. Engle- the tenor of which was to make 
 hardt (n7 Mass. 539), it was held not plaintiffs objects of pity, and which 
 actionable to publish that plaintiff, to represented plaintiffs as the relatives 
 get rid of a just claim, set up Jhe pro- of rich persons, but living in abject 
 hibitory liquor law. In Cox v. Lee poverty, was held actionable. (Mof- 
 (Law Rep. 4 Ex. 284), the charge was fatt v. Cauldwell, 3 Hun, 26.) Where 
 somewhat similar to that in Bennett v, the charge was, " This Major Noah, 
 Williamson, and a verdict for the the knight of the broken seal, who 
 plaintiff was upheld. In that case it converted to his own use property 
 was held that a statement that a per- known to be stolen," meaning he ob- 
 son was at a past time in pecuniary tained possession of a political letter 
 difficulties may be actionable, although addressed to another person, which 
 it is also stated that these difficulties he had published, the jury failed to 
 have been surmounted. In this case agree. (Noah's Case, 3 City Hall Re- 
 it was also held that to charge a man corder, 18.) Opening a letter and 
 with ingratitude is actionable, and detaining it merely from curiosity or 
 such a charge may be actionable not- political motives, held to be a trespass 
 withstanding the facts upon which the only, and not a felony. (Rex v. God- 
 charge is founded are stated and they frey, 8 C. & P. 563. 
 do not support the charge. By the > Tappan v. Wilson, 7 Ohio, 190. 
 Roman Law it was actionable falsely This case cannot be regarded as an 
 to accuse one of being your debtor, authority. 
 
§ 1 79-] WHAT LANGUAGE IS ACTIONABLE. 221 
 
 me." On demurrer to the declaration, held by the majority 
 of the court that the language was not libelous.^ 
 
 § 1 79. There is a distinction as to its actionable quality 
 between language concerning an individual as such, and 
 language concerning one in certain capacities or special 
 characters. Heretofore in this chapter the attention has 
 been solely directed to language concerning an individual 
 as such ; we have now to consider what language concern- 
 ing one in certain acquired capacities or special characters 
 is actionable per se. Language which is actionable, if 
 published of an individual as such, does not cease to be 
 actionable because published of one in a special character ; 
 and all language which is actionable as concerning an in- 
 dividual as such, must also be actionable when it concerns 
 him in any special character of the kind presently to be 
 ijientioned. Our present inquiry is limited to that lan- 
 guage which, not being actionable when published of an in- 
 dividual as such, becomes actionable when published, and 
 because it is published, of him in some special character 
 or relation. The effect of the special character of the pub- 
 lisher, and of the person to whom the publication is made, 
 will be considered under the head of defenses. Where 
 the language is actionable as concerning an individual as 
 such, it is unimportant and unnecessary, except in some 
 cases as affecting the amount of damages, to inquire further 
 whether such language is also actionable as concerning him 
 in some special character; as thus, where an action was 
 for language alleged to be concerning the plaintiff gene- 
 rally and concerning him as an attorney, the language 
 being actionable as concerning the plaintiff generally, it 
 was held that he might sustain the action without proof 
 of his being an attorney.^ 
 
 1 Reeves w. Templar, 2 Jur. 137. ' Lewis v. Walter, 4 D. & Ry- 
 
 This case commented on in Mawe v. 810; Harwood v. Astley, 4 Bos, & P. 
 Pigott, 4 Ir. Rep. Com. Law, 54. 47- 
 
222 WHAT LANGUAGE IS ACTIONABLE. [CH. VIII. 
 
 § 1 80. The distinction maintained between oral and 
 written language, as regards its actionable quality when 
 published concerning an individual as such, is not recog- 
 nized in regard to language concerning one in a special 
 character. As respects language concerning one in a 
 special character, it makes no difference, as we suppose, 
 in regard to its actionable quality, whether it be published 
 orally or in writing.^ Language in writing which con- 
 cerns one in a special character, is usually actionable con- 
 cerning the individual as such, and without reference to 
 his special character, it is therefore almost exclusively in 
 respect to oral language that questions arise as to whether 
 it is or is not actionable as affecting one in a special 
 character." 
 
 § 181. In connection with our present inquiry, it must 
 be remembered that no special character which one may 
 occupy can enhance his rights to protection, for that would 
 be in derogation of the rule to which reference has hereto- 
 fore been made (§ 138). Whatever may be the special 
 character, the right must be the same as the right of every 
 other individual, the right that no one shall, without legal 
 excuse, publish language concerning another or the affairs 
 of another which shall occasion him damage (§§ 49, 70), 
 that is, pecuniary loss. But although one by virtue of his 
 special character has no right superior to that of an indivi- 
 dual as such, and who does not possess any special charac- 
 ter, yet it must be obvious that one may occupy a position 
 in society which will render it easier to occasion him dam- 
 age than to occasion damage to one not so situated. The 
 position of a person may render him peculiarly obnoxious 
 
 ' Holt on Libel, 218. But he adds, and see Weiss v. Whittemore, 28 
 
 " though defamation when written Mich. 377. 
 
 may be actionable under certain cir- 2 " The authorities are so extraor- 
 
 cumstances when the same words if dinary upon the subject of a slander 
 
 spoken would not." See in note to upon a person in his profession that 
 
 %ii,ante, and note i, p. 22% post, they cannot be upheld." (Willesa/-^. 
 
 Galwey v. Marshall, 9 Ex. R. 294.) 
 
§ l8l.] WHAT LANGUAGE IS ACTIONABLE. 223 
 
 to injury. It is this special susceptibility to injury alone, 
 that creates the distinction between the actionable quality 
 of language when it concerns one in a special character 
 and when it concerns him only as an individual as such. 
 It is not every special character the possession of which 
 renders its possessor more than ordinarily susceptible to 
 injury by language, and this being so we have to ascertain 
 which are the special characters that have such an effect. 
 It is not possible to particularize the special characters 
 which entail this greater degree of liability to injury, but it 
 may be stated generally that every legal occupation or 
 position from which pecuniary benefit may or possibly can 
 be derived, will create in the follower of such occupation 
 or the holder of such position, that peculiar or special sus- 
 ceptibility to injury by language to which reference has 
 already been made ; and hence results this rule, that lan- 
 guage concerning one in any such lawful occupation or 
 position may, as a necessary consequence, occasion him 
 damage, which would not have that consequence if it con- 
 cerned him as an individual merely; and therefore, as 
 heretofore (§ 132) observed, language which would not 
 be actionable if it concerned only an individual as such, 
 may be actionable if it concerns him in his special charac- 
 ter.^ The rule which makes language concerning one in 
 a special character sometimes actionable, when the same 
 language concerning one as an individual merely would 
 
 ' Brown v. Smith, 13 C. B. 596. newspaper which is so diffusive." (Har- 
 
 " For the reason that from the nature man v. Delany, 2 Str. 898.) " In case 
 
 of the case it is evident that damage of slander of a person in the way of 
 
 must ensue." (McMillen v. Birch, i his trade, the fact of his being in trade 
 
 Binn. 178 ; and see Goldsmith v. Glatz, stands in the place of special damage." 
 
 6 N. Y. St. R. 635.) " The law has (Williams, J., Rolin v. -Steward, 14 C. 
 
 always been very tender of the reputa- B. 603.) Can a married woman in 
 
 tion of tradesmen, and therefore words England, carrying on a trade on her 
 
 spoken of them in the way of their separate account, sustain an action 
 
 trade will bear an action, that will rot for injury to her trade by reason of 
 
 be actionable in the case of another language? See dicium, Summers v. 
 
 person ; and if bare words are so, it City Bank, Law Rep. 9 C. P. 583. 
 will be stronger in the case of a public 
 
224 WHAT LANGUAGE IS ACTIONABLE. [CH. VIII. 
 
 not be actionable, is in reality nothing more than a phase 
 of the rule (§ 134) that language connected with any fact 
 affecting its meaning or effect, must be construed in con- 
 nection with such fact. The language being connected 
 with the fact of the special character of the person whom 
 it concerns, must be construed in reference to such special 
 character. 
 
 § 182. Limiting ourselves for the present to occupa- 
 tions, we conclude that subject only to the conditions (i) 
 that the occupation is one in which a person may lawfully 
 be engaged (§ 183), and (2) that it is an occupation which 
 does or reasonably may yield, or may be expected to yield, 
 pecuniary reward, there is no employment — call it busi- 
 ness, trade, profession or office, or what you will^ — so 
 humble nor so exalted but that language which concerns 
 the person in such his employment will be actionable, if it 
 affects him therein in a manner that may, as a necessary 
 consequence, or does as a natural or proximate conse- 
 quence, prevent him deriving therefrom that pecuniary 
 reward which probably he might otherwise have obtained.* 
 We state the rule much broader than usual. Ordinarily it 
 is said that the language must concern one in his business, 
 profession or office, and then is discussed what occupa- 
 tions are comprised within the terms business or profes- 
 sion, and what kind of office is intended. In one case * it 
 
 > Business includes trade and more. Where I. S. said to A., who kept a 
 
 " Trade has a more restricted mean- stable and received horses at livery (a 
 
 ing than business." (Harris ». Amery, livery-stable keeper), "Thou buyest 
 
 Lav(r Rep. i C. P. 154.) The word nothing but rotten hay to poison men's 
 
 business embraces everything about horses," it was held that A. could not 
 
 which a person can be employed. maintain an action therefor because he 
 
 (Parker Mills v. Com'rs of Taxes, 23 was not of any trade allowed in law. 
 
 N. Y. 244.) Business is an elastic (Jones v. Joice, Vin. Abr. Act. for 
 
 word, of which an exhaustive defini- Words, U, a, 7.) Livery-stable keep- 
 
 tion cannot be given. {Ex parte ing is recognized as a business in 
 
 BreuU, 16 Ch. Div. 487, cited Lewis which one may be libeled. See South- 
 
 V. Graham, 20 Q. B. D. 781.) am v. Allen, T. Raym. 231 ; Alexander 
 
 3 Foulger v. Newcomb, Law Rep. v. Angle, i Cr. & I. 143; 4 M. & P. 
 
 3 Ex. 327. See note i , page 225, post. 870. 
 
 ' Wharton v. Brook, i Vent. 21. 
 
§ l82.] WHAT LANGUAGE IS ACTIONABLE. 225 
 
 was said obiter that to call a woman who taught children 
 to read and write (a school teacher or school mistress) a 
 whore was not actionable, because she was not in a busi- 
 ness or profession. For the same reason, Lord Hale, in 
 another case, was for denying the right to recover to a 
 letter carrier charged with breaking open letters. The 
 tenor of his lordship's remarks was that if such an action 
 could be maintained, a man should not speak disparag- 
 ingly of his cook or his groom but an action would be 
 brought.^ It was said of a renter of tolls that he was not 
 in a business or profession in which he could be slandered 
 or libeled,* and the like was held of a stock broker.* On 
 the other hand, it has been held that the business need not 
 be one which renders him who follows it liable as a trader 
 to the bankrupt law,* and that the same rule applies to a 
 mere trader or retail dealer as to a merchant.^ It was 
 supposed formerly that the rule was limited to occupations 
 by which the person whom the language concerned ob- 
 tained his livelihood or " daily bread;" but such a limita- 
 tion, if it ever existed, no longer prevails. It is now held 
 to be sufficient if the person whom the language concerns 
 
 1 I Vent. 375. " The humility of as plaintiff did not allege what trade 
 
 the employment or occupation seems he followed, it might be a tinker 
 
 no objection to the action, either in ox peddler, who is a rogue by statute, 
 
 law or in reason." (i Starkie on Slan- This presuming that plaintiff's trade 
 
 der, 128; and see Cooke on Defam. is unlawful was done in Morris v. 
 
 21; Terry v. Hooper, I Lev. 115.) Langdale, 2 Bos. & Pul. 284; but at 
 
 The courts have not one rule for one this day the presumption would be 
 
 individual, and a different rule for an- the other way. See post, note 4, p. 
 
 other, or one for the rich and another 227. 
 
 for the poor. (Rex v. Ld. Cochrane, = Bellamy v. Burch, 16 M. & W. 
 
 3 Maule & S. 10; Sinclair z/. Charles 590; and see Sellers z/. Killen, 7 Dowl. 
 
 Phillipe, 2 B. & P. 363.) In Cockaine & R. 121; S. C, sub mm. Sellers v. 
 
 V. Hopkins, 2 Lev. 214, the plaintiff Till, 4 B. & C. 655. 
 alleged that he used the art of buying ' Morris v. Langdale, 2 Bos. & 
 
 and selling and gained great profit Pul. 284. 
 
 thereby, and that defendant said of * Whittaker v. Bradley, 7 Dowl. & 
 
 him, He is a runagate, whereby he R. 649; S. c. M^hittington 7/. Gladwm, 
 
 [plaintiff] lost his customers, but did 5 B. & C. 180; i Car. & P. 140. 
 not allege special damage; after ver- » Gatesz/.Bowker, 18 Vt (3 Wash.) 
 
 diet for plaintiff, judgment was arrest- 23; Ostrom v. Calkms, 5 V^end. 264; 
 
 ed because, as the court said, runagate Carpenter v. Dennis, 3 Sandf. 305. 
 was not equivalent to bankrupt, and 
 15 
 
2 26 WHAT LANGUAGE IS ACTIONABLE. [CH. VIIL 
 
 habitually (as distinguished from occasionally) acts in or 
 pursues the occupation to derive an emolument from it.' 
 Where it was objected against the plaintiff's right to re- 
 cover that it was not alleged he got his living by his occu- 
 pation, the objection was overruled. ** 
 
 § 183. We mentioned in the last preceding section 
 (§ 182) as one of the conditions to the right of action for 
 language concerning one in his occupation, that the occu- 
 pation must be a lawful one (§ 302). It is a universal 
 rule, of which very numerous examples are to be found in 
 the reports, that one engaged in an unlawful pursuit can- 
 not recover for work done or goods sold by him, nor for 
 any injury he may sustain in such occupation ; ^ hence 
 for language concerning a person in an unlawful , occupa- 
 tion, an action is not maintainable.* Thus it was held 
 that pugilistic exhibitions being illegal, one could not 
 maintain an action for language affecting him as proprie- 
 tor of a tennis court where such exhibitions were made;' 
 
 1 Babonneau v. Farrell, 1 5 C. B. & W. 452 ; Johnson v. Simonton, 43 
 
 360; Bryant z/. Loxton, n Moore, 344; Cal. 242; Seneca County Bk.i/. Lamb, 
 
 Davis V. Davis, i Nott & M'C. 290. 26 Barb. 595 ; Barton v. Port Jackson 
 
 •" The action seems to extend to words Plank Road, 17 Barb. 397 ; Griffith v. 
 
 spoken of a person in any lawful em- Wells, 3 Denio, 227 ; Bell v. Quin, 2 
 
 ployment in which he may gain his Sandf. Superior Ct. 146; Taylor v. 
 
 livelihood." (i Starkie on Slander, Crowland Gas Co. lo Ex. 293; 18 
 
 127.) "It does not appear to be ne- Jur. 913; Cowan v. Milbourn, Law 
 
 cessary that the party should gain his Rep. 2 Ex. 230 ; Daily Telegraph Co. 
 
 living in the character to which the v. Berry, 5 Vict. L. R. 469; 2 Pars, 
 
 slander is applied, but it is sufficient if on Contr. 259 ; Story on Contr. 620 ; 
 
 he habitually act in that character and note to § 302, post. There can not be 
 
 derive emolument from it. (/^. 129.) a copyright in a libelous publication. 
 
 ^ Dobson V. Thornistone, 3 Mod. Drone on Copyright, 181. 
 
 '12. 4 Seg jjgfg (Q y^^ ^_ Burras, 13 
 
 3 Timmerman v. Morrison, 14 Abb. N. C. 388; Honeggar 7/ Welt- 
 Johns. 369; Allcott z/. Barber, I Wend. stein, Id. 393. Where the illegality 
 526; Smith V. Tracy, 2 Hall, 465; appears on the face of the complaint, 
 Bailey 7/. Mogg, 4 Demo, 60; Finch 7/. defendant may demur. (Dauphin 2/ 
 Gridley, 25 Wend. 469; Smith v. Wil- Times Pub. Co. 18 The Reporter 10) 
 cox, 24 N. Y. 353; S. C. 19 Barb. 581, Where the illegality does not so ap- 
 and 25 Barb. 341 ; Cundell v. Dawson, pear, it must be pleaded. (Fry v Ben- 
 4 C. B. 376 ; Best I/. Bauder, 29 How. nett, 28 N. Y. 324.) 
 Pr. R. 489; Ferdon v. Cunningham, » Hunt 7/. Bell, i Bing i An 
 20 Id. 154; Cope V. Rowland, 2 M. agent for a lottery cannot maintain an 
 & W. 149; Smith V. Mawhood, 14 M. action for language concerning him in 
 
§ l84-] WHAT LANGUAGE IS ACTIONABLE. 227 
 
 and semble one who practices as a physician without being 
 duly licensed cannot maintain an action for language con- 
 cerning him as a physician.^ The fact, however, that a 
 person is engaged in an unlawful occupation is no reason 
 for his not being allowed his action for any language con- 
 cerning him as an individual, or concerning him in any 
 other and lawful occupation in which he may be en- 
 gaged.** If the language be actionable as concerning the 
 person as an individual merely, it is unimportant and un- 
 necessary to inquire further whether he is in any or in 
 what occupation, legal or otherwise." If the illegality of 
 the occupation proceeds from the fact that the person fol- 
 lowing it is not duly licensed, the burden is on the pub- 
 lisher to show that the person whom the language con- 
 cerns was unlicensed.* 
 
 § 184. As to the kind of office which one must hold 
 to render actionable language which concerns him in such 
 office, it is laid down by Starkie, but, as we conceive, er- 
 roneously, that " words are equally actionable, whether the 
 office be lucrative or merely confidential."* Pecuniary 
 
 that occupation. (Dauphin v. Publish. defrauded the public in his dealings 
 
 Co. 18 The Reporter, 10.) with them. It is not necessary for 
 
 ' March v. Davison, 9 Paige, 580, plaintiff to aver that he is any office, 
 
 referring to a statute since repealed. trade, or employment in which he 
 
 2 Yrisarri v. Clement, 2 C. & P. could have defrauded the public. (Tay- 
 223 ; 3 Bing. 432 ; 1 1 Moore, 308 ; lor v. Carr, 3 Up. Can. Q. B. Rep. 
 Greville v. Chapman, i D. & M. 553; 306.) See note to § 190. 
 
 Chenery v. Goodrich, 98 Mass. 224. * Fry v. Bennett. 28 N. Y. 324; 
 
 In Manning v. Clement, 7 Bing. 362; Smith v. Joyce, 12 Barb. 25. See note 
 
 5 M. & P. 211, the plaintiff alleged he i, p. 225. 
 
 wasamanufacturer of bitters, and de- ' i Starkie on Slander, 119. He 
 
 fendant was allowed to introduce evi- states that the whole class of cases in 
 
 dence of the illegality of such manu- which recovery has been had for 
 
 facture (namely, that the alleged bit- words affecting one in office not lu- 
 
 ters were another and a prohibited crative "seems to rest on more dubi- 
 
 article). not as a justification, but in ous principles than any other." At 
 
 contradiction of plaintiff's allegation. page 122 he says- erroneously, as we 
 
 See note to § 302, /oj/. conceive— " the danger of exclusion 
 
 3 Harwood v Astley, 4 Bos. & P. from office gives rise to the action. 
 47- Lewis V. Walter, 4 D. & Ry. 810. And at page 118 he says the ground 
 Sanderson v. Caldwell, 45 N. Y. 398, of action is "somewhat different ac- 
 charees the plaintiff with being a pub- cording as the office is confidential or 
 lie robber— innuendo, he, plaintiff, had lucrative. And at page 124 he says 
 
228 WHAT LANGUAGE IS ACTIONABLE, [CH. VIII. 
 
 loss is the gist of the action for slander or libel (§ 57); 
 and as no pecuniary loss can result from language con- 
 cerning one in an office which yields.no pecuniary emolu- 
 ment, words not otherwise actionable cannot become so, 
 because they concern one in such an office.^ Whatever 
 may have been the doctrine and practice of the Court of 
 the Star-Chamber, or of the common-law courts under the 
 statutes scandalum magnatum, we believe that no court 
 proceeding, according to the common law, and independ- 
 ently of any statute, has sanctioned the doctrine as laid 
 down by Starkie. Wherever language concerning one in 
 an office merely honorary has in a common-law court, and 
 independently of any statute, been held actionable, it will 
 be seen that the language would have been actionable had 
 it been published of an individual as such. 
 
 § 185. Another relation or special character in which 
 one may be injuriously affected by language, is that of 
 partner. Language may concern partners, or one or some 
 of several partners, in their or his individual capacity 
 merely, or it may touch them or him in their or his part- 
 nership business. As respects language concerning one 
 who is a partner, and which concerns him as an individual 
 merely, the fact of his being a partner, unless, perhaps, as 
 affecting the damages, has no significance. Language con- 
 cerning partners in their partnership business may be ac- 
 I tionable per se, or actionable only by reason of the special 
 damage. The language touching the business which would 
 
 "the action appears to extend to all cover if the declaration had averred 
 
 offices of /rust or profit without limit- that he was beneficed, or was in the 
 
 ation, provided they be of a temporal actual receipt of professional temporal 
 
 nature." This word temporal is used emolument, ... as the charge 
 
 as the converse of j;^z>-z?«a/, to exclude would have caused the loss of the 
 
 the ecclesiastical jurisdiction. benefice or the emoluments. In the 
 
 » Gallwey v. Marshall, 9 Ex. 294. absence of any averment of plaintiff 
 
 In that action, the language (oral) im- having any office of temporal (pecuni- 
 
 puted incontinence to a clergyman, ary) profit, we are not satisfied this 
 
 The court, in deciding against the action will lie. There is no authority 
 
 plaintiff, said: "We should have no that it will where there is no actual 
 
 doubt of the plaintiff's right to re- damage." 
 
§ 185.] WHAT LANGUAGE IS ACTIONABLE. 229 
 
 be actionable per se if published concerning one who is 
 not a partner, would be actionable per se as concerning 
 partners or one who is a partner. Actionable language 
 concerning partners, and which touches them in their 
 partnership business, is an injury to their joint business, 
 and is a joint and several injury, for which both may sue 
 jointly or either may sue separately (§ 303). Thus where 
 the language imputed to two persons, who were partners 
 as wool-staplers, that they had been guilty of fraud in a 
 sale of wool, and they sued jointly, alleging special dam- 
 age to their trade, the action was sustained.^ For words 
 charging partners with making an assignment to defraud 
 their creditors, an action by one partner was allowed ; * 
 and where the firm was charged with insolvency, the lan- 
 guage used being ''J. T. & Co. are down," held a joint ac- 
 tion might be maintained.' In such a joint action no 
 damages are recoverable for the injury to the feelings of 
 the partners.* Where language concerns one only of sev- 
 eral partners, but touches him in his partnership business, 
 there is an injury to the partnership business, for which 
 the partner whom the language concerns may sue alone, 
 or all the partners may unite with him. Thus where the 
 language was of one of several partners as bankers, and 
 imputed to him insolvency, and for this he alone brought 
 suit, alleging damage to the partnership business, it was 
 pleaded in abatement that the plaintiff carried on his busi- 
 ness jointly with A. B., and that the alleged damage ac- 
 crued to A. B. jointly with the plaintiff. On general de- 
 murrer the plea was overruled, but a question was raised 
 whether a special denmrrer might not have been interposed 
 
 1 Cook V. Batchelor, 3 Bos. & Pul. Lords Cas. 637 ; Maitland v. Goldney, 
 150; see note to Goldstein v. Foss, 2 2 East, 426; Beardsley v. Tappan, i 
 Car. & P. 252. Blatch. C. C. Rep. 588. See Corpo- 
 
 2 Odiome v. Bacon, 6 Cush. 185. rations. 
 
 ' Titus V. Follett, 2 Hill, 318; and * Haythorn v. Lawson, 3 Car. & 
 
 see Forster v. Lawson, 3 Bing. 452; P. 196; Donague v. Gaffy, 53 Conn. 
 
 Le Fanu v. Malcolmson, ■ i Ho. of 43. 
 
230 WHAT LANGUAGE IS ACTIONABLE. [CH. VIII. 
 
 to the declaration for uniting damages which accrued to 
 the plaintiff with damages which accrued to his partner. 
 In other words, as the damage to the business was jointly 
 to the plaintiff and his partner, was it proper for plaintiif 
 to allege them in his declaration ? It was assumed that on 
 the trial the jury would separate the damages/ and in 
 other cases, one of several partners sustained an action for 
 libel on him in his business.^ Where the language pub- 
 lished purported to give information as to the credit and 
 standing of a mercantile firm, and charged one member 
 with dishonesty, a joint action by all the partners was sus- 
 tained.* Where the partners unite in the action, or where 
 the partner whom the language concerns sues alone, in 
 either case the language being of the kind called action- 
 able per se (§§ 146, 147), the action may be maintained 
 without any allegation or proof of special damage ; * but 
 where a partner whom the language does not personally 
 concern sues alone for language personally concerning his 
 partner, in that case the action cannot be maintained un- 
 less there be an allegation and proof of special damage. 
 A recovery by the partner whom the language personally 
 concerns would not bar an action by his partner, and prob- 
 ably would not bar a separate action by all the partners ; 
 nor would a recovery by all the partners be a bar to a 
 separate action by the partner whom the language person- 
 ally concerns,^ 
 
 § 186. The circumstance of one being heir presump- 
 tive has been held to give an actionable quality to lan- 
 
 1 Robinson v. Marchant, 7 Q- B. a Taylor v. Church, i E. D. Smith, 
 (Adol. & Ell. N. S.) 918. 279; s. C. 8 N. Y. 452. 
 
 2 Fidler v. Delavan, 20 Wend. 57; * Id.; 2 Saund. PI & Ey. 117a, 
 and see Solomons v. Medex, i Stark. 117*, 6th ed.; and see Forster v. Law- 
 R. 191; Harrison v. Bevington, 8 Car. son, 3 Bing. 452: 11 Moore, 360. 
 
 & P. 708; and Davis v. Ruff, i » Taylor w. Church, i E. D. Smith, 
 
 Cheves, 17. This last-named case is 279. 
 commented on in Taylor v. Church, i 
 E. D. Smith, 287. 
 
§ 187.] WHAT LANGUAGE IS ACTIONABLE. 23 1 
 
 guage concerning him in that character. Starkie devotes 
 a chapter to a partial review of the cases in which, on the 
 ground that it may cause his disinherison, it has been held 
 actionable to call a presumptive heir bastard, and he con- 
 cludes that, although such decisions carry the doctrine of 
 presumptive loss to a great extent, they seem to be war- 
 ranted- by the application of sound and general principles. 
 He does not state what those principles are, and for our- 
 selves we can discover no principle which will support 
 such decisions. It certainly is not a necessary consequence 
 that one should disinherit his presumptive heir because it 
 has been said of him that he is a bastard. 
 
 § 187. One being a candidate for an office or for em- 
 ployment does not have the eflFect to make language 
 concerning him in that character actionable per se, other- 
 wise than as it would be actionable per se if it concerned 
 him as an individual merely." If the language concerning 
 a candidate for office or employment occasions him special 
 damage, as the failure to obtain such office or employ- 
 ment, it will be actionable ; thus if a clergyman is to be 
 presented to a benefice, and one to defeat him says to the 
 patron : " He is a heretic, or a bastard, or excommuni- 
 cated," and he thereby loses his presentment, he may have 
 his action ; * and where a lawyer was a candidate for the 
 office of steward of a corporation, and the electors being 
 assembled to make an election, one of them said to the 
 others : " He [said candidate] is an ignorant man and not 
 fit for the place," by means of which he was refused, the 
 court inclined to the opinion that the words were action- 
 able, but no judgment was given.* The fact of one being 
 
 1 Powers V. Dubois, 17 Wend. 63; » Sanderson v. Ruddes, Mar. 146. 
 
 Prinn V. Howe, i Brown's Cas. Pari. Words which will cause others not to> 
 
 64; Littlejohn V. Greeley, 13 Abb. vote for him of whom they were 
 
 Prac. Rep. 41 ; Hunt v. Bennett, 4 E. spoken, at an election at which he is 
 
 D.Smith, 649; 19 N. Y. 173. a candidate, are actionable. (Brewer 
 
 * Davis -v. Gardiner, 4 Coke, 16. v. Weakley, 2 Overt. 99.) 
 
232 WHAT LANGUAGE IS ACTIONABLE. [CH. VIIL 
 
 a candidate for an office or for employment, in many in- 
 stances affords a license or legal excuse for publishing lan- 
 guage concerning him as such candidate, for which pub- 
 lication there would be no legal excuse did he not occupy 
 the position of such a candidate. The consideration of 
 language concerning one as a candidate for office or for 
 employment falls more appropriately under the head of 
 legal excuses or defenses, and it will be there discussed. 
 (§ 247.) 
 
 § 188. As regards the kind of language concerning one 
 in an occupation or office which will confer a right of 
 action, it has been said : " Words are actionable when 
 spoken of one in an office of profit, which may probably 
 occasion the loss of his office, or where spoken of persons 
 touching their respective professions, trades, and business, 
 and do or may probably tend to their damage." ^ " If the 
 words be oi probable ill consequence to a person in a trade 
 or profession or an office." * Bayley, B., objected to this 
 rule, that the words probably and probable were too indefi- 
 nite, unless considered equivalent to " having a natural 
 tendency to," and as confined within the limits of showing 
 the want of some necessary qualification or some miscon- 
 duct in the office, it went beyond what the authorities war- 
 ranted.* But, " How is a natural stronger (more defi- 
 nite) than ^. probable tendency?"* To maintain an action 
 for words spoken, they must impute some matter in rela- 
 tion to the party's particular trade or vocation, and which, 
 if true, would render him unworthy of employment* 
 " Every authority which I have been able to find either 
 shows the want of some general requisite, as honesty, 
 
 ^ De Grey, Ch. J., Onslow 7'. * Williams, J.. James v. Brook, 9 
 
 Home, 3 Wils. 186. Q- B. 7 ; and see Sibley v. Tomlins, 4 
 
 * Same case, as reported 2 W. Bl. Tyrw. 90. 
 R- 753- " Kinney v. Nash, 3 N. Y. 177; 
 
 = Lumby v. AUday, i Cr. & J. 301 ; Fowles v. Bowen, 30 N. Y. 24; Cruik- 
 
 I Tyrw. 217. shanks v. Gordon, 48 Hun, 308. 
 
§ 1 88.] WHAT LANGUAGE IS ACTIONABLE. 
 
 233 
 
 capacity, fidelity, &c., or connects the imputation with the 
 plaintiffs office, trade, or business ; " ^ or his office of trust 
 and place of honor, provided they be of a temporal nature ; * 
 and '' We ought not to extend the limits of actions of this 
 nature beyond those laid down by our predecessors."^ 
 Although every lawful lucrative occupation is, as regards 
 the actionable quality of language, governed by the same 
 general principles, yet the kind of occupation affects the 
 application of the principles, and the identical language 
 which may be not actionable as concerning one in some 
 certain occupation, may be actionable as concerning one 
 in some other occupation. The test in every case by 
 which to decide if the language be actionable, meaning 
 actionable per se, is, does it necessarily occasion damage ? 
 and because the language which may necessarily occasion 
 damage in one occupation will not have that effect in 
 some other, it happens that in every case regard must be 
 had to the character of the occupation. Numerous illus- 
 trations of this are to be found in the subsequent part of 
 -this chapter. We select one instance : In the case of a 
 
 ' Bayley, B., Lumby v. AUday, i rity, or anything which amounts to 
 
 Cr. & J. 301 ; I TjrwT. 217; approved it. But if the office be an office of 
 
 Ayre v. Craven, 4 Nev. & M. 220; and honor, it is said no action lies except 
 
 see Jones v. Littler, 7 M. & W. 423 ; the import of the words be a charge 
 
 Southee v. Denny, i Ex. 196 ; James of dishonesty. In either case, charg- 
 
 1/. Brook, 9 Q. B. 7. The words: A., ing a man with inclinations and prin- 
 
 my successor in business, is not legally ciples which show him unfit for an 
 
 responsible for his contracts, as he is office of trust or honor is libelous, 
 
 yet a minor, under 21 years of age. A without charging him with any act. 
 
 word to the wise is sufficient, action- Any imputations against a person 
 
 able. (Hays v. Mather, 1 5 Bradw. who is in the enjoyment of an office, 
 
 [111.] 30.) either public or private, of honor, 
 
 * How V. Prinn, Holt, 652; SO. profit, or trust, which import a 
 
 Prinn V. Howe, i Brown's Cas. Pari. charge of unfitness to administer the 
 
 64; I Starkie on Slander, 124. "A duty of the office, are libelous. (Holt 
 
 distinction is usually taken between an on Libel, 208.) Words which charge 
 
 office of profit and an office of honor, a breach of a public trust are action- 
 
 but the distinction is not a sound one, able. (See Kinney v. Nash, 3 N. Y. 
 
 and though it may apply to an action 178; Taylor v. Carr, 3 Up. Can. Q. 
 
 for words, it does not extend to an B. Rep. 306.) 
 
 action for libel." If a person be in an ^ Pollock, Ch. B., Gallwey v. Mar- 
 office of profit, it, is libelous to impute shall, 9 Ex. 294. 
 to him either inability, want of integ- 
 
234 WHAT LANGUAGE IS ACTIONABLE, [cH. VIIL 
 
 merchant, the keeping of account books is or is considered 
 to be a requisite to the successful prosecution of his busi- 
 ness, and therefore to charge one who is a merchant with 
 keeping false books has been held to be actionable,^ but 
 the like charge concerning a farmer was held not action- 
 able, because the keeping of books was not considered 
 requisite to the conduct of his business, although in addi- 
 tion to his business of farmer he sawed logs for reward 
 and dealt in lumber.^ 
 
 § 189. One of the essential elements of the actionable 
 quality of language concerning one in his occupation or 
 office, is the fact that the person whom the language con- 
 cerns is in such occupation or office (§ 181); it necessarily 
 follows that to render language concerning one in his 
 occupation or office actionable per se, the person whom 
 the language concerns must follow such occupation or 
 hold such office at the time the language is published. 
 No 'language concerning one in any special character, 
 published after he has ceased to occupy that character, can 
 be actionable as concerning him in such special character. 
 The general rule is that in an action for language concern- 
 ing one in a special character, it must be shown that he 
 
 ' Backus V. Richardson, 5 Johns. iff; and in Todd v. Hastings (Vent. 
 
 476. And the like charge against a 117), it was held that to charge a 
 
 blacksmith held actionable. (Burtch trader with keeping ' '■false books " 
 
 V. Nickerson, 17 Johns. 217; and see would be construed to mean "false 
 
 Crawfoot v. Dale, Vent. 263; and debt-\io<:>Ys." Keeping books of ac- 
 
 Viner's Abr. Act. for Words, U, a, count is necessary in this countrj', 
 
 22.) where credit is generally given, as 
 
 ^ Rathbun v. Emigh, 6 Wend. 407. well by the mechanic as by the mer- 
 Where the defendant said of the chant and professional man. (Burtch 
 plaintiff, a mercer, " He hath deceived v. Nickerson, 17 Johns. 217.) Me- 
 in a reckoning, and his debt-book chanics " generally sell on credit, and 
 which he keepeth is a false debt- their success and reputation depend 
 book," judgment went against the upon their character for fair dealing." 
 plaintiff, because the book might be (Ralhbun v. Emigh, 6 Wend. 407.) 
 kept by the plaintiff's servant, and he, Another reason why a charge of keep- 
 plaintiff, not have knowledge of it. ing false books of account was held 
 (Brook's Case, Godb. 231.) In Back- actionable was, that such books, if gen- 
 us V. Richardson (5 Johns. 476), the erally reputed correct, were receivable 
 court said the words " you keep false as evidence of their contents. (Craw- 
 books," implied knowledge in plaint- foot v. Dale, Vent. 263.) 
 
§ iSg.] WHAT LANGUAGE IS ACTIONABLE. 235 
 
 maintained that special character at the time the language 
 was published (§ 386).' Where the plaintiff had been 
 commissioner to make a treaty with the Indians, and after 
 his commission had terminated, the defendant charged 
 him orally with hiring and bribing the Indians to sign 
 such treaty, held that no action could be maintained.* 
 Where plaintiff was twice constable, once in 1843 ^"d 
 again in 1846, and during the latter period one said of him 
 orally that, while constable in 1843, he had made a false 
 return, held that the words would not support an action.** 
 If a man has been a merchant and leaves off merchandis- 
 ing for a time, and another calls him bankrupt, an action 
 lies ; for though he does not use the trade of a merchant 
 at the time of the speaking the words, yet he remains a 
 merchant^ and may resume the trade at his pleasure;* but 
 where the plaintiff alleged he had for many years used the 
 trade of a drover, but without alleging he was a drover at 
 the time of the publication, it was held he did not show a 
 cause of action " Whether or not the plaintiff occupied 
 the special character alleged, and whether or not he con- 
 tinued in such special character until the time of the pub- 
 lication complained against, are questions of fact* A 
 
 * Smayles v. Smith, Brownl. i ; But it was said plaintiff might have 
 
 Reignald's Case, Cro. Car. 563 ; Jor- recovererl on proof of special damage, 
 dan 7/. Lyster, Cro. Eliz. 273; Dotter ■* Gardyner v. Hopwood, cited 
 
 V. Ford, Id. 794; Bellamy v. Burch, Yelv. 159; and see Vin. Abr. Act. for 
 
 16 M. & W. 590; Allen v. Hillman, Words, U, a, 19. Publishing of a 
 
 12 Pick. loi ; Forward v. Adams, 7 drover, he is bankrupt, actionable. 
 
 Wend. 204; Windsor v. Oliver, 41 (Lewis v. Hawley, 2 Day [Conn.], 
 
 Ga. 538; Dicken v. Sheperd, 22 IMd. 497.) An attorney who has not taken 
 
 399; Oram v. Franklin, 5 Blackf. 42; out his annual certificate, although he 
 
 Harris v. Bailey,8 New Hamp. 216. See is by statute disabled from recovering 
 
 2 Vent. 366, where it is said, " Where his fees, nevertheless continues an at- 
 
 a man had been in an office of trust, torney, and may maintain an action 
 
 to say he behaved himself corruptly for language concerning him as an at- 
 
 in it, as it imported great scandal, so torney. (Jones v. Stevens. 1 1 Price, 
 
 it might prevent his coming into that 235 ; Pearce v. Whale, 5 B. & C. 38 ; 
 
 or the like office again." (See § 290, Morris v. Langdale, 2 Bos. & P. 284; 
 
 post.) see § 183, ante.) 
 
 « Forward v. Adams, 7 Wend. "^ Collis v. Malin, Cro. Car. 282. 
 
 204. ° Gribble v. Pioneer Press Co. 34 
 
 ' Edwards v. Howell, 10 Ired. 211. Minn. 342. 
 
236 WHAT LANGUAGE IS ACTIONABLE. [CH. VIIL 
 
 person shown once to have been in any certain office, pro- 
 fession, or trade, is presumed to continue therein.^ The 
 decisions which are sometimes referred to as exceptions 
 to the rule that the person whom the language concerns 
 must maintain his special character at the time the lan- 
 guage is published, are really not exceptions to that rule ; 
 they are cases which follow another and different rule be- 
 cause comprehended in a different class. On examination 
 they will be found to range themselves under the division 
 relating to language concerning an individual as such ; and 
 the true ground on which in such cases the actions were 
 sustained, was of the language being actionable as affect- 
 ing the individual as such, without regard to his having 
 occupied the special character to which the language refers. 
 Thus where one had been senator, and after his term of 
 office had ceased it was published of him in writing that 
 he had been guilty of corrupt conduct in his office of sen- 
 ator, the action was sustained;* and so where one had 
 been a constable, and after he quitted that office it was 
 said of him that, while in office, he was a healer of felons, 
 or of one that, when in office as a justice, he was a bribing 
 justice.* 
 
 1 Tuthil t/. Milton, Yelv. 1 58 ; Col- Gordon's Case, Leach Cr. L. 515; 
 lis V. Malin, Cro. Car. 282 : Jordan v. Rex v. Shelly, Id. 340, n.) 
 Lyster, Cro. Eliz. 273; Moore v. ^ Cramer ?/. Riggs, 17 Wend. 209; 
 Synne, 2 Rolle R. 84; Dod z/. Robin- and see 7 Wend. 204; Wilson v. 
 son, All. 63; Forward v. Adams, 7 Noonan, 23 Wis. 105; Littlejohn v. 
 Wend. 204; Bellamy 7/. Burch, 16 M. Greeley, 13 Abb. Prac. Rep. 41; 
 & W. 590; Fry V. Bennett, 28 N. Y. Walden v. Mitchell, 2 Vent. 266; 
 324; but see McLeod v. Wakley, 3 Russell t/. Anthony, 21 Kans. 450. 
 Car. & P. 311. Where a plaintiff » Pridham v. Tucker, Yelv. 153; 
 avers generally that he filled any of- and see Herle v. Osgood, i Vent. 50. 
 fice, or exercised any trade, his filling To say of a commissioner appointed 
 such office or being of such trade is to take testimony, he hath taken 
 sufficiently proved by evidence of his bribes (Moore v. Foster, Cro. Jac. 65), 
 having acted in such office or carried and charging an officer of a court of 
 on such trade. And in the case of all record with taking bribes, held action- 
 peace officers, justices of the peace, able. (Anon. Dal. 43 ; Nile v. Swans- 
 constables, &c., it is sufficient to prove ton, Yelv. 142.) Charge that plaint- 
 that ttiey acted in those characters, iff, a prosecuting attorney, refused to 
 without proving their appointments. prosecute a suspected murderer, be- 
 (Berryman v. Wise, 4 T. R. 366; cause the law forbade his taking 
 
§ I90.] 
 
 WHAT LANGUAGE IS ACTIONABLE. 
 
 237 
 
 § 190. To render language concerning one in a spe- 
 cial character or relation actionable, " it must touch 
 him " in that special character or relation ; for, unless it 
 does, it must be judged in regard to its actionable quality 
 by the rules which apply to language concerning an 
 individual as such.^ That the language " must touch " 
 the person whom it concerns in his special character, 
 means only that it must concern him in such special 
 character, and affect him therein. It is not sufficient 
 that the language disparages him generally, or that his 
 general reputation is thereby affected ; ^ it must be such 
 as, if true, would disqualify him or render him less fit 
 properly to fulfill the duties incident to the special charac- 
 ter he has assumed.* It is not enough that the language 
 "tends to injure the person in his office, profession or 
 trade, it must be spoken [published] of him in his official 
 or business character."* It must " touch him in his office. 
 
 bribes, held actionable per se (The 
 People V. Jones, 35 No. West. Rep. 
 419) ; and so to publish of an attorney 
 for a city, that he abandoned his cli- 
 ent's cause by resigning his office in 
 the midst of a litigation brought on 
 by his advice, to the detriment of his 
 client. (Hetheringfton v. Sterry, 28 
 Kans. 426.) 
 
 ^ Publishing of a bank teller 
 [plaintiff] that he was suffering from 
 overwork and his mental condition was 
 not entirely good, that there had been 
 trouble in the bank's affairs, occa- 
 sioned by such mental derangement 
 of its teller, and that the statement of 
 the teller, when probably he was not 
 responsible for what he said, had 
 caused bad remarks concerning the 
 bank, held not libelous per se. 
 (Moore v. Francis, 20 N. Y. St. Rep. 
 641.) That the language did not 
 affect him in his occupation of bank 
 teller. (Id. See in note to § 197, 
 post:) 
 
 » Sanderson v. Caldwell, 45 N. 
 Y. 398. This implies, of course, that 
 the language is not such as would be 
 actionable if published of one individ- 
 
 ually. Language actionable of an in- 
 dividual is not now the subject of 
 consideration. (See § 179, ante.) 
 Charging one to be untruthful, pro- 
 fane, and a libertine, held not to affect 
 a man in his profession or occupation. 
 (Com'wealth v. Wardwell, 136 Mass. 
 
 164) 
 
 ^ To publish of an architect,. " 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 calamity," held ac- 
 tionable per se. (Clifford v. Cochrane, 
 10 Bradw. [111.] 570.) So of a state- 
 ment by the owner of a vessel that the 
 pilot [plaintiff] had been paid to run 
 the vessel ashore (Monsette v. Jodoin, 
 12 Low. Can. Rep. 333), and so im- 
 puting to an actor general carelessness 
 as to his dress and delivery. (Ireland 
 V. King, 5 A. J. R. 24.) 
 
 * Van Tassel v. Capron, i Denio, 
 250; Sibley v. Tomlins, 4 Tyrw. 90; 
 Doyley v. Roberts, 3 Bing. N. C. 835 ; 
 Red way v. Gray, 31 Vt. (2 Shaw) 
 292; Buck V. Hersey, 31 Maine (i 
 Red.), 558; Sayers ?y. Bachelor, 7 Ir. 
 Jur. O. S. 257 ; MacDougall v. Tyrrell, 
 
238 
 
 WHAT LANGUAGE IS ACTIONABLE. [CH. VIII. 
 
 profession, or trade." ^ Thus, saying of a justice of the 
 peace, " There is a combined company here to cheat 
 strangers, and Squire Van Tassel has a hand in it. I don't 
 see why he did not tell me the execution had not been 
 returned in time, so that I could sue the constable;"* or, 
 " Squire Oakley is a damned rogue,"* was held to impute 
 misconduct as a man and not as a magistrate, and not to 
 be actionable. Where plaintiff alleged that he was a phy- 
 sician and coroner, and that defendant published concern- 
 ing him : That a stiffened body was found in the highway; 
 to all appearances the man was frozen ; there were no 
 
 I Ir. Jur. N. S. 465. It seems, how- 
 ever, that where one is in business, 
 words spoken of him in his private 
 character will bear an action, if they 
 are such as must necessarily affect 
 him in his business ; thus to say of a 
 brewer, he had been locked up in a 
 sponging-house (a private jail kept by 
 deputy sheriffs, where persons arrested 
 for debt, on paying for the indulg- 
 ence, have the option of remaining in- 
 stead of going to the debtor's prison), 
 was held actionable, because the 
 words were held necessarily to affect 
 his credit as a trader. (Jones v. Litt- 
 ler, 7 M. & W. 423 ; and see Bell v. 
 Thatcher, Freem. 277 ; Fowles v. 
 Bowen, 30 N. Y. 23; Starr v. Gard- 
 ner, 6 Up. Can. Q. B. R. O. S. 512; 
 Taylor v. Carr, 3 Up. Can. Q. B. R. 
 306.) So in Davis v. Ruff (i Cheves, 
 17), it is said that words affecting the 
 pecuniary credit of a merchant need 
 not be averred nor proved to have 
 been used in relation to his occupation 
 as a merchant, for, in their nature, 
 they strike at the root of mercantile 
 character. 
 
 1 Kinney v. Nash, 3 N. Y. 177; 
 Van Tassel v. Capron, i Denio, 250; 
 Comyn's Dig. Act. for Defam. D, 27; 
 Van Epps v. Jones, 50 Ga. 238. 
 Whether words were spoken of a man 
 in certain capacity, is a question of 
 fact for the jury. (Skinner v. Grant, 
 12 Vt. 456; Sibley v. Tomlins, 4 Tyrw. 
 90; Doyley v. Roberts, 3 Bing. N. C. 
 835 ; Tomlinson v, Brittlebank, I Har. 
 & W. 573-) 
 
 ' Van Tassel v. Capron, I Denio, 
 250. 
 
 ' Oakley v. Farrington, I Johns. 
 Cas. 129; and held not actionable to 
 say of a justice: "He is a logger- 
 headed, a slouch-headed, and a bur- 
 sen-bellied hound " (i Keb. 629); or: 
 " If he is a justice he is a rogue " (Rex 
 v. Pocock, 2 Stra. 1158); but these 
 words of a justice of the peace : •' He 
 is a damned fool of a justice " (Spie- 
 ring V. Andrae, 45 Wis. 330) ; or, " G. 
 perjured himself in deciding the case 
 against me contrary to all law and 
 evidence, &c. It is the damnedest er- 
 roneous decision I ever saw any jus- 
 tice give; it was a damned outrage, 
 and was done in spite." held to im- 
 pute a violation of plaintiff's judicial 
 oath, and to be actionable per se. 
 (Gove V. Blethen, 21 Minn. 80.) Call- 
 ing one who is a cooper " varlet and 
 knave " is not actionable — the words 
 do not touch him in his trade. (Cotes 
 V. Ketle, Cro. Jac. 204.) So saying 
 of a land speculator, " He cheated me 
 out of 100 acres of land," held not to 
 touch him in his trade, and not ac- 
 tionable. (Fellowes v. Hunter, 20 
 Up. Can. Q. B. R. 382.) But the 
 words : " You are a deceitful rascal, 
 villain, and liar; I would not trust 
 you with an auctioneer's license. You 
 robbed a man you called your friend, 
 and not satisfied with /lo, you robbed 
 him of £10 a fortnight ago," spoken 
 of an auctioneer, held actionable. 
 (Ramsdale v. Greenacre, i Fos. & F. 
 61.) 
 
§ igO.] WHAT LANGUAGE IS ACTIONABLE. 
 
 239 
 
 signs of life. Coroner Purdy was notified. Every one 
 pronounced him dead— frozen to death. Coroner t'urdy 
 summoned a jury, and began to inquire according to law 
 how the man came to his death. Dr. Lester looked at 
 the supposed remains, and after a careful examination said 
 the man was alive. They laughed at him, but he insisted ; 
 the body was removed, the inquest was interrupted, and 
 perhaps a funeral averted. Under the treatment of Dr. 
 Lester the man was restored to consciousness, and it was 
 stated he had to thank Dr. Lester for not being buried 
 alive. Held that the words did not touch plaintiff in his 
 character of a physician, and were not actionable.^ For a 
 like reason it was held not actionable to say of one who 
 kept a public garden, " He is a desperate man, a danger- 
 ous man. I am afraid to go to his house alone; I am 
 afraid of my life;"^ and these words of a pork butcher, 
 " Who stole F.'s pigs.? You did, you thief; you poisoned 
 them with mustard and brimstone," were, after verdict, 
 held not to have any necessary connection with his trade, 
 and were not calculated to injure him in it, and therefore 
 not actionable.* The words, " He has defrauded his cred- 
 itors, and been horsewhipped off the course at D.," spoken 
 of an attorney, but not in his character of an attorney, held 
 not actionable.* And the same decision was made in ref- 
 erence to these words spoken of an attorney : " I have 
 taken out a judge's order to tax A.'s bill; I will bring him 
 to book, and have him struck off the roll."^ " I will take 
 him to Bow street on a charge of forgery."^ And saying 
 
 ' Purdy V. Rochester Print. Co. 96 having altered a promissory note, with 
 
 N. Y. 272. an innuendo that plaintiff was guilty 
 
 ' Ireland v. McGarvish, i Sandf. of disreputable practice, was, on de- 
 
 Superior Ct. 155. murrer, held actionable. (Warton v. 
 
 ' Sibley v. Tomlins, 4 Tyrw. 90. Searing, i Vict. Law Rep. 122.) The 
 
 The jury found that the words were court added, it was very difficult since 
 
 not intended to impute felony. statute 28 Vict, to sustain a demurrer 
 
 * Doyley v. Roberts, 3 Bing. N. C. to a declaration. 
 
 835. ' " Harrison v. King, 4 Price, 46; 7 
 
 » Phillips V. Jansen, 2 Esp. Cas. Taunt. 431. 
 624. A charge against an attorney of 
 
240 WHAT LANGUAGE IS ACTIONABLE. [cH. VIII. 
 
 of a livery-Stable keeper, " You are a regular prover under 
 bankruptcy ; you are a regular bankrupt maker ; if it was 
 not for some of your neighbors, your shop would look 
 queer," was held not to be a charge in the way of his 
 trade, nor actionable.^ Where words imputing inconti- 
 nency, and not in themselves actionable, were spoken of 
 one in respect of his situation as "clerk in a gas company, 
 held that not imputing any misconduct in his capacity of 
 clerk, they were not actionable.* A charge against the 
 plaintiif, said to be spoken of him in his trade of a stay- 
 maker, of criminal intercourse with a female employed by 
 him in his trade, held not to affect him in his trade, and 
 not actionable.^ And so it was held that a charge of 
 adultery against a physician did not necessarily touch him 
 in his profession, and was not actionable without its being 
 shown that the charge was connected with the plaintiff's 
 profession;* and the same was held of these words of a 
 physician : " He is so steady drunk he cannot get business 
 any more;"^ or, "he is a two-penny bleeder ;" * or, "he 
 gave my child too much mercury ; " or, " he made up the 
 medicines wrong through jealousy, because I would not 
 allow him to use his own judgment." ' Saying of a wom- 
 an who gained her livelihood by teaching girls to dance, 
 " She is as much a man as I am ; she got I. S. with child ; 
 she is an hermaphrodite," was held not actionable, no 
 special damage being properly alleged, and because girls 
 
 1 Alexander v. Angle, i Cr. & J. with adultery; but that case, it was 
 
 143; I Tyrw. 9; 7 Bing. 123. said in Gallwey v. Marshall (9 Ex. 
 
 » Lumby v. AUday, i Cr. & J. 301 ; 294), has been overruled; and saying 
 
 I Tyrw. 217. The words were : " You of a clergyman that he had two wives 
 
 are a fellow, a disgrace to the town, was held actionable. (Nicholson v. 
 
 unfit to hold your situation for your Lyne, Cro. Eliz. 94; see § 195, ^ost:) 
 
 conduct with whores." Charge of drunkenness against a min- 
 
 3 Brayne v. Cooper, 5 M. & W. ister {ante, p. 199, note 7). 
 249- ' Anon, i Ham. 83, note. 
 
 * Ayre v. Craven, 2 Adol. & El. 2 ; • Foster v. Small, 3 Whart. 138. 
 
 4 Nev. & M. 220. In Parrett v. Car- ' Edsall v. Russell, 4 M. & G. 
 
 penter (Noy, 64), it was held not ac- 1090. 
 tionable per se to charge a clergyman 
 
I90.J 
 
 WHAT LANGUAGE IS ACTIONABLE. 
 
 241 
 
 are taught to dance as frequently by men as by women.^ 
 It was held actionable to call a schoolmistress a dirty slut,^ 
 or with being insane,^ or to charge by writing a school- 
 teacher with making a false report to the school visitors, 
 and with general untruthfulness* or with want of chastity.^ 
 It was held actionable to say of a shop-keeper, he had 
 nothing but rotten goods in his shop ; * or of a druggist he 
 sold counterfeit Harlaem oil ;'' or to charge a person with 
 selling milk which is impure by reason of the fact that a 
 diseased horse is allowed to run in the pasture with his 
 cows, is libelous per se, if it appears that the impurity is a 
 necessary consequence of the facts respecting the horse, as 
 it charges him with a misdemeanor ; ^ or to charge in 
 writing that the place of business of a trader (a coach- 
 builder) was not respectable ; " or, that a ship of which the 
 plaintiff was owner and master, and which he had adver- 
 tised for a voyage to the East Indies, was not seaworthy, 
 and that Jews had bought her to take out convicts.^" Say- 
 
 ^ Wetherhead v. Armitage, 2 Lev. 
 233. In Malone v. Stewart (15 Ohio, 
 319), it was held actionable to call a 
 married woman an hermaphrodite. 
 
 ^ Wilson V. Runyon, Wright, 651. 
 To charge that a school teacher has 
 shown herself tricky and unreliable, 
 and destitute of the first requirements 
 of a teacher, held actionable. (Allen 
 V. Dixon, 34 Alb. L. J. 57 ; S. C. Dix- 
 on V. Allen, 69 Cal. 527.) 
 
 ^ Morgan v. Lingen, 8 Law Times, 
 N. S. 800. See ante, p. 209, notes 7 
 and 8. 
 
 * Lindley v. Horton, 27 Conn. 58. 
 
 ' Bodwell V. Osgood, 3 Pick. 379. 
 
 f Burnett v. Wells, 12 Mod. 420; 
 see §§ 204, 205, ^ost. 
 
 ' Kimm v. Steketee, 48 Mich. 322. 
 
 " Brooks V. Harrison, 91 N. Y. 83. 
 
 9 Barrett 7/. Long, 3 Ho. Lords 
 Cas. 395. 
 
 >" Ingram v. Lawson, 6 Bing. N. 
 C. 212; 8 Sc. 775. The words were 
 
 held to be more than a libel on the 
 ship, and to constitute a libel on the 
 plaintiff in his trade, for which he 
 might recover without proof of malice 
 or special damage. Defendant having 
 published concerning an article man- 
 ufactured by plaintiffs (" The bag of 
 bags "), that its name was ' ' very 
 silly, very slangy, and very vulgar," 
 and that "' it has been forced upon the 
 notice of the public ad nauseam; " this 
 was charged as a libel on plaintiffs in 
 their business, and as the manufac- 
 turers and sellers of said article. On 
 demurrer to the declaration, held by 
 Mellor and Hannen, JJ., that whether 
 or not there was an imputation upon 
 the plaintiffs was for the jury, and 
 overruled the'demurrer ; held by Lush, 
 J., that the demurrer was well taken, 
 and that there was no cause of action 
 disclosed by the declaration. (Jenner 
 V. A'Beckett, 25 Law Times, N. S. 
 464.) See^osi, note to § 248. 
 
 16 
 
242 
 
 WHAT LANGUAGE IS ACTIONABLE, [CH. VIII. 
 
 ing of an innkeeper, " You have stolen goods in your 
 house, and you know it," held not actionable.^ 
 
 § 191. In those trades or professions in which, ordinar- 
 ily, credit is essential to their successful prosecution, their 
 language is actionable per se which imputes to one in any 
 such trade or profession, a want of credit^ or responsibility 
 or insolvency, past, present, or future;^ as to say of a 
 tradesman, He is not able to pay his debts ; or, He owes 
 more than he is worth ; * he will break shortly.® He is 
 
 1 Because not equivalent to a 
 charge of concealing stolen goods. 
 Patterson v. Collins, 1 1 Up. Can. Q. 
 
 B. 63; and see ante, note 6, p. 193. 
 
 2 Defendant wrote to a dealer. For 
 the purpose of giving a correct stand- 
 ing upon our Commercial Register of 
 N. (plaintiff, a merchant) we would 
 ask you in confidence if you are selling 
 him and to what extent he is indebted 
 to you, held not to impute a want of 
 credit and not actionable. (Newell v. 
 How, 31 Minn. 235.) 
 
 Defendant published what he des- 
 ignated a daily list of changes, contain- 
 ing a list of transfers of property, 
 chattel mortgage, etc., and under the 
 head of " chattels " were the words, 
 " Newbold & Sons [plaintiffs] to J. R. 
 Bums." For this publication plaintiffs 
 sued, alleging special damage, held 
 the publication, although untrue, was 
 not actionable per se, and no proof 
 could be given of general damage. 
 (Newbold v. Bradstreet, 57 Md. 38.) 
 See note to § 197, post, and § 229. 
 
 ^ Leycroft v. Dunker, Cro. Car. 
 317; Harrison v. Thomborough, 10 
 Mod. 196; Southam v. Allen, T. 
 Raym. 231 ; Sewallz/. Catlin, 3 Wend. 
 291 ; Read v. Hudson, i Ld. Raym. 
 610; Ostrom V. Calkins, 5 Wend. 263; 
 Davis V. Lewis, 7 T. R. 17; Dobson 
 V. Thomistone,, 3 Mod. 112; Chap- 
 man V. Lamphire, 3 Mod. 155: Mott 
 z/.Comstock, 7 Cow. 654; Whittaker 
 V. Bradley, 7 D. & R. 649; s. C. Whit- 
 tington V. Gladwin, 5 B. & C. 180; 2 
 
 C. & P. 146 ; Lewis v. Hawley, 2 Day 
 [Conn.], 495 ; Anon. Lofft, 322 ; Hull 
 «/. Smith, I M. &S. 287; Elsew. Ferris, 
 
 Anthon, 36; Brown v. Smith, 13 C. B. 
 596; Jones V. Littler, 7 M. & W. 423; 
 Carpenter v. Dennis, 3 Sandf. 305; 
 Phillips z/. Hoefer, i Penn. St. 62; Pret- 
 tyman v. Shockley, 4 Harring. 112; 
 Griffiths V. Lewis, 15 Law Jour. Q. 
 
 B. 249 ; Erber v. Dun, 1-2 Fed. Rep. 
 527. Defendant published a periodi- 
 cal which, among other things, con- 
 tained a heading, " Dissolutions of 
 partnership," also a heading, "Meet- 
 ings of creditors under bankrupt act." 
 Under each heading was a list intend- 
 ed to be the one of the names of 
 firms dissolved, and the other of 
 the names of bankrupts as to whose 
 estates meetings were to be held. The 
 plaintiffs firm had been dissolved, and 
 the name of the firm by mistake, 
 was put in the list under the head of 
 "Meetings of creditors,"— held ac- 
 tionable. (Shepheard v. Whittaker, 
 L. R. 10 C. P. 502.) See also Stubbs 
 V. Marsh, 15 Law Times, 312, and in 
 note to § 329, post. 
 
 * Vin. Abr. Act. for Words, U, a. 
 II, 12, 13, 20, 21, and to publish in 
 writing concerning one engaged in 
 business in which credit was essential, 
 ' ' Had to hold over a few days for the 
 accommodation of L." [plaintiff]. 
 (Lewis V. Chapman, 19 Barb. 252; S. 
 
 C. 16 N. Y. 369; and see Robinson v. 
 Merchant, 7 Q. B. 918; Marzetti v. 
 Williams, i B. & Ad. 415.) 
 
 ^ Hill's Case, Lat. 114; Dobson v. 
 Thomistone, 3 Mod. 112. He is off, 
 of a merchant, actionable without an 
 innuendo. (Black v. Holmes, I Fox 
 & Sm. 28 ) 
 
§ I9I-] 
 
 WHAT LANGUAGE IS ACTIONABLE. 
 
 243 
 
 a pitiful fellow and a rogue ; he compounded his debts at 
 5^-. in the pound.^ He is indebted to me and if he does 
 not come and make terms with me, I will make a bank- 
 rupt of him and ruin him.^ He is a bankrupt/ He 
 was a bankrupt/ He is a bankrupt, and unable to 
 pay his just debts/ The sheriff will sell him out one 
 of these days, and claims against him not sued will be lost/ 
 He must fail ; his time is come/ He is not worth a penny 
 and will run away/ He will be a bankrupt/ He is next 
 door to breaking/" He is broken and run away, and will 
 never return/^ I heard he was run away/^ You are a de- 
 faulter/* I have heard of no failures, but understand 
 there is trouble with S." Two dyers are gone off, and for 
 
 1 Spoken of a pawnbroker, and 
 special damage alleged. (Stanton v. 
 Smith, 2 Ld. Raym. 1480.) This case 
 was questioned (3 Bing. N. C. 840), 
 but sustained. (Jones v. Littler, 7 M. 
 & W. 423.) 
 
 ^ Brown v. Smith, 13 C. B. 596. 
 
 ' Spoken of a grazier. (Anon, i 
 Bulst. 40.) Of a dyer. (Squire v. 
 Johns, Cro. Jac. 558.) Of a shoe- 
 maker, who bought and sold leather. 
 (Stanley v. Osbaston, Cro. Eliz. 268; 
 and see Vin. Abr. Act. for Words, U, 
 a, 18, 19, 35, 36, 38, I, a.-) 
 
 * Hall V. Smith, i M. & S. 287. 
 
 ' Spoken of a drover, whose busi- 
 ness was to purchase droves of cattle 
 and drive them to market and sell them. 
 (Lewis V. Hawley, 2 Day [Conn.], 495.) 
 An innkeeper is a trader. (Ombony v. 
 Jones, 19 N. Y. 241.) The words, 
 " You have been a pauper ever since 
 you have lived in the parish ; you are 
 now a pauper. I have paid £flo a 
 year towards your maintenance ; you 
 will be in the bankrupt list in less than 
 twelve months," spoken of an inn- 
 keeper, held actionable. (Whittington 
 V. Gladwin, 5 B. & C. 180; 2 Car. & 
 P. 146 ; S. C. Whittaker v. Bradley, 7 
 D. & R. 649.) So it is actionable to 
 say of an innkeeper, fie is broke, and 
 there is neither entertainment for man 
 nor horse. (Southam v. Allen, T. 
 Raym. 231), or to say. He kept no ac- 
 commodations, and a person could not 
 
 get a decent meal or a decent bed in 
 his house. (Trimmer v. Hiscock, 27 
 Hun, 364.) See Wallace v. Bennett, i 
 Abb. N. C. 478. 
 
 ^ Spoken of a farmer. (Phillips v. 
 Hoeffer, i Penn. St. 62.) 
 
 ' Spoken of a distiller, the course 
 of whose business was to purchase 
 grain on credit. (Ostrom v. Calkins, 
 S Wend. 263.) 
 
 ' Anon, Lofft, 322. He is about 
 to run away and deifraud his creditors. 
 (Prettyman v. Shockley, 4 Harring. 
 112.) 
 
 ^ In three days. (Thompson v. 
 Twenge, 2 RoUe R. 423.) Or in six 
 months. (Else v. Ferris, Anthon N. 
 P. 36.) He will be a bankrupt, with- 
 out saying when, said not to be ac- 
 tionable. (Vin. Abr. Act. for Words, 
 0,a.) 
 
 *" Spoken of a laceman (a dealer 
 in lace). (Read v. Hutson, i Ld. 
 Raym. 610.) 
 
 1* Spoken of a carpenter. (Chap- 
 man V. Lamphire, 3 Mod. 155.) And 
 spoken of a farmer. (Dobson v. 
 Thomistone, 3 Mod. 112.) To say of 
 a merchant, he is broke, is actionable. 
 (Leycroft v. Dunker, Cro. Car. 317.) 
 
 '2 Spoken of a tailor. (Davis v. 
 Lewis, 7 Term R. 17.) Spoken of a 
 carpenter. (3 Mod. 312.) 
 
 13 Noeningerz/. Vogt, 88 Mo. 589. 
 
 1 * Spoken of a merchant. (Sewall 
 V. Catlin, 3 Wend. 291.) To say of a 
 
244 WHAT LANGUAGE IS ACTIONABLE. [CH. VIII. 
 
 aught I know, H. will be so too, within this time twelve 
 months.^ H. will lose his debt ; M. [plaintiff] is unable 
 to pay it.^ He came a broken merchant from Hamburgh.' 
 All is not well with V. ; there are many merchants who 
 have lately failed, and I expect no otherwise of V.* There 
 is no bottom to you. I would put you through, but you 
 won't stand ; you will burst or fail before I have a chance.* 
 Thou art a beggarly fellow, and not worth a groat.* They 
 have been sued ; report says J. B.'s wife [J. B. being one 
 of the plaintiffs] is about to apply for a divorce, and that 
 J. B. has put his property out of his hands; if so their 
 store will be closed soon.'' Where the defendant said of 
 plaintiff, a tradesman, in his shop and in the presence of 
 his customers, that certain wholesale dealers had closed 
 their accounts with him, and were going to shut him up 
 (innuendo that plaintiff was insolvent or likely to be so) ; 
 held, it was for the jury to say whether the words had the 
 meaning ascribed to them in the declaration, and if so, they 
 were actionable.^ So, actionable to say of a trader that 
 his checks were dishonored.' But held not actionable to 
 say of traders, " look out sharp to get your bills met by 
 them," " or that they had executed a chattel mortgage." 
 
 banker, he suspended pajrment, is ac- " Rolin v. Steward, 14 C. B. 595 ; 
 
 tionable. {Dictum in Forster v. Law- and see ante in note, p. 2. Words 
 
 son, 3 Bing. 452.) in relation to the credit of a share- 
 
 1 Harrison v. Thomborough, 10 holder in the joint stock of a boat, 
 
 Mod. II. held actionable, special damage being 
 
 * Spoken of a merchant. (Mott shown, and there being a colloquium 
 
 V. Comstock, 7 Cow. 654.) It was respecting plaintiff as such stocldiold- 
 
 held not actionable to say to a credi- er, and that it was a business requir- 
 
 tor of a merchant [the plaintiff], You ing credit. (Turner v. Foxall, 2 Cr. 
 
 were best to call for it [your money] C. C. 324.) 
 
 in, and take heed how you trust him. » » Daines v. Hartley, 3 Ex. 200. 
 
 (Yin. Abr. Act. for Words, U, a, 17.) Do you see that man ? beware of him, 
 
 3 Leycroftw. Dunker, Cro. Car. 317. he has given me a good deal of trouble. 
 
 ' Vivian's Case, 3 Salk. 326. These words spoken of a stock broker, 
 
 = Spoken of one engaged in buying and laid with an innuendo meaning 
 
 and selling woodenware. (Carpenter that plaintiff was unworthy of trust, 
 
 V. Dennis, 3 Sandf. 305.) were held not actionable. (Moorhead 
 
 « Simson v. Barlow, 12 Mod. 591. v. Brown, 4 Wyatt, Webb & A'Beck- 
 
 ' Beardsley v. Tappan, i Blatchf. ett, 142.) 
 Cir. Ct. R. 588. 1 1 Newbold v. J. M. Bradstreet Co. 
 
 » Gostling V. Brooks, 5 Fos. & F. 76. 57 Md. 38. Where a " daily notifica- 
 
§ 192.] 
 
 WHAT LANGUAGE IS ACTIONABLE. 
 
 245 
 
 § 192. Language of one in his trade or profession is 
 actionable per se when it imputes to him fraud, want of 
 integrity, or misconduct in the line of his business or pro- 
 fession " whereby he gains his bread." ^ Thus it was held 
 actionable to say of a lawyer, He is a shyster,* or unworthy 
 of trust,^ or of a weaver. He is a rogue and villain, and 
 taketh the goods of his customers and pawneth them, and 
 he is not a man to be trusted ; * of an auctioneer and apprais- 
 er, He is a damned rascal, and has cheated me out of £100 
 on the valuation ; ® of a trader. He was guilty of dishon- 
 estly using old materials instead of new in doing a certain 
 
 tion sheet " issued by a mercantile 
 agency contained the name of plain- 
 tiff and opposite thereto the words, 
 " call at office, " it rests with the jury, 
 in view of the definition of a libel, 
 and considering all the evidence ad- 
 duced and relating to these words to 
 determine whether they constitute a 
 libel on the plaintiff in their business 
 as merchants. (Erber v. Dun, 12 
 Fed. R. 527.) In New York where 
 such a sheet had the words, " Canan- 
 daigua, Kingsbury, Sherman Gro. 
 * * " and at the foot of the page, 
 " * =f por f xplanation please call at 
 our oflBce," it was held not libelous 
 and not ambiguous, so as to admit tes- 
 timony as to the effect of the words on 
 creditors of plaintiff. That the aster- 
 isks were merely put as references to 
 the foot note. (Kingsbury v. Brad- 
 street Co. 35 Hun, 16.) 
 
 ' Babonneau v. Farrell, 15 C. B. 
 360; Bryant v. Loxton, 1 1 Moore, 344; 
 Davis V. Davis, i Nott & McCord, 
 290; Chipman v. Cook, 2 Tyler, 456; 
 Rush V. Cavenaugh, 2 Barr, 187; 
 Brown v. Mims, 2 Rep. Con. Ct. 235; 
 Foot V. Brown, 8 Johns. 50; Riggs v. 
 Dennison, 3 Johns. Cas. 198 ; Thomas 
 V. Jackson, 3 Bing. 104; 10 Moore, 
 425 ; Odiorne v. Bacon, 6 Cush. 185; 
 Gay V. Homer, 13 Pick. 535; Ludwell 
 V. Hole, 2 Ld. Raym. 1417; Davis v. 
 Miller, 2 Strange, 11 69; Obaugh v. 
 Finn, 4 Pike (Ark.), no; Boydell v. 
 Jones, 4 M. & W. 446 ; 7 Dowl. P.' C. 
 
 210; Sempsey v. Levy, 2 Jur. 776; 
 Vin. Abr. Act. for Words, U, a, 25. 
 26. "Any charge of dishonesty against 
 an individual in connection with his 
 business, whereby his character in 
 such business may be injuriously af- 
 fected, is actionable." (Fowles v. 
 Bowen, 30 N. Y. 24.) " Thou hast 
 received money of the king to buy 
 new saddles, and has cozened the king 
 and bought old saddles, " actionable. 
 (Greenfield's Case, Mar. 82; I Vin. 
 Abr. 465, pi. 19.) Defendant publish- 
 ed in a newspaper concerning plaintiff, 
 a boarding-house keeper: "6 East 
 34th street. — Boarding. Applicants 
 before locating here, inform yourselves 
 as to table, attention, and character- 
 istics of proprietors." There was no 
 inducement nor allegation of special 
 damage, and held not actionable. 
 (Wallace v. Bennett, i Abb.N. C. 478.) 
 
 2 Gribble v. Pioneer Press Co. 34 
 Minn. 342. 
 
 ' Sanderson v. Caldwell, 45 N. Y. 
 398; LudwigT/. Cramer, 53 Wis. 193; 
 Andrews v. Wilson, 3 Kerr (New 
 Bruns.), 86. 
 
 * Vin. Abr. Act. for Words, U, a, 
 4. To say of a house painter. He is 
 the greatest blackguard in Melbourne, 
 and is not fit to be trusted in any 
 house, held actionable. (Harris v. 
 Pritchard, Melbourne Argus Rep. 29th 
 June, 1857.) 
 
 » Bryant v. Loxton, 1 1 Moore, 344. 
 
246 WHAT LANGUAGE IS ACTIONABLE. [CH. VIIL 
 
 piece of work/ or of giving short measure,* of a corn- 
 factor, You are a rogue and a swindling rascal ; you de- 
 livered me one hundred bushels of oats worse by six pence 
 a bushel than I bargained for ; * of a lime-burner, He is a 
 cheating knave ; * of a bailiff, You did cozen your master 
 of a bushel of barley, or, he hath deceived his master 
 by buying and selling ; ^ of a butcher, that he used false 
 weights,* or sells unwholesome meat;'' of a shipmaster, 
 that he sold the consignment and pocketed the proceeds;* 
 of a jeweler, He is a cozening knave in selling me a sap- 
 phire for a diamond;^ of a goldsmith. He sold me a chain 
 of copper for gold ; of one who sold chamois skins. He 
 will cozen you and sell you lamb skins instead of chamois 
 skins; of a brewer, that he makes or sells unwholesome 
 beer; of a tradesman, that he adulterates the article in 
 which he deals; of one who took children to board, that 
 he starved a child intrusted to his care;^" of a shipmaster, 
 "he sold the consignment of the ship Rising Sun, and 
 pocketed the money."" Both the plaintiflF and defendant 
 
 ^ Babonneau v. Farrell, 15 C. B. criminal offense in New York. Penal 
 
 360. Code, § 408. • 
 
 2 White V. Cheesbro, 16 Week. » Orr v. Skofield, 56 Me. 483. 
 
 Dig. 1 86. » Vin. Abr. Act. for Words, I, a, 9, 
 
 ' Thomas v. Jackson, 3 Bing. 104; and several cases there referred to. 
 10 Moore, 425. And to charge a mer- i" Vin. Abr. Act. for Words, U, a, 
 
 chant with being a swindler is action- 27, 28, 29, 30, 31 ; Nuton's Case, 
 
 able. (Herr v. Bamberg, 10 How. Freem. 25. Charging a brewer with 
 
 Pr. R. 128.) So of a bank director, filthy and disgusting practices in pre- 
 
 (Forest v. Hanson, i Cranch Cir. C. paring his malt, is actionable. (White 
 
 Rep. 63; notes 4 and 8, p. 207, ante^ v. Delavan, 17 Wend. 49; Ryckman 
 
 * Terry z/. Hooper, \ Ld. Raym. w. Delavan, 25 Wend. 186.) See Wood 
 
 87; I Lev. 115. V. Brown, i C. Marsh. 522; 6 Taunt. 
 
 5 Vin. Abr. Act. for Words, U, a, 169. In that case, a declaration 
 
 5; and note 8, p. 181, a«fe which alleged that defendant pub- 
 
 « Griffiths V. Lewis, 1 5 Law Jour. lished of plaintiff, a brewer, that his 
 
 249, Q. B.: and see Prior v. Wilson, i beer was of a bad quality and sold by 
 
 C. B. N. S. 95. The way in which deficient measure, was held bad on 
 
 Messrs. P. (the plaintiffs) do things at general demurrer, because the words 
 
 Guilford — inserting the wedge — innu- were not set out in hac verba, but it 
 
 endo inserting a wedge to falsify the was merely alleged that the. defendant 
 
 weight. published words fiurportirig that 
 
 ' Young V. Kuhn, 9 So. West. plaintiff, &c. 
 Rep. 860. Selling tainted food is a ' * Orr v. Skofield, 56 Me. 483. 
 
§ I92.J WHAT LANGUAGE IS ACTIONABLE. 247 
 
 carried on the business of tailors. Plaintiff, in company 
 with A., went to defendant's store to purchase material 
 with which to make trowsers for A. Defendant said to 
 A., Don't have anything to do with that man [plaintiff], 
 he will rob you, he is a rogue. Defendant also asked A. 
 to allow him [defendant] to make the trowsers. On the 
 trial, the judge directed the jury that the words were ac- 
 tionable if spoken of the plaintiff in the way of his trade, 
 and the jury having found for the plaintiff, the verdict 
 was sustained in banc} And actionable to charge the 
 agent of a stage company, that he [plaintiff] and B., his 
 sub-agent, had altered way-bills and books to screen the 
 plaintiff [innuendo charging forgery], and that plaintiflf 
 and B. were together to cheat the company, and they 
 would cheat them out of more than the company can 
 make.** Actionable to charge, by writing, a steamboat 
 agent with being an impertinent person and withholding 
 newspapers intrusted to him for the defendants.* And it 
 was held actionable to publish orally of a land surveyor, 
 who surveyed by mathematics, as distinguished from one 
 who measured with a pole. He is a cozening and shifting 
 and a cheating knave; and it was said that the same words 
 of a shoemaker, a butcher, or a baker, would not be action- 
 able, because the goodness or deceit of their wares may be 
 discerned by the eye, but deceit in land measuring could 
 be discovered only b^ persons skilled in the art;* but not 
 actionable to say of a workman. He has received forty 
 days' wages for work that might have been done in ten 
 days, and is a rogue for his pains ;^ nor to say of a smith, 
 Thou art a cozening rogue, and in one tire of wheels which 
 
 1 Sloman v. Chisholm, 22 Up. Can. * Blunden v. Eustace, Cro. Jac. 
 Q. B. 20. 504 ; London v. Eastgate, 2 RoUe R. 
 
 2 Gay V. Homer, 13 Pick. 535. 72. 
 
 » Keemlez/. Sass,l2Mo. 4.99. The « Lancaster v. French, 2 Stra. 
 
 language, being published in writing, 797. 
 was actionable as concerning the 
 plaintiff as an individual merely. 
 
248 WHAT LANGUAGE IS ACTIONABLE, [CH. VIII. 
 
 thou didst send to J. S. thou didst cozen him of a noble ; 
 for the words import he cozened in the price only, and not 
 in the ill-making of the wheels. And for saying of men in 
 trade who sell things, that they cozen in the price, is no 
 disgrace, for every trader cozens in the price when he sells 
 for more than the thing is worth.' Actionable to publish 
 orally of a merchant's clerk, that he [plaintiff] had become 
 such a notorious liar that he [defendant] could place no 
 confidence in him ; that he had strong reason to doubt his 
 honesty, and had written S. to employ an officer to watch 
 him.^ Actionable to publish orally of a merchant that he 
 is a villain, a rascal and a cheater.^ And the following 
 words spoken of the plaintiff as clerk of the firm of de- 
 fendant and his partner, "Your man [plaintiff] is plotting 
 to blow me [defendant] and the concern [said firm] up," 
 were held actionable.* So it has been held actionable to 
 publish orally of an attorney, He is a blackmailer;® he is 
 a forging rogue,^ a cheat,^ a damned rascal ; ' he will play 
 on both sides, or he deals on both sides,** a bribing knave, 
 and has taken twenty pounds of you to cozen me;" he is 
 not a man of integrity, and is not to be trusted ; he will 
 take a fee on both sides;" he is a cheater, I will have him 
 barred of his practice ;''' he deserves to be struck off the 
 roll ;'^ he is a false knave, a cozening knave, and has gotten 
 
 1 Vin. Abr. Act. for Words, S, a, * Ware v. Clowney, 24 Ala. 707. 
 
 24, Thou didst cozen a woman of her ' Healy v. Dettra, 7 Cent. Rep. 
 
 goods, held not actionable. (Engurst 168. 
 
 v. Browne, Cro. Eliz. 99.) And held « Anon. I Comyn R. 262. 
 
 not actionable to say of an innkeeper, ' Rush v. Cavenaugh, 2 Barr, 187. 
 
 He is a caterpillar, and lives by rod- » Brown v. Mims, 2 Rep. Con. 
 
 h'ng- his guests. Robbing not con- Ct. 235. 
 
 strued feloniously. (Vin. Abr. Act. » Brown v. Hook, Brownl. s ; Vin. 
 
 for Words, U, a, 34; anie, § 144, Abr. Act. for Words, S, a, 2, 4; 
 
 subd. 2.) Shire v. King, Yelv. 32 ; S. C. King v. 
 
 * Fowles V. Bowen, 30 N. Y. 20; Shore, Cro. Eliz. 914. 
 
 and see Brown v. Orvis, 6 How. Pr. R. 10 Yardley 7/. Ellis, Hobart, 8, a; 
 
 378. Where the words affect one as i Rolle R. 53. 
 
 merchant's clerk, special damage need ' 1 Chipman v. Cook, 2 Tyler, 456. 
 
 not be alleged. (Butler v. Howes, 7 1 « Ta.ylor v. Starkey, Cro. Car. 192. 
 
 Cal. 87.) 13 Dictum, Phillips v. Jansen, 2 
 
 ^ Nelson v. Borchenius, 52 111. Esp. 624. 
 236. 
 
§ 192.] 
 
 WHAT LANGUAGE IS ACTIONABLE. 
 
 249 
 
 all that he has by cozenage; he has cozened all those that 
 have dealt with him ; he arresteth without taking out 
 writs; he is a knave in his practice;^ he offered himself as 
 a, witness to divulge the secrets of his clients ; ^ he is a 
 rogue for taking your money, and has done nothing for it; 
 he has not entered an appearance for you ; he is no attor- 
 ney at law, he don't care to appear before a judge ; what 
 signifies going to him, he is only an attorney's clerk and a 
 rogue, he is no attorney.* Is M. your attorney ? . . . 
 He will overthrow your cause.* I marvel you will em- 
 ploy such a knave as NichoUs, you will have but disgrace 
 by it; he is a proclaimed knave ;^ he is the falsest knave 
 in England;® he is a base rogue, and maintains his family 
 by his knavery;'' he is an extortioner, and cozened A. in 
 a bill of costs;® he keepeth many markets and stirreth 
 up men to suits, and promises if he do not recover in 
 their cause he will take no charges, and he once promised 
 me that if he did not recover in a cause he would take 
 no charges of me, yet he afterwards took charges of me;' 
 he deserves to have his ears nailed to the pillory.^" Thou 
 art a paltry fellow; thy credit is fallen, for thou dealest 
 on both sides, and dost deceive many that trust thee." 
 He suppressed a will;'^ he is a cozener, and hath cozened 
 me of twenty shillings.^* He is a cozener, and cozened 
 his clients, and for that cause was discharged the court." 
 He is a base, cheating, cozening knave, and hath cheated 
 me as never any man was cheated.^^ He took, corruptly. 
 
 * Jenkins v. Smith, Cro. Jac. 586 
 Bell V. Thatcher, Freeman, 277. 
 
 * Riggs V. IJenniston, 3 Johns. 
 Cas. 198. 
 
 ' Hardwick v. Chandler, 3 Str, 
 1 138. 
 
 * Martyn v. Burlings, Cro. Eliz, 
 589; Golds. 128. 
 
 » Webb V. NichoUs, Cro. Car. 459 
 
 * Anon. F. Moore, 61; Dal. 63. 
 
 ' Shaw V. Wakeman, Vin. Abr, 
 Act. for Words, S, a, 2. 
 
 603 
 
 « Stanley v. Boswel, Cro. Eliz. 
 
 Smith V. Andrews, Sty. 183. 
 
 " Jenkinson v. Wray, F. Moore, 
 401. 
 
 >i Shire v. King, Yelv. 32; S. C. 
 King V. Shore, Cro. Eliz. 914. 
 
 '3 Godfreys. Owen, Palm, 21. 
 
 i» Litman v. West, Het. 123. 
 
 1* Mead v. Perkins, Cro. Car. 261. 
 
 1' Jeffryes v. Payhem, Cro. Car. 
 510. 
 
250 WHAT LANGUAGE IS ACTIONABLE. [CH. VIIL 
 
 five marks of B. T., being against his own client, for put- 
 ting off an assize against him.^ Thou art a common bar- 
 rator, a Judas, a promoter.^ He sets people together by 
 the ears, and we shall have him indicted for a common 
 barrator.^ You are a knave ; you were attorney for my 
 mother against my husband, and set her on to sue him, 
 and made him spend ;^i,ooo, and such knaves as you are 
 have made my husband spend almost all his estate.* And 
 actionable to say of a counsellor, " He will deceive you ; 
 he revealed the secrets of my cause."® It is actionable to 
 publish in writing of an attorney employed to defend a 
 prisoner, that on the trial he sent important witnesses 
 away without the knowledge of his client or of counsel ; * 
 or that he has been reprimanded for sharp practice.'^ " I 
 was so incensed with that girl [plaintiff] for coming to 
 hire with me, after having had a miscarriage at Mrs. B.'s 
 house, and she afterwards to give the girl a good dis- 
 charge." These words spoken of a domestic servant, held 
 actionable ^gr se.^ 
 
 § 193. Language of one in a business or profession, 
 which imputes to him ignorance generally in his business 
 or profession, or such ignorance or other incapacity as un- 
 fits him for its proper exercise, is actionable ; ' as to say of 
 a physician or an apothecary, " It is a world of blood he 
 has to answer for in this town through his ignorance ; he 
 did kill a woman and two children. He was the death of 
 
 ' Smayles v. Smith, Brownl. i. (Armstrong v. Jordan, Carlisle Assiz- 
 
 2 Taylor w. Starkey, Cro. Car. 192. es, 1826.) 
 
 s Annison v. Blofield, Carth. 848. ^ Connors v. Justice, 13 Ir. L. R. 
 
 * Hilton V. Playters, All. 13. N. S. 451 ; 7 Ir. Jur. N. S. 319. 
 
 s Snag V. Gray, March's Sland. 63. « Jones v. Powell, I Mod. 272 ; 
 
 « Sanford v. Bennett, 24 N. Y. 20. Peard v. Jones, Cro. Car. 382 ; Camp 
 
 ' Boydell v. Jones, 4 M. & W. v. Martin, 23 Conn. 86; Day w. Bul- 
 
 446. Held not actionable to say oral- ler, 3 Wils. 59 ; Garr v. Selden, 6 
 
 ly of an attorney, "He is a paltry Barb. 416. To write of an architect 
 
 lawyer " (Rich v. Holt, Cro. Jac. 267) ; that he has had no experience in cer- 
 
 but actionable to say orally, " He is a tain work he had been employed to 
 
 pettifogging, blood-sucking attorney.'' perform, held actionable. (Botterell 
 
 V. Whytehead, 41 L. T. N. S. 588.) 
 
I93-] 
 
 WHAT LANGUAGE IS ACTIONABLE. 
 
 251 
 
 J. P.; he killed his patient with physic;"^ or, "Dr. A. 
 killed my children ; he gave them teaspoon doses of cal- 
 omel, and it killed them. . . . They died right off the 
 same day ;"^ or, " He has killed the child by giving it too 
 much calomel;"^ or, "He has killed six children in one 
 year;"* or, "He is a drunken fool and an ass, he never 
 was a scholar ;" ^ or, " I wonder you had him to attend 
 you ; do you know him } He is not an apothecary ; he 
 has not passed any examination ; he is a bad character, 
 none of the medical men here will meet him ; several have 
 died that he has attended, and there have been inquests 
 held upon them;"^ or, "He killed my child, it was the 
 saline injection that did it ; " '' or, " He is an empirick 
 and a mountebank ; " ^ or, " a quack ; " ^ or, " He is a 
 quack, and if he shows you a diploma it is a forgery; "" or, 
 " His treatment of a patient was rascally; "" and so it has 
 been held actionable to say of a midwife : " Many have 
 perished for want of her skill " (?'. ^., for her want of skill) ^^ 
 
 * Tutty V. Alewin, 11 Mod. 221; 
 and see note i, p. 180, ante. 
 
 * Secor V. Harris, 18 Barb. 425. 
 
 ' Johnson v. Robertson, 8 Porter, 
 486 ; see dictum March v. Davison, 9 
 Paige, 580. To charge a physician 
 with having killed a patient with 
 physic, held not actionable. (Poe v. 
 Mondford, Cro. Eliz. 620.) "In my 
 opinion, the bitters that A. [plaintiff, 
 a physician] fixed for B. [his patient] 
 were the cause of his death," held not 
 actionable ; but the words, " The bit- 
 ters that Dr. J. [plaintiff] gave John 
 Smith caused his death; there was 
 poison enough in them to kill ten 
 men," held actionable. (Jones v. 
 Diver, 22 Ind. 184.) Charging mal- 
 practice. (Rogers v. Kline, 56 Miss. 
 808; 31 Amer. Rep. 389.) 
 
 * Carroll v. White, 33 Barb. 615. 
 ' Cawdrey v. Tetley, Godb. 441. 
 
 « Southee v. Denny, i Ex. 196; 17 
 Law Jour. R. 151, Ex. Alleging 
 that a physician is not entitled to 
 practice, as not being duly licensed, 
 may be actionable. See Collins v. 
 
 Carnegie, 3 Nev. & M. 703; i Ad. & 
 El. 695. And charging a physician 
 with being guilty of conduct deroga- 
 tory to the character of a gentleman 
 and of a medical man, held action- 
 able. (Bailey v. Abercrombie, 3 
 Menzies' R. 33.) 
 
 ' The words impute manslaughter. 
 (Edsall V. Russell, 4 M. & G. 1090.) 
 
 » Vin. Abr. Act. for Words, S, a, 
 12. Publishing in writing of a bar- 
 rister that he was a quack lawyer and 
 a mountebank and an impostor, is ac- 
 tionable. (Wakley v. Healey, 7 C. B. 
 
 S9I) 
 
 » Pickford v. Gutch, Dorchester 
 Assizes, 1787; White v. Carroll, 42 
 N. Y. 161. 
 
 1° Moises V. Thornton, 8 Term R. 
 303. " He is no doctor, he bought his 
 diploma for fifty dollars." These 
 words of a doctor held actionable per 
 se. (Bergold v. Puchta, 2 Sup. Ct. R. 
 [T. & C.J 532.) 
 
 " Camp V. Martin, 23 Conn. 86. 
 
 " Flower's Case, Cro. Car. 211. 
 Charging a city physician, appointed 
 
252 WHAT LANGUAGE IS ACTIONABLE. [CH. VIII, 
 
 '' She is an ignorant woman, and of small practice, and 
 very unfortunate in her way ; there are few she goes to 
 but lie desperately ill, or die under her hands." ^ " She is 
 no midwife but a nurse, and if I had not pulled her from 
 Mrs. J. S., she had killed her and her child." * " She lays 
 no woman, but Dr. Chamberlayn or his lady does her 
 work."* And it has been held actionable to say of a 
 school-master: "Put not your son to him, for he will come 
 away as very a dunce as he went." * " He has no knowl- 
 edge in grammar or in the Latin tongue, nor knows how 
 to educate his scholars in the Latin tongue," with an alle- 
 gation of loss of scholars.^ So it has been held actionable 
 to say of an attorney ; " He hath no more law than Mr. 
 C.'s bull, or than a goose ;"® " He cannot read a declara- 
 tion;"^ " What, does he pretend to be a lawyer ? He is 
 no more of a lawyer than the devil ; " ® or of a barrister, 
 " He is a dunce, and will get little by law, he was never 
 but accounted a dunce ; " ' or of a shoemaker, that he is 
 " a cobbler ; " " or of a watchmaker, that " he knows not 
 how to make a good watch."" Actionable to say of a 
 mason, " He is no mechanic, he cannot make a good wall, 
 or do a good job of plastering, he is no workman, he is a 
 
 by the common council and not pub- » Peard v. Jones, Cro. Car. 382. 
 
 licly elected, with causing death by '» i Mod. 19; Vin. Abr. Act. for 
 
 malpractice, is actionable. (Foster v. Words, U, a, 16. 
 Scripps, 39 Mich. 376.) n Redman v. Pyne, i Mod. 19; but 
 
 1 Wharton -v. Brook, Vent. 21 ; to say of a watchmaker, he is a bung- 
 Wharton y. Clover, 2 Keb. 489. ler, and knows not how to make a 
 
 2 Whitehead v. Founes, Freem. good piece of work, would be action- 
 V7- able. (M) Where A., the author of 
 
 3 Gyles V. Bishop, Freem. 278. a work, sold the copyright to the 
 * Het. 71. defendant, who afterwards published 
 s London v. Eastgate, 2 RoUe's R. a new edition as edited by A., con- 
 
 72- taining mistakes and errors, held, if 
 « Baker v. Morfue, i Sid. 327. this was calculated to injure A.'s rep- 
 ' Jones V. Powel, l Mod. 272. It utation as an author, he might main- 
 implies . Ignorance, not a defect of tain an action. (Archbold v. Sweet, 
 sight. S C. & P. 219; I M. & Rob. 162.) 
 8 Day V. BuUer, 3 Wils. 59. 
 
§ 195.] 
 
 WHAT LANGUAGE IS ACTIONABLE. 
 
 253 
 
 botch ; " ^ and actionable to write of an optician, he is " a 
 licensed hawker and a quack in spectacle secrets." * 
 
 § 194. It is not actionable to charge one in a business 
 or profession with want of skill or ignorance in a particu- 
 lar transaction.^ Thus it was held not to be actionable to 
 say of an attorney in a particular suit, "He knows nothing 
 about the suit ; he will lead you on until he has undone 
 you." * It is said, however, that it is actionable to charge 
 ignorance or unskillfulness, if it amounts to gross ignor- 
 ance or unskillfulness.® This seems only another mode of 
 imputing such ignorance as unfits the person for the 
 proper exercise of his art, or with misconduct therein. 
 
 § 195. It was held actionable to publish orally of a 
 minister of the gospel, that he preaches lies in the pul- 
 pit;* he made a seditious sermon,^ he hath two wives,* 
 
 * Fitzgerald v. Redfield, 51 Barb. 
 484; 36 How. Pr. R. 97. To impute 
 to one actually employed to do cer- 
 tain work, that he has no experience 
 in such work, is a libel upon him in 
 his calling, and it is no justification to 
 say that such person cannot show any 
 experience in work of the kind. (Bot- 
 terill V. Whytehead, 41 L. T. N. S. 
 588.) 
 
 * Keyzor v. Newcomb, i Fost. & 
 
 F. SS9. 
 
 » Garr v. Selden, 6 Barb. 416; 
 Camp V. Martin, 23 Conn. 86 ; Southee 
 V. Denny, i Ex. 196; Lynde v. John- 
 son, 39 Hun, 5 ; Rodgers v. Kline, 56 
 Miss. 808. Jury to judge, how words 
 used. See note lo, p. 241, ante. 
 
 * Foot V. Brown, 8 Johns. 64. 
 
 ' Secor V. Harris, 18 Barb. 425; 
 Lynde v. Johnson, 39 Hun, 5; and 
 Sumner v. Utley, 7 Conn. 257 ; John- 
 son V. Robertson, 8 Port. 486; Camp 
 V. Martin, 23 Conn. 86. Saying of a 
 school-master, he is a habitual drunk- 
 ard, would be actionable. (Brandrick 
 w. Johnson, I Vict. Law Rep. 306.) A 
 charge against a physician, although 
 
 confined to his professional conduct in a 
 single case, and imputing neither crime 
 nor general professional incompeten- 
 cy, may, nevertheless, impute such 
 gross, reckless and inhuman disregard 
 for the life and health of his patient in 
 that particular case as necessarily, or 
 naturally and presumably, to injure 
 his professional reputation. Such 
 would be a report charging a physi- 
 cian with culpable neglect in allowing 
 the decomposing body of a dead in- 
 fant to remain several days in the 
 room with the sick mother. (Pratt v. 
 Pioneer Press Co. 35 Minn. 251.) 
 [Was not this libelous independently 
 of its affecting professional charac- 
 ter.] And see Gauvreau v. Superior 
 Pub. Co. 62 Wis. 403. 
 
 * Drake v. Drake, Sty. 363; and 
 see Cranden v. Walden, 3 Lev. 17 ; 
 Bishop of Norwich v. Pricket, Cro. 
 Eliz. I ; Dod v. Robinson, Aleyn, 63 ; 
 and Gallwey v. Marshall, 9 Ex. 294. 
 
 ' Phillips V. Badby, 4 Coke, 19 a. 
 
 « Nicholson v. Lynes, Cro. Eliz. 
 94. 
 
254 WHAT LANGUAGE IS ACTIONABLE, [CH. VIII. 
 
 he is a drunkard/ or incontinent,^ or guilty of incest,* or 
 he has a bastard,* or he is a perjured priest.^ The following 
 words were held not actionable, spoken of one who was a 
 minister at the time of the publication, and who had been 
 a draper in partnership with H. P., and who had a contro- 
 versy with H. P. as to the partnership accounts : " I do 
 not go by reports, I go by a knowledge of facts. Mr. H. 
 [the plaintiflf] is a rogue, and I can prove him to be so by 
 the books at S. He pretends to say he has been as good 
 as a father to H. P., when, in fact, he has been robbing 
 him. He has cheated P. of ;^2,ooo. I will so expose him 
 that he will not be able to hold up his head in T. pulpit. 
 I wonder how any respectable person can coun- 
 tenance such a man by their presence. I have been ad- 
 vising some persons to go to the Wesleyan chapel, as they 
 would hear plain, honest men." ' So the following words, 
 spoken of a clergymaii, were held not actionable: " Dr. P. 
 [plaintiff] placed before me a bill, I signed it ; I do not 
 know for what amount it was, for I was completely pig- 
 eoned by Dr. P." [plaintiff].'^ In the same case the fol- 
 
 1 McMillan v. Birch, I Binn. 178; ' Spoken of a paid preacher or 
 Chaddock v. Briggs, 13 Mass. 248; lay exhorter of the Methodist church. 
 contra, see Buck v. Hersey, 31 Maine (Starr v. Gardner, 6 Up. Can. Q. B. 
 (I Red.), 558; O'Hanlon v. Myers, 10 R. O. S. 512.) 
 
 Rich. Law (So. Car.), 128. In Dod * Special damage being alleged. 
 
 V. Robinson (Aleyn, 63), the words (Payne v. Beuremorris, i Lev. 248.) 
 
 were : " You are a drunkard, a whore- He is a lewd adulterer, and hath two 
 
 master, a common swearer and a children by the wife of O. S., spoken 
 
 common liar, and you have preached of a clergyman, held not actionable, 
 
 false doctrine, and deserve to be de- (Parrett v. Carpenter, Noy, 64; and 
 
 graded." These words were held ac- ante, note 4, p. 240.) And so of the 
 
 tionable. words, You are an old rogue, rascal, 
 
 2 Demarest v. Haring, 6 Cow. 76. and contemptible fellow. (Musgrove 
 It seems that in England, to render v. Bovey, 2 Stra. 946.) 
 
 such a charge actionable, the person ' Hogg v. Vaughan, Sty. 6. 
 affected must be beneficed, or in the « Hopwood v. Thorn, 8 C. B. 293. 
 actual receipt of professional emolu- ' Pemberton v. Colls, 10 Q. B. 
 ment as a preacher, lecturer, or the 461 ; 16 Law Jour. Q. B. 403. To 
 like. (Gallwey v. Marshall, 9 Ex. charge a bishop with being a wicked 
 294; and see note 2, p. 196, ante.) man (Townsend v. Hughes, 2 Mod. 
 Saying of a Methodist minister that 159), or a bankrupt, said to be action- 
 he kept company with whores, held able (Holt on Libel, 233, note) ; and 
 not actionable without special dam- held actionable to publish in writing 
 age. (Breeze v. Sails, 23 Up. Can. Q. that the plaintiff, a clergyman, had 
 JB. R. 94.) caused a misunderstanding in his con- 
 
§ 196.] WHAT LANGUAGE IS ACTIONABLE. 255 
 
 lowing words, spoken of a clergyman, held to touch him 
 in his professional character, and to be actionable: "The 
 very day I came into residence, Dr. P. [plaintiff] sent for 
 me ; I went and dined with him, and the wine must have 
 been drugged, for I took but two glasses and was quite 
 stupefied. While in this condition Dr. P. put a bill into 
 my hands, and requested me to sign it, saying, C, just put 
 your name to this ; I wish to have it as security for the 
 payment of ^130 per annum for reading for you. I an- 
 swered, Give me a pen and I will sign it. Immediately I 
 had signed it, Dr. P. snatched it up and said. This will be 
 quite safe. The bill, I think, was drawn for ;;f 2,500, but 
 having been stupefied with the wine, I do not rightly re- 
 member. You cannot suppose I can meet a man who so 
 cheated me at my first coming?" It is actionable to 
 charge a Protestant archbishop with having sought, by 
 means of a bribe, to induce a Romish priest to abandon 
 his religious creed.^ It was held not actionable to charge 
 a Roman Catholic priest with having imposed certain 
 penance, there being nothing to show that enjoining such 
 penance affected his character as such priest.^ To publish 
 in writing of a clergyman that he came to the performance 
 of divine service in a towering passion,^ or that he dese- 
 crated a portion of the church by turning it into a cooking 
 apartment,* held actionable. 
 
 § 196. As regards language concerning one in an office, 
 the same general principles apply as to language concern- 
 ing one in trade. Language concerning one in office 
 which imputes to him a want of integrity or misfeasance 
 
 gregation by personal invectives from " Walker v. Brogden, 19 C. B. N. 
 
 the pulpit against a young lady of S. 65. 
 
 spotless reputation. (Edwards v. * Kelly v. Sherlock, Law Rep. i 
 
 Bell, 8 Moore, 467.) Q. B. 686. Held not actionable to say 
 
 1 Tuam V. Robeson, 5 Bing. 17; 2 of a minister of the gospel, He is a 
 M. & P. 32. free negro. (McDowell v. Bowles, 8 
 
 2 Heame v. Stowell, 12 Adol. & Jones' Law [N. Car.], 184.) 
 El. 719- 
 
256 WHAT LANGUAGE IS ACTIONABLE, [CH. VIIL 
 
 in his office, or a want of capacity generally to fulfill the 
 duties of his office, or which is calculated to diminish pub- 
 lic confidence in him,^ or charges him with a breach of 
 some public trust, is actionable,'' But as in the case of one 
 in trade, the language, to be actionable, must touch him in 
 his office.^ To charge a judge with erring in judgment or 
 disregarding public sentiment, or with any impropriety 
 which would not furnish a cause of impeachment, is not 
 actionable per se ; but to charge that he had "abandoned 
 the common principles of truth," or " lacked capacity as a 
 judge," or made the office of clerk of his court a subject 
 of private negotiation, is actionable per se^ So it is ac- 
 tionable per se to charge that a judge or notary improp- 
 erly put his official signature to the jurat of a paper in the 
 form of an affidavit,' or procured one to take a false oath,* 
 or took a bribe,'' or acted unjustly in his office,^ or to charge 
 that he is lewd or false,' or corrupt,^" or partial," or half-eared, 
 and will hear but one side, or that he cannot hear of one 
 ear,^^ or that he perverted justice,^^ or made use of his office 
 
 1 Lansing v. Carpenter, 9 Wis, when the magistrate was in that way 
 540. against me." 
 
 2 Kinney v. Nash, 3 N. Y. 177, and » I have often been with him for 
 authorities there referred to. justice, but could never get any at his 
 
 ' McGuire v. Blair, 2 Law Re- hands but injustice. (Isham v. York, 
 
 porter, 443, and a»/^, § 190. So that Cro. Car. 15.) Actionable to say of a 
 
 charging a justice with misfeasance in judge, his sentence was corruptly 
 
 tiying a cause not within his jurisdic- given. (See Chaddock v. Briggs, 13 
 
 tion, was held not actionable as not Mass. 253 ; Chipman v. Cook, 2 Tyler, 
 
 affecting him as a justice. (Oram v. 456.) 
 
 Franklin, 5 Blackf. 42 ; see, however, 9 Wright v. Moorhouse, Cro. Eliz. 
 
 Carter v. Andrews, 16 Pick, i ; Stone 358. 
 
 V. Clark, ^\ Id. ii.") 10 Csesar v. Curseny, Cro. Eliz. 305. 
 
 * Robbins v. Treadway, 2 J. J. You are a rascal, a villain, and a liar, 
 
 Marsh. 540. spoken of a magfistrate in the execu- 
 
 » Dollaway v. Turrell, 26 Wend. tion of his office, the words import a 
 
 383; 17 Id. 426; Henderson v. Com'l charge of corruption. (Aston v. Bla- 
 
 Adv. 12 N. Y. St. Rep. 649; 46 Hun, grave, I Strange, 617; 2 Ld. Raym. 
 
 504; affi'd III N. Y. 685. 1369-) And so of the term rogue. 
 
 « Chetwind v. Meeston, Cro. Jac. (Kent v. Pocock, 2 Str. 1 168.) 
 
 308. 1 1 Kemp V. Housgoe, Cro. Jac. 90. 
 
 ' Marriner v. Cotton, F. Moore, 12 Masham v. Bridges, Cro. Car, 
 
 69s In Lindsey v. Smith, 7 Johns. 223, and Alleston v. Moor, Het. 167. 
 
 360, an action was sustained for the 1 » De la Ware v. Pawlett, F. Moore, 
 
 words, " Lindsey had been feed by 409. 
 Abner Wood, and I could do nothing 
 
§ 196.] WHAT LANGUAGE IS ACTIONABLE. 257 
 
 to worry one out of his estate,^ or, He is forsworn and not 
 fit to sit upon a bench * or, He did seek my life and ofFered 
 ten shillings to the under-sheriff to impanel a jury that 
 might find me guilty* But held not actionable to publish 
 orally of a justice, He is a blood-sucker, and seeketh after 
 blood; if a man will give him a couple of capons he will 
 take them;* or, You robbed the poor and are worse than a 
 highwayman.® It is not actionable to say of a mayor, He 
 is a rogue and rascal;* or of an alderman. When he puts 
 on his gown Satan enters it;'' or of an under-sheriff, Thou 
 didst serve an execution and keep in thy hands the money 
 collected.^ But it is actionable to charge a sheriff with 
 malpractice in his office;^ or to say of a constable, He .is 
 not worthy of his office, for he and his company, the last 
 time he was constable, stole five of my swine and eat 
 them ;^'* or to publish in writing of a police officer that he 
 had been guilty of blackmailing, and had been dismissed 
 for that cause." But held not actionable to publish orally 
 of a police officer, " I saw a letter respecting an officer of 
 the L. police, who had been guilty of conduct unfit for 
 publication," there being no allegation of special damage 
 
 1 Newton v. Stubbs, 3 Mod. 71. 219, overruling S. C. 2 Y. & J. 417. 
 
 ^ Carn u. Osgood, i Lev. 280 ; s. C. This case was, it is said, carried to 
 
 as Kerle v. Osgood, i Vent. 50; and the House of Lords.) 
 see Pepper v. Gay, 2 Lutw. 1288; ' Palmer v. Edwards, Rep. of 
 
 Stutley w. Bulhead, 4 Coke, i6 a, 19 a; Cas. of Prac. in C. B. 160. 
 Lassels v. Lassels, F. Moore, 401; " Reg. v. Langley, 6 Mod. 125; 2 
 
 Hollis V. Briscow, Cro. Jac. 58; Bur- Salk. 697. 
 ton u Tokin, Cro. Jac. 143; Beamond ' 2 .Starkie on Slander, 314. 
 
 V. Hastings, Cro. Jac. 240. * Geeve v. Copshil, Cro. Eliz. 854. 
 
 ^ Bleverhassett v. Baspoole, Cro. " Dole v. Van Rensselaer, 1 Johns. 
 
 Eliz. 313. Cas. 330. Charging a sheriff or his 
 
 •* Hilliard v. Constable, F. Moore, deputy with making arrests merely to 
 
 418. Held actionable to publish in obtain fees, is actionable per se. 
 
 writing of a justice, that he had been (Bourreseau v. Detroit Ev. Jour. 63 
 
 chairman of a finance committee, and Mich. 425.) 
 
 had audited accounts containing "> Taylor v. How, Cro. Eliz. 861. 
 
 items nominally to furnish lodgings Doubtful if actionable to say of a con- 
 
 for the judges, but in reality for the stable, Thou art a cozening knave, 
 
 accommodation of the magistrates; and hast cozened the parish in rates 
 
 innuendo that plaintiff had conducted to ^30. (Thomas' Case, Het. 36.) 
 himself corruptly in his office of jus- ' ' Edsall v. Brooks, 17 Abb. Pr. R. 
 
 tice. (Adams v. Meredew, 3 Y. & J. 221; 2 Robertson, 29. 
 17 
 
258 WHAT LANGUAGE IS ACTIONABLE. [CH. VIII. 
 
 and the charge not being connected with his official char- 
 acter.^ It is actionable to publish orally of the director of 
 a public company, that he had sold the property of the 
 company and pocketed the money ;^ or of a town clerk 
 acting as moderator of a town meeting, that he had fraud- 
 ulently destroyed a vote ; * or of an administrator, that he 
 had been guilty of fraud in the appraisement of the estate 
 of the decedent ;* or of a juror that he agreed with another 
 juror to determine the amount of damages to be given in 
 a certain cause in which he acted as juror, by the result of 
 a game of draughts.** A churchwarden holds a temporal 
 office, and to charge him with cheating the parish is action- 
 able." It is actionable to publish in writing of a court 
 commissioner, that he will act in his judicial office accord- 
 ing to the views of the persons " whose tool and toady he 
 is, and that the past would warrant the depriving him of 
 his office ;'' of an overseer, that when out of office he ad- 
 vocated low rates, and that he [defendant] would not trust 
 him [plaintiff] with ;^5 of his private property ; '* or of an 
 overseer, that he had been guilty of illiberal and illegal 
 practices towards paupers, in compelling them to procure 
 goods from a particular person, and threatening him with 
 
 1 James v. Brook, 9 Q. B. 7 ; 16 oaths," is actionable and any one of 
 
 Law Jour. Q. B. 17; lo Jur. 541. the jury may sue. (Byers 7/. Martin, 2 
 
 ^ Johnson v. Shields, i Dutcher, Colo. 605.) 
 
 116. « Townsend v. Barker, Sty. 394; 
 
 ^ Dodds V. Henry, 9 Mason, 262. Woodruff v. Wooley, Curt, i ; Strode 
 
 * Beck v. Stitzel, 21 Penn. St. R. v. Holmes, Sty. 338; and see Button 
 
 (9 Harris) 522. v. Beech, Cro. Jac. 339; Hopton v. 
 
 « Commonwealth v. Wright, i Baker, 2 Bulst. 218; Willis v. Shep- 
 
 Cush. 46. The charge was in writing. herd, Cro. Jac. 619. To say of a 
 
 Held actionable to publish orally of a churchwarden he diverted himself on 
 
 juryman, Thou art a common juryman, Sunday, when he ought to have been 
 
 and hast been the overthrow of one in the house of God, held actionable 
 
 hundred men by thy false means. as charging a breach of his duty as 
 
 (Vin. Abr. Act. for Words, F, a, 23.) churchwarden. (Morris v. Bloxam, 
 
 To publish that the verdict of a jury Ir. Term. Rep. 91.) 
 
 is "infamous" and "we cannot ex- ' Lansing v. Carpenter, 9 Wis. 
 
 press the contempt which should be 540. 
 
 feh for these twelve men who have " The jury found that the words 
 
 thus not only offended public opinion, imputed dishonesty. (Cheese v. 
 
 but have done injustice to their own Scales, 10 M.' & W. 488.) 
 
§ I96.J WHAT LANGUAGE IS ACTIONABLE. 259 
 
 the penalties of the act against such practices;^ or of a 
 postmaster, who resided in the house used as the post 
 office, that the house in which the post office is kept is of 
 such a low character that a decent lady dare not enter.^ 
 And actionable to publish orally of a postmaster that he 
 opened a letter, took money out of it, and appropriated it 
 to his own use, and kept and embezzled letters f or that he 
 would rob the mail for five hundred dollars — yes he would 
 rob the mail for five dollars.* It is not actionable to 
 charge a member of Parliament with want of sincerity ; ^ 
 or a member of the Legislature, in reference to the future 
 discharge of his functions, with being a corrupt old tory.* 
 It is actionable to publish in writing of a member of Con- 
 gress, " He is a fawning sycophant, a misrepresentative in 
 Congress, and a groveling office-seeker ; he has abandoned 
 his post in Congress in pursuit of an office ; " '^ or of a lieu- 
 tenant-governor, that he was in a beastly state of intoxi- 
 cation while in the discharge of his duty in the Senate, 
 and was an object of loathing and disgust ;® or a commis- 
 sioner of bankrupts, with being a misanthropist, and vio- 
 lent partisan, stripping unfortunate debtors of every cent, 
 and then depriving them of the benefits of the act.* In 
 an action by G., a United States collector, for slander, the 
 declaration charged these words : " G. has not account- 
 
 ' Woodard v. Dowsing, 2 M. & and should he [the plaintiff] ever prom- 
 
 Ry. 74. ise his assistance, I should not expect 
 
 2 Johnson v. Stebbins, 5 Ind. (For- him to give it us." One of the reasons 
 ter) 364. for holding the words not actionable 
 
 3 Hays V. Allen, 3 Blackf. 408. was, they did not charge the plaintiff 
 See contra, McCuen v. Ludlam, 2 Har- with any breach of his duty, his oath, 
 rison, 12, and notes 13, p. 194, and 5, or any crime or misdemeanor whereby 
 p. 219, and 5, p. 173 ante, and Taylor he had suffered any temporal loss, m 
 V. Kneeland, i Doug. (Mich.) 67. future office, or in any way whatever. 
 
 * Craig V. Brown, 5 Blackf 44. " Hogg v. Dorrah, 2 Port. 212 
 
 « Onslow V. Home, 2 W. Black. ' Thomas v. Croswell, 7 Johns. 
 
 R. 750; 3 Wills. 177. The words 264; and see Wilson w. Noonan, 23 
 
 complained of were :" As to instruct- Wis. 105. 
 
 ingour members to obtain redress, I » Root v. King, 7 Cow. 613; 4 
 
 am totally against that plan ; for as to Wend. 113. 
 
 instructing Mr. Onslow [the plaintiff], » Riggs v. Dennison, 3 J^hns. Cas. 
 
 we might as well instruct the winds, 198. 
 
26o WHAT LANGUAGE IS ACTIONABLE. [cH. VIII. 
 
 ed to the department for the sum paid by W. by some 
 $32,000." " In the settlement of the funds of W., 
 amounting to many hundreds of thousands of dollars, the 
 amount paid by them was $157,224; only $125,224 was 
 accounted for, of which $62,612 was credited to the govern- 
 ment, leaving the same amount ($62,612) divided between 
 the collector, the naval officer, and the surveyor ; it is not 
 known what has been done with the balance, amounting 
 to the large sum of $32,000, and it is understood that this 
 settlement was made through the interventions of S. and 
 his partner, the late deputy collector ; it is discreditable to 
 the government to have it generally known that the sum 
 of $157,224 was paid by W. in a settlement with the gov- 
 ernment, and that $32,000 of that sum was not accounted 
 for." No words alleging a failure to pay on demand were 
 charged. The innuendoes averred the imputation of em- 
 bezzlement and of receiving a bribe. Held, that the words 
 were not actionable.^ 
 
 § 197. We have already directed attention to the dis- 
 tinction between patently and latently wrongful acts, and 
 to the rule of law that the necessary and natural and proxi- 
 mate consequences of an act are those alone for which the 
 actor is responsible (§ 61) ; and we have pointed out the 
 difference between language being actionable per se and 
 actionable only by reason of special damage (§ 146), So 
 far, this chapter has been solely devoted to language ac- 
 tionable /^r se; we have now to consider what language 
 concerning a person is actionable, because, and only be- 
 cause, its publication has occasioned special damage. 
 " Undoubtedly all words are actionable if a special dam- 
 age follows."* " Any words are actionable by which the 
 
 ,1 Goodrich v. Hooper, 97 Mass. l. v. Trundy, 31 Maine (i Red.), 321 ; 
 
 2 Heath, J., Moore v. Meagher, i McCuen v. Ludlam, 2 Harrison, 12; 
 
 Taunt. 39 ; and see, among other Bentley v. Reynolds, i McMullan, l6. 
 
 cases, Wilby v. Elston, 1 3 Jur. 706 ; 8 Acts (words) may be harmless in them- 
 
 C. B. 142 ; 7 Dowl. & L. 143; Barnes selves, so long as they injure no one. 
 
§ I97.J 
 
 WHAT LANGUAGE IS ACTIONABLE. 
 
 261 
 
 party has a special damage." ' " To make words action- 
 able, they must be such that special damage may be the 
 fair and natural result of them."^ "There must be some 
 limit to liability for words not actionable /^r se, both as to 
 the words and the kind of damages, and the clear and wise 
 one has been fixed by law."^ The limitation is that spec- 
 ial damage must ensue. But what is meant by special 
 damage .? Special damage is a term ambiguously employed; 
 properly, it connotes the natural and proximate but not nec- 
 essary consequences of a wrongful act ; * but it is frequently 
 used to indicate any or all loss which, not being a necessary 
 consequence is the subject of other proof than the mere 
 commission of the act complained of, and without regard to 
 whether such loss is or is not a natural or natural and proxi- 
 mate consequence of such act. The term is employed in the 
 latter sense when it is said that language which occasions 
 special damage is not actionable unless it be defamatory,* 
 
 but the consequences of acts (words) 
 often give character to the acts (words) 
 themselves. (Van Pelt v. McGraw, 4 
 N. Y. 113.) 
 
 * Comyn's Dig. Act. for Defam. D, 
 
 30- 
 
 2 Taunton, J., Kelly v. Partington, 
 3 Nev. & M. 116: 5 B. & Adol. 645. 
 
 ' Strong, J., Terwilliger v. Wands, 
 17 N. Y. 61. 
 
 * Such damages as are the natural, 
 although not the necessary result 
 of the injury, are termed special 
 damages. (Vanderslice v. Newton, 4 
 N. Y. 132.) The special damage 
 must be the immediate, not the remote 
 consequence of the publication. 
 (Beach v. Ranney. 2 Hill, 309 ; Sew- 
 all V. Catlin, 3 Wend. 291.) "The 
 damage must be the natural and proxi- 
 mate consequence of the wrong- 
 ful act complained of." (2 Smith's 
 Lead. Cas. 534, 6th ed.) " Special 
 damage must be the natural, general, 
 and I may say the universal result 
 upon all mankind placed in the same 
 circumstances." (Martin B. Allsopz/. 
 AUsop, 5 H. & N. 534.) For "To 
 make the act of a moral agent the 
 juridical cause (which means, the 
 
 proximate cause) of an event, the act 
 in question must be of such a characr 
 ter, that, if not interrupted by causes 
 independent of the actor's will, or by 
 the intervention of other persons, it 
 will, under ordinary circumstances, 
 produce the event in question." 
 (Whart. Neg., sec. 302.) " I have al- 
 ways understood that the special dam- 
 age must be the natural result of the 
 thing done." (Patteson J., Kelly v. 
 Partington, 5 B. & Adol. 546 ; and 
 see Haddan v. Lott, 15 C. B. 41 1 ; 24 
 Law Jour. Rep. N. S. C. P. 49.) The 
 special damage must be in conse- 
 quence of the defendant's act. (Hast- 
 ings V. Palmer, 20 Wend. 225.) 
 
 ' "The special damage will not 
 help you if the words are not defama- 
 tory." (Blackburn, J., Young v. Mac- 
 rae, 3 Best & S. 264; 7 Law Times, 
 N. S. 354. To the like effect, Sheahan 
 V. Aheame, 9 Ir. R. C. L. 412; Mil- 
 ler V. David, L. R. 9 C. P. 126; 22 
 Weekly Rep. 332.) That words, to 
 be actionable, need not be defama- 
 tory of the individual, is shown from 
 the fact that words concerning things 
 may be actionable. 
 
262 
 
 WHAT LANGUAGE IS ACTIONABLE. [CH. VIIL 
 
 which is equivalent to saying, that language which, as a 
 natural and proximate consequence, occasions loss, is not 
 actionable unless it is injurious (defamatory). If the lan- 
 guage is not injurious (defamatory) in its nature, it can- 
 not, as a natural consequence, occasion loss, and it may 
 well be that none other than language defamatory in its 
 nature (disparaging) can as a natural and proximate con- 
 sequence occasion loss.^ It may be correct to say that 
 " to make the words wrongful they must in their nature 
 be defamatory,"" provided the rule thus expressed be un- 
 derstood as being subordinate to and implied in the more 
 comprehensive rule, that to render actionable that lan- 
 guage which is not actionable per se, the language must 
 occasion special damage, in the proper sense of that term.* 
 
 » Complaint alleged that in conse- 
 quence of a letter written by defend- 
 ant to the employers of plaintiff they 
 had discharged him. The letter was 
 in substance : that " Mr. Dickson (the 
 plaintiff) has been for many months 
 past doing unmercantile things, such 
 as telling our customers to be sure to 
 get an inside; that we gfive it, and 
 they are fools if they don't secure it, 
 and such like. He, further, takes sam- 
 ples of our cloth and shrinks them, 
 sajfing our goods shrink and his don't ; 
 also fishes up some old samples and 
 says, in the same way, that our goods 
 are greasy, &c., &c. This, by carry- 
 ing about him such samples, is hardly 
 businesslike, and the trade look at it 
 exactly as we do, and tell us of it on 
 every hand ; there can be no gainsay- 
 ing the truth of this, and I might quote 
 much more, but Mr. D. needs no 
 prompting; he knows of these and 
 other things, such as comments on 
 our men, &c." " I have had some of 
 the basis of my complaints in person 
 from the trade, and if any exigency 
 existed requiring it, there are others 
 who could be used. All that I could 
 complain of there was your Mr. D. 
 again treating with men in our em- 
 ploy, after being here soliciting help, 
 &c.— a little unusual proceeding in 
 this section of the countrv." On de- 
 
 murrer to complaint, held that the 
 language was not defamatory, and that 
 the dismissal of plaintiff by his em- 
 ployers was not a natural result of the 
 publication. (Dickson v. Phillips, 51 
 Superior Ct. [19 J. & .S.] 162.) Where 
 the words of a clerk [plaintiff] were : 
 " He has caused the ruin of my clerk; 
 he has been the ruination of my clerk ; 
 I do not want him to have anything 
 to do with, my business," which were 
 followed by plaintiff's dismissal by his 
 then employers, held to show a cause 
 of action. (Wilson v. Cottman, 65 
 Md. 190.) See note to § 199, post^ 
 and note 2, p. 242, ante. 
 
 ^ Patteson, J., Kelly v. Partington, 
 
 5 B. & Adol. 645. 
 
 ' " I cannot agree that words laud- 
 atory of a person's conduct would be 
 the subject of an action if they were 
 followed by special damage. They 
 must be defamatory or injurious in 
 their nature." (Littledale, J., Kelly 
 V. Partington, 3 Nev. & M. 117; 5 B. 
 
 6 Adol. 645.) " The words must be 
 defamatory in their nature ; and must 
 in fact disparage the character, and 
 this disparagement must be evidenced 
 by some positive loss arising there- - 
 from directly and legitimately as a 
 fair and natural result." (Strong, J., 
 Terwilliger v. Wands, 17 N, Y. 61; 
 and see Hallock v. Miller, 2 Barb. 
 
§ 198.] WHAT LANGUAGE IS ACTIONABLE. 
 
 263 
 
 The real question must always be, was the damage com- 
 plained of a natural and proximate consequence of the 
 publication?^ For "it is a rule equally consistent with 
 good sense, good logic, and good law, that a person who 
 would recover damages for an injury occasioned by the 
 conduct of another, must show as an essential part of his 
 case, the relation of cause and effect between the conduct 
 complained of and the injury sustained."* 
 
 § 198. What is special damage ? Special damage con- 
 sists^ in, among other things, the loss of marriage, loss of 
 consortium of husband and wife,* loss of emoluments, prof, 
 its, customers, employment, or gratuitous hospitality,* or 
 by being subjected to any other inconvenience or annoy- 
 
 633 ; Bell V. Sun Print. & Pub. Co. 42 
 Superior Ct. [lo J. & S.] 567; 3 Abb. 
 N. C. 157; and §§ 72, 176, ante.^ 
 
 • Denman, Ch. J., Knight 2/. Gibbs, 
 I Adol. & El. 43. 
 
 * Olmstead v. Brown, 12 Barb. 
 662. Defendant published in a news- 
 paper defamatory matter of plaintiff. 
 One of her acquaintances cut out the 
 words, pasted the slip on a postal 
 card and sent it to plaintiff. Held that 
 if the publication on the postal card 
 was a natural consequence of defend- 
 ant's publication, she was respons- 
 ible for it, and it was for the jury to 
 say whether the publication on the 
 postal card was the natural conse- 
 quence of defendant's publication. 
 (Zier V. Hoflin, 33 Minn. 66.) But in 
 an action for slander, evidence that a 
 particular person, who was not pres- 
 ent when the slander was uttered, has 
 ceased to show hospitality to plaintiff 
 in consequence of a subsequent repe- 
 tition by some one in such person's 
 hearing of the slander complained of, 
 IS no evidence of special damage. 
 (Clarke u. Morgan, 38 L. T. N. S. 
 354: § 114, ante, and § 202, post.) 
 
 ' " As to what constitutes special 
 damage Starkie mentions the loss of 
 marriage, loss of hospitable gratui- 
 tous entertainment, preventing a serv- 
 ant or bailiff from getting a place, the 
 
 loss of customers by a tradesman, and 
 says that, in general, whenever a per- 
 son is prevented by the slander from 
 receiving that which would otherwise 
 be conferred upon him, though gratu- 
 itously, it is sufficient." (Terwilliger 
 V. Wands, 17 N. Y. 60; citing Starkie 
 on Slander, 195, 202 ; Cooke on Defam. 
 22, 24 ; Albrecht v. Patterson, 1 2 Vict. 
 Law Rep. 597.) Plaintiff being re- 
 fused employment (Sterry v. Foreman, 
 2 Car. & P. 592), or insurance upon a 
 ship of which he was master (Shipman 
 V. Burrows, I Hall, 399), is special 
 damage. 
 
 ■* Lynch v. Knight, 5 Law Times, 
 N. S. 291; 9 House L. 577; Parkins 
 V. Scott, 6 Law Times, N. S. 394; i 
 House L. 153; Roberts v. Roberts, 33 
 Law Jour. Q. B. N. S. 249; and see 
 Passman v. Fletcher, Clayton, 73, 
 
 "■ Moore v. Meagher, i Taunt. 39; 
 Williams v. Hill, 19 Wend. 305. 
 Where a father, in consequence of 
 defamatory words spoken of his minor 
 daughter, although he entirely disbe- 
 lieves them, refuses to furnish her with 
 proper articles of clothing, or means 
 of education, this is not such special 
 damage as will sustain the action, as 
 such treatment by a parent of his child 
 is not the natural result of a falsehood 
 reported of her. (Anon. 60 N, Y. 
 262.) 
 
264 
 
 WHAT LANGUAGE IS ACTIONABLE. [CH. VIIL 
 
 ance occasioning or involving an actual or constructive 
 pecuniary loss/ The special damage must be the .loss of 
 some material temporal advantage.* Loss of consortium 
 vicinorum is not sufficient.^ Where the declaration al- 
 leged that defendant had spoken of the female plaintiff 
 that she had connection with a man two years ago, where- 
 by she was injured in her reputation, became alienated 
 from and deprived of the cohabitation of her husband, lost 
 and was deprived of the companionship, and ceased to re- 
 ceive the hospitality of divers friends, of whom her hus- 
 band and three other persons were named, held, upon de- 
 murrer, that the declaration was good, the special damage 
 
 * " All the cases proceed upon the 
 assumption that the plaintiff has sus- 
 tained some pecuniary loss in conse- 
 quence of the slander. It is not suffi- 
 cient that she has fallen into disgrace, 
 contempt and infamy, and lost her 
 credit, reputation and peace of mind, 
 or the society or good opinion of her 
 neighbors, unless she has been injured 
 in her estate or property." (Wood- 
 bury V. Thompson, 3 New Hamp. 
 194; and see ante, notes I, p. 46. and 
 I, p. 50; Kelly V. Partington, 3 Nev. 
 & M. 116; Keenholts v. Becker, 3 
 Denio, 346; Foulger v. Newcomb, 
 Law Rep. 2 Ex. 330.) And, because 
 in England, the fees of barristers and 
 physicians are honorary, it has been 
 doubted if barristers or physicians can 
 sustain special damage in their profes- 
 sions. (Brown v. Kennedy, 32 Law 
 Jour. Chan. 342.) The doubt, how- 
 ever, is ill-founded, as the loss of a 
 gratuity is special damage. (Hartley 
 V. Herring, 8 T. R. 130; and note 3, 
 p. 263, and note 4, p. 270, post^ " One 
 essential element of a good cause of 
 action for defamation is damage;" 
 but in TerwiUiger v. Wands (17 N.Y. 
 61), and Wilson v. Goit {Id. 442), the 
 whole tenor of the opinions implies 
 that loss of reputation is the gist of 
 the action, and in the first-named case 
 it is said, " It is injuries affecting the 
 reputation only, which are the subject 
 of the action." " The special damage 
 must flow from impaired reputation." 
 
 This, however, may mean only that 
 the language must be defamatory. 
 (See Samuels v. Evening Mail Asso. 
 6 Hun, 5 ; ante, note p. 46.) 
 
 * Claim that plaintiff was a candi- 
 date for membership of the R. club, 
 but upon a ballot was not elected ; a 
 meeting of the members was called to 
 consider an alteration of the rules re- 
 garding election of members ; that de- 
 fendant falsely and maliciously spoke 
 of plaintiff, "The conduct of the 
 plaintiff was so bad at a club in M. 
 that a round robin was signed urging 
 the committee to expel him, " where- 
 by defendant induced a majority of 
 the club members to retain the regu- 
 lations under which plaintiff had been 
 rejected, and thereby prevented plaint- 
 tiff from again seeking to be elected. 
 Held, upon demurrer, that the claim 
 disclosed no cause of action; the 
 words were not actionable in them- 
 selves nor supported by special dam- 
 age. The damage alleged was not 
 pecuniary or capable of being estimat- 
 ed in money, and was not the natural 
 and probable consequence of defend- 
 ant's words. (Chamberlain v. Boyd, 
 II Q. B. D. 407.) Charging a candi- 
 date for office with being a freemason, 
 whereby his canvass was injured, held 
 actionable, (Lareau v. La Minerve, 
 27 L. C. J. 337, Quebec.) 
 
 ' Roberts v. Roberts, 33 Law 
 Jour. Q. B. 250; Beach v. Ranney, 2 
 Hill, 309. 
 
§ igS.] WHAT LANGUAGE IS ACTIONABLE. 265 
 
 being sufficient to sustain the action.^ But where a decla- 
 ration, after stating the words, which were not actionable 
 per se, alleged " whereby plaintiff has been damaged and 
 injured in her name and fame," on demurrer held not to 
 disclose any special damage, and demurrer allowed.^ 
 Where words were spoken imputing unchastity to a wo- 
 man, by reason whereof she was excluded from a private 
 society and congregation of a sect of Protestant dissenters, 
 of which she had theretofore been a member, and was pre- 
 vented from obtaining a certificate, without which she 
 could not become a member of any other society of the 
 same nature, held that such a result was not " special dam- 
 age," and did not render the words actionable;^ but an ac- 
 tion was held maintainable where the plaintiff", an unmar- 
 ried woman, in consequence of a charge of incontinence, 
 was refused civil treatment at a hotel or tavern.* A charge 
 of incontinence against an unmarried woman, whereby she 
 loses her marriage, is actionable,* as to say of the plaintiff", 
 " Anne Reston hath had a child, and if she has not a 
 child, she has made away with it ; " * or, " You ought not 
 
 1 Davies v. Solomon. Law. Rep. 7 of certain persons, naming them, and 
 
 Q. B. 112. of his neighbors, divers of whom re- 
 
 ' Pollard V. Lyon. I Otto (91 U. fused to transact business with him, 
 
 S.), 225. An allegation that the words and from whose friendship, hospitality 
 
 " injured plaintiff in her good name and business dealings plaintiff had 
 
 and caused her relatives and friends theretofore derived profit and advan- 
 
 to slight and shun her," held not to tage, held not to state special damage, 
 
 disclose special damage. (Bassell v. (Ashford v. Choate, 20 Up. Can. C. P. 
 
 Elmore, 48 N. Y. 563; 65 Barb. 627.) Rep. 471.) 
 
 And the allegation was that, by reas- ' Roberts v. Roberts, 33 Law. 
 
 on of the words, " plaintiff had been Jour. Q. B. 250. 
 
 slighted, neglected and misused by •* Olmstead 7/. Miller, i Wend. 510. 
 
 the neighbors and her former associ- ' Davis v. Gardiner, 4 Co. 16. 
 
 ates. and turned out of doors;" but Saying orally of plaintiff: "She was 
 
 on the trial the only proof of special with child and miscarried," by which 
 
 damage was that plaintiff had been she lost suitors, not actionable, 
 
 requested to leave the house of one (Barnes v. Prudlin, i Sid. 396.) But 
 
 D., where she went to make a call: saying of a servant, she had a miscar- 
 
 shewas nonsuited, and the court above riage, and lost her place in conse- 
 
 sustained the nonsuit. (Pettibone v. quence, held actionable. (Connors v. 
 
 Simpson, 66 Barb. 492.) A declara- Justice, 13 Jr. C. L. R. 45'-) 
 
 tion which concluded, whereby plaint- « Reston v. Pomfreict, Cro. Eliz. 
 
 iff lost the friendship ard hospitality 639. 
 
266 WHAT LANGUAGE IS ACTIONABLE. [CH. VIIL 
 
 to marry her [the plaintiff], for before God she is my 
 wife, and therefore, if you do you will live in adultery, 
 and your children will be bastards." ^ Loss of a wife is 
 the same to a man as loss of a husband is to a woman, 
 and therefore, where the defendant called the plaintiff a 
 whoremaster, whereby he lost his marriage, it was held 
 he could maintain his action ; ^ and so saying of one 
 who was a widower, that he had kept his wife basely, and 
 starved her or denied her necessaries, whereby he lost his 
 marriage was held actionable f and calling plaintiff bastard, 
 whereby he lost his marriage, was held actionable.* As to 
 loss of customers, where it was said of an innkeeper, I 
 [defendant] saw Cook lie with Collins' [plaintiff's] wife, 
 whereby plaintiff lost his customers, it was held that an 
 action could be maintained ; ** and so where it was said of 
 an innkeeper, that a person had died in his house of the 
 plague, whereby his [plaintiff's] guests left his house, it was 
 held he might maintain his action.* Words imputing in- 
 
 * Sheperd v. Wakeman, i Sid. 79. » Comyn's Dig. Act. for Def. D, 
 Saying of a woman, she was a man, 29; as to loss of customers, see Evans 
 not a woman, with special damage, v. Harries, i Hurl. & Nor. 251 ; Vin. 
 held actionable. (Pye v. Wallis, cited Abr. Act. for Words, U, a, 13; Brown 
 Curt. 55.) See Hermaphrodite. v. Gibbons, 2 Ld. Raym. 831 ; Cole- 
 
 * Matthew v. Crass, Cro. Jac. 323 ; man v. Harcourt, i Lev. 140 ; Tren- 
 2 Bulst. 86; and see Sell v. Facy, 2 ton Ins. Co. v. Perrine, 3 Zabr. 402. 
 Bulst. 276 ; Southold v. Daunston, Action by a butcher for saying a cow, 
 Cro. Car. 269 ; contra, see Witcher's the carcass of which he had to sell. 
 Case, Keb. 119. In Taylor v. Tally died by calving, by which he lost his 
 (Palmer, 385), defendant said of plaint- customers, judgment was given for the 
 iff that he, plaintiff, had ravished the plaintiff, but reversed on error, the 
 wife of H. ; and plaintiff allegfing that alleged loss of customers being too 
 thereby he lost his marriage, the general; but held that had it been 
 words were held actionable. laid, the plaintiff exposed the meat for 
 
 3 Anon. Mar. 2 ; Wicks v. Shep- sale, and by reason of the words he 
 
 herd, Cro. Car. 155. lost the sale, the action could have 
 
 * Nelson v. Staff, Cro. Jac. 422. been maintained. (Rice u. Pidgeon, 
 Saying of the plaintiff, he hath been Comb. 161, and Tassan v. Rogers, 2 
 in bed with Dorchester's wife, whereby Salk. 693.) "A distinction has been 
 he lost his marriage, held actionable. made between particular damage and 
 (Southold V. Daunston, Cro. Car. 269 ; general damage ; thus, in an action 
 ante, § 174.) for slandering a man in his trade, 
 
 5 Collins V. Matthews, 3 Keb. 242 ; when the declaration alleges that he 
 
 and see Riding v. Smith, Law Rep. i thereby lost his trade, he may show a 
 
 Ex. Div. 91 ; Harnett v. Wilson, i general damage to his trade, though 
 
 Vict. Law Times, 45. he cannot give evidence of particular 
 
§ igS.J WHAT LANGUAGE IS ACTIONABLE. 
 
 267 
 
 continence to a dissenting minister, whereby the persons 
 frequenting his chapel refused to permit him to preach, 
 and discontinued giving him certain reward as they usually 
 had, and but for the publication complained of, would 
 have done, were held actionable.^ Where the declaration 
 alleged that plaintiff being the proprietor of certain rooms 
 adapted for a dancing academy, defendant falsely and ma- 
 liciously published of the building and rooms, and of 
 plaintiff as proprietor thereof, that "the magistrates having 
 refused to renew a music and dancing license to the pro- 
 prietor, all such entertainments there carried on are illegal 
 and the proprietor renders himself thereby indictable for 
 keeping a disorderly house, and every person found on the 
 premises will be apprehended and dealt with according to 
 law," by means of which publication plaintiff was prevent- 
 ed from letting said rooms ; held on demurrer that the de- 
 claration disclosed a cause of action.^ 
 
 instances." (Cresswell, J., Rose v. 
 Groves, S M. & G. 618; Hartley v. 
 Herring, 8 T. R. 130.) The words. 
 You are an infernal rogue and swind- 
 ler, spoken of the keeper of a restau- 
 rant, were held not actionable; they 
 did not affect plaintiff in his occupa- 
 tion. But the plaintiff having alleged 
 that, by reason of the words, people 
 who used to frequent his restaurant, 
 ceased to deal with him. it was held 
 the special damage made the words 
 actionable, and that the special dam- 
 age was sufficiently alleged ; that the 
 cases of frequenters of theatres, mem- 
 bers of congregations, and travelers 
 using an inn, were exceptions to the 
 rule requiring the names of the cus- 
 tomers lost to be set forth. (Brady v. 
 Goulden, Melbourne Argus Rep. Sept. 
 6th. 1867; Kerford & Box's Digest of 
 Victoria Cases, 709.) A general 
 allegation of loss of trade is sufficient 
 in ordinary cases, without setting out 
 names of customers, and may be sup- 
 ported by evidence of such general 
 loss. (Weiss V. Whittemore, 28 Mich. 
 366; § 345, /m/.) a general allega- 
 tion that by reason of defendant's acts. 
 
 plaintiff had been compelled to pay a 
 large sum of money, without showing 
 how, held insufficient. (Cook v. 
 Cook, 100 Mass. 194.) To prove 
 the loss of a customer, the customer 
 must be called to prove why he 
 ceased to deal with the plaintiff, 
 and if the witness says he ceased to 
 deal with plaintiff in consequence of 
 something he heard from one not the 
 defendant, it is not special damage. 
 (Bamett v. Allen, i Fos. & F. 125; 
 and see Dixon v. Smith, 5 Hurl. & N. 
 450; Hirst V. Goodwin, 3 Fos. & F. 
 257; Sewall V. Catlin, 3 Wend. 292.) 
 
 1 Hartley v. Herring, 8 T. R. 130. 
 
 ' Bignell v. Buzzard, 3 Hurl & 
 Nor. 217. In Dibdin v. Swan, i Esp. 
 Cas. 28, the plaintiff was the proprie- 
 tor of a place of amusement called Sans 
 Souci, where he sang certain songs 
 supposed to be composed by himself; 
 he sued the defendant, the proprietor 
 of a newspaper called the World, for 
 publishing in that paper that such 
 songs were not composed by the 
 plaintiff; that on the first night when 
 plaintiff sang there had been a very 
 thin audience, and that composed 
 
268 WHAT LANGUAGE IS ACTIONABLE. [CH. VUI. 
 
 § 199. Where the person to whom the publication is 
 made is, by reason of the charge, induced to act upon it 
 to the prejudice of the person whom it may concern, it is 
 in a measure immaterial whether the person to whom the 
 publication was made believed or disbelieved in the truth 
 of the charge; thus, where a charge was made to A., 
 against a female [the plaintiff] in her, A.'s, employ, in 
 consequence of which A. dismissed the plaintiff from her 
 employ, and, on the trial, A. testified' that such dismissal 
 was not because she believed the charge to be true, but 
 because she was afraid she should offend the defendant, 
 her landlord, by retaining plaintiff in her employ ; held, 
 that the special damage, the dismissal, being a natural 
 consequence of the charge, the action was maintainable.* 
 But, in another case, the disbelief of the person to whom 
 the publication was made was held to be material. Thus, 
 where a father had promised his daughter [the plaintiflF] 
 clothing and instruction in music, and, in consequence of 
 the words published by defendant concerning plaintiff, the 
 father, although he did not believe said words to be true. 
 
 of persons admitted by orders (for lawful meeting and a misdemeanor 
 
 free admission), and that the applause under § 448 of the Penal Code. (Gre- 
 
 was only from the persons so admitted. gory v. Duke of Brunswick, 6 M. & 
 
 The report does not state the result G. 953 : see The Law of Theatres & 
 
 of the case, but merely the charge of Music Halls, by W. N. M. Geary). 
 Lord Kenyon, that the editor of a * Knight v. Gibbs, 3 Nev. & M. 
 
 newspaper may fairly and candidly 467 ; i Adol. & El. 43. I do not know 
 
 comment on any place or species of that the belief of the party is at all 
 
 public entertainment, but it must be material. I may not beUeve a charge, 
 
 done fairly and without malice or view and yet I may not have the courage to 
 
 to injure the proprietor. That if so keep a person who is suspected by 
 
 done, however severe the censure, the others. I think it better that we 
 
 justice of it screens the editor from should lay it down generally, that if 
 
 legal animadversion ; but if the com- the words are slanderous, and are 
 
 ment be unjust, malevolent, or exceed- acted upon to the prejudice of the 
 
 ing the bounds of fair opinion, it is ac- party slandered, an action may be 
 
 tionable. As to comments on theatri- maintained. {Id.) To the like effect 
 
 cal performances, see Fry v. Bennett, 5 see Gillett v. BuUivant, 7 Law Times, 
 
 Sandf. 54; 3 Bosw. 200; 28 N. Y. 490. Contra is a dictum, Wilson w. 
 
 324; post, % 253, et seq. In England Goit, 17 N. Y. 445. " An action of 
 
 the right to hiss an actor seems to be slander . . would plainly be per- 
 
 conceded, but in New York the opinion verted if allowed where the slanderous 
 
 seems to be that to hiss at a theatri- words were not credited by any indi- 
 
 cal performance is a disturbance of a vidual." See note 5, p. 261, ante. 
 
§ 200.J WHAT LANGUAGE IS ACTIONABLE. 269 
 
 yet he withheld the performance of his promise, such with- 
 holding was held not to be special damage. It was not a 
 natural result of the words that a father who did not be- 
 lieve them to be true, should therefore withhold a contem- 
 plated benefit to his daughter.^ These decisions are quite 
 consistent. In the first, the act induced by the words 
 published was a natural result of the publication ; in the 
 second case, the act induced was not a natural result. And 
 this shows that it is not the belief or disbelief in the truth 
 of the charge published which is the controlling circum- 
 stance, but the controlling circumstance is whether or not 
 the injury which followed the charge was or was not a na- 
 tural consequence thereof (§§ 198 and 202). 
 
 § 200. Mere apprehensions of loss is not such special 
 damage as will maintain an action;^ as where defendant 
 said of plaintiff that he had two bastards, and the alleged 
 special damage was that, by reason of the words, a con- 
 tention arose between plaintiff and his wife, and he was 
 in danger to be divorced.^ And where the defendant said 
 of plaintiff, she is with child by T. S., and the alleged 
 special damage was that in consequence of the words the 
 father of plaintiff threatened to turn her out of his house, 
 this was held not to amount to such special damage as 
 
 ' Anon. 60 N. Y. 262. Grover, J. : but did not allege that by any acts of 
 " I do not think special damage can be defendant, he, plaintiff, had been de- 
 predicated upon the act of any one prived of the benefit of any contract 
 who wholly disbelieves the truth of the he had made, or of any property in 
 story. It is inducing acts injurious to existence, or that the defendant pub- 
 the plaintiff, caused by a belief of the lished his directory as a directory 
 truth of the charge made by the de- prepared and published by plaintiff, 
 fendant. that constitutes the damage held that plaintiff showed no cause of 
 which the law redresses." action against defendant, as it was 
 
 ^ Where plaintiff alleged that he entirely problematical whether plaint- 
 was and had been engaged in the iff "would actually have published a 
 compilation of a certain directory directory if defendant had not made 
 which he published biennially; and the representations as alleged. (Dud- 
 that by reason of the false statement ley v. Briggs, 141 Mass. 582; 33 Alb. 
 of defendant that he, plaintiff, had L. J. 486.) 
 
 gone out of business, he, plaintiff was ^ Barmund's Case, Cro. Jac. 473; 
 
 prevented from compiling and • pub- Salter v. Browne, Cro. Car. 436. 
 lishing a directory as he had intended ; 
 
270 WHAT LANGUAGE IS ACTIONABLE. [CH. VIIL 
 
 would support an action.^ Where the plaintiff alleged 
 that she was a single woman and chaste, and that her 
 mother meant to give her ;^i50 and her brother ;^ioo, 
 and that by reason of the defendant's charging her with 
 incontinence, they did not give her these sums, it was 
 doubted if the action was maintainable, and no judgment 
 was rendered,^ Again, where the plaintiff alleged that 
 by reason of the publication he had incurred the ill-will 
 of his mother-in-law, who had previously promised him 
 ^100, held that no cause of action was shown.* Where 
 the plaintiff alleged that her brother had promised to 
 supply her with the means to emigrate from Ireland, but 
 in consequence of the defendant's imputation her brother 
 had retracted his promise until the truth of the charge 
 was established or refuted, this was held to constitute 
 special damage, and that it was not necessary to allege that 
 there was any consideration for the brother's promise.* 
 Where the injury to the plaintiff is the result in part only 
 of the defendant's act, subject to the qualifications here- 
 after to be mentioned, it will not give a right of action 
 against the defendant; thus, where the plaintiff was dis- 
 charged from his employment partly on account of the 
 publication by the defendant and partly from other causes, 
 it was held that the plaintiff could not recover.® And 
 where the plaintiff alleged that in consequence of the 
 words he [the plaintiff] refused to marry his betrothed, and 
 so he lost his marriage, it was held the loss of marriage 
 did not under such circumstances constitute special dam- 
 age.* Where the plaintiff alleged that, by reason of the 
 
 » Barnes v. Bruddell, 2 Keb. 451 ; R. N. S. 272. A voluntary benefit 
 
 S. C. I Lev. 261. withdrawn is special damage. (Camp- 
 
 2 Bracebridge v. Watson, LUIy bell v. White, S Ir. Com. Law Rep. 
 
 Ent. 61. See the case of an alleged 312; i Ir. Jur. N. S. 213.) 
 novice in a religious community. = Vicars v. Wilcocks, 8 East, I ; 2 
 
 (Dwyerw. Meehan, 18 L. R. Ir. 138.) Stark. Ev. 637. See note 5, p. 261, 
 
 ' Harris v. Porter, Curt, i ; see ante. 
 Anon. 60 N. Y. 262. « .Carter v. Smith, Vin. Abr. Act. 
 
 * Corcoran v. Corcoran, 7 Ir. L. for Words, D, a, 10. 
 
§ 20I.] WHAT LANGUAGE IS ACTIONABLE. 27I 
 
 language published by the defendant, all honest persons re- 
 fused to marry their daughters to him [the plaintiff], held 
 that the plaintiflF did not disclose a cause of action.^ As 
 the law gives no direct remedy for outraged feelings or 
 sentiments (§ 56), a sickness induced by mental distress in 
 consequence of the language published, followed by in- 
 ability to transact business and expense for medical attend- 
 ance, does not constitute special damage, and for words not 
 actionable per se which occasion such results, no action 
 can be maintained.* But where the language is actionable 
 per se, and the case is one for exemplary damages, the 
 jury may be instructed to consider the injury to plaintiff's 
 feelings.* If, after a recovery has been had in an action 
 for slander or libel, special damage occurs, no action can 
 be maintained therefor; the first recovery is a bar to any 
 subsequent action.* 
 
 § 201. It has been very generally reputed and accepted 
 for law, that the illegal act of a third party cannot consti- 
 
 ' Norman v. Simons, Vin. Abr. see anie, note 3, p. 265. Loss of a 
 
 Act. for Words, D, a, 12. wife's services from illness occasioned 
 
 " Terwilliger v. Wands, 17 N. Y. by the publication of language not ac- 
 
 54; Wilson v. Goit, 17 N. Y. 442; tionable ^«r j^, is not special damage 
 
 AUsop V. Allsop, 5 Hurl. & Nor. 534; so as to give a right of action to the 
 
 Bedell v. Powell, 13 Barb. 183; Samu- husband. (Wilson v. Goit, 17 N. Y. 
 
 els v. Ev'g Mail Asso. 6 Hun, S; 442; Allsop w. Allsop, 5 H. & N. 534; 
 
 Prime v. Eastwood, 45 Iowa, 640. 29 L. J. Ex. 315; and see Guy v. 
 
 These decisions overrule Bradt v. Gregory, 9 Car. & P. 584; Beach 2/. 
 
 Towsley, 13 Wend. 253; Fuller v. Ranney, 2 Hill, 309; Lehman v. 
 
 Fenner, 16 Barb. 333; Olmstead v. Brooklyn City R. R. Co. 47 Hun, 365; 
 
 Brown, 12 Barb. 657; Underbill v. Renner v. Canfield, 34 Alb. L. J. 3.) 
 
 Welton. 32 Vt. (3 Shaw) 40. and do In an action by husband and wife, for 
 
 not accord with what is said in Wil- words of the wife actionable per se, 
 
 Hams V. McManus, 38 La. An. 161 ; the plaintiff cannot recover as special 
 
 Chisley v. Tompson, 137 Mass. 136. damage loss occasioned by one refus- 
 
 In McQueen v. Fulgham, 27 Texas, ing to employ his wife as a servant. 
 
 473, it was held that proof of sickness That is damage for which the hus- 
 
 contemporaneous with the publication band alone must sue. (Dengate v. 
 
 of the alleged libel was not proof that Gardiner, 4 M. & W. 5.) 
 the alleged libel was the cause of such ' Brooks v. Harrison, 91 N. Y. 83. 
 
 sickness. See § 290, post In New Where a cause of action exists, injury 
 
 York, it has been held that plaintiff to the feelings may be aggravation, 
 
 being shunned by her neighbors, and See §391, posi. 
 
 turned out of the moral reform society, * Bull. N. P. 7, citing Fittler -v. 
 
 did not constitute special damage. Veal, Cas. Pr. K. B. 542; Cooke De- 
 
 (Beach v. Ranney, 2 Hill, 309; and fam. 24. 
 
272 WHAT LANGUAGE IS ACTIONABLE. [CH. VIII. 
 
 tute special damage;^ in other words, that one illegal 
 (wrongful) act cannot be a natural and proximate conse- 
 quence of another illegal (wrongful) act. This idea appears 
 very frequently in the reports, in the expression that spe- 
 cial damage must be the natural and legal consequence of 
 the act complained of. The case usually referred to in sup- 
 port of this proposition is one in which the defendant 
 falsely asserted that plaintiff had cut his master's cordage, 
 in consequence of which the plaintiff's master, although 
 under a binding contract to employ him for a term which 
 had not then expired, discharged him, it was held the plaint- 
 iff could not recover; that such discharge did not consti- 
 tute special damage, because it was not a natural and legal 
 consequence of the publication; that the defendant was no 
 more answerable for the discharge than if in consequence 
 of the words spoken other persons had assaulted the plaint- 
 iff; and that if in such a case plaintiff could recover, for 
 the refusal of a third person to perform his legal contract, 
 he might twice recover for the same cause — once in the 
 action for the slander, and again in an action against the 
 third person for the breach of his contract.* It was suf- 
 
 1 Bentley v. Reynolds, I McMuUan persons ; and the law supposes that, in 
 (So. Car.), 16. See Brooks v. Harri- such actions, the plaintiff would re- 
 son, 91 N. Y. 91. ceive a full indemnity." The author- 
 
 * Vicars v. Wilcocks, 8 East, i. ity of both these cases has been very 
 
 This is one of the cases selected by much questioned. See Collins v. 
 
 Mr. Smith as a leading case, and ap- Cave, 4 Hurl. & N 225; 6 Id. 131; 
 
 pears with an elaborate note in 2 Walker v. Goe, 3 Id 395; i^ Id. 351; 
 
 Smith's Leading Cases. This case is Green v. Button. 2 Cr. M. & R. 707 ; 
 
 commented upon in a note, i Starkie and particularly Lynch v. Knight, 9 
 
 on Slander, 207. Similar to Vicars v. House of Lords Cas. 577, where Lord 
 
 Wilcocks is Morris v. Langdale, 2 Wensleydale says : " I strongly incline 
 
 Bos. & Pul. 289, where Lord Eldon, to agree that to make the words ac- 
 
 Ch. J., said : "A great part of the tionable by reason of special damages, 
 
 special damage consists in an allega- the consequences must be such as 
 
 tion that other persons did not per- taking human nature with its infirmi- 
 
 form their lawful contracts with him. ties, and having regard to the rela- 
 
 Now, if the plaintiff has sustained any tionship of the parties concerned, 
 
 damage in consequence of the refusal might fairly and reasonably have been 
 
 of any persons to perform their lawful anticipated, and would follow from 
 
 contracts with him, it is damage the speaking of the words, not what 
 
 which may be compensated in actions would reasonably follow or what we 
 
 brought by the plaintiff against those might think would follow.'' 
 
§ 20I.] WHAT LANGUAGE IS ACTIONABLE. 273 
 
 ficient to sustain this decision that the discharge was not a 
 natural consequence of the pubhcation ; the residue of 
 the decision is obiter, and is not sustainable either on prin- 
 ciple or precedent. Subsequently, in an action for words 
 whereby one who was under a contract to marry the plaint- 
 iff, broke his contract and refused to marry her, it was 
 urged against the maintenance of the action that the plaint- 
 iff had her remedy on the contract to marry her, that the 
 breach of the contract was an illegal act of the contract- 
 ing party, and that the breach of said contract was not 
 special damage, because not a legal consequence of the 
 publication, but the action was sustained.^ These decisions, 
 although apparently conflicting, are not so in reality ; for 
 obviously an illegal act, equally with a legal act, may be 
 the natural consequence of a publication, and where, as in 
 the case of a promise to marry, the breach of it, although 
 illegal, is nevertheless a natural consequence of the publi- 
 cation, in that case the illegal act constitutes special dam- 
 age ; but where the breach of a contract is not a natural, 
 or, if a natural, is not a proximate consequence of the pub- 
 lication, in such a case, the breach of contract does not 
 constitute special damage, not because such breach is an 
 illegal act, but because it is not a natural and proximate 
 consequence of the publication.^ Where the defendant 
 published language concerning one, an actress, in the em- 
 
 ' Moody 7/. Baker, 5 Cow. 351. lishing those words. (Carroll/. Fal- 
 
 2 There are many cases where a kiner, Melbourne Argus Rep. Sept. 3, 
 
 recovery has been had for illegal acts 1867.) Where the special damage al- 
 
 of third persons induced by the de- leged was that A., of whom plaintiff 
 
 fendant's act, as for preventing work- had purchased barley, had, in conse- 
 
 men from continuing their work, en- quence of something said by defend- 
 
 ticing away wives, servants, appren- ant, refused to deliver said barley. On 
 
 tices, or tenants, &c. See in note, the trial, A. was called as a witness, 
 
 p. 3, ante; and Green v. Button, 2 and counsel permitted to ask him 
 
 Cr. M. & R. 707 ; Lumley v. Gye, 2 whether it was not in consequence of 
 
 Eli. & Bl. 216. Where there was evi- what others told him that he refused 
 
 dence that the words were spoken to deliver. (King v. Watts, 8 C. & P. 
 
 with the intent to make a third person 614; see § 206, post. And see Society 
 
 break his contract with plaintiff; held Francais des Asphaltes v. Farrell, i 
 
 that the breaking of the contract was Cabab6 & E. 563 ; Brentman v. Note, 
 
 special damage in an action for pub- 3 N. Y. Suppl. 420.) 
 18 
 
274 WHAT LANGUAGE IS ACTIONABLE.. [CH. VIII. 
 
 ploy of another, the proprietor of a theater, in consequence 
 of which such employee refused to fulfill her engagement 
 with her employer [the plaintiff], and whereby the plaint- 
 iff, as he alleged, lost profits in his business, it was held 
 that the action cou)d not be maintained.^ That the dam- 
 ages were too remote is usually assigned, and is one of the 
 expressed grounds for the decision; another and a sufficient 
 ground would be, that her refusal to fulfill her engagement 
 was not a natural result of the publication. 
 
 § 202. Ordinarily the repetition (§§ 112, 114, 115) of 
 defamatory language [slander] by another than the first 
 publisher is not a natural consequence of the first publica- 
 tion, and therefore, except under circumstances to be pres- 
 ently referred to, the loss resulting from the repetition of 
 defamatory language does not constitute special damage, 
 and is not attributable to the first publisher.^ Thus, where 
 it was alleged that defendant said of plaintiff, " He is a 
 rogue and a swindler ; I know enough about him to hang 
 him," and it was alleged as special damage that one B., 
 who was about to sell goods to plaintiff on credit, had, by 
 reason of defendant's representation, refused to trust plaint- 
 iff ; on the trial the proof was that defendant spoke the 
 words to one C, who repeated them to B., and that it was 
 
 » Ashley v. Harrison, i Peake's Dixon v. Smith, 5 Hurl. & N. 450; 
 Cas. 194. In an action for fraudu- Barnett v. Allen, i Fost. & F. 125. A 
 lently selling plaintiff diseased sheep, complaint for libel, for words con- 
 held it was not special damage that in tained in a letter and not actionable 
 consequence of a report that plaintiff in themselres, alleged that the letter 
 had purchased defendant's diseased was read by third persons to whom 
 sheep, one A. refused to complete a the receiver showed it, and alleged 
 contract he had with plaintiff for a special damage from this and not from 
 supply of meat, or that plaintiff's cus- the reading by the receiver. Held the 
 tomers had left him. (Grain v. Petrie, complaint was bad for not alleging 
 6 Hill, 523.) See observations in that the writer authorized the receiver 
 Kendall v. Stone, 5 N.Y. 20, and note to show it. (Gough v. Goldsmith, 44 
 to § 206, post. Wis. 262 ; and see note 2. page 94, 
 
 2 Stevens v. Hartwell, 11 Mete. and note 4, page 261, ante.) For a 
 
 542 ; Olmsted v. Brown, 1 2 Barb. 657 
 Keenholts v. Becker, 3 Denio, 346 
 Terwilliger v. Wands, 17 N. Y. 58 
 
 republication (§ n 2, 1 14), not only the 
 original publisher but the republisher 
 is liable. 
 
§ 202.J WHAT LANGUAGE IS ACTIONABLE. 275 
 
 in consequence of that repetition, and nothing else, that 
 B. refused to trust plaintiff, it was held the defendant was 
 not liable for the consequences of the repetition, and that 
 the plaintiff could not recover.^ In Parkins v. Scott, the 
 defendant charged Mrs. Parkins with adultery ; she com- 
 municated this fact to her husband, and he, in consequence, 
 refused to cohabit with her.^ It was held that no action 
 could be maintained, for, although loss of consortium of 
 husband or wife may constitute special damage (§ 198), 
 yet, under the circumstances, the defendant was not liable. 
 In some instances, the circumstances of the case may be 
 such as render the repetition of the language by another 
 than the first publisher, a link in the chain of natural con- 
 sequences of the first publication, and the loss by such re- 
 petition to the person whom the language concerns a 
 natural and proximate consequence of the first publication, 
 and therefore special damage for which the first publisher 
 is responsible. Where a police magistrate, after disposing 
 of a charge before him, said to a police officer [the plaint- 
 iff] who had been examined as a witness in the matter, 
 that he was not to be believed, and this being heard by 
 another officer present, was by him reported to the plaint- 
 iffs employer's, the police commissioners, and they, in 
 
 ^ Ward V. Weeks, 7 Bing. 211. wood z/. Hopkins, Cro. Eliz. 787.) In 
 The decision seems to have been put Moody v. Baker, 5 Cow. 351, it was 
 on the ground of a variance, the held that the declarations of the man 
 allegation being that the injury was in that he was not influenced in his re- 
 consequence of a publication by the fusal to marry by the words published 
 defendant, and the proof being that were not admissible, 
 the injury was in consequence of a ^ I Hurl. & Colt. 154; S. C. Par- 
 publication by another. (See Tunni- kins v. Scott, 6 Law Times, N. S. 394. 
 cliffe V. Moss, 3 C. & K. 83 ; Dicken D. & C. signed a libelous communica- 
 ■V. Shepherd, 22 Md. 399.) Where tion concerning H., and intrusted it to 
 words were spoken to a servant of the L. for publication. L. took it to a 
 plaintiff imputing incontinence to the newspaper correspondent who re- 
 plaintiff, and the plaintiff alleged for wrote it, cutting it down, and without 
 special damages that in consequence authority signed the names of D. & C. 
 of the words, J. S., who was in com- to it. It was thus published. D. & C. 
 munication of marriage with her, re- saw it and did not disavow it. D. ad- 
 fused to marry her, the plaintiff failed mitted he had signed it. Held D. was 
 to sustain her action, because the liable and C. was not. (Dawson v. 
 words were not spoken to J. S. (Hoi- Holt, 1 1 Lea. 583.) 
 
276 WHAT LANGUAGE IS ACTIONABLE. [CH. VIII. 
 
 consequence, dismissed the plaintiff from tiieir employ- 
 ment, it was held, in an action against the magistrate, that 
 such dismissal was special damage.^ Where the plaintiff 
 was governess in the family of A., and the defendant pub- 
 lished language to the plaintiff's father imputing to her 
 having had a child by A., this language the plaintiff's 
 father repeated to A., who thereupon dismissed her from 
 his service, alleging as a reason that although he knew the 
 charge to be false, it would be injurious to the plaintiff 
 and would be unpleasant both to the plaintiff and himself, 
 A., that she should remain in the family, it was held that 
 the dismissal was a natural consequence of the defendant's 
 first publication, for which he was liable.* And so where 
 the plaintiff was a clerk in the employment of C. & S., 
 who were partners, and the defendant, a former employer 
 of plaintiff, published to C, one of said partners, language 
 imputing dishonesty to the plaintiff, this language C. re- 
 peated to S., his partner, and it was held the defendant was 
 liable for the consequences of the repetition.* In each of 
 the two cases lastly referred to, the court evidently having 
 in view the supposed rule of law above referred to (§ 201), 
 that special damage must be a legal consequence of the 
 act complained of, lays a marked stress upon the fact that 
 the repetition was privileged, that is to say that the father 
 in the one case and the employer and partner in the other, 
 was justified in making the repetition, and that in neither 
 case could the plaintiff have maintained an action against 
 the one making the repetition, and the whole tenor of 
 these decisions leads to the inference that unless the re- 
 petition had been justifiable as regards the person making 
 it, the defendant would not have been responsible for its 
 consequences.* The repetitions, however, were justifiable 
 
 1 Kendillon v. Maltby, i Car. & Law Times, N. S. 263; ante, § 114, 
 Marsh. 402. and note I, p. 1(1%, ante. 
 
 2 Gillett V. BuUivant, 7 Law Times, » Fowles v. Bowen, 30 N. Y. 22. 
 490, and see Derry v. Handley, i6 * " Occasions may doubtless occur 
 
§ 202.] WHAT LANGUAGE IS ACTIONABLE. 277 
 
 only in part ; they were justifiable as to the person making 
 them, but not as to the first publisher ; they illustrate the 
 principle (§§ 67, 121) that one publisher may not be liable, 
 while another publisher of the same subject-matter is liable. 
 In the case of Ward v. Weeks,^ above referred to, the 
 court dwelt on the fact that the defendant had not request- 
 ed the person to whom he made the publication to repeat 
 the language, intimating, indirectly at least, that if the de- 
 fendant had made such a request he would have been liable 
 for the repetition ; most probably that would have been 
 the result,* but such a request would not have justified the 
 repetition (§ 67). It seems plain, therefore, that it is not 
 the fact of the repetition being or not being justifiable 
 that determines the liability of the first publisher, but the 
 test in every case must be whether or not the repetition 
 was a natural consequence of the first publication. The 
 compliance with a request to repeat is a natural conse- 
 quence of the request. It was natural and to be expected 
 that a father, when told of the seduction of his daughter, 
 should seek out the supposed seducer and tax him with 
 his offense ; it was natural and to be expected that a part- 
 ner, when informed that one in the employ of himself and 
 partner was dishonest, should communicate the informa- 
 tion to his co-partner, therefore it was that in both cases 
 the first publisher was held to be liable for the repetition. 
 Nor is there any inconsistency between these decisions 
 and the decision in Parkins v. Scott, supra, for in that case 
 although the repetition by the wife to the husband was a 
 natural result of defendant's act, yet the husband's refusal, 
 on that account, to consort with his wife was not a natural 
 
 where the communication of slander- directly and naturally from his own 
 
 ous words by a person who heard wrong." (Terwilliger v. Viands, 17 
 
 them will be innocent; and it is cer- N. Y. 58, cited Fowles v. Bowen, 30 
 
 tainly reasonable that when repeated N. Y. 22.) 
 
 on such an occasion, and damages re- »7Bing. 211, 
 
 suit, the first speaker should be held ^ Keenholts v. Becker, 3 Demo, 
 
 responsible for the damages as flowing 346. 
 
278 WHAT LANGUAGE IS ACTIONABLE, [CH. VIII. 
 
 consequence of the repetition. The husband being the 
 legal protector of his wife, the natural consequence of her 
 appeal to him would have been not to aggravate but to 
 seek to redress her injury. The husband's desertion of the 
 wife was not, therefore, under the circumstances, a natural 
 consequence of the defendant's act.^ There was this addi- 
 tional difficulty in the way of a recovery in that action : 
 the damage for which the plaintiff sought compensation 
 was really done by himself. 
 
 § 203. We have already (§ 130) adverted to a distinc- 
 tion between language concerning a person and language 
 concerning a thing. Thus far, in this chapter, we have 
 confined ourselves exclusively to language concerning a 
 person ; our present business is with language concerning 
 things. As respects language concerning things, no such 
 distinction exists between the effect of oral and written 
 language, as is maintained with respect to language con- 
 cerning persons (§ 18). By things we intend whatever is 
 external to the person ; therefore, as here used, things in- 
 clude whatever one may or may be entitled to own, possess, 
 or enjoy ; also, his actions and creations. 
 
 § 204. As a thing has no rights, and as no one owes 
 any duty to a thing (§ 38), no wrong can be done to a 
 thing, and language which merely concerns and affects a 
 thing cannot be actionable per se. In other words, one 
 may speak or write whatever he may please concerning a 
 thing, and with any intention towards the thing, and for 
 such speaking or writing no action can be maintained. 
 The thing cannot complain ; it has no rights to be invad- 
 ed. But although things have no rights, persons may 
 have a right in or to a thing — the right of property — and 
 this right may be invaded by language concerning the 
 
 ^ For the same reason as that given natural consequence, page 268, ante, 
 for holding the act of a father not a § 199. 
 
§ 204.J 
 
 WHAT LANGUAGE IS ACTIONABLE, 
 
 279 
 
 thing.* When this invasion occurs, the language which 
 affects a thing is actionable (§ 207). A loss of or injury 
 to the property is not an invasion of the right of property, 
 unless the loss is occasioned by a wrongful act (§§ 48, 
 49).* A loss occasioned by a lawful act does not amount 
 to a wrong, and does not confer a right of action (§ 62). 
 Where, therefore, by reason of an exercise of the right of 
 speech or of writing concerning a thing, the owner of the 
 thing sustains a loiss, he cannot have any redress therefor, 
 as no wrong has been done. But rights must be exer- 
 cised in good faith ; bad faith in an act done in the as- 
 sumed exercise of a right makes the act wrongful (§§ 40, 
 42). Good faith, in this connection, means an honest be- 
 
 ' Plaintiff purchased of defendant's 
 agent goods, and advertised them for 
 sale in a local paper as follows : " Shaw 
 knit hose, navy blue, size 8 to 1 1 ; first 
 quality goods, at 12|- cents per pair." 
 Immediately thereafter defendant 
 caused to be inserted in another paper 
 published in the same town an adver- 
 tisement as follows : " Caution ! An 
 opinion of Shaw's knit hose should 
 not be formed from the advertisement 
 of navy blue stockings as first quality 
 by B. & Co. [plaintiff] at 12^ cents, 
 since we sold that firm, at less than 10 
 cents a pair, some lots which were 
 damaged in the dye house. (Signed,) 
 Shaw Stocking Co." Held that the 
 advertisement of defendant was not 
 actionable. (Boynton v. Shaw Stock- 
 ing Co. [Mass.] IS No. East. Rep. 507; 
 38 Alb. Law J. 40.) Where defend- 
 ant, through its officers and agents, 
 represented that oils manufactured by 
 plaintiff was of inferior quality, and 
 threatened plaintiff's customers with 
 law suits, and falsely represented to 
 plaintiff's customers that plaintiff was 
 infringing defendant's patents, &c., 
 held a slander of plaintiff's business. 
 (Buffalo Lubricating Oil Co. v. N. Y. 
 Standard Oil Co. 42 Hun, 1 53.) 
 
 With some hesitation we conclude 
 to give abridged the stor\' of Old Mor- 
 tality's [Robert Patterson] slander. 
 
 related by Sir Walter Scott. Intro- 
 duction to Old Mortality. Cooper 
 Climent enjoyed almost a monopoly 
 in Girthon for making and selling la- 
 dles, caups, bickers, bowls, spoons, 
 &c., formed of wood. His wares 
 when new imparted a reddish tinge 
 to whatever was put into them. Some 
 grandchildren of this Climent asked, 
 in the hearing of Old Mortality, what 
 use was made of the fragments of cof- 
 fins thrown up in making new graves. 
 Do you not know, said Old Mortality ; 
 they are sold to your grandfather to 
 make into spoons, trenchers, &c. The 
 children spread this abroad. It was 
 supposed to account for the reddish 
 tinge. The ware of Climent was gen- 
 erally rejected. He sought redress 
 by citing Old Mortality to a court of 
 justice. Climent proved that his ware 
 was made from the wood of old wine 
 casks, which accounted for the red- 
 dish tinge. Old Mortality declared 
 his statement was but a jest ; yet Cli- 
 ment's business languished, and he 
 died in poverty. 
 
 3 An action for words depreciating 
 the value of plaintiff's property, held 
 not to be an action in which the sub- 
 ject-matter was a thing affecting prop- 
 erty within order 1 1 of the orders of 
 court. (Casey v. Arnott, 2 C. P. D. 
 24; 25 Weekly Rep. 46.) 
 
28o VHAT LANGUAGE IS ACTIONABLE. [CH. VIII. 
 
 lief^ with reasonable grounds for the belief^ in the truth 
 and fitness for the occasion of the matter published, and 
 bad faith is the converse of this ; namely, the absence of 
 such honest belief, or the disbelief in the truth and fitness 
 for the occasion of the matter published (§ 241). As, 
 then, the existence of this belief or of this disbelief deter- 
 mines whether the publication was or was not made with 
 a legal excuse, for this purpose it becomes necessary to 
 ascertain the belief of the publisher; and this involves the 
 question of his intent in making the publication.^ Not as 
 already explained (§§ 90, 91), because the intent is essen- 
 tial to constitute a cause of action, but because it is a link 
 in the chain of evidence of the existence or of the absence 
 of a legal excuse. Proof that the publisher, while pre- 
 tending to exercise the right of speaking or writing con- 
 cerning a thing, was in reality designing and intending to 
 injuriously affect the owner of the thing, while it would 
 not of itself constitute bad faith, would be a circumstance 
 from which bad faith might properly be inferred. Al- 
 though the language concerns only a thing, yet if it ap- 
 pears to have been published without lawful excuse, i. e., 
 maliciously (§ 9:), it will be actionable if pecuniary loss is 
 a necessary or a natural and a proximate consequence of 
 the publication," and hence we may deduce this rule, that 
 
 ' An action for slander of title will showing that it was made in good faith, 
 
 not lie unless defendant's statements the demurrer admitting that it was 
 
 are not only untrue, but were made false and malicious. (Dodge w. Colby,- 
 
 without reasonable and probable 37 Hun, 515: 108 N. Y. 445.) 
 
 cause, and this applies not only to ' " I am far from saying that if a 
 
 slander of title, properly so called man falsely or maliciously makes a 
 
 with reference to real estate, but also statement disparaging an article which 
 
 to cases relating to personalty or per- another manufactures or vends fal- 
 
 sonal rights or privileges. . . . though in so doing he casts no impu- 
 
 (Bagally, L. J., Halsey z/. Brotherhood, tation on his personal or professional 
 
 19 Ch. Div. 389.) character), and thereby causes an in- 
 
 * Upon demurrer to a complaint jury, and special damage is averred, 
 
 containing an allegation that defend- an action might not be maintained." 
 
 ant falsely and maliciously stated that (Cockburn, Ch. J., Young v. Macrae, 
 
 plaintiff's title had been examined by 3 Best & Sm. 264 ; ante, note 6, p. 
 
 four lawyers and pronounced bad, the 241. 
 
 court cannot refer to the statement as The plaintiff, a grocer and draper, 
 
§ 204-] WHAT LANGUAGE IS ACTIONABLE. 28 1 
 
 language concerning a thing is actionable when published 
 
 complained that his wife assisted him 
 in his said business, and that defend- 
 ant maliciously published a charge of 
 adultery against her whereby he, 
 plaintiff, had been injured in his busi- 
 ness by reason of his customers ceas- 
 ing to deal with him as theretofore — 
 held the action could be maintained. 
 (Riding v. Smith, Law Rep. 1 Ex. 
 Div. 91.) 
 
 In Swan v. Tappan. 5 Cush. 105, 
 the words were " alleged to be of and 
 concerning the plaintiff's books," and 
 nothing else, without any allegation of 
 special damage. The action was held 
 not maintainable, but the court inti- 
 mated that if special damage had been 
 alleged the action could have been 
 sustained. In Ingram v. Lawson (6 
 Bing. N. C. 212; 8 Scott, 471), it was 
 held that the language was concerning 
 the plaintiff personally, but that if the 
 language had been concerning the 
 plaintiff's ship, the action could have 
 been maintained if special damage 
 had been alleged. And as to words 
 reflecting on a steamboat, see Hamil- 
 ton V. Walters, 4 Up. Can. Q. B. Rep. 
 O. S. 24, and in Yates' Pleadings and 
 Forms, p. 436, is the form of a plea 
 to a declaration for slander of the 
 plaintiff's ship. In Young v. Macrae 
 (3 Best & Sm. 264), Cockbum, Ch. J., 
 observed : '' I am far from saying there 
 can be no action for a false reflection 
 on goods. Such an action, however, 
 would be more in the class of actions 
 for false representations than actions 
 of libel." An intentional false state- 
 ment by defendant in regard to articles 
 manufactured by plaintiff, for the pur- 
 pose of preventing sales by plaintiff of 
 such articles, and thereby preventing 
 such sales, constitutes a cause of ac- 
 tion. (Snow V. Judson, 38 Barb. 212, 
 citing Benton v. Pratt, 2 Wend. 385 ; 
 White V. Merritt, 7 N. Y. 352; Gal- 
 lagher V. Brunei, 6 Cow. 346 ; and see 
 Jenner v. A'Beckett, 25 Law Times, 
 N. S. 464; West. Counties Manure 
 Co. V. Lawes Chem. Manure Co. Law 
 Rep. 9 Ex. 218.) Where defendant 
 sold goods of a character similar to 
 those manufactured by plaintiff, and 
 so labeled as to show a design to in- 
 
 duce a belief that the goods were those 
 of plaintiff's manufacture, held that 
 plaintiff could maintain an action for 
 damages. (Miller Tobacco Factory v. 
 Commerce, 45 N. J. L. [16 Vroom] 18. 
 A declaration for libel stated that 
 the plaintiff, before and at, &c., car- 
 ried on the business of an engineer, 
 and was the inventor and registered 
 proprietor (under 2 & 3 Vict. ch. 17) 
 of an origfinal design for making im- 
 pressions on metal articles, and sold 
 divers articles on which the design 
 was used. That plaintiff, before and 
 at, &c., had sold and had on sale in 
 the way of his said trade, articles and 
 goods called " self-acting tallow sy- 
 phons, or lubricators," and that de- 
 fendant published a libel of and con- 
 cernmg plaintiff, and of and concern- 
 ing him in his said trade, and of and 
 concerning said design, and plaintiff 
 as the inventor, &c., thereof, and 
 manufacturer of the articles with the 
 said design thereon, and of and con- 
 cerning the said goods which he had 
 so sold and had on sale, and plaintiff 
 as the seller, as follows: "This is to 
 caution parties employing steam pow- 
 er from a person [meaning plaintiff] 
 offering what he calls self-acting tal- 
 low syphons or lubricators [meaning 
 said design, and meaning said goods 
 and articles which he, plaintiff, had so 
 sold and had on sale as aforesaid], 
 stating that he is the sole inventor, 
 manufacturer, and patentee, thereby 
 monopolizing high prices at the ex- 
 pense of the public." R. Harlow 
 [meaning defendant], " takes this op- 
 portunity of saying that such a patent 
 does not exist, and that he has to offer 
 an improved lubricator," &c. '' Those 
 who have already adopted the lubri- 
 cators [meaning, &c., same innuendo 
 as before] against which R. H. would 
 caution, will find that the tallow is 
 wasted instead of being effectually 
 employed as professed." No direct 
 averment connected the tallow syphon 
 with the registered design mentioned 
 in the first part of the inducement. 
 No special damage was alleged. Held, 
 that the words were not a libel on the 
 plaintiff, either generally or in the way 
 
282 
 
 WHAT LANGUAGE IS ACTIONABLE. [CH. VIII. 
 
 maliciously, i. e., without lawful excuse (§ 91), if it also 
 occasions damage to the owner of the thing (§ 146), 
 
 of his trade, but were only a reflection 
 upon the goods sold by him, which 
 was not actionable without special 
 damages. (Evans v. Harlow, 5 Q. B. 
 624.) See post^ note to § 206 c. 
 
 Publishing of a newspaper that it 
 was a vulgar, ignorant, and scurrilous 
 journal, was held not actionable, but 
 it was held actionable to say that it 
 was low in circulation — such a charge 
 being calculated necessarily to pro- 
 duce damage. (Heriot v. Stuart, i 
 Esp. Cas. 437.) Held actionable to 
 publish that a newspaper had a sep- 
 arate page devoted to advertisements 
 of quack doctors, &c., and that the 
 publisher takes advertisements at a 
 reduced rate for advertising on that 
 page. (Russell i". Webster, 23 Week. 
 Rep. 59.) See Latimer v. West. 
 Morning News Co. 25 Law Times, N. 
 S. 44. That case arose as thus: On 
 the occasion of an agricultural show 
 at G., the defendant, The Western 
 Morning News Company, published 
 an article saying that in the show yard 
 an audacious attempt to obtain money 
 by false pretenses had been detected 
 and exposed, to wit, that a certain 
 newspaper " of limited circulation, 
 published in a town remote from" G., 
 has inserted, without any order to do 
 so, columns of advertisements refer- 
 ring to the implements on view, cop- 
 ied from other newspapers to which 
 advertisements have been given, or 
 from papers of a year ago, and alleg- 
 ing that the object of plaintiff was to 
 swell the number of advertisements 
 in the paper, and to inveigle the man- 
 ufacturers into payment by subse- 
 quently sending in bills for these 
 spurious advertisements. Subsequent- 
 ly, the defendant published that plaint- 
 iff had inserted advertisements with- 
 out orders, with no expectation of 
 being paid therefor, and concluded, 
 " We would not question our contem- 
 porary's own assessment of the value 
 of its columns as an advertising med- 
 ium, and no doubt the public will 
 appreciate it at the same cypher." 
 Plaintiff had a verdict. 
 
 Plaintiff was possessed of certain 
 shares in a silver mine, touching 
 which shares certain claimants had 
 filed a bill in chancery, to which 
 plaintiff had demurred. Held, that, 
 without alleging special damage, 
 plaintiff could not sue the defendant 
 for falsely publishing that the demur- 
 rer had been overruled ; that the prayer 
 of the petition (for the appointment 
 of a receiver) had been granted, and 
 that persons duly authorized had ar- 
 rived at the mine. Held, also, that an 
 allegation that the plaintiff was in- 
 jured in his rights, that the shares 
 were lessened in value, that divers 
 persons believed that he had no right 
 to the shares, that the mine could 
 not be worked, and that he had been 
 prevented from disposing of his said 
 shares, and from working the mine in 
 so ample a manner as he otherwise 
 would have done, and was prevented 
 from gaining divers profits which 
 would otherwise have accrued to him, 
 was not a sufficient special damage. 
 (Malachy v. Soper, 3 Bing. N. C. 371 ; 
 3 Scott, 723.) 
 
 In an action for misdescribing the 
 plaintiff's vessel in a publication of 
 the defendants, called " The Shipping 
 Register," it appearing that the plaint- 
 iffs had requested the surveyor of the 
 defendants to examine the ship, held 
 that they could maintain no action 
 against them for what they did in 
 consequence of his report ; the remedy 
 was against him if he made a false 
 report. (Kerr v. Shedden, 4 C. & P. 
 
 528.) 
 
 The foregoing cases seem to imply 
 that the fact of loss, or special dam- 
 age, as it is termed, will alone render 
 actionable language concerning a 
 thing; we state it otherwise in the 
 text, and we suppose it to be other- 
 wise. In Carr v. Hood, i Camp. 355» 
 note. Lord Ellenborough. speaking of 
 language concerning a thing (a book), 
 says: " I speak of fair and candid 
 criticism ; this every one has the right 
 to publish, although the author may 
 suffer loss from it. Such a loss the 
 
§ 205.] WHAT LANGUAGE IS ACTIONABLE. 283 
 
 § 205. Malice and damage are both essential requisites 
 to sustain an action for language concerning a thing.^ 
 To these requisites is usually added a third, that the lan- 
 guage must be false. It is true the language must be 
 false, not because it is an additional requisite to malice 
 and damage, but because it is comprised in the require- 
 ment of damage. Language concerning a thing which is 
 not false, i. e., which is true, cannot, as a necessary or 
 natural consequence, occasion pecuniary loss. Language 
 concerning a thing is prima fade or presumptively law- 
 ful ; and, therefore, with regard to it, there is no assump- 
 tion or presumption of its being untrue nor of its being 
 false, nor of its occasioning damage, nor of its being 
 without lawful excuse (malicious) (§ 130); and therefore 
 it is, that one complaining of an injury by reason of lan- 
 guage concerning a thing, in order to establish his right to 
 maintain an action, has to allege and prove that the publi- 
 cation was made without lawful excuse (maliciously), that 
 the language was untrue, and that he has sustained pecu- 
 niary loss as a necessary or as a natural and a proximate 
 consequence of the publication.^ 
 
 law does not consider as an injury, editions of said work, sued to recover 
 
 because it is a loss which the party damages sustained by reason of said 
 
 oyght to sustain." circular and advertisement. Held, the 
 
 This subject is further considered action was in the nature of an action 
 
 under the head of Defenses, § 254. for slander of title, and was to be de- 
 
 * Hovey v. Rubber Tip Co. 57 N. termined by the rules applied in such 
 
 Y. 119; 33 Superior Ct. R. (i Jones an action, and that to sustain the ac- 
 
 & S.) 522 ; and see Kennedy v. Press tion, actual malice in publishing the 
 
 Pub. Co. 3 N. Y. State Rep. 139; 41 circular and advertisement must be 
 
 Hun, 422; Gordon v. McGibbon, 3 Pug. shown. (Lovell Co. v. Houghton, 54 
 
 N. Bruns. 49. Defendants sent out Superior Ct. R. [22 J. & S.] 60; and 
 
 a circular charging that the publica- see ante, note 2, p. 112, ante.) 
 tion of certain books by plaintiff in- * The action for slander of title is 
 
 fringed a copyright. Defendant also maintainable only by one who pos- 
 
 advertised editions of two works they sesses an estate or interest in the 
 
 were about to publish, as follows : property (Edwards v. Burris, 60 Cal. 
 
 " They contain all the revisions made 157), and where the complaint shows 
 
 by Mr. Longfellow in later years, and affirmatively that plaintiff was not 
 
 are the only authorized cheap editions owner at time of alleged slander of 
 
 in the market." Plaintiff having pub- title no cause of action appears, (/rf.) 
 lished what it termed reprints of early 
 
284 WHAT LANGUAGE IS ACTIONABLE. [CH. VIII. 
 
 § 206. What is ordinarily designated slander of title, 
 is comprised within the division of language concerning 
 things. Slander of title is publishing language, not of the 
 person, but of his right or title to something. All the 
 preceding observations upon language concerning things 
 apply to actions for slander of title ; thus, in an action for 
 slander of title, no distinction is made with regard to the 
 medium of the publication, as whether oral or written ; ' 
 and to sustain the action the publication must be made 
 maliciously ; the language must be false, and must occasion, 
 as a natural and proximate consequence, a pecuniary loss, 
 i. e., special damage to the plaintiff.^ The special damage ' 
 usually consists in losing the sale of the property in ques- 
 tion. This damage can occur only in the cases where no con- 
 tract to sell exists, i. e., to cases where one is, by the language 
 published, deterred from making a purchase, or entering 
 into a contract to purchase. Where a contract for sale 
 and purchase has already been entered into, the purchaser's 
 refusal, on account of any statement of a third party, to 
 
 ' Malachy v. Soper, 3 Bing N. C. he has some ground, he is not respon- 
 
 371; 3 Scott, 723; West. Counties sible. (Bailey z/. Dean, 5 Barb. 297 ; 
 
 Manure Co. v. Lawes Chemical Stark v. Chetwood, 5 Kansas, 141.) 
 
 Manure Co. Law Rep. 9 Ex. 218. The existence of probable cause is no 
 
 2 Kendall v. Stone, 5 N. Y. 14; answer to the action, nor does the 
 
 rev'g S. C. 2 Sandf . 269 ; Like v. Mc- want of it necessarily prove malice. 
 
 Kinstrey, 41 Barb. 186; affi'd 4 Keyes, (Kendall v. Stone, 2 Sandf. 269.) Mere 
 
 397. There must be malice which the assertions, threats, and designs, m^de 
 
 plaintiff must prove. (Smith v. Spoon- against a grantee of real estate, and 
 
 er, 3 Taunt. 246; Hill v. Ward, 13 against the party in possession, cannot 
 
 Ala. 310; Stark ?/. Chetwood,5 Kansas, be deemed a cloud upon the title. If 
 
 141.) Malice is not to be presumed. the owner is injured by any such false 
 
 (McDaniel v. Beca, 2 Cal. 326.) There claims or representations, he can prob- 
 
 must be malice either express or im- ably maintain an action for damages, 
 
 plied. (Hargrave v. LeBreton, 4 Burr. (Re Madison Ave. Bapt. Church, 26 
 
 2422 ) But all malice is implied. (§ How. Prac. R. 72.) 
 87, ante.) To support an action for ' Kendall v. Stone, 5 N. Y. 14. 
 
 slander of title, special damage must Plaintiff alleged he was prevented 
 
 be shown. (Bailey v. Dean, 5 Barb. from selling his mine by the misrep- 
 
 297; Linden v. Graham, i Duer, 670; resentations of the defendant to the 
 
 Watson V. Reynolds, I Mo. & Malk. proposed buyer, that an expert was of 
 
 3 ; Paull V. Halferty, 63 Pa. St. 46 ; and opinion that said mine was but a 
 
 see '^ 2o(>b, post.) There must, too, pocket that would soon run out ; held 
 
 be a want of probable cause ; and if plaintiff might recover. (Paull v. 
 
 what the defendant said or did was in Halferty, 63 Pa. St. 46.) 
 pursuance of a claim of title, for which 
 
§ 2o6a.] what language is actionable. 285 
 
 complete his contract, would not in an action against such 
 third party, for making such statement, constitute special 
 damage ! ' A man may refuse to bid for property upon 
 which, or upon the title to which, an imputation rests ; 
 such refusal is a natural consequence of the imputation ; 
 but one who is already under a contract to purchase may 
 not (has not the right to), by reason of any imputation on 
 the subject of such contract, refuse to complete ; besides 
 that his refusal would be illegal, it would not be a natural 
 consequence of the imputation. Perhaps this rule is appli- 
 cable only to the slander of title to real estate, and in the 
 cases where the title is capable of such clear proof as to 
 outweigh any imputation against it, but in the case of title 
 to personal property, the title to which is not capable of 
 such satisfactory proof as is the title to real property, a 
 different rule may prevail, for in such a case it would seem 
 to be but a natural consequence that one under contract to 
 purchase should be deterred from completing by reason of 
 imputations upon the seller's title, just as in the case of the 
 contract to deliver battens the seller was deterred from de- 
 livering them by reason of the defendant's claim of lien.* 
 (jj 2o63.) 
 
 § 206 a. Where the assignee of a lease which contain- 
 ed a proviso for re-entry in case the rent reserved by it 
 
 > Loss of a purchaser held to be property has been made and the pur- 
 special damage. (Collins v. White- chaser is induced to refuse to com- 
 head, 34 Fed. Rep. 121 ; Van Tuyl plete the purchase by reason of slan- 
 V. Riner, 3 Bradw. [111.] 556; Wil- derous words uttered by a third per- 
 son V. Dubois, 35 Minn. 471.) But son concerning the property, the ven- 
 deiay in consummating the sale, or dor cannot maintain an action for slan- 
 general depreciation in Talue is not der against said third party. His rem- 
 enough. (Bonanza Development Co. edy is on the contract of sale. (Brent- 
 V. Hayes, 5 Month. Law Bui. 28.) man v. Note, 3 N. Y. Suppl. 420,) 
 Where the special damage alleged is And where E.,an attorney, had acon- 
 the loss of the sale of the property, tract with A. to bring an action for 
 evidence of its value as a scientific curi- him, B., with that knowledge, slander- 
 osity, or foi- exhibition is immaterial. ed E. to A., in consequence of which 
 (Gott w. Pulsifer. 122 Mass. 235.) A. broke the contract, held action 
 
 « Green v. Button, 2 Cr. M. & R. would not lie. (Ensor v. Bolgiano, 
 
 707. See § 201, ante. Where a bind- 67 Md. 190. See, however, note to § 
 
 ng contract for the sale of certain lokb, post.) 
 
286 WHAT LANGUAGE IS ACTIONABLE. [CH. VIII. 
 
 was in arrear, exposed the lease for sale, there being at the 
 time rent in arrear, the lessor appeared at the time and 
 place appointed for the sale, and announced that such 
 assignee had no title and could not make a title, in conse- 
 quence of which announcement, persons who came to bid 
 for the lease refused to bid ; the lessor afterwards offered 
 ;^ioo for the lease, which was refused ; he brought eject- 
 ment and recovered the possession of the premises. In- 
 termediate the attempted sale and the recovery in the 
 ejectment, the assignee sued the lessor for slander of title ; 
 the court on the trial was of opinion that, under the cir- 
 cumstances, the plaintiff could not maintain the action, 
 but left the question of malice in making the publication 
 to the jury, and they found that it was malicious. The 
 court, however, directed a nonsuit.^ It is supposed that 
 the nonsuit was set aside, and that the plaintiff had judg- 
 ment on the ground that the question of malice having 
 been left to the jury as a question of fact, and found 
 against the defendant, the court could not disregard the 
 finding and say there was no malice.^ The defendant, a 
 surveyor appointed under Stat 7 and 8 Vict., ch. 84, 
 attended a sale of some unfinished houses, of which the 
 plaintiff was the lessee for a term of years. The roadway 
 to these houses, although of sufficient width according to 
 the above statute, was at that time in an unpaved state 
 and unfit for trafl&c. At such sale the defendant made the 
 following announcement : " I shall not allow the houses to 
 be finished until the roads are made good. I have no 
 power to compel any one to make the roads, but I have 
 power to stop the buildings until the roads are made." 
 Some time after such sale, the defendant, on being asked 
 
 ' Smith V. Spooner. 3 Taunt. 246. state only what his principal might 
 
 The attorney of a party who would be have stated. (Watson v. Reynolds, i 
 
 justified in making objections to a M. & Malk. 3.) 
 title, is not liable to an action, if he * i Starkie on Slander, 318. 
 
 bona fide, though without authority, 
 
§ 2o6a.] what language is actionable. 287 
 
 why he pursued Mr. Pater, replied, " I pursue Mr. Pater 
 because I am not able to pursue Mr. Agar, the ground 
 landlord." Upon this state of facts, held, that there was 
 no evidence to support the allegation of malice.' Where 
 one mortgaged his estate, and afterwards committed 
 an act of bankruptcy, subsequently the property was 
 offered for sale by the assignee of the mortgagor, the 
 defendant, the attorney of the mortgagee, stopped the sale 
 by stating that the mortgagor had committed an act of 
 bankruptcy, and which was untrue, that a docket had been 
 out for a commission ; in an action for losing the sale, 
 held that although the defendant went beyond the truth, 
 there was no material variance and no difference made 
 with respect to plaintifTs title, and there being no proof 
 of malice, the action could not be maintained.^ The 
 plaintiff being about to sell an estate, the defendant wrote 
 a letter to the intending purchaser, imputing insanity to 
 Y., the person from whom the plaintiff derived his title 
 and stating that the title would be disputed ; in conse- 
 quence of which letter the proposed purchaser refused to 
 purchase. It appeared on the trial that Y. had married a 
 sister of the defendant, and that a term of years in the 
 estate in question was vested in the defendant as trustee, 
 to secure a jointure to Y.'s wife. The judge on the trial 
 ruled that if defendant believed, upon such grounds as 
 would persuade a man of sound sense and knowledge of 
 business, that Y. was insane, the defendant would be 
 entitled to a verdict. A verdict was taken for the plaint- 
 iff; the court above, on granting a new trial, condemned 
 this ruling as unsound and stated, " If what the defendant 
 wrote was most untrue, but nevertheless he believed ii, if 
 he was acting under the most vicious of judgments, yet if 
 he exercised that judgment bona fide^ it was a sufficient 
 
 1 Pater v. Baker, 11 Jurist, 370; 16 « Hargrave v. Le Breton, 4 Burr. 
 
 Law Jour. R. 124 C. P.; 3 C. B. 831. 2422. 
 
288 WHAT LANGUAGE IS ACTIONABLE, [CH. VIIL 
 
 justification, . . , The jury must arive at their con- 
 clusion through the medium of malice or no malice in the 
 defendant. The bona fides of the publication, and not 
 what a man of rational understanding would have done, is 
 the question to be canvassed."^ The defendant, who was 
 the ground landlord and remainderman of leasehold prem- 
 ises, of which the plaintiff was assignee of the lessee, stated 
 at an auction at which the lease and assignment were put 
 up for sale, that all the covenants in the lease had been 
 broken, that he had commenced ejectment to recover the 
 possession of the premises, and that it would cost £']o to 
 repair the premises, in consequence of which the lease 
 brought less than it otherwise would. On the trial it ap- 
 peared that some only of the covenants in the lease had 
 been broken, and the judge directed the jury that the only 
 question was whether what the defendant stated was un- 
 true, and if it was, the plaintiff was entitled to recover. 
 The jury found for plaintiff, and gave £ip damages. On 
 motion for a new trial, the ruling at the trial was held er- 
 roneous, and that the proper question was whether so much 
 of the defendant's statement as was false was also mali- 
 cious.^ Where the plaintiff, as administratrix, was about to 
 sell leasehold property, defendant, after being informed by 
 the attorney of the plaintiff that there was no will of the 
 decedent, issued an advertisement offering a reward for the 
 will of such decedent, held, the question was whether he 
 had "a sincere and genuine belief that there was a will."* 
 A. died possessed of furniture in a beer-shop. His widow, 
 without taking out administration, continued in possession 
 of the beer-shop for three or four years, and then died, hav- 
 ing, whilst so in possession, assigned all the furniture by 
 bill of sale to her landlords, by way of security for a debt 
 
 ' Pitt V. Donovan, i M. & Sel. see Goulding v. Herring, i Rolle R. 
 639- 141. 
 
 2 Brook V. Rawl, 4 Exch. 521 ; and « Atkins v. Perrin, 3 Post. & F. 
 
 :8o. 
 
§ 2o6b.] what language is actionable. 289 
 
 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 furniture by auction, when the defendant inter- 
 posed to forbid the sale, and said that he claimed the goods 
 for his principals under a bill of sale. On proof of these 
 facts, in an action for slander of title, the plaintiff was non- 
 suited: held, that the mere fact of the defendant's having 
 been told before the sale that the bill of sale was invalid, 
 was no evidence of malice to be left to the jury, and that 
 the plaintiff was, therefore, properly nonsuited.^ An order 
 having been made by the Court of Chancery, requiring G., 
 the plaintiff, to pay a sum of money, the defendant regis- 
 tered the order pursuant to statutes i and 2 Vict., ch. no, 
 whereby it became a lien on the real estate of the plaintiff, 
 and prevented him raising, by a sale or mortgage of his 
 estate, the money ordered to be paid, held the action could 
 not be maintained, there being no proof of malice.* And 
 where the defendant published a notice cautioning all per- 
 sons not to purchase of the plaintiff a certain tract of land, 
 alleging that the plaintiff obtained the title to said land 
 from the defendant by means of false pretenses, and that 
 the defendant intended to institute a suit to annul plaint- 
 iff's pretended title, it was held not on its face to show 
 malice.* 
 
 § 206 b. Some of the old cases hold that one, by claim- 
 ing title in himself, cannot give a right of action for slan- 
 der of title ; that to render the claim actionable, it must 
 
 * Steward v. Young, Law Rep. 5 Where the complaint alleges malice, 
 
 C_ p_ 122. if the defendant demurs he admits the 
 
 2 Gibbs V. Pike, i Dowl. N. S. 409 ; malice. (See Dodge v. Colby, 37 Hun, 
 
 6 Tur. 46s; and see Collins w. White- 515; 108 N. Y. 445; 37 Alb. L. J. 
 
 head, 34 Fed. Rep. 121. 34o; Hammond v. Hussey, 51 N. H. 
 
 » McDaniel v. Baca, 2 Cal. 326. 40.) 
 
 19 
 
ago WHAT LANGUAGE IS ACTIONABLE. [CH. VIII. 
 
 assert a title in a stranger.' This distinction no longer 
 prevails.^ So, formerly, it seems to have been supposed 
 that the only ground of damage was a loss of the sale or 
 leasing of the property, the title to which was assailed; it 
 is, however, well settled at this day that any loss which is a 
 natural and proximate consequence of the language is 
 damage.^ The action cannot be maintained unless there is 
 special damage.* Where, prior to the publication of the 
 language complained against, the plaintiff and one W. had 
 contracted for the sale of a lot of land — in consequence of 
 the publication W. wished to be released from his contract, 
 and plaintiff released him — plaintiff sued, charging the 
 loss of a sale to W. as the special damage, held that the 
 rescinding of the contract with W. was not special dam- 
 age, and that no action-could be maintained.^ But where 
 plaintiff had borrowed a sum of money of defendant, and 
 afterwards plaintiff bought spruce battens of A., and be- 
 fore delivery of the battens, defendant gave notice to A. 
 not to deliver them, and that he, plaintiff, had a lien upon 
 them, in an action by plaintiff, alleging that the defendant 
 falsely claimed such lien, and that, by reason of such no- 
 tice and pretense of lien, and non delivery of said battens, 
 he had lost the use of them, and been hindered in building 
 
 » Jenkins Cent. 247; Pennyman v. son, 75 Me. 225; see, upon this case, 
 
 Rabanlis, Cro. Eliz. 427 ; Lovett v. 34 Alb. L. J. 162. 
 Waller, i RoUe R. 409; Gerard v. * Watson v. Reynolds, I Mo & 
 
 Dickinson, 4 Coke, 18; Sneade v. Malk. i ; Lowe i/. Hammond, Sir W 
 
 Badley, sBulst. 75; s. C. i Rolle R., Jones, 196; s. C. sub. ww. Law v. 
 
 244; and see Vin. Abr. Act. for Hammond, Cro. Car. 141; Pal 529- 
 
 Words, L, B, 2, 8; Anon. Sty. 414; Cane w. Goulding, Sty. 169: Sneade z/! 
 
 Boulton V. Shields, 3 Up. Can. Q. B. Badley, 3 Bulst. 75; s. C. I Rolle R. 
 
 2'- „ , ^ , 244; Brook V. Rawl, 4 Exch. 521; 
 
 2 See, however, Dodge v. Colby, Pater v. Baker, 3 C. B. 831 ; West v 
 
 37?V?',5'^ c. ,,. Callaghan,38Leg.Int. 102; Wilson z-. 
 
 ' Malachy v. Soper, 3 Bing. N. C. Dubois, 35 Minn. 471. In the absence 
 
 371 ; 3 Sc. 723; Tasburgh v. Gray, of an allegation of special damage the 
 
 Cro. Jac. 484. No action lies by the complaint is demurrable. (/</.) And 
 
 owner of a house against one who ante in note 3, p. 284. 
 maliciously refuses to employ any « Kendall v Stone 5 N Y 14- 
 
 tenant of such house, and thus pre- rev'g s. c. 2 Sandf. Superior Ct R.' 
 
 vents the renting. Heywood v. Till- 269. See ante, p. 285 
 
§ 2o6b.] what language is actionable. 291 
 
 certain houses, it was objected that there being a valid con- 
 tract with A., if plaintiff had suffered any damage by rea- 
 son of the non-delivery of the battens, he must look to A.; 
 that the non-delivery was an illegal act for which the de- 
 fendant was not liable; but the court held otherwise, and 
 sustained the action.^ Perhaps plaintiff being prevented 
 from raising money by mortgage on his lands, is such 
 damage as may entitle him to maintain an action.^ Where 
 the alleged slander consists in the defendant claiming title 
 in himself, the fact of his not having a title is not per se 
 evidence of malice* But the defendant having no title is 
 a circumstance from which malice may be inferred.* 
 Where the defendant in fact made the publication under 
 the advice of counsel, but did not, at the time of making 
 the publication, state that he was acting under such ad- 
 vice, held that the fact of his acting under such advice did 
 not per se shield him from an action;' but it was a cir- 
 cumstance to be considered in determining whether or 
 not the publication was made maliciously.* 
 
 » Green v. Button, 2 Cr. M. & R. v. Highley, 8 Car. & P. 444; Wilson 
 
 707. As to maintaining an action for v. Dubois, 35 Minn. 471. A gene- 
 
 maliciously causing one of two con- ral allegation that the plaintiff's prop- 
 
 tracting parties not to perform his erty has .been lessened in value, or 
 
 contract with the other, and thereby that people believe he has no title, or 
 
 occasioning him loss, see Lumley v. that he has been prevented from sell- 
 
 Gye, 3 El. & B. 216; Lumley v. Wag- ing, is not sufficient. (See §§ 329, 369, 
 
 ner, i De G. M. & G. 604; approved, post^ Where the declaration alleged : 
 
 Bowen v. Hall, 6 Q. B. D. 233 ; Tarle- whereby M. was prevented from com- 
 
 ton V. McGawley, I Peake, 207 ; Tay- pleting his contract for the purchase 
 
 lorz/. Neri, i Esp. 386; 3 Smith Lead- of said land from plaintiff, and plaint- 
 
 ing Cases, 9 Am. from 9 Eng. ed., iff lost the sale of said land and the 
 
 and notes, p. 1827. See note 2, p. use of the purchase-money thereof, 
 
 285, ante. and has been unable to sell said land, 
 
 2 Linden v. Graham, I Duer, 670. and has been put to great expense in 
 
 In that case the plaintiff was defeated quieting the title to said land, it was 
 
 erroneously, as we suppose, because held to be a sufficient averment of 
 
 the damage was not stated with suf- special damage. (Ashford v. Choate, 
 
 ficient certainty in the complaint. 20 Up. Can. C. P. Rep. 471.) 
 This want of certainty was a ground ' Hill v. Ward, 13 Ala. 310; Sully 
 
 for making the complaint more defin- v. Spearing, 4 So. Rep. 489. 
 ite, but not, as we think, for holding * McDaniel v. Baca, 2 Cal. 326. 
 
 the complaint insufficient. As to how » Like v. McKinstry, 41 Barb. 186; 
 
 the damage must be alleged, see Mai- affi'd 4 Keyes, 397 ; and see Hill v. 
 
 achy V. Soper, 3 Bing. N. C. 371; Tilk Ward, 13 Ala. 310. 
 V. Parsons, 2 Car. & P. 201; Delegall « Hill v. Ward, 13 Ala. 310. 
 
292 
 
 WHAT LANGUAGE IS ACTIONABLE. 
 
 [CH. 
 
 VIIL 
 
 § 206 c. The action for slander of title is not restricted 
 to language affecting real property, it lies for slander of 
 title to personal property ; thus, where at a public sale of 
 rye the defendant attended, and in the presence and hear- 
 ing of the persons there assembled, said : " I forbid selling 
 the rye ; it is mine," in consequence of which persons 
 were deterred from bidding, and the rye sold for less than 
 it would otherwise have done, it was held an action could 
 be maintained.^ 
 
 ' Like 7/. McKinstry, 41 Barb. 186; 
 affi'd 4 Keyes, 397 ; and see Gutsole 
 V. Mathews, I M. & W. 495 ; i Tyrw. 
 &" Gr. 694 ; Green v. Button, i Gale, 
 349 ; 2 C. M. & R. 707 ; I Tyrw. & 
 Gr. 118; Malachy v. Soper, 3 Bing. 
 N. C. 371; 3 Scott, 723; Rowe v. 
 Roach, I M.&S. 304; Czxxv. Duckett, 
 5 Hurl. & N. 783; Hill v. Ward, 13 
 Ala. 310; and slander of title to a 
 slave. (Ross v. Pines, Wythe, 71.) 
 An action was maintained for alleg- 
 ing that plaintiff's machines were an 
 infringement on defendant's patents. 
 (Wren v. Weild, Law Rep. 4 Q. B. 
 213.) "Caution. To all who may be 
 arranging with J. M. Cousins for his 
 self-acting pump, who claims to have 
 patented same in April last. I wish 
 to caution the public against having 
 anything to do with Cousins or his 
 pumps, it being an infringement on 
 my patent obtained in 1858. I intend 
 to prosecute him immediately. Be- 
 ware of the fraud and save costs," 
 held, besides being a slander of plaint- 
 iff's title, to amount to a libel of him 
 individually. (Cousins v. Merrill, 16 
 Up. Can. C. P. 114.) Defendants is- 
 sued a circular stating that they were 
 unable to supply a particular electric 
 bell (for which plaintiff had obtained 
 protection), as it had ' ' been proved to 
 be an infringement of another patent- 
 ed bell." "The fact was that prior to 
 the issue of the circular, no proceed- 
 ing had been commenced against 
 plaintiff respecting his bell. An ac- 
 tion was afterwards commenced, and 
 then abandoned. . Held, there was no 
 reasonable and probable cause for the 
 statement in the circular. (Crampton 
 
 V. Swete & Main, 58 Law Times, 
 S16.) 
 
 Every man has a right to Say, ' ' I 
 am the proprietor of such and such a 
 print, and I warn all the world, and 
 you in particular, not to pirate it;" 
 " We warn you that a certain repro- 
 duction of it is a piracy," ahhoughhe 
 may be wrong in law with respect to 
 its being a piracy. " I think his say- 
 ing so would not be actionable, be- 
 cause a man is not bound to be correct 
 in his statement of the law, though he 
 is bound to be correct in his statement 
 of fact." A man may intend to state 
 the law, and yet so state it as to ap- 
 pear to be stating a fact, and if he 
 does this he is responsible. (Bram- 
 well, L. J., Dicks v. Brooks, 15 Ch. 
 Div. 39; cited and approved, Halsey 
 V. Brotherhood, 19 Ch. Div. 391 ; see, 
 also, RoUins v. Hicks, Law Rep. 13 
 Eq. 355 ; Axmann v. Lund, Law Rep. 
 1 5 Eq. 330 ; Hastings v. Giles Litho. 
 Co. 21 N. Y. St. Rep. 268.) 
 
 Plaintiffs, vocalists, advertised as 
 follows : " The Sisters Hartridge have 
 pleasure in thanking Chappel & Co. 
 (music publishers) and others for their 
 permission to sing any morceaux from 
 their musical." Defendant, who was 
 interested as agent for the proprietors 
 of the " stage right " of certain songs 
 published by the firms mentioned, 
 wrote the proprietors of two music 
 halls at which plaintiffs were engaged 
 to sing, to the effect that the adver- 
 tisement, if relied upon in every par- 
 ticular, was calculated to lead them to 
 incur penalties under the copyright 
 act, inasmuch as the publishers named 
 had in some instances no power to 
 
§ 207.] 
 
 WHAT LANGUAGE IS ACTIONABLE. 
 
 293 
 
 § 207. As one cannot cloak his wrong-doing by the 
 use of ironical language (§ 133), so neither can one with 
 impunity attack a person \>y pretending to attack a thing; 
 for although the words may be professedly concerning a 
 thing, yet if in reality they concern a person, they will be 
 judged by the rules governing language concerning the 
 person.^ Whether certain language concerns a person or 
 a thing is sometimes a question difficult to determine; 
 but it is always a question of fact, and like every other 
 question of fact, is to be determined sometimes by the 
 court and sometimes by the jury (§ 69).* The language 
 
 g^ve the alleged permission, and in- 
 sinuating that music hall singing was 
 not calculated to create a demand for 
 their musical publications. Upon a 
 motion to set aside a nonsuit, it was 
 held that, inasmuch as the letters were 
 reasonably susceptible of a construc- 
 tion which would make them libelous, 
 the opinion of the jury ought to have 
 been taken upon their meaning. 
 (Hart V. Wall, Law Rep. 2 C. P. 
 146.) An action was maintained for 
 saying of the plaintiff's stallion that it 
 had the venereal disease. (Wier v. 
 Allen, 51 N. H. 177.) In Wilson v. 
 Dubois (35 Minn. 471), the plaint- 
 iff alleged he was prevented selling 
 his horse by reason of defendant's 
 statement that the horse was 21 years 
 old, whereas it was not more than 12 
 years old. His suit failed for a defect 
 in his pleading. See ante, note i, p. 
 284. In an action for slander to title 
 of personal property, plaintiff can re- 
 cover only such damages as are specif- 
 ically alleged. (Childs v. Tuttle, 48 
 Hun, 228.) 
 
 • Carr v. Hood, i Camp. 355, «. 
 An employer may have an action for 
 language injurious to him in his busi- 
 ness, although the language directly 
 points to a person in his employ and 
 not to himself; and the owner of a 
 chattel may sue for injury to his busi- 
 ness by language respecting such 
 chattel, but necessarily referring to 
 the owner. (Harnett v. Wilson, i 
 Victoria Law Times, 45; and see 
 Riding v. Smith, Law Rep. i Ex. Div. 
 
 91.) In Tobias w, Harland, 4 Wend. 
 537, the court said that words dispar- 
 aging an article made or dealt in by 
 the plaintiff, were not actionable un- 
 less they imputed deceit or malprac- 
 tice in the making or vending, or a 
 want of skill in the manufacturing. 
 In reference to this dictum it must be 
 observed that words imputing to 
 plaintiff deceit or want of skill do not 
 concern the thing, but the person, and 
 are therefore within the rules relating 
 to personal defamation. (See Kenne- 
 dy V. Press Pub. Co. 3 N. Y. State 
 Rep. 139; 41 Hun, 422; Latimer v. 
 West. Morning News Co. 25 Law 
 Times, N. S. 44.) 
 
 As to pleas in actions for slander 
 of title, see Mair v. Culy, 12 Up. Can. 
 Q. B. 71 ; Bouhon v. Shields, 3 Id. 
 21 ; Crean v. Gamble, 7 Ir. Jur. N. S. 
 
 SSI- 
 Exemplary damages in an action 
 for slander of title. (Van Tuyl v. 
 Riner, 3 Bradw. 556.) 
 
 Bill of particulars in action for 
 slander of title. (Childs v. Tuttle, 48 
 Hun, 228.) 
 
 * A cut or picture of the interior 
 of a saloon, with " Kennedy's " be- 
 neath, together with an article, which, 
 taken in its strongest sense, with in- 
 nuendoes, was a charge that the sa- 
 loon was the resort of improper char- 
 acters, the associations bad, &c., with- 
 out other mention of the plaintiff, held, 
 a libel on the place and not on plaint- 
 iff. (Kennedy v. Free Press Pub. Co. 
 41 Hun, 422.) And charging in a 
 
294 WHAT LANGUAGE IS ACTIONABLE. [CH. VIII. 
 
 which on its face concerns a person, may indirectly affect 
 a person other than the person whom on its face the Ian- 
 guage concerns. It may affect one as concerning him 
 personally, and affect another as concerning a thing. The 
 language heretofore referred to (§ 201) concerning an 
 actress, whereby she refused to perform her engagement, 
 was as to her concerning the person, but as to her em- 
 ployer it was concerning a thing, namely, his right of 
 property in or to her services. 
 
 newspaper article that a public dinner dividual, and not actionable per se. 
 
 provided by a caterer was bad, " the (Dooling v. Budget Pub. Co. 144 
 
 cigars vile, and the wines not much Mass. 258; 36 Alb. L. J. 18.) 
 better," was held not to attack the in- 
 
CHAPTER IX. 
 
 DEFENSES. 
 
 Privileged publications generally — Repetition— Truth- 
 Legislative proceedings and reports thereof— Judicial 
 proceedings— Parties to proceedings— Counsel— Wit- 
 nesses^udges — Grand jurors— Reports of judicial 
 proceedings— Quasi judicial proceedings — Church dis- 
 cipline — Seeking advice or redress other than judi- 
 cially — Giving information or advice generally — At- 
 torney and client — Master and servant — Candidates 
 for office or employment — Insanity— Drunkenness — 
 Infancy — Accx)rd and satisfaction — Previous recovery 
 — Apology — Freedom of the pyress — Criticism,. 
 
 § 208. The actionable language referred to in the pre- 
 ceding chapter is to be understood as prima facie action- 
 able only, that is to say, it is actionable when published 
 without any legal excuse for making the publication.^ 
 We have, in previous chapters (j;§ 64, 65), referred to the 
 kinds of legal excuses, and the distinction between legal 
 excuses and defenses, and (§ 50) stated that it is the occa- 
 
 * To every libel there may be an has assumed the jurisdiction to de- 
 implied justification from the occa- cide. But it is more a question of 
 sion. (Weatherstone v. Hawkins, i fact in each particular case than a 
 T. R. 1 10.) But " there are some question of law. The court is to con- 
 libels it is impossible to justify." sider whether the occasion is such as 
 (Pollock, Ch. B., Darby v. Ouseley, to make the communication one of a 
 25 Law Jour. 227, Ex.) In that case privileged character. That being so, 
 the charge was that plaintiff was a it by no means follows that we can 
 Roman Catholic, and necessarily "a derive much aid in one case from an- 
 traitor," and held, a plea of justifica- other the circumstances of which are 
 tion could ao\. possibly be supported. not exactly the same." (Maule, J., 
 "Whether the circumstances under Wenman v. Ash, 13 C. B. 836; and 
 which a communication is made con- see Darby v. Ouseley, i Hurl. & N. 
 stitute it a privileged communication i.) 
 or not, is a question which the court 
 
296 
 
 PRIVILEGED PUBLICATIONS. 
 
 [CH. IX. 
 
 sion which determines of every act, and consequently of 
 the act of publication, whether or not it admits of a legal 
 excuse or defense. When the occasion really or appar- 
 ently furnishes a legal excuse for making the publication, 
 in that event the publication is termed a privileged publi- 
 cation (§ 1 20), or a privileged communication.^ Privileged 
 publication is the better term, because the phrase privi- 
 leged communication has another meaning, namely, a 
 communication made under circumstances which either 
 entitles or obliges the person to whom the communication 
 is made to withhold the disclosure of the matter commun- 
 icated.* The term privileged communication, when here- 
 after employed, will be a synonym for privileged publica- 
 tion. 
 
 § 209. Privileged publications are properly divided 
 into absolutely privileged and conditionally privileged.* 
 
 1 Civil Code of California, § 47, 
 provides that a privileged communi- 
 cation is one made witnout malice to 
 a person interested therein by one 
 who is also interested, or by one who 
 stands in such a relation to the per- 
 son interested as to afford a reason- 
 able ground for supposing the motive 
 for the communication innocent, and 
 § 48 provides that malice is not to be 
 inferred from the mere fact of publi- 
 cation. Held that a finding of a jury 
 that a communication was made with 
 .malice, and was not privileged, cannot 
 be disturbed. (Sesler v. Montgomery, 
 19 Pac. 686.) The proposed Civil 
 Code of New York defines : 
 
 § 34. A privileged pubUcation is 
 one made : 
 
 1. In the proper discharge of an 
 official duty ; 
 
 2. In any legfislative or judicial 
 proceeding, or in any other official 
 proceeding authorized by law ; 
 
 3. In a communication, without 
 malice, and with reasonable belief of 
 truth, to a person interested therein^ 
 by one who was also interested, or 
 who stands in such relation to him as 
 
 to render the giving of the informa- 
 tion to him reasonable and proper; 
 
 4. By a fair and true report, with- 
 out malice, of a judicial, legislative, or 
 other public official proceeding, or of 
 anything said as a part thereof; 
 
 5. In a criticism of an official act 
 of a public officer, made without mal- 
 ice, and not containing an attack 
 upon his private character. 
 
 * As to the distinction between 
 communications privileged from being 
 given in evidence and privileged from 
 being a cause of action for slander or 
 libel, see remarks of Bushe, C. J., 
 Black V. Holmes, l Fox & Sm. 35 ; 
 see note to § ma, post. 
 
 ^ Perkins v. Mitchell, 31 Barb. 
 467; Warner v. Paine, 2 Sandf. 198. 
 Privileged communications are of four 
 kinds, to wit : where the publisher of 
 the alleged slander acted in good faith 
 in the discharge of a public or private 
 duty, legal or moral, or in the prose- 
 cution of his own rights or interests ; 
 anything said or written by a master 
 concerning the character of a servant 
 who has been in his employment; 
 words used in the course of a legal or 
 
§ 209.] 
 
 PRIVILEGED PUBLICATIOMS. 297 
 
 And each of these publications may be again divided 
 into such as are privileged as to the matter published, 
 and such as are privileged as to the manner of the pub- 
 lication. By an absolutely privileged publication is not 
 to be understood a publication for which the publisher is 
 in no wise responsible; but it means a publication in res- 
 pect of which, by reason of the occasion upon which it is 
 made, no remedy can be had in a civil action of slander or 
 libel. A conditionally privileged publication is a publica- 
 tion made on an occasion which furnishes a prima facie 
 legal excuse for the making of it; and which is privileged, 
 unless some additional fact is shown which so alters the 
 character of the occasion as to prevent it furnishing a 
 legal excuse. The additional fact which, in the majority 
 of cases, is required to be shown to destroy this conditional 
 privilege is malice, meaning bad intent in the publisher, i. 
 e., an intent to injure the person whom or whose affairs 
 the language concerns; ^ and, therefore, by a conditionally 
 
 judicial proceeding; and publications actuating defendant different from that 
 duly made in the ordinary mode of which, prima facie, rendered the 
 parliamentary proceedings. (White statement privileged. (Fahr v. Hayes, 
 V. NichoUs, 3 How. U. S. Rep. 266.) 50 N. J. L. [21 Vroom] 481.) In 
 Absolutely privileged communications such cases malice is not inferred from 
 are of two kinds: (I.) Proceedings in the mere fact that the words spoken 
 courts of justice; (2.) Memorials and are false. (Decker v. Gaylord, 35 
 petitions to the legislature. (Cook v. Hun, 584; Templeton v. Graves, 59 
 Hill, 3 Sandf. 341.) Courts are not Wis. 95; and see post, § 389.) 
 inclined to extend the doctrine of ab- In Wakefield v. Smithwick. 4 Jones 
 solutely privileged communications. (N. Car.), 327, by Pearson, J. : " The 
 (/</.) A conditionally privileged pub- defense under the doctrine of privi- 
 lication must be made '' in good faith, leged communication is much broader, 
 believing the statements it contains and much more favorable to defend- 
 to be true, or having probable cause ant [than a justification], for if he 
 to believe them to be true. " If there succeeds in proving such a relation 
 was no probable cause of the com- between himself and the person to 
 munication, the law implies that it whom the communication is made as 
 was made with malice. If, however, authorizes him to make it, the burden 
 it appears that there was probable is upon the plamtiff to prove that it 
 cause, the communication is privi- was not made bona fide in consequence 
 leged, no matter how much actual of such relation, but out of malice, 
 malice dictated it. (Id.) •' Privilege and that the existence of such relation 
 is often used very loosely and inaccu- was used as a mere cover for his ma- 
 rately." (Bramwell, Ld. J., Stevens lignant designs. When, however, 
 V. Sampson, L. R. 5 Ex. D. 53[App.].) plaintiff shows that the matter com- 
 • Malice here means some motive municated was false, the question of 
 
298 
 
 PRIVILEGED PUBLICATIONS. 
 
 [CH. IX. 
 
 privileged publication is very generally understood one 
 which rebuts the presumption of malice, meaning absence 
 of legal excuse, which, in cases where no legal excuse is 
 apparent, arises from the mere fact of publication-^ The 
 proper meaning of a privileged communication is, " that 
 the occasion on which it was made rebuts the inference 
 arising prima facie from a statement prejudicial to the 
 character of the plaintiff, and puts it upon him to prove 
 that there was malice in fact, and the defendant was actu- 
 ated by motives of personal spite and ill will independent 
 of the circumstances in which the communication was 
 made.^ It has been suggested that : " Instead of the ex- 
 
 bona fides becomes an open one, and 
 defendant is called on for some expla- 
 nation to meet the inference arising 
 from the fact that he has communi- 
 cated false information." (Cited and 
 approved, Allen v. Cape Fear R. R. 
 Co. 6 So. East. Rep. [N. Car.] 107.) 
 
 1 " In general, an action lies for 
 the malicious publication of state- 
 ments which are false in fact and in- 
 jurious to the character of another 
 (within the well-known limits as to 
 verbal slander), and the law considers 
 such publication as malicious, unless 
 it is fairly made by a person in the 
 discharge of some public or private 
 duty, whether legal or moral, or in the 
 conduct of his [the publisher's] own 
 affairs, in matters where his interest 
 is concerned. In such cases, the oc- 
 casion prevents the inference of mal- 
 ice which the law draws from unau- 
 thorized communications, and affords 
 a qualified defense depending upon 
 the absence of actual malice. If fair- 
 ly warranted by any reasonable occa- 
 sion or exigency, and honestly made, 
 such communications are protected 
 for the common convenience and wel- 
 fare of society, and the law has not 
 restricted the right to make them 
 within any narrow limits." (Parke. 
 B.. Toogood V. Spyring, i Cr. M. & 
 R. 181; 4Tyrw. 582; and to the like 
 effect, see Coxhead v. Richards, 2 C. 
 B. 569; Blackham v. Pugh, 2 C. B. 
 611 ; Bennett v. Deacon, 2 C. B. 628; 
 Taylor v. Hawkins, 16 Q. B. [Adol. 
 
 & El. N. S.] 308; Kine v. Sewell, 3 
 M. & W. 297; Swan v. Tappan, 5 
 Cush. 104.) " A communication, to 
 be privileged, must be made upon a 
 proper occasion, from a proper motive, 
 and must be based upon reasonable 
 or probable cause. When so made 
 in good faith, the law does not imply 
 malice from the communication itself, 
 as in the ordinary case of libel ; actual 
 malice nmst be proved before there 
 can be a recovery.. And whether a 
 communication be privileged or not is 
 a question for the court, not the jury." 
 (Briggs V. Garrett, iii Pa. St. 404; 
 approved, Press Co. v. Stewart, 119 
 Penn. St. 584, reversing Stewart v. 
 Press (Jo. I Pa. C. C. Rep. 247 ; and 
 see Carpenter v. Bailey, 56 N. H. 283; 
 Creek v. Newlands, 4 Vict. Law Rep. 
 L. 412; Locke V. Bradstreet Co. 22 
 Fed. Rep. [Minn.] 771 ; Neeb v. Hope, 
 III Penn. St. 145.) 
 
 2 Klinck V. Colby, 46 N. Y. 427; 
 Moore v. Manuf. Bk. 21 N. Y. St. 
 Rep. 653. The N. Y. Penal Code 
 defines a privileged communication 
 thus: § 253. A communication made 
 to a person entitled to or interested in 
 the communication, by one who was 
 also interested in or entitled to make 
 it, or who stood in such a relation to 
 the former as to afford a reasonable 
 ground for supposing his motive in- 
 nocent, is presumed not to be mali- 
 cious, and is called a privileged com- 
 munication. 
 
§ 2O9.J PRIVILEGED PUBLICATIONS. 
 
 299 
 
 pression ' privileged communication,' it is more correct to 
 say, that the communication was made on an occasion 
 which rebuts the presumption of malice."^ The proper 
 meaning of a privileged communication is only this: that 
 the occasion on which the communication was made re- 
 buts the inference prima fade arising from a statement 
 prejudicial to the character of the plaintiff, and puts the 
 burden upon him to prove malice in fact, i. e., that the 
 defendant was actuated by motives of personal spite or ill- 
 will, or of culpable recklessness or negligence.^ The des- 
 cription of cases recognized as privileged communications 
 must be understood as exceptions to the rule (that every 
 defamatory publication implies malice), and as being 
 founded upon some apparently recognized obligation or 
 motive, legal, moral, or social, which may fairly be pre- 
 sumed to have led to the publication, and, therefore, przma 
 facie relieves it of the implication from which the general 
 rule of law is deduced. The rule of evidence, as to such 
 cases, is, accordingly,^ so far changed as to impose on the 
 plaintiff the onus of rebutting those presumptions flowing 
 from the seeming obligations and situations of the parties, 
 and to require of him to bring home to the defendant the 
 
 ' Erie, J., Gilpin v. Fowler, 9 Ex. 395) ; and per Learned, P. J. : " If the 
 
 615. communication is not defamatory 
 
 * Wright V. Woodgate, 2 Cr. M. there is no need of asserting the priv- 
 & R. 573; Briggs V. Garrett, iii ilege." (Moore r/. Manuf. Bk. 21 N. 
 Penn. St. 404 : The State v. Banner Y. St. Rep. 654.) 
 Pub. Co. 16 Lea (Tenn.), 176; Rob- Defendant, the teacher of a high 
 inson v. Hatch, 55 How. Pr. R. 55. school, undertook, at the request of 
 Where the writer is acting on any the school committee, to examine can- 
 duty, legal or moral, towards the didates for admission to said school, 
 person to whom he writes, or where as to their qualification. Plaintiff was 
 he has by his situation to protect the a candidate for admission and submit- 
 interest of that person, that which he ted to examination. Defendant re- 
 writes under such circumstances is a ported him to the school committee as 
 privileged communication, and no ac- disqualified. Complaint alleged that 
 tion will lie for what is thus written, the report was made maliciously and 
 unless the writer be actuated by mal- was false in fact. A demurrer to the 
 ice. (Cockayne v. Hodgkisson, 5 complaint, as not containing a cause 
 Car. & P. 543.) of action, was overruled. (Hammond 
 '"Privilege is not wanted unless v. Hussey, 51 N. H. 40.) The de- 
 the publication is libelous." (Brett, murrer admitted the falsehood and 
 J., Williamson v. Freer, L. R. 9 C. P. malice. 
 
300 PRIVILEGED PUBLICATIONS. [cH. IX. 
 
 existence of malice, z, ^., malice in fact, as the true motive 
 of his conduct.^ It has been said ; Few rules of law are 
 of greater practical importance than that which requires 
 proof of express malice, where the words are spoken under 
 circumstances which make the communication privileged. 
 The malice required to deprive communications of this 
 sort of the protection arising out of the occasion of the 
 publication, must be such as to induce the court, or any 
 reasonable person, to draw the inference that the occasion 
 has been taken advantage of to give currency to an un- 
 founded charge.* Privileged communications comprehend 
 all statements made bona fidg in performance of a duty, or 
 with a fair and reasonable purpose of protecting the inter- 
 est of the person making them,^ or the interest of the per- 
 son to whom they are made.* A communication made 
 bona fide upon any subject-matter in which the party com- 
 municating has an interest, or in reference to which he has 
 a duty (§ 239), is privileged, if made to a person having 
 a corresponding interest or duty, although it contain crim- 
 inatory matter, which, without this privilege, would be 
 slanderous and actionable.^ But in this definition of a 
 privileged communication, the word duty " cannot be con- 
 fined to legal duties, which may be enforced by indictment, 
 action, or mandamus, but must include moral and social 
 duties of imperfect obligation."^ But, as was said by 
 Creswell, J.:'^ " It is not easy very precisely to define what 
 
 ' White V. NichoUs, 3 How. U. S. Where there are several distinct [di- 
 
 Rep. 266 ; King v. Patterson, 49 N. visible^ § 145] charges, some privileged 
 
 J. L. 417; McLean v. Scripps, 52 and some not privileged, those not 
 
 Mich. 214; Locke v. Bradstreet Co. privileged are not justified by the 
 
 22 Fed. Rep. 771 ; Bradley v. Heath, charges that are privileged. (Clarke 
 
 12 Pick. 163. v. Roe, 4 Jr. Com. Law Rep. i.) One 
 
 2 Manby z-. Witt, 18 C. B. 544. charge may be justified. (§2I2,/ojA) 
 
 2 Somerville v. Hawkins, 10 C. B. » Marks v. Baker, 28 Minn. 162. 
 
 583; 15 Jur. 450; Briggs v. Garrett, « Harrison v. Bush, S El. & Bl. 
 
 Ill Pa. St. 404 ; Halstead v. Nelson, 349. As to duties of iniperfect obli- 
 
 24 Hun, 395. Good motive alone is gation, see § 35, ante. 
 not an excuse. (Hamilton v. Eno, 8i ' Wenman v. Ash, 13 Com. B. 
 
 N.Y.I 16.) 844. 
 
 * Pattison v. Jones, 8 B. & C. 578. 
 
§ 2IO.] REPETITION. 
 
 301 
 
 is, and what is not, a privileged communication." We 
 venture, with much hesitation, to suggest the rule as to 
 privilege to be : one may publish, by speech or writing, 
 whatever he honestly believes is essential to the protection 
 of his own rights, or to the rights of another, provided the 
 publication be not unnecessarily made to others than to 
 those persons whom the publisher honestly believes can 
 assist him in the protection of his own rights, nor to others 
 than those whom he honestly believes will, by reason of a 
 knowledge of the matter published, be better enabled to 
 assert, or to protect from invasion, either their own rights, 
 or the rights of others intrusted to their guardianship 
 (§ 241). In Davies v. Sneed} Blackburn, J,, says that: 
 " Where a person is so situated that it becomes right, in 
 the interests of society,. that he should tell to a third per- 
 son certain facts, then, if he bona fide, and without malice, 
 does tell them, it is a privileged communication." In 
 Waller v. Lock^ Brett, J., says of the above definition : it 
 "is the best; it leaves out all misleading words, saying 
 nothing about duty, and states in plain terms what 1 con- 
 ceive to be the true rule." 
 
 § 210. It will be convenient, prior to considering the 
 several occasions which give rise to privileged publica- 
 tions, to discuss the supposed privilege under certain con- 
 ditions of repeating defamatory matter. It already ap- 
 pears that the publication of defamatory matter cannot 
 be justified on the ground that it is but a repetition 
 (§ 114).^ For a long period, however, it was tacitly con- 
 
 > Law Rep. 5 Q. B. 611. See, Can. Q. B. Rep. 293; ante, §§ 114, 
 
 however, Byam v. Collins, in N. Y. 202.) It is no defense to an action 
 
 143. for defamatory matter published in a 
 
 ^ Law Rep. 7 Q. B. 622. newspaper, that it was the communi- 
 
 3 One who repeats a slander is cation of a correspondent, or copied 
 
 responsible. (Evans v. Smith, 5 T. from another newspaper (Talbutt v. 
 
 B. Monr. 363; Kenney v. McLough- Clark, 3 Moo. & R. 312; Sanford v. 
 
 lin, S Gray, 3; Clark v. Munsell, 6 Bennett, 24 N. Y. 20; Miles v. Spen- 
 
 Metc. 373; Hampton v. W^ilson, 4 cer, I Holt R. 533; Parker v. Mc- 
 
 Dev. 468; Muma v. Harmer, 17 Up. Queen, 8 B. Monr. 16; McDonald v. 
 
302 
 
 REPETITION. 
 
 [CH. IX, 
 
 ceded that such a repetition could be justified by declar- 
 ing the name of the previous publisher. The supposed 
 origin of the error is a dictum in the Earl of Northamp- 
 ton's case, A. D., 1613.^ That case was an information 
 under the statutes of scandalum magnatum in the Star 
 
 Woodruff, 2 Dill. Cir. Ct. R. 244; 
 Regensperger v. Kiefer, 6 Cent. Rep. 
 266; Bruce v. Reed, 14 W. N. C. 161 ; 
 Davis V. Shepstone, 11 App. Cas. 187), 
 or that it had been previously pub- 
 lished, and the plaintiff had failed to 
 prosecute the previous publisher (Rex 
 V. Holt, 5 T. R. 436 ; Curtiss v. Mus- 
 sey, 6 Gray [Mass.], 261 ; see Poppen- 
 heim v. Wilkes, i Strobhart, 275) ; or 
 that when the charge was made, the 
 plaintiff did not deny it. (Fuller v. 
 Dean, 31 Ala. 654.) In Reg. v. New- 
 man (I El. & Bl. 268), the defendant 
 on the trial offered to put in evidence 
 the Dublin Review, of a date prior to 
 the alleged libel, in order to show that 
 the charge contained in the libel had 
 been published a considerable time 
 before the alleged libel, and that the 
 publisher had not been prosecuted ; 
 this evidence was rejected, and the 
 rejection was made one of the grounds 
 for a motion for a new trial, and per 
 Coleridge, J., "It has been said that 
 probably the libel was true because 
 another libel was published by another 
 person. Upon that principle, it might 
 have been argued that the statements 
 in the Dublin Review were true be- 
 cause they had previously appeared in 
 some other publication. Snch evi- 
 dence is far too vague to be received. 
 The fallacy of the learned counsel's 
 argument consists in the prosecutor's 
 alleged submission to the previous 
 libel. The utmost that can be said is 
 that he did not prosecute the parties. 
 That might have arisen from various 
 considerations. He might not be able 
 to fix on a particular person, or upon 
 any one of character, or he might be 
 prevented from proceeding by his pov- 
 erty, or by a variety of other circum- 
 stances. Besides, it is not always 
 considered expedient to institute pro- 
 ceedings in respect to the first charge " 
 (See Hinman v. Hare, 6 Cent. Rep. 
 44, 53.) Nor is it any justification 
 
 that prior to the publication com- 
 plained against, there was a rumor or 
 report current and generally believed 
 that the plaintiff was g^uilty of the of- 
 fense imputed. (Hampton v. Wilson, 
 4 Dev. 468 ; Haskins v. Lumsden, 10 
 Wis. 359; Moberly v. Preston, 8 Mo. 
 R. 462 ; Cade v. Redditt, 1 5 La. An. 
 492; Dame v. Kenney, 5 Foster [N. 
 H.], 318; Lewis z/. Niles. I Root, 346; 
 Knight V. Foster, 39 N. H. 576 ; Wool- 
 cott V. Hall, 6 Mass. 514; Alderman 
 V. French, i Pick, i ; Watkin v. Hall, 
 Law Rep. 3 Q. B. 396) ; or that the 
 defendant spoke the words as merely 
 giving the report. (Wheeler v. Shields, 
 2 Scam. 348 ; Smalley v. Anderson, 4 
 T. B. Monr. 367; Ryer v. Fireman's 
 Journal, 11 Daly, 251.) Perhaps a 
 defendant may give in evidence under 
 the general issue the existence of ru- 
 mors agamst the plaintiff's character, 
 to show that he has sustained no injury 
 or in mitigation. (Waithman v. Weav- 
 er, II Price, 259 «; Treat v. Brown- 
 ing, 4 Conn. 408 ; Nelson v. Evans, i 
 Dev. 9; Calloway v. Middleton, 2 A. 
 K. Marsh. 372; Binns v. Stokes, 27 
 Miss. [5 Cush.] 239.) Neither partic- 
 ular reports, nor public reputation of 
 the slander, nor of kindred charges 
 against the plaintiff, are admissible. 
 (Inman v. Foster, 8 Wend. 602; Ken- 
 nedy 2/. Gifford, 19 Wend. 296: Mapes 
 V. Weeks, 4 Wend. 659; Matson v. 
 Buck, 5 Cow. 499; see §§216, 411.) 
 
 ' 12 Coke, 132; F. Moore, 821. 
 The Statute of Westminster i (A. D. 
 1275) was directed against the devisers 
 of tales occasioning discord between 
 the King (Edward I) and his People 
 or the Great men of the Realm, and the 
 punishment was imprisonment until 
 the accused "brought him into the 
 Court which was the first author of the 
 tale," and see Statute of Gloucester, 
 2 Rich. II, A. D. 1378, and 12 Rich. 
 II, A, D. 1388. 
 
§ 2IO.] REPETITION. 
 
 303 
 
 Chamber, against Goodrich, Cox, Varner, Minor, Lake, 
 and Ingram, for publishing defamatory language concern- 
 ing the Earl of Northampton. The defendants all ap- 
 peared in court ; Goodrich confessed to the publication, but 
 alleged in justification that he was not the first author, and 
 vouched said Cox, who in like manner confessed and vouch- 
 ed said Varner, who in like manner confessed and vouched 
 said Minor, who in like manner confessed and vouched said 
 Lake, who in like manner confessed and said he heard the 
 words from one Spoket, who said he heard them from said 
 Ingram, who in like manner confessed and said he heard 
 the words from two English fugitives at Leghorn. The 
 court intimated that the defense of the language being a 
 repetition, would be available ijt the case of a publication 
 concerning a common person, but not in the case of a peer, 
 and all the defendants were punished by fine and imprison- 
 ment. The error so far gained ground that subsequently ^ 
 we find it held that a plaintiff in an action for slander, 
 where the slander appeared to be a repetition, was required 
 in his declaration to negative that the defendant had in 
 fact heard spoken the language he was charged with pub- 
 lishing. Passing over a long interval we find, A D. 1796, 
 Lord Kenyon, then Chief Justice of the King's Bench, re- 
 ferring approvingly to the Earl of Northampton's case, 
 but he introduced this qualification that to render the re- 
 petition justifiable, the defendant must at the time of the 
 repetition, mention the name of the previous publisher, 
 and that to name the previous publisher for the first time 
 in the defendant's plea* was not a justification. This 
 qualification was repeated in a subsequent case, A. D. 
 1805.^ This other qualification was also introduced, that 
 if the first publisher retracted what he had published, one 
 
 » Crawford v. Middleton, I Lev. ' Woolnoth v. Meadows, 5 East, 
 
 82. 463- 
 
 2 Davis -u. Lewis, 7 T. R. 17; and 
 see Church v. Bridgman, 6 Mo. 190. 
 
304 REPETITION. [CH. IX. 
 
 who subsequently and with a knowledge of such retraction 
 repeated the matter, was not legally excused by naming 
 the prior publisher.^ It long continued to be conceded as 
 law that no action could be maintained for the repetition 
 orally of defamatory matter, if at the time of the repeti- 
 tion the name of the previous publisher was mentioned ; 
 thus, in A. D. 1829, in an action for slander, the plea that 
 the language was a repetition of words previously spoken 
 by A., and that A. was named as the author at the time of 
 the publication, was overruled, not because naming the 
 author was no defense, but because the plea did not allege 
 that A. spoke the words maliciously, nor that the defend- 
 ant believed them to be true, nor that they were spoken 
 on a justifiable occasion.^ In Connecticut, it seems, that 
 giving the name of the author was never allowed as a de- 
 fense, but the fact was received in mitigation ; ^ subse- 
 quently it was held not receivable in that State, even in 
 mitigation.* In Pennsylvania, giving the name of the 
 previous publisher was held to rebut the inference of 
 malice,® and to amount to a mitigating circumstance.* In 
 Maine and some other States, it has been held that in an 
 action for slander, giving the name of the previous pub- 
 lisher of the words is a justification of the repetition.'' In 
 
 ' Maitland v. Goldney, 2 East, in Wisconsin, see Sans v. Joerris, 14 
 
 426. Wis. 663. 
 
 2 McPherson v. Daniels, 10 B. & ^ Binns v. McCorcle, 2 P. A. 
 C. 263 ; and see Moberly v. Preston, Brown's R. 79 ; Hersh v. Ringwalt, 3 
 8 Mo. 462. In Lewis v. Walter (4 B. Yeates, 508. 
 
 & Aid. 60s), it was said there must be « Kennedy v. Gregory, i Binney, 
 
 a just reason for the repetition. In 85; Morris 7/. Duane, I Binney, 90, «. 
 
 Hawkes v. Coster, i Law Reporter, In New Jersy, naming the previous 
 
 192 (London, 1821), Abbott, Ch. J., publisher was received in mitigation, 
 
 nonsuited the plaintiff in an action for (Cook v. Barkley, I Pennington's N, 
 
 slander, "for the defendant only re- J. Rep. 169, A. D. 1807.) In Jarnigan 
 
 peated the words of another, and v. Fleming (43 Mo. 711), it is said 
 
 gave his name at the time." (And that naming the previous publisher is 
 
 see O'Keefe v. Earl of Kingston, i not a defense, unless it is made with 
 
 Leg. Rep. 165 [Irish].) a good moMwi^. This is equivalent to 
 
 3 Leister v. Smith, 2 Root, 24. saying— that naming the previous 
 * Austin V. Hanchet, 2 Root, 148; publisher is not a defense. 
 
 Treat v. Browning, 4 Conn. 408 ; and, ' Unless it be proven that the rep- 
 
§ 2 lO.] 
 
 REPETITION. 
 
 3t>5 
 
 Michigan giving the name of the previous publisher is not 
 a defense.^ Thus far we have had reference only to actions 
 for slander ; the first case in which the question appears to 
 have been raised in an action for libel was in the Supreme 
 Court of Pennsylvania, A. D. 1803.^ It was there held 
 that giving the name of the author was no excuse for the 
 publication of a libel. The like ruling was made A. D. 
 1813, in the Supreme Court of New York.^ The first 
 mention of the point arising in an action for libel in the 
 English courts was in A. D. 1817, when it was held not to 
 be a defense that the defamatory matter was communi- 
 cated to the defendant by a third person.* In a subse- 
 quent case, for publishing an alleged libel purporting to 
 be an account of a trial, the plea was that the alleged libel 
 had been previously published in the H. Journal, and that 
 G. H. M. then and still was the publisher thereof; on de- 
 
 etition was malicious. (Haynes v. 
 Leland, 29 Maine, 233; Abrams v. 
 Smith, 8 Blackf. 95 ; Jones v. Chap- 
 man, 5 Blackf. 88 ; Crane v. Douglass, 
 2 Blackf. 195; Cummerford v. Mc- 
 Avoy, 15 111. 311 ; Johnston v. Lance. 
 7 Iredell, 448.) Disclosing name of 
 author at time of repetition held a de- 
 fense. (Kelly I/. Dillon, 5 Ind. [Porter], 
 446; Trabue v. Mays, 3 Dana, 138; 
 Robinson v. Harvey, 5 T. B. Monr. 
 519: Parker v. McQueen, 8 B. Monr. 
 16 ; see Fowler v. Chichester, 26 Ohio 
 St. 9; O'Keefe v. Earl of Kingston, i 
 Leg. Rep. 165.) Giving name of 
 author is evidence of want of malice. 
 (Miller v. Kerr, 2 McCord. 285 : 
 Church V. Bridgman, 6 Mo. 190; and 
 see Easterwood v. Quin. 2 Brevard, 
 64; Smith V. Stewart, 5 Barr, 372; 
 Sexton t/. Todd, W^right [Ohio], 317; 
 Haines v. Welling, 7 Ham. 253 ; Farr 
 V Rasco, 9 Mich. 353; Fowler v. Chi- 
 chester, 4 Amer. Law Record [Ohio], 
 318.) The defense of giving name of 
 author must be specially pleaded. 
 (Brooks V. Bryan, Wright, 760.) In 
 slander, evidence that the defendant 
 had been told by a third person that 
 the plaintiff was guilty of the crime 
 
 30 
 
 imputed to him is inadmissible. 
 (Mapes V. Weeks, 4 Wend. 659; 
 Austin V. Hanchet, 2 Root, 148.) In 
 slander, it is no justification that de- 
 fendant after speaking the words and 
 before the commencement of the ac- 
 tion, disclosed to plaintiff the author 
 of the words. (Skinner v. Grant, 12 
 Vt. 456; Ropke V. Brooklyn Daily 
 Eagle, 9 N. Y. St. Rep. 709.) In Scott 
 V. Peebles (2 Sme. & M. 546), it was 
 held to be no defense to an action for 
 slander that the defendant heard the 
 matter from a person out of the juris- 
 diction of the court. (See Evidence in 
 Mitigation, post. § 409, et seg., and 
 Gilman v. Lowell, i Amer. Lead. Cas. 
 202, n. ; 2 Greenl. Ev. § 424, n.) 
 
 ' Atkinson v. Detroit Free Press 
 Co. 46 Mich. 341. 
 
 - Runkle v. Meyers, 3 Yeates, 
 518. 
 
 3 Dole V. Lyon, 10 Johns. 447. In 
 Tennessee, the plea of repeating the 
 words of another is no defense to a 
 libel under any circumstances. (Lar- 
 kins V. Tarter, 3 Sneed, 681.) Other- 
 wise in slander. (Id.) 
 
 * Miles V. Spencer, i Holt N. P. 
 
 533- 
 
306 TRUTH. [CH. IX. 
 
 murrer the plea was held bad, as the defendant in his rep- 
 etition had only named the journal from which the 
 alleged libel was copied, and had not given the name of 
 the publisher, and it was intimated by the court that the 
 defense of the publication being a repetition, and that the 
 previous publisher was named at the time of the repetition, 
 did not apply to libel.' The first case in which the dictum 
 in the Earl of Northampton's case appears to have been 
 altogether repudiated, was one before Judge Betts, in New 
 York, A. D. 1825.^ It may now be considered as settled 
 in New York and in England, that neither in the action 
 for slander nor for libel is it any legal excuse that the 
 alleged defamatory matter had been previously published 
 by another, whose name was mentioned at the time of the 
 repetition.® 
 
 § 211. It is now almost universally conceded that to 
 show the truth of the -matter published is a complete de- 
 fense to an action either of slander or libel.* A publica- 
 
 ' Lewis v. Walter, 4 B. & Aid. 605, 3 Ind. 1 1 5.) As to giving evidence to 
 
 A. D. 1821. show that the libel was in fact written 
 
 2 Chevalier v. Brush, Anthon's by plaintiff himself, see Brookes v. 
 
 Law Student, 186; this was followed Titchborne, 5 Exch. 929. 
 by Mapes v. Weeks, 4 Wend. 659; * The phrase, "The greater the 
 
 Inman v. Foster, 8 Wend. 602; truth, the greater the hbel," has been 
 
 Hotchkiss V. Oliphant, 2 Hill, 510; usually attributed to Lord Mansfield, 
 
 and see Johnston v. Laud, 7 Iredell, also to Lord EUenborough. Haw- 
 
 448; Dole V. Lyon, 10 Johns. 447; kins, in his Pleas of the Crown, Bk i, 
 
 Clarksbn v. McCarty, 5 Blackf. 574; ch. xxviii, after saying truth is not a 
 
 Moberly v. Preston, 8 Mo. 462 ; Ro- justification, adds : since the greater 
 
 maynew. Duane, 3 Wash. C. C. 246; appearance there is of truth in any 
 
 The State v. Butman, 15 La. An. such malicious invective, so much the 
 
 166. more provoking. Bums wrote: 
 
 8 McGregor v. Thwaites, 3 B. & r. . . , .v . .^ .. ^ .^ 
 
 r '.A. i n J?r TJ (^nr . r>= r"l„„:„ Dost not know that old Mansfield, 
 
 C. 24; 4 D. & R. 695 ; De Crespigny Who writes like the Bible, 
 
 •v. Wellesley, 5 Bing. 392; Bennett z/. Says the more 'tis a truth, sir, 
 
 Bennett, 6 C. & P. 588; Tidman z/. the more 'tis a libel ? 
 
 Ainslie, 10 Exch. 63; Funk v. Bever- and Moore, "A Case of Libel," odes 
 
 ley, 112 Ind. 190. Nor does it make on Cash, Corn and Catholics, wrote: 
 a defense that the defendant believed , , „ 
 
 the matter published to be true [Id. ; ''L^l^1XtllS^^i\rk. Bible, 
 Sans V. Joerris, 14 Wis. 663) ; or that To find it settled by laws so wise, 
 
 plaintiff himself had previously pub- The greater the truth, the greater the libel, 
 
 lished the same matter. (Cook v. See Notes and Queries, 5 S. xii : 170, 
 
 Ward, 6 Bing. 409; Abshire v. Cline, 259, 279, 299, 358, 478. 
 
21 I.J 
 
 TRUTH. 
 
 307 
 
 tion of the truth is, as to a civil action, absolutely privi- 
 In the cases of rare occurrence, of actions for 
 
 leged.^ 
 
 ' Truth is a good defense in an ac- 
 tion for libel or slander. {Ante, notes 
 2. 3< p. 59.) Truth is by statute a 
 defense in Kansas, Louisiana, Mary- 
 land, and Virginia (Chaffin v. Lynch, 
 83 Va. 106); also in England. (See 
 Stat. 6 & 7 Vict. ch. 96.) And 
 in Connecticut, Georgia, Indiana, 
 Mississippi, Missouri, New Jersey, 
 North Carolina, Tennessee, Vermont 
 and District of Columbia, truth is 
 a defense to a criminal prosecution. 
 Truth a defense in an action. (Rayne 
 ■V. Taylor, 14 La. Ann. 406 ; Perry v. 
 Man, I Rhode Island, 263; Joannes v. 
 Jennings, 6 Sup. Ct. R. [T. & C] 1 38 ; 4 
 Hun, 66; Root v. King, 7 Cow. 613, 
 and 4 Wend. 113; i Stark, on Sland. 
 229; Lake v. Hutton. Hob. 253; 
 I'Anson v. Stuart, i T. R. 748 ; Press 
 Co. V. Stewart, 119 Penn. St. 584; 
 Thompson v. Press Co. 37 Minn. 
 285; Edwards v. Times Co. 32 
 Fed. Rep. 813; Heilman v. Shanklin, 
 60 Ind. 424; Castle v. Houston, 19 
 Kans. 417.) The Constitution of Flor- 
 ida provides that truth shall not be a 
 defense in either a criminal prosecu- 
 tion or a civil action for libel, unless 
 the publication was prompted by good 
 motives. (Wilson v. Marks, 18 Fla. 
 322. ) But the defense of truth must 
 be pleaded, and cannot be given in 
 evidence under the general issue, 
 either in bar or in mitigation. (Under- 
 wood V. Parks, 2 Str. 1200; Manning 
 V. Clement, 7 Bing. 367 ; 2 Greenl. Ev. 
 § 424: Andrews v. Vanduzer, 11 
 Johns. 38; Van Ankin v. Westfall, 14 
 Johns. 233; Shepard v. Merrill, 13 
 Johns. 475; Snyder v. Andrews, 6 
 Baib. 43; Wagner v. Holbrunner, 7 
 Gill, 296: Smith v. Smith, 8 Ired. 29; 
 Kelley v. Dillon, 5 Porter [Ind.], 426; 
 Arrington v. Jones, 9 Port. 139; 
 Douge V. Pearce, 13 Ala. N. S. 127; 
 Kay V. Fredrigal, 3 Barr, 221; Thomp- 
 son V. Bowers, I Doug. 321; Taylor v. 
 Robinson, 29 Maine [16 Shep.], 323; 
 Teagle v Deboy, 8 Blackf. 134; Wagg- 
 staffT/. Ashton, i Harring. 503 ; Bod- 
 well V. Swan, 3 Pick. 376 ; Alderman 
 V. French, i Pick, i; Updegrove v. 
 Zimmerman, 13 Penn. 619; Scott v. 
 
 McKinnish, 15 Ala. 662; Eagan v. 
 Gantt, I McMullan, 468; Rumsey v. 
 Webb, I Car. & M. 104; Else v. Fer- 
 ris, Anthon N, P. 36 ; Barns v. Webb, 
 I Tyler, 17; Samuel v. Bond, Litt. 
 Sel. Cas. 158; Treat zi. Browning, 4 
 Conn. 408; Bisbey w. Shaw, 12 N. Y. 
 67 ; Sheahan v. Collins, 20 111. 325 ; 
 Haws V. Stanford, 4 Sneed, 520 ; and 
 see Sidgreaves v. Myatt, 22 Ala. 617.) 
 The defendant may prove in mitiga- 
 tion such facts as show a ground of 
 suspicion not amounting to actual 
 proof of the charge (Wagner v. Hol- 
 brunner, 7 Gill, 296), or which tends 
 to a proof of the truth, yet fall short 
 of it (Snyder v. Andrews, 6 Barb. 43 ; 
 Bisbey v. Shaw, 1 2 N. Y. 67 ; Code of 
 Civ. Pro. N. Y. §§ 535, 536; Scott z;. 
 McKinnish, 15 Ala. 662), or which 
 rebut the presumption of malice. 
 (Kennedy v. Dear, 6 Porter, 90; 
 Arrington v. Jones, 9 Porter, 139; 
 Hartw. Reed, I B. Mon.i66; Chapman 
 V. Calder, 14 Penn. [2 Harris], 365; 
 Abshire v. Cline, 3 Ind. 115; and see 
 Moseley v. Moss, 6 Gratt. 534.) Evi- 
 dence of general bad character may 
 be admitted under the general issue. 
 (Smith V. Smith, 8 Ired. 29; Taylor v. 
 Robinson, 29 Maine, 323.) An action 
 of slander for charging a man with 
 having the venereal disease, and with 
 that disease upon him contracting 
 marriage, and communicating that 
 disease to his wife, cannot be main- 
 tained, if the plaintiff immediately af- 
 ter his marriage had the disease in 
 fact, even by proof that his wife, whom 
 he married without knowing that she 
 had the disease, communicated it to 
 him. (Golderman v. Stearns, 73 Mass. 
 181.) Where the charge is of a crime 
 of which the plaintiff was convicted, 
 it is no answer to a plea of the truth 
 of the charge that the plaintiff was 
 pardoned. (Baum v. Clause, 5 Hill, 
 196; see ante, § 158.) 
 
 The provision of the Constitution 
 of the State of New York, prior to its 
 amendment in 1846, as to the defense 
 of truth in prosecutions for libel, does 
 not apply to civil actions. (Dolloway 
 V. Turrell, 26 Wend. 383.) The 
 
3o8 
 
 TRUTH. 
 
 [CH. IX. 
 
 writing defamatory words upon documents of the plaintiff, 
 whereby the document is rendered less valuable or entirely 
 valueless to the owner, the truth of the defamatory matter 
 is not a defense. These are not exceptions to the rule 
 that truth is a defense in an action for slander or libel. 
 Such actions are, in fact, not actions for libel, but actions 
 for malicious injury to property. Where a coach proprie- 
 tor wrote upon the license of his driver, " Discharged for 
 being one shilling short," or where a police commissioner 
 wrote on "a certificate" of a police officer, "Dismissed the 
 police force," pleas of the truth of these statements were 
 overruled.-^ We do not pretend to vindicate, either as just 
 in its practical operation or as sound in principle, the rule 
 which makes truth a complete defense to an action for 
 slander or libel. The justice and expedience of this rule 
 is neither universally, nor even generally, conceded.^ The 
 
 amendment of 1846 limits the pro- 
 vision to criminal proceedings. (And 
 see Joannes v. Jennings. 6 Sup. Ct. 
 Rep. [T. & C] 138; see further under 
 heads Pleading. Evidence.) 
 
 It is said that where a crime is 
 charged, and the defense of truth is 
 sustained, the plaintiff may be put 
 upon his trial for the offense without 
 the intervention of a grand jury. 
 (Cook V. Field, 3 Esp. R. 133.) Many 
 instances have occurred where the 
 plaintiff's action for slander imputing 
 the commission of a crime, have occa- 
 sioned the prosecution and conviction 
 of the plaintiff for the imputed of- 
 fense. (See Pigot v. Pigot, Cro. Car. 
 531 ; and note /, i Stark. Sland. 237; 
 Symons v. Blake, 2 C. M. & R. 416; 
 4 Dowl. P. C. 263; I Gale, 182.) 
 And see Odger on Libel, Am. ed. by 
 Bigelow, 177, note c. 
 
 Wm. Parks, the first printer in 
 Williamsburg, Virginia, published (A. 
 D. 1736) of a member of the House of 
 Assembly, that he had been convicted 
 of sheep stealing; Parks being ar- 
 raigned before the House, stated the 
 charge to be true, and that being 
 found the fact, he was discharged. 
 (See Thomas' History of Printing in 
 America.) 
 
 » Rogers v. Macnamara, 14 Com. 
 B. 27; Hurrell v. Ellis, 2 Com. B. 
 295; Taylor v. Rowan, 7 Car. & P. 
 70; Wenhak v. Morgan, 20 Q. B. D. 
 635. In such an action substantial 
 damages may be given. (/(/.) Where 
 a shipping act authorizes a shipmas- 
 ter, in filling up a report to the ship- 
 ping officer upon the discharge of a 
 seaman, to decline to give any char- 
 acter under the headings of "con- 
 duct," "capacity" and "sobriety," 
 yet if he write ''declined" in these 
 columns, il will be competent for a 
 jury, on sufficient evidence, in an ac- 
 tion by the seaman, to say that such 
 word had a libelous meaning. (Gar- 
 sen V. Jacobsen, 5 Vict. Law Rep. L. 
 7 ; § 239, post:) 
 
 No inference of malice or of libel- 
 ous meaning is to be drawn from the 
 filling up by a shipmaster of a sea- 
 man's certificate of discharge, in the 
 columns as to ability, sobriety and 
 conduct, by a cross. (Snewin v. Do- 
 herty, 6 Vict. Law Rep. L. 305.) 
 
 2 " I am quite clear that the truth 
 ought not to be made decisive (as a 
 defense), either in civil or criminal 
 proceedings: for cases may be put 
 where the truth, instead of being a 
 justification, would not even be any 
 
§2II.J 
 
 TRUTH. 
 
 309 
 
 maxim that a man shall not profit by his own wrong/ or- 
 dinarily adduced as an apology for the rule under consid- 
 eration, if it applies in any case, certainly has no applica- 
 tion where the truth consists in the misfortune and not 
 in the wrongdoing of the person whom the publication 
 concerns. The rule allowing truth as a defense in a civil 
 action for slander or libel appears to be an innovation, 
 and of comparatively modern introduction.* Probably 
 
 mitigation ; nay, where it would be an 
 aggravation." (Lord Brougham, Eyi- 
 denoe. Rep. of House of Lords on 
 Libel, &c., July, 1843); and see in the 
 same report the opinions of other law- 
 yers and judges to the like effect ; and 
 see 2 Kent's Com. 25; Borthwick on 
 Libel, 252; 29 Pari. Hist. 575; Pre- 
 liminary Discourse to Starkie on Slan- 
 der, xliv. 
 
 ' Blackstone gives as a reason the 
 merit of the defendant in having ex- 
 posed the truth. (3 Black. Com. ch. 
 \'iii.) This is combated by Starkie, 
 who contends for the ground that the 
 plaintiff cannot take advantage of his 
 own wrong, (i Starkie on Slander, 
 230, 232; and see Preliminary Dis- 
 course to Starkie on Slander.) 
 
 If the words be true they are no 
 slander, and may be justified. (2 
 Wils. 301; II Mod. 99.) If the de- 
 fendant . . . prove the words to 
 be true, no action will lie, . . . 
 for then it is no slander or false tale. 
 (3 Black. Com. ch. viii ) The defend- 
 ant is justified in law and exempt from 
 all civil responsibility if that which he 
 publishes be true. (l Starkie on Slan- 
 der, 229.) " The truth is no slander." 
 (Shakespeare, Romeo and Juliet.) 
 
 In Rex V. Roberts (Ms. 8 Geo. 11, 
 A. D. 1735), Lord Hardwicke, Ch. J., 
 remarks : "' It is said that, if an action 
 was brought, the fact, if true, might 
 be justified ; but I think that is a mis- 
 take. Such a thing was never thought 
 of in the case of Harman v. Delany 
 (2 Stra. 898). I never heard such a 
 justification, in an action for libel, even 
 hinted at ; the law is too careful in 
 discountenancing such practices; all 
 
 the favor that I know truth affords in 
 such a case is, that it may be shown 
 in mitigation of damages." It is added 
 in a note by the editor of the Ameri- 
 can edition of Starkie on Slander (vol. 
 I. P- 233): "In the time of Lord 
 Hardwicke it was denied, not only by 
 him but by others, that the truth could 
 be given in evidence in bar of a recov- 
 ery;" and in a subsequent note (vol. 
 I. p. 235), until 1792, when the judges 
 of England gave their opinion in Par- 
 liament upon questions put to them 
 on the libel bill, the only authorities 
 for the position that a defendant might 
 plead the truth of a libel in justifica- 
 tion, were the dicta of Hobart, Ch. J., 
 in Lake v. Hutton (Hob. R. 253), and 
 of Holt, Ch. J., in Beaver v. Hides (2 
 Wils. 301), Anon. (11 Mod. 99), and 
 the acquiescence of the bar and the 
 court in I'Anson z/. Stuart (l T. R. 
 748). Since then are the cases of 
 King V. Parsons (A. D. 1799), in 
 which Lord Kenyon observed that it 
 was competent for a defendant in an 
 action for libel to plead the truth in 
 justification ; and Plunket v Cobbett 
 (A. D. 1804), in which Lord Ellen- 
 borough remarked, " in case the libel 
 had been true, the defendant could 
 have justified it on the record." An- 
 other reason assigned for making 
 truth a defense is that truth disentitles 
 to damages. (Blackburn, J., Camp- 
 bell V. Spottiswoode, 8 Law Times 
 Rep. N. S. 201; 3 Best & S. 769; 
 Fairman v. Ives, 5 B. & Aid. 646.) 
 
 « Selwyn's N. P. 986; Borthwick 
 on Libel, 246. Truth, it is said, was 
 at all times a defense in an action for 
 slander, (i Stark, on Slander, 234; 3 
 
3IO TRUTH. [CH. IX. 
 
 its origin was in tiiis wise : Until the statute of the 
 fourth year of Queen Anne, A. D., 1706, only a single 
 plea was permitted in a civil action, and there is no record 
 prior to that statute of a plea of truth in an action for 
 slander or libel. At least until A, D. 1 702, truth was ad- 
 mitted in mitigation under the general issue of not guilty,* 
 but between that date and A. D. 1716, probably after the 
 statute of Anne allowing several pleas, at a meeting of 
 the judges of England, the rule was settled not to allow 
 the truth to be given in evidence in mitigation, but re- 
 quiring "that it should be pleaded."* From this we in- 
 fer that no such plea existed prior to that time, and the 
 requiring the truth to be specially pleaded was evidently 
 to prevent a surprise upon the plaintiff, and to enable 
 him to be prepared with his reply. Notwithstanding this 
 rule requiring truth to be specially pleaded, we find that 
 at least until A. D. 1735, truth was regarded only as a 
 matter of mitigation. The system of pleading then in 
 vogue knew no such thing as a plea in mitigation; in 
 that system every plea was either in abatement or in bar, 
 and when truth was required to be pleaded it was al- 
 most of course to regard it as a plea in bar, and thus, as 
 we suppose, the truth, when specially pleaded, became a 
 defense. The truth, however, which is admitted as a de- 
 fense is the truth of the defamatory matter in substance 
 and in fact, and in the sense in which it was used and was 
 intended to be uncfcrstood. If A. says of X. that he is a 
 thief, and C. publishes that A. said X. was a thief, in a cer- 
 tain sense C. would publish the truth, but not in the sense 
 
 Black. Com. ch. viii.) This, however, matter complained of was true, unless 
 
 seems doubtful. See Smith v. Rich- the defendant could show that the 
 
 ardson (WiUes, 20; Bull. N. P. 7), public was interested in the exposure." 
 
 where it is said : " V^hen evidence of (Dig. xlviii, 19, 24 ; Spence, Origin of 
 
 the truth of the words was offered in Laws, &c. 151.) 
 
 mitigation of damages, Lord Maccles- 1 Underwood v. Parks, 2 Strange, 
 
 field, with a great deal of indignation, 1200. 
 
 refused to admit it." " In an action 2 Smithies v. Harrison, i Ld. 
 
 for libel it was no defense that the Raym. 727. 
 
§212.] 
 
 TRUTH. 
 
 3ir 
 
 which would constitute a defense; C's publication would 
 in fact be but a repetition of A's words, which, as we have 
 seen, would not be a defense (§ 210). The truth, which 
 in such a case would amount to a defense, would be that 
 X. was a thief.^ ^gain, if A., speaking ironically, says of 
 X. that he is an honest man, meaning and conveying the 
 idea that X. is a dishonest man, it would not be a justifica- 
 tion of these words to allege that it was true X. was an hon- 
 est man, but to constitute a defense the allegation required 
 would be that it was true X. was a dishonest man. We 
 shall give, in the following sections, some illustrations of 
 the requirements of a justification on the ground of truth, 
 and the subject will be further illustrated under the head 
 of Pleading (§ 355). 
 
 § 212. Where defamatory allegations, whether pub- 
 lished orally or in writing, are divisible (§ 145), but not 
 otherwise, the defendant is permitted to justify on the 
 ground of truth, one or some of them, less than the 
 whole.^ But whether he justify the whole or part only, 
 the justification, as to so much as is intended to be justi- 
 fied, must go the whole length of the charge in all its 
 material allegations and specifically point out the acts of 
 which plaintiff was alleged to be guilty.^ The justification 
 must always be as broad as the charge, and of the very 
 charge attempted to be justified.* A charge that the 
 
 ' Watkin v. Hall, Law Rep. 3 Q. ed it with intent to cause it to be be- 
 
 R. 396. lieved that the plaintiff had been guilty 
 
 ^ See ante, notes to § 145, and of feloniously stealing a horse; plea, 
 
 note 4, p. 300, ante ; and Stiles v. except as to the word horse-stealer, 
 
 Nokes, 7 East, 493; Andrews v. a justification, stating circumstances 
 
 Thornton, 8 Bing. 431 ; i M. & Sc. inducing suspicion that the plaintiff 
 
 670; Gregory v. Duke of Brunswick, had been guilty of the fact; held, on 
 
 6 Sc. N. R. 809 ; Vessey v. Pike, 3 C. demurrer.that the plea was insufficient. 
 
 & P, 512; Van Derveer v. Sutphin, 5 (Mountney v. Watton, 2 B. S: Ad. 
 
 Ohio St. 293; O'Connell v. Mansfield, 673.) Defendant's belief that his horse 
 
 9 Ir. Law Rep. 179; Smith v. Parker, was stolen would be admissible in miti- 
 
 13 M. & W. 459; Fero v. Ruscoe, 4 gation of damages. (Morris f. Lach- 
 
 N. Y. 162. A declaration for a libel man. 68 Cal. 109.) 
 commencing " horse-stealer," and fol- » Mull v. McKnight, 67 Ind. 535. 
 
 lowed by a statement of facts, and * Weaver v. Lloyd, 2 B. & C. 678; 
 
 concluding that the defendant publish- 4 D. & R. 230 ; Bissell v. Cornell, 24 
 
312 
 
 TRUTH. 
 
 [CH. IX. 
 
 plaintiff, a brewer, caused his establishment to be supplied 
 with unwholesome water, is not proved to be true by 
 showing that the establishment w«^ supplied with unwhole- 
 some water. To establish the truth of the charge, it must 
 be shown the plaintiflF caused the supply.' To a charge 
 against the plaintiff, a schoolmaster, that the decay of the 
 school under his management was attributable to his vio- 
 lent conduct, it was held, on special demurrer to the plea, 
 not a sufificient justification to allege that the plaintiff had 
 been guilty of violent conduct toward some of his scholars ; 
 to have amounted to a justification, it should have been 
 shown that the decay of the school was occasioned by the 
 violent conduct of the plaintiff.^ The alleged libel was in 
 
 Wend. 354; Stilwell v. Barter, 19 
 Wend. 487; Fidler v. Delavan, 20 
 Wend. 57 ; Curtis v. Perkins, 66 Barb. 
 610; Tull "u. David, 27 Ind. 377: 
 Thompson v. Pioneer Press Co. 37 
 Minn. 285; Torrey v. Field, 10 Vt. 
 353; Crump V. Adney, i Cr. & M. 
 362; Burford v. Wible, 32 Penn. St. 
 Rep. 95 ; Wilson v. Beighler, 4 
 Iowa, 427; Van Derveer v. Sutphin, 
 S Ohio, N. S. 293; Morrow v. Mc- 
 Gaver, I Ir. C. L. R. 579; Powers 
 ads. Skinner, i Wend. 451 ; Cooper v. 
 Barber, 24 Wend. 105 ; McKinly v. 
 Rob, 20 Johns. 351 ; Kerr v. Force, 3 
 Cranch C. C. 8 ; Bennett v. Matthews, 
 64 Barb. 410. The plea must justify 
 the same words as those contained in 
 the declaration. (Skinner v. Grant, 
 12 Vt. 466; Gregory v. Atkins. 42 Vt. 
 237 ; Ormsby v. Douglass,^ 2 Abb. 
 Prac. Rep. 407 ; 37 N. Y. 377.) " In 
 pleading justification you should use 
 the very words alleged to have been 
 uttered." (Restell v. Steward, i Char- 
 ley's Cases at Chambers, 89.) "There 
 is no such thing as a half-way justifi- 
 cation When several distinct things 
 are charged (§ 145 ante), the defendant 
 may justify as to one, though he may 
 not be able to do so as to all; but 
 as to any one charge, the justification 
 will either be everything or nothing. 
 If the charge be of stealing a horse, it 
 
 is not half a defense, nor any part of 
 one, to show the plaintiff took the 
 horse by a mere trespass." (Fero v. 
 Ruscoe, 4 N. Y. 165 ; and see Reg. v. 
 Newman, I El. & B. 268 and §§ 355, 
 409, post.) 
 
 ^ Fidler v. Delavan, 20 Wend. 57. 
 A charge that plaintiff was a " cheat " 
 and -'swindler," was held justified by 
 the fact that he sold goods for the pur- 
 pose of preventing their seizure under 
 an attachment for the benefit of his 
 creditors. (Odiome v. Bacon, 6 Cush. 
 185.) Saying of a merchant that his 
 credit is bad is not justified by a plea 
 that plaintiff would not pay his debts. 
 (Kirwan v. Dennan, 2 Hud. & Br. 628.) 
 
 2 Smith V. Parker, 13 M. & W. 
 459. To a declaration for a libel, 
 charging that, by hypocritical cant, 
 &c., plaintiff and his associates effect- 
 ed the incorporation of the Manhattan 
 Bank, in which plaintiff's share of the 
 profits were several thousand dollars ; 
 and that plaintiff, as a member of the 
 Senate, advocated the bill entitled 
 " An Act for supplying the city of 
 New York with pure and wholesome 
 water," knowing that it contained a 
 clause authorizing the company to 
 carry on banking business, and when 
 he knew that other members of the 
 legislature were ignorant of that fact, 
 &c., the defendant pleaded in justifica- 
 
§ 2I2.J 
 
 TRUTH. 
 
 313 
 
 substance, that plaintiffs, an insurance company, had lost 
 heavily on debentures ; that their history was one of out- 
 rageous extravagance and dangerous debility; that for 
 years they had trembled on the verge of disaster, and that 
 they were in an unsound and precarious condition. Plea, 
 that plaintiffs had for several years made untruthful annual 
 statements ; had lost large sums of money by investments, 
 and had paid larger dividends than the financial condition 
 would justify. The plea, on demurrer, held bad.^ A 
 
 tion that the plaintiff was a senator on 
 second of April, 1 798 ; that such a law 
 was passed, and that, at the time of 
 passing said law (first of April, 1798) 
 plaintiff, as senator, advocated the 
 bill, knowing at the time that it con- 
 tained such clause, &c.; and that a 
 large majority of the members of the 
 legislature were ignorant of that fact, 
 &c.; and that, at the time and place 
 first above- mentioned, plaintiff held, 
 and was owner of a large portion of 
 the stock created by the said law, 
 to wit, five thousand dollars ; all which 
 acts of the plaintiff were hypocritical 
 and deceptive, and contrary to his 
 duty as a senator, &c. The plaintiff 
 replied, that at the time he advocated 
 the said law as a senator, he did not 
 hold, and was not owner of any stock 
 created by it; nor had he any interest 
 whatever in the stock, &c. On a gen- 
 eral demurrer to the reply the plea 
 was held to be bad, as not being an 
 answer to the declaration, and that 
 the defendant having committed the 
 first fault in pleading, the plaintiff was 
 entitled to judgment. (Spencer v. 
 Southwick, 1 1 Johns. 573 ; rev'g 10 
 Johns. 259; where the replication was 
 held to be bad.) Held that a charge 
 of incest could not be justified by al- 
 legfing that plaintiff told the defendant 
 her brother had had sexual intercourse 
 with her. (Abshire v. Cline, 3 Ind. 
 115; and see Long v. Brougher, 5 
 Watts, 439, and in note 3. p. 306, 
 ante.) It is not every act of illicit in- 
 tercourse on the part of a female that 
 will justify calling her a whore. 
 (Smith V. Wyman, 4 Shep 13: see 
 Sheehey v. Cokley, 43 Iowa, 183; 
 
 contra, Alcorn v. Hooker, 7 Blackf. 
 58 ) The defendant, in a case of slan- 
 der, admitted in his answer that, while 
 he was conducting his own cause be- 
 fore a justice, and examining the plain- 
 tiff as a witness, he interrogated him : 
 '' Do you say I put you on Williams' 
 land ? " that the witness answered, " I 
 do," and that the defendant replied, 
 "That's a lie." The answer further 
 alleged that plaintiffs answer to de- 
 fendant's question, and his statement 
 that the defendant put witness on Wil- 
 liams' land, were untrue. Held, that 
 the snswer was not good as a justifica- 
 tion of a charge of perjury. (Lewis v. 
 Black, 27 Miss. 425.) Justification of 
 charge of perjury, see Mull v. Mc- 
 Knight, 67 Ind. 535. A charge that 
 plaintiff's ship was unseaworthy and 
 had been bought by Jews to take out 
 convicts, is not justified by showing 
 the ship was unseaworthy. (Ingram 
 V. Lawson, 5 Bing. N, C. 66.) The 
 justification should be of the meaning, 
 not of the words merely. (Snow 7'. 
 Witcher, 9 Ired. 346 ; Fidler v. Dela- 
 van, 20 Wend. 57.) The charge must 
 be directly met, and not argumenta- 
 tively or by inference. {Id.) Where 
 the charge was that the plaintiff had 
 bolted, it is not a justification to say 
 he quitted. (O'Brien v. Bryant, 16 M. 
 & W. 168 ; 4 D. & L. 341 : 16 Law 
 Jour. Rep. 77, Ex.; and see Watcher 
 V. Quenzer, 29 N. Y. 547 ; Blakeman 
 V. Blakeman, 31 Minn. 396; Ede v. 
 Scott. 7 Ir. Com. Law R. 607; Watkin 
 V. Hall, L. R. 3 Q. B. 396. See note 
 to § ■i'itJ post.^ 
 
 > Canada Life Assur. Co. v. 
 O'Loane, 32 Up. Can. Q. B. 379. 
 
314 TRUTH. [CH. IX. 
 
 charge that the plaintiff had stolen defendant's shingles is 
 not justified by the fact that plaintiff sold defendant's 
 shingles without his authority, and afterward denied that 
 he knew anything respecting them ; to constitute a justifi- 
 cation of such a charge, a felonious taking must be shown.^ 
 And where the charge was that plaintiff had begotten a 
 bastard child, innuendo that he had committed adultery 
 with the child's mother, it was held that to allege an adul- 
 terous intercourse with the mother of the bastard was not 
 stating a sufficient justification.^ So a charge of selling in- 
 toxicating liquor contrary to law, is not justified by show- 
 ing a sale of intoxicating liquor. The charge that the sale 
 was contrary to law is not answered." A charge of crimi- 
 nal intercourse with A. cannot be justified by showing 
 a criminal intercourse with B.* A charge of incest and 
 pregnancy is not justified by proof of incest only.^ A 
 charge that " he is a lying, slanderous rascal," is not justi- 
 fied by showing that plaintiff had stated what was untrue, 
 unless it be also shown that he did it maliciously.^ To 
 justify a charge that plaintiff will steal anything he can 
 get hold of: " He is in the habit of picking up things. 
 
 » Shepard W.Merrill, 13 Johns. 475. (So. Car.), 175; Ridley v. Perrj', 4 
 
 2 Holton V. Muzzy, 30 Vt. 365. Shepl. 21 ; Hallowell v. Guntle, 82 
 
 3 Holton V. Muzzy, 30 Vt. 365. Ind. 554. In case for words import- 
 Where the alleged libel was, " I will ing adultery with Jane at stile, defend- 
 not meet Dr. B. in consultation, he is ant may give in evidence in mitigation 
 not a properly qualified man. I will of damages, that plaintiff committed 
 have nothing to do with him ; he adultery with Jane at stile, but not 
 bought up his votes for the hospital ; evidence of adultery with any other, 
 he is an advertising doctor, and it (Smithies v. Harrison, i Ld. Raym. 
 is generally believed his diploma is 727.) 5^ot*/^, a defendant cannot jus- 
 not good. . . No regular prac- tify a charge that the plaintiff had 
 titioner will have anything to do with criminal intercourse with a woman at 
 such a man." Plea that plaintiff was a certain place, by pleading that he 
 an advertising man and an advertising had such intercourse with her at 
 doctor, was, on demurrer, held bad. another place. (Sharpe v. Stephenson, 
 (Beaney v. Fitzgerald, 2 Wyatt & 12 Ired. 348.) 
 
 Webb Law, 104.) 5 Edwards v. Kansas City Times, 
 
 * Watters v. Smoot, 11 Ired. 315; 32 Fed. Rep. 813. 
 
 and see Pallet v. Sargent, 36 N. H. « Snowden v. Lindo, I Cr. C. C. 
 
 496; Randall v. Holsenbake, 3 Hill 569. 
 
§ 212.] 
 
 TRUTH. 
 
 315 
 
 He stole wool of L.," various acts of theft must be 
 shown.^ So a charge of committing one offense is not 
 justified by showing the commission of another offense, 
 although of the same, or even greater enormity.^ A 
 charge of stealing one kind of chattel cannot be justified 
 by showing theft of another kind of chattel. A charge 
 that plaintiff stole "a pot and waiter" is not justified 
 by the fact that he stole a waistcoat pattern.* A charge 
 of stealing a dollar from A. cannot be justified by proof 
 of stealing a dollar from B.* To prove a forgery to 
 the amount of $80 is not a justification of a charge of 
 forgery to the amount of $250, or any other sum.^ A 
 charge of the crime against nature with a mare, is not jus- 
 tified by showing a commission of that crime with a cow^ 
 A charge that A., a commissioner to examine witnesses, 
 returned the examination of divers witnesses that were 
 never sworn, is not justified by proof of a return of the 
 examination of one witness who had not been sworn.'^ 
 Nor is a charge that the plaintiff carried on smuggling as 
 
 ' Talmadge v. Baker, 22 Wis. (Barthelemy v. The People, 2 Hill, 
 
 624. 248.) Proof that plaintiff swindled 
 
 ' Stow V. Converse, 4 Conn. 17; will not justify a charge of larceny or 
 
 Torrey z/. Field, loVt. 353: Andrews robbery. (State v. Verry, 36 Kans. 
 
 V. Van Duzer, 11 Johns. 38; Freder- 416.) 
 
 itze V. Odenwalder, 2 Yeates, 243; ' Eastland z*. Caldwell, 2 Bibb. 21 ; 
 Ridley v. Perry, 4 Shep. 21. Charg- Hilsden v. Mercer, Cro. Jac. 676. A 
 ing plaintiff with being a whore is not charge of perjury on one occasion 
 justified by the fact that she is a "re- cannot be justified by showing that 
 puted thief." (Smith v. Buckecker, 4 plaintiff committed peijury on some 
 Rawle, 295), or that she has a bad other occasion, or in some other res- 
 reputation for chastity (Sunman -v. pect than that alleged. (Whitaker v. 
 Brewin, 52 Ind. 140"). It is no justifi- Carter, 4 Ired. 461 ; Starr v. Harring- 
 cation of a charge of horse stealing ton, i Smith [Ind.], 360; i Cart. 515 ; 
 and counterfeiting that plaintiff was Randall v. Holsenbake. 3 Hill [So. • 
 thought no more of than a horse Car.], 175; Sanford ?'. Gaddis, 13 111. 
 thief. (Nelson v. Mu.sgrave. 10 JVIo. 329) 
 
 648.) A charge of horse stealing is * Self z/. Gardner, 15 Mo. 480. 
 
 not justified by proof of hog stealing. * Stiles v. Comstock, 9 How. Pr. 
 
 (Dillard v. Collins, 25 Gratt. [Va.] R. 48. 
 
 343.) A charge of hardness toward ' Andrews w. Van Duzer, 1 1 Johns, 
 
 the poor, dissoluteness of morals, &c., 38; Downs v. Hawley. 1 12 Mass. 237; 
 
 purporting to be conclusions from in- Shigley v. Snyder, 45 Ind. 541. 
 stances of bad conduct previously ' Fysh v. Thorowgood, Cro. Eliz. 
 
 narrated in the pubhcation, cannot be 623. 
 justified by proof of other instances. 
 
3l6 TRUTH. [CH. IX. 
 
 a business justified by proof of a single act of smuggling.' 
 So a charge of smuggling during the war is not justified 
 by showing a smuggling before the war.^ And where the 
 charge was that plaintiflT was a bankrupt in April, in the 
 twelfth year of James the First, it was held not to be a 
 justification to show that plaintiff was a bankrupt in the 
 fifteenth year of James the First.^ It is not a justification 
 of several charges to prove the truth of one of them.* A 
 charge in these words: "Thou hast played the thief with 
 me, and hast stolen my cloth and a half yard of velvet," is 
 not justified by showing that plaintiff was defendant's 
 tailor, and that he, defendant, delivered to plaintiff a yard 
 and a half of velvet to make defendant hose, and plaintiff 
 made them too narrow, by reason of which defendant 
 said, " Thou hast stolen part of the velvet which I deliv- 
 ered to you."^ A charge against an attorney, " You are a 
 paltry lawyer, and used to play on both hands," is not jus- 
 tified by showing that plaintiff had exhibited articles of 
 the peace against R., and had afterwards promised R. that 
 he should not be molested on account of those articles, 
 and that notwithstanding he had endeavored to prosecute 
 R. upon those articles.* A charge that plaintiff, an attor- 
 ney, had been struck off the rolls is not justified by show- 
 ing that he was suspended for two years.' A charge that 
 plaintiff, a public minister, had traitorously betrayed the 
 secrets of his own government, is not justified by the fact 
 that the plaintiff disclosed the instructions given to him 
 as such minister, although coupled with the additional 
 fact that he was censured by his government for making 
 
 1 Still well V. Barter, 19 Wend. " Powers ads. Skinner, i Wend. 
 487. 451; People V. Ev. News Asso. 51 
 
 2 Stillwell V. Barter, 19 Wend. Mich. 11. 
 
 487. 5 Johns V. Gittings, Cro. Eliz. 239; 
 
 ' Upsheer v. Betts, Cro. Jac. 578. and see Billingham v. Mjmors, Cro. 
 
 But where the charge is not limited Eliz. 153. 
 
 as to time, neither should the justifi- » Rich v. Holt. Cro. Jac. 267. 
 
 cation be so limited. (Stowell v. ' Blake v. Stevens, 4 Fost. & F. 
 
 Beagle, 57 111. 97.) 232. 
 
§ 212.] TRUTH. 317 
 
 such disclosuies.^ A charge that plaintiff, a counsellor at 
 law, had offered himself as witness in order to divulge the 
 secrets of his client, is not justified by the fact that in a 
 private conversation out of court the plaintiff disclosed a 
 secret of his client, nor by the fact that plaintiff offered 
 himself as a witness to divulge matters communicated to 
 him by his client, but which were not privileged publica- 
 tions in the sense of publications he was privileged from 
 disclosing (§ 208).^ A charge that plaintiff, a clergyman, 
 had asserted that the blood of Christ had nothing to do 
 with our salvation, more than the blood of a hog, is not 
 justified by the fact that plaintiff had denied the divinity 
 of Christ and the doctrine of the atonement; and asserted 
 that Christ was a creature, a perfect man, but there was no 
 more virtue in his blood than that of any creature.^ So a 
 charge, " But this is not the first time the idea of false- 
 hood and M. B. [plaintiff] have been associated together 
 in the minds of many honest men," is not justified by the 
 fact that more than seven persons believed plaintiff not to 
 be a man of truth, but addicted to falsehood.* Charging 
 the plaintiff, a proctor, with having been suspended three 
 times, is not justified by the fact that he had been once 
 suspended.® Where the charge is of a crime committed 
 under aggravating circumstances, the aggravating circum- 
 stances must be justified ; it is not sufficient to justify as 
 to the commission of the crime. Thus where the alleged 
 
 ' Genet v. Mitchell, 7 Johns. 120. poor and four pence to the corpora- 
 
 - Riggs V. Denniston, 3 Johns. tion, pocketing two pence per bushel. 
 
 C3S_ ,gg_ Plea that plaintiff did so in his first 
 
 ^ Skinner 7/. Grant, 12 Vt. 456. mayoralty, and that in his second 
 
 * Brooks z/. Bemiss, 8 Johns 356. mayoralty he charged three pence to 
 
 5 Clarkson v. Lawson, 6 Bing. the corporation and three pence to 
 
 266 587 • 4 M & P. 356, 605 ; Bid- the poor Plea held bad, the charge 
 
 dulph V. Chamberlayne, 17 Q- B. 351 ; being of a double charge aifour pence 
 
 Skinner ads. Powers, i Wend. 451. in each mayoralty. Held, also, that 
 
 The charg" was that plaintiff, ex- the plea conferred a cause of action, 
 
 mayor of R , had in two mayoralties and reple.ader refused. (Goodburne 
 
 boiight coal at Six pence a bushel, and v. Bowman, 9 Bing. 532 ; 2 M. & Sc. 
 
 charged them at four pence to the 700.) 
 
3l8 TRUTH. [CH, 
 
 IX. 
 
 libel charged that the plaintiff had been tried for murder 
 in a duel, and that " he had spent nearly the whole of the 
 night preceding the duel in practicing pistol firing," held 
 that to constitute a justification it must be shown not only 
 that the plaintiff had been tried for murder, but that he 
 spent nearly the whole of the night preceding the duel in 
 practicing pistol firing.^ The charge against the plaintiff 
 was inter alia., " he has robbed me to a serious amounV] 
 The pleas were the general issue, and as to the words " he 
 has robbed me," the plaintiff had robbed defendant of a 
 loaf of bread of the value of three peiice. On the trial 
 the plaintiff proved the charge, and the defendant proved 
 the stealing by plaintiff of the loaf of bread. The judge 
 directed the jury to give some damages for the words to 
 a serious amount, which were not covered by the plea. 
 The jury gave the plaintiff forty shillings damages, and 
 the court above refused to disturb the verdict.^ The 
 charge that plaintiff had been imprisoned on a t,^a;^^ of 
 high treason, is not justified by the fact that plaintiff was 
 arrested on suspicion of high treason.^ And a charge that 
 the plaintiff, a commissioner in bankruptcy, had been 
 guilty of willful misconduct in his office, is not justified 
 by showing misconduct consistent with rectitude of inten- 
 tion.'' Where the publication was in " the black list,"' 
 
 1 Hehham v. Blackwood, 1 1 C. B. ancestors. The defendant pleaded, in 
 III; 20 Law Jour. Rep. N. S. 187,0. justification, that plaintiff occasioned 
 P. ; and see Churchill v. Hunt, 2 B. & the accident by his misconduct, but 
 Aid. 685. In that case the declara- did not justify the charge of going to 
 tion stated the accidental collision of a public ball, &c. The justification 
 a carriage driven by plaintiff with an- was proved so far as it went on the 
 other carriage, and the death, by such trial, but the plaintiff recovered dam- 
 collision, of a person riding in the ages as to the part not justified, 
 other carriage, and that plaintiff was ^ i Starkie on Slander, 484. Where 
 free from fault in the transaction, and two charges are made, incest and 
 then set forth the alleged libel which pregnancy, plaintiff is entitled to nom- 
 attributed the catastrophe to the mis- inal damages if defendant fail to prove 
 conduct of plaintiff and his furious pregnancy. (Edwards v. Kansas City 
 driving, and that he had gone to a Times, 32 Fed. Rep. 813.) 
 public ball on the evening of the event, ' Cooke on Defam. 1 16. 
 and disparagingly compared the con- * Riggs v. Denniston, 3 Johns, 
 duct of plaintiff with that of one of his Cas. 198. Meaning of Willful. (State 
 
§ 213.J TRUTH. 
 
 319 
 
 with ruled columns showing entry of judgments, held not 
 to be justified merely by showing such a judgment once 
 existed. The language and mode of publication imputed 
 the continuance of a judgment.' A general charge can- 
 not be justified by a single instance ; thus a charge of 
 being a "libelous journalist" is not justified by proof of 
 plaintiflF's conviction for libel on one occasion \'^ a charge 
 against a practicing lawyer of being a pettifogger and 
 without character, not justified by showing a single in- 
 stance of misconduct;^ a charge of stealing hogs not 
 justified by showing the stealing of one hog;* a charge 
 of being a whore not justified by showing that plaintiff, 
 before tharriage, had carnal connection with her intended 
 husband;^ a charge that plaintiff had, one night, gone 
 nine miles from home, to four different colliers' shanties, 
 and had gone to bed to the colliers, is not justified by 
 showing that plaintiff had criminal intercourse with one 
 collier, at a different place from that referred to.* 
 
 § 213. A justification on the ground of truth need not 
 go further than the charge,' and it is sufficient to justify 
 so much of the defamatory matter as is actionable,^ or so 
 
 V. Massey, 97 No. Car. 465 ; State v. Holmes v. Jones, 20 N. Y. St. Rep. 
 
 Morgan, 98 Id. 641 ; State w. Wittner, 176. 
 
 98 Id. 590; Felton v. U. S., 96 U. S. » Clarke v. Taylor, 2 Bing. N. C. 
 
 699; State V. Vanderford, 35 Fed. 654; and see Wilson v. Nations, 5 
 
 Rep. 287.) Yerg. 211. Defendant published of 
 
 ' McNally v. Oldham, 16 Ir. Com. plaintiff, the proprietor of a news- 
 Law R. 298 ; 8 Law Times, N. S. 604. paper, that plaintiff had for the past 
 See note to § 229, post. twelve months made his paper a re- 
 
 2 Wakleyz/. Cooke, 4 Exch. 511. ceptacle for coarse abuse, scurrilous 
 
 ' Fitch V. Lemmon, 27 Up. Can. personalities, and in some cases gross 
 
 Q. B Rep. 273. slanders on private individuals. . . 
 
 ^ Swann v. Rary, 3 Blackf 298. That he had dragged into print, in the 
 
 » Sheehey v. Cokley, 43 Iowa, 183; most offensive manner, the names of 
 
 note to § 172, a«^£/ Smith w.Wyman, respectable citizens, (*) There is no 
 
 4 Shep 1 3 ; Murray v. Murray, i Cinn. doubt a generous impulse m our nature, 
 
 (Ohio), 290 : contra, Alcorn v. Hooper, but it is carrying that impulse too far, 
 
 7 Blackf 58 to elevate into an oppressed hero the 
 
 « Burford v Wible, 32 Penn. St. man who is suffering the merited 
 
 R. 95, and see Ricket v. Stanley, 6 consequences of a long course of de- 
 
 Blackf 160 liberate and reckless wickedness. 
 
 ' Sanford v. Gaddis, 13 HI. 329; Pleas (D Not guilty; (2) Justification, 
 
320 
 
 TRUTH. 
 
 [CH. IX. 
 
 much as constitutes the sting of the charge ; it is unneces- 
 sary to repeat and justify every word of the alleged de- 
 famatory matter;^ it is sufficient if the substance of the 
 libelous charge be justified.^ " It would be extravagant to 
 say that every comment upon facts requires a justification. 
 But a comment may introduce independent facts, a justi- 
 fication of which is necessary. A comment may be the 
 mere shadow of the previous imputation ; but if it infers 
 a new fact the defendant must abide by that inference of 
 fact, and the fairness of the comments must be decided by 
 the jury.* Where the alleged libel was that a serious mis- 
 understanding had taken place amongst the Independent 
 Dissenters of M. and their pastor, the plaintiff, in conse- 
 
 setting out articles published in the 
 newspaper, and alleging that they 
 were libelous. Demurrer to the plea 
 of justification, that at most it justi- 
 fied the alleged libel down to the 
 asterisk (*}. The plea was sustained. 
 (Stewart v. Rowlands, 14 Up. Can. 
 C. P. Rep. 485; citing Brown v, 
 Beatty, 12 Up. Can. C. P. Rep. 107.) 
 It is suflScient if the^'i'si and substance 
 of the libelous matter charged are 
 justified and covered by the matters of 
 fact stated in the answer. Thus 
 where the charge against the plaint- 
 iffs was, that they compounded and 
 sold poisonous and deleterious pills. 
 and that the defendant had crushed 
 the system of poisoning pursued by 
 the scamps and rascals, the gist of 
 the charge is the selling poisonous 
 pills, and therefore it was held that a 
 plea to the whole declaration, which 
 justified the charge of selling poison- 
 ous pills, without noticing the terms 
 of reproach, scamp and rascal, was 
 on motion for judgment non obstante 
 veredicto held sufficient. (Morrison 
 V. Harmer, 3 Bing. N. C. 759.) The 
 court in that case observed that they 
 could not understand the words 
 scamps and rascals, however offen- 
 sive, as containing any charge differ- 
 ent and distinct from that of which 
 the truth had been justified, and that 
 they were not aware of any authority 
 
 determining that the justification of 
 the truth of the substantial imputation 
 contained in a libel, is not sufficient 
 unless It extends also to every epithet 
 or term of general abuse, which may 
 be found in the statement of such im- 
 putation. On the trial of an indict- 
 ment for libel, charging that prosecu- 
 tor was one of a gang of card sharpers, 
 innuendo that he cheated at cards, and 
 the plea stating specific instances of 
 card sharping or cheating at cards, 
 and also that prosecutor confederated 
 with others for the purpose of playing 
 and cheating at cards, and did so play 
 and cheat at various places. Held 
 that it was sufficient to prove the plea 
 in substance, and the jury finding that 
 in two instances plaintiff did cheat at 
 cards, &c., it was not necessary to 
 prove other cases alleged. (Reg. v. 
 Labouchere, 14 Cox C. C. 419.) 
 
 * Edwards v. Bell, i Bing. 403; 
 Moore v. Terrell, i N. & M. 559; 
 Cooper V. Lawson. r Per. & D. 15; 
 Clarke v. Taylor, 2 Bing. N. C. 654; 
 Morrison v. Harmer, 3 Bing. N. C. 
 759; 5 Scott, 410; Barrows v. Car- 
 penter, I Cliff. 204; Cook V. Tribune 
 Asso. 5 Blatchf. C. C. 352. See § 358, 
 post. 
 
 ^ I Starkie on Slander, 483. 
 
 ' L'd Denman, Cooper z;. Lawson, 
 8 Adol. & El. 753. 
 
§ 213.J TRUTH. 
 
 321 
 
 quence of some "■personal invective'''' from the pulpit by 
 the latter, and that the matter was to be taken up seriously, 
 held that a plea alleging that the plaintiff had spoken from 
 the pulpit of a young lady, naming her, that her conduct 
 was a bad example, and a disgrace to the school, and that 
 she did more harm than good, was a suflficient justification ; 
 that such expressions clearly constituted '' personal invec- 
 tive^'^ Where the charge was that the plaintiff had been 
 guilty of fornication, it was held sufficient as a justification 
 to allege that the plaintiff was a strumpet, as being a 
 strumpet included the offense of fornication.^ And where 
 the charge was that in consequence of the plaintiff being 
 in bad repute in the county of O., he would not like to 
 bring his action for libel in that county, held sufficient as 
 a justification to allege that the plaintiff had the reputa- 
 tion in the county of O. of " a proud, captious, censorious, 
 arbitrary, dogmatical, malicious, illiberal, revengeful, and 
 litigious man, and therefore was in bad repute, and would 
 not like to bring his suit there." ^ And to a charge that a 
 plaintiff signed defendant's name to a note without his 
 [defendant's] permission, it was held sufficient as a justifi- 
 cation to allege that plaintiff did sign defendant's name to 
 a note without his [defendant's] permission.* Where the 
 declaration alleged that plaintiff was cashier to Q., and 
 that defendant, in a letter addressed to Q., falsely wrote 
 and published of plaintiff the words, " I conceive there is 
 nothing too base for him to be guilty of." A plea in justi- 
 
 ^ Edwards v. Bell, I Bing. 403. In v. Witcher, 9 Ired. 346.) But the 
 an action ofslander by a single woman, justification should extend to every 
 under the act of 1808 (Rev. Stats, of part of the defamatory matter which 
 North Carolina, ch. no), where the could by itself form a substantive 
 words charged were, " that she had ground of action. (Cooper v. Law- 
 lost a little one," " A. B. is a credit to son, 8 Adol. & Ell. 751.) 
 her," the said A. B. being notoriously ^ Clark v. Munsell, 47 Mass. (6 
 an incontinent person, and " she better Mete.) 373 ; ante, in note i , p. 1 90. 
 be listening to the report about herself ■'' Cooper v. Greeley, i Denio, 347. 
 losing a little one," it was held that it * Creelman v. Marks, 7 Blackf. 
 was sufficient to plead that plaintiff 281. 
 was an incontinent woman. (Snow 
 
 21 
 
322 
 
 TRUTH. 
 
 [CH. IX. 
 
 fication, that plaintiff signed and delivered to defendant an 
 I. O. U., and afterwards, on having sight thereof, falsely 
 and fraudulently asserted that the signature was not his; 
 and that the alleged libel vpas written and published solely 
 in reference to this transaction, was, on demurrer, held a 
 sufficient justification, as the alleged libel must be under- 
 stood with reference to the subject-matter.^ The defend- 
 ant, a railway company, published a notice that plaintiflF 
 had been convicted of an offense against its by-laws, and 
 fined a certain sum, with the alternative of three weeks' 
 imprisonment in case of non-payment ; in fact, the alterna- 
 tive was two weeks' imprisonment; held that it was a 
 question for the jury whether the statement was substan- 
 tially true.^ So where the charge was that the plaintiff 
 had been convicted and sentenced to a fine or imprison- 
 ment with hard labor, a plea that plaintiff had been con- 
 victed and sentenced to a fine or imprisonment, held a 
 sufficient justification.* 
 
 * Tighe V. Cooper, 21 Jur. 716; 
 7 Ell. & Bl. 639. In this case, Cromp- 
 ton, J., said: "I recollect being satis- 
 fied, early in my professional life, that 
 I could justify calling a man ' a rug- 
 ged Russian bear,' by showing that his 
 manners were rough." The plea 
 must justify according to the sense 
 given by the plaintiff. (Fidler v. Del- 
 avan, 20 Wend. 57.) If the justifica- 
 tion does not cover the whole defama- 
 tion, the plaintiff is. entitled to dam- 
 ages for the part not justified. (Cooban 
 V. Holt, cited 2 Stark. Ev. 643, note 
 2.) Plaintiff complained that defend- 
 ant published in the Leader newspaper 
 concerning plaintiff: " None of the 
 Leader staff (i) ever left New York 
 with his creditors in the lurch, or (2) 
 resorted to that style of financiering 
 which in the vernacular is called 
 swindling." Plea justifying the first 
 charge by alleging that plaintiff re- 
 sided in New York atid came to 
 Canada without paying his creditors, 
 and justifying the second charge by 
 alleging that plaintiff obtained from 
 one B. a promissory note, with the 
 
 understanding that at its maturity B. 
 should pay only so much of it as was 
 due from B. to plaintiff, and plaintiff 
 would retire the note; that B. paid 
 plaintiff the amount due from him to 
 plaintiff, but plaintiff did not retire the 
 note ; held that neither of these pleas 
 amounted to a justification. But there 
 was a further justification of the se- 
 cond charge, to the effect that plaint- 
 iff obtained from W. a promissory 
 note for $200, and upon its maturity 
 obtained from W. $100 in cash and 
 another note for $100, upon the un- 
 derstanding that he would retire the 
 $200 note; but plaintiff failed to re- 
 tire said note, and used the $100 and 
 the $100 note for his own purposes; 
 held that defendant was entitled to 
 the decision of a jury on this justifica- 
 tion. (Brown v. Beatty, 12 Up. Can. 
 C. P. Rep. 107.) 
 
 ^ Alexander v. N. E. Railway Co. 
 II Jur. N. S. 619. 
 
 ' Gwynn v. So. E. Railway, 18 
 Law Times, N. S. 738. The charge 
 was, that plaintiff had served a term 
 in the penitentiary of New York State. 
 
$§ 214, 2I5.J 
 
 TRUTH. 
 
 323 
 
 § 214. To justify a charge of perjury on the ground of 
 truth, it must not only be alleged that the plaintiff's testi- 
 mony was false, but that it was willful or corrupt.^ It 
 would be no justification of such a charge to allege that 
 the false testimony was given by mistake.^ * 
 
 § 215. A justification on the ground of truth must 
 justify in the sense imputed by the innuendo,^ for the rea- 
 son that the plea admits the innuendo.* Thus, where the 
 plaintiff, an apothecary, was charged with administering 
 medicine to a child, with an innuendo that he had feloni- 
 ously killed the child, a plea that the plaintiff did injudi- 
 ciously, indiscreetly and improperly, and contrary to his 
 duty, administer medicine to the child, and that the death 
 of the child was caused or accelerated by the said medi- 
 cine, was held bad on demurrer, as confessing without jus- 
 
 Plea that plaintiff was convicted and 
 sentenced to two years' imprisonment, 
 and his detention for that time. Re- 
 plication, that, before plaintiff was 
 imprisoned on said sentence, the con- 
 viction was reversed. On demurrer, 
 the replication was held good. (Davis 
 V. Stewart, 18 Up. Can. C. P.' 482.) 
 Action for publishing of plaintiff that 
 he was a "convicted felon," and a 
 "felon editor," justification that 
 plaintiff had been convicted of felony 
 and sentenced to imprisonment. Re- 
 plication admitting the conviction and 
 averring that plaintiff had endured 
 the punishment ; held at the trial that 
 the publication merely meant that 
 plaintiff had been convicted of felony, 
 and this being true plaintiff could not 
 recover. Upon demurrer to justifica- 
 tion, held that plaintiff was entitled to 
 judgment and new trial ordered. The 
 words "felon editor" implied that 
 plaintiff had been guilty of felony, and 
 the justification did not allege that he 
 had actually committed felony, and 
 being pleaded to the whole cause of 
 action was too wide. (Leyman v. 
 Latimer, 3 Ex. Div. 470.) 
 
 1 Mitchell V. Borden, 8 Wend. 570; 
 Clark V. Dibble, 16 Wend. 601 ; Gage 
 
 V. Robinson, 12 Ohio, 250; Bissell v. 
 Cornell, 24 Wend. 354; Gorton v. 
 Keeler, 51 Barb. 475. 
 
 2 Fero V. Ruscoe, 4 N. Y. 162; 
 Torrey v. Field, 10 Vt. 353 ; The State 
 V. Bumham, 9 N. Hamp. 34; Jenkins 
 V. Cockerham, i Ired. 309. It is not 
 a justification of a charge of false 
 swearing that the defendant had good 
 reasons for publishing the words, and 
 made the publication from good mo- 
 tives and justifiable ends. (Thompson 
 V. Bowers, i Doug. 321.) 
 
 ^ Mitchell V. Borden, 8 Wend. 
 570; Clark V. Dibble, 16 Wend. 601 ; 
 Gage V. Robinson, 12 Ohio, 250; 
 Clarke v. Taylor, 2 Bing. N. C. 654; 
 Hort V. Reade, 7 Jr. Rep. Com. Law, 
 551. In England defendant may justi- 
 fy the words, either with or without 
 justifying the meaning imputed by the 
 innuendo, or he may do both. (Wat- 
 kin V. Hall, L. R. 3 Q. B. 396.) It 
 must be left to the jury to determine 
 the correct meaning. (Brem bridge v. 
 Latimer, 12 Week. Rep. 878.) In Ire- 
 land defendant must justify the innu- 
 endo as well -as the words of the 
 alleged libel. (Hort v. Reade, Ir. R. 
 7C. L. 551.) 
 
 * Fidler v. Delavan, 20 Wend. 57. 
 
324 
 
 BELIEF. 
 
 [CH. IX, 
 
 tifying the innuendo.^ But where the language is action- 
 able independently of the meaning imputed by the innu- 
 endo, there the innuendo need not be justified, as where 
 the charge was that plaintiff was tried at petty sessions 
 for traveling on a railway without first paying his fare, and 
 convicted in a penalty and costs, and there was an innuen- 
 do that the plaintiff had attempted to defraud the com- 
 pany, a plea that plaintiff was so convicted, without at- 
 tempting to justify the innuendo, was held sufficient. The 
 whole gist of the charge was justified.^ 
 
 § 216. Although the truth of the defamatory matter is 
 admitted as a defense, a mere belief in the truth of the 
 matter published, however honestly that belief may be en- 
 tertained, will not of itself constitute any defense.^ Belief 
 
 ^ Edsall V. Russell, 2 Dowl. N. S. 
 641; 5 Sc. N. S. 801. Where an intent 
 is charged, it must be justified. (Gage 
 V. Robinson, 12 Ohio, 250; Riggs v. 
 Denniston, 3 Johns. Cas. 198.) "If 
 the defendant justify specially, it will 
 not be necessary for him in his plea to 
 deny the innuendoes and epithets con- 
 tained in the declaration, for if the 
 fact be justified (Astley v. Younge, 2 
 Burr. 807), the motive, intention and 
 manner are immaterial," as regards 
 the plea. (l Stark, on Slander, 476; 
 and see next note, infra.) 
 
 2 Biggs V. Great Eastern Railway, 
 18 Law Times, N. S. 482. See Wat- 
 kin V. Hall, L. R. 3 Q. B. 396; Brem- 
 bridge v. Latimer, 12 Week. Rep. 878. 
 
 * However honestly the party who 
 publishes a libel believes it to be true, 
 if it is untrue in fact, the law implies 
 malice, unless the occasion justifies 
 the act; and whether the occasion 
 justifies the act is a question of law. 
 (Darby v. Ouseley, i Hurl. & N. 1 ; 
 Holt V. Parsons, 23 Texas, 9.) A 
 bona fide belief in the truth of the al- 
 leged libel is no defense. (Campbell 
 z/. Spottiswoode, 3 Best & Smith, 769; 
 8 Law Times Rep. N. S. 201; and see 
 Moore ■&. Stevenson, 27 Conn. 14; 
 Woodruff V. Richardson, 20 Conn. 
 238; Fry V, Bennett, 3 Bosw. 200; 
 
 Smart v. Blanchard, 42 N. Hamp. 137 ; 
 Wilson V. Fitch, 41 Cal. 364; Kerr v. 
 Force, 3 Cr. C. C. 8; Watson v. 
 Moore, 2 Cush. 133; Hotchkiss v. 
 Porter, 30 Conn. 414; Gilmer v. Eu- 
 bank, 12 111. 271; Duncan 2/. Brown, 
 15 B. Monr. 186; Grimes «/. Coyle, 6 
 B. Monr. 301; Botterill v. Whytehead, 
 4 L. T. Rep. N. S. 588 ; Richardson 
 V. The State, 66 Md. 205; Fahr v. 
 Hayes, 50 N. J. L. R. 275.) It is no 
 defense to an action of slander for im- 
 puting larceny to plaintiff, that he 
 [plaintiff] took the property in jest 
 and caused the defendant to believe he 
 [plaintiff] had committed a larceny. 
 (Clark V. Brown, 116 Mass. 504.) Nor 
 is it a defense to an action for words 
 imputing unchastity to a woman to 
 show that defendant spoke the words 
 to her, and was led to do so by her 
 
 feneral conduct, and especially by her 
 eportment with a particular man, be- 
 lieving the same to be true. (Park- 
 hurst V. Ketchum, 88 Mass. [6 Allen], 
 406.) But belief in the truth may be 
 shown in mitigation. (Huson v. Dale, 
 19 Mich. 35 ; approving Farrz/. Kasco, 
 9 Mich. 353; and overruling Thomp- 
 son V. Bowers, 1 Douglass, 321.) De- 
 fendant cannot show that it was gen- 
 erally admitted for many years that 
 the plaintiff was guilty of the crime 
 
§ 217.] LEGISLATIVE PROCEEDINGS. 325 
 
 or disbelief in the truth of the matter published can be 
 material only upon an inquiry into the intent with which 
 a publication is made. (§ 90.) 
 
 § 217. Legislative proceedings are privileged. It is 
 obviously necessary to the efficient discharge of the duties 
 of a legislator, that in the performance of those duties he 
 should be allowed unlimited license of speech, and be un- 
 fettered with any apprehension of being made responsible 
 for the consequences of any utterances he may deem it 
 fitting and necessary to make in his official capacity ; ac- 
 cordingly we find it everywhere wisely provided that for 
 what a legislator says as a legislator, and within the 
 legislative chamber, he can never be challenged in any 
 tribunal other than the body of which he is a member. 
 This immunity, enjoyed by the members of the British 
 Parliament in virtue of custom and statutes, is guaran- 
 teed to members of Congress by the Federal Consti- 
 tution, and to members of the State legislatures by State 
 constitutions and statutes.^ The proceedings of the Eng- 
 
 charged (Long v. Brougher, 5 Watts, allowed to show that it appeared con- 
 
 439) ; or that plaintiff was reported currently in several other newspapers, 
 
 by her own sister to be guilty of the (Saunders v. Mills, 6 Bing. 213; 3 M. 
 
 offense imputed. (Smith v. Buckecker, & P. 520.) In an action for a libel in 
 
 4 Rawle, 295.) iSTo suspicion, how- the defendant's newspaper, held that 
 
 ever strong, will amount to a justifica- he could not show that it was copied 
 
 tion. (Powell v. Plunket, Cro. Car. from another paper, against the pro- 
 
 52 ; Moyer v. Pine, 4 Mich. 409.) Com- prietor of which damages had been 
 
 mon fame is no ground for justifying recovered, but he might show that he 
 
 an extrajudicial charge. (Hutt. 13; had omitted many of its parts reflect- 
 
 Bridg. 62; Brownlow, 2.) A defend- ing on the plaintiff. (Creevy z/. Carr, 
 
 ant cannot justify a charge of theft 7 C. & P, 64 ; and see Creighton v. 
 
 by showing that he has Just grounds Finlay, Arm. Mac. & Og. 385 ; see 
 
 for believing the plaintiff to be a very ante, note 3, p. 301. 
 
 dishonest man. (Woodruff v. Rich- • 2 Hume's Hist, of England, 280; 
 
 ardson, 20 Conn. 238.) The publica- Statutes, 4 Hen. VIII; i W. & M. st. 
 
 tion in a newspaper of rumors is not 2, ch. 2; Bradlaugh v. Gossett, 12 Q. 
 
 justified, but may be mitigated by the B. D. 283. Members of the House of 
 
 fact that such rumors existed. (Skin- Lords, as such, cannot be guilty of a 
 
 ner ads. Powers, i Wend. 451 ; § 411, conspiracy to libel. (Ex parte Wa- 
 
 post:) In mitigation of damages, in son, Law Rep. 4 Q. B. 573.) The 
 
 an action for a libel, the defendant Constitution of New York (Const, of 
 
 was allowed, under the general issue, 1846, art. 3, § 12) enacts, " For any 
 
 to show that he copied the statement speech or debate in either house of the 
 
 from another newspaper, but was not legislature, the members shall not be 
 
326 
 
 LEGISLATIVE PROCEEDINGS. 
 
 [CH. IX. 
 
 lish Parliament are, in theory^ conducted with closed 
 doors, and although in fact reporters and others are us- 
 ually present during the debates, yet persons so pres- 
 ent are supposed to be concealed, and the fact of their 
 presence to be unknown to the House. All persons 
 not members are liable to be expelled on a member or 
 the clerk of the House rising and stating, " Mr. Speaker, 
 there are strangers present." This intimation is always 
 made prior to a division, and all persons not members, 
 nor ofiEicers of the House, without exception, retire. It 
 is a part of the same theory which forbids the publica- 
 tion, unless by order of the House, of any of its pro- 
 ceedings, and which makes any publication of its pro- 
 ceedings, without such order, a criminal contempt.^ Con- 
 gress has never asserted, at least as directly as the British 
 
 questioned in any other place." This 
 provision is repeated in exactly the 
 same words, i Rev. Stat, of New 
 York, 154, § II. Offensive words in 
 debate not to be regarded unless 
 noticed at once. (Cushing's Manual ; 
 and see The People v. Amer. Institute, 
 44 How. Pr. R. 468.) 
 
 A member 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. (Coffin ■v. Coffin, 4 Mass. 
 I, 31; Dillon V. Balfour, 20 Law Rep. 
 Jr. 600; but see Commonwealth v. 
 Blanding, 3 Pick. 310, 314.) But this 
 privilege is not extended to words 
 spoken unofficially, though in the legis- 
 lative hall, and while the legislature is 
 in session. (Coffin v. Coffin, 4 Mass. 
 I.) Thus, where one member inform- 
 ally 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 consideration, and likely again 
 to be acted upon, was founded upon 
 misrepresentation, and that his in- 
 formant was a person not to be be- 
 lieved, using some slanderous expres- 
 sion in regard to the informant, it was 
 
 held that the slander was not privi- 
 leged by the place or occasion. {lb. ) 
 ^ When Sir Bartholomew Shower 
 published his collection of decisions in 
 the House of Lords, still cited as 
 " Shower's Parliamentary Cases," the 
 publication was voted to be a breach 
 of privilege, and the House of Lords 
 resolved : '" That it is a breach of 
 privilege of this House for any person 
 whatsoever to print or publish in 
 print, anything relating to the pro- 
 ceedings of this House, without the 
 leave of this House." Lord Hard- 
 wicke, in 1762, threatened to put this 
 resolution in force against Sir Michael 
 Foster, for introducing, without leave, 
 into his treatise on Common Law, 
 some decisions of the House of Lords. 
 So, too, it was a standing order of the 
 House of Lords, until rescinded on the 
 motion of Lord Campbell, to enable 
 him with safety to publish his Lives 
 of the Lord Chancellors, "that no one 
 presume to publish the lives of any 
 lords, spiritual or temporal, deceased, 
 without the permission of their heirs 
 or executors." (6 Camp. Lives Chanc. 
 221.) Contempt by publication of li- 
 bel on member of Parliament, Re Dill, 
 I Wyatt & Webb Law Rep. 171 (Vic- 
 toria). 
 
§2I8.] 
 
 LEGISLATOR. 
 
 327 
 
 Parliament, the right to sit with closed doors, or to con- 
 trol the publication of its proceedings. The twelfth rule 
 of the House of Representatives provides for clearing 
 the galleries in cases of disorderly conduct, and the four- 
 teenth rule provides for the admission, by the Speaker, 
 of stenographers wishing to take down the debates.^ 
 The immunity accorded to speech in legislative assemblies 
 extends to any record such assemblies may make of their 
 proceedings, and to all documents read in such assemblies; 
 it extends also to all petitions or addresses presented to 
 the legislature, and to such a prior publication of any such 
 documents as may be necessary to their preparation and 
 completeness.^ 
 
 § 218. The immunity which is accorded to a legislator 
 while in the performance of his duties, does not extend so 
 far as to justify his repeating, not in his official capacity, 
 any defamatory matter he may have written or spoken 
 while in the discharge of his duties ; and therefore for any 
 repetition by a legislator outside of the legislative cham- 
 
 1 The Constitution of the State of § 4, required both branches of the 
 New York of 1777, § 15, enacted that: State legislature to keep a journal of 
 The doors both of the Senate and their proceedings, and to publish the 
 Assembly shall at all times be kept same; and the Revised Statutes of 
 open to all persons, except when the New York (i R. S. 153, § 3) enact: 
 welfare of the State shall require their Each house is required to keep a jour- 
 debates to be kept secret. . . This nal of its proceedings, and to publish 
 provision was repeated in the Consti- the same, except such part as may, in 
 tution of 1823, art. i, § 4, but not in its judgment, require secrecy, 
 the Constitution of 1846. The Re- " Where a petition to Parliament, 
 vised Statutes of New York (i R. S. containing defamatory matter, was 
 1 53, § 4) provide : The doors of each referred to a committee, held that no 
 house are to be kept open, except action would lie for printing and dis- 
 when the public welfare shall require tributing a number of copies for the 
 secrecy. The Constitution of the use of the members. (Lake v. King, 
 United States, art. i, § 5, subd. 3, I Mod. 58; i W. Saund. 1316; see 
 provides: That each house (of the posi, note to § 221.) The English 
 legislature) shall keep a journal of its House of Commons resolved that it 
 proceedings, and, from time to time, was a breach of the privilege of that 
 publish the same, excepting such parts house to sue at law for a libel, sup- 
 as may in their judgment require se- posed to be contained in a petition to 
 crecy. The Constitutions of New that body. (See i Salk. 19; 3 Salk. 
 York of 1777, § 35, and of 1823, art. i, 17; Holt, 524.) 
 
328 
 
 REPORTS OF LEGISLATURE. 
 
 [CH. IX. 
 
 ber of what he may have spoken within it, he is liable in 
 like manner as any other individual.^ 
 
 § 219. The English Parliament, as does Congress and 
 our State legislatures, print for the use of their members 
 reports of their proceedings in the bodies of their Houses 
 and in their committees, and these are privileged. The 
 English Parliament also print additional copies for sale to 
 the public. These additional copies are printed by the 
 printer to the Parliament Houses, at the public expense, 
 and sold by such printer, the proceeds of the sales being 
 returned to the public treasury. The publication, in this 
 manner, of additional copies of reports to the House of 
 Commons was held by the Court of Queen's Bench not 
 to be privileged, and where such a report so printed and 
 sold contained defamatory matter, the printer and pub- 
 lisher were held to be liable therefor in an action for libel* 
 
 * The defendant, in a speech in 
 the House of Lords, accused the pros- 
 ecutor (an attorney) of improper con- 
 duct in his profession. This speech 
 the defendant afterwards printed in 
 several newspapers. For this publi- 
 cation an information was filed against 
 the defendant, and he was convicted, 
 the publication being held not to be 
 privileged. Lord Kenyon said " That 
 a member of Parliament had certainly 
 a right to publish his speech, but that 
 speech should not be made a vehicle 
 of slander against any individual; if 
 it was, it was a libel." (Rex v. Lord 
 Abingdon, i Esp. 226; Peake Cas. 
 310.) In Rex V. Creevey, i Mau. & 
 S. 278, the defendant, a member of 
 the House of Commons, had made a 
 speech in his place in Parliament con- 
 taining a charge against an individual. 
 An incorrect report of this speech 
 having been published, the defendant 
 procured the publication of a correct 
 version of his speech ; this publication 
 was held not to be privileged. Semble, 
 a bona fide publication by a member of 
 the House of Commons to his constit- 
 uents, of a speech delivered by him 
 
 in his place in Parliament, is privileged. 
 (Davison v. Duncan, 7 Ell. & Bl. 229; 
 3 Ld. Campbell's Lives of the Chief 
 Justices, 167; see Dillon v. Balfour, 
 20 Law Rep. Ir. 600.) Home Tooke 
 applied for a criminal information 
 against a bookseller for publishing a 
 copy of a report made by a committee 
 of the House of Commons. The rule 
 was discharged, partly because the 
 report did not appear to bear the 
 meaning imputed to it, and partly be- 
 cause the court doubted its right to 
 interfere. (Rex v. Wright, 8 Term 
 Rep, 293.) 
 
 ^ In Stockdale v. Hansard, 9 Adol. 
 & El. I ; 2 M. & Rob. 9; 3 Per. & D. 
 330; 7 Car. & P. 731, it was held to 
 be no defense, in an action for libel, 
 that the defamatory matter was con- 
 tained in a report of parliamentary 
 proceedings and was published by or- 
 der of the House of Commons. As 
 to this case, see May's Law and Prac- 
 tice in Parliament, 1 56, and Report to 
 the House of Commons of a Select 
 Committee on the Publication of 
 Printed Papers, May, 1836, with an 
 Appendix of the orders and proceed- 
 
§ 2I9-] 
 
 REPORTS OF LEGISLATURE. 
 
 329 
 
 In consequence of that decision a statute was passed le- 
 galizing the publication by the orders of the Parliament 
 Houses, of such reports, papers, votes or proceedings, as 
 either House should deem necessary.^ In the State of 
 New York, the publication in a newspaper of legislative 
 proceedings and debates is, by statute, conditionally priv- 
 ileged.* Until quite recently, it was generally supposed 
 that the publication of defamatory matter in a report of 
 the proceedings in Parliament was not justifiable on the 
 ground of its being a fair report, but from the decision in 
 Wason V. Walter, it seems that such a publication is justi- 
 fied by the fairness of the report.^ 
 
 ings of the two Houses of Parliament 
 relating to the publication of parlia- 
 mentary reports and papers and re- 
 view of the legal authorities upon the 
 jurisdiction of Parliament on matters 
 of privilege. 
 
 ' 3 and 4 Vict, oh 9. Defendant 
 may, under the general issue, prove 
 an order to publish, and the absence 
 of malice, which entitles him to a ver- 
 dict. 
 
 * Laws of New York, 1854, ch. 
 130; see post. Freedom of the Press, 
 § 252, and rote to § 229. 
 
 3 Lord Campbell: "I think it 
 should be declared and enacted that a 
 fair and faithful report of proceedings 
 in either House of Parliament, from 
 which strangers are not excluded, is 
 justifiable, and cannot be made the 
 subject of any action or prosecution." 
 Lord Denman: " I cannot help enter- 
 taining a strong opinion that no faith- 
 ful report of a debate ought to expose 
 the publisher to an action or to a 
 criminal proceeding. As the law now 
 stands, the fact of the report being a 
 faithful one is nothing like a justifica- 
 tion, but it ought to be." (Report 
 from Committee of House of Lords on 
 the Law of Defamation and Libel, 
 July, 1843.) 
 
 In the case of Wason v. Walter, 
 reported in the London Times of 
 the 19th, 20th, and 21st of Decem- 
 ber, 1867 (Law Rep. 4 Q. B. 73), the 
 plaintiff, a member of the bar, sent a 
 
 petition to Earl Russell for presenta- 
 tion to the House of Lords, praying 
 an inquiry into a complaint he alleged 
 against the Lord Chief Baron of 
 the Court of Exchequer. In the de- 
 bate on the presentation of this peti- 
 tion, the friends of the Lord Chief 
 Baron cast imputations upon the 
 plaintiff. A report of this debate, 
 and a leading article in reference 
 thereto, appeared in the London 
 Times, of which the defendant was 
 the proprietor. For the publication 
 of this report and leading article the 
 action was brought. The defenses 
 were, that the report was a true re- 
 port, and that the leading article was 
 a just and fair comment upon the pro- 
 ceedings in the debate. It was ad- 
 mitted that the matter was defamatory 
 in its character, and the only questions 
 were: (i) Was it a defense to say the 
 matter was a correct report of a pro- 
 ceeding in Parliament ? and (2) Was 
 it the subject of criticism .'' The Lord 
 Chief Justice charged the jury: The 
 report being fair and correct, '• I am 
 prepared to direct you, in point of law, 
 that the report is a privileged com- 
 munication, and one which is not the 
 subject-matter of an action." And 
 after stating that the question was 
 then for the first time directly present- 
 ed for adjudication, and that some 
 dicta supported his ruling, he added: 
 "The cases have not hitherto gone 
 the length of establishing the law I 
 
330 
 
 PLEADINGS, &C. 
 
 [CH. IX. 
 
 § 220. Defamatory matter published in or to a court 
 of criminal jurisdiction may constitute the wrong called 
 '■'■■malicious prosecution^^'' ^ but only under the circumstances 
 hereafter referred to can such a publication amount to 
 the wrong called slander or libel. Thus, where a defend- 
 ant went before a justice of the peace, and demanded a 
 warrant against the plaintiflF for stealing his ropes, the jus- 
 tice said, " Be advised, and look what you do," and the 
 defendant replied, " I will charge him with fiat felony, for 
 stealing my ropes from my shop ; " in an action of slander 
 for speaking these words, the court agreed that the words 
 being spoken to a justice of the peace, on an application 
 for a warrant which was lawful, would not support an ac- 
 tion, for if they would, no other would come to a justice of 
 the peace to inform him of a felony.^ Every one having 
 
 am now laying down, but I find no- 
 thing which to nny mind satisfactorily 
 contradicts the position I adopt." 
 And again : " There may be dicta 
 which may possibly have a different 
 tendency, but, I think, with the larger 
 and more enlightened views relative 
 to the law of libel which have gradu- 
 ally developed themselves in our day, 
 the time has come when the proposi- 
 tion I have put ought to be affirma- 
 tively announced." As to the second 
 point, the charge was: "I am of opin- 
 ion that the debate in the House of 
 Lords upon the plaintiffs petition 
 was a matter of public interest and 
 concern upon which a public writer 
 was perfectly justified in making such 
 comments as the circumstances war- 
 ranted." The plaintiff tendered a bill 
 of exceptions to this charge. The 
 jury gave a verdict for the defendant. 
 A motion for a new trial was denied. 
 (Law Rep. 4 Q. B. 73.) The Lord 
 Chief Justice has shown by his charges 
 in all the cases of libel tried before 
 him, that he favors the greatest lati- 
 tude of newspaper criticism. For his 
 views on the right of criticism, refer- 
 ence may be had, in addition to the 
 above case, to the case of Dr. Hunter 
 V. The Publisher of the Pall Mall Ga- 
 
 zette, printed in pamphlet form, and 
 in the Pall Mall Gazette of Nov. 27, 
 28, 29, 30, Dec. I, 3, 1866; S. C. Hun- 
 ter V. Sharpe, 15 Law Times, N. S. 
 421 ; 4 Fost. & F. 983; sxvApost, note 
 to § 256. 
 
 ' " An action for libel is upon all 
 fours with action for a malicious pros- 
 ecution. The latter is but an aggra- 
 vated form of an action for libel, as in 
 it the libel is sworn to before a magis- 
 trate." (Briggs V. Garrett, in Penn. 
 St. 404.) It is '' malicious prosecu- 
 tion," and not what we term '• slander 
 or libel," which corresponds to '' cal- 
 umny " in the civil law. In the Ro- 
 man law, calumny signified an unjust 
 prosecution or defense of a suit, and a 
 calumniator was one who unjustly ac' 
 cused others in a court of law. (See 
 Domat's Civil Law, bk. 3, tit. 5, § 2, 
 div. 14, note, ed. by Strahan.) Cal- 
 umny is still employed in this sense in 
 the courts of Scotland, and was so 
 employed in the ecclesiastical and ad- 
 miralty courts of England. (See Dun- 
 lap's Adm. Pr. 291, zxiApost, notes to 
 §§221, 347.) 
 
 ^ Pierce v. Oard, 37 No. West. 
 Rep. (Neb.) 677; Ram v. Lamley, 
 Hutt. 113. An action for slander does 
 not lie for a charge of a criminal of- 
 
§ 221.] 
 
 PLEADINGS, &C. 
 
 33^ 
 
 reasonable and probable grounds for believing that a crime 
 has been committed, has the right to communicate his be- 
 lief to the magistrate having jurisdiction of such offense.' 
 The existence of reasonable and probable cause for the 
 belief is absolutely necessary to create this right ; a com- 
 munication made without these grounds is inexcusable, 
 and is a malicious prosecution, for which a remedy is pro- 
 vided by action, but the remedy is not by an action for 
 slander or libel. This results from the rules of pleading 
 and the classification of actions into several different forms 
 (§ 53) oi" causes of action, and Operates even in those States 
 where it has been expressly enacted that all forms of action 
 are abolished.^ 
 
 § 221. The right of appealing to the civil tribunals is 
 more extensive than the right of appealing to the criminal 
 tribunals^ (§ 419). In a civil action, whatever the com- 
 
 fense made to a magistrate upon which 
 a warrant issues, although the accused 
 be discharged after examination. 
 (Shock z/. McChesney, 2 P. A. Browne's 
 R. 6, App. ; Cohen v. Morgan, 6 D. & 
 R. 8 ; 2 Stark. Sland. 72, note // and 
 seeposi, note to § 22 1 . ) But after mak- 
 ing a charge to the magistrate, defend- 
 ant cannot justify repeating the charge 
 out of court. (Pierce v. Oard, 37 No. 
 West. Rep. [Neb.] 677.) Communi- 
 cations to the pubhc prosecutor are 
 privileged. (Vogel ^i. Gruaz, no U. 
 S. R.311.) 
 
 > Lister v. Ferryman, Law Rep. 4 
 Ho. of L. Cas. 521 ; reversing s. C. 
 Law Rep. 3 Ex. 197. 
 
 ^ This result is brought about as 
 thus: If the plaintiff shows on the 
 face of his (declaration) complaint 
 that the publication was made to a 
 court of criminal jurisdiction, he does 
 not show a cause of action unless he 
 alleges tnier alia that the publication 
 was made without reasonable or prob- 
 able cause. But if the (declaration) 
 complaint does not disclose that the 
 publication was made to a court of 
 criminal jurisdiction, then it would be 
 a complete defense that the publica- 
 
 tion was made to a court of criminal 
 jurisdiction; which defense could not 
 be avoided by replying or proving on 
 the trial that the publication was 
 without reasonable or probable cause, 
 as that would be in the one case a 
 departure^ in the other a variance. 
 (See Torrey v. Field, 10 Vt. 353, and 
 Malicious Prosecution, post^ 
 
 ^ " No punishment was ever ap- 
 pointed for a suit in law, however it 
 be false and for vexation." (6 Robin- 
 son's Pr. 897, citing numerous author- 
 ities.) But in Churchill v. Siggers (3 
 El. & Bl. 929), it is said: " One man 
 has a right to sue another, but if one 
 sue another with malice and without 
 reasonable cause, it is a wrong." The 
 action is not for maliciously putting 
 the process in force, but for maliciously 
 abusing the process of the court. 
 (Granger v. Hill, 4 Bing. N. C. 212; 
 see Quartz Hill Cons. Gold Mine Co. 
 V. Eyre, 49 L. R. N. S. 249; Bartlett 
 
 V. Christholf, 69 Md. ; Wren v. 
 
 Weild, Law Rep. 4 Q. B. 736; Collins 
 V. Cave, 4 H. & N. 225; 6 Id. 131 ; 
 V^alker v. Goe, 3 H. & N. 395 ; 4 Id. 
 351; Murray v. McLane, 2 Car. Law 
 Repos. 186; Closson v. Staples, 42 
 
332 
 
 PLEADINGS, &C. 
 
 [CH. IX. 
 
 plainant may allege in his pleading as or in connection 
 with his grounds of complaint can never give a right of 
 action for libel. The immunity thus enjoyed by a party 
 complaining extends also to a party defending; whatever 
 one may allege in his pleading by way of defense to the 
 charge brought against him or by way of counter-charge, 
 counter-claim, or set-off. can never give a right of action 
 for libel. The rule as thus laid down has been doubted by 
 some, and it has been said that if the tribunal to which the 
 complaint be made has no jurisdiction of the subject- 
 matter, or if the defamatory matter be irrelevant to the 
 matter in hand, or if the party complaining or defending 
 maliciously inserts defamatory matter in his pleading, that 
 in such cases the party aggrieved may maintain his action 
 for slander or libel.^ Notwithstanding the dicta to the 
 
 Vt. 209 ; see Crescent Live Stock Co. 
 V. Butchers' Union, 120 U. S. Rep. 
 141 ; Clements v. Odorless Excavat- 
 ing Co. 67 Md. 461, 605; II Cent. Rep. 
 503; Wright V. Ascheim, 17 Pac. 
 Rep. [Utah], 125.) Inducing a pauper 
 to bring an unfounded suit, action- 
 able, (Pechell V. Watson, 8 M. & W. 
 691, cited 6 H. & N. 133; Mainte- 
 nance, Harris v. Briscoe, 17 Q B. D. 
 504 ; Bradlaugh v. Newdegate, 1 1 Id. 
 I ; see 30 Alb. L. J. 55; 32 Id. 124, 
 145.) As to proceedings in Bankruptcy 
 and winding up corporations, see 
 Johnson v. Emerson, L. R. 6 Ex. 
 329. 
 
 ' Dada v. Piper, 41 Hun, 254; i 
 N. Y. St. Rep. 152 ; Prescott -v. Tousey, 
 53 N. Y. Superior Co't, 65 ; Perzel v. 
 To jsey, 52 Id. 79. ■' Words that might 
 otherwise import a slander, being 
 necessarily used in a judicial proced- 
 ure, cannot subject the party to any 
 censure or penalty, either in respect to 
 parties, objections to witnesses, or 
 challenges to jurymen, that being un- 
 derstood as done in vindication of one's 
 right ; but yet, if things that are in- 
 jurious, quite foreign to the cause, be 
 charged in the libel (i. e.. the sum- 
 mons or declaration), such pursuer 
 shall suffer as a slanderer, for the 
 
 cover of a judicial procedure cannot 
 protect him, since the design of injur- 
 ing is evident, and the more public and 
 solemn it is, the injury is so much the 
 more heinous." (Borthwick on Libel, 
 215, note ; see Rexz/. Salisbury, i Ld. 
 Raym. 341.) If he (a party appealing 
 to a court of competent jurisdiction) 
 approaches the council with other than 
 pure views; if, under the mask of 
 vindicating his violated rights, seeking 
 a redress for injuries, or removing a 
 public grievance, he calumniates the 
 man against whom he prefers his com- 
 plaint, I can discover no legal or even 
 plausible ground to shield him from 
 answering as a libeler; and the opin- 
 ion of the court, from 4 Co. 14, in the 
 case of Buckley v. Wood, I consider 
 as very apposite to this case It is 
 dictated by sound principles of law 
 and solid sense. (The Chancellor, in 
 Thorn v. Blanchard, 5 Johns. 525.) 
 No action of slander or libel lies for 
 defamatory matter in a pleading (Yin. 
 Abr. Act. for Words, C, a, 19 ; Daw- 
 ling V Wenman, 2 Show. 446 ; S. C. 
 Dawling v. Venman, 3 Mod. 108; Cox 
 V. Smith. I Lev. 119; Browne/. Michel, 
 Cro. Eliz. 500 ; Hoar v. Wood. 3 
 Mete. 193; Goslin v. Cannon, i Har- 
 rington, 3; Briggs V. Byrd, 12 Ired. 
 
§ 221.] 
 
 PLEADINGS, &C. 
 
 333 
 
 contrary, we believe the better and the prevailing opinion 
 to be, that for any defamatory matter contained in a plead- 
 
 377 ; Shelfer v. Gooding, 2 Jones [N. 
 Car.], 175; Lea 7/. White, 4 Sneed, 
 m), as in a bill inequity (Forbes 7/. 
 Johnson, 1 1 B. Monr. 48 ; Strauss v. 
 Meyer, 48 111. 385). or a writ or de- 
 claration (Hardin v. Cumstock. 2 A. 
 K. Marsh. 480), although the charge 
 be groundless. (Hill v. Miles, 9 New 
 Hamp. 9.) Where one addresses a 
 complaint to persons competent to re- 
 dress the grievance complained of, no 
 action will lie against him, whether his 
 statement be true or false, or his mo- 
 tives innocent or malicious. (Thorn 
 V. Blanchard. 5 Johns. 508.) And it is 
 at least doubtful whether a want of 
 jurisdiction in the court to which a 
 complaint may be exhibited will make 
 it a libel, because the mistake of the 
 court is not imputable to the party 
 but to his counsel. {Id.; Lake v. 
 King, I W. Saund. 132; Hawk. PI. 
 Cr. 73, § 8 ; contra, Buckley v. Wood, 
 4 Co. 14.) That was the case of a 
 bill in the Star Chamber ; as to part 
 of the matter the court had, and as to 
 part had not jurisdiction ; the latter 
 being defamatory, held to be action- 
 able. So no action lies for words 
 spoken on giving a party in charge to 
 a constable, or in preferring a com- 
 plaint to a magistrate. (Johnson v. 
 Evans. 3 Esp. 32.) But the privilege 
 is confined strictly to communications 
 which are necessary for obtaining re- 
 dress or forwarding the ends of jus- 
 tice. Thus, where A. obtained a war- 
 rant to search the house of B. for 
 goods suspected to be stolen, and in 
 accompanying the officer to execute 
 the warrant, told the officer that B. had 
 robbed him, held that this statement 
 was not privileged. (Dancaster v. 
 Hewson, 2 Man & R. 176) See 
 Lathrop v. Hyde, 25 Wend. 448, 
 where, under a similar state of cir- 
 cumstances, the action was held 
 maintainable, the jury finding express 
 malice. And see Fitzsimmons v. 
 Byrne. 12 Low. Can. R. 390. Where 
 defendant, before making any com- 
 plaint to a magistrate, made a charge 
 against plaintiff to C, a constable. 
 
 adding that he should require C. to 
 serve the warrant on plaintiff, held 
 this was not a privileged communica- 
 tion; and where, after plaintiff had 
 been acquitted before the justice, 
 the defendant repeated the charge 
 against the plaintiff, held this was not 
 a privileged communication. (Burlin- 
 game v. Burlingame, 8 Cow. 141.) 
 Whatever may be said or written by a 
 party to a judicial proceeding, or by 
 his attorney, solicitor, or counsel 
 therein, if pertinent and material to 
 the matter in controversy, is privileged 
 and lays no foundation for a private 
 or public prosecution . The protection 
 is absolute, and no one shall be per- 
 mitted to allege that it was said or 
 written with malice. But if a party or 
 his agent pass beyond the prescribed 
 Hmit to asperse or vilify another, he 
 is without protection, and must abide 
 the consequences. (Wyatt v. Buell, 
 47 Cal. 624.) As where a person 
 acting as counsel in a justice's court 
 prepared and presented a declaration, 
 charging the defendant with a trespass 
 and alleging that the defendant was 
 '■ reputed to be fond of sheep," " in 
 the habit of biting sheep," and that 
 '• if guilty, he ought to be shot ; " held, 
 that an indictment therefor as a libel, 
 alleging malice, was good. (Gilbert 
 V. The People, i Denio, 41 ; see Lea 
 V. White, 4 Sneed. in; Buchs v. 
 Barker, 6 Heisk. 404; Davis v. Mc- 
 Nees, 8 Humph. 40.) If a party insti- 
 tute a proceeding in a court of justice 
 as a pretense, and merely to promul- 
 gate slander, or to serve any other im- 
 proper purposes, an action may be 
 maintained for any libelous matter 
 contained in it. (Hill v. Miles, 9 New 
 Hamp. 9.) Where words accusing 
 the plaintiff of felony were spoken to a 
 justice, on an application for a warrant 
 for felony, the question whether they 
 are actionable or not depends upon 
 the question whether they were made 
 in good faith or not, and that ques- 
 tion should be left to the jury. (Bun- 
 ton V. Worley. 4 Bibb 38 : and see 
 Marshall v. Gunter, 6 Rich. 419; 
 
334 
 
 [CH. IX. 
 
 ing in a court of civil jurisdiction, no action for libel can 
 be maintained ;^ tiie power possessed by courts to strike 
 out scandalous matter from the proceedings before them,^ 
 
 Briggs V. Byrd, 12 Ired. 377.) A 
 letter addressed to a judge before 
 whom a proceeding is pending, being 
 an irregular and improper proceeding, 
 is not privileged. (Gould v. Hulme, 
 3 C. & P. 625.) For such a letter the 
 writer may be punished as for a con- 
 tempt. {Ex parte MacGill, 2 Fowl. 
 474 ; Eagleton v. Duchess of Kings- 
 ton, 8 Ves. 467.) An affidavit made 
 before a magistrate to enforce the law 
 against a person accused therein of a 
 crime, does not subject the accuser to 
 an action for libel, though the affidavit 
 be false and insufficient to effect its 
 object. (Hartsock v. Reddick, 6 
 Blackf. 255.) Under statute 5 & 6 
 Vict. ch. 109, the vestry, on precept 
 from the justices are to return a list of 
 parishioners liable to serve as con- 
 stables, and to give notice when and 
 and where objections will be heard by 
 the justices, who are empowered to 
 strike out of the list the names of per- 
 sons not liable to serve. Plaintiff's 
 name was inserted in the list of per- 
 sons liable to serve, and he attended a 
 session to be sworn in, when the de- 
 fendant, a parishioner, objected to him 
 and made a statement to the justices, 
 in the presence of other persons, im- 
 puting perjury to plaintiff. In an action 
 for slander, the jury found that de- 
 fendant made the statement bonajide, 
 believing it to be true. Held that the 
 statement was properly made before 
 the justices, and was a privileged com- 
 munication. (Kershaw v. Bailey, i 
 Exch. 743; 17 Law Jour. R. 129, Ex.; 
 and see 10 Law Times, 289; and 
 ante, note i, p. 331 ; and post, § 222.) 
 ' The Superior Court of New York, 
 in Prescott v. Tousey, 53 N. Y. Su- 
 perior Ct. Rep. 65, an action for libel 
 in a bill of particulars, say, they do 
 not accept this sentence to its full 
 extent, but in that case held the 
 alleged defamatory matter in the 
 pleading absolutely privileged, be- 
 cause as the opposite party had not 
 had it stricken out as irrelevant or re- 
 
 dundant it must be considered as rel- 
 evant to the matters in issue. The 
 court impliedly say that where the 
 matter is irrelevant or redundant an 
 action might be maintained. That 
 does not conflict with our statement 
 in the text, we say an action for libel 
 cannot be maintained ; there may be 
 cases where what would have been 
 formerly designated a special action 
 on the case can be maintained. Such 
 an action is more nearly an action for 
 malicious prosecution than for a libel. 
 (See ante^ note 2, p. 331.) Circulat- 
 ing copies of pleadings containing de- 
 famatory matter, held punishable as a 
 contempt of court. (Bowden v. Rus- 
 sell, 46 L. J. [Ch.] 414.) 
 
 In Dada v. Piper, 41 Hun, 254; I 
 N. Y. St. Rep. 1 52, the alleged libel 
 was contained in a complaint in a 
 civil action. It was admitted there 
 was no publishing other than was in- 
 cident to the conduct of the action, 
 and there was no proof of malice, the 
 complaint was dismissed on the 
 ground that the publishing complained 
 against was privileged. In affirming 
 the dismissal the court said : Plaintiff 
 should have shown that defendant 
 knew his allegation was false ; that he 
 maliciously '' made use of the legal 
 proceedings in bad faith as a cloak to 
 his libelous utterances." 
 
 The view of the law as laid down 
 in our text was approved and followed. 
 (Lanning ^/. Christy, 30 Ohio St. 115; 
 and see 17 Alb. L. J. 78; Bartlett v. 
 
 Christhilf, 69 Md. ; Moody v. Lib ■ 
 
 by, I Abb. N. C. 1 54. 
 
 * King V. Sea Ins. Co. 26 Wend. 
 62; Powell V. Kane, 5 Paige, 265.; 
 affi'g 2 Edw. Ch. 450: Somers v. 
 Torrey, 5 Paige, 54; IDowning v. 
 Marshall, 37 N. Y. 382 ; Mitchell v. 
 Kerr, Rowe's Rep. 537; Strauss v. 
 Meyer, 48 111. 385 ; Christie v. Christie, 
 L. R. 8 Ch. 499. And no action lies 
 for the publication of the matter 
 ordered to be struck out. (Kennedy 
 V. Hilliard, 10 Ir. C. L. R. N. S. 195.) 
 
>22.] 
 
 PROCEEDINGS IN ACTION. 
 
 00 
 
 35 
 
 and to punish as for a contempt, is considered a sufficient 
 guaranty against the abuse of this privilege;^ but whatever 
 may be the reason, it seems certain that where there is a 
 perversion of the right, " the policy of the law steps in and 
 controls the individual ris^ht of redress."^ 
 
 § 2 22. The protection which is accorded to a pleading 
 extends to every other proceeding in a civil action,^ and 
 
 ' Henderson v. Broomhead, 4 
 Hurl. & N. S77 ; Astley v. Younge, 2 
 Burr. 807. The action of slander does 
 not lie for a criminal charge made by 
 an aflSdavit before a magistrate, the 
 plaintiff 's remedy being by an action 
 for malicious prosecution or arrest, or 
 for maliciously suing out a search 
 warrant. (Sanders v. Rollinson, 2 
 Strobh. 447.) No proceeding accord- 
 ing to the regular course of justice 
 will make a complaint or other pro- 
 ceeding 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. 297.) When 
 a requisition is presented for the arrest 
 of a fugitive from justice, with the 
 proper vouchers, according to the act 
 of Congress, it is the duty of the ex- 
 ecutive to cause the fugitive to be 
 arrested and delivered to the agent 
 appointed to receive him, and the 
 governor has no power to entertain an 
 application to recall or modify such 
 warrant, and an affidavit to support 
 such an application is not a privileged 
 communication. (Hosmer v. Love- 
 land, 19 Barb, iii.) A complaint to 
 the grand jury, containing a charge of 
 perjury, is privileged, although before 
 its presentation it was exhibited to 
 various persons, by whom it was 
 signed. (Kidder v. Parkhurst, 3 Allen 
 [Mass.], 393 ; see Lake v. King, I Mod. 
 58 ; Vanderzee 7/. McGregor, 12 Wend. 
 545; Klinck v. Colby, 46 N. Y. 430.) 
 And the delivery of a pleading or pro- 
 cess to a third person for service on 
 defendant is not such a publication as" 
 will give a cause of action, i. e., take 
 
 away the privileged character of a 
 pleading or process. (Bank of Brit. 
 N. Amer. v. Strong, i App. Cas. 337; 
 Sands v. Robison, 12 S. & M. 704.) 
 In King v. Townsend (2 Law Rep. 1 26 ; 
 Appendix, post), which was an action 
 for libel contained in an affidavit 
 voluntarily made by the defendant 
 before a magistrate — the report does 
 not state under what circumstances — 
 Abbott, Ch. J., said: "This action is 
 maintainable. This affidavit is not a 
 judicial proceeding, for it is the mere 
 voluntary affidavit of the defendant, 
 and if such an affidavit were to be 
 considered as a judicial proceeding, 
 and therefore privileged, it would 
 afford a very easy recipe for a libeler 
 to traduce the characters of the most 
 innocent persons." (See note, p. 337, 
 post.) A third party has not any 
 privilege if he publishes defamatory 
 pleadings. (Barber v. St. Louis Dis- 
 patch Co. 3 Cent. Law Jour. 360.) An 
 attorney may be disbarred for de- 
 famatory matter in a pleading. (People 
 V. Green, Colo. Sup. C't. 35 Alb. L. 
 
 J- 456.) 
 
 2 Thorn v. Blanchard, 5 Johns. 530; 
 and see Wilson v. Sullivan, 7 So. East. 
 Rep. (Ga.) 274 ; Thompson v. Powing, 
 15 Nev. 195; Mass 7/. Meire, 37 Iowa, 
 
 97- 
 
 3 An attorney's bill of costs, al- 
 though delivered under a judge's or- 
 der, is not a legal proceeding, and is 
 not within the above rule. The plaint- 
 iff having obtained an order for de- 
 fendant, his late attorney, to deliver a 
 bill of costs, defendant delivered a 
 bill headed. " Relative to your defal- 
 cations," which phrase was repeated 
 in several parts of the bill. In an 
 action of libel for this statement, it 
 
336 
 
 PROCEEDINGS IN ACTION. 
 
 [CH. IX. 
 
 therefore for anything contained in an affidavit or other 
 proceeding made in the course of an action or proceeding, 
 no action for libel can be maintained. The privilege is 
 much more extensive than in many other cases. No lia- 
 bility attaches for actual malice in the publication, provid- 
 ed only that the matter complained against is pertinent. 
 And where the matter is not pertinent, yet, if published 
 without malice, it is privileged within the rule applicable 
 to a publication, not being of a pleading or proceeding in 
 an action.^ Where an attorney sued his client for profes- 
 sional services, the client gave notice, under the general 
 
 was claimed that the bill, having been 
 delivered under a judge's order, was a 
 legal proceeding, and privileged, but 
 it was ruled otherwise, and plaintiff 
 had a verdict. (Bruton v. Downes, i 
 Fost. & F. 668.) Where the alleged 
 libelous language was contained in 
 written interrogatories propounded to 
 a witness in a suit, it was held to be 
 privileged. (Lawson v. Hiclcs, 38 Ala. 
 279; Marsh v. Elsworth, 50 N.Y. 309: 
 affi'g 2 Sweeny, 589; i Id. 52) A 
 petition for appointment of a guardian 
 is privileged. (Ruohs v. Backer, 6 
 Heisk. [Tenn.] 395 ; 36 Alb. L. J. 503.) 
 Defendant made an affidavit that 
 plaintiff had subscribed certain cotton 
 to the confederate cotton loan, and 
 had not paid the same, in consequence 
 of which the government agents had 
 seized said cotton — held, such affida- 
 vit, although untrue, was privileged. 
 (Reid V. McLendon, 44 Ga. 156.) No 
 action for defamatory matter in a bill 
 for an injunction (Wilson v. Sullivan, 
 7 So. East. Rep. [Ga.] 274), nor for 
 defamatory matter in a petition by 
 one receiver for the removal of his 
 co-receiver. fBartlett v. Christhilf, 
 69 Md. — ; 38 Alb. L. J. 151.) 
 Defamatory matter in an applica- 
 tion to a justice of the peace to 
 substitute an officer to summon a 
 jury, held privileged only if made in 
 good faith and pertment. (Rain- 
 bow V. Benson, 71 Iowa. 301.) So 
 of defamatory matter in an affidavit 
 to answer a bill praying an injunc- 
 
 tion. (Hart V. Baxter, 47 Mich. 
 ig8.) So of defamatory matter in a 
 complaint to a magistrate. (Pierce v. 
 Oard. 37 N. W. Rep. [Neb.] 677.) 
 So of defamatory matter in order on 
 an attorney to pay over moneys to his 
 client (Hawk v. Evans, 41 No. West. 
 Rep. [Mich.] 368.) Publication in 
 alleged aid of legal proceedings not 
 justified if no such proceeding. (Mal- 
 lory V. Pioneer Press Co. 34 Minn. 
 52.) No action for matter in an- 
 swer (Lansing v. Christie, 30 Ohio 
 St. 1 1 5), or bill of particulars (Pres- 
 cott V. Tousey. 53 Superior Ct. [21 
 J. & S ] 56; Moore v. Manuf. Bk. 21 
 N. Y. St. Rep. 652). 
 
 In a prosecution before a justice 
 of the peace for unlawfully selling in- 
 toxicating liquors, an affidavit in sup- 
 port of an application to the justice to 
 designate some constable other than 
 the one proposed by said justice to 
 summon the jury, which alleges that 
 said constable is prejudiced and is 
 colluding with defendant and men in 
 the saloon business to prevent their 
 conviction, and is in the habit of se- 
 lecting men for the jury who are op- 
 posed to the enforcement of the pro- 
 hibitory law, is a prima facie privi- 
 leged communication. (Rainbow v. 
 Benson, 71 Iowa. 301.) 
 
 ' Moore v. Manuf. Bk. 21 N. Y. 
 St. Rep. 655; 51 Hun, 472; citing 
 Marsh v. Elsworth, 50 N. Y. 309. 
 and other cases. 
 
§ 222.] PROCEEDINGS IN ACTION. 337 
 
 issue, that he would prove that the attorney conducted 
 the prosecution and defense of the several suits, and at- 
 tended to the other professional business in the declaration 
 mentioned, in so careless, unskillful and improper a man- 
 ner as to render such service of no value; the attorney 
 moved to strike out the notice as false; the client resisted 
 this motion upon an affidavit of his own, stating that the 
 attorney had revealed confidential communications of the 
 client relative to a portion of the business to a third per- 
 son, to the client's prejudice. For the allegations in this 
 affidavit the attorney brought an action of libel against 
 the client, and in his declaration set out the facts to the 
 effect stated above, and charged that the allegations of the 
 affidavit were false, malicious, and impertinent; a demurrer 
 to the declaration was sustained, and it was held that the 
 affidavit was pertinent to the motion, and the truth or 
 falsity could not be questioned in an action for libel.^ In 
 a case where the publication of a proceeding in an action 
 is actionable, the aggrieved party need not wait until the 
 
 1 Garr v. Selden, 4 N. Y. 91 ; rev'g A., in opposing a motion for an 
 
 6 Barb. 416. In Doyle v. O'Doherty injunction against him, contradicted a 
 
 (i Car. & M. 418), it was held that material fact in the moving affidavit 
 
 in an affidavit in answer to the appli- of W., and swore that V^ . knew its 
 
 cation of the plaintiff for a criminal falsity, and had been guilty of perjury ; 
 
 information against the defendant for held that an action for libel could not 
 
 sending a challenge, the defendant be maintained by W. for the allegation 
 
 was justified in stating any matters, in A.'s affidavit. (Warner v. Paine, 2 
 
 however defamatory and otherwise Sandf. Sup. Ct. 195; and see Suydam 
 
 libelous, to prevent the court making v. Moffat, i Id. 495.) No action 
 
 the rule absolute, and that no action can be maintained for defamatory 
 
 could be sustained for anything con- matter in an affidavit used in the 
 
 tained in such an affidavit. (See Ros- course of a cause, even where the 
 
 enburg v. Nesbit, 14 N. Y. St. Rep. party defamed is not a party to the 
 
 248.) The facts are not given. While cause. (Henderson v. Broomhead, 4 
 
 the action appears to be for slander, Hurl. & N. 569; Revis v. Smith, 18 
 
 the opinion speaks of defendant put- C. B. 126; Dawling w. Venman, 3 
 
 ting his hand to the defamatory docu- Mod. 109; Kennedy v. Hilliard, 10 Ir. 
 
 ment. and as defendant was a volun- Com. Law Rep. 195, C. P.; i Law 
 
 teer in the legal proceedings, the fact Times, N. S. 578; Gilden v. O'Bnen, 
 
 of the libel being in an affidavit is un- 10 Ir. Com. Law Rep. 230, C. P.; 4 
 
 important, and does not afford any Ir. Jur. N. S. 291; see ante, note i, 
 
 privilege. P- 335-) 
 
 23 
 
338 PRIVILEGE OF WITNESS. [cH. IX. 
 
 termination of the action in which such proceeding was 
 had to bring his suit.^ 
 
 § 223. The act of testifying as a witness must be either 
 in the exercise of a right or the performance of a duty, 
 and in either case the act must be performed in good faith 
 (§ 40), or it will be wrongful. If, therefore, one avails 
 himself of the occasion of his position as a witness " to 
 maliciously answer the questions put to him," and with a 
 knowledge that his answer is not pertinent or relevant, 
 then the law withdraws the protection it would otherwise 
 have afforded him.* Where the defendant, a witness, was 
 asked if a certain person was attended by a physician, his 
 answer was, " Not as I know of; I understood he had a 
 quack; I would not call him a physician," on an action 
 brought for these words, it was held proper to charge the 
 jury that -if they " believed from all the circumstances 
 proved, from the questions put, from the manner of an- 
 swering, and from the answers themselves, that the de- 
 fendant testified in good faith, or in the belief that his 
 answers were pertinent or relevant, then the law protected 
 him ; but if the defendant was actuated by mere malice, 
 and used the words for the mere purpose of defaming the 
 plaintiff, then the law withdrew the protection it would 
 otherwise have afforded him."* The foregoing is the view 
 
 1 Hodges V. Hochelaga, 7 Legal Maine, 442; Calkins v. Sumner, 13 
 
 News, 353 (Quebec). Wis. 193; McLaughlin v. Cowley, 127 
 
 * Smith V. Howard, 28 Iowa, 51 ; Mass. 316. 
 Marsh v. Elsworth, 50 N. Y. 309; In Hunckel v. Voneiff, 69 Md. 
 
 affi'g 2 Sweeny, 589; i Id. 52. In , 14 Atl. Rep. 500, the Court 
 
 Shodden v. McElwee, 5 So. West. of Appeals of Maryland sustained and 
 
 Rep. (Tenn.) 602, held that where a followed our views. (See also Goffin 
 
 witness voluntarily, maliciously and v. Donnelly, 6 Q. B. D. 327.) 
 irresponsively interjects defamatory a White v. Carroll,' 42 k. Y. 161. 
 
 matter into his answers, he is liable In Barnes v. McCrate (32 Maine, 442), 
 
 for slander. In that case the court Perkins v. Mitchell (31 Barb. 461), 
 
 took occasion to say that our view, as Smith v. Howard (28 Iowa, 51), it is 
 
 stated in the text, is plausible but un- said : " The witness is not liable 'if the 
 
 sound. (36 Alb. L. J. 502.) Refer- answers are pertinent and responsive." 
 
 ence is made to Smith v. Howard, 28 And in Marsh v. Elsworth (50 N. Y. 
 
 Iowa, 51 ; Barnes -v. McCrate, 32 309; affi'g 2 Sweeny, 589; i Id. 52), 
 
§ 223.J 
 
 PRIVILEGE OF WITNESS. 
 
 339 
 
 taken on this subject by the courts of New York, Iowa, 
 Maine and Tennessee, but we cannot concur in that view. 
 The due administration of justice requires that a witness 
 should speak, according to his belief, the truth, the whole 
 truth, and nothing but the truth, without regard to the 
 consequences; and he should be encouraged to do this by 
 the consciousness that, except for any willfully false state- 
 ment, which is perjury, no matter that his testimony may 
 in fact be untrue, or that loss to another ensues by reason 
 of his testimony, no action for slander can be maintained 
 against him.^ It is not simply a matter between individ- 
 uals, it concerns the administration of justice. The wit- 
 ness speaks in the hearing and under the control of the 
 court, is compelled to speak, with no right to decide what 
 is material or what is immaterial ; and he should not be 
 subject to the possibility of an action for his words. This 
 is the view in the courts of England and some of the 
 States,* and in our opinion is the correct view. Where 
 
 it is said : " The relevancy of the 
 words complained against to the mat- 
 ter in hand is the test of the privilege." 
 Lewis V. Few (5 Johns. 13) is over- 
 ruled. See Newfield v. Copperman, 
 42 N. Y. Sup. Ct. fio J. & S.), 302. A 
 witness was asked to fix a date, and 
 said, " Not knowing that a mistress 
 of Mr. Plitt would step in to claim the 
 property, I did not keep an account of 
 the date," is not so wholly foreign to 
 the case as to be beyond the privilege 
 of a vjritness, and is therefore not ac- 
 tionable. (Hunckel v. Voneiff, 69 Md. 
 ; 37 Alb. L. J. 127.) 
 
 1 The State v. The Banner Pub. 
 Co. 16 Lea. (Tenn.) 176; and see in 
 note 2, infra. 
 
 * No action lies for words spoken 
 as a witness (Weston v. Dobniet, Cro. 
 Jac. 432 ; Damport v. Sympson, Cro. 
 Eliz. 520; Astley v. Younge, 2 Burr. 
 807; Harding v. Bulman, Brownl. 2; 
 Terry v. Fellows, 21 La. Ann. 375 ; 
 Keighley v. Ball, 4 Fos. & Fin. 799; 
 Seaman v. NethercUf, i C. P. D. 540; 
 Goffin V. Donnelly, 6 Q. B. D. 307), 
 
 although the words are spoken ma- 
 liciously and without reasonable or 
 probable cause, and the plaintiff has 
 suffered damage in consequence. 
 (Revis V. Smith, 18 C. B. 126; Rex v. 
 Skinner, LofFt, 55.) The Code of 
 Miss., 1880. § 1004, does not deprive 
 a witness of this immunity. (Vemer 
 V. Vemer, 64 Miss. 321 ; 35 Alb. L. 
 J. 460.) A statement, whether written 
 or oral, made by one summoned to 
 attend a court of inquiry instituted by 
 the commander-in-chief of the British 
 army, held to be absolutely privileged, 
 although made maliciously and with- 
 out reasonable or probable cause. 
 (Dawkins v. Rokeby, Law Rep. 8 Q. 
 B. 255; 45 L. J. Q. B. 8.) The wit- 
 ness is not bound to determine the 
 materiality of the evidence, and he 
 may answer, without liability for so 
 doing, questions put to him, and not 
 objected to, or not ruled out by the 
 court. The fact that the testimony is 
 irrelevant, or that the witness is influ- 
 enced by malice, will not render him 
 liable to an action for slander. (Cal- 
 
340 
 
 PRIVILEGE OF PARTIES. 
 
 [CH. 
 
 IX, 
 
 the plaintiff brought an action against one L., and the de- 
 fendant being produced as a witness at the trial, testified 
 that the plaintiff was a common liar, by reason whereof 
 the jury gave the plaintiff but small damages, after verdict 
 for the plaintiff, in an action for slander, it was moved in 
 arrest of judgment that the action did not lie, for, if it did, 
 every witness might be charged upon such a suggestion, 
 and judgment was given for the defendant.^ 
 
 § 224. A party to a proceeding in a court of justice is 
 not liable to an action for any statement he may make in 
 court in relation to the matter there pending, provided 
 that such statement is made in good faith, believing it to 
 be material,^ and that it is not calculated to provoke a 
 
 kins V. Sumner, 13 Wis. 193; Norden 
 V. Oppenheim, 3 Menzies, 42; Sea- 
 man V. Netherclift, 25 Weekly Rep. 
 159; I C. P. D. 540.) No action will 
 lie against a witness for damage sus- 
 tained by the falsity of his testimony 
 (Smith V. Lewis, 3 Johns. 1 57 ; Grove 
 V. Brandenburg, 7 Blackf. 234; Cook 
 V. Cook, 100 Mass. 194; Cunningham 
 V. Brown, 18 Vt. 123; Dunlap v. 
 Glidden, 31 Maine, 435; and see At- 
 kinson V. Down, I Vict. Law Times, 
 44J ; as where an action was brought 
 against a witness for swearing that a 
 jewel was worth no more than ;£l8o, 
 whereas it was worth;£5oo, a verdict be- 
 ing found for the plaintiff, judgment 
 was arrested. (Damport v. Sympson, 
 Cro. Eliz. 520 ; see cases collected Vin. 
 Abr. Act. on the Case for Deceit ; and 
 see Cunningham v. Brown, 18 Vt. 123; 
 Dunlap V. Glidden, 31 Maine, 435.) 
 No action Mes for suborning a witness 
 to testify falsely. (Smith v. Lewis, 3 
 Johns. 1 57 ; Bostwick v. Lewis, 2 Day, 
 447.) In slander for charging the 
 plaintiff, in the presence of ' ' sundry 
 persons," with larceny, the defendant 
 pleaded that he spoke the words in 
 giving testimony as a witness in a cer- 
 tain cause. Held, that the defendant 
 might, on the trial, prove what the 
 testimony which he gave was, and 
 that the plaintiff, if he meant to pro- 
 
 ceed for speaking the words on some 
 other occasion than that named in the 
 plea, should have new assigned. (Nel- 
 son V. Robe, 6 Blackf. 204.) Justifi- 
 cation of words spoken as a witness. 
 (McGovern v. McNamara, 13 [6 N. 
 S.] Ir. Jur. 346.) 
 
 ^ Harding v. Bulman, Brownl. 2 
 Hutt. II. 
 
 2 Allen V. Crofoot, 2 Wend. 515. 
 No statement in the course of ^^ judi- 
 cial proceedings " which a party may 
 reasonably deem necessary to his 
 cause, will be held libelous, however 
 defamatory it may in its nature be; 
 and it makes no difference with regard 
 to such privileged statements whether 
 they are or not malicious, provided 
 they may be reasonably deemed ne- 
 cessary to the case. (Lea v. White, 4 
 Sneed [Tenn.], iii; Vausse w. Lee, i 
 Hill [So. Car.], 197; Goslin v. Can- 
 non, I Harring. 3; Marshall v. Gunter, 
 6 Rich. 419; Warner v. Paine, 2 
 Sandf. 195; Bartlett w. Christhilf, 69 
 
 Md. .) " Judicial proceedings " are 
 
 not confined to trial of civil actions or 
 indictments, but include every pro- 
 ceeding before a competent court or 
 magistrate in the due course of law, 
 or the administration of justice, which 
 is to result in any determination or 
 action by such court or officer. (Per- 
 kins V. Mitchell, 31 Barb. 471 ; and see 
 
§ 224.] PRIVILEGE OF PARTIES. 34I 
 
 breach of the peace.^ Where the defendant, having made 
 a criminal complaint against the plaintiff, was questioned 
 by him with regard to it during its pendency, and answer- 
 ed, in the presence of the magistrate, that he believed the 
 charge true, held that if the defendant believed in good 
 faith that it was necessary for him to answer the plaintiff, 
 the answer was privileged.* So it has been held that if a 
 servant summon his master before a court of conscience 
 for wages, and the latter, in his necessary defense, utter 
 words imputing a felony to the former, no action will lie.^ 
 Where the prosecutor in an indictment said of one offered 
 as bail for the defendant, in the indictment, " I believe he 
 was mixed up in the fraud," held privileged if spoken in 
 the belief that it was true.* And where the plaintiff was 
 a witness on the trial of a cause in which the defendant 
 was a party, on her testifying to a particular fact, the de- 
 fendant immediately, in open court, exclaimed, " That is a 
 lie, and 1 can prove it," and soon after added, "and I think 
 I have proved it." For these words the plaintiff br(5i^ght 
 suit, and it was held no action would lie, the words b6ihg 
 uttered "in the progress of a trial, and in the course of 
 justice."" Where the plaintiff, in an action for slander, 
 alleged that he took an oath in the King's Bench to bind 
 the defendant to good behavior, and thereupon the defend- 
 ant falsely and maliciously said, " there is not a word true 
 in that affidavit, and I will prove it by forty witnesses." 
 The jury found the words false and malicious, and for the 
 plaintiff; but judgment was arrested on the ground that 
 
 Stewart v. Hall, 83 Kentucky, 375 ; man's own defense, against a charge 
 
 Ayres v. Russell, 20 N. Y. St. Rep. upon him in that court, will not lie. 
 
 323.) (Astleyz'. Younge, 2 Burr. 807; 2 Ld. 
 
 ' Reg. V. Hutchins, 7 Ir. L. R. N. Ken. 536.) 
 S. 426. * Banbury v, Duckworth, 21 Law 
 
 * Allen V. Crofoot, 2 Wend. 515. Times, 302. 
 
 » Trotman v. Dunn, 4 Camp. 211 ; <■ Badgley v. Hedges, i Penning- 
 
 Lynam v. Gowing, 6 L. R. Jr. 259. ton, 233; but see note i, p. 343, fiost, 
 
 An action for libelous words spoken also § 171. 
 or sworn in a court of justice, in a 
 
34-2 PRIVILEGE OF PARTIES, [cH. IX. 
 
 what defendant said was in his justification and defense in 
 a legal and judicial way.^ 
 
 § 224 «. A party to a proceeding in a court of justice 
 may ordinarily conduct the prosecution or defense in per- 
 son or by counsel or attorney.^ Where he conducts the 
 case in person, whatever he may reasonably believe neces- 
 sary successfully to maintain his suit or his defense, that he 
 may speak, in the course of the proceeding, without being 
 subject to an action for slander. A party who is not a 
 barrister or counsellor conducting a cause on his own be- 
 half or on behalf of another, has the same privilege as a 
 counsel as to what he may say.^ The defendant, while 
 advocating his own cause before a referee, and while sum- 
 ming up the cause, called plaintiff, among other things, a 
 perjured scoundrel; in an action for these words, a verdict 
 was taken for the plaintiff; on motion in arrest of judg- 
 ment the verdict was sustained, and judgment ordered for 
 the plaintiff. The court said that, to arrest the judgment, 
 it must be held that counsel are protected for words 
 spoken by them on the trial of a cause, although they may 
 have been false, and uttered willfully and maliciously, and 
 were irrelevant, and although neither the evidence nor the 
 circumstances afford a suspicion to warrant the accusation. 
 But the court thought the rule could not be carried to that 
 extravagant length.* Where a party to a suit was con- 
 ducting the defense in person, and while cross-examining a 
 witness, upon the witness stating certain facts, exclaimed. 
 
 * Boulton V. Clapham, W. Jones, any court, or may, at his election, pros- 
 431; Mar. 20, cited by Holroyd, J., in ecute or defend such action in per- 
 Hodg^on V. Scarlett, i B. & A. 244, son. (2 R. S. 276, § ii.) 
 
 and commented upon in Hastings v. » Ring v. Wheeler, 7 Cow. 725; 
 
 Lusk, 22 Wend. 410; and see jCean v. Hastings v. Lusk, 22 Wend. 410; Per- 
 
 McLaughlin, 2 S. & R. 470; Perzel v. zel v. Tousey, 52 Superior Ct. (20 J. & 
 
 Tousey, 52 Superior Ct. 79. S.) 79; Hoar v. Wood, 3 Mete. 193; 
 
 * In New York State, every person Morgan v. Booth, 13 Bush (Ky.), 480. 
 of full age and sound mind may ap- * Ring v. Wheeler, 7 Cow. 725 ; 
 pear by attorney ... in every Hastings v. Lusk, 22 Wend. 410. 
 action . . . by or against him in 
 
§ 225.J PRIVILEGE OF COUNSEL. 
 
 343 
 
 " It is not so ; it's not so ; no such thing." In an action 
 for slander by the witness for these words, the jury found 
 they were intended to impute perjury, and the court held 
 them to be actionable.^ 
 
 § 225, The right which a party to a proceeding in a 
 court of justice, conducting the proceeding in person, has 
 to speak all that he may reasonably believe to be neces- 
 sary for the successful maintenance of his action or de- 
 fense, is enjoyed by one conducting a proceeding for an- 
 other, whether he be conducting it as counsel, attorney, 
 or otherwise. A person was alleged to have kept a sum 
 of money which, by his contract, he ought not to have 
 kept; counsel, in reference to this matter, used the lan- 
 guage, "This gentleman has defrauded us," and was inter- 
 rupted by the court before he had finished his sentence. 
 Held, first, that the words were not actionable; secondly, 
 that they were not irrelevant to the matter before the 
 court.* ''A counsellor hath a privilege to enforce anything 
 which is informed him by his client, and to give it in evi- 
 dence, it being pertinent to the matter in question, and 
 not to examine whether it be true or false, for a counsellor 
 is at his peril to give in evidence that which his client in- 
 forms him, being pertinent to the matter in question ; but 
 matter not pertinent to the issue or the matter in question 
 he need not deliver, for he is to discern in his discretion 
 
 > Dedway z/. Powell, 4 Bush (Ky.), been plundered by the plaintiff to a 
 
 77; see § 171, and Badgley w. Hedges, frightful extent. Held, a privileged 
 
 I Pennington, 233. statement. (Mackay v. Ford, 5 Hurl. 
 
 ' Needham v. Dowling, 1 5 Law & Nor. 792. See HoUis v. Meaux, 69 
 
 Jour. 9, C. P. An attorney acting as Cal. 625.) A master is not liable to an 
 
 an advocate is privileged as to state- action of slander for words spoken 
 
 ments made in the trial of his client's while acting as counsel for his slave 
 
 cause, in the same way as counsel. while the slave is on trial before a 
 
 An attorney, in defending his client competent tribunal, provided the 
 
 from a charge of assault in turning words are material and pertinent to 
 
 out the plaintiff from certam premises the matter in question. (Shelfer v. 
 
 in which he had agreed to sell wine Gooding, 2 Jones' Law [N.Car.], 175.) 
 
 under an agreement with J., stated As to the privilege of counsel, see Vin. 
 
 that J. had sufficient reasons for de- Abr. Act. for Words, B, «, 2. 
 termining the agreement ; that he had 
 
344 
 
 PRIVILEGE OF COUNSEL. 
 
 [CH. IX. 
 
 what he is to deliver and what not, and although it be 
 false, he is excusable, it being pertinent to the matter. But 
 if he give in evidence anything not material to the issue 
 which is scandalous, he ought to aver it to be true, for it 
 shall be considered as spoken maliciously and without 
 cause, which is a good ground for an action."^ " If a coun- 
 sellor speak scandalous words of one in defending his cli- 
 ent's cause, an action doth not lie against him for so doing; 
 for it is his duty to speak for his client, and it shall be in- 
 tended to be spoken according to his client's instructions."^ 
 " If a man should abuse this privilege, and under pretense 
 of pleading his cause, designedly wander from the point 
 in question and maliciously heap slander upon his adver- 
 sary, I will not say he is not responsible in an action at 
 law."^ Counsel is not liable to answer for defamatory 
 matter uttered by him in the trial of a cause, if the matter 
 is applicable and pertinent to the subject of inquiry, but 
 
 1 Brook V. Montague, Cro. Jac. 
 90. See contra, Maulsby v. Reif- 
 
 snider, 69 Md. . H. was charged 
 
 before a court of petty sessions with 
 administering drugs to the inmates 
 of M.'s house in order to facilitate 
 the commission of a burglary. M. 
 was the prosecutor, and L., who 
 was a solicitor, appeared in defense of 
 H. There was some evidence that a 
 narcotic drug had been administered 
 to the inmates of M.'s house upon the 
 evening before the burglary, and H. 
 had been at M.'s house on that evening. 
 During the proceedings L. suggested 
 that M. might be keeping drugs at his 
 house for criminal purposes. There 
 was no evidence that M. kept any 
 drugs for those purposes. Held, that 
 no action for defamation would lie 
 against L. (Munster v. Lamb, 1 1 Q. 
 B. Div. 588.) A party to an action 
 and his attorney, conducting a judicial 
 proceeding, are privileged in respect 
 to words or writing used in the course 
 of such proceeding, reflecting injuri- 
 ously on others, where such words 
 and writing are material and pertinent 
 to the questions involved, and within 
 
 such limits the protection is absolute, 
 irrespective of the motives with which 
 they are used. (Perzel v. Tousey, 
 52 Superior Ct. [20 J. & S.] 791.) In 
 an action over a church controversy, 
 plaintiff's attorney filed a newspaper 
 libel upon one of the defendants, and 
 copied the same in his brief, which 
 was filed. Held, in the absence of 
 malice the matter was privileged. 
 (Stewart v. Hall, 83 Ky. 375.) 
 
 '' Wood V. Gunston, Sty. 462 ; per 
 Glyn, J. In Hodgson v. Scarlett, i 
 B. & A. 232, Lord EUenborough said 
 Wood u. Gunston carried the privilege 
 too far. No action for words spoken 
 by counsel to jury, unless malice 
 shown. (Lester v. Thurmond, 51 Ga. 
 118.) 
 
 » Tilghman, Ch. J., M'Millan v. 
 Birch, I Bin. 178; Maulsby w. Reif- 
 snider (Md.), 14 Atl. Rep. 505 ; Gau- 
 thier v. St. Pierre, 7 Leg. News 44 
 (Quebec). A proctor is not privileged 
 in making defamatory statements not 
 relevant to the matter in hand. (Hig- 
 ginson v. O'Flaherty, 4 Ir. L. R. N. S. 
 125.) 
 
§ 226.] SELF-DEFENSE. 345 
 
 this privilege of counsel must be understood to have this 
 limitation, that he shall not avail himself of his situation 
 to gratify private malice by uttering slanderous expressions 
 against party, witness, or third persons, which have no re- 
 lation to the subject-matter of the inquiry,^ and "if a coun- 
 sel, in the course of a cause, utter observations injurious to 
 individuals and not relevant to the matter in issue, it seems 
 to me that he would not, therefore, be responsible to the 
 party injured in a common action for slander, but that it 
 would be necessary to sue him, in a special action on the 
 case, in which it must be alleged and proved that the mat- 
 ter was spoken maliciously, and without reasonable and 
 probable cause ; " ^ and semble, that although it be lawful 
 for a counsel in the discharge of his duty to utter matter 
 injurious to individuals, yet the subsequent publication of 
 such slanderous matter is not justifiable unless it be shown 
 that it was published for the purpose of giving the public 
 information which it was fit and proper for them to re- 
 ceive, and that it was warranted by the evidence.* 
 
 § 226. The right to publish^all that one may honestly 
 consider necessary for the maintenance and protection of 
 his rights is not confined to proceedings in a court of 
 
 * Jennings v. Paine, 4 Wis. 358 ; several newspapers. The jury found 
 Hoar V. Wood, 3 Mete. 193; Mc- he was actuated by malice. Held, the 
 Laughlin v. Cowley, 127 Mass. 319; publication was not privileged. (Stev- 
 People V. Green, Colo. Sup. Ct 35 ens v. Sampson, 5 Ex. Div. 120) 
 Alb. L. J. 456; Maulsby v. Reifsnider Defendant had a privilege coextensive 
 (Md.), 14 Atl. Rep. 505 ; and see 38 with that of a newspaper. (MeUissick 
 Alb. L. J. 144; Hodgson v. Scar- v. Lloyds, 25 Week. Rep. 353.) In 
 lett, I B. & A. 232; Holt, N. P. 621; an action for defamatory words pub- 
 Perkins V. Mitchell. 31 Barb. 469; and lished by defendant the plea was that 
 see Lewis v. Higgins, referred to 14 one A., a German, went to a lawyer 
 Alb. Law Jour. 433. 'to instruct him to sue plaintiff, and 
 
 ' Holroyd, J., Flint v. Pike, 6 D. & that A., being unable to speak any- 
 
 R. 528 ; 4 B. & C. 473. thing but his native language, which 
 
 ' Kane v. Mulvany, 2 Ir. R. C. L. the lawyer did not understand, defend- 
 
 402 ; see Com'wealth v. Godshalk, 34 ant was asked to interpret, and in 
 
 Leg. Int. (Pa.) 322. Defendant, a making the interpretation he uttered 
 
 solicitor, conducted a case in a county the words complained against, without 
 
 court. He caused a fair report of the malice— held privileged. (Zuckerman 
 
 proceedings, containing matter defam- v. Sonnenschein, 62 111. 115.) 
 atory of plaintiff to be published in 
 
346 JUDGES. [CH. IX. 
 
 justice; it extends to every occasion upon which one is 
 called upon to defend himself from any charge against 
 him. Thus, words spoken in good faith, and within the 
 scope of his defense, by a party on trial before a church 
 meeting, are privileged, and do not render him liable to an 
 action, although they disparage private character.^ Where 
 the defendant expressed an opinion founded upon the 
 statements of others that the plaintiff had maliciously 
 killed his (defendant's) horse, for expressing this opinion, 
 the defendant was arraigned before the church. In self- 
 defense he produced certificates of the persons upon 
 whose authority he had spoken. For this the plaintiff 
 sued, but, offering no direct proof of malice, it was held 
 the action was not maintainable.^ So where R. & Co. re- 
 ceived a written order for an iron target, which order pur- 
 ported to come from the defendant ; R. & Co. sent the 
 target to the defendant, who returned it, stating that he 
 had never ordered it, and requested to see the written or- 
 der upon which R. & Co. had acted ; the order was sent to 
 the defendant, and he wrote R. & Co. that he firmly be- 
 lieved it was written by the plaintiff. It was submitted on 
 behalf of the defendant that the communication was a 
 (conditionally) privileged one. It was left to the jury to 
 say whether the defendant had written that the plaintiff 
 was the author of the order sent to R. & Co. bona fide 
 and without malice, believing his statement to be true ; 
 the jury found in the affirmative, a verdict was entered for 
 plaintiff, with ;^5 damages, with leave to the defendant to 
 move to enter the verdict for him, and on motion the ver- 
 dict was entered for the defendant.* 
 
 § 227. No action for slander or libel can be maintained 
 against a judge, or one exercising judicial functions, for 
 
 ' York V. Pease, 2 Gray (Mass.), ' Croft v. Stevens, 7 Hurl. & N. 
 
 282. 570; see post, § 240. 
 
 * Dunn V. Winters, 2 Humph. 512. 
 
2 2 7-] JUDGES. 
 
 347 
 
 anything he may say or write in his judicial capacity upon 
 the trial or upon the determination of a cause or matter 
 pending before him; if improper, it may be a ground for 
 his impeachment or for an application for his removal, but 
 not for an action of slander or libel.^ Plea to a declara- 
 tion for slander, that defendant was a county court judge, 
 and the words complained of were spoken by him in his 
 capacity as such judge, while sitting in his court and try- 
 ing a cause in which the (now) plaintiff was defendant. 
 Replication : That the said words were spoken falsely and 
 maliciously, and without any reasonable, probable, or jus- 
 tifiable cause, and without any foundation whatever, and 
 not bona fide in the discharge of defendant's duty as judge, 
 and were wholly irrelevant in reference to the matter be- 
 fore him. On demurrer, held that the replication was bad 
 and the action not maintainable.* Thus, no action lies 
 against a coroner for words spoken maliciously in the 
 course of an inquest before him.^ For whenever duties 
 
 1 Rex V. Skinner, Lofft, 55. Vt. iii; Rutherford v. Holmes, 66 
 
 Neither party, witness, counsel, jury, N. Y. 368 ; Merwin v. Rogers, 1 5 N. 
 
 or judge can be made to answer for Y. St. Rep. 785. " If judges were 
 
 words spoken in office, although, if liable to be sued for words spoken in 
 
 they be opprobrious and irrelevant to their judicial capacity, it may be said, 
 
 the case, the court will notice them as in the words of Lord Stair, ' No man 
 
 a contempt, and examine on an in- but a beggar or a fool would be a 
 
 formation, and punish accordingly. judge.'" (Ld. Robertson, Miller v. 
 
 {Id.; Henderson v. Broomhead, 4 Hope, 2 Shaw App. Cas. 134; see 
 
 Hurl. & N. 564; Kendillon v. Maltby, Garnett v. Ferrand, 6 B. & C. 6u.) 
 
 2 Moo. & Rob. 438 ; Moor v. Ames, 2 * Scott v. Stansfield, Law Rep. 3 
 
 Caines T. R. 170.) In Entick v. Ex. 220; see Gelen v. Hall, 2 H. & 
 
 Carrington, 19 State Trials, 1062, N. 393; Haggart's Trustee v. Hope, 
 
 Lord Camden remarks: "No man 20 Fac. Dec. 371; Shaw App. Cas. 
 
 ever heard of an action against a con- 125; Aon v. McNiel, 5 Brown Sup. 
 
 servator of the peace as such." 573; Fray v. Blackburn, 3 B. & S. 
 
 Quoted. South v. The State of Mary- 576 ; Yates v. Lansing, 5 Johns. 282 ; 
 
 land, 18 How. U. S. Rep. 403; and 9 Id. 395; Randall v. Brigham, 7 
 
 see Vin. Abr. Act. Case Deceit, Q, (5, Wall. 523; Dickerson v. Fletcher, 
 
 i; Tweed v. Davis, i Hun, 255; Stuart's Canada Rep. 276; Gugy v. 
 
 Lange v. Benedict, 8 Hun, 362 ; 73 Kerr, Id. 292, and 296, note. 
 
 N. Y. 12, affirmed in U. S. Supreme ^ Thomas v. Churton, 6 Law 
 
 Court ; and see Johnston ■z'. Moorman, Times, N. S. 320; 2 B. & S. 475 And 
 
 80 Va. 131; Cooke v. Bangs, 31 semble, there would be no action al- 
 
 Fed. Rep. 640; Randall v. Brig- though the words were spoken with- 
 
 ham, 7 Wall. 535 ; Bradley v. Fisher, out probable cause. (Id) And per 
 
 13 Iii- 335; Vaugh V. Congdon, 56 Cockbum, Ch. J.: " I should not wish 
 
348 
 
 JUDGES. 
 
 [CH. IX. 
 
 of a judicial nature are imposed upon a public officer, the 
 due execution of which depends upon his own judgment, 
 he is exempt from all responsibility by action for the mo- 
 tives which influence him and the manner in which said 
 duties are performed. If corrupt, he may be impeached or 
 indicted, but he cannot be prosecuted by an individual to 
 obtain redress for the wrong which may have been done.^ 
 No public officer is responsible in a civil suit for a judicial 
 determination, however erroneous it may be, and however 
 malicious the motive which produced .it.^ No action will 
 lie for defamatory matter contained in a presentment of a 
 
 to lay down the broad proposition 
 that in no case is a judge liable for 
 words uttered by him as a judge." "A 
 public officer, who is not a mere vol- 
 unteer, but compelled to act in a ju- 
 dicial capacity, is not amenable, either 
 civilly or criminally, for a mistake in 
 law or error of judgment, when his 
 motives are untainted with fraud or 
 malice." (Teall v. Felton, i N. Y. 
 547.) And see a case against phy- 
 sicians for giving a certificate of in- 
 sanity. (Ayres v. Russell, 57 Hun, 
 282.) 
 
 Words spoken in discharge of of- 
 ficial duty are not actionable. (Goode • 
 now V. Tappan, 1 Ham. 60.) Aliter, 
 if spoken under pretense of official 
 duty, wantonly and with malice. The 
 question of intention is to be left with 
 the jury. {Id.) Thus, in an action 
 against the defendant, a ward beadle, 
 for words spoken by him before an in- 
 quest, but not in answer to any in- 
 quiries of the jury nor in the presence 
 of the jury only, held that it was a 
 question for the jury whether the 
 words were spoken by the defendant 
 in the discharge of his official duty. 
 (Wilson V. Collins, 5 C. & P. 373.) In 
 an action for libel against one, a jus- 
 tice of the peace, for defamatory mat- 
 ter contained in an official certificate 
 by him to the grand jury, held the 
 publication was conditionally privi- 
 leged. (Sands v. Robison, 12 S. & 
 M. 704.) Words spoken by a grand 
 juror in the course of his duty as a 
 
 juryman, are privileged. (Little v. 
 Pomeroy, Ir. Rep. 7 Com. Law, 50.) 
 A report of the grand jury, under any 
 part of § 2992 of the Code of Iowa, 
 held not a privileged communication; 
 but where it was made in good faith, 
 and in the discharge of a supposed 
 public duty, it does not furnish ground 
 to sustain an action for libel. (Rector 
 V. Smith, II Iowa [3 With.], 302.) 
 What a petit juror says in the jury- 
 room concerning a matter before the 
 jury (Dunham v. Powers, 42 Vt. i), or 
 during the trial, is absolutely privi- 
 leged. (Rex V. Skinner, Lofft, 55.) 
 
 ^ Rochester White Lead Co. v. 
 The City of Rochester, 3 N. Y. 466. 
 See Cooke on Defam. 63 ; i Bish. Cr. 
 Law, §§ 914, 916, 3d ed.; Scovil v. 
 Geddings, 7 Ohio, 211. 
 
 2 Weaver v. Devendorf, 3 Denio, 
 117; Vail V. Owen, 19 Barb. 22; 
 Brown v. Smith, 24 Id. 419; and see 
 Hill V. Sellick, 21 Barb. 207; Harman 
 V. Brotherson, i Demo, 537. But an 
 officer who violates a ministerial duty, 
 though his office is primarily judicial, 
 is hable therefor. (Wilson v. Mayor 
 of New York, I Denio, 595 ; Rochester 
 White Lead Co. v. City of Rochester, 
 3 N. Y. 463.) See Everts v. Kiehl, 
 102 N. Y. 296, action against justice 
 of the peace for failing to render a 
 decision in a cause tried before him. 
 Words spoken by the mayor of a city 
 are privileged. (Rector v. Smith, 11 
 Iowa, 302.) 
 
§ 2 2 7-] JUDGES, 34g 
 
 grand jury,^ or for defamatory matter in a return by a jus- 
 tice to an appellate court.^ The plaintiff (Captain Jekyll) 
 having preferred certain charges against Colonel Stewart, 
 an officer in the same regiment with plaintiff, Colonel 
 Stewart was tried by a court martial, and the president 
 of the Court, Sir John Moore, delivered to the judge 
 advocate a written opinion as the decision of the court, 
 and in such opinion, after stating that the court found 
 Colonel Stewart not guilty of the charges imputed to 
 him, added: "The court cannot pass without observation 
 the malicious and groundless accusations that have been ' 
 produced by Captain Jekyll against an officer whose char- 
 acter, during a long period of service, has been irreproach- 
 able." For this addition to the decision, Captain Jekyll 
 brought an action for libel against the president of the 
 court. The plaintiff was nonsuited, and a new trial being 
 moved for, it was refused on the ground that the language 
 complained of formed part of the judgment of acquittal.* 
 In another case of an action brought for defamatory mat- 
 ter contained in a report of a military court of inquiry 
 appointed to investigate charges against the plaintiff, it 
 was held that the report was a privileged publication, and 
 could not be given in evidence.* So it was held that the 
 
 » Bac. Abr. tit. Libel, 445 ; F. that " he was a thief, and had been 
 
 Moore, 627 ; Hawk. PI. Cr. ch. 73, § 8 ; known to steal bee-hives and leather;" 
 
 and see observations in Sutton v. held, on appeal, that subordinate judg- 
 
 Johnstone, i T. R. 493. es were responsible for words spoken, 
 
 * Aylesworth v. St. John, 25 Hun, if malice was clearly made out, the 
 
 156. privilege being confined only to mem- 
 
 ' Jekyll V. Moore, 2 (5 B. & P.) bers of Parliament and judges of the 
 
 New R. 341 ; 3 Esp. 63 ; and see Ken- supreme courts ; the judgment of the 
 
 dillon V. Maltby, i Car. & M. 402 ; 2 court of session, as far as the interloc- 
 
 Moo. & Rob. 438; Warden v. Bailey, utor of relevancy was concerned, was 
 
 4 Taunt. 67 ; 4 M. & S. 400. Kendil- therefore affirmed, but the House not 
 
 Ion V. Maltby was questioned. Mun- being satisfied that there was evidence 
 
 ster V. Lamb, 9 Q. B. D. 588. And of malice, the cause was remitted to 
 
 where, upon a proceeding on the game another jury. (AUardice v. Robertson, 
 
 laws in Scotland, after the defendant I Dow. & Clark, 495 ; see S. C. 6 Shaw 
 
 had confessed, and had appealed to & Dun. 242 ; 7 Id. 691 ; 4 Wil. & 
 
 the leniency of the court for a mitiga- Shaw App. Cas. 102; Pratt v. Gard- 
 
 tion of the penalty, it was asserted by ner, 2 Cush. 63.) 
 the defendants, two of the justices, * Oliver i/. Bentinck, 3 Taunt. 456; 
 
350 JUDICIAL OFFICERS. [CH. IX. 
 
 defendant, being governor in council of Fort St. George, 
 was justified in publishing, according to the fact, that the 
 court of directors had resolved to dismiss the plaintiff 
 from the service for a gross violation of the trust reposed 
 in him as commanding officer of the Molucca Islands, and 
 that he [the defendant] had been ordered to erase his 
 name from the army list.^ 
 
 § 228. With regard to the right of a judicial officer, 
 we suppose a difference exists between a judge of a court 
 of record and a judge of a court not of record, or one who 
 is not, indeed, a judge in the strict sense of the term, but 
 who merely executes judicial functions ; as respects the 
 first, his being a judge, without more,, constitutes a com- 
 plete defense to an action for anything said or written by 
 him as such judge (§ 227); but as respects the second, the 
 privilege arises only in cases in which he had jurisdic- 
 tion.^ " If magistrates while occupying the bench, un- 
 der pretense of giving advice, publicly hear slanderous 
 complaints over which they have no jurisdiction, although 
 their names may be in the commission of the peace, a 
 report of what passed before them is as little privileged as 
 if they were illiterate mechanics in an ale-house."^ 
 
 see Dawkins v. Ld. Paulet, Law Rep. to which the courts of law ought not 
 
 5 Q. B. 94. This case was not fol- to interfere. (Holbrow v. Cotton, 9 
 
 lowed in Maurice v. Worden, 54 Md. Quebec L. R. 105.) See § ma, post. 
 
 233- ^ Estopinal v. Peroux, 37 La. Ann. 
 
 ' Home V. Bentinck, 4 Moore, 563 ; 477. 
 
 8 Price, 226 ; and Anderson v. Hamil- » Campbell, Ch. J., Lewis v. Levy, 
 
 ton, 8 Price, 244, note ; Stace v. Grif- i El. B. & E. 537 ; 36 Law jour. Rep. 
 
 fith, 20 I<aw Times, N. S. 197; Law 282 Q. B. ; and see, as to necessity of 
 
 Rep. 2 Priv. C. C. 420. A communi- tribunal having jurisdiction, Hosmer 
 
 cation to a governor respecting an v. Loveland, 19 Barb, in; Howard 
 
 officer under his command is quasi 7/. Thompson, 21 Wend. 319; King z/. 
 
 judicial, and privileged. (Gray v. Root, 4 Wend. 113; O'Donaghue -v. 
 
 Pentland, 2 S. & R. 23 ; 4 S. & R. McGovern, 23 Wend. 26 ; Hastings v. 
 
 420.) The question as to whether an Lusk, 22 Wend. 410; Fawcett v. 
 
 officer is justified in animadverting Charles, 13 Wend. 473 ; Harrison v. 
 
 upon the conduct of a soldier under Bush, 5 Ell. & Bl. 344; Milam v. 
 
 his command, is a question of a mili- Burnsides, \ Brev. 295; Maloney v. 
 
 tary character to be decided by the Bartley, 3 Camp. 210; McGreg6r v. 
 
 military authorities, and one in relation Thwaites, j B. & C. 24. A magistrate 
 
2 29.] 
 
 REPORTS OF TRIALS. 
 
 351 
 
 § 229. Independently of any statute, certainly in the 
 State of New York, and probably in every other State, 
 " the publication of the proceedings upon a judicial trial, 
 fairly reported and without express malice, is not action- 
 able."^ The like rule obtains in England, but as both 
 
 Tvho has no jurisdiction, by reason of 
 his mistake as to the law, and not 
 merely a mistake as to the facts, is 
 liable for his acts. (Houlden v. Smith, 
 14 Q. B. 841; Calder v. Halket, 3 
 Moore Pri. C. C. 28 ; Kirby v. Simp- 
 son, 10 Ex. [H. & G.] 358; Gelen v. 
 Hall, 2 H. & N. 379.) In England 
 there are several statutes protecting 
 magistrates in cases where they act 
 without jurisdiction. 
 
 1 Edsall V. Brooks, 17 Abb. Prac. 
 R. 221 ; 26 How. Prac. R. 426. In 
 New York, it is provided by Code Civ. 
 Pro., § 1907: An action, civil or crim- 
 inal, cannot be maintained against a 
 reporter, editor, publisher, or proprie- 
 tor of a newspaper for the publication 
 therein of a fair and true report of any 
 judicial, legislative, or other public 
 and official proceedings, without prov- 
 ing actual malice in making the report. 
 § 1908. The last section does not ap- 
 ply to a libel contained in the heading 
 of the report, or in any other matter 
 added by any person concerned in 
 the publication, or in the report of 
 anything said or done at the time and 
 place of the public and oflBcial pro- 
 ceedings which was not a part thereof. 
 This is in effect a re-enactment of the 
 law of 1854, ch. 130. 
 
 In England a private person is as 
 fully protected in publishing a report 
 of judicial proceedings as a newspaper. 
 (Mellissich v. Lloyds, 25 Weekly Rep. 
 353.) Where one not a newspaper 
 reporter published a fair report of a 
 judicial trial, but the jury found the 
 publication was made not to inform 
 the public but to injure or annoy 
 plaintiff, it was held there was no 
 privilege. (Stevens v. Sampson, 5 Ex. 
 Div. 120; and Salmon v. Isaacs, 20 
 Law Times, N. S. 885.) In Hart v. 
 Townsend, 67 How. Prac. Rep. 88, 
 the' alleged libel was a communication 
 by a newspaper correspondent, and 
 
 the judge at the trial ruled that if the 
 communication was made in good 
 faith and honest belief in its truth it 
 was privileged. 
 
 On the question of mistake in re- 
 porting the contents of a legal docu- 
 ment, it is error to charge that such 
 care as reporters usually use is the 
 standard by which to determine the 
 newspaper's liability. Reporters, like 
 every one else, must use such degree 
 of care as is reasonably sure to pre- 
 vent mistake. (Park v. Detroit Free 
 Press Co. 40 No. West. Rep. 731) 
 
 A publication concerningattorneys' 
 conduct of a case, reflecting upon their 
 honesty, is not in the nature of a re- 
 port of a proceeding, and is not privi- 
 leged. (Ludwig V. Cramer, 53 Wis. 
 
 I03-) 
 
 An ex parte affidavit to procure a 
 search warrant held within the statute. 
 (Ackerman v. Jones, 37 Superior Ct. 
 Rep. [5 Jones & S.] 42.) A report of 
 a proceeding before a grand jury was 
 held not within the statute. (McCabe 
 V. Cauldwell, 18 Abb. Prac. Rep. 
 
 377-1 
 
 The publication of a judgment, rec- 
 ord, or the transcript of a judgment, 
 is privileged. (Cosgrave v. The Trade 
 Auxiliary Co. 8 Ir. Rep. Com. Law, 
 349; and see Jones v. McGovern, I 
 Id. 681.) But such a publication after 
 a judgment has been satisfied, is not 
 justified by showing that such a judg- 
 ment once existed. (McNally v. Old- 
 ham, 8 Ir. Jur. N. S. 86.) Plaintiff, a 
 hatter, against whom judgment had 
 been recovered, the judgment remained 
 unsatisfied pending an appeal ; the ap- 
 peal was subsequently abandoned, and 
 the judgment satisfied, but the fact of 
 satisfaction was not entered upon the 
 register. Defendants were publishers 
 of a bi-monthly trade newspaper 
 called The Hatters' Gazette. In a 
 column headed " The Gazette," ap- 
 
352 
 
 REPORTS OF TRIALS. 
 
 [CH. IX. 
 
 there and in New York some limitations are imposed 
 upon the rule, it is necessary, in order to show in what 
 these limitations consist, to examine somewhat in detail 
 the authorities upon the subject. The initial principle 
 seems to be that the public good requires that the pro- 
 ceedings in courts of justice should be conducted openly. 
 Accordingly it is in New York provided by statute that 
 " the sittings of every court within this State shall be pub- 
 lic, and every citizen may freely attend the same." ^ Al- 
 though there is no such law in England, it is the custom 
 there to hold the courts with open doors.^ And it is said 
 to be a rule of law that " every one is supposed or pre- 
 sumed to be cognizant of the proceedings in the courts of 
 justice," ^ and hence " it is of great consequence that the 
 public should know what takes place in the courts." * A 
 publication of the proceedings of a court " only extends 
 
 peared a list of judgments in which 
 the name of plaintiff, with the judg- 
 ment against him, was inserted. 
 Plaintiff brought action for libel, alleg- 
 ing by innuendo that the insertion of 
 his name in that column implied that 
 the judgment remained unsatisfied, 
 and that he was unworthy of credit. 
 Defendants denied the innuendo. 
 Held that the publication was capable 
 of being defamatory, and the jury 
 found a verdict for the plaintifT. On 
 appeal, held that the meaning of the 
 allegation was properly left for the 
 jury, and that the jury having found 
 such to be its meaning, together with 
 the fact that the statement was not 
 true, the statement as published was 
 a libel. (Williams v. Smith, 22 Q. B. 
 D. 134; 39 Alb. L. J. 247.) A judg- 
 ment was recovered against C. E. 
 Woodruff. Defendant by mistake 
 published that it had been recovered 
 against plaintiff, C. T. Woodruff. 
 Held, C. T. Woodruff could not recov- 
 er unless upon proof of special dam- 
 ages. (Woodruff V. The Bradstreet 
 Co. 35 Hun, 16.) See note 3, p. 242, 
 ante. 
 
 1 2 Rev. Stat. 274, §1. " No law 
 
 insures the publicity of the courts of 
 justice, either in England or the Unit- 
 ed States." (Lieber on Civil Liberty, 
 134, ed. of 1859.) 
 
 2 The Divorce Act (20 & 21 Vict. ch. 
 85) provides for hearing certain cases 
 in private, and (ii & 12 Vict. ch. 42) 
 permits justices of the peace to hear 
 certain cases in private. In Andrews v. 
 Raebum, 9 Ch. App. 522, it was held 
 that no hearing of a cause in the High 
 Court of Justice would be had unless 
 by consent of both parties, except 
 where lunatics or wards of court were 
 concerned. In Nagle-Gillman v. Chris- 
 topher, 4 Ch. l5iv. 173, held there 
 was no power to hear cases in private, 
 even by consent, except where luna- 
 tics and wards were concerned, and 
 cases where the whole object of the 
 suit would be defeated by a pubfic 
 trial. By II & i2 Vict. ch. 43, places 
 where proceedings of a summary char- 
 acter are carried on shall be deemed 
 an open court. 
 
 * Willard's Eq. Juris. 251. 
 
 * Campbell, Ch. J., Hearne v. 
 Stowell, 12 Adol. & El. 719; 4 Per. & 
 D. 696. 
 
§ 22g.J REPORTS OF TRIALS. 353 
 
 that publicity which is so important a feature of the ad- 
 ministration of the law in England, and thus enables to be 
 witnesses of it not merely the few whom the court can 
 hold, but the thousands who can read the report,"^ and 
 " we ought to make as wide as possible the right of the 
 public to know what takes place in a court of justice." '^ 
 It is conceded that some " inconveniences and mischief '' 
 result, or may result, from the publication of the proceed- 
 ings in courts of justice,^ but " the balance of public bene- 
 fit from the publicity is great." * " Those who are present 
 hear all [that takes place], relevant or irrelevant, and those 
 who are absent may . . have all that is said reported 
 to them. . . When once you establish that a court is a 
 public court, a fair and bona fide report of all that takes 
 place there may be published.^ For being a true account 
 of what took place in a court of justice, which is open to 
 all the world, the publication of it [cannot be] unlawful."® 
 But, " it must not be taken for granted that the publica- 
 tion of every matter which passes in a court of justice, 
 however truly represented, is under all circumstances and 
 with whatever motive published, justifiable; but that doc- 
 trine must be taken with some grains of allowance."^ For 
 as a judicial proceeding is privileged on principles of pub- 
 lic convenience, the privilege is limited in respect to the 
 subject-matter of the report, and as to the manner of the 
 reporting,^ and the " condition necessarily annexed to the 
 immunity is, that the proceeding be fairly, impartially and 
 correctly reported, and even in that case it will be for the 
 
 ^ Wilde, B., Popham v. Pickburn, " Flint v. Pike, 4 B. & C. 473, Lit- 
 
 7 Hurl. & N. 891 ; see Lewis v. Levy, tledale, J. 
 
 E. B. & E. 537; Usill V. Hales, L. R. * Campbell, Ch. J., Hearne v. 
 
 3 C. P. D. 319. On its being re- Stowell, 12 Adol. & El. 718; 4 Per. 
 
 marked to Lord Mansfield, that few & D. 696. 
 
 persons attended the courts merely to » Bramwell, B., Ryalls v. Leader, 
 
 watch the proceedings, he replied : Law Rep. i Ex. 298. 
 " No matter, we sit every day in the « Eyre, Ch. J., Curry v. Walter, i 
 
 newspapers." B. & P. 525. 
 
 2 Pollock, Ch.B., Ryalls z/. Leader, ' Stiles v. Nokes, 7 East, 493. 
 
 Law Rep. i Ex. 298. ' i Starkie on Slander, 263. 
 
 33 
 
354 REPORTS OF TRIALS. [CH. IX. 
 
 court to consider whether it was lawful to publish it." ' 
 To entitle a publication to the privilege of § 1907, Code 
 of N. Y. Civ. Pro., as a fair and true report of a judicial 
 proceeding, the publication must be fair and not garbled 
 so as to produce misrepresentations, and must not, by sup- 
 pression of some portion of the proceedings, leave a false 
 or unjust impression. It need not be a verbatim report, 
 nor embrace the entire proceedings, but may consist of 
 condensed or abridged statements thereof.* " Matters may 
 appear in a court of justice that may have so immoral a 
 tendency, or be so injurious to the character of an individ- 
 ual that their publication would not be tolerated." * And 
 therefore it is said, " There is no privilege when the subject- 
 matter is blasphemous or defamatory of an individual^* 
 Thus where on the trial of Carlile for publishing Paine's 
 Age of Reason, the defendant read the whole of the 
 book to the jury, and afterwards his wife published a full 
 report of the trial, containing an entire copy of the Age 
 of Reason as read to the jury; for this publication a 
 criminal information was granted against Mrs. Carlile, 
 the court observing that, although as a general proposi- 
 tion it was certainly lawful to publish the proceedings 
 of courts of justice, yet it must be taken with this 
 qualification, that what is contained in the publication 
 must neither be defamatory of an individual, tending 
 to excite disaffection, nor calculated to offend the morals 
 
 ' Littledale, J., Flint v. Pike, 4 B. appears to be a question presented by 
 
 & C. 473 ; I Starkie on Slander, 263. its proceeding. In Campbell v. Press 
 
 2 Salisbury v. Union & Advertiser Pub. Co. MS., Kings County Circuit, 
 Co. 45 Hun, 120. In this case it was New York, June, 1885, it was held by 
 also held that the heading of a publica- Bartlett, J., that the publication in a 
 tion may be privileged, even though newspaper of a complaint made be- 
 not necessarily purporting to be part fore a police sergeant at a police 
 of a judicial proceeding, and although station-house, was privileged by § 1907 
 it does not necessarily appear that it of New York Code of Civil Procedure. 
 was so in fact, as where it consists of ^ Maule, J., Hoare v. Silverlock, 9 
 a question which, if standing alone, C. B. 20. 
 
 might be construed as libelous, but * i Starkie on Slander, 263. 
 
 which, when taken with what follows, 
 
§ 229.] REPORTS OF TRIALS. 355 
 
 of the people.^ Although in the course of a trial it may 
 become necessary for the purposes of justice to hear or 
 read matter of defamatory or of immoral tendency, yet it 
 is not competent to any persons, under the pretense of 
 publishing that trial, to re-utter or circulate such matter. 
 It is observed in the Sixth Report of the English Crimi- 
 nal Law Commissioners, that these qualifications destroy 
 all the supposed privilege. Our explanation is this: 
 Truth is not a defense to a criminal prosecution for libel, 
 and therefore where a report of a trial contains blasphe- 
 mous, indecent, or defamatory matter, it is not the less the 
 subject of a criminal prosecution because it is a fair or true 
 report of a judicial proceeding. In a subsequent case,* 
 Maule,J.,said : " I think it is impossible at this day to say 
 that a fair account of proceedings in a court of justice, not 
 being ex parte, but on the hearing of both sides, is not, 
 generally speaking, a justifiable publication. I do not lay 
 it down as a universal proposition ; but, as a general rule, 
 it may be assumed that the publication of a fair account of 
 what passes in a court of justice, not ex parte, is justifiable 
 unless there is something to take it out of that rule." 
 " No case has decided that a report of proceedings in a 
 court of justice implicating the reputation of a third per- 
 son is under any (all) circumstances privileged."^ '' There 
 is no dictum to be met with in the books, that a man, 
 under the pretense of publishing the proceedings of a 
 court of justice, may discolor and garble the proceedings 
 by his own comments and constructions, so as to effect the 
 purpose of aspersing the character of those concerned.!'* 
 But we ought to protect a fair and bona fide statement of 
 
 1 Rex V. Carlile, 3 B. & Aid. 167. Ex. 298; and see Pittock v. O'Neill, 
 The publication of a fair report of 63 Penn. St. Rep. 253. 
 
 obscene matter is not privileged. * Spencer, J., Thomas v. Cross- 
 
 (Steele v. Brannan, Law Rep. 7 C. P. well, 7 Johns. 264; and see Rish Allah 
 
 268.) Bey V. Whitehurst, 18 Law Times, 
 
 2 Hoare v. Silverlock, 9 C. B. 20. N. S. 615. 
 
 3 Ryalls V. Leader, Law Rep. i 
 
356 
 
 FAIR REPORT. 
 
 [CH. IX. 
 
 the proceedings in a court of justice,* and perhaps the 
 result of the authorities is, that a fair report of a trial or a 
 procfeeding in a court of justice, conducted publicly in 
 the presence of the parties concerned, is conditionally 
 privileged.* 
 
 § 230. When it is said that a fair report of a trial in a 
 court of justice is privileged, what is meant by a fair re- 
 port? In one case it is said : ".//^a party is to be allowed 
 to publish what passes in a court of justice, he must pub- 
 lish the whole case, and not merely state the conclusion 
 which he himself draws from the evidence,"^ and where in 
 a report of proceedings under a commission of lunacy, it 
 was stated, " The plaintiff's testimony, being unsupported, 
 failed to have any effect upon the jury. . . Mr. Jervis 
 commented with cutting severity on the testimony of Mr. 
 O.," the statement was held not privileged, and it was said 
 that the proceedings themselves ought to have been set 
 out, not merely the result of them.* Yet again it has been 
 
 • Ryalls V. Leader, Law Rep. i 
 Ex. 298. 
 
 " A fair account of what takes 
 place in a court of justice is privi- 
 leged. (Hearne v. Stowell, 12 Add. 
 & El. 718; 4 Per. & D. 696; Turner 
 V. Pullman, 6 Law Times Rep. N. S. 
 130; Rex V. Wright, 8 T. R. 298; 
 Chalmers v. Payne, 2 C. M. & R. 1 56 ; 
 Cincinnati, &c. Co. v. Timberlake, 10 
 Ohio St. 548 ; Flint v. Pike, 4 B. & C. 
 84; Saunders v. Mills, 6 Bing. 213; 
 3 M. & P. 520; Lewis V. Levy, i El. 
 B. & E. 537 ; Andrews v. Chapman, 
 
 3 C. & K. 286; Smith v. Scott, 2 C. & 
 K. 580.) 
 
 8 Abbott, Ch. J., Lewis v. W^alter, 
 
 4 B. & Aid. 612. See anie, § 229. 
 
 * Roberts v. Brown, 10 Bing. 519; 
 4 M. & Sc. 407 ; and see Delegal v. 
 Highley, 3 Bing. N. C. 950. Where 
 the matter complained against pro- 
 fessed to be a report of proceedings in 
 a court of justice, did not profess to 
 state facts as deposed to by the wit- 
 ness, but only as stated by the counsel 
 for the prosecution— held not to be 
 
 a fair report, and not privileged. 
 (Saunders v. Mills, 6 Bing. 213; 3 M. 
 & P. 520.) And where the report 
 stated that the evidence before the 
 magistrate entirely negatived the story 
 of the plaintiff, which story was the 
 statement of the plaintiff in which the 
 imputed perjury was contained— held 
 not to be privileged ; and a plea justi- 
 fying this report on the ground that 
 it was a fair and correct report of the 
 proceedings which had taken place, 
 was held bad after verdict. (Lewis 
 V. Levy, i Ellis, B. & E. 537.) The 
 editor of a newspaper has the right to 
 publish the fact that an individual has 
 been arrested, and upon what charge, 
 but he has no right while the charge 
 is in the course of investigation before 
 the magistrate, to assume that the 
 person accused is guilty, or to hold 
 him out to the world as such. (Usher 
 V. Severance, 20 Maine, 9; see Wood- 
 gate V. Ridout, 4 Fost. & F. 202; 
 Kane v. Mulvany, 2 Ir. Com. Law R. 
 402.) 
 
§ 230.] FAIR REPORT. 357 
 
 said, that an abridged report may be a "fair report,"^ and 
 where in an action against the publisher of a newspaper 
 for a libel, on the plea of not guilty, it appeared that the 
 libel purported to be the account of a trial of a former 
 action, brought by the present plaintiff against other par- 
 ties for a libel, and after stating the libel in the original 
 action, and the facts proved by the then defendants, and 
 the summing up of the judge, it stated that the jury found 
 a verdict for the plaintiflF, with ;^3o damages. No evi- 
 dence was given as to any such trial having taken place in 
 fact, or whether the report was fair or not. It was left to 
 the jury to say whether the report, although it contained 
 some allegations injurious to the plaintiff, was, if taken 
 altogether, with the statement of the verdict being in his 
 favor, injurious to the plaintiff on the face of it; and the 
 jury having found for the defendant, the court refused a 
 rule for a new trial.* The report is not privileged if it in 
 anywise discolors or garbles the proceedings, or adds (un- 
 warranted) comments or insinuations.^ As where the re- 
 port was headed "Shameful conduct of an attorney,"* or 
 " How lawyer Bishop treats his clients,"^ or "Extorting 
 money to hush up a complaint,"® or " Blackmailing by a 
 
 ' Turner v. Sullivan, 6 Law Times, pended for two years, held it was a 
 
 N. S. 130; Salisbury v. Union Adver- question for the jury, whether this 
 
 tiser, 45 Hun, 120. A report in was a fair representation of the re- 
 
 substance true, was said to be not port. The jury found it was not, and 
 
 privileged. (Flint v. Pike, 4 B. & the plaintiff had a verdict. (Id.; see 
 
 C. 473. This case is not now author- ante, § 213.) 
 
 ity. When that decision was made, " Chalmers v. Payne, 2 C. M. & 
 
 it was held it was for the court to R. 1 56. 
 
 consider whether it was lawful to » Thomas v. Crosswell, 7 Johns, 
 
 publish a report of its proceedings.) 264; Stiles z'. Nokes, 7 East, 493 ; S. C. 
 
 A report " outrageously wrong," is sub nom. Carr v. Jones, 3 J. P. Smith, 
 
 not privileged. (Blake v. Stevens, 4 491 ; Flint v. Pike, 4 B. & C. 473 ; 
 
 Fost. & F. 232; II Law Times. N. S. Rex v. O'Brien, Cooke & Ale. 128, 
 
 543.) Where the defendant, the pub- 136, 143. 
 
 lisher of a treatise on the " law of * Clement v. Lewis, 3 Bred. & B. 
 
 attorneys," purporting to give the 297; affirming Lewis v. Clement, 3 
 
 substance of the report of proceedings B. & Aid. 702. 
 
 against the plaintiff, an attorney, stated ' Bishop v. Latimer, 4 Law Times, 
 
 that the plaintiff had been "struck off N. S. 775. 
 
 the rolls," instead of- stating as the « Stanley v. Webb, 4 Sandf. 2i. 
 
 fact was, that plaintiff had been sus- 
 
358 
 
 FAIR REPORT. 
 
 [CH. 
 
 IX. 
 
 policeman,"^ or " Horse stealing,"^ it was held not to be 
 privileged. Where a statement defamatory of the plaintiff 
 was copied from a previous publication, and published by 
 the defendant, prefaced by the word " Fudge," the court 
 left it to the jury to say whether that word was added to 
 vindicate the character of the plaintiff, or merely to create 
 an argument in favor of the defendant, in case proceed- 
 ings should be taken against him for the publication.^ In 
 another case the report was headed " Willful and corrupt 
 perjury," and it was said by the court, " That (the heading) 
 is merely stating the charge. It may be a heading entirely 
 innocent, simply indicating what is to follow, and it would 
 be a question for the jury whether it is a fair and bona fide 
 report of the proceedings" * A report of a judicial pro- 
 
 » Edsall V. Brooks, 17 Abb. Pr. R. 
 221 ; 2 Robertson, 29; or Blackmailer, 
 Healey v. Dettra, 8 Atl. Rep. 622; 
 Robertson v Bennett, 44 Superior 
 Court (12 J. & S.), 66. 
 
 2 Mountney v. Watton, 2 B. &. Ad. 
 
 673- 
 
 3 Hunt V. Algar, 6 C. & P. 245. 
 Where the complaint was that the 
 complainant had probable cause to 
 suspect, and did suspect, that letters 
 written to him, and his property, and 
 also a check payable to his order, had 
 been feloniously taken from his safe 
 by A., at the instigation of B., a re- 
 port which stated that the complain- 
 ant alleged that important letters and 
 a check had been taken from his safe 
 by A. (plaintiff) at the instance of B., 
 that B. was arrested and the letters 
 found in his possession— the part in 
 
 italic was untrue, but the report was 
 held to be a fair one. (Ackerman v. 
 Jones, 37 Sup. Ct. [5 Jones & Sp.] 
 42.) 
 
 * Lewis V. Levy, i Ell. B. & E. 
 537. In Barber v. Bennett, MS., the 
 report of a proceeding before a magis- 
 trate was headed "Suspicion of steal 
 ing money." The defense was a fair 
 report, and on demurrer the Superior 
 Court of New York held that the head- 
 ing did not prevent the report being a 
 privileged publication . So h eld where 
 
 the head line was " Imported Re- 
 peaters ; Three Gangs Arrested. 
 Confession of one of the Captives." 
 Hodges V. Abell, Publishers of the 
 Baltimore Sun, April 2 1 , 1888. Plaint- 
 iff, together with several others, was 
 arrested on a charge of being suspic- 
 ious characters. It was believed that 
 they had come to Baltimore to vote 
 illegally. One of the men arrested 
 made a confession to that effect. The 
 men were held until the day after the 
 election, when they were discharged,- 
 no further evidence having been ob- 
 tained. 
 
 The Sun published an account of 
 the arrests, giving the statement of 
 Hodges, the report being headed, 
 " Imported Repeaters ; Three Gangs 
 Arrested. Confession of one of the 
 Captives.'' 
 
 Plaintiff claimed that the heading 
 was libelous because it stigmatized 
 Hodges as a repeater. The Sun 
 claimed that the heading simply indi- 
 cated the purport of the article, and 
 was not intended as a statement of an 
 independent fact. 
 
 The court held that the heading 
 was privileged if it was a fair comment 
 on the body of the report. 
 
 It should be left to the jury to find 
 if the publication is a fair report. 
 (Ashmore v. Borthwick, 49 J. P. 792.) 
 
§ 23I-J 
 
 PRELIMINARY PROCEEDINGS. 
 
 359 
 
 ceeding is not privileged if it contain intrinsic evidence of 
 being published with malice.^ The fact that the report 
 affects persons not parties to the proceeding, does not ren- 
 der it actionable as to them^ 
 
 A fair and accurate report of the judgment in an action 
 published bona fide and without malice, is privileged, 
 although not accompanied by any report of the evidence 
 given at the trial.^ 
 
 ^ 231. While it is considered a principle of public con- 
 venience to allow or even to encourage reports of the pro- 
 ceedings on a trial,* reports of preliminary proceedings 
 have been discouraged ® and regarded as having " a ten- 
 dency to pervert the public mind, and to disturb the course 
 of justice." ^ In England, the magistrate has the power of 
 
 1 Saunders v. Baxter, 6 Heisk. 
 (Tenn.) 369. A publication that M., 
 a witness, " whose idea of an oath ap- 
 peared in yesterday's Times, was 
 arrested after his evidence was taken 
 . . . on account of his criminal 
 evidence," and in default of bail, was 
 committed to jail, though charging no 
 particular crime, is libelous and not 
 privileged. (Godshalk v. Melzgar, 17 
 Atl. Rep. [Penn.] 215.) 
 
 * Ruohs V. Backers' Next Friend, 
 6 Heisk. (Tenn.) 395 ; Ackerman v. 
 Jones, 37 Sup. Ct. Rep. (5 Jones & S.) 
 42. 
 
 ' Macdougal v. Knight, 17 Q. B. D. 
 636. 
 
 * See Code Civ. Pro. N. Y. § 1907, 
 and note to j 229, ante. 
 
 ' The publication in a newspaper, 
 of a fair report of the contents of a 
 petition for the removal of an attorney 
 from the bar, and which was filed with 
 the clerk of the court in vacation, but 
 which had not been presented to the 
 court or entered on the docket, and 
 which included actionable allegations, 
 held not privileged. (Cowley z/. Pulsi- 
 fer, 137 Mass. 392.) So it was held 
 that the publication of pleadings or 
 other proceedings in a civil action 
 before trial was not privileged. (Park 
 
 V. Detroit Free Press Co. 40 No. West. 
 Rep 731.) 
 
 ^ Ld. EUenborough, King v. 
 Fisher, 2 Camp. 563 ; and see Charle- 
 ton V. Watton, 6 Car & P. 385; 
 Reicheltenham v. Wagon Co. 17 
 Week. R. 463 ; Tichborne v. Mostyn, 
 L. R. 7 Eq. 55 «. / also Rex v. Fleet, I 
 B. & Aid. 379, where a criminal infor- 
 mation was granted against the de- 
 fendant for publishing the minutes of 
 a coroner's inquest. It was said to be 
 highly criminal to publish ex parte 
 accounts. Courts and judicial officers 
 have always claimed and exercised the 
 right to dictate whether or not the 
 proceedings before them should be 
 published. In the time of Edward the 
 Third, Lucius de Thacstead, a notary 
 public, was committed to the Tower 
 for merely attending in court to take a 
 note of the proceedings between 
 Johannes de Bourne and Ricardus de 
 Potesgrave, and in Flint v. Pike. 4 
 Barn. & C. 473, Littledale, J., said it 
 was for the court to consider whether 
 it was lawful to publish a report of 
 the proceedings. Lord Eldon inter- 
 dicted the publication of the proceed- 
 ings on the application of the poet 
 Shelley, for the custody of his child- 
 ren. (See Memoir of Shelley, by T. 
 
360 
 
 PRELIMINARY PROCEEDINGS. 
 
 [CH. IX. 
 
 conducting preliminary examinations privately, and a re- 
 port of such a proceeding would not be privileged. But 
 
 L. Peacock, and Fraser's Magazine, 
 No. 342, 361.) So recently as 1867, a 
 justice of the Superior Court of the 
 city of New Yorlt, prohibited the pub- 
 lication of proceedings had before 
 him, and his course was approved by 
 the other justices of that court. A 
 coroner may prohibit the publication 
 of proceedings had before him (Gar- 
 nett V. Ferrand, 6 B. & C. 611), and 
 so may a committing magistrate. (Cox 
 7/. Coleridge, i B. & C. 37 ; see Borth- 
 wick on Libel, 119, 121 note; Holt on 
 Libel, ch. 9.) The cases are more 
 numerous where the publication of the 
 proceedings has been prohibited pend- 
 ing the proceedings. A disregard of 
 such a prohibition is a contempt. In 
 one case, Lord Eldon remarked that 
 when he first came into Westminster 
 Hall, the law was well understood 
 that it would be a contempt to pubhsh 
 the proceedings of the court before 
 they were finished. (Knight v. Knight, 
 1 Jac. & Walk. 167.) In Rex v. Cle- 
 ment, 4 Barn. & Aid. 218, Lord Ten- 
 terden ordered that there should be no 
 publication of the proceedings until 
 the several indictments against the 
 defendant had been tried ; and he fined 
 a newspaper proprietor ^500 for dis- 
 obedience of this order, in publishing 
 an account of the first trial before the' 
 second had begun. The courts upheld 
 the action of Lord Tenterden. Lord 
 Campbell, in his Lives of the Chief 
 Justices, vol. 3, p. 208, gives it as his 
 opinion, that this transaction tarnished 
 the fame of Lord Tenterden, and that 
 the order forbidding the pubhcation 
 was " imprudently " made. (See Rex 
 V. Gilham. M. & M. 165; Brook v. 
 Evans, 6 Jur. N. S. 1025; Felkin -v. 
 Ld. Herbert, 10 Jurist, N. S. 62.) In 
 New York, by statute (2 Rev. Stat. 
 278, § 10), " Publishing a false or 
 grossly inaccurate report of the pro- 
 ceedings of a court of record is a 
 criminal contempt." Any publication 
 prejudicing the merits of a cause 
 before it is heard is a contempt. (2 
 Atk. 479.) The validity of plaintiff's 
 marriage coming in question in a suit, 
 
 her father, pending the suit, advertised 
 in a newspaper, offered a reward to 
 any one who would produce legal 
 proof of the marriage — held a con- 
 tempt, (Pool V. Sacheverel, I P. 
 Wms. 676 ; and see Brodribb v. Brod- 
 ribb, 3 Pro. Div. 66 ; Butler v. Butler, 
 13 Id. 73.) The printers of a news- 
 paper were committed for publishing 
 that certain parties to a suit had 
 turned " affidavit men." (Roach v. 
 Garvan, 2 Atk. 469; 2 Dick. 794.) 
 In that case reference was made to the 
 case of a printer of a newspaper pun- 
 ished for publishing of a certain cause, 
 that it was " a hue and cry after 
 charitable uses," and to the case of 
 Capt. Perry, punished for printing and 
 publishing his brief before the cause 
 came on. A party was committed to 
 prison for publishing an advertisement 
 reflecting on an answer in the cause. 
 (See Cann v. Cann, 2 Dick. 795 ; Ex 
 parte Crow, 2 Turn. & Ven. Pra. 231, 
 232.) Where an injunction order ap- 
 pointing a receiver had been granted, 
 the party obtaining the order caused 
 printed copies of it to be dispersed 
 among the tenants, to prevent them 
 paying rents except to the receiver; 
 Lord Hardwicke refused to adjudge it 
 a contempt, but expressed his disap- 
 proval of the proceeding (Baker v. 
 Hart, 2 Atk. 488), as thus : " Nothing 
 is more incumbent upon courts of jus- 
 tice than to preserve their proceedings 
 from being misrepresented; nor is 
 there anything of more pernicious 
 consequence than to prejudice the 
 minds of the pubUc against persons 
 concerned as parties in causes before 
 the cause is finally heard. It has 
 always been my opinion, as well as the 
 opinion of those who have sat here 
 before me, that such a proceeding 
 ought to be discountenanced." Re- 
 peated by Sir W. Page Wood, V. C, 
 Tichborne v. Mostyn, Law Rep. 7 
 Eq. 55, n, ; and see Daw v. Eley, 
 Law Rep. 7 Eq. 49, in which case the 
 solicitor in the cause had published a 
 letter in a newspaper relating to the 
 pending suit ; on a motion to punish 
 
231.] 
 
 PRELIMINARY PROCEEDINGS. 
 
 361 
 
 if a preliminary proceeding is carried on foribus aperiis, 
 it would be privileged. We are not prepared to say that 
 
 said solicitor and editor for contempt, 
 tlie motion was granted as to the 
 solicitor and denied as to the editor. 
 (See Coleman v. West Hartlepool 
 R'wy Co. 8 Weekly Rep. 734; Ex 
 parte Jones, 13 Ves. 237; Littler z/. 
 Thompson, 2 Beav. 129; Felkin v. 
 Ld. Herbert, 10 Jurist, N. S. 62; 
 Lechmere Charlton's Case, 2 My. & 
 Cr. 316; Ex parte Smith, 21 Law 
 Times, N. S. 294; Re Cheeseman, 49 
 N.J. Rep. 115.) 
 
 The remedy of one aggrieved by 
 the publication of offensive comments 
 upon proceedings in court is by motion 
 to the court in which the proceedings 
 are or were pending, for persons con- 
 cerned in the business of a court are 
 under the protection of the court, and 
 are not to be driven to other modes of 
 remedy. (Ld. Hardwicke, in^jr^ar/^ 
 Jones, 13 Ves. 238; and see Meyers/. 
 Devries, 2 Central Reporter, 852.) 
 But where one threatened to publish, 
 during the pendency of an action, the 
 pleadings in the case, with comments 
 thereon, held that such publication 
 might be restrained by injunction. 
 (Kitcat V. Sharp, 48 L. T. N. S. 64.) 
 
 Three persons, named Hyndman, 
 Champion and Bums, were charged 
 before a police court with inciting a 
 riot (February, A. D. 1886). Pend- 
 ing the examination on that charge 
 the London Punch published a cartoon 
 representing the hanging of these 
 persons, Mr. Punch being the hang- 
 man. In the letter-press accompany- 
 ing the cartoon, the defendants were 
 indicated as " skunks " and "tigers " 
 and as '' blatant trumpeters of sedi- 
 tion, who prated a mixed mob to pas- 
 sion heat and then discreetly withdrew 
 while that passion found vent in 
 wrecking and ruffianism." Then, 
 again, " what they have done, aided 
 by disgraceful official negligence, is to 
 gfive a few London streets for a few 
 hours over to the vilest and most 
 violent form of mob-law. Of that 
 achievement they possibly are proud. 
 Verily they ought to have their re- 
 ward. Mr. Punch has pictorially rep- 
 
 resented what that reward should be 
 if they had their full deserts. " (Great 
 laughter.) Then referring to Burns, 
 the writer went on to say that " he 
 would honour the rope rather than 
 waste it. Failing such payment in full, 
 a fine of, say ;£io,ooo, to be applied to 
 the relief of the prevailing distress, 
 might approximately meet the case. 
 Mr. Hyndman and his friends being 
 put to prison with hard labour until 
 they had fairly earned that sum, so 
 that it might not be said that they at 
 least were amongst the unemployed." 
 Upon this, Hyndman, Champion and 
 Burns applied to the Queens Bench 
 Division, Ch. J. Coleridge and Justice 
 Hawkins, for the committal of the 
 editors and publishers of Punch for 
 contempt of court in publishing such 
 cartoon and accompanying letter press. 
 Lord Coleridge said there was no 
 precedent of this court exercising its 
 jurisdiction in respect of a contempt 
 of another court. Counsel for appli- 
 cants said that he could not cite a 
 precedent, but as there had been in 
 this case a flagrant interference with 
 justice the court would create one. 
 Lord Coleridge had never heard it 
 even suggested that this court would 
 imprison a man for contempt of court 
 committed in another place. The de- 
 fendants could bring an action. He 
 would express no opinion on the case 
 one way or the other, but this court 
 had no jurisdiction. Counsel said it 
 would be prejudicial to the defendants 
 if they were criticised in this way and 
 were not protected. Justice Hawkins : 
 Then you must find out a way to 
 protect them. Counsel: I should be 
 very glad of a suggestion, my lord. 
 Justice Hawkins : Oh, no. Lord Cole- 
 ridge gave judgment that the court 
 had no jurisdiction. Justice Hawkins 
 concurred, and the application was re- 
 fused. The Archbishop of Turin 
 (M. Franzoni) was tried (■23d May, 
 1850) in his absence, he refusing to 
 appear, and found guilty of an offence 
 against the respect due to the laws, 
 by publishing a circular in which he 
 
362 
 
 PRELIMINARY PROCEEDINGS. 
 
 [CH. IX. 
 
 the publication of preliminary inquiries before magistrates 
 is invariably lawful, nor are we prepared to say that the 
 
 ordered the clergy not to recognize 
 the jurisdiction of the secular tribu- 
 nals. (Forsyth on Trial by Jury, 367.) 
 
 Writing a letter to a judge that his 
 decision was unjust, and that he en- 
 deavored to conceal the facts from the 
 appellate court, held not to be a con- 
 tempt but a misdemeanor. {Re Griffin, 
 1 5 N. Y. St. Rep. 400. ) Such a letter 
 is not privileged by being marked pri- 
 vate. (Kitcat V. Sharp, 48 Law 
 Times, N. S. 64 ; see Reg. v. Faulkner, 
 2 Mont. & Ayr. 321.) 
 
 In West Virginia a statute limiting 
 the power of courts to punish for con- 
 tempts was held to be unconstitu- 
 tional. (i?ifFrew, 19 Cent. Law Jour. 
 71; and note, Id. 32; and see Story 
 V. The People. 79 111. 45 ; Morrell's 
 Case, 16 Ark. 384.) On the other 
 hand such statutes have been held 
 valid and constitutional by the courts 
 of North Carolina, 65 N. Car. 353 ; 
 Iowa, 6 Iowa, 245 : Tennessee, 5 Cold. 
 221 ; Florida, II Fla. 174; Mississippi, 
 4 S. & M. 751; Illinois, 3 Scammon, 
 395; California, 42 Cal. 412; New 
 York, s Hun, 317; loi N. Y. 245; 
 Pennsylvania, i Grant's Cases, 353 ; 
 Connecticut, Middlebrook's Cases, 113 
 Conn. ; the United States, i Kent's 
 Com. 301 ; I Wall. Jr. i, and 12 Am. 
 Dec. 180, note; and Virginia, 4 Leigh, 
 685. 
 
 Abusing the opposing attorney 
 {Re Johnson, 20 Q. B. D. 68), or parties 
 or witnesses (Smith v. Lakeman, 26 
 L. J. Ch. 305; Shaw v. Shaw, 2 Sw. 
 & Tr. 515 ; Re Mulock, 10 Jur. N. S. 
 1 188), or any officer of the court. 
 (Price V. Hutchinson, L. R. 9 Eq. 
 
 534.) 
 
 A libel on a grand jury in relation 
 to an act already done, and not cal- 
 culated directly to obstruct or embar- 
 rass the future performance of their 
 duty is not summarily punishable as a 
 contempt of court. (Story v. People, 
 79 111. 45.) It is lawful, with decency 
 and candor, to discuss the propriety 
 of a verdict. (Rex v. White, I Camp. 
 359.) Publishing disparaging com- 
 ments upon the court, or its officers. 
 
 or its proceedings, is a contempt. 
 Thus, the New York Common Coun- 
 cil, being enjoined by a preliminary 
 injunction from certain official action, 
 passed resolutions declaring the in- 
 junction illegal, proclaiming a resolu- 
 tion to disregard it, and imputing dis- 
 honesty to the judge who granted it; 
 held, the resolution was a contempt. 
 (The People v, Compton, I Duer, 512; 
 affi'd, The People v. Sturtevant, 9 N. 
 Y. 263 ; and see Morrison v. Moat, 4 
 Edw. 25.) And where an officer of a 
 corporation had a verdict against him 
 in an action for malicious prosecution, 
 which verdict was sustained by the 
 court, the corporation voted him a 
 sum of money, and passed a resolu- 
 tion to the effect that in instituting the 
 prosecution in question he had been 
 actuated by motives of public justice, 
 this was held a reflection upon the 
 court, and a contempt. (Rex v. Wat- 
 son, 2 Term R. 199.) Pending the 
 trial of one Nixon, in the Oyer and 
 Terminer, New York city, April, 1864, 
 an article appeared in the New York 
 Tribune, headed, "A judicial out- 
 rage." and which was supposed to re- 
 flect upon the conduct of the judge 
 (G. G. Barnard i presiding on the trial 
 of Nixon. The article was supposed 
 to have been written by Horace 
 Greeley, and an order issued for him 
 to show cause before Judge Barnard 
 why he should not be attached for 
 contempt. Instead of showing cause 
 he moved for a writ of prohibition, 
 which being denied, the following 
 order was made : 
 
 ' ' In the matter of Horace Greeley upon 
 an Order to show Cause why he should 
 not Antwer for a Contempt of Court. — 
 It is ordered by the court, that the said 
 Horace Greeley, now here appearing, by 
 I. T. Williams, Esq., his counsel, answer 
 (and the answer under oath is waived) the 
 following interrogations, and have until 
 Monday next, being the 25thday of April 
 inst., at II o'clock A. M.. to file answers 
 thereto, and be then heard in this court in 
 defense of the accusation that he pub- 
 lished a grossly inaccurate report of the 
 
§ 23I.J 
 
 PRELIMINARY PROCEEDINGS. 
 
 363 
 
 publication of such inquiries is invariably unlawful. We 
 strongly incline to the opinion that under the modern 
 
 proceedings of this court in the Dsiily 
 Tribune of April 14, 1S64, in the language 
 contained in and recited in interrogatory 
 the first. 
 
 " Intemgatory the First. — Did you 
 write in manuscript the following matter, 
 which appeared in page 4, in column 2, 
 thereof, in the New York Daily Tribune 
 of Thursday, April 14, 1864, to wit? 
 
 (" A judicial outrage.'' Here follows 
 the article, portions of which contain the 
 alleged contempt.) 
 
 '^ Interrogatory Second. — If not, did 
 you write in manuscript any part there- 
 of ? 
 
 " Interrogatjry Third— \l not, did you 
 see the same in manuscript or in proof 
 before it was published ! 
 
 "Interrogatory Fourth. — If not, were 
 you or not the responsible editor of the 
 Tribune on the 14th day of April, 1864 ? 
 
 " Interrogatory Fifth. — If you did not 
 write or see before publication the said 
 matter, do you know who is the author, 
 or writer, or composer thereof, or did 
 you not know that it was to be publish- 
 ed? 
 
 ■ ' Interrogatory Sixth. — If you know 
 the said author or writer, please name 
 him? 
 
 " Then follows a statement or report 
 of the transactions in court, which were 
 reported and commented on in the Tri- 
 bune, and a disclaimer from the court of 
 any complaint as to the editorial com- 
 ments, but only as to what purports to be 
 a report of the proceedings in court." 
 
 To these interrogatories Mr. 
 Greeley made and filed the following 
 statement : 
 
 " Horace Greeley, in the above-en- 
 titled proceedings referred to, protesting 
 against the jurisdiction of this court over 
 his person, and over the proceedings now 
 being taken, and insisting that they are 
 irregular and without warrant of law, and 
 further insisting that he ought not to be 
 a^ked, and cannot legally be compelled, 
 to answer questions upon a charge which 
 is in its nature criminal, and for which he 
 may be exposed to indictment, both as a 
 misdemeanor for a contempt as well as 
 for a libel, and further insisting that the 
 said article, in the order to show cause in 
 these proceedings referred to, is not a 
 report of the proceedings of a court, but, 
 on the other hand, is simply an editorial 
 
 criticism, based upon a report of such 
 proceedings contained in a newspaper 
 called the Evening Express, published 
 two days before said editorial article was 
 published, to wit, on the 12th day of April 
 instant. 
 
 '■ For answer to the interrogatories 
 fi'ed and served on him, says that he is 
 now, and ever since its foundation has 
 been, the principal editor of the news- 
 paper called the Tribune, and is one of 
 its proprietors, by being a stockholder of 
 the corporation that publishes the same. 
 That as such editor and proprietor he is 
 subject to all the responsibilities that 
 justly pertain to that relation. Believing 
 that this avowal is a substantial answer 
 to all the interrogatories propounded to 
 him; he most respectfully declines to 
 answer any questions that may expose 
 any of his associates in the editorship and 
 publication of said newspaper, to the dis- 
 cipline of this tribunal, preferring to 
 abide the consequences, be they what they 
 may." 
 
 The court being satisfied that no 
 disrespect was intended, discharged 
 Mr. Greeley. 
 
 As to contempts by publications 
 reflecting on courts, &c., see 6 Alb. 
 Law Jour. 352 ; Re Van Hook, 3 City 
 Hall Recorder, 64; Re Spooner, 5 Id. 
 109; Re Strong, Id. 9; Re Yates. 4 
 Johns. 317; 6 Johns. 337; Re Eliz. 
 Mayer, 2 Barnard. 43 ; Ex parte ]o'ats, 
 13 Ves. Jr. 237; i?^ Crawford, 18 Law 
 Jour. Q. B. 225; 13 Jur. 955; Ex parte 
 Turner, 3 Mont. D. & G. 523; Daw v. 
 Eley, Law Rep. 7 Eq. 49; Chelten- 
 ham R'y Car Co 8 Id. 580; Tichborne 
 V. Mostyn, T Id, i^\ Re Van Sandau, 
 I De Gex, 55; Birch v. Walsh, 10 Ir. 
 Law R. 93; Rex v. Lee, 5 Esp. 123; 
 Rex V. White, i Camp. 359; i Hawk. 
 PI. Cr. ch. 73 ; Re Crawford, 13 Q. B. 
 613; Starkie on Slander, by Folkard, 
 ch, xxxvi ; Moulton v. Clapham, Sir 
 W. Jones, 431 ; March on Slander, 20; 
 Hollingsworth v. Duane, J. B. Wal- 
 lace. ^^ ; Bayard v Passmore, 3 
 Yeates, 438 : Respublica v. Oswald, I 
 Dallas, 319; Richmond v Dayton, 10 
 Johns. 393; Folger v. Hoogland, 5 
 Johns 235 ; In re Bronson, 12 Id. 460; 
 The People v. Freer, i Cai. 485 ; The 
 
364 
 
 EX PARTE PROCEEDINGS. 
 
 [CH. 
 
 IX. 
 
 decisions the privilege extends to ex parte proceedings. 
 Certainly it is so in the State of New York/ in Maryland,^ 
 and in England.^ There is no distinction between one 
 court and another as respects the right of publishing reports 
 of their proceedings, provided the proceedings be had pub- 
 licly, and not ex parted And where a preliminary examina- 
 tion is publicly conducted, in the presence of the accused, 
 there seems to be no reason why the same rule should not 
 apply to such a proceeding, as to a trial. AX has been said 
 no privilege can be claimed for a report of an ex parte 
 proceeding,^ but probably it is now settled that a fair re- 
 
 People V. Few, 2 Johns. 290 ; 2 Stark. 
 Slander, ch. xiii ; Re Courtney, 6 The 
 Reporter, 474; McCormick v. Sheri- 
 dan, 20 Pac. Rep. 24; Watson v. 
 The People, ibid. 329: Re Gary, 10 
 Fed. Rep. 629: Re Ferry, 128 U. S. 
 289; Solicitor's Journal, 1864, p. 142; 
 An Inquiry into the Doctrine lately 
 Propagated concerning Attachments 
 for Contempts, &c., by an English 
 Constitution Crown Lawyer, London, 
 1769. (Historical Soc. Lib. N. Y.) 
 See a pamphlet entitled Rights of 
 Corporations and Reporters, published 
 at Columbia, South Carolina, A. D. 
 1857, containing the report of the case 
 of Robert W. Gibbs v. Edward I. 
 Arthur and John Burdell. The city 
 council held, in 1855, a public meeting. 
 The plaintiff, the editor of one of the 
 city papers, being present, was asked 
 by the mayor whether he had come to 
 take notes of the proceedings. .The 
 plaintiff answering in the affirmative, 
 the mayor ordered him to leave, which 
 on the plaintiff's refusing to do, he 
 was, on the mayor's orders, ejected by 
 a police officer. The plaintiff sued 
 the mayor and the officer, and the de- 
 fense interposed was, in the first in- 
 stance, that the mayor acted on a reso- 
 lution of the city council forbidding the 
 presence of reporters at their meetings, 
 and subsequently the defense was set 
 up that the city council had author- 
 ized the publication of their proceed- 
 ings in a paper other than that v/ith 
 which the plaintiff was connected. 
 Both these defenses failed, and the 
 
 plaintiff recovered damages for being 
 ejected. 
 
 • Salisbury v. Union & Adv. Co. 9 
 N. Y. St. Rep. 465 ; see ante, note to 
 
 § 329- 
 
 2 McBee v. Fulton, 47 Md. 403. 
 
 ^ Three men complained ex parte 
 to a magistrate respecting plaintiff; 
 the magistrate denied their application 
 on the ground that the remedy was by 
 a civil not a criminal procedure. De- 
 fendant pubhshed a report of this ap- 
 plication, which the jury found to be 
 a true report, and it was held to be a 
 privileged publication. (Usill v. Hales, 
 3 G. P. D. 319.) Publication of a 
 statement made by a justice of what 
 had been said by persons applying to 
 him for a warrant, such statement not 
 appearing in any affidavit, nor were 
 made as part of a hearing, held not 
 privileged. (McDermott -v. Ev. Jour. 
 Assn. i4Vroom [N. J.], 488; 15 Id. 
 430.) Statement made after proceed- 
 ing terminated not privileged. (Curtis 
 V. Perkins, 66 Barb. 610; Lyman v. 
 Cowing, 6 L. R. Ir. Q. B. 259.) 
 
 * Lewis V. Levy, 36 Law Jour. R. 
 Q. B. 282; I EL B. &E. 537. 
 
 ' Publishing the contents of an ex 
 parte affidavit, made to obtain the 
 plaintiff's arrest, is not privileged as a 
 report of judicial proceedings. (Cin- 
 cinnati, &c. Go. V. Timberlake, 10 
 Ohio St. 548.) Report of ex parte 
 preliminary proceedings not privi- 
 leged. (Duncan v. Thwaites, 3 B. & 
 C 556: 5 D. & R. 447; Rex V. Lee. 5 
 Esp. 123; Curry v. Walter, i B. & P. 
 
§ 23I-] 
 
 EX PARTE PROCEEDINGS. 
 
 365 
 
 port of a proceeding before a magistrate, not being ex 
 parte, is privileged. It being shown that the proceeding 
 is judicial, in a public court, and not ex parte, a fair re- 
 port of it is privileged. Thus, in an action for libel, it 
 appeared that the defamatory matter was published in a 
 fair report of proceedings before two judges at chambers, 
 on applications under the bankrupt act, 5 & 6 Victoria, 
 chapter 122, and it was held that the proceeding was ju- 
 dicial, and the report privileged.^ And in respect to pro- 
 ceedings in jail under the same statute, and before a regis- 
 trar in bankruptcy, it was held that the jail was a public 
 court, and the proceedings judicial, and, the report being a 
 fair one, was privileged, although it affected a person not a 
 party to the proceedings.* A committee of the House of 
 
 523; Huff V. Bennett, 4 Sandf. 127; 
 Stanley v. Webb, 4 Sandf. 21; 8 N. Y. 
 209; Matthews v. Beach, ; Sandf. 
 256; Hoare z'. Silverlock, 9 C. B. 20; 
 Ackerman v. Jones, 37 Superior Ct. 
 Rep. [5 Jones & S.] 42.) It was held 
 by Martin, J., in Pinero v. Goodlake 
 (15 Law Times, N. S. 676), that a fair 
 report of proceedings before a magis- 
 trate was privileged. 
 
 1 Simpson v. Robinson, 12 Q. B. 
 511 ; Smith v. Scott, 2 Car. & K. 580. 
 * Ryalls V. Leader, Law Rep. i 
 Ex. 296. Reports of proceedings in 
 the bankruptcy court said to be privi- 
 leged. (Behrens v. Allen, 3 Fost. & 
 F. 135; and by Cockburn, Ch. J., in 
 Wason V. Walter, Law Rep. 4 Q. B. 
 93.) "Our law of libel has, in many 
 respects, only gradually developed it- 
 self into anything like a satisfactory 
 and settled form. The full liberty of 
 public writers to comment on the 
 conduct and motives of public men 
 has only in very recent times been 
 recognized. Comments on govern- 
 ment, on ministers and officers of state, 
 on members of both Houses of Parlia- 
 ment, on judges and other public func- 
 tionaries, are now made every day, 
 which half a century ago would have 
 been the subject of actions or ex of- 
 ficio informations, and would have 
 brought down fine and imprisonment 
 
 on publishers and authors. Yet who 
 can doubt that the public are gainers 
 by the change, and that, though in- 
 justice may often be done, and though 
 public men may often have to smart 
 under the keen sense of wrong inflict- 
 ed by hostile criticism, the nation 
 profits by public opinion being thus 
 freely brought to bear on the dis- 
 charge of public duties ? Again, the 
 recognition of the right to publish the 
 proceedings of courts of justice has 
 been of modem growth. Till a com- 
 paratively recent time the sanction of 
 the judges was thought necessary 
 even for the publication of the de- 
 cisions of the courts upon points of 
 law. In quite recent days judges, in 
 holding publication of the proceedings 
 of courts of justice lawful, have thought 
 it necessary to distinguish what are 
 called ex parte proceedings as a prob- 
 able exception from the operation of 
 the rule. Yet ex parte proceedings 
 before a magistrate, and even before 
 this court, as, for instance, on applica- 
 tions for criminal informations are 
 published every day, but such a thing 
 as an action or indictment founded on 
 a report of such an ex parte proceed- 
 ing is unheard of, and, if any such ac- 
 tion or indictment should be brought, 
 it would probably be held that the 
 true criterion of the privilege is not 
 
366 JUDICIAL PROCEEDINGS. [CH. IX. 
 
 Lords is a public court; a report of their proceedings is 
 privileged/ and so is a report of testimony taken before an 
 investigating committee of Congress.^ A report of the 
 proceedings before a grand jury M^as held not to be privi- 
 leged.* The register of protests of bills and notes in 
 Scotland, established by statute, was held a public docu- 
 ment, to which every one had a right of access, and the 
 publication of which was privileged.* Where one who 
 had been convicted of murder and sentenced to death, 
 while on the scaffold, and just before his execution, made a 
 speech, in which he reflected upon one of the counsel who 
 defended him on his trial, it was held that a report of this 
 speech, published in New York by the defendant, in a news- 
 paper of which he was editor, was not privileged either at 
 common law or by the statute.'' 
 
 § 232. Where the judicial proceeding is public, and 
 not ex parte, the report of what takes place is not the 
 less privileged because published pending the proceeding, 
 and before it has terminated; thus where a declaration for 
 libel set out, in three separate counts, reports of three sep- 
 arate days' proceedings, respectively (on two adjourn- 
 
 whether the report was or was not ex missed from his situation under said 
 parte, but whether it was a fair and commissioners, as inspector of hack- 
 honest report of what had taken ney carriages, for fraud in his ac- 
 place, published simply with a view to counts, held not privileged. (Jackson 
 the information of the public, and in- v. Mayne, 19 Law Times, N. S. 399.) 
 nocent of all intention to do injury to A publication of a report of an in- 
 the reputation of the party affected." spector of charities, under the chari- 
 
 1 Kane 7j. Mulvany, 2 Ir. Com. table trust act, held not to be privi- 
 Law, 402. leged. (Cox v. Feeney, 4 Fost. & F. 
 
 2 Terry v. Fellows, 21 La. An. 13.) 
 
 375- * Fleming v. Newton, I Ho. of L. 
 
 a McCabe v. Cauldwell, 18 Abb. Cas. 363. See ante, note i, p. 351. 
 Pr. R. 377. As to report of a coroner's « Sanford v. Bennett, 24 N. Y. 20. 
 
 inquest, see East v. Chapman, M. & See statute referred to in note to 
 
 M. 46. The publication of a report § 229, ante. If a highwayman shall 
 
 of commissioners appointed to inquire at the gallows arraign the justice of 
 
 into corporations, held not to be privi- the law, and of those who condemned 
 
 leged. (Charlton v. Walton, 6 C. & him, he who publishes (the highway- 
 
 P. 385.) A statement in a printed man's language) shall not go un- 
 
 sheet issued by the police commis- punished. (4 Read. Stat. Law, 154; 
 
 sioners, to members of the force, to Dig. LL, 32). 
 the effect that plaintiff had been dis- 
 
§ 233-J CHURCH MEMBERS. 
 
 Z(>7 
 
 ments), before a magistrate; the report of the first day 
 stating that the plaintiff was charged with perjury, and an 
 adjournment, but reserving the report; the report of the 
 second day also stating an adjournment in language inti- 
 mating that there would be a report of the proceedings of 
 the day to which the adjournment was; and the third stat- 
 ing the discharge of the party charged ; and the jury 
 found generally that the reports were fair and correct- 
 held, that the reports of the first two meetings did not lose 
 the privilege by reason of the proceedings there reported 
 not being final.^ And in the same case, if we correctly in- 
 terpret the report, it was held that the privilege of publish- 
 ing a report of preliminary proceedings is not lost by the 
 fact that the proceeding terminates in the discharge by the 
 magistrate of the party accused. 
 
 § 233. By becoming a member of a church the indi- 
 vidual tacitly consents to submit to the church discipline.^ 
 The proceedings of the church to enforce its discipline are 
 quasi judicial, and therefore those who complain, or give 
 testimony, or act, or vote, or pronounce the result, orally 
 or in writing, acting in good faith and within the scope of 
 the authority conferred by this jurisdiction, and not falsely 
 or colorably making such proceedings a pretense for cov- 
 ering an intended scandal, are protected by law.^ One 
 
 1 Lewis V. Levy, i El. B. & E. dismissed, and directing that the reso- 
 
 537. See Usill v. Hales, 3 C. P. D. lution be published in certain papers, 
 
 319. which publication was made. Held, 
 
 ^ Remington v. Congdon, 2 Pick. that the publication was conditionally 
 310; Jarvis v. Hathaway, 3 Johns. privileged. (ShurtlefF v. Stevens, 51 
 180; Holt on Libel, 236; Shelton v. Vt. 501.) A defamatory communica- 
 Nance, 7 B. Monr. 128; Whitaker v. tion by a rector to his curate, for the 
 Carter, 4 Ired. 461 ; see Brit. Quar. purpose of obtaining his advice as to 
 Rev. October, 1876, art. Amer. Eccl. an ecclesiastical matter, is condition- 
 Law. Plaintiff and defendant were ally privileged. (Clark v. Molyneux, 
 members of a county association of 3 Q. B. D. 237.) A priest's advice to 
 congregational ministers. At instance a parishioner to avoid a certain place 
 of defendant the association adopted where conversation contemning his 
 resolutions implying that plaintiff had religion is indulged in, held condition- 
 been guilty of certain offenses named, ally privileged, although special dam- 
 withdrawing fellowship from him age alleged. (Messire Blanchard and 
 temporarily, inviting him to appear Richard, Ramsay's App. Cas. 421 ) 
 and show cause why he should not be ^ Famsworth v. Storrs, 5 Cush. 
 
368 CHURCH MEMBERS. [CH. IX. 
 
 Miss Mary Jerom was the daughter of Quaker parents, and 
 she was educated in that persuasion. She having acted in 
 disobedience to the rules of the congregation, by frequent- 
 ing places of public diversion and otherwise, she was 
 warned to discontinue such practices, whereupon she ab- 
 sented herself from the meetings^ and declared that she no 
 longer regarded herself as one of their body. After vari- 
 ous fruitless attempts to reclaim her, the society proceeded 
 in the usual way to a sentence of expulsion, which was re- 
 duced to writing, approved at a monthly meeting, and read 
 by the defendant Hart, as clerk of the meeting, at a subse- 
 quent meeting for worship. This sentence of expulsion re- 
 cited that the prosecutrix was born of Quaker parents, and 
 educated in that society, but that, not regarding the truth 
 they professed, she had imbibed erroneous notions ; divers 
 parts of her conduct were inconsistent with a life of self- 
 denial ; and the futile attempts made to reclaim her ; then 
 declared her not a member of the society, until by repent- 
 ance she acknowledged scriptural doctrine. Miss Jerom, 
 hearing of this sentence, sent her servant to the defendant 
 for a copy, which he sent her under cover. After failing 
 in an application for a criminal information, Miss Jerom 
 procured the defendant to be indicted, tried, and convicted 
 for libel. On motion for a new trial, the court held that, 
 no express malice being shown, the jury ought to have 
 been directed to acquit the defendant, and ordered a new 
 trial.^ A vote passed by a board of trustees of a church, 
 censuring C, a former treasurer of such church, for obsti- 
 nately retaining the church funds received by him as such 
 treasurer in his hands, and refusing to pay them over, is 
 privileged ; but if published maliciously, will support an 
 
 .412; Fairchild v. Adams, 11 Cush. jury are to decide whether there be 
 
 549 ; Smith v. Youmans, 3 Hill (So. malice or not. (Jarvis v. Hathaway, 
 
 Car.), 85. If words, actionable in 3 Johns. 180; and see Whitaker v. 
 
 themselves, be spoken between mem- Carter, 4 Ired. 461.) 
 
 Tiers of the same church, in the course 1 Rex v. Hart, i W. Blacks. 386; 
 
 of their religious discipline, and with- 2 Burns' Eccles. Law, 779. 
 
 out malice, no action will lie ; and the 
 
§§ 234. 235-J PUBLIC MEETINGS. 369 
 
 action.^ A communication of a church member, com- 
 plaining of the conduct of his clergy, addressed to their 
 common superior, is privileged.^ And if a selectman, act- 
 ing in his official capacity, accuse a member of the church 
 of voting twice on the same ballot, it is privileged.* 
 
 § 234. The privilege extended to proceedings to en- 
 force church discipline applies only to cases where both 
 parties are members of the church.* A complaint, to a 
 church, against one of its members by one who is not a 
 member, is not privileged ; neither would such a com- 
 plaint by a member against one who is not a member, be 
 privileged;^ but if the party accused voluntarily submits 
 himself to the discipline of the church, all the proceedings 
 are privileged.^ Where a vote of excommunication from 
 a church has been passed, and the oifender thereby de- 
 clared to be no longer a member, a subsequent reading of 
 the sentence by the pastor, in the presence of the congre- 
 gation, is privileged.'^ 
 
 § 235. The publication of defamatory matter is not 
 privileged because made at a public meeting.^ But at 
 
 1 Holt V. Parsons, 23 Texas, 9. ' Coombs v. Rose, 8 Blackf. 155. 
 In an action for libel, the defendant A member of a lodge of masons, being 
 pleaded that the words were used on trial before one of its committees, 
 without malice, in a complaint to a plaintiff was called as a witness. 
 church, of which both parties were After he had testified, defendant 
 members, for the purpose of bringing made an affidavit impeaching plaint- 
 theplaintiffto trial before a committee iff's testimony, in which defendant 
 thereof. The plaintiff replied that the deposed that plaintiff was a man of 
 charge was made willfully and mali- bad character, and deponent would 
 ciously, to which replication the de- not believe him on oath. Neither of 
 fendant demurred. Held, that the these parties were members of the 
 replication was sufficient, although it lodge; held that the affidavit was not 
 contained no averment of want of a privileged communication. It might 
 probable cause. (Dial v. Holter, 6 have been had it been made by a 
 Ohio St. 228 ; see Hinman v. Hare, 6 member of the lodge in self-defense. 
 Cent. Rep. 44.) or against a member on trial, who 
 
 2 O'Donaghue v. McGovern, 23 would have had opportunity to meet 
 Wend. 26. it. (Nix v Caldwell, 81 Ky. 293.) 
 
 » Bradley v. Heath, 12 Pick. 163. ^ Remington v. Congdon, 2 Pick. 
 
 Words spoken by a pastor at a church 310. 
 
 meeting, concerning one of his congre- ' Farnsworth v. Storrs, 5 Cush. 
 
 gation, held to be privileged. (Klei- 412. 
 
 zer V. Symraes, 40 Ind. 562.) « Lewis v. Few, 5 Johns, i ; An- 
 
 * Shurtleff z/. Parker, 130 Mass. 293. thon, 75 ; Davison v. Duncan, 7 E. & 
 24 
 
370 PUBLIC MEETINGS. [CH. IX. 
 
 meetings of public bodies having certain duties to per- 
 form, what is said in the exercise of such duties, pertinent 
 to the matter in hand, and within the jurisdiction of the 
 meeting, is privileged. Where, at a meeting of a board 
 of public officers, the commissioners of the New York 
 Central Park, and in the course of a debate as to employ- 
 ing the plaintiff to do certain work for said commissioners, 
 the defendant, a member of the board, objected to the 
 employment of plaintiff on the ground that he had pub- 
 lished an obscene libel ; held, that the charge, being perti- 
 nent to the subject under discussion, was privileged, and 
 to entitle the plaintiff to maintain an action in respect of 
 it, he must establish that the charge was made without 
 reasonable or probable cause.^ The defendant at a parish 
 meeting for the nomination of overseers, imputed to the 
 plaintiff, who was put up for re-election, that whilst hold- 
 ing office previously, he had misappropriated the parish 
 moneys; it was held to be privileged if made bona fide? 
 A shareholder of a railway company, having summoned a 
 meeting of the shareholders, to which meeting he invited 
 the reporters to the press to attend, and at which meeting 
 he made defamatory comments on the plaintiff, one of the 
 
 Bl 229; 3 Campbell's Ch. Justices, 64, oath, to interrogatories proposed to 
 note ; see " Libel as applied to public them in another suit. The statement 
 discussion,'' 15 Quar. Law Mag. & of a voter and tax-payer that they had 
 Rev. 193. Davison v. Duncan, was perjured themselves therein, made at 
 questioned in Davies v. Duncan, 43 a town meeting held to consider their 
 Law Jour. C. P. 187. application, is privileged if made in 
 1 Viele V. Gray, 10 Abb. Pr. R. i ; good faith and without actual malice. 
 18 How. Pr. R. 550. At a meeting of (Smith v. Higgins, 82 Mass. 251.) 
 the proprietors of a fishery, a charge Where a rate-payer was unable to 
 made by one proprietor against an- attend a parish meeting, assembled to 
 other, of having violated the law reg- investigate the accounts of a parish 
 ulating the fishery, was held to be constable, and he wrote a letter to the 
 privileged. (Bennett v. Barry, 8 Law meeting, containing defamatory mat- 
 Times, N. S. 857.) The assessors of ter respecting such constable, such 
 a town having been sued, applied to letter was held /^-zwea/awV privileged, 
 the town for reimbursement of their (Spencer v. Amerton, i Moo. & Rob. 
 expenses incurred in defending, on the 470; and see § 2^9, post.) 
 ground that they were sued in their 2 George t/. Goddard, 2 Fost. & F. 
 official capacity. This was opposed 689; see Powree & Waters, Ramsey's 
 because the suit was brought against App. Cas. 707. 
 them for making false answers, under 
 
§ 235-] PUBLIC MEETINGS. 371 
 
 directors, in his connection with the company, held that 
 although they might have been privileged, if made at a 
 meeting composed only of shareholders, they were not 
 privileged at a meeting at which other than shareholders 
 were present.^ The plaintiff being one of the overseers, 
 and the defendant assistant overseer of a township, a rate 
 was made on a railway company, against which it ap- 
 pealed. Shortly before the hearing of the appeal, a meet- 
 ing of the overseers was called to consider the matter, 
 when it was resolved to abandon the rate, and a vestry 
 meeting was called to choose fresh overseers and consider 
 the propriety of removing the defendant from his office. 
 At that meeting the plaintiff imputed to the defendant 
 neglect of duty in collecting the rates, and having made a 
 rate which the overseers were obliged to give up, to which 
 the defendant retorted by saying that the plaintiff had sold 
 the rate-payers to the railway company, and had received 
 a bribe from them for that purpose. After the meeting a 
 person remarked to the defendant that he ought not to 
 have said what he did without some foundation for it; to 
 which the defendant replied that he believed there was 
 reason for thinking that the plaintiff had had communica- 
 tions with the officers of the railway company. An action 
 having been brought for the words used by the defendant 
 at the meeting, query, whether the words were spoken 
 under circumstances which rendered them a privileged 
 communication ? but held, assuming they were, there was 
 evidence of malice proper to be left to the jury.^ But it 
 was held not to be a justification of a charge of official 
 misconduct against a town officer that the charge was 
 made in open town meeting, by the defendant, an inhabit- 
 ant of the town, while animadverting on the conduct of 
 
 > Parsons v. Surgery, 4 Fost. & F. 2 Senior v. Medland, 4 Jur. N. S. 
 
 247; see Crane v. Waters, 10 Fed. 1039. 
 Rep. (Mass.) 619, where it is held that 
 a privilege exists in such a case. 
 
372 PUBLIC MEETINGS. [CH. IX. 
 
 the plaintifT as such officer, relative to a subject then before 
 the meeting, in which the defendant was interested as a 
 qualified voter.^ And where a resolution was introduced 
 into a county medical society, for the expulsion of a mem- 
 ber, upon the ground that he had procured his admission 
 by false pretenses, and without the legal qualifications, it 
 was held not to be privileged, because the society had no 
 power to expel a member for such a cause,^ Where the 
 defendant, one of the selectmen of the town, while 
 he was acting as a public officer, and at an election in 
 an open town meeting, charged the plaintiff with having 
 put two votes into the ballot-box, it was held that the 
 charge was privileged, principally on the ground that the 
 defendant had a duty to perform, and that the charge was 
 made in the performance of his duty.* It was held* that 
 defamatory matter concerning a Roman Catholic priest 
 was not privileged by the fact of its having been spoken 
 at a meeting held to petition Parliament against making a 
 grant towards the support of a Roman Catholic college. 
 
 § 236. Nor is the publication of defamatory matter 
 privileged because made in a true report of the proceed- 
 ings of a public meeting, for "there is no analogy between 
 the proceedings at a public political meeting and the pro- 
 ceedings in a court of justice ; " ^ and therefore it has been 
 held that a publication of defamatory matter, made in a 
 report of proceedings at a public meeting called to petition 
 Parliament against making a grant in support of a Roman 
 Catholic college, was not privileged." And where the de- 
 famatory matter was contained in a report of the proceed- 
 ings of a vestry meeting, it was held not to be privileged; 
 
 1 Dodds V. Henry, 9 Mass. 262. e Lewis v. Few, 5 Johns i 
 
 2 Fawcett v. Charles, 13 Wend. « Heame v. Stowell, 12 Adol. & 
 473- „. , , El. 719; 4 Per. &D. 696; Wilson z/. 
 
 s Bradley v. Heath, 12 Pick. 163. Reed, 2 Fost. & F. 149; Pierce v El- 
 ' Hearne v. Stowell, 12 Adol. & hs, 6 Ir. Com. Law R. 55; Davison 7/. 
 El. 1^9- Duncan, 7 El. & B. 231. 
 
§ 236.] PUBLIC MEETINGS. 
 
 373 
 
 thus an English statute, 18 and 19 Vict. ch. 120, provided 
 for the appointment of a medical officer in each parish, 
 who was to report from time to time to the vestry, and 
 such reports were to be published annually, in the month 
 of June. A report was made to the vestry in February, 
 and in the same month published by the defendant in a 
 newspaper of which he was the editor and proprietor, in 
 and as part of the proceedings of the vestry. This report 
 contained a charge of misconduct on the part of the plaint- 
 iff; he sued the defendant for libel, and it was held that 
 the publication being a true report of what took place at 
 the vestry did not render it privileged.^ But in another 
 case a report of the condition of town schools, made and 
 published as required by law, by the superintending school 
 committee, and charging the prudential committee of the 
 district with unlawfully employing a teacher, and putting 
 her in charge of a school, taking possession of the school- 
 house, and forcibly excluding the general committee and 
 the teachers employed by them, but not imputing corrupt 
 motives, held privileged.^ And so it was held that the 
 publication, by a member of the Massachusetts Medical 
 Society, of a true account of the proceedings of that so- 
 
 * Popham V. Pickbum, 7 Hurl. & whole country, nor was the subject- 
 N. 891. Query, would the publication matter one of general interest to the 
 have been privileged had it been made whole country; that it was not enough 
 by the defendant after the report had that plaintiff filled a public character 
 been pubUshed by the vestry, as re- of a limited kind, in a limited district, 
 quired by the statute? (/</.) At a or that the subject-matter was a mat- 
 meeting of a board of poor law ter of interest to a small portion of 
 guardians, a member of the board re- the public, or to the public in a limited 
 ported a complaint against the plaint- district. (Purcell v. Sowler, i C. P. 
 iff, the medical officer of said union, Div. 781.) 
 
 that he did not promptly respond to * Shattuck v. Allen, 4 Gray, 540; 
 calls made upon him to attend the and see Haight v. Cornell, 15 Conn, 
 sick poor requiring his attention. The 74. Where the defendant made a 
 defendants, the proprietors of a news- speech at a public meeting, and after- 
 paper, published a true account of the wards handed a copy of it to the re- 
 proceedings at said meeting, including porters, who published it in a news- 
 the said complaint ; held it was not paper, held that such publication was 
 privileged: that it was not concern- not privileged. (Pierce v. Ellis, 6 Jr. 
 ing a person whose position and char- Com. Law R. 55.) 
 acter were of general interest to the 
 
374 
 
 SEEKING REDRESS. 
 
 [CH. IX. 
 
 ciety in the expulsion of another member for a cause with- 
 in its jurisdiction, and of the result of certain suits subse- 
 quently brought by him against the society and its mem- 
 bers, on account of such expulsion, is privileged; although 
 it speaks of the expelled member as "the offender," and 
 remarks that "the society has vindicated its action in this 
 case, and its right to act in all parallel cases." ^ 
 
 § 237. The right to seek redress is not limited to seek- 
 ing it in a court of justice.^ Every one who is aggrieved, or 
 
 ' Barrows v. Bell, 7 Gray, 301. 
 
 2 Padmore v. Lawrence, 11 Adol. 
 & El. 380; 3 Per. & D. 209; Kine v. 
 Sewell, 3 M. & W. 297 ; Robinson v. 
 May, 2 J. P. Smith, 3. Semble, that 
 words spoken to a police officer en- 
 gaged in an endeavor to detect a 
 crime, are privileged. (Smith v. Kerr, 
 I Barb. 155. See, however, Dancaster 
 V. Hewson, 2 M. & R. 176.) Plaintiff 
 assaulted the defendant on the high- 
 way; defendant, meeting a constable, 
 requested him to take charge of the 
 plaintiff, and, the constable refusing to 
 arrest the plaintiff unless the defend- 
 ant would charge him with felony, the 
 defendant did so; held, on demurrer 
 to the defendant's plea setting up 
 these circumstances, that they did not 
 render the charge of felony a privi- 
 leged publication. (Smith v. Hodge- 
 skins, Cro. Car. 276 ; and see Crofoot 
 V. Allen, 2 Wend. 515; Lathrop v. 
 Hyde, 25 Wend. 448.) In Johnson v. 
 Evans, 3 Esp. 32, plaintiff, a female, 
 had been in the employ of defendant, 
 and on discharging her some differ- 
 ence arose, the defendant charging the 
 plaintiff with endeavoring to cheat 
 him respecting her wages, and said, 
 "She is a thief, and tried to rob me of 
 part of her wages." Defendant sent 
 for a constable, to give plaintiff in 
 charge, and repeated these words to 
 the constable, but did not give plaint- 
 ifT in charge; the only publication 
 proved was to the constable, and 
 plaintiff was nonsuited. In an action 
 of slander against the defendant, for 
 charging the plaintiff with theft, where 
 it appeared that the words spoken 
 
 were only expressions of suspicion, 
 founded upon facts detailed by him at 
 the time, made prudently and in con- 
 fidence to discreet persons, in good 
 faith, with a view to their aiding him 
 to detect the offender and recover the 
 property stolen, it was held that they 
 were not slanderous, but justifiable 
 and proper. (Grimes v. Coyle, 6 B. 
 Mon. 301. See Eames v. Whitaker, 
 123 Mass. 342.) The defendant hav- 
 ing some cause to suspect the plaintiff 
 of dishonesty, went to plaintiff's rela- 
 tions and made to them a charge of 
 theft against the plaintiff; and it ap- 
 pearing that the object in making the 
 communication was rather to com- 
 promise the felony than to promote 
 inquiry, or to enable the relations to 
 redeem the plaintiff's character, the 
 publication was held not privileged. 
 (Hooper v. Truscott, 2 Bing. N. C. 
 457.) The defendant, having lost 
 goods by theft, went to the plaintiff's 
 house with a police officer, and, in 
 answer to questions as to the object 
 of his visit, accused plaintiff of the 
 theft, and stated the grounds of his 
 belief. In an action of slander, held, 
 that this was a privileged communica- 
 tion, if made bona fide, unless express 
 malice were found by the jury. Nor is 
 the privilege defeated by the -fact that 
 the charges were made in the presence 
 of third parties and in an intemperate 
 manner (§ 243, post). (Brow v. Hath- 
 away, 13 Allen [Mass.], 239; see 
 Davies v. Snead, Law Rep. 5 Q. B. 
 608 ; McCann v. Benjamin, S. C. L, R. 
 [Sup. Ct. Low. Can.] 13.) In slander 
 the defamatory words consisted of a 
 
§ -^37.j 
 
 SEEKING REDRESS. 
 
 375 
 
 who has reasonable and probable cause to believe himself 
 aggrieved, may, in good faith, seek redress from any body, 
 officer, or individual, having jurisdiction^ power, or author- 
 ity to redress the wrong or supposed wrong (§ 238 a). 
 Whatever is spoken or written in such a pursuit for re- 
 dress is privileged.^ For defamatory matter published in 
 
 charge of burglary, uttered to a police 
 officer, with a request to arrest plaint- 
 iff. Plaintiff was arrested and im- 
 prisoned, but, defendant refusing to 
 make any complaint against plaintiff, 
 he was discharged. A request to 
 charge that if the arrest and imprison- 
 ment was lawful they were not evi- 
 dence of malice, was properly refused 
 because it ignored the question 
 whether defendant believed the charge 
 to be true and acted in good faith in 
 making it. (Plummer v. Johnson, 70 
 Wis. 131.) You purchased stolen 
 goods, knowing them to be stolen, 
 spoken by the chief of police, held 
 conditionally privileged. (Mayo v. 
 Sample, 18 Iowa, 306.) 
 
 ' The wife of a tradesman having 
 been informed that an assistant in her 
 husband's shop was dishonest, wrote, 
 by his request, and sent to the assist- 
 ant a letter accusing her of theft, and 
 strongly reproaching her. Held, up- 
 on an indictment for libel, that the 
 occasion was privileged, and that the 
 wording of the letter ought not, under 
 the circumstances, to be too nicely 
 criticised. (Reg. v. Perry, 1 5 Cox C. 
 C. 169.) Plaintiff and defendant were 
 guests at a shooting festival. They 
 and others competed for the first 
 prize. Each person shooting was fur- 
 nished with a score card, on which 
 was recorded his score. Plaintiff 
 claimed a score of fifty-two points, 
 and demanded the prize. Defendant 
 said, in the presence of the company, 
 "that plaintiff did not score fifty-two 
 points, that he was bluffing, that he 
 tried a bluff game before, and was a 
 swindler— he had swindled, and they 
 were glad they had caught him at 
 last." After verdict for plaintiff, on 
 appeal the court reversed the judg- 
 ment, holding defendant had the right 
 to dispute plaintiff's claim. If he had 
 
 done nothing more an action for slan- 
 der would not have been thought of; 
 adding that the plaintiff was "bluff- 
 ing," and had played a ''bluff" game 
 before, adds no force to the charge, 
 nor do the additional words, that it 
 was "a swindle," and that the plaintiff 
 had swindled before, make them ac- 
 tionable without an allegation and 
 proof of special damages. The words 
 used had reference to the score claimed 
 by plaintiff, and in the sense employed 
 they were tantamount to saying that 
 plaintiff had claimed too much, or, in 
 other words, that the claim was an 
 imposition. The words used were 
 strong and exaggerated, rude and vul- 
 gar, but not necessarily slanderous. 
 (Eislie V. Walther, 4 N. Y. Suppl. 
 385.) A statement by a theatrical 
 manager, one of a deputation to a 
 cabinet minister to prevent licensing 
 for stage plays, held privileged, and 
 that the presence of a newspaper re- 
 porter did not take away the privilege. 
 (Smith V. Musgrove, 11 Vict. Law 
 Rep. 440.) 
 
 Fahr v. Hayes, 50 N. J. Law (21 
 Vroom). 275. is an instructive case. 
 There defendant was a jeweler, of 
 whom plaintiff had bought goods. 
 Defendant missed two gold chains; 
 these were afterwards found in plaint- 
 iff's possession. He was arrested, 
 charged with stealing them, and indict- 
 ed. Plaintiff afterwards applied for 
 credit to one Thoma, and gave defend- 
 ant as a reference. Thoma applied to 
 defendant. Defendant, learning that 
 plaintiff was at Thoma's store, went 
 with Thoma, and in Thoma's store 
 defendant spoke to plaintiff, among 
 other things, " You thief ! don't show 
 your face in Maiden Lane ; you stole 
 two gold chains from my factorj-. and 
 you are indicted ! " Defendant, learn- 
 ing that plaintiff was using defendant's 
 
37^ SEEKING REDRESS. [CH. IX. 
 
 seeking relief other than from a court of justice, the action 
 is said to be analogous to an action for malicious prosecu- 
 tion,^ with a distinction or supposed distinction which may 
 be illustrated as thus : that redress for malicious prosecu- 
 tion cannot be had in an action in form for slander or libel 
 (§ 220), while for defamatory matter published in seeking 
 redress from any source other than a court of justice, re- 
 dress may be had in the form of an action for slander or 
 libel. To an action in form of slander or libel, it is a de- 
 fense to show the publication was made to a court of jus- 
 tice ; but it is not a defense merely to show that the publi- 
 cation was made upon an application for redress other than 
 to a court of justice, unless it be also shown that the fo- 
 rum addressed had jurisdiction and the application was 
 honestly made, i. e., in good faith and with reasonable and 
 probable cause. To support malicious prosecution, besides 
 showing that the prosecution has terminated, it must be 
 shown that the publication was without probable cause 
 and with malice, t. e., bad motive ; bad motive alone will 
 not support the action, if there was probable cause [§ 421, 
 post] ; while to support an action for a publication in 
 seeking redress extrajudicially, it is sufficient to show 
 
 name to obtain credit, sent a circular motive contrary to good morals ; (4) 
 
 to jewelers warning them against the express malice which will take 
 
 plaintiff. In a suit for slander plaintiff away the privilege is some motive dif- 
 
 had a verdict, which the court in banc ferent from that imputed to create the 
 
 set aside, and held: (i) Where A. ap- privilege, and being a motive contrary 
 
 plies to B. for credit, and B. seeks to good morals. A motive of indig- 
 
 from C. information as to A.'s trust- nation against A. for his supposed of- 
 
 worthiness, a conditionally-privileged fense is not against good morals, and 
 
 occasion arises for communications is not malicious per se ; (5) malice 
 
 bearing on the subject, citing King v. may be inferred from the terms of the 
 
 Patterson, 8 Cent. Rep. 357; 20 Vroom, publication, or its manner of publi- 
 
 417; (2) the circumstance that others cation, or subsequent publication, 
 
 not interested were present when the (Evening Journal Asso. v. McDer- 
 
 communication was made does not mott, 1 5 Vroom, 430.) A subsequent 
 
 necessarily take away the privilege; privileged publication, as, under the 
 
 (3) the motive which the law in such a circumstances, the circular warning 
 
 case imputes to C. is a desire to give persons not to trust A., is not evidence 
 
 true information to B., to prevent his of malice. 
 
 giving credit to A., and the question is 1 Howard v. Thompson, 21 Wend, 
 
 whether there is established any other 319; Cook v. Hill, 3 Sandf. 349. 
 
§ 237-J 
 
 SEEKING REDRESS. 
 
 in 
 
 either want of jurisdiction in the forum addressed, or 
 want of probable cause or bad motive ; for the right to 
 appeal to a court of justice is general and without refer- 
 ence to the motive wherever probable cause exists ; but 
 the right to seek redress, extrajudicially, is limited to 
 seeking it with probable cause and with a good motive 
 from a body, officer or individual having jurisdiction or 
 power to afford relief.^ In a case where the defendant 
 had written defamatory matter to the superior of the 
 plaintiff, an ecclesiastic, it was alleged in the complaint 
 that the publication was made maliciously ; the plea was 
 in effect merely that the publication was made in seeking 
 redress from an officer having jurisdiction to grant relief. 
 On demurrer, the plea was overruled, and it was held 
 that to constitute a defense, the plea should have gone 
 on and alleged reasonable and probable cause for making 
 the complaint, and that it was made with good motives.^ 
 It has been held that within the foregoing privilege are : 
 petitions to the sovereign,^ or to Parliament,* or to the 
 Legislature,^ or to the lieutenant governor of a province 
 (Canada),^ or to the governor of a State,' or to the Privy 
 Council,^ a memorial presented to a board of excise,' or 
 
 ^ Defendant having ground of where. (See Ayres v. Russell, 20 N. 
 suspicion, which afterwards proved to Y. St. Rep. 326.) 
 be unfounded, that he was being " Hare v. Meller, 3 Leon. 138; 
 robbed by one of his assistants, plaint- cited i Starkie on Slander, 254. 
 iff, made certain inquiries from two *■ Lake v. King, i Lev. 240, and 
 persons having no connection with the ante, note 3, p 329. 
 matter. To each person defendant ' Reid v. Delorme, 2 Brevard, 76. 
 said that plaintiff had robbed him, and " Stanton v. Andrews, 5 Up. Can. 
 that he would get him imprisoned. Q. B. Rep. O. S. 211. So of a corn- 
 Held not privileged. (Harrison v. munication to a Mayor of a city. 
 Fraser, 29 Week. Rep. 652.) There (Evans t-. Fraser, 4 Legal Notes, 51.) 
 are authorities which represent the ' Gray z;. Pentland, 2 S. & R. 23; 
 privilege as much wider than we have 4 Id. 420; and see Rogers v. Spald- 
 stated it. See in note 3, page 378, ing, I Up. Can. Q. B. 258; Corbett w. 
 post. Jackson, Id. 128; Larkin v. Noonan, 
 
 2 In O'Donaghue v. McGovern, 23 19 Wis. 82. 
 Wend. 26, and in Perkins v. Mitchell, » Proctor v. Webster, 16 Q. B. D. 
 
 31 Barb. 461, a distinction is made 112. 
 
 between a complaint made to a court ' Vanderzee v. McGregor, 12 
 
 of justice and a complaint made else- Wend. 545. 
 
378 
 
 SEEKING REDRESS. 
 
 [CH. IX. 
 
 a fire marshal/ or a States attorney,^ a petition to a council 
 of appointment praying the removal of the plaintiff from 
 office ; ^ a memorial to the post office department charging 
 fraud on the plaintiff, a successful bidder for post office 
 patronage ;* a letter to the secretary of war, with the in- 
 tent to prevail on him to exert his authority to compel the 
 plaintiff (an officer in the army) to pay a debt due from 
 him to defendant;^ a letter to the superior officer of the 
 plaintiff, having power to remove him, and charging him 
 with fraud in his office ; ^ a letter written to a bishop in- 
 forming him that a report was current in a parish in his 
 diocese, that the plaintiff, the incumbent of a district in 
 that parish, had assaulted a schoolmaster;'' charges pre- 
 ferred to a lodge of Odd Fellows by one member of that 
 lodge against another, and for an offense which the lodge 
 
 ^ Newfield v. Coppertnan, 1 5 Abb. 
 Pr. R. N. S. 360. 
 
 '' Vogel V. Gruaz, no U. S. 311. 
 
 ^ Thorn v. Blanchard. 5 Johns. 
 508. Where the complaint is to a 
 person competent to redress the griev- 
 ance, no action lies against the pub- 
 lisher, whether his statement be true 
 or false, or his motives innocent or 
 malicious. {Id. ; see Harrison v. 
 Bush, 5 El. & Bl. 344.) Representa- 
 tions made to the Tsung-li- Yamen, 
 the chief officer of the foreign board at 
 Pekin, held privileged. (Hart v. Von 
 Gumpach, Law Rep. 4 Pri. C. Cas. 
 439), and so of a petition for removal 
 of a sheriff. (Larkin v Noonan, 19 
 Wis. 82), or a petition to the Council 
 of the Bar. (Barthe v. Brondreault, 
 Ramsey's App. Cas. 420.) 
 
 * Cook V. Hill, 3 Sandf. 341. A 
 letter of complaint written to the post- 
 master general, bona Jide, of even im- 
 aginary grievances, would be privi- 
 leged ; and the defendant, under the 
 general issue, may show that it was 
 written under such circumstances as 
 would make it a protected communica- 
 tion. (Woodward v. Lander, 6 C. & 
 P. 548.) 
 
 5 Fairman v. Ives. 5 B. & Aid. 643 ; 
 I D. & R. 252. 
 
 « Howard v. Thompson, 21 Wend. 
 319; Blake v. Pilfold, i M. & Rob. 
 198 A petition of parties interested, 
 to the proper authorities, against the 
 appointment of one on the ground of 
 his bad character, as disqualifying him 
 for the appointment, is not actionable 
 as a libel. (Harris v. Huntington, 2 
 Tyler. 129.) A letter or petition from 
 an inhabitant of a school district, to 
 the school committee, complaining of 
 a school teacher, is conditionally 
 privileged. (Bodwell v. Osgood, 3 
 Pick. 379 ; and see Maitland v. Bram- 
 well, 2 Fost. & F. 623 ; Harwood v. 
 Keech, 6 Sup. Ct. Rep [T. & C] 665 ; 
 4 Hun, 389; Weiman v. Mabie, 45 
 Mich. 484.) 
 
 ' James v. Boston, 2 C. & K. 4. If 
 written merely with the honest inten- 
 tion of calling the attention of the 
 Bishop to a rumor in the parish, which 
 was bringing scandal on the church, and 
 not from any malicious motive; and 
 it is not material that the writer of the 
 letter did not live in the district to the 
 incumbent of which the letter refers. 
 {Id. ; and see O'Donaghue v. Mc- 
 Govern, 23 Wend. 26.) 
 
§ 237-] SEEKING REDRESS. 
 
 379 
 
 under its rules had the right to investigate.^ The trustees 
 of the College of Pharmacy in New York, appointed a 
 committee to inquire and report upon the capacity of the 
 plaintiff as drug inspector of the port of New York, with a 
 view upon the facts reported to petition for the removal of 
 the plaintiff from his office. The committee made a written 
 report to the board of trustees, who forwarded it to the 
 secretary of the treasury — held that the report was privi- 
 leged,^ and so of a report to investigate prisons.^ The 
 defendant, the deputy governor of Greenwich Hospital, 
 wrote and printed a large volume, containing an account 
 of the abuses of the hospital, and reflecting with much 
 asperity upon many of its officers ; he distributed copies 
 of this book to governors of the hospital only ; an applica- 
 tion for a criminal information against the defendant was 
 denied, with the observation that the distribution had been 
 only to persons competent to redress the grievances com- 
 plained of.* Defendant, as chairman of a committee of 
 
 ' Streety w. Wood, 15 Barb. 105. borough held the communication privi- 
 
 Where A. accused B. of theft before leged. (Barbaud v. Hookham, 5 Esp. 
 
 certain members of a lodge of Odd 109 ) 
 
 Fellows, of which both were members, ^ Van Wyck z". Aspinwall, 17 N. 
 
 and in an action for slander by A., B. Y. 190; affi'g S. C. sub nom. Van 
 
 attempted to justify what he said, by Wyck v. Guthrie, 4 Duer, 368 ; and 
 
 showing that it was the duty of Odd see Haight i/. Cornell, 15 Conn. 74. 
 
 Fellows to keep their lodge pure, the ^ Re State Prison Investigating 
 
 justification was held to be insufficient. Comm'e, 1 1 Atl. Rep. 429 ; 5 New 
 
 (Holmes v. Johnson, 11 Ired. 55.) Eng. Rep. 99. 
 
 Report of Committee of an Odd Fel- * Rex v. Baillie, 21 State Trials, i ; 
 
 lows Lodge, recommending expulsion Rex v. Staples, Andr. 229. In another 
 
 of a member for false swearing, and case, the plaintiff had been a general 
 
 made in accordance with the rules of commanding a corps of irregular 
 
 the lodge, held conditionally privi- troops during the war in the Crimea. 
 
 leged. (Kirkpatrick v. Eagle Lodge, Complaint having been made of the 
 
 36 Kansas, 384; and see Ostheimer 7/ insubordination of the troops, the 
 
 Blumert, i City Co't Rep. Supp. 17.) corps commanded by the plaintiff was 
 
 Defendant, who was a sergeant in a placed under the superior command of 
 
 volunteer corps, of which plaintiff was V. The plaintiff then resigned his 
 
 also a member, represented to the command, and V. directed S. to in- 
 
 committee by whom the general busi- quire and report on the state of the 
 
 ness of the corps was conducted, that corps, and referred S. to the defend- 
 
 plaintiff" was an unfit person to be per- ant for information. Defendant, in a 
 
 mitted to continue a member of the conversation with S., made a defama- 
 
 corps ; that he was the executioner of tory statement in respect to the plaint- 
 
 the French king, &c. Lord Ellen- iff on his giving up the command of 
 
380 SEEKING REDRESS. [CH. IX. 
 
 citizens, presented a petition to the governor, containing 
 reflections by one Marrett, one of the persons for whose 
 benefit the petition was intended, upon plaintiff, though 
 not naming her, upon the trial it was proved that defend- 
 ant did not know the contents of the petition (it having 
 been handed to him by an attorney at the time of presen- 
 tation), nor did he know the plaintiff, nor Marrett. Held, 
 that the delivery of the pamphlet to the governor did not 
 constitute a publication, that defendant was justified in 
 handing the same to the governor, and the same was a 
 privileged commuriication for which no action could be 
 maintained without proof of express malice.^ Statements 
 contained in an affidavit presented to a superientendant of 
 schools for the purpose of preventing a teacher's license 
 being granted to a particular person, charging such person 
 with improper conduct, are privileged and not actionable 
 unless untrue and maliciously made.^ The defendant was 
 clerk to a board of guardians, and plaintiff the medical 
 officer under said board. C. was the relieving officer under 
 said board. A pauper was to be removed to another dis- 
 trict, but previous to his removal he was to be examined 
 by plaintiff. The defendant, under the direction of the 
 board, called twice upon plaintiff, each time requesting him 
 to make the examination of the pauper ; but plaintiff neg- 
 lected to make such examination. The defendant after- 
 wards went to C. and complained of this neglect on plaint- 
 iff's part, and stated that plaintiff was " not sober," or, as 
 appeared on the trial, " as drunk as a sow." Whereupon 
 C. served plaintiff with a formal order to make the ex- 
 amination — held that the statement by defendant to C. 
 
 his corps ; held that it was properly ' Wood v. Wiman, 47 Hun, 362. 
 
 left to the jury to say whether the « Weiman z/. Mabie. 45 Mich. 484; 
 
 communication was relevant to the in- and see Clontier v. Blackburn, 5 Legal 
 
 quiry. (Beatson v. Skene, 5 Hurl. & News, 420 ; Donaghue v. Hervey, Id. 
 
 N. 838; §242, /w/.) 357. 
 
§ 2 37-_l SEEKING REDRESS. 38 1 
 
 was conditionally privileged.^ The defendant, a subscriber 
 to a charity, wrote a letter to the committee of manage- 
 ment of the society concerning the plaintiff, their secretary 
 — held privileged, if made in an honest belief in the truth 
 of the statements.^ And where the defendant was a life 
 governor and medical officer of a public school, to which 
 school plaintiff supplied butcher's meat, the defendant 
 stated to the steward of the school that defendant sold 
 meat by the yard, and had been hooted out of the market, 
 innuendo that he sold bad meat. It appearing that it 
 was the steward's duty to examine the meat supplied to 
 the school, held that if the defendant's statement was with- 
 out malice, it was privileged.^ The defendant, the com- 
 manding officer of a regiment, wrote letters to his im- 
 mediate superior, containing charges against the plaintiff, 
 the colonel in command ; defendant also had a conversa- 
 tion with a member of Parliament as to a question to be 
 put in the House of Commons relative to the dismissal of 
 the plaintiff. It was held that both the letters and the 
 conversation were privileged, if made without malice.* De- 
 fendant was principal of an institution for deaf mutes, his 
 wife received an obscene letter in a disguised hand, defend- 
 ant believing the letter to have been written by plaintiff, 
 an employee of the institution, communicated his suspicion 
 to the executive board, whose duty it was to hire and dis- 
 charge employees; in an action by plaintiff, held, such com- 
 munication was a conditionally privileged one.^ 
 
 .' Sutton V. Plumridge, 16 Law ' Humphreys v. Stillwell, 3 Post. 
 
 Times, N. S. 741. The charge of a & F, 590. 
 
 bishop to his clergy in convocation is * Dickson v. Wilton, i Fost. & F. 
 
 privileged (Laughton v. The Bishop 419; see Bell v. Parke, 10 Jr. Com. 
 
 of Sodor & Man, Law Rep. 4 Pri. C. Law Rep. 279. 
 
 Cas. 495), and held that under the cir = Halstead v. Nelson, 24 Hun, 395 ; 
 
 cumstances the bishop was warranted 36 Id. 149; 13 N. Y. St. Rep. 211 ; 15 
 
 in publishing his charge in a news- Id. 790; and see Keene v. Sprague, 
 
 paper. (Id.) 3° Alb. L. J. 283. 
 
 2 Maitland v. Bramwell, 2 Fost. & 
 F. 623. 
 
382 SEEKING REDRESS. [CH. IX. 
 
 § 238. The privilege referred to in the last preceding 
 section exists not only where the body, officer or indi- 
 vidual appealed to has direct jurisdiction or power, but 
 also in the cases where there is an indirect jurisdiction or 
 power to afford redress ; as thus, where the plaintiff was 
 a justice of the peace for the county, and in the habit of 
 acting at petty sessions held in a borough. The defend- 
 ant, an elector and inhabitant of the borough signed a 
 memorial addressed to the secretary of state for the 
 home department, complaining of the conduct of 
 plaintiff as a justice during an election for a member to 
 represent the borough in Parliament, and praying that he 
 would cause an inquiry to be made, into the conduct of 
 plaintiff, and that on the allegations contained in the 
 memorial being substantiated, he would recommend to 
 her Majesty that plaintiflF be removed from the commis- 
 sion of the peace. The jury having found that the 
 memorial was bona fide, it was held that it was a privi- 
 leged communication, inasmuch as plaintiff had both an 
 interest and a duty in the subject-matter of the com- 
 munication ; and the secretary of state had a corre- 
 sponding duty, a justice of the peace being appointed 
 and removed by the sovereign.-' And where the plaintiff 
 was an officer in the army, and the defendant, a creditor 
 of plaintiff, defendant wrote concerning plaintiff to the 
 secretary of war, it was held that, although the secretary 
 had no direct power or authority, yet as he might exercise 
 some influence, the communication was privileged.'^ 
 
 * Harrison v. Bush, 5 El. & Bl. of paying the defendant such money, 
 
 344. In Rex V. Baillie (3 Bac. Abr. and that the prosecutor had received 
 
 tit. Libel, A, 2, cited 5 B. & Aid. 647), the money and not paid it over to de- 
 
 the defendant had addressed a letter fendant. The court held this not a 
 
 to General Willes and the four princi- libel, but a representation of an injury 
 
 pal officers of the guards, to be by shown up in a proper way for redress; 
 
 them presented to the king, stating yet neither the officers nor the king 
 
 that the prosecutor had obtained from could give the defendant direct assist- 
 
 him [defendant] a warrant for the pay- ance in obtaining payment of the 
 
 ment of money due him [defendant] money wrongfully withheld, 
 from the government under promise 2 F^irman v. Ives, 5 B. & Aid. 643. 
 
§ 238A.] SEEKING REDRESS. 383 
 
 An additional protection to persons seeking redress 
 extrajudicially, from public officers, is found in the diffi- 
 culty referred to hereafter (§ 377 «), which the plaintiff 
 may experience in proving the publication of the defama- 
 tory matter. 
 
 § 238 a. The applications for redress extrajudicially, to 
 a body officer or individual having power or jurisdiction 
 directly or indirectly^ to afford redress are privileged, ap- 
 pears to be well settled, and the decisions, with only two 
 exceptions, either assume or expressly declare that unless 
 the power or authority to grant relief exists either directly 
 or indirectly, the publication is not privileged: as thus, 
 where the defendant, a physician, gave a certificate that 
 the plaintiff was insane, on which to base proceedings 
 under a statute to have the plaintiff confined in an asylum; 
 for the charge contained in this certificate the plaintiff 
 brought an action against the defendant, and it was held that 
 he could justify only by showing that the provisions of the 
 statute under which the certificate purported to have been 
 given had been strictly complied with. And by the court, 
 " Where one intervenes voluntarily in a special proceeding 
 not known to the common law, and not resulting in a 
 judgment according to its forms, he must see that juris- 
 diction is acquired, and that there is in reality a proceeding 
 in court, before he can claim any privilege."^ A letter 
 written to the secretary of state, complaining of the con- 
 duct of the plaintiff as clerk to a board of magistrates, was 
 held not to be privileged, because addressed to an officer 
 riot having power to redress the wrong complained of ;^ 
 
 Perhaps Atkinson v. Congreve (7 Ir. Jour. Q. B. 39. Defendant, as coro- 
 
 Com. Law Rep. 109) may be within ner made a communication in writing 
 
 the same rule. And see Bell v. Parke to the chief secretary for the Lord 
 
 (10 Ir. Com. Law Rep. 279). Lieutenant of Ireland, stating that the 
 
 1 Perkins v. Mitchell, 31 Barb. Rev. Mr. C. had said in relation to 
 
 461. plaintiff's evidence at an inquest, that 
 
 ^ Blagg V. Sturt, 10 Q. B. 899; 11 "it was nothing short of perjury." 
 
 Jur. 181: 8 Law Times, 13S; i6 Law Held, not privileged. (Lynam v. 
 
384 SEEKING REDRESS. [CH. IX. 
 
 and upon appeal the case was affirmed in the Exchequer 
 Chamber. So where the defendant, at a meeting of a 
 county medical society, introduced a resolution for the 
 expulsion of plaintiff, a member of said society, which 
 resolution contained matter defamatory of the plaintiff; in 
 an action for libel for publishing said resolution, it was 
 held that, inasmuch as the society had no power to expel a 
 member^ the publication could not be privileged as a means 
 of seeking redress.^ Again,^ where the defamatory matter 
 was contained in an affidavit made by the defendant, at 
 the request of one H. F. to be presented to the governor, 
 of the State of New York, to induce said governor to 
 revoke a warrant issued by said governor for the arrest of 
 said H. F., upon a requisition from the governor of Cali- 
 fornia. After a finding by referees in favor of the defend- 
 ant, on the ground that the publication was privileged, the 
 Supreme Court, at a general term, ordered a new trial, and 
 held there was no privilege, because the governor had no 
 jurisdiction to revoke his warrant, the court saying that in 
 all cases of seeking redress the "tribunal, individual or 
 body must be vested with authority to render judgment, or 
 make a decision in the case, or to entertain the proceeding, 
 in order to give them the protection of privileged com- 
 munications." One of the two exceptions above referred 
 to is the case where the defendant, a time-keeper employed 
 
 Gowing, 6 Ir. L. R. 259, Exch. Div.) 13 C. B. 836; 22 Law Jour. Rep. N. 
 In an action for libel it appeared that S. C. P. igo; 17 Jur. 579; i Com. Law 
 the defendant had lodged at the Rep. 592.) A letter written merely 
 plaintiff's house, and on leaving confidentially is not thereby privi- 
 missed a memorandum book and leged. (Brooks v. Blanshard, i Cr. & 
 other articles, whereupon he wrote a M. 779 ; 3 Tyrw. 844 ; Wilson v. Bar- 
 letter to the plaintiff's wife, in which nett, 45 Ind. 164; Andrews v. Wilson, 
 he accused the plaintiff of having 3 Kerr [N. Brunswick], 86), and so of 
 taken the missing articles, and threat- an oral communication. (Shaw v. 
 ened to expose him if he did not return Sweeney, 2 G. Greene [Iowa], 587. 
 them; the jury found that there was But see note to Wyatt v. Gore, Holt's 
 no malice in fact — held, nevertheless, N. P. 299.) 
 
 the sending the letter to the wife was ^ Fawcett v. Charles, 13 Wend, 
 
 not a privileged publication— she had 473. 
 
 no authority or power to redress the " Hosmer v. Loveland, 19 Barb, 
 
 supposed wrong. (Wenman v. Ash, in. 
 
§ 238A.] SEEKING REDRESS. 
 
 385 
 
 on public works under a public department, wrote a letter 
 to the secretary of the department, reflecting upon the 
 contractor for the works. The secretary had no authority 
 over the contractor, but it was held that, if the letter was 
 written in good faith, although to the wrong person, it was 
 privileged ; but that the fact of the communication beino- 
 made to a person having no authority to afford redress, 
 was a circumstance from which want of good faith mio-ht 
 be inferred.^ This was but a nisi prius decision, neverthe- 
 less we are of opinion, the contrary decisions notwithstand- 
 ing (§ 237), that we have here the true rule of law. One 
 who has reasonable and probable cause to believe himself 
 wronged, should be privileged in applying to any source 
 which he has reasonable and probable cause to believe can 
 grant him redress. In seeking redress judicially, a want 
 of jurisdiction in the court to which the complaint may be 
 exhibited, does not take away the privilege, nor should it 
 where the redress is sought extrajudicially.^ The other of 
 the two exceptions above referred to is the case ^ where 
 the plaintiff was a district school teacher, and the defend- 
 ant a freeholder within the school district. The alleged 
 libel was a representation signed by the defendant, charg- 
 ing the plaintiff with not being " a man of strictly temper- 
 ate habits and good moral character, such as the law 
 demands," &c. This representation was delivered to the 
 
 1 Scarll V. Dixon, 4 Fost. & F. whom it was made had no authority 
 
 250. F. and B. were candidates at a to investigate, punish or redress the 
 
 parliamentary election ; defendant was alleged wrong. (Dickeson v. Hil- 
 
 B.'s agent, and on election day, while Hard, Law Rep. 9 Ex. 79.) 
 the polling was proceeding, defendant ^ See note 3, p. 331, ante; i Wms. 
 
 wrote to F.'s agent that bribery on Saund. 138, ed. of 1871. The creditor 
 
 F.'s behalf was going on. B. was was mistaken in Fairman v. Ives 
 
 elected, and on the next day defend- {ante, note 2, p. 382) ; and the court 
 
 ant, in a conversation with F. 's agent, held the defendant protected by 
 
 charged F. with bribery, and on the " probable cause," in Howard v. 
 
 day following defendant sent to F.'s Thompson (21 Wend. 330). 
 agent a writing certifying that plaint- ^ Mclntyre v. McBean, 13 Up. Can. 
 
 iff was guilty of a certain specified act Q. B. Rep. 534; see Tompson v. 
 
 of bribery— held that this certificate Dashwood, 1 1 Q. B. D. 43. 
 was not privileged, the person to 
 
 25 
 
386 SEEKING REDRESS. [CH. IX. 
 
 local superintendent of schools, who, not conceiving him- 
 self authorized to act upon it unless it came through the 
 school trustees, handed the document to them. On the 
 trial the plaintiff had a verdict. The court in banc granted 
 a new trial, and observed that the publication was prima 
 facie privileged, and not the less so because made by mis- 
 take to the wrong quarter. 
 
 § 239. Where the privilege now under consideration 
 may be exercised by word of mouth,, orally, it also may 
 be exercised by writing ; unless, perhaps, where it is 
 shown that it is exercised by writing rather than orally to 
 serve some unworthy purpose; thus where an alleged 
 libel consisted of charges made by the defendant against 
 the plaintiff, a constable, contained in a letter to a meet- 
 ing of rate-payers, it was held that, inasmuch as the 
 charge, if made orally, would have been privileged, it 
 was privileged when made in writing, unless the plaintiff 
 could establish that the defendant, as a pretense for writ- 
 ing,^ willfully absented himself from the meeting. So 
 where the defendant is privileged to present a petition or 
 memorial for redress, he does not forfeit his privilege by 
 presenting the petition or memorial to different individuals 
 to obtain their signatures thereto, nor, as it seems, by 
 printing such petition or memorial, provided the present- 
 ing for signatures or the printing be done with a bona fide 
 intent to carry out the purpose of the petition or memorial, 
 and not otherwise.^ The plaintiff was employed as mana- 
 
 1 Spencer 7/. Amerton, I M. & Rob. of slander against the defendant, a 
 47°- surveyor employed by a committee to 
 
 2 Vanderzee v. M'Gregor, 12 investigate the truth of reports against 
 W^end. 455; Cook v. Hill, 3 Sandf. the plaintiff, as having executed im- 
 341 ; Rex V. Baillie, 21 State Trials, i ; properly contract work for them, which 
 Rex V. Staples, Andr. 229 ; Van Wyck the defendant alleged on such inquiry 
 V. Aspinwall, 17 N. Y. 190; Laughton to be the case, held that such report 
 V. The Bishop of Sodor & Man, Law was not a privileged communication, 
 Rep. 4 Priv. C. Cas, 495 ; Klinck v. it being found by the jury that the re- 
 Colby, 46 N. Y. 427 ; Kidder v. Park- ports originated with the defendant, 
 hurst, 3 Allen (Mass.), 393 ; and ante, and were false. (Smith v. Mathews, 2 
 note 2, p. 379. Where, in an action M. & Rob. 151.) An officer of the 
 
§ 239-] SEEKING REDRESS. 387 
 
 ger of the factories of a joint stock company, and the 
 auditors of the company, in auditing the plaintiff's ac- 
 counts, appended to their report the following statement : 
 " The shareholders will observe that there is a charge of 
 ^1,306 for deficiency of stock, which the manager is re- 
 sponsible for. His accounts have been badly kept, and 
 have been rendered to us very irregularly." The directors 
 submitted their own report, together with that of the 
 auditors, to the ordinary general meeting of the sharehold- 
 ers of the company, according to the usual practice, and 
 it was resolved by the meeting that the reports should be 
 printed and sent to the shareholders. The reports, includ- 
 ing above statement, were accordingly sent to a printer, 
 printed, and circulated among the shareholders, and used 
 at an adjourned meeting of the shareholders. The plaintiff 
 having brought an action for libel against the company ; 
 held, that, as it was the duty of the directors to communi- 
 cate the report of the auditors to the shareholders, and it 
 was for the interest of all the shareholders to be informed 
 of the report, the printing and publication of the report 
 were prima facie privileged ; and there was no evidence 
 for the jury, extrinsic or intrinsic, of express malice.^ 
 Where it is the prescribed duty of one to report upon any 
 matter, then what he may report without malice and with 
 a reasonable belief in its truth, is privileged.^ (§ 209.) 
 
 navy has no right to make communi- see 5 Quebec Law Rep. 26.7 ; and s. C. 
 cations, except to the government, Ramsey's App. Cas. 420.) 
 upon subjects with which he becomes ^ Lawless v. Anglo-Egyptian Cot- 
 acquainted in his professional capa- ton Co. Law Rep. 4 Q. B. 262. A 
 city; and, therefore, a letter written to member of a friendly society issued a 
 Lloyd's Coffee-house, about the con- circular addressed to the members of 
 duct of the captain of a transport ship, the society for the alleged purpose of 
 by a lieutenant who was superintend- obtaining a statutory investigation into 
 ent on board, was held not to be a the solvency of the society upon an 
 privileged communication. (Harwood application for an injunction against 
 V. Green, 3 Car. & P. 141; and see the distribution of such circular; it 
 Robinson v. May, 2 J. P. Smith. 3.) was held not to be a privileged pub- 
 A physician is not privileged to pub- lication. (Hill v. Hart-Davis, 21 L. 
 lish defamatory matter of his patient. R. Ch. D. 798.) 
 (Alpin V. Morton, 21 Ohio St. R. 536; ^ See note i, p. 308, ante. 
 
388 SELF-DEFENSE. [CH. IX. 
 
 As where a law required every physician should report to 
 the Board of Health all cases of small pox coming to his 
 knowledge ; held, that a physician who, without malice, 
 but erroneously, reported to the Board of Health that his 
 patient was diseased of the small pox, whereby the patient 
 was against her will taken from her home to the small pox 
 hospital, was not thereby liable to an action at the suit of 
 the patient.^ A report by a foreman respecting the men 
 under him,^ by a steward as to the character of a house on 
 his employer's estate.* Defendant was secretary of a society 
 formed to investigate the merits of applicants for charity, 
 information furnished by him in good faith to one inter- 
 ested to be informed, held privileged.* So the report of a 
 commission appointed to make an investigation upon 
 charges of malfeasance and nonfeasance in the manage- 
 ment of a prison, of the facts elicited by their inquiry is 
 privileged.^ 
 
 § 240. Every one has, also, and independently of the 
 privileges to which we have heretofore referred the right 
 to publish all that he has reasonable and probable cause to 
 believe necessary to protect his person, his property, or his 
 reputation from loss or injury.^ Held that this rule applied 
 
 1 Brown v. Purdy, 54 Superior Co't privilege of collecting my bills, this is 
 (22 J. & S.), 109. to give notice, he has nothing further 
 
 2 Suprenant w. Gobeille, 7 Legal to do with my business. This was 
 News. 195. held to be privileged. (Hatch v. Lane, 
 
 ' Brett V. Watson, 20 Week. Rep. 105 Mass. 394.) The plaintiff had 
 
 723. been agent of defendant. After he 
 
 * Waller v. Loch, 7 Q. B. D. 619. left defendant's employ, defendant 
 
 This case resembles that of informa- published in a newspaper an advertise- 
 
 tion furnished by a commercial agency. ment, headed ' ' Caution, " and contain- 
 
 5 Re Investigating Commission, 1 1 ing the words, " N. B.— Notwithstand- 
 
 Atl. Rep. (R. I.) 429; Beloe v. Wren, ing the false statements of [plaintiff] 
 
 19 The Reporter, 510, to the contrary, he is no longer an 
 
 « The defendant was a baker who agent of this company, " vsrith an in- 
 employed several men to deliver bread nuendo, meaning that plaintiff had 
 to his customers. The plaintiff was falsely and for improper purposes pre- 
 one of the men so employed. After tended to be an agent of the defend- 
 plaintiff had left defendant's employ, ant ; and in another count the mean- 
 defendant published a notice to the ing alleged was that plaintiff had been 
 effect : The plaintiff having left my dismissed for improper conduct— held 
 employ, and taken upon himself the that the publication was privileged. 
 
§ 240.] SELF-DEFENSE. 389 
 
 to protect the publishers of a newspaper, in commenting 
 severely on the conduct of a pilot, who delayed their dis- 
 patches to the advantage of another paper.' Where the 
 defendant advertised that his wife had eloped from him, 
 and cautioned all persons from trusting her, a motion for 
 a criminal information against him for making this pub- 
 lication was denied, because the advertisement was the 
 only means he could adopt to protect himself.* Defend- 
 ant's wife, a stockholder in a street car company, in- 
 formed her husband (defendant) that she heard persons 
 boast that the car driven by plaintiff was " a good dead- 
 head car" for them. Defendant informed the foreman, 
 who, without investigation, discharged plaintiff. There 
 being no proof of malice ; held, an action of slander would 
 not lie.^ Where A., who had dealt with the defendant, a 
 butcher, suddenly ceased to deal with him, alleging as a 
 reason that defendant had made charges against him, A., 
 for meat which had not been delivered at A.'s house, the 
 defendant wrote a letter to A., protesting his innocence of 
 the alleged overcharge, and stating, in effect, that the meat 
 had been improperly disposed of by the defendant's serv- 
 ants. For writing this letter, the plaintiff — whose wife 
 was a servant in the family of A, — brought an action for 
 libel ; it was held that if by the letter the defendant meant 
 
 (Holliday v. Ontario Farmers' Mut. of a Railroad Company to send 
 Ins. Co. 33 Up. Can. Q. B. Rep. 558; monthly to his fellow agents to put 
 and see Gassett v. Gilbert, 6 Gray them on their guard against men whom 
 [Mass.], 94; Mulligan v. Cole, Law he has discharged, are within the rule 
 Rep. 10 Q. B. 550.) To create a priv- of qualified privilege. (Bacon i/. Mich, 
 ileged occasion, there must be not Cent. R. Co. 55 Mich. 224.) State- 
 only an interest in making the com- ments made bona fide by rival appli- 
 munication, but also a legitimate cants for land under the Victoria Land 
 interest in the matter communicated. Act ; held privileged (Finn v. Hunter, 
 (Simmonds -v. Duane, Ir. Rep. 5 Com. 12 Vict. Law Rep. 656.) 
 Law, 358 ; see Elsworth v. Hays, 37 ^ Rex v. Elms, cited in Rex v. 
 No. West. Rep. 249 ; and Slander of Staples, And. 229 ; and see ante. 
 Title, § 207, ante. % 226. 
 
 1 Lyons w. Townsend, 2 Edm. Sel. = Haney v. Trost, 34 La. Ann. 
 
 Cases, 452. The discharge lists which 1 146. 
 it is the duty of each division agent 
 
3gO SELF-DEFENSE. [CH. IX. 
 
 bona fide to defend himself, it was a conditionally privi- 
 leged publication.^ The plaintiff, an attorney's clerk, made 
 an affidavit in a suit in which the defendant appeared for 
 an opposite party. The affidavit reflected upon the de- 
 fendant, whereupon defendant wrote to plaintiff's employ- 
 ers complaining that the affidavit of plaintiff suppressed 
 the truth. The defendant's letter held a conditionally 
 privileged publication.^ Where Q., having had no previous 
 knowledge of B., a trader, sold him goods to the amount 
 of £,(i2 loj., at two months' credit — upon going to B.'s 
 shop at the expiration of the credit, A. found that the 
 whole stock in trade, including a portion of the goods 
 sold by him, had been sold by auction the previous day, 
 by B.'s desire, and at a reduction of 30 per cent., and that 
 the proceeds were in the hands of S., the auctioneer. Upon 
 inquiry, A. could not learn where B. was to be found. He 
 thereupon went to his attorneys, and they, on his behalf, 
 served on S. a notice not to part with the proceeds of the 
 sale, the said B. having committed an act of bankruptcy. 
 
 B. had, in fact committed no act of bankruptcy, the goods 
 having been sold for the purpose of his retiring from busi- 
 ness. Held, by Tindal, C. J., Coltman, J., and Erie, J., 
 
 1 Coward v. Wellington, 7 C. & P. 482 ; and see McCullough v. McEntee, 
 531. The prosecutor published in a 13 Up. Can. C. P. Rep. 438.) 
 newspaper matter reflecting upon the ^ Buckley v. Kiernan, 7 Ir. Com. 
 character of A. The defendant, an Law Rep. 75. The owner of a pat- 
 attorney, and the attorney for A., pub- ent suspecting plaintiff was infring- 
 lished a counter statement,— held that ing, employed B. to ascertain what 
 if such statement was honestly in- was the fact. B. employed C. to 
 tended to vindicate A., it was privi- assist him. Together B. and C, be- 
 leged. (Reg. v. Veley, 4 Fost. & F. lieving they had discovered an in- 
 II 17.) Defendant, a member of a fringement by plaintiff, so reported to 
 church, was appointed, with plaintiff the patentee; held, a conditionally 
 and other members of the same church, privileged communication. (Knowles 
 on a committee to prepare a Christ- v. Peck, 42 Conn. 386.) Defendant 
 mas festival. Defendant declined to was employed by A. to serve process 
 serve, and being asked why, said that on L., plaintiff. Defendant wrote A. 
 
 C. W., another member of the com- " If L. swears I did not serve him 
 mittee, a married man, had the vene- with a copy of that writ, he swears to 
 real disease; he had been with plaint- a lie." Plaintiff complained of this as 
 iff — held not a privileged comraunica- a charge of perjury. Plaintiff failed, 
 tion. (York v. Johnson, 116 Mass. (Lang w. Gilbert, 4 All. [New Bruns.] 
 
 445-) 
 
§ 240.J SELF-DEFENSE. 39 1 
 
 (Cresswell, J., dissentiente), that A. had such an interest 
 in serving the notice as to render it a privileged communi- 
 cation, if it was served with good faith and under the 
 bona fide belief that B. had committed an act of bank- 
 ruptcy.^ The owner of a ship employed plaintiff as her 
 master, and afterwards applied to defendant to insure the 
 ship. Defendant refused to insure if plantifif was to be 
 her master, giving no reason. Plaintiff applied to defend- 
 ant to withdraw such refusal and to insure, this defendant 
 declined to do, and in consequence plaintiff lost his 
 position. To plaintiff's statement of cause of action 
 defendant pleaded the facts, and that the reason of their 
 refusal to insure while plaintiff remained master of the 
 ship was information they had received of his being of in- 
 temperate habits. This was held to be a good defense.^ 
 Where the defendant published an advertisement as 
 follows : " Ten guineas reward. Whereas, by a letter 
 received from the West Indies, an event is stated to be 
 announced by a newspaper that can only be investi- 
 gated by these means — this is to request that if any per- 
 son can ascertain that J. D. [the plaintiff, describing 
 him] was married previous to 9 a. m. on, &c., and will 
 give notice to J. [the defendant], he shall receive the 
 reward" — held, that if the publication was with the bona 
 fide view of finding out the fact referred to, it was privi- 
 leged, and the jury found a verdict for the defendant.^ 
 And where the libel was contained in an advertisement 
 stating the issue of process against the plaintiff, and that 
 
 1 Blackham v. Pugh, 1 5 Law Jour. ^ Harmon v. Falle, 4 App. Cas. 
 
 Rep. 290, C. P.; 2 C. B. 611; ap- 247. 
 
 proved, Davies v. Snead, Law Rep. 5 ' Delany v. Jones, 4 Esp. 191. In 
 
 Q. B. 608. Where one person applies Lay v. Lawson, 4 Adol. & El. 798, 
 
 to another for credit, and the latter Ld. Denman, referring to Delany v. 
 
 seeks information from a third as to Jones, said : " I have great doubt 
 
 the trustworthiness of the applicant, a whether, there, the interest which the 
 
 privileged occasion arises for com- wife had in the inquiry could justify 
 
 munications bearing on that subject. the offering a reward in a newspaper." 
 
 (Faher v. Hayes, 50 N. J. L. 275 ; see (See Finden v. Westlake, Mo. & Malk. 
 
 Commercial Agency.) 461.) 
 
392 SELF-DEFENSE. [CH. IX. 
 
 he could not be found, and oifering a reward for such 
 information as should enable him to be taken ; plea, that 
 a capias had been issued and delivered to the sheriff, and 
 that the plaintiff kept out of the way, and that the ad- 
 vertisement had been inserted at the request of the party 
 suing out the writ, to enable the sheriff to arrest ; held a 
 sufificient defense.^ The plaintiff had a litigation with 
 an insurance company of which the defendant was the 
 agent. The plaintiff published a pamphlet accusing the 
 directors of the company of fraud, &c. This was met by 
 a pamphlet published by the directors. Afterwards, a 
 person desirous of effecting an insurance, inquired of de- 
 fendant as to the truth of the charges contained in the 
 plaintiff's pamphlet, and thereupon the defendant handed 
 to such person a copy of the pamphlet published by the 
 directors ; for this the plaintiff sued the defendant, and it 
 was held that the defendant's act was prima facie privi- 
 leged, and that if he acted without malice, no action could 
 be maintained.* Defendant, manager of a printing estab- 
 lishment, had a dispute with A. relative to some printing 
 items; they agreed to submit the matter in dispute to any 
 respectable printer indifferent between them whom A. 
 should name. A. named plaintiff, defendant refused to 
 submit the matter to him. Being subsequently called 
 upon by A. to pay a part of plaintiff's remuneration as 
 arbitrator, defendant wrote to A. repudiating the demand 
 and stating as his reason for not submitting the matter to 
 plaintiff as arbitrator, that he had discharged plaintiff from 
 his employment for intemperance. Held prima facie 
 privileged.^ In an action for libel, in publishing of plaint- 
 iff, in a newspaper, imputations of untruthfulness, insolv- 
 ency, and conduct discreditable to his position as a poor 
 law guardian ; plea, that defendant was medical officer of 
 
 ' Layz/. Lawson,4Adol.&E1.795. 3 Hobbs v. Bryers, 2 Law R. Ir. 
 
 2 Koeing v. Ritchie, 3 Fost. & F. 496. 
 413- 
 
§ 241.] SELF-DEFENSE. 393 
 
 the Union in which plaintiflFwas guardian, and he, defend- 
 ant, having as part of his official duties, caused the seizure 
 of certain diseased meat, &c., for which seizure he had 
 been sued, and he had incurred certain costs in his defense ; 
 and that, at a meeting of the board of guardians held sub- 
 sequently, plaintiff knowing that the proceedings at such 
 meeting would be reported in the newspapers, and for the 
 purpose of having such statement published, plaintiff stated 
 as part of the proceedings of said meetings, that defendant 
 had acted wrongly in causing such seizure, and that his 
 costs ought not to be paid ; that these statements were 
 afterwards published in a newspaper ; and that, to prevent 
 credit being given to said statements by the public, and in 
 self defense, defendant had published the alleged libel, be- 
 lieving the same to be true and without malice — on demur- 
 rer, the plea was held bad.^ An underwriter, in discussing 
 with the agent of the assured a claim for a total loss, made 
 a statement purporting to be founded upon a letter im- 
 plying a design on the part of plaintiff to make a dishonest 
 claim ; this was held to be privileged, unless made with an 
 intent improperly to reduce plaintiff's claim.* Plaintiff, a 
 member of a church of which C. was curate, was intro- 
 duced by H., also a member of said church, to the defend- 
 ant, the incumbent of a parish in which plaintiff was visit- 
 ing, and where he became acquainted with F., one of de- 
 fendant's parishioners. F. afterwards sued plaintiff for the 
 
 1 Murphy v. Halpin, Ir. Rep. 8 fense. or was actuated by malice to- 
 Com. Law. 127. And the case was wards the party who originally assailed 
 distinguished from O'Donoghue v. him." (See §§ 414, 415. /"-f^O 
 Hussey, (Ir. Rep. 5 Cora. Law. 133), ^ Hancock ■z/. Case, 2 Fost. & F. 
 in which it was held: "If a party 711- Where one to whom a cargo 
 choose to have recourse to a public was consigned claimed that a part ot 
 newspaper, and publish statements it had not been delivered, and at in- 
 reflecting upon another, the aggrieved terviews with those representing the 
 party may have recourse to the public vessel, respecting payment oi freight, 
 press for his defense and vindication, declined to pay the full amount stat- 
 and if, in so doing, he reflects upon ing that the captain ^plaintiff] had 
 the character or conduct of his assail- robbed the cargo, held privileged, 
 ant, it will be for the jury to say (Clapp v. Devlin, 35 Superior U. [3 
 whether he did so honestly in self-de- Jones & S.J 170.) 
 
394 SELF-DEFENSE. [CH. IX. 
 
 price of a horse and other matters, and defendant was ap- 
 plied to by C. at plaintiff's instance, to arbitrate between 
 plaintiff and R; defendant at first declined, and on being 
 further pressed to act, wrote C, as one reason for not act- 
 ing, that plaintiff's conduct was so bad that he should not 
 like to have his name associated with his affairs ; and he 
 enumerated certain charges which he had heard made 
 against the plaintiff, adding that it grieved him much to 
 make these statements respecting a man who evidently 
 wished to be considered a religious man and a good church 
 man, but that he thought it was his duty to unmask him 
 to C, and that he would be thankful to be enaWed to tell 
 some of his neighbors that plaintiff's position at C.'s 
 church was not quite what he [plaintiff] had led them to 
 suppose it to be. C. handed this letter to plaintiff, who 
 brought an action for libel against defendant. In an in- 
 terview which defendant afterwards had with said H., de- 
 fendant complained of the action which had been brought 
 against him, and spoke of what he had heard against plaint- 
 iff's character. H. assured him he was mistaken, and that 
 she would question plaintiff about the truth of these 
 charges. She did so, and wrote defendant that she was 
 confident he had been misinformed about plaintiff, as he 
 had assured her there was not the slightest foundation for 
 what was reported of him, and stated the reasons plaintiff 
 gave in support of his character. Defendant wrote in re- 
 ply, ' Time will show whether I have been misinformed 
 or not respecting Mr. W. [plaintiff]. A writ has been 
 served upon me, and a public investigation must therefore 
 take place. If he states on oath, in the witness box, what 
 he has stated to you, especially as to the charge of assault, 
 he will be most certainly prosecuted for perjury, for there 
 is not a shadow of a doubt but that the complaint of the 
 servant girl is correct." Plaintiff brought another action 
 for libel in respect of this last letter. The actions were 
 
§ 24I.J 
 
 INFORMATION OR ADVICE. 
 
 395 
 
 consolidated. The jury found there was no malice, and it 
 was held that both letters were privileged, and verdict en- 
 tered for defendant.^ 
 
 § 241. Every one who, with reasonable cause for the 
 belief, believes himself to be possessed of knowledge which, 
 if true, does or may affect the rights and interests of another, 
 has the right, in ^ood faitk,to communicate such his belief 
 to that other (§§ 243, 244).* He may make the communi- 
 cation with or without any previous request, and whether 
 he has or has not personally any interest in the subject- 
 matter of the communication, and although no reasonable 
 or probable cause for the belief may exist. The right is 
 founded on the belief? " All we have to examine is whether 
 the defendant stated more than what he believed, and 
 what he might reasonably believe ; if he stated no more 
 than this he is not liable." * If A. believes that B. is in- 
 
 ' Whitely v. Adams, 33 Law Jour. 
 89, C. P. 
 
 2 Davis V. Reeves, 5 In Com. L. 
 Rep. 79; Owens v. Roberts, 6 Id. 
 386. A parent has the right to know the 
 reports charging his minor child with 
 immoral conduct, and a person know- 
 ing of such report has a right, in good 
 faith, on the parent's request to impart 
 his information. (Long v. Peters, 47 
 Iowa, 239.) Defendant, a government 
 detective, knowing that M. was part- 
 ner of plaintiff, in answer to an in- 
 quiry by M., informed M. that plaintiff 
 was connected with a gang of burg- 
 lars which the defendant had been the 
 means of breaking up — held privi- 
 leged. (Smith V. Armstrong, 26 Up. 
 Can. Q. B. 57.) "A communication 
 is privileged when made in good faith 
 in answer to one having an interest in 
 the information sought, and it will be 
 privileged if volunteered when the 
 party to whom the communication is 
 made has an interest in it, and the 
 party by whom it is made stands in 
 such a relation to him as to make it a 
 reasonable duty, or at least proper 
 that he should give the information." 
 (Allen, J., Sunderlin v. Bradstreet, 46 
 
 N. Y. 191 ; see Montgomery v. Knox, 
 23 Fla. 595 ; Mott v. Dawson, 46 Iowa, 
 
 S33-) 
 
 ' Defendant and others were 
 talking of a prayer meeting to be held 
 at defendant's house, and it being 
 suggested that plaintiff would attend, 
 defendant said he would not allow him 
 to come, and being asked the reason 
 said plaintiff had been guilty of beast- 
 iality (naming the offense). On a 
 subsequent occasion, being asked to 
 withdraw the charge, he refused, and 
 said he was not mistaken, and would 
 take oath of it. On the trial it was 
 left to the jury to decide on the bona 
 fides of defendant's charge, and that 
 if defendant believed what he said to 
 be true, the occasion would justify 
 him. The jury found for the plaintiff. 
 A motion for new trial was denied. 
 (McCuUough V. Mclntee. 13 Up. Can. 
 C. P. Rep. 438 ; see York v. Johnson, 
 116 Mass. 482.) 
 
 * Cockburn, Ch. J., Spill v. Maule, 
 Law Rep. 4 Ex. 237. If a man act 
 bona fide on honest belief of the truth 
 of statements made to him by others 
 whom he believes to be credible per- 
 sons, he is justified in so acting upon 
 
396 
 
 INFORMATION OR ADVICE. 
 
 [CH. 
 
 IX. 
 
 tending to rob C, he has the right to communicate his 
 belief to C, without waiting for C. to inquire on the sub- 
 ject ; and if in so doing he injures B., B. is without re- 
 dress. The exigencies of society require that such a 
 right should exist. A.'s duty to B. is simply not unneces- 
 sarily to injure him (c^ 48). This right must be exer- 
 cised as every other right is required to be exercised, in 
 good faith (§ 40) ; and all communications made in the 
 exercise of this right are conditionally privileged (§ 209).^ 
 
 such statements, if he beheves there is 
 reasonable and probable cause for his 
 so doing. The question is not whether 
 the statements were right or wrong ; 
 it is were they told the defendant, and 
 did he believe them. (Cockburn, Ch. 
 J., Chatfield v. Comerford, 4 Fost. & 
 F. 1008.) In Hermann v. Seneschal, 
 13 C. B. (N. S.) 392, an action for 
 false imprisonment on a charge of 
 passing counterfeit coin, the jury found 
 
 (1) that defendant acted bona fide ; 
 
 (2) that he did not reasonably believe 
 plaintiff guilty of the offense charged ; 
 held, that the second finding would 
 entitle plaintiff to recover; and see 
 Plummer v. Johnson, 74 Wis. 131. 
 There is a distinction between an 
 honest but mistaken representation, 
 and a dishonest representation. (Mere- 
 wether V. Shaw, 2 Cox Chan. Cas. 
 134, 135.) ''It is enough to say that 
 I know of no case where a man mak- 
 ing an honest representation, when 
 called upon to give an account of the 
 circumstances of another, has been 
 made liable in this respect to answer 
 for what he has so represented." (Id.') 
 Hearsay is probable ground for belief. 
 (Maidand v. Bramwell, 2 Fost. & F. 
 623; Lister v. Ferryman, Law Rep. 
 4 Ho. of Lords, 521 ; rev'g Ferryman 
 V. Lister, Law Rep. 3 Ex. 197; and 
 see Keyter v. Leroux, 3 Menzies' Rep. 
 23 ; Owens v. Roberts, 6 Ir Com. Law 
 Rep. 386.) Belief is the only real 
 evidence of good faith. (Plummer v. 
 Johnson, 70 Wis. 131 ; Smith v. Smith, 
 41 No. West. Rep. [Mich.] 499,) 
 
 ' For words " spoken in good 
 faith, to those who have an interest 
 in the communication, and a right to 
 
 know and act upon the facts stated," 
 no action can be maintained without 
 proof of express malice. (Shaw, Ch. 
 J., Bradley v. Heath, 12 Pick. 163.) 
 See note i, p. 300, ante. ''A written 
 communication between private per- 
 sons concerning their own affjiirs is 
 prima facie privileged. 
 When both the party making and the 
 party receiving the communication 
 have an interest in it, it has never 
 been doubted that it was privileged." 
 (Moore v. Manuf. B'k, 21 N. Y. St. 
 Rep. 653: Klinck v. Colby, 46 N. Y. 
 427 ; Ormsby v. Douglass, 37 N. Y. 
 477; Atwell v. Mackintosh, 120 Mass. 
 177; Erben v. Dun, 12 Fed. Rep. 526; 
 Home V. Milne, 7 Vict. Law Rep. 9.) 
 And one part of a publication may be 
 privileged, because made to a person 
 interested, and another part not privi- 
 leged: thus, where the plaintiff and 
 defendant were jointly interested in 
 property in Scotland, of which C. was 
 manager, defendant wrote to C. a 
 letter, principally about the property 
 and the conduct of the plaintiff with 
 reference thereto, and containing a 
 charge against the plaintiff with refer- 
 ence to his conduct to his mother and 
 his aunt; held, that so much of the 
 letter as related to the property was 
 privileged, but the remainder was not. 
 (Warren v. Warren, i Cr. M. & R. 
 250; and see Humphreys v. Stilwell, 
 2 Fost. & F. 590.) Where there are 
 several distinct [divisible] statements 
 (S 145), some privileged and some not 
 privileged, those not privileged are not 
 protected by those that are privileged. 
 Where a statement is privileged, the 
 privilege is not necessarily lost by the 
 
§ 241.] INFORMATION OR ADVICE. 
 
 397 
 
 The existence of this right, as will presently be shown, in 
 cases where the communication is made by one having no 
 personal interest in the subject-matter of the communica- 
 tion, and without any previous request, has been ques- 
 tioned ; nevertheless we feel justified in laying it down for 
 law that the right exists as well where there is not as 
 where there is a previous request, and whether the publish- 
 er has or has not any such personal interest. The right, as 
 we conceive, in no wise depends either upon the fact of a 
 previous request ^ or upon the interest of the publisher, al- 
 though the fact that the communication is made officiously, 
 as it is termed, i. e., unsolicited, or by one having no inter- 
 ests involved, may in some cases have a tendency to dis- 
 close the motive of the publisher in making the publica- 
 tion.^ The right, where the publisher is interested, or 
 where the communication is made upon the request of the 
 party in interest, seems never to have been doubted ; thus, 
 where the language published imputed habits of intemper- 
 ance to the plaintiff, a dissenting minister, it was held 
 privileged because spoken in answer to inquiries.® So a 
 
 mere fact that the publication was upon mere suspicion or belief, that I 
 
 made rashly and without sufficient in- should thrust myself into the business 
 
 quiry. (Clarke v. Roe, 4 Ir. Com. Law affairs of my neighbors, and endeavor 
 
 Rep. I.) to transact for them their concerns." 
 
 1 It was wholly immaterial whether (Hunt, J., Ohio R. R. v. Kasson, 37 
 the defendant was asked to make the N. Y. 224.) 
 
 statement or whether he volunteered ^ Warr v. Jolly, 6 C. & P. 497. A 
 
 it. In either case it was privileged, communication made bona fide upon 
 
 unless malicious. (Harwood v. Keech, any subject-matter in which the party 
 
 6 Sup. Ct. Rep. [T. & C] 665 ; 4 Hun, communicating has an interest, or in 
 
 389.) See, however, Byara v. Collins, reference to which he has a duty, is 
 
 III N. Y. 143, where the prevailing privileged, if made to a person having 
 
 opinion lays great stress upon the fact a corresponding interest or duty, al- 
 
 of the publication being unsolicited. though it contains criminatory matter 
 
 2 "If I know that a villain intends which, without this privilege, would be 
 to defraud or in any way to injure my slanderous and actionable. (Harrison 
 neighbor, it is doubtless my duty as a v Bush, 5 El. & Bl. 344.) Where a 
 good citizen, and as a Christian man, party has a mutual interest with an- 
 to put him on his guard. But there is other, he is justified in prevailing on 
 no rule of law which renders me li- him to become party to a suit, and ex- 
 able for his loss in case of my neglect pressions of angry and strong ani- 
 of this duty. It is a moral duty, madversion on the conduct of the party 
 simply, not recognized by law. Cer- impeached, unless malicious, are privi- 
 tainly there is no law which requires, leged ; and, in the case of words, the 
 
398 
 
 INFORMATION OR ADVICE. 
 
 [CH. IX. 
 
 letter written to persons who employed A. as their solicit- 
 or, conveying charges injurious to his professional charac- 
 ter in the management of certain concerns which they had 
 intrusted to him, and in which B., the writer of the letter, 
 was likewise interested, was held to be a privileged publi- 
 cation.^ And where A., being tenant of B., was desired 
 by B. to inform him if he saw or heard anything respecting 
 the game, A. wrote a letter to B., informing B. that his 
 game keeper (the plaintiff) sold game, — held, that if A. 
 had been so informed, and believed the fact so to be, this 
 was a privileged communication, and that the game-keeper 
 could not maintain any action for libel.^ So where the 
 
 jury merely take into consideration 
 the whole conversation to see whether 
 particular words, which may be ac- 
 tionable in themselves, are qualified 
 so as not to convey the primary mean- 
 ing. (Shipley v. Todhunter, 7 C. & 
 P. 680.) 
 
 1 On the trial a juror was with- 
 drawn. (McDougall V. Claridge, i 
 Camp. 267.) See Conneck v. Wilson, 
 2 Kerr [New Brunswick], 496. Rep- 
 resentations as to stockholders. (Han- 
 na V. De Blaquiere, 1 1 Up. Can. Q. B. 
 310.) As to school teacher. (Mcln- 
 tyre v. McBean, 13 Id. 534.) " De- 
 fendant being a resident of the school 
 district in which it was intended to 
 employ plaintiff as a teacher, and hav- 
 ing a daughter he desired to send to 
 said school, it was not only his right, 
 but his duty, if she was a woman of 
 bad character, to communicate to the 
 trustees such information as he pos- 
 sessed in reference to her character, 
 and the communication thus made 
 was privileged, and the plaintiff could 
 not recover without proof of express 
 malice." (Mullen, P. J., Harwood v. 
 Keeck, 6 Sup. Ct. Rep. [T. & C] 665 ; 
 4 Hun, 389; Decker v. Gaylord, 35 
 Hun, 584; Smith v. Bennett, 9 Week. 
 Dig. 549; O'Connor v. Sill, 21 The 
 Reporter, 781.) "I told H. I believed 
 he (plaintiff) murdered J., and all the 
 neighbors believed it," held privileged. 
 (Harper v. Harper, 10 Bush [Ky.], 
 447.) This decision seems to have 
 
 proceeded on the ground that defend- 
 ant spoke for the public benefit. 
 
 ^ Cockayne v. Hodgkisson, 5 C. 
 & P. 543. Defendant was steward of 
 an estate ; he was directed by his em- 
 ployer to inquire as to the existence 
 on the estate of a house of bad repute ; 
 defendant made inquiries and was in- 
 formed that a house of a certain 
 number, in a certain street, was a 
 house of bad repute ; the number and 
 name of street indicated plaintiff's 
 house; defendant, doubting the ac- 
 curacy of the information he had re- 
 ceived, made further inquiries, and in 
 so doing repeated the information he 
 had received; he then ascertained 
 that the wrong street number had 
 been given him, and that plaintiff's 
 house was not the house intended to 
 be pointed out to him ; held, if de- 
 fendant's statements concerning 
 plaintiff's house were made in pur- 
 suance of his duty to his employer, 
 they were privileged. (Brett v. Wat- 
 son, 20 Weekly Rep. 723.) It is no 
 justification for publishing defamatory 
 language that a cause was about to be 
 tried in which defendant was interest- 
 ed, and plaintiff was to be a witness, 
 and defendant spoke the words in 
 confidence, and to ascertain what 
 plaintiff would testify to on such trial. 
 (Wilson V. Barnett, 45 Ind. 164.) As 
 to confidential communications, ■ see 
 note 2, ,p, 383, ante. 
 
§ 24I.J INFORMATION OR ADVICE. 399 
 
 plaintiff had requested his friend, R. A., to open a corre- 
 spondence with the defendant in reference to certain 
 charges made by the defendant concerning the plaintiff, 
 held that letters written by the defendant to R. A. were 
 privileged communications.^ Where, in an action for li- 
 bel, it appeared that the plaintiff was church warden and 
 defendant clergyman of the same parish, and that differ- 
 ences having arisen between them in that relation, the 
 plaintiff requested that the defendant's future communica- 
 tions should be by letter to the plaintiff's clerk. The de- 
 fendant afterwards applied by letter to the clerk for rent 
 which he conceived to be due him from the plaintiff. The 
 clerk answered that defendant denied his liability, and in 
 reply the defendant wrote the clerk, ''This attempt to de- 
 fraud me of the produce of the land is as mean as it is 
 dishonest," — held that the communication was not privi- 
 leged in itself ; that it was a question for the jury whether 
 the language was justified by the occasion, but that the 
 judge was right in directing the jury that the communica- 
 tion was actionable.* In an action for slander plaintiff's 
 attorney wrote defendant, demanding an apology. In re- 
 ply defendant wrote plaintiff's attorney, stating certain 
 dishonorable conduct of plaintiff, which caused defendant 
 to speak the alleged slander, and warned the attorney to 
 look out for his costs, as a person guilty of such dishonor- 
 able conduct could not be trusted. Held, that the com- 
 munication was prima facie privileged ; that the warning 
 was a deduction from the subject-matter; that it was the 
 
 1 Hopwood V. Thorn, 8 C. B. 293; the inference of malice is against him, 
 Saver i/. Begg, 15 Ir. Com. L. Rep. and the burden is put on him to show 
 .A ^^ that he acted bona fide. (Walcefield 
 
 2 Tuson V. Evans, 4 Per. & D. v. Smithwick, 4 Jones' Law [N Car ], 
 396. Where, in an action for defama- 327 ; Harwood y. Keech, 6 bup. Ct 
 tion, it appears that a defendant, au- Rep. [T. & C] 665; 4 Hun, 389; and 
 thorized by his relation to the party see Hartwell t/ Vesey, 3 Law Times, 
 addressed to make a "privileged com- N. S. 275; Cole z/. Wilson, 18 B. 
 miinication," in professing to do so Monr. 212, and § 389- post.) 
 
 [he knowingly] makes a false charge. 
 
400 INFORMATION OR ADVICE. [CH. IX. 
 
 province of a jury, and not of the court, to say whether 
 this deduction was in excess of the privilege.^ An at- 
 torney having, at plaintiff's desire, written the defendant 
 demanding payment of an alleged debt, the defendant 
 sent a letter to the attorney containing gross imputations 
 on the plaintiff's character, wholly unconnected with the 
 demand made upon him ; held not a privileged communi- 
 cation, although the jury found that the letter was writ- 
 ten bona fide, and negatived malice in fact.^ A., the 
 plaintiff, was party to a suit in chancery by B., his next 
 friend, who was answerable for the costs of the suit. A. 
 expressed a desire to change his solicitor in that suit, 
 which coming to the knowledge of the defendant, he wrote 
 a letter to B., in which, amongst other things, he stated 
 that A. had been apprenticed to a civil engineer, and had 
 had a present made him of his indentures, because he was 
 worse than useless in the office ; in an action of libel by 
 A., held that the letter was a privileged publication.^ The 
 owner of a building which has been set on fire may cau- 
 tion the persons employed by him therein against a par- 
 ticular person, suspected of being the incendiary; and his 
 statements to them, if made in good faith for this purpose, 
 are privileged communications, although they contain an 
 
 1 Jacob V. Lawrence, 14 Cox C. C. plaintiff had attempted to decoy away 
 321 Ir. Q. B. D. his clients. Plaintiff, in a denial in 
 
 2 Huntley v. Ward, 6 C. B. N. S. the same newspaper, characterized 
 514; and see a;«^^, note 2, p. 383. A defendant's statement as "a con- 
 claim having been made against de- temptible, cowardly and malicious 
 fendant's principal, he, defendant, lie." Defendant replied by referring 
 v/rote in reply, and explaining that to plaintiff's "known character as a 
 plaintiff had no cause of action, held liar," and that any person "scoundrel 
 privileged. (Halloran v. Thompson, enough " to have acted as plaintiff had 
 13 C. B. 333.) A correspondence was "would be unprincipled enough to 
 had between plaintiff's attorney and deny it." Held, that under the statute 
 defendant, respecting a claim for dam- of Virginia defendant's reply was 
 ages made by plaintiff against defend- privileged, and it ought to have been 
 ant; defendant, in justifying himself, left to the jury to say whether he 
 used defamatory language concerning acted bona fide, and only in the pro- 
 the plaintiff; held privileged. (Sayer tection of his own interest. (Chaffin 
 V. Begg, 15 Ir. L. R. N. S. 458; No- v. Lynch, 83 Va. 106.) 
 
 Ian V. Connell, 5 A. J. R. 20.) De- s Wright v. Woodgate, Tyr. & Gr. 
 
 fendant published in a newspaper that 12. 
 
§ 24I.J INFORMATION OR ADVICE. 
 
 401 
 
 unfounded criminal charge against the suspected person.^ 
 An insurance company, of which the defendant was presi- 
 dent, made an insurance against fire on the property of 
 one Graves in the occupation of the plaintiff; an applica- 
 tion was made to the company to alter the policy ; the 
 application was refused, and notice given that the policy 
 would be canceled. Graves inquired the reason for this, 
 and was told by the defendant that the company would 
 not insure any building occupied by plaintiff, as a building- 
 insured by the company and occupied by the plaintiff had 
 been burned under very suspicious circumstances, adding: 
 " What would vou think of a man being seen round the 
 store at two or three o'clock in the morning before the 
 fire .? " this was held to be a privileged communication.^ 
 The defendant had the right to give Graves a reason 
 for the company refusing to insure the building owned by 
 him, and Graves was interested to know the opinion the 
 defendant entertained concerning the plaintiff. So where 
 the plaintiff was secretary of the Brewers' Insurance Com- 
 pany, and he being charged with misconduct was called 
 upon to attend a board of directors, for the purpose of ex- 
 planation, but declined to do so ; whereupon the directors, 
 after hearing the charges, passed a resolution that he had 
 been guilty of gross misconduct, and dismissed him. The 
 defendant, a director of that company, and also of the 
 London Necropolis Company, of which the plaintiff was 
 auditor, communicated the fact of the plaintiff's dismissal 
 " for gross misconduct " at a board meeting of the latter 
 company, and proposed a resolution to dismiss him, and, 
 
 > Lawler v. Earle, 5 Allen, 22. and see the house that she [the female 
 
 Action by husband and wife against plaintiff] burned herself, held not 
 
 husband and wife for slander. privileged. (Gillis v. M'Donell, Ir. 
 
 Plaintiff and the male defendant were Rep. 4 C. P. 342. ) 
 tenants, under T., of adjoining parcels ^ Liddle v. Hodges, 2 Bosw. 537. 
 
 of land Plaintiff was under prosecu- Information to the president of an in- 
 
 tion for maliciously burning his build- surance company m which P'amtiff 
 
 ings The female defendant said to was insured, held privileged. (Noonan 
 
 T., it would be worth your while to go v. Orton, 32 Wis. 106.) 
 
 26 
 
402 INFORMATION OR ADVICE. [CH. IX. 
 
 in answer to an inquiry from the chairman, said that the 
 misconduct consisted in " obtaining money from the solic- 
 itors of the company under false pretenses, and paying a 
 debt of his own with it ; " in an action for slander it was 
 held that the publication was conditionally privileged.^ 
 The defendant being a competitor with the plaintiffs for a 
 contract with the navy board for African timber, the 
 plaintiffs obtained the contract. Defendant then agreed 
 to supply plaintiffs with a portion of the timber, and made 
 no objection to taking their bills in payment. Afterwards 
 this agreement was rescinded, and defendant wrote to a 
 merchant who was to supply the timber to carry out the 
 agreement, and of whom the defendant was a creditor, and 
 the sole correspondent in London, reflecting on the plaint- 
 iffs' mercantile character, and putting said merchant on his 
 guard against them. In an action for libel in making this 
 communication, a verdict having been found for the de- 
 fendant on the ground of privilege, the court granted anew 
 trial.* The plaintiflF was a dealer in beer, buying it of a 
 brewer and selling it to publicans. Plaintiff wishing to 
 open an account with the defendant, a brewer, one L., 
 became his [plaintiff's] surety for the price of such beer 
 as defendant should from time to time supply the plaintiff, 
 he [defendant] promising to inform L, of any default 
 made by plaintiff in his payments. After plaintiflF and 
 defendant had dealt together for some time, defendant 
 went to L. and spoke in very abusive terms of plaintiff, 
 saying he wished to cheat him, and that he had returned 
 as unmerchantable beer he [plaintiff] had adulterated, and 
 
 1 Harris v. Thompson, 13 C. B. that he would soon be a bankrupt, 
 33 ; see Parsons v. Surgey, 4 Fost. & when spoken in confidence and friend- 
 F. 247. ship as a caution, held not to be ac- 
 
 2 Ward V. Smith, 6 Bing. 749. In tionable unless the jury found there 
 Van Spike v. Cleyson (Cro. Eliz. 541), was malice. (Herver v. Dowson, Bull, 
 it is said not to be actionable for one N. P. 8. ; see note 2, p. 383, ante.) 
 man to tell another confidentially not The publication being confidential is 
 to trust another, if done only by way not of itself a defense. (Byam v. 
 of counsel. Words of a tradesman Collins, i n N. Y. 143.) 
 
§ 24IA.J INFORMATION OR ADVICE. 
 
 403 
 
 that he was a rogue, &c. At this time there was a balance 
 due defendant from plaintiff for beer, in respect of which 
 L. was liable on his guaranty. Lord Ellenborough in- 
 clined to think the communication conditionally privi- 
 leged ; he refused, however, to nonsuit the plaintiff, and a 
 juror was withdrawn.^ Plaintiff was engaged to super- 
 intend the works of a railway company, and subsequently, 
 at a general meeting of the proprietors, the engagement 
 was not continued, but a former inspector was reinstated. 
 Afterwards a vacancy occurred in the situation of engineer 
 to the commissioners for improving the river Wear, and 
 the plaintiff became a candidate. The defendant wrote to 
 C. introducing D. as a candidate, and C. having written 
 defendant informing him that another person [the plaint- 
 iff] had succeeded in obtaining the appointment, the de- 
 fendant wrote an answer to C. reflecting on the conduct 
 of the plaintiff whilst superintendent of the railway 
 works. It appeared that defendant and C. were both 
 shareholders in the railway company, and that defendant 
 managed C.'s affairs in the railway. Held not a privileged 
 publication.^ 
 
 § 241 a. A party is justified in giving his opinion bona 
 fide of the respectabilty of a tradesman in answer to an 
 inquiry concerning him;^ thus it is said that the owner of 
 a public house cannot maintain an action against a neigh- 
 boring publican for giving a bad character of such house 
 to a person who, being in treaty for purchasing it, applied 
 to the defendant for information, provided (as is stated) 
 there is some evidence of the truth of the assertion.* In 
 
 1 Dunman v. Bigg, i Camp. 269 ; 234 ; generally otherwise when there 
 and see Rex v. Jenneaur, 3 Bac. Abr. is no inquiry (Id.), but it depends 
 tit. Libel, 452; 2 Brownl. 151 ; 2 Bums' upon the circumstances. 
 
 Eccles. Law, 179; W^ilson 7/. Stephen- * Humber v. Ainge, Manning's 
 
 son, 2 Price, 282. Index, tit. Libel, pi. 13. Where a 
 
 2 Brooks V. Blanshard, i Cr. & M. person authorized to make a privi- 
 770. leged communication stated false 
 
 ' Storey v. Challands, 8 C. & P. matter, and the court left it to the 
 
404 INFORMATION OR ADVICE. [CH. IX. 
 
 an action for slander by the plaintiffs, bankers at M., the 
 charge was that in answer to a question from one Watkins, 
 whether he [defendant] had said that plaintiffs' bank had 
 stopped, defendant's answer was, " It was true ; he had 
 been told so." The proof was that Watkins met defend- 
 ant and said, " I hear that you say the bank of B. <fe S. 
 [plaintiffs] has stopped. Is it true ? " Defendant answered, 
 " Yes, it is ; I was told so," and added, " It was so reported 
 at C, and nobody will take their bills, and I have come to 
 town in consequence." Watkins said, " You had better take 
 care what you say ; you first brought the news to town and 
 told Mr. John Thomas of it." Defendant repeated, " I was 
 told so." It further appeared that defendant had in fact 
 been told there was a run on plaintiffs' bank, but not that 
 it had stopped, or that nobody would take the plaintiffs' 
 bills. It was held on the trial that the publication of the 
 words alleged was proved, and the jury were instructed that 
 if they thought the words were not spoken maliciously, the 
 defendant ought to have a verdict. The jury found for 
 the defendant. On plaintiffs' motion a new trial was 
 ordered. On granting the new trial, the court discussed 
 at length the question of malice, and the supposed dis- 
 tinction between malice in fact and malice in law,^ and 
 stated that there was no instance of a verdict for the 
 defendant on the ground of want of malice,* held, that 
 instead of instructing the jury that if the words were 
 not spoken maliciously, they should find for the defend- 
 ant, it should have been left to the jury as a previous 
 question whether the defendant understood Watkins as 
 •asking for information for his own guidance, and that 
 
 jury to say whether, " in communicat- (Wakefield v. Smithwick, 4 Jones' Law 
 ing what he had heard and believed to [N. Car.], 327; but see Clarke v. 
 be true," he acted in good faith, and Molyneux, 3 Q. B. Div. 237 [C. A.].) 
 there was no evidence that he had ^ See ante, note 3, p. 67. 
 heard anything, nor none as to how he » See contra, Wilson v. Stephen- 
 believed, it was held to be error, son, in note 2, p. 69. ante. 
 
§ 24IA.J INFORMATION OR ADVICE. 405 
 
 defendant spoke what he did merely out of honest advice 
 to regulate the conduct of Watkins, then the question of 
 malice in fact would have been proper as a second ques- 
 tion to the jury, if their minds were in favor of the defend- 
 ant upon the first. . . In granting a new trial the court 
 does not mean to say that it may not be proper to put the 
 question of malice as a question of fact for the considera- 
 tion of the jury ; for if the jury should think that, when 
 Watkins asked his question, the defendant understood it 
 as asked to obtain information to regulate his (Watkins') 
 conduct, it will range under the cases of privileged com- 
 munications, and the question of malice in fact will then 
 be a necessary part of the jury's inquiry ; but it was not 
 left to the jury to consider whether the question was un- 
 derstood by the defendant as an application for advice, 
 and if not so understood the question of malice was im- 
 properly left to the jury.^ A bank officer may properly 
 show to one who inquires of him as to the standing of a 
 merchant who has had business relations with the bank, 
 letters which the former has received impugning the credit 
 of the latter, and even an anonymous letter received so 
 long as a year previously. Although the bank officer had 
 no legal duty cast upon him to give the opinion, unless 
 actuated by malice, he may tell what he knows ; and 
 although an anonymous letter is usually a very despicable 
 thing, anonymous letters may be very important, not by 
 reason of what they say, but because they lead to inquiry 
 which may substantiate what they have said. Hence, one 
 to whom inquiries are addressed may, in good faith, show 
 for what it is worth an anonymous letter he had received.^ 
 Where a party interested in a building contract, on which 
 the plaintiff had been engaged, applied to the defendant 
 to recommend a surveyor to measure the work, when the 
 
 1 Bromage v. Prosser, 4 B. & C. ^ Robson v. Smith, 38 Law Times, 
 
 247; 6 Dowl. & R. 296. N. S. 423- 
 
406 INFORMATION OR ADVICE. [CH. IX. 
 
 defendant stated that he had seen the plaintiff take away 
 some of the materials, upon which the plaintiff's employer 
 inquired of the defendant if he had seen plaintiff taking 
 them away, when he alleged that he had seen the plaintiff 
 taking them, and that he hallooed to him ; held, that the 
 judge properly directed the jury to say, first, whether the 
 words imputed felony ; and secondly, that even if they did 
 the plaintiff was not entitled to recover, unless malice was 
 expressly shown, or the jury believed, from the circum- 
 stances, that the defendant was actuated by malicious mo- 
 tives.^ Where A. had sold goods to B,, and afterwards, 
 and before the delivery of the goods, C, without being 
 asked or solicited in any way to do so, made representa- 
 tions to A. injurious to the credit of B., the representa- 
 tions were held not to be privileged, because made with- 
 out any previous request,^ And where A., seeing that 
 apartments were to let at a house occupied by B., inquired 
 who was the landlord, of C. (a neighbor of B.'s) ; C. told 
 him, and added that B. had not paid his rent, and that if 
 A, moved in his goods they would be seized. B. having 
 sued C. for slander, the judge, at the trial, told the jury 
 " he thought it was a privileged communication by C, 
 unless they were of opinion it was made maliciously ; that 
 the question for them was, did the defendant honestly be- 
 lieve, at the time he spoke the words, that the statement 
 contained in them was true, or was he actuated by maHce 
 in making such statement ? — held that there was no mis- 
 direction. But the court granted a new trial, not being 
 satisfied of the fact whether C.'s statements were made 
 officiously or in answer to A,'s inquiries.® The plaintiff 
 was foreman to one Bryer, a bone merchant. In October, 
 1865, defendant gave Bryer an order for 100 quarters of 
 
 ^ Kine v. Sewell, 3 M. & W. 297. and see Pattison v. Jones, 3 M. & R. 
 « King V. Watts, 8 C. & P. 614; loi. 
 
 ' Chapman ■z'. Wright, i Am. 241. 
 
§ 241 A.] INFORMATION OR ADVICE. 407 
 
 sheep's hoofs. Plaintiff by mistake delivered 1 20 quarters. 
 On the day following the delivery, plaintiff informed a 
 clerk of the defendant of the mistake, and made an addi- 
 tional charge in defendant's account. In September, 1866, 
 defendant called on Bryer, and said, " I lay 20 quarters of 
 sheep's hoofs to your foreman and my clerk. There was 
 an overture made by your foreman to divide the price of 
 the 20 quarters, and pocket the money between them. It 
 has been on my mind some time, and it is best to let you 
 know it. Your foreman made improper overtures to my 
 clerk to get the money for those 20 quarters and divide 
 whatever the amount was." This was held to be privi- 
 leged.^ Whether a caution not to trust another, bona 
 fide given to a tradesman, without any inquiry on his 
 part, is a privileged communication, was discussed in 
 Bennett v. Deacon,^ and it was held by Tindal, Ch. J., 
 and Erie, J., that it was, and by Coltman and Cresswell, 
 JJ., that it was not. The effect of a previous inquiry was 
 very elaborately discussed in a case where C, the mate of 
 a ship, wrote to the defendant, falsely charging his cap- 
 tain (the plaintiff) with having endangered the vessel 
 and lives of the crew by continued drunkenness. The 
 vessel was at this time in port, and likely to continue 
 there a few days. The defendant, who was shghtly ac- 
 quainted with the owner of the vessel, but was not inter- 
 ested in the vessel, and had no inquiry made of him, 
 believing in the truth of the letter, showed it to the 
 owner, who, in consequence, dismissed the captain. In 
 an action for libel by the captain, upon these facts appear- 
 ing on the trial, the chief justice directed the jury that if 
 the defendant acted honestly and bona fide^ the publica- 
 tion was justifiable, and their verdict must be for the 
 
 1 Caulfield v. Whitworth, 18 Law Chapman, 16 N. Y. 369; Hart v. 
 Times, N. S. 527. Wall, 45 Week. Rep. 372. 
 
 2 2 Com. B. 628; and see Lewis v. 
 
4o8 
 
 INFORMATION OR ADVICE. 
 
 [CH. IX. 
 
 defendant ; if otherwise, for tiie plaintiff. The jury found 
 a verdict for the defendant. On a motion for a new trial, 
 after the case had been, at the request of the court, twice 
 argued, held, by Tindal, C. J., and Erie, J., that the pub- 
 lication was justifiable, and that the direction to the jury 
 was right; per Coltman, J., and Cresswell, J., that the 
 direction was wrong; the court being equally divided, 
 the motion for a new trial was denied, and the defendant 
 had judgment.^ Where W. went to inquire of defendant 
 the address of plaintiff, who had previously been a tenant 
 of the defendant, in the course of a conversation which 
 ensued, defendant spoke disparagingly of the plaintiff, 
 
 1 Coxhead v. Richards, 15 Law 
 Jour. R. 278, C. P.; 10 Jur. 984; 2 
 C. B. 569. In our opinion, the Chief 
 Justice and Justice Erie were right, 
 and Justices Cresswell and Coltman 
 wrong, and of the like opinion were 
 the court in Davis v. Reeves (5 Ir. 
 Com. Law Rep. 79). In Leutner v. 
 Mirfield, before Lord Coleridge, April 
 30, 1880, his Lordship expressed an 
 opinion that the doctrine of privilege 
 had, since Coxhead v. Richards, been 
 carried too far, and that he was in- 
 clined to adopt the views of Coltman 
 and Cresswell, JJ., in that case. The 
 ruling of Coleridge, J., in Leutner v. 
 Mirfield, was upheld on appeal. (69 
 Law Times, 20.) The importance of 
 the principles involved justifies the 
 reiteration of our conclusion that the 
 material question in such a case is. 
 Was the communication made bona 
 fide to protect the interests of the per- 
 son spoken to, without regard to its 
 effect upon the party spoken of, and 
 without any ill-will towards or desire 
 to injure the person spoken of? If 
 yea, it is privileged, and the absence 
 or presence of a previous request is 
 only material as evidence of the intent. 
 This is conceded to be the law in the 
 case of an employer giving what is 
 termed a character to an ex-employee, 
 and we shall show (§ 245) this latter 
 act comes within the general rule of a 
 communication made to protect the 
 
 interests of the person to whom the 
 communication is made. On the 
 argument of Coxhead v. Richards (2 
 C. B. 591), Sir T. Wilde, for the 
 plaintiff, says : " The cases as to 
 characters of servants are not in point. 
 Judges may have been wrong in sup- 
 posing that a former master stands in 
 a peculiar position. // may be said 
 that the servant authorizes the master 
 to libel him " (note to § 245, posC). 
 But, right or wrong, the cases proceed 
 upon that distinction. (Erie, J. : In 
 those cases it is perfectly immaterial 
 whether the party was a volunteer, the 
 sole question is, whether the informa- 
 tion was given honestly and bona fide. 
 Cresswell, J.: Mr. Justice Bayley 
 deals much more clearly with the prin- 
 ciple upon which this class of cases 
 proceeds than Lord Tenterden does, 
 in Pattison v. Jones.) And at page 
 609, Erie, J., denies that the relation 
 of master and servant is the material 
 one in cases of privileged communica^ 
 tion. The action of the defendant in 
 the case now before us seems to be 
 as consistent with a natural and praise- 
 worthy impulse to protect the interest 
 of the ship owner, and to protect the 
 lives of the persons committed to the 
 plaintiff 's care, as with a desire to in- 
 jure the plaintiff, and should not be 
 considered as by itself evidence of 
 malice. {Ante, note 4, p. 403.) 
 
241 A.J INFORMATION OR ADVICE. 
 
 409 
 
 and although W. told defendant he did not come to in- 
 quire into plaintifif's character, but only to obtain his 
 address, defendant continued to speak concerning the 
 plaintiff, and used words imputing that he was a swindler, 
 but added that he spoke in confidence ; in an action for 
 these words alleging special damage, it was held proper 
 to leave it to the jury to say whether defendant acted 
 with malice or bona fide for the purpose of putting W. 
 on his guard.^ The defendant being tenant to A. of a 
 house, B., the agent of A., directed the plaintiff to do 
 some repairs at the house. The plaintiff did the repairs, 
 but in a negligent manner, and during the progress of the 
 work got drunk ; circumstances occurred which induced 
 the defendant to believe that the plaintiff had entered his 
 (defendant's) cellar, and taken his cider deposited there. 
 Two days afterwards, defendant met the plaintiff in the 
 presence of D., and charged him with having got drunk 
 and spoiled the work, and broken into his (defendant's) 
 cellar. The defendant afterwards told D., in the absence 
 of plaintiff", he was certain plaintiff had broken open the 
 door. On the same day, the defendant complained to B. 
 that plaintiff had been negligent with the work, had got 
 drunk, and, as he thought, had broken open his cellar 
 door. In an action of slander for these three several pub- 
 lications, held, that the first and third publications were 
 conditionally privileged, and the second was not privi- 
 leged.* Where the defendant, a son-in-law, addressed a 
 letter to his mother-in-law, about to marry the plaintiff, 
 containing slanderous imputations against him : held, that 
 the occasion justified the writing, and that the jury were 
 to say whether the defendant acted bona fide, and under a 
 belief of the truth, although the imputations were false, 
 and that such communications were to be regarded liber- 
 
 ' Picton V. Jackman, 4 C. & P. ^ Toogood v. Spyring, i Cr. M. & 
 
 257. R- 181 ; 4 Tyrw. 582. 
 
4IO 
 
 INFORMATION OR ADVICE. 
 
 [CH. IX. 
 
 ally, unless a clearly malicious intention was manifest in 
 the act.^ That the defendant knew of the falsity of the 
 charge published, is a fact from which malice may be in- 
 ferred.* A letter to a woman containing defamatory mat- 
 ter concerning her suitor, cannot be justified on the 
 ground that the writer was her friend and former pastor, 
 and that the letter was written at the request of her 
 parents, who assented to all its contents.^ So if one not 
 having been inquired of, write to the family of a woman 
 that the man she is about to marry has been imprisoned 
 for larceny, the communication is not privileged.* A. and 
 defendant, two unmarried women, were intimate friends. 
 A. said to defendant, you have a brother and I have you ; 
 you are more likely than I to get information concerning 
 young men, and if you learn anything of any man I go 
 with, let me know. Four years after this, A. went with 
 plaintiff, a lawyer. Defendant wrote A several defamatory 
 things concerning plaintiff. In an action by plaintiff, 
 
 ^ Todd V. Hawkins, 8 C. & P. 88 ; 
 2 M. & Rob. 2o. The court having 
 instructed the jury "that confidential 
 communication, made in the usual 
 course of business, or of domestic or 
 friendly intercourse, should be liberal- 
 ly viewed by juries," held that the 
 charge was right. (Stallings v. New- 
 man, 26 Ala. 300.) A grand jury had 
 an indictment for theft of money be- 
 fore them, and a brother of the man 
 who had lost the money, returning 
 from the court, stated that fact in 
 answer to inquiries made of him, and 
 said that the general opinion was, 
 that, if a certain person swore what he 
 had stated, the accused would be con- 
 victed. This brother was afterwards 
 sued for slandering the accused, by 
 saying that "he believed he stole the 
 money," and it appeared that the 
 words laid in the declaration, if 
 spoken at all of the plaintiff, were 
 spoken in a private conversation with 
 a brother of the defendant, both being 
 brothers of the man whose money had 
 been stolen, and were overheard by 
 
 one who had been employed to listen. 
 Held, that the occasion, and the rela- 
 tionship between the parties, afforded 
 a prima facie justification, sufficient 
 to defeat the action, in the absence of 
 any other proof of malice than what 
 arose from the mere speaking of the 
 words. (Faris v. Starke, 9 Dana, 
 128.) 
 
 2 Hartwell v. Vesey, 3 Law Times, 
 N. S. 275; Harwoodz/. Keech, 6 Sup. 
 Ct. Rep. (T. & C.) 665; 4 Hun, 389; 
 see post^ % 389 ; ante, note 2, p. 399. 
 
 ' Joannes v. Bennett, 5 Allen 
 (Mass.), 169; and see Rosbotham v. 
 Campbell, 5 Ir. Jur. N. S. 243. 
 
 * Krebs v. Oliver, 12 Gray, 239. 
 When A., a relative of defendant, was 
 about to marry one C, the defendant 
 wrote a letter to B. , a sister-in-law of 
 A., containing defamatory matter 
 concerning C, and requesting B. to 
 repeat such matter to A., held privi- 
 leged. (Atkinson v. Congreve, 7 Ir. 
 Com. Law Rep. 109; post, p. 411, 
 notes I, 2.) 
 
§ 24IA.] INFORMATION OR ADVICE. 4I I 
 
 based on this letter, held, one judge dissenting, the letter 
 was not privileged.^ Where the wife of A., prior to her 
 decease, made a request to B., after her (A.'s) decease, to 
 look to and advise her daughters. The wife of A. died, 
 and he remarried. B. told the daughters of A.'s deceased 
 wife that their step-mother was a loose woman, and that 
 they ought to leave their home ; this was held to be a privi- 
 leged publication.^ The plaintiffs, printers at M., had been 
 employed by the defendant, the deputy clerk of the peace 
 for the county of K.,to print the register of electors for the 
 county, the expense of which was defrayed from the coun- 
 ty rate, and allowed by the justices at quarter sessions ; 
 afterwards the defendant employed another printer, who 
 agreed to do the work at a lower rate than that which the 
 plaintiffs required, and he wrote a letter to the " finance 
 committee " appointed to superintend such expenses, in 
 the conclusion of which he imputed improper motives to 
 the plaintiffs in the demand which they made, and charac- 
 terized their demand as " an attempt to obtain a consider- 
 able sum of money from the county by misrepresentation," 
 In an action for libel, it was held that the occasion of 
 writingthe letter prima facie rebutted the presumption of 
 malice, but that it was a question for the jury whether the 
 sentence complained of as exceeding the privilege was 
 evidence of malice.^ The defendant, bona fide believing 
 that the plaintiff, who was a clerk to one M., a customer 
 of the defendant, and who had been sent to the defendant's 
 shop by M., had, while there, stolen a box from an inner 
 room,went to M.,and, after telling him of his loss intimated 
 his suspicion of the plaintiff, saying, " There was no one else 
 in the room, and he must have taken it." Held, that the 
 
 1 Byam v. Collins, in N. Y. 143; conditionally privileged. (Atwill v. 
 rev'g 39 Hun, 204. Mcintosh, 120 Mass. 177.) 
 
 2 Adcock V. Marsh, 8 Ired. 360. ^ Cooke v. Wildes, 5 El. & Bl. 
 Report of persons employed by plaint- 328 ; 24 Law Jour. Rep. N. S. 367 Q. 
 iff's wife's father to make inquiries B. ; I Jur. N. S. 610. 
 
 about him made to her mother, held, 
 
412 INFORMATION OR ADVICE. [CH. IX. 
 
 communication was privileged by the occasion.^ A letter 
 written to B., concerning the plaintiff, who was steward of 
 B,'s estate, was held to be privileged.^ A communication 
 made by one subscriber to a charity to another subscriber 
 to the same charity, respecting the conduct of the plaintiff, 
 the medical attendant in the employ of such charity, held 
 not to be privileged.^ Where the alleged libel was con- 
 tained in a handbill offering a reward for the recovery of 
 bills, and stating that the plaintiff was believed to have 
 embezzled them ; held, that if done with the view solely to 
 protect persons liable on the bills, or for the conviction of 
 the ofifender, it was a good defense ; and that, in order to 
 show the bona fides of the defendant, evidence of his having 
 preferred a charge of the same nature against the plaintiff 
 was admissible.* A communication by a landlord to his 
 tenant, respecting the conduct of sub-tenants, or persons 
 in the employ of the tenant, is conditionally privileged ; 
 as where the defendant complained to E., his tenant, that 
 her lodgers, of whom the plaintiff was one, behaved im- 
 properly at the windows, and he added that no moral 
 person would like to have such people in his house.* So 
 communications made by an employer to his employee, or 
 by an employee to his employer, are conditionally privi- 
 
 » Amann v. Damm, 8 C. B. N. S. belief of their truth. (Maitland v. 
 
 597- Bramwell, 2 Fost. & F. 623; and see 
 
 2 Cleaver v. Sarraude, cited i Lawless v. Anglo-Egyptian Cotton 
 Camp. 268, note Co. Law Rep. 4 Q. B. 262.) 
 
 3 Martin v. Strong, 5 Adol. & El. « Finden v. Westlake, Moo. & 
 535; I Nev. & P. 29. A letter writ- Malk. 461. An advertisement in a 
 ten by the defendant, a subscriber to newspaper, warning the public against 
 a charity, to the managing committee, negotiating certain notes which had 
 impugning the moral character of the been obtained from their alleged own- 
 plaintiff, the secretary of said charity, er by fraud or theft, is privileged, 
 in reference to a person whom defend- (Commonwealth v. Featherston, 9 
 ant has recommended as matron ; and Phila. [Pa.] 594.) 
 
 a second letter by the defendant to ' Knight v. Gibbs, 3 Nev. & M. 
 
 said committe, in answer to inquiries 467 ; i Adol. & El. 43. Besides that 
 
 made by them, and also oral state- the tenant was interested to know the 
 
 ments made by the defendant to said character of her lodgers, the defend- 
 
 committee, were held to be privileged ant was interested to maintain the 
 
 if made with an honest and reasonable reputation of his house. 
 
§ 24IA.] INFORMATION OR ADVICE. 4I3 
 
 leged in certain cases. Thus, defamatory words spoken 
 by an employer to his overseer, intended to protect the 
 employer's private interests and property, spoken without 
 malice, were held privileged.^ So where the plaintiff was 
 a wine merchant, and the defendant the surgeon to a poor 
 law union. The plaintiff made a proposal to supply wine for 
 the use of the sick paupers, defendant advised the board of 
 guardians not to accept plaintiff's proposal, alleging that 
 the wine which plaintiff would supply would not be of 
 the kind represented. Defendant's language was held 
 privileged.^ The communicaton of an agent to his 
 principal, touching the business of his agency, and not 
 going beyond it, is privileged, and is not actionable 
 without proof that the defendant did not act honestly 
 and in good faith, but intended to do a wanton injury 
 to the plaintiff.^ The defendants, bankers at L., received 
 from C. & Co., of Y., for collection, a note drawn by 
 plaintiffs, merchants at L.; the plaintiffs took up the note 
 at maturity, the 19th of April, by giving a draft on defend- 
 ant's bank, in which they kept their account. The draft 
 overdrew the plaintiff's account, but was accepted by a 
 clerk of the defendant, who, in reply to an offer of one of 
 the plaintiflFs to transfer an amount standing to his individ- 
 ual credit sufficient to meet the check, declared that to be 
 unnecessary. The plaintiffs' account was made good on 
 the 25th day of April, and on the 28th of April defendants 
 remitted to C. & Co. the amount of the note, and added a 
 postscript: "Confidential. Had to hold over a few days 
 for the accommodation of L. & H."— the plaintiflFs. On 
 the trial, there was no evidence as to malice ; the plaintiffs 
 had a verdict on which judgment was entered, and the 
 case went to the Court of Appeals, where the judgment 
 
 ' Easley v. Moss, 9 Ala. 266. * Washburn v. Cooke, 3 Demo, 
 
 " Murphy v. Kellett, Ir. Rep. 13 no. 
 Com. Law, 488. 
 
414 PASTOR AND PARISHIONER. [CH. IX. 
 
 was reversed, and a new trial ordered; and the court said, 
 ''Assuming that the defendant made the communication in 
 perfect good faith, as we must on this question of privi- 
 lege, his act was not to be deemed officious, as it related 
 to the very business with which he was intrusted."^ The 
 sheriff levied upon certain cattle of W., and they were 
 wrongfully driven away, whereby he was likely to be 
 damnified; he employed C, a law student, to ascertain the 
 facts, and to advise what course it was best to pursue; 
 held, that C.'s letter to the sheriff, stating facts implicating 
 W., and advising his arrest for larceny of the cattle, was 
 privileged.* 
 
 § 241 ^. The communication of a pastor to his parish- 
 ioners, relating to matters not spiritual, is not necessarily 
 privileged; as where the plaintiff, who had been for twenty 
 years schoolmaster at the national school of the adjoining 
 parishes of C. & I., of which the defendant, the rector of 
 C, and another person, the vicar of 1., were trustees, was 
 requested by the defendant to undertake the Sunday school 
 of his parish ; he declining to do so, was removed from the 
 mastership of the national school; he afterwards, intend- 
 ing to gain a livelihood by it, set up a school in the de- 
 fendant's parish, in a school-room used as a dissenting 
 chapel. In a letter addressed to his parishioners, the de- 
 fendant told them that the plaintiff's attempt betrayed a 
 spirit of opposition to authority, and justified the man- 
 agers of the national school in removing him ; that " no 
 rightly-disposed Christian, who received in simple faith 
 the teaching of inspiration, 'Obey them who have the rule 
 over you, and submit yourselves,' could expect God's 
 blessing to rest upon such an undertaking," and warned 
 them against countenancing it, either by subscriptions or 
 sending their children to it for instruction ; that it would 
 
 1 Lewis 7/. Chapman, 16 N.Y. 369; ^ -vv^ashbum v. Cooke, 3 Denio, 
 
 rev'g 19 Barb. 253. no. 
 
§ 24IC.] CUSTOMER AND TRADESMAN. 
 
 415 
 
 be a schismatical school, and those who aided the plaintiff 
 in any way would be partakers with him in his evil deeds ; 
 they were to mark them which cause divisions and of- 
 fenses, and avoid them, &c. On the trial, the presiding 
 judge held the communication a privileged one, and in the 
 absence of any evidence of malice, ordered a verdict for 
 the defendant ; on motion for a new trial, this direction 
 was held erroneous, and that the jury should have de- 
 termined whether the publication was not malicious on 
 its face.^ 
 
 § 241 1. A customer may in good faith complain to a 
 tradesman with whom he deals of anything he may deem 
 irregular or dishonest in the conduct of such tradesman 
 towards him (the customer); as where the plaintiff, a 
 butcher, sold meat to the defendant, and defendant after- 
 wards called at plaintiff's shop, and, in the presence of sev- 
 eral of his customers, said: " I intended to have dealt with 
 you, but shall not do so, for you changed the lamb that I 
 bought of you for a coarse piece of mutton." Held that 
 if the statement was made in good faith, it was privileged.^ 
 And where the defendant, a customer of the plaintiff, a corn 
 dealer, went to the place of business of the plaintiff, and 
 
 ^ Gilpin 7/. Fowler, 9 Ex. 615; 23 had not only refused to sanction his 
 
 Law Jour. Rep. N. S. 152, Ex.; 18 selling meat to Jews, but had em- 
 
 Jur. 292 ; see § 399, post. There are ployed emissaries to warn his custom- 
 
 in Scotland many reported cases of ers that what he sold was common 
 
 the recovery of damages against min- and unclean. As a consequence he 
 
 isters of the Gospel, for words spoken lost his business. The judge ruled 
 
 in the pulpit. (See 2 Shaw's Digest, that there was no evidence to go to 
 
 1613, tit. Reparation; and 10 Alb. the jury, and even had there been any 
 
 Law Jour. 240, art. "Privilege of the proof of the alleged slander, he should 
 
 Pulpit." See ante, p. 195, n. 6, p. 199, have told the jury that the communi- 
 
 n. 8, and Messire v. Blanchard, Ram- cation was privileged, 
 sey's App.Cases,42i; McGrath?' Finn, ^ Crisp v. Gill, 29 Law Times, 82. 
 
 1 1 Jr. L. Times R. 103; 16 Alb. L. J. A dealer in paints, who sells them 
 
 186.) A Hebrew butcher, named upon condition that they be used 
 
 Schott, complained that after having without adulteration, may in good 
 
 opened a shop in Whitechapel, where faith complain of one whom he sus- 
 
 he had obtained a considerable busi- pects of adulterating his paint. (Lynch 
 
 ness amongst persons of his own per- v. Febiger, 39 La. Ann. 336.) 
 suasion, the defendant, Chief Rabbi, 
 
41 6 CONFIDENTIAL RELATION. [CH. IX. 
 
 using abusive language to plaintiff in a loud and angry 
 tone of voice, said, among other things : I know all about 
 you and your family, and you have robbed me ever since I 
 have dealt with you. Held that the jury were to deter- 
 mine, from the language used, and from the tone and 
 manner in wTiich it was used, whether the defendant was 
 merely in good faith making a complaint concerning a 
 supposed wrong done him, and if so, it was privileged; 
 that making the complaint in a loud voice, and in abusive 
 terms, outside of the plaintiff's shop or in the presence of 
 third parties, were circumstances from which the jury 
 might infer malice ; and if the statement was made mali- 
 ciously, it was not privileged.^ 
 
 § 242. When once a confidential relation is established 
 between two persons with regard to an inquiry of a private 
 nature, whatever takes place between them relative to the 
 same subject, though at a time and place different from 
 those at which the confidential relation began, may be en- 
 titled to protection as well as what passed at the original 
 interview ; and it is a question for the jury whether any 
 future communication on the same subject, though appar- 
 ently casual and voluntary, did not take place under the 
 influence of the confidential relation already established 
 between the parties, and therefore entitled to the same 
 protection.^ 
 
 § 243. Where a publication would be privileged if 
 made, and because made to some certain person, the 
 privilege may be forfeited by the publication being made 
 to some other person ; as where C. was employed, for 
 compensation, by certain merchants in New York, in ob- 
 taining information concerning the business character 
 
 1 Oddy V. Paulet, 4 Fost. & F. 2 Beatson v. Skene, J Hurl. & N. 
 
 1009; Kent V. Bongratz, 20 The Re- 838; see ante, note 4, p. 379. 
 porter, 570. 
 
§ 243-J 
 
 COMMERCIAL AGENCY. 
 
 417 
 
 and standing of their customers, and others in other 
 States, doing business in New York. He wrote for their 
 use, from the residence of T. & Co., a letter unfavorably 
 representing them, and on his return had it and similar 
 letters printed in a pamphlet, which he gave privately to 
 his employers and others, some of whom had dealt with 
 T. & Co. Held, that although the publication might 
 have been privileged if made only to such of his em- 
 ployers as were interested in the pecuniary standing of 
 T. & Co., the privilege was lost by the publication being 
 made to other persons.^ And so held of a circular letter 
 sent by the secretary of a society for the protection of 
 trade to the members of such society.^ A communication 
 
 1 Tavlorz/. Church, i E. D. Smith, 
 279; 8 iSf. Y. 452; Cook V. Hill, 3 
 Sandf. 341 ; Bradstreet v. Gill, 9 
 So. West. Rep. 757; 39 Alb. L. J. 
 216; Locke V. Bradstreet Co. 22 
 Fed. Rep. 771; Erber v. Dun, 12 
 Id. 526; Trussell v. Scarlett, 18 Id. 
 214; State ex rel. Lanning v. Lons- 
 dale, 48 Wis. 348 ; King v. Patterson, 
 49 N. J. L. 417, a very elaborately 
 considered case ; Holmes v. Harring- 
 ton, 3 West. Rep. 296; Eaton v. 
 Avery, 83 N. Y. 34. In the case 
 last cited Rapallo, J., said: The 
 court will take judicial notice of 
 "the business and office" of "com- 
 mercial agencies." "They are so 
 well known, and have been so often 
 the subject of discussion in adjudicat- 
 ed cases, that the court can take ju- 
 dicial notice of them." "A commercial 
 agency is a lawful business, and when 
 conducted lawfully is a benefit to so- 
 ciety and trade; but no just reason 
 can be given for a rule that would 
 exempt it from liability for a false and 
 defamatory publication, when other 
 citizens would not be exempt. . . . 
 It is not entitled to any privileges de- 
 nied the ordinary citizen." 
 
 In Todd V. Dunn, Court of Appeals, 
 Toronto, January n, 1888, held that 
 communications between a commercial 
 agency and its correspondents were 
 privileged, as were reports by the 
 
 agency to its subscribers. In O'Con- 
 nell V. Manhattan Commercial Agency 
 (N. Y. Times, March 6, 1884), the 
 agency had reported to one of its 
 subscribers that plaintiff was not 
 trustworthy, in consequence of which 
 he was refused credit. Plaintiff failing 
 to prove malice, Judge Brown, U. S. 
 Circuit Court, Brooklyn, dismissed the 
 complaint. A letter of inquiry by a 
 commercial agency to a creditor of 
 plaintiffs held privileged. (Newell v. 
 How, 31 Minn. 235.) In Christ v. 
 Bradstreet Co. 15 West. Law Bui. 
 334, held that publications by the 
 agency to its subscribers, in good 
 faith, were privileged. 
 
 2 Getting v. Foss, 3 Car. & P. 160. 
 Where the defendant kept a mercantile 
 agency, whose business it was to ob- 
 tain information respecting the credit 
 and responsibility of persons in busi- 
 ness, and to furnish the same to sub- 
 scribers to his agency, it was held 
 that a communication made in good 
 faith to a subscriber to such agency 
 was privileged. " The business in 
 which the defendant was engaged is 
 sanctioned by the usages of com- 
 mercial communities." (Ormsby v. 
 Douglass, 37 N.Y. 477.) In Sherwood 
 V. Gilbert (2 Albany Law Jour. 323) 
 it was ruled at the circuit that the 
 privilege accorded to a mercantile 
 agency, as laid dovv^n in Ormsby v. 
 
4i8 
 
 POSTAL CARDS. 
 
 [CH. 
 
 IX. 
 
 which would be privileged if made to A. only forfeits the 
 privilege if made to A. through the " postal telegraph " or 
 " postal card." It is published to strangers in reaching its 
 destination.^ Circumstances may make a telegram privi- 
 leged, but nothing can excuse a postal card.^ With regard 
 to the report by the officers of a corporation to the stock- 
 holders, of the result of their investigation into the con- 
 duct of their officers and agents, with their conclusions 
 upon the evidence collected by them, it was held to be a 
 privileged communication, but that the privilege extended 
 only to making the report, and not to the preservation of 
 it in the form of a book for distribution among the stock- 
 holders and in the community.^ And where the defend- 
 ant published an advertisement calling a meeting of the 
 creditors of the plaintiff, and in addition defamatory re- 
 marks concerning the plaintiff, the publication was held 
 
 Douglass, does not extend to the 
 country correspondents of the agency. 
 The circular of a mercantile agency, 
 issued to their subscribers generally, 
 is not privileged, although a publica- 
 tion by such an agency to persons 
 having dealings with plaintiff would 
 be privileged. (Commonwealth v. 
 Stacey, i Leg. Gaz. Rep. [Pa.] 114; 
 Sunderlin v. Bradstreet, 46 N. Y. 188.) 
 In Beardsleyz/. Tappan (5 Blatch. C. 
 C. 497) it was held that a communica- 
 tion by the proprietor of a mercantile 
 agency, through his clerks to his 
 customers and their clerks, was not 
 privileged. In that case the plaintiff 
 had a verdict for $10,000. A motion 
 for a new trial was made before Jus- 
 tice Nelson, and denied. The defend- 
 ant appealed to the United States 
 Supreme Court, where the judgment 
 was, December, 1870, reversed on a 
 collateral point. 
 
 In the defendant's brief in Tappan 
 V. Beardsley it was said that only 
 thirteen suits and one prosecution 
 against mercantile agencies for libel 
 had been instituted up to that time, 
 A. D. 1870, and of these, the prose- 
 cution and two suits were then pend- 
 ing, and the residue of the suits were 
 
 either abandoned or had resulted in 
 favor of the defendants. Billings v. 
 Russell (8 Boston Law Rep. N. S. 
 699 [A. b. 1 85 1]) was the first re- 
 ported case for libel against a mercan- 
 tile agency. 
 
 * A publication, otherwise privi- 
 leged, loses its privilege by being sent 
 by postal card or by telegraph. Wil- 
 Uamson v. Freer, L. R. 9 C. P. 393. 
 
 * Robinson v. Jones, L. R. Jr. Q. 
 B. C. P. & Ex. D. 391 ; 20 Alb. L. J. 
 203. In that case defendant sent 
 through the mail, directed to plaintiff, 
 a postal card, upon which was writ- 
 ten: 
 
 Dr. Robinson. 
 
 "To amount goods ren- 
 dered ^i i6j. id. 
 
 By post-office order on 
 account £1 Ss. id. 
 
 8s. Id. 
 
 Sir, your plea of illness for not 
 paying this trifle is mere moonshine," 
 &c. T. Jones & Sons. See note to 
 page 82, ante. 
 
 ' Phil. R. R. Co. V. Quigley, 21 
 How. U. S. Rep. 202; see.Koenig v. 
 Richie, 3 Fost. & F. 413. 
 
§ 243-] BOARD MEETINGS. 419 
 
 not to be privileged, because the meeting of creditors 
 might have been called in a less public manner.^ Where 
 the plaintiffs were contractors for the erection of a borough 
 jail, and the defendants were members of the town council ; 
 the defendants, from their business, were competent judges 
 of the work, and they published, in a local newspaper, a 
 letter charging the plaintiff with omissions and deviations 
 from their contract — in an action for libel, it was held that 
 although the charges contained in the letter would have 
 been privileged if made by the defendants to the town 
 council, they were not privileged when published in a 
 newspaper.^ And although a bank director may be privi- 
 leged at a meeting of the board to speak of the credit of a 
 merchant or customer of his bank, he is not privileged so 
 to speak, even to a co-director, in any other place or at 
 any other time than at such meeting during its session.^ 
 The publication, by the directors of an incorporated society 
 for promoting female medical education, in their annual 
 report, of a "caution to the public" against trusting a per- 
 son who had formerly been employed to obtain and col- 
 lect subscriptions in their behalf, but had since been dis- 
 missed, was held to be justified so far only as it was made 
 
 1 Brown v. Croome, 2 Stark. Cas. the business of the company; that the 
 
 297. words were spoken believing them to 
 
 ^ Simpson v. Downs, 16 Law be true, without maUce, and in refer- 
 
 Times, N. S. 391. ence to the refusal of defendant to 
 
 3 Sewall V. Catlin, 3 Wend. 292. continue acting as manager, on de- 
 Plaintiff and one Taylor were co-direc- murrer the plea was held bad, as not 
 tors of a joint stock company. De- showing a privileged occasion. Taylor 
 fendant stated to Taylor that plaintiff was not shown to have any interest in 
 had been privy to the preparation and the subject-matter, or duty in respect 
 circulation of a false balance sheet of to it. (Waring v. M'Caldin, Ir. Rep. 
 the affairs of the company. Defend- 7 Com. Law, 282.) The case was 
 ant learned that he was the manager tried on the question of fact before the 
 of, and a shareholder in said company, demurrer was argued, and on the 
 and having found the affairs of the trial it was shown the publication was 
 company different from that repre- to others besides Taylor, and that 
 sented in a balance sheet of the affairs such others were in no wise interested ; 
 of said company, published prior to held, this did not divest the occasion 
 his becoming manager, and that he of privilege. Plaintiff had a verdict for 
 refused to act further as manager un- sixpence damages. Court refused to 
 less furnished with means to carry on disturb it. 
 
420 SEEKING REDRESS. [^H, IX. 
 
 in good faith, and was required to protect the corporation 
 and the public against false representations of that person ; 
 and that the questions, whether the directors had acted in 
 good faith, and had not exceeded their privilege, were for 
 the jury.^ The plaintiff, having the defendant's bond, ad- 
 vertised it for sale ; the defendant published a statement 
 of the circumstances under which the bond had been given, 
 with this conclusion : " His (plaintiff's) object is either to 
 extract money from the pockets of an unwary purchaser, 
 or, what is more likely, to extort money from me ; " held 
 not privileged.^ A. understanding that B. imputed to C, 
 a relative of A.'s, the passing to him of a piece of forged 
 paper, told B., untruly, that he was authorized by C. to 
 call upon him and investigate the matter, and B. there- 
 upon repeatedly asserted C.'s guilt of the crime ; held 
 that these assertions were ■ unnecessary and useless, and 
 were not privileged, and it seems they would not have 
 been privileged if A. had been C.'s agent to call upon B. 
 for information.^ 
 
 ^ Gassett v. Gilbert, 6 Gray wards a friend of B.'s called on A. and 
 
 (Mass.), 94; see Hatch v. Lane, 105 asked him if he had made such an ac- 
 
 Mass. 394 ; Holliday v. Ontario Far- cusation ? A. answered, '■ Yes, and I 
 
 mers' Mut. Ins. Co. 33 Up. Can. Q. believe it to be true." Held not privi- 
 
 B. Rep. 558. leged. (Force v. W^arren, 15 Com. B. 
 
 2 Robertson v. McDougall, 4 Bing. N. S. 806 ; and see Smith v. Mathews, 
 
 670; I Mo. & P. 692; 3 Car. & P. \ Moo. & Rob. 151; Griffiths v. 
 
 259- Lewis, 7 Q. B. 61 ; 14 Law Jour. Q. B. 
 
 a Thorn v. Moser, i Denio, 488. 197; <:(7«^ra, see Billings z/. Fairbanks, 
 
 The defendant had suspected, and de- 136 Mass. 177 infra.) Plaintiff's 
 
 clared his suspicion, that a person's daughter had been in defendant's ser- 
 
 wife had committed larceny; but, vice as a domestic servant. After the 
 
 upon being inquired of by that person girl left, defendant's wife went to where 
 
 whether his suspicions continued, re- the girl was staying and claimed some 
 
 plied that he was now satisfied that articles as her property, and as having 
 
 A. B. (a hired maid) stole it. Held been carried away by the girl. The 
 
 that if the communication was privi- giri told this to her father (the plaint- 
 
 leged at all, the defamatory matter, iff), and he, with other relatives, went 
 
 going further than to satisfy the in- to defendant saying he had come to 
 
 quirer that there was reason for the inquire about the charge against his 
 
 suspicion to cease, went beyond the daughter. Defendant said she had 
 
 exigency of the occasion. (Robinett been stealing all the time she had been 
 
 V. Ruby, 13 Md. 95.) A., on an oc- at his house. Plaintiff then inquired, 
 
 casion when no third person was pre- why did you keep her in your service ? 
 
 sent, accused B. of stealing; after- Defendant answered that plaintiff was 
 
§ 244'] 
 
 PRIVILEGED PUBLICATION. 
 
 421 
 
 § 244. There are, however, some cases where the pub- 
 lication to others than those immediately interested or 
 concerned does not forfeit the privilege ;' as where a rail- 
 road employee having been discharged, asked the defend- 
 ant, the general agent of the road, to inform him, plaintiff, 
 the reason for his discharge. The agent answered on the 
 spot, and in the presence and hearing of a number of per- 
 sons, " You are discharged for stealing," etc. ; this, there 
 being no evidence of malice, was held privileged;^ so 
 virhere the plaintiff, a female, went to the store of the de- 
 fendant to make a purchase, and after she left, the shop- 
 man, missing a roll of ribbon, supposed she had taken it, 
 and so informed his employer, the defendant ; the follow- 
 ing day the plaintiff was passing the defendant's store ; the 
 defendant seeing her, called her in, and taxed her with the 
 theft, which the plaintiff denying, the defendant detained 
 her and sent for her father, and in his presence charged 
 
 a thief, and that his family were all 
 thieves, and were all tarred with the 
 same stick; held this was not privi- 
 leged, (Miller v. Johnston, 23 Up. 
 Can. C. P. Rep. 580.) Where the 
 plaintiff, a carpenter, was employed by 
 a builder, and defendant imputed that 
 plaintiff had, while so employed at one 
 Burton's house, carried away some 
 quarterings, the builder afterwards 
 went to defendant and asked him did 
 he say so ? to which defendant replied, 
 ■" Yes, I saw the man employed by 
 you take from Burton's house two 
 long pieces of quartering." Held 
 proper to instruct the jury that the 
 words were privileged unless spoken 
 mahciously. (Kine v. Sewell, 3 M. & 
 W 297.) If one merely acknowledges 
 to having made a statement concern- 
 ing the plaintiff, such acknowledg- 
 ment alone will not sustain an action, 
 but it may be used as evidence of such 
 former statement. (Id. ; and see 
 Burt V. McBain, 29 Mich. 260.) A 
 friend of a person accused of stealing 
 money from his employer went to him 
 and was informed of ground of charge; 
 the charge was repeated in the pres- 
 
 ence of accused. Held conditionally 
 privileged. (Billings z/. Fairbanks, 136 
 Mass. 177.) 
 
 1 Where a defendant, intending to 
 make a communication to A., which 
 to him was privileged, by mistake 
 made the communication to B. ; held 
 that the privilege was not thereby 
 forfeited. (Tompson v. Dashwood, 
 u Q. B. D. 43.) A notice posted in 
 rooms set apart for railway servants, 
 to which the public was not allowed 
 access, though persons sometimes 
 went in, that plaintiff had been dis- 
 missed from the Railway department, 
 for insubordinate language to his su- 
 periors ; held a. privileged publication. 
 (McDonald v. Board of Lands and 
 Works, 5 A.J. R. 34; see Laughton 
 V. The Bishop of Sodor & Man, Law 
 Rep. 4 Pri. C. Cas. 495; Fahr v. 
 Hayes, 50 N. J. L. 275; see § 246, 
 post, Montgomery v. Knox, 23 Fla. 
 
 5950 
 
 2 Beeler v. Jackson, 2 Atl. Rep. 
 (Md.) 916. Where one brings out the 
 alleged slander by a question the 
 answer is privileged. (Palmer 1. 
 Hummerston, i C. & E. 36.) 
 
422 PRIVILEGED PUBLICATION. [CH. IX. 
 
 the plaintiff with stealing the ribbon ; after some alterca- 
 tion the plaintiff was permitted to depart, and afterwards 
 brought an action for slander, in which action it was held 
 at nisi prius that the repetition of the charge to the plaint- 
 iff's father was, under the circumstances, a privileged pub- 
 lication.^ Defendant was manager of a hotel in New York 
 city, a guest of the hotel complained to defendant that 
 plaintiff, a female servant in the hotel, had robbed him, the 
 guest, of a piece of jewelry. Defendant sent for plaintiflF, 
 and in the presence of a fellow servant, but under whose 
 authority, to some extent, plaintiflF was, told plaintiff of 
 the accusation made against her, for this plaintiff brought 
 an action of slander against defendant ; held, in the absence 
 of malice, defendant was not liable.'* And where, in an 
 action for slander, it appeared that the defendant, in the 
 presence of a third person, not an officer of justice, charged 
 the plaintiff with having stolen his property, and afterward 
 repeated the charge to another person, also not an officer, 
 who was, with the consent of the plaintiff, called in to 
 search him, held the charge was privileged if the defend- 
 ant believed in its truth, acted bonajide, and did not make 
 the charge before more persons or in stronger language 
 
 1 Fowler v. Homer, 3 Camp. 294, B., a former employee of A., wrote 
 
 and ante, note 2, p. 386; also Too- down a confession by B. of having- 
 
 good V. Spyring, i Cr. M. & R. 181 ; robbed A., this confession implicated 
 
 4 Tyrw. 582; Manby v. Witt, 18 C, plaintiff, a former employee of A.'s, 
 B. 544: Taylor v. Hawkins, 16 Q. B. in the robbery. This confession was 
 308; Billings V. Fairbanks, 136 Mass. written in presence of B., A., defend- 
 177. M^ords spoken by the defendant ant, defendant's wife, and C, a person 
 which relate to a subject-matter in also in A.'s employ. In an action for 
 which he is immediately interested, libel A. recovered a verdict, on appeal; 
 and are said for the purpose of pro- held that defendant had acted in the 
 tecting his own interest, and in the performance of a social duty, and that 
 full belief that they are true, are privi- there being no inference of malice, the 
 leged communications, though made communication was privileged by rea- 
 in the presence of others than the son of the occasion; held, also that 
 parties immediately interested; audit the fact of defendant's wife and C. 
 is incumbent on the plaintiff to show being present did not divest the privi- 
 malice, in fact, in order to recover. lege. (Jones tj. Thomas, 53 L. T. 
 (Brow V. Hathaway, 13 Allen [Mass.], N. S. 678.) 
 
 239; see Davies v. Snead, Law Rep. 2 Keene v. Sprague, 30 Alb. L. J. 
 
 5 Q. B. 608.) Defendant, the mana- 283, City Co't. N. Y. 
 ger of A.'s business, at the request of 
 
§ 244A.] PRIVILEGED PUBLICATION. 
 
 423 
 
 than was necessary/ Defendant, chief post office inspec- 
 tor, for Canada, was engaged under directions from the 
 Post Master General, in inquiries into certain irregulari- 
 ties in St. John's Post Office. Alone in a room with plaintiff 
 he charged plaintiff with abstracting missing letters, which 
 plaintiff denied. Defendant then called in the assistant 
 Postmaster and said, " I have charged Mr. W. with the 
 abstraction from these money letters, and I have concluded 
 to suspend him." Held privileged.^ The fact that a com- 
 munication, /rz>«a facie privileged, was made in the hear- 
 ing of third persons not legally interested, will afford no 
 evidence of express malice, when their presence appears 
 to have been casual, and not sought for by the defend- 
 
 ant.^ 
 
 § 244 a. When words imputing misconduct, of which 
 
 two persons are alleged to have been jointly guilty, are 
 spoken to one of them under circumstances which made 
 the communication privileged as to him, the statement is 
 privileged as to the other also, and the latter cannot main- 
 
 1 Padmore v. Lawrence, 1 1 Ad. & the parties alleged to have been de- 
 El. 380 ; 3 Per. & D. 209. The plaint- frauded by plaintiff, for the purpose of 
 iff was the matron of a charitable in- procuring the signatures of the prin- 
 stitution ; a charge being made against cipals of such agents to said writing, 
 her, the defendant, the secretary of the was also privileged. (Klinck v. Colby, 
 institution, was appointed to investi- 46 N. Y. 428 ; see Vanderzee v. M'Gre- 
 gate the truth of such charge; in the gor, 12 Wend. 545, page 386, ante.} 
 courseof such investigation the defend- ^ Dewe v. Waterbury, 6 Canada 
 ant, in the presence of third parties, in- Supreme Ct. Rep. 143, Ontario, 
 mates of the institution, made defama- * Fahr z/. Hayes, 50 N. J. L. 275. 
 tory statements concerning the plain- Defendant told his late servant he 
 tiff. Held to be conditionally privileged. suspected her of stealing, and also 
 (Wallace v. Carroll. 11 Ir.Com. L. R. stated his suspicion to an employment 
 485.) We, the undersigned, who agent, through whom he had employ- 
 have been robbed and swindled by ed her, in consequence of which she 
 [naming the plaintiff and others], lost the situation she then had. Held, 
 realizing that justice demands said conditionally privileged. (McDonald 
 parties should be punished for the v. Ryland, 5 Legal Notes, 291.) 
 offenses they have committed, here- Where defendant, plaintiff's employer, 
 by agree that we will bear equal- accused him of embezzlement. The 
 ly all expenses, incurred in pros- accusation not appearing to have been 
 ecuting said [naming plaintiff and made in reference to any investigation 
 others]. Defendants signed a writing of plaintiff's accounts, held not privi- 
 on the above terms; held it was privi- leged. (Brothers v. Fobes, 17 Week. 
 leged, and held further, that the exhi- Dig. 474.) 
 bition of said writing to the agents of 
 
424 PRIVILEGED PUBLICATION. [CH. IX. 
 
 tain an action in respect of such statement ; thus where it 
 appeared that one Snead, the plaintiff, was an attorney and 
 the legal adviser of the Rev. H. H., who was trustee for 
 one widow D. and her children, and also rector of the par- 
 ish in which defendant resided. During a visit H. H. paid 
 to defendant, in the course of conversation and in the 
 presence of other persons than H. H. and defendant, the 
 defendant stated to H. H., "Your name is pretty well up 
 in the town of Brecon. You and your scoundrel solicitor's 
 names are ringing through the shops and streets of Brecon. 
 You are spoken of as robbing the widow and orphans — 
 you to build your church and he to marry his daughter." 
 In an action by Snead, the court charged the jury that if 
 there was express malice the action would lie, otherwise 
 they might consider the communication privileged, pro- 
 vided that they were of opinion that the defendant was 
 bona fide telling H. H. facts important for him to know, 
 in order to clear his character. The jury negatived malice. 
 A verdict was entered for plaintiff, with liberty to move to 
 enter it for defendant. The court in banc held that, as the 
 statement referred to both plaintiff and H. H. in such a 
 manner as to be indivisible, and the part relating to H. H. 
 could not be repeated to him without including the part 
 affecting the plaintiff, the jury having negatived malice, the 
 statement was privileged, and the verdict was ordered for 
 the defendant.^ 
 
 § 244(5. Expressions in excess of what the occasion 
 warrants do not, per se, take away the privilege, but such 
 excess may be evidence of malice.* 
 
 1 Davies v. Snead, Law Rep. 5 Q. Sexton, 4 N. Y. 161 ; Fero v. Ruscoe, 
 
 B. 608; and see Brow v. Hathaway, Id. 162; Garrett v. Dickerson, 19 Md. 
 
 13 Allen (Mass.), 239; Jones z/. Thorn- 418; Hotchkiss v. Porter, 30 Conn, 
 
 as, S3 Law Times, N. S 678. 414; White 7/. Nicholls, 3 How. U. S. 
 
 * Ruckley v. Kiernan, 7 Ir. Com. Rep. 266 ; Miles v. Weber, 6 Wyatt, 
 
 Law Rep. 75; Sutton v. Plumridge, W^ebb & A'Beckett, Law, 129. The 
 
 16 Law Times Rep. 741; Liddle w. case of Tuson v. Evans, 12 Adol. & 
 
 Hodges, 3 Bosw. 537; Howard v. EL 733, said to be overruled. 
 
§ 245-] MASTER AND SERVANT. 425 
 
 § 245. There is a well-recognized right to what is 
 termed "giving a character to a servant." This right may 
 be thus described: An ex-employer may, without rendering 
 himself liable in an action for slander or libel, in good faith, 
 state orally or in writing, and as well without as with a 
 previous request, all that he may believe to be true con- 
 cerning his ex-employee. It appearing that the publication 
 was made in what is termed "giving a character," the pre- 
 sumption is that it is made bona fide, and the burden is 
 upon the plaintiff to show malice in the publisher, i. e., 
 either that he had an intent to injure the person spoken 
 of, or that he did not believe in the truth of the statement 
 published. Where no intent to injure exists, a belief in 
 the truth of the language published is a legal excuse for 
 making the publication; but where an intent to injure ex- 
 ists, a belief in the truth of the language published is not a 
 legal excuse for making the publication. Malice, or a 
 want of good failk, is established when it is shown that 
 the matter published was false within the knowledge of 
 the publisher ; or malice may be established by showing a 
 bad motive in making the publication, as that it was made 
 more publicly than was necessary to protect the interests 
 of the parties concerned, or that it contained matter not 
 relevant to the occasion, or that the publisher entertained 
 ill-will toward the person whom the publication concerned. 
 Although the right now under consideration is one exer- 
 cised in connection with the relation of master and serv- 
 ant, it does not, at .'east in the manner generally supposed, 
 arise out of that relation, nor is the right restricted within 
 the limits ordinarily assigned to it. The relation of mas- 
 ter and servant, or of employer and employee, is one cre- 
 ated by contract; with the determination of the contract 
 the relation expires, and at the expiration of the relation 
 cease all the rights and duties which, during its continu- 
 ance, existed between the parties. Thenceforth the parties 
 
426 MASTER AND SERVANT. [CH. IX. 
 
 occupy the same relative positions as if no contract of hir- 
 ing and serving had ever been made. It cannot be that 
 because A. has been in B.'s employ, B. thereby acquires a 
 right to publish concerning A. anything he would not have 
 been permitted with impunity to publish had such relation 
 never existed. Hence the right now in review must rest 
 on some other foundation, or arise in some other way than 
 out of the mere fact that the person spoken or written of 
 has been in the employ of the publisher.^ On examina- 
 tion it will be perceived that this right of an ex-employer 
 to give, as it is termed, a character to his ex-employee is 
 nothing more than a consequence of the right to com- 
 municate one's belief, which is referred to and illustrated 
 in a preceding section (§ 241). An employer is charged 
 with the duty of exercising due care in the selection and 
 retention of properly-qualified employees or agents, and is 
 liable for all the acts of his employees done in his service.^ 
 In addition, the employer has more or less to trust the 
 safety of his person and his property to the employee; the 
 employer, therefore, is peculiarly interested to know the 
 character and capacity of every person who either is already 
 in his employ, or is desirous of entering his employ. The 
 employer can obtain this knowledge only from the em- 
 ployee himself, or from information furnished by those to 
 whom the employee may be known. To limit the source 
 of this knowledge to the employee himself would mani- 
 festly, in the majority of cases, operate to prevent the ob- 
 taining any information worth the having; but because 
 the employer is interested in knowing the character and 
 
 1 That seems a monstrous propo- an ex-employer speaking of his ex-em- 
 
 sition of Sir T. Wilde's, in the argu- ployee and the case of any other per- 
 
 ment of Coxhead v. Richards (see son (one not an employer) making a 
 
 ante, note i, p. 408), that " the serv- communication to a party interested, 
 ant authorizes the master to libel « This does not mean while in the 
 
 him," and yet perhaps it is warranted employer's service, but done in the ex- 
 
 by the reasoning in many decisions, ecution of his proper duties as such 
 
 and it is the only assumption for bas- employee. (See ante, note 2, p. 103.) 
 ing a distinction between the case of 
 
§ 245-] MASTER AND SERVANT. 427 
 
 capacity of those in his employ, or who are candidates for 
 employment by him, not a former employer only, but 
 every one who honestly believes himself possessed of 
 knowledge on the subject which the employer is interested 
 to know, may, with or without a previous request, in good 
 faith, communicate such, his belief, to the employer. In 
 such cases, the communication is made not to promote the 
 interest of the person making it, but either to serve the 
 interests of the employer, or to injure the employee. No 
 one is under any obligation to make such a communica- 
 tion; he does not owe it as a duty, either to the employer 
 or the employee, to make any communication on the sub- 
 ject. Making the communication is the exercise of a 
 right, and is optional (§ 39). This right is exercised 
 under the double peril that, by speaking disparagingly of 
 the employee, the speaker may be sued by the employee 
 for slander, and by speaking approvingly of the employee 
 he may be sued by the employer for misrepresentation.^ 
 Hence, usually, this right is exercised with reluctance, and, 
 as where the communication is made without request, less 
 evidence of ill-will may be required than in the case of a 
 communication made upon a request,^ it seldom happens 
 that such communications are made without request ; and 
 because the character and capacity of an employee will be 
 by no one so well known as by the one in whose service 
 he has been, it happens the ex-employer is the person to 
 whom, in the majority of instances, application will be 
 made for information respecting the character and capacity 
 of a candidate for employment, not because the exem- 
 
 > Defendant's letter of recom- bona fide than in the case where he 
 
 mendation of the plaintiff, if untrue, has given the character after being 
 
 would have rendered him liable to any required so to do." (Littledale, J., 
 
 one injured thereby. (Fowles v. Pattison v. Jones, 8 Barn. & C. 578.) 
 
 Bowen, 30 N. Y. 20; and see Pasley A privileged communication need not 
 
 V. Freeman, 3 Term R. 51.) necessarily be in reply to another; it 
 
 2 "At all events, when he volun- may be original. (Ahem v. Maguire, 
 
 teers to give the character, stronger Arm. Mac. & Og. 29.) 
 evidence will be required that he acted 
 
428 MASTER AND SERVANT, [CH. IX. 
 
 ployer is the only person having the right to give informa- 
 tion, but because he is supposed to be better qualified than 
 any other to give information on the subject. The exercise 
 of this right should be encouraged, not only for the benefit 
 of the employer, but of the employee ; if the ex-employer 
 refuses, as he lawfully may/ to answer any inquiries re- 
 specting his ex-employee, the probable inference is that he 
 can say nothing favorable, and will not incur the risk of 
 saying anything unfavorable — an inference which may be 
 unjust to the ex-employee. These views have been ex- 
 pressed judicially as thus: "But the rule is general, and it 
 seems to me to be quite a mistake to suppose that it is the 
 privilege only of persons giving characters. There are two 
 other classes of persons materially interested in the main- 
 tenance of the privilege — the person accepting characters 
 and those of whom characters are given. It is a most im- 
 portant privilege for the encouragement of all honest serv- 
 ants. They are sufficiently protected against the abuse of 
 it by that limitation of it to which all agree — that if a 
 master, going beyond it, wantonly and maliciously makes 
 a false statement as to the character of his servant, the ex- 
 press malice takes away all the privilege." ^ 
 
 § 246. The subject of the preceding section (§ 245) is 
 illustrated by the decisions to which we proceed to refer. 
 Thus, it is said,^ a bona fide character given of a servant 
 that she was saucy, &c., if there be no malice (which must 
 be directly proved), will not ground an action of slander, 
 though the servant was prevented from getting a place 
 thereby ; and, though a letter giving a false character of a 
 servant may be the ground of an action, yet, if written as 
 
 » No action lies for refusing to give 796; and see in note i, p. 432, /ojA 
 
 information as to the character or ca- and Swadling v. Tarpley, in Appendix, 
 
 pacity of a former employee. (Carroll post. 
 V. Bird, 3 Esp. 201.) 3 Edmonson v. Stephenson, Bull. 
 
 2 Wightman, J., Gardner v. Slade, N. P. 8 
 13 Jurist, 828; 13 Adol. & El. N. S. 
 
§ 246.] MASTER AND SERVANT. 
 
 429 
 
 an answer to a letter sent, not with a view to obtaining a 
 character, but with an intention of obtaining such an an- 
 swer as should be the ground of an action,, no action can 
 be sustained.^ A servant cannot maintain an action against 
 his former master for words spoken or a letter written by 
 him in giving a character of the servant, unless the lat- 
 ter prove the malice as well as falsehood of the charge, 
 even though the master make specific charges of fraud. As 
 where the plaintiff, who had been in the employ of the de- 
 fendant, afterwards applied to one R. for employment. R. 
 inquired of the defendant concerning plaintiff, and in con- 
 sequence of what was told him by defendant, refused to 
 employ plaintiff. Upon this C, plaintiff's brother-in-law, 
 called upon the defendant for an explanation, and then the 
 defendant wrote C, "Two days I gave him (plaintiff) 
 money to go into the city and buy books. When he came 
 home I desired him to reckon up his accounts; he did so. 
 But being one day more curious than I sometimes was, I 
 looked over his account, article by article, and in one book 
 I well knew the price of I found he had charged me one 
 shilling more than it cost, and that shilling he kept in his 
 pocket," with statements of other frauds; on the trial the 
 plaintiff had a verdict, subject to the opinion of the court 
 on a special case ; upon the argument of the case judg- 
 ment was ordered for the defendant.^ Where, in an action 
 of slander, it appeared that the plaintiff had applied to the 
 under-sheriff to be appointed an officer, the latter applied 
 to the defendant as to the fitness of plaintiff, held that the 
 answer of the defendant was conditionally privileged.* 
 Where A. introduced the plaintiff to defendant, a ship's 
 captain, who employed plaintiff as his mate, defendant 
 afterwards dismissed plaintiff from his service, and wrote 
 
 ' King V. Waring, 5 Esp. \^. ' Sims v. Kinder, i Carr. & P. 
 
 2 Weatherston v. Hawkins, i Term 279. 
 R. no. 
 
430 MASTER AND SERVANT. [CH. IX. 
 
 A. that he had done so on account of the intemperate 
 habits of the plaintiff, this was held a privileged communi- 
 cation.* The defendant being about to dismiss the plaint- 
 iff from his employ, called in a friend to hear what passed, 
 and having dismissed the plaintiflF, refused to give him a 
 character, alleging to those who applied for information re- 
 specting the plaintiff, that he, defendant, had discharged 
 the plaintiff for dishonesty. The plaintiff's brother after- 
 wards inquired of the defendant why he had treated the 
 plaintiff in such a manner, and that he (defendant) was 
 keeping plaintiff out of employ. The defendant answered, 
 " He has robbed me, and I believe for years past," adding 
 that he concluded so from the circumstances under which 
 he had discharged the plaintiff. Erie, J., said, "The call- 
 ing in a witness was consistent with a wish to spread de- 
 famation ; it was consistent also with the wish to do what 
 a prudent man would desire to do. But if the effect of 
 the evidence is equal both ways, the onus of proving mal- 
 ice lies upon the plaintiff. As to the words spoken to the 
 plaintiff's brother, no malicious motive appears. The evi- 
 dence, indeed, related to only one robbery, whereas the de- 
 fendant spoke of having been robbed for years. But the 
 communication was made in answer to an inquiry by the 
 plaintiff's brother, and there are no circumstances to show 
 that the extent of the statement actually made proceeded 
 from malice, or went beyond what might be said by a per- 
 son honestly wishing to tell the whole truth."* The plaint- 
 iff had been in the employ of the defendant, and dismissed 
 on a charge of theft. Plaintiff afterwards went to defend- 
 
 1 Tremaine v. Parker, 12 Law and that he ought not to be recom- 
 
 Times, 312. A letter addressed to a mended for morality or honesty, this 
 
 person on whose recommendation the was held to be privileged. (Dixon v. 
 
 writer had taken the plaintiff into his Parsons, i Fost. & Fin. 24.) 
 
 service, to the effect that his (plaint- 2 Taylor v. Hawkins, 16 Q. B. 308; 
 
 iff's) conduct had not justified the 20 Law Jour. Rep. N. S. 313, Q. B. ; 
 
 character given of him, and that he 15 Jurist, 706; and ante^ % 244. 
 had left a balance unaccounted for. 
 
§ 246.] MASTER AND SERVANT. 43 1 
 
 ant's house to be paid his wages, and was in conversation 
 with the defendant's servants, when the defendant, address- 
 ing his servants, said, "I discharged that man (the plaint- 
 iff) for robbing me; do not speak any more to him, in 
 public or private, or I shall think you as bad as him." 
 Maule, J., said, The evidence does not raise any probability 
 of malice, and is quite as consistent with its absence as 
 with its presence; and considering that the mere possibil- 
 ity of malice which is found in this case, and in all cases 
 where it is not disproved, would not be sufficient to justify 
 a finding for the plaintiff, it was right not to leave the 
 question of malice to the jury.^ A defendant who had 
 dismissed two servants told one, in the absence of the 
 other, You have both been robbing me; it was held con- 
 ditionally privileged.'* The plaintiff, being in the service 
 of the defendant, was discharged without any previous 
 notice, and the plaintiff, considering himself entitled to a 
 month's wages, in lieu of notice, refused to quit the de- 
 fendant's house until those wages were paid him, where- 
 upon the defendant had the plaintiff removed by a police 
 officer. The defendant called on one Holland, in whose 
 employ the plaintiff had previously been, and complained 
 of plaintiff, requesting Mr. Holland not to give plaintiff 
 another character. Subsequently the plaintiff applied to 
 Mr. Hand for employment, who inquired of defendant 
 and received from him a letter, the material portion of 
 which was as thus: "Rogers (the plaintiff) did not live 
 with me six months, as he has told you, and I wish I 
 had never taken him into my house, as he is a bad-tem- 
 pered, lazy, impertinent fellow, and has given me a great 
 deal of trouble. I was obliged to send for a police officer 
 to put him and his things out of my house ; as I look up- 
 on it, he will take any advantage he can." On the trial 
 
 1 Somerville v. Hawkins, 10 C. B. Witt, 18 C. B. 544; 25 Law Jour. 294, 
 583; 15 Jurist, 450. C. P. 
 
 2 Manby v. Witt, and Eastmead v. 
 
432 MASTER AND SERVANT. [CH. IX. 
 
 the court left it to the jury to say if the defendant had 
 acted maliciously ; the verdict was for the plaintiff; leave 
 was reserved to the defendant to move to enter a non- 
 suit. He moved, but his motion was refused.^ Where 
 defendant, plaintiff's former mistress, in a letter answering 
 inquiries as to plaintiff's character, stated acts of miscon- 
 duct during the time of plaintiff's being in her service, 
 and also subsequently to her having left it, and defendant 
 had also stated the same to the persons who originally 
 recommended plaintiff to her; held, that the latter part 
 of the letter was a privileged communication, and which 
 the defendant was bound to make, and that the oral state- 
 ment having been made only to the persons who recom- 
 mended plaintiff, was not officious nor evidence of mal- 
 ice, which in such an action is the gist, and must be ex- 
 pressly proved.* In an action for slander of the plaintiff, 
 in her character of a domestic servant, the plaintiff proved 
 that, having lived some time with the defendant, she 
 changed service upon a character given to her by the de- 
 fendant; that, some time afterwards, the defendant's wife, 
 
 ' Rogers v. Clifton, 3 B. & P. 587, what the former has spoken concern- 
 on the motion for a nonsuit, Lord ing the latter be malicious and defam- 
 Alvanley, Ch. J., said, "If it were to atory;" and per Rooke, J., "a master 
 be understood that whenever a master may, at any time, whether asked or 
 gives a bad character to a servant not, speak of the character of his 
 who has quitted his service, he may servant, provided that he speak in the 
 be forced by the servant, in justifica- honesty of his heart, and an action 
 tion, to prove the truth of what he has cannot be maintained against him for 
 stated, it would be impossible for any so doing; at the same time, masters 
 master (so understanding the law, at are not warranted in speaking ill of 
 least with any regard to his own safe- their servants from heat and passion." 
 ty) to give any character but the most Where the plaintiff charged his serv- 
 favorable to a servant, a.nd conse- ant with robbing him, and the robbery 
 quently impossible for a servant not charged consisted in giving away 
 entitled to the most favorable cliarac- pieces of bread, the court charged the 
 ter, to obtain any new place. Un- jury that if the pieces of bread given 
 questionably the master is not bound away were such pieces as the servant 
 to substantiate the truth of what he might reasonably suppose the master 
 says in giving a character to his late would not object to his giving away, 
 servant, but it is equally clear that the the master was not justified in the 
 servant may, if he can prove the char- charge of robbery, and the servant 
 acter to be false, and the question might recover. (Roberts v. Richards, 
 between the master and servant will 3 Fost. & Fin. 507.) 
 always, in such a case, be, whether 2 child v. Affleck, 9 B. & C. 403. 
 
§ 246.J MASTER AND SERVANT. 433 
 
 in a letter to her new mistress, alluded to the plaintiff, 
 and to the character first given of her as being unmer- 
 ited; that thereupon the new mistress requested further 
 information, and was told by the defendant's wife that 
 she had discovered, since the time of the giving of the 
 first character, that the plaintiff was dishonest. Held, 
 that there was no evidence to be submitted to the jury of 
 malice in the defendant's wife, and that the communica- 
 tion was privileged. If a servant obtain a place upon the 
 strength of a character given by his master, and the mas- 
 ter afterwards discovers circumstances which induce him 
 to believe that the character was undeserved, he is mor- 
 ally bound to inform the new master of those circum- 
 stances, and the communication made concerning them is a 
 privileged communication.^ The plaintiff had been in the 
 employ of defendant and his partners ; on plaintiff leaving 
 their employ, defendant and his partners gave him a written 
 recommendation, and plaintiff afterwards went into the 
 employ of C. Subsequently, defendant saw C, and said 
 he desired to set him right in regard to a young man (the 
 plaintiff) in his employ, that he was a liar, and he had 
 doubts of his honesty ; held a conditionally privileged 
 communication.^ The letter of recommendation, if untrue, 
 would have rendered him liable to any one injured thereby, 
 and he was privileged to say what he did for his own pro- 
 tection. Plaintiff was in the service of the defendants 
 (husband and wife) as governess for fourteen months. 
 After she left she sought an engagement elsewhere, and 
 on an inquiry being made to the defendant (the wife) con- 
 cerning the plaintiff, the defendant answered in writing, 
 " I parted with her (the plaintiff) on account of her incom- 
 petency, and not being lady-like nor good tempered," add- 
 ing, " May I trouble you to tell her (the plaintiff) that 
 
 1 Gardener v. Slade, 18 Law Jour. « Fowles v. Bo wen, 30 N. Y. 20. 
 
 Rep. N. S. 334,Q. B.; 13 Q. B. 796. 
 
 28 
 
434 MASTER AND SERVANT. [CH. IX. 
 
 this being the third time I have been referred to, I beg to 
 decline any further applications." Evidence was given of 
 plaintiff's competency, and of her being lady-like and good 
 tempered. It was left to the jury to say whether the letter 
 was written maliciously, and that stating what was untrue 
 was evidence of malice. The plaintiff had a verdict, and 
 the court above refused to disturb it.^ Where the plaint- 
 iff's master (the defendant) had, on his quitting his service, 
 and being about to enter on another, written of his own 
 accord a letter informing the party that he had discharged 
 the plaintiff for misconduct, and on receiving a letter in- 
 quiring the particulars, had written the libelous letters for 
 which the action was brought ; held, that although a party 
 might set himself in motion to induce inquiries by a third 
 party, and the answers, although slanderous, might come 
 within the scope of a privileged communication, yet in 
 such a case it would be a question for the jury to say if the 
 defendant acted bona fide, or maliciously intending to do 
 the servant an injury.^ A. (plaintiff) having left B.'s (de- 
 fendant's) service at her own desire, in consequence of B.'s 
 accusing her of dishonesty, returned to B.'s house for her 
 boxes, and B. then charged her with theft and told her 
 that if she had not come back he would have said nothing 
 about it ; upon A.'s informing B. that C. intended coming 
 to him for her (A.'s) character, defendant said he should 
 give A. no character, unless she confessed to the alleged 
 theft. C. went to defendant for A.'s character ; defendant 
 told C. that A. was dishonest. In an action for slander, 
 held, that the occasion was privileged, but that the state- 
 ment of defendant to plaintiff was evidence from which 
 malice might be inferred, and that the judge upon the trial 
 
 1 Fountain v. Boodle, 3 Ad. & El. failed to point out that malice in fact 
 
 N. S. 5; 2Gale&Dav.455. In Behee might be inferred from circumstances, 
 
 V. Pacific R. R. Co. 9 So. West, Rep. and for this omission a new trial was 
 
 450. the judge at the trial instructed granted. 
 
 the jury that malice in fact was neces- s Pattison v. Jones, 8 B. & C. 
 
 sary to enable plaintiff to recover, but 578. 
 
§ 247-] 
 
 CANDIDATE FOR OFFICE. 
 
 435. 
 
 did right to leave the question of malice to the jury, and 
 in asking them the question whether defendant believed 
 his imputation to be true.^ The plaintiff was defendant's 
 gardener. The defendant having dismissed plaintiff from 
 his service, wrote E., on whose recommendation defendant 
 had originally engaged plaintiff,, stating inter alia, " On 
 Saturday I had another scene with F. (plaintiff) in my gar- 
 den. He was extremely violent, came towards me several 
 times with an open clasp knife in his hand and his eyes 
 starting from their sockets with rage, a perfect raving 
 madman. I was fortunately accompanied by my upper 
 servant. He accused me of having opened a letter of 
 his. ... I think it right you should be informed of 
 F.'s (plaintiff's) violent conduct, as you might unwittingly 
 recommend him without being aware of his temper and 
 faults." E., who was the superintendent of the Royal 
 Horticultural Society, of which defendant was a member, 
 was in the habit of recommending gardeners to the mem- 
 bers of the society, and plaintiff had, as defendant knew at 
 the time he wrote the letter, applied to E. to procure him 
 another situation ; held, that the letter could not be con- 
 sidered as privileged, as there were expressions in it, such 
 as plaintiff's being a "raving madman," which went beyond 
 what was justifiable, although the jury found the communi- 
 cation was made bona fide and without malice.^ 
 
 § 247. As respects publications concerning candidates 
 for office, we take upon ourselves, with due deference to 
 the decisions, to say, that the same rules apply to them 
 as to communications made concerning candidates for em- 
 ployment generally (§ 245), or as apply to those who in a 
 measure challenge criticism by appearing as authors, actors, 
 
 1 Jackson v. Hopperton, lo Law Q. B. by counsel: it is difficult to un- 
 Times, N. S. 529. derstand tlie case ot Fryer v. Kinners- 
 
 2 Fryer w. Kinnersley, 15 C. B. N. ley; and by Blackburn, J. : I do not 
 S. 429; 33 Law Jour. 96, C. P. In quite understand the ratio decidendi 
 Cowles V. Potts, 34 Law Jour. 248, of that case. 
 
436 
 
 CANDIDATE FOR OFFICE. 
 
 [CH. IX. 
 
 theatrical managers, or in fact, in any role, which appeals 
 to the public and gives occasion for criticism (§ 254). 
 The rule, as we suppose, must be the same for every kind 
 of employment, and office is only another name for em- 
 ployment. The right which one has to speak concerning 
 a candidate for employment as a mechanic or domestic, is 
 neither more extensive nor more limited than the right 
 one has to speak of a candidate for the office of a legisla- 
 tor or a judge.^ As respects a candidate for employment 
 generally, so with respect to a candidate for office ; the 
 publication to be privileged, must, with certain exceptions 
 be confined to a criticism of his acts,^ or be limited to the 
 
 1 At a meeting of a body of citizens 
 of Philadelphia, styled " The commit- 
 tee of one hundred," assembled for 
 the purpose of considering the merits 
 of candidates for public office, a letter 
 reflecting severely upon the character 
 of one of the judges of the Common 
 Pleas, who was a candidate for re- 
 election, by statements subsequently 
 acknowledged to be wholly untrue, 
 was, by order of the chairman, read 
 by the Secretary, and appeared at 
 length the following day in the daily 
 papers. The communication being 
 based upon probable cause was pro- 
 per for discussion at such a meeting, 
 and the court refused to reverse a judg- 
 ment of nonsuit entered in an action 
 for libel brought against the chairman 
 of the meeting. (Briggs v. Garrett, 
 III Penn. St. 404.) 
 
 Words spoken of a candidate for 
 election in good faith, believing them 
 to be true and without malice, and 
 with the honest purpose of protecting 
 the public from the supposed dis- 
 honesty of such candidate, do not 
 render the person speaking them 
 liable in an action for slander. (Mott 
 V. Dawson, 46 Iowa, 533; and see 
 State V. Beach, 2 Pac. Rep. [Kans.] 
 609 ; Neeb v. Hope, 1 1 1 Penn. St. 
 
 I4S-) 
 
 When one becomes a candidate for 
 public office conferred by popular elec- 
 tion, he puts his character in issue so 
 far as respects his qualification for the 
 
 office. Discussion, however, should 
 be conducted bona fide. (Express 
 Printing Co. v. Copeland [Tex.], 20 
 The Rep. 286.) 
 
 To charge a candidate for a popu- 
 lar office, with being uneducated, to 
 be lazy and ignorant, is not libelous, 
 nor is it libelous per se to charge 
 him with being a " social leper," who 
 should be '' deodorized." But other- 
 wise to charge him with being a pro- 
 fessional gambler, bully, thief and 
 whoremaster. (Sweeney v. Baker, 13 
 W. Va. 158.) 
 
 Charges against a public officer 
 made more than a year before the 
 next election, in alleged view of that 
 election and upon the assumption that 
 he would be a candidate, are not 
 privileged. (Commonwealth v. Ward- 
 well, 136 Mass. 164.) 
 
 ^ ' ' There is no doubt the public 
 acts of a public man may lawfully be 
 made the subject of fair comment or 
 criticism, not only by the press, but 
 by all members of the public. But 
 the distinction cannot be too 
 clearly borne in mind between com- 
 ment or criticism and allegations of 
 fact, such as that disgraceful acts 
 have been committed, or discreditable 
 langUefge used. It is one thing to 
 comment upon or criticise, even with 
 severity, the acknowledged or proved 
 acts of a public man, and quite another 
 to assert that he has been guilty of 
 particular acts of misconduct." (Lord 
 
§ 247.] 
 
 CANDIDATE FOR OFFICE. 
 
 437 
 
 persons interested (§ 244).^ A general publication, as well 
 to those interested as to tiiose not interested, would not 
 be privileged. Again, the matter published must be such 
 as is relevant to the subject-matter, and necessary to be 
 known by the persons in interest for their own protection. 
 Thus, the publication in a newspaper of defamatory matter 
 concerning a candidate for appointment, was held not to 
 be privileged, and that to have been privileged the pub- 
 lication should have been limited to the appointing power 
 (§ 243) ; ^ so limited it would have been privileged ; as 
 where defendant, at the request of a senator of the United 
 States, in order to give him information as to the fitness of 
 the plaintiff for the office to which he was nominated, 
 spoke the words charged in the declaration, and referred 
 to the records of a court for their confirmation, it was held 
 that there was nothing from which to imply malice, and 
 that the plaintiff could not sustain his action.** Where a 
 
 Herschell, L. J., Davis v. Sheptone, 
 II App. Cas. 188.) Neither the pub- 
 lic press nor individuals can discuss 
 the conduct and character of officers 
 and candidates for office, without in- 
 curring liability, civil or criminal, for 
 defamatory utterances published, 
 although such publications may be 
 made without malice and upon prob- 
 able cause. (Banner Pub. Co. v. 
 State, 16 Lea [Tenn.]. 176.) The 
 qualified privilege of fair comment 
 upon a matter of public interest fails 
 to protect defendant : (l) If the matters 
 commented upon had no real exist- 
 ence, even though the writer may 
 have honestly believed them to have 
 existed ; or (2) if the writer in writing 
 the libel complained of, is actuated by 
 malice against a third person, though 
 not against plaintifiF. (Stewart v. Mc- 
 Kinley, 11 Vict. L. R. L. 802.) 
 
 > Hunt V. Bennett, 19 N. Y. 173; 
 affi'g 4 E. D. Smith, 647. Defendant, 
 a citizen and tax payer of Detroit, 
 when interviewed by a newspaper re- 
 porter as to the candidacy of plaintiff 
 for the office of comptroller, said he 
 wondered if the people of Detroit 
 
 would have the same experience with 
 plaintiff as England had with Cyprus, 
 and on being asked what that experi- 
 ence was he stated in effect that said 
 Island turned out to be a huge grave- 
 yard, the whole surface covered with 
 corpses and bones to the depth of six- 
 teen feet. These remarks were pub- 
 lished in a newspaper and held action- 
 able. (Wheaton v. Beecber, 49 Mich. 
 348 ; and see Bronson v. Bruce, 59 Id. 
 S96.) 
 
 2 Law V. Scott, S Har. & J. 438. 
 A statute in Pennsylvania provides: 
 No person shall be subject to prose- 
 cution by indictment for investigating 
 official conduct of public officers, &c. 
 Where a person consents to become 
 a candidate for public office, conferred 
 by a popular election, he must be con- 
 sidered as putting his character in 
 issue so far as it may respect his quali- 
 fication for the office. (Com'wealth 
 V. Odell, 3 Pittsb. [Pa.] 449.) The 
 qualification of a candidate is a fit 
 subject of comment, but private 
 character is not to be attacked. 
 (Rearick v. Wilcox, 10 West. Jur. 
 681.) 
 
438 CANDIDATE FOR OFFICE. [cH. IX. 
 
 candidate for the representation of a borough circulated 
 an address to the electors, asking for their suffrages, and 
 claiming to be a fit and proper person to represent them 
 in Parliament, and an elector in that borough published 
 in a newspaper two letters addressed to the candidate, 
 the first in answer to the circular, and the second in con- 
 sequence of the treatment he had received from the can- 
 didate on the day of nomination at the hustings, and 
 both letters contained imputations on the private char- 
 acter of the candidate ; on the trial of an action for libel, 
 the judge charged the jury that the occasion did not 
 justify the publication, and the plaintiff had a verdict. 
 On a motion for a new trial, it was claimed that it was 
 justifiable for an elector bona fide to communicate to the 
 constituency any matter respecting a candidate which the 
 elector believed to be true and material to the election. 
 The principle was conceded by the court to be correct, but 
 was held inapplicable^ because the communication had not 
 been confined to the constituency of the plain tifil^, but had 
 been published in a newspaper} Where the plaintiff was 
 a candidate at a general election for re-election as a State 
 Governor, the defendant published defamatory matter of 
 the plaintiff in "An address to the electors of the State 
 of New York." In an action of libel for this publication 
 it was contended on the part of the defendant that the 
 plaintiff could not recover unless upon proof of "■express 
 
 ' Duncombe v. Daniell, 8 C. & P. ments, if circulated in good faith, and 
 222; I W. W. & H. loi, Denman, C. giving supposed truthful information, 
 J. However large the privilege of is privileged. (State v. Balch, 31 
 electors may be, it is extravagant to Kansas, 465.) If the reading of a let- 
 suppose that it can justify the publica- ter to an assemblage of voters was 
 tion to all the world of facts injuri- excusable on the ground of privilege, 
 ous to a person who happens to stand the privilege was not taken away by 
 in the situation of a candidate. See reason of the presence of reporters 
 ante, % 243, and p. 417, n. i. A pub- for newspapers, they also being voters 
 licationbyan elector, circulated among and interested in the contents of the 
 the voters of the district, containing letter. (Briggs v. Garrett, 1 1 1 Penn. 
 charges derogatory to a candidate for St. 404.) 
 office, containing some untrue state- 
 
-47-J CANDIDATE FOR OFFICE. 
 
 439 
 
 malice.'''' The court held that malice was to be implied 
 from the falsity of the publication.' In an action of slan- 
 der, laying special damage, it appeared that plaintiff, a 
 trustee of a charity, asked C, by whom he was employed as 
 bailiff, to obtain signatures to a protest against his (plaint- 
 iff's) removal from his office of trustee. C. asked defend- 
 ant for his signature; defendant refused, and on being 
 pressed for his reasons for refusing, said that he would not 
 keep a big rogue like plaintiff in the trust, and he ex- 
 plained the reasons for this opinion, which were that 
 plaintiff had left the parish under discreditable circum- 
 stances, and without settling with his creditors, including 
 the defendant. He also added he was surprised C. em- 
 ployed such a man. In consequence of this statement C. 
 dismissed plaintiff from his employ. The jury fouad that 
 defendant had not acted with malice, held that the words 
 were privileged, and verdict entered for defendant.^ And 
 where the plaintiff was a candidate for re-election as over- 
 seer; at a meeting to elect overseers, the defendant charged 
 
 1 Lewis V. Few, 5 Johns. I; post, talents and qualifications are mere 
 § 389. In Harwood v. Astley (4 Bos. matters of opinion, of which the elect- 
 & Pul. 47; I N. R. 47), an action for ors are the only judges, and in that 
 slander of a candidate for election to case it was held that imputing weak- 
 Parliament, the plaintiff succeeded ness of understanding to a candidate 
 and had judgment, which the court, for Congress was not actionable. In 
 on writ of error, affirmed principally, Commonwealth j/.Clapp (4 Mass. 163), 
 if not solely, on the ground that the Parsons, Ch. J., says: "When a man 
 jury must have found the publication shall consent to be a candidate for 
 to be malicious, and therefore not a public office, conferred by the elect- 
 privileged. Officers and candidates for ors of the people, he must be consid- 
 offices may be canvassed, but not ered as putting his character in issue, 
 calumniated. (Seely z/. Blair, Wright, so far as may respect his fitness and 
 358, 683; see Brewer v. Weakley, 2 qualifications for office." But see Cur- 
 Overt. 99; Root V. King, 7 Cow. 613; tis v. Mussey, 6 Gray, 261: Aldrich v. 
 affi'd 4 Wend. 113, note; i Starkie on Press Print Co. 9 JVIinn. 133; see ante. 
 Slander, 301.) In Mayrant v. Rich- p. 401, note i. It is not even a miti- 
 ardson (i Nott & McC, 374), an action gation of the wrong of publishing de- 
 of slander against a candidate for famatory matter of a candidate for 
 office, it was held by Nott, J., that office that the sole object of the pub- 
 when a man becomes a candidate for lication was to defeat the plaintiff, 
 public honors he makes profert of him- (Rearick v. Wilcox, 10 Western Jur. 
 self for public investigation. No one 681.) 
 
 has the right to impute to him infa- ^ Cowles v. Potts, 34 Law Jour, 
 
 mous crimes or misdemeanors, but Q. B. 247. 
 
440 
 
 INSANITY. 
 
 [CH. IX. 
 
 the plaintiff with having, while in office as overseer, mis- 
 appropriated the parish funds — held that, unless this state- 
 ment was a malicious abuse of the occasion, it was privi- 
 leged.^ 
 
 § 248. Insanity is a complete defense to an action for 
 'slander or libel.^ Fools and madmen are tacitly excepted 
 
 689. 
 
 George v. Goddard, 2 Fost. & F. 
 
 ^ Bryant v. Jackson, 6 Humph. 
 199; Yeates v. Reed, 4 Blackf. 463; 
 Dickinson v. Barber, 9 Mass. 225. 
 See McDougald v. Coward, 95 No. 
 Car. 368. Perhaps delirium tremens 
 is a defense, for it is a species of in- 
 sanity, and, like insanity from other 
 causes, affects the responsibility for 
 crime. (Maconnehey v. The State, 5 
 Ohio St. ^^ ; O'Brien v. The People, 
 48 Barb. 275.) A lunatic is liable for 
 a trespass. (Weaver v. Ward, Hob. 
 134; Krom V. Schoonmaker, 3 Barb. 
 647; Bullock V. Babcock, 3 Wend. 
 391; Rae's Medical Juris, up; Mason 
 V. Keeling, 12 Mod. 332; 2 Monthly 
 Law ' Reporter, N. S. 487.) In the 
 chapter in the Roman Law, entitled 
 " Si quis Imperatori maledixerit," is 
 a passage which, being interpreted, 
 reads : ■' If the evil speaking proceed 
 from levity, it is to be despised ; if from 
 madness, it is to be pitied ; if from a 
 sense of wrong, it is to be forgiven." 
 A lunatic is liable for a libel. Per 
 Kelly, Ch. B., obiter^ Mordaunt v. Mor- 
 daunt, 39 Law Jour. Prob. & Matri. 59. 
 See Avery^/. Wilson, 20 Fed, Rep. 856. 
 
 It is not a defense to an action of 
 slander or libel, that the words were 
 not spoken in earnest, but as a jest, 
 and that the defendant did not expect 
 to be believed. (Hatch v. Potter, 2 
 Gilman, 725; Holt on Libel, 290, 291 ; 
 Long V. Eakle, 4 Md. 454; McKee v. 
 Ingalls, 4 Scam. 30; Wood's Civil 
 Law, 247 ; and see Pieter Tonneman 
 V. Jan de Witt, Valentine's Corpora- 
 tion Manual for 1849, p. 402 ; Addison 
 on Contracts, 261.) An action for a 
 tort would not lie if the act was done 
 in jest. (Digest, xlvii, 10, 8 ; Spence's 
 Origin of Laws, &c., 151.) Among 
 the Percy Anecdotes, Division "The 
 
 Bar," is an anecdote of a suit for slan- 
 der brought by Serjeant Maynard, en- 
 titled " Golden Pippins and Pig," and 
 in which it is stated the Serjeant had a 
 verdict in his favor, but judgment was 
 arrested in consequence of the words 
 complained against " being the burden 
 of an old story which had been ap- 
 plied to the Serjeant in jest, and with- 
 out any intention to slander." In 
 Campbell's Lives of the Lord Chan- 
 cellors (V, ch. civ, p. 31) this anecdote 
 is related more circumstantially. That 
 words spoken in jest held to be a de- 
 fense. (Adkins v. Williams, 23 Ga. 
 222 ; see Donoghue v. Hayes, Hayes' 
 Ir. Ex. R. 265; note to § 281, post>) 
 Defendant, the proprietor of a news- 
 paper called Ally Sloper's Half Holi- 
 day, a so-called comic paper, published 
 the following: "Umbrella Tricks. — 
 Irate Customer: Look here ! I bought 
 this compactum umbrella at your shop 
 yesterday. You guaranteed that it 
 would remain small and tidy, and now 
 look at it! I can't fold it up into 
 double its original size. Shopkeeper: 
 (blandly, as he unfolds the article) I 
 am sure I am very sorry, and I cannot 
 
 acccount for it, unless (horrified) 
 
 Why ! my dear sir, you've been using 
 it 1 " Plaintiff was the patentee of the 
 compactum umbrella, and brought 
 suit for libel on the above publication, 
 with an innuendo that defendant there- 
 by intended : that plaintiff fraudulent- 
 ly and deceitfully, and in breach of 
 contract, manufactured and sold the 
 compactum umbrella as one that 
 would shut up in a small compass, 
 well knowing that it would not. De- 
 fendant claimed that the alleged libel 
 was merely a joke. Baron Huddles- 
 ton, who presided at the trial, told the 
 jury he did not know whether the 
 joke was concerning plaintiff or his 
 
5^ 249, 250.] 
 
 DRUNKENNESS. 
 
 441 
 
 out of all laws.^ And Coke said: A madman is only pun- 
 ished by his madness. A judgment in action for slander 
 was perpetually enjoined, upon the ground that at the time 
 of the speaking the words, and of the rendition of the 
 judgment, the defendant was insane in reference to the 
 subject of the slander.^ 
 
 § 249. Drunkenness is not a defense to an action for 
 slander or libel,' nor is infancy* but drunkenness may, per- 
 haps, be a matter of mitigation.'' 
 
 § 250. It is a good defense to an action for libel, that 
 after the publication the plaintiff agreed with the defend- 
 ant to accept the publication of an apology in full for his 
 cause of action, and that such apology had been published." 
 
 umbrellas; they might give plaintiff 
 ;£ioo,ooo or one farthing, or find a 
 verdict for defendant. The verdict 
 was for defendant. (36 Alb. L. J. 
 42; see ante, p. 241, note 10.) 
 
 * Holt, Ch. J., City of London v. 
 Vanacker, Carthew, 483. " There is 
 no slander in an allowed fool." 
 (Twelfth Night, act i, sc. v.) 
 
 ^ Homer v. Marshall, 5 Munf. 
 466. 
 
 ' McKee v. Ingalls, 4 Scam. 30; 
 Reed v. Harper, 25 Iowa, 87. As to 
 defense of intoxication in an action on 
 an express contract, see Gore v. Gib- 
 son, 13 M. & W. 623. 
 
 * Defries v. Davis, i Bing. N. C. 
 692; I Scott, 594. An infant two 
 years old is not liable criminaliter for 
 a nuisance erected on his lands. (The 
 People V. Townsend, 3 Hill, 479.) 
 And one aged only eleven years, seized 
 of lands in the usual occupation of 
 his guardian in socage, is not indict- 
 able for the non-repair of a bridge 
 ratione temtre. (Rex v. Sutton, 5 
 Nev. & Man. 353; see cases collected 
 in a note in 5 Monthly Law Reporter, 
 N. S. 364, Boston. Nov. 1852.) 
 
 5 Howell V. Howell, 10 Ired. 84; 
 and see Iseley v. Lovejoy, 8 Blackf. 
 462; Gates V. Meredith, 7 Ind. 440. 
 
 « Boosey v. Wood, 3 Hurl. & Colt. 
 484. An agreement not to bring any 
 
 action in consideration of the defend- 
 ant's destroying certain documents 
 relating to the charge imputed to the 
 plaintiff, which the defendant accord- 
 ingly destroyed, held to be accord and 
 satisfaction. (Lane v. Applegate, i 
 Starkie, 97.) Where, in an action of 
 slander, an agreement had been made, 
 in consequence of which the defend- 
 ant signed a paper stating that "at 
 his request the plaintiff had consented 
 on his paying the costs of the action 
 as between attorney and client, and 
 making an apology for his conduct to 
 stay the proceedings therein," the 
 court held that it was an absolute and 
 not a conditional agreement, and in 
 default of defendant paying the costs, 
 made a rule absolute for signing the 
 judgment as for want of a plea. 
 (Yardrew v. Brook, 2 Nev. & M. 835.) 
 As to the settlement of an action for 
 slander as the consideration for a 
 promise, see O'Keson v. Barclay, 2 
 Penn. & W. (Pa.) 531 ; approved 
 Morey v. Newfane Township, 8 Barb. 
 653; and see Shephard v. Watrous, 3 
 Caines R. 166. By statute 6 & 7 Vict. 
 ch.96, it is provided that in any action 
 for defamation the defendant, after 
 notice, may give in evidence, in miti- 
 gation, the making or offer to make 
 an apology. (See note to § 252, fost^ 
 
442 ACCORD AND SATISFACTION. [CH. IX. 
 
 And it seems that an agreement that the slanderer should 
 write a letter to a third party, exculpating the person slan- 
 dered from the charge, is satisfaction of the injury, and 
 his so doing is evidence of an accord and satisfaction.^ 
 Formerly a defense of accord and satisfaction did not re- 
 quire to be specially pleaded.^ Now it must be pleaded 
 specially.^ 
 
 § 251. A former recovery for the same cause is a bar 
 to an action for slander or libel.* A judgment in an 
 action of slander, for a particular charge, bars any other 
 action against the defendant in that action for the same 
 charge, though made on a different occasion, if made be- 
 fore suit brought; and, therefore, though there be but one 
 count for particular words, proof that they were spoken by 
 defendant on distinct occasions before suit commenced is 
 competent' It is no bar to an action for slander or libel 
 that in a former action for the publication of the same 
 words, on an occasion different from that alleged in the 
 declaration, the defendant obtained a verdict and judg- 
 ment in his favor. It was not for the same cause of ac- 
 
 1 Smith V. Kerr, i Barb. 155; see publisher of a libel, and the discon- 
 Eiffe V. Jacob, i Jebb & Symes, 257. tinuance of the action against him, is 
 An accord and satisfaction by one or no bar to an action against another 
 some of several wrong-doers, 'is a sat- publisher of the same libel. (McMil- 
 isfaction as to all. (Strang z/. Holmes, Ian v. Boucher, 12 Low. Can. Jour. 
 7 Cow. 224; Knickerbacker 7/. Colver, 319.) 
 
 Bid. 111.) It follows that a partial « A plea of accord held bad. (Davis 
 
 satisfaction by one of several wrong- v. Ockham, Styles, 245.) 
 doers is a satisfaction pro tanto as to * Campbell v. Butts, 3 N. Y. 173. 
 
 all. (Merchants' Bank v. Curtiss, 37 The plaintiff having once recovered, 
 
 Barb. 320.) As to a plea of apology cannot afterwards recover for any 
 
 and payment into court in England, subsequent loss by the same words, 
 
 see Stat. 6 & 7 Vict. ch. 96; 15 & 16 (Bull, N. P. 7: Mayne on Damages, 
 
 Vict. ch. 76; Chadwick v. Herapath, 3 421 ; Fetter v. Beal, i L'd Raym. 339; 
 
 C. B. 885; O'Brien v. Clement, 3 i Salk. 1 1 ; Gregory z/. Williams, i C. 
 
 Dowl. & L. 676; Lafone z/. Smith, 3 &K. 568.; W^here the cause of action 
 
 Hurl. & N. 735; 4 Id- 158; Ingram v. is the same, a judgment between the 
 
 Ferguson, i New Pr. Cas. 486. same parties is binding on each, and 
 
 2 2 Greenl. Ev. 321 ; Lane v. Ap- it is immaterial that the form of ac- 
 plegate, i Starkie, 97 ; King v. War- tion is different, if the cause of action 
 mg, 5 Esp. 13; Eiffe v. Jacob, i Jebb. be the same. (Hitchin v. Campbell, 
 & S 257; Wadsworth v. Bentley, 23 2 W. Bl. R. 827; ante, § 119.) 
 
 Law Jour. 3 Q.B. Reparation by one ' Root z/. Lowndes, 6 Hill, 518. 
 
25I-J FORMER RECOVERY. 
 
 443 
 
 tion.' A recovery by the husband for slanderous words 
 spoken of himself and wife, is not a bar to another action 
 by the wife for the same slanderous words, in which the 
 husband is joined as a nominal party plaintiff.^ A recov- 
 ery in an action for calling plaintiff a thief, not in the way 
 of his trade, held not to be a bar to a subsequent action 
 for words imputing to plaintiff in the way of his trade that 
 he was dishonest and a cheat.^ A recovery in an action 
 for malicious prosecution is a bar to a subsequent action 
 for slander, for the accusation uttered for the purpose of 
 having the arrest made, and on the occasion when it was 
 made.* But where the defendant published the accusation 
 before or after making his complaint to have the plaintiff 
 arrested, an action for that publication is not barred by the 
 recovery in the action for the malicious prosecution.^ An 
 application for a criminal information against a party for 
 the publication of a libel, which application has been re- 
 fused, is no bar to an action on the case for the same ground 
 of complaint.* At one time the defense of a former recov- 
 ery might be given in evidence under the general issue;'' 
 now, the defense of a former recovery must be pleaded. 
 
 1 Hanson v. Veatch, I Blackf. author of the libel, por to furnish any 
 369. reason for Dot giving substantial dam- 
 
 2 Bash V. Sommer, 20 Pa. St. 1 59 ; ages, and the plaintiff had a verdict 
 and see ante, note i, p. 100. A re- for ^450. (Frescoe v. May, 2 Fost 
 CO very against one of several parties & F. 123.) The pendency of other 
 to a joint tprt precludes the plaintiff actions against other publishers of the 
 from proceedings against any other same defamatory matter, not a miti- 
 party not included in such action. gating circumstance. (Harrison v. 
 (Cro. Jac. 74; Yelv. 68.) And this, Pearce, i Fost. & F. 567.) 
 although the judgment in the first ' Wadsvtrorth v. Bentley, 23 Law 
 action is unsatisfied. (Brinsmead v. Jour. Q. B. 3; 17 Jur. 1077. 
 Harrison, Law Rep. 6 C. P. 584; L. * Sheldon v. Carpenter, 4 N. Y. 
 R. 7 C. P. 547.) But where the evi- 579. And semble, a recovery in an 
 dence and the damage in the two ac- action for slander will not bar an 
 tions might be different, as where two action for malicious prosecution, 
 persons on different occasions have Jarnigan v. Fleming, 43 Miss. 710. 
 published the same libel, separate ^ Rockwell v. Brown, 36 N. Y. 
 actions may be supported against 207 ; and see Schoonover v. Rowe, 7 
 each. (2B. &P. 69.) Where aver- Blackf. 202. 
 
 diet with nominal damages (40s.) has « Wakeley v. Cooke, 16 Law Jour, 
 
 been obtained against the pubHsher Rep. Ex. 225; 9 Law Times, 513; 16 
 
 of a libel, that was held not to be any M. & W. 822. 
 justification in an action against the ' Campbell v. Butts, 3 N. Y. 173. 
 
444 LIBERTY OF THE PRESS. [CH. IX. 
 
 § 252. Whatever else may be intended by the phrase 
 " freedom of the press," or " liberty of the press," it means 
 the freedom or liberty of those who conduct the press. 
 This freedom or liberty, properly understood, means only 
 that for which Milton put forth his eloquent plea : "un- 
 licensed printing." " The liberty of the press consists in 
 printing without any previous license, subject to the con- 
 sequences of law. The licentiousness of the press is 
 Pandora's box — the source of every evil."^ "The liberty 
 of the press is connected with natural liberty. The use 
 and liberty of speech were antecedent to Magna Charta, 
 and printing is only a more extensive and improved kind 
 of speech."^ "The liberty of the press, therefore, proper- 
 ly understood, is the personal liberty of the writer to ex- 
 press his thoughts in the more improved way invented by 
 human ingenuity in the form of the press." ^ " The liberty 
 of the press consists in the right to publish with impunity, 
 truth with good motives and for justifiable ends, whether 
 it respects governments, magistracy, or individuals."* In 
 the sense of unlicensed, the press has been free since A. D. 
 1694,^ and, except in respect to newspapers, no greater de- 
 
 * Attributed to Lord Mansfield, in freedom from censure for criminal 
 cited Root v. King, 7 Cow. 628, and matter when published." (4 Stephens' 
 commented on i Mence on Libel, Com. 346.) " The law of England is 
 158- a law of liberty, and consistently with 
 
 2 Essay on the Liberty of the Press, this liberty, we have not what is called 
 
 chiefly as it respects personal slander, an imprimatur ; there is no such 
 
 by Bishop Hayter, p. 6. preliminary license necessary ; but if 
 
 ' Holt on Libel, bk. i, ch. 4. a man publish a paper he is exposed 
 
 • Hamilton, arg., The People v. to the penal consequences, as he is in 
 Crosswell, 3 Johns. Cas. 360; and see every other act if it be illegal." (Rex 
 The Federalist, No. 81— The Fourth v. Cobbett, 29 How. St. Tr. 49.) By 
 Estate; Areopagitica, a speech for the liberty of the press, I mean complete 
 liberty of unlicensed printing (Holt freedom to write and publish without 
 White's edition is the best) ; Story on censorship and without restriction, 
 the Constitution, §§1880 to 1889; i save such as was absolutely necessary 
 Tindal's continuation of Rapin's His- for the preservation of society. (Fitz- 
 tory of England, 350; Remarks on gerald, J., 11 Cox Cr. Cas. 49.) 
 Pultney's bill to prohibit the circula- s On the introduction of the print- 
 tion of unlicensed newspapers. "The ing press into England, at the ex- 
 hberty of the press, when rightly un- pense of the government, the press 
 derstood, consists in laying no pre- was regarded as a State right, and 
 vious restraints upon publications, not subject to the coercion of the crown. 
 
2 52.] 
 
 NEWSPAPERS. 
 
 445 
 
 gree of liberty for the press has ever been claimed.^ But as 
 respects newspapers, it is argued that the exigencies of the 
 business of a newspaper editor demand a larger amount of 
 freedom ; that circumstances do not permit editors the 
 opportunity to verify the truth prior to publication, of all 
 they feel called upon to publish, and that they should not 
 be responsible for the truth of what they publish.^ Some 
 concessions have already been made to these arguments.* 
 
 (See Hills v. University of Oxford, i 
 Vernon, 275 ; Baskett v. University of 
 Cambridge, 2 Burr. 661.) It was 
 regulated, therefore, by the king's 
 proclamations, prohibitions, charters 
 of privileges, and licenses, and then 
 by the decrees of the Court of the Star 
 Chamber, until the abolition of that 
 court in 1641. The Long Parlia- 
 ment, in 1643, assumed the power of 
 licensing, and this was continued by 
 various statutes till 1694. The print- 
 ing press was regarded as too danger- 
 ous a contrivance to be suffered to be 
 free. Governor Dongan was instruct- 
 ed (A. D. 1688) not to allow any 
 printing press in New York, although 
 Massachusetts had at that time en- 
 joyed a printing press for nearly thirty 
 years. The judges were unanimously 
 of opinion that by the common law of 
 England, no man not authorized by 
 the crown, had the right to publish 
 political news. (London Gazette, May 
 5 and 17, A. D. 1680.) " It was from the 
 press that originated what is in fact 
 the main distinction of the ancient and 
 modern world —public opinion. " (Holt 
 on Libel, 61.) Whittier calls a news- 
 paper an "opinion mill," and speaks 
 of an editor who 
 
 Had left the Muses' haunts to turn 
 The crank of an opinion mill. 
 The Constitution of the United 
 States provides : Congress shall make 
 no law abridging the freedom of 
 speech or of "the press. (Amendment 
 of 1789, art. I.) The Constitution of 
 New York provides: Every citizen 
 may freely spe^k, write, and publish 
 his sentiments on all subjects, being 
 responsible for the abuse of that right, 
 and no law shall be passed to restrain 
 
 or abridge the liberty of speech or of 
 the press. (Constitution of 1846, art. 
 7, § 8.) This is repeated in the Bill 
 of Rights of that State, and similar 
 provisions are, we believe, to be found 
 in the Constitution of every State of 
 the Union. In Thompson v. The 
 State (5 Tex. Law Rev 49), held that 
 the Texas statute providing for the 
 levy of an occupation tax on persons 
 selling or offering for sale the Police 
 Gazette, and other like publications, 
 is a valid law. 
 
 1 '-The courts have found it em- 
 barrassing to preserve in just harmony 
 and proportion, the protection due to 
 character and the protection which 
 ought to be afforded to the liberty of 
 the press." (i Kent Com. 636.) If 
 constitutional provision on the subject 
 of the press is needed at all, it is for 
 its restraint instead of its protection. 
 International Review, July-Aug. 1876, 
 David Dudley Field, and see 39 Alb. 
 L. J. loi, 161, 181, 201, 285. 
 
 2 In Marks v. Conservative News- 
 paper Co. (Dec. 1887), Lord Cole- 
 ridge in summing up, remarked- that 
 counsel for defendant said everything 
 that could be said on behalf of his 
 clients when he said that " newspa- 
 pers have a difficult duty to perform." 
 
 ' A very sensible view of the rights 
 and duties of newspapers, is contained 
 in an opinion of Judge Freedman, of 
 New York Superior Court, in the case 
 •of Roediger z/. The Staats Zeitung: 
 after stating that the law recognizes 
 no right to a reputation, better than 
 one's actual character (§ 32 ante), he 
 proceeds : " The freedom of the press 
 is guaranteed by constitutional pro- 
 visions, and while in the exercise of 
 
446 
 
 NEWSPAPERS. 
 
 [CH. IX. 
 
 At present the law takes no judicial cognizance of news- 
 papers. This seems remarkable, inasmuch as the courts 
 
 the police powers inherent in every 
 State every other business may be 
 regulated almost to the point of pro- 
 hibition, no law can be passed to 
 restrain or abridge the liberty of the 
 press. The freedom of the public 
 press is thus recognized as one of the 
 corner stones of our republican insti- 
 tutions, and this fact has an important 
 bearing in the determination of the 
 case of a libel alleged to have been 
 published by a journal of respectable 
 standing. In this respect the footing 
 of a newspaper in this country differs 
 materially from that of one which 
 exists only by permission from the 
 crown, and subject to regulation by 
 the law-making power. In this coun- 
 try it is considered not only the right, 
 but the duty of a newspaper to discuss 
 questions of public interest and to 
 criticise the acts of those who may be 
 temporarily intrusted with power. So 
 it is considered not only the right but 
 the duty of a newspaper to inform its 
 readers of the current news of the 
 day. Of course the right must be 
 exercised fairly, and duly discharged, 
 with a due regard for truth and pro- 
 priety. But, as a matter of fact, no 
 caution that human art can devise will 
 totally exclude libels from a news- 
 paper. They come in a hundred forms 
 — in reports, in correspondence, in 
 cuttings from other papers, even in 
 advertisements— and if the law were 
 to be enforced in its full severity, as it 
 was in England at the time that the 
 doctrine prevailed, the greater the 
 truth the greater the libel, no journal 
 in this country could live for a month 
 and fulfill its mission. The case of a 
 libel appearing in a newspaper in the 
 discharge of its duty to the public may 
 fall, therefore, within that class of 
 cases in which the language published 
 would be hbelous, and subject to the 
 presumption of falsehood and malice, 
 but for the occasion upon which it was 
 used. These cases hold that if the 
 language complained of was used in 
 the discharge of some public or private 
 duty, whether legal or moral, or rec- 
 
 ognized by social custom or in the 
 conduct of defendant's own affairs in 
 matters where his interest was con- 
 cerned in such a way that he was 
 called upon to speak, the occasion 
 prevents the inference of malice which 
 the law draws from unauthorized 
 communications, and affords a- quali- 
 fied defense, depending on the absence 
 of actual malice. 
 
 "But this privilege is qualified 
 and conditional. No proprietor, pub- 
 lisher or editor of a newspaper can use 
 it for purposes of revenge or to gratify 
 personal spite, and if he attacks an 
 individual unnecessarily or without 
 good reason his case is no better than 
 if he were dealing with a matter whol- 
 ly unprivileged. But the question 
 whether he has so abused this condi- 
 tional privilege is to be determined 
 by the jury upon the facts of each 
 case. Thus it has been held in cases 
 against public newspapers that an edi- 
 tor is privileged in commenting fully 
 and freely upon all questions and mat- 
 ters of general public interest; that 
 the public conduct of public men may 
 be discussed with the greatest freedom, 
 provided the language be kept within 
 the limits of an honest intention to 
 discharge a public duty; that when 
 any one consents to be a candidate for 
 a public office he must be considered 
 as putting his character in issue, so 
 far as respects his fitness and qualifi- 
 cations for the office, and that publi- 
 cations of the truth on this subject 
 with the honest intent of informing the 
 people are not libelous ; that a news- 
 paper may lawfully publish the fact 
 that a person has been arrested, and 
 upon what charge; and that com- 
 ments in a newspaper upon the report 
 of a trial which has terminated, fairly 
 made, without malice, and founded on 
 the facts, are privileged. You will, 
 therefore, have to look at all the facts 
 which bear upon the privilege claimed 
 in this case, and if, upon the whole of 
 them, you should be of the opinion that 
 the facts published came to the hands 
 of the defendant or his subordinates in 
 
2 52.J 
 
 NEWSPAPERS. 
 
 447 
 
 take judicial notice of mercantile agencies and their mode 
 of transacting their business.^ Independently of certain 
 statutory provisions, the law recognizes no distinction in 
 principle between a publication by the proprietor of a 
 newspaper and a publication by any other individual.^ A 
 newspaper proprietor is not privileged as such in the dis- 
 semination of news, but is liable for what he publishes in 
 the same manner as any other individual.^ The publica- 
 
 the regular course of business as items 
 of the news of the day, which had al- 
 ready been published in the Brooklyn 
 Eagle, and that from the reputation of 
 the latter journal and the manner of the 
 publication therein and all the circum- 
 stances appearing to surround such 
 publication, the defendant and his 
 subordinates had reason to believe and 
 did believe the facts published to be 
 true, and that the republication in the 
 New York Staats Zeitung was induced 
 solely by such belief, and that the facts 
 thus republished in the form of an 
 abstract and with express reference to 
 the source from which they had been 
 received were of such a character as 
 to constitute, in your judgment, proper 
 and legitimate items of news for publi- 
 cation in the New York Staats Zeitung 
 as the most influential newspaper 
 organ of the German population of 
 this city, and that the said journal, the 
 moment a question was raised as to 
 the truth of the charge, made substan- 
 tially a full and complete retraction of 
 the whole charge, the defendant is 
 entitled to a verdict, though he may 
 have failed in the justification attempt- 
 ed upon the trial." 
 
 We also refer the reader to a 
 charge of Judge Brewer, Edwards v. 
 Kansas City Times, 32 Fed. Rep. 
 813. 
 
 1 Ante, note I, p. 417. 
 
 ^ Davison v. Duncan, 7 El. & Bl. 
 231 ; Campbell v. Spottiswoode, 8 
 Law Times Rep. N. S. 201 ; 3 Fost. 
 & F. 421 ; Regensperger v. Kiefer, 6 
 Cent. Rep. 266. 
 
 3 The right to criticise is general; 
 it is not the peculiar privilege of the 
 press. (Kane v. Mulvany, Ir. Rep. 2 
 
 C. L. 402.) A writer in a newspaper 
 has no other or greater privilege than 
 any other individual. (Campbell v. 
 Spottiswoode, 8 Law Times, N. S. 
 201.) As to privilege, there is no 
 difference between a publication by a 
 newspaper and a private individual. 
 (Davison v. Duncan, 7 El. & Bl. 231.) 
 " Conductors of the public press have 
 no rights but such as are common to 
 all. (Sheckell v. Jackson, 10 Cush. 
 26; The State v. The Banner Pub. 
 Co. 22 The Reporter, 445 ; but see 
 contra Palmer v. City of Concord, 48 
 N. H. 217; Sweeney v. Baker, 13 W. 
 Va. 158, and particularly Briggs v. 
 Garrett, 1 1 1 Penn. St. 404 ; Barries v. 
 Cambell, 59 N. H. 128.) But in this 
 country, every citizen has the right to 
 call the attention of his fellow-citizens 
 to the administration of public affairs 
 or the misconduct of public servants, 
 if his real motive in so doing is to 
 bring about a reform of abuses, or to 
 defeat the re-election or re-appointment 
 of an incompetent officer." (Smith, J., 
 Palmer v. City of Concord, 48 N. H. 
 216, and see Miner v. Post and Tri- 
 bune Co. 49 Mich. 358; Renwick v. 
 Wilcox, 6 West. Jur. 681.) On March 
 14, 1859, in the New York Senate, Mr. 
 Ely introduced a bill to amend chap- 
 ter 130 of the Laws of 1854, by pro- 
 viding that no publication in any 
 newspaper, respecting any person 
 holding office shall be deemed a libel, 
 and providing that any assault upon 
 the person of an editor who has made 
 any such publication shall not be illegal 
 or punishable, unless resulting in the 
 death or maiming of the person as- 
 saultec'. 
 
448 
 
 NEWSPAPERS. 
 
 [CH. IX. 
 
 tion of defamatory matter is not privileged because pub- 
 lished in the form of an advertisement,^ or as news, or 
 because furnished by a correspondent, or as copied from 
 other papers.^ The proprietor or publisher is liable on 
 proof of publication,^ although published against his 
 orders ;* but where the editor is sued he can be held liable 
 only upon proof that he personally aided or procured the 
 publication of the article in question.' In the case of 
 newspapers published by joint stock associations, an officer 
 of the association (the treasurer), it has been held, is not per- 
 sonally liable for the matter published in the paper, unless 
 it is shown that he exercised some personal supervision 
 over the publishing of the paper.* This being the case, after 
 referring to the statutory provisions affecting publications 
 in newspapers, it will be unnecessary separately to consider 
 what a newspaper proprietor may or may not publish with 
 impunity ; we can review his rights and duties under the 
 general head of criticism.' 
 
 ' Robertson v. Bennett, 44 N. Y. 
 Superior Ct. Rep. 66 ; Perrell v. New 
 Orleans Times, 25 La. Ann. Rep. 170; 
 Harrison v. Pirree, i Fost. & F. 
 567. 
 
 2 Thompson 7/. Powing, 15 Nev. 
 195; Mallory z/. Pioneer Press Co. 34 
 Minn. 521; and see Bathrick v. Post 
 and Tribune Co. 50 Mich. 629. 
 
 " Reg. V. Holbrook, 4 Q. B. D. 
 42. 
 
 " Hall V. Dunn, I Ind, 344; Com. 
 V. Willard, 9 W. N. C. 1524 (Pa.), 
 ante, note to § 123. In such cases it 
 has been held the proprietor is not 
 responsible for any malice of the 
 author or pubUsher de facto, and so 
 not subject to punative damages. 
 Haines v. Schultz, 12 Cent. Rep. 806. 
 
 ' Reg. V. Ramsey, 15 Cox C. C. 
 
 231- 
 
 « Vanaernam v. McCune, 39 Hun, 
 316; McCabe v. Jones, 10 Daly, 222; 
 Simonsen v. Herold Co. 19 The Re- 
 porter, 383. A limited company hav- 
 ing printed a newspaper containing a 
 libel for another limited company who 
 
 published the same. Held, that in 
 the absence of evidence of knowledge 
 of the contents of the newspaper, the 
 directors of the former company and 
 the signatories to the articles of asso- 
 ciation of the latter company were 
 wrongfully convicted. (Reg. v. Judd, 
 
 37 Week. Rep. 143.) 
 
 ' For much interesting matter re- 
 lating to newspapers we refer to 
 "Newspaper Libel," by Samuel Mer- 
 rill. Among the statutory provisions 
 relating to libels in newspapers were: 
 
 38 Geo. in, ch. 78, entitled. An act 
 to prevent the publication of news- 
 papers by persons not known, &c., 
 among other provisions, requires that 
 before any newspaper is started, the 
 proprietor must file an affidavit by the 
 printer, publisher, and proprietor, 
 stating the place where the paper is to 
 be printed, and its title. This act 
 was amended 5 Wm. IV, ch. 2. 32 
 Geo. Ill, ch. 60, entitled, An act to 
 remove doubts respecting functions of 
 juries in cases of libel. This is the 
 statute enabling juries to give a gene- 
 
§ 253.J 
 
 CRITICISM. 
 
 449 
 
 § 253- To criticise, in its widest signification, means 
 passing an opinion, commenting. In this sense every one 
 
 24, which repeals 6 & 7 Wm. IV, ch. 
 76. A plea of payment into court and 
 apology not allowed with a traverse of 
 the defamatory sense imputed. (Barry 
 V. M'Grath, Irish Rep. 3 C. L. 576.) 
 As to plea of apology, see Rish Allah 
 Bey V. Johnstone, 18 Law Times, N. 
 S. 620; Cotton V. Beaty, 13 Up. Can. 
 C. P. Rep. 243; see notes i, p. 351, 
 and I, p. 442, ante>f Pleas of apolo- 
 gy, payment into court and justifica- 
 tion allowed. (Hawkesley v. Brad- 
 shaw, 5 Q. B. D. 302 : and Laws of N. 
 Y. 1852, ch. 165; Id. 1868, ch. 430; 
 Sanford v. Bennett, 24 N. Y. 20. 
 
 The New York Penal Code pro- 
 vides : § 247. A prosecution for libel 
 cannot be maintained against a re- 
 porter, editor, publisher, or proprietor 
 of a newspaper, for the publication 
 therein, of a fair and true report of 
 any judicial, legislative or other public 
 and official proceeding, or of any state- 
 ment, speech, argument or debate in 
 the course of the same, without prov- 
 ing actual malice in making the report. 
 § 248. The last section does not apply 
 to a libel contained in the heading of 
 the report, or in any other matter 
 added by any other person concerned 
 in the publication, or in the report of 
 anything said or done at the time and 
 place of the public and official pro- 
 ceeding, which was not a part thereof. 
 In the Spring of 1889, the news- 
 paper press of New York, led by the 
 New York Herald, made a fierce on- 
 slaught upon the existing law of libel, 
 particularly as applied to newspapers. 
 Senators Saxton and Blumenthal in- 
 troduced bills amending the law, 
 but the Legislature refused to adopt 
 them. 
 
 The laws of Michigan, 1885, p. 354, 
 % 3, provide, that in suits brought for 
 the publication of libels in any news- 
 paper, only such actual damages as 
 may be proved can be recovered, if it 
 appear that the publication was made 
 in good faith and did not involve a 
 criminal charge and was due to mis- 
 take, and that a retraction was pub- 
 lished, etc. Held, that the act was 
 unconstitutional, in that it deprives 
 persons of all adequate remedy for 
 
 ral verdict in actions of libel. The 
 1 8th section provides for a recovery 
 in actions of libel. 60 Geo. Ill, ch. 8, 
 am'd, I Geo, IV, ch. 73, to prevent 
 and punish blasphemous libels. 60 
 Geo. Ill, ch. 9, to restrain abuses 
 arising from the publication of blas- 
 phemous libels. This act requires 
 newspaper proprietors to give se- 
 curity to pay the damages and costs 
 in actions for libels pubhshed in 
 the papers owned by them. 6 & 7 
 Vict. ch. 96, an act to amend the law 
 respecting defamatory words and 
 libel. (Am'd, 8 & 9 Vict. ch. 75.) It 
 provides, among other things, that in 
 actions for libels in newspapers or 
 periodicals, the defendant may plead 
 that the libel was inserted without 
 actual malice, and without g^oss neg- 
 ligence, and before the action, or at 
 the earliest opportunity afterwards, he 
 published an apology; and gives 
 liberty, with the plea of apology, to 
 pay money into court. This act, it 
 has been held, does not apply to crimi- 
 nal prosecutions. (Reg. v. Duffy, 2 
 Cox Cr. Cas. 45; 9 Ir. L. R. 329.) 
 As to this statute, see Chadwick v. 
 Herapath, 3 C. B. 885; O'Brien v. 
 Clement, 3 Dov.-l. & L. 676 ; Reg. v. 
 Holbrook, 26 Week. Rep. 144. The 
 Times newspaper having published in 
 the letter of a correspondent, that 
 plaintiff, a tailor, had been flogged 
 for an assault on a provost marshal, 
 was furnished with a contradiction 
 which it delayed publishing until after 
 an action for libel had been com- 
 menced, held that this delay justified 
 large damages, and that no plea under 
 6 & 7 Vict, could be allowed. (Smith 
 ■V. Harrison, I Fost. & F. 565.) Where 
 a defendant pleads an apology and 
 payment into court, if the jury find the 
 apology not sufficient, the jury are to 
 assess the damages irrespective of the 
 amount paid into court, and may give 
 a verdict for less than that amount. 
 (Jones V. Mackie, Law Rep. 3 Ex. i.) 
 As to the statute of 60 Geo. III. see 
 /?^ Chaplin. 2 Hurl. & Colt. 270; Re 
 Clements, 1 2 Law Times. 3S0; 18 Law 
 Jour. Ex 304; Re Gregory, 13 Law 
 Times, 142; and see 32 & 33 Vict. ch. 
 2J 
 
450 CRITICISM. [CH. IX. 
 
 is continually criticising/ and every one is continually fur. 
 nishing occasion for criticism. Criticism may mean praise 
 or censure. The latter is the sense in which it is more 
 frequently employed, and is the only sense in which it 
 enters into our present inquiry. We use criticism as a 
 synonym for " fault-finding." Sometimes the term criticism 
 is limited so as to indicate only "faultfinding" in matters 
 of literature and art, or in respect to persons engaged in 
 offices of public trust. We do not attempt to define, with 
 any degree of precision, what is the ordinary sense of the 
 term criticism, because we believe it has no definite con- 
 notation, and because we do not recognize any distinct or 
 independent right, such as seems generally supposed to be 
 implied in or to exist under the designation of criticism. 
 In our opinion, one cannot, by styling defamatory matter 
 criticism and the defamer a critic, escape from those rules 
 which determine what is and what is not defamatory matter 
 for which an action may be maintained. 
 
 § 254. Criticism may be divided into criticism of per- 
 sons and criticism of things. What one does, one's actions 
 are things, and as such have a separate existence distinct 
 from the person. Every action, every thing one does, is 
 naturally and necessarily the subject of comment. Every 
 action,every thing one does confers a privilege upon every 
 person to speak or write concerning such action or thing. 
 As to such action or thing every one may, in good faith, 
 speak or write whatever seems to him fit to be spoken or 
 written (§ 204). Save good faith, there is no limit to 
 
 many injuries to reputation caused by Stevenson, 27 Conn. 14; Hotchkiss v. 
 the publication of charges involving Porter, 30 Id. 414.) As to the pro- 
 moral turpitude, but not technically posed change of the law in New York 
 criminal, and for which injuries no re- see 39 Alb. L. J. 285. 
 traction can atone. (Park v. Detroit ' What distinguishes man from the 
 Free Press Co. 40 N. W. 731.) Similar other animals is, that he alone has the 
 laws in Minnesota and Connecticut faculty of meddling with what does 
 have been upheld. (Allen v. Pioneer not concern him. (The Abb6 Gali- 
 Press Co. 39 Alb. L.J. 294; Moore v. ani.) 
 
§ 254- J CRITICISM. 451 
 
 criticism concerning a man's actions or his creations. 
 " God forbid (exclaimed Baron Alderson) ^ that you 
 should not be allowed to comment on the conduct of all 
 mankind, provided you do it justly and honorably." 
 " Public men, and above all public writers, must not com- 
 plain if they are sometimes rather roughly treated. Public 
 writers, who expose themselves to criticism, must not 
 complain that such criticism is sometimes hostile." ^ " No 
 criticism of a person holding a public office is libelous un- 
 less malicious."* " No one can doubt the importance in 
 a free government of the right to canvass the acts of public 
 men, and the tendency of public measures — to censure 
 boldly the conduct of rulers, and to scrutinize the policy 
 and plans of government. This is the great security 
 of a free government."* "An editor may comment 
 freely on the acts of government, officers or individuals, 
 and indulge in occasional mirth and wit, and it is only 
 when the character of the publication is malicious, and its 
 tendency to degrade and excite to revenge, that it is con- 
 demned by the law, and subjects the publisher to prosecu- 
 tion." ^ " Liberty of criticism must be allowed, or we 
 should have neither purity of taste or of morals. Fair 
 discussion is essentially necessary to the truth of history 
 and the advancement of science. That publication, there- 
 fore, I shall never consider as a libel which has ^r its ob- 
 ject not to injure the reputation of any individual, but to 
 
 ' Gathercole v. Miall, 1 5 M. & W. ness of their inferences, provided they 
 
 315. are not actuated by express malice, or 
 
 2 Campbell v. Spottiswoode, 3 there is a reasonable ground for the 
 
 Fost. & F. 421. Approved and fol- statements and inferences. (Crane v. 
 
 lowed, Merivale v. Carson, 20 Q. B. D. Boston Advertiser Co. 13 The Report- 
 
 275. er, 650.) A citizen in discussing the 
 
 ' Harle v Catherall, 14 Law conduct of public servants, in their offi- 
 
 Times, N. S. 701. So said of Ian- cial capacity, is not liable in damages 
 
 guage concerning one who held the for speaking the truth, as he designs to 
 
 office of "way- warden." The public be understood, if spoken of the officer 
 
 have a right to discuss in good faith in his official capacity, without malice, 
 
 the public conduct and qualifications (Rowand v. DeCamp, 96 Penn. St. 
 
 of public men, and in such discussion 493-) 
 
 they are not held to prove the exact * Story on the Constitution, § 1888. 
 
 truth of their statements, or the sound- ' Tappan v. Wilson, 7 Ohio, 193. 
 
452 CRITICISM. [CH. IX. 
 
 correct misrepresentations of fact, to refute sophistical 
 reasoning, to expose a vicious taste in literature, or to 
 censure what is hostile to morality."^ " Every man who 
 publishes a book commits himself to the judgment of the 
 public." ^ " It is of the last importance to literature, and 
 through literature to good taste and good feeling, to moral- 
 ity, and to religion, that works published for general 
 perusal should be such as are calculated to improve, and 
 not to demoralize, the public mind ; and therefore it is of 
 vast importance that criticism, so long as it is fair, reason- 
 able, and just, should be allowed the utmost latitude, and 
 that the most unsparing censure of works which are fairly 
 subject to it should not be held libelous.^ A man who 
 publishes a book challenges criticism ; he rejoices in it if 
 it tends to his praise, and if it be likely to lead to an in- 
 crease in the circulation of his work, and therefore he 
 must submit to it if it be adverse, so long as it is not 
 prompted by malice, nor characterized by such reckless dis- 
 regard of fairness as indicates malice towards the author." * 
 An official act of a public functionary may be freely criti- 
 cised. The occasion excuses everything but actual malice 
 
 • Ld. EUenborough, Tabart v. in the course of a discussion in which 
 
 Tipper, i Camp. 350; and see Cooper both parties have been before the pub- 
 
 V. Stone, 24 Wend. 442, An apphca- he, and in which the plaintiff yfrj^ had 
 
 tion for an information was refused recourse to the press, and made the 
 
 against one for publishing that Ward's matter pubUc, it is important to see if 
 
 pill and drop had done great mischief malice has been made out against the 
 
 in twelve different cases, and that they party sued, or if he has published only 
 
 were a compound of poison and anti- what be believed was required for the 
 
 mony, &c. (Rex v. Roberts, 3 Bac. interests of truth. 
 
 Abr. tit. Libel, 492.) In Hibbs v. ^ Carr w. Hood, i Camp. 358; see 
 
 Wilkinson (i Fost. & F. 608), the Reade v. Sweetzer, note, 6 Abb. Pr. R. 
 
 action was for libel, first of the plaint- N. S. 9, a lengthy report of the trial 
 
 iff generally, secondly as a clergyman. of an action for libel on plaintiff as 
 
 It appeared that defendant had pub- the author of Griffith Gaunt, 
 
 lished a pamphlet entitled " Truth » Fair and reasonable comments, 
 
 Vindicated," and the alleged libels without malice, however severe in 
 
 were contained in a review of that terms, may be published concerning 
 
 pamphlet published in a newspaper. anything made by its owner a subject 
 
 Verdict for defendant; and by Erie, of public exhibition. (Gott ?/. Pulsifer, 
 
 C. J.: Where the plaintiff and defend- 122 Mass. 235.) 
 
 ant have both had recourse to the * Cockburn, C. J., Strauss v. 
 
 press, and the libel has been published Francis, 4 Fost. & F. 1 1 14. 
 
§ 255-J CRITICISM. 
 
 453 
 
 and evil purpose in the critic; it will not excuse an asper- 
 sive attack upon the character and motive of the officer. 
 To excuse such attack the truth of the utterances must be 
 shown.^ 
 
 § 255. But, as respects the person, except in the in- 
 stances and to the extent heretofore pointed out, there is 
 no privilege of criticism. Defamatory language concern- 
 ing a person can never be justified merely on the ground 
 that it was published as a criticism. Whenever defama- 
 tory matter concerning a person is justifiable — i. e., not 
 actionable — it is on some other ground than that the lan- 
 guage was published as a criticism. " No man has a right 
 to render the person or abilities [inseparable incidents to 
 the person] of another ridiculous."^ " I think no personal 
 ridicule of the author is justifiable."* If an author " has 
 made himself ridiculous by his writings, he may be ridi- 
 culed ; if his works show him to be vicious, his reviewer 
 may say so. But the latter has no right to violate the 
 truth in either respect,."* " If the jury can discover zxiy- 
 thing personally slanderous against the plaintiff [an author] 
 unconnected with the works he has given to the public, in 
 that case the plaintiff has a good cause of action." ® With- 
 
 ' Hamilton z/. Eno, 81 N. Y. 116. his lordship is reported to have said: 
 
 It is not permitted to publish of a pub- " If the defendant only ridiculed the 
 
 lie officer that he is unfit for his office plaintiflf as an author, the action could 
 
 (Broadbent v. Small, 2 Vic. Law Rep. not be maintained. 
 
 L. 121); or of having received a bribe In the case of Stuart v. Lovell, 2 
 
 (Hamilton v. Eno, 81 N. Y. 116; Stark. Cas. 93, the plaintiff being one 
 
 Handz/. Winton, 38 N. J. L. 122) ; or of the proprietors of the Courier 
 
 of gross incapacity and ignorance newspaper, brought his action for 
 
 (Speeringw. Andrae, 45 Wis. 281). libel against the defendant, the editor 
 
 ^ Holt, Ch. J., Reg. "V. Tuchin, 2 of the Statesman newspaper. Lord 
 
 Ld. Raym. 1061. EUenborough, in charging the jury, 
 
 ^ Best, Ch. J., Thompson v. Shac- observed : " In the first place, the 
 
 kell, Mo. & Malk. 187. plaintiff was described as the prosti- 
 
 * Cooper V. Stone, 24 Wend. 442. tuted Courier, and his full-blown base- 
 Does not this mean the reviewer can ness and infamy were represented as 
 only justify ridiculing an author, or holding him fast to his present connec- 
 accusing Mm of being vicious, by a tions, and preventing him from form- 
 defense of truth. ing new ones. It was certainly com- 
 
 ' Ld. EUenborough, Carr v. Hood, petent in one public writer to criticise 
 
 I Camp. 358. But in the same case another, exerting his talents in all the 
 
454 CRITICISM. [CH. IX. 
 
 out pretending to elicit the true source of the confusion 
 of thought so obvious in the major part of the dicta and 
 decisions upon the subject of criticism, we venture to assert 
 that the difficulty is occasioned by, (i) overlooking the 
 distinction between language concerning the person and 
 language concerning a thing; and (2) in treating certain 
 persons — authors, artists, &c. — as if a rule applied to them 
 and to their productions different from the rules which 
 apply to the manufacturer and to the merchant. It seems 
 not to have been kept in view that an author is but a pro- 
 ducer, and the maker of a watch is an author equally with 
 the maker of a- book. There is nothing at this day in the 
 vocations of the author, the actor, the painter, or the sculp- 
 tor, which makes the rights and duties of those who follow 
 them less or greater than the rights and duties of those en- 
 gaged in any other employment. We should construe lan- 
 guage concerning an author or an artist by the same rules as 
 we construe language concerning a lawyer, or a physician, a 
 merchant, or a mechanic. " There is no doubt that a man 
 who is an author has a right to have his character pro- 
 tected the same as if he acted in any other capacity. 
 However, notwithstanding that, whatever is fair and can 
 be reasonably said of the works of authors, or of them- 
 selves as connected with their works, is not actionable, 
 unless it appear that under the pretext of criticising the 
 works, the defendant takes the opportunity of attacking 
 the character of the author, and then it will be a libel." ' 
 
 latitude of free communication belong- the defendant as the venerable 
 
 ing to a. public writer; and so it ap- apostle of tyranny and oppression, and 
 
 peared to Lord Kenyon, in Heriot v. as a man whose full-blown baseness 
 
 Stuart (i Esp. 437), that the opinions and infamy held him fast to his pre- 
 
 and principles of a public writer were sent connection, because they left him 
 
 open to ridicule, in the same way as without the power of forming new 
 
 those of any other author, but that the ones ; in all this he had undoubtedly 
 
 privilege did not extend to calumnious overstepped the limits which had been 
 
 remarks on the private character of drawn, and by which his conduct 
 
 the individual. In that respect, the ought to have been regulated." 
 editor of a newspaper enjoyed the 1 Tenterden, C. J., Macleod v. 
 
 rights of protection in common with Wakley, 3 C. & P. 311. If the critic 
 
 every other subject. Since, then, the go out of his way to attack the private 
 
 defendant in this case had stigmatized character of the author, such an attack 
 
255-J 
 
 CRITICISM. 
 
 455 
 
 " I will not stop to weigh the argument which would dis- 
 franchise him (the plaintiff) because he is an author." • 
 The essential questions in every case of criticism are, (i) 
 Does the matter upon its face concern a thing ? (2) and 
 if it does, was it composed and published in good faith ? 
 Whatever other questions may arise, they are but second- 
 ary, and are, as already noticed (§ 204) material only so 
 far as they serve to furnish answers to the two essential 
 questions here mentioned. Plaintiff and his wife were joint 
 authors of a play, " The Whip Hand." Defendant was 
 editor of a newspaper, " The Stage." The play was per- 
 formed and defendant published of it, among other things, 
 that it was a hash up of matters which had been used ad 
 nauseam^ a fatuous husband with a naughty wife. The 
 claim was, under the new rules of English pleading, that 
 the article implied the play was of an immoral tendency. 
 It was conceded by both parties there was no adulterous 
 wife in the play. The judge charged, (i) did the article 
 
 is a libel. (Ld. Abinger, Fraser v. 
 Berkeley, 7 C. & P. 621.) It is im- 
 portant that a line should be drawn 
 between fair discussion for the promo- 
 tion of the truth and publications for 
 the aspersion of personal character. 
 (Erie, C. J., Hibbs v. Wilkinson, I 
 Fost. & Fin. 610.) " A critic must con- 
 fine himself to criticism and not make 
 it the veil for personal censure, nor 
 allow himself to run into reckless and 
 unfair attacks merely from the love of 
 exercising his power of denunciation." 
 Huddleston, B., Whistler v. Ruskin, 
 London Times, Nov. 27, 1878, in that 
 case defendant published of plaintiff: 
 " The ill-educated conceit of the artist 
 so nearly approached the aspect of 
 willful imposture. I have seen and 
 heard much of cockney impudence 
 before now, but never expected to 
 hear a coxcomb ask two hundred 
 guineas for flinging a pot of paint in 
 the public's face." Verdict for plaint- 
 iff, one farthing. (See Gott v. Pulsifer, 
 123 Mass. 255.) 
 
 » Cooper V. Stone, 24 Wend. 442. 
 
 In all cases of criticism, "The ques- 
 tion is one of good faith." (Id) " The 
 only question is, whether there was 
 any excess in the comments ; that was 
 matter entirely for the jury." (Cock- 
 burn, C. J., Kelly V. Tinling, Law 
 Rep. I Q. B. 701.) If it be shown 
 that the comment is unjust, is malev- 
 olent, and exceeding the bounds of 
 fair opinion, it is actionable. (Dibdin 
 V. Swan, I Esp. 28.) The alleged 
 libel published in a newspaper charged 
 plaintiff with being an accomplice in a 
 certain crime, then recently committed, 
 and that to avoid arrest he feigned in- 
 sanity and took refuge in a lunatic 
 asylum. Plea in substance that plaint- 
 iff was a public man, professed to be 
 a public educator, had been in the 
 habit of delivering speeches and lec- 
 tures, and made under his own name 
 various publications, and that defend- 
 ants were the publishers of a public 
 journal, and in the exercise of a just 
 spirit of criticism published the alleged 
 libel; held not to be a justification. 
 (Smith V. Tribune Co. 4 Bissell, 477.) 
 
456 CRITICISM. [CH. IX. 
 
 imply the meaning as imputed by plaintiff; (2) if the 
 article was a fair criticism and did not bear the meaning 
 imputed, defendant was entitled to a verdict ; (3) no malice 
 was imputed to defendant. Malice, if it existed, would be 
 because defendant had exceeded his right of criticism ; (4) 
 if article no more than fair criticism, defendant not liable ; 
 (5) plaintiff must satisfy jury article was not a fair criti- 
 cism. Jury found for plaintiff, damages one shilling. The 
 judge allowed plaintiff to recover costs. Defendant ap- 
 pealed. The appeal was dismissed. The reasoning in the 
 opinions upon the appeal is involved and obscure, but the 
 court correctly states that criticism is not " a privileged 
 occasion " in the sense in which that term is usually em- 
 ployed, and while the court dwells very much upon "/"«?> " 
 and '■'■unfair'''' questions collaterally, it is in substance 
 unanimous in deciding that the test is, does the article refer 
 to the work criticised only, or does it go farther and affect 
 the person. In the case then before the court, the question 
 was did the so-called criticism of the play in effect mean 
 to allege that plaintiff was the author of an immoral play, 
 in which case it would be a libel, as affecting the person, 
 or did the so called criticism affect the play only ? Had 
 the defendant gone beyond the work to attack the 
 worker ? ^ 
 
 § 256. It was held to be within the limits of criticism 
 to publish of a newspaper : " It is the most vulgar, igno- 
 rant, and scurrilous journal ever published in Great Brit- 
 ain." ^ This affected only the character of the newspaper, 
 and not (except remotely) the reputation of any person. 
 So it is within the limits of criticism to publish of a 
 painting, that it was a mere daub, with other strong 
 
 1 Merivale v. Carson, 20 Q. B. D. to publish of a newspaper, that it was 
 27S- low in circulation. And see Latimer 
 
 2 Heriot V. Stuart, i Esp. Cas. 437 ; v. West. Morning News Asso. 25 L. 
 but it was in that case held actionable T. N. S. 44. 
 
§ 256.J CRITICISM. 457 
 
 terms of censure ; ^ or of an architect, that he acts on 
 absurd principles of art.^ In both of the last two pre- 
 ceding cases, it was left to the jury, as a question of fact, 
 whether the censure was unfair and intemperate, and in- 
 tended to injure the persons of the plaintiffs.* It was held 
 not to be within the limits of criticism to publish of the 
 plaintiff, a fioricultural exhibitor, " the name of G. is to 
 be rendered famous in all sorts of dirty work ; the tricks 
 by which he, and a few like him, used to secure prizes, 
 seem to have been broken in upon by some judges, more 
 honest than usual. If G. be the same man who wrote an 
 impudent letter to the Metropolitan Society, he is too 
 worthless to notice ; if he be not the same man, it is a 
 pity that two such beggarly souls could not be crammed 
 into the same carcass."* Nor is it within the limits of 
 criticism to write of the publisher of a magazine, that he 
 had inserted in his magazine a series of articles, the 
 greater part of which were false and of a gross charac- 
 ter ; ® nor to write of a book publisher, that he published 
 books of an immoral character, and ascribing to him the 
 authorship of some silly rhymes.* Where the plaintiff, 
 a surgeon, had presented a petition to Parliament against 
 empirics and irregular practitioners, and defendant, in a 
 medical journal, had commented on the petition, reflect- 
 ing on the plaintiff for ignorance generally, and particu- 
 
 > Thompson v. Shackell, Mo. & Stone, 24 Wend. 434. Where it is 
 
 Malk. 187. said not to be within the limits of 
 
 2 Soane v. Knight, Mo. & Malk. criticism to impute to an author false- 
 74. hood and unworthy motives in the 
 
 3 The question of the fairness of production of a book. 
 
 the comment is always for the jury. " Tabart v. Tipper, I Camp. 350; 
 
 (De Mestre v. Syme, 9 Vict. L. R. L. the rhymes were : 
 
 \0, %■!%%, post.) There was a little maid, 
 
 * Green v. Chapman, 4 Bing. N. And she was afraid 
 C. 92; 5 Sc. 340. Not privileged to ^^^1^:^^^^'"^^ "' 
 
 call plaintiff a degraded wretch. When she went to bed, 
 (Crotty V. McMahon, I Jones [Ir. And she fastened her door with a skewer. 
 
 Rep.]. 465.) And were followed by this line: 
 
 5 Colburn v. Whiting, cited Cooke pj^;^, ^^^ ^gbis Atticam quandam inesse 
 
 on Defam. 58; and see Cooper v. eiegantiam. 
 
458 CRITICISM. [CH. IX. 
 
 larly in chemical knowledge ; and the judge had directed 
 the jury, that if they considered the libel a fair comment 
 on the petition, and not a malicious effusion against the 
 plaintiff, and also if they considered that it imputed to 
 him ignorance in chemistry only, and not in his profes- 
 sion as a surgeon, to find for the defendant, which they 
 did ; the court granted a new trial.^ Where the plaintiff, 
 a " marine store dealer," had exhibited a placard in front 
 of his store, offering certain prices for kitchen stuff, candle 
 ends, pewter, plated goods, &c., and proposing to fetch them 
 from private houses. Some observations upon this placard 
 had been made by a magistrate officially, upon which the 
 defendant published in a newspaper an article headed, 
 " Encouraging servants to rob their masters," and imputing 
 that the placard was calculated or intended to encourage 
 servants to rob their masters. The placard was held to be 
 a proper subject of criticism, and as the article did not go 
 beyond the placard, or attack the plaintiff" in anything not 
 fairly arising out of that document, it was held privileged.'* 
 
 ^ Dunne v. Anderson, 3 Bing. 88. S." (Boynton v. Remington, 3 Allen 
 
 The reporter, erroneously as we think, [Mass.], 397.) 
 
 puts this decision on the ground that In a previous note (No. 3, p. 329) 
 
 presenting a petition to Parliament is we directed attention to the views of 
 
 an act not obnoxious to criticism. Lord Chief Justice Cockburn on criti- 
 
 The error for which the new trial was cism ; we recur to the subject to give 
 
 granted was the direction to find for some extracts from his charge in the 
 
 the defendant, if the imputation was case of Seymour v. Butterworth, re- 
 
 of.ignorance in chemistry only. ported at length in the Law Magazine 
 
 * Paris V. Levy, 9 C. B. N. S. 342 and Law Review (London), February, 
 [in banc]; 2 Fos. & Fin. 71 [Nisi 1863, and given in an abridged form 
 Prius]. It was held not to be a libel in The Monthly Law Reporter (Bos- 
 upon a dealer in coal in L., who had ad- ton), May, 1863; also reported 3 Fost. 
 vertised genuine Frankhn coal for sale, & Fin. 384. The plaintiff, a barrister, 
 to publish the following advertise- Recorder of Newcastle-upon-Tyne, 
 ment : '' Caution. — The subscribers, and member of Parliament, sued for 
 the only shippers of the true and an alleged libel upon him, published 
 original Franklin coal, notice that in the Law Magazine. We find in the 
 other coal dealers in L. than our charge: (i.) A man's public political 
 agent, J. S., advertise Franklin coal. conduct is matter for the freest and 
 We take this method of cautioning fullest discussion on the part of a 
 the public against buying of other par- writer in a public journal. (2 ) To 
 ties than J. S., if they hope to get the animadvert on those who lend them- 
 genuine article, as we have neither selves to a system of buying and sell- 
 sold nor shipped any Franklin coal to ing votes in Parliament, '• is within the 
 any party in L., except our agent, J. legitimate province of a public 
 
§ 256.] 
 
 CKITICISM. 
 
 459 
 
 Plaintiff, a naval architect, in 1867, submitted to the ad- 
 miralty proposals for conversion of the old wooden line 
 
 writer^' but if he goes beyond that, 
 and asserts that one "has bargained 
 to sell his vote," it is a charge which 
 no man, whether writing in public or 
 in private, ought to dare to make. (3.) 
 All men who occupy public positions 
 must submit, now and then, to be a 
 little roughly handled, and to be un- 
 courteously and even unjustly treated, 
 and people must not be too thin- 
 skinned in reference to such matters. 
 It has happened to everybody who 
 has had anything to do with public 
 life, to have, at one time or other, ob- 
 servations made upon his conduct and 
 motives, which, in all probability, at 
 the bottom of his heart, he has felt to 
 be unfounded and unjust; but we sub- 
 mit to it, and why .' because we know 
 that, upon the whole, that bringing, 
 by means of the public press, the con- 
 duct and motives of public men to the 
 bar of public opinion, is the best se- 
 curity for the discharge of public duty. 
 (4.) It is claimed that, although the 
 conduct of a public man is open to 
 public discussion, his private conduct 
 is not, and that it does not lie in the 
 mouth of a man, who has attacked 
 another with reference to his private 
 conduct, to say, I did it only in the 
 fair discharge of a public duty. But 
 there is this distinction in this case, 
 that, however true that proposition 
 may be with reference to the private 
 conduct of a private individual, the 
 plaintiff does not occupy the position 
 of a private individual. ... It 
 is impossible to say the plaintiff was 
 not a public man, and that his con- 
 duct, if it had reference to his fitness 
 to be a public man, and to occupy a 
 public position, was not a matter fit 
 for discussion. (5.) I must dissent 
 from the proposition that where a man 
 holds a public position in which in- 
 tegrity, honesty and honor are es- 
 sential and indispensable qualifica- 
 tions, if in his private conduct he 
 shows he is destitute and devoid of 
 those essential elements, that it is not 
 a fair subject for public animadversion 
 and hostile criticism, so long as the 
 
 writer confines himself within the 
 bounds of truth and within the lim- 
 its of fair and just observation. 
 Elsewhere in the charge his Lordship 
 speaks of the rights and duties of a 
 public writer, and generally speaks as 
 if a public writer was a person with 
 peculiar rights and duties, whereas 
 the law recognizes no such office as 
 that of a public writer, and gives him 
 no privileges except as mentioned 
 ante^ note I, p. 351. We do not con- 
 sider sound the distinction between 
 public men and private men, and pub- 
 lic acts and private acts To say, as 
 is said in the fifth of the foregoing 
 extracts, that one may criticise "so 
 long as the writer confines himself 
 within the bounds of truth and with- 
 in the limits of fair and just ob- 
 servation." is merely saying one may 
 publish the truth, and criticise where 
 it is fair and just to do so. To limit 
 criticism to just criticism is, in effect, 
 to toll the right of criticism, as it sub- 
 stitutes the judgment of the jury for 
 the judgment of the critic. In another 
 case, Strauss v. Francis {\ Fost. & 
 Fin. 939), also tried before Lord Cock- 
 burn, the plaintiff was the author of a 
 novel called "The Old Ledger," and 
 the defendant the editor of the Athe- 
 naeum. The defendant published a 
 criticism of this novel, for which the 
 plaintiff brought an action for libel, 
 and on the trial, with the consent of 
 the defendant, withdrew a juror. The 
 defendant then published an article 
 under the heading "The Rights of 
 Criticism," in which he republished 
 the original criticism, with comments 
 on the trial, at which the plaintiff 
 withdrew a juror, and stating that he 
 (defendant) consented to the with- 
 drawal of a juror because he believed 
 had he recovered a verdict he could 
 not collect his costs of the plaintiff. 
 In an action for this second publica- 
 tion (4 Fost. & Fin. 1 108), the judge 
 charged the jury "that the action re- 
 lated to two separate matters of com- 
 plaint, which should be kept distinct — 
 first, the review on the work; next. 
 
460 
 
 CRITICISM. 
 
 [CH. 
 
 IX. 
 
 of battle ships of the navy into iron-clad turret ships. His 
 proposals were rejected. In 1870, the iron-clad turret ship 
 
 the comments on the trial. The re- 
 publication of the criticism on the 
 work brought it under the notice of 
 the jury, and it would be for them to 
 say whether the criticism was fair and 
 reasonable, or whether the writer of it 
 was actuated by malice. That it was 
 severe there could be no doubt, but 
 the question was, was the severity 
 warranted by the nature of the book ? 
 It was conceded that it was of vast 
 importance to literature, and, through 
 literature, to the morals, religion, good 
 taste and good feelings of the public, 
 that works which were laid before 
 them for their perusal should be of 
 such a character that they would im- 
 prove and not demoralize. It was, 
 therefore, right and wholesome that 
 criticism, so long as it was fair and 
 just, should be allowed the largest 
 latitude. Authors courted criticism, 
 because, if it were favorable, it would 
 secure popularity for, and extend the 
 circulation of, their works; but, as 
 they challenged criticism, they should 
 submit to it when it was adverse, so 
 long as it was not prompted by reck- 
 lessness or malice. It had been con- 
 tended on behalf of the plaintiff that 
 it was unfair to select isolated passages 
 from a work and fasten on them, dis- 
 paraging the spirit and character and 
 object of the entire book; but that 
 observation was open to this remark, 
 that it was not because a work might, 
 as a whole, be good, that a critic, if he 
 found many passages of an obnoxious 
 character, must abstain from com- 
 menting on them. That some of the 
 passages read warranted the charge 
 of indelicacy, some the charge of pro- 
 fanity, and many of them the charge 
 of gross vulgarity, was, he thought, a 
 matter as to which they could not fail 
 to give an answer in the affirmative. 
 The fair critic was a prosecutor who 
 brought to the bar of public opinion 
 offenders against good taste, against 
 delicacy and propriety. The work in 
 question was denounced as being 
 abominable. That was, no doubt, a 
 strong expression. It was for the 
 
 jury, having the book before them, and 
 having heard what had been said for 
 and against it, to say whether the 
 criticism in question was a fair repre- 
 sentation of the character of the work. 
 The jury found for the defendant. 
 [See note to § 258, posiJ] In another 
 case, Campbell v. Spottiswoode (3 
 Fost. & F. 421, we quote from the 
 London Quarterly Review of April, 
 1865, art. Libel), the plaintiff, the ed- 
 itor of the British Standard, had pub- 
 lished in that newspaper a series of 
 appeals on behalf of missions to 
 China. The alleged libel was an ar- 
 ticle published in the Saturday Review, 
 commenting on those appeals, and in 
 which the plaintiff was called an " im- 
 poster," and charged " with scandal- 
 ous and flagitious conduct." On a 
 trial before Lord Cockburn, the plaint- 
 iff had a verdict, the judge charging 
 the jury that the defendant had ex- 
 ceeded the limits of criticism, and 
 added : " It cannot be said that, be- 
 cause a man is a public man, a writer 
 is entitled not only to pass judgment 
 upon his conduct, but to ascribe to 
 him corrupt and dishonest motives." 
 A motion for a new trial was denied; 
 Lord Cockburn. in giving judgment 
 (8 Law Times Rep. N. S. 201 ; 3,6. & 
 S. 769; 3 Fost. & Fin. 421, note), said: 
 '' But it seems to me that a line must 
 be drawn between hostile criticism 
 upon a man's public conduct and the 
 motives by which that conduct may 
 be supposed to be influenced, and that 
 you have no right to impute to a man 
 in his conduct as a citizen — even 
 though it be open to ridicule or dis- 
 approbation — base, sordid, dishonest 
 or wicked motives, unless Here « so 
 much ground for the imputation 
 that a jury shall be of opinion, not 
 only that you may have honestly 
 maintained some mistaken belief up- 
 on the subject, but that your belief is 
 well-founded, and not without cause." 
 We do not understand the part in 
 italics. In our opinion, his Lordship 
 should have said that you must not 
 impute dishonest or wicked motives 
 
§ 256] 
 
 CRITICISM. 
 
 461 
 
 " Captain" capsized and sunk with all hands. This disaster 
 caused great public excitement. To explain the matter, 
 the defendant prepared a minute for presentation to Par- 
 liament. This minute criticised the plans of plaintiff. In 
 a note to the board by the then controller of the navy, he 
 said: "These plans would have no weight from the known 
 antecedents of their author, but they derived weight from 
 the approval of Mr. Watts," and recommended the rejec- 
 tion of said plans. The minute, including the above note, 
 was, by order of the admiralty, printed by the defendant, 
 and publicly sold, before the meeting of the Parliament to 
 which the minute was addressed. On the trial, it being 
 conceded there was no malice, the judge nonsuited plaint- 
 iff, on the ground that the publication was privileged as a 
 fair criticism on a matter of public importance. Held, by 
 a divided court (two judges against one) that the nonsuit 
 
 unless you can establish the truth of 
 the imputation. He came very near 
 to our views in Tumbull v. Bird (2 
 Fost. & F. so8j — we still quote from 
 the London Quarterly — in which he 
 charged the jury: ''If you are of 
 opinion that the defendant, in the 
 comments that he made, was guilty of 
 any willful misstatement of fact, 
 either by the exaggeration of what 
 actually existed, or by the partial sup- 
 pression of what actually existed, so as 
 to give it another color, or if he makes 
 his comments with any misstatement 
 of fact, ■which he must have known 
 to be a misstatement by the exercise 
 of ordinary care, then he loses his 
 privilege, and the occasion does not 
 justify the publication." We should 
 indorse this if the words in italics 
 were omitted. (See, however, Cooper 
 V. Lawson, 8 Adol. & El. 746.) 
 
 Publication, by reform commis- 
 sioners, of a report imputing bribery 
 to plaintiff, giving his name as one 
 who had been sued for bribery, was 
 held not privileged. (Wilson v. Reed, 
 2 Fost. & F. 149.) The plaintiff was 
 the publisher of Zadkiel's Almanac, 
 an astrological publication; the de- 
 
 fendant charged that the plaintiff, be- 
 ing the publisher of that silly work. 
 had gulled the public by means of 
 a magic ball of crystal in which future 
 events could be seen; held that this 
 could be justified only by proving that 
 plaintiff, knowing it to be an im- 
 posture, took money from the public 
 for the use of said ball. (Morrison v. 
 Belcher, 3 Fost. & Fin. 614; see 
 Eastwood V. Holmes, i Fost. & Fin. 
 347.) A publication of a report of an 
 inspector of charities under the char- 
 itable trust act, containing a letter 
 written several years previously, re- 
 flecting on plaintiff, held conditionally 
 privileged. (Cox v. Feeney, 4 Fost. & 
 Fin. 13.) The prosecutor, not in any 
 way connected with the theatre, got 
 up an entertainment he called "A 
 Dramatic Ball," which turned out a 
 disorderly affair. A newspaper, the 
 organ of the theatrical profession, 
 commented severely upon the affair, 
 and upon the prosecutor for getting 
 up such a ball for his own benefit and 
 styHng it "A Dramatic Ball." The 
 publisher was found not guilty. (Reg. 
 V. Ledger, London Times, January 14, 
 1880.) 
 
462 CRITICISM. [CH. IX. 
 
 was right, and by the dissenting judge it was not so 
 clearly privileged as to warrant the taking the case from 
 the jury.^ 
 
 § 256 fl. The conduct of a party to a suit, in giving his 
 testimony as a witness in a court of justice, is a fair sub- 
 ject of comment. So of the conduct of a witness who is 
 not a party .^ The administration of justice is a matter of 
 public interest, and therefore a proper subject of public 
 comment^ Where the libel was a comment upon a pro- 
 ceeding before a magistrate, the court charged that, if the 
 publication meant that the magistrate had acted hastily in 
 dismissing the case, and that it would have been more 
 satisfactory if all the evidence had been heard, that would 
 be legitimate comment ; but if, under the pretense of com- 
 menting upon the magistrate, the publication was intended 
 to charge the plaintiff with being guilty of the offense for 
 which he had been arraigned, it was not privileged.* 
 
 § 257. As the right of criticism is confined to criticis- 
 ing actions or things, it necessarily follows that, as a pre- 
 liminary to all right of criticism, it must appear that the 
 action or thing criticised had an existence ; therefore, a 
 justification on the ground of criticism can never prevail, 
 unless the existence of the action or thing, which the 
 criticism is alleged to concern, is either admitted or 
 proved. An alleged criticism consists in the statement or 
 assumption of certain facts, and of comments thereon. 
 
 ' Kenwood -v. Harrison, Law Rep. ^ Kane v. Mulvany, Ir. Rep. 2 C. 
 
 7 C. P. 606; dissented from, Merri- L. 402; and see Hedley z/. Barlow, 4 
 
 vale V. Carson, 20 Q. B. D. 275. Fost. & Fin. 227. 
 
 2 It is not fair comment to say the * Hibbins v. Lee, 4 Fost. & Fin. 
 
 testimony was "maliciously or reck- 245. It is not fair comment to sug- 
 
 lessly false " (Hedley v. Barlow, 4 gest that the prisoner, although ac- 
 
 Fost. & F. 224); nor to say the witness quitted, was really guilty. (Rish Allah 
 
 committed perjury. (Roberts v. Bey v. Whitehurst, 18 L. T. N. S. 
 
 Brown, 10 Bing. 519; 4 M. & S. 407; 615.) Nor is it fair comment to com- 
 
 Carr v. Jones, 7 East, 493 ; Felkin v. pare the attorneys in the cause with 
 
 Herbert, 10 Jur. N. S. 62; Littler?/. Quirk, Gammon & Snap. (Woodgate 
 
 Thompson, 2 Beav. 129,) v. Ridout, 4 Fost. & Fin. 202.) 
 
§ 258.J CRITICISM. 463 
 
 Where these facts are not admitted, to constitute a justifi- 
 cation their existence must be shovvn.^ Hence, to justify 
 a criticism, it is sometimes necessary to allege that the 
 facts which warrant a criticism exist, and that the com- 
 ment on those facts is fair.'^ Where the defamatory mat- 
 ter was that plaintiff, a tradesman in London, became 
 surety for the petitioners in the Berwick election petition, 
 and falsely stated on oath a sufficient property qualifica- 
 tion, when, in truth, he was not able to pay his debts. It 
 then asked why the plaintiff, being unconnected with Ber- 
 wick, should take so much trouble and incur such an ex- 
 posure of embarrassments, and proceeded : " There can be 
 but one answer to these queries — he is hired for the occa- 
 sion." The defendant justified as true all the publication, 
 except the charge of being hired, as to which no mention 
 was made, and, as a further defense, that the publication 
 was a correct report of judicial proceedings, with a fair and 
 bona fide commentary thereon. Held, it was properly 
 left to the jury to say whether the imputation that the 
 plaintiff was hired was a fair comment.* 
 
 § 258. As criticism is opinion, it can never he prima- 
 rily material to inquire into its justness. The right to 
 criticise implies the right to judge for one's self of the 
 justness of the criticism. It would seem to be but a delu- 
 sion to say one has the right to criticise, provided the crit- 
 icism be just. The justness or unjustness can never be 
 
 ^ Stewart v. McKinley, 11 Vict. circumstances warranted? But, on 
 
 Law Rep. L. 802 ; Browne v. McKin- the other hand, it has never been 
 
 ley, 12 Id. 240. held that the occasion being lawful 
 
 2 Fry z/. Bennett, i Code Rep. N. S. can justify any libel however gross." 
 
 239; sSandf. 54; Buddington^/. Davis, (Reg. v. Hicklin, Law Rep. 3 Q. B. 
 
 6 How. Pr. R. 401. "The occasion 376, Blackburn, J.) 
 of the publication of libelous matter ^ Cooper v. Lawson, 8 Adol. & 
 
 is never irrelevant, and is for the jury, El. 746. The question whether on 
 
 and the jury have to consider, taking the facts proved the publication was a 
 
 into view the occasion on which mat- fair comment, is for the jury, although 
 
 ter is written which might injure an- gross dishonesty is plainly imputed, 
 
 other, is it a fair and proper comment, (De Mestre v. Syme, 9 Vict. Law 
 
 or is it not more injurious than the Rep. L. 10.) 
 
464 
 
 CRITICISM. 
 
 [CH. IX. 
 
 more than matter of opinion. The test always is, Was the 
 criticism bona fide ?^ It is like the case of one writing 
 concerning the sanity of another; the test of the justifica- 
 tion is not, Was the statement such as a man of sound 
 sense would have made ? but Was it the honest convic- 
 tion of the publisher? (§ 206.) Although that was a 
 case of comment or giving an opinion or criticism, was in 
 fact, a criticism concerning the person, and found its justi- 
 fication not in its being a criticism, but because the publi- 
 cation was made to protect the interest of another. When 
 it is argued that the right to criticise rests upon the in- 
 terest which the community generally may have in the 
 subject of the criticism, it is a confusion of two different 
 and distinct rights. The community are no more in- 
 terested in the person or reputation of any one individual 
 than in the person or reputation of any other member of 
 
 • Where the action is in respect of 
 a comment on a matter of public in- 
 terest, the case is not one of privilege, 
 properly so called, and it is not neces- 
 sary to a cause of action that actual 
 malice on the part of defendant be 
 proved. The question whether the 
 comment is or is not actionable de- 
 pends upon whether, in the opinion of 
 the jury, it goes beyond the limits of 
 fair criticism. (Merivale v. Carson, 20 
 Q. B. D. 275.) Henwood v. Harrison, 
 L. R. 7 C. P. 606, dissented from, and 
 Campbell v. Spottiswoode, 3 B. & S. 
 769, followed; see note to | 256, 
 ante. 
 
 One Stewart opened a " School of 
 Clerks, Salesmen and Reporters," and 
 prominently advertised such school. 
 A newspaper sent a reporter to inter- 
 view Stewart, and published a some- 
 what jocose report of the interview. 
 In an action by Stewart for such pub- 
 lication, held, that as the plaintiff held 
 himself out as a teacher and guide of 
 youth, and was seeking to attract 
 youth to his place by signs and adver- 
 tisements, he assumed a quasi public 
 character, and whether he was a 
 proper person to instruct the young, 
 
 and whether his school was a proper 
 place for the young to attend, were 
 matters of importance to the public, 
 and the defendant was in the strict 
 line of its duty when it sought such 
 information and gave it to the public, 
 and if that information tended to show 
 plaintiff was a charlatan, and his sys- 
 tem an imposture, the more need the 
 public should be informed of it (Press 
 Co. V. Stewart, 119 Penn. St. 584; 
 12 Cent. Rep. 275 ; rev'g, S. C. i Pa. C. 
 C. Rep. 247.) 
 
 Plaintiff, manager of the Queen's 
 printing office in Ireland, and also 
 employed on the staff of the Free- 
 man's Journal in Dublin. The alleged 
 libel appeared in the Saunders, an- 
 other Dublin newspaper, and in sub- 
 stance charged plaintiff with havmg 
 corruptly supplied to the Freeman's 
 Journal information acquired by him 
 as manager of said printing office. 
 Plea, fair comment, alleged that 
 before the publication complained of, 
 plaintiff had written articles, publish- 
 ed in the Freeman's Journal, com- 
 menting on these reports, before they 
 had been given to the press, and in 
 one case before the report was in the 
 
§ 258.] CRITICISM. 465 
 
 society. Nor is ttiere any foundation for the distinction 
 sometimes attempted to be drawn between the public and 
 the private character or standing of an individual ; and 
 although there are isolated dicta that appear to favor the 
 idea that a person occupying a public situation is thereby 
 rendered, personally, a subject of criticism, yet, as we con- 
 ceive, the context of these dicta so far explains them as to 
 limit the right of criticism to the actions} Thus it has 
 been said : " Every man has a right to discuss matters of. 
 public interest. A clergyman with his flock, an admiral 
 with his fleet, a general with his army, and a judge with 
 his jury — we are all of us the subjects for public discus- 
 sion ; and provided a man, whether in a newspaper or not, 
 publishes a comment on a matter of public interest, fair in 
 tone and temperate, although he may express opinions 
 that you may not agree with, that is not a subject for an 
 action for libel ; because whoever fills a public position 
 renders himself open to pub.'ic discussion ; and if any part 
 of his public acts is wrong, he must accept the attack as a 
 necessary though unpleasant circumstance attaching to his 
 position.^ In this country everything, either by speech or" 
 writing, may be discussed for the benefit of the public. 
 No doubt, therefore, the defendant was at liberty to discuss 
 the opinions or proceedings of the plaintiff. If he has done 
 it fairly, temperately and calmly, then he is not a fit subject 
 
 hands of members of House of Com- man is entitled to make fair com- 
 mons, and immediately before the ments, but to bring the case within 
 article on one of the reports appeared the privilege, the comments must be 
 in the Freeman's Journal, plaintiff had on acts, not supposed acts. (Wil- 
 stated to an applicant from another liams v. Spowers, 8 Vict. Law Rep. 
 newspaper for a copy of the report, L. 82.) 
 
 that it would not be ready for some * Criticism of the ability and 
 time, etc., and further, that defendant methods of a teacher, by a superin- 
 belieVed that the information for the tendent of schools, was held not libel- 
 articles in the Freeman's Journal on ous. (O'Connor v. Sill, 60 Mich, 
 the reports could only have been 175.) Imputing to an actor general 
 procured from the Queen's printing carelessness as to his dress and deliv- 
 office On demurrer plea held bad. ery, held privileged as criticism. 
 (Lefroy v. Burnside, 4 L- R- I- 556.) (Ireland v. King, 5 Aust. Jur. Rep. 
 > The public a^/.r of a public man 24.) Hissmg an actor. (10 Cent, 
 are public property on which every Law Jour. 57.) 
 
466 
 
 CRITICISM. 
 
 [CH. IX. 
 
 for an action for libel." ^ "Every individual has a right 
 to comment on those acts of public men which concern 
 him as a subject of the realm, if he do not make his com- 
 mentary a, cloak for malice and slander. There is, in- 
 deed, a material distinction between publications relating 
 to public and to private persons, as regards the question 
 whether they be libelous. That criticism may reasonably 
 be applied to a public man in a public capacity, which 
 might not be applied to a private individual."^ The first 
 
 ^ Bramwell, B., Kelly «/. Sherlock, 
 Law Rep. i Q. B. 689. Plaintifi, with 
 two friends, attended a public meeting 
 held for the purpose of hearing a can- 
 didate for election to Parliament, and 
 of discussing political questions con- 
 nected with said election. Plaintiff 
 and his friends attended merely as 
 listeners ; but during the meeting ex- 
 pressed dissent to something that was 
 said, which led to a disturbance, and 
 plaintiff and his friends leaving the 
 meeting under protection of the police. 
 Defendant, in a newspaper, comment- 
 ed in disparaging terms upon the 
 conduct of plaintiff and his friends, and 
 used language capable of meaning 
 that two of the party were intoxicated, 
 and that they were arrested for mis- 
 conduct. In a suit for this publication, 
 the judge, on the trial, directed the 
 jury that the comments were privi- 
 leged if made in a fair spirit, and it 
 was for the jury to say if the language 
 imputed intoxication. The jury found 
 for defendants ; and, on refusing mo- 
 tion for a new trial, the court held the 
 direction proper. (Davies v, Duncan, 
 43 Law Jour. C. P. 185.) 
 
 2 Parmiter v. Coupland, 6 M. & 
 W. 108. See Commonwealth v. 
 Singerly, 38 Leg. Intel. (Pa.) 177; 
 Commonwealth v. Beamish, 2 Law 
 Times (Pa.), 138; Commonwealth v. 
 M^inchell, 3 Law Times, N. S. (Pa.) 
 III. The license to criticism allowed 
 in England is exhibited in the case of 
 Odger V. Mortimer (28 Law Times, 
 N. S. 472) : The plaintiff, a well-known 
 public character, in addressing the 
 meetings held to protest against a bill 
 recently introduced into Parliament, 
 
 had burned the bill, and predicted 
 much popular irritation in event of its 
 being passed. Thereupon the de- 
 fendant published of him (amongst 
 other things), in the Figaro newspa- 
 per, " Odger victorious. Know all 
 men by these presents, that Odger, the 
 cobbler, rules the government of En- 
 gland. . . . We do not like the 
 cobbler, we abhor his principles, we 
 regard him as an enemy of order, we 
 hold him to be a demagogue of the 
 lowest type, half booby and half hum- 
 bug, a political Cheap Jack, who 
 would be a political sharper if he had 
 brains enough. . . . He defied Par- 
 liament and the government. . . . 
 He threatened an unprecedented 
 demonstration and civil discord. 
 Odger is victorious. The government 
 have modified their bill. . . . What 
 may be Odger's next fancy it is impos- 
 sible to guess. Perhaps he may assert 
 the right of the Odgerites to refresh 
 themselves in West-end pantries and 
 wine cellars, or he may demand the 
 release of all convicts who are so 
 nearly connected with that section of 
 the people which Odger, the cobbler, 
 commands." Defendant also publish- 
 ed the following • " I have any quan- 
 tity of bottled-up abuse, treason and 
 riot. I will exchange the whole lot for 
 any permanent appointment with ^i^o 
 per annum and upwards. George 
 Odger." In an action for this publi- 
 cation, defendant pleaded not guilt}', 
 truth, and that the publications 
 were "fair and bona fide comments 
 upon the acts and proceedings of the 
 government, and the several matters 
 and premises therein referred to, and 
 
§§ 259) 26o.] CRITICISM, 467 
 
 sentence in this last quotation refers to acts, and is cor- 
 rect ; and although the remarks in the subsequent sen- 
 tences profess to apply to persons^ yet they can be regarded 
 as stating the law correctly only by limiting them to the 
 acts of public men. Apart from the obsolete statutes of 
 scandalum magnatum there is no distinction of persons, 
 nor any division of persons into public and private 
 (§ 181V 
 
 § 259. The supposed distinction between matters of 
 fact and matters of opinion, is sometimes referred to as 
 marking the difference between justifiable or unjustifiable 
 comment or criticism. Criticism, it is said, is matter of 
 opinion ; and that while all expression of opinion is justifi- 
 able, a statement of fact is not justifiable, unless on the 
 ground of truth.^ This view is unsound. In one sense it 
 is merely the expression of opinion to say of a minister, he 
 entered the pulpit in a towering passion ; but such an asser- 
 tion cannot be justified as criticism.^ 
 
 § 260. Stress is sometimes laid upon the fact that the 
 criticism is upon a public act, implying that it is the pub- 
 
 the acts and conduct of the plaintiff in brought against it. The fact is, that 
 
 reference thereto and as a public public men must put up with laughing, 
 
 character," and were published as caricaturing, and sneering. . 
 
 such comments, and " without any Unless every electioneering squib is to 
 
 malicious intent or malice whatever." be made the subject of an action, I do 
 
 Upon the trial, the jury gave a general not see how we can possibly interfere. 
 
 verdict for defendant. On refusing a And, by Denman, J. ; The plaintiff is 
 
 new trial, the court, Bovill, Ch. J., a public man, and as %\xc\\.'\% prima 
 
 said : Mr. Odger is essentially a public facie the proper subject of public 
 
 man. This being so, editors of comment; see Bays 7/. Hunt, 60 Iowa, 
 
 public newspapers may comment 251. 
 
 in the strongest possible way upon ^ It is no defence for gross libel, 
 
 what he says and does in that charac- on a man's private character, that he 
 
 ten As for the ridicule complained was chairman of a political conven- 
 
 of, that is often the strongest weapon tion (Barr v. Moore, 87 Penn. St. 
 
 in the hands of a public writer, and if 385), nor that is for the public good, 
 
 it be used fairly, the presumption of (Bourresseau v. Detroit Ev. Press, 
 
 malice which would otherwise arise is 30 No. West. Rep. 376; Larrabie v. 
 
 rebutted. And per Grove, J.: If Minnesota Tribune Co. 36 Minn. 141.) 
 mere ridicule of a public man were * See Popham v. Pickburn, 7 Hurl, 
 
 enough to support an action for libel, & Nor. 891 ; ante, §§ 163, 241, and 
 
 every public newspaper — especially note 8, p. 175. 
 
 every comic newspaper — would be ' Walker v. Brogden, 19 C. B. N. 
 
 perpetually subject to have an action S. 65. 
 
468 CRITICISM. [CH. IX. 
 
 licity of the act upon which the right of comment de- 
 pends. We shall not attempt to distinguish between pub- 
 lic and private acts, because we are of the opinion that it 
 cannot directly make any difference in the right to criticise, 
 whether the act be done privately or publicly.^ It was 
 this supposed distinction between public and private acts 
 which occasioned the dubiety on the question whether a 
 sermon, not otherwise published than by its delivery from 
 the pulpit, by a minister to his congregation, was the sub- 
 ject of criticism.^ A churchwarden having written to the 
 plaintiff, the incumbent, accusing him of having desecrated 
 the church, by allowing books to be sold in it during the 
 service, and by turning the vestry-room into a cooking 
 apartment, the correspondence was published without the 
 permission of the plaintiff, in the defendant's newspaper, with 
 comments on the plaintiff's conduct. Held, that the corres- 
 pondence involved a subject oi public interest, which might 
 be made the subject of public discussion, and the publica- 
 tion of the correspondence was not actionable, unless the 
 language used was stronger than the limits of fair criticism 
 allow.^ Upon principle, private acts are, equally with 
 public acts, the subject of criticism. But whether the act 
 be a public or a private act may make a difference in deter- 
 mining whether the criticism was in good faith. 
 
 1 We suggest that the distinction ary, so as to entitle the public press 
 should be not between public and pri- or others to comment on it as such. A 
 vate acts, but between acts which it plea of fair comment; that the plaint- 
 concerns the public to know, and iff's dealings with his tenants was a 
 those which it does not concern the matter of public notoriety, and had 
 public to know. formed the subject of a letter written 
 
 2 Gathercole v. Miall, 15 M. & to the plaintiff on behalf of the ten- 
 W. 319; 10 Jurist, 337; 7 Law Times, antry by the parish priest; and that 
 89; 15 Law Jour. Rep. 179, Ex. In the whole subject of the law of land- 
 the same case it was held that the lord and tenant was a matter of pub- 
 conduct of the vicar of a parish, in lie interest and discussion--held that 
 establishing a parochial institution for the plea stated no defense, and leave 
 charitable purposes, by the rules of to plead it was denied. (Hogan v. 
 which all persons not members of the Sutton, 16 Weekly Rep. 127.) 
 Church of England are excluded from ' Kelly v. Tinling, Law Rep. I 
 the benefit of the charity, is not a pub- Q. B. 699. 
 
 lie act nor the act of a public function- 
 
CHAPTER X. 
 
 CORPORATIONS. 
 
 Corporations are legal persons — Their rights and duties 
 assimilated to those of natural persons — Can act only 
 through agents — May carry on business^ sue and be 
 sued^ and are liable for injuries committed by agents 
 — Corporations may have a reputation — Language 
 concerning corporations — Actions by corporations for 
 libel — Corporations cannot be guilty of slander — May 
 be guilty of libel. 
 
 § 261. Corporations, whether aggregate or sole, are 
 legal persons. Hitherto, attention has been directed ex- 
 clusively to language published by, or which concerned 
 natural persons or their affairs ; it will now be in order 
 to consider the rights and duties of legal persons or cor- 
 porations in respect to the publication of language. The 
 topic has been comparatively but little adjudicated, and to 
 the decisions upon it the remarks contained in a former 
 section (§ 15) appear peculiarly applicable. The great and 
 ever increasing number of corporations, assuming all the 
 functions of individuals, has created a tendency in the mod- 
 ern decisions to assimilate, so far as possible, the rights 
 and duties of corporations to the rights and duties of nat- 
 ural persons.^ It is the distinctive feature of a corpora- 
 tion that it can act only by or through its officers or agents ; ** 
 for even in the case of a corporation sole, the individual 
 who represents that corporation, and the corporation, are 
 
 1 Conro V. Port Henry Iron Co. 12 Fire Ins. Co, 18 Barb. 69; Story on 
 Barb. 28. Agency, § 16. 
 
 2 First Baptist Church v. Brooklyn 
 
470 
 
 CORPORATIONS. 
 
 [CH. 
 
 distinct entities. Ordinarily, a corporation may acquire 
 and possess property, and carry on business, and it may 
 sue and be sued in like manner as an individual,' and is 
 liable for an injury committed by its servants or agents, in 
 all cases where, under like circumstances, an individual 
 would be liable.^ " If a corporation itself has no hands with 
 which to strike it may employ the hands of others." ^ Ac- 
 cordingly, it has been held that an action lies against a 
 corporation for malicious prosecution or for a trespass,* or 
 for a libel.^ 
 
 1 The Constitution of the State of 
 New York provides (art. 8, § 3) : All 
 corporations shall have the right to 
 sue, and shall be subject to be sued in 
 all courts, in like cases as natural per- 
 sons. Doubted if a foreign corpora- 
 tion — i. e., foreign to the State in 
 which the action is pending — could 
 maintain action for libel. (Hahne- 
 mannian Life Jns. Co. v. Beebe, 48 111. 
 86.) Demurrer to complaint by a 
 foreign corporation. (Id.) 
 
 * First Baptist Church in Schen. 
 V. Schen. & Troy R. R. Co. 5 Barb. 
 80 ; and see Salt Lake City v. HoUis- 
 ter, 22 The Reporter, 353 ; Pritchard 
 V. Corporation of Georgetown, 2 
 Cranch Cir. Ct. 191 ; Watson v. Ben- 
 nett, 12 Barb. 196; New Haven R. R. 
 Co. V. Schuyler, 34 N. Y. 30, 208 ; Hun- 
 ter V. Hudson River Iron, &c. Co. 20 
 Barb. 507; Sharp v. Mayor of New 
 York, 40 Barb. 273 ; Rochester White 
 Lead Co. v. City of Rochester, 3 N. 
 Y. 468; Green v. London Omnibus 
 Co. 6 Jurist, N. S. 228; see ante, 
 
 §123- 
 
 ' Railway Co. v. Harris, 122 U. S. 
 
 597- 
 
 * Eastern Counties Railway v. 
 Broom, 6 Ex. 314; Roe v. Birkenhead 
 Railway Co. 7 Ex. 36 ; Goodspeed v. 
 East Haddam Bank, 22 Conn. 530; 
 McFadzenz/. Mayor of Liverpool, Law 
 Rep. 3 Ex. 279. In Owsley v. Mont- 
 gomery, &c. R. R. Co. 37 Ala. 560, it 
 was held, but as we conceive errone- 
 ously, that a corporation, although 
 liable for false imprisonment, was not 
 liable for malicious prosecution ; and 
 
 in Childs v. State B'k of Mo. (17 Mo- 
 213), it was held that neither an action 
 for malicious prosecution, for slander, 
 nor for false imprisonment, could be 
 maintained against a corporation. 
 (And see Stevens v. Midland Counties 
 R'way, 10 Ex. 355 ; Gillett v. Mo. 
 Valley R. R. Co. 55 Mo. 315; and 
 particularly Lord Bramwell's opinion 
 in Abrath v. No. East. R. R. Co. 55 
 Law Times Rep. N. S. 63 ; comment- 
 ed on 34 Alb. Law Jour. 302.) Not- 
 withstanding these decisions, there is 
 now no doubt but that corporations 
 are liable for malicious prosecutions. 
 Indeed it has been held that a cor- 
 poration is liable for the malicious pro- 
 secution of a civil action. (Brown v. 
 City of Girandeau, 23 The Reporter, 
 309.) And for a conspiracy to injure 
 a rival corporation. (Buffalo Oil Co. 
 7/. Standard Oil Co. 106 N. Y. 669; 
 and see Hussey v. King, 25 The Re- 
 porter, 17.) A corporation may be 
 indicted for libel. (State v. Atchison, 
 
 3 Lea, 729.) 
 
 5 Phil. R. R. Co. V. Quigley, 21 
 How. U. S. R. 202; Aldrich v. Press 
 Print. Co. 9 Minn. 133; Lawless v. 
 Anglo-Egyptian Cotton Co. Law Rep. 
 
 4 Q. B. 262; Maynard v. Fireman's 
 Ins. Co. 34 Cal. 48 ; Latimer v. West. 
 Mor. News. Co. 25 Law Times, N. S. 
 44; see Atlantic Glass Co. v. Paulk, 3 
 So. Rep. 800; McArthur v. Detroit, 
 &c. 16 Mich. 447; Evening Journal Ass. 
 V. McDermott, 15 Vroom (N. J.) 430; 
 Johnson v. St. Louis Dispatch Co. 65 
 Mo. 539; Home Machine Co. v. Son- 
 der, 58 Ga. 64; Dodge v. Bradstreet 
 
§ 262.] CORPORATIONS. 
 
 471 
 
 While a corporation is liable to an action for libel, 
 neither the president, nor any other officer of the corpora- 
 tion is /^r^fj^a/Zj/ liable for any act of the corporation in 
 which he has not personally participated.^ 
 
 Laws of New York, 1849, ch. 258, authorized seven or 
 more persons to unite as a joint stock association with 
 certain corporate rights and liabilities, amongst others to 
 sue and be sued in the name of the president of the associa- 
 tion ; where such an association published a newspaper, it 
 was held that an action for a libel published in such news- 
 paper may be maintained against such association in the 
 name of its president.^ 
 
 § 262. A corporation, like an individual, may have a 
 reputation, and a good reputation is equally as valuable to 
 a corporation as to a natural person ; ^ and as an individual 
 may sustain injury by language aflfecting his reputation, so 
 in like manner may a corporation. As in regard to lan- 
 guage affecting individuals, we distinguish between language 
 concerning the person as such, and language concerning 
 the person in a trade, and language concerning a thing or 
 the affairs of a person ; so in regard to language affecting 
 
 Co. 59 How. Pr. R. 104; McDermott against any " body corporate, " for any 
 
 V. Ev. Jour. Asso. 14 Vroom, N. J. injury to her person or character, the 
 
 488; Bacon v. Mich. Cent. R. R. 19 same as if she were sole. 
 The Reporter, 83. S., the general 1 Fanning v. Osborne, 3 Cent, 
 
 manager of defendant's railroad, with- Rep. 453 ; 102 N. Y. 441 ; Nevin v. 
 
 out special instructions from the direc- Spieckemann, 4 Atl. Rep. (Pa.) 497; 
 
 tors, dismissed plaintiff, a conductor, and see ante, p. 449. 
 for alleged dishonesty. By direction ^ Van Aernam v. Bleistein, as 
 
 of S., placards describing the offense, Pres't, &c., 102 N. Y. 355; 2 N. Y. 
 
 and stating plaintiff's dismissal, were State Rep. 470, and 32 Hun, 316; 
 
 posted in the company's private office sub nom. Van Aernam v. McCune. 
 
 (in some of which they were seen by A stipulation in such an action admit- 
 
 strangers), and in circular books of ting that the association was under the 
 
 the conductors — held defendant was law of 1849, and that the defendant is 
 
 liable for the acts of S., but that the its president, impliedly admits the 
 
 publication was privileged. (Tench association consists of the requisite 
 
 V. Gt. West. Rwy. Co. 33 Up. Can. number of members, and that the ac- 
 
 Q. B. Rep. 8 ; rev'g 32 Id. 452.) In tion is well brought against the presi- 
 
 New York, by statute (Laws, i860, dent. 
 
 ch. 90), a married woman may main- ' Trenton Ins. Co. v. Perrine, 3 
 
 tain an action in her own name, Zabr. 402. 
 
472 CORPORATIONS. [CH. X. 
 
 corporations, we must distinguish between language con- 
 cerning a corporation for different objects, as those engaged 
 in manufacturing, trading, or banking, and those not so 
 engaged, and language concerning the things of a corpora- 
 tion. Of course, language concerning the corporators is 
 not within the scope of the present chapter. Language 
 concerning a corporator comes within the rules relating 
 to defamation concerning an individual. Where the de- 
 fendant published, with other defamatory matter, that his 
 hat had been stolen by some of the members of No. 12 
 Hose Company, the hose company was a volunteer associa- 
 tion, and the members of the association brought a joint 
 action for this publication ; held, that the action could not 
 be maintained.^ 
 
 § 263. Language concerning a corporation not engaged 
 in any business, can hardly occasion, and certainly does 
 not necessarily occasion it, any pecuniary injury ; therefore, 
 in regard to language concerning such a corporation, no 
 action can be maintained, except upon proof of special 
 damage ; but as regards a corporation engaged in manu- 
 facturing, trading or banking, or other occupation in which 
 credit may be material to its success, there language con- 
 cerning such a corporation calculated to injuriously affect 
 its credit, must necessarily occasion it pecuniary injury, 
 and in such a case an action may be maintained by the 
 corporation without proof of any special damage.* Thus, 
 as regards language concerning corporations, some is ac- 
 tionable ^^rJ'^, and some is actionable only by reason of 
 special damage. 
 
 1 Giraud v. Beach, 3 E. D. Smith, juriously and directly affects its 
 
 337. credit, and necessarily and directly 
 
 * A corporation engaged in busi- occasions pecuniary injury; but io all 
 
 ness, in which credit is material to its other cases the averments and proofs 
 
 success, may maintain an action of of malice and special damage are 
 
 libel, without proof of special damage necessary. (Mutual Reserve Fund 
 
 where the language used concerning Life Association v. The Spectator Co. 
 
 it is defamatory in itself, and in- 50 Supr. Ct. [18 J & S.] 460.) 
 
§ 264.] CORPORATIONS. 
 
 473 
 
 § 264. In the case of an action by a corporation, a 
 mutual life insurance company, against the editor of a 
 newspaper, for libel in charging that the affairs of the com- 
 pany were mismanaged, it was alleged that the words were 
 published of and concerning the company in their business, 
 and of and concerning the directors of the company, and 
 of and concerning the president, vice-president and secre- 
 tary of the company, and of and concerning the property 
 and concerns of the company, and of and concerning the 
 conduct and management of the property and concerns of 
 the company by the aforesaid directors and officers of the 
 company ; and special damage was charged to have re- 
 sulted to the company in a loss of its business and a dimi- 
 nution of its profits. On demurrer to the complaint, it 
 it was held that '' a corporation aggregate may maintain 
 an action for a libel for words published of them concern- 
 ing their trade or business, by which they have suffered 
 special damage." And that, " in alleging special damage, 
 it is not always necessary to name the customers whose 
 business has been lost by the defamation ; but if the na- 
 ture of the business is such as to render that impracticable, 
 the loss of the business may be alleged generally."^ In 
 another case it was held that a joint stock company, incor- 
 porated under the statutes 19 and 20 Vict. ch. 47, might 
 maintain an action for libel, and that, too, against a share- 
 holder in the company.^ And in that case it was said there 
 may be particular kinds of libel which do not afifect a cor- 
 poration; but if injury ensues, an action may be maintain- 
 
 ^ Trenton Ins. Co. v. Perrine, 3 charter of an insurance company, or of 
 
 Zabr. 402. Not actionable to publish any other incorporation which claims 
 
 of an insurance company that it pro- the confidence of the public and seeks 
 
 poses to pay over thirtv per cent, in- the possession of its funds, is to be 
 
 terest to the stockholders before pro- encouraged rather than repressed." 
 
 viding for its liabilities, and that it is (Lawrence, J. , Id.) 
 unworthy of confidence. (Hahne- * Metropolitan Saloon Omnibus 
 
 mannian Life Ins. Co. v. Beebe, 48 Co. v. Hawkins, 4 Hurl. & Nor. 78, 
 
 111. 87.) " A free criticism of the 146. 
 
474 CORPORATIONS, [CH. X. 
 
 ed. Where the defendant published in a periodical that 
 the plaintiff, an incorporated bank, " was liable at any time 
 to be closed up by an injunction," the plaintiff brought an 
 action for libel, alleging that since the publication divers 
 persons had refused to receive the notes of the plaintiff, 
 and had refused to deal with it. To this complaint there 
 was a demurrer ; the demurrer was overruled, and it was 
 held that a good cause of action was alleged without any 
 allegation of special damages, that the law recognized 
 the right of a corporation to its property as effectually 
 as in the case of an individual. An appeal was taken to 
 the general term, where the decision was affirmed.* 
 Where an act of Parliament, after reciting the difficulties 
 experienced by joint stock companies in suits for recover- 
 ing debts and enforcing obligations, and in the prosecu- 
 tion of offenders, enacted that actions commenced by 
 the Hope Company for recovering debts, enforcing 
 claims or demands then due, or which thereafter might 
 become due or arise to the company, might be com- 
 menced, and indictments for offenses be preferred, in the 
 name of the chairman ; held, that the chairman might sue 
 for a libel on the company, although it was not a corporate 
 body.^ 
 
 § 265. As a corporation can act only by or through 
 its officers or agents (§ 261), and as there can be no 
 agency to slander (§ 57),^ it follows that a corporation 
 cannot be guilty of slander; it has not the capacity for 
 committing that wrong.* If an officer or an agent of a 
 corporation is guilty of slander, he is personally liable, and 
 
 > Shoe and Leather Bank v. Hacker w. DeGroot, 15 How. Pr. R. 
 
 Thompson, 18 Abb. Pr. Rep. 413. 314; and note i, p. 54, ante. 
 
 2 Williams v. Beaumont, 10 Bing. <* See dictum to the contrary, Gil- 
 
 260; 3 M. & Sc. 705; and see Wood- bert v. Chrystal Lodge,' 4 So. East, 
 
 ward V. Cotton, i Cr. M. & R. 44. Rep. 905. 
 
 * Moloney v. Bartley, 3 Camp. 210 ; 
 
265.] CORPORATIONS. 
 
 475 
 
 no liability results to the corporation. But as all concur- 
 ring in the authorship or publication of a libel are alike 
 responsible as publishers (§§ 115, 117, and note i, p. 95), 
 there is nothing to prevent a corporation from being, in 
 law, the publisher of a libel, and from being held liable as 
 such publisher. A corporation may sanction the publica- 
 tion of a libel, and, in such a case, the corporation is the 
 publisher of the libel, and liable in like manner as an in- 
 dividual ; not because, as is sometimes said, a corporation 
 may act with malice, but because it has a capacity for 
 voluntary action, and is responsible for such action.^ It is 
 as possible for a corporation as for an individual to act 
 maliciously, i. e., with a bad intent^ Accordingly it has 
 been held, that a corporation aggregate may, in its corpo- 
 rate capacity, cause the publication of a defamatory state- 
 ment under such circumstances as would, imply malice in 
 law sufficient to support the action ; and there may be cir- 
 
 * A corporation is liable in an ac- ployment, and was engaged by the 
 tion for a libel published by its agent, managers of the Winnipeg branch as 
 in excess of its authority, though in city collector. The Toronto manager 
 the course of the company's business. wrote two letters respecting plaintiff 
 (Fogg V. Boston and Lowell R. R. Co. to the Winnipeg manager, which 
 20 No. East R. [Mass.] 109.) Where letters, plaintiff alleged, were libelous, 
 a libelous article indicating that a and for which this action was brought, 
 neighboring ticket broker is not reli- Plaintiff admitted that being written 
 able, is conspicuously posted 40 days from one servant of defendant to 
 in a ticket office of a railroad company another, respecting a subordinate, 
 whose principal office and terminus they were /rz7«« /larczW privileged, but 
 are in the same city, and there is claimed that the language was such as 
 evidence that such office is used to to furnish evidence of express malice, 
 publish general information of interest and that the excess was not privileged. 
 to purchasers of tickets, the jury may Held, there being no evidence that 
 find that the company had knowledge the corporation or the directors or the 
 of the character of the notices posted managing board, authorized or had 
 in its ticket office, and that the libel any knowledge of the letters being 
 would not have remained posted so written, that the defendant was not 
 long had not the company authorized liable. (Freeborn v. The Singer Sew- 
 or ratified it. {Id.) ing Machine Co. 2 Manitoba Law Re- 
 Defendant was a foreign corpora- ports, 253.) 
 tion doing business in Canada, with ^ Reed v. Home Savings B'k, 136 
 a branch office at Winnipeg. Plaint- Mass. 445; 2 Addison on Torts, 73 ; 
 iff had been employed for a few Buffalo Oil Co. v. Standard Oil Co. 3 
 weeks at a branch office in Toronto, N. Y. St. Rep. 450, 453 ; 8 Id. 877 ; 
 and came to Winnipeg seeking em- 42 Hun, 153; 106 N. Y. 669. 
 
476 
 
 CORPORATIONS. 
 
 [CH. X. 
 
 cumstances by which malice in fact might be proved, such 
 as to make a corporation aggregate liable in its corporate 
 capacity, for such malice in fact/ 
 
 > Whitfield V. South-East. R. R. 
 Co. I Ell. B. & E. IIS; Aldrich v. 
 Press Printing Co. 9 Minn. 133; 
 Alexander v. N. East. R. R. Co. 34 
 Law Jour. Rep. N. S. 152, Q. B. ; 11 
 Jurist, N. S. 619; R. R. Co. v. Quigley, 
 21 How. U. S. 202; R. R. Co. V. 
 Conybeare, 9 Ho. Lords Cas. 711. 
 Exemplary damages against a cor- 
 poration. (Jeffersonville R. R. Co. v. 
 Rogers, 28 Ind. i ; Caldwell v. N. Y. 
 Steam Boat Co. 47 N. Y. 282.) A 
 
 corporation of itself cannot be guilty 
 of fraud, but where it can only ac- 
 complish the object for which it is 
 formed, by the agency of others who 
 act fraudulently, the corporation stands 
 in the same situation, with respect to 
 the conduct of its agents, as an indi- 
 vidual. (Ranger v. Gt. Western Rail- 
 way Co. 5 Ho. Lords Cas. 72.) Proof 
 of publication by a corporation. (De 
 Senancour v. Sec. La Prevoyance, 
 16 No. East. Rep. 553,) 
 
PART 11. 
 
 REMEDY BY ACTION 
 
 FOR THE WRONGS CALLED 
 
 SLANDER AND LIBEL. 
 
CHAPTER XI. 
 
 PROCEEDINGS IN AN ACTION. 
 
 Action^ how commenced — Within what time— In what 
 court — Attachment — Holding defendant to bail— Ex- 
 ecution against the person — Security for costs— Con- 
 solidating actions — Place of trial — Inspection and dis- 
 covery — Assessment of damages where no answer in- 
 terposed — Mode of trial — Struck jury — Refusing to 
 try — Compromise — Right to begin — Address of coun- 
 sel — Reading libel to jury — Evidence for plaintiff- 
 Abandonment of one of several causes of action or 
 defense — Province of the court and jury — Damages — 
 Verdict — New trial — Costs — Staying proceedings un- 
 til costs of former action paid. 
 
 § 266. The preceding chapters of this essay have been 
 devoted to a consideration of the law relating to the wrongs 
 called slander and libel. We have now to treat of the 
 remedy by action for these wrongs. The diversity of the 
 procedure in the courts of the several States, renders it 
 impossible to compress within any convenient space, or 
 into any convenient form, the practice, pleadings, and 
 proceedings in actions in all the States. To trace in detail 
 the whole proceedings in an action in any one State, would 
 be to exceed the limits of our subject. We purpose, there- 
 fore, to exhibit so much of the course of procedure in an 
 action in the courts of the State of New York, as applies 
 either exclusively to the action of slander or libel, or as 
 may have been adjudicated upon. Our remarks, while 
 they will more particularly refer to the State of New York, 
 will occasionally extend to other States and to the practice 
 
48o 
 
 PROCEEDINGS IN AN ACTION. 
 
 [CH. XI. 
 
 in the courts of England. As the Code of Procedure of 
 the State of New York has been the model for the Codes 
 of Procedure of other States, references to the Code of 
 Civil Procedure of New York will have a wide field of 
 practical utility. The topics of Parties, Pleading, and 
 Evidence will be considered in subsequent chapters.^ 
 
 § 267. Libel, slander and malicious prosecution are 
 included in the phrase " a personal injury."* The action 
 for slander or libel is commenced by summons. The sum- 
 mons may be served by publication.^ The action must be 
 commenced within two years of the time of the publica- 
 tion,* and within the lifetime of the person affected by the 
 
 ' An agreement not to permit the 
 columns of a newspaper to be used for 
 the publication of matter detrimental 
 to the covenantee, held to be too vague 
 to be enforced. (Fowler v. Hoffman, 
 31 Mich. 216.) In an unreported 
 case against Walter Savage Landor 
 (the author of ■" Imaginary Conversa- 
 tions," &c.. &c.), one count in the 
 declaration was on an agreement by 
 defendant not to libel the plaintiff, and 
 that he had broken said agreement. 
 
 ^ Code Civ. Pro. § 3343, subd. 5. 
 
 5 Code Civ. Pro. § 438 ; see Water- 
 house V. Hatfield, 9 Ir. L. R. 38. 
 
 * Code Civ. Pro. § 384. This 
 means publication in a technical sense ; 
 thus where a libel was published in a 
 newspaper and ten years aftei-ward 
 the plaintiff sent to the publisher for 
 and obtained a copy of the news- 
 paper; held the statute did not com- 
 mence to run until the " publica- 
 tion " of the copy so obtained. (Bruns- 
 wick z/. Harmer, 14 Q. B. 185.) 
 
 Limitation of action where no 
 damage occurs at the time of publica- 
 tion, but where subsequent damage 
 arises. (Bonomi v. Backhouse, i El. 
 Bl. & El. 622 ; cited Northrup v. Hill, 
 57 N. Y. 358.) If to a plea of limita- 
 tion plaintiff reply that words were 
 spoken within the prescribed time, he 
 must prove the speaking within that 
 time. (Huston v. McPherson, 8 Blackf. 
 562.) The period of limitation in the 
 
 States is said to be (Merrill News- 
 paper Libel, 60) : Arkansas and Con- 
 necticut, three years ; Dakota, Florida, 
 Idaho, Indiana, Iowa, Maine, Massa- 
 chusetts, Michigan, Minnesota, Mis- 
 souri, Nevada, New Hampshire, 
 New Jersey, New York, Oregon, South 
 Carolina, Vermont, Washington Ter- 
 ritory, and Wisconsin, two years. In 
 the other States and Territories, one 
 year. In some States the period of 
 defendant's absence from the State 
 does not count in the time of limita- 
 tion. In New York the absence must 
 be of one year's duration not to count, 
 and if the publication is made pend- 
 ing the absence of the defendant from 
 the State, the time of limitation does 
 not begin to run until his return to the 
 State (Code of Civ. Pro. N. Y. § 401 ) ; 
 and as to the effect of death of either 
 the publisher or of the person affect- 
 ed by the alleged libel, and of the re- 
 versal of a judgment, see Id. §§ 402, 
 403, 404, 405. 
 
 See post. Parties, § 299. In some 
 cases in England, the plaintiff must 
 give notice of action. (See Norris v. 
 Smith, ID A. & E. 190; Beechey v. 
 Sides, 9 B. & C. 806; Lidster v. Bor- 
 row, 9 A. & E. 654.) In an action for 
 slander against one who held the 
 office of clerk of a market, the defense 
 that no notice of action had been given 
 prevailed, on the ground that the 
 words spoken was a thing done. 
 
26;.] 
 
 PROCEEDINGS IN AN ACTION. 
 
 481 
 
 defamatory matter (§ 299) ; it cannot be brought in a 
 court of a justice of the peace.^ It may be brought in the 
 City court of the city of New York, if the damages claimed 
 do not exceed $2,000. And in cases which might be 
 brought in the City court of New York, if the action is 
 brought in any other court, the plaintiff can recover only 
 City court costs.^ The plaintiff in an action for slander 
 or libel cannot issue an attachment against the property 
 of the defendant,* but the defendant, whether male or 
 female, may be arrested and held to bail at the commence- 
 ment of the action, or at any time before judgment there- 
 in;* and after the return unsatisfied of an execution 
 against the property of the defendant, an execution may 
 issue against his person,® even in case of an infant defend- 
 
 (Murray v, McSwiney, Jr. R. 9 Com. 
 Law, 545; see ante, p. 62, note.) 
 
 1 Code Civ. Pro. § 2863. Transfer 
 of actions for libel and slander to 
 County Courts in England, 9 and 10 
 Vict, ch, 95 ; 12 and 13 Vict. ch. loi ; 
 13 and 14 Vict. ch. 61; 15 and 16 
 Vict ch. 54. By consent (19 and 20 
 Vict. ch. 108), or by remission from a 
 Supreme Court. (30 and 31 Vict. ch. 
 142; Stokes V. Stokes, 19 Q. B. D. 
 
 419-) 
 
 2 Laws of N. Y. 1853; p. 1165; Mur- 
 ray V. De Gross, 3 Duer, 668 ; as we 
 understand it there is now no difference 
 between Supreme Court and City 
 Court costs. In New York if plaintiff 
 recover less than $50, the amount of 
 costs cannot exceed the amount of 
 damages. (Code Civ. Pro. § 3229.) 
 In California, plaintiff is not entitled to 
 costs unless he obtains $300 damages. 
 (Jacobi V. Baur, 55 Cal. 554.) In 
 England, on recovery of one farthmg 
 damages, there being no order and no 
 certificate, no costs allowed. (Garret 
 V. Bradley, i Ex. D. 349; overruling 
 Parsons ^/. Tinling, 2 C. P. D. 119.) 
 Statutes provided: Any court of re- 
 cord in the city of New York, might 
 send any action of libel or slander 
 pending in said court and at issue, to 
 the Marine, now city court, for trial. 
 (See Laws 1871, p. 1817; Laws 1870, 
 
 31 
 
 p. 1346; Laws 1872, ch. 629; Laws 
 1874, ch. 545.) But these provisions 
 were held to be unconstitutional. (De 
 Hart V. Hatch, 6 Sup. Ct. Rep. [T. & 
 C.]i86; 3 Hun, 375.) 
 
 ' And so in South Carolina. (Sar- 
 gent V. Helmbold, Harper, 219.) 
 
 * N. Y. Code Civ. Pro. §§ 549, 553. 
 In England the holding to bail in 
 libel is of very rare occurrence. (Folk- 
 ard, Stark. Slan. 548.) In New York 
 city, the practice of holding to bail in 
 actions for libel or slander is now dis- 
 couraged by the courts. (See Knicker- 
 bocker Ins. Co. V. Ecclesine, 6 Abb. 
 Pr. Rep. N. S. 9; 34 N. Y. Superior 
 Co't, 76 ; Butts V. Burnett, 6 Abb. Pr. 
 Rep. N. S. 302 ; but see Britton v. 
 Richards, 13 Id. 258; Blakelee v. 
 Buchanan, 44 How. Pr. R. 97.) A 
 statute allowing arrest in an action for 
 libel, does not violate a constitutional 
 provision that " there shall be no im- 
 prisonment for debt except in cases of 
 fraud." (Moore v. Green, 73 No. Car. 
 
 394.) 
 
 5 Code Civ. Pro.§ 1487; see Baker 
 V. Swackhamer, 5 How. Pr. Rep. 
 251 ; Straus v. Schwarzwaelden, 4 
 Bosw. 627; Brooks v. McLellan, i 
 Barb. 247 ; Davis v. Scott, 1 5 Abb. 
 Pr. Rep. 127; Peareson v. Picket, i 
 McCord, 472; Newton v. Rowe, 8 
 Scott N. R. 26 ; Defries v. Davies, 3 
 
482 
 
 PROCEEDINGS IN AN ACTION. 
 
 [CH. XI. 
 
 ant.^ A married woman sued with her husband may be 
 held to bail.^ If the plaintiff fails in the action, a judg- 
 ment against him for the costs may, after an execution 
 against his property has been returned unsatisfied, be en- 
 forced by an execution against his person.^ The plaintiff 
 may be required to give security for costs, as in other ac- 
 tions.* Actions for slander or libel may be consolidated.^ 
 
 § 268. The actions of slander and libel are of the kind 
 known as transitory^ The place of trial (the venue) 
 should be the county in which the parties, or some of them, 
 reside ; or if none of the parties reside in the State, then 
 in any county the plaintiff may designate,^ subject in every 
 
 Dowl. Pr. Cas. 629. A defendant in 
 custody on an execution for damages 
 in slander or libel, is not discharged 
 therefrom by the English bankrupt 
 law ; see i Doria & McCrea's Law of 
 Bankruptcy, 349. Query as to the 
 United States bankrupt law. 
 
 1 Defries v. Davies, 3 Dowl. Pr. 
 Cas. 629. Defendant in an action for 
 slander, aged 15 years, was taken in 
 execution for the damages and costs, 
 and the court refused to release him. 
 (Id.-) 
 
 2 Schaus V. Putscher, 25 How. Pr. 
 Rep. 436- 
 
 ' Kloppenberg v. Neef us, 4 Sandf. 
 655. And on judgment for defendant 
 in an action for libel by husband and 
 wife, execution may go against the 
 person of the wife. (Newton v. 
 Boodle, 9 Q. B. 948 ; 11 Jur. 628 ; and 
 see Newton v. Rowe, 8 Scott N. R. 26.) 
 
 * Court refused to increase amount 
 of security to cover expenses of foreign 
 witnesses. (Pizani v. Lawson, 5 Sc. 
 418.) By Statute 30 and 31 Vict. ch. 
 142, § lo, it is enacted that in actions 
 of malicious prosecution, .... 
 slander, seduction, or other action of 
 tort brought in a superior court, the 
 plaintiff may be required to give se- 
 curity for costs, or satisfy a judge 
 that he has a cause of action, other- 
 wise the action is to be remitted to the 
 county court. In California, plaintiff 
 in an action for libel or slander must 
 
 in all cases give security for costs 
 (Code Civ. Pro. § 460), and the same 
 law prevails in some other States, and 
 in Ontario, Canada. 
 
 ' See an instance, Whitely v. 
 Adams, 15 C. B. N. S. 392; 10 Jurist. 
 N. S. 47 ; Percy v. Seward, 6 Abb. Pr. 
 R. 326. The court refused to consoli- 
 date actions for the same libel, one 
 against the publisher and the other 
 against the editor of the newspaper in 
 which the libel was published. 
 (Cooper V. Weed, 2 How. Pr. Rep. 
 40.) Where A. and B. having re- 
 covered in separate actions against 
 different parties engaged in the pub- 
 lication of the newspaper in which the 
 libel was published, commenced other 
 actions against the same parties, each 
 suing the party against whom the 
 other had recovered, the court, 
 on motion, refused to stay the 
 proceedings in the second actions. 
 (Martin v. Kennedy and Banning v. 
 Perry, 2 Bos. & Pul. 69. See Jones v. 
 Pritchard, 6 Dowl. & L. 529; 18 Law 
 Jour. 104, Q. B. ; ante, note 7, p. 161.) 
 
 « Hull V. Vreeland, 42 Barb. 543 ; 
 Owen V. McKean, 14 111, 459; Teagle 
 V. Deboy, 8 Blackf. 134; and see 
 Wickham v. Baker, 4 Blackf. 517; 
 Emmerson v. Marvel, 55 Ind. 265, 
 ante., §110, and note. 
 
 ' Code Civ. Pro. § 984. Formerly 
 it was a ground for arresting or setting 
 aside the judgment if the venue was 
 
§ 268.J 
 
 PROCEEDINGS IN AN ACTION. 
 
 483 
 
 case to the power of the court to change the place of 
 trial.^ The court has power in its discretion to order the 
 plaintiffs attorney to disclose to the defendant the place 
 of residence of the plaintiff.^ 
 
 bid in the wrong county. This was 
 altered by the statutes 16 and 17 Car. 
 II, ch. 8; 4 Anne, ch. 16; Clerk v. 
 James, Cro. Eliz. 870; Craft v. Boite, 
 I Saund. 241. 
 
 1 Code Civ. Pro. § 987. As to 
 changing venue, see Phillips v. Chap- 
 man, 5 Dowl. Pr. Cas. 250; Ryder z/. 
 Burke, 10 In Law. Rep. 476; Robson 
 v. Blackman, 2 Dowl. Pr. Cas. 645 ; 
 Clements v. Newcombe, i Cr. M. & 
 R. 776; 3 Dowl. Pr. Cas. 460; Pybus 
 V. Scudamore, 7 So. 124; Hobart z/. 
 Wilkins, i Dowl.Pr. Cas. 460; Wheat- 
 croft V. Mousley, n C. B. 677 ; Pink- 
 ney v. Collins, i T. R. 571 ; Clissold 
 V. Clissold, I T. R. 647 ; Metcalfe v. 
 Markham, 3 T. R. 652 ; Barnes v. 
 HoUoway, 8 T. R. 150; Hitchon v. 
 Best, I Bro. & B. 299; Lucan v. Caven- 
 dish, 10 Ir. Law. Rep. 536; Callaher 
 V. Cavendish, 3 Ir. Law Rep. 375; 
 Root V. King, 4 Cow. 403; Shafts- 
 bury's Case, i Vent. 364; Greenslade 
 ■V. Ross, 3 Dowl. Pr. Cas. 697 ; Tallent 
 V. Morten, i M. & P. 188; Cossham v. 
 Leach, 32 Law Times Rep. 665. 
 Where a paper is traced to the pos- 
 session of a party, it is presumed to 
 continue with him and he must ac- 
 count for it. (Perrow v. Lindsay, 52 
 Hun, 115.) 
 
 Where the application is on special 
 grounds, it should not be made until 
 after issue joined. (Hodge v. Church- 
 ward, 5 C. B. 495 ; Griffin v. Walker, 
 7 Sc. 846.) The venue changed after 
 a nonsuit. (Price's notes. Points of 
 Pr. 177.) It was held no ground for 
 changing the venue in an action for 
 libel published in a local newspaper, 
 that the defendant, the proprietor of 
 the paper, possessed much influence in 
 the county in which the venue was 
 laid, and had, since the commence- 
 ment of the action, evinced a disposi- 
 tion to use it to the prejudice of the 
 plaintiff. But the court intimated that 
 they would interfere if the defendant 
 should before the trial publish any- 
 
 thing in relation to the matter of the 
 action reflecting upon the plaintiff. 
 (Walker v. Brodgen, 17 C. B. N. S. 
 
 57I-) 
 
 * Worton V. Smith, 6 Moore, no; 
 Johnson v. Berley, 5 B. & Aid. 54; 
 Ninety-Nine plaintiffs v. Vanderbilt, 
 I Abb. Pr. Rep. 200. In an action 
 for libel defendants, before service of 
 any complaint and without showing 
 any " exigency " therefor, moved for an 
 order that plaintiff's attorney furnish 
 " a sworn statement showing resi- 
 dence, occupation and present address 
 of plaintiff," &c., " that defendant 
 might be enabled to examine plaintiff 
 before trial." The motion was denied 
 and the denial was affirmed at Gene- 
 ral Term, on the ground that the 
 granting or refusing it was within the 
 discretion of the judge below, and it 
 did not appear to be wrongly exercised. 
 (Corbett v. De Comeau, 45 N. Y. 
 Superior Co't, 588.) Another motion 
 in the same action to compel plaintiff's 
 attorney to disclose plaintiff's address, 
 was denied because no specific object 
 for obtaining the order was disclosed. 
 A third motion was made showing 
 facts raising a presumption that plaint- 
 iff was a non-resident, that he was not 
 cognizant of the pendency of the ac- 
 tion, that defendant desired to ex- 
 amine plaintiff as a witness, before 
 trial, upon the trial, or by commission, 
 as to whether or not he was willingly 
 plaintiff and the real party in interest ; 
 that plaintiff was insane; that the 
 allegations of the alleged libel were 
 true; to secure plaintiff's attendance at 
 the trial, that the jury might see him 
 and judge of his manner, and appear- 
 ance, and, lastly, to obtain security for 
 costs if plaintiff was a non-resident. 
 An order was made that plaintiff's 
 attorney disclose the residence, oc- 
 cupation and business address of 
 plaintiff and stay of proceedings until 
 such disclosure made. This order 
 was affirmed on appeal (Id. 637), on 
 
484 PROCEEDINGS IN AN ACTION. [CH. XI. 
 
 § 269. In certain cases, either party is entitled to the 
 production and inspection of documents in the posses- 
 sion or control of his adversary.^ Where, in an action for 
 a libel, the plaintiff moved for an order upon the defend- 
 ant to deliver to him a copy of a printed book in his, de- 
 fendant's possession, in order to enable him, plaintiff, to 
 prepare his complaint in the action — per curiam : with- 
 out expressing any opinion as to the propriety of compel- 
 ling a defendant, in an action for a libel, to deliver to the 
 plaintiff a copy of the libel, I am clearly of the opinion 
 that this motion should not be granted, because : i. The 
 affidavits do not show what is stated in the book of which 
 the plaintiflF seeks a discovery, and therefore the court 
 cannot decide whether it is material or not. 2. Because 
 the affidavits do not specify any particular information 
 desired, so that the court could order a sworn copy to be 
 delivered. 3. Because plaintiff is not entitled to the whole 
 book, but only to the particular article on which his action 
 is founded.^ Upon an application in an action for libel, 
 for leave to examine a defendant before service of any 
 complaint, the court much doubted the propriety of ex- 
 ercising the power of the court to enable the plaintiff to 
 obtain facts upon which to frame his complaint.' And in 
 
 authority of Corbett v. Gibson (18 plaint, on the ground that she beheved 
 
 Hun, 49). the parties she sought to examine had 
 
 1 Code Civ. Pro. § 803; 2 Rev. said something against her; applica- 
 Stat of N. Y. 199; Court Rule, 15. tion denied. (Donohue, J., i?£ Stevens, 
 And under the English common law Oct. 10, 1884.) In an action against 
 procedure act. (Collins v. Yates, 37 the pubHsher of a newspaper for a 
 Law Jour. 150, Ex.) libel contained in a letter from a cor- 
 
 2 Lynch v. Henderson, 10 Abb. respondent, and in a leading article 
 Pr. R. 345. note. A document re- thereon, defence was that alleged 
 ferred to in an alleged Ubel may be libel consisted of an accurate report of 
 ordered produced, and submitted for certain public proceedings, and fair 
 inspection, where such submissions comment thereon; held, that plaintiff 
 and inspection do not tend to crimi- was not entitled to interrogate de- 
 nate the party against whom they are fendant as to the names of the per- 
 
 ■ produced. (Kraus v. Sentinel Co. 23 sons on whose information the reports 
 
 No. West. Rep. 12.) were based, nor the name of the cor- 
 
 ' Keeler v. Dusenbury, i Duer, respondent who wrote the letter ; nor 
 
 661. A plaintiflE asked leave to ex- as to the original manuscript of the 
 
 amine witnesses to prepare her com- letter. (Hennessy w. Wright, 36 Week. 
 
§ 2 70.] 
 
 PROCEEDINGS IN AN ACTION. 
 
 48s 
 
 an action against certain individuals named, and certain 
 others not named (except by fictitious names), for, a libel 
 in a newspaper of which the defendants named, with the 
 others not named, were alleged to be the proprietors, the 
 plaintiff alleged that the names of the proprietors were 
 unknown to him, and that it was pretended that the news- 
 paper was the property of a corporation, and asked for an 
 inspection of the books of such corporation to enable him 
 to ascertain the true names of the proprietors of the news- 
 paper. The application was denied.^ 
 
 § 270. In England, a bill of discovery is allowed in 
 certain cases in an action for libel,^ and interrogatories 
 may be exhibited to ascertain the precise words used,* 
 
 Rep. 879). As to examination of 
 parties to suits to obtain information 
 to be nsed by the adverse party, see 
 N. Y. Code of Civ. Pro. § 872; et seq., 
 and see Strakosch v. Press Pub. Co. 
 25 N. Y. St. Rep. 189; Dudley v. 
 Press Pub. Co. Id. 32. In an action 
 for libel, defendant may, before the 
 trial, examine plaintiff as a witness. 
 (Ball V. Even. Post Pub. Co. 12 N. Y. 
 Civ. Pro. Rep. 4.) An order to ex- 
 amine defendants to enable plaintiff 
 to prepare his complaint, and to as- 
 certain the names of the persons who 
 prepared and procured to be publish- 
 ed the alleged libels in order that they 
 may be made defendants, was reversed 
 on appeal. (Brandon Manuf. Co. v. 
 Bridgman, 14 Hun, 122.) 
 
 ^ Opdyke v. Marble, 44 Barb. 64; 
 and see McCue v. Tribune Asso. i 
 Hun, 469. 
 
 2 By statute, 6 & 7 W. IV, and 32 
 & 33 Vict., authority is given to file a 
 bill of discovery of the name of any 
 person concerned as printer, publisher 
 ■or proprietor of any newspaper, or of 
 any matters relative to the printing or 
 publishing of any newspaper, in order 
 to bring or carry on any suit for libel. 
 As to a bill of discovery in aid of an 
 action for libel, not necessary since the 
 fusion of law and equity, see Macau- 
 lay V. Shackell, i Bli. N. S. 96; 2 Sim. 
 
 & St. 79 ; Wilmot v. MacCabe, 4 Sim. 
 263 ; March v. Davison, 9 Paige, 580 ; 
 Stat. 32 Geo. Ill, ch. 60 ; Stewart v. 
 Nugent, 12 Legal Observer (London), 
 210; Dixon V. Enoch, Law Rep. 13 
 Eq. Cas. 394. The proceeding for an 
 examination of a party to the action 
 are a substitute for a bill of discovery 
 under the former modes of procedure. 
 (King V. Leighton, 58 N. Y. 383; 
 Glenney w. Stedwell, 64 N. Y. 120.) 
 Where it appears from the moving 
 papers that every issue, upon which 
 the party is shown to be material and 
 necessary, involves matter, and that 
 only in respect to which he is privi- 
 ledged, an examination should be re- 
 fused. (Brandon Manuf. Co. v. 
 Bridgman, 14 Hun, 122: Phoenix v. 
 Dupuy, 2 Abb. N. C. 146; Kinney v. 
 Roberts, 26 Hun, 166.) But if the 
 moving papers show that there are 
 matters respecting which the moving 
 party has a right to examine his 
 adversary other than and in addition 
 to matter as to which he is privileged 
 from answering, then an order for 
 his examination may be made. Leav- 
 ing him to assert his privilege when 
 the objectionable question is put to 
 him. (Corbett v. DeCormeau, 54 
 How. Pr. Rep. 506; Kinney v. 
 Roberts, 26 Hun, 166.) 
 
 ' Atkinson v. Fosbrooke, Law Rep. 
 
486 PROCEEDINGS IN AN ACTION, [CH. XI, 
 
 but the court refused to permit a plaintiff to exhibit in- 
 terrogatories to the defendant, the answers to which, if 
 in the affirmative, would tend to show that he composed 
 or published the libel, and would therefore criminate 
 him.^ In an action for imputing to the plaintiff that he 
 was the author of a scandalous letter, which the defendant 
 in his plea justified as true, the court allowed the plaintiff 
 an inspection of the letter by certain witnesses, in order 
 that he might be prepared to negative its being his hand- 
 writing,* and generally plaintiff is entitled to a discovery of 
 all documents in defendant's possession which would aid 
 him, plaintiff, in rebutting a justification.^ A discovery 
 from plaintiff of the truth of an alleged libel may be com- 
 pelled, when such discovery will not subject him to a 
 criminal prosecution or to a penalty or forfeiture, or render 
 him infamous-* 
 
 The rule which excuses a person from answering a 
 question which may tend to convict him of a crime excuses 
 him from producing books or documents which may tend 
 
 I Q. B. 628; 14 Law Times, N. S. Rep. i Ex. 354; 14 Law Times, N. S. 
 
 553; 17 & 18 Vict. ch. 125; 32 & 33 629; see also Stern i". Sevastopulo, 14 
 
 Vict. ch. 24 ; see note to § 379, post; C. B. N. S. 737 ; Moor v. Roberts, 2 
 
 also Lamb v. Munster, 10 Q. B. D. C. B. N. S. 671 ; Bartlett v. Lewis, 12 
 
 no; Jones v. Richards, 15 Id. 439; C. B. N. S. 249. When court will not 
 
 Marriott v. Chamberlain. 17 Id. 154; review order allowing an interroga- 
 
 Greenfield v. Reay, 10 Id. 217; Bus- tory. (Inman v. Jenkins, 39 Law 
 
 tros v._ White, I Id. 423; Proctor v. Jour. 258, C. P.) And as to interrog- 
 
 Smiles, 55 L. J. Q. B. 527 C. A. ; atories, see Osborn v. London Dock 
 
 Malone v. Fitzgerald, 18 Law. Rep. Co. 10 Ex. 698; Chester v. Wortley, 
 
 Jr. 187; Atherley v. Harvey, 2 Q. B. 17 C. B. 410; see § 379, j)ost. A 
 
 D. 524. In interrogating an adver- defendant cannot be examined before 
 
 sary before trial you may get at the trial to disclose his connection with 
 
 facts relied upon, but not the evidence the alleged libelous publication to 
 
 of those facts. (Eade v. Jacobs, L. enable plaintiff to draw his complaint. 
 
 R. 3 Ex. Div. 335 ; , Bradbury v. (Brandon Manuf. Co. v. Bridgman, 14. 
 
 Cooper, 53 Law Jour. Rep. O. B. Hun, 122.) 
 
 558.) ~ 2 Curtis V. Curtis, 3 M. & Sc. 819. 
 
 1 TupUng V. Ward, 6 Hurl. & ' Collins v. Yates, 27 L. J. 150 
 
 Nor. 749; Edmunds v. Greenwood, Ex. 
 
 Law Rep. 4 C. P. 70 ; but see Baker * Funk v. Tribune Asso. 4 Civ. 
 
 V. Lane, 3 Hurl. & Colt. 544 ; 34 Law Pro. Rep. 408, and to the like effect, 
 
 Jour. N. S. 57 Ex. ; 10 Jurist, N. S. see Webb. v. East, 5 Ex. Div. 23. 
 
 H7; II Law Times, N. S. 38, as ex- But when does such a state of things, 
 
 plained in Bickford v. Darcy, Law occur? 
 
§ 270.] PROCEEDINGS IN AN ACTION, 487 
 
 to a like resuUt.^ But a party who objects to the produc- 
 tion of a document for inspection on the ground that it 
 may tend to incriminate him, must make the objection 
 himself and make it on oath.^ An objection to answer 
 interrogatories which is made by affidavit on the ground 
 of the tendency of the answer to criminate the person 
 interrogated may be valid, although not expressed in any 
 precise form of words, if from the nature of the questions 
 and the circumstances such a tendency seems likely or 
 probable. In an action for libel the defendant pleaded a 
 denial of the publication, and to interrogatories asking him 
 in eifect whether he published the libel, he stated by his 
 affidavit in answer: " I decline to answer all the interroga- 
 tories upon the ground that my answer ' might ' tend to 
 criminate me." Held, that his answer was sufficient.^ In 
 order to prove that defendant was the writer of a libelous 
 letter, he may be interrogated as to whether or not he was 
 the writer of another letter addressed to a third person — 
 as leading up to a matter in issue in the cause, and there- 
 fore relevant.* 
 
 In an action for libel, a witness was shown the alleged 
 libel in manuscript and was asked, did you write this paper; 
 held, he was not compelled to answer.^ 
 
 As there cannot be a criminal prosecution for slander 
 different rules prevail in actions for slander than in actions 
 for libel. In an action for slander plaintiff may ask de- 
 fendant whether the words charged, or the substance of 
 them, had been communicated to him by a third person, 
 but may not ask the name of said third person.^ 
 
 1 Fisher v. Ronalds, 12 C. B. 763. Vict. Law Rep. L. 343- The privilege 
 
 2 Webb V. East, 5 Ex. D. 23. of a party from testifying against him- 
 
 3 Lamb v. Munster, 10 Q. B. D. self extends to eyery case where the 
 I io_ answer will have a tendency to expose 
 
 * Tones v. Richards, 15 Q. B. D. him to a penal liability, or to any kind 
 
 430 of punishment, or to a criminal 
 
 5 Simmons v. Holster, 13 Minn. charge (Clapper v. Fitzpatrick, 3 
 
 2-3 How. Pra. Rep. 314.) If the fact to 
 
 ' 6 Daily Telegraph Co. v. Berry, 5 which he is interrogated forms but 
 
488 PROCEEDINGS IN AN ACTION. [CH, XI. 
 
 § 271. In one case/ in an action for libel, the court 
 ordered the defendant to produce certain documents in his 
 possession for the inspection of the plaintiff. This was 
 disapproved of in a subsequent case,^ where an application 
 for an order to inspect the manuscript of articles that had 
 been published in a newspaper was denied. A motion to 
 compel the defendants to declare to whom the defamatory 
 matter was intended to apply was denied.^ 
 
 § 272. On the principle that before a party utters a 
 slander he should be prepared to justify, it has been said 
 that the courts will not give the defendant an inspection 
 of documents in the possession of the plaintiff to enable 
 the defendant to prepare a plea in justification ; thus, 
 where A. charged B. with forging an I O U, and B. sued 
 A. in slander for uttering such charge, the court refused 
 the application of the defendant for an inspection of the 
 I O U, although he alleged that the I O U was in the 
 possession of the plaintiff, that he (defendant) had reason 
 
 one link in the chain of testimony mentioned in this act. (See The Peo- 
 which is to convict him, he is privi- pie v. Sharp, 107 N. Y. 427.) The 
 leged and he need not explain how he statute 32 and 33 Vict. ch. 24, which 
 might be criminated by the answer, requires a defendant, being printer, 
 and his swearing that to answer proprietor or publisher of a news- 
 would have the effect of criminating paper, to admit or deny his being 
 him is sufficient to excuse him from printer, proprietor or publisher. (Le- 
 answering. The privilege ceases and froy v. Burnside, 4 Law Rep. Ireland, 
 he must answer if the prosecution 340.) This statute, it has been held, 
 to which he might be exposed is does not apply to an editor, or an au- 
 barred by lapse of time (Henry «/. thor. (Carter 7/. Leeds Daily News, 1 1 
 Salina Bk. i N. Y. 86), or the pros- Weekly Notes, 11; Odgers on Libel, 
 ecution is under a foreign law (King f,\%etseq:) The foregoing statute does 
 of Two Sicilies v. Wilcox, 1 5 Ju- not make it obligatory upon a defend- 
 rist, 214), or where he is protected ant, the pubUsherof a newspaper, to 
 by statute against the use of his answer the question, were you the 
 testimony on a trial against him. writer (of the libel complained against), 
 (The People v. Kelly, 24 How. Pra. if not, do you know who wrote it? 
 Rep. 369; Re Hackley, 24 N. Y. 74; (Smith v. Powell, 10 Vict. Law Rep. 
 Byass 7/. Smith, 4 Bosw. 679.) Laws 79.; see /^j/, § 379.) 
 of N. Y. ch. 742, provide: that no > Perrott w. Morris, 8 Irish Jurist, 
 person shall be excused from testify- 334. 
 
 ing on any examination or trial, etc., ' Finlay v. Lindsay, 7 Irish Com. 
 
 or on the trial of any civil action for Law Rep. i. 
 
 slander or libel, or any criminal action a Giraud v. Beach, 3 E. D. Smith, 
 
 for libel where such alleged slander or 337. 
 libel imputes bribery or any offense 
 
2 73-] PROCEEDINGS IN AN ACTION. 
 
 489 
 
 to believe it was in reality a forgery, and that he could 
 not safely plead without inspecting it.^ Where an order 
 had been made in an action of libel, giving the defendant 
 leave, under 14& 15 Vict. ch. 99, § 6, to inspect the books 
 of the plaintiff, a motion by the defendant to extend the 
 time to make the inspection was denied, on the ground 
 that the order for inspection ought never to have been 
 made — and per curiam: A man who publishes a libel 
 should be in a position to prove it, and it would be a 
 monstrous thing if a man could publish a libel, imputing 
 insolvency to a mercantile house, and then to come to this 
 court and ask for an order to inspect the plaintiff's books, 
 in the hope of being able to get up a case. If the defend- 
 ant is a shareholder, he has other means of obtaining an 
 inspection, and we can only regard him as a defendant in 
 an action for libel.^ 
 
 § 273. The power of the courts to order bills of par- 
 ticulars is not restricted; it extends to all descriptions of 
 actions.® The principle upon which bills of particulars are 
 ordered, is the advancement of justice, and the preventing 
 surprise at the trial.* There appears to be, in the English 
 courts, some difference in the practice as to ordering bills 
 
 1 Day V. Tuckett, I Bail Court ston v. English, 44 How. Pr. Rep. 
 
 Rep. 203 ; but see Browning z/. Alwyn, 398, 409; Beach v. Mayor, 14 Hun, 
 
 7 B. & C. 204, where an inspection 79; note to Glennyz/. Stedwell, i Abb. 
 
 was allowed. The same principle ap- N. C. 332.) In an action for slander, 
 
 plied to an examination of plaintiff charging plaintiff, an unmarried wo- 
 
 before trial. (Strakosh v. Press Pub. man, with being pregnant ; defendant 
 
 Co. 25 N. Y. St. Rep. 189.) justified on the ground of truth, and 
 
 * Metro. Saloon Co. v. Hawkins, 4 then moved for an order that plaintiflF 
 
 Hurl. & Nor. 146; I Fost. & F. 413; submit to a medical examination to 
 
 see Steadman v. Arden, 1 5 M. & W. sustain the defense. The motion was 
 
 587. denied, (Kern v. Bridwell, Ind. Sup. 
 
 An examination of plaintiff before Co't, 40 Alb. L. J. 84; 50 Am. Rep. 
 
 defendant has answered, to enable 156.) 
 
 defendant to find out, in advance, ^ Cunard v. Francklyn, 19 N. Y. 
 
 whether or not he can, by the testi- St. Rep. 641. Bill of particulars in 
 
 mony of plaintiff, sustain a defense of action for malicious prosecution. (Lane 
 
 truth, is not permitted. (Kinney v. v. Williams, 37 Hun, 388.) 
 Roberts, 26 Hun, 166, 172; Schepmoes * Tilton v. Beecher, 59 N. Y. 190, 
 
 ■v. Bousson, I Abb. N. C. 481; Win- an exhaustive review of the subject. 
 
490 
 
 PROCEEDINGS IN AN ACTION, 
 
 [CH. XI. 
 
 of particulars, between actions for slander and actions for 
 libel.^ It is almost of course in an action of slander, 
 unless the complaint alleges the place where, the time 
 when, and the names of the persons to whom the slander 
 was uttered, to order a bill of particulars of the place where, 
 the time when, and the names of the persons to whom the 
 slander was uttered,^ But where in slander the words were 
 alleged to have been spoken " in the presence and hearing 
 of divers persons," held, defendant was not entitled to an 
 order for particulars of the names of all persons in whose 
 presence or hearing the alleged slander was uttered, but 
 merely to an order stating the name of some one person 
 in whose presence plaintiff claimed the slander was 
 uttered^ — and where the slander was alleged to have been 
 uttered in a public room, an order was made that plaintiff 
 deliver "the best particulars he can give of the persons 
 present " when the slander was uttered.* 
 
 * Gouraud v. Fitzgerald, 37 Week. 
 Rep. 55. 
 
 * Steibeling v. Lockhaus, 21 Hun, 
 457 ; Gardener v. Knox, 27 Id. 500 ; 
 Complaint charged that one T. at 
 defendant's request uttered certain 
 slander of plaintiff; held, defendant 
 was entitled to a bill of particulars. 
 (Bradbury v. Cooper, 53 L. J. R. Q. B. 
 N. S. 558; 12 Q. B. D. 94.) 
 
 ^ Dempewolf v. Hills, 53 N. Y. 
 Super. Co't, 105; ii N. Y. Civ. Pro. 
 Rep. 141 ; 23 Week. Dig.450; Wingard 
 V. Cox, Week. Notes, 1874, p. 106. 
 Plaintiff was refused an order for par- 
 ticulars of the names ot persons men- 
 tioned in the statement of claim who 
 were passing in the street when, as 
 alleged, the slander was uttered. 
 
 * Williams v. Ramsdale, 36 Week. 
 Rep. 125, an order was made for a 
 statement of the occasions upon 
 which the words were published. 
 (Slater v. Slater, 8 L. T. N. S. 856, 
 and see Wicks v. McNamara, 27 L. 
 J. 419 Ex.; 3 Hurl. & N. 568; Early 
 V. Smith, 12 Ir. Com. Law Rep. xxxv 
 appendix ; cited and approved Tilton 
 V. Beecher, 59 N. Y. 187.) In Roth v. 
 
 Coursen, City Court, New York, May 
 6, 1885, the action was to recover 
 damages for slanderous words uttered 
 by the defendant " in the presence of 
 divers good and worthy citizens." 
 The plaintiflE was ordered to furnish 
 a bill of particulars specifying the 
 times when, places where, and the 
 names of the persons in whose pres- 
 ence the words were used. A bill was 
 accordingly served, stating time when 
 and place where the words were utter- 
 ed in the presence of two persons 
 whose names were g^ven, "and sev- 
 eral other people whose names are 
 at present unknown to the plaintiff." 
 The defendant then moved for a 
 bill of further particulars, giving the 
 names of the " unknown persons," or 
 for an order striking out from the par- 
 ticulars theretofore served the state- 
 ment that the words were uttered in 
 the presence of persons whose names 
 were unknown. Per McAdam, Ch. 
 J. This is asking too much. Where 
 slanderous words are uttered in the 
 presence of a multitude of people, and 
 the plaintiff gives all the names he is 
 able to obtain, there is no reason why 
 
§ 2 73-J PROCEEDINGS IN AN ACTION. 49 1 
 
 In an action for libel by plaintiff, as director of a com- 
 pany against defendants, a committee of shareholders, for 
 statements contained in a report drawn up and alleged to 
 be maliciously published by them, defendants, after issue, 
 obtained an order for particulars of the occasion of any 
 publication by them to persons other than the stockhold- 
 ers ; held, that defendants were not entitled to such partic- 
 ulars, since the publication complained of clearly included 
 publication to others than shareholders, though not ex- 
 pressly so stated, and sufficiently complied with the require- 
 ments of the pleading rules.^ Where the complaint alleges 
 special damage to plaintiff's business by loss of customers, 
 there plaintiff may be ordered to give particulars showing 
 sales and profits with names and addresses of the persons 
 whose custom has been lost, and dates and amounts of any 
 transaction the benefit of which plaintiff has lost, and such 
 particulars will be ordered although the complaint may 
 show a cause of action, independently of the special dam- 
 age. '^ But particulars will not be ordered of injury to 
 plaintiff's reputation in general.^ The court refused to 
 
 his inability to name the others should ^ Am. Multiple Fabric Co. v. Eu- 
 
 be made the basis for precluding him reka Fire Hose Co. 18 Abb. N. C. ^o\ 
 
 from proving that others were present Goldsmith v. Glatz, 27 Week. Dig. 453. 
 
 at the time, as this circumstance may ' Id. These averments, as was 
 
 have an important bearing on the said in Lane v. Williams (37 Hun, 
 
 question of damages. The rule in 389), may be sustained by proof of the 
 
 regard to bills of particulars should malicious act without proof of specific 
 
 be reasonably construed with the de- instances. But the averment that the 
 
 sign of furthering and not defeating plaintiff has lost many sales and 
 
 justice. The bill already furnished profits which it would have made in 
 
 substantially satisfies all the require- its business, but for the defendant's 
 
 ments of good practice. Motion for acts — to wit, $S,ooo or thereabouts — 
 
 further bill denied ; no costs. (60 stands upon a different footing. That 
 
 How. Pr. R. 277.) is an averment of special damage, 
 
 The bill of particulars must spec- which the plaintiff need not have 
 
 ify the precise locality at which the made, but having chose to make it 
 
 alleged statements were made. (Alden must particularize. The affidavit ot 
 
 V. Monell, Barrett, J., October, 1883; the attorney that the plaintiff cannot 
 
 Goldsmith v. Glatz, 27 Week. Dig. give the particulars because the agent 
 
 453.) It need not state the time. has them is of no force. The plaintiff 
 
 (McCarran v. Sire, 3 N. Y. Supp. 659.) acts through agents and can control 
 
 ' Gouraud v. Fitzgerald, 37 Week. them ; besides, the plaintiff's officers 
 
 Rep. 55); distinguishing Roselle v. should have told us that they could 
 
 Buchanan, 16 Q. B. D, 656. not control the agents and why not 
 
492 PROCEEDINGS IN AN ACTION. [CH. XI. 
 
 give a bill of particulars of matter plead in mitigation.' A 
 party cannot be ordered to give the names of the persons 
 he intends to call as witnesses, nor to discover the evidence 
 he proposes to adduce.^ 
 
 In an action for libel the court may in its discretion 
 grant an order for the examination of a party in order to 
 enable the other party to furnish a bill of particulars which 
 he has been required to furnish. Thus, where defendant 
 pleaded matter in justification and in mitigation, plaintiflF 
 obtained an order that defendant furnish a bill of particu- 
 lars [of the justification and mitigation], whereupon de- 
 fendant obtained an order to examine plaintiff as a witness. 
 Then plaintiff moved for an order to stay defendant from 
 examining plaintiff until after service of bill of particulars, 
 the motion was denied on the ground that defendant 
 might need such examination to enable him to prepare his 
 bill of particulars. On appeal to General Term the order 
 denying the motion was affirmed.^ 
 
 In Massachusetts and in Maine, by statutes, a bill of 
 particulars of the language which the plaintiff intends to 
 prove may be ordered.* These are cases where the precise 
 words alleged to have been published were not set forth 
 in the complaint (§ 329). 
 
 Where the complaint alleges special damage, and the 
 special damages alleged is such as are required to be alleged 
 to entitle plaintiff to prove them, a bill of particulars of 
 such special damages will be ordered. Thus : where the 
 declaration alleged as special damage, which was essential 
 to the maintenance of the action, that certain persons had, 
 in consequence of the alleged slander, refused her pecuniary 
 assistance or their votes for her admission into a benevo- 
 
 the attorney? Motion, in the panic- Dempewolf v. Hills, 53 N. Y. Superior 
 ular mentioned, granted. Court Rep. 105 
 
 'Holmes v. Jones 13 N. Y. Civ. ^ Ball v. Even. Post Pub. Co. 48 
 
 Pro Rep. 260; 20 N. Y. St. Rep. 176. Hun, 149; 15 N. Y. St. Rep. 492. 
 
 Eade V. Jacobs, 3 Ex. D. 337; 4 Clark v. Munseli, 6 Mete. 373; 
 
 True V. Plumley, 36 Maine, 466. 
 
§ 273J PROCEEDINGS IN AN ACTION. 493 
 
 lent institution, an application by the defendant for par- 
 ticulars of the names of the persons to whom the publica- 
 tion was made was denied, but interrogatories were allow- 
 ed as to the names of the parties whose patronage plaintiff 
 alleged she had lost.^ In an action for libel by a chari- 
 table corporation, the complaint alleged, among other 
 things, that by reason of the publication, persons who 
 would otherwise have done so, had ceased or refused to 
 contribute or m^ke donations to it. Plaintiff" was com- 
 pelled to furnish a bill of particulars, stating the names of 
 such persons.^ Where the complaint stated in substance 
 that plaintiff was a physician practicing in the city of New 
 York, and that defendant published in its newspaper the 
 following libel : " W. H. denounced McF. (meaning 
 plaintiff) to his face in the car as a lying scoundrel, un- 
 worthy of credence, who had been guilty of immoral prac- 
 tices," and that by means of such publication plaintiff was 
 injured in his good name and credit as a physician, and in 
 his practice as such to his damage $15,000. The de- 
 fendant demanded a bill of particulars of the items aggre- 
 gating the $15,000 damages, with a specification of the 
 times, circumstances and manner in which the alleged 
 damage to plaintiff's practice as a physician was caused, 
 and the names of the individual patients or positions of 
 profit, if any, the loss of which compose the said amount 
 of §15,000. The motion was denied, and per curiam 
 Daly, J.: If plaintiff had alleged loss of patients or posi- 
 tions of profit by reason of the libel, that would have been 
 an averment of special damage which he would be com- 
 pelled to prove upon the trial, and which his adversary 
 might, therefore, compel him to particularize. But plaint- 
 
 1 Wood V. Jones, i Fost. & F. in such a case particulars would be 
 
 301. Since the decision of that case ordered. 
 
 the rule as to allowing bills of partic- ^ ^ew York Infant Asylum v. 
 
 ulars has been extended, and to-day Roosevelt, 35 Hun, 501. 
 
494 PROCEEDINGS IN AN ACTION. [CH. XI. 
 
 iff need not give the particulars of the injury to his good 
 name and reputation and in his business and credit. The 
 plaintiff, a physician, is charged with immoral practices. 
 This tends directly to injure him in his profession and he 
 may recover, under a general allegation of damage, with- 
 out specific proof of damages.^ 
 
 It has been held that the court will not order a bill of 
 particulars of a justification. The practice has been in such 
 a case to move to make the answer more definite.^ But a 
 bill of particulars as to the defense will, in certain cases, 
 be ordered.^ Defendant published articles alleging that 
 plaintiff, the Governor of Mauritius, had been charged by 
 members of the Council with sending to the Colonial 
 Office garbled reports of their speeches. The articles 
 were also alleged by plaintiff to impute that he had in fact 
 transmitted such garbled accounts. An action for Hbel 
 having been brought, defendant pleaded that the alleged 
 libels were true in substance and in fact ; held, it was not 
 clear whether the defense meant, that what was charged 
 against plaintiff had been truly reported, or that what was 
 reported to have been charged was in fact true, and that 
 plaintiff was entitled to have the meaning of the answer 
 made definite.* 
 
 Bills of particulars of matters peculiarly within knowl- 
 edge of defendant, will not be ordered. As in an action 
 for slander of title to personal property plaintiff can 
 recover only such damages as are specifically alleged, in 
 such an action, a bill of particulars of loss of customers 
 and of sales was refused.^ 
 
 1 McFarland v. Even, Post Pub. » Hennesey v. Wright, 57 L. J. Q. 
 Co. MS. and see Steibeling z/. Lock- B. 594; 36 Week. Rep. 878. 
 
 haus, 21 Hun, 457. s childs v. Tuttle, 15 N. Y. Civ. 
 
 2 Orvis V. Dana, i Abb. N. C. 268; Pro. Rep. 184; 17 N. Y. St. Rep. 943; 
 6 Daly, 434. 48 Hun, 229. Where the charge was 
 
 3 Wren v. Weld, Law Rep. 4 Q. that defendants had sent circulars to 
 B. 213; Jones v. Bewicke, Law Rep. "other" agents of plaintiff; held, de- 
 5 C. P. 32; Gourley v. PlimsoU, 8 Id. fendant was entitled to bill of partic- 
 362. ulars of the names and place of resi- 
 
2 74- J 
 
 PROCEEDINGS IN AN ACTION. 
 
 495 
 
 § 274. If the defendant does not answer, he admits the 
 allegations of the complaint but not the innuendoes.^ The 
 plaintiff must issue a writ of inquiry, and have his damages 
 assessed by a sheriff's jury, not by a referee.* The court 
 may order the writ of inquiry to be executed before a 
 judge.^ On the execution of the writ, the plaintiff is not 
 required to give any evidence of publication,^ and without 
 offering any proof is entitled to at least nominal damages.^ 
 PlaintiflF is not confined to nominal damages.* The de- 
 fendant, on the execution of the writ, will not be allowed 
 to read parts of the pubHcation not set forth in the com- 
 plaint, in order to give a meaning to the words set forth in 
 the complaint different from that alleged by the plaintiff;^ 
 and semble, the defendant will not be allowed to give evi- 
 dence of the truth of the language complained of.^ But 
 defendant may give evidence in mitigation.' Ordinarily an 
 
 dence of each agent to whom it was 
 intended to prove defendant had sent 
 circulars. (Jd.; citing Steibeling v. 
 Lockhaus, 21 Hun, 457; Gardiner v. 
 Knox, 27 Id. 500 ; IJaniel v. Daniel, 2 
 N. Y. Civ. Pro. Rep. 238; Hat Sweat 
 Comp. V. Reinoehl, 40 Hun, 47. 
 
 1 Code of Civ. Pro. §§ 522, 1212; 
 § 362, ^osi; but see Tillotson v. Cheet- 
 ham, 3 Johns. 56. After judgment 
 by default, it is too late to object to the 
 venue. (Wickham v. Baker, 4 Blackf. 
 
 517.) 
 
 2 Voorhies' Code, p. 359, loth ed. ; 
 and see Schewer v. Klein, i C. & P. 
 
 477- 
 
 ' Casneau v. Bryant, 6 Duer, 668 ; 
 and see Dillaye v. Hart, 8 Abb. Pr. 
 Rep. 394; Hays v. Berryman, 6 Bosw. 
 679: Mankleton v. Lilly, 3 N. Y. St. 
 Rep. 423. 
 
 * Tripp V. Thomas, 3 B. & Cr. 
 427; 5 D. & R. 276; I Carr. 477. In 
 this case it was also held, that 
 although the plaintiff gives no evi- 
 dence, the jury are not limited to give 
 nominal damage. (See, also, Mankte- 
 tow V. Lilly, 25 W^eek. Dig. 354.) It 
 has been held that after assessment of 
 damages on a writ of inquiry, the 
 
 plaintiff cannot, without leave of the 
 court, enter a nolle prosequi as to one 
 count, and take judgments for the 
 others. (Backus v. Richardson, 5 
 Johns. 476.) 
 
 * Bates V. Loomis, 5 Wend. 134; 
 Mankleton v. Lilly, 3 N. Y. St. Rep. 
 422. 
 
 » Cottrell z/. Jones, 11 C. B. 713; 
 Tripp V. Thomas, 3 B. & C. 427. 
 
 ' Tillotson V. Cheetham, 3 Johns. 
 56. 
 
 ' Lewis V. Few, Anthon, 102. 
 Held not sufficient ground for staying 
 a writ of inquiry that the House of 
 Commons had voted the publication 
 privileged. (Stockdale v. Hansard, 8 
 Dowl. 148.) In Beatson v. Skene (5 
 Hurl. & N. 839), an order was made 
 permitting the defendant to inspect 
 and take copies by photograph or 
 otherwise, of the alleged libels. The 
 cost of taking copies, in such a case, 
 is to be borne by the party requiring 
 them, but the costs of an order for in- 
 spection are in general costs in the 
 cause. (Davey v. Pemberton, 11 C. 
 B. N. S. 629.) 
 
 9 N. Y. Code Civ. Pro. § 536; 
 Holmes v. Jones, 13 N. Y. Civ. Pro. 
 
496 PROCEEDINGS IN AN ACTION, [CH. XI. 
 
 inquest will not be set aside because the damages are ex- 
 cessive or insufficient, but inquest may be set aside for ad- 
 mission, against objection of improper evidence.^ 
 
 § 2 74ffl. In Macaulay v. Shackell,^ Lord Eldon, on a 
 bill in chancery, granted a commission for an examination 
 of witnesses abroad for the purpose of proving a plea jus- 
 tifying the truth of an alleged libel, with an injunction 
 till the return of the commission. It was considered an 
 extraordinary stretch of his authority, but subsequently the 
 common-law courts have adopted the practice, where the 
 facts warrant it, of issuing a commission with a stay of 
 proceedings. We remember one case, against the proprie- 
 tor of the London Times newspaper, where the court 
 stayed the proceedings for eighteen months, and gave the 
 defendant an open commission to take the depositions of 
 all or any persons in any part of the world.^ 
 
 § 2743. Where in an action for libel or slander a cause 
 
 Rep. 260-263; DeGaillon v. S'Aigle, " Bogle v. Lawson. This case 
 
 I Bos. & Pul. 368; Gilbert v. Rounds, was tried. August, 1841. Verdict for 
 
 14 How. Pr. R. 47 ; Mankleton v. plaintiff, damages one farthing, and the 
 
 Lilly, 3 N. Y. St. Rep. 422. judge refused to certify for costs. The 
 
 • Ward V. Haight, 3 Johns. Cas. Times Testimonial arose out of this 
 
 80; Mankleton v. Lilly, 3 N. Y. St. case. Defendants published in their 
 
 Rep. 422. newspaper that all advertising doctors 
 
 2 I Bligh, N. S. 96. That case were imposters and the"GoldenReme- 
 was affirmed on appeal in the House dies'' were "nonsensical quackery.'' 
 of Lords, when the chancellor said he Plaintiff, who claimed to be the pro- 
 had received an anonymous letter "as- prietor of Golden Remedies, sued for 
 suring him that all the men of emi- this publication. Defendants justified 
 nence at the bar thought this decision and obtained an order to examine 
 wrong, and that it is produced by the plaintiff. On examination he was 
 affection which the chancellor is sup- asked to disclose the ingredients of 
 posed to have had for some Mr. Shack- Golden Remedies. This he refused to 
 ell." (See Campbell's Life of the do, and for his refusal a judge at 
 Chancellors, X, ch. 213, p. 246.) In Chambers dismissed his complaint 
 Brown v. Murrajf, 4 D. & R. 830, the with costs. On appeal the General 
 court put off a trial to enable defend- Term affirmed said order. (Richards 
 ant to procure the attendance of wit- 7/. Judd, 15 Abb. Pr. R. N. S. 184.) 
 nesses from a foreign country to prove Of course in action for libel plaintiff 
 a justification, but imposed the terms cannot be examined as to any matter 
 that upon the trial the defendant that might subject him to criminal 
 should admit the publication of the prosecution. (Kinney v. Roberts, 26 
 alleged libel. Hun, 166. See § 379, fiost.) 
 
§ 275-J 
 
 PROCEEDINGS IN AN ACTION. 
 
 497 
 
 is compromised by the defendant agreeing to apologize and 
 pay plaintiff's costs, as between attorney and client, the 
 court will by rule enforce performance of the agreement,^ 
 unless defendant shows that he is unable to perform the 
 stipulation on his part.* 
 
 § 275. The trial of the issues in an action for slander 
 or libel must be by jury, unless a jury trial is waived, or the 
 parties, by consent, try the issue before the court without a 
 jury, or before a referee, or submit to an arbitration.* In 
 case of a trial by jury, the court may order a struck jury, 
 but will not do so in trials to be had in the city of New 
 York.* The court may refuse to try the cause if the trial 
 will involve an attack upon the chastity of a third person 
 not a party to the action.^ In case of a new trial, the retrial 
 may be before the judge who presided on the first trial.* 
 
 § 276. It is supposed that in actions for slander or libel, 
 the plaintiff has, in every case, the right to begin.'' In 
 
 * Riley v. Byrne, 2 B. & Ad. 779 ; 
 Tardrew v. Brook, 5.B. & Ad. 880. 
 
 8 Clare v. Blakesley, 8 Dowl. 835. 
 
 8 Code of Pro. § 253. Instances 
 of actions for slander and libel being 
 referred. (Bonner v. McPhail, 31 
 Barb. 106; Rockwell z/. Brown, 36 N. 
 Y. 207; Perkins v. Mitchell, 31 Barb. 
 461 ; Sanford v. Bennett, 24 N. Y. 20.) 
 Arbitration. (See Grosvenor v. Hunt, 
 II How. Pr. Rep. 255; Grayson v. 
 Meredith, 17 Ind. 357; Shephard v. 
 Watrous, 3 Cai. 166.) An award 
 about calling a butcher a bankrupt, 
 was referred to a trial at law, because 
 of the excessiveness of the damages 
 given on the award. (Cooper v. The 
 Butcher of Croyden, 3 Ch. R. 76.) In 
 2 Vern R. 251, it is said there was 
 another reason besides the excessive 
 damages for setting aside the award. 
 That reason was the relationship of 
 the arbitrator to one of the parties. 
 See an award that defendant should 
 make submission and acknowledge 
 himself sorry for all trespasses and 
 words. (Cartwrright v. Gilbert, 2 
 
 32 
 
 Brownl. 48.) As to amount of costs, 
 where an action of slander was refer- 
 red, and plaintiff recovered less than 
 forty shillings damages. (Frean v. 
 Sergent, 8 Law Times Rep. 467.) 
 
 *■ Genet v. Mitchell, 4 Johns. 186; 
 Thomas v. Rumsey, 4 Johns. 482; 
 Thomas v. Croswell, 4 Johns. 491 ; 
 Nesmith v. Atlantic Mut. Ins. Co. 8 
 Abb. Pr. Rep. 423. 
 
 ' Loughead v. Bartholomew, 
 Wright, 90. As to right of judge to 
 refuse to try a cause, see DeCosta v. 
 Jones, Cowp. 729; Squires v. Whisk- 
 en, 3 Camp. 140 ; Ditchbum v. Gold- 
 smith, 4 Camp. 1 52 ; Brown v. Leeson, 
 2 H. Black. 43 ; Egerton v. Furzeman, 
 I C. & P. 613; Henkin v. Gerse, 2 
 Camp. 408. 
 
 ' Fry V. Bennett, 3 Bosw. 200 ; 
 28 N. Y. 329. And so in Kansas. 
 (Stith V. Fallenwieder, 19 Pac. Rep. 
 
 314-) 
 
 ' Littlejohn 7/. Greeley, 13 Abb.Pr. 
 Rep. 41 ; see Wood v. Pringle, i Mo. 
 & Rob. 277 ; Sawyer v. Hopkins, 9 
 Shep. 268 ; Huntington v. Conkey, 33 
 
498 PROCEEDINGS IN AN ACTION. [CH. XI. 
 
 New York the right to begin is so far within the discretion 
 of the court, that an erroneous ruling in respect to it is not 
 a ground for a new trial nor for a reversal of the judgment 
 on appeal.^ In England it has been held that an erroneous 
 ruling as to the right tq begin is ground for a new trial.* 
 And so in Alabama.* 
 
 § 277. Counsel should not state facts which they are 
 not prepared to prove ; but a disregard of this rule will not 
 entitle the opposite party to disprove a statement of coun- 
 sel.* Nor is a party limited in his proof to the opening of 
 his counsel.* Counsel, in summing up, should confine 
 themselves to the facts proved ; but a disregard of this rule 
 is not a ground for a new trial.* The summing up of 
 counsel may, it seems, affect the damages. Thus, in an ac- 
 tion for libel brought by an attorney, the defendant's coun- 
 sel having ridiculed the profession, and assailed the charac- 
 ter of the plaintiff, Lord Chief Justice Cockburn told the 
 jury that if they thought it was a libel, and directed against 
 the plaintiff, "a defense of that description is ten-fold, if 
 not an hundred-fold, an aggravation of any libel which can 
 be brought against a man for any departure from the pro- 
 priety of his profession, ... a most grievous ag- 
 
 Barb. 218; Ayrault v. Chamberlain, Booth v. Millns, 15 M. & W. 669; 4 
 
 33 Barb. 233; Fountain v. West, 23 D. & L. 52; 15 Law Jour. Ex. 354: 
 
 Iowa, 9 ; Lexington Ins. Co. v. Payer, Doe ■v. Brayne, 17 Law Jour. C. P. 
 
 16 Ohio, 324; Carter v. Jones, 6 C. 127; 5 C. B. 655; Huckman v. Fer- 
 
 & P. 64 ; I M. & Rob. 281 ; Mercer v. nie, 3 M. & W. 505 ; but see Brandford 
 
 Whall, 5 Q. B. 462; Hoare v. Dick- v. Freeman, 5 Ex. 734; Burrell v. 
 
 son, 7 C. B. 164. Where there is a Nicholson, i M. & Rob. 304; Bird v. 
 
 plea of justification only, defendant is Higg^nson, 2 A. & E. 160. 
 
 to open and close. (Ransone v. Chris- ' Chamberlain v. Gaillard, 26 Ala. 
 
 tian, 56 Ga. 351.) Where the only de- 504. 
 
 fense is justification or mitigation the * Duncombe v. Daniell, 8 C. & P. 
 
 burthen of proof rests on defendant, 223. 
 
 and he is entitled to open and close. ^ Nearing v. Bell, 5 Hill, 291. 
 
 (Heilman v. Shanklin, 60 Ind. 424 ; " Fry v. Bennett, 3 Bosw. 202 ; 28 
 
 Stithw. FuUenwieder, 19 Pac. [Kans.] N. Y. 331; Saunders z/.Baxter, 6 Heisk. 
 
 314; McCoy f. McCoy, 106 Ind. 492.) (Tenn.) 370, but see Hitchcock v. 
 
 ^ Fry V. Bennett, 3 Bosw. 200; 28 Moore, 37 No. West. Rep. 914; 37 
 
 N. Y. 329. Alb. L. J. 446. 
 
 2 Ashley v. Bates, 1 5 M. & W. 589 ; 
 
2 78.] 
 
 PROCEEDINGS IN AN ACTION. 
 
 499 
 
 gravation, and one which it is your bounden duty to take 
 into your serious consideration." ^ 
 
 § 278. Where the publication is denied, the libel 
 should not be read to the jury until after the plaintiff's 
 counsel has called witnesses to prove the publication ; 
 but a disregard of this rule is not a ground for a new 
 trial.® As a general rule, the defendant is entitled to have 
 read on the trial, as a part of the plaintiff's case, the whole 
 publication containing the alleged libelous matter,^ or to 
 have in evidence the whole conversation in which the 
 alleged defamatory words were spoken, for he is entitled 
 to show by the context that the alleged defamatory lan- 
 guage was not used in a defamatory sense (§ 283). Where 
 a letter of the defendant's was read, which referred to an 
 
 ^ Note to Gfroerer v. Hoffman, 1 5 
 Up. Can. Q. B. Rep. 445. Damages 
 may be increased by what passes in 
 court. (Darby v. Ouseley, 25 Law. 
 Jour. Ex. 227; I H. & N. I.) Aggra- 
 vating damages by cross-examining 
 the plaintiff as to the truth of the 
 charge against him, and failing to es- 
 tablish the truth of the charge. (Risk 
 Allah Bey v. Whitehurst, 18 Law 
 Times Rep. 615.) And where, on 
 the trial of an action for slander, the 
 plaintiff expressed his willingness to 
 accept an apology and nominal dama- 
 ges, if the defendant would withdraw 
 his plea of justification, the defendant 
 refused this offer, and offered no evi- 
 dence in support of his plea ; the jury 
 were directed to consider the nature of 
 the imputation, how it had been made 
 and persisted in down to the time of 
 the verdict, and this direction was up- 
 held. (Simpson v. Robinson, 12 Q. 
 B. 513.) Motion for new trial on 
 ground of improper judicial interfer- 
 ence with counsel, in not allowing him 
 to read to the jury from certain books. 
 (Darby v. Ouseley, i H. & N. i.) 
 
 2 Taylor v. State of Georgia, 4 
 Ga. 14. 
 
 3 Thornton v. Stephen, 2 M. & 
 Rob. 45 ; Cooke v. Hughes, Ry. & M. 
 
 112: 2 Greenl. Ev. § 423; Rex if. 
 Lambert, 2 Camp. 398 ; Rutherford v. 
 Evans, 6 Bing. 451; 4 C. & P. 74. 
 Papers referred to in a libel may be 
 read in evidence in explanation, to 
 give a construction to it. (Nash v. 
 Benedict, 25 Wend. 645.) But the 
 defendant cannot avail himself of pre- 
 vious publications to explain the libel- 
 ous matter or mitigate the damages, 
 unless he shows the plaintiff to be the 
 author of such previous publications. 
 (Haws V. Stanford, 4 Sneed [Tenn.] 
 520.) The whole libel must be con- 
 sidered in determining whether it 
 applies to the plaintiff. (Cook v. 
 Tribune Asso. 5 Blatch. C C. 352.) 
 In the case of the essays and reviews 
 (Wilson V. Bishop of Salisbury, 9 Law 
 Times, N. S. 790), the Privy Council 
 held that whilst "it is competent to 
 the accused party to explain from the 
 rest of his work the sense or meaning 
 of any passage or word that is chal- 
 lenged by the accuser, the accuser is, 
 for the purpose of the charge, con- 
 fined to the passages which are in- 
 cluded and set out in the articles as 
 the matter of the accusation. " (Lon- 
 don Quarterly Review, April, 1864, 
 Am. reprint, p. 284, attacks this rule 
 as novel and erroneous.) 
 
500 
 
 PROCEEDINGS IN AN ACTION. 
 
 [CH. 
 
 XI. 
 
 account of the transaction in a newspaper, it was held 
 that the newspaper was evidence ; ^ and where the alleged 
 libels were contained in certain newspapers, the plaintiff 
 proposed to put in evidence and have read the alleged 
 libelous articles only. For the defendant, it was claimed 
 that he was entitled to have the whole of the newspapers 
 put in evidence, as part of the plaintiff's case, and to en- 
 able the defendant to call attention to certain matter pub- 
 lished in the same papers with the said articles, and to 
 which they referred. Cockburn, Ch. J., after consulting 
 Blackburn, J., allowed the defendant's claim.* But where 
 a paragraph in a subsequent number of a newspaper is 
 given in evidence by the plaintiff", to prove malice, the de- 
 fendant is not entitled to have read out of the same news- 
 paper, as part of the plaintiff's case, other paragraphs having 
 no reference to the one read by the plaintiff.* 
 
 1 Weaver v. Lloyd, i Car. & P. 
 
 296. 
 
 2 Hedley v. Barlow, 4 Fost. & F. 
 224. 
 
 ' Darby v. Ouseley, I Hurl. & N. 
 l; see anie, notes to §§ 137, 138; 
 Bolton V. O'Brien, 16 Law Rep. Ire- 
 land, 97, 483. No reported case has 
 been found in which the plaintiff has 
 insisted upon the right to read the 
 entire article. In Goodrich v. Davis, 
 52 Mass. 473, the whole of the article 
 was read without objection, and there- 
 fore held proper to be considered. It 
 has been supposed that the general 
 rule is to be followed, if one party 
 gives evidence of a part of a document 
 the other party is entitled to have the 
 whole document read. (Greenl. Ev. 
 § 463 ; The Queen's Case, 2 Brod. & 
 B. 289, 290.) Words not set out in 
 the complaint, although proved, cannot 
 be submitted to the jury. (Lynde v. 
 Johnson, 39 Hun, 12.) The rule in 
 libel suits was, and is, that while 
 plaintiff cannot give in evidence more 
 than the words of which he had set 
 out in his complaint; defendant has 
 the privilege of readmg the residue of 
 
 the article, and indeed of insisting 
 upon its being read as part of plaint- 
 iff's case. 
 
 In England, in actions for libel, 
 plaintiff is always allowed to begin; 
 if defendant gives no evidence, he 
 closes the case, plaintiff has no reply. 
 It is therefore important there, vf here 
 defendant desires the residue of the 
 libel read to have it read as part ot 
 plaintiff's case. 
 
 It was claimed by counsel (Ld. 
 Abinger) that so much of the article 
 containing an alleged libel as is not 
 counted upon is admitted by plaintiff 
 to be true. (Cooke v. Hughes, i Ry. 
 & M. 112.) This seems to be the 
 only authority for such a proposition, 
 but it appears reasonable, for if the 
 residue of a publication might be con- 
 strued as fa/se, it might be the sub- 
 ject of another action, and there would 
 be a violation of the rule that plaintiff 
 should never be permitted to give in 
 evidence words which might be the 
 subject of another action. (Rapallo, 
 J., Frazier v. McCloskey, 60 N. Y. 
 338.) 
 
§§ 2 79, 28o.] PROCEEDINGS IN AN ACTION. 5OI 
 
 § 279. Where the defenses are a general denial and 
 justification, the plaintiff may, before resting his case, 
 either give all his evidence to defeat the justification,^ or 
 content himself by proving the allegations of his com- 
 plaint only, in which case he will be restricted in his 
 reply to such evidence only as goes exactly to answer the 
 facts proved by the defense.^ The evidence is usually 
 closed with the plaintiff's rebutting testimony.^ It is dis- 
 cretionary with the court to allow additional testimony on 
 the part of either party after he has once closed ;* and 
 where there is a plea of justification, the plaintiff may, 
 before resting his case, give evidence of express malice.® 
 (§§ 388, 390, 392.) 
 
 § 280. The plaintiff may, on the trial, abandon one or 
 more of the causes of action he has alleged in his com- 
 plaint,^ or where the alleged defamatory matter is divisible, 
 may withdraw a portion of the matter set forth in the 
 complaint.^ A defendant is not always allowed to with- 
 draw a plea of justification,* but a refusal to allow such a 
 withdrawal was in one case held error.* Where the de- 
 fendant had pleaded the general issue and a plea of apology, 
 leave to withdraw the plea of apology was denied, the 
 
 ^ Browne v. Murray, Ry. & Mo. " In New York the plea of justifi- 
 
 254; Ayrault v. Chamberlain, 33 cation could not be withdrawn with- 
 
 Barb. 234; York v. Pease, 2 Gray, out an admission of its falsity. (Clin- 
 
 282. ton V. Mitchell, 3 Johns. 144; Lent v. 
 
 2 Pierpoint v. Shapland, i Carr. & Butler, 3 Cow. 370 ; Root v. King, 7 
 
 p. 448. Cow. 613.) It cannot be withdrawn 
 
 ' Teagle v. Deboy, 8 Blackf. after it has been read to the jury. 
 
 134. (Lea V. Robertson, i Stew. 138.) 
 
 * Wilbom V. Odell, 29 111. 456. Where the defendant, during a trial, 
 
 ' Fry V. Bennett, 3 Bosw. 202 ; withdrew a plea of justification, held 
 
 but see Winter v. Donovan, 8 Gill, that the plea could not be considered 
 
 370. by the jury in aggravation. (Shirley v. 
 
 '« Kirkaldie v. Paige, 17 Vt. 256; Keathey, 4 Cold. [Tenn.] 29.) 
 Stowi/. Converse, 4 Conn. 17; Gould » Fitzgerrel z/. Ferguson, 25 111. 
 
 V. Weed, 12 Wend. 12; but see post, 138. In Pennsylvania the withdrawal 
 
 s 272. of the plea is within the discretion of 
 
 ' Hesler v. Degant, 3 Ind. 501 ; the court. (Rush v. Cavenaugh, 2 
 
 Genet v. Mitchell, 7 Johns. 120. Barr. 187.) 
 
e02 PROCEEDINGS IN AN ACTION. [CH. XI. 
 
 plaintiff swearing he would be prejudiced.^ It was held 
 that a written statement made by the defendant, in which 
 he disclaimed any evil intentions toward plaintiff, could 
 not be given in evidence on the trial, and if allowed by the 
 plaintiff to be given in evidence, could not be sent out 
 with the jury.^ Where the plaintiff, on the trial, abandons 
 a part of the defamatory matter, the part abandoned may 
 be referred to by defendant to show the meaning of the 
 part retained.^ 
 
 § 281. The jury are to determine, as a question of fact, 
 the customary meaning of a word,* and the meaning of a 
 doubtful word,^ and whether the language was or was not 
 ironical.^ Whether or not the language applies to the 
 plaintiff (§ 375«), and when the language is alleged to affect 
 one in his occupation whether the language did so affect 
 him.'' If the alleged defamatory matter is unambiguous, 
 the court is to determine whether or not it is actionable.* 
 
 1 Sullivan -v. Lenihen, 7 Irish Law in what sense they were used. (Calkins 
 Rep. 463. 'V. Wheaton, I Edmonds' Rep. 229, 
 
 2 Hamilton v. Glenn, i Penn. St. citing Goodrich v. Woolcott, 3 Cow. 
 Rep. 340. 231 ; 5 Cow. 714 [been with a sow].) 
 
 3 Genet w. Mitchell, 7 Johns. 120; ^ Hays v. Brierly, 4 Watts, 392; 
 Peters v. Ulmer, l N. Y. Weekly Dig. McLaughlin v. Bascom, 38 Iowa, 660; 
 455. Moore v. Butler, 48 N. H. 161 ; Brayne 
 
 " Law V. Cross, i Black U.S. Rep. v. Cooper, 5 M. & W. 249 (trade main- 
 
 533. See Edsall v. Brooks, 3 Robert- tained by prostitution, &c.) ; Homer 
 
 son, 284 (blackmail) ; Wachter v. v. Taunton, 5 Hurl. & Nor. 661 
 
 Quenzer, 29 N. Y. 547 (blackcross) ; (truckmaster). 
 
 and see Blakeman v. Blakeman, 18 « Reg. v. Brown, Holt, 425; 11 
 No. West. Rep. 103. It is for the Mod. 86; Andrews v. Woodmansee, 
 court to construe words in the English 15 Wend. 232; Boydell v. Jones, 4 M. 
 language (Barnett v. Allen, 36 Law & W. 446; 7 Dowl. Pr. Cas. 210. 
 Jour. 412, Ex.); and per Bramwell, Where the court charged the jury that 
 J. : " Either the word (blackleg) is a if the words were spoken " jocularly," 
 known word in the language, in which the defendant was entitled to a verdict, 
 case we must construe it, or it is a and the jury having found for the de- 
 cant slang phrase, the meaning of fendant, the court granted a new trial 
 which is a matter of fact. (Id. ; and without costs, and on plaintiff stipu- 
 see ante, note i, p. 120, and post, lating to abandon the action. (Donog- 
 §286.) Where the words are capable hue w. Hayes, Hayes' Ir. Ex. Rep. 265 ; 
 of only one meaning, their construe- but see Comw. v. Morgan, 107 Mass. 
 tion is a question for the court, but 199.) 
 
 where they are capable of two mean- ' Ramesdale v. Greenacre, i Post. 
 
 ings, or are of doubtful signification, it & Fin. 61, and ante, note to § 248. 
 
 is the province of the jury to decide ' Pittock v. O'Niell, 63 Penn. St. 
 
§ 28i.] 
 
 PROCEEDINGS IN AN ACTION. 
 
 503 
 
 " If the written instrument can be a libel, then it is for the 
 jury to say whether it is a libel ; but there remains a pre- 
 liminary question which it is for the court or a judge to 
 decide, namely, whether the writing can be a libel, whether 
 in truth there is any evidence upon which a jury can say 
 it is a libel, and that question is still open, and is a ques- 
 tion for the court." ^ If the judge and jury think the pub- 
 lication libelous, still if on the record it appears not to be 
 so, judgment must be arrested.^ " Where words are capable 
 of two constructions, in what sense they were meant is a 
 question of fact to be decided by the jury."* Thus, if in 
 
 253; Calkins v. Wheaton, i Edmonds 
 Rep. 229 ; Hunt v. Goodlake, 29 L. T. 
 N. S. 473 ; see § 287,posi. In Michigan 
 it is said the English doctrine that the 
 question of libel or no libel is for the 
 jury is not accepted, and that if the 
 publication is plainly libelous, it is the 
 duty of the court to so declare, and 
 instruct the jury accordingly. (Bou- 
 reseau v. Detroit Ev. Jour. 30 No. 
 West Rep. 376.) 
 
 ' Brett, J., Reg. v. Bradlaugh, 3 
 Q. B. D. 607. 
 
 2 Denman, Ch. J., Bayliss v. Law- 
 rence, 1 1 A. & E. 920, and quoted by 
 Earle, C. J. Fray v. Fray, 17 C. B. (N. 
 S.) 603. 
 
 ' I Stark. Slan. 60: Van Vechten 
 -z/. Hopkins, 5 Johns. 221 ; Dexter v. 
 Taber, 12 Id. 240; M'Kinley v. Rob, 
 2o/(/ 356; Gorham v. Ives, 2 Wend. 
 534 ; Gibson v. Williams, 4 Wend. 
 320; Blaisdell v. Raymond, 14 How. 
 Pr. Rep. 265 ; Bennett v. Williamson, 
 4 Sandf. 60; Middleton v. Walter, i 
 N. Y. Weekly Dig. 407 ; 67 N. Y. 584: 
 Vaus V. Middlebrook, 3 N. Y. St. R, 
 277 ; Schoonhoven v. Beach, 23 Week, 
 Dig. 348 ; Hays v. Ball, 72 N. Y. 418 
 Wombley v. Monroe, 136 Mass. 464 
 Woodling V. Knickerbocker, 31 Minn 
 1568 ; Elsworth v. Hays, 37 No. West, 
 Rep. 249 : Homer v. Taunton, 5 Hurl, 
 -& Nor. 661. Where the words im- 
 pute that the plaintiff, a reputed mar- 
 ried woman, is the wife of another 
 man, it is for the jury to say whether 
 the defendant does or does not mean 
 she has been guilty of bigamy. (Hem- 
 
 ing V. Power, 10 M. & W. 564.) 
 Where the words were, I have got a 
 warrant for Tempest (the plaintiff) ; I 
 will advertise a reward to apprehend 
 him, and shall transport him for felony, 
 Lord EUenborough left it to the jury 
 to say whether defendant spoke with 
 reference to the warrant which had 
 been improvidently issued, or meant to 
 impute a charge of felony. (Tempest 
 V. Chambers, I Stark. Cas. 67.) Where 
 the words were. A, & B. have closed 
 their accounts with you, and are going 
 to shut you up — innuendo that plaint- 
 iff was insolvent, or likely to be so — 
 left to the jury to say if such was the 
 meaning. (Gostling v. Brooks, 2 Fost. 
 & Fin. 76.) Although the meaning 
 imputed by the innuendo is not ac- 
 tionable, still the meaning of the pub- 
 lication is for the jury. (Wissing v. 
 Coombs, 4 Vict. Law Rep. L. 70.) 
 The facts that other papers have pub- 
 lished the alleged liliel, and that 
 similar reports have been circulated in 
 regard to plaintiff, do not deprive him 
 of the right to have the question of 
 meaning submitted to the jury. (Berg- 
 man V. Jones, 94 N. Y. 51.) Where 
 an article ridiculing a person for 
 ostentation was published in a news- 
 paper as the result of mutual banter, 
 lietween the publisher and the person 
 described, with the knowledge and 
 consent of the latter, the question of 
 libel is for the jury. (SuUings v. 
 Shakespeare, 46 Mich. 408,) The 
 question of malice, and the sense in 
 which the words were understood are 
 
504 
 
 PROCEEDINGS IN AN ACTION, 
 
 [CH. XI. 
 
 one sense the language imputes a crime, and in the other 
 sense does not, the jury are to say in which sense the lan- 
 guage is to be understood,^ And where A, said to B., 
 "You have killed one negro and nearly killed another,'^ 
 held that the jury were to say whether the words were 
 used in a defamatory sense or not •,^ so where the language 
 was, " You are a thief. You stole hoop-poles and saw- 
 logs from D, and M.'s land," held that it was properly left 
 to the jury to decide if the charge was taking timber or 
 hoop-poles already cut — which was a felony — or with cut- 
 ting down and carrying away timber to make hoop-poles, 
 which was a trespass.^ Where words apparently charging 
 a crime are published, it is proper to instruct the jury that 
 the words are actionable if uttered with intent to charge 
 the crime,* 
 
 questions for the jury, yet where the 
 evidence shows an absence of malice, 
 the jury are not authorized in finding 
 defendant guilty. (Foval v. Hallett, 
 
 10 Bradw. [111.] 265.) 
 
 ' Cregier v. Bunton, 2 Rich. 395 ; 
 
 1 1 Humph. 507 ; Ex parte Bailey, 2 
 Cow. 479 ; and see i Amer. Lead. Cas. 
 1 53 ; Davis v. Johnson, 2 Bailey, 579 ; 
 Welsh V. Eakle, 7 J. J. Marsh. 424 ; 
 Lucas V. Nichols, 7 Jones' Law (N. 
 Car.) 32 ; Snyder v. Andrews, 6 Barb. 
 47; Thompson v. Grimes, 5 Ind. 
 (Porter), 385; Smith v. Miles, 15 Vt. 
 245 ; Usher v. Severance, 20 Maine, 9 ; 
 Turrill v. DoUoway, 26 Wend. 383; 
 Jones V. Rivers, 3 Brevard, 95 ; Pitts- 
 burg A. & M. R. Co. V. McCurdy, 
 8 Atl. Rep. 230. 
 
 2 Hays V. Hays, i Humph. 402 ; 
 Chalmers v. Payne, 2 C. M. & R. 
 156. 
 
 ' Dexter K". Taber, iz Johns. 239; 
 and Stockdale v, Tarte, 4 Adol. & El, 
 1016; Tuson V. Evans, 4 Per. & D. 
 
 396. 
 
 * St. Martin v. Desnoyer, i Minn. 
 156; see ante, § 139. The general 
 rule doubtless is, that the ordinary 
 popular meaning or sense of the lan- 
 guage alleged to be libelous is to be 
 taken to be the meaning of the pub- 
 
 lisher; but a foundation may be laid 
 for showing another or a different 
 meaning, and so where the language is 
 of doubtful meaning or import, or 
 where it fails to convey any explicit 
 meaning without the aid of extrinsic 
 circumstances. In such cases some* 
 thing may have previously passed, or 
 some habit or uss^e may have ob- 
 tained, that gave peculiar meaning or 
 significance to the expressions em- 
 ployed. When, therefore, it is de- 
 sired to get at this peculiar or extraor- 
 dinary meaning of what is alleged to 
 be libelous, the witness should be 
 first asked whether there be any ex- 
 traordinary or peculiar meaning ex- 
 pressed by the words in question, and 
 if the answer be in the affirmative, he 
 should then state the means and ex- 
 tent of his knowledge upon the sub- 
 ject of the peculiar meaning of the 
 words, and if it appears to be ade- 
 quate, he may then be asked the ques- 
 tion, " what did you understand by 
 the words employed ? " This seems- 
 to be the settled formula in such cases. 
 (Humphreys v. Miller, 4 C. & P. 7; 
 Daines v. Hartley, 3 Exch. 200, 206 ; 2 
 Greenl. Ev. § 417.) It is the same 
 mode of proof as in the cases of libet 
 published in a foreigjn language, or in 
 
§ 282.J PROCEEDINGS IN AN ACTION. 
 
 505 
 
 § 282. Where the plaintiff, in an action for libel, had 
 set out in his declaration an article published by the de- 
 fendant in a newspaper, which the plaintiff claimed to be 
 libelous, and, on the trial, the defendant selected a certain 
 portion of the words of such article, which he claimed 
 were proved to be true, and if otherwise, were not libelous, 
 and so he prayed the court to instruct the jury ; the court, 
 after defining a libel, and pointing out what would consti- 
 tute one, instructed the jury that they might consider the 
 whole libelous matter in connection with the circumstances 
 proved or admitted, and say what was the meaning of the 
 writing — what it imputed to the plaintiff as to motives, 
 objects, principles, acts and character ; and if they were 
 such as to make the writing libelous according to the 
 definition previously given, and if it were false, and mali- 
 cious, they would find the matter libelous, and sufficient to 
 sustain the action ; it was held that this direction was 
 unexceptionable.^ A banker, remitting the proceeds of a 
 note sent to him for collection, appended to his letter the 
 words, " Confidential. Had to hold over for a few days 
 for the accommodation of L. & H.," who were the makers. 
 Held that these words have not necessarily an injurious 
 meaning, and that their interpretation was a matter for the 
 jury.* Where the libel was copied by the defendants from 
 another paper, with the word " fudge " added thereto, held 
 
 cipher, in each of which cases the dence, for if the words be susceptible 
 
 witness must first estabHsh to the of a harmless meaning, it is incum- 
 
 satisfaction of the court that he un- bent upon plaintiff, both by averment 
 
 derstood the language, cipher or and evidence, to show that they were 
 
 symbol employed, before he is allowed used and understood in a libelous, and 
 
 to give to the jury his understanding not in a harmless or innocent sense, 
 
 of the libel. This is to prevent the (Newbold v. J. M. Bradstreet & Son, 
 
 jury from being misled, whose duty it 57 Md. 38 ; see § 384, post.) 
 is to determine, not only the applica- * Graves v. Waller, 19 Conn 90. 
 
 tion of the alleged libel to plaintiff and See Bolton z/. O'Brien, 16 Law Jour. 
 
 to his trade or business, but its real Ir, 97, affi'd on appeal, 
 sense and meaning, and whether, in * Lewis z/. Chapman, 16 N. Y 369; 
 
 point of fact, the construction put and see Simmons v. Morse, 6 Jones' 
 
 upon the words by the averment of Law (N. Car.) 6. 
 Dlaintiff, is borne out by the evi- 
 
506 PROCEEDINGS IN AN ACTION. [CH. XI. 
 
 that it was for the jury to say with what motive the publi- 
 cation was made, and whether that word was only to give 
 a color at a future day.^ 
 
 § 283. Where, at the time of speaking defamatory 
 words, the defendant qualifies them by other words, the 
 jury are to determine from all that took place at the time, 
 whether a crime was or was not charged ; but to justify the 
 application of this principle, the qualification or explanation 
 must not only accompany the words, but must be suf- 
 ficiently explicit to enable those who hear the same, and 
 who are presumed to acquire all their knowledge of the 
 transaction from what was said at the time, reasonably to 
 tmderstand to what the words refer, and that the meaning 
 which the words standing alone would convey was not the 
 meaning intended.* 
 
 § 284. It is for the judge to decide whether the lan- 
 guage is capable of the meaning ascribed to it by the 
 innuendo, and for the jury to decide whether such meaning 
 is truly ascribed.* If the judge determines that the words 
 are not reasonably capable of the defamatory meaning 
 ascribed to them by the innuendo, he may withdraw the 
 case from the jury and direct a nonsuit or verdict for 
 defendant.* Where the defamatory matter was concerning 
 K., which, it was alleged, meant King George the Third, 
 held that the jury was to decide if such was its meaning.' 
 
 » Hunt V. Alger, 6 C. & P. 245; Cooper v. Greeley, i Denio, 361 ; Van- 
 Licensed Victuallers' Soc. 22 Weekly derlip v. Roe, 23 Penn. St. 82 ; Bar- 
 Rep. (London) 553. ger z/. Barger, 18 Penn. St. R. 489; 
 
 ' Van Akin v. Caler, 48 Barb. 60 ; Hemmings -v. Gasson, I Ell. B. & E. 
 
 see §§ 134, 278. Where an article 346; Justice v. Kirlin, 17 Ind. 588; 
 
 claimed as libelous is one of a series, Gregory!/. Atkins, 42 Vt. 237 ; Wake- 
 
 or part of a discussion on the same lin z'.Mon-is,2 Fost. & F.26; Pittock w. 
 
 subject that has been published, de- O'Niell, 63 Penn. St. 253 ; Gostling v. 
 
 fendant may, for the purpose of defeat- Brooks, 2 Fost. & F. 76.; Sweeny v. 
 
 ing exemplary damages, introduce the Michie, I Vict. Law Times, 43 ; Hays 
 
 whole series. (Scripps v. Foster, 41 v. Mather, 15 Bradw. (111.) 30. 
 Mich. 742.) < Hunt v. Goodlake, 29 Law Times 
 
 3 Blagg V. Sturt, 10 Q. B. 899 ; 16 Rep. N. S. 473 ; 43 L. J. R. C. P. 54. 
 Law Jour. Q. B. 39; 11 Jur. loi ; ' Rex ?/. Woodfall, 5 Burr. 2661. 
 
§ 284.] PROCEEDINGS IN AN ACTION. 507 
 
 The judge may give his opinion that the publication com- 
 plained of conveys a certain meaning, and that therefore it 
 is libelous, but still it is for the jury to say whether or not 
 the publication does convey the meaning which the judge 
 ascribes to it.^ Where the words were that the plaintiff 
 *' will lie, cheat, steal and swear," it was held that the court 
 might, in answer to a broad request of the defendant's 
 counsel to charge that the evidence did not support the 
 declaration, say to the jury that these words might import 
 that the plaintiff stole.* The plaintiff, D., who had worked 
 for F. in making pill boxes by a machine owned and kept 
 secret by F., left F., and set up a machine for making simi- 
 lar boxes on his own account. F., when speaking of D.'s 
 said machine said, "D. stole my patterns to get up his 
 castings by." Held, that it was for the jury, and not for 
 the court, to decide whether F. intended by these words to 
 charge D. with the crime of larceny.^ The alleged libel 
 stated that plaintiff" had, under certain specified circum- 
 stances, been surety for another, and then asked the ques- 
 tion why he had become such surety, and anwered by say- 
 ing : There could be but one answer — he was hired for the 
 occasion. It was left to the jury to say if this was a fair 
 comment, and if so to find for defendant. The jury found 
 for defendant ; and on motion for a new trial, the court 
 although being of opinion that the charge of being hired 
 was not a just inference from the facts stated, held that the 
 question had been correctly submitted to the jury, and 
 refused to disturb the verdict.* Where the charge was, 
 ^' I have a suspicion that you have robbed my house," 
 innuendo that plaintiff had stolen certain goods of the 
 defendant, held that it was properly left to the jury to say 
 whether the defendant meant to impute an absolute charge 
 
 » Empson v. Fairford, W. W. & ' Dunnell v. Fiske, 11 Mete. 551. 
 
 D. 10; I Jurist, 20. ■• Cooper w. Lawson, 8 Adol. & El. 
 
 2 Dottarer v. Bushey, 16 Penn. St. 746. 
 204. 
 
508 PROCEEDINGS IN AN ACTION. [CH. XI. 
 
 of felony, or only a suspicion of felony.^ In an action of 
 slander, the words laid did not, in express terms, charge the 
 crime, which, by innuendo, it was stated the defendant 
 meant to impute to the plaintiff, and there was no induce- 
 ment showing of what the words were spoken ; the circuit 
 judge charged, that the declaration would suffice if the jury 
 believed that the words would well carry the meaning that 
 had been ascribed to them. Held, that such charge was 
 proper, and a verdict for the plaintiff was sustained.^ The 
 question is not whether the words complained of "are sus- 
 ceptible of an innocent interpretation ; but whether no 
 libelous construction can reasonably be put upon them, 
 for if such a construction may reasonably be put upon 
 them it is for the jury to say whether or not that is the true 
 interpretation of them."* 
 
 § 285. Whether the facts charged in the publication 
 are true, is a question for the jury.* Where the charge 
 was that plaintiff had traitorously betrayed the secrets of 
 his government, it was held to be a question for the jury to 
 say if he had traitorously betrayed the secrets of his gov- 
 ernment.* And where the charge was that the plaintiff 
 was a great defaulter, and the proof was that he was a de- 
 faulter, held that it was for the jury to say whether he was 
 2l great defaulter.* And leaving it to the jury whether or 
 not the defendant had made a true statement of a judicial 
 proceeding, was held to be proper.'' 
 
 ' Tozer v. Marshford, 6 Ex. 539 ; will be overruled, if the words are 
 
 20 Law Jour. Rep. N. S. 225, Ex ; see capable of a construction which would 
 
 § 163, ante. The legal quality of the make them actionable, even although 
 
 alleged libel is for the court. It is an innocent sense could be placed 
 
 right to charge that the publication upon them. (Patch v. Tribune Asso. 
 
 was clearly a libel if published in the 38 Hun, 368.) 
 
 sense alleged. (Gregory v. Atkins, 42 * Thomas v. Crosswell, 7 Johns. 
 
 Vt. 237.) 264 ; Van Vechten v. Hopkins, 5 
 
 » Marshall v. Gunter, 6 Rich. 419. Johns. 211 ; Brooks v. Harrison, Ql 
 
 ' Ld. Coleridge, C. J., Hart v. Wall, N. Y. 83. 
 2 C. P. D. 149. Where the words s Genet v. Mitchell, 7 Johns. 90. 
 
 alleged to be libelous are ambiguous « Warman v. Hine, i Jurist, 820. 
 
 or the sense in which they are used is ' Huff -v. Bennett, 4 Sandf. 120. 
 
 doubtful, a demurrer to the complaint 
 
§ 286.] PROCEEDINGS IN AN ACTION. 509 
 
 § 286. Where the language published is unambiguous 
 (§ 126), it is the exclusive province of the court to de- 
 termine its construction, and to determine whether or 
 not, upon its face, it is actionable per se^ or concerning 
 the plaintiff in his professional character.* But the court 
 will not withhold the case from the jury unless it can 
 plainly see upon the face of the record that the matter 
 charged cannot in any way be libelous.* On not guilty 
 pleaded, whether the defamatory matter was published 
 concerning the plaintiflF, or whether by the person men- 
 tioned the plaintiff was intended, is a question of fact for 
 the jury.* Where the declaration alleged the publication 
 of a certain " libel concerning the plaintiff," but contained 
 no innuendo, colloquium, or inducement to connect the 
 publication with the plaintiff ; and no evidence but the pub- 
 lication itself was offered to connect him therewith, it was 
 held to be a question for the court, as a question of con- 
 struction, to determine whether or not the publication 
 referred to the plaintiff.^ Where no extrinsic facts are 
 
 ' Reeves v. Templar, 2 Jurist, 137 ; struction in any reasonable sense that 
 
 Matthews v. Beach, 5 Sandf. 256; would make it a libel." In England 
 
 Green v. Telfair, 20 Barb. 1 1 ; Fry v. since the common-law procedure act 
 
 Bennett, 5 Sandf. 24; Haight v. Cor- of 1852 (15 & 16 Vict. ch. 76), if the 
 
 nell, 15 Conn. 74; Mix v. Woodward, words are capable of any defamatory 
 
 12 Conn. 262 ; Thompson v. Grimes, meaning, the case must be left to the 
 
 5 Ind. 385 ; M'Kinly w. Rob, 20 Johns. jury. (Watkin v. Hall, Law Rep. 3 
 
 351; Archbold v. Sweet, 5 C. & P. Q. B. 396; Mulligan v. Cole, Law 
 
 219; I Mo. & Rob. 162; Kerr v. Rep. 10 Q. B. 550; Hart ^/. Wall, 2 C. 
 
 Force, 3 Cranch C. C. 8; The State P. D. 149.) By statute in Mississippi 
 
 V. The Banner Publishing Co, xxii and Virginia, demurrer does not pre- 
 
 The Reporter, 442, 16 Lea, 176; Lyon w. vent jury from passing on the intent 
 
 Guild, 5 Heisk.(Tenn.) 183; Donaghue of the publication. (See ante, p. 239, 
 
 V. Gaffy, 54 Conn. 257 ; see ante, % 281. note 5.) 
 
 2 Tomlinson v. Brittlebank, i Har. It is proper for the court to refuse 
 
 ■& W. 573. to instruct the jury that the article is 
 
 » Fray I'. Fray, 17 C. B. N. S. 603; not libelous. That instruction would 
 
 Mawe V. Pigott, Jr. Rep. 4 Com. Law, be proper only in case the language 
 
 54; Twombly v. Monroe, 136 Mass. was incapable of a construction inju- 
 
 464; Donaghue w. Gaffey, 54 Conn, rious to plaintiff. (Sanderson w. Cald- 
 
 257; Beazley v. Reid, 68 Ga. 380. well, 45 N. Y. 401.) 
 
 By the court in Teacy v. M'Kenna * Van Vechtenw.Hopkms, 5 Johns. 
 
 (Ir. R, 4 Com. Law, 374), in over- 211; Green v. Telfair, 20 Barb. 11; 
 
 ruling a demurrer to the declara- «*odson w. Home, i Brod. &Bmg. 7i 
 
 tion "It is enough that the court Kerr ». Force, 3 Cranch C. C. 8. 
 
 are 'not prepared to decide that this » Barrows v. Bell, 7 Gray (Mass.) 
 
 document is not capable of a con- 301. 
 
5IO 
 
 PROCEEDINGS IN AN ACTION. 
 
 [cn. XI. 
 
 offered in evidence, or if the language is ambiguous, the 
 question of libel or no libel is, in a civil action, a question 
 of law ; ^ and as neither the statute of 32 George the Third^ 
 enabling the jury to give a general verdict in an action for 
 libel, nor the similar provision in the Revised Statutes of 
 New York, apply to civil actions,^ the judge may charge 
 the jury whether or not, as a question of law, a publication 
 is libelous on its face,* and it is the duty of the jury to fol- 
 low the instructions of the judge.* It is the practice for 
 the judge first to give a legal definition of libel, and then 
 to leave it to the jury to say whether the facts necessary to 
 constitute that offense have been proven to their satisfac- 
 tion.® The judge may state under what circumstances 
 language in itself actionable may be spoken with impunity, 
 and by way of illustration put a case differing in some 
 respects from that before the court.® He is bound, upon a 
 proper motion, to rule whether or not the declaration sets 
 
 * Snyder v. Andrews, 6 Barb. 43. 
 
 ' Hunt V. Bennett, 19 N. Y. 173; 
 Levi V. Milne, 4 Bing. 195 ; Snyder v. 
 Andrews, 6 Barb. 55; Dolloway v. 
 Turrill, 26 Wend. 399; Reeves v. 
 Templar, 2 Jur. 137. 
 
 " Darby v. Ouseley, i Hurl. & N. 
 l;Wagaman v. Byers, 17 Md. 183; 
 Hunt V. Bennett, 19 N. Y. 173. See 
 § 281, anie. 
 
 * Hakewell v. Ingram, 2 Com. Law 
 Rep. 1397; The State v. Jeandell, 5 
 Harring. (Del.) 475 ; and see Duffy v. 
 The People, 26 N. Y. 588; Rex i/. 
 Burdett, 4 B. & Aid. 131 ; 2 Bennett 
 & Hurd Lead. Cr. Cas. 388 ; The State 
 V. Croteau, 23 Vt. 14; U. S. v. Morris, 
 I Curtis, 53 ; Baylis v. Lawrence, 1 1 
 Adol. & El. 925 ; Rex v. Dean of St. 
 Asaph, 21 How. St. Tr. 847; 3 T. R. 
 428, note; Sixth Rep. of Crim. Law 
 Comm'rs, A. D. 1841 ; Forsyth's Hist, 
 of Trial by Jury, 268; 2 Camp. Ch. 
 Justices, 478; 3 Id. 56; Rex v. Miller, 
 20 How. St. Tr. 892 ; Rex v. Wood- 
 fall, 5 Burr. 2661 ; Shattuck v. Allen, 
 4 Gray, 541 ; Commonwealth -v. 
 Anthes, 5 Gray, 185; Commonwealth 
 
 V. Porter, 10 Mete. 263 ; Goodrich v. 
 Davis, II Mete. 473; Commonwealth 
 V. Abbott, 13 Mete. 120; Pierce v. 
 The State, 13 N. Hamp. 536; The 
 People V. Crosswell, 3 Johns. Cas. 337. 
 
 " Parmiter v. Coupland, 6 M. & 
 W. 105 ; Cox V. Lee, Law Rep. 4 Ex. 
 288; and see Stannus v. Finlay, Ir. 
 Rep. 8 Com. Law, 264; Shepheard v. 
 Whitaker, Law Rep. 10 C. P. 502. 
 The court having charged that if the 
 language complained of had a ten- 
 dency to injure plaintiff in his profes- 
 sion they were libelous; properly re- 
 fused to charge that a statement that 
 plaintiff is suffering from overwork, 
 and his mental condition is not good, 
 and there has been trouble in the 
 affairs of the bank (of which plaintiff 
 was teller) occasioned by plaintiff's 
 mental derangement,and that his state- 
 ments when he was probably not re- 
 sponsible for them have caused bad 
 rumors, are libelous per se. (Moore 
 ■V. Francis, 3 N. Y. Suppl. 162.) 
 
 ' Taylor v. Robinson, 29 Maine, 
 323- 
 
§ 286.] 
 
 PROCEEDINGS IN AN ACTION 
 
 511 
 
 forth a cause of action.^ But in charging the jury, the 
 judge is not bound to give his opinion as to the nature of 
 the publication as a matter of law.^ And where the judge 
 charged, " I find a difficulty in saying whether it (the pub- 
 lication) is a libel or not. Gentlemen, can you assist me ? " 
 a motion for a new trial on the ground of misdirection was 
 denied.^ But it is no misdirection that the judge, in 
 addition to leaving the proper questions to the jury, stated 
 his own opinion as to the libelous nature of the publica- 
 tion.* Although the judge, on the general issue, is to leave 
 
 ' Shattuck V. Allen, 4 Gray (Mass.) 
 540; Matthews v. Beach, 5 Sandf. 
 256. 
 
 ' In Parmiter v. Coupland, 6 M. & 
 W. 105, the judge, after telling the 
 jury what constituted a libel, left it to 
 them to say whether the publication in 
 question was or was not injurious to 
 plaintiff. The jury having found for 
 defendant the court above set it aside 
 because the jury had erred in their de- 
 cision. In Mulligan v. Cole, L. R. 10 
 Q. B. 549, the judge directed a non- 
 suit on the ground that the publication 
 was not capable of the meaning 
 attributed by the innuendo. In Capi- 
 tal & Counties B'k v. Henty, 5 C. P. 
 Div. 574, the question of libel or no 
 libel was left to the jury ; they failed 
 to ag^ee and were discharged. On 
 motion to enter judgment for defendant 
 it was held the words were susceptible 
 of the meaning attributed by the innu- 
 endo, and that the case should again 
 go to a jury. The Court of Appeals 
 reversed this last decision, and the 
 House of Lords sustained this reversal, 
 holding the words were not libelous, 
 that the innuendo was not warranted ; 
 there was no case for a jury and that 
 defendants were entitled to judgment. 
 (L. R. 7 App. Cas. 741, and see Snyder 
 V. Andrews, 6 Barb. 43.) In Pennsyl- 
 vania the rule is otherwise ; there the 
 court is bound to instruct the jury 
 whether the publication is or is not 
 libelous. (Pittock v. O'Niell, 63 Penn. 
 
 2S3-) 
 
 ' Baylis v. Lawrence, 3 Perr. & D. 
 
 526. 
 
 * Darby v. Ouseley, I Hurl. & N. 
 I; Snyder v. Andrews, 6 Barb. 55; 
 and see Empson v. Fairford, W. W. 
 & D. 10; I Jurist, 20; ante^ § 281. 
 Where a card published by plain- 
 tiff was received in evidence in miti- 
 gation of damages, and the court spoke 
 of the card as " a mere piece of ego- 
 tism," on a verdict for plaintiff, the 
 court reduced the damages one-half, 
 held that if the remark concerning the 
 card was unauthorized, the error was 
 compensated by the reduction of 
 damages. (Massauere v. Dickens, 70 
 Wis. 83.) In an action for slander in 
 calling plaintiff a thief and a whore ; 
 as to the charge of thief, defendant 
 justified on the ground of truth, set- 
 ting up certain transactions referred to 
 on the trial as the "currant transac- 
 tions " and the "apple transactions." 
 The judge, in his charge stated, " It 
 is due to good order in society and 
 common decency among neighbors 
 that you should look to it, if con- 
 vinced defendant made these charges 
 that he should respond in such dama- 
 ges as you think plaintiff is entitled to 
 for having charged her with those 
 crimes, and it is well, in my judgment, 
 for defendant, no matter if his version 
 of these transactions be a correct ver- 
 sion; it is well for him to drop this 
 currant transaction and to cease talk- 
 ing about these currants. He has 
 talked about them, in my judgment, 
 long enough, and it is time he stopped 
 talking about this apple transaction 
 and live in peace and comity with his 
 neighbors.'' Defendant excepted to 
 
512 PROCEEDINGS IN AN ACTION. [CH, XI. 
 
 it to the jury whether, under the circumstances, the publi- 
 cation is a libel, yet if on that issue in a case in which no- 
 question is made as to the fact of publication, nor as to its 
 application to the plaintiff the jury find a verdict for the 
 defendant, the court will set aside the verdict.^ And where 
 the action was for calling the plaintiff a thief, and the 
 defense was that the defendant so explained the words 
 that the charge did not amount to an imputation of felony ; 
 the court being of opinion that the defense failed, charged 
 the jury that the plaintiff was entitled to a verdict, and 
 that the only question for them to determine was the 
 amount of damages. The defendant excepted to this 
 charge, and on appeal the charge was held to be proper.* 
 
 § 287. Where the circumstances of the publication are 
 controverted or uncertain, a case is presented in which the 
 court is to instruct the jury what condition of circumstan- 
 ces would render the publication privileged, and then leave 
 it to the jury to determine the character of the publication, 
 and give a verdict accordingly. For the jury cannot 
 decide whether a libel was published on a justifiable occa- 
 sion, without being told by the court what facts would con- 
 stitute such an occasion.* The uncertainty as to the facts 
 may consist in the happening or not happening of certain 
 events, or in the question whether or not the language 
 exceeded the privileged limits. 
 
 § 288. The facts being uncontro verted, the court is to 
 
 this part of the charge. Plaintiff had enced to defendant's prejudice by the 
 
 a verdict for $150. On appeal a new judge's charge, 
 trial was granted : Because the judge » Hakewell v. Ingram, 2 Com. 
 
 expressed an opinion calculated to in- Law Rep. 1397 ; and see Levi v. Milne, 
 
 fluence the decision of the jury in 4 Bing. 195 ; Long v. Eakle, 4 Md. 
 
 a matter within their sole cognizance, 454; Usher v. Severance, 20 Maine, 
 
 the amount of damages. (Richards v. 9; Goodrich v. Davis, 11 Mete. 474. 
 Van Nostrand, 43 Hun, 299.) The ^ Van Akin v. Caler, 48 Barb. 58. 
 
 amount of damages awarded seems to 'Duncan ». Brovra, 15 B. Men. 
 
 indicate that the jury were not infiu- 186. 
 
§ 288.] 
 
 PROCEEDINGS IN AN ACTION. 
 
 513 
 
 determine whether or not the publication is privileged,^ If 
 a defendant desires to have the question of privilege sub- 
 mitted to the jury, he must so request upon the trial. 
 Unless he so requests he cannot, upon appeal, claim that 
 such submission should have been made. A motion for a 
 nonsuit does not raise the question as to the character of 
 the publication, as privileged or not privileged.** If the 
 court decides that the publication is absolutely privileged, 
 that of course determines the action ; if the court decides 
 the publication is conditionally privileged then it is a 
 matter of law for the court to determine whether there 
 is any intrinsic or extrinsic evidence of malice. If the 
 court decides this question in the negative, it directs 
 a nonsuit or a verdict for the defendant, without refer- 
 
 ' Darby v. Ouseley, i Hurl. & N. 
 I ; Wenman v. Ash, 13 C. B. 836; 
 Briggs V. Garrett, 2 Atl. Rep. 513; 
 Neeb v. Hope, 11 1 Penn. St. 145; 
 Press Co. z/. Stewart, 119 Penn.St.584; 
 Locke V. Bradstreet, 22 Fed. Rep. 
 771 ; Merivale v. Carson, 20 Q. B. D. 
 275; Halstead v. Nelson, 13 N. Y. 
 St. Rep. 211. If there is no re- 
 quest to submit the question of mal- 
 ice to the jury, the objection that the 
 judge omitted to submit that question 
 cannot be raised on appeal. (Van 
 Aemam v. Bleistien, 2 N. Y. St. Rep. 
 470: 102 N. Y. 355.) Lord Chief 
 Justice Cockbum, in his "Second letter 
 on the proposed New Criminal Code," 
 expresses an opinion that the rule 
 which declares the question of privi- 
 lege to be one of law for the judge to 
 determine "involves a legal anomaly," 
 because " the rule of law being that a 
 communication made bona fide upon 
 any subject matter in which the party 
 communicating has an interest, or in 
 reference to which he has a duty, pub- 
 lic, social, moral or domestic, if made 
 to a person having a corresponding 
 interest or duty, is privileged, the 
 question of privilege in respect of the 
 particular communication — in other 
 words, the application of the rule — 
 depends on two questions: first, 
 
 33 
 
 whether the interest or duty existed; 
 secondly, whether, if so, the commu- 
 nication was honestly made in further- 
 ance of the interest or in performance 
 of the duty, or whether the occasion 
 was abused for the gratification of in- 
 dividual malice, in which latter case 
 the privilege fails. But both these 
 questions, the existence of the interest 
 or duty and honesty of purpose, are 
 purely questions of fact, and the rule 
 which leaves the decision of the first to 
 the judge involves a departure from 
 principle and ought not to be further 
 extended." Mr. Flood (Flood on 
 Libel, 376), after citing the above ex- 
 tract, states that it ''forcibly illustrates" 
 an "anomaly." For ourselves we are 
 unable to discover any anomaly. Every 
 question of law rests upon a question 
 of fact, and it cannot be intended to 
 arraign the principle that questions of 
 law are for the court; we understand 
 it is intended only to apply to the par- 
 ticular question of law to which refer- 
 ence is made. It is in those cases only 
 in which the facts are uncontr averted 
 that the judge decides whether or not 
 the publication is privileged. 
 
 * Van Aemam v. Bleistien, as 
 Pres't, &c., 2 N. Y. State Rep. 470; 
 102 N. Y. 355; Brooks v. Harrison, 
 91 N. Y. 89. 
 
514 
 
 PROCEEDINGS IN AN ACTION. 
 
 [CH. XI. 
 
 ence to the jury.^ But if the court decides there is any 
 evidence, either in the language of the publication itself 
 (intrinsic evidence), or in the circumstances of its publica- 
 tion, from which a want of good faith or a bad intent (mal- 
 ice) on the part of the publisher may be inferred, it then 
 becomes the duty of the court to submit to the jury ,^ with 
 appropriate instructions, and as a question of fact for their 
 determination, whether in making the publication the pub- 
 lisher acted in good faith or otherwise ;* for the question 
 of malice in such a case is always a question of fact to be 
 determined by the jury.* Thus, where defendant had 
 
 1 Cooke V. Wildes, 5 El. & Bl. 328; 
 Somerville v. Hawkins, 10 C. B. 583; 
 Taylor v. Hawkins, 16 Q. B. 308; 
 Harris v. Thonspson, 13 C. B. 333; 
 Wenman v. Ash, Id. 836 ; Mulligan v. 
 Cole, Law Rep. 10 Q. B. 550; Caul- 
 field V. Whitworth, 18 Law Times, N. 
 S. 527; Fry V. Bennett, 5 Sandf. 54; 
 Jarvis v. Hatheway, 3 Johns. 1 80. 
 
 * Jury to determine good faith 
 and truth of statement. (Brooks v. 
 Harrison, 91 N. Y. 83.) 
 
 ' Lancey v. Bryant, 30 Maine (17 
 Shep.) 466; Powis v. Smith, 5 B. & 
 Aid. 850; Abrams v. Smith, 8 Blackf. 
 95 ; Mitchell v. Kerr, Rowe's Rep. 
 537 ; Cosgrave v. The Trade Auxiliary 
 Soc. Ir. Rep. 8 Com. Law, 349. De- 
 fendant is not required to give any 
 evidence of the truth of the fact 
 alleged or of his bona fide belief in 
 them, before the judge can decide 
 whether the occasion was privileged. 
 Intrinsic evidence of actual malice, e. 
 £-., imputations upon private character, 
 take the case out of the hands of the 
 judge, and make it necessary that the 
 jury shall decide as to its existence; 
 the truth of the facts stated, or the de- 
 fendant's honest belief in them, is an 
 element in the question of actual mal- 
 ice. (Williams v, Spowers, 8 Vict. L. 
 R. L. 82.) 
 
 * White V. Nicholls, 3 How. U. S. 
 Rep. 266; Blackburn v. Blackburn, 4 
 Bing. 395 ; Robinson v. May, 2 J. P. 
 Smith, 3 ; Bodwell -v. Osgood, 3 Pick. 
 379 ; Toogood V. Spyring, i Cr. M. & 
 R. 181 ; Bromage v. Prosser, 6 D. & 
 R. 296; Haight z>. Cornell, 15 Conn. 
 
 74; Clapp V. Devlin, 35 N. Y. Sup. Ct. 
 (3 Jones & S.) 170; Zuckerman v. 
 Sonnenschein, 62 111. 115; Gardners. 
 Slade, 13 Ad. & Ell. N. S. 796; Patti- 
 son v. Jones, 8 B. & C. 578; DeMus- 
 tre V. Syme, 9 Vict. L. R. L. 10; 
 Moran v. Lyon, 4 Id. 379 ; Pearce v. 
 Brower, 72 Ga. 243; see §§ 388, 399, 
 ^ost. Clark v. Molyneux, 3 Q. B. D, 
 237, the plaintiff, a clergyman, com- 
 plained that defendant had published 
 libelous matter concerning him. Upon 
 the trial the presiding judge held that 
 the publication was conditionally priv- 
 ileged, and left the question of malice 
 to the jury as thus : In law if one pub- 
 lished what is libelous of another, it is 
 presumed to be malicious ; but when 
 the occasion is privileged tlien you re- 
 quire something more; you require 
 what the law calls express malice. I 
 must tell you what express malice 
 means ; it does not mean that hatred 
 and uncharitableness which are 
 usually associated with the word mal- 
 ice. Malice, in law, means a wrong- 
 ful act done intentionally without just 
 excuse. When you come to look at 
 the word malice you will have to con- 
 sider it this way : Was there an inten- 
 tional act done without excuse, and 
 did defendant act in the honest belief 
 that his statements were true; not 
 merely that he believed them, but that 
 he honestly beUeved them, vphich 
 means that he had good ground for 
 believing them. This and much more, 
 and the jury found for the p aintiff. 
 A rule for a new trial was discharged, 
 and on appeal the judgment was re- 
 
288.] 
 
 PROCEEDINGS IN AN ACTION. 
 
 515 
 
 charged plaintiflf with stealing, and had her searched for a 
 broach missing, but afterwards found in defendant's pos- 
 session, held to be a question for the jury whether the 
 charge was made bona fide^ and that the circumstances and 
 occasion of making it should be left to their consideration.^ 
 To entitle a plaintiff " to have the question of malice sub- 
 mitted to the jury, it is not necessary that the evidence 
 should be such as necessarily leads to the conclusion that 
 malice existed, or that it should be inconsistent with the 
 non-existence of malice ; but it is necessary that the evi- 
 dence should raise a probability of malice, and be more 
 consistent with its existence than with its non-existence ; '"* 
 and where the only evidence of malice was claimed to be 
 on the face of the publication, held that it ought to have 
 been left to the jury to determine whether there was any 
 malice.' But where the libel purported to be the report 
 
 versed and a new trial granted, three 
 judges giving opinions at length, the 
 effect being (i) that the charge was 
 erroneous, in holding that the defend- 
 ant must have honestly believed his 
 statements to be true and have good 
 ground for making them, and (2) that 
 the verdict was against the weight of 
 evidence. The report should be con- 
 sulted. 
 
 * Padmore v. Lawrence, 3 Perr. & 
 D. 209. Court to leave bona fides to 
 jury, and then to determine whether or 
 not the publication is privileged. ( Stace 
 V. Griffith, Law Rep. 2 Pri. C. C. 420 ; 
 20 Law Times, N. 8.197; Little v. 
 Clements, i Ir. C. L. Rep. 194.) 
 Whether or not the occasion gives the 
 privilege is a question of law. Wh ether 
 or not the defendant has fairly conduct- 
 ed himself in the execution of the priv- 
 ilege is a question of fact for the jury. 
 (Dickson v. Earl Wilson, I Fost. & F. 
 419; and see George v. Goddard, 2 
 Fost. & F. 689; McBee v. Fulton, 47 
 Md. 403.) Where from the use of words 
 actionable /^r se malice is implied, the 
 presumption may be rebutted by cir- 
 cumstances. The words may be 
 
 shown to have been used with reference 
 to a known act and to have been so 
 understood by those present. It is 
 proper to submit the intention of the 
 publication to the jury. (Welker v. 
 Butler, 15 Bradw. [111.] 209; see ante, 
 note 2, p. 121.) Where the jury returned 
 a verdict of $1,375.03, held that the 
 amount was not sufficient evidence of 
 a compromise verdict. It was held to 
 be rather an evidence of " a very exact 
 estimate of damages" than the result 
 of a compromise. (Meyer t/. Press Pub. 
 Co. 46 N. Y. Superior Ct. 127, 131.) 
 
 2 Somerville v. Hawkins, 10 C. B. 
 583; and see Taylor v. Hawkins, 16 
 Q. B. 308: Harris v. Thompson. 13 C. 
 B 333; Wenman^/. Ash, 13 C. B. 836; 
 Henwood u. Harrison, Law Rep. 7 C. 
 P. 606. 
 
 3 Gilpin V. Fowler, 9 Ex. 615; 18 
 Jur. 292 ; Jacob v. Lawrence, 4 L. R. 
 Ir. Q. B. C. P. & Ex. D. 579. Held 
 erroneous to charge jury that plaintiff 
 had no cause of action unless words 
 were understood by the hearers in a 
 malicious sense. (Jarnigan v. Flem- 
 ing, 43 Mo. 710; but see Nelson v. 
 Borchenius, 52 111, 236.) 
 
5l6 PROCEEDINGS IN AN ACTION. [CH. XI. 
 
 of a proceeding in the insolvent court, and imputed to 
 the insolvent's landlord (plaintiff) that he colluded with 
 the insolvent in putting in a fictitious distress ; held that 
 the judge ought not to have left it as a question to the jury 
 whether the defendant intended to injure the plaintiff, but 
 that if he thought the tendency of the publication injurious 
 to the plaintiff, he ought to have told them it was action- 
 able, and the plaintiff entitled to a verdict.^ 
 
 § 289. The amount of damages is to be determined by 
 the jury,^ but the court should instruct them as to the rules 
 by which they should be governed in fixing the amount.' 
 A general instruction to find such damages as under all 
 the circumstances they thought right, was held to be im- 
 proper.* So a charge that " a good way for them (the jury) 
 to do was to bring the question home to themselves and 
 say for what sum would they, with their knowledge of the 
 world and of mankind, and of the result of a defamation, 
 be willing to be libelled as the plaintiff was libelled," was 
 held to be error. Such a rule would be a dangerous one 
 to adopt in the administration of the law,^ It was held no 
 
 ^ Haire v. Wilson, 9 B. & C. 643. damages, it was not necessary for the 
 
 Plaintiff was arrested on a charge of judge to caution the jury as to the 
 
 robbery, and twice arraigned before a amount of injury sustained, by telling 
 
 magistrate. Defendant published in a them to take into consideration the 
 
 newspaper reports of the proceedings ; fact that one publication only had been 
 
 one report was headed " Daring rob- proved, and that a mere sale to the 
 
 bery,'' and the other " Charge against plaintiff's agent of a copy of the paper 
 
 a barmaid." It appeared in evidence containing the libel. (Brunswick v. 
 
 that the report in manuscript was Harmer, 14 Q. B. 189.) If there was 
 
 headed ^^ Un/ounded charge a.gamst a. only One witness to the speaking of 
 
 barmaid," but the word unfounded was words charging theft, and he testifies 
 
 omitted in the report as published, that his opinion of the person slandered 
 
 On the trial a nonsuit was ordered, but was not thereby affected, and that he 
 
 a new trial was granted. (Street v. still believed him to be honest, yet, if 
 
 Licensed Vitualeir's Soc, 22 Weekly the words were spoken maliciously, it 
 
 Rep. 553.) is erroneous to limit the jury to nominal 
 
 2 Mankleton v. Lilly, 3 N. Y. St. damages. (Markhara v. Russell, 12 
 
 Rep. 422 ; Shattuc v. Mc Arthur, 29 Allen [Mass.], 573.) 
 Fed. Rep. 136; Fleming v. Albeck, * Duncan v. Brown, 15 B. Men. 
 
 67 Cal. 226; Erber v. Dun, 12 Fed. 186. 
 Rep. 526. 5 Prescott v. Tousey, 50 N. Y, 
 
 ^ True V. Plumley, 36 Maine, 466. Superior Court, 12, 17. 
 Held that in directing the jury as to 
 
289.] 
 
 PROCEEDINGS IN AN ACTION. 
 
 517 
 
 ground for exception that the judge advised the jury to 
 give only nominal damages.^ A charge that compensatory 
 damages are to be given where the publication is without 
 malice, and that compensatory damages are such as will 
 repay the costs and trouble of the suit and of disproving 
 the defendant's allegations, was held right,^ although it has 
 been held erroneous to charge the jury to take into con- 
 sideration the expense to which the plaintiff has been put 
 by being compelled to come into court to vindicate his 
 character.^ It has been usual in the English courts to 
 tell the jury that they are not to consider the effect of the 
 verdict upon the costs.* In New York, it seems always 
 
 ^ Matthews v. Beach, 5 Sandf. 256. 
 Where the judge recommended the 
 jury to give nominal damages, but the 
 jury gave £ 5 damages, the court re- 
 fused to set the verdict aside. (Chil- 
 vers V. Greaves, 5 M. & G. 578.) The 
 right of the court to direct a verdict 
 for nominal damages doubted. (Strong 
 V. Kean, 13 Irish Lavy Rep. 93; and 
 see Sanderson v. Caldwell, 45 N. Y. 
 398.) Where the publication coip- 
 plained against was the publication, in 
 the defendant's newspaper, of a printed 
 report of a committee of investigation 
 distributed to the shareholders in a 
 company, the judge charged the jury 
 that although the publication by the 
 defendant was unauthorized, yet, as 
 the publication to the shareholders was 
 authorized, they might give nominal 
 damages. (Davis v. Cutbush, I Fost. 
 & F. 487.) In an action against a 
 newspaper for publishing a libelous 
 item of news, the proprietors not hav- 
 ing acted with express malice, and not 
 having shown negligence in their choice 
 of reporters, held\\\^X. exemplary dam- 
 ages should not have been allowed. 
 (Detroit Daily Post Co. v. McArthur, 
 16 Mich. 447. Contra see Regen- 
 sperger v. Kiefer, 7 Atl. Rep. 724.) As 
 to the rule of damages in New York 
 for acts of servants, see Murphy v. Cent. 
 Park R. R. Co. 48 N. Y. Superior Ct. 
 96 ; Hendrick v. Sixth Av. R, R. Co. 
 44 /^. 9 ; Burke v. N. Y. & Greenwood 
 
 Lake R. R. 30 Hun, 47 ; Cleghorn v. 
 N. Y. & H. R. R. R. 56 N. Y. 44. 
 
 2 Armstrong v. Pierson, 8 Clarke 
 (Iowa), 29; Pearce v. Brower, 17 The 
 Reporter, 490 (Ga.); 72 Ga. 243. 
 
 ' Hicks V. Foster, 13 Barb. 663. 
 In Wakelin v. Morris (2 Fost. & F. 27) 
 the defendant's counsel proposed to 
 put a question to plaintiff's attorney, as 
 to what would be the probable cost to 
 the defendant if the verdict was for nom- 
 inal damages only, and the question 
 was admitted. 
 
 * The effect of the verdict upon the 
 costs is to be laid entirely out of con- 
 sideration, and with which the jury 
 have nothing to do. (Mears v. Griffin, 
 2 Sc. N. R. 15; and see Poole v. 
 Whitcomb, 12 C. B. N. S. 770; Levi v. 
 Milne, 4 Bing. 195.) And so recently 
 as 1868, sittings, after Mich. Term, in 
 an action of libel(Bradlaugh v. Brooks), 
 the jury, after retiring to consider their 
 verdict, returned into court and inquir- 
 ed of the Judge (Blackburn, J.), what 
 amount of damages would carry costs ; 
 he declined to inform them, saying that, 
 according to law, the costs follow the 
 verdict, and a verdict ought not to be 
 given which depends upon the law as 
 to costs. And in Wilson v. Reed (2 
 Fost. & F. 149), the court refused to 
 inform the jury what amount of dam- 
 ages would carry costs. In California 
 the same rule seems to prevail. (See 
 Shay V. Tuolumne Water Co. 6 Cal. 
 
5l8 PROCEEDINGS IN AN ACTION. [CH. XI. 
 
 to have been the rule in actions of tort to inform the jury 
 of the effect of the verdict upon the costs.' And at least 
 some of the judges in the courts of England are disposed 
 to follow the rule prevailing in New York. Where, on a 
 motion for a new trial, on the ground that the jury had 
 given a verdict for a small amount of damages, under the 
 erroneous impression that if was an amount sufficient to 
 carry costs, the rule was refused ; but by Pollock, Ch. B., 
 "There is no reason why the jury should not be informed, 
 if they ask it (what amount of verdict will carry costs), as 
 it is a part of the law, but if they do not ask it, and they 
 have given their verdict, it cannot be disturbed merely be- 
 cause they did not know it."^ In a case tried before Erie, 
 Ch. J., he charged the jury : " If you believe that the plaintiff 
 really was required to bring this action to vindicate his 
 character, then you may think it proper to give substantial 
 damages which will carry costs. But if you think that it 
 was not so, and that the words did no real injury, you can 
 find nominal damages, which will not carry costs ; " and 
 upon the jury asking what sum would carry costs, the judge 
 answered, " I am not aware that there is anything to pre- 
 clude my telling you," and he told them.^ In an action of 
 slander for words imputing unchastity to the plaintiff, the 
 jury were instructed that the rule with respect to damages 
 was to give such as were commensurate with the injury sus- 
 
 286.) Rule in Michigan, see Steketee an action for slander, the jury were in- 
 
 V. Kim, 48 Mich. 322. Eifect of the correctly informed by the undersheriff 
 
 verdict on costs, see § 296, post. as to the amount of damages which 
 
 > Elliott V. Brown, 2 Wend. 500; would carry costs, and they found a 
 
 Nolton V. Moses, 3 Barb. 31 ; Waffle verdict for less than forty shillings, it 
 
 V. Dillenback, 38 N. Y. 53. Such an was held no ground for a new writ of 
 
 instruction not proper in an action or inquiry, or for increasing the amount 
 
 contract. (Munson ^/. Curtis, 17 N. Y. of damages. (Grater t/. CoUard, 6 
 
 St. Rep. 349.) Dowl. 503.) The jury cannot, by their 
 
 2 Kilmore v. Abdoolah, 27 Law verdict, give costs. A verdict that de- 
 Jour. Ex. 307. But on the same occa- fendant should pay $1 damages and 
 sion Bramwel!, B., said: "The jury the costs of the suit was set aside, 
 have no right to give a verdict with (Campbell v. Linton, 27 Up. Can. Q. 
 reference to anything else than the in- B. 563.) 
 
 jury sustained by the plaintiff." Where, s Wakehn v. Norris, 2 Fost. & F. 
 
 on the execution of a writ of inquiry in 26 ; and see in a note to that case. 
 
§ 290.] PROCEEDINGS IN AN ACTION. 5ig 
 
 tained by the acts charged and proved against the defend- 
 ant ; that if the plaintiff was an innocent and virtuous 
 female, and her character had been destroyed by the slanders 
 of the defendant and others, they might give liberal dam- 
 ages ; but if the plaintiff had so destroyed her character, by 
 her own lewd and dissolute conduct, as to have sustained 
 no injury from the words spoken by the defendant, they 
 might give only nominal damages. This was held correct.^ 
 Where the defendant suffers judgment to go by default, 
 and the damages are assessed by a sheriff's jury, although 
 the plaintiff gives no evidence of damage, the jury are not 
 confined to nominal damages.^ Where the- language is 
 actionable /^r se, the mere fact that special damage is alleged 
 will not prevent the plaintiff, on failing to establish his 
 special damages, from recovering general damages.* But 
 where the language is actionable only by reason of the spe- 
 cial damages, plaintiff cannot recover general damages.* 
 
 § 290. In general, prospective damages are not to be 
 allowed, and damages arising after suit brought are not to 
 be taken into account,^ although it has been held that the 
 jury are to consider the probable future as well as the ac- 
 tual past;® and in an action of libel upon copartners, held 
 
 • Flint V. Clark, 13 Conn. 361. See ture damages in actions ex delicto,ste. 
 
 Mitigation. 36 Alb. L. J. 84, 104. 
 
 2 Cotterell v. Jones, 11 C. B. 713; ' True v. Plumley, 36 Maine, 466; 
 Tripp V. Thomas, 3 B. & C. 427 ; ante, Harrison v. Pearce, i Fost. & F. 567. 
 § 274. Mayne on Damages, 421, lays down 
 
 3 Smith V. Thomas, 2 Bing. N. C. the rule as thus : Where words are ac- 
 380; Brown v. Smith, 13 C. B. 596; tionable without special damage, the 
 Evans v. Harris, I Hurl. & N. 254. jury may take into consideration not 
 
 * Albrecht v. Patterson, 12 Vict. only the injury that has arisen, but 
 
 Law Rep. L. 821 ; this was qualified in that which may arise from the slander, 
 
 a case where the charge was want because such fresh injury would con- 
 
 of chastity of an unmarried woman. stitute no fresh ground of action. But 
 
 (White V. Jordan, 6 Id. 11.) if the words are not actionable per se 
 
 5 Goslin V. Corry, 7 Mann. & G. the jury, in computing damages, 
 
 343; Keenholts v. Becker, 3 Denio, ought only to consider the damage 
 
 346 ; Stitzell v. Reynolds, 59 Penn. St. which is specially alleged and proved, 
 
 488; 67 Id. 54; Phil. R. R. Co. v. because if any damage be at any 
 
 -Quiglej-, 21 How. U. S. Rep. 202; future time sustained a subsequent 
 
 Mayne on Damages, 277- As to fu- action will lie for it. 
 
520 PROCEEDINGS IN AN ACTION. [CH. XI, 
 
 the jury might consider the prospective injury to the co- 
 partnership;^ and in a case of libel on the plaintiff in con- 
 nection with a steam vessel, he was allowed to show di- 
 minished earnings of the vessel subsequent to the bringing 
 of the action." Where, in consequence of the defamation 
 the plaintiff lost an office dependent on the will of his su- 
 perior, it was held the jury were to consider both the na- 
 ture and tenure of the office, and not give the value of an 
 annuity certain.® Where the damage proved was the loss 
 of a situation of fifty pounds a year, and the jury gave a 
 verdict for sixty pounds, the court refused to disturb it.* 
 Mental suffering and sickness induced by the publication, 
 are not such natural consequences of defamation as to- 
 amount to special damage,* and in a joint action by part- 
 ners it was held that no damages could be given for any in- 
 jury to the private feelings of the plaintiffs, but only for such 
 injury as they had sustained in their joint trade,® The 
 jury must give some damages,'^ and where actual ill-will is 
 
 * Gregory v. Williams, i Carr. & although it may be shown that de- 
 K. 568. fendant was benefited by the defama- 
 
 2 Ingram v. Lawson, 6 Bing. N. tion. It will not be permitted the de- 
 
 C. 212. fendant to attempt to show that the 
 
 = Lever v. Torrey, i Murray, 350. plaintiff was benefited by the alleged 
 
 * Jackson v. Hopperton, 16 C. B. libel. Such an attempt was made in 
 N. S. 829. Fry v. Bennett, 5 Sandf. 76; and; see 
 
 " Terwilliger v. Wands, 17 N. Y. Baylis v. Lawrence, ii Ad. & El. 924; 
 
 54; Wilson V. Goit, 17 N. Y. 442; see post. Mitigation, § 417. Where 
 
 overruling Bradtw.Towsley, 1 3 Wend, there are mitigating circumstances 
 
 253; Fuller V. Fenner, 16 Barb. 333, and no express malice, plaintiff is en- 
 
 and Swift v. Dickerman, 31 Conn. titled to such damages as will com- 
 
 285. No inquiry can be had of injury pensate him and make him whole for 
 
 to persons other than to a party plaint- outraged feelings and his expenses of 
 
 iff, /. e., to the wife of plaintiff, as that suit. (Shattuc v. McArthur, 29 Fed. 
 
 she took sick and died. (Guy t/. Greg- Rep. 136; Finney v. Smith, 31 Ohio, 
 
 cry, 9 C. & P. 584. See § 391, post, St. 529; Bradstreet Co. v. Gill, 9 So. 
 
 and § 200, ante.) East. Rep. [Texas] 753.) Damages 
 
 « Haythom v. Lawson, 3 Car. & against mercantile agencies. (Erber 
 P. 196; Donaghue z/. Gaffy, 54 Conn. v. Dun, 12 Fed. Rep. 526; King v. 
 257. In an action of libel against two Patterson, 49 N. J. L. R. 417.) Dam- 
 persons, one of them suffered judg- ages on charge of inconstancy against 
 ment by default, the other pleaded married woman under Code of North 
 " not guilty; " questioned if the dam- Carolina. (Bowden v. Bailes, loi N. 
 ages could be jointly assessed. (Note C. 612.) 
 to Watts V. Fraser, 7 A. & E. 233.) Where libelous language is in- 
 
 ' Jewett V. Whitney, 43 Maine, 242 ; serted in a newspaper by a reporter. 
 
290.] 
 
 PROCEEDINGS IN AN ACTION. 
 
 521 
 
 shown, they may give exemplary or vindictive damages.* 
 The damages cannot exceed the amount claimed, and a 
 direction to that effect is proper;^ and where the plaintiff 
 had a verdict for more damages than he claimed in his 
 declaration, the court refused him leave to amend the 
 declaration so as to keep the verdict.^ 
 
 without the knowledge or consent of 
 the proprietor, the latter is liable to 
 the extent of compensatory damages. 
 He can, however, be visited with 
 punitive damages only, upon proof 
 from which his approval of his em- 
 ployee's conduct may be legally in- 
 ferred. (Haines v. Schultz, 50 N. J. 
 L. R. 481.) This accords with the 
 general rule of damages against an 
 employer for the acts of his employee. 
 (Murphy v. Cent. R. R. Co. 48 N. Y. 
 Superior Court, 96; Caldwell v. N. J. 
 Steamboat Co. 47 N. Y. 282 ; Field on 
 Damages, § 85.) It is proper to charge 
 that unless the defendant was moved 
 by actual malice it is not a case for 
 punitive damages (Hamilton v. Eno, 81 
 N. Y. 1 16) ; but a request so to charge, 
 which in addition added, That the jury 
 should give such damages only as 
 they thought the plaintiff had actually 
 sustained, was rightly refused. (Id.) 
 Where the words are actionable per 
 se the law requires no proof of actual , 
 injury to entitle the plaintiff to recover 
 such amount as the jury deem just. 
 (Neeb v. Hope, ill Penn. St. 145; 
 Bergfman v. Jones, 94 N. Y. 52.) 
 
 If the jury are satisfied that there 
 was actual malice or gross negligence 
 they may allow punitory damages. 
 (Klewin v. Bauman, 53 Wis. 244; 
 Lanius v. Druggist Pub. Co. 2 West. 
 Mo. App. 440; Templeton v. Graves, 
 59 Wis. 95; Bowden v. Bailes, loi N. 
 C. 612; Montgomery v. Knox, 23 Fla. 
 595; Erber v. Dun, 12 Fed. Rep. 526.) 
 There are decisions that no punitive 
 damages should be allowed unless 
 upon proof of actual malice. (Evis- 
 ton V. Cramer, 57 Wis. 570 ) 
 
 1 Taylor v. Church, 8 N. Y. 452 ; 
 Hunt V. Bennett, 4 E. D. Smith, 647 ; 
 19 N. Y. 173; Fry v. Bennett, 4 Duer, 
 247; Kinney v. Hosea, 3 Harring. 
 397; Gilreath v. Allen, 10 Wend. 67; 
 
 Cramer v. Noonan, 4 Wis. 231 ; Hos- 
 ley V. Brooks, 20 111. 115; Cowell v. 
 Day, 18 Week. Dig. 97; Shattuc w. 
 McArthur, 29 Fed. Rep. 136; Bradley 
 V. Craftier, 67 Wis. 41 5 ; Snyder v. 
 Fulton, 34 Md. 128; Knight v. Foster, 
 39 N. Hamp. 576; Montgomery v. 
 Knox, 23 Fla. 595. The right to give 
 vindictive damages was questioned. 
 (See Austin v. Wilson, 4 Cush. 273; 
 Taylor v. Carpenter, 2 Wood. & M. 
 [U. S.] I; 2 Greenl. Ev. tit. Damages; 
 Sedgwick on Damages, Appendix, ist 
 ed. and 4th ed. p. 532.) But the right 
 is now universally conceded, and held 
 that vindictive damages might be 
 given, although defendant had pre- 
 viously been indicted for the same 
 offense, and fined. (Bundy v. Ma- 
 giness, 18 Pac. Rep. 668; Cook v. 
 Ellis, 6 Hill, 467.) Vindictive damages 
 are awarded as a punishment against a 
 wrongdoer, and not as compensation 
 for the injured person. (Sheik v. Hob- 
 son, 64 Iowa, 146.) Where the libel 
 charges an indictable offense, punitive 
 damages may be given without other 
 proof than the publication itself of 
 express malice. (Regensperger v. 
 Kiefer, 7 Atl. R. [Pa.l 724; Kuhn v. 
 Chicago, M. & St. Paul, 74 Iowa, 137; 
 Roswater v. Hoffman, 24 Neb. 222.) 
 In Sheik v. Hobson, 64 Iowa, 146, it 
 was held that where, in an action 
 for slander, the right of action by 
 statute survives the death of defendant, 
 the plaintiff cannot recover punitive 
 damages against the representatives 
 of defendant. 
 
 ' Pool V. Devers, 30 Ala. 672. 
 
 ' Curtiss V. Lawrence, 17 Johns. 
 III. The declaration may, it seems, 
 be amended on the terms of submit- 
 ting to a new trial (Bowman v. Earle, 
 3 Duer, 691), if the defendant insists 
 on a new trial. (Corning v. Corning, 6 
 N. Y. 98.) 
 
522 
 
 PROCEEDINGS IN AN ACTION. 
 
 [CH. XI. 
 
 § 291. Where there are several counts, and a verdict is 
 entered generally on all the counts, and entire damages are 
 given, if one count is bad, the judgment will be arrested, 
 and a venire de novo awarded.^ But if the judge who tried 
 the cause certifies that the evidence applied only to the 
 good counts, or it is otherwise apparent that the defective 
 count has not influenced the amount of the verdict, the 
 v^erdict will be amended by confining it to the good 
 counts. Where there is any doubt as to any one count, 
 it is prudent to have the damages assessed severally, or to 
 abandon the doubtful count, and take a verdict on the 
 other counts only.* By a defective count is meant a count 
 which shows no cause of action; a count which contains 
 actionable words, together with words not actionable, 
 would not be defective so as to affect a verdict on such 
 count. In such a case, it is intended that the verdict ap- 
 plied only to the actionable words.^ 
 
 ' Cox V. Lee, Law Rep. 4 Ex, 287 ; 
 38 Law Jour. Ex. 219. 
 
 2 See 2 Stark. Sland. 107; Heard 
 on Libel, §§ 303, 304; Fry v. Bennett, 
 28 N. Y. 326; Holt V. Scholefield, 6 
 T. R. 694; Lloyd v. Morris, Willes R. 
 443; Burnet v. Wells, 12 Mod. 42c; 
 Grant v. Astle, 2 Doug. 730; Erapson 
 V. Griffin, 1 1 Ad. & El. 1 87 ; Leach v. 
 Thomas, 2 M. & W. 427 ; Gould v. 
 Oliver, 2 Scott, N. C. 636; 2 M. 5: G. 
 208 ; Ayrey v. Fearnsides, 4 M. & W. 
 168; Lewin 2/. Edwards, 9 M. & W. 
 720; Day V. Robinson, i Ad. & El. 
 558; 2 N. & M. 670; Angle v. Alex- 
 ander, 7 Bing. 119; Eddowes v. Hop- 
 kins, I Doug. 377; Reg. v. Virrier, 12 
 Ad. & El. 331, overruling Williams v. 
 Breedon, i Bos. & Pul. 329 ; Burnet v. 
 Wells, 12 Mod. 420; see, also. Union 
 Turnpike Co. v. Jenkins, i Caines, 
 392 ; Hopkins v. Beedle, Id. 347 ; Lyle 
 V. Clason, Id. 583 ; Livingston v. 
 Rogers, Id. 587; Stafford v. Green, i 
 Johns. 505; Cooper v. Bisselj, 15 
 Johns. 318 ; Sayre v. Jewett, I2 Wend. 
 135; Addington v. Allen, 11 Wend. 
 374 ; Case v. Buckley, 1 5 Wend. 327 ; 
 Yrisarri v. Clements, 3 Bing. 432; 
 Neal V. Lewis, 2 Bay, 204 ; Hogg v. 
 
 Wilson, I Nott. & McC. 216; Ken- 
 nedy V. Lowry, I Binney, 397 ; Shaffer 
 V. Kintzer, Id. 537; Paul v. Harden, 
 9 S. & R. 23 ; Smith v. Cleveland, 6 
 Mete. 332; Baker v. Sanderson, 3 
 Pick. 348 ; Cornwall v. Gould, 4 Pick. 
 444; Patten v. Gurney, 17 Mass. 182; 
 Barnard v. Whiting, 7 Mass. 358; 
 Barnes v. Hurd, 11 Mass. 57; Sulli- 
 van V. Holker, 1 5 Mass. 374 ; Clark v. 
 Lamb, 6 Pick. 512; Kingsley v. Bill, 
 
 9 Mass. 198; Dryden v. Dryden, 9 
 Pick. 546; Hayter v. Moat, 2 M. & 
 W. 56; Gregory v. Duke of Bruns- 
 wick, 7 So. N. R. 972 ; Harker v. Orr, 
 
 10 Watts, 245 ; Ruth v. Kutz, I 
 Watts, 489; Gosling v. Morgan, 32 
 Penn. St. 273; Stitzell v. Reynolds, 
 59 Penn. St. 488 ; Pemberton v. Colls, 
 16 Law Jour. Rep. Q. B. 403; 11 
 Jurist, loi I ; Cook v. Cox, 3 M. & S. 
 no; Clement i/. Fisher, 7 B. & Cr. 
 459; I M. & R. 281. A verdict sup- 
 ported by one count held good. (Mar- 
 shall V. Gunter, 6 Rich. 419; Graves 
 V. Waller, 19 Conn. 90; Bloom v. 
 Bloom, 5 S. & R. 391 ; Hoag v. 
 Hatch, 8 Monthly Law Rep. N. S. 
 686.) 
 
 ' Mayne on Damages, 237; Bridges 
 
§ 292.] PROCEEDINGS IN AN ACTION. 523 
 
 § 292. Where there is a misjoinder of several counts, 
 and general damages are assessed, judgment will be ar- 
 rested.^ In cases of misjoinder of counts, the verdict may 
 be taken for the plaintiff on the counts properly joined, 
 and for the defendant on the other count or counts, or the 
 plaintiff may enter a nolle prosequi as to the count or 
 counts improperly joined.^ Where there were two counts 
 upon the same words, but published at different times, a 
 general verdict for the plaintiff was upheld.^ A general 
 verdict on five counts held not responsive to either count* 
 A verdict that "the defendant spoke and published the 
 words in the complaint specified" was upheld.® And so of 
 a verdict that found "the defendant guilty of willful and 
 malicious slander."^ In an action for libel there were 
 eight special pleas of justification, and issue thereon ; the 
 jury found for the plaintiff on three issues, and for the de- 
 fendant on the residue of the pleas ; the verdict was held 
 void because it did not assess the plaintiff's damages on 
 the issues found for him.' A plea of justification in an ac- 
 tion for a libel contained three material allegations, as to 
 one of which the jury expressed themselves of opinion 
 that the proof failed. The judge told them that to war- 
 rant a finding in favor of the defendant, they must be sat- 
 isfied that all three of the allegations were substantially 
 made out. The jury, after two hours' deliberation, re- 
 
 ■z/. Horner, Carthew, 230; NichoUs w. Kitchenman v. Skeel, 3 Ex. 49; 
 
 Reeve, i Freeman, 83 ; Cheetham v. Kightley v. Birch, 2 M. & S. 540. 
 
 Tillotson, 5 Johns. 430; Griffith ^z. ^ gj-adley z/. Kennedy, 2 G. Greene, 
 
 Lewis, 8 Q. B. 844; 7 Adol. & El. N. 231. 
 
 S. 67; Alfred v. Farlow, 8 Q. B. 854; * Cock v. Weatherby, 5 S. & M. 
 
 Lloyd V. Morris, Willes, 443 ; Hughes 333. 
 
 V. Rees, 4 M. & W. 204 ; Campbell v. ' Carlock v. Spencer, 2 Eng. (7 
 
 Lewis, 3 Bam. & Aid. 392; Edwards Ark.) 12. 
 
 V. Reynolds, Hill & Denio Sup. 53 ; « Benaway v. Conyne, 3 Chand. 
 
 Sherry v. Frecking, 4 Duer, 452; 214; and see Harding v. Brooks, 5 
 
 Holmes v. Jones, 20 N. Y. St. Rep. Pick. 244; Scott v. Cook, i Duvall, 
 
 176- 314- „ „ „ 
 
 1 Hemming v. Elliott, S Cent. Rep. ' Clement v. Lewis, 3 B. & B. 297 ; 
 592; 66 Md. 197. S. C. Lewis v. Clement, 3 B. & A. 
 
 2 Corner v. Shew, 3 M. & W. 350; 702. 
 
524 
 
 PROCEEDIKGS IN AN ACTION. 
 
 [CH. XI. 
 
 turned a verdict for the defendant upon that plea, 
 court refused to set it aside.^ 
 
 The 
 
 § 293. As the amount of damages in an action for 
 slander or libel is always a subject for the exercise of the 
 sound discretion of the jury, who may give more or less 
 according to their conclusions from the whole case respect- 
 ing the motives of the publisher,* a verdict in such an 
 action will not be set aside for excessive damages unless 
 there is some suspicion of unfair dealing,* or " unless the 
 case be such as to furnish evidence of prejudice, partiality 
 or corruption on the part of the jury." * The case must 
 be very gross, and the damages enormous, to justify order- 
 ing a new trial on a question of damages.^ A new trial 
 
 * Napier v. Daniell, 3 Sc. 417; 2 
 Hodges, 187; 3 Bing. N. 0. 77. 
 Where a plaintiff is entitled as against 
 the defendant to be relieved from a 
 verdict obtained against him, the 
 court will not abstain from interfering 
 on the ground of the lien of the 
 plaintiff's attorney for his costs. 
 (Symons v. Blake, 2 C. M. & R. 416.) 
 
 * Davis V. Davis, 2 N. & M. 81 ; 
 Trabue v. Mays, 3 Dana, 138; Heath 
 V. Hubbell, 6 Daly, 183, $7,000; 
 Blunt V. Mason, malicious prosecu- 
 tion, $2,000, 3 Mason, 102; Chambers 
 V. Robinson, i Strange, 691, $5,000; 
 Wiggin V. Coffin, 3 Story, i, $1,500. 
 Semble in Illinois, the Supreme Court 
 will not reverse a judgment of the 
 Circuit Court because the damages 
 are excessive. (City of Joliet v. Wes- 
 ton, 123 111. 641; and in Georgia see 
 Brown v. Autrey, 78 Ga. 753.) Re- 
 versal for excessive damages in an 
 action for injuries. (Coppers z'. N. Y. 
 C. R. R. 48 Hun, 292.) Appellate 
 Court cannot fix the amount of dam- 
 ages. (Kennon v. Gilmer, 131 U. S. 
 22.) 
 
 ' Mayson v. Sheppard, 12 Rich. 
 Law (S. Car.) 254; and see Whyte v. 
 Young, A'Beckett's Reserved Judg- 
 ments, 68; Gilbert v. Burtenshaw, i 
 Cowper, 230. 
 
 * Lawyer v. Smith, i Denio, 207 ; 
 Hurtin v. Hopkins, 9 Johns. 36; Jarvis 
 
 V. Hatheway, 3 Johns. 180; Rundell 
 V. Butler, 10 Wend. 119; Bailey v. 
 Dean, 5 Barb. 297; Spencer v. Mc- 
 Masters, 16 111. 405. 
 
 " Tillotson V. Cheetham, 2 Johns. 
 63, $1,400; Coleman v. South wick, 9 
 Johns. 45 ; Southwick v. Stevens, 10 
 Johns. 443; Root V. King, 7 Cow. 
 613; Moody V. Baker, 5 Cow. 351; 
 Cole V. Perry, 8 Cow. 214 ; Ostrom v. 
 Calkins, 5 Wend. 263; Douglas v. 
 Tousey. 2 Wend. 352; Cook v. Hill, 
 
 3 Sandf. 341 ; Riley v. Nugent, I A. 
 K. Marsh, 431; Ryckman z/. Parkins, 
 9 Wend. 470. The court refused to 
 grant a new trial for excessive dam- 
 ages where the amounts were severally 
 $1,000 (Bell V. Howard, 4 Litt. 117); 
 $300, charge horse stealing (Faulkner 
 V Wilcox, 2 Litt. 369) ; $2,736. charge 
 perjury (Sanders v. Johnson, 6 Blackf . 
 51); $500, charge horse stealing 
 (Teagle v. Deboy, 8 Blackf. 134); £750, 
 charge against a minister of the gos- 
 pel (Highmore v. Harrington, 3 C. B. 
 N. S. 142) ; ;^35o (Wakley v. Cooke, 
 
 4 Ex. 511); $334 (Ross V. Ross, 5 B. 
 Monr. 20); $212 (St. Martin v. Des- 
 noyer, i Minn. 156); $4,000 (Litton v. 
 Young, 2 Mete. [Ky.] 558); $15,000 
 (Trumbull v. Gibbons, N. Y. Judicial 
 Repository, i); $5,000, charge want 
 of chastity (Buckley v. Knapp, 48 
 Mo. 152); $10,000 (Fry v. Bennett, 4 
 Duer, 247); ;£i,ooo (Gfroerer v. HofE- 
 
293-J 
 
 PROCEEDINGS IN AN ACTION. 
 
 525 
 
 was granted on payment of costs, and under peculiar cir- 
 cumstances, where the verdict was ^150/ and so where 
 the damages were $5,000.* There is nothing to forbid the 
 granting a new trial, in a proper case, for insufficient dam- 
 ages ; but the granting a new trial for insufficient damages 
 is of rare occurrence. Where the plaintiff was a minister 
 of the gospel, and the damages only one farthing, the 
 court refused a new trial.^ The court may order a new 
 trial unless the plaintiff consents to reduce the damages. 
 Thus where the damages were $600, the court ordered a 
 new trial, unless the plaintiff would consent to reduce them 
 to $200.* 
 
 man, 15 Up. Can. Q. B. R. 441) ; $709 
 (Shute V. Barrett, 7 Pick. 82); $510 
 (Qakes -v. Barrett, 7 Pick. 82); 
 (Townsend v. Hughes, 2 Mod. 1 50) ; 
 £4,cwo (Roe V. Hawkes, I Lev. 97) ; 
 $3,500 (McDougal V. Sharp, i City 
 Hall Recorder, 154); $1,400 (Bodwell 
 V. Osgood, 3 Pick. 379); and see 
 Baker v. Briggs, 8 Pick 1 22 ; Sargent 
 V. , 5 Cow. 106 ; Mayne on Dam- 
 ages, 347; Chambers v. Caulfield, 6 
 East, 256; Hewlett v. Cruchley, 5 
 Taunt. 277 ; Coffin v. Coffin, 4 Mass. 
 I ; Neal v. Lewis, 2 Bay, 204 ; Edgar 
 V. Newell, 24 Up. Can. Q. B. R. 215; 
 Myers v. Curry, Id. 470 ; Treanor v. 
 Donahue, 9 Cush. 228 ; Wood v. 
 Gunston, Style, 465 ; referred to Clapp 
 V. Hudson River R. R. Co. 19 Barb. 
 465, and said to be the first case in 
 which a new trial was granted for ex- 
 cessive damages ; Bruton v. Downes, 
 I Fost & F. 668. 
 
 ' Swan V. Clelland, 13 Up. Can. 
 Q. B. Rep. 335; and the plaintiff 
 having died since the verdict was ren- 
 dered, defendant was put under terms 
 not to assign death of plaintiff as error, 
 if on new trial the verdict was for the 
 plaintiff. (See § 299, post.) New 
 trial not ordered where, pending ap- 
 peal from judgment, plaintiff died. 
 (Spooner^/. Keeler, 51 N. Y. 527.) 
 
 2 Nettles V. Harrison, 2 McCord, 
 230, $5,000. New trial where damages 
 #2,500 (Freeman v. Tinsley, 50 111. 
 497, $2,500); so where damages $4,000 
 (Windsor v. Oliver, 41 Ga. 538.) 
 
 ' Kelly V. Sherlock, Law Rep. 1 
 Q. B. 686 ; and see Mears v. Griffin, 
 2 Sc. N. R. 15; Irwin v. Cook, 24 
 Texas, 244 ; Wavle v. Wavle, 9 Hun, 
 125; Alges V. Duncan, 39 N. Y. 313; 
 McDonald v. Walker, 40 N. Y. 551. 
 In Forsdike v. Stone (Law Rep. 3 C. 
 P. 607), the charge was that the 
 female plamtiff had been guilty of 
 adultery, and the damages were one 
 shilling ; a new trial was refused, and 
 it was said that no new trial would be 
 granted for insufficient damages, un- 
 less there had been a mistake in point 
 of law on the part of the presiding 
 judge, or a mistake in the calculation 
 of figures, or misconduct by the jury. 
 In Ohio (Code, § 298), it is provided: 
 A new trial shall not be granted on 
 account of smallness of damages in an 
 action for injury to the person or rep- 
 utation. New trial because damages 
 too small refused. (Rendall v. Hay- 
 ward, 5 Bing. N. C. 424 ; Ld. Gower 
 V. Heath, Barnes' Notes, 445 ; Hay- 
 ward V. Newton, 2 Stra. 940 ; Atkins 
 V. Thornton, Draper's Up. Can. Rep. 
 239.) New trial granted because 
 damages too small, and because error 
 in charge. (Kenney v. McLaughlin, 
 71 Mass. 3 ; and see Falvey v. Stan- 
 ford, Law Rep. 10 Q. B. 54, where 
 the damages ^ere one farthing, and a 
 new trial granted.) 
 
 * Potter V. Thompson, 22 Barb. 
 87 ; Cook V. Cook, 36 Up. Can. Q. B. 
 Rep. 583. Such a proceeding held 
 improper. (Cassin v. Delany, 38 N. 
 
526 PROCEEDINGS IN AN ACTION. [CH. XI. 
 
 § 294. A new trial will not be granted because a 
 verdict for defendant should have been for plaintiff with 
 nominal damages.^ A new trial will be granted to ad- 
 mit newly discovered evidence to support a defense of 
 not guilty, but not to support a justification.* A new 
 trial was refused where since the verdict for the plaintiff 
 he had been convicted, partly on the evidence of the de- 
 fendant, of the offense charged.* A new trial was refused 
 where a witness for the plaintiff had since the trial been 
 convicted of perjury.* Where plaintiff obtained a verdict 
 for one shilling damages, in consequence, as he supposed, 
 of the admission of improper evidence, it was held that 
 having recovered a verdict, he could not insist on his ob- 
 jections to evidence, and a new trial was refused.® 
 
 § 295. Actions for slander and libel are in the nature 
 of penal actions, and though the jury find for the defend- 
 ant against the weight of evidence, a new trial for such a 
 
 Y. 178; 6 Trans. App. 202; 6 Abb. but ordered the verdict to be entered 
 
 Pr. R. N. S. I ; Moffet v. Sackett, 18 for the plaintiff, with £^0 damages. 
 
 N. Y. 522; Whitehead v. Kennedy, ^ Fatten z/. Hamilton, 12 Ind. 256; 
 
 69 N. Y. 462, and note; 8 Civ. Pro. Rundell v. Butler, 10 Wend. 119. 
 
 Rep. 4.) On motion for new trial See, however, Levi v. Milne, 4 Bing. 
 
 because damages excessive, the 195. Courts interfere with verdict to 
 
 court, on plaintiff's consent alone, prevent manifest injustice. (Moore 
 
 may deny motion unless damages z/. Mank, 3 Bradw. [111.] 114.) 
 
 reduced. (Belt v. Lawes, 12 Q. * Beers 7/. Root, 9 Johns. 264. 
 
 B. D. 356.) Notwithstanding what » Symons v. Blake, 2 C. M. & R. 
 
 was said in Cassin v. Delany, the 416; 4 Dowl. Pr. Cas. 263; i Gale, 182. 
 
 Court of Appeals, in Holmes v. Jones, * Eakins v. Evans, 3 Up. Can. Q. 
 
 20 N. Y. St. Rep. 176, ordered a new B. Rep. O. S. 383. 
 
 trial unless damages reduced from ^ Rogers v. Munns, 25 Up. Can. 
 
 $5,000 to |2,ooo. The court refused Q. B. Rep. 153; and see Smith v. 
 
 a new trial, but reduced the amount of Kerr, i Barb. 155 ; Case v, Marks, 20 
 
 damages. (Gostling v. Brooks, 2 Conn. 248. Where plaintiff had a 
 
 Fost. & F. 76 ; and see Johnston v. verdict for five shillings, a new trial 
 
 The Athenaeum, 2 Appleton's Law of was granted, the court recommending 
 
 Literature, 452 ; Upham v. Dickinson, a stet processus. (Shaver v. Linton, 
 
 50 111. 97.) In the case of Attorney 22 Up. Can. Q. B. R. 177.) In Hogle 
 
 General of Jersey v. Ennis, an ac- v. Hogle (16 Up. Can. Q. B. R. 518), 
 
 tion of slander mentioned in a note the plaintiff had a verdict for fifty 
 
 to Warren's Law Studies, the plaint- shillings ; the court above held that 
 
 iff appealed to the privy council from the declaration did not disclose a 
 
 a verdict for the defendant given by cause of action, refused a new trial to 
 
 the Royal Court at Jersey ; the privy give defendant his costs, but arrested 
 
 council not only set aside the verdict, the judgment. 
 
§ 296.J 
 
 PROCEEDINGS IN AN ACTION. 
 
 527 
 
 cause is never (seldom) granted.^ To warrant a new trial 
 on the ground that the verdict is against evidence, it must 
 be a very clear case.^ A new trial was granted because the 
 language published did not warrant the innuendoes ; ^ and 
 so where the innuendo was disproved.* 
 
 § 296. In New York, if the plaintiff recovers less than 
 $50 damages, he can recover no more costs or disburse- 
 ments than damages.^ The defendant may, at any time 
 before verdict, offer to allow judgment to be taken against 
 him for a certain stim with costs ; the non-acceptance by 
 plaintiff of such an offer will subject him to costs subse- 
 quent to its service, unless he recover a more favorable 
 judgment.® In England, if the damages in an action for 
 slanderous words are less than forty shillings, the plaintiff, 
 by Statute 21 James I, recovers no more costs than dama- 
 ges ; the statute was held not to apply to actions where 
 the special damages are the gist of the action^ nor to slan- 
 der of title nor to libel.'' 
 
 * Ex parte Baily, 2 Cow. 479; 
 Hurtin v. Hopkins, 9 Johns. 36; and 
 see Hurtert v. Weins, 27 Iowa, 134. 
 It is only on the very strongest grounds 
 a verdict for defendant will be set 
 aside as against evidence on a question 
 of fair comment. (Odger v. Morti- 
 mer, 28 Law Times, N. S. 472 ; Pearson 
 V. Stingo, 7 Vict. Law R. L. 9.) 
 
 2 Root V. King, 7 Cow. 613; 
 affirmed 4 Wend. 113; Paddock v. 
 Salisbury, 2 Cow. 8ii; Kelly v. Par- 
 tington, 4 B. & Ad. 700; Fisher v. 
 Clement, 10 B. & Cr. 472; Blackburn v. 
 Blackburn, 4 Bing. 395 ; i M. & P. 33 ; 
 Broome v. Gosden, i C. B. 728 ; Hunt 
 V. Bennett, 4 E. D. Smith, 657. 
 
 ^ Yrisarri v. Clement, 3 Bing. 432. 
 
 * Johnston v. McDonald, 2 Up. 
 Can. Q. B. R. 209. There cannot be 
 a new trial upon one of several issues. 
 (Morrison v. Harmer, 4 Scott, 53°-) 
 On motion for a new trial on the 
 ground that the verdict is contrary to 
 the evidence, the court is to pass upon 
 the effect of the language published. 
 (Donaghue v. Gaffy, 54 Conn. 257.) 
 
 ^ Code Civ. Pro. § 3328 ; see § 289, 
 ante. 
 
 Code Civ. Pro. § 738. 
 
 ' As to costs in the courts of En- 
 gland, Skelton^/. Seward, i Dowl.411; 
 Skinner v. Shoppee, 6 Bing. N. C. 131; 
 Simpson v. Hurdiss, 2 M. & W. 84; 
 
 5 Dowl. 304; Foster v. Pointer, 8 M. 
 
 6 W. 395 ; I Dowl. 28 ; 9 C. & P. 
 718; Empson v. Fairfax, 3 Nev. & P. 
 385 ; Dadd v. Crease, 2 Cr. & M. 223; 
 
 4 Tyrw. 74; s. C. Dann v. Crease, 2 
 Dowl. 269; Lafone v. Smith, 4 Hurl. 
 & Nor. 158; Savile v. Jardine, 2 H. 
 Black. 531 ; Halford v. Smith, 4 East, 
 567; Richards v. Cohen, i Dowl. 533; 
 Goodall V. Ensell, 3 Dowl. Pr. Cas. 
 743 ; Grenfell v. Pierson, I Dowl. Pr. 
 Cas. 406; Turners. Horton, Willes, 
 438; Andrews v. Thornton, 8 Bing. 
 431 ; Forbes v. Gregory, i Cr. & M. 
 435 ; I Dowl. 679 ; Harrison v. Bush, 
 
 5 E. & B. 344 ; Biddulph v. Chamber- 
 layne, 17 Q. B. 351 ; Kelly v. Parting- 
 ton, 5 B. & Ad. 645 ; 2 Nev. & M. 
 460; Prynne v. Brown, I Dowl. Pr. 
 Cas. N. S. 680; 2 Stark. Sland. 113; 
 
528 
 
 PROCEEDINGS IN AN ACTION. 
 
 [CH. XI. 
 
 § 2g6a. Where a plaintiff in an action for slander or 
 libel has had an opportunity of trying the action upon its 
 merits, and has consented to a nonsuit, and afterwards 
 brings a second action for substantially the same cause, 
 leaving the costs of the former action unpaid, the court 
 may stay the proceedings in the second action until the 
 costs of the first action are paid/ and this, although the 
 second action is in a different court from that in which the 
 first action was brought.^ 
 
 Stat. 58 Geo. Ill, ch 30 ; and by stat- 
 ute 3 and 4 Vict. ch. 24., § 2, on a cer- 
 tificate by the judge that the injury 
 was willful and mahcious, the plain- 
 tiff may recover costs, although the 
 verdict is for less than forty shillings; 
 as to this see Forsdike v. Stone, Law 
 Rep. 3 C. P. 607; and see 30 and 31 
 Vict. ch. 142 ; Ings v. London and So. 
 West. R. R. Law Rep. 4 C. P. 17; 
 Gray v. West, Law Rep. 4 Q. B. 175; 
 Sampson v. Mackay, Id. 643; Mar- 
 shall V. Martin, Law Rep. 5 Q. B. 
 239. In Dicks v. Brooks (15 Ch. Div. 
 41), reference is made to a case of 
 slander or libel where plaintiff had a 
 verdict for one farthing and costs were 
 given to defendant. As to costs in 
 Vermont, see Nichols v. Packard, 16 
 Vt. 147. In Indiana, see Shimer v. 
 Bronnenburg, 18 Ind. 363. In Arkan- 
 sas, Hill V. Patterson, Hemp. 173. 
 
 1 Hoare v. Dickson, 7 C. B. 164; 
 IS Law Jour. N. S. 158, C. P. 
 
 * Prowse V. Loxdale, 3 B. & S. 
 896. After judgment for defendant 
 
 and writ of error by plaintiff, the de- 
 fendant was discharged as a bankrupt; 
 on motion plaintiff was allowed to 
 discontinue without costs. (Labrow 
 V. Worman, 5 Hill, 373, citing Hart v. 
 Storey, i Johns. 143 ; Case v. Belknap, 
 5 Cow. 422 ; Honeywell v. Burns, 8 
 lA 121.) The plaintiff may withdraw 
 a juror. The effect of withdrawing a 
 juror, according to the English prac- 
 tice, is that no new action for the same 
 cause can be maintained. (Strauss v. 
 Francis, 4 F. & F. 939.) 
 
 In Dawkins v. Prince Edwards, &c. 
 (l Q. B. D. 499), the action was for an 
 alleged conspiracy to make false state- 
 ments respecting plaintiff, an army 
 officer, on half pay. On defendant's 
 motion it appearing that the action 
 was for acts done by defendant in per- 
 formance of his duty as a member of 
 a Military Court of Inquiry, the action 
 was stayed as an abuse of the process 
 of the court, and see Castro v. Mur- 
 ray, L. R. 10 Ex. 213. 
 
CHAPTER XII. 
 
 PARTIES. 
 
 Question as to parties anticipated — Action by alien — Out- 
 law — Rebel— Executors or administrators — Married 
 woman — Husband and wife — Partners — General rule 
 as to joinder — Action against husband and wife — ■ 
 Contribution. 
 
 § 297. The questions who may sue and who may be sued, 
 of course, generally depend upon the prior questions of 
 rights and liabilities, and, therefore, to some extent, the 
 question of parties has been anticipated.* Subject to any 
 exceptions which have been or may be mentioned, the 
 rules as to parties which prevail in actions for torts gener- 
 ally apply to the actions for slander and libel.^ 
 
 § 298. It was held that an alien friend, although resid- 
 ing in a foreign country, might maintain an action for a 
 libel published in England.* Where the plaintiff in an 
 action for libel was at the commencement of the action 
 an outlaw, of which the defendant was ignorant until 
 
 1 Ante, %% 115. 119, notes: and see ^ In New York, actions (with a 
 post, note 6, p. 533. The proprietor few exceptions) must be in the name 
 of a newspaper may be sued for what of the real party in interest, therefore 
 appears in his paper without joining an answer that plaintiff is not the real 
 the author of the article as defendant. party in interest, but the action is 
 (Ludwig V. Cramer. 53 Wis. 193.) prosecuted by some one else in plain- 
 Each person injured by the same libel tiffs name, was held to be relevant, 
 has a separate cause of action and (Moody v. Libbey, i Abb. N. C. 154; 
 must sue alone, (Robinett v. McDon- see § 303. post.) 
 
 aid, 65 Cal. 611.) An action for slan- ' Pisani z'. Lawson. 6 Bing. N. C. 
 
 der cannot be maintained against a 90; 8 Dowl. 57; 8 Scott, 182: see 
 
 mutual aid association. (Gilbert v. Burnside v. Matthews, 54 N. Y. 78. 
 Chrystal Fountain Lodge, 4 So. East. 
 Rep. 905 [Ga.].) 
 
 34 
 
53© PARTIES. [CH. XII. 
 
 after notice of trial, the court after the trial stayed the 
 proceedings, but removed the stay on the outlawry being 
 reversed.* In an unreported case in New York (Cum- 
 mings V. Bennett), it being shown that the plaintiff in an 
 action for libel was an unpardoned rebel, the court at 
 special term made an order dismissing the complaint, but 
 the general term reversed the order. In an action for 
 words imputing murder, the court allowed the defendant 
 until the next term to plead, upon the ground that the 
 plaintiff was to be tried for the alleged murder on an in- 
 dictment then pending.** 
 
 § 299. By the common law, actions of tort die with 
 the person, "all private criminal injuries or wrongs, as well 
 as all public crimes, are buried with the offender,"* and 
 this rule applies to actions for slander* and libel, except 
 in those States where a different rule is prescribed by statute. 
 In New York, certain actions of tort, except slander and 
 libel, survive.^ But the death of a plaintiff after a judg- 
 
 1 Somers v. Holt, 8 Dowl. Pr. Cas. 287. At common law, where there is 
 
 506; see Reg. v. Lowe, 8 Ex. 697. In judgment against the defendant, and 
 
 an action for slander of an infant, the he appeals, and after the appeal the 
 
 father having been admitted to sue as defendant dies, the judgment dies 
 
 prockein amy, and afterwards it ap- with him. (Faith v. Carpenter, 35 
 
 pearing that he had taken the benefit Ga. 79.) 
 
 of the insolvent debtor's act, and had " 2 Rev. Stat, of N. Y. 447, §§ i, 2. 
 
 since had no occupation, the court, By statutes in Ohio and Maryland, the 
 
 in the absence of anything to satisfy right of action for slander or libel 
 
 them that no fitter person could be does not abate by death of plaintiff, 
 
 obtained, vacated tne appointment, (Alpin v. Morton, 21 Ohio, N. S. 536.) 
 
 with leave to move to reappoint the Contra, in Massachusetts. (Cummings 
 
 father, or substitute some other per- v. Bird, 115 Mass. 346.) KrA semble, 
 
 son. (Duckett v. Satchwell, i Dowl. Arkansas. In Ireland v. Champneys 
 
 & L. 980; 13 Law J. N. S. Exch. 224; (4 Taunt. 884) an action for libel, after 
 
 8 Jur. 408.) interlocutory judgment and writ of in- 
 
 * Sibson V. Nivin, Barnes' Notes, quiry executed, the plaintiff died ; held 
 224. that final judgment could not be en- 
 
 ' Mansfield, J., Humbly v. Trott, i tered, the suit having abated by the 
 
 Cowp. 375. plaintiffs death. (See Kramer v. 
 
 * I Wm. Saund, 316 a, 6th ed. ; Waymark, Law Rep. I Exch. 243.) 
 Nettleton v. Dinehart, 5 Cush. 543 ; After a judgment for defendant in an 
 Walters v. Nettleton, 5 Cush. 544 ; action for libel, and a reversal of that 
 Walford on Parties, 1392, 1449: and so judgement in the Court of Appeals, 
 in Arkansas and Florida, see Jones v. and new trial ordered, the defendant 
 Townsend, 23 Fla. 355; Pennsylvania, died; held that plaintiff could not re- 
 Struthers v. Peacock, 11 Phil. Rep. vive the action against defendant's 
 
§ 299-] 
 
 PARTIES. 
 
 531 
 
 ment in his favor, and pending an appeal from the judg- 
 ment, does not abate the appeal, and the personal repre- 
 sentatives of the deceased may be substituted as respond- 
 ents.^ By statute in Maine, actions for slander and libel 
 survive, and may be maintained in the name of the execu- 
 tor or administrator.^ An action by partners is not abated 
 by the death of one partner f the death of the plaintiff, in 
 an action for slander of title does not abate the action.* 
 In Wisconsin the right of a woman to maintain an action 
 for slander, commenced by her before marriage, is not 
 abated by the death of her husband or by her divorce from 
 him.* A right of action for slander or libel is not assign- 
 able, and does not pass under a general assignment to a 
 receiver by a judgment creditor or to an assignee in bank- 
 ruptcy.® 
 
 representatives. (Moore v. Bennett, 
 65 Barb. 338; and see Phillips v. 
 Homfray, 24 Chan. Div. 439.) The 
 N. Y. Code Civ. Pro. 764, provides 
 that after verdict, report or decision, 
 in action to recover damages for a 
 personal injury, which includes libel, 
 slander and malicious prosecution 
 (same Code, § 3343), the action shall 
 not abate by the death of a party. 
 (See Smith v. Lynch, 12 N. Y. Civ. 
 Pro. Rep. 348; Jie Clark, Id. 383; 
 Comstock V. Dodge, 43 How. Pr. R. 
 97 ; Atlantic Dock Co. v. The Mayor, 
 53 N. Y. 64; Spooner v. Keeler, 51 
 N. Y. 527 ; Corbett v. 23d St. R. R, 
 Co. 1 14 N. Y. 579); and as to stipu- 
 lating not to insist upon death as 
 abating the action ; (Cox 7'. N. Y. Cent. 
 R. R., 63 N. Y. 420; Ames v. Web- 
 ber, 10 Wend. 376; II Id. 186; Grif- 
 fith V. Williams, i Cromp. & J. 47; 
 Palmer v. Cohen, 2 B. & Ad. 966; ante, 
 note I, p. 525.) 
 
 * This was done in Sanford v. 
 Bennett, 24 N. Y. 20. If judgment for 
 plaintiff is reversed, after death of 
 plaintiff, no new trial will be ordered. 
 (Spooner v. Keeler, 51 N. Y. 528; and 
 as to death of plaintiff,, see Miller v. 
 Gunn, 7 How. Pr. R. I ^9. 
 
 2 Nutting V. Goodridge, 46 Maine, 
 82. In Iowa, by statute, an action of 
 
 libel is not abated by the death 
 of the defendant. (Carson v. Mc- 
 Fadden, 10 Iowa [2 With.], 91.) 
 Death of a defendant after an appeal, 
 held to abate the appeal. (Long v. 
 Hitchcock, 3 Hun, 274.) If after ver- 
 dict and before judgment the defend- 
 ant is adjudged bankrupt, the plaintiff 
 may, nevertheless, continue the action. 
 (Zimmer v. Schleehauf, 115 Mass. 
 
 53-) 
 
 ^ Shale V. Swartz, 35 Hun, 622. 
 
 " Hatchard v. Miege, 18 Q. B. D. 
 771; 36 Alb. L. J. 90, 132. The 
 action is for injury to property. The 
 right of action for special damage to 
 property always survives. (Finley v. 
 Chirney, 20 Q, B. D, 494.) 
 
 ' Gibson v. Gibson, 46 Wis. 449. 
 
 « Hudson V. Plets, n Paige, 180; 
 and see Dowling v. Browne, 4 Irish 
 Law Rep. 265 ; Benson v. Flowers, 
 Sir W. Jones, 215; Howard v. Crow- 
 ther, 8 M. & W. 601; Drake v. 
 Beckham, 1 1 M. & W. 315; overruling 
 S. C. 8 M. & W. 846. In Indiana a 
 cause of action for slander was held to 
 constitute the plaintiff a creditor of 
 the defendant, so as to render a con- 
 veyance made to defeat any judgment 
 that might be obtained for such cause 
 of action fraudulent. (Shean v. Shay, 
 42 Ind. 375.) 
 
532 
 
 PARTIES. 
 
 [CH. XII. 
 
 § 300. By'statute in New York, Michigan, and else- 
 where, a married woman may sue alone and without her 
 husband, for slander or libel ;^ and so, under certain con- 
 ditions, in Pennsylvania,^ and in Scotland.* It has been 
 held that the New York statute does not authorize a suit 
 for slander by a wife against her husband.* And it was 
 held in Pennsylvania, that a married woman could not 
 maintain an action for slander published at the instance 
 of her husband.® 
 
 § 301. Independently of any statutory provision for 
 language actionable per se, published concerning a mar- 
 ried woman, or concerning a woman who afterwards mar- 
 ries, the action should be brought in the name of the 
 husband and wife.^ In such a case the damage is to both 
 plaintiffs, and the right of action in case of the death of 
 
 ' Laws of N. Y. 1S60, ch. 90; Id. 
 1862, ch. 172; Leonard v. Pope, 27 
 Mich. 145 ; Chicago R. R. Co. v. Dunn, 
 52 111. 260; Ha\v\'er v. Hawver. 78 
 111. 412. And after an order for pro- 
 tection. (Ramsden v. Brearly, Law- 
 Rep. 10 Q. B. 147; ante, *> 153.) A 
 statute of Delaware (17 Laws. c. 611), 
 empowered a married woman, living 
 apart from her husband to sue in her 
 own name for personal wrongs, held 
 not to empower her to maintain an 
 action for a libel published before the 
 passage of that act. (Woods v. Ver- 
 non, 12 Atlantic Rep. 656 [Del.].) 
 
 2 Rangier v. Hummell, 37 Penn. 
 St. R. 130, In Pennsylvania, by 
 statute, a husband is not liable for the 
 tort of his wife. (Kuklence v. Vocht, 
 119 Penn St. 365.) 
 
 ^ Ewing V. CuUen, Boyd Kinnear's 
 Dig. H. L. Cas. 188. 
 
 * Freethy v. Freethy, 42 Barb. 641 ; 
 Alward v. Alward, 1 5 N, Y Civ Pro, 
 Rep. 151. It is doubtful in Michigan 
 •whether or not a wife can sue her 
 husband. Champlin. J., in Smith v. 
 Smith (41 No. West. Rep. 500), says : 
 " We are not prepared to decide that 
 a married woman may not maintain 
 an action of hbel against her hus- 
 band." As to the right of a wife to 
 protection against slander by her hus- 
 
 band, see Deut. xxii, 13, 22. A wife 
 cannot institute criminal proceedings 
 against her husband for libel. [Ex 
 parte, Reg. v. Ld. Mayor of London, 
 16 Q. B. D. 772.) 
 
 * Tibbs V. Brown, 2 Grant's Cas. 
 (Penn.) 39. 
 
 ^ I Stark. Slan. 349; EbersoU v. 
 Krug, 3 Binney, 528; Newton v. 
 Rowe, 8 Sc. N. R. 26; Dengate v. 
 Gardiner, 4 M. & W. 5; Grove v. 
 Hart, Sayre, 33 ; Baldwin v. Flower, 3 
 Mod. 120; Long V. Long, 4 Barr. 29; 
 Gibson v. Gibson, 43 Wis. 23. But 
 in an action by husband and wife, 
 counts for publications before plaint- 
 iff's marriage cannot be joined with 
 counts for publications, subsequent to 
 the marriage. (Hemming v. Elliott, 5 
 Cent. Rep. 492; S. C. Hemming v. 
 Elliott, 66 Md. 197.) A husband is 
 not liable criminally for a libel by his 
 wife in which he was in no wise con- 
 cerned. (Mills V. The State, 18 Neb. 
 575.) In Kansas he is not liable 
 civilly under such circumstances. 
 (Norris v Corkill, 32 Kans. 409 ) For 
 words of a married woman imputing 
 unchastity before marriage, the hus- 
 band, under the Code of Maryland, 
 must sue alone. (Hemming v. Elliott, 
 66 Md. 197.) 
 
302.J PARTIES. 
 
 533 
 
 the husband survives to the wife ; but if the wife dies 
 before verdict, the action abates/ For language concern- 
 ing a married woman, but actionable only because of 
 special damage to the husband, the husband must sue 
 alone.* These rules are not affected by the fact that the 
 husband and wife live apart under a deed of separation,^ 
 Where an action was brought by a wife living apart from 
 her husband under articles of separation, in the names of 
 her husband and herself, for defamatory words spoken of 
 her, it was held that a release of the cause of action exe- 
 cuted by the husband was a bar to the suit, although in 
 the articles of separation the husband had covenanted that 
 suits might be brought in the joint names of himself and 
 his wife, for any injury to the person or character of the 
 wife.* For a charge of a joint larceny by husband and wife, 
 semble the husband should sue alone, because the wife is 
 prima facie not liable criminally for a larceny committed 
 in the presence of her husband.^ 
 
 § 302. Where the language published concerns both 
 husband and wife, the husband may sue alone for the 
 injury to him, and the husband and wife may sue jointly 
 for the injury to the wife.^ In an action by husband and 
 
 ^ Stroop V. Swarts, 12 S. & R. 76; ^ Beach v. Ranney, 2 Hill, 309. 
 
 and see Smith v. Hixon, 3 T, R. 627. * Beach v. Beach, 2 Hill, 260. 
 
 Case for words by husband and wife " Bash v. Sommer, 20 Penn. St. 
 
 against defendants, husband and wife; R, 159, And where the defendant 
 
 pending the action the male defendant charged plaintiff's wife with keeping a 
 
 died, and his widow remarried. The bawdy-house, it was held the husband 
 
 court inclined that the writ abated, might sue alone, as the words charged 
 
 but took time to advise. (White v. an indictable offense, for which, if 
 
 Harwood, Style, 138; Viner's Abr. true, the husband was liable to be 
 
 Baron and Feme, A, a.) punished. (Coward v. Wellington, 7 
 
 ''■ Williams v. Holdredge, 22 Barb. C. & P, 531.) 
 
 396; Gazynski v. Colburn, 11 Cush. * Gazynski v. Colburn, 11 Cush. 
 
 10; Grove v. Hart, Bull. N. P. 7 ; 10; Bash v. Sommer, 20 Penn. St R. 
 
 Savile ■!/. Sweeney, i Nev. & M. 254; 159; Emington v. Gardiner, i Selw. 
 
 4B. & Adol. 514; Horton v. Byles, i N. P. 301: Smith v. Hobson, Style, 
 
 Sid. 387 ; Long z'. Long, 4 Barr, 29; 112; Ebersoll ■z', Krug, 3 Binney, 528; 
 
 1 Stark. Slan. 350; Bash v. Sommer, Hart v. Crow, 7 Blackf, 351; ante, 
 20 Penn. St. R. 159; Coleman v. note 2, p. 99. The court will not 
 Harcourt i Lev. 140 ; Klein v. Hentz, order such actions to be consolidated. 
 
 2 Duer, 633. (Anon., Selwyn N. P. 301 ; Swithin v. 
 
534 
 
 PARTIES. 
 
 [CH, XTI. 
 
 wife, a plea that the plaintiffs were not man and wife at 
 the time of the commencement of the action is a good 
 plea in bar.' But it is not a defense to an action by hus- 
 band and wife that the plaintiffs were not married at the 
 time of the publication complained of.** Where the hus- 
 band and wife are improperly united as plaintiffs, and 
 there is no demurrer, the error is cured by verdict* or by 
 omitting to demur.* 
 
 § 303. For language published concerning partners in 
 the w^ay of their trade, all the partners may join; ® but if 
 the language concerns and injuriously affects either partner 
 
 Vincent, 2 Wils. 227 ; Subley v. Mott, 
 Bull. N. P. 5.) In an action by a 
 husband for words concerning his wife, 
 in the past tense, a demurrer was 
 allowed, because it did not appear that 
 the words were published since the 
 plaintiff's marriage. (Ray v. Wake- 
 field, 1 Australian Jurist Rep. 162.) 
 Now, by statute 1 5 & 16 Vict. ch. 40, 
 in an action by husband and wife for 
 injury to the wife, in respect of which 
 she is necessarily joined as a coplaint- 
 iff, the husband may add thereto 
 claims in his own right, and separate 
 actions brought in respect of such 
 claims may be consolidated. In case 
 of the death of either plaintiff, such 
 suit, so far as relates to the causes of 
 action, if any, which do not survive, 
 shall abate. 
 
 ' Chantler v. Lindsey, 16 M. & W. 
 82 ; 4 Dowl. & L. 339. 
 
 ° Spencer v. McMasters, 16 111. 
 405; and see Benaway v. Conyne, 3 
 Chand. 214. But in an action by 
 husband and wife, for words imputing 
 adultery to the wife, it was held neces- 
 sary to aver that they were husband 
 and wife at the time of the publication. 
 (Ryan v. Madden, 12 Vt. 51.) 
 
 " Russel V. Come, i Salk. 119; 2 
 Ld. Raym. 1031 ; Todd v. Redford, 
 II Mod. 264; Lewis v. Babcock, 18 
 Johns. 443. 
 
 * Code of Civ. Pro. N. Y. § 499. 
 This defect cannot be insisted upon 
 under a demurrer that the complaint 
 does not state a cause of action. 
 
 (Eldridge v. Bell, 12 How. Pr. R. 
 547.) No action can be maintained 
 for 'the price of libelous pictures. 
 (Fores v. Jones, 4 Esp. 97.) A printer 
 cannot recover for printing a libel. 
 (Poplett V. Stockdale, Ry. & Moo. 
 337 ; Bull V. Chapman, 8 Ex. 444.) 
 If a printer undertakes to print a book, 
 and as the work proceeds finds the 
 matter defamatory, he may decline to 
 continue the work, and can recover 
 for the part of the work which is not 
 defamatory. (Clay v. Yates, I Hurl. 
 & N. 73.') Nor could an action be 
 maintained for breach of a contract to 
 furnish manuscript of defamatory 
 . matter. (Gale v. Leckie, 2 Stark. R. 
 107.) Or for pirating a libelous book. 
 (Stockdale -v. Onwhyn, 5 B. & C. 173; 
 see Campbell's Lives of the Chancel- 
 lors, X, 255, reviewing the decision 
 of Lord Eldon, who refused to protect 
 the copyright of alleged libelous works; 
 see § 183, aftie.) 
 
 ^ Cook V. Batchelor, 3 B. &. P. 
 150; 2 East, 426; LeFanu w. Malcolm- 
 son, I Ho. of Lds. Cas. 637; 13 Law 
 Times, 61 ; Forster v. Lawson, 3 Bing. 
 452; II Moore, 360; Brownl. Rediv. 
 81 : Haythorn v. Lawson, 3 Car. & P. 
 196; Pechell V. Watson, 8 M. & W. 
 691; cited 6 H. & N. 133; 2 Wm. 
 Saund. 117, 6th ed.; see note to § 118, 
 and § 185, ante. In defamatory lan- 
 guage of coproprietors of a news- 
 paper, held a joint action would lie, 
 without special damages, (Russell v. 
 Webster, 23 Weekly Rep. 59.) 
 
304-] 
 
 PARTIES. 
 
 535 
 
 individually, he may sue alone.^ The general rule is, that 
 where the injury is several, each person injured must sue 
 separately and alone ; as if one say, " A and B. murdered 
 C," or " Either A. or B. murdered C," A. and B. cannot 
 maintain a joint action.^ 
 
 § 304. For a publication by a married woman of de- 
 famatory language, before or during coverture, the action 
 must, in the absence of any statute to the contrary, be 
 against her and her husband.^ A husband and wife may 
 
 1 Taylor v. Church, i E. D. Smith, 
 279; Harrison v. Bevington, 8 Car. & 
 P. 708 ; Robinson v. Marchant, 7 Q. 
 B. 918 ; Fidler v. Delavan, 20 Wend. 
 57 ; Longman v. Pole, i M. & M. 223 ; 
 Tail V. Culbertson. 57 Barb. 9; Noon- 
 an V. Orton. 32 Wis. 106; Rosenwald 
 V. Hummerstein, 12 Daly, 377; Lud- 
 wig V. Cramer, 53 Wis. 193; and as to 
 partners, see Atlantic Glass Co. v. 
 Paulk, 83 Ala. 404. 
 
 * Smith V. Cooker, Cro. Car. 512; 
 10 Mod. 198. As to one action 
 against several for one libel, see Har- 
 ris V. Huntington, 2 Tyler, 147 ; 
 Watts V. Fraser, 7 C. & P. 369; Mil- 
 Jer V. Butler. 6 Cush. 71 ; Glass v. 
 Stewart. 10 S. & R. 222; ante, note i, 
 p. 529. Under the rule of procedure 
 in the courts of England, relating to 
 actions by persons not jointly interest- 
 ed, several persons although not par- 
 ties may unite in one action and hence 
 their damages separately assessed. 
 (See Booth v. Briscoe, 2 Q. B. D. 296.) 
 And where after the commencement of 
 an action against the publisher of a 
 newspaper, it appeared that one G. 
 and not the person sued was sole 
 proprietor of the newspaper in ques- 
 tion, the court, on plaintiff's motion, 
 ordered G. to be brought in as a de- 
 fendant. (Edwards v. Lowther, 45 L. 
 J. 417, C. L.) This was under a rule 
 of the English courts, and applicable 
 only to those courts. 
 
 ' Head v. Briscoe, 5 Car. & P. 
 484; and see ante, note 2, p. 99; 
 Swithin V. Vincent, 2 Wils. 227 ; Bur- 
 cher V. Orchard, Style, 349; 2 Wm. 
 Saund. 117 d, 6th ed.; McQueen v. 
 
 Fulgham, 27 Texas, 463; Hanson v. 
 Hill, 53 Barb. 238 ; Hawk v, Harman, 
 S Binney, 43; Horton v. Payne, 27 
 How. Pr. R. 374 ; Baker v. Young, 44 
 111. 42. 
 
 In Michigan the husband is not 
 liable for a tort (defamation) by his 
 wife, but he may be joined as a de- 
 fendant. (Burt V. McBain, 29 Mich. 
 260.) And so in Massachusetts (Mc- 
 Carty v. DeBest, 120 Mass. 89); but 
 the Ohio act of i86i, concerning the 
 rights of married women, has not al- 
 tered the rule that the husband is 
 liable for the torts of the wife. 
 (Fowler v. Chichester, 26 Ohio St. R. 
 9.) And in England, by statute 20 & 
 21 Vict. ch. 85, a woman judicially 
 separated from her husband is consid- 
 ered a feme sole for the purposes of 
 contracts, wrongs, and injuries, and 
 suing and being sued in civil proceed- 
 ings; and her husband is not liable 
 for her contract or wrongful act or 
 omission. (Statute 45 and 46 Vict, 
 ch. 75.) Married woman's property 
 act of 1882, provided for a married 
 woman being sued alone, yet in Eng- 
 land a husband may or must still be 
 joined as a defendant in an action for 
 a libel published by his wife. (Scro- 
 ker V. Kuttenburg, 17 Q. B. D. 177, 
 commented on 5 Gibson's Law Notes, 
 270) ; and such is the law in Pennsyl- 
 vania. (Franklin's Appeal.4 Cent.Rep. 
 323 ; Kuklence v. Vocht. 1 19 Penn. St. 
 365, and in Ohio Fowler v. Chiches- 
 ter, 26 Ohio St. 9.). Ch J. McAdam, 
 in the City Court of New York, so 
 early as May, 1884, in the case of 
 McNicholl V. Kane, 2 City Court Rep. 
 
536 
 
 PARTIES. 
 
 [CH. XIU 
 
 be jointly sued for a joint publication of written defama- 
 tory matter.^ 
 
 § 305. In certain cases the plaintiff is entitled to elect 
 de melioribus damnis (§ 11 9),^ or as to which of several 
 parties he will sue, but neither in such cases, nor in any 
 other case can there be any contribution between the par- 
 ties, it being a general rule of law that there is no contri- 
 bution between wrongdoers.' 
 
 57, held that in an action for slander 
 against a married woman the non- 
 joinder of her husband as a defendant 
 was a complete defense, and that view 
 has been sustained by the Court of 
 Appeals. (Fitzgerald v. Quann, 109 
 N. Y. 441; II Cent. Rep, 245; 16 N. 
 Y. St. Rep. 395 ; affirming 33 Hun, 
 652; and Austin v. Bacon, 49 Hun, 
 386; 19 N. Y. St. Rep. 662; the case 
 of Mangam v. Peck, 25 \yeek. 
 Dig. 504; Landez/. Smith, 6 N. Y. Civ. 
 Pro. Rep. 5 1 , to the contrary overruled. 
 
 1 Catterall v. Kenyon, 3 Q. B. 310; 
 Keyworth v. Hill, 3 B. & Aid. 685. 
 
 * Where one publication is made 
 the subject of two counts, with different 
 innuendoes, and damages have been 
 gfiven separately on each count, both 
 damages cannot be retained, but plain- 
 tiff may elect which he will retain. 
 (Langdon v. Syme, 3 Vict. L. R. L. 
 
 30) 
 
 ' See Merryweather v. Nixon, 8 T. 
 R. 186, and notes thereto, 2 Smith's 
 Lead. Cas. and in addition Moscati v. 
 Lawson, 7 C. & P. 32: Andrews v. 
 Murray, 33 Barb. 334; citing Miller v. 
 Fenton, 11 Paige, 18; Coventry v. 
 Barton, 17 Johns. 142; Peck z/ Ellis, 
 2 Johns. Ch. 131 ; Pearson v. Skelton, 
 I M. & W. 504; Hunt V. Lane, 9 Ind. 
 248 ; Minnis v. Johnson, i Duvall 
 (Ky.) 171 ; Silvers v. Nerdlinger, 30 
 Ind. 52. No contract will be implied 
 to indemnify a party against the con- 
 sequences of an illegal act, e g., the 
 publication of a libel. (Shackell v. 
 Rosier, 3 Sc. 59; 2 Bing. N. C. 634; 
 
 and see Armstrong v. Bartle, 5 
 LeRevue Legale, Quebec, Canada.) 
 And semble, the proprietor of a news- 
 paper convicted and fined for the pub- 
 lication of a libel in his paper, which 
 libel was inserted without his knowl- 
 edge or consent by the editor, has no 
 right of action against the editor for 
 the damages sustained through such 
 conviction. (Colburn v. Patmore, i C. 
 M. & R. 83 ; 4 Tyrw. 677 ; Moscati v. 
 Lawson, 7 C. & P. 32.) One cannot 
 take security to be indemnified against 
 the consequences of an illegal act to 
 be done. (Domat Civ. Law, bk. iii, 
 tit 4, § I, div. viii; and the same book 
 and title, § 5, div. i; and see Howe v. 
 Buffalo & Erie R. R. 38 Barb. 124; 
 St. John V. St. John's Church, 15 
 Barb. 346.) A promise to indemnify 
 one for publishing a libel is void. (Ar- 
 nold V. Clifford, 2 Sumner, 238 ; At- 
 kins V. Johnson, 43 Vt. 78.) But an 
 indemnity against the consequences of 
 an illegal act already done is binding. 
 (Griffiths V. Hardenburgh, 41 N. Y. 
 469, citing Stone v. Hooker, 9 Cow. 
 154; Doty V. Wilson, 14 Johns. 379; 
 Kneeland v. Rogers, 2 Hall, 579) 
 Stipulation by vendee of newspaper to 
 pay "all of the outstanding liabilities " 
 of the paper, does not include dama- 
 ges subsequently reco\ered against 
 the vendor in an action for a libel 
 in said newspaper, in an action pend- 
 ing when the stipulation was made. 
 (Perrit z/. King, 30 La. Ann. 1368; 13 
 Am. Rep. 240 ) 
 
CHAPTER XIII. 
 
 PLEADING.— THE COMPLAINT. 
 
 General requisites of a complaint — Complaint for language 
 concerning a person only — Inducement — Colloquium — 
 Publication — Matter published — Innuendo — Special 
 damage — Several counts — Supplemental complaint} 
 
 § 306. The complaint corresponds to the declaration in 
 the common-law system of pleading. Its general requi- 
 sites are that it must state (i) the name of the court in 
 which the action is pending; (2) the names of the parties ; 
 (3) the county in which it is desired the issues shall be 
 tried; (4) the facts which constitute the cause of action; 
 (5) a demand of relief. It must be subscribed by the 
 plaintiff, or his attorney, and may, at the option of the 
 plaintiff, be verified. Of these several requisites we pro- 
 pose to consider in detail only the fourth — the statement 
 of the facts which constitute a cause of action.*^ 
 
 § 307. The statement of a cause of action must neces- 
 sarily differ more or less according to the difference in the 
 state of facts of each particular case. But there are cer- 
 tain allegations essential in every case to the sufficiency of 
 such a statement; we shall show what are these allegations, 
 and endeavor to explain the rules by which their suf- 
 ficiency may be tested. We premise by observing that we 
 address ourselves exclusively to the statement of a cause 
 
 ' Complaint for slander of title, see because a verdict in an action for slan- 
 
 ante, page 291, n. 2. der (Bloss v. Tobey, 2 Pick. 320) was 
 
 2 William Cullen Bryant quitted set aside on account of a defect in the 
 
 his profession of the law in disgust complaint drawn by him. 
 
538 PLEADING. [CH. XIII. 
 
 of action for slander or libel concerning the person. Such 
 a statement may be conveniently considered under the fol- 
 lowing heads: (i) The inducement ;^ (2) The colloquium ; 
 (3) The act of publication ; (4) The statement of the de- 
 famatory matter published ; (5) The innuendoes ; (6) The 
 damages. 
 
 § 308. We attempted, in a previous chapter (Ch.vii), to 
 explain (i) that the actionable quality of language was 
 dependent upon its construction, and (2) how the con- 
 struction may be affected by a variety of extrinsic circum- 
 stances. It is the office of the inducement to narrate the 
 extrinsic circumstances which, coupled with the language 
 published, affects its construction and renders it actionable ; 
 where standing alone and not thus explained, the language 
 would appear either not to concern the plaintiff, or if con. 
 cerning him not to affect him injuriously.** This being the 
 office of the inducement, it follows that if the language 
 published does not naturally and per se refer to the plain- 
 tiff, nor convey the meaning the plaintiff contends for, or 
 if it is ambiguous or equivocal, and requires explanation 
 by some extrinsic matter to show its relation to the plain- 
 tiff, and make it actionable, the complaint must allege, by 
 way of inducement, the existence of such extrinsic matter' 
 
 1 Including a panegyric upon plain- Penn. St. R. 273 ; Galloway v. Court- 
 tiff's character, as to which see post, ney, 10 Rich. Law [S. Car.] 414; The 
 note 3, p. 543. State -u. Neese, 2 Tavl. 270; Cannon 
 
 2 "Inducement is the statement of v. Phillips, 2 Sneed [tenn.l 185 ; Ed- 
 the facts out of which the charge gerly v. Swain, 32 N. Hamp. 478; 
 arises, or which are necessary or use- Smith v. Gafford, 31 Ala. 54; Lump- 
 ful to make the charge intelligible.'' kins v. Justice, i Smith [Ind.] 322.) 
 (Tindal, Ch. J., Taverner v. Little, 5 Where the language is claimed to be 
 Bing. N. C. 678; ante, \ 129.) ironical, it must be so alleged in the 
 
 3 Inducement is necessary where inducement. (Boydell v. Jones, 4 M. 
 the language does not naturally and & W. 446; 7 Dowl. Pr. Cas. 210.) In 
 per se convey the meaning which the slander the words stated in the dec- 
 plaintiff would attribute to it, and laration were, "Thou set fire to those 
 where a reference to some extrinsic buildings, and thou wilt never be easy 
 fact is necessary to explain it. (Dor- till thou hast told it. " There was no 
 sey V. Whipps, 8 Gill, 457 ; Fry v. introductory averment that the houses 
 Bennett, 5 Sandf. 54; Hall v. Blandy, had been feloniously burned. A rule 
 I Y. & J. 480; Gosling V. Morgan, 32 for arresting the judgment was made 
 
309-] 
 
 THE COMPLAINT. 
 
 539 
 
 (§ 310, />osi); but where the language published is action- 
 able per se, where there is no ambiguity, either in respect 
 to the person whom the language concerns, or in respect to 
 the actionable quality of the language, that in such cases 
 no inducement is necessary.^ Hence it will be perceived 
 that inducement is not, in every case, essential to the suf- 
 ficiency of a statement of a cause of action, but in those 
 cases only where, without the facts contained in the induce- 
 ment, the publication would not naturally and per se refer 
 to the plaintiff nor convey the meaning the plaintiff con- 
 tends for, nor be construed as actionable.^ 
 
 § 309. In England, the common-law procedure act has 
 abrogated the necessity for any matter of inducement 
 in order to show the defamatory meaning of the language 
 
 absolute. (Rigby v. Heron, i Jur. 
 538.) A complaint on a charge that 
 plaintiff had carried away a deposition 
 taken before a justice of the peace, 
 must show that the deposition was 
 taken in a proceeding in which the jus- 
 tice had jurisdiction, otherwise carry- 
 ing away the deposition would not be 
 any criminal offense. (Ayes v. Cov- 
 ill, 18 Barb. 260.) Where, in an action 
 for slander brought by an unmarried 
 female, the plaintiff's petition alleged 
 that the defendant had charged her 
 with having given birth to a child, 
 without any averments showing that 
 the hearers understood that the lan- 
 guage used conveyed a charge of bas- 
 tardy, or imputed a want of chastity 
 to the plaintiff, to which petition the 
 defendant demurred, it was held that 
 the demurrer should be sustained. 
 (Wilson V. Beighler, 4 Iowa, 427.) A 
 charge that plaintiff had "trapped 
 three foxes," was, by the aid of in- 
 ducement, made actionable. (Foul- 
 ger V. Newcombe, Law Rep. 2 Ex. 
 
 327) 
 
 ' No inducement is necessary 
 where (i) the language is prima facie 
 actionable /«r se. (Dorsey v. Whipps, 
 & Gill. 457; McGough v. Rhodes, 7 
 Eng. [Ark,] 625.) (2) Where the lan- 
 guage, in its ordinary acceptation, im- 
 
 ports a charge of crime. (Robin- 
 son V. Keyser, 2 Fost. [N. H.] 323; 
 Bicker t/. Potts, 12 Penn. St. R. 200; 
 and see Smith v. Hamilton, 10 Rich. 
 Law [S. Car.] 44; Goodrich v. Davis, 
 1 1 Mete. 473 ; Connick v. Wilson, 2 
 Kerr. [New Bruns.] 617.) As if the 
 words impute a charge that the plain- 
 tiff burnt his barn with intent to de- 
 fraud 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. 327.) And gen- 
 erally it is not necessary to aver facts 
 implied by the alleged defamatory lan- 
 guage. (Royce v. Maloney, 58 Vt. 
 437.) If one say of J. S. : " He hath 
 killed his cook, " it need not be aver- 
 red that J. S. had any cook. (Holt 
 V. Taylor, Sty. 66; and see Billing 
 V. Knight, 2 Bulst. 42.) ''Thou hast 
 forged the will of R."— it need not be 
 averred that R. was dead, it is implied. 
 (Dorrel v. Jay, Yent. 149 ) " He hath 
 robbed the Hockly butcher," it need 
 not be averred there is any Hockly 
 butcher, for if there is not, the fault is 
 the greater. (Smith v. Williams, 
 Comb. 247; see post, § 315, and ante, 
 note I. p I20.) 
 
 2 Smith V. Ottendorfer, 3 N. Y. St. 
 Rep. 187. 
 
540 PLEADING. [CH. XIII. 
 
 published, and enacts that the plaintiff may aver that the 
 matter complained of was used in a defamatory sense, 
 specifyihg such defamatory sense, without any prefatory 
 averment to show how such matter was used in that sense, 
 and such averment shall be put in issue by the denial of 
 the alleged libel or slander ; and where the matter set forth, 
 with or without the alleged meaning, shows a cause of ac- 
 tion, the declaration shall be sufficient.^ 
 
 § 310. In New York the Code of Civil Procedure of 
 that State dispenses with the necessity of any inducement 
 to show that the plaintiff is the person referred to (§ 316, 
 posf) by providing that " It. is not necessary in an action 
 for libel or slander to state in the complaint any extrinsic 
 fact for the purpose of showing the application to the 
 plaintiff of the defamatory matter, but the plaintiff may 
 state generally that it was published or spoken concerning 
 him, and if that allegation is controverted the plaintiff 
 must establish it on the trial." '^ {Post, §§ 316, 323, 
 
 * 15 & 16 Vict. ch. 76; Finlason's Mr. Bowers (plaintift), formerly of the 
 Com. Law Proc. Act. 137; see Hem- Lutheran Church (innuendo that plain- 
 ming V. Gasson, 27 Law jour. Q. B. tiff was falsely pretending to be a Lu- 
 252; Cox z/. Cooper, 9 Law Times. N. theran minister), money for funeral 
 S. 329; Brembridge v. Latimer, 12 services, will confer a favor by hand- 
 Weelily Rep. 878 ; Watkin z/. Hall Law ing their names to the editor." On 
 Rep. 4 Q. B. 42. The effect of the demurrer, held that the words, with 
 decisions appears to be that a dec- the innuendoes, were actionable, but 
 laratiun concerning one count with the action would fail if the jury found 
 an innuendo, shall be taken as if there the innuendo was not justified, 
 were two counts, one with the innu- (Bowers v. Hutchinson, i Oldbright 
 endo and one without it. In New [Nova Scotiaj, 679.) In a declaration 
 Jersey no colloquium is necessary; for libel imputing to plaintiff, an attor- 
 the pleader may attach any meaning ney, dishonest acts in reference to a 
 he pleases to the words published, and matter not in the way of his profes- 
 it is left to the jury to say whether the sion, with an innuendo that the Ian- 
 meaning is justified by the words and guage was of plaintiff in his character 
 by the evidence. (Hand v. Winton, of attorney, on demurrer the declara- 
 38 N. J. 122.) And so in Canada. tion was held to disclose a cause of 
 (Fitch V. Lemmon, 27 Up Can. Q. B. action, but that if the plaintiff failed on 
 273.) And where the declaration the trial to support the innuendo.hisac- 
 alleged the publication by defendant tion would fail, (Warton v. Gearing, 
 concerning plaintiff of the words, i Vict. Law Rep. L. 122.) 
 "Notice — All persons who have paid ^ Code of Civ. Pro. § 535. 
 
?§3".3i2.J 
 
 THE COMPLAINT. 
 
 541 
 
 375fl.) This statute merely dispenses with the induce- 
 ment to show the application of the language to the 
 plaintiff; it does not dispense with the necessity of aver- 
 ments of extrinsic facts to show the meaning of ambig- 
 uous language. And in New York, where the language 
 published is not defamatory on its face, and becomes so 
 only by reference to extrinsic facts, the existence of those 
 facts must be alleged in the complaint.^ 
 
 § 311. The matter of inducement, when necessary, is 
 usually inserted prior to the statement of the matter pub- 
 lished ; but this, although the more orderly arrangement, 
 is not essential ; so that the necessary inducement is to be 
 found in the complaint, its location seems immaterial,^ 
 
 § 312. Where there are several counts in the com- 
 plaint, each count must be prefaced with appropriate mat- 
 ter of inducement ; but where the inducement to one 
 
 1 Pike V. Van Wormer, 5 How. 
 Pr. Rep. 171 ; 6 Id. gg\ Dias v. Short, 
 16 Id. 322; Fry z/ Bennett, 5 Sandf. 
 54; Blaisdell v. Raymond. 4 .■^bb. Pr. 
 Rep. 446 ; Wallace' w. Bennett, i Abb. 
 N. C. 478; Hallock v. Miller, 2 Barb. 
 630; Carroll v. White, 33 Barb. 615; 
 Bullock V. Koon, 9 Cow. 30; and in 
 Massachusetts, the law of 1852, ch. 
 312, has not dispensed with the neces- 
 sity of averring the facts which render 
 actionable words not actionable per 
 se. (Tebbetfz/ Coding, 9 Gray, 254; 
 and see Sheridan v. Sheridan, 5 Atl. 
 494 [Vt ] ; Ramscar v. Gerry, 16 N. Y. 
 St. Rep. 789.) Defendants posted 
 upon plaintiff's premises bo?rds and 
 cards inscribed : " Waiting for Tom 
 Gault's house-rent." for "several 
 months due." The declaration 
 charged defendants with meaning 
 thereby to charge plaintiff with fraud- 
 ulently withholding said rent. Held, 
 the innuendo could not enlarge the real 
 sense of the words, but if under the 
 circumstances stated, what was al- 
 leged could be reasonably imputed to 
 them, then the allegation of such 
 
 meaning was strictly its proper func- 
 tion (Gault V Babbitt, i Bradw. [111.] 
 130.) An allegation that the purpose 
 of the pub ication in applying the term 
 '' Crank " to plaintiff was •' to impute to 
 him sundry qualities, aims, and meth- 
 ods highly inconsistent with his useful- 
 ness as a lawyer, or as an author, " is not 
 an appropriate averment or innuendo 
 that the word was used in a defama- 
 tory sense. (Walker v. Tribune Co. 29 
 Ired. Rep. 827.) 
 
 Where the language is not action- 
 able upon its face inducement is nec- 
 essary, as where the words were, 
 " The investigations are not yet ended, 
 but the chief owners believe they have 
 been outrageously swindled." (Wil- 
 son V. Fitch, 41 Cal 363.) 
 
 No inducement necessary where 
 the charge was that plaintiff had sold 
 diseased meat for food. (Blumhardt 
 V. Rohr, 17 Atl. Rep. 266.) 
 
 2 Brittain v. Allen, 2 Dev. 120; 3 
 Id. 167; Newell v. How, 31 Minn, 
 235 ; but see what is said Caldwell v. 
 Raymond, 2 Abb. Pr. Rep. 193. 
 
542 PLEADING. [CH. XIII, 
 
 count is applicable to a subsequent count, it may be ap- 
 plied to such subsequent count by reference thereto and 
 without repeating it.^ In slander, the first count charged 
 a trial, that plaintiff gave evidence, and that the words 
 were spoken of and concerning the trial, &c.; and the 
 third count charged that the words therein set forth were 
 published of the plaintiff, and of and concerning the action 
 tried as aforesaid, and of and concerning the evidence of 
 the plaintiff given on the said trial as aforesaid. Held, 
 that the third count was sufficient.^ 
 
 § 312 «. Where inducement is necessary, it should be 
 stated in a traversable form.* Thus, where it was alleged, 
 by way of inducement, that reports were in circulation 
 about the plaintiff, imputing something disgraceful, to 
 which the publication referred, it was held insufficient, and 
 that the reports themselves should have, been set forth.* 
 And where the alleged libel was the publication of a 
 notice that the plaintiff had married E. E., and the in- 
 ducement relied upon as making the publication action- 
 able was that E. E. was a common prostitute, but the 
 complaint did not allege this fact otherwise than as fol- 
 lows : " Married, J. W. C." (plaintiff meaning) " to E. E." 
 (meaning a public prostitute known by that name), " that 
 E. E. is a public prostitute, and well known to be so," the 
 complaint was, on demurrer, held insufficient.' 
 
 § 313. Where the inducement is essential to the suffi- 
 ciency of the statement of the cause of action, and where,, 
 without the facts stated as inducement, no cause of action 
 
 1 Loomis v. Swick, 3 Wend. 205; son. 33 Vt. (4 Shaw), 182; Carter v. 
 Abendroth z/. Boardley, 27 Wis. 55S ; Andrews, 16 Pick, i ; ^oj/, §§ 349, 
 and see Tindall v. Moore, 2 Wilson, 350 a/ Solomon v. Lawson, \o Jur. 
 114- 796. 
 
 2 Crookshank v. Gray, 20 Johns. •» Stone v. Cooper, 2 Denio, 293. 
 344; see ^oj^, §347. 5 Caldwell v. Raymond, 2 Abb.. 
 
 ' Caldwell v. Raymond, 2 Abb. Pr. Rep. 193. 
 Pr. Rep. 193; and see Cass v. Ander- 
 
§ 3I4-] THE COMPLAINT. 
 
 543 
 
 would be shown, there the existence or nonexistence of 
 those facts is material, and, of course, may be contro- 
 verted by the defendant; if not controverted they are 
 admitted, and need not be proved;^ if controverted, 
 they must be proved as part of the plaintiff's case. But 
 where the inducement is not essential to the sufficiency 
 of the statement of the cause of action, and where, 
 without the facts stated as inducement, a cause of action 
 can be shown, then the inducement is mere surplusage, 
 redundant matter ; no material issue can be raised upon it, 
 it should not be controverted, and if controverted, need 
 not be proved.* An example of superfluous inducement 
 is the preliminary panegyric upon the plaintiff's character, 
 with which it is so customary to preface all complaints for 
 slander or libel. As it is unnecessary to the statement of 
 a cause of action to aver the plaintiff's innocence, either 
 by a general averment of good character, or a general 
 averment of the falsity of the matter published, or by any 
 particular averment, no such averment can be made the 
 subject of an issue,* 
 
 §314. Where the charge was, "He (plaintiff) is a 
 pitiful fellow, and not able to pay his debts," it was held 
 not necessary to aver, by way of inducement, that the 
 plaintiff was no pitiful fellow, and was able to pay his 
 debts ;* and where the charge was that plaintiff had given 
 money to the defendant as a bribe, it was held, on motion 
 in arrest of judgment, not necessary for the plaintiff to 
 
 > Dukes V. Jostling, 3 Dowl. Pr. honesty, virtue and integrity. Defend- 
 
 Cas. 618; Chalmers v. Shackell, 6 C. ant denied this part of the complaint, 
 
 & P. 475. and on the trial the court charged the 
 
 2 Cox V. Thomason, 2 Cr. & J. jury that such denial, not sustained by 
 
 361 ; Langton v. Hagerty, 35 W^is. 10. evidence, was an aggravation. The 
 
 » Strachey's Case, Sty. 118. Ac- court above held this error, and gran t- 
 tion of slander in calling plaintiff a ed a new trial; the preliminary pane- 
 thief, &c. : the complaint prefaced gyric was superfluous, and might have 
 the charge of speaking the words, been stricken out on motion ; its de- 
 with the usual panegyric that plaintiff nial raised an immaterial issue. (Pink 
 sustained a good name and character v. Catanich, 51 Cal. 420.) 
 ?unong her neighbors for moral worth, * Hooker v. Tucker, Holt R. 39. 
 
544 
 
 PLEADING. 
 
 [CH. XIIIi 
 
 allege that he did not give the money .^ Where the charge 
 was of forging a note, the plaintiff averred, by way of in- 
 ducement, that the note was genuine, this was held to be 
 immaterial, equivalent only to the customary allegation of 
 innocence, and did not require to be proved ;^ so where 
 the charge was being guilty of treason, and the plaintiff 
 alleged his innocence, it was held that he did not thereby 
 impose on himself the burden of proving the allegation.^ . 
 
 § 315. It will be convenient here to refer to the rule 
 of pleading and of evidence, that where the defamatory 
 matter states expressly or by necessary implication the 
 existence of certain facts, the plaintiff may accept the 
 statement and rely upon it, without being obliged either 
 to allege it in his pleading or to establish its truth by 
 evidence;* the defendant is estopped from denying the 
 
 ' Bendish v. Lindsey, 11 Mod. 
 194. 
 
 . 2 Harmon v. Carrington, 8 Wend. 
 488. In this case it was contended on 
 behalf of defendant that if the note was 
 genuine, as plaintiff alleged, then there 
 was no slander; held, however, that 
 the note being genuine was no excuse 
 for defendant's charge that the note 
 was forged. Had this rule been ap- 
 plied in Fleischman v. Bennett (87 N. 
 Y. 231), the decision would have been 
 different. 
 
 Allegations of previous good rep- 
 utation of plaintiff are superfluous and 
 need not be denied. (Pink and wife v. 
 Catanich, 51 Cai. 420.) 
 
 In Smith v. Ottendorfer (3 N. Y. 
 St. Rep. 187'), the defendant had spe- 
 cifically denied the allegation of 
 plaintiff, and on motion to strike out 
 that denial, it was held at Chambers, 
 that if the plaintiff did not wish to 
 have the allegation of good reputation 
 denied, he should not have inserted it 
 in his complaint. At all events, the 
 plaintiff cannot be prejudiced by the 
 denial, for the defendant can certainly 
 prove the plaintiff's bad reputation in 
 mitigation, if that fact be so pleaded, 
 and, perhaps, if not pleaded. Where- 
 
 as the defendant may be prejudiced 
 by striking out the denial, he should 
 have the benefit of the doubt, and the 
 denial should be allowed to stand." 
 (See § 349. post^ 
 
 ' Coleman v. Southwick, 9 Johns. 
 
 45- 
 
 * Jones V. Stevens, 1 1 Price. 235 ; 
 ante, note I, p. 539; and /oj/. Evi- 
 dence, S 386. For the words. " That 
 is the man who killed my husband," 
 no allegation of the death of the hus- 
 band is necessary. (Button v. Hey- 
 ward, 8 Mod. 24.) "You hired J. S. 
 to forge a bond ; " no allegation that 
 any bond was forged is necessary. 
 (Cro. Car. 337.) In an action by hus- 
 band and his wife. B.. for slander, the 
 declaration reciting that they were 
 lawfully married, and that she was 
 sister of C, and that the defendant 
 falsely, &c., spoke of and concerning 
 the wife of C. that they were not only 
 brother and sister, but man and wife; 
 held, that the plaintiff was not bound 
 to prove the introductory averment 
 that the wife was the sister of C, and 
 that the words importing a charge of 
 felony, viz.. bigamy, were actionable. 
 (Heming v. Power, 10 Mees. & W, 
 564.) Defendant, on being reminded 
 
^ 316.] 
 
 THE COMPLAINT. 
 
 545 
 
 truth of his own charge. Thus, where the words of a 
 lawyer were, " He arresteth without taking out writs " 
 or " He is a knave in his practice," it was held that 
 these words implied that the plaintiff was an attorney, 
 and dispensed with any inducement of that fact.^ And 
 in slander for charging the plaintiff with the crime of 
 murder, it is not necessary to allege, as inducement, the 
 death of the person said to be murdered;^ and generally 
 it is unnecessary to show that the offense charged could 
 have been committed,^ or that the plaintiff was physically 
 capable of committing the crime alleged against him.* 
 
 § 316. As the plaintiff's right to redress depends en- 
 
 by plaintiff of a law suit which he (de- 
 fendant) had recently lost, said, " Yes, 
 your false swearing at that trial." 
 Being told that he had better not again 
 accuse plaintifE of swearing false, he 
 said, "Any man who professed to be 
 a Christian, as you do, and went 
 into the box and swore false, as 
 you did at that trial, had better 
 join the church once more," &c. 
 Defendant also said, " The folks who 
 belonged to the church, and built 
 tall steeples, thought they could swear 
 false, or do anything they had a mind 
 to." Held, that the slander admitted 
 that a suit was pending, and it was to 
 be intended that what plaintiff swore 
 to was material, and that the words 
 were sufficient to warrant a finding in 
 favor of the plaintiff, without proof 
 that the suit was in a court of com- 
 petent jurisdiction, or that plaintiff 
 swore falsely with a corrupt intent. 
 (Kern v. Towsley, Jl Barb. 386; and 
 see Spooner v. Keeler, 51 N. Y. 527.) 
 » Bell V. Thatcher, Freem. 277. 
 And so where the language was, " He 
 is a paltry lawyer, and plays with both 
 hands." (2 Rolle Rep. 85.) The 
 publication was: "It is goihg the 
 rounds that Justice Royce will resign, 
 and will attend to the law business of 
 the railroad. It has been suspected 
 for years that he was retained by the 
 railroad." The declaration contained 
 no averment that plaintiff was an at- 
 
 35 
 
 tomey-at-law. Held, unnecessary. 
 (Royce v. Maloney, 58 Vt. 437.) 
 
 2 Tenney v. Clement, 10 New 
 Hamp. 52 ; and see Carter v. Andrews, 
 16 Pick, I ; Stone v. Clark, 21 Pick. 
 51; Stallings v. Newman, 26 Ala. 
 300; Eckart v. Wilson, 10 S. & R. 
 44; contra^ Chandler v. Holloway, 4 
 Porter, 17; see ante^noXs. 11, p. 179. 
 
 " Colbert v. Caldwell, 3 Grant 
 (Penn.), i8i ; but see Sawyer v. Hop- 
 kins, 9 Shep. 268. 
 
 * Chambers z/. White, 2 Jones' Law 
 (N. Car.) 383. , In slander for charg- 
 ing plaintiff with theft of certain 
 articles, complaint is sufficient, with- 
 out alleging that articles had in fact 
 been stolen, or that such articles had 
 in fact ever been owned by persons 
 from whom it was claimed they were 
 stolen. (Durrah v. Stillwell, 59 Ind. 
 139.) Plaintiff alleged that defendant, 
 in conversation with one E., in regard 
 to the burning of certain houses, in the 
 presence and hearing of E. and divers 
 other persons, maliciously spoke of 
 and concerning plaintiff the lalse and 
 defamatory words following, viz: 
 " That damned scoundrel (meaning 
 plaintiff) knows all about it (meaning 
 the burning of said houses), from be- 
 ginning to end," thereby intending 
 falsely to charge plaintiff with having 
 willfully, etc., aided and abetted in 
 setting fire to and burning said houses. 
 Held sufficient. (Reeves v. Bowden, 
 97 N. C. 29.) 
 
546 
 
 PLEADING. 
 
 [CH. XIIU 
 
 tirely upon the fact that the defamatory matter concerned 
 him (§ 131), in order to show a right of action, that fact 
 must appear on the face of the complaint.^ Where the- 
 language published was unequivocal and directly referred 
 to the plaintiff, the colloquium, of which presently, was 
 alone sufficient to show this fact. But where the language 
 was ambiguous in respect to the person to whom it applied^ 
 there, formerly, it was necessary ; and where the common- 
 law system of pleading prevails, it is still necessary, to state 
 as inducement the circumstances which make it apparent 
 that the language does concern the plaintiff;^ and it was 
 not sufficient to aver generally that the language was pub- 
 lished concerning the plaintiff.* By statute the rule is 
 otherwise in New York.* 
 
 ' A conif>laint of words attribut- 
 ing the death of a child to " neglect 
 of parent^'' must, in some way, show 
 that the complaining parent is the 
 parent referred to. (Crane v. O'Reilly, 
 II N. Y. St. Rep. 277.) 
 
 California Code of Civil Procedure 
 does not dispense with the necessity 
 of alleging where words are ambigu- 
 ous, that readers or hearers knew 
 plaintiff was intended. (DeWitt v. 
 Wright, 57 Cal. 576; Rhodes v. 
 Naglee, 66 Id. 680.) Where a libel 
 consists in reporting the name of 
 plaintiff in blank, in a report of busi- 
 ness standing, which means that 
 plaintiff is not in good standing, the 
 complaint should so allege, giving the 
 necessary explanation; and a complaint 
 assuming to give the meaning of the 
 libel without allegfing what it is, is de- 
 murrable. (Bradstreet Co. v. Gill, 9 
 So. East. Rep. 753.) 
 
 « Hall V. Blandy, i Y. & J. 480; 
 and see Brown v. Lamberton, 2 Bin- 
 ney, 34 ; Van Vechten v. Hopkins, 5 
 Johns. 211; Harper v. Delp, 3 Ind. 
 225 ; Parker v. Raymond, 3 Abb. Pr. 
 R. N. S. 343. 
 
 « The State v. Henderson, i Rich. 
 
 179- 
 
 * Ante, % 310. And there is a like 
 provision in the law of Missouri 
 (Stieber v. Wensel, 19 Mo. [4 Bennet], 
 
 513); and Wisconsin (Van Slyke v^ 
 Carpfenter, 7 Wis. 173); and Iowa 
 (Swearingen v. Stanley, 23 Iowa, 115). 
 " A distinct averment in regard to the 
 person spoken of, and a clear refer- 
 ence of the calumnious words to that 
 person is all that is required." (Miller 
 V. Parish, 8 Pick. 384; see post^ 
 §§ 340, 341 ; and I Starkie on Slander, 
 390.) Of what is there stated the fol- 
 lowing is an abridgment: Where the 
 plaintiff's name is mentioned, though a 
 further description be given, the gene- 
 ral averment is sufficient (Woodroff z/_ 
 Vaughan, Cro. Eliz. 429), without 
 alleging that the further description 
 applied to the plaintiff; as where the 
 speaking was alleged to be of the 
 plaintiff, and the words were, " T. 
 [meaning the plaintiff] is thy brother.'" 
 And where the words were, "Captain 
 Nelson is a thief," held not necessary 
 to allege that plaintiff was a captain 
 or known by that name. Where the 
 plaintiff can show he was intended, he 
 can maintain the action. (Ante, notes 
 p. 113.) Thus, for the words, "The 
 parson of Dale is a thief," he who was 
 parson of Dale at the time may sue. 
 And where the defendant spoke of 
 that murderous knave Stoughton, held 
 that Thomas Stoughton might sue.. 
 (Sheppard, Action of Slander, 59.) 
 Where the language complained of 
 
§3Jt7-] THE COMPLAINT. 547 
 
 § 317. We have seen that the actionable quality of 
 language is sometimes affected by the circumstance that 
 it affects the plaintiff in some certain capacity (§§ 132, 
 1 79) ; when, therefore, the plaintiff claims that the lan- 
 guage is actionable, because it concerns him in some cer- 
 tain capacity or occupation, and it does not upon its face 
 imply that he is in such capacity or occupation (§ 315), 
 the complaint should properly allege by way of induce- 
 ment that he filled such capacity, or was in, or carried on, 
 or exercised such occupation at the time of the publication 
 complained of. This may be shown by an averment that 
 the plaintiff is of such a trade, or has carried on or ex- 
 ercised it for divers years, without adding last past,^ be- 
 cause a person once in any certain occupation is presumed 
 to continue therein (§ 189). But where the language 
 affects the plaintiff in an office he holds during pleasure, a 
 different rule, it is said, prevails, and the plaintiff's continu- 
 ance in office must be alleged.'* The complaint need not 
 allege that the plaintiff gains his livelihood by his occupa- 
 tion (§ 182), nor that the plaintiff has qualified himself 
 for the office or employment in which he is defamed. 
 Thus, where the alleged libel concerned a candidate to. 
 serve in Parliament, it was held that the declaration need 
 not set out the writ to show the plaintiff was such candi- 
 date.* But the occupation of the plaintiff should be des- 
 cribed in apt terms. Thus, in an action by a barrister, it 
 was held that he should allege he was homo consiliarius 
 
 was, " These people up stairs," &c. ' Tuthill v. Milton, Yelv. 159; Cro. 
 
 There was no inducement to explain Jac. 222 ; and see 2 Rolle R. 84; Dod 
 
 who these people were, but it was v. Robinson, Aleyn, 63; Collis v. 
 
 alleged that the publication was of and Malin, Cro. Car. 282; Beaumond w. 
 
 concerning the plaintiff. On the trial Hastings Cro. Jac. 240. 
 plaintiff filled, but a new trial was * Tuthill ^'. Milton, Yelv. 159; Cro 
 
 ordered, on reasons not satisfactory. Jac. 222; and see Gallwey z/. Marshall, 
 
 The pleading was right, but it was in- 9 Ex. 300. , b„<, p d 
 
 cumbent on plaintiff to show by proof » Har^ood ^- Astley i Bos & P. 
 
 on the trial he was one of those people. New R. (4 Bos. & P.) 47 ; and post, 
 
 (Cock V. Rief, 52 N. Y. Superior Co't, § 320. 
 302.) 
 
548 PLEADING. [CH, XIII. 
 
 et in jure peritus, and that it was not sufficient to allege 
 he was erudihis in lege} "The declaration ought not 
 merely to state that such scandalous conduct was imputed 
 to the plaintiff in his profession, but also to set forth in 
 what manner it was connected by the speaker with that 
 profession." * 
 
 § 318. Where the language is actionable of the plaint- 
 iff as an individual, then, although it may also aflFect him 
 in some occupation, it is not necessary to allege as induce- 
 ment that the plaintiff exercised such occupation ; and 
 even if alleged, it need not be proved, because there is a 
 cause of action without it (§ 1 79).' Thus, in an action for 
 setting up near plaintiff's house an inscription insinuating 
 that it was a house of ill-fame, &c., the declaration alleged 
 that the plaintiff carried on the business of a retailer of 
 wines ; but the court held, that as the inscription was not 
 alleged to have been published concerning the plaintiff 
 as a retailer of wine, it might be struck out of the de- 
 claration, and need not be proved.* And in like manner, 
 if the plaintiff has two trades, and both are alleged as in- 
 ducement, and the language is actionable as affecting the 
 plaintiff in one of them, proof of his exercising that one 
 trade will suffice.* 
 
 § 319. Too great minuteness in matter of inducement 
 is to be avoided, because, in general, the proof must be 
 co-extensive with the allegation; as where the plaintiff 
 
 M Starkie on Slander. 402. A '.Gage 7/. Robinson, 12 Ohio, 250. 
 
 complaint setting forth that the plaintiff * Spall v. Massey, 2 Stark. R. 
 
 was '■ engaged in the wooden ware 559. 
 
 business," sufficiently describes his » Figgins v. Cogswell, 3 M. & S. 
 
 employment as that of a buyer and 369; cited Chalmers z/. Shackell. 6 C.& 
 
 seller of wooden ware. (Carpenter i/. P. 477. But where the plaintiff alleged 
 
 Dennis. 3 Sandf 305.) that he was proprietor and editor of a 
 
 ^ Denman, Ch. J.. Ayre v. Craven, newspaper, it was held insufficient for 
 
 2 Adol. & El. 2; 4 Nev. & M. 220; him to prove himself proprietor only, 
 
 and see Alexander v. Angle, i Cromp. (Heriot v. Stuart, I Esp. 437 ; see /w/, 
 
 & J. 143- end of § 338.) 
 
§ 320.] THE COMPLAINT. 
 
 549 
 
 alleged that he was an attorney, that he conductea a par- 
 ticular suit, and afterwards alleged that the defamatory 
 matter was concerning his conduct in that suit, it was held 
 that he must prove the existence of that suit,^ And in an 
 action for a libel on a constable, respecting his conduct in 
 the apprehension of persons stealing a dead body, and part 
 of the conduct stated in the first count was that of carry- 
 ing the dead body to Surgeons' Hall, and the second count 
 spoke of " his conduct respecting the said dead body," the 
 court held that it was necessary in both counts to prove 
 the introductory allegation that the body was carried to 
 Surgeons' Hall ; for the words " the said body," in the 
 second count, incorporated all the descriptive circumstances 
 introduced in the first. The plaintiff need not have 
 burdened himself with the proof of such a fact, but the 
 libel being stated to be of and concerning his conduct as 
 to the dead body, it became most important to prove that 
 part of his conduct.^ But it is said,'' " The omission to 
 prove facts unnecessarily alleged will not be fatal unless by 
 the form and mode of pleading they have been made de- 
 scriptive of that which is material." 
 
 § 320. It need not be alleged that the plaintiff was 
 legally qualified or licensed to exercise the calling in 
 which the language affects him ; if he was not so quali- 
 fied or licensed it is matter of defense to come from the 
 defendant. In an action for slander, the plaintiff alleged 
 that he was in medicinis doctor, and it was moved in 
 arrest of judgment that he did not show he was licensed, 
 but adjudged for the plaintiff.* And so in an action by a 
 physician for words of him in his profession, it is sufficient 
 for him to aver that he had used and exercised the profes- 
 sion of a physician ; but where a plaintiff in such a case 
 
 1 Parry v. Collis, i Esp. 339. ■* Dr. Brownlow's Case, Mar. n6, 
 
 2 Teesdale v. Clement, i Chit. 603. pi. 3; and ante, §§ 182, 183, 189. 
 '^ I Starkie on Slander, 407. 
 
550 PLEADING. [CH. XHI. 
 
 went further, and averred that he was a physician, and had 
 duly taken the degree of a doctor of physic, it was held 
 that he must prove his degree as stated.^ 
 
 § 321. In a complaint founded upon a charge oi false 
 swearing as a witness, such a charge not being actionable 
 per se (§ 171), to show a cause of action there should be 
 an inducement of the pendency of a suit or judicial pro- 
 ceeding, in which the plaintiff was examined as a witness, 
 and a colloquium that the charge was concerning the plain- 
 tiff as such witness.* If there were several suits between 
 the same parties, tried on the same day, it is not necessary, 
 it seems, to distinguish in which suit the false swearing 
 occurred.^ And where the suit or proceeding was before a 
 court or officer of limited jurisdiction, it must be further 
 shown that such court or officer had jurisdiction of the 
 suit or proceeding ; an averment that the justice then and 
 there had jurisdiction of the action was held sufficient with- 
 out setting forth the facts which gave the jurisdiction.* 
 The plaintiff need not show that the justice Was duly com- 
 missioned.' A declaration which alleged that the words 
 
 ' Moises V. Thornton, 8 T. R. 303. plaintiff being guilty of subornation 
 2 Stone V. Clark, 21 Pick. 51; of perjury, published, &c., the words, 
 Gale V. Hays, 3 Strobh. 452; Sharp v. " P. F. swore to a lie, and you [plain- 
 Wilhite, 2 Humph. 434; Williams v. tiff] hired him." It was objected to 
 Spears, 11 Ala. 138; and semble it the complaint that it did not allege 
 should be alleged that defendant in- that the conversation was of and con- 
 tended to impute a charge of perjury. ceming the testimony of P. F. on the 
 (Wood z/. Scott. 13 Vt. 42; Sandersons. trial. Held, after verdict, the com- 
 Hubbard, 14 Id. 462.) Foresworn be- plaint was good. (Shimer v. Bron- 
 comes objectionable only when applied nenburg, 18 Ind. 363.) Declaration 
 to one who has given testimony under for false swearing in Virginia (Hogan' 
 the sanction of a judicial oath. (Pitts- v. Wilmoth, 16 Gratt. 80); in In- 
 burg, &c. V. McCurdy, 6 Cent. Rep. dianna (Dorsett v. Adams, 50 Ind. 
 721), and so of a charge he made false 129). 
 
 affidavits. (Casselman v. Winship, ' Harris -v. Purdy, 1 Stew. 231. 
 
 3 Dakota, 292.) It is not necessary * Sandford v. Gaddis, 13 III. 329. 
 
 to state what the witness testified. s pug^ ^ ^eal. 4 Jones' Law (N. 
 
 (Whitaker v. Carter, 4 Ired. 461.) Car.) 367. It was held not necessary 
 
 A complaint for slander set out to allege either that the justice had 
 
 that in a suit before a justice P. F. jurisdiction or that the testimony was 
 
 was a witness to material matter; material. (Dalrymple v. Lofton, 2 
 
 that defendant, in a conversation con- M'MuUan, 112.) But as to the neces- 
 
 ceming said trial and concerning the sity of alleging jurisdiction, see Shel- 
 
I 322.] THE COMPLAINT. 55Y, 
 
 were spoken " whilst the plaintiff was giving testimony as a 
 witness under the solemnities of an oath, before an acting 
 justice of the peace," ^ and a declaration which alleged that 
 the plaintiff was, at the instance of the defendant, exam- 
 ined on oath administered by a justice, according to law, as 
 a witness for the defendant, were held sufficiently to allege 
 jurisdiction.^ " Squire H." was held a sufficient description 
 of P. H., esquire, a justice of the peace.'^ 
 
 § 322. It should be alleged that the testimony was 
 material to the point in issue, but it is not necessary to 
 show to what particular degree the point in respect to 
 which a party is charged with false swearing was material 
 to the issue. If it goes to prove a- material circumstance 
 or link in the chain of evidence, it is suflScient.* And it 
 has been said that an averment of the materiality of the 
 evidence may be altogether omitted;* at least the absence 
 of such an allegation will be cured by verdict.* It is not 
 necessary to allege that the justice had authority to ad- 
 minister the oath.'^ But it should be alleged that the 
 
 lenbarger v, Norris, 2 Carter (Ind.) esquire, aforesaid," held sufficient de- 
 
 285; Jones w. Marrs, 11 Humph. 214; scription of a justice of the peace. 
 
 Chapman v. Smith, 13 Johns. 78; (Canterbury v. Hill, 4 Stew. & Port. 
 
 Bonner v. McPhail, 31 Barb. 106; 224.) 
 
 ■Cannon v. Phillips, 2 Sneed (Tenn.) * Hutchins v. Blood, 25 Wend. 
 
 J85. 4:3; and see Witcher v. Richmond, 8 
 
 Where the charge is that the plain- Humph. 473 ; Shroyer v. Miller, 3 W. 
 
 tiff committed./«r;'«^, that implies a Va. 158; Hogan v. Wilmoth, i6 
 
 false swearing before a competent tri- Gratt. 80 ; note 2, p. 189, ante. 
 bunal, and jurisdiction need not be " Wetsel v. Lennen, 13 Ind. 535 ; 
 
 alleged. (Green z*. Long, 2 Cai. 91.) Cannon v. Phillips, 2 Sneed, 185; 
 
 WTiere the charge is perjury commit- Wolbrecht v. Baumgarten, 26 111. 291 ; 
 
 ted in a foreign State, it must be Harbison v. Shook, 41 111. 142. 
 averred that by the laws of such State ' Niven w. Munn, 13 Johns. 48. 
 
 perjury is an offense to which is an- In slander for the charge of perjury, 
 
 nexed an infamous punishment. the materiality of the alleged false 
 
 (Sparrow v. Maynard, 8 Jones' Law testimony is for the court to deter- 
 
 |N. Car.] 195 ; and see ante, note 12, p. mine, and if left to the jury it is error. 
 
 169.) (Steinman v. Mc Williams, 6 Barr, 170; 
 
 * Lewis V. Black, 27 Miss. (5 Power -u. Price, 12 Wend. 500; af- 
 
 •Cush.) 425. firmed 16 Wend. 450.) Or ground for 
 
 2 Shellenbarger v. Norris, 2 Car- a new trial. (Dalrymple v. Lofton, 2 
 
 ter (Ind ) 285. M'MuUan, 112.) 
 
 ' Call z*. Foresman, 5 Watts, 331; ' Sanford v. Gaddis, 13 111. 329 •, 
 
 .and see ante, note 6, p. 146 : " N. T., butsee Jones v. Marrs, 1 1 Humph. 214. 
 
552 PLEADING. [CH. XIII.. 
 
 plaintiflf was legally sworn.^ The defendant cannot show- 
 as a defense that the plaintiff was not a competent wit- 
 ness.^ The absence of allegations of jurisdiction in the 
 justice or materiality of the testimony may be cured by a 
 plea of justification,* or by a verdict.* 
 
 § 323. Properly the colloquium or allegation of a dis- 
 course is the allegation that the language published was 
 concerning the plaintiff, or concerning the plaintiff and 
 his affairs, or concerning the plaintiff and the facts alleged 
 as inducement (§ 1 29). But the term colloquium is fre- 
 quently employed as synonymous with inducement, or ta 
 signify the inducement and the colloquium properly so 
 called. As heretofore stated (§§ 310, 316), it must be 
 shown on the face of the complaint that the language was 
 published concerning the plaintiff, and the proper mode of 
 doing this is by a direct averment that the publication was 
 "of and concerning the plaintiff."^ This averment may, 
 however, be supplied by any equivalent allegation, and 
 may be altogether dispensed with where it appears other- 
 
 * Sanderson v. Hubbard, 14 Vt. ' Where the words amount to a 
 462. libelous charge against some person, 
 
 * Harris v. Purdy, i Stew. 231. but it is uncertain as to their applica- 
 A declaration in slander, charging the tion to plaintiff, such application may 
 words spoken as follows: "He (mean- be shown by proof of extrinsic facts, 
 ing plaintiff) has sworn falsely," &c., and under the statute, it is not neces- 
 " against me (meaning defendant), sary to allege those facts in the com- 
 and he (meaning defendant) could plaint. (Petsch v. St. Paul's Dispatch- 
 prove it," was held bad after verdict; Printing Co. [Minn.] 41 No. West. 
 by "he " in the latter clause, as plead- Rep. 1034.) 
 
 ed, the defendant could not have The complaint not alleging publi- 
 meant himself. (Bowdish v. Peck- cation to be of and concerning plaint- 
 ham, I Chip. 146 ; but see post, note iff, and publication not appearing upon 
 to § 343.) its face to refer to plaintiff, held bad 
 ' Witcher v. Richmond, 8 Humph. on demurrer. (McCallum v. Lambie, 
 473 : Attebury v. Powell, 29 Mo. 429 ; 145 Mass. 234.) 
 Sanderson v. Hubbard, 14 Vt. 462. Where plaintiff was known as 
 
 * Palmer v. Hunter, 8 Mo. 512; "Walnuts," and defendant had said 
 Morgan v. Livingston, 2 Rich. 573; that "Walnuts" had robbed him; 
 Niven v. Munn, 13 Johns. 48; but see held, that to sustain an action for such 
 Wood V. Scott, 13 Vt. 42; an inaccu- words, it must be alleged that the 
 rate averment is cured by verdict, but persons who heard the charge knew 
 a necessary averment cannot be sup- that plaintiff was intended by the 
 plied by verdict. (Reg. v. Bradlaugh, word Walnuts. (Keeling v. McCall,. 
 3 Q. B. Div. 607.) 36 Ind. 321.) 
 
§ 323-] 
 
 THE COMPLAINT. 
 
 553 
 
 wise with sufficient certainty on the face of the complaint 
 that the publication was in fact concerning the plaintiff.^ 
 And although, in actions for slander and libel, inducement 
 may be necessary to explain the matter alleged to be 
 libelous, it is enough to state in the declaration that the 
 publication was "of and concerning" the plaintiff, without 
 also stating that it was "of and concerning" such matter,* 
 oj of and concerning the plaintiff in the occupation alleged 
 
 * It is sufficient to aver substan- 
 tially that the words were spoken of 
 plaintiff; an express averment of the 
 fact is not necessary. (Brown v. 
 Lamberton, 2 Binn. 34; Brashear v. 
 Shepherd. Snead [Ky. ] 249 ; Nestle "v. 
 Van Slyke, 2 Hill, 284; but see Titus 
 V. Follett. 2 Hill. 318; Tyler v. Tillot- 
 son, 2 Hill, 508; Cave v. Shelor, 2 
 Munf. 193; Harper v. Delp. 3 Ind. 
 225; Rex V. Marsden, 4 M. & S. 164; 
 Baldwin v. Hildreth, 14 Gray [Mass.] 
 221.) On demurrer, where the words 
 did not name the plaintiff', the omission 
 -of a colloquium of and concerning the 
 plaintiff was held fatal, and not aided 
 by the innuendoes. (Milligan v. 
 Thorn, 6 Wend. 412; and see Church 
 z/.Bridg^an, 6 Mo. 190.) Nor by the 
 verdict, the language being in the 
 third person. (Sayre v. Jewett, 12 
 Wend. 135.) If there be a colloquium 
 sufficient to point the application of 
 the words to the plaintiff, if spoken 
 maliciously, he must have judgment. 
 (Lindsey v. Smith, 7 Johns. 359.) 
 Where actionable words are spoken to 
 a plaintiff, it is sufficient to allege a 
 discourse with him, without an aver- 
 ment that the words were concerning 
 the plaintiff. (Osborn v. Forshee, 22 
 Mich. 209.) But where the words are 
 in the third person, as, "He is a 
 thief," there, although a discourse of 
 the plaintiff is alleged, it must also be 
 alleged that the words were concern- 
 ing the plaintiff. And it is not suffi- 
 cient in such a case to connect the 
 words with the plaintiff by an innuen- 
 do. (I Stark. Sland. 384.) But where 
 a discourse of the plaintiff is laid, and 
 there is an innuendo of the plaintiff, it 
 
 seems that the want of a direct aver- 
 ment that the words were concerning 
 the plaintiff must be pointed out by 
 special demurrer [motion to make 
 certain] ; but if no discourse concern- 
 ing the plaintiff is alleged, then the 
 want of an allegation that the words 
 concerned him would be a defect in 
 substance. (Id.; Skutt v. Hawkins, 
 I Rolle R. 244) If a plaintiff has 
 omitted, in his declaration, to state 
 that the libel was spoken of himself,, 
 he may supply the same by parol evi- 
 dence. (Newbraugh v. Curry, Wright, 
 511.) But this is doubtful, perhaps^ 
 for such a defect the complaint will, 
 upon the trial, be dismissed. (Crane 
 V. O'Reilly, 13 Civ. Pro. Rep. 71. > 
 Where A. says of B. & C, '■^you have 
 committed such an offense," though 
 
 B. & C. may have separate actions^ 
 the words must be alleged to have 
 been spoken of both. (Cro. Car. 512.) 
 Where the declaration states a collo- 
 quium with G., of and concerning the 
 children of G., and of and concerning- 
 
 C, one of the children of G., and the 
 plaintiff in the suit in particular, and 
 that the defendant said, " Your chil- 
 dren are thieves, and I can prove it," 
 the colloquium conclusively points the 
 words, and designates the plaintiff as 
 one of the children intended. And a 
 colloquium is sufficient to give appli- 
 cation to words still more indefinite. 
 (Gidney v. Blake, 11 Johns. 59; but 
 see what is said i Stark. Sland. 385 ; 
 note to § 181, ante\ also anie, § 129.) 
 
 " O'Brien v. Clement, 4 D. & L. 
 563; Gutsole V. Mathers, I M. & W. 
 495; Shimer v. Bronnenburgr 18 Ind. 
 363- 
 
554 PLEADING. [CH. XIII. , 
 
 in the inducement.* Where the declaration alleged that 
 the defendant published a libel of and concerning the 
 plaintifT, containing, &c., the false libelous matters follow- 
 ing (without saying of and concerning the plaintiff); held, 
 in error, that for want of an averment that the particular 
 matter was of and concerning the plaintiff, and there being 
 no innuendo that such matter related to him, the declara- 
 tion was bad, and a venire de novo was awarded.^ A 
 declaration which alleged that the plaintiffs were traders 
 under the firm of T. & Co., and averring that, in a dis- 
 course of and concerning them, their circumstances and 
 business, the defendant said, "T. & Co. are down," &c., 
 without repeating that this was said of and concerning the 
 plaintiffs, was held bad on special demurrer, although good 
 in substance.^ A complaint purported to set out six sepa- 
 rate causes of action. Defendant demurred to the first 
 and secondly alleged causes of action, on the ground that 
 they did not state facts sufficient to constitute a cause of 
 action. The complaint alleged that each publication was 
 ■of and concerning the plaintiff. In the articles upon 
 which the first and secondly alleged causes of action were 
 predicated, plaintiff was not mentioned by name and those 
 articles upon their face did not refer to him, but to a firm 
 of Gaff, Fleischman & Co., plaintiff alleged in his com- 
 plaint that he never was a member of the firm of Gaff, 
 
 ' Wakley v. Healey, i8 Law Jour. sufficient certainty that the words. 
 Rep. 241, C. P.; contra, see Barnes were spoken of plaintiff in his business 
 , -z/. Trundy, 31 Maine (i Red.) 321. relations as a sugar refiner. (Haver- 
 Where the language of the libel shows meyer v. Fuller, 10 Abb. N. C. 9.) 
 on its face that it was used of and « Clement v. Fisher, 7 B. & Cr. 
 •concerning plaintiff in an acquired 459; i M. & Ry. 281. 
 capacity or special character, an ex- « Titus v. FoUett. 2 Hill, 318; and 
 press averment that it was so used is see Taylor v. State, 4 Ga. 14. Where 
 unnecessary. (StoU v. Houde, 34 the meaning of the language is uncer- 
 Minn. 193.) tain, or where it is uncertain to vsrhom 
 It is not sufficient for plaintiff to the language refers, the complaint 
 allege, that he was, as a member of a should contain averments showing, 
 business firm, engaged in the business the meaning of the language and to 
 of refining sugar; to make the innu- whom it refers. (Carey w. Allen, 39 
 ■endo available, it must appear with Wis. 481.) 
 
§ 324-] THE COMPLAINT. 555 
 
 Fleischman & Co. The Court of Appeals sustained the 
 demurrer, holding in effect that as plaintiff denied he was 
 connected with Gaff, Fleischman & Co., and as the alleged 
 libels on their face referred only to that firm, it plainly- 
 showed plaintiff was not intended.^ 
 
 § 324. A publication by the defendant must be alleged 
 [§ 93]. The publication need not be set forth in any 
 technical form of words.* But it must be alleged posi- 
 tively, and not by way of recital ;^ and, therefore, a decla- 
 ration which commenced, " For that whereas'''' the defend- 
 ant intending, «S.c., spoke, &c., was held bad on special de- 
 murrer.* In slander for English words, it should be al- 
 leged that the defendant spoke the words in the presence 
 and hearing of divers persons,^ or of certain persons, 
 naming them,* or of certain persons named and divers 
 others, not naming the others.'' Published, ex vi termini^ 
 imports a speaking in the presence and hearing of a third 
 party ;^ and, therefore, to allege that the defendant pub- 
 
 ' Fleischmann v. Bennett, 87 N. ' Donaghe v. Rankin, 4 Munf. 
 
 Y. 231. We find it impossible to re- 261. 
 
 concile this decision with the law as * Brown v. Thurlow, 4 D. & L. 
 
 established by statute and previous 301; 16 M. & W. 36; Coffin i/. Coffin, 
 
 authority. 2 Mass. 358; Houghton w. Davenport, 
 
 2 Baldwin v. Elphinstone, 2 W. 23 Pick. 235. 
 Black. 1037 ; Wallis v. Morgan, 50 ' To allege a speaking merely is 
 
 Ind. 318; Roberts z'. Lovell, 38 Wis. not sufficient. (Style, 70; i Stark. 
 
 ■2\i; ante, note I, p. 89. In slander Sland. 360.) In Indiana, by statute, 
 
 a complaint is bad if it does not al- it is sufficient merely to allege the 
 
 lege that the slanderous words were speaking. (Guard v. Risk, 1 1 Ind. 
 
 spoken or published by defendant. 156; Hutts v. Hutts, 51 Ind. 583.) 
 
 (Watts V. Morgan, 50 Ind. 518; Mann And so in Missouri (Atwinger v. Fell- 
 
 -v. Hauts, 40 Ind. 122. ner, 46 Mo. 276; Steiber v. Wensel, 
 
 A complaint against two defend- 19 Mo. 513); and held that an aver- 
 
 ants, which alleges the writing by one ment that the defendant " did, in cer- 
 
 defendant and the printing and pub- tain conversations, utter, publish, and 
 
 lishing of the contents of such writing declare," sufficiently implies that the 
 
 by the other defendant, shows a cause words were spoken in the presence of 
 
 ■of action against both, and does not other persons. (Hurd v. Moore, 2 
 
 improperly join causes of action. Oregon, 85.) 
 
 (Baker v. McClellan, 21 N. Y. St. « Burbank v. Horn, 39 Maine (4 
 
 Rep: 893.) It was held sufficient to Heath), 233; a«^^, note 3, p. 89. 
 allege that the defendant was the pro- ' Bradshaw v. Perdue, 12 Ga. 510; 
 
 prietor of the newspaper in which the Ware v. Cartledge, 24 Ala. 622. 
 alleged libel was published. (Hunt v. . ' Duel v. Agan, i Code Rep. 134; 
 
 Bennett, 19 N. Y. 173.) ante, note 3, p. 89. 
 
556 
 
 PLEADING. 
 
 [CH. xiir. 
 
 lished the words is sufficient, without averring specially 
 the presence of others.* And an allegation that the words 
 were spoken would be sufficient, without stating the 
 presence of any third person, if accompanied by any aver- 
 ment which necessarily implies a publication to a third 
 person — as that the defendants palim et publice promul- 
 gant de querente} In the case of English words, it is not 
 necessary to allege that the persons present either heard 
 or understood what was said; for until the contrary is 
 made to appear, it will be intended that those present 
 both heard and understood the words ; but in the case of 
 a publication of foreign words, it must be alleged that the 
 persons present understood them.^ 
 
 § 325. Where the publication was made in writing, 
 published is the proper and technical term by which to 
 allege the publication, and this without reference to the 
 
 ^ Burton V. Burton, 3 G. Greene, 
 316; and see Shinloub v. Amerman, 7 
 Ind. 347 ; Guard v. Risk, 1 1 Ind. 1 56 ; 
 Emmerson v. Marvel, 55 Ind. 265. 
 
 2 Taylor v. How, Cro. Bliz. 861. 
 Prior to the statute 2 Geo. II, ch. 14, 
 pleadings in the courts of England 
 were in Latin, which will explain why 
 the quotations from the pleadings in 
 the early decisions are in Latin. 
 
 ^ Wormouth v. Cramer, 3 Wend. 
 395 ; 1 Stark. Slan. 360 ; Cro. Eliz. 396 ; 
 480, 865; Cro. Jac 39; Cro. Car. 199; 
 Noy, 57; Golds. 119; Zeig v. Ort, 3 
 Chandler (Wis.) 26 ; and see ante,x\a\ss>, 
 p. 83; Simonson i/. Herold Co. 21 No. 
 West. Rep. 790 ; Mielenz v. Quasdorf, 
 68 Iowa, 726. Barsotti, editor of the 
 Italian newspaper // Progresso If alio 
 Americano, brought suit for libel 
 against Baricelli, editor of the Italian 
 newspaper // Progresso. Defendant 
 moved before Judge Truax to vacate 
 an order of arrest which had been 
 granted against defendant. He claim- 
 ed that the alleged libel being in a 
 foreign language, and no allegation in 
 the complaint that persons seeing the 
 paper understood the language, there 
 
 was not sufficient to sustain an arrest. 
 The Judge so held and vacated the 
 order. (N. Y. Superior Co't, May, 
 1881 ; see ante, § 97.) See an apparent 
 departure from this rule, probably 
 because special damage was alleged. 
 Singer v. Bender, 64 Wis. 169; also 
 Steketee v. Kimm, 48 Mich. 322. 
 After verdict, a declaration which 
 alleges words spoken in a foreign 
 language, without alleging that 
 the words were understood by the 
 hearers, was sustained (Kiene v. 
 Ruff, I Clarke [Iowa], 482) ; and in 
 Pennsylvania, held not necessary 
 to allege that foreign words were 
 understood. (Palmer v. Harris, 60- 
 Penn. 156.) In Maynard v. Fire- 
 men's Ins. Co. (34 Cal. 48), the words 
 complained of were not libelous per se, 
 and the complaint only averred a libel- 
 ous intent and meaning on the part of 
 defendant, without averring that such 
 words were so understood by those to 
 whom they were published. A de- 
 murrer on the ground that the words 
 did not constitute a libel was sus- 
 tained. (See Cary v. Allen, 39 Wis. 
 481.) 
 
§ 325-] THE COMPLAINT. 
 
 557 
 
 precise degree in which the defendant was instrumental to 
 the publication.^ But any equivalent allegation will suf- 
 fice. Where it was alleged that the defendant printed and 
 caused to be printed in the St. James' Chronicle, that was 
 held sufficient ;^ and so was the allegation that the defend- 
 ant " did publish and cause and procure to be published," 
 a certain libel addressed to the plaintiff,* but where the 
 allegation was that the defendant scrtpsit, fecii, et publi- 
 ■cavit, seu scribi fecit et publicari causavit, it was held to 
 be insufficient, and judgment was arrested on account of 
 the uncertainty of the disjunctive charge.* To allege that 
 the defendant is proprietor of a certain newspaper named, 
 and that the libel was published in such paper, was held a 
 sufficient averment of a publication by the defendant.^ 
 But to allege that defendant sent a letter to plaintiff which 
 was received and read by him, does not show a sufficient 
 publication.® If a defamatory writing is shown to have 
 been put in a situation in which it might have been read, 
 it is unnecessary to allege it was in fact seen or read.'' 
 
 'Lamb's Case, 9 Coke, 59; i defendant "published" is a dec- 
 Stark. Sland. 359. Allegation that laration that he caused to be ciixu- 
 published sufficient. (The State v. lated " among sundry and divers per- 
 Dowd, 39 Kan. Rep. 412; The State sons." (Sproul z/. Pillsbury, 72 Maine, 
 V. Barnes, 32 Me. 530.) Printed and 20; Benedict v, Westover, 44 Wis. 
 caused to be printed equivalent to pub- 404; Indianapolis Sun Co. v. Horrel, 
 lished. (Id?) Mode of publication need 53 Ind. 527.) 
 
 not be alleged. (Id.) A complaint ' Hunt v. Bennett, 4 E. D. Smith, 
 
 which alleges the composition of a libel- 647; affirmed 19 N. Y. 193. But 
 
 ous article by one and its publication in where the action was against a corpo- 
 
 a newspaper by another, is sufficient to ration as the owner and publisher of a 
 
 charge both as publishers. (Baker z/. newspaper, and also against C, alleged 
 
 McClellan, 21 N. Y. St. Rep. 893.) to be principal proprietor and man- 
 
 2 Baldwin v. Elphinstone, 2 W. ager, it was held not to show any lia- 
 
 Black. 1037. bility of C. To make him liable it 
 
 A Waistel v. Holman, 2 Hall, 172. must be shown he took part in or did 
 But to allege that defendant composed, some act to make him liable as pub- 
 wrote and delivered a certain libel Usher. (Simonsen v. Herold Co. 61 
 addressed to the plaintiff, was held Wis. 626.) 
 insufficient. (Id.) " Lyle v. Clason, I Games 581 ; 
 
 * Rex V. Brereton, 8 Mod. 328. but see Mielenz v. Quasdorf, 68 Iowa, 
 
 Held sufficient to allege that defend- 726. 
 
 ant composed, uttered, wrote and ' Giles v. The State, 6 Oa. 276; 
 
 sent to D. (Benedict v. Westover, ante, note i, p. 88. 
 44 Wis. 404.) The allegation that 
 
558 PLEADING. [CH. XIII. 
 
 § 326. The place of publication may be alleged with a 
 videlicet} It is not material, and need not be proved as 
 laid.* 
 
 § 327. The time of speaking the words is not ma- 
 terial.* In one case, it was held that the words might be 
 laid with a continuando* but this was denied, on the ground 
 that words spoken at one time constitute one cause of 
 action, and words spoken at another time constitute an- 
 other cause of action.* The continuando, however, was 
 held to be surplusage, and not ground for special demurrer."^ 
 An allegation, " and further, that defendant, on divers days 
 and times, between that day and the commencement of 
 this action, Spoke the same words," was struck out as 
 redundant.' 
 
 § 328. It should appear on the face of the complaint, 
 by some appropriate averment, that the publication was 
 made without legal excuse. Ex malitia, in its legal sense,, 
 imports a publication that is false, and made without legal 
 excuse ;^ an averment that the publication was made with 
 malice or maliciously has ever been and still is the custom- 
 ary averment ; but any form of words from which malice 
 (absence of excuse) can be inferred, as that the publication 
 was made falsely or wrongfully, will suffice.* Neither the 
 term malice," nor falsely, nor wrongfully, is essential," at 
 
 ' Burbank v. Horn, 39 Maine (4 » Swinney v. Nave, 22 Ind. 178: 
 
 Heath), 233. a«^«, § 113. 
 
 « Jefferries v. Duncombe, 11 East, « Cummins v. Butler, 3 Blackf. 190. 
 
 266; ante, §110. ' Gray v. Nellis, 6 How. Pra. R. 
 
 * Potter V. Thompson, 22 Barb. 290. 
 
 87; Hosley J/. Brooks, 20 111. 115; but » Sutton v. Johnstone, i T. R. 
 
 see ante, % 109. It is not necessary 493; Rowe v. Roach, i M. & S. 304; 
 
 to prove the publication on the day ante, ^§ 71 73. 
 
 alleged. (Norris v. Elliott, 39 Cal. 72; 9 Moor,'459; Owen, 451 ; Noy, 35;. 
 
 Hallowell v. Guntle, 82 Ind. 554.) Dillard 7/. Collins, 25 Gratt. (Va.) 343; 
 
 But to allege the publication was ante, note i, p. 75. 
 
 about a certain day was held to be un- 1 Opdyke v. Weed, 18 Abb. Pr. R. 
 
 certain. (Cole 7/. Babcock,78 Me.41.) 223, note; Viele v. Gray, 10 Id. 6; 
 
 * Burbank v. Horn, 39 Maine (4 ante, note i, p. 75. 
 
 Heath), 233. 1 1 Stj'le, 392. An allegation that 
 
 the publication was a libel, held equiv- 
 
f 329-] 
 
 THE COMPLAINT. 
 
 559 
 
 least after verdict.^ A declaration which charged the pub- 
 lication to be " malicious, injurious, and unlawful," was 
 held sufficient.^ Where it appeared on the face of the 
 declaration that the defamatory matter was published in 
 an affidavit in a proceeding in an action, and was pertinent 
 to the matter in hand, held that the declaration was demur- 
 rable, because, notwithstanding the allegation that the pub- 
 lication was false and malicious, it appeared on the face of 
 the declaration that the publication was a privileged one.* 
 Alleging a scienter is not necessary.* 
 
 § 329, The complaint should set out, and purport to 
 set out, the very words published.* The proper term 
 
 alent to an allegation that it was false 
 and malicious. (Hunt v. Bennett, 19 
 N. Y. 176; §§ 73, 74, aw^-?. 
 
 1 2 Saund. 242 ; W^hite v. Nichols, 
 3 How. U. S. Rep. 266, 284; Taylor 
 V. Kneeland, i Doug. (Mich.) 67. 
 
 * Rowe V. Roach, i Mau. & Sel. 
 
 304. 
 
 » Garr v. Selden, 4 N. Y. 91. 
 
 * It is sufficient to allege that the 
 words are false and malicious without 
 alleging scienter, even when the words 
 may have been part of a privileged 
 communication. (Andrew v. Deshler, 
 14 Vroom [N. J.] 16; see ante. § 141.) 
 
 ' Finnerty v. Barker, 7 N. Y. Legal 
 Observer, 317; Sullivan v. White, 6 
 Irish Law Rep. 40 ; Whitaker v. Free- 
 man, I Dev. 271 ; Lee v. Kane, 6 
 Gray (Mass.) 495; Taylor w. Moran, 
 4.Metc.(Ky.) 127; Bums t/. Williams, 
 17 The Reporter, 375 (N.Car.) ; Rex v. 
 Bradlaugh, 38 Law Times, 118; Stener 
 V. The State, 17 The Reporter, 670 
 (Wis.) ; Commonwealth v. Wright, i 
 Cush. 46. " In libel and slander the 
 very words are the facts and must be 
 pleaded." (Harris v. Warre, 27 
 Week. Rep. London, 461.) The 
 omission of the exact words was 
 ground of motion in arrest of judg- 
 ment. (Wright V. Clements, 3 B. & 
 Aid. 503.) In Gutsole v. Mather (i 
 M. & W. 495), the precise words were 
 not set out, but merely the effect of 
 them, the declaration alleging that the 
 defendant wrongfully, &c., represented 
 
 in the presence and hearing of divers 
 persons (naming them) that said tulips 
 were stolen property. On motion in 
 arrest of judgment, the declaration 
 was held bad for not setting out the 
 words verbatim. In McDonald v. 
 Dun (12 Low. Can. Rep. 345) the 
 declaration alleged that defendants, a 
 mercantile agency, had falsely and 
 maliciously written in a book kept in 
 their office, the words '• to the effect '' 
 that plaintiff "was not reliable, or 
 that plaintiff was insolvent, or words 
 to that effect, but as defendants have 
 refused to let plaintiff see the book, he 
 is unable to slate the exact words 
 therein written." On exceptions, 
 equivalent to a demurrer, the action 
 was dismissed. And where the 
 declaration alleged slander of plaintiff^s 
 wife by imputing adulteiy and prosti- 
 tution, without setting out the words 
 and concluding with special damage, 
 held bad. (Breen v. McDonald, 22 
 Up. Can. C. P. 298 ; see note 10 p. 246, 
 ante.) In Pennsylvania it has been 
 held not necessary to set out the iden- 
 tical words complained against, and 
 that to set forth their purport is suffi- 
 cient. (Lukehart v. Byeriy, 53 Penn. St. 
 418.) And so in Massachusetts. (Rob- 
 bins z-. Fletcher, loi Mass. 115; Bret- 
 tun V. Anthony, 103 Mass. 37; see 
 ante, note 10, p. 246.) A new trial 
 was granted because the words pub- 
 lished were not set forth in the com- 
 plaint literally. (Walsh v. The State, 
 
56o 
 
 PLEADING. 
 
 [CH. XIII. 
 
 by which to indicate that the very words are set forth 
 is tenor} "Tenor and effect" is now held to be suffi- 
 cient, but there are decisions to the contrary.^ It is not 
 sufficient to allege that words were published to the 
 effect following,^ or in substance as follows,* or purport- 
 
 2 McCord, 248.) Where the sub- 
 stance only of the defamatory matter 
 was charged in the declaration for 
 libel, the court, on the trial, allowed 
 the plaintiff to amend by setting out 
 ■verbatim the letter containing the 
 matter complained against. (Saunders 
 V. Bate, I Hurl. & N. 402.) A claim 
 alleged that defendant sent to a chief 
 constable and superintendent of police, 
 letters charging plaintiff with a murder, 
 and required his arrest; that the sup- 
 erintendent in consequence endeavored 
 to arrest plaintiff; that defendant bad 
 no reasonable or probable cause for 
 making the charge; that the same 
 was false, and made maliciously. On 
 demurrer held that the claim was bad, 
 because if it was for libel the defam- 
 atory words were not set out ; if for 
 malicious prosecution, none had been 
 instituted. (Harris v. Warre, 4 L. R. 
 C. P. D. 125.) In a criminal proceed- 
 ing the complaint charged that the 
 defendant published of and concern- 
 ing complainant a certain ''false, 
 scandalous, malicious, and defamatory 
 libel, therein and thereby accusing 
 and imputing to said Adolphus A. 
 Ellis, prosecuting attorney, infamous 
 and degrading acts,'' namely, of refus- 
 ing to prosecute a suspected crime 
 of murder, because the law forbade 
 his taking bribes. Held complaint 
 was sufficient. (People v. Jones, 
 62 Mich. 304.] Certain States pro- 
 vide by statute what words shall 
 be actionable. (§ 153.) It is held 
 that acts declaring what words are 
 actionable are public laws, of which 
 courts are bound to take notice, and 
 the complaint or declaration need not 
 recite or refer to the statute (Sanford 
 ■V. Gaddis, 13 111. 329; Elam v. 
 Badger, 23 111. 498), except by alleg- 
 ing that the words were published 
 against the form of the statute in such 
 case provided (Terry v. Bright, 4 Md. 
 430) ; but the absence of this allega- 
 
 tion will be cured by verdict. (Wil- 
 cox V. Webb, I Blackf. 258.) As to 
 declaring upon the statutes of Virginia 
 and Georgia, see Mosely v. Moss, 6 
 Graft. 534; Holcombe v. Roberts, 19 
 Ga. 588; Hawks v. Patton, 18 Ga. 52. 
 
 ^ Commonwealth v. Wright, i 
 Cush. 46; Wright v. Clements, 3 B. 
 & Aid. 503. To allege " a certain 
 receipt for money, as follows, that is 
 to say," was held equivalent to an 
 allegation "according to the tenor 
 following, or in the words and figures 
 following, that is to say." (Rex v. 
 Powell, I Leach C. C. 77, 4th ed. ; 2 
 East P. C. 976; 2 Wm. Black. R. 787.) 
 In a declaration for slander of plaintiff 
 in his trade, a count alleging that the 
 defendant, in a certain discourse, in 
 the presence and hearing of divers 
 subjects, falsely and maliciously 
 charged the plaintiff of being in insol- 
 vent circumstances, and stating special 
 damage, but without setting out the 
 words, was held ill. (Cook v. Cox, 3 
 M. & S. no.) 
 
 2 Newton v. Stubbs, 3 Mod. 71 ; 2 
 Show. 435. 
 
 ' Ford V. Bennett, i Ld. Raym. 
 415; Rex V. Beare, 2 Salk. 417. 
 
 * Wright V. Clements, 3 B. & Aid. 
 503. Where a declaration for a libel 
 sets out a publication which refers to 
 a previous publication, but, unless by 
 reference to the language of the pre- 
 vious publication, contains no libel, 
 such previous publication must be 
 considered as incorporated in the pub- 
 lication complained of, and must ap- 
 pear in the declaration to be set out 
 verbatim, and not merely in substance. 
 Therefore judgment was arrested as 
 to the second count of a declaration, 
 which, after reciting that defendant 
 published a statement " in substance 
 as follows," setting out the publication 
 charged in the first count, charged 
 that defendant afterwards published 
 of and concerning plaintiff, and of and 
 
§ 330.] 
 
 THE COMPLAINT. 
 
 561 
 
 ing,^ or that the words were in substance as follows, or ac- 
 cording to the purport and effect following, or in manner 
 and form following,^ or that the words were of a certain 
 tenor, import and effect.* Nor are quotation marks suffi- 
 cient to indicate that the exact words are set forth.* 
 Where the defamation consists in the adoption of words 
 spoken by another, the declaration must set forth the words 
 with the same particularity as though the action were 
 against that other.^ 
 
 § 330- Where the words were published in a foreign 
 language, the foreign words must be set forth,* together 
 with a translation into English (§ 97). To set forth the 
 foreign words alone, or the translation alone, would not be 
 
 concerning the first publication, a 
 statement that the copper tank was 
 fitted up in a schooner belonging to 
 the plaintiff. (Solomon v. Lawson, 8 
 Q. B. 823.) As follows is equivalent 
 to the words and figfures following. 
 (Clay V. The People, 86 111. 147.) 
 
 * Wood I/. Brown, 6 Taunt. 169; 
 and see Cook v. Cox, i M. & S. no. 
 Alleging the speaking of certain 
 words, or words of the same import, 
 was held good after verdict. (Bell v. 
 Bugg, 4 Munf. 260.) 
 
 2 Bagley v. Johnson, 4 Rich. 22 ; 
 Watson V. Music, 2 Miss. 29 ; Zeig v. 
 Ort, 3 Chand. (Wis.) 26; Bassett v. 
 Spofford, II New Hamp. 127; Church- 
 ill V. Kimble, 3 Ham. 409: Rex v. 
 May, I Doug. 193. A count in slander 
 stating that defendant charged plaint- 
 iff with the crime of forgery, held bad 
 (Yundt z/. Yundt, 12 S. & R. 427); 
 and so of perjury (Ward v. Clark, 2 
 Johns. 10) ; and where a count alleg:ed 
 that defendant charged plaintiff with 
 the crime of theft, without setting out 
 the exact words, it was held bad after 
 verdict. (Parsons v. Bellows, 6 New 
 Hamp. 289.) In Massachusetts, even 
 before the statute of 1852, it was held 
 sufficient to allege that defendant ac- 
 cused plaintiff of a certain crime, as 
 stealing, without setting out the words 
 spoken. (Pond v. Hartwell, 17 Pick. 
 269; Allen V. Perkins, Id. 369; Gard- 
 
 3« 
 
 ner v. Dyer, 5 Gray, 22 ; Nye v. Otis, 
 8 Mass. 122; Whiting v. Smith, 13 
 Pick. 364; Day v. Homer, 13 Pick. 
 535; and see Kennedy v. Lowry, i 
 Binn. 393 : Grubbs v. Keyser, 2 Mc- 
 Cord, 305.) But, in that State, the 
 defendant is entitled to a bill of par- 
 ticulars setting forth the exact words. 
 (See Payson v. Macomber, 3 Allen, 
 71.) A count in slander alleging that 
 defendant wrongfully and without 
 reasonable cause "imposed the crime 
 of felony " upon the plaintiff was, 
 after verdict, held good. (Davis v. 
 Noakes, i Stark. 377 ; Hill v. Miles, 9 
 New Hamp. 9.) In actions for mali- 
 cious prosecution, it is sufficient to 
 declare quod crimen felontce imposuit, 
 without stating the words. (Pippet v. 
 Hearn, 5 B. & Aid. 634; Blizard v. 
 Kelly, 2 B. & C. 283 ; Davis v. Noake, 
 6 M. & S. 33.) 
 
 " Forsyth v. Edmiston, 5 Duer, 
 
 653- 
 
 * Commonwealth v. Wright, I 
 Cush. 46. 
 
 5 Blessing v. Davis, 24 Wend. 100. 
 
 « Zenobio v. Axtell, 6 T. R. 162. 
 Where the language is not actionable 
 per se, but merely because of some 
 local meaning which is attached to it, 
 the declaration must affirmatively 
 allege the import of the language at 
 the time and place of use. (Miles v. 
 Van Horn, 17 Ind. 245.) 
 
562 PLEADING. [CH. XIII. 
 
 sufficient.^ The omission to set forth a translation may be 
 rectified by an amendment.^ On a general denial, the 
 plaintiff must prove the correctness of the translation, 
 but its correctness is admitted by a demurrer.* To allege 
 a publication of English words, and prove a publication 
 of words in another tongue, is a variance,* and cause for 
 a nonsuit.^ 
 
 § 331. The object, or one of the objects, of obliging a 
 plaintiff to set forth in his complaint the very words com- 
 plained against, is, that the defendant may, if he desires it, 
 by demurring, have the opinion of the court upon the ac- 
 tionable quality of the words.* 
 
 § 332. One supposed exception to the rule now under 
 consideration is said to be, when the words published are 
 so obscene as to render it improper that they should ap- 
 pear upon the record, and in such case the statement of 
 the words may be omitted altogether, and a description 
 substituted; but the reason for not setting forth the exact 
 words must appear by proper averments on the face of the 
 complaint.'' 
 
 1 Wormouth v. Cramer, 3 Wend, lished in German, and the defendant 
 394; Lettman v. Ritz, 3 Sandf. 734; denies the correctness of the transla- 
 Zeig V. Ort, 3 Chand. 26 ; K. v. V., 20 tion, the denial of the answer that the 
 Wis. 239; Kerschbaugher v. Slusser, article charges to the, tenor and effect 
 12 Ind. 453; Hickley v. Grosjean, 6 set forth in the complaint are not im- 
 Blackf. 351; Rahauser z/. Schwerger, material." Smith v. Ottendorfer, 3 
 3 Watts, 28 ; Simonsen v. Herold Co. N. Y. St. Rep. 188. 
 
 61 Wis. 626; Pelzerz/. Benish, 67 Wis. » Zenobio v. Axtell, 6T R 162; 
 
 291- „ ^. . „ , Zeig 7/. Ort. 3 Chand. 26. 
 
 2 Zenobio v. Axtell, 6 T. R. 162 ; « Wood v. Brown, 6 Taunt. 169. 
 Rahauser w. Schwerger, 3 Watts, 28; 'Commonwealth v. Tarbox, i 
 Jenkins v. Phillips, 9 C. & P. 766. An Cush. 66; Commonwealth v. Holmes, 
 amendment was allowed by inserting 17 Mass. 336. But see to the con- 
 the foreign words. (Deboux v. Le- trary in an indictment for blasphemy, 
 hmd, I Code Rep. N. S. 235; see Reg. z/. Bradlaugh, L. R. 2 Q. B. 569 ; 
 Vanance ) People v. Girardin, i Mason, 90; 
 
 3 Hickley v. Grosjean, 6 Blackf. The State v. Brown, i Williams, 619. 
 ^5'" ,, 1. 1 T> 1 ^ Indecent words tending only to ag- 
 
 * Keenholts v. Becker, 3 Demo, gravate the damages need not be re- 
 346; Kerschbaugher v. Slusser, 12 peated in the declaration. (Stevens 
 Ind. 453. "As the article was pub- w. Handley, Wright [Ohio], 121.) 
 
§§ 333, 334-J THE COMPLAINT. 563 
 
 § 333- The omission to set forth in the declaration the 
 very words published is a variance, and in the practice at 
 common law the omission was not cured by verdict, and 
 might be taken advantage of by motion in arrest of judg- 
 ment.^ The degree of certainty with which the defama- 
 tion must be set forth depends upon the subject-matter. 
 Where the defamation consists mainly in postures and 
 movements, the use of language somewhat general is un- 
 avoidable ; and where a declaration alleged, that the de- 
 fendant published of and concerning a certain court-mar- 
 tial, and of and concerning the plaintiff as a member 
 thereof, a defamatory libel and caricature, consisting of a 
 picture representing and pointing out the court-martial, 
 and the plaintiff as a member thereof, by their position 
 and certain grotesque resemblances, &c., it was held, after 
 verdict, to be averred with sufficient certainty that the 
 plaintiff was specifically and individually libeled.^ 
 
 § 334. The rule now under consideration does not 
 render it necessary to set forth the whole of the matter 
 published ; it is sufficient to set forth the particular pas- 
 sages complained of, provided they are divisible from, and 
 their meaning is not affected by, the other and omitted 
 passages.^ It is sufficient to set out the words which are 
 material, and additional words which do not diminish nor 
 alter the sense of the words alleged may be omitted.* 
 
 » Gutsole V. Mathers, i M. & W, 263.) It is not necessary to set forth 
 
 495 ; Wright V. Clements, 3 B. & Aid. the imputation of an offense with the 
 
 503 ; and see Variance. same particularity as in an indictment. 
 
 2 Ellis V. Kimball, 16 Pick. 132; {/d. ; Niven z/. Munn, 13 Johns. 48.) 
 Com. V. Sharpless, 3 Serg. & R. 91. ' Culver v. Van Anden, 4 Abb. 
 Judgment was arrested in an action Pr. Rep. 374; Rex z*. Brereton, 8 Mod. 
 for slander respecting a bribe, be- 329 ; Sidman v. Mayo, i Rolle R. 429. 
 cause the charge did not specify to A document referred to in an alleged 
 whom the money was given. (Purdy libel need not be set out if it does not 
 V. Stacey, S Burr. 2698.) A declara- affect the meaning of the language 
 tion in slander for charging the plaint- complained against. (Walsh v. Hen- 
 iff with larceny, held good after ver- derson, 4 Ir. L. R. 34-) 
 diet although it did not set forth the * Spencer v. McMasters, 16 111. 
 name of the owner of the property 405; Weir^/. Hoss, 6 Ala. 881 ; Buck- 
 alleged to have been stolen by plaintiff, ingham v. Murray, 2 Car. & F. 46. 
 (Thompson v. Barkley, 27 Penn. St. R. 
 
564 PLEADING. [CH, XIII. 
 
 But enough must be set forth to show the sense and con- 
 nection in which the words set forth were used ; otherwise 
 there will be a variance, even if the precise words laid are 
 proved to have been spoken.^ Where several passages are 
 extracted from the same publication, care should be taken 
 to show that such is the case, as by prefacing the first ex- 
 tract, with the allegation, in a certain part of which said 
 libel there was and is contained, &c., and by prefacing the 
 subsequent extracts with the allegation, and in a certain 
 other part of which said libel there was and is contained, 
 &c.^ But unless the insertion of the whole matter pub- 
 lished would be oppressive and embarrassing, there is no 
 objection to setting forth the whole of the matter pub- 
 lished. Thus where in slander the words set out were, 
 " Vour wife is a damned Irish woman, and has got the 
 palsy, and your son is insane, and you are a damned thief," 
 the court, on motion, refused to strike out as redundant 
 the words in italics^ In an unreported case in New York 
 in which the plaintiff set out, without innuendoes, the 
 whole of the publication (nearly an entire column in a 
 newspaper), on defendant's motion an order was made re- 
 quiring the plaintiff to specify the particular passages on 
 which he relied as defamatory.* 
 
 § 335. It is an elementary rule of pleading that what- 
 ever is alleged must be alleged with certainty ; and one 
 of the means of insuring certainty in a complaint for 
 
 1 Edgerlyz/. Swain, 32 NewHamp. portions of the article complained of 
 
 478. are supposed to be libelous. He can- 
 
 a Tabart v. Tipper, i Camp. 350; not well answer to the whole article 
 
 Cooker/. Hughes, I Ry.& M. 112. without some definite statement of 
 
 ' Deyo V. Brundage, 13 How. Pr. what is claimed to be its offensive 
 
 Rep. 221. parts. Something tangible should be 
 
 * The parts of the publication not pointed out. (Patterson, J., Prochazka 
 complained of are to be taken as true, w. Field, Feb. 1888, Supreme Court, 
 for the defendant has no opportunity N. Y. ; Fleming v. Albeck, 67 Cal. 
 of justifying them. By counsel 227.) A complaint setting forth sev- 
 (Cooke V. Hughes, Ry. & Mo. 112), I eral portions of an alleged libel, con- 
 think defendant is entitled to know by tains but one count. (Holmes v. Tones, 
 plaintiff's pleading what particular 50 Hun, 345.) 
 
§ 335.J 
 
 THE COMPLAINT. 
 
 565 
 
 slander or liable is an innuendo} Among the attempts 
 to define an innuendo and explain its function are the fol- 
 lowing : The office of an innuendo is to aver the mean- 
 ing of the language published.^ An innuendo means 
 nothing more than the words " id est^''' " scilicet " or " mean- 
 ing " or " aforesaid," as explanatory of a matter sufficiently 
 expressed before.** It is in the nature of a prcedict. It 
 may serve for an explanation, to point a meaning where 
 there is precedent matter, expressed or necessarily under- 
 stood or known, but never to establish a new charge. It 
 may apply what is already expressed, but cannot add to 
 nor enlarge nor change the sense of the previous words.* 
 If the words before the innuendo do not sound in slander, 
 
 ^ Rodeburgh v. Hollingsworth, 6 
 Ind. 339. Where the language di- 
 rectly and in terms free from ambi- 
 guity is actionable, no innuendo is 
 necessary. (Worth v. Butler, 7 Blackf. 
 251; Roella z/. Follow, /rf. 377 ; Bour- 
 reseau v. Detroit Ev. Jour. 30 No. 
 West. Rep. 376 [Mich.].) If words 
 are not actionable per se, plaintiff 
 must aver they were intended in a 
 particular defamatory sense, and were 
 in fact so understood by readers and 
 hearers. (Chamberlain v. Vance, 51 
 Cal. 75; 67/^. 79-) 
 
 2 Watson V. Nicholas, 6 Humph. 
 174. The office of the innuendo is to 
 explain doubtful words or phrases, and 
 annex to them their proper meaning. 
 It cannot extend their sense beyond 
 their usual and natural import, unless 
 something is put upon the record by 
 way of introductory matter with which 
 they can be connected. In such case, 
 words which are equivocal or ambig- 
 uous, or fall short, in their natural 
 sense, of importing any libelous charge, 
 may have fixed to them a meaning, 
 certain and defamatory, extending be- 
 yond their ordinary import. (Beards- 
 ley V. Tappan, i Blatch. C. C. 588.) 
 And to the like effect, see Dorsey v. 
 Whipps, 8 Gill, 457; Nichols v. Pack- 
 ard, 16 Vt. 83; Patterson v. Edwards, 
 2 Oilman, 720; Andrews v. Wood- 
 manse, 15 Wend. 232; Taylor v. 
 
 Kneeland, i Douglass (Mich.), 67 ; 
 Gosling V. Morgan, 32 Penn. St. R. 
 273 ; The State v. Henderson, i 
 Richardson, 179; Caverley 2/. Caver- 
 ley, 3 Up. Can. Rep. O. S. 338 ; Van 
 Vechten v. Hopkins, 5 Johns. 211; 
 Caldwell v. Abbey, Hardin (Ky.), 529; 
 McCuen v. Ludlam, 2 Harr. 12; Bes- 
 wick V. Chappel, 8 B. Mon. 486 ; 
 Benaway v. Coyne, 3 Chand. 214; 
 Vaughan v. Havens, 8 Johns. 109; 
 Gompertz v. Levy, i Perr. & Dav. 
 214 ; Dodge v. Lacey, 2 Carter (Ind.), 
 212; Cramer »». Noonan, 4 Wis. 231; 
 Stevens v. Handley, Wright (Ohio), 
 123. Where the charge was that 
 plaintiff was a " bunter," without any 
 innuendo to explain the meaning ot 
 that term, the court on the trial refused 
 to receive evidence of the meaning, 
 and plaintiff was nonsuited. (Rawlings 
 V. Norbury, I Fost. & F. 341.) In 
 Halliwell's Dictionary of Archaic 
 Terms, " Bunter " is defined "A bad 
 woman." (See an/e, note i, p. 120.) 
 
 3 Rex V. Home, 2 Cowper, 688 ; 
 approved Reg. v. Virrier, 4 Per. & D. 
 161. 
 
 *i Stark. Sland. 418; Rex v. 
 Greepe, 2 Salk. 513; i Ld. Raym. 256; 
 12 Mod. 139; I Saund. 243; Van 
 Vechten v. Hopkins, 5 Johns. 220; 
 McClaughry v. Wetmore, 6 Johns. 83; 
 Thomas z/. Croswell, 7 Johns. 271; 
 Weed V. Bibbins, 32 Barb. 315. 
 
566 
 
 PLEADING. 
 
 [CH. XIII. 
 
 no meaning produced by the innuendo will make the 
 action maintainable, for it is not the nature of an innuendo 
 to beget an action.^ " An innuendo helps nothing unless 
 the words precedent have a violent presumption of the 
 innuendo.'' ^ The business of an innuendo is by a refer- 
 ence to preceding matter to fix more precisely the mean- 
 ing.^ "The office of an innuendo is to explain not to 
 extend what has gone before, and it cannot enlarge the 
 meaning of words, unless it be connected with some matter 
 of fact expressly averred." * The innuendo " is only a link 
 to attach together facts already known to the court." ^ 
 
 § 336. An innuendo cannot perform the office of an 
 inducement;* in other words, the want of proper induce- 
 ment cannot be supplied by an innuendo.'' The absence 
 
 > Barham v. Nethersole, Yelv. 21. 
 
 ' Castleman v. Hobbs, Cro. Eliz. 
 428. 
 
 3 RexT/. Aylett, i T. R. 63 ; Beards- 
 ley V. Tappan, 1 Blatch. C. C. 588 ; 
 see anie, § 309. 
 
 * Patterson v. Edwards, 2 Gilman, 
 720; Van Vechten v. Hopkins, 5 
 Johns. 211. The innuendo cannot 
 introduce new matter. (Taft v. How- 
 ard, I Chip. 275; Nichols v. Packard, 
 16 Vt. 83 ; Weir v. Hoss, 6 Ala. 881 ; 
 Brown v. Burnett, 10 Bradw. [III.] 
 279.) Or change the ordinary mean- 
 ing of language. (Hays v. Mitchell, 
 7 Blackf. 117.) 
 
 ' Cooke on Defamation, 94. 
 
 " Fitzsimmons v. Cutter, i Aik. 
 33; The State v. Henderson, i Rich- 
 ardson, 179; Lindsey v. Smith, 7 
 Johns. 359; Ward v. Colyhan, 30 Ind. 
 396; The State v. Atkins, 42 Vt. 252; 
 Stitzell V. Reynolds, 59 Penn. 488; 
 Emery v. Prescott, 54 Me. 389; Pat- 
 tersons. Wilkinson, 5 5 Me.42; Beards- 
 ley V. Tappan, i Blatch. C. C. 588. 
 
 ' Church V. Bridgman, 6 Mo. 
 190; Milligan v. Thorn, 6 Wend. 412 ; 
 Sayre v. Jewett, 12 Wend. 135; 
 Hawkes v. Hawkey, 8 East, 427; 
 Joralemon v. Pomeroy, 22 New Jersey, 
 271. The words, " Thereby accusing 
 the plaintiff of stealing," in a declara- 
 
 tion, immediately following words 
 alleged to have been spoken, which do 
 not of themselves amount to a charge 
 of larceny, without any precise ceUo- 
 quium or averment showing such to 
 have been the intention, are not suffi- 
 cient to make the declaration good. 
 (Brown v. Brown, 2 Shep. 317.) 
 Where, in an action for slander, the 
 declaration alleged that the defendant 
 had said of the plaintiff that he had 
 set fire to his own premises, innuendo 
 that plaintiff had been guilty of will- 
 fully setting fire to the premises which, 
 whilst in his occupation, had been 
 destroyed by fire, it was held, on mo- 
 tion in arrest of judgment, that the 
 court could not after verdict presume 
 that the jury had found that defendant 
 meant to impute to plaintiff that he 
 had done it unlawfully or feloniously, 
 as well as willfully. (Sweetapple v. 
 Jesse, 2 Nev. & M. 36 ; 5 B. & Adol. 
 27.) In slander, the declaration 
 stated that the plaintiff was a justice 
 of the peace, and that the defendant, 
 meaning to hijure and expose him to 
 prosecution for corruption, &c., in a 
 certain discourse,&c.,said to the plaint- 
 iff,in his office of justice : " L.(meaning 
 the plaintiff) had been feed by A. W. 
 (meaning A. W., who lately had a 
 cause pending and determined before 
 
§ 336.] 
 
 THE COMPLAINT. 
 
 56; 
 
 of inducement, showing by extrinsic matter that the words 
 charged are actionable, is not supplied by an innuendo 
 attributing to those words a meaning which renders them 
 actionable.^ Words not in themselves actionable, cannot 
 be rendered so by an innuendo, without a prefatory aver- 
 ment of extrinsic facts, which makes them slanderous.'' If 
 the words charged do not imply a criminal charge, subject 
 to infamous punishment, an innuendo will not help them ; 
 but when they are used in a double sense, the plaintiff may, 
 by an innuendo, aver the meaning with which he desires 
 it to be understood they were spoken, and the jury may 
 find whether they were spoken with that meaning or not.^ 
 
 the plaintiff ), and that he (the defend- 
 ant meaning) could do nothing when 
 the magistrate was in that way against 
 him (the defendant meaning).'' After 
 "verdict, the declaration was held suffi- 
 cient. (Burtch V. Nickerson, 17 
 Johns. 217.) Where the words in 
 themselves were such as were usually 
 applied to the keeper of a gambling 
 house, and obviously imputed to the 
 plaintiff fraudulent and dishonorable 
 conduct; held, that the declaration 
 might be supported, although the 
 words might not be capable, by innu- 
 ■endo, of being referred to any partic- 
 ular malpractice. (Digby v. Thomp- 
 son, I Nev. & M. 485.) An averment 
 in a declaration that the defendant 
 had spoken of and concerning the 
 plaintiff, these words : " N. (meaning 
 the plaintiff) burnt it (meaning the 
 store), and he (meaning the plaintiff ) 
 inew it, and I (meaning the defend- 
 ant) can prove it," preceded by a col- 
 loquium that the words were spoken 
 of and concerning the burning of a 
 store owned by the defendant, and 
 followed by an averment that the 
 words were intended to charge the 
 plaintiff with a felonious burning, &c., 
 was held sufficient. (Nichols v. Pack- 
 ard, 16 Vt. 83.) 
 
 » Holton V. Muzzy, 30 Vt. (i 
 Shaw), 365; Bell v. Sun Print. & 
 Pub. Co. 3 Abb. N. C. 157; 42 N. Y. 
 Superior Ct. 567. 
 
 " Watts V. Greenleaf, 2 Dev. 115; 
 
 see Brown v. Brown, 2 Shep. 317 
 Harris v. Burley, 8 N. Hamp. 256 
 Beswick v. Chappel, 8 B. Monr. 486 
 Dottarer v. Bushey, 16 Penn. 204 
 Moseley v. Moss, 6 Gratt. 534; Wat' 
 son V. Hampton, 2 Bibb. 319; Hall v. 
 Blandy, i You. & Jer. 480; Ramscar 
 V. Gerry, 16 N. Y. St. Rep. 789. A 
 declaration containing words which, 
 in common understanding, would im- 
 port the crime against nature, preced- 
 ing them with an averment that they 
 were intended to charge the plaintiff 
 with that crime, and following them 
 with an averment that they were so 
 understood, is good. (Goodrich v. 
 Woolcot, 3 Cow. 231 ; affi'd 5 Cow. 
 
 7140 
 
 ' Dottarer v. Bushey, 16 Penn. St. 
 Rep. (4 Harris), 204. Words which 
 do not necessarily import criminality 
 are in pleading rendered actionable 
 only by reference to extrinsic facts 
 which show them to have been used 
 in an obnoxious sense. (Pittsburg 
 R'y Co. V. McCurdy, 114 Penn. St. R. 
 S54.) A charge that '' Byerly (plaint- 
 iff) had taken apples or had stolen 
 apples out of Borland's orchard " held 
 equivocal as meaning either a trespass 
 or a larceny, which required matter of 
 inducement to determine, and that the 
 want of inducement was not supplied 
 by an innuendo. (Lukehart v. Byer- 
 ley, S3 Penn. St. 418; and see Pitts- 
 burg, &c. V. McCurdy, 6 Cent. Rep. 
 719; 114 Penn. St. 554.) 
 
568 PLEADING. [CH, XIII, 
 
 Thus, where the charge was that the plaintiff lived by 
 swindling and robbing the public, here the language might 
 mean either fraud or felony. The plaintiff, in his declara- 
 tion, alleged that it meant to charge him with being guilty 
 of felony and robbery. On the trial it was held to impute 
 only a charge of fraud, and as a charge of fraud is not 
 actionable per se, the plaintiff failed in his action.^ 
 
 § 337. An innuendo cannot expend the meaning of de- 
 famatory matter, unless by reference to matter of induce- 
 ment. The innuendo must be supported by the induce- 
 ment." Where there was no inducement, and the allega- 
 tion was, " T. Barham (the plaintiff) hath burnt my barn 
 (meaning my barn at that time full of corn); " after verdict 
 for the plaintiff, judgment was arrested, because to burn 
 the barn was only a trespass, and the innuendo meaning a 
 barn full of corn, extended the signification of the word 
 6urn, and was unwarranted.* It should have been averred 
 that the plaintiff had a barn full of corn, and that in a con- 
 versation about that barn, the defendant had spoken the 
 words charged ; then the innuendo that the barn meant 
 '' my barn full of corn," would have been good. In libel, 
 an innuendo imputing to the plaintiff larceny of plants and 
 
 1 Smith i;. Carey, 3 Camp. 461. D. are not actionable Z^^" se, judgment 
 killed my beef, cannot be extended by must be arrested. (Barham v. Neth- 
 innuendo to impute a felony. (Hans- ershall, Yelv. 22; 4 Co. 20; Gainsford 
 borough V. Stinnett, 25 Gratt. 495.) v. Blatchford, 7 Price, 544; 6 Price, 
 Forsworn must be explained by in- 36.) 
 
 ducement to make it actionable. ' Barham v. Nethershall, Yelv. 21 ; 
 
 (Pittsburg, &c. V. McCurdy, 6 Cent. Frank v. Dunning, 38 Wis. 270. I 
 
 Rep. 721; see ^M^, § 338.) saw Peter (plaintiff) with or at a 
 
 2 Taylor v. Kneeland, i Doug. heifer; innuendo committing sodomy; 
 (Mich.) 67 ; The State v. Henderson, after verdict for plaintiff, judgment 
 I Rich. 179; Stucker v. Davis, 8 arrested, because innuendo not war- 
 Blackf. 414; Sanderson v. Caldwell, ranted. (Johnson v. Hedge, 6 Up. 
 45 N. Yi 398. A judgment in slander Can. Q. B. Rep. 337.) He (plaintiff ) 
 will not be arrested because an innu- sheared two of Zack Austin's sheep 
 endo enlarges the natural meaning of and kept the wool, with an innuendo 
 the words spoken. (Shultz v. Cham- but no colloquium, held not sufficient 
 bers, 8 Watts, 300 ; Solomon v. Law- to show a cause of action. (Brown v, 
 son, 8 Q. B. 823.) But if rejecting Finer, 6 Ky. [Bush.] 518.) 
 
 the innuendo as surplusage, the words 
 
§ 337-1 THE COMPLAINT. 569 
 
 flowers of the defendant, and motion in arrest of judg- 
 ment, on the ground that larceny could not be committed 
 of flowers, and so the innuendo was too large ; it was held 
 sufficient after verdict, as the term flowers must be taken 
 to have meant such flowers as were capable of being the 
 subject of larceny, by being detached or otherwise.^ And 
 where the language of the plaintiff, as clerk of a company, 
 was, '■' You have done many things with the company for 
 which you ought to be hanged, and I will have you hanged 
 before," &c.; and there was a.n innuendo that the plaintiff 
 had been guilty of felonies punishable by law with death 
 by hanging ; on motion in arrest of judgment, it was held 
 sufficient.^ The word forsworn cannot by an innuendo 
 alone be interpreted perjury. Thus, where the allegation 
 was, "John Holt (meaning the plaintiff") had forsworn 
 himself (meaning that the plaintiff had committed willful 
 and corrupt perjury);" after verdict for the plaintiff judg- 
 ment was arrested, because the innuendo was unwarranted 
 by an inducement.* In slander, the plaintiff averred that 
 he had in due manner put in his answer on oath to a bill 
 filed against him by the defendant in the Court of Ex- 
 chequer, but did not proceed to aver any colloquium 
 respecting that answer, with reference to which the words 
 
 * Gardiner v. Williams, 2 Cr. M. ant's employ in the same capacity, and 
 
 & R. 78; 3 Dowl. Pr. Cas. 796. In had been discharged for dishonesty; 
 
 this case, one of the counts set forth held, on error, that the innuendo was 
 
 the following passage of a letter from not too large, (i M. & W. 245.) 
 
 the defendant to one P. : " I have rea- ' Francis v. Roose, 3 M. & W. 
 
 son to suppose that many of the 191. Where the words were: ''We 
 
 flowers of which I have been robbed are requested to state that the secre- 
 
 are growing upon your premises tary of the Tichborne Defense Fund is 
 
 (thereby meaning that the plaintiff had not, and never was, a captain in the 
 
 been guilty of larceny, and had stolen Royal Artillery;'' innuendo that 
 
 from the defendant certain plants, plaintiff was an imposter, and fraudu- 
 
 roots, and flowers of the defendant, lently represented himself as a captain 
 
 and had unlawfully disposed of them — held that the innuendo was not 
 
 to P., and unlawfully placed them in warranted. (Hunt v. Goodlake, 29 
 
 P.'s garden).'' The previous part of Law Times, N. S. 472 ; 43 Law Jour, 
 
 the letter stated that the plaintiff. Rep. N. S. C. P. 54-) 
 
 whom P. had taken into his employ » Holt v. Scholefield, 6 Term R. 
 
 as a gardener, had been in the defend- 691. 
 
57° PLEADING. [CH. XIII. 
 
 were spoken ; and then alleged that the defendant said of 
 him that he was forsworn ; innuendo that the plaintiff had 
 perjured himself in what he had sworn, in his aforesaid 
 answer to the said bill ; held, that this innuendo could not, 
 without the aid of such a colloquium, enlarge the sense of 
 the words by referring them to the answer averred in the 
 prefatory part of the declaration to have been put in.^ 
 Where the declaration only alleged the intention to impute 
 misconduct, and that the defendant maliciously pubhshed 
 a notice, "That any person giving information where 
 property belonging to the plaintiff, a prisoner in the King's 
 Bench prison, might be found, should receive five per 
 cent, on the goods recovered," an innuendo that thereby 
 the plaintiff had been guilty of concealing his property, 
 with a fraudulent and unlawful intention, was held bad, on 
 demurrer, as enlarging the meaning of the terms used.* 
 In an action for a libel, the first count, after the usual pre- 
 fatory averments, proceeded thus : " What possessed Lord 
 H. (meaning thereby the said Lord Lieutenant of Ireland), 
 if he knew anything about the country, or was not under 
 the spell of vile and treacherous influences, to make his 
 first visit, and that carefully puffed, to Long's, the coach- 
 maker (meaning thereby the said plaintiff), the other day? 
 If mere trade was his (meaning thereby the said Lord 
 Lieutenant's) object, he had several respectable houses 
 open to him (meaning thereby that the house and place of 
 business of the said plaintiff was not respectable, and that 
 the said visit was paid thereto for political objects)." 
 Held, that the innuendo did not enlarge the sense of these 
 words, which were fully capable of the meaning given to 
 them.' And where the declaration stated that the plaint- 
 
 ^ Hawkes v. Hawkey, 8 East, 427. husband and wife, and that defendant 
 2 Gompertz v. Levy, i Perr. & alleged that the female plaintiff was 
 Dav. 214. the wife of one C, innuendo that B. 
 ' Barrett v. Long, 3 Ho. of Lords had been guilty of bigamy— held that 
 Cas. 395. Where the declaration the innuendo was warranted. (Hem- 
 alleged that plaintiffs, A. and B., were ing v. Power, 10 M. & W. 564.) 
 
§ 337-J THE COMPLAINT. 
 
 571 
 
 iff was a trader, and employed by the board of ordinance 
 to relay the entrance to their office with new asphalt, and 
 that the defendant falsely said of him in his said trade, and in 
 reference to the work: "The old materials have been 
 relaid by you in the asphalt work executed in front of the 
 ordnance office^ and I have seen the work done." Innu- 
 endo that the plaintiff had been guilty of dishonesty in the 
 conduct of his said trade, by laying down again the old 
 asphalt which had been before used at the entrance of the 
 ordnance office, instead of new asphalt, according to his 
 contract. Held, on motion to arrest the judgment, that 
 the declaration was sufficient, and the innuendo was not 
 too large, as it put no new sense on the words, but only 
 imputed intention to the speaker.^ Where the words set 
 forth were, that A. was murdered, and the plaintiff was 
 concerned in it and had a hand in it, innuendo meaning 
 that the plaintiff aided and assisted in the commission of 
 the murder, it was held to be sufficient.^ The first count 
 of a declaration charged the speaking these words of and 
 concerning the plaintiff : " You are a bloody thundering 
 thief, and all your family. I can prove you and them to 
 be thieves. I can prove you (meaning plaintiff) to 
 go down the river (meaning the river Thames) with ships 
 of eight feet water (meaning ships drawing eight feet 
 water), charging the owners for ten feet, &c.; and you 
 (meaning plaintiff) are obliged to move from one parish 
 to another (meaning thereby that the plaintiff was guilty 
 of dishonesty, and of charging more for the pilotage of 
 certain ships than he was by law entitled to do)." Held, 
 that the words were actionable without any innuendo, but 
 that those put were proper.^ " I have heard that a maid 
 
 1 Barbanneau v. Farrell, 15 C. B. Although an innuendo cannot enlarge 
 
 360; 24 Law J. Rep. (N. S.) C. P. 9; the real sense of the words, yet if, 
 
 I Tun N. S. 114. under the circumstances stated in the 
 
 " Tenney I/. Clement, 10 N.Hamp. declaration, the meaning which is 
 
 52. alleged can be reasonably imputed to 
 
 '«Simpsey v. Levy, 2 Jurist, 776. them, then the allegation of such 
 
572 PLEADING. [CH. XIII. 
 
 of Sir J, K.'s should report, that he being sick, and she 
 looking through a hole of the door, saw 2i priest (innuendo 
 a popish pries{) give the eucharist and extreme unction ;" 
 . . . and " saw a popish priest anoint (innuendo ex- 
 treme unction) him." Held, after verdict, that priest was 
 rightly construed popish priest^ and anoint was rightly con- 
 strued extreme unction}- Where the words charged as 
 libelous were, " Who was deprived of a two-penny justice- 
 ship, for malpractice in packing a jury," and they were ex- 
 plained, by an innuendo, as meaning "that the plaintiff 
 had packed a jury, and had been guilty of malpractice in 
 packing a jury," it was held that the innuendo was war- 
 ranted by the words charged.*^ 
 
 § 338. Where language is ambiguous and is as suscep- 
 tible of a harmless as of an injurious meaning, it is the 
 function of an innuendo to point out the meaning which 
 the plaintiff claims to be the true meaning, and the mean- 
 ing upon which he relies to sustain his action. This 
 applies whether the ambiguity be patent or latent (§ 128),* 
 and whether or not there are any facts alleged as induce- 
 ment* By this means the defendant is informed of the 
 precise charge he has to meet, and to deny or justify ; but 
 the plaintiff is subjected to the risk that if he claims for the 
 language a meaning which is not the true one, or one 
 which he is unable to make out satisfactorily, he may be 
 
 meaning is strictly the proper function iff was that he had stolen the money, 
 
 of the innuendo. (Ganet v. Babbitt, and therefore was sufficient. (Hoyt v. 
 
 1 Bradw. [111.] 130 ; Petsch v. St. Paul Smith, 32 Vt. [3 Shaw], 304.) 
 Dispatch Print. Co. 41 No. West. Rep. ^ Griffiths v. Lewis, 8 Q. B. 841 ; 7 
 
 1034 [Minn.].) Id. 67 ; Joralemon v. Pomeroy, 2 New 
 
 1 Knightly w. Marrow, 3 Lev. 68. Jer. 271; Watson v. Nicholas, 6 
 
 2 Mix V. Woodward, 12 Conn. 262. Humph. 174. But " it is not allowable 
 In an action for slander, the innu- to interpret what has no need of in- 
 endoes "meaning to insinuate and terpretation." (McCluskey v. Crom- 
 falsely represent," "meaning to insin- well, 11 N. Y. 601 ; and ante, note p. 
 uate and be understood,'' or "mean- iii.) 
 
 ing and intending to represent,'' * Clegg v. Laffer, 3 Moo. & Sc. 
 
 "that the plaintiff had stolen the 727; 10 Bing. 350; Williams w. Stott, 
 
 money aforesaid,'' indicate that the I C. & M. 675; Smith v. Carey, 3 
 
 defendant's charge against the plaint- Camp. 461. 
 
§ 338.] 
 
 THE COMPLAINT. 
 
 573 
 
 defeated on the ground of variance or failure of proof. 
 For when the plaintiff, by his innuendo, puts a meaning 
 on the language published, he is bound by it, although that 
 course may destroy his right to maintain the action;^ as 
 where the alleged slander was that " Mrs. B.'s time has 
 come around (innuendo that the usual period of parturition 
 had arrived), and he (plaintiff) is down there getting a 
 child away from her. He is procuring an abortion upon 
 her." It was held that but for the interpretation the 
 plaintiff had, by the innuendo, put on the words " her time 
 has come around," the words were actionable, but with 
 that meaning they were not actionable, and plaintiff was 
 bound by the interpretation he had himself supplied,^ 
 And so where the plaintiff alleged that he was treasurer 
 and collector of certain tolls, and that defendant published 
 of him (plaintiff), as such treasurer and collector, "You 
 are gathering the toll for your own pocket," innuendo that 
 plaintiff, being such treasurer and collector, was guilty of 
 
 ' Wharton v. Gearing, i Vict. Law 
 Rep. L. 122. 
 
 2 Butler V. Wood, lo How. Pr. R. 
 222. When, at the close of the trial, 
 the plaintiff claimed and obtained a 
 verdict upon a meaning different from 
 that pointed by his innuendo, a new 
 trial was granted, on the ground of 
 surprise upon the defendant. (Hunter 
 V. Sharpe, 4 Fost. & F. 983 ; see Day 
 V. Robinson, i Adol. & El. 554; note 
 to § 144, subd. z, ante; Gompertz v. 
 Levy, 9 A. & E. 282 ; and Smith v. 
 Carey, 3 Camp. 461 ; Strader v. Sny- 
 der, 67 111. 404; ante, % 336. Where 
 the words were actionable /«/■ se, and 
 there was an innuendo giving them a 
 meaning of which they were capable, 
 and the jury found upon distinct 
 issues (I) that the words were libel- 
 ous, and (2) that the words did not 
 have the meaning imputed by the in- 
 nuendo, held that the innuendo could 
 not be rejected to enable plaintiff to 
 have a verdict upon another construc- 
 tion of the words. (Maguire v. Knox, 
 Ir. Rep. 5 Com. Law, 408 ; Ruel v. 
 
 Tatnel, 43 Law Times, N. S. 507.) 
 In this latter case plaintiff alleged in 
 his statement of claim, that defendant 
 falsely and maliciously spoke of plaint- 
 iff the words : ' ' His shop is in the 
 market," meaning thereby that plaint- 
 iff was going away, and was guilty of 
 fraudulent conduct in his business, in- 
 asmuch as he had received subscrip- 
 tions from members of a certain club, 
 well knowing that they would be un- 
 able to obtain any benefit therefrom. 
 Held, that the words not being them- 
 selves defamatory, and there being no 
 evidence to wholly support the innu- 
 endo, the defendant was entitled to 
 judgment. (See post, § 372 ; and ante, 
 p. 136 n. 2.; and as to rejecting the 
 innuendo see § 344, post^) In Watkin 
 V. Hall (Law Rep. 3 Q. B. 396), 
 plaintiff failed to establish the meaning 
 imputed by the innuendo, and was 
 allowed to recover on another mean- 
 ing. But this was justified under the 
 Common Law Procedure Act of 1852. 
 (And see Brembridge v. Latimer, I2 
 Week. Rep. 878.) 
 
574 PLEADING. [CH. XIII. 
 
 collecting tolls to improperly apply them to his own use ; 
 on the trial, the plaintiff having proved that he was 
 treasurer only, and not collector, the variance was con- 
 sidered fatal, and the plaintiff was nonsuited ; for the words 
 were applicable to the plaintiff rather in his character of 
 -collector than treasurer, and the plaintiff was bound to 
 prove the words applicable to the plaintiff in the manner 
 which he himself had pointed out by innuendo.^ 
 
 § 339. If the innuendo consists of two distinct allega- 
 tions, which can be separated without destroying the sense 
 of either of them, and one of them is and the other is not 
 warranted by the alleged libelous matter, the latter may be 
 rejected, and the count will be valid.^ Therefore, in an 
 action of slander, where the words alleged to have been 
 spoken clearly charged the killing of a horse, and the 
 innuendo was that the defendant intended to charge the 
 plaintiff with arson, it was held that the innuendo might 
 be stricken out, and the declaration sustained upon the 
 charge of killing the horse.^ 
 
 § 340. The following innuendos were held to be 
 proper, without any inducement to support them : Bish- 
 ops, innuendo Bishops of England ; * Ministers, innuendo 
 the Ministers of the King of England;® The Navy, 
 innuendo the Royal Navy of this Kingdom;® Chevalier, 
 innuendo the Pretender;^ Little Gentleman on the 
 other side of the water, innuendo the Prince of Wales ; * 
 Door, innuendo The Outer Door;' Death, innuendo 
 Murder;^' His, innuendo the defendant's ;" mere man of 
 
 1 Sellers v. Till, 4 B. & C. 655; » Anon. 11 Mod. 99. 
 
 see ante, note 5, p. 549. 9 Rex v. Aylett, I T. R. 63. 
 
 * Barrett w. Long, 8 Ir. Law Rep. '» Oldham v. Peake, 2 W. Black. 
 
 33 1- 959- 
 
 » Gage V. Shelton, 3 Rich. 242. n Muck's Case, 8 Mod. 30. Filly 
 
 '■ Baxter's Case, 3 Mod. 69. horse, innuendo the plaintiff's wife, 
 
 » Anon. 1 1 Mod. 99. his name being Hoss. (Weir v. Hoss, 
 
 « Tutchin's Case, 5 State Trials, 6 Ala. 881; and see ««/«, note 2, p. 
 
 590. 113.) 
 ' Rex V. Matthews, 9 State Trials. 
 
 682. 
 
§ 34I-] THE COMPLAINT. 575 
 
 Straw, innuendo he was insolvent.^ M. G. (the plaintiff's 
 son and servant) uses two balls to his mother's steelyard, 
 innuendo that plaintiff, by M. G. as her servant, used 
 fraudulent weights, and cheated in her trade.'^ 
 
 § 341. The following innuendos were held to be un- 
 warranted, there being no inducement to support them : 
 Thomaston, innuendo the State prison situate in the town 
 of Thomaston;* He fired his house, innuendo he volun- 
 tarily fired his house ; * She is sick, innuendo she has had 
 a child ; ^ Tan-money, innuendo money the produce of the 
 sale of tan ; * She is a bad girl, innuendo a prostitute ; "^ 
 Public house, innuendo a bawdy-house ; ^ Thou hast stolen 
 half an acre of my com, innuendo the corn growing upon 
 half an acre of ground reaped and put into shocks by the 
 defendant ; ' You are a regular prover under bankruptcies, 
 innuendo that plaintiff was accustomed to prove fictitious 
 debts under commissions of bankruptcy;^" He had corn 
 from B.'s bam, innuendo that he had stolen corn from B. ;" 
 My landlord, innuendo the plaintiff;-'^ Thy father, innu- 
 endo the plaintiff;^* Thy son, innuendo the plaintiff;" He 
 
 ■■ Eaton V. Johns, i Dowl. Pr. « Castleman v. Hobbs, Cro. Eliz. 
 
 Cas. N. S. 602. He has become so 428. 
 
 inflated with self-importance by the * " Alexander v. Angle, i Tyrw. 9 ; 
 
 few hundreds made in my employ, i C. & J. 143; 7 Bing. 119; 4 M. & 
 
 God only knows whether honestly or P. 870. 
 
 otherwise (innuendo that plaintiff had * > Wheeler v. Haynes, i Perr. & 
 
 conducted himself dishonestly in the Dav. 55; 9 Adol. & Ell. 286, note ; 
 
 service of defendant) ; held the innu- Harvey v. French, 2 Moo. & S. 591. 
 
 endo was justified. (Clegg v. LafFer, ^^ i Starkie on Slander, 386. 
 
 3 Mo. & Sc. 727.) ' ' Badcock v. Atkins, Cro. Eliz. 
 
 " Griffiths V. Lewis, 8 Q. B. 841. 416; Phelps v. Lane, Cro. Car. 92. 
 
 ' Emery 2/. Prescott, 54 Maine, 389. 1* Shalmer v. Foster, Cro. Car. 
 
 * Anon. II Mod. 220. 176. But see Wiseman v. Wiseman 
 » Smith V. Gaffard, 33 Ala. 108. (Cro. Jac. 107), where it was alleged 
 
 • Dayw. Robinson, i Ad. & Ell. the defendant spoke the words ^.f/r*?- 
 554. fato querente exist ente fratre sua 
 
 ' Snell V. Snow, 13 Mete. 278. naturali, and adjudged for plaintiff. 
 
 Bitch cannot by innuendo be made to Where the description may apply to 
 
 impute whoredom. (Schurick v. KoU- one of a class, as brothers or sons, it 
 
 man, 50 Ind. 336.) is unnecessary for the plaintiff to aver 
 
 8* Dodge V. Lacey, 2 Cart. 212; that he is the only brother or only son. 
 
 ante, note 5. p. 140. And so of " bad (i Starkie on Sland. 388 ; see ante, 
 
 house.'' (Peterson v. Sentman, 37 note i, p. 553.) 
 Md. 140.) 
 
576 PLEADING. [CH. XIII, 
 
 lost no time in transferring himself, together with £ 
 
 of John Bull's money, to Paris, where he now out-tops 
 princes in his style of living, innuendo that the plaintiff 
 had thereby cheated '^o\in Bull.* 
 
 § 342. Evidence cannot be introduced to support or 
 explain an innuendo.^ " I never knew an innuendo offered 
 to be proved."* Its truth must always appear from prece- 
 dent averments.* An issue cannot be raised upon the 
 truth of an innuendo.^ Where an averment or colloquium 
 introduces extrinsic matter into a complaint, that is proper 
 subject of proof.* Whether the language is capable of 
 bearing the meaning assigned by the innuendo, is for the 
 court ; whether the meaning is truly assigned to the lan- 
 guage, is for the jury.' 
 
 § 343. Where the language is not in itself applicable 
 to the plaintiff, no innuendo can make it so.* But where 
 the matter published on its face appears to apply to a class 
 
 1 Yrisarri v. Clement, 3 Bing. 432. approved Van Vechten v. Hopkins, 5 
 
 Society of guardians for the protection Johns. 226 ; and see Fry v. Bennett, 5 
 
 of trade against swindlers and Sandf. 66 ; Blaisdell v. Raymond, 4 
 
 sharpers. I (defendant) am directed Abb. Pr. Rep. 454. 
 to inform you that A. B. (plaintiff) * Taylors/. Kneeland, I Douglass 
 
 and C. D. are reported to this society (Mich.), 67. Innuendo cannot be 
 
 as improper to be proposed to be aided by opinion of witness. (Rangier 
 
 balloted for as members thereof ; in- v. Hummel, i Wright, 130; Pittsburg 
 
 nuendo that plaintiff was a swindler A. & M. R'way Co. v. McCurdy, 114 
 
 and sharper, held not warranted. Penn. St. 554.) 
 
 (Goldstein 2/. Foss, 6 B. & Cr. 154.) s Fry v. Bennett, 5 Sandf. 54; 
 
 Action by a conductor against his Commonwealth v. Snelling, 15 Pick, 
 
 employers for posting a notice that 335. Justifying an innuendo, see 
 
 plaintiff " had been discharged for Biggs v. Gt. East. R. R. (16 Weekly 
 
 failing to ring up all fares collected ; " Rep. 908). .An innuendo may in some 
 
 innuendo that he had been guilty of cases justify a demurrer. (Fry v. 
 
 embe2zlement; held innuendo not Bennett, 5 Sandf. 54.) 
 warranted. (Pittsburg A. & M. R'y « Van Vechten v. Hopkins, 5 
 
 Co. w. McCurdy, 114 Penn. St. 554.) Johns. 24. 
 
 * The State v. Henderson, i Rich- ' Blagg v. Stuart, 10 Q. B. 899; 
 
 ardson, 179; Van Vechten z/. Hopkins, Broome v. Gosden, I C. B. 728; Bar- 
 
 5 Johns. 211; Gidney v. Blake, 11 rett 7/. Long, 3 House of Lords Cas. 
 
 Johns. 54; see Johnson v. McDonald, 395; Barbanneau v. Farrell, 15 C. B. 
 
 2 Up. Can. Q. B. Rep. 209. 360 ; Hemmings v. Gason. 5 Ir. Law 
 
 ^ PoUexfen arg. Rosewell's Case, Rep. 498. 
 
 3 State Trials, 1058, admitted by « See in note to § 131, ante; and 
 court and opposite counsel, cited and §§ 310, 316, 3753, 
 
§ 343-] THE COMPLAINT. 
 
 577 
 
 of individuals, the plaintiff may, by an innuendo, show that 
 the publication applied to him ; that is not extending the 
 sense of the matter. Therefore, where the declaration 
 alleged that the plaintiff was owner of a factory in Ireland, 
 and charged that the defendant published of him and of the 
 -said factory a libel, imputing that, " in some of the Irish 
 factories" (meaning thereby the plaintiff's) "cruelties were 
 practiced," though there was no allegation otherwise con- 
 necting the libel with the plaintiff, was, after verdict, held 
 good.^ If the plaintiff is designated by another name in 
 the libel, his real name may be designated by inducement 
 and an innuendo:^ In libel the plaintiff averred that she 
 was the mother of one Edward J. Barker, and that defend- 
 ant, knowing this, to defame her, published "of the 
 Barkers — that was the name of his reputed father, what 
 was his mother's I either never knew or have forgot, but I 
 know it was not Barker," innuendo that plaintiff was the 
 mother of an illegitimate child, on demurrer held that the 
 declaration was good.* A count in libel, after averring 
 that a sum of money was standing in the Bank of En- 
 gland, at the time of the death of one W. T., in his name, 
 alleged that the defendant published concerning the plaint- 
 iff, and concerning such money, the following libel : '' There 
 
 ' Le Fanu v. Malcomson, i House character, like Polyphemus, the man- 
 of Lords Cas. 637 ; 13 Law Times, 61 ; eater, has but one eye, and is well 
 Parker v. Raymond, 3 Abb. Pr. Rep. known to all persons acquainted with 
 N. S. 343 ; Marsden v. Henderson, 22 the name of a certain circumnavi- 
 Up. Can. Q. B. Rep. 585. There needs gator," meaning to allude to the 
 no innuendo when the words are plaintiff's name. (J 'Anson z/. Stuart, i 
 spoken to the plaintiff himself. (2 T. R. 748.) A declaration in slander, 
 Rolle Rep. 243.) " You have be- which, averring a colloquium concern- 
 witched my mare," innuendo the mare ing the plaintiff and A., charged the 
 of the //fl!i!«/z^ instead of the defend- defendant with saying that A. thinks 
 ant, held good after verdict. (Smith v. it a hard matter to commit fornication 
 Cooker, Cro. Car. 512; but see ante,^ with "his niece'' (meaning the plaint- 
 note 4, p. 552.) ' iff ), was held sufficient, without an 
 
 2 Hays V. Brierly, 4 Watts, 392. averment that the plaintiff was A.'s 
 
 "Mr. Deceiver" (meaning the plaint- niece. (Miller v. Parish, 8 Pick. 384.) 
 iff), held good on writ of error. (Fleet- ' Anderson v. Stewart, 8 Up. Can. 
 
 wood V. Curie, Cro. Jac. 557.) The Q. B. Rep. 243; and see ante, note 
 
 following was held sufficient to point 14, p. 575. 
 out the plaintiff: "This diabolical 
 
 37 
 
578 PLEADING. [CH. XIII. 
 
 is Strong reason for believing that a considerable sum of 
 money was transferred from Mr, T.'s (meaning the said W. 
 T.'s) name in the books of the Bank of England, by power 
 of attorney obtained from him by undue influence, after he 
 became mentally incompetent to perform any act requiring 
 reason and understanding" (thereby meaning that the 
 plaintiff had transferred, or caused to be transferred, the 
 said money from the said W. T.'s name in the said books 
 of the said bank, by means of a power of attorney obtained 
 by him from the said W. T., by undue influence exercised 
 by him over the said W. T., at a time when the said W. T. 
 had become mentally incompetent to give a power of 
 attorney, and to perform any act requiring reason and un- 
 derstanding). Held, after verdict for plaintiff, on motion 
 in arrest of judgment, that the libel was sufficiently shown 
 to point to the plaintiff.^ Averments were introduced into 
 the declaration of words spoken by the defendant imputing 
 dishonesty to L., the name of L. being followed by the 
 innuendo, " meaning the plaintiffs' agent and clerk," but 
 there was nothing else in the declaration showing any con- 
 nection between L. and the plaintiffs. Held, that in the 
 absence of a direct averment connecting L. with the 
 plaintiffs or their business, the words alleged to have been 
 spoken concerning them were not actionable in favor of the 
 plaintiffs." Where the alleged libel consisted of a passage 
 in a newspaper warning certain persons to avoid the traps 
 laid for them by desperate adventurers, innuendo the 
 plaintiff amongst others, was, after verdict, held suffi- 
 ciently to point out the plaintiff.* Where there was no 
 colloquium that the defamatory matter was concerning 
 the justices of Suffolk, and it did not appear on the face 
 of the alleged libel that it applied to such justices, it 
 
 > Turner v. Merrywether, 13 Jur. * Smith v. HolUster, 32 Vt. (3 
 
 683 ; 18 Law Jour. C. P. 155; 12 Law Shaw), 695. 
 
 Times, 474. ' Wakley v. Healey, 18 Law Jour. 
 
 241, C. P. 
 
§§ 344> 345-] THE COMPLAINT. 579 
 
 was held that the defamatory matter could not be con- 
 nected with or applied to such justices by means of an 
 innuendo.^ 
 
 § 344. If a complaint is sufficient without the innu- 
 endo, the innuendo may be rejected as surplusage;^ the 
 innuendo may always be rejected when it merely intro- 
 duces matter not necessary to support the action,^ or 
 when it is incongruous,* or too broad ; * an innuendo that 
 the attorney general spoken of meant the attorney general 
 for the county palatine of Chester was so rejected.' It fol- 
 lows from the foregoing that if the language is actionable 
 per se, the attributing by innuendo, an unwarranted mean- 
 ing, will not render the complaint demurrable.^ 
 
 § 345. Special damages, or those damages which are 
 not the necessary consequence of the language com- 
 plained of (§§ 197-202), must be specially alleged in the 
 complaint, or the plaintiff will not be allowed on the trial 
 to go into evidence to prove such damages.* Where the 
 
 ' Rexw. Alderton, Sayre, 280; and and see Robinson v. Day. 2 Nev. & 
 
 to the like effect, Hawkes v. Hawkey, M. 670 ; West v. Smith, 4 Dowl. 703. 
 8 East, 427; Savage v. Robery, 5 ' Kraus v. The Sentinel Co. 62 
 
 Mod. 398; 2 Salk. 694. V^\s. 600; Dwyer v. Macartney, 3 
 
 « Commonwealth v. Snelling, 1 5 Vict. Law Rep. L. 296. As to being 
 
 Pick. 335 ; Moseley v. Moss, 6 Gratton, bound by the innuendo, see note 2, 
 
 534; Cooper z/. Greeley, i Denio, 360; p. 573, ante. 
 
 Harvey v. French, i Cr, & M. 11; af- « Squier v. Gould, 14 Wend. 159; 
 
 firmed 2 Mo. & Sc. 591 ; Gage v. Strang v. Whitehead, 12 Id. 64; 
 
 Shelton, 2 Rich. 242; Giles v. The Roberts v. Roberts, 5 B. & S. 385; 
 
 State, 6 Ga. 276 ; Gabe v. Mc- Kelly v. Hufifington, 3 Cr. C. C. 81 ; 
 
 Ginness, 68 Ind. 538; Kraus v. The Birch v. Benton, 26 Mo. (S Jones), 
 
 Sentinel, 62 Wis. 660; see § 338, 155 ; Johnson i/. Robertson, 8 Porter, 
 
 ante. 486; Barnes z/. Trundy, 31 Maine (i 
 
 3' Thomas z/. Crosswell, 7 Johns. Red.), 321 ; Bostwick v. Nicholson, 
 
 264; Crosswell v. Weed, 25 Wend. Kirby, 65 ; Bostwick v. Hawley, lb. 
 
 621; Carters. Andrews, 16 Pick, i ; 290; Shipman v. Burrows, I Hall, 
 
 Carroll z/. White, 33 Barb. 621; Hud- 399; Harcourt v. Harrison, -^*-474; 
 
 son V. Gamer, 22 Mo. 423; Rode- Geare z/. Britton, Bull. N. P. 7; Wil- 
 
 baugh V. HoUingsworth, 6 Ind. 339. son v. Runyon, Wright, 651 ; Bassil w. 
 
 * Gardiner v. Williams, 2 Cr. M.& Elmore, 65 Barb. 627. Nor to give 
 R 78 • 3 Dowl Pr. Cas. 796. evidence of a general loss of reputa- 
 
 » Benaway v. Conyne, 3 Chand. tion. (Herrick v. Lapham, 10 Johns. 
 
 (Wis. 1 214: Barrett 7/. Long, 3 Ho. of 281.) A complaint for words m 
 
 Lords Cas. 395- writing charging msanity need not 
 
 • Roberts 7/. Camden, 9 East, 93; allege special damage. (Perkins v. 
 
58o 
 
 PLEADING. 
 
 [CH. XIII, 
 
 language is actionable /^r i'^, special damage need not be 
 alleged;^ but if the language is not actionable per se, 
 special damage must be alleged.' Allegations of special 
 damage are not traversable. They are inserted in the 
 complaint to apprise the defendant of what he must be 
 prepared to rebut on the trial.* Where the declaration 
 set forth that the plaintiff was a ship-master, the words de- 
 faming him as such, and that, by reason of the same, " cer- 
 tain insurance companies in the city of New York refused 
 to insure any vessel commanded by him, or any goods 
 laden on board any vessel by him commanded ; " Held, 
 that the allegation was too general, and that proof could 
 
 Mitchell, 31 Barb. 461.) So in an ac- 
 tion by one of several partners. 
 (Robinson v. Marchant, 7 Q. B. 918.) 
 But in such an action damage to 
 plaintiff individually must be shown. 
 (Havermeyer v. Fuller, 10 Abb. N. 
 C. 9.) In an action for defaming one 
 in his trade no allegation of special 
 damage is necessary. (Ingram v. 
 Lawson, 6 Bing. N. C. 212; Foulger 
 V Newcomb, 36 Law Jour. Ex. 169; 
 Butler V. Howes, 7 Cal. 87.) In such 
 cases the occupation supplies the place 
 of special damage. {Ante, note i, 
 p. 223.) In action for slander of title 
 special damage must be alleged. 
 (Gordon v. McGibbon, 3 Pug. N. B. 
 49; Wilson V. Dubois, 35 Minn. 471.) 
 
 * Hicks V. Walker, 2 Greene 
 (Iowa), 440; Montgomery v. Knox, 
 23 Fla. 595. Where the language 
 is actionable per se, special damage, 
 although alleged, need not be proved. 
 (Cook V. Field, 3 Esp. Gas. 133; Kelly 
 V. Huffington, 3 Cranch C. C. 81; 
 Smith V. Ottendorfer, 3 N. Y. St. Rep. 
 187.) 
 
 * Achorn v. Piper, 66 Iowa, 694; 
 Bell V. Sun Print. Asso. 3 Abb. 
 N. C. 1 57 ; 42 N. Y. Superior Co't, 
 567 ; Wallace v. Bennett, i Abb. 
 N. C. 478. The statement in the 
 declaration that plaintiff, by being 
 thus called a "crank," had been 
 deprived of divers great earnings in 
 his profession, and had lost royal- 
 
 ties on the sales of his book, is too in- 
 definite to serve as an averment of 
 special damage. (Walker v. Tribune 
 Co. 29 Fed. Rep. 827.) An allegation 
 that " such false and libelous publica- 
 tion greatly injured and damaged 
 plaintiff," is not an allegation of special 
 damage. (Woodruff v. Bradstreet 
 Co. 35 Hun, 16.) Nor is an allega- 
 tion that plaintiff had fallen into dis- 
 gfrace, contempt and infamy and lost 
 his credit. (Woodbury v. Thompson, 
 3 New Hamp. 95.) Mental suffering 
 need not be alleged in complaint to 
 entitle plaintiff to give evidence of it. 
 (Chesleyw. Thompson, 137 Mass. 136.) 
 Where the complaint alleges damage 
 to plaintiff's business, it cannot be ob- 
 jected that it does not appear whether 
 the suit is for actual or exemplary 
 damages, or how much is claimed for 
 each. (Bradstreet Co. v. Gill, 9 So. 
 East. Rep. 753 [Texas].) Plaintiff 
 alleged he was candidate for member- 
 ship of a club, that defendant pub- 
 lished of him certain words, setting 
 them out, they were not defamatory 
 per se, and then alleged that plaintiff ' 
 thereby lost the advantage of being a 
 candidate with a chance of election, 
 held not a statement of special dam- 
 age. (Chamberlain v. Boyd, 48 Law 
 Times, N. S. 328.) 
 
 ' Molony v. Dows, 15 How. Pr. R. 
 265 ; Robinson v. Marchant, 7 Q. B. 
 918. 
 
§ 345-] THE COMPLAINT. 58 1 
 
 not be given under it of the refusal of a particular com- 
 pany to insure the plaintiff's vessel.^ Where the allega- 
 tion was that certain persons, naming them, who would 
 otherwise have employed plaintiff, refused so to do ; Held, 
 that the allegation was not supported by evidence that 
 certain other persons would have recommended plaintiff 
 to the persons named in the declaration, and that if the 
 plaintiff had been so recommended, the persons named in 
 the declaration would have employed him ; the not em- 
 ploying being not on account of the slander, but of the 
 non-recommendation.* In an action of slander imputing 
 incontinence to the plaintiff, it was held enough to state 
 that the plaintiff was occasionally employed to preach to a 
 dissenting congregation at a certain licensed chapel, from 
 which he derived considerable profit, and that, by reason 
 of the scandal, "persons frequenting the chapel had refused 
 to permit him to preach there, and had discontinued the 
 emoluments which they would otherwise have given him," 
 without saying who those persons were, or by what author- 
 ity they had excluded him, or that he was a preacher duly 
 qualified according to statute (lo Anne, c. 2) ;® and in an 
 action for slander for words spoken of the plaintiff in his 
 trade or business, with a general allegation of loss of busi- 
 ness, it is competent to the plaintiff to prove, and the jury 
 to assess damages for a general loss or decrease of trade, 
 although the declaration alleges the loss of particular cus- 
 tomers as special damage, which is not proved.* As a 
 
 ' Shipman v. Burrows, l Hall, he is allowed to g'.ve general evidence 
 
 399. of a loss of custom ? " {Id. ; and see 
 
 2 Sterry v. Foreman, 3 C. & P. Rose v. Groves, 5 M. & G. 613; Rid- 
 
 592. ing V. Smith, Law Rep. i Ex. Div. 91.) 
 
 ' Hartley v. Herring, 8 T. R. The plaintiff may aver a general dimi- 
 
 130. nution of business, or particular in- 
 
 * Evans v. Harries, i Hurl. & Nor. stances of damage; in the latter case, 
 
 251 ; and per Martin, B. : " How is a the names of the customers lost should 
 
 public-house keeper, whose only cus- be given. (Hamilton v. Walters, 4 
 
 tomers are passers-by, to show a dam- Up. Can. Rep. 24, O. S. ; Wilson v. 
 
 age resulting from the slander, unless Dubois, 35 Minn. 471.) 
 
582 
 
 PLEADING. 
 
 [CH. XIII. 
 
 general rule the customers should be named/ but this is 
 not always necessary.' The omission of the names of the 
 customers lost, amounts only to a want of definiteness, and 
 in New York is to be taken advantage of by a motion to 
 make definite and certain, not by demurrer.^ Where the 
 supposed special damage consists in loss of marriage, the 
 name of the individual with whom the marriage was con- 
 templated should be stated.^ 
 
 § 346. Where loss of certain customers, naming them, 
 is alleged, the best evidence in support of such allegation 
 is the testimony of the persons- named ;* and so where it 
 is alleged that certain persons, naming them, refused to 
 employ the plaintiff, the best evidence of such refusal is 
 the testimony of the persons named.® In an action for 
 words not actionable per se, the declaration alleged for 
 
 ■■ Mayne on Damages, 278, 317; 
 Feise v. Linder, 3 B. & P. 372 ; Brown- 
 ing V. Newman, i Str. 666; West- 
 wood V. Cowne, i Stark. 172; and see 
 8 T. R. 130 ; I Wms. Saund. 243. It 
 is not mere indefiniteness. In New 
 York, it was held that a general aver- 
 ment of loss of customers is not a 
 sufficient allegation of special dam- 
 ages, and that no proof of loss of 
 customers can be given under such an 
 allegation. (Tobias v. Harland, 4 
 Wend. 537 ; and see Hallock v. Miller, 
 2 Barb. 630.) The loss of a customer 
 is special damage, although if the 
 dealing had taken place the plaintiff 
 would have lost by it. (Storey v. 
 Challands, 8 C. & P. 234; see ante, 
 note 6, p. 266.) 
 
 2 Trenton Ins. Co. v. Perrine, 3 
 Zabr. 402 ; Riding z/. Smith, Law Rep. 
 I Ex. Div. 91. 
 
 ' Hewit V. Mason, 24 How. Pr. R. 
 366; and by 15 & 16 Vict. ch. 76, 
 abolishing special demurrers, the right 
 to demur for want of certainty is 
 abolished and a motion to make de- 
 finite substituted. It has been said 
 that greater certainty is required 
 where the special damage is the gist 
 of the action, than when it is merely 
 
 laid by way of aggravation. (Wethe- 
 rell w. Clerkson, 12 Mod. 597; Clarke 
 V. Periam, 2 Atk. 33.) An allegation 
 of special damage must be specific. 
 (Cook V. Cook, 100 Mass. 194.) 
 Where complaint does not aver special 
 damage, witness cannot give his 
 opinion of amount. (Fleming v. 
 Albeck, 67 Cal. 226 and 227.) Witness 
 may testify that publication neces- 
 sarily injured plaintiff's business. 
 (Blumhardt v. Rohr, 17 Atl. Rep. 
 266.) Where it appears publication 
 was made without intent to injure, and 
 that all proper precautions were ob- 
 served in the publishing, actual dam- 
 ages only are recoverable. (Even. 
 News Asso. v. Tryon, 42 Mich. 549.) 
 
 * I Sid. 396; I Vent. 4; Cro. Jac. 
 499; 12 Mod. 597; and loss of mar- 
 riage with any other than the one 
 mentioned cannot be proved. (2 Ld. 
 Raym. 1007.) As to alleging special 
 damage in action for slander of title, 
 see ante, note 2, p. 284, and Moore v. 
 Meagher, i Taunt. 39. 
 
 ° Tilk V. Parsons, 2 Car & P. 201 ; 
 Barnett v. Allen, i Fost. &F. 126; 
 King V. Watts, 8 C. & P. 614. 
 
 ' Johnson v. Robertson, 8 Porter, 
 486. 
 
§ 347-j THE COMPLAINT. 583 
 
 special damage, that, in consequence of the speaking of the 
 words, four of plaintiff's customers ceased to deal with him. 
 Three of those persons proved only that they ceased to deal 
 with plaintiff in consequence of reports they had heard in 
 the neighborhood ; but the fourth proved the speaking by 
 the defendant of words substantially as charged, and stated 
 that he did not deal with plaintiff afterwards. Held, some 
 evidence of special damage.^ 
 
 § 347. A plaintiff may unite in one complaint, a cause 
 of action for slander with a cause of action for libel, or for 
 malicious prosecution,^ or false imprisonment,' or slander 
 of title.* Assault and battery, or injury to real property, 
 cannot be united with slander or libel.* A cause of action 
 in a plaintiff singly for slander of him in his partnership 
 business, cannot be joined with a cause of action in him 
 and his partners jointly.* Several sets of words, imputing 
 the same charge, and laid as of the same time, may be 
 included in one count.' You may put into one count all 
 the words published at one time, but not words published 
 at different times.® A complaint which sets out an entire 
 
 1 Bateman v. Lyall, 7 C. B. (N. C. P. Rep. 114. By statute in Ireland, 
 S.) 638. In King v. Townsend, 2 in an action for slander or libel, counts 
 Law Rep. 126 (Appendix, post), the may be added for false representation 
 special damage laid was that A. B. of plaintiff's goods. (McNally v. Old- 
 had, by reason of the libel, wholly ham, 8 Law Times, N. S. 604.) 
 ceased to deal with the plaintiff, the ' Anderson i*. Hill. 53 Barb. 238; 
 proof was that A. B. had not, by overruling Brewer z/. Temple, 15 How. 
 reason of the libel, dealt with the Pr. R. 286; Levy v. Ginsburg, N. Y. 
 plaintiff to so g^eat an extent as there- City Court, Nov., 1885. Slander and 
 tofore, held that this was sufficient false imprisonment cannot be joined, 
 evidence of special damage to sustain (Mahoney v. Fitzsimmons, N. Y. City 
 the declaration. Court, May, 1886; and see Dodge v. 
 
 2 Martin v. Mattison, 8 Abb. Pr. Colby, 108 N. Y. 445 ; and 4 Month. 
 R. 3; Shore v. Smith, 15 Ohio, N. S. Law Bui. 25.) 
 
 173; King V, Waring, 5 Esp. 13; « Robinson z/. Marchant, 7 Q. B. 
 
 Manning v. Fitzherbert, Cro. Car. 271 ; 918. 
 
 Hull V. Vreeland, 42 Barb. 543 ; Watts ' Rathbun v. Emigh, 6 Wend. 407; 
 
 V. Hilton, 3 Hun, 606; Noonan v. Milligan v. Thorn, 6 Wend. 412; 
 
 Orton, 32 Wis. 106 ; Delegal 7/. High- Dioyt v. Tanner, 20 Wend. 190; 
 
 ley, 3 Bing. N. C. 950 ; Brooks v. Churchill v. Kimble, 3 Ham. (Ohio], 
 
 Harrison, 91 N. Y. 83. 409; Hoyt v. Smith, 32 Vt. (3 Shaw), 
 
 » Harris v. Avery. 5 Kansas, 146. 304. 
 
 ' Cousins V. Merrill, 16 Up. Can. « Hughes v. Rees, 4 M. & W. 204. 
 
584 PLEADING. [CH. XIII. 
 
 conversation in which the slander was spoken, contains 
 only one cause of action although the conversation consists 
 of several parts, each of which is actionable.^ The second 
 count of a declaration in slander charged that in another 
 discourse of and concerning plaintiff, &c., the defendant 
 spoke these words : " You, Mrs. G. (the plaintiff ), have 
 used them for years" (innuendo that plaintiff had used 
 fraudulent weights, and cheated in her trade); and also in 
 the last-mentioned discourse, in answer to a question put 
 by the plaintiff, as to whether the defendant had said to 
 one J. G. that the plaintiff's son had used two balls to the 
 plaintiff's steelyard, these other words : " To be sure I did," 
 &c.; and also these other words, &c.; Held^ that as there 
 was but one continued discourse at the same time, this was 
 but one count, although the words set out were divided 
 into several sentences.* In New York, where the com- 
 plaint contains several causes of action, each cause of action 
 must be separately stated and numbered,^ and be perfect in 
 itself.* 
 
 § 348. In New York, a supplemental complaint is per- 
 mitted. A plaintiff in an action for libel may be allowed 
 to serve a supplemental complaint setting out matter 
 material to the action, occurring after the commencement 
 of the action. And in that case a supplemental complaint 
 
 It is allowable to include in the same 8 Code Civ. Pro. § 483; Pike 7/. Van 
 declaration divers distinct words of Wormer, 5 How. Pr. R. 171. Corn- 
 slander of different import. (Hall v. plaint where ore count only sufficient. 
 Nees, 27 111. 41 1 ; Holmes w. Jones, 51 (Buscher v. Scully, 107 Ind. 246.) 
 Hun, 345. ) It is sometimes a question Declaration referred to master to strike 
 whether a declaration consists of one out superfluous counts. (Cranage v. 
 or more counts. (See Cheetham v. Price, i Price Pr. Cas. 45.) 
 Tillotson, 5 Johns. 430 ; Griffith v. * Holt v. Muzzy, 30 Vt. (i Shaw), 
 Lewis, 8 Q. B. 841 ; Fleischmann v. 365 ; Sinclair v. Fitch, 3 E. D. Smith, 
 Bennett, 78 N. Y. 231.) 689. In Vermont, the pleader may 
 
 > Cracraft v. Cochran, 16 Iowa, include in a single count words spoken 
 301. The parts libelous per se should at different times and to different per- 
 be distinguished from those not action- sons, if they relate to the same sub- 
 able. (Flemingz/. Albeck,67CaI. 227.) ject. (Hoyt v. Smith, 42 Vt. 304; 
 
 " Griffiths V. Lewis, 8 Q. B. 841 ; 7 Hoar v. Ward, 47 Vt. 661.) 
 Law Times, N. S. 177. 
 
1 348.J 
 
 THE COMPLAINT. 
 
 585 
 
 was allowed, setting up alleged special damage occasioned 
 by the publication of the libel, and occurring after the 
 service of the original complaint.^ 
 
 The allowance of a supplemental pleading is in the dis- 
 cretion of the court. It should not be allowed ex parte? 
 
 » Scott V. Hallock. MS. Gen. Term 
 Sup. Ct. N. Y. 19 Dec, 1857; and 
 plaintiff was allowed to serve a sup- 
 plemental complaint showing publica- 
 tions prior to the commencement of 
 the action, but of which plaintiff was 
 ignorant when the original complaint 
 was made. (Corbin v. Knapp, 5 Hun, 
 
 I97-) 
 
 ' Fleischmann v. Bennett, 79 N. Y. 
 579. Where an order allowing a sup- 
 plemental complaint was made ex 
 parte, which order was reversed at 
 
 general term, held the order at general 
 term was not appealable to the Court 
 of Appeals. {Id.) 
 
 Motion for leave to serve a supple- 
 mental complaint, introducing causes 
 of action on their face barred by the 
 statute of limitations, was denied. 
 (Miller v. Johnson, 10 N. Y. Civ. Pro. 
 Rep. 205.) 
 
 Trespass and slander of title can- 
 not be joined. (Dodge v. Colby, 2 
 How. Pr. R. N. S. 475; 37 Hun, 515.) 
 
CHAPTER XIV. 
 
 PLEADING.— ANSWER.— DEMURRER. 
 
 The answer corresponds to plea — What it must contain — 
 Plea to part of a count — Answer of justification must 
 give color, show a lawful occasion, and deny malice — 
 Several answers — Defense of truth must be pleaded — 
 How pleaded — Where the charge is general — Where 
 the charge is specific — Certainty in statement of facts 
 — Answer of justification bad in part, bad altogether — 
 Mitigating circumstances — Demurrer — Counter-claim. 
 
 § 349. The a;?jz£/^r corresponds to \)!\e plea in the com. 
 mon-law system of pleading. In New York, it is provided 
 as to an answer, that it "must contain (i) a general or 
 specific denial of each material allegation of the complaint 
 controverted by the defendant, or of any knowledge or 
 information thereof sufficient to form a belief; (2) a state- 
 ment of any new matter constituting a defense or counter- 
 claim, in ordinary and concise language, without repeti- 
 tion." And with regard to an answer in the action for 
 slander or libel, it is also provided the defendant may, in 
 his answer, allege both the truth of the matter charged as 
 defamatory, and any mitigating circumstances to reduce 
 the amount of damages ; and whether he prove the justifi- 
 cation or not, he may give in evidence the mitigating cir- 
 cumstances.^ Material allegations in the complaint not 
 
 1 Code of Civ. Pro. §§500, 535, 536; Where, in an action for an alleged 
 
 Bennett v. Matthews, 64 Barb. 410. libel published in a newspaper, the 
 
 An answer which merely states that answer admitted that the defendant 
 
 the defendant did not utter the words was the proprietor of the paper, but 
 
 alleged at the place and time alleged, denied that the publication complained 
 
 may be good as a general denial. against was made with his knowledge, 
 
 (Salinger v. Lusk, 7 How. Pr. R. 430.) consent, assent or permission, and 
 
§ 350.] 
 
 ANSWER. 
 
 587 
 
 controverted by the answer are " taken as true," ^ and this 
 applies to allegations of inducement.^ Objections to the 
 complaint not taken by answer or demurrer, are deemed 
 waived except only the ejection to the jurisdiction of the 
 court and the objection that the complaint does not state 
 facts sufficient to constitute a cause of action.* The de- 
 fendant is not compelled to verify his answer.* 
 
 § 350. The general issue in an action for slander or 
 libel was " not guilty ; '' ^ and this had probably a larger 
 effect than has a " general denial " under the New York 
 
 also denied that any person employed 
 by defendant had any right or author- 
 ity from it to make the publication, the 
 court below held the answer frivolous, 
 but the Court of Appeals reversed 
 that order, on the ground that the an- 
 swer amounted to a denial of the pub- 
 lication by defendant. (Samuels v. 
 Evening Mail Asso. 52 N. Y. 625 ; see 
 Reg. V. Holbrook, L. R. 4 Q. B. Div. 
 42.) A denial of malice is frivolous 
 unless connected with allegations of 
 mitigating circumstances. (Daly v. 
 Byrne, i Abb. N. C. 150.) As to a 
 general denial in Maryland. (Hagan 
 V. Hendry, 18 Md. 177.) An answer 
 alleging that defendant did not speak 
 the words as charged, with malice, 
 &c., that he believed them to be true, 
 stating reasons for such belief, and 
 that he did not believe the words were 
 spoken within six months, held an- 
 swers of justification and statute of 
 limitations. (Moore v. Edmiston, 70 
 N. Car. 510.) It is allowable to plead 
 the same matter in justification and in 
 mitigation, but it should be separately 
 stated. After a statement of fact in 
 justification, the pleader may, as a 
 separate statement, add a notice that 
 he will use the same facts in mitiga- 
 tion. (Fink V. Justh. 14 Abb. Pr. Rep. 
 N. S. 108.) A plea that the letter con- 
 taining the defamatory matter was 
 intended for the plaintiff himself, but 
 by mistake was handed to his em- 
 ployer, was held bad. (Fox v. Brod- 
 erick, 14 Irish Com. Law Rep. 453.) 
 In an action for libel defendant at first 
 
 pleaded not guilty, but afterwards 
 pleaded, to the further maintenance of 
 the action, that plaintiff had recovered 
 damages against another person for 
 the same grievances. New assign- 
 ment, that the present action was 
 brought for different grievances. Plea 
 to new assignment, not guilty. Held, 
 that this did not admit the innuendoes, 
 and that, by pleading not guilty to the 
 new assignment, defendant had raised 
 precisely the same issue as if the libel 
 had been set out in the declaration, 
 and defendant had pleaded not guilty 
 to it. (Brunswick, Duke of, v. Pepper, 
 2 Car. & K. 683.) 
 
 > Code of Civ. Pro. § 522, and so 
 in England, Heming v. Power, 10 M. 
 & W. 567 ; Gwynne v. Sharpe, I Car. 
 & Mar. 532. 
 
 2 Fradley v. Fradley, 8 C. & P. 
 572; ante, §§ 312 a, 313. 
 
 3 Code of Civ. Pro. § 499, Beach v. 
 Ranney, 2 Hill, 309. Admissions in 
 the answer cannot be retracted on the 
 trial. (Whittemore v. Ware, loi 
 Mass. 353.) 
 
 * N. Y. Code Civ. Pro. § 523; 
 Scoville V. New, 12 How. Pr. Rep. 
 319; Blaisdell v. Raymond, 5 Abb. 
 Pr. Rep. 144; 6 Id. 148; Gadsden v. 
 Woodward, 3 N. Y. State Rep. 102; 
 Goth V. Star Print. Co. 14 N. Y. Civ. 
 Pro. Rep. 3 ; S. C. Goft v. Star Print. 
 Co. 21 Abb. N. C. 211; Wilson v. 
 Bennett, 2 N. Y. Civ. Pro. R. 34. 
 
 5 No longer admissible. (Tildes- 
 ley V. Harper, L. R. lo Ch. Div. 393 ; 
 Harris v. Gamble, 47 L- J- Ch. 344.) 
 
588 PLEADING. [CH. XIV. 
 
 Code, b}'^ which we intend that under the " general issue " 
 matters of defense were admitted which would not be ad- 
 mitted under the "general denial." Under the New York 
 system of pleading, every defense not consisting of a mere 
 denial must be especially pleaded. A defense of privilege 
 must be especially pleaded.^ So must the statute of limi- 
 tations.^ Much relating to the subject of the plea or an- 
 swer has been anticipated (§§ 211-216, 313), and much 
 more on the subject will be found under the head of Evi- 
 dence (§§ 403-406).^ 
 
 § 350 a. As the inducement must be stated in a trav- 
 ersable form (§ 312), so a denial of a material matter of 
 inducement constitutes a good defense, as where the dec- 
 laration alleged, by way of inducement, that it was dis- 
 graceful for a duly qualified physician of the allopathic 
 school to meet one of the homoeopathic school in consulta- 
 tion, and then alleged that defendant had published of 
 plaintiff that he had met in consultation with a homoeo- 
 pathist, the plea denied that it was disgraceful for a duly 
 qualified physician of the allopathic school to meet one of 
 the homoeopathic school in consultation, and it was held a 
 good plea ; * and so where the declaration alleged that the 
 term black sheep was used in a defamatory sense, and that 
 the defendant had applied that term to the plaintiff, a plea 
 denying that black sheep was used in a defamatory sense 
 was held good.^ 
 
 ' Bell V. Parke, 1 1 Ir. C. L. Rep. nied, and then set up matter in miti- 
 
 413. Defendant cannot deny generally gation, held that the whole complaint 
 
 that "defendant wrote or published was admitted and the only question 
 
 the same falsely or maliciously as was that of damages. (Rosenwald v. 
 
 alleged." He must set out facts to Hatrimerstein, 12 Daly, 377.) 
 justify. (Beltw. Lawes, 51 Law J. R. « Code of Civ. Pro. § 380; Pegram 
 
 Q. B. 359; Langton v. Hagerty, 35 i/. Stoltz, 67 N. Car. 144. 
 Wis. 150.) Where the answer after s -phe general issue admitted the 
 
 admitting the publication denied that character in which plaintiff sued, 
 
 the publication "was maliciously done (Yeates v. Reed, 4 Blackf. [Ind.] 463.) 
 as in said complaint alleged,'' and * Clay v. Roberts, 8 Law Times, 
 
 then denied each and every allegation N. S. 397. 
 
 in said complaint contained not here- » McGregor v. Gregory, 1 1 M. & 
 
 inbefore admitted or specifically de- W. 287, 
 
§§351.352.] ANSWER. 589 
 
 § 351. It was held in New York that a plea in bar 
 must answer the whole count, but that one plea might 
 state several defenses, i. e., different defenses to different 
 parts of one count or statement of a cause of action.' 
 Perhaps the rule is, that, if the matter is divisible (§ 145), 
 although contained in one count, a defendant may plead 
 to part of the matter of one count.** If the part of the 
 charge not expressly covered by the plea does not amount 
 to an actionable charge, then the plea is in effect to the 
 whole count." A plea to a part of a count, and that part 
 not amounting to an actionable charge, is bad ; as where 
 the charge was, " Mr. P. (plaintiff) told me he had given 
 my child too much mercury, and poisoned it,'''' and the jus- 
 tification was only of so much as charged giving too much 
 mercury.* 
 
 § 352. An answer of justification must give color, at 
 least to the extent of admitting, for the purposes of the 
 defense, the publication complained of.* Or, which is in 
 
 » Cooper V. Greeley, I Denio, 365 ; uous statements, the court will not 
 
 and see Ames w. Hazard, 6 R. I. 335; draw any libelous inference from 
 
 8 Id. 143. That a plea may apply to them, if plaintiff has not done so in 
 
 part of a libel. (See Spencer z/. South- his declaration. {Id.) 
 wick, 1 1 Johns. S73.) * Edsall v. Russell, 4 M. & Gr. 
 
 * See Edwards z/. Bell, i Bing. 403; 1090; 5 Sc. N. R. 801. 
 Cooper V. Lawson. I Perr. & D. I J ; ' Goodman v. Robb, 24 Week. 
 
 O'Connell v. Mansfield, 9 Ir. Law Rep. Dig. 509 ; 41 Hun, 605 ; Fidler v. 
 
 179; Smith V. Ottendorfer, 3 N. Y. Delavan, 20 Wend. 57; Wilson v. 
 
 St. Rep. 187; and see ante, note 2, p. Beighler, 4 Iowa, 427; Van Derveerz/. 
 
 156, and Torrey v. Fields, 10 Vt. 353. Sutphin, 5 Ohio, N. S. 293 ; Edsall v. 
 
 Where the first count in a declaration Russell, 2 Dowl. N. S. 641 ; 5 Sc. N. 
 
 for a libel alleged that plaintiff, a S. 801 : Davis v. Matthews, 2 Ham. 
 
 proctor, had been three times sus- 257 ; Folsom v. Brown, 5 Foster (N. 
 
 pended, and the second count alleged Hamp.), 1 14 ; Samuel v. Bond, Litt. 
 
 the having been suspended three times Sel. Cas. 158; Buddington v. Davis, 6 
 
 for extortion ; the plea as to so much How. Pr. R. 402 ; Porter v. McCreedy, 
 
 of the charge as imputed one suspen- i Code Rep. N. S. 88. A plea of jus- 
 
 sion, justified it as being true, held on tification held bad unless accompanied 
 
 demurrer that the plea was good, and with a traverse of the publication in 
 
 that it was sufficiently applicable to a manner to defame. (Crawford v. 
 
 the charge in the first count, if not to Milton, 12 S. & M. 328; see Carlock 
 
 that in the second. (Clarkson v. Law- v. Spencer, 2 Eng. 12.) A defense of 
 
 son, 6 Bing. 587.) privilege admits the falsity of the 
 
 » Barrows v. Carpenter, i Cliff. charge. (Per Coleridge, Ch. J. ; Cock- 
 
 204; Clarke «<. Taylor, 3 Scott, 95. If ing v. Curtis, London Times, 24 
 
 the part not justified contains ambig- April, 1880.) 
 
5 go 
 
 PLEADING. 
 
 [CH. XIV. 
 
 eJBFect the same thing, the defense should not be hypotheti- 
 cal. Thus a defense, in substance, that "if defendant 
 spoke any slanderous words concerning plaintiff, of the 
 nature of those charged in the complaint, they were confi- 
 dential and privileged, and were not spoken in malice," 
 was said to be insufficient.^ An admission in one defense 
 cannot be used to defeat a denial in a separate defense 
 in the same answer, because " one plea cannot be taken to 
 help or destroy another, but every plea must stand or fall 
 by itself." * A plea of privileged publication must show a 
 lawful occasion, and a denial of malice ; a plea which only 
 alleged that the defendant spoke the words on such occa- 
 sion, firmly believing them to be true, was held bad for 
 want of an express or implied denial of malice.* 
 
 » Goodman v. Robb, 41 Hun, 605 ; 
 5 N. Y. St. Rep. 242. But how the 
 insufficiency is to be taken advantage 
 of was not decided. We venture to 
 say that such a defense would not en- 
 title the defendant upon the trial to 
 offer any evidence in support of it. As 
 the whole defense was hypothetical it 
 could not be struck out on motion; 
 but where part of a defense is hypo- 
 thetical that part may be struck out on 
 motion. (Wies v. Fanning, 9 How, 
 Pra. Rep. 543.) 
 
 2 Grills V. Mannell, Willes, 380; 
 Kirk V. Nowill, i T. R. 125; Mont- 
 gomery V. Richardson, 5 C. & P. 247 ; 
 and see cases collected, Voorhies' 
 Code, 296 c, 8th edit.; contra, see 
 Jackson v. Stetson, 15 Mass. 48; 
 Alderman v. French, i Pick. I ; Cilley 
 V. Jenness, 2 N. Hamp. 89 ; Whitaker 
 V. Freeman, i Dev. 280; Wheeler v. 
 Robb, I Blackf. 330 ; Wright v. Lind- 
 say, 20 Ala. 428; Doss V. Jones, 5 
 Howard (Miss.), 158; Rev. Stat, of 
 Mass. ch. 100, § 18; Hix v. Drury, 5 
 Pick. 260. 
 
 ' Smith V. Thomas, 2 Bing. N. C. 
 372; 2Sc. 546; 4D0WI. Pr.Cas.333; 
 30 Alb. L. J. 516. Except in defenses 
 of privileged publication, the denial of 
 malice forms an immaterial issue. 
 (Fry V. Bennett, 5 Sandf. 54.) When 
 privilege is established malice must be 
 
 shown. (Caulfield v. Whitworth, 16 
 Weekly Rep. 936. ) A plea of privi- 
 leged communication must show it 
 was defendant's duty or interest to 
 make the publication. (Praeger v. 
 Shaw, 4 Ir. Com. Law Rep. 660 ; and 
 see Echlin v. Singleton, 14 Ir. Jur. [7 
 N. S.] 225; Simmonds 2/. Duane, Ir. 
 Rep. 7 Com. Law, 319.) A defense 
 of fair comment must allege the pub- 
 lication to have been a fair comment 
 upon the plaintiff's conduct on the 
 occasion therein referred to. (Clinton 
 V. Henderson, 13 Ir. Com. Law Rep. 
 Appendix, xliii [e]. The plea in Earl 
 of Lucan v. Smith, 26 Law Jour. Ex. 
 94, note 2, disapproved of.) 
 
 Action of libel for publishing a sen- 
 tence of suspension pronounced by 
 defendant against plaintiff. Pleas, (i) 
 that plaintiff was suspended for breach 
 of the laws of the Church of Rome; 
 (2) privilege; replication to first plea, 
 that a law of the Church prohibited 
 one ecclesiastic from impleading an- 
 other in a temporal court, and that 
 the sole ground of plaintiff's suspen- 
 sion was that he, being an ecclesiastic, 
 had impleaded another ecclesiastic in 
 a temporal court. Rejoinder, that 
 such impleading was for slanderous 
 words spoken by him in his character 
 of priest concerning plaintiff, and that 
 such impleading violated a law of the 
 
§§ 353. 354-J 
 
 ANSWER. 
 
 591 
 
 § 353- The defendant may, in one answer, set up a 
 general denial, or not guilty, and a justification 'on the 
 ground of truth.^ But he cannot, with not guilty as to the 
 whole declaration, plead as to part of the declaration a 
 special plea of apology and payment into court under the 
 statute 6 & 7 Vict. ch. 96.^ Although a defendant may be 
 allowed with not guilty to plead the mere fact that the 
 words were a fair comment without malice, he cannot with 
 not guilty interpose a plea alleging the existence of certain 
 facts, and that the alleged libel was a fair comment on 
 transactions of public notoriety. The fact of fair comment 
 is involved in not guilty.^ 
 
 § 354. A defendant, to avail himself of the defense of 
 truth, must set it up as a defense by plea or answer.* The 
 defense of truth may be interposed, although the power to 
 
 Church. On demurrer, held both pleas 
 were bad. (O'Keefe v. Cull^n, Ir. 
 Rep. 7 Com. Law, 319.) 
 
 • Buhler v. Wentworth, 17 Barb. 
 649 ; Hollenbeck v. Clow, 9 How. Pr. 
 Rep. 289; Ormsby v. Douglas, 5 
 Duer, 665 ; Payson v. Macomber, 3 
 Allen (Mass.), 69; Miller v. Graham, i 
 Brevard, 283; Smith v. Smith, 39 
 Penn. St. Rep. 441 ; Harper v. Harper, 
 10 Bush (Ky.), 447 ; Horton v. Ban- 
 ner, 6 Id. S96 ; Cole v. Woodson, 32 
 Kan. 272'; and see Kelly v. Craig, 9 
 Humph. 215; contra, Attebury v. 
 Powell, 29 Mo. (8 Jones), 429. To a 
 declaration containing three counts for 
 three distinct libels, the court refused 
 to allow the defendant to plead one 
 general plea of justification. (Honess 
 V. Stubbs, 7 C. B. N. S. 555.) Incon- 
 sistent defenses allowed. (Horton v. 
 Banner, 6 Ky. [Bush], 596; Weston z/. 
 Lumley, 33 Ind. 486.) 
 
 2 O'Brien v. Clement, 15 M. & W. 
 435; 3 D. & L. 676; 15 Law Jour. 
 Rep. 285, Ex. Apology is by statute, 
 in Virgfinia, a mitigation. Now, in 
 England, the defendant may in any 
 case bring money into court. 
 (Hawkesley v. Bradshaw, L. R. 5 Q. 
 B. Biv. 302.) 
 
 » Lucan v. Smith, i Hurl. & N. 
 
 481; 2oJur. 1 107. The fact that the 
 same matter which is specially pleaded 
 might be given in evidence under the 
 general issue is not always a suffi- 
 cient ground for rejecting the special 
 plea. (Parker v. McQueen, 8 B. Mon- 
 roe, 16.) Plea of apology and traverse 
 of alleged defamatory sense is not 
 allowed. (Barry v. McGrath, Ir. Rep. 
 3 Com. Law, 576.) In an action for a 
 libel contained in two letters published 
 in a newspaper, the defendant pleaded 
 that the second letter (itself actionable) 
 was a fair comment upon the facts in 
 the first letter; held bad. (Walker w. 
 Brogden, 17 C. B. N. S. 571.) Form 
 of plea of fair comment. (Clinton v. 
 Henderson, 13 Ir. Com. Law Rep. 
 Appendix, 43; O'Keefe v. Cullen, Ir. 
 Rep. 7 Com. Law, 551; see §409, 
 post.) 
 
 * Ante, \% 211 to 216, note i, p. 
 307, § 409, post; Curtis v. Perkins, 66 
 Barb. 610; Manning v. Clement, 7 
 Bing. 367; 2 Greenl. Ev. 424; Hagan 
 V. Hendey, 18 Md. 177 ; Frederitze v. 
 Odenwalder, 2 Yeates, 243 ; Barrows 
 V. Carpenter, i Cliff. 204; Donaghue 
 V. Gaffy, 54 Conn. 257. The plea of 
 truth is an issuable plea. (Woodward 
 V. Andrews, i Brev. 310.) 
 
592 
 
 PLEADING. 
 
 [cn. XIV. 
 
 punish for the offense has been tolled by lapse of time/ or 
 although the plaintiff has been tried upon the charge and 
 acquitted^ or pardoned.** The plea is in confession and 
 avoidance.* 
 
 § 355. That the justification on the ground of truth 
 must be as broad as the charge, and must justify the pre- 
 cise charge, has already been considered "(§ 212). We 
 have now but to point out some other requisites of a plea 
 or answer on the ground of truth.* These depend upon 
 
 1 Van Ankin v. Westfall, 14 Johns. 
 234. Where words were actionable 
 per se, a plea of not guilty within two 
 years held good. (Quinn v. Wilson, 
 13 Irish Law Rep. 381.) 
 
 2 Cook V. Field, 3 Esp. 133; En- 
 gland V. Bourke, Id. 80. A judgment 
 for defendant in a suit for moneys 
 received to use of plaintiff does not 
 estop the plaintiff in that suit, when 
 sued for accusing the defendant in 
 that action of having stolen such 
 moneys, from justifying the charge as 
 true. (Henderson v. Fox, 6 So. East. 
 Rep. 164 [Ga.].) 
 
 ^ Ante, note i, p. 307, and § 158, 
 and J 400, as to pleading a justifica- 
 tion. 
 
 * Gault V. Babbitt, I Bradw. (111.) 
 130. 
 
 ^ Where the charge was, " I cau- 
 tion you against M. W. (plaintiff) ; she 
 came here an excommunicated prosti- 
 tute, the outcast of a barrack," held 
 that a plea that plaintiff was a prosti- 
 tute was not a justification. (Wright 
 V. Sullivan, Hayes Ir. Ex. Rep. 104; 
 see first note to § yji, post^ Where 
 the words are laid with an innuendo, 
 defendant may justify the words, 
 either with or without justifying the 
 innuendo. (Watkin v. Hall, L. R. 3 
 Q. B. 396.) In Ireland the justifica- 
 tion must be of both the words and 
 the . innuendo. (Hart v. Reade, Ir. 
 R. 7 C. L. 55') K the innuendo 
 is warranted defendant must justify 
 the innuendo. (Royce v. Maloney, 
 58 Vt. 437; Nott V. Stoddard, 38 
 Vt. 35; Ames v. Hazard, 8 R. I. 
 43.) Where the charge is divisible. 
 
 defendant may justify part. (Mc- 
 Gregor V. Gregory, 11 M. & W. 287 ; 
 Churchill v. Hunt, 2 B. & Aid. 685; 
 Roberts v. Brown, 10 Bing. 519; 
 Biddulph V. Chamberlayn, 17 Q. B. 
 351 ; Clarke v. Taylor, 2 Bing. N.' C. 
 668 ) Where the charge is specific, 
 the justification must justify the 
 specific offense charged. (Daly v. 
 Byrne, i Abb. N. C. 150; Robinson 
 V. Hatch, 55 How. Pra. Rep. 55; Ball 
 V. Even. Post Pub. Co. 38 Hun, 11 ; 
 Knox V. Commercial Agency, 40 Hun, 
 508.) 
 
 » Whether a defense contains a 
 justification must be determined by 
 the language used in it, and the de- 
 fense cannot be aided or enlarged by 
 an introductory clause characterizing 
 it or expressing its purpose. (Kelly v. 
 Waterbury, 87 N. Y. 179.) .Defend- 
 ant alleging in his answer to a com- 
 plaint for slander, that all his sayings 
 and conduct will be proved as a justi- 
 fication, is not thereby prevented from 
 showing that the communications were 
 privileged, the truth of the words 
 charged not being admitted or denied. 
 (Halstead v. Nelson, 24 Hun, 395.) 
 A justification is not a waiver of the 
 defense of privilege. (Wilson v. Sul- 
 livan, 7 So. East. Rep. 274 [Ga.].) A 
 repetition of an assertion against 
 plaintiff can be justified only by show- 
 ing the assertion to be true. (Ryer^/. 
 Fireman's Jour. Co. 11 Daly, 251.) 
 Where the " statement of claim " 
 alleged that defendant "falsely and 
 maliciously" published of plaintiff, a 
 denial that defendant published 
 "falsely or maliciously as alleged," 
 
§ 355-] 
 
 ANSWER. 
 
 593 
 
 whether the charge is general or specific. (§ 356.) 
 Where the charge is in general terms, the answer must 
 state the facts which show the charge to be true. It is 
 not sufficient merely to allege that the charge is true.^ 
 Where the charge is that the plaintiff is a swindler,'' or a 
 thief, or a perjurer, or a murderer,' or that he stole a 
 watch,* or certified a lie,® or was of intemperate habits,^ or 
 received a bribe,' or perverted the law,^ or is a politician, 
 
 was stricken out. If defendant desired 
 to controvert that publication was 
 false, he must plead truth ; if to con- 
 trovert that the publication was mali- 
 cious, he must plead the circumstances 
 which repel the implication of malice. 
 (Belt V. Lawes, 51 Law Jour. Rep. C. 
 L.N. S.359.) 
 
 * Fry V. Bennett, 5 Sandf. 69; 
 Lawton v. Hunt, 4 Rich. 458 ; Atte- 
 bury V. Powell, 29 Mo. (8 Jones), 429; 
 Billings V. Waller, 28 How. Pr. Rep. 
 97 ; Barrows v. Carpenter, i Cliff. 
 204 ; Cook V. Tribune Asso. 5 Blatchf. 
 C. C. 352; Sweeney v. Baker, 13 W. 
 Va. 158; Bruton z/. Downes, i Fost. 
 & F. 668; Holmes v. Catesby, i 
 Taunt. 543. Where a particular 
 meaning is alleged, it is not sufficient 
 to say the charge is true, with the ad- 
 dition of time, place, and circum- 
 stance. (Fidler v. Delavan, 20 Wend. 
 57.) A man cannot defame in one 
 sense and justify in another. {Id.; 
 Kerr v. Force, 3 Cranch C. C. 8.) 
 But since the common-law procedure 
 act in England, a general plea of justi- 
 fication is allowed there, but in such 
 case the plaintiff is entitled to particu- 
 lars of the charges intended to be Jus- 
 tified. (Behrens v. Allen, 8 Jur. N. S. 
 1 18; Jones w. Bewicke, Law Rep. 5 C. 
 P. 32; Stainbank v. Backett, Week. 
 Notes, 203, 1879; note i,p. 596.) 
 
 2 J'Anson v. Stuart, i T. R. 748. 
 It is not a justification of a charge of 
 plaintiff being a swindler to allege 
 that defendant delivered to plaintiff 
 goods to sell on commission, that he 
 failed to return them or to account for 
 them, and that he made an assign- 
 ment for the benefit of his creditors. 
 (Herr v. Bamberg, 10 How. Pr. Rep. 
 128.) It is not a justification of a 
 38 
 
 charge that plaintiff had appropriated 
 a play called "Flirtation" to allege 
 that plaintiff appropriated a play 
 called "Mock Marriage." (Daly v. 
 Byrne, i Abb. N. C. 150.) Charging 
 plaintiffs, publishers, with swindling, 
 held is justified by proof that a serial 
 publication was not completed in the 
 stipulated numbers. (Johnson v. 
 Grove, 1 1 Weekly Dig. 562.) 
 
 ' Anon. 3 How. Pr. Rep. 406; 
 Sayles v. Wooden, 6 Id. 84; Johnson 
 V. Stebbins, 5 Ind. 364. Where the 
 words complained of were, " She is a 
 thief, and has stolen my gold pen and 
 pencil," held that the answer might 
 properly allege a variety of thefts by 
 the plaintiff of different articles, as 
 going to justify the words " She is a 
 thief." (Jaycocks v. Ayres, 7 How. 
 Pr. Rep. 215.) A charge of forgery 
 against a whole community was held 
 to be justified by alleging a falsifica- 
 tion of poll books. (Fellowes v. Hun- 
 ter, 20 Up. Can. Q. B. Rep. 382.) 
 
 Rep, 
 
 s 
 
 S92. 
 
 Anibal v. Hunter, 6 How. Pr. 
 
 255- 
 
 Jones V. Cecil, 5 Eng. (10 Ark.) 
 
 Buddington v. Davis, 6 How. Pr. 
 Rep. 401. 
 
 ' Van Ness v. Hamilton, 19 Johns. 
 
 349- 
 
 ' Riggs V. Denniston, 3 Johns. 
 Cas. 198. In an action of slander, 
 when the charge is made directly, the 
 plea of justification should aver the 
 truth of the charge, as laid in the dec- 
 laration ; but when the charge is made 
 by insinuation and circumlocution, so 
 as to render it necessary to use intro- 
 ductory matter to show the meaning 
 of the words, the plea should aver the 
 truth of the charge which the declara- 
 
594 PLEADING. [CH. XIV. 
 
 and had squandered His father's money, and married a 
 Brooklyn concert singer.^ The distinction seems to be 
 that where the charge is a conclusion or inference from 
 certain facts, there the plea must set up the facts which 
 warrant such an inference ; but where the charge is of some 
 specific act or acts, there it is sufficient if the plea allege 
 that the charge is true (§ 356), Thus, if it be said of a 
 man, that he is a swindler, this is an inference from his 
 actions, and which can be proved only by showing acts of 
 fraud on the part of the plaintiff amounting to swindling ; 
 and, therefore, as we have seen, to justify a charge of being 
 a swindler, the plea must allege the facts upon which the 
 defendant relies to make out the charge. Where the de- 
 fendant attempted to justify a charge of fraud by setting 
 up in his plea that he and plaintiff had had dealings 
 together, and defendant believing that plaintiff had cheated 
 him, and in consequence of such belief, and believing said 
 charge to be true, he published the same, the plea was set 
 aside as embarrassing and uncertain.^ When the charge 
 is general, and the answer merely an averment that the 
 charge is true, the plaintiff may, it seems, under the New 
 York practice, apply to have the answer made " definite 
 and certain ; " but he is not obliged to do this, he may lie 
 by, and on the trial object to the reception of any evidence 
 in support of such a p]ea, either in bar or in mitigation.* 
 
 tion alleges was meant to be made. and see Brickett v. Davis, 21 Pick. 
 
 (Snow V. Whitcher, 9 Ired. 346; and 404. Generally upon the trial the 
 
 see Berens v. Allen, 3 Fost. & F. 135.) plaintiff cannot object to the insufii- 
 
 1 Knox V. Com'l Agency, i N. Y. ciency of a plea of justification (Evans 
 
 St. Rep. 84. V. Franklin, 26 Mo. [5 Jones], 252), as 
 
 " Hennessy v. Morgan, 8 Ir. C. L. he might have demurred; but if the 
 
 R. Ixix, Appendix. A justification justification be proved, the defendant 
 
 alleging that plaintiff had had sexual is entitled to a verdict on that plea, 
 
 intercourse with her brother is suffi- (Edmonds v. Walter, 3 Stark. R. 7; 
 
 cient to cover a charge that she had and see Churchill v. Hunt, 2 B. & 
 
 had such intercourse and was preg- Aid. 685; i Ch. 480; contra, as to a 
 
 nant thereby. (Edwards v. Knapp, notice of justification, Thompson v. 
 
 10 So. West. Rep. 54 [Mo.].) Bowers, i Doug. [Mich.] 321.) Held 
 
 » Wachter v. Quenzer, 29 N. Y. to be error for the court to charge of 
 
 553; Robinson v. Hatch, 55 How. Pr. its own motion that the pl'ea is so de- 
 
 R. 55; Tilson v. Clark, 45 Barb. 181 ; fective as not to be available to de- 
 
§ 356.] 
 
 ANSWER. 
 
 595 
 
 In England, the practice is to allow, in all cases subject to 
 a bill of particulars, a general plea of justification.^ 
 
 § 356. As to specific charges.^ Where the charge is 
 specific, there the answer need only to allege that the 
 charge is true. Thus in an action for calling the plaintiflF 
 thief, and saying he stole two sheep of J, S., the defendant 
 pleaded that the plaintiff stole the same sheep, by reason 
 of which he (defendant) called plaintiff thief, as well he 
 might, and the plea was held good.* And so where the 
 charges were of theft of certain articles specified, and of 
 practicing prostitution, specifying instances ; * and where 
 the charge was that the plaintiff, as inspector of drugs, had 
 improperly passed an adulterated article, an answer merely 
 alleging the charge to be true was held to be sufficient.' 
 A plea that the defamatory matter " is true in substance 
 and effect," means that it is true in every material particu- 
 
 fendant. (Bryan v. Gurr, 27 Ga. 378.) 
 A. sued B. for chargjing him with per- 
 jury. B. justified as follows : '' De- 
 fendant avers that plaintiff, in swear- 
 ing to a complaint against Samuel 
 Steele, executor, &c., swore falsely by 
 stating in said complaint that said 
 estate owed nothing, when plaintiff 
 then knew the estate wels indebted," 
 &c. Held insufficient, as it gave 
 plaintiff no information of the indebt- 
 edness to be proved. The fact that 
 plaintiff took issue on this plea did not 
 entitle defendant to g^ve any evidence 
 in support of it. (Steele v. Phillips, 
 10 Humph. 461.) 
 
 » Gourley v. Plimsoll, Law Rep. 8 
 C. P. 362 ; ante, note i, p. 593. In 
 New York a bill of particulars was 
 refused. (Orvis v. Dana, I Abb. N. 
 C. 268.) 
 
 » Knox V. Com'l Agency, i N. Y. 
 St. Rep. 85, Brady, J., referring to 
 Wachter v. Quenzer (29 N. Y. 547), 
 says: The court approved the rule 
 stated by Mr. Chitty in his treatise on 
 slander, which declares that if the 
 defendant undertakes justification it 
 must be by stating the particular facts 
 which evince the truth of the imputa- 
 
 tion, and that the rule holds whether 
 the imputation be of a general or a 
 specific nature. We are aware that 
 Mr. Chitty was a voluminous writer, 
 but we had never until we read the 
 report of Knox v. Com'l Agency 
 heard of his treatise on slander. Prob- 
 ably his treatise on pleading was in- 
 tended. Where the charge was men- 
 tal unsoundness, an answer that the 
 charge was true is sufficient. (Moore 
 V. Francis, 3 N. Y. Supp. 162.) 
 
 8 I RoUe Abr. 87 ; Fitch v. Lem- 
 mon, 27 Up. Can. Q. B. Rep. 273. 
 Where the original charge is in itself 
 specific, defendant need not further 
 particularize it in his plea, (i Stark. 
 Sland. 478.) A plea that the charges 
 are true, held bad. (Baretto v. Pirie, 
 26 Up. Can. Q. B. Rep. 468.) 
 
 * Steinman v. Clark, 10 Abb. Pr. 
 R. 132. 
 
 5 Van Wyck v. Guthrie, 4 Duer, 
 268. A general plea averring plaint- 
 iff's residence in O. county, his being 
 known to divers citizens there, and 
 having a bad reputation among them, 
 is good. (Cooper v. Greeley, i Denio, 
 347.) 
 
596 
 
 PLEADING. 
 
 [CH. XIV. 
 
 lar.^ To a charge of being a liar, a plea that " sundry 
 honest men, to wit, A. B.," &c., naming them, " and others, 
 believed and considered the plaintiff not to be a man of 
 truth, but addicted to falsehood," would not be sufficient 
 justification.* 
 
 § 357. The facts which show the charge to be true 
 
 ' Weaver v. Lloyd, 4 D. & R. 230. 
 An answer which alleged that the 
 matter complained of was true, 
 according to the true intent and 
 meaning thereof, was, on demurrer, 
 held good ; the words in italic were 
 surplusage. (Kelly v. Taintor, 48 
 How. Pr. R. 270.) A plea to an 
 action for libel purporting to be the 
 report of a trial "that alleged libe! 
 was in substance a true report of the 
 trial," held bad on demurrer. (Flint 
 -V. Pike, 6 D. & R. 528 ; 4 B. & C. 473.) 
 To a declaration for an alleged libel 
 published in a newspaper, purporting 
 to be an account of the trial of an 
 action, the plea stated that at the 
 trial the counsel made the speech set 
 DUt in the alleged libel, and that cer- 
 ftain witnesses proved all that had 
 rbeen so stated ; held bad on demurrer, 
 forthat the plea ought to have detailed 
 sucli evidence, and shown the truth of 
 the facts so stated, and not merely 
 have stated the conclusion which the 
 party himself drew from the evidence. 
 '(Lewis V. Walter, 4 B. & Aid. 605.) 
 
 ' Brooks V. Bemiss, 8 Johns. 356; 
 ■ see Wilson v. Fitch, 41 Cal. 363. 
 ■Under a plea of justification on the 
 ; ground of truth, the defendant can- 
 not 5how that he believed the charge 
 vtitue, (Hix V. Drury, 5 Pick. 296.) 
 yustification of a libel, that from what 
 had been said there was a reason for 
 thinking the imputation was true; 
 held bad on demurrer, unless it is 
 stated what had been said, and by 
 whom. (Lane v. Howman, i Price, 
 76.) To constitute a justification, the 
 answer should aver the truth of the 
 defamatory matter charged. It is not 
 sufficient to set up the facts which 
 only tend to establish the truth of such 
 matter. (Thrall v. Smiley, 9 Cal. 
 529.) Where it was alleged that de- 
 fendant spoke of plaintiff, " I am told 
 M. (plaintiff) was the man who killed 
 
 the peddler, and I believe it," a plea 
 which averred that defendant was told 
 plaintiff was the man who murdered 
 the peddler, and that defendant did 
 believe it, was held bad. (Muma v. 
 Harmer, 17 Up. Can. Q. B. Rep. 293.) 
 Where the charge was : " There is no 
 doubt but that he (plaintiff) abstracted 
 the cable," innuendo stole it. A plea 
 that it had been rumored that a party 
 of persons, including plaintiff, had 
 taken said cable, held no justification. 
 (Ede V. Scott, 7 Ir. L. R. N. S. 6C7.) 
 Action for libel in charging plaintiff 
 with preparing mineral water for an- 
 alysis by a chemist, so as to get a 
 favorable report thereon. The words 
 claimed to be libelous were as follows : 
 " In stating these facts, we do not in- 
 tend to implicate the chemist, who 
 did not procure water himself (as he 
 should) at the springs, who did not 
 know how much fresh water was 
 added to diminish the proportionate 
 amount of the offending iron and gross 
 salts to the water, or how much valu- 
 able salts were added before closing 
 the bottles sent him." The answer 
 set up: "It is also true that the 
 chemist in said artice referred to, did 
 not procure the water himself from 
 the waters of the spring as he should ; 
 that he did not know how much (if 
 any) fresh water was added to dimin- 
 ish the proportionate amount of offend- 
 ing iron and gross salts to the water, or 
 how much, if any, valuable salts were 
 added before closing the bottles sent 
 him." Upon demurrer held that the 
 answer was defective as to that por- 
 tion, as not pleading justification. 
 (Hathom v. Congress Spring Co. 44 
 Hun, 608.) Answer not alleging truth 
 of matter published, but that words 
 were published by another is not a 
 justification. (Funk v. Beverly, 112 
 Ind. 190.) 
 
§ 357.] 
 
 ANSWER. 
 
 597 
 
 must be stated with certainty,^ so that the court may see 
 whether the defendant was justified in what he pub- 
 lished;* and (when a reply was necessary) so that the 
 plaintiff might have an opportunity of denying and tak- 
 ing issue upon the facts alleged; and it was no excuse 
 for general pleading that the subject comprehended a 
 multiplicity of facts tending to prolixity, nor that the 
 plea was not more general than the charge.^ Where a 
 declaration stated that plaintiff was lawfully possessed of 
 mines and of ore gotten from them, and was in treaty for 
 the sale of the ore, and that the defendant published a 
 malicious, injurious, and unlawful advertisement, caution- 
 ing persons against purchasing the ore, Sic, per quod he 
 was prevented from selling; to which the defendant 
 pleaded in justification, that the shareholders in the mines 
 thought it their duty to caution persons against purchasing 
 the ore, &c. (pursuing the words of the advertisement); 
 this plea was held ill on special demurrer : first, because it 
 did not disclose the names of the adventurers, or who they 
 were ; and secondly, because it did not show that the de- 
 fendant made the publication under the direction of the 
 shareholders.* And where the plaintiff, a justice of the 
 peace, brought an action against the defendant for charg- 
 ing him with pocketing all the fines and penalties forfeited 
 by delinquents whom he had convicted, without distribut- 
 ing them to the poor, or in any manner accounting for a 
 sum of ;^50 then on hand, the defendant pleaded that the 
 plaintiff was a justice of the peace, and that, during the 
 time he acted as such, he convicted sundry persons in 
 sundry sums of money, for divers offenses against divers 
 
 1 Van Ness v. Hamilton, 19 Johns. tain intent in general." (Kerr v. Force, 
 
 349; Riggs V. Denniston, 3 Johns. 3 Cr. C. C. 8.) 
 
 Cas. 198. A plea of justification is ^ Torrey v. Field, 10 Vt. 353 ; 
 
 taken most strongly against the Johnson v. Stebbins, 5 Ind. 364. 
 pleader; everything must be precisely ' Van Ness v. Hamilton, 19 Johns, 
 
 alleged ; it must be " certain to a cer- 349. 
 
 * Rowe V. Roach, i M. & S. 304. 
 
598 PLEADING. [CH. XIV. 
 
 Statutes, which sums, amounting together to ;^50, he 
 received of the persons so convicted, and had not paid 
 over the same as required by law. On special demurrer, 
 the plea was held bad (not sufficiently certain) for not 
 stating the names of the persons who paid said sums of 
 money, and the amount which each person paid.* Where 
 the libel stated that the plaintiff, as manager of the opera, 
 employed his critics in attacking, in corrupt and purchased 
 newspapers, the females of his company, it was held that 
 the justification of such a charge must state the names of 
 the critics, of the females, and of the corrupted newspapers, 
 and the substance of the articles, and the times and places 
 of their publication.^ But where the libel charged that 
 certain exhibitions of opera by the plaintiff were an unfit 
 resort for respectable people, and that they were attended 
 by persons of certain specified immoral and illegal occupa- 
 tions or pursuits — held that an answer justifying such 
 charge need do no more than reaffirm the statement con- 
 tained therein, and need not specify the names of the per- 
 sons who attended such exhibitions ; and certainly this will 
 be the case where the defendant alleges that the names of 
 such persons are unknown to him.* Where the charge 
 was that the plaintiff made himself invisible on account of 
 too much borrowing and not paying, innuendo that plaint- 
 iff ran away, held that an answer which stated " it is true 
 the plaintiff made himself invisible on account of too much 
 borrowing and not paying, that is, ran away," was insuffi- 
 cient* And in an action of slander in charging the plaint- 
 iff, a pawnbroker, with the practice of duffing, z. e., of doing 
 up damaged goods and pledging them again, a plea alleg- 
 ing that the plaintiff did do up divers damaged goods and 
 
 » Newman v. Bailey, 2 Chit. R. < Wachter v. Quenzer, 29 N. Y. 
 
 665. 552. A charge of moral obliquity 
 
 » Fry V. Bennett, 5 Sandf. 54. must be proved by some act done 
 
 ' Maretzek v. Cauldwell, 2 Rob- mala fide. (Kerr v. Force, 3 Cranch 
 
 ertson, 715. C. C. 8.) 
 
§ 35 7- J ANSWER. 
 
 599 
 
 repledge to divers persons, &c., was, on special demurrer, 
 held bad, for not stating specific instances and persons.^ 
 And where the libel charged an attorney with general mis- 
 conduct, viz., gross negligence, falsehood, prevarication, 
 and excessive bills of costs in the business he had con- 
 ducted for the defendant, a plea in justification repeating 
 the same general charges, without specifying the particular 
 acts of misconduct, was, upon demurrer, held insufficient.* 
 A declaration alleged that plaintiflF was cashier to Q., and 
 that defendant, in a letter addressed to Q., wrote, " I con- 
 ceive there is nothing too base for him (plaintiff) to be 
 guilty of." Plea, in justification, alleged that plaintiff 
 •signed and delivered to defendant an I. O. U., and after- 
 wards, on having sight thereof, falsely and fraudulently 
 asserted that the signature was not his; and the plea 
 averred that the libel was written and published solely in 
 reference to this transaction — held a sufficient justification, 
 as the libel must be understood with reference to the sub- 
 ject-matter.* Where the defendant, a railway corporation, 
 published a placard headed " Caution," and containing the 
 plaintiff's name and address, and stated that he had been 
 convicted of traveling on its railway without having first 
 paid his fare, in an action for libel, the declaration con- 
 tained an innuendo that the defendant meant thereby that 
 
 * Hickinbotham v. Leach, 2 Dowl. need not meet the exact words of the 
 
 Pr. Cas. N. S. 270; 10 M. & W. 361. libel, but may adopt the sense put by 
 
 To an action for slander in charging the innuendo, and justify that, 
 
 plaintiff with stealing com and fodder (O'Connor 2/. Wallen, 6 Irish Com. 
 
 from various persons, a plea of justifi- Law Rep. 378.) The declaration, 
 
 •cation leaving blanks for the dates after allegfing that plaintiff had taken 
 
 and amounts would be bad on special an oath under the election law, alleged 
 
 exception, but cannot be attacked on that defendant charged plaintiff with 
 
 a general exception. (George v. having sworn false, meaning that 
 
 Lemon, 19 Texas, 150.) plaintiff was guilty of perjury. Plea 
 
 2 Holmes v. Catesby, i Taunt. 543. that plaintiff did swear false, in swear- 
 
 And the justification must show ing he was a resident, plea held bad; 
 
 plaintiff was acting in his professional it should have been the general issue, 
 
 -capacity. (Brown v. Burnett, 10 or have justified the perjury. 
 
 Bradw. [111.] 279.) (Strachan v. Barton, 34 Up. Can. Q. 
 
 8 Tighe V. Cooper, 7 El. & B. 639; B. Rep. 374.) 
 21 Jur. 716. A plea of justification 
 
600 PLEADING. [CH. XIV. 
 
 the plaintiff had attempted to defraud the company ; the 
 plea was to the effect that the plaintiff was charged and 
 convicted as alleged ; on demurrer, this plea was held good, 
 as containing a justification of the charge and of the 
 innuendo.* 
 
 § 358. It is said that to justify a charge of crime, the 
 plea or answer must specify the crime with certainty,* and 
 show the commission of the crime with as much certainty 
 as in an indictment for such crime.* In an action of 
 slander for charging the plaintiff with having stolen the 
 defendant's shingles, a justification stating that the plaintiff 
 had sold the defendant's shingles without authority, and 
 afterward denied that he knew anything respecting them, 
 without alleging that the plaintiff took them privately or 
 feloniously, was held not to amount to a charge of larceny, 
 and was bad as a justification.* To a charge of procuring 
 an abortion, it was held not a sufficient plea that the plaint- 
 iff assisted in procuring an abortion, without allegations 
 showing the assistance criminal.® Where the charge was 
 that plaintiff " swore falsely," without reference to any judi- 
 cial or other proceeding in which an oath could have been 
 lawfully administered, a plea of justification pointing the 
 plaintiff to the time, place, and occasion of his false swear- 
 
 » Biggs V. Gt. East. R. R. 18 Law 2 Nail v. Hill, Peck (Tenn.), 325. 
 
 Times, N. S. 482. The declaration When any circumstance is stated 
 
 alleged that defendant had published which describes or identifies the 
 
 of plaintiff, then late a conductor in offense, it must be averred for the 
 
 the employ of defendant, that an en- purpose of showing that it is the same 
 
 velope was mailed at Hamilton, con- offense. (Sharpe v. Stephenson, 12 
 
 taining four coupon tickets. &c., and Ired. 348.) An error as to time will 
 
 that plaintiff had been dismissed, not vitiate a defense of justification, 
 
 innuendo that plaintiff had conducted (Ropke v. Brooklyn Daily Eagle, 9 
 
 himself fraudulently in his said em- N. Y. St. Rep. 709.) 
 
 ployment, and attempted to defraud ^ Snyder w. Andrews, 6 Barb. 43; 
 
 the company, and had been dismissed Steele v. Phillips, 10 Humph. 461. 
 
 therefor. Plea, that an envelope was *■ Shepard v. Merrill, 13 Johns. 475. 
 
 mailed, &c. Held, for the plea was " Bissell v. Cornell, 24 Wend. 354; 
 
 good. It undertook to justify the and see Calkins v. Colbum, 10 N. Y. 
 
 alleged libel with the innuendoes. St. Rep. 778. 
 (Tench v. Swinyard, 29 Up. Can. Q. 
 B. Rep. 319.) 
 
§ 358.] ANSWER. 6oi 
 
 ing, and alleging the truth of the words spoken, was held 
 to be good.^ Where the charge is perjury, the plea must 
 allege not only that the defendant testified to what was 
 untrue, but that he did so knowingly ,"* and that the matter 
 testified to was material^ If the charge be of having 
 sworn falsely in a judicial proceeding, without the neces- 
 sary averments to make the slander amount to an imputa- 
 tion of perjury, then a plea of justification, that the plaintiff 
 did swear falsely in the particular proceeding, would be 
 sufficient* Where the charge is that the plaintiff perjured 
 himself on a particular occasion, the justification must be 
 confined to that.^ Thus in slander for charging 'the plaint- 
 iff with committing perjury in making a certain statement, 
 set out in the declaration, as a witness in a certain case, 
 the defendant pleaded that the plaintiff did commit per- 
 jury by making that statement, and that on the same trial 
 he committed perjury by another statement made by him 
 on the same trial, and not set out in the declaration. On de- 
 murrer to both pleas, the first was held good and the second 
 
 * Sanford v. Gaddis, 13 111. 329. had been used by A. B., &c. ; for non 
 
 To an action of slander for charging constat thereby that what the plaintiff 
 
 the plaintifi with having forged a cer- swore was false. Neither is it suffi- 
 
 tain instrument of writing, the truth cient in a justification to such libel, 
 
 was pleaded in justification. Held, where the extraneous matter was so 
 
 that such a plea could not be objected mingled with the judicial account as 
 
 to because it avers the forged instru- to make it uncertain whether it could 
 
 ment to be in the plaintiff's possession be separated, to justify the publication 
 
 or destroyed. Held, also, that in a by general reference to such parts of 
 
 plea with such an averment, the instru- the supposed libel as purport to con- 
 
 ment need not be so particularly de- tain an account of the trial, &c., and 
 
 scribed as would be otherwise required, that the said parts contain a just and 
 
 (Kent V. David, 3 Blackf. 301.) faithful account of the trial, &c. 
 
 " Chandler v. Robison, 7 Ired. (Stiles v. Nokes, 7 East, 493.) 
 
 480; Tull V. David, 27 Ind. 377; ■* Sanford v. Gaddis, 13 111. 329. 
 
 Mull V. McKnight, 67 Ind. 535. " The answer should set forth the 
 
 ' McGough V. Rhodes, 7 Eng. (12 evidence, and what was actually 
 
 Ark.) 625 ; Harris v. Woody, 9 Ma. sworn to by plaintiff at the time 
 
 112. It is no justification to an insin- alleged" (3 Chit. PI. 1039; Yates's 
 
 uation of perjury against plaintiff (who Plead. 430; Woodbeck v. Keller, 6 
 
 had sworn to an assault by A. B. on Cow. 122), and the Code of New York 
 
 him), that it did appear (which was the has not altered the rule in this respect, 
 
 suggestion in the libel) from the testi- (Tilson v. Clark, 45 Barb. 180; 
 
 mony of every person in the room, Wachter v. Quenzer, 29 N. Y. 553.) 
 
 &c., except plaintiff, that no violence ' Palmer v. Haight, 2 Barb. 210. 
 
602 PLEADING. [CH. XIV. 
 
 bad.^ In an action for slander in charging the plaintiflF 
 with perjury, a plea was that the words were spoken in 
 reference to the testimony of the plaintiff on the trial of a 
 cause, and after setting out the parties, the nature of the 
 action, and the questions litigated, it stated the evidence 
 given on such trial, and averred that the words were 
 spoken in reference to certain parts of the testimony {speci- 
 fying them) which were not m,aterial to the issue, and that 
 the defendant was so understood by the hearers; it was held 
 that the words in italic were irrelevant.^ A plea in an 
 action of slander for charging the plaintiff with committing 
 a felony, \Vhich admits the speaking of the words charged, 
 but avers other facts in order to show that the words were 
 not actionable, must show either that it appeared by the 
 whole of defendant's statements, in the same conversation 
 and company, that no felony had been committed, and 
 therefore that there was no charge of felony, or that the 
 charge was made known to the defendant by a third per- 
 son, named in the plea, before he uttered the words.* 
 
 § 359. If a material part of a plea of justification fails, 
 the plea fails altogether.* Thus, in an action for libel, the 
 declaration set out the whole of a long letter, in which the 
 defendant imputed to the plaintiff improper conduct in 
 various transactions which had taken place in reference to 
 a ditch of the plaintiff's, alleged by the defendant to be a 
 nuisance. The defendant pleaded " as to so much of the 
 libel as related to, and charged the plaintiff with, the keep- 
 
 1 Starr v. Harrington, i Smith held to be a justification of a charge 
 (Ind.), 360. of forgery, to show that the charge 
 * Allen V. Crofoot, 7 Cow. 46. was intended to mean the altering of 
 ' Parker v. McQueen, 8 B. Monr. poll books, and that plaintiff had 
 16. An averment that the plaintiff altered poll books. (Fellowes v. 
 did falsely, fraudulently, and unlaw- Hunter, 20 Up Can. Q. B. Rep. 382.) 
 fully alter a note, so as materially to * Cory v. Bond, 2 Fost. & F. 241 ; 
 change the terms and conditions Holmes v. Jones, 3 N. Y. Supp. 1 56. 
 thereof, is a good plea in justification A plaintiff is entitled to a general ver- 
 of a charge of forgery. (Kerr v. diet. {Id., and see Atkinson v. De- 
 Force, 3 Cranch C. C. 8.) It was troit Free Press Co. 46 Mich. 341.) 
 
§§ 360, 361.] ANSWER. 603 
 
 ing of the nuisance," a plea which attempted to justify 
 every sentence in the letter. The jury found that the 
 plaintiff kept the ditch as a nuisance, but negatived the 
 improper conduct imputed to the plaintiff in the letter. 
 Held that, upon this finding, the plaintiff was entitled to a 
 verdict.^ Where the charge was that plaintiff had acted 
 for spite and lucre, the defendant justified, but his justifi- 
 cation failed as to lucre^ held that the charge being entire^ 
 the plaintiff was entitled to a verdict,* and where a part 
 only of a divisible charge is justified, the defendant is liable 
 for the part not justified.' So where the charge was, He 
 (plaintiff) has robbed me to a serious amount, the defend- 
 ant, in addition to the general issue, as to the words he 
 has robbed me, pleaded that plaintiff had robbed him (de- 
 fendant) of a loaf of the value of three pence, the jury 
 found the words as laid, and that the plea was true, but 
 were directed to assess the plaintiff's damages for the 
 words not justified, namely, ''to a serious amount," and the 
 court in banc held the direction proper.* 
 
 § 360. In some States, by statute, a notice or specifica- 
 tion of the defense is substituted for a plea or answer. 
 Such a notice must, it seems, contain all the material alle- 
 gations of a plea or answer.^ 
 
 § 361. In New York, and in some other States, by 
 statute the defendant may, in connection with a general 
 denial, and with or without a defense of justification, set 
 up in his answer mitigating circumstances to reduce the 
 
 ' Biddulph V. Chamberlayne, 17 Q. plaintiff was entitled to recover. 
 
 B. 351. Where, in anaction for a libel (Chubb v. Flannagan, 6 C. & P. 431.) 
 
 in reference to an advertisement by '' Cory w. Bond, 2 Fost. & F. 241. 
 
 plaintiff tending to injure defendants, " Clarke v. Taylor, 3 Scott, 95. 
 
 his former partners, in their trade, de- * Bayley & Holroyd, JJ., in the 
 
 fendant justified, and relied on the Lancaster C. P. 
 
 construction of such advertisement, as ^ Van Derveer v. Sutphin, 5 Ohio 
 
 set out in the introductory part of the St. 293: Brickett v. Davis, 21 Pick, 
 
 declaration; held, that that not sup- 404; Shepard v. Merrill, 13 Johns, 
 
 porting the inferences in the libel, 475; Mitchell v. Borden, 8 Wend. 
 
 570; Bissell V. Cornell, 24 Wend. 354. 
 
604 PLEADING. [CH. XIV. 
 
 amount of damages.^ But it would seem that a defendant 
 cannot set up mitigating circumstances alone, without any 
 other answer constituting a defense, because an answer 
 merely setting up mitigating circumstances would not 
 raise an issue.^ Mitigating circumstances are such circum- 
 stances as the well-established rules of law allow to be 
 given in evidence in mitigation of damages,* and what 
 those circumstances are will be further considered under 
 the head of Evidence (§§ 410-417). The question 
 whether the facts set up are or are not such as should be 
 permitted to be given in evidence in mitigation, is properly 
 to be decided by the judge on the trial of the issue of fact.* 
 And, therefore, although a plaintiff may move, prior to the 
 trial, to strike out as irrelevant and redundant allegations 
 of fact which the defendant avers he will prove on the trial 
 in mitigation,* yet where there is any doubt as to whether 
 or not the facts alleged in the answer would be received 
 in evidence on the trial, the motion, prior to the trial, 
 should be denied. Where a defendant seeks to mitigate 
 damages by pleading facts and circumstances which 
 induced him, at the time of making the charge, to believe 
 it true, (i) the facts and circumstances must be such as 
 would reasonably induce, in the mind of a person possessed 
 of ordinary intelligence and knowledge, a belief of the 
 truth of such charge ; (2) it must also appear that the 
 defendant, before and at the time of making the charge, 
 
 • N.Y, Code of Civ. Pro. §§535, 536; gation. (Warner v. Lockerby, 31 
 
 Bush V. Prosser, ii N. Y. 347; Bisbey Minn. 431.) 
 
 V. Shaw, 12 N.Y. 67; Dolevin z/. Wild- * Newman v. Otto, 4 Sandf. 669; 
 
 er, 34 How. Pr. R. 488; 7 Robertson, Maretzek v. Cauldwell, 19 Abb. Pr. 
 
 319; Van Benschoten v. Yaple, 13 R. 40; but see Van Benschoten v. 
 
 How. Pr. R. 97; Heaton v. Wright, Yaple, 13 How. Pr. Rep. 97. 
 10 Id. 79; Ayres v. Covill, 18 Barb. ^ Graham v. Jones, i Code Rep. 
 
 260; Bennett v. Matthews, 64 Barb. N. S. 181; 6 How. Pr. R. 15; Blick- 
 
 410. Mitigating circumstances must enstaff v. Perrin, 27 Ind. 527. 
 be pleaded. (Blanchard v. Lewis, 19 * Newman v. Harrison, I Code 
 
 Week. Dig. 45; Calkins w. Colbum, Rep. N. S. 184; Fry w. Bennett, 5 
 
 10 N. Y. St. Rep. 778.) Defendant Sandf. 54. 
 
 may plead a general denial and miti- ' Van Benschoten v. Yaple, 13 
 
 How. Pr. R. 97. 
 
§ 36i.] 
 
 ANSWER. 
 
 605 
 
 knew such facts and circumstances;^ and (3) that he was, 
 by reason of the facts and circumstances so set forth, 
 induced to believe in the truth of the charge.'* Unless it 
 contains all these allegations, it may be stricken out on 
 motion. Upon a motion to strike out, as redundant or 
 irrelevant, matter set up in mitigation, the court is to see 
 whether such matter can, by any possibility, be received in 
 evidence ; if it can, it should not be stricken out. It 
 should not be stricken out if the court has the slightest 
 doubt as to its inadmissibility.^ ' In New York, the defend- 
 ant on the trial can give in evidence only such matter of 
 mitigation as he has set up in his answer, and if the answer 
 does not contain any matter of mitigation, no evidence in 
 mitigation can be admitted on the trial.* On an assess- 
 
 ■ Facts competent in mitigation 
 must be such as were known to and 
 believed by defendant when he made 
 the publication. CHatfield v. Lasher, 
 81 N. Y. 246; Wiliower v. Hill, 72 N. 
 Y. 36; Barkley v. Copeland, 15 Pac. 
 Rep. 307 [Cal.]; Hitchcock v. Moore, 
 37 No. West. Rep. 914 ; Morey v. 
 Morning Jour. Asso. 17 N. Y. St. 
 Rep. 266.) 
 
 » Kimball v. Herald Co. 21 Week. 
 Dig. 34; Hamilton v. Eno, 81 N. Y. 
 116; and sttpost, § 411, et seq. 
 
 ' Dolevin v. Wilder, 34 How. Pr. 
 R. 488; 7 Robertson, 319; Gorton v. 
 Keeler, 51 Barb. 475. Defendant 
 published in his newspaper : "Dr. B. 
 [plaintiflF ] makes a very bad book, and 
 vends medicine to match." In an 
 action for this publication, defendant 
 answered in effect: (i; That plaintiff 
 was engaged in vending worthless 
 books and injurious and deceptive 
 compounds as medicines; (2) That 
 defendant, as a journalist, deemed it 
 his duty to expose such deception ; (3) 
 That the books published by plaintiff, 
 specifying them, were of an immoral 
 and deceptive character; (4) That 
 plaintiff prepared so-called medicines, 
 specifying them, which were frauds 
 and swindles, and that these allega- 
 tions would be proved in justification 
 and mitigation. The court refused to 
 
 strike out these allegations as irrele- 
 vant. (Byrn v. Judd, 1 1 Abb. Pr. R. 
 N. S. 390.) And in an action against 
 a commercial agency for libel, the 
 answer set up that defendants and a 
 firm in the same business were under 
 a mutual contract to furnish each 
 other with information concerning the 
 commercial standing of business men ; 
 that the alleged libelous words were 
 telegraphed to said firm in confidence 
 as a warning for the purposes of their 
 business only, and for the purpose of 
 eliciting from said firm correct inform- 
 ation concerning plaintiffs for defend- 
 ant's own use. Held such defense 
 was neither irrelevant nor redundant, 
 at least it was mitigating matter. 
 (Jeffras v. McKillop & Sprague Co. 4 
 Sup. Ct. Rep. [T. & C] 578; 2 Hun, 
 351.) Where defendant in his plea set 
 forth in hac verba two declarations in 
 two other actions by the then plaintiff, 
 the court ordered them to be struck 
 out as an "oppressive incumbrance" 
 on the record. (Spencer v. Tabele, 9 
 Johns. 130.) 4f 
 
 * Knox V. Com'l Agency, *»N. Y. 
 St. Rep. 85 ; Willover v. Hill, 72 N. 
 Y. 36; Moore v. Manuf. Bk. 21 N. Y. 
 St. Rep. 652. If plaintiff gives evi- 
 dence of facts not pleaded, defendant 
 may prove mitigation not pleaded. 
 (Reily v. Timme, 53 Wis. 63.) In In- 
 
6o6 PLEADING. [CH. XIV. 
 
 ment of damages, where there is no answer, matter in miti- 
 gation may be received. Although matter in mitigation 
 of damages is not a subject of demurrer, yet if set up in 
 the answer, without any allegation that it is set up in miti- 
 gation merely, the plaintiff may infer it is set up in bar, 
 and may demur to it.^ 
 
 § 362. As in other actions, the defendant may demur 
 to the complaint ; but Lord Coke said, it was " an excel- 
 lent point of learning in actions for slander " not to demur, 
 but to take advantage of the declaration not disclosing a 
 cause of action, either on the trial, or by motion in arrest 
 of judgment.* It has been held that, though a count in 
 slander contain some words which are actionable, and 
 others which are not, the defendant cannot plead as to the 
 former, and demur as to the residue, but must either plead 
 or demur to the whole count' But, again, it has been 
 held, that where a libel contains several distinct charges, the 
 defendant may plead or demur to particular parts of it ; 
 yet where several statements tend to one conclusion or im- 
 
 diana, it is optional with defendant fendant may insist that the complaint 
 
 whether he will set up mitigating cir- does not disclose a cause of action, 
 
 cumstances in his answer or not. It must be remembered that in New 
 
 (See O'Conner v. O'Conner, 27 Ind. York the demurrer is general only, 
 
 69.) and that the special demurrer has been 
 
 1 Newman v. Otto, 4 Sandf . 668 ; superseded by a motion to make 
 
 Fry w. Bennett, 5 /i/. 54; Matthews 7/. definite and certain. In Mississippi 
 
 Beach, /<?. 256; Meyer v. Schultz, 4 and Virginia, no demurrer is allowed. 
 Id. 664; Stanley w. Webb, Id. ix. » Bronson, J., Root v. Woodruff, 
 
 » The great changes which, since 6 Hill, 420, citing as to libel. Sterling 
 Lord Coke's day, have taken place in v. Sherwood, 20 Johns. 204; Riggs v. 
 the forms and mode of procedure, Denniston, 3 Johns. Cas. 198; and 
 have deprived this rule of much of its saying the same rule had been applied 
 value. If the words laid in the decla- in actions for slander, though not 
 ration are not actionable, the defendant reported; and see Taylor i/. Carr, 3 
 must demur, or move in arrest of Up. Can. Q. B. Rep. 306. It is con- 
 judgment. (Dorsey v. Whipps, 8 Gill, ceded that the rule is otherwise in 
 457.) He cannot avail himself of the England, and Clarkson v. Lawson (6 
 defect at the trial (Blunt v. Guntz, Bing. 587), is cited. Held that a de- 
 Anthon, 180; Boyd v. Brent, 3 Bre- fendant may demur to a part of the 
 vard, 241) to nonsuit the plaintiff. words laid in a count for slander. 
 (Lumby v. Allday, i Cr. & J. 301 ; i (Abrams v. Smith, 8 Blackf. 95 ; 
 Tyrw. 217.) It seems to be otherwise Wyant v. Smith, 5 Id. 294.) 
 in New York, where, on the trial, de- 
 
§ 3^2.] ANSWER. 607 
 
 putation, it is not permissible to select and deal separately 
 with one, either by plea or demurrer.^ A defendant can- 
 not single out some of the words in a declaration and de- 
 mur to them.** If a count by husband and wife contains 
 words actionable per se, as well as others spoken of the 
 wife, the defendant cannot demur, but may, on the trial, 
 object that the action for the latter words cannot be main- 
 tained by both.* In an action for libel, the answer con- 
 tained (i) a denial of the publication, (2) a justification. 
 The plaintiff demurred to the answer, specifying only ob- 
 jections to the matter of justification, and judgment was 
 given for the plaintiflF on the demurrer ; held that the 
 denial remained on the record, and raised an issue of fact.* 
 Upon demurrer to the complaint, if any of the words be 
 actionable, there must be judgment for the plaintiff.^ A 
 demurrer to the complaint does not admit the intent 
 attributed by the innuendo ; ^ but it admits the allegation 
 that the publication was false and malicious.'' 
 
 A question has been raised whether where an answer 
 of justification on the ground of truth, is supposed to be 
 defective because it merely alleges that the charge is true 
 instead of stating the facts relied upon to show it to be 
 true, the plaintiff can demur to such answer. We presume 
 that in such a case a motion to make definite and not a 
 demurrer is the proper remedy.* 
 
 ' Eaton V, Johns, i Dowl. Pr. Cas. Bennett, 87 N. Y. 231.) The de- 
 
 N. S. 602; and see McGregor v. murrer admits only the publication 
 
 Gregory, 2 /d?. 769 ; 11 M. & W. 289. and falsity of the charge. (Kennedy 
 
 « Taylor v. Care, 3 Up. Can. Q. B. v. Press Pub. Co. 3 N. Y. State Rep. 
 
 Rep. 306. 139.) On demurrer the court passes 
 
 " Beach v. Ranney, 2 Hill, 309. upon the effect of the language. 
 
 * Matthews v. Beach, 8 N. Y. 173 ; (Donaghue v. Gaffey, 53 Conn. 43 ; 54 
 but see Parrett Nav. Co. v. Stower, 8 Id. 257 ; see § 274, ante.) 
 
 Dowl. Pr. Cas. 405. ' Dodge v. Colby, 108 N. Y. 445 ; 
 
 5 EddsT/. Waters, 4Cr. C. C. 170; Cochrane v. Melendy, 59 Wis. 207. 
 
 Butler V. Wood, 10 How. Pr. Rep. Upon demurrer to a complaint "the 
 
 222. defendant is prima facie to be con- 
 
 • Wheeler v. Hayes, i Perr. & D. sidered as a wrong doer." (Ashurst, 
 55. The head note to Smith v. Trib- J., J' Anson v. Stuart, i T. R. 748.) 
 une Co. (4 Bissell, 477) is not war- » See Van Wyck v. Guthrie, 4 
 ranted by the text. (Fleischman v. Duer, 474. The right to demur to an 
 
6o8 
 
 PLEADING. 
 
 [CH. XIV. 
 
 § 362 a. There cannot be a counter-claim in an action 
 of slander or libel.^ One libel cannot be set oif against an- 
 other,* nor can damages occasioned by a libel form a 
 counter-claim in an action for an assault.^ In New York, 
 no replication is necessary unless to a counter-claim.* In 
 England, a general reply only is required. 
 
 answer is limited (N. Y. Code of Civ. 
 Pro. § 494) to a defense consisting of 
 new matter. A defense of truth is 
 not new matter. (Maretzek v. Cauld- 
 well, 19 Abb. Pr. R. 35.) Upon a 
 demurrer to an answer plaintiff may 
 attack the complaint. (The People v. 
 Booth, 32 N. Y. 397.) 
 
 ' Fellerman v. Dolan, 7 Abb. Pr. 
 R. 395, note ; Richardson v. Northup, 
 56 Barb. 105 ; Schnaderbeek v. 
 Worth, 8 Abb. 37 ; Barhyte v. Hughes, 
 33 Barb. 320. 
 
 ' Seely v. Cole, Wright (Ohio), 
 681 ; Battell v. Wallace, 30 Fed. Rep. 
 229. In the Scotch Reports are to be 
 found numerous instances of one set 
 of words being siet off against another. 
 In England a counter claim is allowed 
 in actions for slander or libel (Flood 
 
 on Libel, 324), and " addenda et 
 corrigenda " where in slander a 
 counter claim in trespass was allowed. 
 And in Lewsay v. Fletcher, a resident 
 of Java sued in an English Court for 
 commissions, the defendant was al- 
 lowed to counter claim damages for 
 an alleged libel. (And see Quinn v. 
 Hession, 40 L. T. 70; 4 L. R. [Ir.] 35 ; 
 Rotherham v. Priest, 28 Week. Rep. 
 277; Crowe V. Barnicot, 37 Law 
 Times Rep. 68; Odgers on Libel, 
 494) 
 
 ' Macdougall v. Mag^ire, 35 Cal. 
 274. 
 
 * N. Y. Code of Civ. Pro. § 5 14 ; Stat 
 6 & 7 Vict. ch. 96 ; Chadwick v. Hera- 
 path, 4 Dowl. & L. 653 ; 16 Law Jour. 
 C. P. 104; Helsham v. Blackwood, 11 
 C. B. III. 
 
CHAPTER XV. 
 
 VARIANCE.— AMENDMENT. 
 
 Allegation of pleadings and proof should correspond — 
 Variance in New York — General rules as to variance 
 — Immaterial variance — Material variance — Amend- 
 ment. 
 
 § 363. The general rule as to variance is, that the alle- 
 gations of the pleading and the proof must correspond, 
 otherwise there is a variance, and the plaintiff fails ; ^ but 
 now, in New York, it is enacted by statute that no vari- 
 ance between the allegation in a pleading and the proof 
 shall be deemed '' material unless it has actually misled the 
 adverse party to his prejudice," and where there is a vari- 
 ance, the court may order an amendment* The following 
 decisions upon variance are in cases not within the Code 
 of New York. 
 
 § 364. Ordinarily it is sufficient if the words proved 
 correspond substantially with those alleged.* But al- 
 though any mere variation of the form of expression 
 is not material, the words alleged cannot be proved by 
 showing that the defendant published the same meaning 
 in different words,* even if equivalent and of similar im- 
 
 » In actions of slander and libel ' N.Y. Code of Civ. Pro. § 539. As 
 
 the language charged must be proved to amendment of variance in Indiana 
 
 as laid. (Birch v. Benton, 26 Mo. [5 (Proctor z/. Owens, 18 Ind. 21). 
 Jones], 153; Horton v. Reavis, 2 ^ Coghill 7/. Chandler, 33 Mo. 115; 
 
 Murph. 380.) A variance is fatal. Smith y. Hollister, 3 Shaw (Vt.), 695; 
 
 (Stanfield «/. Boyer, 6 Har. & J. 248; Taylor v. Moran, 4 Mete. (Ky.) 127; 
 
 Winter v. Donovan, 8 Gill, 370; Williams v. Miner, 18 Conn. 464; 
 
 Harris v. Lawrence, 1 Tyler, 156.) Desmond v. Brown, 29 Iowa, 53; 
 
 It is not sufficient to prove the sub- Bundy v. Hart. 46 Mo. 460. 
 stance of the charge merely. (Rex v. * Smith v. HolHster, 3 Shaw (Vt.), 
 
 Berry, 4 T. R. 217.) Proof that the 695 ; Ward v. Dick, 47 Conn. 300. 
 
 language related to others besides the Within six months before suit brought, 
 
 plaintiff is not a variance. (Robinett defendant said concerning the words 
 
 V. McDonald, 65 Cal. 611.) alleged to be actionable, but which 
 89 
 
6io 
 
 PLEADING. 
 
 [CH. XV. 
 
 port.^ A count for slanderous words spoken affirmatively 
 is not supported by proof that they were spoken by way 
 of interrogation." Proof of words spoken in the second 
 person will not support counts for words spoken in the 
 third person, and vice versa? Proof of words spoken in 
 the past tense will support a charge of words in the 
 present.* Proof of a positive assertion is not admitted 
 under an allegation of a hypothetical assertion ; an allega- 
 tion that the words were " he swore to a lie " is not sup- 
 ported by proof that the words were " he swore to a lie if 
 he swore as Jones said he did."^ 
 
 § 365. The plaintiff need not prove all the words laid, 
 but he must prove enough of them to sustain the action.* 
 
 were barred by the statute, " I never 
 denied what I have said, and I will 
 stand up to.it." Held, that this was 
 not a repetition of what he had pre- 
 viously said, and that an action could 
 not be sustained thereon. (Fox. v. 
 Wilson, 3 Jones Law [N. Car.], 485.) 
 
 > Wilborn v. Odell, 29 111. 456; 
 Taylor v. Moran, 4 Mete. (Ky.) 127; 
 Norton v. Gordon, 16 111. 38. It is 
 not sufficient to prove words equiva- 
 lent to those alleged. (Moore v. 
 Bond, 4 Blackf. 458; Slocumb v. Kuy- 
 kendall, i Scam. 187: Olmsted v. 
 Miller, i Wend. 506; Watson v. Mu- 
 sick, 2 Mo. 48 ; Armitage v. Dunster, 
 4 Doug. 291 ; McConnell v. McKenna, 
 10 Ir. C. L. R. 511; Campagnon w. 
 Martin, 2 W. Black. 790.) Words to 
 the same effect are not the same words. 
 (Fox w. Vanderbeck, 5 Cow. 513.) 
 
 » Barnes v. Holloway. 8 T. R. 150; 
 Sanford v. Gaddis, 1 5 111. 228 ; King 
 V. Whitley, 7 Jones Law (N. Car.), 
 529. If in an action of slander the 
 words be proved to be spoken afifirm- 
 atively as they are laid, the charge is 
 supported, though it appear that they 
 were spoken in answer to a question 
 put by a third person. (Jones v. 
 Chapman, 5 Blackf. 88.) 
 
 ' Cock V Weatherby, 5 Smedes & 
 Marsh, 333 ; Miller v. Miller, 8 Johns. 
 74; Stannard v. Harper, 5 M. & Ry. 
 
 29s ; M'Connell v. McCoy, 7 S. & R. 
 223 ; Culbertson v. Stanley, 6 Blackf. 
 67 ; Williams v. Harrison, 3 Mo. 41 1 ; 
 Wolf V. Rodifer, i Har. & J. 409; 
 Abarillo v. Rogers, Bull. N. P. 5; 
 Rex V. Berry, 4 T. R. 217; Phillips v. 
 Odell, 5 Up. Can. Q. B. Rep. O. S. 
 483; Sanford v. Gaddis, 15 111 228; 
 Rutherford v. Moore, i Cr. C. C. 388; 
 Birch V. Simms, Id. 550. Evidence of 
 the words, " You are a broken-dovra 
 justice," does not support an indict- 
 ment for speaking of the magistrate 
 the words, "He is a broken-dovm 
 justice." (4 T. R. 217; but see Cro. 
 Eliz. 503.) Words proved to have 
 been spoken in the second person sus- 
 tain a count for slander in which the 
 words are in the third person. (Dailey 
 V. Gaines, I Dana, 529; Huffman 1. 
 Shumate, 4 Bibb, 5 1 5.) 
 
 * Buscher v. Scully, 107 Ind. 246. 
 Allegation of English words not sus- 
 tained by proof of German words. 
 (Stichtd V. The State, 8 So. West. 
 Rep. 477.) 
 
 ' Evarts v. Smith, 19 Mich. 55; 
 § 369, post. 
 
 « Fox V. Vanderbeck, 5 Cow. 513; 
 Purple V. Horton, 13 Wend. 9; Nestle 
 V. Van Slyck, 2 Hill, 282 ; Skinner v. 
 Grant, 12 Vt. 456; Scott v. McKin- 
 nish, 15 Ala. 662; Hancock v. 
 Stephens, 11 Humph. 507; Iseley v. 
 
§ 365-] 
 
 VARIANCE. 
 
 6ii 
 
 It is sufficient if the gravamen of the charge as laid is 
 proved,^ and unless the additional words qualify the mean- 
 ing of those proved so as to render the words proved not 
 actionable, the proof is sufficient.* It is necessary for the 
 plaintiff to prove some of the words precisely as charged, 
 but not all of them, if those proved are in themselves 
 slanderous ; but he will not be permitted to prove the 
 substance of them in lieu of the precise words.* Where 
 the whole of the words laid in any one count constitute 
 the slanderous charge, the whole must be proved. But 
 where there are distinct slanderous allegations in any count, 
 proof of any of them is sufficient.* The plaintiff may 
 prove more words than are set forth in the complaint, 
 provided the additional words do not change the meaning 
 
 Lovejoy, 8 Blackf. 462; Sanford v. 
 Gaddis, 15 111. 228; Whiting ^z. Smith, 
 13 Pick. 364; Loomis v. Swick, 3 
 Wend. 205 ; Wheeler v. Robb, i 
 Blackf. 330; Chandler v. HoUoway, 4 
 Port. 17 ; Berry v. Dryden, 7 Mo. 324 ; 
 Coghill V. Chandler, 33 Mo. 115; 
 Geary v. Connop, Skin. 333 ; Penning- 
 ton V. Meeks, 46 Mo. 217. It is suffi- 
 cient if the gravamen of the charge 
 laid be proven. (Dufreene v. Weise, 
 46 Wis. 290 ; Albin v. Parks, 2 Bradw. 
 [111.] 576; HumbardT/. The State, 21 
 Texas App. 200 ; Mix v. McCoy, 4 
 West [Mo. App.], 894 ; Schoonhoven 
 V. Beach, 23 Week. Dig. 348 ; Nichols 
 V. Hayes, 13 Conn. 163.) Where it is 
 alleged that defendant charged plaint- 
 iff with sleeping with another man 
 than her husband, and the proof is 
 that he charged that such a person 
 was in bed with her, held no variance. 
 (Bamett v. Ward, 36 Ohio St. 107.) 
 
 1 Hersh v. Ringwalt, 3 Yeates, 
 508; Wilson V. Natrous, 5 Yerg. 211 ; 
 Cheadle v. Buell, 6 Ham 67 ; Purcell 
 W.Archer, Peck (Tenn.), 317; Miller 
 V. Miller. 8 Johns. 74; Cooper z/. Mar- 
 low, 3 Mo. 188 ; Barr v. Gaines, 3 
 Dana, 258 ; McClintock v. Crick, 4 
 Iowa, 453 ; Baldwin v. Soule, 6 Gray, 
 321 ; Scott V. McKinnish, 15 Ala. 
 662; Bassett v. Spofford, 11 N. 
 
 Hamp. 127; Merrill v. Peaslee, 17 N. 
 Hamp. 540. 
 
 " Sanford v. Gaddis, ij 111. 228; 
 Merrill v. Peaslee, 17 N. Hamp. 540; 
 Smart V. Blanchard, 42 N. Hamp. 
 137. Plaintiff need not prove all the 
 words set forth in the declaration, 
 provided he proves enough to sustain 
 his cause of action, and the words 
 proved do not differ in sense from 
 those alleged. (Nichols v. Hayes, 13 
 Conn. 155; Nestle v. Van Slyck, 2 
 Hill, 282 ; McKee v. Ingalls, 4 Scam. 
 30; Scott V. Renforth, Wright, 55.) 
 
 ' Easley v. Moss, 9 Ala. 266; 
 Morgan v. Livingston, 2 Rich. 573; 
 Creelman v. Marks, 7 Blackf. 281 ; 
 Patterson v. Edwards, 2 Gilman, 720. 
 Although the libel read in evidence 
 contained matter in addition to that 
 set out in the declaration, there is no 
 variance if the additional part do not 
 alter the sense of that which is set out. 
 (M'Coombs V. Tuttle, J Blackf. 431; 
 Cooper I/. Marlow, 3 Mo. 188; Ruth- 
 erford V. Evans, 6 Bing. 45' i 4 Car. 
 & P. 74.) Thus, in Tabart v. Tipper 
 (l Camp. 350), the rhymes (see anie, 
 note 4, p. 457) were set out in the 
 declaration without the line in Latin 
 which followed them ; it was held the 
 omission was immaterial. 
 
 * Flower v. Pedley, 2 Esp. 491. 
 
6l2 PLEADING. [CH. XV. 
 
 of those set forth/ and words spoken at different times 
 may be given in evidence on one count,* 
 
 § 366. An action for slanderous words imputing to the 
 plaintiff misconduct as a constable is not sustained by prov- 
 ing words imputing misconduct to him, as an agent of the 
 executive of one State, for the arrest, in another State, of 
 a fugitive from justice.* Where the words were alleged to 
 have been spoken of and concerning the plaintiff as treas- 
 urer and collector of certain tolls, and the innuendo cor- 
 responding thereto, and the proof was only of his being 
 treasurer, and he failed in making out his appointment to 
 be collector; held, that for want of such proof he was 
 properly nonsuited.* For words spoken of a physician, 
 alleging that he was not entitled to practice as such ; held, 
 first that the plaintiff was bound to prove not only that he 
 practiced as a physician, but that he practiced lawfully^ 
 In an action for these words spoken by defendant of the 
 plaintiff in his profession as a physician : " Dr. S. has upset 
 all we have done, and die he (the patient) must," it was 
 proved that the plaintiff had practiced several years as a 
 physician, and having been called in during the absence of 
 a physician who with the defendant attended the patient, 
 the defendant, as apothecary, made up the medicines pre- 
 scribed by the plaintiff for the patient in question. Queere, 
 whether, on this declaration, it was necessary for the 
 plaintiff to produce a diploma, or other direct evidence 
 
 ■ Wilborn v. Odell, 29 111. 456. "he stole $200 from me when I was 
 
 In Bourke v. Warren (2 C. & P. 307), drunk," but that there was a variance 
 
 a letter was set out as inducement between " he stole part of the money 
 
 alleged to contain "the words and he collected in the Catholic church," 
 
 matters following;" when the letter and "he stole part of the money he 
 
 was read it was found to contain all collected in the Catholic church in 
 
 that was stated in the declaration and Seneca." 
 
 something more ; held not a material ' Charlter v. Barret, Peake Cas. 
 
 variance — of course the something 32. 
 
 more did not qualify what went before. » Kinney v. Nash, 3 N. Y. 177. 
 
 (And see Morrow v. McGaver, i Ir. C. * Sellers v. Till, 4 B. & Cr. 655; 
 
 L. R. N. S. 579.) In Crotty v. Mor- Sellers v. Killew, 7 D. & Ry. 121. 
 rissey (40 111. 477), held no variance » Collins v. Carnegie, 3 Nev. & M. 
 
 between " he stole $200 from me,'' and 703; i Ad. & El. 695. 
 
§ 367-] VARIANCE. 613 
 
 that he had taken a degree in physic, in order to maintain 
 the action.^ Where the declaration alleged the plaintiff to 
 be an attorney, and that the words were spoken of him in 
 bis professional character, the words being actionable with- 
 out any reference to such character ; held, that mere proof 
 of his having been admitted, without showing that he had 
 practiced or had taken out his certificate, was not a fatal 
 variance.* 
 
 § 367. The following have been held to be immaterial 
 variances : the date of publication ; ' a difference in the 
 tense of the words, as had for has; * the transposition of 
 the names of the parties to the suit, as a witness in which 
 the plaintiff was charged with having sworn falsely ; * alleg- 
 ing that the offense was committed on Saturday instead of 
 Sunday ; * a discrepancy in the title of a paper ; ^ where it 
 was alleged that the publication was in the presence of B., 
 held not necessary to prove such allegation.® On an alle- 
 gation that the defendant charged the plaintiff with perjury 
 in a suit of A. and B. v. C. and D., the variance is not 
 fatal if it be shown that the charge was made in reference 
 to the case of a cross-bill, by one of the defendants in such 
 case, against the complainant and co-defendants.® And 
 
 ' Smith V. Taylor, i N. R. (4 Bos. dence aliunde was admissible to show 
 
 & Pul.) ig6. In an action by an that the record of an action by S. and 
 
 apothecary, what is sufficient proof of W. against H. was the action referred 
 
 his qualifications as such. (Wogan v. to in the declaration, and that there 
 
 Somerville, l Moor, 102; 7 Taunt, was no variance. (Hibler z/. Servoss, 
 
 401.) 6 Mo. 24. 
 
 * Lewis V. Walter, 3 B. & Cr. 138, * Sharpe v. Stephenson, 12 Ired. 
 note ^; 4 D. & R. 810. 348. 
 
 'Thrall v. Smiley, 9 Cal. 529; ' The State w. Jeandell, 5 Harring. 
 
 ■Gates V. Bowker, 18 Vt. (3 Washb.) 475. 
 
 23; Commonwealth v. Vamey, 10 ' Goodrich v. Warner, 21 Conn. 
 
 Cash. 402 ; Potter v. Thompson, 22 432. But where the allegation was a 
 
 Barb. 89. speaking in the hearing of " divers 
 
 * Wilborn w. Odell, 29 111. 456. citizens," and the proof was of a 
 » Teague v. Williams, 7 Ala. 844. speaking in the hearing of one person. 
 
 In an action of slander, plaintiff al- and he not a citizen, it was held a 
 
 leged that the slanderous words were fatal variance. (Chapin v. White, 102 
 
 spoken relative to testimony of plaint- Mass. 139.) 
 
 iff in a suit in which S. was plaintiff » Wiley v. Campbell, 5 T. B. 
 
 and H. defendant. Held, that evi- Monr. 560. A charge of false swear- 
 
6 14 PLEADING. [CH. XV. 
 
 where the declaration on a libel stated that certain prose- 
 cutions had been preferred against M., and that, '* in fur- 
 therance of such proceedings," certain sums of the parish 
 funds had been appropriated to discharge the expenses; 
 but the libel charged the money to have been so applied 
 after the proceedings had terminated ; held, that it being 
 immaterial to the defamatory character of the libel when 
 the money was so applied, the variance was immaterial' 
 So a slight var^nce in the names of the defendants in the 
 indictment, as set forth in the declaration and contained in 
 the record, may be cured by parol proof of the identity of 
 the persons.^ Where the words charged in one count were 
 " He is a thief," and in another, " He is a thief, and stole 
 the hay and hay-seed from D.'s barn," and the proof was 
 that the defendant said, at one time, that he was *' a thief, 
 and stole the hay-seed out of the barn," and at another 
 that he had "stolen hay and hay-seed that had belonged 
 to D.," it was held that the words charged were sufficiently 
 proved.* 
 
 § 368. The following are additional instances of im- 
 material variance : 
 
 ALLEGATION. PROOF. 
 
 He stole hogs. He stole a hog.* 
 
 The girl that hired with The girl that lived with 
 us. us.* 
 
 ing, in a proceeding between A. & B., out the inducement, the insertion of 
 
 held sustained by proof of a proceed- what is not material and not proved 
 
 ing between A. & B. and wife. (Dowd does not occasion a variance of which 
 
 V. Winters, 20 Mo. [5 Bennett], 361.) advantage can be taken. (Cox v. 
 
 * May V. Brown, 3 B. & Cr. 113; Thompson, 2 Cr. & J. 361; 2 Tyrw. 
 
 4.D. & R. 670. It is a general rule 411.) 
 
 tiiat the variance between the allega- « Hamilton v. Langley, i McMul- 
 
 tion and the proof will defeat a party, Ian, 498. 
 
 unless it be in respect of matter which, ' Williams v. Miner, 18 Conn. 464. 
 
 if pleaded, would be material. (Id:) * Barr v. Gaines, 3 Dana. 258. 
 
 Where the words are actionable with- " Robinett v. Ruby, 13 Md. 95. 
 
§ 368.] 
 
 MATERIAL VARIANCE. 
 
 615 
 
 ALLEGATION. 
 
 A. committed forgery. 
 
 We supposed that they 
 had become aware of the 
 fact. 
 
 He stole my staves and 
 nails. 
 
 She has had a bastard 
 child. 
 
 A. has had a baby. 
 
 He is a strong thief. 
 
 He has been working for 
 me some time, and has been 
 robbing me all the while. 
 
 You are perjured. 
 
 Mr. K.'s wife is a whore. 
 
 PROOF. 
 
 A. and B. committed 
 forgery.' 
 
 We supposed that they 
 had by this time become 
 aware of the fact* 
 
 He is a damned rogue, for 
 he stole my staves and nails, 
 and I can prove it.* 
 
 If I have not been misin- 
 formed, she had a bastard 
 child.* 
 
 We hear bad reports about 
 some of your girls; A. has 
 had a baby.* 
 
 He is a thief.* 
 
 He has worked for me 
 some time, and has been 
 continually robbing me.'' 
 
 Are you not afraid, as 
 you have perjured your- 
 self?' 
 
 She (Mr. K.'s wife) is a 
 whorish bitch.' 
 
 ' Nichols V. Hayes, 13 Conn. 155. 
 But words spoken of a husband or of 
 a wife will not support an allegation 
 of words spoken of both of them. 
 (Davis V. Sherron, i Cr. C. C. 287.) 
 
 * Smiley v. McDougall, 10 Up. 
 Can. Q. B. Rep. 113. 
 
 ' Pasley v. Kemp, 22 Mo. (i 
 Jones), 409. 
 
 < Treat v. Browning, 4 Conn. 408. 
 The words alleged were " Plaintiff was 
 in the family way, and R. took her to 
 Chicago to have the child worked off." 
 
 The proof that defendant said " Plaint- 
 iff was in the family way by Tom. 
 Bell," not a material variance. (Baker 
 V. Young, 44 111. 42.) 
 
 » Robbins v. Fletcher, loi Mass. 
 115. 
 
 ' Burgis's Case, Dyer, 75. 
 
 ' Dancaster v. Hewson, 2 Man. & 
 Ry. 176. 
 
 8 Commons v. Walters, i Port. 
 
 377- 
 
 • Scott V. McKinnish, 1 5 Ala. 662 
 
6i6 
 
 PLEADING. 
 
 [CII. XV 
 
 ALLEGATION. 
 
 You Stole one of my 
 sheep. 
 
 Riot. 
 
 Poppenheim is a very bad 
 man; he is a calf-thief, and 
 the records of the court will 
 prove it. 
 
 Your (plaintiff's) house 
 is a bawdy-house, and no 
 respectable person will live 
 in it. 
 
 Ware Hawk, you must 
 take care of yourself there, 
 mind what you are about. 
 
 PROOF. 
 
 You stole my sheep and 
 killed it> 
 
 Riot and assault.* 
 
 Poppenheim is a very bad 
 man ; he is a calf-thief ; he 
 has been indicted for calf- 
 stealing, and the records of 
 the court will prove it* 
 
 You (plaintiff's wife) are 
 a nuisance to live beside of 
 You are a bawd, and your 
 house no better than a 
 bawdy-house.* 
 
 Ware Hawk, you must 
 take care of yourself there." 
 
 § 369. It was held a material variance where the declara- 
 tion alleged that the defendant charged the plaintiff with 
 a crime, and the proof disclosed merely that defendant 
 said he supposed the plaintiff to be guilty of such crime.* 
 Where the declaration charged the defendant with speak- 
 ing slanderous words, and the proof was that he procured 
 another to speak them;'' where the declaration charged 
 the defendant with speaking defamatory words, and the 
 proof was that defendant signed a written complaint 
 
 • Robinson v. Willis, 2 Stark. 
 Rep. 194; the word it showing that 
 only one sheep was meant. 
 
 » Hamilton v. Langley, i McMul- 
 lan, 498. 
 
 ' Poppenheim v. Wilkes, i Strobh. 
 275. 
 
 * Huckle V. Reynolds, 7 C. B. N. 
 S. 114. 
 
 ' Orpwood V. Barkes, 4 Bing. 261 ; 
 S. C. Orpwood V. Parkes, 12 Moore, 
 492. 
 
 • Dickey v. Andros, 32 Vt. (3 
 Shaw), 55. Where, in case for a mali- 
 cious prosecution, the delaration 
 alleged that an express charge of fel- 
 ony was made against plaintiff, but it 
 appeared that defendant had only de- 
 posed to a suspicion that he had com- 
 mitted it, held no variance, it being 
 the only meaning which could be im- 
 puted to the accusation. (Davis v. 
 Noake, 6 Maule &5. 29.) 
 
 ' Watts V. Greenlee, i Dev. 210. 
 
§ 3^90 MATERIAL VARIANCE. 617 
 
 charging the plaintiff with larceny ; ^ where the declaration 
 charged the defendant with saying that plaintiff, a single 
 woman, had had a child, and the proof was that defendant 
 said, in his opinion plaintiff was pregnant with child.* An 
 allegation of slander as to the cleanliness of the person of 
 plaintiff (a cook), as of the defendant's actual knowledge, 
 held, not supported by proof of words as to the defendant's 
 belief or understanding only.^ An allegation that words 
 were spoken concerning three plaintiffs (partners) in their 
 joint trade, is not supported by proof that the words were 
 addressed to one of the plaintiffs personally.* Where the 
 words set forth, in their ordinary sense, import a charge of 
 crime, if they are proved to have been so spoken in con- 
 nection with other words as to rebut the idea of criminalty, 
 there is a fatal variance ; ® and where an innuendo gives a 
 specific meaning to the language published, that meaning 
 must be proved, or there will be a variance.* Where the 
 declaration in an action of slander alleges that the words 
 spoken were in reference to an oath taken by plaintiff be- 
 fore the register and receiver of a land office, touching the 
 entry of land, proof of an oath taken before a notary pub- 
 lic concerning the same subject-matter, does not support 
 the allegation ; ' and where the declaration for maliciously 
 
 ' Hill V. Miles, 9 N. Hamp. 9. ' Edgerly v. Swain, 32 N. Hanip. 
 
 ^ Payson v. Macomber, 3 Allen 478. 
 (Mass.), 69. A count in slander, « Williams v. Stott, 3 Tyrw. 668 ; 
 
 alleging that defendant charged upon ante, § 338. In a declaration for 
 
 plaintiff an act of fornication, wit- slander the words charged to have 
 
 nessed by a particular person, is not been published were, " You have mur- 
 
 sustained by proof of words charging dered your little girl ; " innuendo the 
 
 an act of fornication witnessed by infant daughter of plaintiff. On the 
 
 another person, or by proof of words trial it appeared that the child was 
 
 implying a charge of habitual fornica- illegitimate, but that the plaintiff was 
 
 tion and lewdness with the person in fact the father. It was objected 
 
 named in the declaration. {Id.) that the innuendo implied a child bom 
 
 ' Cook V. Stokes, i M. & Rob. in wedlock, and that there was a 
 
 237. variance. The objection was sus- 
 
 * Solomons v. Medex, l Stark. tained, and plaintiff was nonsuited. 
 
 Rep. 191 ; and see Davis v. Sherron, (Foote v. Rowley, 2 Law Rep. 138, in 
 
 I Cr. C. C. 287. Appendix, fast.) 
 
 ' Phillips V. Beene, 16 Ala. 720. 
 
6l8 PLEADING. [CH, XV. 
 
 charging the plaintiff with felony stated that the defendant 
 went before R. C. Baron Waterpark, of WaterforL, in 
 the county of, &c., and the proof was that his title was 
 Baron Waterpark, of Waterpark, &c.; held a fatal vari- 
 ance.* Where the libel given in evidence contained two 
 references (showing it to be the language of a third person 
 respecting the plaintiff), and which were omitted in the 
 libel set forth in the declaration ; held, that the meaning of 
 the paragraphs being different, the variance was fatal.^ An 
 action upon a libel charging in one count that the defend- 
 ant published it as purporting to be a letter from A. to B,, 
 and in another charging generally that the defendant pub- 
 lished the libelous matter ; held not to be sustained by 
 proof of a publication wherein the defendant stated that in 
 a debate in the Irish House of Commons several years be- 
 fore, the attorney general of Ireland had read such a letter, 
 and then stating the libelous matter as said by him in com- 
 menting upon that letter ; for it was said the characters of 
 the several libels were essentially different, though the 
 slander imputed might be the same.* Where the libel 
 given in evidence was contained in a book published by 
 the defendant respecting William Cobbett, entitled " The 
 Book of Wonders," and was as follows: "Many well 
 intentioned persons have expressed their surprise that the 
 enlightener should have been willing to accept of a seat in 
 corruption's den purchased with the bank notes of a man 
 whose incapability and baseness he had so powerfully ex- 
 posed. To convince such persons that such line of con- 
 duct was strictly patriotic, we have only to assure them 
 that in so doing, he was walking in the footsteps of that 
 venerable veteran whose creed is the criterion of excellence 
 (see No. 195), and who, in an article of that creed, has 
 laid it down as a maxim that we must, in fighting the 
 
 » Walters v. Mace, 2 B. & Aid. 2 Tabart v. Tipper, I Camp. 353. 
 
 756; I Chit. 507. » Bell V. Byrne, 13 East, 554. 
 
§ 370.] MATERIAL VARIANCE. 619 
 
 enemy, not reject the use of even despicable and detestable 
 men. Cobbett, v. 32, p. 82." The libel, as set forth in the 
 declaration, omitted the words and figures, "see No. 195," 
 and " Cobbett, v. 32, p. 82." It was held a fatal variance ; 
 for, upon reading the declaration, the libel would be under- 
 stood to mean that the defendant had himself made the 
 assertions respecting the plaintiff, but from the libel itself 
 it appears that the paragraph was written with intent to 
 expose the conduct, not of the plaintiff, but of another 
 person.^ 
 
 § 370. An indictment for a libel charged that the de- 
 fendant set up^ in public, a board on which a painting or 
 picture of a human head, with a nail driven through the ear, 
 and a pair of shears hung on a nail, and the proof was that 
 a human head, showing a side face, with an ear, a nail 
 driven through the ear, and a pair of shears hung on the 
 nail, was inscribed or cut in the board by means of some 
 instrument, but was not painted. Held, that there was a 
 fatal variance between the allegation and the proof, and 
 that the defendant must be acquitted.^ In an action of 
 slander, one of the counts charged the defendant with hav- 
 ing made a voluntary affidavit, and caused certain false 
 statements to be written therein, to wit : " that there was 
 a certain quantity of American soap, which, to his certain 
 knowledge was sold at Curacoa (by the plaintiff), at six 
 dollars, current monev." The affidavit, as offered in evi- 
 
 ' Cartwright v. Wright, 5 B. & pin I have prohibited Mr. Rainy 
 
 Aid. 615. Where the words alleged (plaintiff ) from practicing in my court, 
 
 were, "My sarcastic friend by leaving and the proof was that to these words 
 
 out,"&c., and the proof was," "My were added, "until he apologizes for 
 
 sarcastic friend Moras, by leaving his conduct towards me on the 
 
 out," &c., held a material variance bench, " held a material variance. And 
 
 (Tabart v. Tipper, l Camp. 350) ; it made no difference that the words 
 
 leaving out the words "of" and as quaUfied were still actionable. 
 
 " which,'' although they did not ma- (Rainy v. Bravo, 20 Weekly Rep, 
 
 terially alter the sense, held a variance. [London], 873.) 
 (Cooke V. Smith, McClel. 250.) The 2 The State v. Powers, 12 Ired. 5. 
 
 words complained of were, Tell Gil- 
 
620 
 
 PLEADING. 
 
 f CH, XV. 
 
 dence by the plaintiflF, stated the same words, except that 
 the words " per box " were added after the words " six 
 dollars." Held, that the variance was fatal.^ The aver- 
 ment was that A., before a magistrate, maliciously charged 
 B. with felony ; the information contained a mere charge 
 of tortious conversion, upon which a warrant for felony 
 was improperly founded. The variance was held fatal.' 
 If a declaration count upon a charge of perjury upon a 
 particular occasion, proof of a general charge of perjury is 
 inadmissible to sustain it.^ 
 
 § 371. The following are additional instances of ma- 
 terial variance : 
 
 ALLEGATION. 
 
 Whore. 
 
 That the plaintiff, who 
 was postmaster at F., em- 
 bezzled certain papers. 
 
 L. is pregnant and gone 
 with child seven months. 
 
 PROOF. 
 
 Strumpet.* 
 
 Defendant had no doubt 
 the papers were embezzled 
 at F., or he thought the pa- 
 pers were embezzled at F.® 
 
 Have you heard anything 
 about L.'s being pregnant 
 by Dr. P.« 
 
 » Wilson V. Mitchell, 3 Har. & J. 
 
 9'- 
 
 2 Tempest v. Chambers, I Stark. 
 Rep. 67. In slander the allegation 
 was. He burnt Knox's barn. The 
 proof was that defendant added. Be- 
 cause one of the girls would not marry 
 him. It was doubted if a variance. 
 Where the inducement was of a con- 
 versation of Mr. Knox's barn which 
 had been burnt, and that defendant 
 said of plaintiff and of said bam, He 
 burnt Knox's barn ; proof that defend- 
 ant spoke the words, He burnt Knox's 
 barn, without proof of the colloquium 
 respecting the burning of Mr. Knox's 
 
 bam, was held insufficient. (Manly 
 V. Corry, 3 Up. Can. Q. B. R. 380.) 
 
 = Emery v. Miller, i Denio, 208. 
 
 - Williams v. Bryant, 4 Ala. 44; 
 contra, see Cook v. Wingfield, i Stra. 
 5SS ; ante, note i, p. igo. A charge 
 of being " a whore and common pros- 
 titute," is not supported by proof of 
 words amounting to a general charge 
 of unchastity. (Doherty v. Brown, 10 
 Gray [Mass.], 250; see ante, p. 592, 
 note 5 ; and Frisby v. The State, 9 So. 
 West. Rep. 463 [Texas].) 
 
 ^ Taylor v. Kneeland, i Doug. 
 [Mich.] 67. 
 
 ° Long V. Fleming, 2 Miles, 104. 
 
§ 371.] 
 
 MATERIAL VARIANCE. 
 
 621 
 
 ALLEGATION. 
 
 Dr. F. is not a physician 
 but a twopenny bleeder. 
 
 He burnt my bam, innu- 
 endo feloniously burnt. 
 
 He stole wheat last winter. 
 
 Thief. 
 
 That persons who would 
 otherwise have retained and 
 employed the plaintiff, whol- 
 ly declined and refused so 
 to do. 
 
 You swore false. 
 
 She is a great thief. 
 
 That plaintiff then had 
 three or four vessels in the 
 river. 
 
 PROOF. 
 
 If Dr. F. is a twopenny 
 physician, I am none. I 
 am a regular graduate, and 
 no quack.^ 
 
 There is a man that burnt 
 my barn; if he was not 
 guilty of it, he would not 
 carry pistols.' 
 
 He, defendant, said he, 
 plaintiff, stole away the 
 wheat in the night, and I 
 was well aware of it, and 
 would have put him in jail 
 for doing it.' 
 
 Plaintiff had been robbing 
 him.* 
 
 That other persons would 
 have recommended the 
 plaintiff, and that the per- 
 sons named in the declara- 
 tion would have employed 
 plaintiff on such recom- 
 mendation.* 
 
 You have sworn false.* 
 
 She is a bad one.' 
 
 That plaintiff had given 
 out that there were three or 
 four vessels in the river.* 
 
 » Foster v. Small, 3 Whart. 138. 
 
 * Van Keuren v. Griffis, 2 Up. 
 Can. Q. B. Rep. 380. 
 
 » McNaught V. Allen, 8 Up. Can. 
 Q. B. Rep. 304. 
 
 * Stern v. Lowenthal, 19 Pac. Rep. 
 579 (Cal.). 
 
 ' Sterry v. Foreman, 2 Car. & P. 
 592. 
 
 • Sanford v. Gaddis, 1 5 111. 228. 
 
 ' Hancock v. Winter, 2 C. Mar- 
 shall, 502. 
 
 s Wood V. Adam, 6 Bing. 418; 4 
 C. & P. 268. 
 
622 
 
 PLEADING. 
 
 [CH. XV. 
 
 ALLEGATION. 
 
 PROOF. 
 
 This is my umbrella. He It is my umbrella. He 
 stole it from my backdoor, stole it from my backdoor.^ 
 
 Stolen. 
 
 You robbed the mail. 
 
 Plaintiff had sworn a lie, 
 and it is in him, for he had 
 sworn what he, defendant, 
 could prove to be a point- 
 blank lie. 
 
 You would steal, and you 
 will steal. 
 
 I, defendant, was sum- 
 moned as a grand juror at 
 last court, but I got the 
 court to excuse me from 
 serving, for if I had served 
 I would have been bound 
 to have indicted W. for 
 theft. 
 
 Taken out of my yard.* 
 
 I am not like you, run- 
 ning about the country with 
 forged deeds and robbing 
 the mail, as you did.' 
 
 Plaintiff had sworn off a 
 just account, and that he, 
 defendant, could or would 
 prove it.* 
 
 A man that would do that 
 would steal.* 
 
 If I, defendant, had served 
 on the grand jury, I would 
 have been bound to have 
 indicted Mr. Street, the 
 plaintiff.* 
 
 Mismanagement or ignor- Ignorance or inattention.' 
 
 ance. 
 
 There was a collusion be- 
 tween A., B., and C. 
 
 There was a collusion be- 
 tween A. and B.* 
 
 1 Walters v. Mace, 2 B. & Aid. 
 756: I Chit. 507. The allegation con- 
 cerned a thing present, and the proof 
 a thing not present. 
 
 " Shepherd v. Bliss, 2 Stark. Rep. 
 510. 
 
 ' McBean v. Williams, 5 Up. Can. 
 Q. B. Rep. O. S. 689. 
 
 •* Berry v. Dryden, 7 Mo. 324. 
 
 ' Stees V. Kemble, 27 Penn. St. 
 Rep. 112. 
 
 • Street v. Bushnell, 24 Mo. (3 
 Jones), 328. 
 
 ' Brooks V. Blanshard, i Cr. & M. 
 779; 3Tyrw. 844. 
 
 « Johnson w. Tait, 6 Binn. I2I. 
 
§ 372-J AMENDMENT. 623 
 
 ALLEGATION. PROOF. 
 
 You Stole a dollar from You stole a dollar from 
 A. B} 
 
 Venereal disease. Disgraceful disease.'' 
 
 § 372. In New York, under Code of Civil Procedure, 
 great latitude of amendment is allowed ; besides the right 
 to amend once of course, the court may order an amend- 
 ment before or upon the trial, or at any time thereafter.* 
 Prior to the Code of Procedure, a plaintiff was allowed to 
 amend his inducement after issue, where otherwise the 
 right of action would have been barred by the statute of 
 limitations.^ Plaintiff allowed to insert additional words, 
 but not a new cause of action.* Plaintiff allowed to insert 
 a newly discovered cause of action.* Defendant permitted 
 to add an additional justification.'' Amendments, too, 
 seem to be allowed with great liberality in the courts in 
 England ; thus another count was allowed to be added 
 after a rule for a new trial.* On the trial the words 
 
 » Self w. Gardner, 15 Mo. 480. * Tobias v. Harland, i Wend. 93. 
 
 * Wagaman v. Byers, 17 Md. 183. Leave to add a new count granted 
 
 These following are adjudged material (Conroe v. Conroe, 47 Penn. St. Rep. 
 
 variances: If the declaration be for 198), but denied after right of action 
 
 these words, " Thou procuredst eight had been barred by statute of limita- 
 
 or ten of thy neighbors to perjure tions. (Smith v. Smith, 45 Penn. St. 
 
 themselves,'' and the jury find that he Rep, 403.) An amendment is as of 
 said, Thou hast caused eight or ten, . the commencement of the action. 
 
 &c, for it might be a remote cause, (Horton z/. Banner, 6 Ky. [Bush], 596.) 
 scilicit, without procurement. Nar. ' Weston v. Worden, 19 Wend, 
 
 (the declaration), He is a bankrupt. 647. Plaintiff permitted on the trial to 
 
 Verdict, He will be a bankrupt within add a new cause of action. (Miles v. 
 
 two days, Nar. He is a thief Ver- Van Horn, 17 Ind. 245.) Plaintiff not 
 
 diet. He stole a horse. Nar. Thou art permitted to amend on trial by chang- 
 
 a murderer. Verdict, He is, &c. ing the action from libel to malicious 
 
 Nar. / /^ywa/ him to be a thief. Ver- prosecution. (Larkin v. Noonan, 19 
 
 diet, / think him to be a thief. And Wis. 82.) 
 
 at p. 330 : Nar. Strong thief Verdict, » Williams v. Cooper, i Hill, 637. 
 
 Thief. Nar. I say, &c. Verdict, I Leave to add a justification refused. 
 
 aflSrm or I doubt not. Nar. Plaintiff (Waters v. Guthrie, 2 Bailey, 106.) 
 will do such a thing. Verdict, I think ' Graham v. WoodhuU, I Caines 
 
 in my conscience he will do such a R. 497. Defendant on trial allowed 
 
 thing. (I Trials per Pais, 329.) to strike out general issue and plead a 
 
 » Code of Civ. Procedure, §§ 539, justification. (Anon, i Hill [So. Car.], 
 
 540, 723. Leave to amend on the 251.) 
 
 trial is discretionary. (Rosenwald v. » Wyatt v. Cocks, 10 Moore, 504 
 
 Hammerstein, 12 Daly, 377- and see Clarke v. Allbut, i Gale, 358. 
 
624 PLEADING. [CH. XV. 
 
 charged were allowed to be amended, the substance of the 
 allegation remaining the same.^ Plaintiff allowed to 
 amend by alleging that the words were spoken of him in 
 his character of auctioneer.'^ Leave to plead a justifica- 
 tion, after verdict, denied.^ Where the declaration alleged 
 the publication of a libel contained in and being an article 
 in a certain weekly printed paper called The Paul Pry, it 
 was proved on the trial that the defendant gave to several 
 persons to read a printed slip of paper containing the 
 alleged libel, but it did not satisfactorily appear that such 
 slip had been cut from The Paul Pry, the plaintiflF was 
 allowed to amend the record, without terms, by striking 
 out the words in italics^ and this course was approved by 
 the court in banc* Where the words charged were, " S. is 
 to be tried at the Old Bailey for,'' &c., and the proof was,. 
 " I have heard that S. is to be tried at the Old Bailey for,"^ 
 &c., the plaintiff had leave to amend on payment of costs.* 
 Where the words alleged were, " there have been many 
 inquests held upon persons who have died because he 
 attended them," and the proof was " Several have died that 
 he (plaintiff) has attended, and inquests have been held on 
 them," an amendment was allowed and approved in banc* 
 The court refused an amendment where it was of opinion 
 that the words as proved did not impute an actionable 
 charge,' and the court refused, on the trial, at the instance 
 
 The statutes as to amendments to be parts of two articles, which articles 
 
 liberally construed. (Smith v. Know- were fair comments, on demurrer the 
 
 elden, 2 M. & Gr. 561.) court held the plea defective, but per- 
 
 » Pater v. Barker, 3 C. B. 831 ; mitted the defendant to amend by 
 
 Foster «/. Pointer, 9 Car. & P. 718; substituting words for articles, so as 
 
 Saunders v. Bate, i Hurl. & N. 402 ; to read which words were fair com- 
 
 and see Lister z/. McNeal, 12 Ind. 302. ments. (Morrow v. McGaver, I Ir. 
 
 * Ramsdale v. Greenacre, i Fost. C. L. R. 579.) 
 & F- 61. * Foster v. Pointer, 9 C. & P. 718, 
 
 ' Kirby v. Simpson, 3 Dowl. Pr. 722. 
 Cas. 791. Leave to add a plea of the Smith v. Knowelden, 2 M. & Gr. 
 
 statute of limitations refused. (Aliens- 561. 
 
 worth V. Coleman, 5 Dana, 315.) But « Southee v. Denny, i Ex. 196. 
 
 granted. (Brickett v. Davis, 21 Pick. ' Camfield v. Bird, 3 C. & K. 56. 
 
 404.) V^^here the defense was that An amendment will not be allowed, if 
 
 the words complained against were the effect of it be to afford reasonable- 
 
372.] 
 
 THE COMPLAINT. 
 
 625 
 
 of the plaintiff, to strike out superfluous averments and 
 innuendoes, which appeared to have been introduced to 
 create a prejudice against the defendant,^ and the applica- 
 tion was not made until after the libel was read to the jury. 
 
 ground for demurrer. (Martyn v. 
 Williams, i Hurl. & N. 817 ; Caulfield 
 V. Whitworth, 18 Law Times, N. S. 
 
 527.) 
 
 • Pnidhomme v. Fraser, I M. & 
 Rob. 435; see ante, §§ 280, 338. 
 Amendment allowed (Pater v. Barker, 
 3 C. B. 831 ; and see Huckle v. Rey- 
 nolds, 7 C. B. N. S. 114; Saunders v. 
 Bate, I Hurl. & N. 402 ; Ramsdale v. 
 Greenacre, i Fost. & F. 61.) Where 
 the words alleged were " he was not 
 sober,'' and the words proved were, 
 he was " as drunk as a sow," and the 
 latter words were relied on as evidence 
 
 of malice, and as taking away the 
 privilege of the occasion on which the 
 words were spoken, the amendment 
 was denied. (Sutton v. Plumridge, 
 16 Law Times, N. S. 741.) And 
 where the words as laid in the declar- 
 ation imputed a direct charge of felony, 
 and the proof was that the words 
 were to the effect that a report was in 
 circulation that plaintiff had committed 
 a felony, it was held to be a material 
 variance, and leave to amend was 
 refused. (Pearse v. Rogers, 2 Fost. 
 & F. 137.) 
 
 40 
 
CHAPTER XVI. 
 
 EVIDENCE FOR PLAINTIFF. 
 
 Proof of publication; of oral publication; of publication in 
 writing; of its application to plaintiff; of defendant's 
 liability — Opinion of witnesses as to meaning — Proof 
 of inducement; of plaintiff'' s good reputation; of 
 malice; to aggravate damages — Falsehood not evidence 
 of malice — Other publications by defendant; subse- 
 quent publications; publication after commencement of 
 action — Defendant s wealth — Defendant s ill-will to 
 plaintiff — Ill-will to plaintiff of persons other than 
 the defendant — The publication itself evidence of 
 malice — Attempted justification an aggravation — Evi- 
 dence in reply. 
 
 § 373- If the publication is denied, a publication must 
 be proved/ and the publication proved must be one for 
 which the defendant is responsible.'* On this subject much 
 
 1 As to proof of the time of publi- enacted that in all actions for libel and 
 cation see ante, % 327. slander wherein defendant may plead 
 
 2 Where the general issue, as well the general issue and a justification 
 as special pleas admitting the publica- that the words written or spoken are 
 tion are pleaded, plaintiff is bound to true, the plea in justification shall not 
 prove the publication in the same be taken as evidence that defendant 
 manner as if there were no special wrote or spoke such words or made 
 plea. (Ricket v. Stanley, 6 Blackf. such charge, nor shall, in case defend- 
 1 69 ; Wheeler v. Robb, i Blackf. 330 ; ant fail to establish it, be of itself proof 
 Wright V. Linsay, 20 Ala. 428 ; Whit- of malice, but the jury shall decide 
 aker v. Freeman, i Dev. 271 ; Dossw. upon the whole case, whether the plea 
 Jones, 5 How. [Miss.] 1 58 ; Cheadle was made with malicious intent. This 
 V. Buel, 6 Ham. 67 ; Vassear v. Liv- statute, in Hix v. Drury (J Pick. 303), 
 ingston, 13 N. Y. 256; Ayres v. was called "a great departure from 
 Covill, 18 Barb. 264; Brooks v. the common law of England and of 
 Dutcher, 36 No. West. Rep. 128; this (Massachusetts) Commonwealth." 
 contra, Jackson v. Stetson, 1 5 Mass. The fact is that the case of Jackson v. 
 48; Alderman v. French, i Pick, i.) Stetson is opposed to all principle and 
 These last two decisions led to the precedent. (See a note to that case 
 passage of a statute in Massachusetts in the edition of Massachusetts Re- 
 (act of 1826, ch. 107), by which it is ports, with notes by Benjamin Rand, 
 
§ 374-] 
 
 PROOF OF PUBLICATION. 
 
 627 
 
 has already been said in a previous chapter (Ch. VI). 
 Whether there has been any publication by the defendant 
 is a question of fact for the jury, but what amounts to a 
 publication for which the defendant is responsible as pub- 
 lisher is a question of law for the court.^ If the fdcts were, 
 that the defendant had posted up a libel in a public place, 
 but had taken it down again before any one had read it, 
 there would in point of law be no publication, but if it 
 were doubtful whether before it was taken down some one 
 had not read it, that would be a question of fact for the 
 jury.' 
 
 § 374. The post-mark on a letter has been held prima 
 facie evidence of the publication of the letter.* The pro- 
 duction by the plaintiff on the trial of a letter addressed 
 to a third person, held evidence of the publication of the 
 
 Boston, A. D. 1858; see note § 400, 
 post.) If a newspaper publisher, on 
 request, refuses to give up the name 
 of the author of an alleged libel pub- 
 lished in his paper, he takes the place 
 of such author, and is not entitled to 
 any privilege or excuse founded on 
 sympathy for the publisher. (Hibbins 
 V. Lee, 1 1 Law Times, N. S. 541 ; 4 
 Fost. & F. 243.) 
 
 * A committee appointed by a 
 society to investigate certain bills, 
 presented by plaintiff, without special 
 authority made a special report in 
 print. Copies were freely taken from 
 the secretary's desks, and the report 
 subsequently adopted by the society. 
 Held, that there was no evidence of 
 publication by the society. (De Lin- 
 ancour z/. Socifitfi PrSvoyance, 16 No. 
 East. Rep. 555 [Mass.].) As to proof 
 of liability as publisher under 6 & 7 
 Vict. c. 96, see Reg. v. Holbrook, 
 39 Law Times Rep. 556. 
 
 » Stark. Ev. tit. Law and Fact ; 
 see Prescott v. Tousey, 50 N. Y. Su- 
 perior Co't, 12; and ante, % 108. 
 Where an alleged libel is placed where 
 it might be seen and read, it is un- 
 necessary to prove it was seen and 
 read. (Giles v. The State, 6 Ga. 276.) 
 
 In those States in which a party may 
 be witness in his own behalf, the 
 plaintiff may prove the speaking by the 
 defendant of the words complained 
 against, although other persons than 
 plaintiff and defendant were present 
 at the time. (Hess v. Fockler, 25 
 Iowa, 9.) Defendant's admission 
 that she supposed she had repeated the 
 story, equivalent to an admission of 
 publication. (Burt v. McBain, 29 
 Mich. 260; see Kine v. Sewell, 3 M. 
 & W. 297) Plaintiff cannot prove 
 the publication by showing that de- 
 fendant as a witness in another case 
 had admitted speaking the words com- 
 plained of. (Osborne v. Forshee, Sup. 
 to 2 Mich. N. P. Rep. 43 ; see The 
 State V. Riggs, 39 Conn. 498 ; see post, 
 note to § 381.) Where the only wit- 
 ness to prove an oral publication was 
 a German, the court refused to disturb 
 a verdict for the plaintiff on the ground 
 that it was not shown but that the 
 words were spoken in English, which 
 language the witness did not under- 
 stand. (Hurtert v. Weines, 27 Iowa, 
 
 134-) 
 
 3 Shipley v. Todhunter, 7 C. & P. 
 
 680 ; Hitchon v. Best, i B. & B. 299 ; 
 
 Rex V. Watson, l Camp. 215 ; Rex v. 
 
628 EVIDENCE FOR PLAINTIFF. [CH. XVI. 
 
 letter, without the oath of the person to whom the letter 
 is addressed.^ Where the letter produced was addressed 
 to a person in Scotland, with the seal broken and a post- 
 mark of a place in England, where it was proved to have 
 been received and forwarded, held prima facie evidence 
 that the letter was received by the party to whom it was 
 addressed, and of its publication.^ Where the defamatory 
 matter was contained in a letter addressed by the defend- 
 ant to the plaintiff, and there was no evidence of its pub- 
 lication, other than the production of the letter by the 
 plaintiff, it was held not sufficient ; * but where, in addition, 
 it was shown that the letter was in the handwriting of the 
 defendant, and that he had read it aloud in the presence of 
 several persons, it was held that the letter might be read 
 to the jury.* The defendant had been chairman of a public 
 meeting, at which the libel in 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 affi- 
 davits, and referred to in them, were held sufficient evi- 
 dence of publication.^ 
 
 § 375- Where a witness who heard the words spoken 
 immediately committed them to writing, he may, on 
 
 Johnson, 7 East, 65 ; Fletcher v. ' Mcintosh v. Matherly, 9 B. 
 
 Braddyll, 3 Stark. Cas. 64; Rex v. Monr. 119. 
 
 Williams, 2 Camp. 506; Rex v. Gird-' * McCoombs v. Tuttle, 5 Blackf. 
 
 wood, East P. C. 1116. 431; see note 2, p. 87, ante. Evi- 
 
 » Callan v. Gaylord, 3 Watts, 321. dence of the reading the libel in a 
 
 A post-mark does not prove itself ; public place, and of comments upon it 
 
 how proved see Abbey v. Lill, 5 Bing. in defendant's hearing, and that it v/as 
 
 299; Woodcock V. Houldsworth, 16 put up on handbills by persons un- 
 
 M. & W. 124. known, was permitted to be proved. 
 
 « Warren v. Warren, i Cr. M. & (Rice ■v. Withers, 9 Wend. 138.) 
 
 R. 250; 4Tyrw. 850; Stocken v. Col- = Lewis v. Few, 5 Johns, i. 
 lin, 7 M. & W. 515 ; see Mills %>. The 
 State, 18 Neb. 575- 
 
§ 3 75 A.] PROOF OF PUBLICATION. 629 
 
 swearing that he wrote down the exact words, read what 
 he wrote in evidence. If the words were not written down 
 until some time after the witness heard them, although he 
 may not read his memorandum in evidence, he may, to 
 refresh his memory, refer to his original memorandum,^ 
 but not to a copy of it.*^ In actions of slander, witnesses 
 cannot be allowed to state the impression the words used 
 made upon their minds, but they must state positively, or 
 as near as memory will allow, the exact words.^ 
 
 § 375 «. We have already more than once called atten- 
 tion to the fact that the plaintiff must show the language 
 published and of which he complains was "concerning 
 him."' (§ 131.) He has to show or allege this in his 
 pleading (§ 316), and in all cases it is a question of fact 
 for the jury (§ 286) upon the trial. Where the plaintiff is 
 mentioned by name, that fact alone furnishes a presump- 
 tion that he is the person intended.* But where the name 
 of the plaintiff is not stated, or where a portion only of 
 his name is stated, then if the application of the matter to 
 the plaintiff is denied, the burden is upon him to show its 
 application. To do this he must prove facts which show 
 such application ; he cannot prove the application directly, 
 by asking a witness who has read the publication whom he 
 understood to be intended.* Thus, where the publicatioa 
 was on its face concerning one Leo, upon the trial wit- 
 nesses, against the objection of the defendant, were allowed 
 to testify that upon reading the article they recognized its 
 
 ^ Sandwell v. Sandwell, Holt R. words of defendant showing such 
 
 295 ; Huff V. Bennett, 6 N. Y. 337. reference ; but if this is desired, they 
 
 ' Burton v. Plummer, 2 Adol. & should be elicited on cross-examina- 
 
 El. 343. tion. (Douge v. Pearce, 13 Ala. 127.) 
 
 ' Teague v. Williams, 7 Ala. 844 ; Where, in slander, there is a question 
 
 Alley V. Neely, 5 Blackf. 200; Rainy as to the exact words used, and the 
 
 V. Bravo, L. R. 4 P. C. 287 ; contra, case is left to the court, its decision will 
 
 Hawks V. Patton, 18 Ga. 52. Where, not be reviewed. (Hahn v. Hull, 3 
 
 in an action for slander, it is impor- Cent. Rep. 726 [Ct. of App. Md.].) 
 tant to show that the charge proved * Note to § 131, ante; The People 
 
 by a witness for the plaintiff had v. Snyder, 41 N. Y. 403. 
 reference to a trial.-if is not indispens- ' Note to § 131, ante. 
 
 able for the witness to give the exact 
 
630 EVIDENCE FOR PLAINTIFF. [CH. XVr. 
 
 application to the prosecutor ; this was held error.^ It is 
 not permissible to show defendant slandered others, as 
 proof he slandered plaintiff.^ 
 
 § 376. In an action of libel against the proprietor of a 
 newspaper, a copy of the paper bought at the office of such 
 proprietor, the paper alleging on its face that the defendant 
 is the proprietor, sufficiently connects the defendant with 
 the paper, and a paragraph in it may be read to the jury to 
 show the circulation of the paper.* On a declaration in 
 slander, consisting of a single count, in which the slander- 
 ous words were alleged to have been uttered by the de- 
 fendant "on the ist day of November, 1856, and on divers 
 other days and times before the purchase of the plaintiff's 
 writ," it was held, that the plaintiff might, in support of 
 his action, prove a single uttering of the slander by the 
 defendant on any day prior to the date of the writ.* A 
 declaration alleged that the defendants published, or caused 
 to be published, in a certain pamphlet, a libel concerning 
 the plaintiif. From the evidence, it appeared that the de- 
 fendants were instrumental in procuring the vote of a 
 medical society expelling the plaintiff therefrom for gross 
 immorality. The vote was published among the transac- 
 tions of the society, by the regular committee of publica- 
 tion, of which the defendants were not members. Held, 
 that the allegation in the declaration was not supported.^ 
 That one had heard of a slanderous report with regard to 
 the plaintiff, is evidence to prove the circulation of the 
 
 » The People v. Parr, 25 Week, to proving time of publication, see 
 
 Dig. 113- Ricliardson v. Roberts, 23 Ga. 215; 
 
 » Sullivan v. O'Leary, 146 Mass. Wright v. Britton, i Morris, 286; 
 
 322. Quigley V. McGee, 12 Oregon, 22; 
 
 » Fry V. Bennett, 4 Duer, 247 ; see and § 109, ante. In criminal pro- 
 
 The State v. Jeandell, 5 Harring. 475, secutions the time is material, 
 
 and Reg. v. Stranger, Law Rep. 6 Q. (Stichtd v. The State, 8 So. West. 
 
 B. 352. Rep. 477.) 
 
 * Rice V. Cottrel, 5 R. I. 340; » Barrows v. Carpenter, 11 Cush- 
 
 Norris v. Elliott, 39 Cal. 72 ; and as 456. 
 
§377-] PROOF OF PUBLICATION. 63 1 
 
 report, but not to prove that the defendant circulated the 
 report.^ 
 
 Where a declaration for publishing a libel does not 
 purport to set it forth in hac verba, and a libel correspond- 
 ing with the declaration is produced on the trial, if the 
 jury believe that the defendant published any part of the 
 libelous matter, they must find for the plaintiff.^ It is 
 calculated to mislead the jury to refer it to them to deter- 
 mine whether the defendant " in substance " spoke or pub- 
 lished the words charged, without explaining the meaning 
 that the law would attach to that expression in connection 
 with the proof of the slander charged.* 
 
 § 377. The words of a defamatory writing cannot be 
 proved by parol, unless it has been shown that the writing 
 itself cannot be produced.* If the original libel is lost or 
 destroyed or out of the jurisdiction of the court, or if after 
 the publication the defendant obtains possession of the 
 writing and refuses to produce it, in those cases secondary 
 evidence of its contents may be given.^ Where, to prove 
 the defendant the author of a libel which the defendant 
 had notice to produce, A. was called, who swore he re- 
 
 ' Schwartz v. Thomas, 2 Wash. the whole publication for the purpose 
 
 167. of forming an opinion as to the mean- 
 
 » Metcalf V. Williams, 3 Litt. 387. ing of the alleged libel. (Goodrich v. 
 
 8 Attebury v. Powell, 29 Mo. (8 Davis, 1 1 Mete. 473 ; and see Rex v. 
 
 Jones), 429. Bear, Salk. 417; Rex v. Dean of St. 
 
 * Simpson v. Wiley, 4 Porter, 215; Asaph, 3 T. R. 428, note; Perry v. 
 Aspenwall v. Whitemore, i Root, 408; Breed, 117 Mass. 155.) 
 and see McGrath v. Cox, 3 Up. Can. " Winter v. Donovan, 8 Gill, 370; 
 Q. B. Rep. 332. The alleged libel Att'y Gen. v. Merchant, 2 T. R. 201 ; 
 must be read to the jury, and where Layer's Case, 6 State Tr. 229 ; Rainy 
 the whole of the alleged libel is not set v. Bravo, L. R. 4 P. C. 287 ; Gather- 
 forth in the complamt, defendant has cole v. Miall, 15 M. & W. 319; Behee 
 the right to have the whole read. v. Pac. R. R. Co. 9 So. West. Rep. 
 (Cooke V. Hughes, I Ry. & M. 112.) 450; Boyle v. Wiseman, 10 Ex. 647 ; 
 And where the pubhcation was in a Newton v. Chaplin, 10 C. B. 56; R. 
 newspaper, held that defendant might v. Llanfaethly, 2 Ell. & B. 940 ; R. v. 
 insist on having other parts of the Aickles, 1 Leach, 330 ; see § 378, post. 
 same newspaper read as part of plaint- Proof a libel written on a wall. 
 iff 's case. (Thornton v. Stephen, 2 (Mortimer v. McCallan, 6 M. & W. 
 M. & Rob. 45; Rex v. Lambert, 2 67.) Or of a placard. (Bruce v. 
 Camp. 398.) And jury may consider Nicolopulo, 11 Ex. 133.) 
 
632 EVIDENCE FOR PLAINTIFF. [CH. XVI. 
 
 ceived the manuscript of the libel from the defendant and 
 returned it to him, but on cross-examination the witness 
 stated that he had not delivered the manuscript to the de- 
 fendant himself, but had delivered it to his (the witness') 
 own servant to deliver to the defendant. A.'s servant was 
 called, who testified that he delivered the manuscript to 
 the defendant's servant ; held, not sufficient to enable the 
 prosecutor to give parol evidence of the existence of the 
 paper, nor for considering the defendant as the author of 
 the libel.^ 
 
 § 377 a. There are instances of the courts having re- 
 fused to compel the production of the writing, and at the 
 same time have excluded secondary evidence of its con- 
 tents ; as, where the communication was addressed to the 
 governor of a State respecting a State officer, the court 
 held that the governor to whom it was addressed might 
 exercise his own discretion as to its production, and ex- 
 cluded parol evidence of its contents.^ 
 
 ' Rex V. Pearce, Peake's Cases, 75. Hon. Edwin M. Stanton, Secretary of 
 There is a presumption that one to War, was summoned as a witness to 
 whom a message has been intrusted produce an original letter addressed to 
 for delivery has dehvered it. (Middle- the former assistant secretary of war, 
 ton V. Bamed, 4 Ex. 241 ; Wells v. Dana, which letter contained the mat- 
 Webber, 2 Fost. & F. 715.) ter alleged to be libelous. Mr. Stanton 
 
 2 Gray v. Pentland, 2 S. & R. 23 ; 4 put in an affidavit respectfully submit- 
 
 S. & R. 420 ; and see Wyatt v^ Gore, ting his objections to the production 
 
 Holt's Cases, 299; Oliver 7/. Bentinck, of the paper in question, and asking 
 
 3 Taunt. 456 ; Howard v. Thompson, to be discharged from further atten- 
 
 21 Wend. 319; Beatson v. Skene, 5 dance. The affidavit bore the foUow- 
 
 Hurl. & N. 838; M'Elveney v. Conel- ing indorsement: " Sir, Letters on file 
 
 Ian, 17 Ir. Com. L. R. 55; Earl v. with the heads of departments are 
 
 Vass, Boyd Kinnear's Dig. H. L. Cas. privileged communications. Unless 
 
 226; I Shaw's App. Cas. 229; their publication has been authorized, 
 
 Home V. Bentinck, 2 Brod. & B. no copies should be taken at private 
 
 1 30 ; Dawkins v, Rokeby, Law Rep. 8 request, and the production of the 
 
 Q. B. 255; 45 L. J. Q. B. 8; Cooke original cannot be compelled in a suit 
 
 V. Maxwell, 2 Stark. R. 183; Ander- between individuals. It has been 
 
 son V. Hamilton, 2 Brod. & B. 1 56,; ruled that such communications can- 
 
 Mosbury w.. Madison, I Cranch, 144; not be made the foundation of an 
 
 Voter V. Lanno, 6 Watts, 156; and action for libel. Then I think the 
 
 see I Burr's Trial, 186; Hennessy z/. head of a department is bound not to 
 
 Wright, 21 Q. B. D. 509; Thompson produce a paper on file in his office. 
 
 V. German Valley R. R. Co. 22 N. J. Such a letter as you describe is a priv- 
 
 Eq. Ill; 17 Alb. L. J. 78. In an ileged communicatton. (Signed.) J. 
 
 action for libel, pending in the Circuit Speed, Attorney General.'' And in 
 
 Court of the District of Columbia, the an action for lilsel, it was held that a 
 
§§ 378j 379-J PROOF of publication. 633 
 
 § 378. Where the defamatory writing has been lost, 
 secondary evidence of its contents may be given.^ (§ 377.) 
 Where the libel (a song) from which the publication took 
 place was lost, a printer was allowed to produce a similar 
 one printed at the same time, and which he proved cor- 
 responded with the one lost.^ Where to sustain an action 
 of libel, the proof sought to be made was, that the publi- 
 cation was by an affidavit, made by the defendant before a 
 magistrate, imputing to. the plaintiff the offense of hog 
 stealing, and the only evidence of the existence of the 
 affidavit was an imperfect memorandum of it, in the hand- 
 writing of the magistrate, who was alive and out of the 
 State, and there was no sufficient proof of its being, in 
 whole or in part, a copy; it was held that the evidence 
 was not sufficient to sustain the action.® 
 
 § 379. In an action against the proprietor of a news- 
 paper for a libel contained in it, proof that the paper came 
 from the defendant's office, and was one copy of an edition 
 
 member of Parliament could not be v. Crummer, i Law Rec. O. S. 36; 
 
 examined as to what was said by the Croke v. O'Grady, 4 Id. 42, 49; see 
 
 plaintiff in the course of a debate in ante, p. 313, and note; and § 397.) 
 Parliament. (Plunkett v. Cobbett, 5 1 Gates v. Bowker, 18 Vt. (3 
 
 Esp. 136.) The plaintiff having failed Washb.) 23; Strader v. Snyder, 67 
 
 in his application to the Senate for the 111. 404; Weir v. Hoss. 6 Ala. 88i ; 
 
 removal of the injunction of secrecy, Gathercole v. Miail, 15 M. & W. 319; 
 
 the testimony of a Senator was ad- Fryer v. Gathercole, 4 Ex. Rep. 262 ; 
 
 mitted to prove that plaintiff's nomi- Behee v. Mo. Pac. R. R. 9 So. West, 
 
 nation had been rejected by the Senate. Rep. 449. Where it appeared that 
 
 (Law V. Scott, 5 Har. & J. 438.) It the alleged libel was filed of record in 
 
 has been held to be optional on the the navy department at Washington, 
 
 part of counsel whether he will dis- held that secondary evidence of its 
 
 close what passed in court on his mak- contents might be given. (Carpenter 
 
 ing a motion. (Curry v. Walter, i v. Bailey, 56 N. H. 283.) Evidence 
 
 Esp. 456. ) Lord Abinger was called of a libel by chalk mark on a wall, 
 
 as a witness to testify as to what he (Mortimer v. McCallan, 6 M. & W. 
 
 had said as counsel. (Stockdale v. 58; Stall v. Massey, 2 Stark. 559.) 
 
 Tarte, 4 Adol. & El. 1016.) And Inscriptions on banners. (Rext/.Hunt, 
 
 held that a letter to the chief secretary 3 B. & Aid. 566 ; and Bruce v. Nico- 
 
 of the postmaster general is not privi- lopulo, 11 Ex, 133.) 
 leged from disclosure in court on the ^ Johnson v. Hudson, 7 Ad. & Ell. 
 
 ground that it is an official com muni- 233, note. 
 
 cation to a public officer. (Blake v. ^ Sanders v. Rollinson, 2 Strobh. 
 
 Pilfold, I Moo. & Rob. 198; see Black 447- 
 V. Holmes, l Fox & Sm. 28 ; Perkins 
 
634 
 
 EVIDENCE FOR PLAINTIFF. 
 
 [CH. XVI. 
 
 of the same date, and alleging on its face that he is the 
 proprietor, is proof of a publication by him ; ^ and so in 
 such an action, testimony by a subscriber for the paper,upon 
 being shown the number of the paper containing the 
 article in question, that it was in all respects similar to the 
 paper left at his ofifice, and that he had read the article 
 contained in the paper produced in the one left at his 
 office, is sufficient proof of publication, without producing 
 the paper left at his office.^ And where a witness swore 
 that he was a printer, and had been in the office of the de- 
 fendant 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 pub- 
 lication by the defendant.* The witness in this case might 
 have refused to testify on the ground that he inculpated 
 himself,* but as he did not claim his privilege, his testi- 
 
 1 The State v. Jeandell, 5 Harring. 
 475; Fry v. Bennett, 4 Duer, 247; 
 Com'wealth v. Morgan, 107 Mass. 
 199. An affidavit which stated that a 
 copy of a newspaper had been pur- 
 chased from a salesman in the office 
 of said newspaper, and that on the 
 face of said paper it was stated that J. 
 S. was the printer and pubhsher 
 thereof, and that deponent believed J. 
 S. to be the printer and publisher, 
 held not to contain legal evidence of 
 J. S. being the publisher. (Reg. v. 
 Stanger, L. R. 6 Q. B. 352.) Evi- 
 dence admitted of a copy of a news- 
 paper bought at a news stand. (Com. 
 V. Morgan, 107 Mass. 199.) 
 
 ' Huff V. Bennett, 4 Sandf. 120; 
 and see Commonwealth v. Blanding, 
 3 Pick. 304. 
 
 * Southwick V. Stevens, 10 Johns. 
 442; McCorkle v. Binns, 5 Binney 
 (Pa.), 340 ;/w/, §381. 
 
 * Moloney v. Bartley, 3 Camp. 210; 
 ante, § 270. Where a defendant is 
 subpoenaed as witness for the plaintiff, 
 he cannot object to being sworn, on 
 the ground that any relevant questions 
 put to him would lend to criminate 
 
 himself. Plaintiff has a right to have 
 him sworn, and defendant must an- 
 swer the questions put to him, or ob- 
 ject, as any other witness, to any 
 question that would criminate him. 
 (Boyle V. Wiseman, 10 Ex. 647.) As 
 to interrogatory to defendant inquiring 
 if he wrote the alleged libel, see In- 
 man v. Jenkins (Law Rep. 5 C. P. 738). 
 Interrogatories to defendant not al- 
 lowed merely to rebut privilege by 
 showing malice (Davis v. Gray, 30 
 Law Times, N. S.418); nor to enable 
 plaintiff to institute criminal proceed- 
 ings {Id.; and see Stein v. Tabor, 31 
 Id. 444) ; nor to prove truth of crim- 
 inal matter charged (Thorpe v. Ma- 
 cauley, 5 Madd. 218, 229); nor to com- 
 pel an answer which defendant swears 
 would criminate him (Bowden v. 
 Allen, 22 Law Times, N. S. 342); nor 
 to prove contents of a communication 
 to Lords Commissioners of the Great 
 Seal (Fitzgibbon v. Greer, Ir. Rep. 9 
 Com. Law, 294); nor, before the stat- 
 ute 6 & 7 Vict. ch. 76, to show defend- 
 ant the publisher (Baker v. Pritchard, 
 2 Atk. 387 ; Selby v. Crew, 2 Anst.504); 
 but allowed where the alleged libel 
 
.§ 380.J 
 
 PROOF OF PUBLICATION, 
 
 635 
 
 mony was properly received ; and so it was held in the 
 case of a witness who had written the defamatory matter 
 at the request of the defendant.^ 
 
 § 380. Proof that the defendant gave a bond to the 
 stamp office for the duties on the advertisements in a 
 newspaper, under the statute 29 George III, ch. 50, and 
 
 would not authorize a criminal pro- 
 ceeding. Can there be such a case ? 
 {Ante, % 9; M'Loughlin v. Dwyer, 
 ir. Rep. 9 Com. Law, 170.) Inter- 
 rogatories allowed to prove plea of 
 justification. (Macauley v. Shackell, 
 I Bligh, N. S. 96, 133; Collins v. 
 Yates, 27 Law Jour. Ex. 150.) In 
 Ramsden v. Brearley (33 Law Times, 
 N. S. 322). an interrogatory was al- 
 lowed, " Were you the printer and 
 publisher of the newspaper ? " This 
 was under the statute 6 & 7 Vict. ch. 
 76, providing that discovery is not to 
 be used in any other proceeding. In 
 Wilton V. Brignell (Addenda to Hare 
 on Discovery, 2d edit.), from the fol- 
 lowing interrogatories the words in 
 italics were struck out : Was the pas- 
 sage set out in paragraph 3 intended 
 by defendant to apply to plaintiff ; if 
 not, say to whom ? Were you your- 
 self the writer of the passages (citing 
 them); if not. who was ? (See ante, 
 notes to § 270 J Interrogatories to 
 defendant of a fishing character not 
 allowed. (Stiern v. Sevastopulo, 8 
 Law Times, N. S. 538.) A party 
 should not be compelled to disclose 
 facts to enable plaintiff to sustain an 
 action for slander. (Bailey v. Dean, 
 5 Barb. 297.) It is now the settled 
 practice in New York, that in an ac- 
 tion for libel defendant cannot, either 
 on examination before trial or upon 
 the trial, be asked any question which 
 will prove or tend to prove him the 
 publisher of the alleged libel. (Phoenix 
 V. Dupey, 2 Abb. N. C. 146; Ather- 
 ley V. Harvey, 25 Week. Rep. 727; 
 Corbett v. De Cormeau, 45 N. Y. 
 Superior Co't, 637; 4 Abb. N. C. 252; 
 5 Id. 169; and see Lamb v. Munster, 
 8Q. B. D. no.) It may be otherwise in 
 an action for slander, as there is no 
 criminal prosecution for that offense. 
 
 In an English case to prove defendant 
 the writer of the libel, he was shown 
 a letter addressed to a third person 
 and asked whether or not he was the 
 writer of that letter. Although de- 
 fendant objected the answer might 
 tend to criminate him he was required 
 to answer. (Jones v. Richards, 15 Q. 
 B. D. 439.) Where the libel was that 
 plaintiff bad fabricated a story to the 
 effect that a certain circular letter pur- 
 porting to be signed by defendant 
 had been sent around to defendant's 
 competitors in business. Defense, 
 truth. Plaintiff having as alleged 
 stated he had seen copies of the al- 
 leged letter, that two of such copies 
 were in existence in the possession of 
 persons described but not named, and 
 that his informant was a solicitor. In 
 interrogatories administered by de- 
 fendant, plaintiff was asked to state 
 the name and address of his inform- 
 ant, and the names and addresses of 
 the persons to whom the letter had 
 been sent, and in whose possession 
 the two letters existed ; he refused to 
 answer on the ground that he intended 
 to call those persons as his witnesses 
 at the trial. Held, that defendant was 
 entitled to an answer. (Marrot v. 
 Chamberiain, 18 Q. B. D. 154; and 
 see Webb v. East, 5 Ex. Div. 108, 
 where a defendant was called upon to- 
 produce a copy of the alleged libel.) 
 Where a bill of particulars of a general 
 plea of justification on the ground of 
 truth had been ordered, the court re- 
 fused to allow interrogatories to plaint- 
 iff to enable defendant to comply with 
 the order, without an affidavit disclos- 
 ing circumstances to warrant a depar- 
 ture from the general rule. (Gourley 
 V. Plimsoll, Law Rep. 8 C. P. 362.) 
 
 1 Schenck v. Schenck, Spencer (2 
 N. J. L. R.), 208. 
 
636 EVIDENCE FOR PLAINTIFF [CH. XVI. . 
 
 that he had occasionally applied at the stamp office re- 
 specting the duties, was held to be sufficient evidence of 
 his being the publisher of such newspaper.^ And the 
 production of a certified copy of the affidavit required by 
 the statute 38 George III, ch. 78, with a newspaper con- 
 taining the libel, corresponding with the paper described 
 in the affidavit ; held to be sufficient evidence of publica- 
 tion by the defendant.^ Where, in an action for libel in 
 a newspaper, the one put in had the place of publication 
 ^'at the corner of Charles street and Hadfield street, in the 
 parish of M.," the certificate of the stamp office declaration 
 was at " No. 23 Charles street," in the parish, &c.; held 
 sufficiently to identify the newspaper as published by the 
 declarant, within the 6th & 7th William IV, ch. 76.^ 
 
 § 381. The publication of a libel in a newspaper may 
 be proved by producing the copy of the newspaper filed 
 in the office of the commissioner of stamps,^ or by pro- 
 ducing a copy filed in the office of publication of such 
 newspaper.^ On the trial of an action for a libel in a 
 newspaper, a witness stated that he was president of a 
 literary institution having eighty members ; that about the 
 date of the paper proved, one was brought (he could not 
 
 ' Rex V. Topham, 4. T. R. 126. * Cook v. Ward, 6 Bing. 409. 
 
 Distributing newspapers containing ^ Rex v. Pearce, Peake's Cas. 75. 
 
 ■defamatory matter and receiving pay A witness may testify to the contents 
 
 for them through an agent is sufficient of a paper not produced, it being a 
 
 evidence of publication by defendant. printed one, always issued in the same, 
 
 (The State v. Davis, 3 Yeates, 128.) form. (Butler v. Maples, 9 Wall. 
 
 Defendant proved to be owner in 1 848 766.) To prove the publication in a 
 
 and 1849, it was presumed he con- newspaper, it is not necessary to pro- 
 
 tinued the owner in 1851. (Fry v. duce a copy actually published ; it is 
 
 Bennett, 28 N. Y. 330.) sufficient to produce a copy, and 
 
 ' Mayne v. Fletcher, 9 B. & Cr. prove that papers of the same kind 
 
 382; Rex V. Hunt, 9 B. & Cr. 385, n.; were published. (Simmons v. Holster, 
 
 Rex J/. Hart, ID East, 94. 13 Min. 249; see Rex ii. Watson, 2 
 
 ' Baker v. Wilkinson, i Carr. & Stark. 129: Johnson v. Hudson, 7 
 M. 399 ; Rex v. Donnison, 4 B. & Ad. Adol. & El. 233 n. ; and note to % 382, 
 698. The statute 6 & 7 William IV, post.) Against a person not con- 
 ch. 76, has since been repealed, 32 & nected with the paper, mere proof of 
 33 Vict. ch. 24, and now there is no the periodical publication of the paper 
 statutory proof of publication. (Reg. not sufficient. (Simmons v. Holster, 
 ■V. Stanger, Law Rep. 6 Q. B. 352.) 13 Minn. 249; ante, § 379.) 
 
§ 382. J defendant's liability. 637 
 
 say by whom) to the reading-room of the institution, and 
 left there gratuitously ; that, a fortnight after, it was taken 
 away without his authority, and never returned ; that he 
 had searched for it and could not find it, and believed it to 
 be lost or destroyed ; that the title of it was the same as 
 that proved, and, as far as he could judge from a glance at 
 it, such paper contained the libel in question, and he be- 
 lieved it was a copy of that paper. He was not cross-ex- 
 amined. Held, first, that secondary evidence of the con- 
 tents of the copy was properly admitted ; secondly, that 
 there was evidence for the jury that the paper so sent to 
 the institution was a copy of that which contained the 
 libel ; thirdly, that, though sent by a person unknown, it 
 was evidence against the defendant, not to show malice, 
 but to affect the damages, by showing the extent of circu- 
 lation.^ But where a defendant alleged, in mitigation, 
 that a libelous book was published against him by plaintiff, 
 and in support of such allegation, a bookseller produced, 
 from his own possession, a printed book, stating his belief 
 that it is one of a number of copies published at his shop ; 
 held that this was not evidence for the jury that another 
 book with the same contents was actually published.^ 
 
 § 382. Where a person has admitted that he was the 
 author of a libel in a certain newspaper, any other news- 
 paper of the same impression may be read to the jury, and 
 is not secondary evidence.* A newspaper may be read in 
 evidence although not stamped,* To prove the publication 
 of a libelous pamphlet, a witness testified that she received 
 from the defendant a copy of a pamphlet, of which she 
 
 1 Gathercole t/. Miall, 15M. &W. 194. Admission of autliorship of a 
 3IQ- 15 Law Tour. Rep. 179, Ex.; 10 libel not equivalent to an admission of 
 funs, 337; 7 Law Times, 89. publication. (De Lettre v. Kilner, 3 
 
 2 Watts V. Fraser, 7 Ad. & E. 223 ; Menzies, 1 2 ; Case of The Seven Bish- 
 r Mo. & Rob. 449; Moore v. Oastler, ops, 4 St. Trials, 300; see ante, note 
 
 I Mo. & Rob. 451. n- t° §§ 373, 381O ,, , , ^ 
 
 » McLaughlin v. Russell, 17 Ohio, * Rex v. Pearce, Pealce s Cas. 75 : 
 
 475; Woodburn v. Miller, Cheves, i Esp. 456. 
 
638 EVIDENCE FOR PLAINTIFF. [CH. XVI. 
 
 read some portions, and lent it to several persons in suc- 
 cession, who returned it to her, and although there was no 
 mark by which she could identify it, she believed the copy 
 produced to be the same, but could not swear that it was ; 
 held that this was evidence of publication proper to be left 
 to the jury/ Where several copies of a placard are printed, 
 and a party adopts and uses some of the copies, all the rest 
 are duplicate originals, and one of them may be read 
 against such party, without notice to produce.^ But pla- 
 cards in the windows of third persons, setting forth the 
 forthcoming contents of the newspaper in which the libel 
 was contained — held inadmissible against the author, un- 
 less he were connected with the publication of them.^ If 
 the manuscript of a libel be proved to be in the handwrit- 
 ing of the defendant, and the libel be also proved to have 
 been printed and published, this is evidence to go to the 
 jury that it was published by the defendant, although there 
 be no evidence given to show that the printing and publi- 
 cation were by his direction* And as handwritings may 
 be compared, in an action for libel, if the testimony is cor- 
 roborated from other sources,® papers in the handwriting 
 of the defendant, found in the house of the editor of the 
 newspaper in which the libel was published, were held ad- 
 missible to prove the publication by the defendant.® 
 
 § 383. The defendant's liability as publisher may be 
 
 1 Fryer v. Gathercole, 18 Law i-. Brown, 3 B. & Cr. 113; Finnerty 
 Jour. Ex. 389; 13 Jurist, 542; 13 Law z-. Tipper, 2 Camp. 72; Wakley v. 
 Times, 285. Johnson, i Ry. & M. 422; Stark. 
 
 2 Rex V. Watson, 2 T. R. 199; Sland. 3 ed. 429. In an action for 
 see Reg. v. Boucher, i Fost. & F. 486. services in preparing reports for a 
 
 s Raikes v. Richards, 2 Car. & P. newspaper, the authorship being in 
 
 562. question, it is not competent to ask 
 
 * Reg. V. Lovett, 9 Car. & P. 462. the opinion of a witness (founded 
 
 6 Callan v. Gaylord, 3 W^atts, 321 ; merely on his having read the articles 
 
 Waddington v. Cousins, 7 Car. & P. and professing a knowledge of the 
 
 595; see Rex v. Cator, 4 Esp. 117; plaintiff's style of writing) as to 
 
 Case of the Seven Bishops, 4 State whether the reports were written by 
 
 Tr. 338. plaintiff. (Lee v. Bennett, How. Ct. 
 
 « Tarpley v. Blabey, 2 Bing. N. C. of App. Cas. 202.) 
 437; 2 Sc. 642; 7 Car. & P. 395; May 
 
§ 384-] 
 
 DEFENDANTS LIABILITY. 
 
 639 
 
 proved by showing a copy of the alleged libel in the de- 
 fendant's handwriting/ addressed to the editor of a news- 
 paper ; * or by showing that defendant paid the printer or 
 publisher of a newspaper for the insertion of the defama- 
 tory matter in the newspaper of such printer or publisher ; ^ 
 or by showing the defendant's admission of authorship.* 
 Where the defendant admitted that he was the author of 
 the alleged libel, errors excepted^ held that the burden was 
 on him to show that the errors were material.^ The fact 
 that the defendant made the publication to the witness 
 under an injunction of secrecy is no objection to the proof 
 of the publication by such witness.* 
 
 § 384. The court and jury, and not the witnesses, are 
 to construe the wordsJ And the opinion of witnesses as 
 
 1 McCoombs v. Tuttle, 5 Blackf. 
 
 431- 
 
 ' Bond V. Douglas, 7 C. & P. 626; 
 and see Burdett v. Abbot, 5 Dow. 201. 
 
 ' Schenck, v. Schenck, Spencer 
 (2 N. J. L. R.), 208. 
 
 * Commonwealth z/. Guild, Thatch- 
 er's Crim. Cas. 329 ; Rex v. Burdett, 
 4 B. & A. 314; The Seven Bishops' 
 Case, 4 State Trials, 304. Evidence 
 of a threat to publish a libel is suffi- 
 cient prima facie, when unexplained, 
 to charge defendant with publication. 
 (Bent. V. Mink, 46 Iowa, 576.) Ad- 
 mission of being publisher, although 
 made in a conversation relating to a 
 compromise, is admissible in evidence, 
 if not made for the purpose of a com- 
 promise. (Binford v. Yound, 16 No. 
 East. Rep. 142 [Ind.]; and see Page 
 V. Merwin, 54 Conn. 426; Resp. v. 
 Davis, 3 Yeates, 128; Cruikshank z/. 
 Gordon, 48 Hun, 308.) Where the 
 letter containing the defamatory 
 matter was sent sealed, and the writer 
 afterwards stated, in the presence of 
 several persons, that he had got W. to 
 write the letter for him, and he had 
 signed his own name to it, and kept a 
 copy, and stated the contents of the 
 letter, but without producing it, or a 
 copy of it ; held, that this was a pub- 
 lication of the libel. (Adams v. Law- 
 son, 17 Gratt. [Va.] 250.) 
 
 5 Rex V. Hall, I Str. 416. 
 
 « McGowan v. Manifee, 7 T. B. 
 Monr. 314. A witness who admits 
 that he knows who is the author of a 
 libel is bound to disclose his knowl- 
 edge. (The People v. Fancher, 4 
 Sup. Ct. Rep. [T. & C] 467.) 
 
 ' Olmsteadf. Miller, i Wend. 51Q. 
 Where the imputation was that the 
 plaintiff was a truck-master — held 
 that the term being composed of com- 
 mon English words, no evidence was 
 necessary to explain its meaning, and 
 that it was for the jury to say whether 
 under all the circumstances the word 
 was used in a defamatory sense. 
 (Homer v. Taunton, 5 Hurl. & N. 
 661 ; Gribble v. Pioneer Press Co. 
 34 Minn. 342.) Where the words 
 were: "It is wondered at how he 
 can live in more than ordinary 
 style, as he does, while having 
 merely the honorable receipts of his 
 agency to live on.'' Left to jury to 
 say if they amounted to a charge of 
 embezzlement. (Edwards v. Chan- 
 dler, 14 Mich. 471.) In Weed v Bib- 
 bins (32 Barb. 315), held that evidence 
 of what was generally understood by 
 "the Cunningham affair'' was im- 
 properly admitted. (And see Justice 
 v: Kirlin, 17 Ind. 588 ; Wachter v. 
 Quenzer, 29 N. Y. 552; Dedway v. 
 Powell, 4 Ky. [Bush], 77 ; and ante 
 
640 
 
 EVIDENCE FOR PLAINTIFF. 
 
 [CH. XVI. 
 
 to the meaning of the language published is not admissible,' 
 and, therefore, a witness cannot be asked how he under- 
 
 Ch. VII, and §§ 28 1 , 286.) If the words 
 are of doubtful signification, it is for 
 the jury to determine in what sense 
 they were used. (Goodrich v. Wol- 
 cott, 3 Cow. 231 ; Demarest v. Haring, 
 6 Cow. 76; Gibson v. Williams, 4 
 Wend. 320; Ex parte Baily, 2 Cow. 
 479 ; Rundell v. Butler, 7 Barb. 260.) 
 A witness cannot be asked nor per- 
 mitted to state how he understood the 
 language (Van Vechten v. Hopkins, 5 
 Johns. 211; Maynard v. Beardsley, 7 
 Wend. 560 ; affi'g 4 Wend. 336 ; Gib- 
 son V. Williams, 4 Wend. 320; White 
 V. Sayward, 33 Maine, 322; Snell ■z'. 
 Snow, 13 jVIetc. 278), except where 
 the language is not actionable on its 
 face, and is made actionable by a col- 
 loquium, as where the charge is made in 
 a cant phrase, or phrase of local mean- 
 ing, or a nickname. (Sasser v. Rouse, 
 13 Ired. Eq. 142; and see De Armond 
 V. Armstrong, 37 Ind. 35.) Where the 
 alleged libel was in German, and con- 
 tained a phrase " the Swiss gallows," 
 which did not show on its face what 
 was meant, and no one, without a 
 knowledge of the pppular understand- 
 ing of the phrase could attach any 
 particular meaning to the words. — 
 held it was competent for plaintiff to 
 prove that the phrase had a commonly 
 understood meaning among Germans, 
 and what was that meaning. 
 (Wachter v. Quenzer, 29 N. Y. 547 ; 
 see Blakeman v. Blakeman, 31 
 Minn. 396; Leonard v. Allen, ii 
 Cush. 241 ; Fawcett v. Clarke, 48 Md. 
 494; Knapp V. Fuller, 55 Vt. 311.) 
 Held witness could not testify to 
 meaning of the term shyster. (Gribble 
 V. Pioneer Press Co. 36 Alb. L. J. 
 325.) If the application and meaning 
 of the words are ambiguous, or the 
 sense in which they were used is un- 
 certain, and they are capable of a con- 
 struction which would make them 
 actionable, although at the same time 
 an innocent sense can be attributed to 
 them, it is for the jury to determine, 
 under all the circumstances, whether 
 they were applied to the plaintiff, and 
 in what sense they were used. (San- 
 
 derson V. Caldwell, 45 N. Y. 401 ; 
 Royce v. Maloney, 58 Vt. 437; 
 see Els worthy v. Hayes, 37 No. 
 West. Rep. 249, citing Geary v. Ben- 
 nett, 53 Wis. 444; Weil V. Schmidt, 
 28 Wis. 137; Campbell v. Campbell, 
 54 Wis. 90; Rowand v. De Camp, 96 
 Pa. St. 493 ; Singer v. Bender, 64 Wis. 
 169.) Plaintiff cannot aid his innu- 
 endoes by testimony of witnesses. If 
 you could aid the innuendo by the 
 opinion of a witness '' there would be 
 no use for an innuendo ; its office 
 would be suppUed by the oath of the 
 witness," who, instead of the jury, 
 "would draw the inference from the 
 precedent facts." (Thompson,}., Rang- 
 ier V. Hummell, 37 Penn. St. 130; i 
 Wright, 130; Pittsburg R'road v. 
 McCurdy, 6 Cent. Rep. 719.) It does 
 not necessarily impute unchastity to 
 charge a married woman with having 
 a venereal disease. Whether it was 
 intended to charge her with unchastity 
 is a question for the jury. (Upton v, 
 Upton, 21 N. Y. St. R. 560.) 
 
 ' Smart v. Blanchard, 42 N. 
 Hamp. 137. Unless the words are 
 ambiguous, and their application 
 doubtful, in which case the testimony 
 of hearers as to how they understood 
 the words is admissible. {Id.; and 
 see Barton v. Holmes, 16 Iowa, 252; 
 Smith V. Miles, 15 Vt. 245 ; §§ 97, 140, 
 141, anie.) In Leonard v. Allen (11 
 Cush. 241), an action for slander, not 
 by direct words, but by expressions, 
 gestures, and intonations of vojce, it 
 was held competent for witnesses who 
 heard the expressions to state what 
 they understood the defendant to 
 mean by them, and to whom he in- 
 tended to apply them. In Nelson v. 
 Borchenius (52 111. 236), it was held 
 that in an action for slander the testi- 
 mony of the hearers as to the sense in 
 which they understood the words is 
 admissible. But such testimony is not 
 conclusive upon the jury. Such testi- 
 mony is admissible as tending to show 
 what meaning hearers of common un- 
 derstanding would and did ascribe t» 
 the words. 
 
§ 384-] EVIDENCE OF MEANING. 64I 
 
 Stood the words published,^ nor be permitted to state what 
 meaning he understood the defendant to convey by the 
 words,* nor the impression produced on his mind by the 
 whole of the conversation.® The words being unambig- 
 uous, it is not competent for a witness to say that he 
 understood the publisher to mean differently from the 
 common import of the words.* Where the language is 
 ambiguous and it is doubtful in what sense the publisher 
 intended it, the question is in what sense the hearers 
 understood it, for " the slander and damage consist in the 
 apprehension of the hearers." ° The ordinary sense of the 
 words is to be taken as the sense intended by the publisher, 
 unless the words are explained to import something differ- 
 ent by other matter connected therewith.* Where it is 
 first shown that something has occurred in consequence of 
 which the words would convey a meaning different from 
 their ordinary meaning, then the witness may be asked ; 
 What did you understand with reference to such an ex- 
 pression } '' Where the charge was, " You (plaintiff) are 
 a thief, a rogue, and a swindler," on not guilty pleaded, 
 held, that the defendant could not prove circumstances not 
 referred to and not known to the hearers at the time the 
 
 ' Wright V. Paige, 36 Barb. 438 ; was improperiy admitted. (Anderson 
 
 ante, § 140; contra, Foval v. Hallett, v. Hart, 68 Iowa, 400. 
 
 10 Bradw. (111.) 265. ^ Harrison v. Bevington, 8 Car. & 
 
 2 Snell V. Snow, 13 Mete. 278. P. 708; contra, Niderver v. Hall, 67 
 
 Defendant was charged with libel in Cal. 79. 
 
 an affidavit " that a note presented to * Pitts v. Pace, 7 Jones Law (N. 
 
 him by Hiram Larrabee, in favor of Car.), 558; Sasser z/. Rouse, 13 Ired. 
 
 J. D. Larrabee, with Alfred Anderson's 142. 
 
 name and mark, J. Gustafon and John ' Fleetwood v. Curley, Hob. 267 b; 
 
 Hart's names, is a note he (deponent Binford v. Young, 115 Ind. 174; ante, 
 
 John Hart) knows nothing about and note 2, p. 119. 
 
 the name John Hart was not written " Hayes v. Ball, 72 N. Y. 420. 
 
 by him (deponent) or his orders and ' Daines v. Hartley, 3 Ex. 200; 18 
 
 therefore is a forgery." On the trial Law Jour. 81 Ex.; 12 Jur. 1093; 
 
 a witness was asked : To whom did Com'wealth v. Morgan, 107 Mass. 
 
 you understand the affidavit to refer? 199; Berry v. Massey, 104 Ind. 486; 
 
 The witness answered : I understood Bradstreet v. Gill, 9 So. East. Rep. 
 
 it to refer to Anderson (plaintiff) that 753 (Texas) ; Fawcett v. Clark, 48 
 
 is the forgery; held that the question Md. 494; Elsworth v. Hayes, 71 W^is. 
 
 427; see § 281, ante. 
 
 41 
 
642 
 
 EVIDENCE FOR PLAINTIFF. 
 
 [CH, XVI. 
 
 charge was made, in order to qualify the meaning of the 
 terms used.^ The plaintiff and defendant being present at 
 a tavern where there had been a rafile, defendant said, " I 
 am surprised at R. allowing a blackleg in this room." On 
 the trial, a witness being asked what he understood by 
 " blackleg," answered, "A person in the habit of cheating 
 at cards." Held, by Pollock, C. B., and Watson, B., that 
 the evidence was proper ; and by Martin and Bramwell, 
 BB., that it was not proper.^ Nor can a witness be asked 
 to whom he understood the defamatory matter to apply.' 
 Where the libel consisted of a statement in a circular letter 
 published by the secretary of a society for the protection 
 of trade, that " a bill drawn and accepted by the plaintifi 
 was made payable at a banker s where he had no account; '^ 
 held, that as the letter stated a specific fact which required 
 no explanation, a witness could not be asked what he 
 
 1 Martin v. Loei, 2 Fost. & Fin. 
 654; Foval V. Hallett, 10 Bradw. (.111.) 
 265. 
 
 « Bamett v. Allen, 3 Hurl. & Nor. 
 376; I Fost. & Fin. 125. Jury told 
 to consider if words had conveyed 
 meaning of a person who had gambled 
 so as to be liable to a criminal prose- 
 cution. (Id.) Slander for the words 
 "you are a hunter," on the trial 
 plaintiff was asked what the word 
 hunter meant, it was objected that as 
 there was no innuendo and the word 
 was not actionable per se, nor indeed 
 had any meaning, the question of its 
 acquired meaning could not be gone 
 into, and by the court, that is so, 
 there being no innuendo. (Rawlings 
 v. Norbury, i Fost. & Fin. 341.) 
 Evidence of meaning of " State Cop." 
 admitted. (Com. v. Morgan, 107 Mass. 
 
 199) 
 
 » Rangier v. Hummell, 37 Penn. St. 
 R. 130; Eastwood v. Holmes, i Fost. 
 & F. 347 ; People v. McDowell, 71 Cal. 
 194; Anderson v. Hart, 68 Iowa, 400; 
 Herzman v. Oberfelder, 54 Iowa, 83 ; 
 Held that a witness may say who is 
 meant by the libel. (Smawley v. Stark, 
 9 Ind. 386 ; Russell v. Kelly, 44 Cal. 
 
 641 ; Blakemanw. Blakeman, 31 Minn. 
 396 ; see ante, § 97, note p. 115, and 
 1 140.) It is for the jury to decide 
 whether or not the language is 
 concerning plaintiff. (Ryckman v. 
 Delavan, 25 Wend. 186; rev'g White 
 V. Delavan, 17 Wend. 49.) A wit- 
 ness cannot be asked whether or 
 not he considered plaintiff to be the 
 person alluded to. (Id.; contra. Mil- 
 ler V. Butler, 6 Cush. 71 ; McLaughlin 
 V. Russell, 17 Ohio, 475; Morgan !». 
 Livingston, 2 Rich. 573; Russell v. 
 Kelly, 44 Cal. 641 ; Howe Machine 
 Co. V. Sonder, 58 Ga. 64; Wilson v. 
 Fall River Herald Pub. Co. 143 Mass. 
 581.) Alleged libel upon one Leo 
 Oppenheim — Oppenheim's name was 
 not mentioned in the libel, but it was 
 claimed he was the person intended, 
 and that he was pointed out by the 
 words " The Pearl Street Tailor," and 
 by the name " Leo.'' Held, that it 
 was for the prosecution to show facts 
 from which the jury might infer that 
 Oppenheim was the person intended, 
 and that the opinion of witnesses 
 should not have been received. (Peo- 
 ple V. Parr, 42 Hun, 313.) 
 
§ S^S-] PROOF OF INDUCEMENT. 643 
 
 understood by finding a person's name in such a paper ; 
 but the judge permitted the question whether such state- 
 ment had any other meaning beyond that which was ex- 
 pressed on its face.^ 
 
 § 385. Material matter of inducement, if put in issue, 
 must be proved. ** Immaterial matter of inducement may 
 be rejected as surplusage, and need not be proved. Ma- 
 terial matter of inducement, if not put in issue, is taken as 
 admitted.* In such cases no proof of it is necessary, and 
 no evidence respecting it is admissible. Matter of induce- 
 ment is not put in issue by a plea of not guilty.* Matter 
 of inducement may be proved by parol.* When the words 
 are actionable only by reason of their relation to extrinsic 
 facts, such facts must be proved ; as where the words were 
 charged as spoken of a constable, imputing misconduct in 
 the execution of a bench warrant, the words not being 
 actionable in themselves, it was held that the warrant must 
 be proven.^ Where the alleged libel was concerning the 
 sale by plaintiff of certain leaden figures called " Pilgrims' 
 signs," held, the plaintiff must prove the objects referred 
 to were " commonly called Pilgrims' signs." ' And in an 
 action for a libel on a constable, alleged to have been pub- 
 
 ^ Humphreys v. Miller, 4 Car. & ' Southwick v. Stevens, 10 Johns. 
 
 P. 7- 443- 
 
 2 "It is still necessary under the « Kinney v. Nash, 3 N. Y. 177. 
 
 plea of not guilty to prove the cello- Under a declaration setting out the 
 
 quium.'' (Cooke on Defam. 145; substance of the words spoken as a 
 
 Strader I/. Snyder, 67 111. 404; Wilson charge of steaUng, the plaintiflE may 
 
 V. Fitch, 41 Cal. 363 ; Chamberlain v. prove that the words spoken, although 
 
 Vance, 51 Cal.83; Nidever I/. Hall, 67 not actionable in themselves, were 
 
 Cal. 79.) In Doyley v. Roberts (3 rendered actionable by reason of cer- 
 
 Bing. N. C. 835; 5 Scott, 40), the jury tain extrinsic facts, by their referring 
 
 negatived the colloquium that the to these facts, and by the manner in 
 
 words were spoken of plaintiff in his which they were used, although the 
 
 business of an attorney. declaration contains no averment that 
 
 » Fradley v Fradley, 8 Car. & P. they were spoken with reference to 
 
 572- Hemingv Power, 10 M. &W. any fact whatever. (Allen 7/. Perkins, 
 
 567; Gwynne v. Sharpe, i Car. & 17 Pick. 369; Pond ^. Hart well, /rf. 
 
 Mar. 532. 269.) T, , o 
 
 * Gwynne v. Sharpe, i Car. & ' Eastwood v. Holmes, i Fost. & 
 
 Mar. 532. Fin. 347- 
 
644 EVIDENCE FOR PLAINTIFF. [CH. XVI. 
 
 lished concerning his conduct in the apprehension of per^ 
 sons engaged in stealing a dead body, it was averred what 
 that conduct had been, and it was alleged that plaintiff had 
 carried the body to Surgeons' Hall ; held that the plaintiff 
 must prove the inducement.^ In an action against the 
 editor of a newspaper for a libelous publication, it is ad- 
 missible for the plaintiff to show articles in subsequent 
 numbers of the same paper, for the purpose of proving that 
 the plaintiff was the person intended to be defamed.^ 
 
 § 386. Pursuant to a rule already referred to (§ 315), 
 the defamatory matter, so far as it goes, is evidence of the 
 introductory averments.^ (§ 189.) Thus for words 
 spoken respecting the plaintiff's trade ; if the words assume 
 that, at the time they were spoken, the plaintiff was en- 
 gaged in such trade, there is no need of proving that fact.* 
 Where it was to be plainly inferred, from the general tenor 
 of the libel, that it was the object of the writer to represent 
 the plaintiff as holding a situation of trust and confidence, 
 and that he had abused it, held that it was sufficient to sus- 
 
 1 Teesdale v. Clement, i Chit. R. degree, the libel stating him to be a 
 
 603 ; but this decision arose out of the quack, and that certain persons had 
 
 peculiar form of the declaration. (See the misfortune to come within his 
 
 Ruel V. Tatnel, 43 Law Times, N. S. doctrinal prescriptions ; held, that if 
 
 507.) the jury considered that the libel 
 
 s White V. Sayward, 33 Maine, spoke of him as a medical practitioner, 
 
 322; Russell V. Kelly, 44 Cal. 641; the case was not withdrawn from 
 
 Peoples V. Ev'g News Asso. 51 Mich. their consideration, although they 
 
 II. might not give the same damages as 
 
 ' Rutherford v. Evans, 6 Bing. to a person proved to be a regular 
 
 451. In this case the plaintiff declared practitioner. (Long 7/. Chubb, 5 Car. 
 
 in respect of a libel upon him as " sur- & P. 55.) Where the declaration 
 
 veyor of the New England Company ; '' alleged that there were such states as 
 
 held sufficient for him to prove em- C. and B., and plaintiff and one H. 
 
 ployment by a company generally had been appointed minister plenipo- 
 
 known by that name. tentiary and consul general respec- 
 
 * Hesler v. Degant, 3 Ind. 501; tively from those states to this country, 
 Rodebaugh v. Hollingsworth, 6 Ind. the libel on the face of it admitted 
 339 ; Berryman v. Wise, 4 T. R. 366 ; that there were such states ; and it be- 
 and see Hea v. McBeath, 2 Kerr, 301 ing proved at the trial that plaintiff 
 (N. Bruns.). Where, in an action for had been appointed such officer for 
 a libel against plaintiff, a medical the one state, and H. for the other, 
 practitioner, of and concerning him in held that the allegations were suffi- 
 his said practice, no evidence was ciently made out. (Yrissari v. Clem- 
 offered of plaintiff being of any regular ent, 3 Bing. 432.) 
 
§ S^?-] PROOF OF MALICE. 645 
 
 tain the allegation in the declaration of plaintiff's holding 
 such situation.^ A declaration in libel stated as induce- 
 ment that the plaintiff was a surgeon and member of the 
 College of Surgeons, which said college had the power of 
 expelling persons guilty of unprofessional conduct, and of 
 unprofessionally advertising themselves and their cures. 
 The libel was alleged to be published of and concerning 
 the plaintiff as such surgeon, and of and concerning 
 the said college and its said power. One of the libels com- 
 plained of contained a statement that the college had the 
 power of expelling its members. The second plea was 
 that the plaintiff was not a surgeon and member of the 
 College of Surgeons having the power of expelling persons 
 guilty of unprofessional conduct, and of unprofessionally 
 advertising themselves and their cures. Held, that the 
 traverse put in issue the power of the college to expel, and 
 that the statement in the libel itself was not sufficient evi- 
 dence of such power.^ 
 
 § 387. It is a much vexed question whether in an action 
 for slander or libel the plaintiff may, in aggravation of the 
 damage he has sustained, introduce evidence of his good 
 reputation prior to the publication complained of; on this 
 point, as upon all the others relating to the proceedings in 
 an action, we can do no more than call attention to the 
 decisions upon the subject. Although it may be true that 
 
 ' Bagnall v. Underwood, 1 1 Price, character in which plaintiff sues. 
 
 621. In an action for a libel the de- (Yeates v. Reed, 4 Blackf. [Ind.] 463.) 
 
 fendant pleaded justification, and in Except the cases where the defama- 
 
 his plea introduced certain passages tory matter charges that plaintiff is 
 
 from a pamphlet written by plaintiff, not legally qualified to exercise his 
 
 upon which plea issue was joined, calling, and such want of qualification 
 
 Held, that this was not so far an adop- is at issue, plaintiff need not prove his 
 
 tion of the whole pamphlet as true, as qualification; it is sufficient to show 
 
 to enable plaintiff to read other pas- he exercised such calling. (Berryman 
 
 sages from it, to show that defendant v. Wise, 4 T. R. 366; Cannell v. 
 
 was the aggressor in the controversy Curtis, 2 Bing. N. C. 228 ; Smith v. 
 
 which lead to its publication. Taylor, i Bos. & Pul. N. R. 196; 
 
 (Kearney I/. Gough, 5 Gill & Johns. Rutherford v. Evans, 6 Bing. 451.) 
 
 457.) It is presumed he was duly licensed or 
 
 2 Wakley v. Healey, 18 Law Jour. qualified. (See § 183 and note to 
 
 Rep. 426, Ex.; 13 Law Times, 259; 4 § 302, ante:) 
 Ex. 53. The general issue admits the 
 
646 
 
 EVIDENCE FOR PLAINTIFF. 
 
 [CH. XVI. 
 
 in an action for slander or libel the reputation of the 
 plaintiff is in issue, it is nevertheless true that, as a general 
 rule, the reputation of the plaintiff is assumed to be good 
 until the contrary is shown (§§ 313, 314); and that, unless 
 some blot upon the plaintiff 's reputation is set up as a mit- 
 igating circumstance, or his reputation is otherwise assailed, 
 he is not permitted for any purpose to introduce any evi- 
 dence on the subject ; thus, it has been held that evidence 
 cannot be given of the fairness of the plaintiff 's character 
 (reputation), even where a justification is pleaded, unless 
 attacked by the defendant.^ But held, also, that where 
 the general issue only is pleaded, the plaintiff may give 
 evidence of his good character.^ In slander for the charge 
 of perjury, where the plaintiff is permitted to give evidence 
 of his character to protect himself, it is error to confine 
 him to evidence of his general character for truth and 
 veracity.* A witness called by the plaintiff in an action of 
 
 » Shipman v. Burrows, i Hall, 
 399; Harcourt v. Harrison, i Hall, 
 474; Cornwall v. Richardson, I Ry. 
 
 6 M. 305 ; I C. & Y. 106 ; Severance 
 V. Hilton, 4 Foster, 147 ; McGee v. 
 Sodusky, 5 J. J. Marsh, 185; Inman v. 
 Foster, 8 Wend. 602 ; Dame v. Ken- 
 ney, 5 Fost. 318; Petrie v. Rose, ; 
 Watts & Serg. 364 ; HoUey v. Bur- 
 gess, 9 Ala. 728 ; Harbison v. Shook, 
 41 111. 142; Wright V. Shroeder, 2 
 Curtis C. C. 548 ; Martin v. Hooker, 
 
 7 Coldw. (Tenn.) 130; Chubb v. Gsell, 
 34 Penn. St. R. 114; Miles v. Van 
 Horn, 17 Ind. 245; Haunz/. Wilson, 
 28 Ind. 296; and see Rhodes z/. James, 
 7 Ala. 574 ; Rector v. Smith, 1 1 Iowa, 
 302 ; Tibbs v. Brown, 2 Grant's Cases 
 (Penn.), 39; Flittcraft v. Jenks, 3 
 Whart. 158; McCabe v. Platter, 6 
 Blackf. 405 ; contra, Scott v. Peebles, 
 2 Sm. & M. 546 ; Byrket v. Monohon, 
 7 Blackf. 83; Adams v. Lawson, 17 
 Gratt. 250; Shroyer v. Miller, 3 W. 
 Va. 1 58 ; Romayne v. Duane, 3 Wash. 
 C. C. 246 ; Hitchcock v. Moore, 37 
 No. West. Rep. 914. It is not com- 
 petent for plaintiff to make proof of his 
 good character, in reply to evidence of 
 
 the truth of the charge. (Houghtal- 
 ing V. Kilderhouse, i N. Y. 530; 
 affi'g 2 Barb. 149; Matthews v. Hunt- 
 ley, 9 N. Hamp. 146; Springstein v. 
 Field, Anthon, 252; Her v. Cromer, 
 Wright, 441 ; Stow v. Converse, 3 
 Conn. 325.) Where the charge is 
 such that defendant's evidence in jus- 
 tification, though insufficient to prove 
 it, has a tendency to affect the general 
 character of plaintiff, on the subject of 
 the charge, he may reply by evidence 
 of general good character in that par- 
 ticular. (Wright -v. Shroeder, 2 
 Curtis C. C. 548.) 
 
 2 Williams v. Greenwade, 3 Dana, 
 432; King V. Waring, ; Esp. Cas. 14; 
 Bennett v. Hyde, 6 Conn. 24; 
 Romayne v. Duane, 3 Wash. C. C. 
 246 ; Sample v. Wynn, Busbee Law 
 (N. Car.), 319 ; Howell v. Howell, 10 
 Ired. 82 ; Burton v. March, 6 Jones 
 Law (N. Car.), 409; Williams v. Haig, 
 3 Rich. (So. Car.) 362; Shroyer v. 
 Miller, 3 W. Va. 158. 
 
 ' Steinman v. McWilliams, 6 Barr, 
 170. Where the charge was that the 
 plaintiff, a governess, was a person of 
 bad temper, she was allowed to give 
 
§ 388.] 
 
 PROOF OF MALICE, 
 
 647 
 
 slander, in support of the plaintiff's general character, 
 stated that some persons spoke very ill and some very well 
 of him. Held, that the plaintiff might ask the witness in 
 what particular some people spoke against him.^ 
 
 § 388. Where the language is actionable and the pub- 
 lication does not appear to be on any occasion which 
 renders it privileged, there the language is presumed to be 
 false and malicious, z. e., published without lawful excuse, 
 and no other evidence of malice is necessary.* But where 
 the publication '\s prima facie privileged, the onus of prov- 
 ing malice in fact, i. e., that the defendant was actuated by 
 motives of personal spite or ill-will, is upon the plaintiff.^ 
 The existence or non-existence of this intent is a question 
 for the jury.* " The want of proof on the part of the de- 
 
 general evidence as to her temper. 
 (Fountain v. Boodle, 3 Q. B. Rep. 5.) 
 
 1 Leonardo. Allen, 11 Cush. 241. 
 Plaintiff cannot show he was less 
 esteemed by a particular person. 
 (Crosby v. Cobb, 3 How. Pr. R. N. S. 
 
 37-) 
 
 2 Fry V. Bennett, 5 Sandf . 54 ; 
 Sanderson v. Caldwell, 45 N. Y. 398 ; 
 Wilson V. Noonan, 35 Wis. 321 ; Estes 
 ■z/. Antrobus, i Mo. 197; McKee v. 
 Ingalls, 4 Scam. 30; Parke z/. Blackis- 
 ton, 3 Harring. 373 ; Kinney v. Hosea, 
 Id. 397 ; Farley v. Ranck, 3 Watts & 
 Serg. 554; Erwin v. Sumrow, i 
 Hawks, 472; Dexter v. Spear, 4 
 Mason, 115; Bodwell v. Osgood, 3 
 Pick. 379; Weaver v. Hendrick, 30 
 Mo. (9 Jones), 502 ; Roberts v. Cam- 
 den, 9 East, 93; Usher v. Severance, 
 20 Me. 9 ; Yates v. Reed, 4 Blackf. 
 463 ; Gilmer z-. Eubank, 13 111. 271; 
 Root V. King, 7 Cow. 613; affi'd 4 
 Wend. 113; Trabue v. Mays, 3 Dana, 
 138 ; Byrket v. Monohon, 7 Blackf. 
 83; Hudson V. Garner, 22 Mo. (i 
 Jones), 423; Curtis v. Mussey, 6 
 Gray, 261 ; Gabe -v. McGinness, 68 
 Ind. 538. The jury cannot infer the 
 want of malice from the fact that the 
 words were spoken only once, and 
 stated as a common report. (Mason 
 V. Mason, 4 N. Hamp. no; %Ti,ante.) 
 The question of malice should not be 
 left to the jury unless the occasion be 
 
 privileged. (Barr v. Moore, 87 Pa. St. 
 385; Neeb v. Hope, 2 Central Re- 
 porter, 72; III Penn. St. 145. The 
 legal inference of malice cannot be 
 rebutted by evidence. (Scranton v. 
 Chase, 4 Law Times, N. S. 17 [Pa.].) 
 By statute in California malice is not 
 to be inferred from the fact of publica- 
 tion. (Sesler v. Montgomery, 19 Pac. 
 Rep. 686 [Cal.].) In Massachusetts, 
 Maine, and Connecticut, by statute, in 
 an action for libel, defendant may give 
 evidence of intention, and unless 
 plaintiff prove malice in fact, he can 
 recover nothing but his actual damage 
 proved and specially alleged in his 
 declaration. (See Moore v. Stevenson, 
 27 Conn. 14; Hotchkiss v. Porter, 30 
 Conn. 414.) Where the words are 
 actionable /i?r se, no evidence need be 
 given of actual damages to the char- 
 acter, nor of the mental sufferings of 
 the plaintiff. (Boldt v. Budwig, 19 
 Neb. 739 ; Brooks v. Dutcher, 22 Neb. 
 644.) 
 
 » Clark V. Molyneaux, L. R. 3 Q. B. 
 D. 237 ; Erberz/. Dun, 12 Fed.Rep. 526. 
 To rebut privilege and show malice, 
 plaintiff may introduce a letter written 
 by defendant two years later contain- 
 ing similar charges. (Austin v. Rem- 
 ington, 46 Conn. 117; and see Mielenz 
 ■u. Quasdorf, 68 Iowa, 726.) 
 
 * Pattison v. Jones, 8 B. & C. 578 ; 
 3 M. & R. loi ; Bromage v. Prosser, 
 
648 
 
 EVIDENCE FOR PLAINTIFF. 
 
 [CH. XVI. 
 
 fendant that the slander was true, is not enough (to prove 
 malice), and (where the publication is conditionally privi- 
 leged) the plaintiff, to maintain his action, must show that 
 the charge was false, before he can ask the jury to find the 
 slander to be malicious."^ 
 
 § 389. It is said that falsehood may be evidence of 
 malice.* But the mere falsity of a publication, without its 
 being shown that the publisher knew it to be false, is not 
 per se evidence of malice.' Thus, where the alleged libel 
 was a complaint made by the defendant of the incompe- 
 tency of the plaintiff, a surveyer, who had been sent to him 
 
 4B. & C. 247; 6 Dow. & R. 296; 
 Child V. Affleck, 9 B. & C. 403; 
 Kelly V. Partington, 4 B. & Ad. 700; 
 
 3 N. & M. 1 16; Toogood V. Spyring, 
 
 4 Tyrw. 582 ; i C. M. & R. i8i ; Kine 
 V. Sewell, 3 M. & W. 297 ; Wright v. 
 Woodgate, 2 C. M. & R. 573 ; Tyrw. 
 & G. 12; Liddle v. Hodges, 2 Bosw. 
 537 ; Somerville v. Hawkins, 10 C. B. 
 583 ; 1 5 Jurist, 450. The question of 
 malice is for the jury to determine, 
 upon all the facts and conversations 
 in connection with which the words 
 were spoken. (McKee v. Ingalls, 4 
 Scam. 30; Erwin v. Sumrow, i 
 Hawks, 472; Smith v. Youmans, 
 Riley, 88 ; Robinson ij. May, 2 J. P. 
 Smith, 3 ; Roberts v. Camden, 9 East, 
 93 ; Coleman v. Playsted, 36 Barb. 26 ; 
 People V. Seaman, 6 N. Y. St. Rep. 
 765.) Where the charge was that the 
 conduct of plaintiff was "most dis- 
 graceful and dishonest. " The con- 
 duct of plaintiff was of an equivocal 
 nature, and might bona fide be sup- 
 posed by defendant to be such as he 
 described it, held, not of itself evi- 
 dence of malice, and the court did 
 right to order a verdict for the defend- 
 ant. (Spill V. Maule, Law Rep. 4 Ex. 
 232.) Where there is evidence from 
 which the jury may find that defend- 
 ant knew the charge to be untrue, 
 defendant must disprove malice. The 
 knowledge of its untruth is some evi- 
 dence of mahce. (Hartwell v. Vesey, 
 3 Law Times, N. S. 275.) In judging 
 of the malicious character of an alleged 
 
 libel, the jury may take into consider- 
 ation the whole publication ; and if it 
 contains statements concerning other 
 persons, which are malicious, the jury 
 may infer therefrom that what is said 
 of plaintiff is also malicious. (Miller 
 V. Butler, 6 Cush. 71, and see Caddy 
 V. Barlow, i M. & R. 275 ; § 399, post:) 
 
 ^ Fowles V. Bowen, 30 N. Y. 26; 
 and see Edwards v. Chandler, 14 
 Mich. 471 ; Rogers v. Clifton, 3 B. & 
 P. 587 ; Mosier v. StoU, 20 No. East. 
 Rep. 752 (Ind.) " Man," says Chan- 
 ning, "is not accountable for the 
 rigktness, but he is accountable for 
 the uprightness of his views.'' 
 
 2 Fairman v. Ives, 5 B. & Aid. 
 645 ; Palmer v. Hummerston, i C. & 
 E. 36. Where part of a defamatory 
 publication is shown to be true, the 
 falsehood of the other part may be left 
 to the jury as evidence of malice. 
 (Blagg V. Sturt, 10 Q. B. 899; 8 Law 
 Times, 135; Hinman v. Hare, 6 Cent. 
 Rep. 44; ante, note 2, p. 399.) A lie 
 is never privileged. It always has 
 malice coiled up within it. When a 
 man coins and utters a lie, or repeats 
 it knowing it to be false, the law im- 
 phes malice. (Briggs v. Garrett, 1 1 1 
 Penn. St. 404.) In Samuels v. Even. 
 Mail Asso. (75 N. Y, 604; rev'g S. C. 
 9 Hun, 288), it was held that proof of 
 falsity was sufficient evidence of malice 
 to sustain a verdict for exemplary 
 damages. 
 
 ^ Kent V. Bongartz, 15 R. I. 22. 
 
§ 390-] TO AGGRAVATE DAMAGES. 649 
 
 for employment, and the innuendo charged that the de- 
 fendant meant that the plaintiff was not a competent and 
 skillful surveyor, held, that evidence of general competency 
 and abilities of the plaintiff was inadmissible to show 
 malice.^ Making a statement which is untrue to the 
 knowledge of the party making it, is evidence of malice.* 
 On the trial of an action for slander, the plaintiff's wit- 
 nesses proved that the slanderous statements were untrue 
 in fact, but also that they were the natural and reasonable 
 inferences from what took place, and which they professed 
 to describe, and that the defendant was present at the 
 occurrence to which the slanderous statements referred. 
 The judge ruled that the occasion was privileged, but that 
 the plaintiff must have a verdict unless the defendant 
 proved that the statements were made without malice. 
 Held, a right direction ; the presence of the defendant 
 being some evidence that the statements were made with 
 a knowledge that they were untrue.^ To show that the 
 defendant knew of the falsity of a charge of theft pub- 
 lished by him, the plaintiff was permitted to prove that 
 after the time when the theft was alleged to have been 
 committed by plaintiff, the defendant continued upon 
 friendly terms with plaintiff.* 
 
 § 390. The plaintiff may prove, in aggravation of 
 the damages, his rank and condition in society,^ malice 
 
 ' Brine v. Bazalgette, 3 Ex. Rep. N. S. 275. In slander, with general 
 
 692; 18 Law Jour. Rep. 348, Ex.; issue only pleaded, plaintiff cannot, in 
 
 Caulfield v. Whitworth, 18 Law the first instance, give evidence tend- 
 
 Times, N. S. 527. Defendant's ing to prove defendant's knowledge 
 
 knowledge of the falsity of the charge of the falsity of the words spoken. 
 
 ~may be shown. (People v. Sherman, (Hartranft v. Hesser, 34 Penn. St. R. 
 
 103N. Y. 513.) II7-) „ ,. ^ T 
 
 " Fountain v. Boodle, 5 Q. B. 5 ; * Burton v. March, 6 Jones Law 
 
 Harris v. Thompson, 13 C. B. 333; (N. Car.), 409- ^^ , , , 
 
 Sexton V. Brock, 15 Ark. 345; Farley » Tillotson v. Cheetham, 3 Johns. 
 
 V. Ranck. 3 Watts & Serg 554; Har- 56; Hosley v. Brooks, 20 111. 115; 
 
 wood z/. Keech, 6 Sup. Ct. Rep. (T. & Lamed v. Buffinton, 3 Mass. 546; 
 
 O 66i;- 4 Hun, 389; Locke v. Brad- Bodwell v. Swan, 3 Pick. 376; Howe 
 
 street CoT»22 Fed. Rep. 771 (Minn.), v. Perry, 15 Pick. 506; Smith v. Love- 
 
 » Hartwell •z'. Vesey, 3 Law Times, lace, i Duvall (Ky.), 215; Justice v. 
 
650 
 
 EVIDENCE FOR PLAINTIFF. 
 
 [CH. XVI. 
 
 (ill-will) in defendant (§ 392, posf), that defendant knew 
 the charge to be false/ other publication, of words not 
 actionable^ or which are actionable,^ if, as is said, the 
 right of action on such words is barred by the statute of 
 limitations,* and subsequent defamatory remarks upon the 
 plaintiff,* and after the commencement of the action.* In 
 slander of a physician in his profession, the currency of 
 
 Kirlin, 17 Ind. 588 ; Peltier v. Mict, 
 50 111. 511; Klumph V. Dunn, 66 
 Penn. St. R. 141 ; contra, see Reeves 
 ■V. Winn, 97 No. Car. 246; Gandy 
 ■V. Humphries, 35 Ala. 617. Unless 
 where mitigating facts are pleaded. 
 (Blanchard v. Tulip, 3 Hun, 638.) 
 Plaintiff cannot give evidence of his 
 poverty in aggravation. (Perrine v. 
 Winter, 73 Iowa, 645.) 
 
 1 Bullock V. Cloyes, 4 Vt. 304; 
 Stow V. Converse, 3 Conn. 325 ; ante, 
 
 §389- 
 
 2 Allensworth v. Coleman, 5 Dana, 
 315; The State n. Riggs, 39 Conn. 
 498 ; Simonds v. Carter, 32 N. H. 458 ; 
 Rosenwald z/. Hammerstein, 12 Daly, 
 377. Slanderous words, not laid in 
 the declaration, cannot be proved in 
 aggravation of damages. (Vincent v. 
 Dixon, 5 Ind. [Porter], 270; Schenck 
 •u. Schenck, Spencer [20 N. J. L. R.], 
 208; Botelar v. Bell, i Md. 173; 
 Medaugh v. Wright, 27 Ind. 137; 
 tost, % 394.) 
 
 " Lee z/. Huson.Peake, 166; Bond 
 V. Douglas, 7 C. & P. 626 ; but see 
 Cook z/. Field, 3 Esp» 133. 
 
 * Titius V. Sumner, 44 N. Y. 266 ; 
 Brickett V. Davis, 21 Pick. 404; 
 Throgmorton v. Davis, 4 Blackf. 174. 
 But words not laid in the declaration 
 cannot be proved to make the words 
 laid actionable. (Jones v. Jones, i 
 Jones Law [N. Car.], 495.) And 
 where words actionable in themselves, 
 and not set out in the declaration, are 
 admitted in evidence to prove malice, 
 the court must caution the jury that 
 they are not to increase the damages 
 on account of such words. (Letton v. 
 Young, 2 Mete. [Ky.] 558 ; Barrett v. 
 Long, 8 Ir. Law Rep. 331 ; Scott v, 
 McKinnish, 15 Ala. 662; I5urson t/. 
 
 Edwards, i Carter [Ind.], 164 ; see 
 § i9'2i post.) A publication by defend- 
 ant after the commencement of the 
 action cannot be proved to aggravate 
 damages. (Frazier v. McCloskey, 60 
 N. Y. 337.) 
 
 6 Chubb V. Westley, 6 C. & P. 
 436 ; Hanners v. McClelland, 76 Iowa, 
 218; post, §394- Where the words 
 complained of are ambiguous — held 
 that proof of the pubUcation subse- 
 quently of other words of the same 
 import is inadmissible. (Pearce v. 
 Ormsby, i M. & Rob. 455; Symmons 
 V. Blake, Id. 447.) 
 
 » Post, §§ 394, 395 ; Barwell v. Ad- 
 kins, 2 Sc. N. S. II ; Heslere/. Degant, 
 3 Ind. 501 ; Williams v. Harrison, 3 
 Mo. 41 1 ; Scrimper v. Heilman, 24 
 Iowa, 505 ; Kean v. McLaughlin, 2 S. 
 & R. 469; contra. McGlemery v. 
 Keller, 3 Blackf. 488. 
 
 In an action for a libel in a weekly 
 periodical publication, a witness was 
 allowed to prove a purchase of a copy 
 after the action brought. (Plunkett 
 V. Cobbett, 2 Selw. N. P. 1042 ; 5 Esp. 
 136.) If a defendant, after action 
 brought, issues a new publication, 
 minghng the matter for which he has 
 been sued with new libelous matter, 
 he cannot call upon the court to ana- 
 lyze the publication, and separate what 
 refers to the former libel from the new 
 slanderous matters it may contain, 
 but the whole may be read in evidence. 
 (Schenck v. Schenck, Spencer [20 N. 
 J. L. R.], 208.) As to admissibility of 
 proof of repetition to aggravate the 
 damages, see Burson v. Edwards, 1 
 Carter (Ind.), 164; Shoulty v. Miller, 
 Id. 544; Lanter v. McEwen, 8 Blackf. 
 495; Forbes v. Myers, /</. 74; Leon- 
 ard V. Pope, 27 Mich. 145. Repetition 
 
§ 390-] 
 
 TO AGGRAVATE DAMAGES. 
 
 651 
 
 the slanderous report in the place of his practice, following 
 the utterance of the same by the defendant, may be given 
 in evidence, as well as the effect of such report upon the 
 professional gains of the plaintiff, in aggravation of dam- 
 ages, without strict proof connecting the current report 
 with the slander of the defendant ; the fact of such con- 
 nection being for the jury, and not for the court to pass 
 upon.^ A libel charged M. with kidnapping a free colored 
 man, and referred to two numbers of a newspaper which 
 showed the transaction in full. Held, an aggravation of 
 the libel. ^ If the publication was in a newspaper or 
 pamphlet, the plaintiff may, to aggravate the damages, 
 prove the extent of the circulation of that paper at the 
 time of the publication of the alleged libelous matter,^ and 
 
 in another paper. (Vifquaim v. Finch, 
 30 Alb. Law Jour. 398 ; 15 Neb. 505.) 
 Proof of a repetition of the words 
 after action commenced not permis- 
 sible. (Frazier v. McCloskey, 60 N. 
 Y. 337 ; 2 Sup. Ct. Rep. TT. & C] 
 266.) 
 
 1 Rice V. Cottrel, 5 R- I. 340. In 
 Hotchkiss v. Lothrop (i Johns. 286 ; 
 Dole V. Lyon, 10 Johns. 447), doubted 
 if defendant being indemnified was 
 not admissible in aggravation. Sem- 
 ble not, as indemnity void. (Ante, § 
 305.) Where plaintiff in an action 
 for a libel chargfing her with theft, 
 published in a newspaper, had alleged 
 as special damage that in consequence 
 of said libel she had been discharged 
 from the employment of one W., on 
 the trial plaintiff offered evidence that 
 a few days after the publication of the 
 libel, W. had said to her that there 
 were flying reports in the newspapers 
 about her and her sister, and that it 
 would injure his shop to have such 
 girls there, and had thereupon dis- 
 charged them — held that such evi- 
 dence was admissible in support of 
 the allegation of special damage, 
 although there was no evidence either 
 that W. had seen the publication in 
 question, or as to what reports and 
 what newspapers he referred to. 
 
 (Moore v. Stevenson, 27 Conn. 14.) 
 Plaintiff cannot give in evidence to 
 enhance damages that detectives put 
 his name in their books, without show- 
 ing that defendant was connected with 
 such act of the detectives. (Garvey 
 V. Wayson, 42 Md. 178.) Hoey v. 
 Felton(ii C. B. N. S. 142) was an 
 action for false imprisonment with 
 special damage. The special damage 
 attempted to be proved was that if 
 plaintiff had attended at a certain 
 place at a certain time he could have 
 obtained employment ; that by reason 
 of the imprisonment he felt too unwell 
 to attend at said place and time, and 
 thereby lost the opportunity of being 
 employed— held too remote. 
 
 2 Nash V. Benedict, 25 Wend. 645. 
 
 ' Bigelow V. Sprague, 140 Mass. 
 425. Evidence that various per- 
 sons called plaintiff's attention 
 to the hbelous publication is ad- 
 missible as showing the extent to 
 which the public has taken notice of 
 the article. (Park -v. Detroit Free 
 Press Co. 40 No. West. Rep. 731 
 [Mich.].) But evidence of republica- 
 tion of the alleged libel in another 
 journal is not admissible. (Vifquaim 
 V. Finch, 30 Alb. Law Jour. 398 
 [Neb.].) When general damages only 
 are claimed, plaintiff cannot show he 
 
652 
 
 EVIDENCE FOR PLAINTIFF. 
 
 [CH. XV 
 
 to prove this, may give a copy of the defendant's paper i 
 evidence containing a statement of the amount of circi 
 lation.^ 
 
 § 391. The plaintiff, to aggravate damages, cannc 
 prove the defendant's wealth," nor that it was currentl 
 reported that defendant had charged the plaintiff with th 
 crime mentioned in the declaration,* nor that the defen( 
 ant, when requested, refused to give the name of th 
 author of the alleged defamatory language.* Plaintiff ma 
 give evidence of distress of mind in aggravation,® or th< 
 he has a family,* or the nature of his business,'' and, 
 charged with having been sued for breach of promise, ma 
 show he is a married man,^ and held that plaintiff ma 
 show his condition in life, not merely from a pecuniar 
 standpoint, but as to family and connection, as bearin 
 upon the question of damages.® 
 
 was less esteemed by any particular 
 person. (Crosley v. Cobb, 3 How. Pr. 
 R. N. S. 39.) Proof of the existence of a 
 rumor in the neighborhood in reference 
 to plaintiff is not admissible on his 
 behalf to increase his damages. 
 (Prime V. Eastwood, 45 Iowa, 640.) 
 
 > Fry V. Bennett, 28 N. Y. 330. 
 
 " Myers v. Malcolm, 6 Hill, 292; 
 Ware v. Cartledge, 24 Ala. 622 ; 
 Palmer v. Haskins, 28 Barb, go; 
 Austin V. Bacon, 19 N. Y. St. Rep. 
 662; Morris v. Barker, 4 Harring. 
 520 ; but see Fry v. Bennett, 4 Duer, 
 247 ; Buckley v. Knapp, 48 Mo. 1 52 ; 
 Bennett u. Hyde, 6 Conn. 24; Case 
 V. Marks, 20 Conn. 248 ; Rose- 
 water V. Hoffman, 24 Neb. 222; 
 Adcock V. Marsh, 8 Ired. 360 ; 
 Kamey v. Paisley, 13 Iowa (5 
 With.), 8g ; Humphries v. Parker, 52 
 Maine, 502; Stanwood v. Whitmore, 
 63 Id. 209 ; Hosley v. Brooks, 20 111. 
 115; Harbison v. Shook, 41 111. 142; 
 Lewis V. Chapman, 19 Barb. 252; 
 Kunkel v. Markell, 26 Md. 391 ; 
 Storey v. Earley, 86 111. 461 : contra, 
 Herzman v. Oberfelder, 54 Iowa, 83 ; 
 Perrine v. Winter, 73 Iowa, 645 ; 
 
 Young V. Kuhn, 9 So. West. Re 
 860 (Texas) ; contra. Reeves v. Win 
 97 No. Car. 246 ; Bowden v. Bailes, 11 
 No. Car. 612; Barkly v. Copeland, ; 
 Cal. I ; Brown v. Barnes, 39 Mich. 21 
 and note thereto, 33 Amer. Rep. ; Ha 
 ner v. Cowden, 27 Ohio St. 292 ; Hu 
 , V. R. R. Co. 26 Iowa, 366 ; Lamed 
 Buffington, 3 Mass. 546. 
 
 ^ Leonard v. Allen, 11 Cus 
 (Mass.) 241. 
 
 * Harie v. Catherall, 14 Law Tim( 
 N. S. 801. 
 
 ' Terwilliger v. Wands, 17 N. 
 54 : Wilson v. Goit, Id. 442 ; contr 
 Burk V. McBain, 29 Mich. 260; Sw 
 V. Dickerman, 31 Conn. 285; Ches) 
 V. Thompson, 137 Mass. 136; Trell 
 V. Butter, 15 Bradw. (111.) 209; Rea 
 Harrington, 58 Vt. 81; a«/^, note i, 
 39 : and p. 520, note 5. 
 
 ' Rhodes v. Naglee, 66 Cal. 677. 
 
 ' Reeves v. Winn, 97 No. C; 
 246. 
 
 ' Morey v. Morn. Jour. 17 N. 
 St. Rep. 266. 
 
 « Dixon V. Allen, 69 Cal. 5: 
 Smith V. Cook, i Alb. L J. 162. 
 
392-] 
 
 PROOF OF MALICE. 
 
 653 
 
 § 392- The plaintiff may prove express malice — i. e., 
 ill-will or hostility on the part of the defendant towards the 
 plaintiff — either to aggravate the damages ^ or to defeat a 
 defense of privileged publication.^ To establish such 
 malice, the plaintiff may, it is held, in some cases, give in 
 evidence other publications by the defendant of defamatory 
 language concerning the plaintiff, whether it be the same 
 as or other than the language declared upon if of the like 
 import.^ But the better opinion appears to be, that evi- 
 
 ' Fry V. Bennett, 28 N. Y. 330; 
 True V. Plumley, 36 Maine (i Heath), 
 466; Sawyer v. Hopkins, 9 Shep. 268; 
 Jellison v. Goodwin, 43 Maine, 287 ; 2 
 Greenl. Ev. § 418; Shilling v. Carson, 
 27 Md. 175. Until some of the action- 
 able words laid have been proved, 
 evidence of the quo animo of the de- 
 fendant is inadmissible. (Abrams v. 
 Smith, 8 Blackf. 95.) Where a news- 
 paper is conducted by a partnership, 
 the malice of one partner is imputable 
 to his co-partners, although a statute 
 exacts proof of actual malice. (Lothrop 
 V. Adams, 133 Mass. 471.) Defend- 
 ant is not responsible for the malice of 
 the person who supplied him with the 
 statement complained of, such person 
 not being his servant. (Bradley v. 
 Cramer, 66 Wis. 297.) Where due^ 
 caution is exercised in employment 
 of editors, the proprietor of a paper 
 who took no part in the publication is 
 not responsible in punitive damages 
 for the acts of such editor. (McAr- 
 thur V. Detroit Daily Post Co. 16 
 Mich. 447 ; Reilly v. Scripps, 38 Mich. 
 10.) 
 
 2 Babonneau v. Farrell, 15 C. B. 
 360; 24 Law Jour. Rep. N. S. 9 C. P. ; 
 I Jur. N. S. 14; Littlejohn v. Greeley, 
 13 Abb. Pr. Rep. 41 ; Suydam v. 
 Moffat, I Sandf. 459; Root v. King, 4 
 Wend. 113; Garrett v. Dickerson, 19 
 Md. 418; see Holt v. Parsons, 23 
 Texas, 9; Bowden v. Bailes, loi 
 No. Car. 612. It is no objection to a 
 recovery for the slanderous words 
 charged, that the publication of the 
 same words has been proved against 
 defendant in a former action between 
 
 the same parties, for the purpose of 
 proving malice. (Swift v. Dickerman, 
 31 Conn. 285; Campbell v. Butts, 3 
 N. Y. 173.) Where privilege is shown, 
 express malice must be proved, or 
 plaintiff will be nonsuited. (Caulfield 
 V. Whitworth, i6 Weekly Rep. 936.) 
 ' Burson v. Edwards, i Carter 
 (Ind.), 164; Pearce v. LeMaitre, 6 Sc. 
 N. C. 607; 5 Man. & G. 700; Dele- 
 gall V. Highley, 8 C. & P. 444; Elliott 
 V. Boyles, 31 Penn. St. R. 65; The 
 State V. Jeandell, 5 Harring. 475; 
 Price V. Wall, 2 Quart. Law Jour. 63 ; 
 Cavenagh v. Austin, 42 Vt. 576; 
 Johnson v. Brown, 57 Barb. 118; 
 Meyer v. Bohlting, 44 Ind. 238 ; Clapp 
 V. Devlin, 35 Superior Ct. Rep. (3 J. 
 & S.) 170; Alpin V. Morton, 21 Ohio 
 St. 536; Prime !». Eastwood, 45 Iowa, 
 640; Knapp V. Fuller, 55 Vt. 311. 
 Proof may be given of the publication 
 of other words of hke import. 
 (Thompson v. Bowers, i Doug. 
 [Mich.] 321 ; Stearns v. Cox, 17 
 Ohio, 590; Taylor v. Moran, 4 Mete. 
 [Ky.] 127; Rosenwald v. Hammer- 
 stein, 12 Daly, 377.) Extracts from 
 a newspaper, being separate and inde- 
 pendent libels not declared on, may 
 be offered in evidence to prove ex- 
 press malice, or as showing the quo 
 animo; such words cannot be made 
 the foundation of a recovery of dam- 
 ages for an injury plaintiff may have 
 suffered from them, but can only 
 affect the damages by showing the 
 degree of malice. (Van Derveer v. 
 Sutphin, 5 Ohio, N. S. 293 ; Markham 
 V. Russell, 12 Allen [Mass.], 573; see 
 Cheritree v. Roggen, 67 Barb. 124.) 
 
654 
 
 EVIDENCE FOR PLAINTIFF. 
 
 [CH. XVI, 
 
 dence of a charge of a different nature^ and at a different 
 time from that alleged in the declaration, is inadmissible to 
 prove malice or for any purpose.' This is in effect only 
 another form of the rule that actionable words not counted 
 upon cannot be given in evidence,^ unless a suit upon them 
 is barred by the statute of limitations,* and their admission, 
 where the statute has run, is opposed to principle, as it in 
 effect restores a cause of action which has been taken away 
 by the law.* It seems clear that a repetition by the de- 
 fendant of the defamatory matter complained of is admis- 
 sible to prove malice in fact,® and it is said that within this 
 rule any act or language of the defendant tending to show 
 malice beyond that implied by the original publication, the 
 subject of the action, may be proved.^ 
 
 1 Howard v. Sexton, 4 N. Y. 1 57. 
 Although in slander plaintiff, to prove 
 the animus, may show a repetition of 
 the words, or of such as show the 
 same train of thought, yet he cannot 
 give in evidence other words which 
 may be the subject of another action ; 
 held, also, that it appearing that 
 plaintiff had recovered in another 
 action against the defendant's son, 
 what passed after the verdict, by way 
 of proposal to compromise the second 
 action was admissible to show that it 
 was not vexatiously prosecuted. (De- 
 fries V. Davis, 7 C. & P. 112.) 
 
 « Rundell v. Butler, 7 Barb. 260 ; 
 Mead v. Daubigny, Peake, 125; and 
 see Campbell v. Butts, 3 N. Y. 173; 
 Keenholts v. Becker, 3 Denio, 346; 
 Thomas v. Croswell, 7 Johns. 264; 
 contra, Duvall v. Griffith, 2 Har. & 
 Gill, 30; Scott V. McKinnish, 15 Ala. 
 662; Long V. Chubb, ; C. & P. 55; 
 Bartow v. Brands, 3 Green (N. J.), 248 ; 
 Brittain v. Allen, 2 Dev. 120; 3 Dev. 
 167. In Stern v. Lowenthal {yj 
 Cal. 340), Sharpstein, J., after citing 
 § 392 of Townshend on Slander, 
 says: " In that view of the question 
 we concur." 
 
 2 Inman v. Foster, 8 Wend. 602 ; 
 Throgmorton v. Davis, 4 Blackf. 
 174; Flamingham 2/. Boucher, Wright, 
 746; see, also, Lincoln v. Chrisman, 
 
 10 Leigh, 338; Ev'g Jour. Asso. w. 
 McDermott, 15 Vroom, 430. In an 
 action of slander for words imputing 
 perjury, an affidavit of defendant, on 
 which an indictment had been pre- 
 ferred, and which had been made so 
 long before as to be barred by the 
 statute of limitations, charging plaint- 
 iff with the same perjury set out in the 
 declaration, is admissible in evidence 
 as proof of the repetition of the same 
 words in a different form, and with 
 more deliberation, and to show the 
 quo animo. (Randall v. Holsenbake, 
 3 Hill [S. Car.], 175.) 
 
 * Rootz/. Lowndes, 6 Hill, 518. 
 
 ' Even. Jour. Asso. v. McDermott, 
 44 N. J. Law, 430; Fahri'. Hayes, jo 
 N. J. L. R. 275; Halley v. Gregg, 76 
 Iowa, 563; Knapp v. Fuller, 55 Vt. 
 311 ; Barwell v. Adkins, i Man. & G. 
 807 ; Behee v. Mo. Pac. R. R. 9 So. 
 West. Rep. 449. 
 
 » Fry V. Bennett, 28 N. Y. 328 ; 
 Johnson v. Brown, 57 Barb. 118. 
 Damages recovered for previous slan- 
 der may be given in evidence to show 
 malice. (Symmons v. Blake, I M. & 
 Rob. 477.) Where, in slander, plaint- 
 iff introduces evidence tending to 
 show that defendant repeated the 
 same words in another conversation, 
 defendant is entitled to the whole of 
 that conversation. (Ferry v. Breed, 
 
§§ 393. 394-] PROOF of malice. 655 
 
 § 393. In an action for libel, the defendant pleaded the 
 general issue, and also a plea under the 6th & 7th Vict. c. 
 96, denying actual malice, and stating an apology. On the 
 trial, the plaintiff, in order to prove malice, tendered in 
 evidence other publications of the defendant, going back 
 above six years before the publication complained of — 
 held that these publications were admissible in evidence ; ^ 
 but the court should in such a case call attention to the 
 distance of time elapsed before the subsequent statements, 
 and that those statements might have referred to some 
 other and subsequent matter, so as not to show malice at 
 the time of the publication complained of.* 
 
 § 394. A plaintiff may, to prove malice, give evidence 
 of a publication by the defendant made subsequently to 
 the publication declared upon, when the subsequent pub- 
 lication is of a like import with that declared upon, or 
 relating thereto, or is not actionable of itself, or explains 
 any ambiguity in the matter declared upon.* And in an 
 
 117 Mass. 155.) Plaintiff is not lim- * Barrett v. Long, 3 Ho. of Lords 
 ited to proof of the speaking on the Cas. 395; 8 Ir. Law Rep. 331; Ad- 
 occasion alleged in the complaint, but kins v. Williams, 23 Ga. 222. 
 may, for the purpose of showing the * Hemmings v. Gasson, 27 Law 
 motives of defendant and the extent of Jour. Rep. 252 (Q. B.) ; I El. B. & E. 
 the injury, show that defendant 346. 
 
 repeated substantially the same charge ^ Pearce v. Ornsby, i M. & Rob. 
 
 on other occasions, at any time before 455; Mixz/. Woodward, 12 Conn. 262; 
 
 the commencement of the action. Williams z/. Miner, 18 /rf. 464; Sym- 
 
 (Distin V. Rose, 69 N. Y. 85; aff'g S. mons v. Blake, i M. & Rob. 477; 
 
 C. 7 Hun, 83; to the like effect see, Baldwin z/. Soule, 6 Gray, 321 ; Shock 
 
 The State w. Riggs, 37 Conn. 498-503; v. McChesney, 2 Yeates, 473; Smith 
 
 Reitan v. Goebel, 33 Minn. 151; v. Wyman, 4 Shep. 13; Howard ^z. 
 
 Gribble z/. Pioneer Press Co. 34 Minn. Sexton, 4 N. Y. 157; Kendall v. 
 
 342 ; Larrabee v. Minn. Tribune Co. Stone, 2 Sandf. 269 ; Kennedy v. Gif- 
 
 36 Minn. 141; Halley v. Gregg, 76 ford, 19 W^end. 296; Frazier v. Mc- 
 
 lowa, 563. Ward v. Dick, 47 Conn. Closkey, 60 N. Y. 337 ; Miller v. Kerr, 
 
 300; Flanders w. Groff, 25 Hun, 553; 2 McCord. 285; Pearce v. LeMaitre, 
 
 Younger v. Duffin, 26 Hun, 442 ; 6 Sc. N. C. 607 ; 5 Man. & G. 700 ; 
 
 Cornell v. Day, 18 Week. Dig. 97; Chubb v. Westley, 6 Car. & P. 436; 
 
 Cruikshank v, Gordon, 48 Hun, 308; Shrimper ?/. Heilman, 24 Iowa, 505; 
 
 Schremperi/. Heilman, 24 Iowa, 505.) Robbins v. Fletcher, loi Mass. uj; 
 
 Proof of repetition since commence- Ellis v. Lindley, 38 Iowa, 461 ; Hans- 
 
 ment of action not admissible, brough v. Stinnett, 25 Gratt. (Va.) 
 
 (Holmes v. Brown, Kerby, 151 ; Barr 495; see Saunders v. Baxter, 6 Heisk. 
 
 2/. Moore, 87 Penn. St. 385.) (Tenn.) 369; Rea v. Harnngton, 
 
656 EVIDENCE FOR PLAINTIFF. [CH. XVI. 
 
 action for words imputing perjury, the plaintiff was allowed, 
 for the purpose of showing the quo animo, to give in 
 evidence an indictment subsequently preferred by the de- 
 fendant against him, and which was ignored.^ But in an 
 action of slander, for charging the plaintiff with stealing 
 two beds, it was held not competent for the plaintiff, for 
 the purpose of showing malice, to prove that the defend- 
 ant subsequently entered a complaint against him, before 
 a magistrate, for stealing a lot of wood and old iron ; first, 
 because the words used in the complaint did not relate to 
 the charge which was the subject of the action ; and sec- 
 ondly, because such using of the words was a proceeding 
 in a court of justice, before a magistrate having jurisdiction 
 of the supposed offense.'' 
 
 § 395- The plaintiff may, it seems, to prove malice, 
 give evidence of defamatory publications by the defendant 
 concerning him after the commencement of the action ; 
 but the authorities are conflicting.* In general, what oc- 
 curs after the commencement of the action is inadmissible,* 
 but where the words published led to the arrest of the plaint- 
 iff after the commencement of his action, it was held that 
 the defendant might have excluded all evidence of what 
 took place after the commencement of the action, but 
 having consented to its admission, the jury were at liberty 
 to take it into consideration.® 
 
 § 396. Where evidence of another or other publica- 
 
 58 Vt. 81; Gribble v. Pioneer Press to show the sense in which the words 
 
 Co. 34 Minn. 342. laid were spoken. (Carter v. M'Dowell, 
 
 1 Tate z/. Humphrey, 2 Camp. 73, Wright, 100; and McDonald v. 
 
 note. Murchison, i Dev. 7; centra, Lucas 
 
 s Watson V. Moore, 2 Cush. 133. v. Nichols, 7 Jones Law [N. Car.], 32.) 
 
 » Ante, note 6, p. 650 ; Howell v. Or to show malice. (Sonneborn v. 
 
 Cheatem, Cooke, 247; Scott v. Mont- Bernstein, 49 Ala. 168.) 
 
 singer, 2 Blackf. 454; Teagle v. Deboy, * Styles v. Fuller, loi N. Y. 622. 
 
 8 Blackf. 134; Wame v. Chadwell, 2 5 Goslin v. Corry, 8 Sc. N. S. 21 ; 
 
 Stark. 457. Slanderous words (not 7Man. &G. 343; and see Harrison i/. 
 
 actionable) spoken since the suit was Pearce, i Fos. & Fin. 367 ; see § 390, 
 
 commenced, are admissible in evidence ante. 
 
§§ 397. 398.] PROOF OF MALICE. 657 
 
 tions than that declared upon is admitted for the purpose 
 of showing malice only, the jury should be instructed that 
 it is admitted for that purpose alone, and that they are not 
 to give damages for other than the words charged in the 
 declaration.^ An instruction was given to the jury to the 
 eifect that a letter written by defendant and given in evi- 
 dence by the plaintiff, was admissible only to show malice, 
 and for no other purpose, and that they had a right to award 
 such damages to plaintiffs as they thought them entitled to 
 under all the circumstances proved in the case ; held, that 
 the caution to the jury in respect to the effect of the letter 
 was not sufficient.* 
 
 § 397. Evidence tending to make out an admission by 
 the defendant, subsequently to the speaking of the words, 
 of a dispute existing between him and the plaintiff before 
 the speaking of the words, about a sum of money claimed 
 to be due from the defendant to the plaintiff, is admissible 
 to show express malice.® So to prove malice plaintiff 
 may give evidence tending to show that defendant coveted 
 the possession of plaintiff's land, and hoped by defaming 
 him to compel him to remove ;* but he cannot show that 
 defendant had, by promises of reward and threats of ven- 
 geance, endeavored to prevent the attendance of witnesses 
 for plaintiff.^ 
 
 § 398. In an action of slander for charging an infant 
 with larceny, evidence of a previous quarrel between the 
 defendant and the plaintiff^s father and next friend, is in- 
 
 » Scott V. McKinnish, 1 5 Ala. 662 ; ' Morgan v. Livingston, 2 Rich. 
 
 Barrett v. Long, 8 Ir. Law Rep. 331. 573. 
 
 2 Letton V. Young, 2 Mete. (Ky.") = Kirkaldie v. Paige, 17 Vt. 256; 
 
 558. contra, see Cruikshank v. Gordon, 48 
 
 3 Simpson z/. Robinson, 18 Law Jour. Hun, 308, held proof of an admission 
 
 Rep. 73, Q. B. : 13 Jur. 187. It being by defendant of speaking the alleged 
 
 shown that defendant made a dis- slander. Matter occurring two years 
 
 paraging remark of plaintiff, defendant before to show malice. (Harmon v. 
 
 is entitled to show the circumstances Harmon, 61 Maine, 233.) 
 which provoked such remark. (Hin- 
 man v. Hare, 5 N. Y. St. Rep. 505.) 
 
 42 
 
658 EVIDENCE FOR PLAINTIFF. [cH. XVI. 
 
 admissible to prove malice in the defendant toward the 
 plaintiff.^ In an action against the publisher of the mag- 
 azine in which the libel was published, evidence of per- 
 sonal malice of the editor against the plaintiff was held 
 inadmissible.^ So the refusal of the editor of a news- 
 paper to publish a retraction of the libel was held not to 
 be evidence of malice against the publisher of such news- 
 paper.* On the trial of an action for a libel in a news- 
 paper, it appeared that the defendant employed F. to print 
 the newspaper in question, and that S., one of F.'s work- 
 men, had set up the article in the absence of the defendant 
 and of the editor of the paper ; held that the plaintiff 
 could not ask a witness if he heard S. express any ill-will 
 towards the plaintiff.^ In the same case, it was held that 
 the plaintiff might give in evidence an article published in 
 a subsequent number of the same newspaper, with the de- 
 fendant's knowledge and consent, justifying the pubhca- 
 tion of the article complained of as libelous, though such 
 article was not published until after the action was com- 
 menced. 
 
 § 399. The language itself, whether oral or written, 
 may be evidence of malice, and where the occasion ren- 
 ders the publication prima facie privileged, the jury may 
 take the language into consideration to determine the 
 intent with which the publication was made.® And ex- 
 pressions in excess of what the occasion warrants may be 
 evidence of malice.^ 
 
 ' York V. Pease, 2 Gray, 282. 6 Wright v. Woodgate, 2 C, M. & 
 
 2 Robertson v. Wylde, 2 M. & R. 573; Tyrw. & G. 12; Gilpin -v. 
 
 ^°'^- ' j'' „ -o , Fowler, 9 Ex. 615 ; Cooke v. Wildes, 
 
 » Edsall V. Brooks, 2 Robertson, 5 El. & Bl. 328 ; Jackson v. Hopper- 
 
 414; 33 How. Pr. R. 191 ; Ackerman ton, 16 Com. B. N. S. 829; Spill v. 
 
 V. Jones, 37 Superior Ct. Rep. (5 Maule, Law Rep. 4 Ex. 22,2; ante, 
 
 Jones & S.) 42 ; Bradley v. Cramer, § 288. and last clause of § 241 ; also 
 
 66 Wis. 297; but see Klewin v. Swadling v. Tarpley, in Appendix, 
 
 Banman, 53 Wis. 244. post. 
 
 "Goodrich V. Stone, 11 Mete. M«/£, § 244 *, and § 389 ; Kent z/. 
 
 486. Bongartz, 15 R. I. 22. 
 
§ 400.] 
 
 PROOF OF MALICE. 
 
 659 
 
 § 400. Interposing a justification which the defendant 
 either abandons or fails to prove, may be regarded as an 
 aggravation of the original wrong, and may be taken into 
 consideration by the jury in estimating damages.^ It is 
 evidence of malice,^ and of continued malice.^ In New 
 York it has been supposed that since the Code of Pro- 
 cedure, the rule allowing mitigating circumstances has 
 been changed, and a plea of justification on the ground 
 of truth is not to be considered as an aggravation.* A 
 justification on the ground of truth was held not to be an 
 aggravation of the charge, where the defendant had reason 
 to believe the charge to be true,* or where the plea of 
 
 ' Fero V. Ruscoe, 4 N. Y. 162; 
 Distin V. Rose, 69 N. Y. 1 22 ; Purk v. 
 Catanich, 51 Cal. 420; Wilson w. Rob- 
 inson, 14 Law Jour. Rep. 196, Q. B.; 
 ■9 Jurist, 726 ; Lea v. Robertson, i 
 Stew. 138; Richardson v. Roberts, 23 
 Ga. 215 ; Pool v. Devers, 30 Ala. 672 ; 
 Updegrove v. Zimmerman, 13 Penn. 
 St. R. (i Harris), 619; Gorman v. 
 Sutton, 32 Id. 2^,7 ; Doss v. Jones, 5 
 How. (6 Miss.) 158; Freeman v. 
 Tinsley, 50 111. 497; Robinson v. 
 Drummond, 24 Ala. 174; Beasley v. 
 Meigs, 16 111. 139; Spencer v. Mc- 
 Masters, Id. 405 ; Smith v. Wyman, 
 4Shep. 13; Faucettw. Booth, 31 Up. 
 Can. Q. B. 263; contra. Murphy v. 
 Stout, I Ind. 372; Shoulty v. Miller, 
 Id. 544; Shank v. Case, i Carter 
 (Ind.), 170; Millison v. Sutton, Id. 
 508; Starr v. Harrington, Id. 515 ; 
 and see Swails v. Butcher, 2 Carter, 
 84; Sloan V. Petrie, 15 III. 425; Thomas 
 V. Dunaway, 30 111. 373; Rayner v. 
 Kinney, 14 Ohio, N. S. 283 ; Pallet 
 V. Sargent, 36 New Hamp. 496; 
 Cavanagb v. Austin, 42 Vt. 576; 
 Ransone v. Christian, 49 Ga. 491 ; 
 Decker z/. Gaylord,35 Hun, 584. And 
 by statute in Massachusetts, Illinois, 
 Michigan, Wisconsin and Iowa, a 
 plea of truth is not an aggravation of 
 damages. 
 
 The judge, in addressing the jury, 
 commented upon the fact that the de- 
 fendant had refused, at the trial, to 
 make an apology and withdraw his 
 
 justification, though he gave no evi- 
 dence in support of it, as evidence of 
 malice. Held no misdirection. (Simp- 
 son V. Robinson, 1 1 Law Times, 266 ; 
 18 Law Jour. Rep. 73, Q. B. ; 13 Jur. 
 187; note 3, p. 658.) That the de- 
 fendant procured evidence to prove 
 the truth of his charges, and then de- 
 clined to plead in justification, may be 
 properly referred to the jury on the 
 question of malice, though not on that 
 of damages. (Bodwell v. Osgood, 3 
 Pick. 379.) The defendant endeavor- 
 ing to obtain testimony of the truth of 
 the alleged defamatory matter, is not 
 of itself evidence of malice. (Ormsby 
 V. Douglass, 37 N. Y. 482.) Nor is 
 the fact of pleading a justification, of 
 itself, evidence of malice. (Caulfield 
 V. Whitworth, 18 Law Times, N. S. 
 527.) Efforts of defendant to have 
 plaintiff indicted, may be shown to 
 aggravate damages. (Harbison v. 
 Shook, 41 111. 142.) 
 
 2 Jackson v. Stetson, 1 5 Mass. 48 ; 
 Alderman v. French, i Pick. i. 
 
 " Wilson V. Nations, S Yerg. 211. 
 
 " Klinck V. Colby, 46 N. Y. 427 ; 
 Hawver v. Hawver, 78 111. 412; but 
 see Bennett v. Matthews, 64 Barb. 
 410; Distin V. Rose, 69 N. Y. 122; 
 Cruikshank v. Gordon, 15 N. Y. St. 
 Rep. 897 ; 48 Hun, 308. 
 
 5 Cooper V. Young, 24 Week. Dig. 
 47; Aird v. Freeman's Jour. 10 Daly, 
 254; Ward V. Dick, 47 Conn. 304; 
 Doe V. Doe, 32 Hun, 628 ; Byrkel v. 
 
66o EVIDENCE FOR PLAINTIFF. [CH. XVI. 
 
 truth was so defective that no judgment could have been 
 entered upon it/ or where the plea was withdrawn before 
 the trial.^ Where in an action for libel defendant pleaded 
 not guilty and a justification, he oflFered no proof of the 
 justification, but gave evidence to show that the publica- 
 tion was made under circumstances rendering it a privi- 
 leged communication ; held, that the jury, in forming their 
 opinion (upon the first issue, whether or not the com- 
 munication was privileged), ought not to take into con- 
 sideration the fact that the justification had been pleaded 
 and abandoned.* 
 
 § 401. In an action for a libel, the defendant, to justify 
 a charge made by him against the plaintiff of unfairness 
 and partiality as collector of the United States taxes, 
 proved that the plaintiff had refused to receive bills of a 
 certain bank in payment of a tax. To rebut this evi- 
 dence, the plaintiff offered a letter of instructions to him 
 from the commissioner of the revenue, designating the 
 description of the bills which the plaintiff should receive. 
 It was held that such evidence was admissible as neg- 
 ativing the charge of unfairness and partiality in the 
 plaintiff's conduct.* It was in the same case held that 
 the plaintiff could not repel a charge of partial and un- 
 just conduct, in the exaction of commissions not author- 
 ized by law, by showing that such commissions were taken 
 honestly, through a mistaken construction of the law. 
 
 Monohon, 7 Blackf. 83; and see Bradw. [111.] 214.) In action of libel 
 
 Shoulty V. Miller, i (Carter) Ind. 544. accusing plaintiff of a criminal offense, 
 
 * Braden v. Walker, 8 Humph. 34. plaintiff to rebut evidence of justifica- 
 8 Gilmore v. Borders, 2 How. (3 tion, offered record of his acquittal of 
 
 Miss.) 824. the offense ; held incompetent. (Mc- 
 
 s Wilson V. Robinson, 7 Q. B. 68; Bee v. Fulton, 47 Md. 403; and see 
 
 9 Jurist, 726; 14 Law Jour. N. S. 196, Corbley z/. Wilson, 71 111. 209.) Plaint- 
 
 Q. B. iff in rebuttal may prove his reputa- 
 
 * Stow V. Converse, 3 Conn. 325. tion. (Downey v. Dillon, 52 Ind. 
 Plaintiff may rebut testimony in justi- 442.) 
 
 iication. (Murphy v. Dougherty, lo 
 
CHAPTER XVII. 
 
 EVIDENCE FOR DEFENDANT. 
 
 What evidence is admissible depends upon what plea or 
 answer is interposed — What may be proved under the 
 general issue— Evidence to support a justification — 
 Plaintiff^s reputation in issue — Inquiry limited to 
 plaintiff's general reputation— And to his reputation 
 prior to the publication complained of— Truth in miti- 
 gation — Conduct of plaintiff leading to belief in truth 
 — Report or suspicion of plaintiff's guilt in mitigation 
 — Plaintiff ' s standing and condition in society — Prior 
 or subsequent declarations of defendant — Heat and 
 passion — Previous publications by the plaintiff — Con- 
 troversies between plaintiff and defendant prior to the 
 publication — Mitigation — Circumstances not admis- 
 sible in mitigation. 
 
 § 402, What evidence the defendant may give depends 
 upon what plea or answer he has interposed.^ His proof 
 
 ^ We have already (p. 63, note I, the defendant concerning his motive 
 unte") referred to some decisions on in speaking the words, his belief in 
 the proof of intent ; we here add some their truth, and the absence of ill-will 
 others. When defendant offers him- or malice toward the plaintiff is ad- 
 self as a witness he may be examined missible. (And to the like effect, see 
 by plaintiff as to his intent (Com'- Wilson w. Noonan, 35 Wis. 321 ; Mc- 
 wealth V. Damon, 17 The Reporter, Kown v. Hunter, 30 N. Y. 628; 
 559 [Mass.];, and he may on his own Turner v. O'Brien, 5 Neb. 542; and 
 behalf testify as to his intent. (Cow- see The People u. Moore, 37 Hun, 84.) 
 ell V. Day, 18 Week. Dig. 97; In White v. Tyrrell (5 Ir. C. L. R. 
 Scranton v. Chase, 4 Law Times Rep. 477), the defendant having written a 
 N. S. 17 [Pa.]; contra, Barr v. Hack, letter, was permitted to be asked the 
 46 Iowa, 308.) In Smith v. Higgins question whether in writing the letter 
 (82 Mass [16 Gray], 251), it is said: he had the intention of provoking a 
 In slander the good faith of the de- challenge. In Dillon v. Anderson (43 
 fendant and the feelings which N. Y. 236), the action was on con- 
 prompted him to speak the words tract, defense, that contract was made 
 alleged in the declaration, being prop- jointly with H., who was not made a 
 erly in issue, he is competent to testify party. The contract was in writing 
 concerning them. The testimony of and signed by defendant. H. was 
 
662 
 
 EVIDENCE FOR DEFENDANT. 
 
 [CH. XVII. 
 
 must correspond with his plea. Under the common-law 
 system of pleading and procedure, many matters of defense 
 
 named in the body of the paper as a 
 contracting party, but it was not 
 signed by him ; on the trial, the de- 
 fendant was called as a witness on his 
 own behalf, and asked by his counsel, 
 " Did you intend to make an individ- 
 ual contract ? " The question was 
 disallowed, and held in the Court of 
 Appeals : " The testimony called for 
 was not proper. There are authorities 
 that a witness may be asked his mo- 
 tive or intent in doing an act. . . . 
 We think that they hold no more than 
 this ; that where the doing the act is 
 not disputed, but is affirmed, and 
 whether the act shall be valid or 
 invalid hangs upon the intent with 
 which it was done, which intent from 
 its nature would be formed and held 
 without avowal, then he upon whom 
 the intent is charged may testify 
 whether he secretly held such intent 
 when he did the act. Thus an insol- 
 vent assignor in trust, charged with 
 the fraudulent intent to hinder and 
 delay creditors, may be called in sup- 
 port of the deed of trust, and may say 
 whether, when he made it; he had no 
 fraudulent purpose; and one sued 
 for a malicious prosecution may testify 
 that in setttng on foot the legal pro- 
 ceedings he believed that there was 
 cause for them. And as an extreme 
 case which we are not willing to ex- 
 tend, one against whom the defense of 
 usury has been set up, has been per- 
 mitted to testify what was the inten- 
 tion in stipulating for a sum reserved 
 out of the face of a note. But that an 
 act should be held to have or not to 
 have effect, and one party to it to be 
 bound or not, as the other party to it 
 should, by his undisclosed purpose, 
 have determined, is warranted by no 
 sound principle." In Robbins v. 
 Fletcher (loi Mass. 115), an action of 
 slander for accusing plaintiff of forni- 
 cation, defendant having denied, in 
 his testimony in chief, that he spoke 
 the words alleged, or that he had any 
 ill-will toward the plaintiff, may be 
 asked on cross-examination whether 
 he did not, before the time when it 
 was contended that he uttered the 
 
 words sued on, have a hostile feeling 
 toward a person whom there is evi- 
 dence that he spoke of as the other 
 party to the offense. And where the 
 defendant testified to having no ill-will 
 towards plaintiff, it was held he might 
 be asked on cross-examination, 
 whether he had not brought suits 
 against the plaintiff, but he cannot be 
 asked, what were the subject-matters 
 of those suits. (Boynton v. Boynton, 
 43 How. Pr. R. 380.) In an action for 
 malicious prosecution, defendant's 
 counsel proposed to ask defendant 
 whether, in procuring the warrant, he 
 acted without malice. The question 
 was disallowed, and, by the court, " It 
 was for the jury to say whether the 
 defendant acted maliciously, and to 
 allow the question would be substitut- 
 ing the witness in place of the jury to 
 determine one of the most important 
 questions in the cause." (Lawyer v. 
 Loomis, 3 Sup. Ct. Rep. [T. & C] 
 396.) That case was overruled. (Mc- 
 Cormick v. Woodworth, 47 Hun, 71.) 
 In an action against defendant as 
 superintendent of the poor, to recover 
 for maintenance of a pauper alleged to 
 have been improperly removed by him, 
 with intent that the pauper should 
 become chargeable to another county, 
 held defendant might be asked. Did 
 you send the pauper from the county 
 of H. in good faith ? (Cortland Co. v. 
 Herkimer Co, 44 N. Y. 22.) It was 
 held not proper to ask a witness. 
 What would you have done with the 
 proceeds if you had effected a sale? 
 (Cowdrey v. Coit, 44 N. Y. 391.) 
 Held not proper to ask a witness what 
 was his intent in taking more than 
 seven per cent, interest. (Fiedler v. 
 Darrin, 50 N. Y. 443, 444.) And in a 
 prosecution for seduction, held not 
 proper to ask the woman, "'Would 
 you have consented to it (the inter- 
 course) without a promise ? " (Cook 
 V. The People, 2 Sup. Ct. Rep. [T. & 
 C] 404.) A question to witness, " In 
 signing indorsement, did you intend 
 to adopt the seals of the obligors?" 
 not allowed. (Brown v. Champlin, 5 
 N. Y. Weekly Dig. 189) In an 
 
§ 403-J UNDER GENERAL ISSUE. 663 
 
 might be given in evidence under the general issue which 
 now require to be specially pleaded. So, too, under the^ 
 common-law system, mitigating circumstances could not 
 be pleaded, but were admitted in evidence under the 
 general issue ; and this is still the rule where there is not 
 any statutory provision on the subject. In New York 
 and some other States, provision is made by statute allow- 
 ing the defendant, in actions for slander and libel, to set \ 
 forth in his answer the mitigating circumstances he will/ 
 prove upon the trial. Some of the effects of these statu- 
 tory provisions have already been referred to under the 
 head of Pleading ; other effects will be noticed hereafter. 
 
 § 403. Under the general issue the defendant was at 
 liberty to prove anything which destroyed the plaintiff's 
 cause of action.^ He might disprove the fact of publica- 
 tion, or show that the matter published was not of an in- 
 jurious character, or that the publication was privileged,'' 
 
 action for slander, defendant was not Sup. Ct. Rep. [T. & C.l 479; Funk v. 
 allowed to be asked whether, in mak- Tribune Asso. 2 City Ct. Rep. 43.) In 
 ing the publication, he had any Maryland, by statute, truth may be 
 thought of injuring plaintiff. (Har- given in evidence under the general 
 wood V. Keech, 6 Sup. Ct. Rep. [T. issue. (See Richardson 7/. The State, 
 & C] 665; 4 Hun, 391.) On a trial 66 Md. 205; anU, note 3, p. 496.) 
 for an assault with an axe, it was held ^ O'Brien v. Clement, 15 Law 
 proper to ask the prisoner what was Jour. Rep. 285, Ex. ; 3 D. & L. 676. 
 his " intention in taking the axe from Where the defense is privileged com- 
 the shed to the house.'' (Kerrains v. munication, it need not be specially 
 The People, 60 N. Y. 221.) One per- pleaded. (Lillie v. Price, i Nev. & P. 
 son cannot testify as to the /«/?«/ of 16; 5 Dowl. 432; Richards z/. Boul- 
 another. (Manuf. B'k v. Koch, 8 ton, 4 Up. Can. Q. B. Rep. O. S. 95 ; 
 Cent. Rep. 672 ; 36 Alb. L. J. 34.) Abrams 2/. Smith, 8 Blackf. 95 ; Stan- 
 * Barker v. Dixon, i Wils. 45; nus v. Finlay, Ir. Rep. 8 Com. Law, 
 and see O'Donoghue v. McGovern, 23 264.) But it may be specially pleaded 
 Wend. 26. Where the words clearly (Dunn v. Winters, 2 Humph. 512), 
 impute a felony, if defendant does not and it seems it must be pleaded in 
 justify, he cannot show that the words Massachusetts. (Goodwin v. Daniels, 
 related to an act which might have 7 Allen [Mass.], 61.) In New York, 
 been innocent. (Laine v. Wells, 7 it must be pleaded. In England, in 
 Wend. 175.) In New York, the de- actions of slander of plaintiff in his 
 fendant may examine plaintiff as a ofifice, profession, or trade, the plea of 
 witness before the trial, and if, on such not guilty will operate to the same ex- 
 examination, plaintiff refuses to an- tent precisely as at present in denial 
 swer a proper question, his complaint of speaking the words, of speaking 
 may be struck out. (Richards v. them maliciously and in the sense im- 
 Judd, 15 Abb. Pr. Rep. N. S. 184; 2 puted, and with reference to plaintiff's 
 
664 
 
 EVIDENCE FOR DEFENDANT. 
 
 [CH. XVII. 
 
 as being a fair comment on a matter of public concern ; ^ 
 any circumstances which tended to disprove malice;* or 
 that plaintiff procured the publication with a view to an 
 action ; ^ and where the libel consisted of a report of pro- 
 ceedings the publication of which was not privileged, it 
 was held that it might be shown under the general issue 
 and in mitigation that the report, although not correct, 
 was an honest one, and intended to be a fair account of the 
 transaction referred to.* The general issue put in issue the 
 malice in making the publication,^ and amounted to a 
 denial of the special damage,* and the general good repu- 
 tation of the plaintiff (§ 406), but it admitted the induce- 
 
 office, profession, or trade ; but it will 
 not operate as a denial of the fact of 
 plaintiff holding the office, or being in 
 the profession or trade alleged. (Reg. 
 Gen. H. T. 4 Will. 4; 2 C. & M. 23; 
 10 Bing. 477 ; 3 Nev. & M. 9; 5 B. & 
 Adol. 9.) AH matters in confession 
 and avoidance shall be specially 
 pleaded. {lb.) 
 
 * Lucan v. Smith, 20 Jur. 1170; 
 38 Eng. Law & Eq. Rep. 395. 
 
 » Weaver v. Hendrick, 30 Mo. (9 
 Jones), 502 ; Smith v. Smith, 39 Penn. 
 St. R. 441 ; Sims v. Kinder, i Carr. 
 & P. 279 ; Van Derveer v. Sutphin, 5 
 Ohio St. 293; Swift V. Dickerman, 31 
 Conn. 285; Williams v. Miner, 18 
 Conn. 464; Thomas v. Dunaway, 30 
 111. 373 ; Brunswick v. Pepper, 2 C. & 
 K. 683; Remington v. Angdon, 2 
 Pick. 310; Oilman z*. Lowell. 8 Wend. 
 573. And in New York under a gen- 
 eral denial and a proper statement in 
 the answer, any circumstance to dis- 
 prove malice may be shown, although 
 it tended to prove the truth of the 
 charge. (Bush v. Prosser, 11 N. Y. 
 347; Bisbey v. Shaw, 12 N. Y. 67; 
 Dolevin v. Wilder, 34 How. Pr. Rep. 
 488; Chapman v. Calder, 14 Pa. St. 
 365; Neeb v. Hope, iii Penn. St. 
 Rep. 145.) Where there is any, the 
 slightest doubt in the mind of the 
 judge as to whether the facts set up 
 in mitigation tend to disprove malice, 
 he should permit them to be proved. 
 
 and submit the question of malice to 
 the jury. {Id.) 
 
 ^ See ante, note 3, p. 96. In an 
 action for slander, plea the general 
 issue. Held, proper to refuse to 
 charge " that if defendant did no more 
 than repeat a report which originated 
 from plaintiff's levity and careless- 
 ness, the plaintiff could not recover.'' 
 (Fitzgerald v. Steward, 53 Penn. 343 ; 
 see apparently contra, Shirley v. 
 Keathy, 4 Coldw. [Tenn.] 29.) Plaint- 
 iff's motive in bringing the action is 
 immaterial to the issue on a plea of 
 justification. (Bradley v. Kennedy, 2 
 G. Greene [Iowa], 231.) 
 
 * Smith V. Scott, 2 Car. & K. 580; 
 and see East v. Chapman, Mo. & 
 Malk. 46; Charlton v. Watton, 6 C. 
 
 & P. 385. 
 
 ' Keegan v. Robson, 6 Up. Can, 
 Q. B. 375. 
 
 « Wilby V. Elston, 8 C. B. 142. A 
 traverse of special damage held un- 
 necessary and improper. (Smith v. 
 Thomas, 2 Bing. N. C. 372 ; see 
 Perring v. Harris, 2 Moo. & Rob. 5 ; 
 Custis V. Sandford, 4 Ir. C. L. 197.) 
 The complaint usually alleges that 
 plaintiff has sustained damages to a 
 certain amount. This we suppose is 
 not admitted if not denied. It was 
 held otherwise (Goodyear Dental 
 Comp. V. White, 8 The Reporter, 423 ; 
 U. S. Circuit Co't, N. Y. Aug't, 1879), 
 but defendant was allowed to amend 
 his answer by inserting a denial. 
 
404-] 
 
 UNDER GENERAL ISSUE. 
 
 665 
 
 ment^ and the falsity of the charge.'' The defenses of 
 accord and satisfaction .(§ 250), former recovery (§ 251), 
 truth (§§ 354, 409), and illegality of plaintiff's occupation,^ 
 must be specially pleaded to enable the defendant to give 
 evidence of them on the trial.* 
 
 § 404. As to a justification, it is held that, in an action 
 for slander or libel, the burden of proof is upon the defend- 
 ant.* The charge complained of being the commission of a 
 criminal offense, the same degree of evidence is necessary 
 to sustain a plea of justification as Vi^ould be necessary to 
 convict the plaintiff in a criminal prosecution for the same 
 offense.* At least the defendant must prove the crime 
 charged to the satisfaction of the jury,' and beyond a reason- 
 able doubt.' The plea must be substantially proved," or 
 
 1 Fradley v. Fradley, 8 C. & P. 
 572 ; Heming v. Power, 10 M. & W. 
 564 ; Gwynne v. Sharpe, i C. & Mar. 
 
 533- 
 
 * Sheahan v. Collins, 20 111. 325. 
 
 3 Fry V. Bennett, 28 N. Y. 324; 
 Trimmer v. Hiscock, 27 Hun, 364; 
 § 183, ante. 
 
 * Libel charged an Englishman 
 with having forsworn his allegiance by 
 enlisting in the American army; plea 
 of justification. Held, that plaintiff 's 
 admission that he enlisted in the 
 American army was evidence to prove 
 the justification. (Hill v. Hogg, 4 
 All. [N. B.] 108.) Where the owner 
 of a race horse brought action for a 
 libel charging him with having caused 
 the horse to be pulled in a race, and 
 the answer was not guilty, and justifi- 
 cation, it seems that evidence of the 
 shouts of the spectators is admis- 
 sible. (Walker Z'. George, 5 A.J. R. 29.) 
 
 5 Stith v. Fullenwieder, 19 Pac. 
 Rep. 314 (Kansas); Ransom v. Chris- 
 tian, 56 Ga. 351 ; Gall v. Fleming, 10 
 Ind. 253 ; Fry v. Bennett, 28 N. Y. 
 
 324- 
 
 » Landis v. Shanklin, i Carter 
 (Ind.), 92; Shoulty v. Miller, /d. 554; 
 Gantsw. Vinard, /./. 476; Newbit z/. 
 Statuck, 35 Maine (5 Red.), 315; 
 Dwinells v. Aikin, 2 Tyler, 75 ; Seely 
 t/. Blair, Wright, 683 ; Steinman v. 
 
 Mc Williams, 6 Barr, 1 70 ; Willmett v- 
 Harmer, 8 C. & P. 695 ; Swails v. 
 Butcher, 2 Carter (Ind.), 84; Wood- 
 beck V. Keller, 6 Cow. 118; Forshee 
 V. Abrams, 2 Clarke (Iowa), 571 ; 
 Merk v. Gelhauser, 50 Cal. 631 ; 
 Riley v. Norton, 65 Iowa, 356; 
 contra, Barfield v. Britt, 2 Jones L. 
 (N. Car.) 41 ; Gorman v. Sutton, 32 
 Penn. 247; Lanter v. McEwen, 8 
 Blackf. 495; Wonderly v. Nokes, 8 
 Blackf. 589; Folsom v. Brawn, 5 
 Foster (25 N. Hamp.), 114; Kincade 
 V. Bradshaw, 3 Hawks, 63. 
 
 ' Offutt V. Earlywine, 4 Blackf. 
 460. Evidence of plaintiff's being 
 suspected is not sufficient. (Com- 
 mons V. Walters, I Porter, 323; 
 Knight V. Foster, 39 N. H. 576.) 
 
 8 Shoulty V. Miller, i Carter (Ind.), 
 554; Tucker v. Call, 45 Ind. 31 ; Merk 
 V. Gelzhaeuser, 50 Cal. 631 ; Bell v. 
 McGinness, 40 Ohio St. 204 ; Kidd v. 
 Fleek, 47 Wis. 443 ; McBee v. Fulton, 
 47 Md. 403 ; Riley v. Norton, 65 Iowa, 
 356 (overruling Bradly v. Kennedy, 2 
 G. Gr. 231 ; Forshee v. Abrams, 2 
 Iowa, 571 : Fountain v. West, 23 
 Iowa, 9; Ellis V. Lindly, 38 owa, 
 461); Georgia!/. Kipford,45 Iowa, 533; 
 Mott V. Dawson, 46 Iowa, 533; Mc- 
 Gregor V. Eakin, 3 Bradw. (111.) 340; 
 The People v. Briggs, 114 N. Y. 65. 
 
 » Napier v. Daniell, 3 Sc. 417; 2 
 
666 EVIDENCE FOR DEFENDANT. [CH, XVII. 
 
 the plaintiff is entitled to recover.' Where the charge is 
 crime, a conviction of the plaintiff of the crime is, in gen- 
 eral, admissible to sustain a justification, but it is only 
 prima facie evidence and must be excluded if the de- 
 fendant was a witness in the criminal prosecution.* A 
 plea of justification of libel, that the plaintiff had been 
 guilty of bigamy, requires as strong proof as on an indict- 
 ment for that offense ; but a plea justifying a charge of 
 polygamy, held sustained by proof of actual marriage in 
 two instances, and of cohabitation and reputation as to a 
 third.^ To sustain a plea of justification of a charge of 
 perjury, the testimony of two witnesses at least, or of one 
 witness and strong corroborating circumstances, are neces- 
 sary.^ And the defendant must prove not only that the 
 plaintiff's testimony was false, but that it was willfully and 
 corruptly false.* The corrupt intent, however, is inferable 
 from the falsity of the testimony.* To establish the justi- 
 fication, the testimony which the plaintiff gave on the trial 
 when the alleged perjury was committed, may be received 
 as evidence to be considered by the jury.' Under an 
 
 Hodges; 187; 3 Bing. N. C. ^^ \ For- qualified in Kincade v. Bradshaw, 3 
 
 rest V. Hanson, i Cr. C. C. 63. Proof Hawks, 63; Spruil v. Cooper, 16 Ala. 
 
 of adultery. (Ellis v. Buzzell, 60 Me. 791 ; see 3 Phillips' Ev. Cowen & 
 
 209 ; Edwards v. Knapp, 10 So. West. Hill's and Edwards' notes, tit. in In- 
 
 Rep. 54. dex, Slander. Where the accusation 
 
 1 Kincade v. Bradshaw, 3 Hawks, was perjury, to charge that the jury 
 
 63. should find for defendant if the testi- 
 
 " Maybee v. Avery, 18 Johns. 352. mony was false, or for plaintiff unless 
 
 This was at the time when parties the evidence before them was suffici- 
 
 could not be witnesses in their own ent to convict him of perjury, is error, 
 
 behalf in civil actions. Where they (Sloan v. Gilbert, 12 Bush [Ky.], 51.) 
 can be such witnesses probably the ' M'Kinly v. Rob, 20 Johns. 351. 
 
 exception stated in the text does not That is to say, he must prove techni- 
 
 apply. cal perjury. (Hicks v. Rising, 24 III. 
 
 » Willmett V. Harmer, 8 C. & P. 566; McGlemary z/. Keller, 3 Blackf. 
 
 695- 488; Gorton v. Keeler, 51 Barb. 475; 
 
 * Bradley w. Kennedy, 2 G. Greene Sloan t*. Gilbert, 12 Bush [Ky.], 51; 
 
 (Iowa), 231 ; Steinmanw. Mc Williams, contra, Wood v. Southwick, 97 Mass. 
 
 6 Barr, 170; Byrket v. Monohon, 7 354.) 
 
 Blackf. 83; Woodbeck v. Keller, 6 « Hopkins 7/. Smith, 3 Barb. 599. 
 
 Cow. 118; Newbit v. Statuck, 35 ' Newbit v. Statuck, 35 Me. (5 
 
 Maine (5 Red.), 31 5: Dwinells v. Aikin, Red.) 31 5 ; Arringtonz/. Jones, 9 Port. 
 
 2 Tyler, 75; Ransone z/. Christian, 49 139; see Milner v. Gilbert, 3 Kerr, 
 
 Ga. 491. This rule was somewhat 617. In an action of slander, for 
 
405-] UNDER GENERAL ISSUE. 
 
 667 
 
 allegation in the libel that the defendant had crushed the 
 Hygeist system of wholesale poisoning, and that several 
 vendors had been convicted of manslaughter— held that it 
 was not necessary for the defendant to prove that the 
 system had been entirely crushed, and that proof of the 
 conviction of two vendors for manslaughter sufficiently 
 proved the plea, although the evidence as to the death 
 being occasioned by not complying with the printed reg- 
 ulations in some respects varied from the allegation, 
 there being evidence for the jury as to the cause of 
 death.^ The admissions of the plaintiff are evidence in 
 support of a defense of justification on the ground of 
 truth.^ 
 
 § 405. Where the words laid charge the plaintiff with 
 having committed a certain offense, evidence will not be 
 received that he committed a different offense, either with 
 the same or with other persons.* As where the plaintiff 
 was charged with adultery with J. S., it was held that proof 
 
 charging the plafntiff with perjury in tending to show the- truth of the 
 a judicial proceeding, the defendant, alleged libel are admissible. (Boun 
 on the plea of "not guilty," may, in v. Seideker, 38 Iowa, 418.) 
 mitigation of damages, prove what ' Pallet v. Sargent, 36 N. H. 496 ; 
 were the words sworn by the plaintiff. Sharpe v. Stephenson, 12 Ired. 348? 
 (Grant v. Hover, 6 Munf. 13.) Barthelemy v. The People, 2 Hill, 257 5 
 ' Morrison v. Harmer, 3 Btng. N. Gregory v. Atkins, 42 Vt. 237. Under 
 C. 759; 4 Scott, 524. Defendant is a plea of justification for charging 
 not held to prove the exact truth of plaintiff with fornication with a certain 
 his statements, and the soundness of man, evidence that her child is a bas- 
 his inferences, provided that he is not tard is not sufficient. (Richardson v. 
 actuated by express malice, and that Roberts, 23 Ga. 215.) Where the 
 there is reasonable ground for such words charged the stealing of D.'s 
 statements and inferences. (Crane v. hay, and the defendant offered evi- 
 Waters, 10 Fed. R. 619 [Mass.].) dence to prove that the hay, the sub- 
 Where the words were, "The editor ject of the theft so charged, was the 
 of the Chronicle has been intoxicated joint property of the plaintiff and D., 
 on several occasions," held, defendant so that in legal effect no such crime 
 might prove by witnesses that they was or could have been committed, it 
 had seen the prosecutor " acting as was held that as the charge was un- 
 though he was intoxicated." (State equivocally a charge of theft, so in- 
 V. Mayberry, 33 Kans. 441.) tended and so received, the evidence 
 2 Hill V. Hogg, 4 Allen (N. Bruns- offered by the defendant was inad- 
 wick), 108; Eullard v. Lambert, 40 missible. (Williams v. Miner, 18 
 Ala. 204. Defendant's statements Conn. 464; a«/i?, § 212.) 
 
668 EVIDENCE FOR DEFENDANT. [CH. XVII. 
 
 of adultery with others than J. S. could not be received.^ 
 Where the plaintiff was charged with keeping a house of 
 ill-fame, it was held that evidence of unchaste and lascivious 
 conduct of the plaintiff's family, not establishing the 
 offense, was inadmissible for any purpose.^ And where 
 the charge was of perjury on a certain occasion, held that 
 defendant could not justify by proof of perjury on any 
 other occasion than that alleged.^ To a charge that plaint- 
 iff had had connection with a mare, innuendo been guilty 
 of the crime against nature with a beast^ defendant gave 
 notice that he would prove on the trial that plaintiff had 
 had connection with a cow, and on the trial offered to prove 
 the allegation in his notice, the court refused to receive it, 
 either in bar or in mitigation, on the ground that it was 
 not a justification of the specific charge laid, but of another 
 charge distinct as to the subject-matter.* A libel charging 
 hardness towards the poor, dissoluteness of morals, and 
 habits of vice and calumny, as conclusions deducible from 
 particular instances enumerated and arranged in it, cannot 
 be supported by proof of other instances of conduct not 
 detailed or alluded to in it.^ 
 
 1 Matthews v. Davis. 4 Bibb, 173. buying and selling by unsealed weights 
 and see Walters v. Smoot, 11 Ired; and measures, and also of the crime 
 315; Fisher z/. Tice, 20 Iowa, 479. of gross fraud and cheating at com- 
 
 2 Bush V. Prosser, 13 Barl). 221. mon law, a justification on the ground 
 On trial for words imputing unchastity that the charge was true cannot be 
 to plaintiff, it is not permissible, under supported by evidence that plaintiff 
 a plea of not guilty, to prove that the " applied to a person to take some 
 house in which the plaintiff resided damaged meat and sell it, without 
 was a house of ill-fame. (Hackett v. letting it be known that plaintiff was 
 Brown, 2 Heiskell [Tenn.], 264.) concerned in the transaction." (Chap- 
 
 ' Aldrich^/. Brown, 11 Wend. 596; man v. Ordway, 87 Mass. [5 Allen], 
 
 Whittaker z/. Carter, 4 Ired. 461. But 593.) Where the charge was: "The 
 
 where the charge was larceny, held investigations are not yet ended, but 
 
 that defendant might offer evidence to the chief owners believe they have 
 
 prove a particular larceny of the same been outrageously swindled." Proof 
 
 description as that charged. (Adams that the chief owners believed they 
 
 •V. Ward, i .Stew. 42.) had been outrageously swindled was 
 
 * Andrews v. Vanduzer, 1 1 Johns. rejected. It was neither justification 
 
 38. nor mitigation. To justify, defendant 
 
 5 Barthelemy v. The People, 2 Hill, should prove the truth of the allega- 
 
 248; Hatfield v. Lasher, 17 Hun, 23. tion, not the belief ol the publisher or 
 
 In an action for accusing plaintiff of his informant. (Wilson v. Fitch, 41 
 
§ 4o6.] 
 
 plaintiff's reputation. 
 
 669 
 
 § 406. The plea of not guilty put in issue the general 
 character (reputation)' of the plaintiff, and therefore upon 
 a plea of not guilty only, the defendant might give in 
 evidence in mitigation the general bad character (repu- 
 tation) of the plaintiff before and at the time of the 
 publication complained of.* " Certainly a person of dis- 
 paraged fame is not entitled to the same measure of 
 damages with one whose character is unblemished, and it 
 is competent to show that by evidence."^ This prin- 
 ciple, so much discussed at an early day, and for a time 
 left unsettled, has since been so well established by au- 
 thority as not now to be open for discussion ;* and such 
 
 Cal. 363.) In slander for calling a 
 clergyman a thief, defendant, under 
 plea of not guilty, was allowed to ask 
 a witness " what is the general charac- 
 ter of plaintiff as to being a thief ? " 
 (Drown v. Allen, 91 Penn. St. 393; 
 and see Warner z/. Lockerby, 31 Minn. 
 421.) 
 
 ' As to the difFerepce between re- 
 putation and character, see ante, note, 
 p. 24. 
 
 2 Smith V. Ottendorfer, 3 N. Y. St. 
 Rep. 187; Woods V. Anderson, 5 
 Blatchf. (Ind.) 589. A suit for words 
 actionable ^^r se, cannot be defeated 
 entirely by proof of plaintiff's bad 
 character. (Langton v. Hagerty, 35 
 Wis. 150; Maxwell v. Kennedy, 50 
 Wis. 645; Wood V. Durham, 21 Q. 
 B. D. 501 ; contra. Anon. 6 How, Pr. 
 R. 160.) 
 
 ' Ld. Ellenborough, in v. 
 
 Moore, i M. & S. 284. In Brace- 
 girdle V. Bailey (i Fost. & F. 536), 
 there was no plea of justification; 
 plaintiff was put on the witness stand, 
 but not examined in chief — held that 
 defendant could not, to mitigate dam- 
 ages, put questions to plaintiff tending 
 to discredit him, nor which went to 
 show his bad character. Evidence of 
 plaintiff's reputation may be received 
 without any other plea than a general 
 denial. (Bennett v. Matthews, 64 Barb. 
 410.) Not error to charge that if 
 plaintiff's reputation bad, his com- 
 pensation should be measured by the 
 
 injury actually suffered, and held this 
 was equivalent to a direction to find 
 nominal damages. (Plummer v. John- 
 son, 70 Wis. 131.) The jury gave 
 $500 damages; held not excessive. 
 {Id.-) 
 
 * Jewett, J., Hamer v. McFarlin, 
 
 4 Denio, 509 ; citing Foot v. Tracy, i 
 Johns. 46; Springstein v. Field, 
 Anthon, 252; Paddock v. Salisbury, 2 
 Cow. 811; Douglass v. Tousey, 2 
 Wend. 352 ; Root v. King, 7 Cow. 613 ; 
 S. C. in error, 4 Wend. 113; Richard- 
 son V. Northrup, 56 Barb. 105 ; and 
 see Oilman v. Lowell, 8 Wend. 573 ; 
 Scott V. McKinnish, 15 Ala. 662; 
 Pope V. Welsh, Adm. 18 Ala. 631 ; 
 Fuller V. Dean, 31 Ala. 654 ; Anthony 
 V. Stephens, i Mo. 254; Bryan v. 
 Gurr, 27 Ga. 378 ; Eastland v. Cald- 
 well, 2 Bibb. 21 ; Bowdish v. Peckham, 
 I D. Chip. 144 ; Bridgman v. Hopkins, 
 34 Vt. 532; Lamos v. Snell, 6 New 
 Hamp. 413; Sawyer v. Eifert, 2 Nott 
 & McC. 511 ; Seymour v. Merrills, i 
 Root, 459 ; Vick v. Whitfield, 2 Hay. 
 (N. Car.) 222; De Wit v. Greenfield, 
 
 5 Ham. (Ohio), 225; Brunson v. Lynde, 
 I Root, 354; Wolcott V. Hall, 6 Mass. 
 514; Clark z/. Brown, 116 Mass. 504; 
 Whitney v. Janesville Gazette, 5 Bis- 
 sell, 330 ; Alderman v. French, i Pick, 
 i; Parkhurst v. Ketchum, 6 Allen, 
 406; Buford V. McLuny, i Nott & 
 McC. 268 ; Henry v. Norwood, 4 
 Watts, 347; Young v. Bennett, 4 
 Scam. 43; Sanders v. Johnson, 6 
 
670 
 
 EVIDENCE FOR DEFENDANT. [CH. XVII. 
 
 evidence was also admissible where the defendant, in 
 addition to not guilty, put in a plea of justification, and 
 gave evidence to support it, but failed to establish it.' 
 Whether in New York such evidence would be admis- 
 sible under a general denial, and without any circum- 
 stances in mitigation set up in the answer, does not 
 appear to have been decided in any reported case. In 
 our opinion, to entitle a defendant in the courts of New 
 York to question the general character of the plaintiff, 
 he should state in his answer his intention to give such 
 evidence on the trial.^ 
 
 § 407. When an inquiry into the reputation of the 
 plaintiff is permissible, it is his general reputation taken 
 as a whole, and not his reputation as to any particular act 
 
 Blackf. 50; McCabe v. Platter, 6 
 Blackf. 405 ; Burke 7/. Miller, 6 Blackf. 
 15s; Steinman v. McWilliams, 6 Barr, 
 170; McNutt V. Young, 8 Leigh, 542; 
 Stone V. Varney, 7 Mete. 86 ; Bowen 
 V. Hall, 20 Vt. 232 ; Sheahan v. Col- 
 lins, 20 111. 325; Manners v. McClel- 
 land, 76 Iowa, 318; Bell v. Parke, 10 
 Ir. Law Rep. N. S. 279. 
 
 As to the rule in England, see 
 Jones V. Stevens (11 Price, 235), where 
 it is said it is not competent to a de- 
 fendant to plead a justification, as of 
 plaintiff's general bad character, in 
 general and indefinite terms, but he is 
 bound to state facts specially to give 
 the plaintiff an opportunity of denying 
 them; such pleas are demurrable, and 
 it is an abuse of the court to put them 
 on record ; neither can he any more 
 be permitted to give particular or 
 general evidence of that nature in 
 mitigation of damages, than to plead 
 it in bar of the action. (See 
 Morris V. Langdale, 2 B. & P. 284.) 
 Evidence of general bad reputation of 
 plaintiff was rejected, there being no 
 plea of justification. (Edgar v. Ne- 
 well, 24 Up, Can. Q. B. Rep. 215; 
 Myers v. Currie, 22 Id. 470.) In an 
 action for slander for charging plaint- 
 iff, a female, with wrant of chastity. 
 
 the judge directed the jury "that if 
 they should find that plaintiff had so 
 destroyed her character by her own 
 lewd and dissolute conduct as to have 
 sustained no injury from the words 
 spoken, they might give only nominal 
 damages." (Flint v. Clark, 13 Conn. 
 361 ; and see Conroe v. Conroe, 47 
 Penn. St. R. 198.) If plaintiff gives 
 evidence of his reputation, defendant 
 may give counter evidence. (Mitchell 
 ■V. iCerr, Rowe's Rep. £37.) 
 
 ' Hamer v. McFarlin, 4 Denio, 
 509. It was held otherwise in Jack- 
 son V. Stetson (15 Mass. 48), and that 
 case was followed in Alderman v. 
 French (i Pick. i). But Jackson v. 
 Stetson was questioned in Cilley v. 
 Jenness (2 New Hamp. 89) ; Whitaker 
 V. Freeman (i Dev. 280). (And see 
 Stone V. Varney, 7 Mete. 86 ; 2 Stark. 
 Ev. 878 ; and the eases cited in the 
 last preceding note.) Where there is 
 no impeachment of plaintiff's reputa- 
 tion, the jury, in assessing damages, 
 are not to consider such reputation as 
 otherwise than good. (Padgett v. 
 Sweeting, 55 Md. 404.) 
 
 2 Anon. 8 How. Pr. Rep. 434; and 
 see Stiles v. Cotnstock, 9 Id. 48; 
 Howe Machine Co. v. Souder, 58 Ga. 
 64 ; Stanley v. Webb, 21 Barb. 148. 
 
§ 407-] 
 
 PLAINTIFFS REPUTATION. 
 
 671 
 
 or in any particular transaction, that is to be inquired of ;^ 
 and, therefore, evidence cannot be given of his guilt of any 
 specific act of misconduct ; ^ as that he had been guilty of 
 false swearing.* Where the charge was that the plaintiff, a 
 physician, had no professional knowledge or skill, and lost 
 almost all his patients, it was held that proof of particular 
 instances in which the plaintiff had shown want of knowl- 
 edge and skill, for the purpose of mitigating damages, was 
 inadmissible.* And although it has been said that when a 
 defendant may give evidence of the general bad reputa- 
 tion of the plaintiff, he is not confined to the subject-mat- 
 ter of the defamation complained of,* yet in an action for 
 charging the plaintiff with perjury, it was held erroneous 
 to admit evidence of his general bad character for truth.* 
 
 ' Hatfield v. Lasher, 8i N. Y. 
 249; Steinman i/. McWilliams, 6 Barr, 
 170; Shilling V. Carson, 27 Md. 175; 
 Wright V. Shroeder, 2 Curt. 547; 
 Fitzgerald v. Stewart, 53 Penn. 343 ; 
 Lambert v. Pharis, 3 Head (Tenn.), 
 622; Fountain v. West, 23 Iowa, 9; 
 Pollard V. Lyon, 91 U. S. 225; Brooks 
 V. Dutcher, 22 Neb. 644: see Wood 
 V. Earl Durham, 21 Q. B. D. 501 ; 
 Scott V. Sampson, 8 Q. B. D. 491. 
 
 ' Andrews v. Van Deuser, 11 
 Johns. 38; VJck v. Whitfield, 2 Hay. 
 (N. Car.) 222 ; Dewit v. Greenfield, 5 
 Ham. (Ohio), 225 ; Lamos v. Snell, 6 
 New Hamp. 413; Sawyer v. Eifert, 2 
 Nott & McC. 511; Burke v. Miller, 
 6 Blackf. 155; Freeman v. Price, 2 
 Bailey, 115; Ridley v. Perry, 4 Shep. 
 21; Matthews v. Dayis, 4 Bibb, 173; 
 Brown v. Hall, 20 Vt. 232 ; Parkhurst 
 v. Ketchum, 6 Allen, 406. 
 
 2 Luther v. Skeen, 8 Jones Law 
 (N. Car.), 356; or lewdness (Smith v. 
 Cook, I Alb. L. J. 162). 
 
 * Swift V. Dickerman, 31 Conn. 
 285. And such evidence would not 
 be admissible for the purpose of show- 
 ing the professional reputation of 
 plaintiff, as reputation can only be 
 proved by the direct testimony of those 
 who are acquainted with it, and not by 
 particular facts. (Id.) 
 
 "■ Sayre v. Sayre, I Dutcher, 235 ; 
 Lamos v. Snell, 6 New Hamp. 413; 
 Sawyer v. Eifert, 2 Nott & McC. 
 511; see, however, Wright v. Shroe- 
 der, 2 Curtis C. C. 548. The inquiry 
 should be confined to the plaintiff's 
 general character for integrity and 
 moral worth, or to conduct similar in 
 character to that with which he was 
 charged by the defendant. (Leonard 
 V. Allen, II Cush. 241.) 
 
 = Steinman v. McWilliams, 6 Barr, 
 170. In an action for charging the 
 plaintiff with perjury, the plaintiff 
 proved the speaking of the words 
 charged, and then asked the witness 
 what was plaintiff's general character, 
 when on oath and when not on oath, 
 as a man of truth. The witness an- 
 swered the question favorably to the 
 plaintiff. Defendant's counsel then, 
 in cross-examining the witness, asked 
 him what was the plaintiff's general 
 moral character, and the plaintiff ob- 
 jected to the question. Held, that the 
 question ought to be answered, be- 
 cause it was on cross-examination, and 
 because the answer might furnish evi- 
 dence in mitigation of damages. 
 (Lincoln v. Chrisman, 10 Leigh, 338.) 
 A witness as to plaintiff's good 
 character may be asked upon cross- 
 examination, whether he had heard of 
 plaintiff being intimate with other 
 
672 EVIDENCE FOR DEFENDANT. [ciI. XVII. 
 
 And where the charge as proven was of burning a jail and 
 murdering a man in it, but there was some evidence that 
 it was only of aiding an escape from the jail, held, that the 
 evidence that the defendant was reputed guilty of the 
 latter offense, was inadmissible for any purpose.^ The de- 
 fendant imputed to the plaintiff, who was a clergyman, 
 these words : " Mr. S. said the blood of Christ had nothing 
 to do with our salvation, more than the blood of a hog." 
 Held, that testimony tending to prove that the plaintiff 
 denied the divinity of Christ and the doctrine of his 
 atonement, and said he was a created being, a good man 
 and perfect, his death that of a martyr, but that there was 
 no more virtue in his blood than that of any creature, was 
 not admissible, either in justification or mitigation." In an 
 action of slander for having called the plaintiff a thief, and 
 saying that " he had stolen his (defendant's) spar," the de- 
 fendant, in mitigation of damages, offered in evidence the 
 record of a verdict and judgment in his favor against A., 
 for having taken maliciously, and converted it to his own 
 use, the spar in question, it was held that such evidence 
 was inadmissible.' And where the charge was that the 
 plaintiff was a thief, and had stolen the defendant's corn, 
 and the defendant justified, held that evidence that the 
 parties were tenants in common of some corn, and that 
 the defendant had taken secretly, unfairly, and dishonestly, 
 more than his share, was not admissible either in justifica- 
 tion or mitigation. Mistake, to mitigate, must be mistake 
 of fact and not of law.* 
 
 men's wives, as tending to show that person, &c., had great plagues sent 
 
 his reputation was not good. (Calkins upon him, and was killed by the hand 
 
 V. Colburn, 27 Weekly Dig. 310.) of God, whereas Greenwood was alive 
 
 1 Cole V. Perry, 8 Cow. 214. and present at the sermon. He sued 
 
 * Skinner z/. Grant, 12 Vt. 456. for the slander, but it was adjudged 
 •' Watson V. Churchill, 5 Day, 256. against him because the matter was 
 
 * Bisbey v. Shaw, 15 Barb. 578. recited as history. (Greenwood v. 
 Where a minister in his sermon re- Prick, Cro. Jac. 91 ; cited i Camp. 270.) 
 cited a story out of Fox's Martyrology Said not to be law. (Hearne v. Stowell, 
 that one Greenwood, being a perjured 12 Adol. & El. 726.) 
 
§ 4o8.] plaintiff's reputation. 673 
 
 § 408. The rule in relation to proof of the character 
 of the plaintiff is, that the inquiry must be made as to his gen- 
 eral reputation^ where he is best known, and the witness 
 ought ordinarily to come from his neighborhood. But 
 what the extent of such neighborhood is, and what credit 
 is to be given to witnesses near and remote, are questions 
 for the jury in determining the general character of the 
 person in question.* One who went to the place of the 
 plaintiff's former residence to learn her character while 
 there, is not competent to prove it ; nor if plaintiff kept 
 boarders at the time of the slander, is evidence of their 
 opinion admissible ; nor can one testify who knows nothing 
 about the plaintiff's reputation but what he heard from 
 witnesses at a prior circuit.^ A jury, in estimating charac- 
 ter, are to take the testimony of witnesses who are sup- 
 posed to be able or capable of reflecting, in general terms, 
 the judgment of the public* Proof of the bad reputation 
 of the plaintiff, although of a kind that could not have 
 been caused by the slander, must be of his reputation 
 prior to or at the time of the publication complained 
 of.° His bad reputation subsequent to the publication 
 
 * Hatfield v. Lasher, 81 N. Y. 249. cannot introduce in rebuttal evidence 
 
 ' Powers V. Presgroves, 38 Miss. of his good reputation. (Hitchcock 
 
 227; Storey v. Early, 86 111. 461 ; and v. Moore, 37 No. West. Rep. 914.) 
 see Banners v. McClelland, 76 Iowa, ' Douglass v. Tousey, 2 Wend. 
 
 318. The reputation of the plaintiff, 352. 
 
 among the minority of his neighbors, * Luther v. Skeen, 8 Jones Law (N. 
 
 is inadmissible. {Id. ; and see Swift Car.), 356. 
 
 V. Dickerman, 31 Conn 285.) * Douglass v. Tousey, 2 Wend. 
 
 In an action for accusing the plaint- 352; Plummer v. Johnson, 70 Wis. 
 
 iff of unchasteness, where a witness 131. Where plaintiff is a witness 
 
 deposes that plaintiff's character for on his own behalf, then to dis- 
 
 chastity is bad, it is not necessary credit him his bad reputation at time 
 
 that the witness should first have been of trial may be shown. (Calkins 
 
 asked whether he knows plaintiff's v. Colburn, 27 Week. Dig. 310; 10 
 
 general character for chastity. (Senter N. Y. St. Rep. 778.) Where the 
 
 V. Can, IS New Hamp. 351.) A wit- charge was of general unchastity, it 
 
 ness who has stated that plaintiff's was held that under the general issue 
 
 character for moral worth is bad, may the general bad reputation of the 
 
 be asked, on cross-examination, what plaintiff might be shown m mitigation, 
 
 immorality is imputed to him. (Leon- (Conroe v. Conroe, 47 Penn. 198; 
 
 ard V. Allen, 11 Cush. 241.) Plaintiff Kennedy v. Holborn, 16 Wis. 457.) 
 
 43 
 
674 EVIDENCE FOR DEFENDANT. [CH. XV 
 
 complained of may have been the effect of such public 
 tion. 
 
 § 409, The defense of truth must be specially pleade 
 The defendant cannot, under the general issue, prove tl 
 truth of the publication complained of.^ But if the plair 
 iff give in evidence parts of the publication not set for 
 in the declaration, the defendant may, under the gener 
 issue, justify such parts.^ The proof of the repetition 1 
 the defendant of the words complained of, after the coi 
 mencement of the action, will not confer upon the defen 
 ant the right under the general issue to give evidence 1 
 the truth of the matter published.' Prior to the chan^ 
 introduced by the Code of New York (A. D. 184J 
 under the general issue the defendant cannot, even ; 
 mitigation, give evidence of any facts which conduce 
 prove the truth, or which form a link of evidence to th 
 end.* The rule was that evidence in mitigation must 1 
 such as admitted the charge to be false," And if a defen 
 ant failed to establish a plea of justification, he was n 
 entitled to any benefit from the evidence given in suppo 
 of such plea, and which tended to prove the truth of tl 
 charge.* Nor was a defendant allowed to prove in mi 
 
 > Beardsleyz/. Bridgeman, i7lowa, Teagle v. Deboy, 8 Blackf. i; 
 
 290. Porter v. Botkins, 59 Penn. 484; Thompson v. Bowers, i Doug. (Mic 
 
 McCampbell v. Thornburgh, 3 Head 321 ; Swift v. Dickerman, 31 Coi 
 
 (Tenn.), 109; Shirley v. Keathy, 4 285; Wagstaff w. Ashton, i Harrii 
 
 Coldw. (Tenn.) 29; Barrows v. Car- 503; Grant v. Hover, 6 Munf, : 
 
 penter, i Cliff. 204; Barns v. W^ebb, i Henson v. Veatch, i Blackf. 3^ 
 
 Tyler, 17; Small v. McKenzie, Else i/. Ferris, Anthon, 36 ; Gilman 
 
 Draper's Up. Can. Rep. 174; Padgett Lowell, 8 Wend. 573; and see Ov 
 
 V. Sweeting, 65 Md. 404. Semble, v. McKean, 14 111. 459; Williams 
 
 that in slander of title the rule is Miner, 18 Conn. 464; McAlister 
 
 otherwise. (Watson z/. Reynolds, M. Libby, 25 Maine (12 Shep.),474. P 
 
 &. Malk. 3; see § 354, ante.) ticular facts, which might form lii 
 
 * Henry v. Norwood, 4 Watts, in the chain of circumstantial evidei 
 347; and see Woodburn v. Miller, against plaintiff, cannot be recei' 
 Cheves, 194; Burke z-. Miller, 6 Blackf. under the general issue in mitigat 
 155; Stow V. Converse, 4 Conn. i8; of damages. (Wormouth 2/. Crair 
 Wagner v. Holbrunner, 7 Gill. 296. 3 Wend. 395.) 
 
 » Teagle v. Deboy, 8 Blackf. 134. » Cooper v. Barber, 24 Wend. 1 
 
 * Purple V. Horton, 13 Wend. 9; • Fero v. Ruscoe, 4 N. Y. 162. 
 Scott V. McKinnish, 15 Ala. 662; 
 
§ 409-] 
 
 PROOF OF TRUTH. 
 
 675 
 
 gation any circumstance which tended to prove the truth 
 of the charge, although he expressly disavowed a justifica- 
 tion, and admitted the falsity of the charge.^ But he 
 might prove in mitigation circumstances which induced 
 him erroneously to make the charge complained of, and 
 thereby rebut malice, provided the evidence did not neces- 
 sarily imply the truth of the charge, or tend to prove it 
 true.* A defendant justifying, and failing in his proof, may 
 offer evidence in mitigation of damages,^ if it is set up in 
 his answer.* The Code of New York has so far modified 
 these rules as to admit, in mitigation, circumstances which 
 tend to prove the truth of the charge, and to give a defend- 
 
 > Petrie V. Rose, 5 Watts & Serg. 
 364; Watson V. Moore, 2 Cush. 133; 
 Regnierw. Cabot, 2 Gilman, 34; Ves- 
 sey V. Pike, 3 C. & P. 512; Bailey v. 
 Hyde, 3 Conn. 466. 
 
 ' Minesinger v. Kerr, 9 Barr, 312; 
 Shilling V. Carson, 27 Md. 175 ; How- 
 ard V. Thompson, 21 Wend. 319. 
 Plaintiff was arrested for beating his 
 wife, and taken before an alderman ; 
 defendant published an account of the 
 arrest, held he might show the circum- 
 stances which induced the publication. 
 (Donnelly v. Swain, 2 Phila. Rep. 93 ; 
 see Morris v. Lachman, 68 Cal. 
 109; Bronson v. Bruce, 59 Mich. 
 596, and note thereto ; Regens- 
 berger v. Kiefer, 7 Atl. Rep. 724; 
 Ev'g News Asso. v. Tryon, 42 Mich. 
 549; Edwards v. Kansas City Times, 
 32 Fed. Rep. 813.) Defendant may 
 show in mitigation that he copied the 
 matter complained against from the 
 journals of Congress. (Romayne v. 
 Duane, 3 Wash. C. C. 246 ; ante, note 
 3, p. 324, and p. 604. 
 
 Held, in action against the pub- 
 lishers of a newspaper, that defendant 
 could not show that an article similar 
 to that complained of had shortly be- 
 fore been published in another news- 
 paper. (Sheahan v. Collins, 20 111. 
 325.) In slander for saying, "Negro 
 Jude said, &c., and it is reported 
 everywhere," evidence that the negro 
 did use the actionable words, held 
 admissible in mitigation as showing 
 
 defendant's motive. (Williams v. 
 Greenwade, 3 Dana, 432.) Where a 
 defendant utters defamatory matter as 
 on his own knowledge, evidence will 
 not be received on the trial that the 
 matter was communicated to him by 
 another. (Elliott v. Boyles, 31 Penn. 
 65.) The fact of the article being 
 copied from another paper, held a 
 ground for giving only nominal dam- 
 ages. (Davis V. Cutbush, i Fost. & 
 
 F. 487.) 
 
 ' Morehead v. Jones, 2 B. Monroe, 
 210; Landis v. Shanklin, i Smith 
 (Ind.), 78; West v. Walker, 2 Swan 
 (Tenn.), 32; Thomas z/. Dunaway, 30 
 III. 373; Pallett V. Sargent, 36 N. 
 Hamp. 496; contra, Shelton v. Sim- 
 mons, 12 Ala. 466; Code of Rem. 
 Just. § 535. Defendant having justi- 
 fied as to only part of the charges in a 
 publication, may prove in mitigation 
 the truth of that part of the charges 
 not justified. (Bennett v. Smith, 23 
 Hun, 50.) Jury may consider in miti- 
 gation of damages testimony v/hich 
 has a tendency though it fails to sus- 
 tain an answer of justification. 
 (Henderson v. Fox, 6 So. East. Rep. 
 164 [Ga.] ; Moore v. Francis, 3 N. Y. 
 Suppl. 162; see Battell v. Wallace, 30 
 Fed. Rep. 229; Bailey v. Hyde, 3 
 Conn. 466.) 
 
 •• Russ V. Brooks, 4 E. D. Smith, 
 644; Willower v. Hill, 72 N. Y. 36; 
 Wood V. Helbish, 23 Mo. App. 389; 
 Blanchard v. Tulip, 32 Hun, 638. 
 
676 
 
 EVIDENCE FOR DEFENDANT. [CH. XV 
 
 ant (who has claimed the right by his answer) the bene 
 of evidence in support of a plea or answer of justificatic 
 when such evidence falls short of proof, but neverthele 
 tends to prove the truth of the charge.^ It is the essen 
 of mitigating circumstances that they do not constitute 
 total defense, but are those facts from which the perse 
 acting upon them might reasonably suppose that the a 
 charged had been committed." Anything which tends 
 disprove malice in the publisher, although tending to pro' 
 the truth of the alleged libel, is admissible in mitigatioi 
 To prove absence of malice " it is indispensable to pre 
 that defendant believed, and had some reason to belie\ 
 the charge to be true when it was made. There are b 
 two conceivable modes of doing it : one by proving th 
 he received such information from others as induced hi 
 to believe the charge to be true ; the other by showing ti 
 existence of facts within his knowledge calculated to pr 
 duce such a belief."* Thus defendant may show that \ 
 
 ' Dolevin v. Wilder, 34 How. Pr. 
 Rep. 488; Stanley v. Webb, 21 Barb. 
 148 ; Bennett v. Matthews, 64 Barb. 
 410. As to the rule that defendant 
 tnight show in mitigation belief in the 
 truth not amounting to the actual 
 truth, see Williams v. Miner, 18 Conn. 
 464 ; Stees v. Kemble, 27 Penn. St. R. 
 112; Hutchinson v. Wheeler, 35 Vt. 
 (6 Shaw), 330; Oilman v. Lowell, 8 
 Wend. 573; Gorton v. Keeler, 51 
 Barb. 475; Byrket v. Monohon, 7 
 Blackf. 83; Cooke v. O'Brien, 2 
 Cranch C. C. R. 17; Turner z/. Fox- 
 all, Id. 324; Fountain v. West, 23 
 Iowa, 9; Huson v. Dale, 19 Mich. 17. 
 Testimony offered by the defendant to 
 show that the words charged were 
 spoken with reference to a bill in 
 chancery which he supposed was 
 sworn to by plaintiff, and did contain 
 false allegations, but which he after- . 
 wards ascertained was sworn to by 
 another, is inadmissible in mitigation 
 of damages. (Owen v. McKean, 14 
 111. 459; but see Purple v. Horlon, 13 
 Wend. 9 ; Van Derveer v. Sutphin, 5 
 Ohio St. 293.) For the purpose of 
 
 proving that the owner of a buildi 
 which has been set on fire had rea: 
 to believe that a particular person v 
 the incendiary, and used good faith 
 making statements charging him w 
 the crime, evidence that he was 
 formed of declarations and acts of 
 suspected person, tending to show 
 guilt, is competent. (Lawler v. Ea 
 5 Allen [Mass.], 22.) Where defei 
 ant charged plaintiff with being 
 horse thief, held defendant in miti 
 tion might prove that in fact he 1 
 been robbed of a horse. (Morrii 
 Lachman, 58 Cal. 109.) 
 
 2 Bradner v. Falkner, 93 N. 
 517; Knox V. Com'l Agencv, i N. 
 St. Rep. 86. 
 
 ' Bush V. Prosser, 11 N. Y. 3 
 Bisbey v. Shaw, i2/</. 67; Daly 
 Byrne, i Abb. N. C. 1 50 ; and so h 
 .in Michigan, Huson v. Dale, 19 Mi 
 17 ; and Indiana, Heilman v. Shanli 
 60 Ind. 424. 
 
 * Bush V. Prosser, ii N. Y. 3 
 Hatfield v. Lasher, 81 N. Y. 249; 
 Hun, 23 ; Cooper v. Barber, 24 We 
 105 ; Bisbey v. Shaw, 12 N. Y. 67. 
 
§ 409-] PROOF OF TRUTH. 677 
 
 general agent, to whom certain representations were made, 
 communicated them to him, defendant, and that he be- 
 lieved them to be true.^ So defendant was allowed to 
 show that he was imposed upon by forged letters,' or any 
 circumstances tending to show he acted in good faith, and 
 that after using all proper precaution he had reason to be- 
 lieve the publication to be true.' And where defendant 
 charged plaintiff with procuring an abortion on his, de- 
 fendant's, daughter, in an action for such charge defendant 
 was allowed to show in mitigation and to disprove malice 
 that prior to speaking the words he had been so informed 
 by his daughter.* Defendant may testify that he believed 
 the charges to be true before he published them,* but it 
 is not mitigation to prove that at the time of the publica- 
 tion defendant expressed his disbelief in the truth of the 
 charge. 
 
 Matter happening after the publication of the libel is 
 not admissible in mitigation.' 
 
 ' Kimball 2/. Herald Co. 21 Week. unmarried female, when the defenses 
 
 Dig. 34. In such a case plaintifT can- were justification and mitigating cir- 
 
 not show that the agent had a bad cumstances, evidence that plaintiff's 
 
 reputation for truth. (Hinman v. physical appearance was that of a 
 
 Hare, 5 N. Y. St. Rep. 505 ; and see pregnant woman is admissible. 
 
 Reg. V. Labouchere, 14 Cox Cr. Cas. (Sturges v. Wiltsie, 19 W'kly Dig. 
 
 419; AUiger z/. Brooklyn Daily Eagle, 266.) 
 
 25 N. Y. St. Rep. 330.) 5 Morris v. Lachman, 68 Cal. 
 
 ' Storey I/. Early, 86 111. 461. 109. Defendant may show in mit- 
 
 ' Scripps V. Foster, 41 Mich. igation a prior publication by others. 
 
 742; Moore v. Francis, 3 N. Y. (Hewett z*. Pioneer Press Co. 25 Minn. 
 
 Suppl. 162; Moore z/. Munk, 3 Bradw. 198; but see § ^i'j,post.) Defendant 
 
 (111.) 114; Thompson v. Downing, may on his own behalf testify as to 
 
 15 Neb. 195; Burt v. McBain, 29 the existence or non-existence of 
 
 Mich. 260; Lothrop v. Adams, 133 mahce on his part. (Cowell z/. Day, 
 
 Mass. 471. The testimony of a wit- 18 Week. Dig. 97 ; Scranton v. Chase, 
 
 ness who heard or read the charge, 4 Law Times Rep. N. S. 17 [Pa,]; 
 
 that he did not believe it, is not ad- contra, Barr v. Hack, 46 Iowa, 308.) 
 
 missible in mitigation. (Richardson And where he offers himself as a wit- 
 
 V. Barker, 7 Ind. 567.) 'aess, he may on cross-examination be 
 
 * Calkins v. Colbum, 27 Weekly ' asked what was his intent in making 
 
 Dig. 310; 10 N. Y. St. Rep. 778; the publication. (Com. z/. Damon, 17 
 
 and see Hatfield v. Lasher, 81 N. Y. The Reporter, 559 [Mass,]; see ante, 
 
 246; Willower v. Hill, 72 N. Y. 361 ; note i, p. 63; note i, p. 662.) 
 
 Bennett v. Smith, 23 Hun, 50. An « Edwards v. Kansas City Times, 
 
 -action for imputing unchastity to an 33 Fed. Rep. 813. 
 
678 
 
 EVIDENCE FOR DEFENDANT, [CH. XVII. 
 
 § 410, Whether or not the defendant may, in mitiga- 
 tion of damages, give evidence of improper conduct of the 
 plaintiff calculated to invite the language complained 
 against, and affording just ground to believe it true, seems 
 doubtful.^ In one case, for words impugning the chastity 
 of the plaintiff's wife, the defendant was permitted to 
 prove, in mitigation of damages, that the plaintiff's wife 
 and an unmarried man had lived together alone in one 
 house.* 
 
 § 411. It has been held in some cases that the defend- 
 ant may, in mitigation of damages, prove that prior to the 
 publication complained of, a general report or suspicion 
 existed that the plaintiff had committed the act charged.* 
 The decisions to the contrary are quite numerous.* De- 
 
 ^ See Whrede v. Bennett, in note 
 Van Santvoord's Pleadings, by Moak, 
 576, 3d ed. 
 
 ' Reynolds v. Tucker, 6 Ohio St. 
 516; and see Bradley w. Heath, 12 
 Pick. 163; Haywood v. Foster, 16 
 Ohio, 88 ; Minesinger v. Kerr, 9 Barr, 
 312; Shoulty 7/. Miller, i Carter (Ind.)j 
 544; Leicester v. Walter, 2 Camp. 
 251. But such evidence was rejected, 
 although defendant also proposed to 
 show that at the time the words were 
 uttered a public investigation was 
 going on, involving an inquiry into the 
 plaintiff's conduct, and was a subject 
 of public remark. (Knight v. Foster, 
 39 N. H. 576; and see Regnier v. 
 Cabot, 2 Oilman, 34.) Evidence of 
 defendant's suspicions on the subject 
 is inadmissible. (Henson v. Veatch, 
 I Blackf. 369.) Held admissible un- 
 der a plea of justification. (Mont- 
 gomery V. Knox, 23 Fla. 595.) 
 
 ^ Wetherbee v. Marsh, 20 N. 
 Ham p. 561 ; Case v. Marks, 20 Conn. 
 248 : Bridgman v. Hopkins, 34 Vt. (; 
 Shaw), 532 ; Van Derveer v. Sutphin, 
 S Ohio St. 393 ; Young v. Siemens, 
 Wright, 124; Knobell v. Fuller. Peake 
 Ad. Cas. 139; Cook v. Barkley, i 
 Penn. N. J. Rep. 169; Smith v. Rich- 
 ardson, Bull. N. P. 9; Fuller z/. Dean, 
 31 Ala. 654; Morris v. Barker, 4 Har- 
 
 ring. 520; Springstein v. Field, An- 
 thon, 252 ; Foot v. Tracy, i Johns. 
 45; Henson v. Veatch, i Blackf. 369; 
 Commons v. Walters, i Port. 323; 
 Fletcher v. Burroughs, 10 Iowa (z 
 With.), 557; and see Moyer v. Pine, 
 4 Mich. 409; Bradley v. Gibson, 9 
 Ala. 406 ; Sheahan v. Collins, 20 111. 
 325; Strader v. Snyder, 67 111. 404; 
 Peterson v. Morgan, n6 Mass. 350; 
 Clark V. Brown, Id. 504; Wilson w. 
 Noonan, 35 Wis. 321 ; Heilman v. 
 Shanklin, 60 Ind. 424 ; Barr v. Hack, 
 46 Iowa, 308. 
 
 * Young V. Bennett, 4 Scam. 43 ; 
 Sanders v. Johnson, 6 Blackf. 50; 
 Fisher v. Patterson, 14 Ohio, 418; 
 Scott V. M'Kinnish, 15 Ala. 662;: 
 Anthony v. Stephens, i Mo. 254; 
 Haskins v. Lumsden, 10 Wise. 359; 
 Beardsley v. Bridgman, 17 Iowa, 290; 
 Pease v. Shippen, 80 Penn. St. 513; 
 1 5 Alb. Law Jour. 115; Alderman v. 
 French, i Pick. I ; Bowen v. Hall, 20 
 Vt. 232; Hancock v. Stephens, 11 
 Humph. 507 ; Skinner ads. Powers, i 
 Wend. 451 ; Matson v. Buck, 5 Cow. 
 499; Watkin v. Hall, 9 Best & S. 279; 
 Scott V. Sampson, 8 Q. B. D. 491. 
 Where the charge was of corrupt 
 practices, and only general issue 
 pleaded, defendant's counsel was not 
 permitted to ask a witness if he had 
 
§ 4I2.J IN MITIGATION. 679 
 
 fendant, to avail himself of a prior report, must shov/ that 
 he knew of such report before he made the publication 
 complained against.^ What two or three persons had said 
 in relation to plaintiff's character, was held inadmissible.* 
 In case for slander, imputing gross ill-treatment by the 
 plaintiff of a female, under the plea not guilty, the evi- 
 dence of the plaintiff showing that the words were spoken 
 in answer to an inquiry whether he had not imputed, &c., 
 and inquiry by the plaintiff who was the author of the 
 slander, the defendant replying that he had heard of the 
 imputation, and that the report was current, and that he 
 had reason to believe it true, but refused to give up the 
 reporter, held that the defendant might show, by cross-ex- 
 amination, that such report had in fact prevailed, and was 
 a topic of conversation before the uttering of the words 
 by the defendant* In an action for a libel, the defendant, 
 to support a charge against the plaintiff of having set up 
 and supported an infidel club, offered evidence that a club 
 to which the plaintiff belonged had the general character 
 of an infidel club. It was held that such evidence was not 
 admissible either to justify or mitigate the charge.* 
 
 § 412. The defendant may, in mitigation of damages, 
 show the plaintiff's standing and condition in society .' 
 
 heard that plaintiff was addicted to ' Richards v. Richards, 2 Mo. & 
 
 such practices. (Thompson w. Nye, 20 Rob. 557. Rumors cannot be proven 
 
 Law Jour. Q.B. 185; 16 Q. B. 175.) In in mitigation unless so general as to 
 
 v. Moor (i M. & S. 284), defend- affect the general character. (Marker 
 
 ant was permitted, on cross-examina- v. Uunn, 68 Iowa, 720.) The exist- 
 tion of a witness for the plaintiff, to ask ence of rumors of plaintiff 's guilt not 
 whether he had not heard reports of admissible. (Root v. King, 7 Cow. 
 plaintiff being guilty of offenses simi- 629; Oilman v. Lowell, 8 Wend. 579; 
 lar to the offense charged. See Taylor Bush v. Prosser, 11 N. Y. 347 ; Hat- 
 on Evidence, 315, 2d ed., where the field z/. Lasher, 81 N. Y. 250; Larabee 
 English authorities are collected, and v. Minnesota Tribune Co. 36 Minn. 
 are by the author said to preponderate 141. 
 
 in favor of the reception of the evidence * Stow 2/. Converse, 4 Conn. 17. 
 
 of general suspicion in mitigation. ' LamedT/. Buffinton, 3 Mass. 546; 
 
 (And see Wolmerz'. Latimer, I Jurist, Whitney v. Janesville Gazette, 5 
 
 19.) Bissell, 330; Bodwell v. Swan, 3 Pick. 
 
 1 Lothrop V. Adams, 133 Mass. 376; Howe v. Perry, 15 Pick. 506; 
 471. Bennett v. Matthews, 64 Barb. 410. 
 
 2 Regnier v. Cabot, 2 Oilman, 34. The Supreme Court of Pennsylvania 
 
68o 
 
 EVIDENCE FOR DEFENDANT. [CH. XVII. 
 
 § 413, The declaration of a defendant, made prior to 
 the publication complained of, may be given in evidence 
 to mitigate the damages; as where the defendant had 
 employed a printer to print the libel complained of, it 
 was held that he might, to show the absence of ill-will, 
 and to mitigate damages, prove that at the time of the 
 employment he instructed the printer to keep the matter 
 as private as possible.^ But declarations or acts of a de- 
 fendant, made subsequently to the publication complained 
 of, cannot be received in mitigation.* A full and unquali- 
 
 (Moyer v. Moyer, 49 Penn. St. 210) 
 held, in an action of slander for 
 charging perjury, evidence of plaintiff's 
 general character for truth was ad- 
 missible in mitigation. (And see i 
 Up. Can. Law Jour. N. S. 248.) 
 Proof should be limited to time prior 
 to commencement of action. (Calkins 
 *. Colburn, 10 N. Y. St. Rep. 778.) 
 Where there is nothing in the case to 
 impeach the reputation of the plaintiff, 
 the court should not charge that the 
 jury may consider the plaintiff 's gen- 
 eral reputation. (Padgett v. Sweeting, 
 65 Md. 404.) 
 
 » Taylor v. Church, 8 N. Y. 452 ; 
 and see Stallings v. Newman, 26 Ala. 
 300; Lick V. Owen, 47 Cal. 252; 
 Hagan v. Hendry, 18 Md. 177; Bond 
 V. JDouglass, 7 C. & P. 626 ; Vines v. 
 Serell, Id. 163; Inman v. Foster, 8 
 Wend. 602. An injunction of secrecy 
 upon the person to whom the publica- 
 tion was made held not to be a de- 
 fense. (McGowan v. Manifee, 7 T. 
 B. Monr. 314.) It was held proper, 
 on the trial of an indictment against 
 the editor of a newspaper for libel, 
 to ask a witness if at the time of the 
 publication the defendant was not 
 absent and knew nothing of the trans- 
 action. (Commonwealth v. Bucking- 
 ham, Thacher's Crim. Cas. 29.) 
 Under a defense of truth it cannot be 
 shown that the publication was with- 
 out defendant's knowledge. (Buckley 
 V. Knapp, 48 Mo. 152.) Defendant 
 may in mitigation set up that the pub- 
 
 lication was confidential. (Jeffras v 
 McKillop & Sprague Co. 4 Sup. Ct. 
 Rep. [T. & C] 578; 2 Hun, 351; and 
 see Edwards v. Kansas City Times, 32 
 Fed. Rep. 813. 
 
 * Scott V. McKinnish, 15 Ala. 662; 
 Bradford v. Edwards, 32 Ala. 628. 
 In Yeates v. Reed (4 Blackf. 463), an 
 action against husband and wife for 
 slander by the wife, it was held that 
 the husband's efforts to prevent the 
 circulation of the libel complained of 
 was not receivable in mitigation; it 
 was no mitigation of the guilt of the 
 wife. The defendant cannot, to sup- 
 port his plea of justification, g^ve evi- 
 dence of transactions or conversations 
 between himself and others, to which 
 plaintiff was not privy. (Jenkins v. 
 Cockerham, i Ired. 309 ; and see Bar- 
 field V. Britt, 2 Jones Law [N. Car.], 
 41.) And where defendant charged 
 plaintiff with being a thief, a rogue 
 and a swindler, and justified on the 
 ground that plaintiff had bought goods 
 of him, defendant, and resold them, 
 but had not paid defendant for them, 
 held that defendant could not prove 
 these facts, they not being known to 
 the persons present when the charge 
 was made. Martin v. Loei, 2 Fost. & 
 F. 654; and see Wakelin v. Morris, 
 Id. 27.) Where the action is for ac- 
 cusing plain tiff of stealing, the general 
 bad character of plaintiff is not ad- 
 missible in mitigation. (Williston v. 
 Smith, 3 Kerr [N. Brunswick], 443; 
 see § \ii,post.) 
 
§ 4I4-] 
 
 IN MITIGATION. 
 
 68l 
 
 iied retraction of the libel complained of before action com- 
 menced is admissible in mitigation.^ 
 
 § 414. The defendant may set up, in mitigation of 
 damages, that he made the publication in a moment of 
 heat and passion, induced by the immediately preceding 
 acts of the plaintiff.^ The defendant may, therefore, in 
 
 » Hotchkiss V. Oliphant, 2 Hill, 
 510; and see Morey v. Morning Jour. 
 17 N. Y. St. Rep. 266; Wallace v. 
 Storey, 60 111. 51. But hesitation, 
 lurking insinuation, an atten>pted 
 perversion of the import of the lan- 
 guage of the first libel, or a substitu- 
 tion of one calumny for another, only 
 aggravate the offense; and if the pub- 
 lisher, when advised of his error, hesi- 
 tate to correct it, the case rises into a 
 case of premeditated wrong, and he 
 becomes a fit subject for exemplary 
 punishment. {Id. ; Herman v. Brad- 
 street Co., 19 Mo. App. Rep. 227.) A 
 subsequent explanation and qualifica- 
 tion of the slander is not competent 
 evidence under a plea of justification. 
 (Lathan v. Berry, I Port. 1 10 ; and 
 see M'Alexander v. Harris, 6 Munf. 
 465.) Defendant's subsequent asser- 
 tions of the truth of the slander are 
 not evidence of its truth. (Rice v. 
 Withers, 9 Wend. 138.) As to the 
 effect of a withdrawal, or recantation, 
 see Lamed v. Buffinton, 3 Mass. 546 ; 
 Brown v. Brooks, 3 Ind. 518; Alder- 
 man V. French, I Pick. 19; Kent?'. 
 Bonzey, 38 Maine (3 Heath), 435; 
 Mapes V. Weeks, 4 Wend. 663 ; 6 & 7 
 Vict. ch. 96; 8 & 9 Vict. ch. 95. In 
 Linney v. Maton (13 Texas, 449), it 
 was held that an immediate retraction 
 of a charge made orally, and in the 
 presence of all who heard the charge, 
 was a defense to an action founded on 
 such charge; and see Winchell v. 
 Strong, 17 111. 597. Where one called 
 another a rogue, in the hearing of by- 
 standers, in a moment of irritation, and 
 in reference to his unwillingness to 
 settle a debt due him, and no injury 
 resulted from the words, it was held 
 not actionable. ( Artieta v. Artieta, 1 5 
 La. An. 48.) In Alabama, retraction 
 before suit is, by statute, made mitiga- 
 
 tion. (See Bradford v. Edwards, 32 
 Ala. 628.) Retraction after suit be- 
 gun is not admissible in mitigation. 
 (Tryon v. Even. News Asso. 42 Mich. 
 549.) Insanity, total or partial, in 
 mitigation. (Yeates v. Reed, 4 Blackf. 
 [Ind.] 463.) 
 
 2 Dolevin v. Wilder, 34 How. Pr. 
 Rep. 448; Miles v. Harrington, 8 
 Kansas, 425 ; Palmers. Lang, 7 Daly, 
 33; Warner v. Lockerby, 31 Minn. 
 421 ; Mousler v. Harding, 33 Ind. 
 176. Defendant cannot set up any 
 act or declaration of plaintiff 's in 
 mitigation unless such act or declara- 
 tion formed part of the res gestce. 
 (Richardson v. Northrup, 56 Barb. 
 105, see Quinby v. Minnesota Tri- 
 bune Co. 38 Minn. 528. Defend- 
 ant who would rely upon heat of 
 passion in mitigation of damages, 
 must set forth the acts and language 
 of the plaintiff which he claims caused 
 his passion. It is not sufficient to 
 allege simply that he uttered the words 
 in heat of passion caused by plaintiff. 
 In slander, if the words were spoken 
 through the heat of passion, or under 
 excitement produced by the immediate 
 provocation of the plaintiff, such ex- 
 citement or passion may be shown in 
 mitigation of damages ; and in Iowa, 
 without alleging tliem specifically in 
 the answer. (McClintock v. Crick, 4 
 Iowa, 453; and see Steever v. Beehler, 
 I Miles, 146; Brown v. Brooks, 3 Ind. 
 518; Lamed v. Buffinton, 3 Mass. 546; 
 Mousler v. Harding, 33 Ind. 176; 
 McDougald v. Coward, 95 No. Car. 
 368.) 
 
 The fact that the slanderous words 
 were spoken in a sudden heat of pas- 
 sion, or under great provocation, 
 should be considered by the jury in 
 mitigation of damages. (Powers v. 
 Presgroves, 38 Miss. 227; Ranger v. 
 
682 
 
 EVIDENCE FOR DEFENDANT. 
 
 [CH. 
 
 xvi: 
 
 mitigation, prove prior publication by the plaintiff of 
 provoking character.^ Acts or publications of person 
 other than the plaintiff are not receivable in mitigation 
 as where the plaintiff's father, shortly before the utterini 
 of the slander, used irritating language to the defendant 
 held that that fact was inadmissible in mitigation,* When 
 in an action for libel, the defendant sought to give in ev 
 dence libelous publications by the plaintiff of the defendan 
 in newspapers and periodical works ; held, that to mak 
 such admissible, it must be shown that they came to th 
 knowledge of the party supposed to be provoked therebj 
 and that the court could not infer from the mere deposit 
 ing newspapers in the defendant's name, as editor, at th 
 stamp office, under 38 Geo. Ill, c. 78, § 17, that the 
 were published by, or came to the knowledge of, the d< 
 fendant.^ 
 
 Goodrich, 17 Wise. 78 ; Duncan v. 
 Brown, 15 B. Monr. 186; Traphagen 
 •V. Carpenter, .1 City Hall Reporter, 
 55; Else v. Ferris, Anthon, 36; Jauch 
 V. Jauch, 50 Ind. 135; Miles v. Har- 
 rington, 8 Kansas, 425; Fisher v. 
 Rottereau, 2 McCord [So. Car.], 189; 
 Flagg V. Roberts, 67 111. 485 ; Hansler 
 V. Harding, 33 Ind. 176.) A charge 
 that if defendant's language was a 
 mere outburst of passion, induced by 
 plaintiff's conduct towards his, de- 
 fendant's, wife and himself, aad was 
 neither intended nor understood by 
 the bystanders to charge plaintiff 
 with the commission of a crime, they 
 should find for defendant, is a proper 
 instruction. (Ritchie v. Stenius, 41 
 No. West. Rep. 687 [Mich.].) 
 
 ' Thomas v. Dunaway, 30 111. 373; 
 Wakley v. Johnson, i Ry. & Mo. 422 ; 
 Whittemore -v. Weiss, 33 Mich. 348 ; 
 Tarpley v. Blabey, 2 Bing. N. C. 437. 
 Defendant may, in mitigation, give 
 evidence that plaintiff has been in the 
 practice of vilifying him, and that he 
 was influenced to use the language 
 with which he is charged by the abuse 
 of plaintiff, and that maybe shown by 
 defendant's declaration. The jury is 
 to determine whether the language 
 
 which defendant used was used bi 
 cause of such provocation receive 
 from plaintiff. (Botelar v. Bell, i M 
 175; Palmer v. Langi 7 Daly, 32 
 The effect of parties publishing d 
 famatory matter one against the oth 
 should be to give nominal damag 
 only. (Pugh v. McCarty, 40 Ga. 44 
 Hibbs V. Wilkinson, i Fost. & Fi 
 608; ante, p. 452, note I.) Whe 
 plaintiff published in a newspaper r 
 flections on defendant, and defenda 
 replied, held that if in so doing 1 
 said more than was necessary for 1 
 defense was a question for the jui 
 (O'Donaghue v. Hussey, Ir. Rep. 
 Com. Law, 124.) As to provocatii 
 in mitigation, see Hackett v. Brow 
 2 Heiskell (Tenn.), 264; Massuere 
 Dickens, 70 Wis. 83; Warner 
 Lockerby, 31 Minn. 421 ; and unc 
 Code of North Carolina, Knot 
 Burwell, 96 No. Car. 588 ; but s 
 cases in note 2, p. 683. Defenda 
 cannot set up in mitigation that t 
 publication was made amid the exci 
 ment of a political campaign. (Reari 
 ■V. Wilcox, 81 111. ^^.) 
 
 " Underbill v. Taylor, 2 Barb. 3. 
 
 » Watts V. Fraser, 2 Nev. & 
 157. Always, where mitigating < 
 
§§ 415) 4l6.j IN MITIGATION. 683 
 
 § 415. All the circumstances connected with the pub- 
 lication complained of should go to the jury ; ^ and there- 
 fore, in an action for a libel, the defendant may give in 
 evidence a former publication by the plaintiff, to which 
 the libel was an answer, to explain the subject-matter, 
 occasion and intent of the defendant's publication, and in 
 mitigation of damages.^ And a previous publication by 
 the plaintiff, to which the alleged libel is an answer, is ad- 
 missible. The judge, before admitting or excluding it, may 
 peruse it, in order to decide upon its character.* And all 
 papers referred to in a libel, may be admitted for the pur- 
 pose of explanation and interpretation.* A postscript is 
 admissible.' Prefixing a previous publication as a text 
 to the libel complained of, does not per se make such pre- 
 vious publication admissible in evidence.^ 
 
 § 416. Controversies between the plaintiff and de- 
 fendant prior to the publication complained of, and hav- 
 
 cumstances are offered in evidence for had no notice of such defense, as well 
 
 the purpose of repelling the presump- as of the inconvenience, by leading^ 
 
 tion of malice, it should be shown that to a multiplicity of inquiries. (May v. 
 
 the defendant knew of them at the Brown, 3 B. & Cr. 113; 4 D. & R. 
 
 time he made the charge. (Swift i/. 670; Tarpley v. Blabey, 2 Bing. 
 
 Dickerman. 31 Conn. 285 ; Dolevin v. N. C. 437; see Watts v. Fraser, 7 
 
 Wilder, 34 How. Pr. Rep. 488; Hat- C. & P. 369; i Mo. & Rob. 449; 
 
 field V. Lasher, 57 Id. 258; 81 N. Brown z/. Autrey, 78 Ga. 752 ; note i, 
 
 Y. 246; Odgers on Libel, 229, Am. p. 682.) 
 
 Edit. ; and see § 240, ante ; Reynolds ' Maynard v. Beardsley, 7 Wend. 
 
 V. Tucker, 6 Ohio St. 516; Whitney w. 560; Beardsley v. Maynard, 4 Wend. 
 
 Janesville Gazette, 5 Bissell, 330.) 336; Massuere v. Dickens, 70 Wis. 
 
 1 Cook V. Barkley, i Penn. N. J. 83. 
 
 169. The fact that the publication, " Nash v. Benedict, 25 Wend, 
 
 though false, was an honest effort to 645 ; MuUett v. Hulton, 4 Esp. 248 ; 
 
 repel an accusation made by plaintiff, ante, p. 631, note 4. 
 is a mitigating circumstance. (Shattuc ' Coleman's Case, 2 City Hall Re- 
 
 V. McArthur, 29 Fed. R. 136 [Mo.].) corder, 49. 
 
 2 Hotchkiss V. Lathrop, i Johns. « Gould w. Weed, 12 Wend. 12. 
 286. A prior publication by plaintiff A subsequent publication cannot be 
 not admissible in justification. {Id. ; given in evidence to determine the 
 Southwick 7/. Stevens, 10 Johns. 443.) character of a publication, whether it 
 Other libels alleged to have been pub- is libelous or not. Two articles, to be 
 lished by plaintiff of defendant, not re- so used, must appear simultaneously 
 lating to the same subject, are not ad- in the same paper or book. (Usher 
 missible in evidence, either in bar of v. Severance, 2 App. [20 Maine], 9; 
 the action or in mitigation of damages, but see contra, Brunswick v. Harmer, 
 both on the ground that the plaintiff 14 Q. B. 185). 
 
684 EVIDENCE FOR DEFENDANT. [CH. XVII. 
 
 ing no connection with the subject-matter of the publica- 
 tion, cannot be shown to mitigate the damages.^ Nor 
 are previous publications by the plaintiff concerning the 
 defendant admissible in mitigation, unless so immedi- 
 ately preceding the publication by the defendant as fairly 
 to raise the presumption that the defendant made the 
 publication under the impulse of the provocation.' The 
 defendant may show, in mitigation, that he was provoked 
 to the publication complained of by some contempora- 
 neous or nearly contemporaneous act or declaration of the 
 plaintiff. Simply to show provoking acts or declarations 
 by the plaintiff prior to the publication by the defendant, 
 is not sufficient.^ In an action for a libel, in which the 
 plaintiff was charged with being "a degraded scoundrel, 
 liar and blackguard," it was held that the defendant might 
 be allowed to prove, under the general issue, in mitigation 
 of damages, that the plaintiff, shortly prior to the publica- 
 tion of said libel, charged the defendant with false swear- 
 ing in a cause in which he was a witness.* In an action of 
 slander against husband and wife, for words spoken by 
 the wife, it is not competent for the defendant to prove 
 
 ^ Lister v. Wright, 2 Hill. 320. In refer to the time of the slanderous 
 an action of slander for words action- speaking. (Justice v. Kirlin, 17 Ind. 
 able in themselves, claiming general 588.) If the words complained of 
 damages only; held, that, under the were spoken in presence of plaint- 
 plea of the general issue, evidence that iff, and he replied to them, de- 
 during the six years prior to the trial fendant may give such reply in evi- 
 inveterate feelings of hostility had dence. (Bradley v. Bradner, 10 Cal. 
 existed between the plaintiff and de- 371.) 
 
 fendant, and that plaintiff had taken ' Morre v. Clay, 24 Ala. 235 ; 
 
 every opportunity to irritate defend- Watts v. Fraser, 2 Nev. & P. 1 57 ; 7 
 
 ant, was inadmissible. (Porter v. Ad. & El. 223; i Jurist, 671 ; i M. & 
 
 Henderson, 1 1 Mich. 20.) Rob. 449 ; Moore v. Oastler, i M. & 
 
 * Maynard v. Beardsley, 7 Wend. Rob. 451, note; Bourland v. Eidson, 
 
 560 ; Beardsley v. Maynard, 4 Id. 8 Gratt. 27 ; Willower v. Hill, 72 N. 
 
 336; Gould V. Weed, 12 /(^. 12; Child Y. 36. Libel published in the mom- 
 
 ^. Homer, 1 3 Pick. 503 ; Walker v. ing, held not to mitigate an assault on 
 
 Winn, 8 Mass. 248 ; Ransone v. the libeler in the afternoon of the same 
 
 Christian, 49 Ga. 491 ; Quinby v. day. (Fraser v. Berkeley, 7 C. & P. 
 
 Minn. Tribune Co. 38 Minn. 528; 621 ; disapproved of, Keiser z/. Smith, 
 
 McCarty v. Pugh. 40 Ga. 444. A 71 Ala. 481.) 
 
 question to a witness as to the state * Davis v. Griffith, 4 Gill & Johns, 
 
 of feeling between the parties must 342. 
 
§417.] 
 
 IN MITIGATION. 
 
 685 
 
 that circumstances relating to the plaintiff's conduct were 
 communicated to the husband before the slanderous words 
 were uttered.^ 
 
 §417. The defendant cannot, to mitigate damages, 
 give evidence of his poverty;^ of his apparent good 
 humor at the time of speaking the words ; * of his own bad 
 character;* that no one believed anything he said;^ that 
 the defendant was not the author of the slander, and that 
 he named the author at the time of the publication ; ^ that 
 
 » Petrie v. Rose, 5 Watts & Serg. 
 364. 
 
 2 Myers v. Malcolm, 6 Hill, 292 ; 
 Palmer v. Haskins, 28 Barb. 90 ; Per- 
 rine V. Winter, 73 Iowa, 645; 
 Pool V. Devers, 30 Ala. 672; and 
 see cases cited, p. 652, note 2, ante. 
 Where exemplary damages are 
 claimed, defendant may show his pov- 
 erty in mitigation. (Rea v. Harring- 
 ton, 58 Vt. 181.) 
 
 ' Weaver %i. Hendrick, 30 Mo. (9 
 Jones), 502; see ante, p. 440, n. 2. 
 Defendant being intoxicated at the 
 time of publication, said to be a matter 
 of mitigation. (Howell v. Howell, 10 
 Ired. 84.) 
 
 * Hasting v. Stetson, 130 Mass. 76. 
 ' Howe V. Perry, 1 5 Pick. 506 ; 
 
 contra. Gates v. Meredith, 7 Ind. 440. 
 An imputation of theft, made in the 
 presence of one witness only, who 
 stated that he did not believe the 
 charge, held no reason for restricting 
 the damages to a nominal amount. 
 (Markham v. Russell, 12 Allen, 573; 
 and see Burt v. McBain, 29 Mich. 260.) 
 The fact that the words were spoken 
 in the presence of one witness only, 
 was held to be receivable in mitigation 
 in Traphagen v. Carpenter (i City 
 Hall Reporter, 55). 
 
 • Treat v. Browning, 4 Conn. 408 ; 
 contra, Bennett v. Bennett, 6 C. & P. 
 588; Easterwood v. Quin, 2 Brev. 64; 
 but see ante, § 210. Under some cir- 
 cumstances defendant may prove, in 
 mitigation, that he derived his infor- 
 mation from others (Kennedy v. Greg- 
 ory, I Binn. 85 ; Galloway z/. Courtney, 
 10 Rich. Law[S. Car.], 414; but see 
 
 Thompson v. Bowers, i Doug. [Mich.] 
 321 ; Anthony 7/. Stephens, i Mo. 254^, 
 and from whom or how he derived his 
 information (Leister v. Smith, 2 Root, 
 24); as that the charge was taken from 
 the Journals of Congress (Romayne v. 
 Duane, 3 Wash. C. C. 246 ; ante, p. 
 675, note 2); or copied from another 
 paper. (Davis v. Cutbush, i Fost. & 
 Fin. 487 ; Howell v. Pioneer Press Co. 
 23 Minn. 178.) That defendant pub- 
 lished the libel on the communication 
 of a correspondent, held not admis- 
 sible in mitigation. (Talbutt v. Clark, 
 2 M. & Rob. 312.) Where A. pub- 
 lished a libel taken from a paper pub- 
 lished by B., as an extract from a 
 paper published by C, it was held, in 
 an action brought by C. against A., 
 that the testimony of D. that he had 
 heard A. , before he published the libel, 
 ask E. whether he had not seen it in 
 the paper of C, and that E. answered 
 ■'that he had," was inadmissible in 
 mitigation of damages ; but that E. 
 himself should be produced, if his 
 declaration were proper evidence. 
 (Coleman v. Southwick, 9 Johns. 45.) 
 In an action for the publication of a 
 libel, the defendant asked a news col- 
 lector, who wrote a part of the article 
 complained of, " What inquiries and 
 examinations he made, and what 
 sources of information he applied to, 
 before making the communication " 
 which tended to charge the plaintiff 
 with dishonesty and bad faith ? Held, 
 that the question was incompetent, 
 and that the defendant, as a founda- 
 tion for such question, could not proye 
 that there was a general anxiety in the 
 
686 
 
 EVIDENCE FOR DEFENDANT. [CH, XVII. 
 
 the publication did not injure,^ or that it benefitted the 
 plaintiff;'' or that others had previously published the 
 same words ; ' a declaration of the plaintiff that the publi- 
 cation did him no injury ;* or that he believed the defend- 
 ant was not the author but only the repeater of the slan- 
 der;® that plaintiff was an enemy of his (defendant's);* 
 that plaintiff is a quarrelsome person ; '' or a malicious per- 
 son ; * that plaintiff had boasted of committing offenses of 
 
 community in regard to the facts 
 stated in the publication. (Sheckell v. 
 Jackson, lo Cush. [Mass.] 25.) And 
 see Bond v. Kendall (36 Vt. 741), 
 where it was held that defendant 
 could not show the libel was a letter 
 to B. containing the result of inquiries 
 made concerning plaintiff at request of 
 B. Vi^here the action was for pub- 
 lishing the proceedings of a meeting, 
 held that defendant might prove in 
 mitigation that many severe expres- 
 sions were used towards plaintiff 
 which he did not include in his report. 
 (Creighton v. Finlay, Arm. Mac. & 
 Og, 385; and see Creevy v. Carr, 7 
 Car. & P. 64.) 
 
 » Titus V. Sumner, 44 N. Y. 266. 
 On the trial of an action for slander it 
 is not error to exclude a general offer 
 by defendant to prove that plaintiff's 
 reputation was not affected by the 
 publication. The evidence would be 
 a mere opinion of the witness, and is 
 not directed to plaintiff's want of 
 previous good character as affecting 
 the amount of the recovery. (Id.) 
 
 » Calhoun v. M'Means, i Nott & 
 McC. 422; Rex v. Woodfall, Lofft, 
 776. No man shall set up his own 
 iniquity as a defense any more than 
 as a cause of action. (Mansfield, Ch. 
 J., Montefiori v. Montefiori, i W. 
 Black. R. 363 ; see Stewart v. Wilkin- 
 son, 7 Law Times, 81 ; Fry v. Ben- 
 nett, 28 N. Y. 328 ; note 7, p. 520, ante. 
 
 ' Saunders v. Mills, 6 Bing. 213; 
 Hinkle v. Davenport, 38 Iowa, 355; 
 Willower v. Hill, 72 N. Y. 36; see 
 Hewett V. Pioneer Press Co. 25 Minn. 
 198; Tracy v. Luke, 2 Vict. Law Rep. 
 L. 64. Defendant may show in miti- 
 gation that in reproducing the article 
 
 some passages unfavorable to plaintiff 
 were omitted. (Creevy v. Carr, 7 Car. 
 & P. 64.) 
 
 * Porter v. Henderson, n Mich. 
 20 ; Richardson v. Barker, 7 Ind. 567. 
 In Quingley v. Phila. &c. R. R. Co. (2 
 How. U. S. Rep. 209), the defendants 
 gave evidence of declarations by 
 plaintiff that the matters out of which 
 the libel arose had improved his busi- 
 ness. In an action for libel, the an- 
 swer denied malice and injury to 
 plaintiff, and set up a justification. 
 On the trial defendant offered to prove 
 a conversation with plaintiff in which 
 he stated he had sustained no damage, 
 was ready to withdraw the suit, as he 
 had not been injured at all, and that 
 he would have withdrawn it, were it 
 not for his lawyers, who had taken 
 the case for what they could get out 
 of it. which was excluded, held that it 
 ought to have been received. (Samuels 
 V. Even'g Mail Asso. 6 Hun, 5; see 
 this case, 9 Hun, 288, and 75 N. 
 Y. 604.) A witness was allowed 
 to testify that when subpoenaed by 
 plaintiff, he, witness, asked plaintiff, 
 if he thought what defendant had 
 said had been of any injury to him, to 
 which plaintiff answered that he did 
 not know that it had, but it had occa- 
 sioned some of his creditors to crowd 
 him. (Ostrom v. Calkins, 5 Wend, 
 see ante, note 7, p. 520; and 
 2, p. 686 ) 
 Evans v. Smith, 5 T. B. Monr. 
 
 264; 
 
 note 
 
 5 
 
 363. 
 
 Craig V. Catlet, 5 Dana, 325. 
 
 ■■ Hosley v. Brooks, 20 111. 115; 
 M'Alexander v. Harris, 6 Munf. 465. 
 
 « Forshee v. Abrams, 2 Clarke 
 (Iowa), 572. 
 
41 7A.] 
 
 INJUNCTION. 
 
 687 
 
 a like character with that charged;^ that plaintiff was in 
 the habit of abusing the defendant ; ** that plaintiff was a 
 common libeler;* that plaintiff" has sometimes published 
 slander of other persons not the defendant ; * or has threat- 
 ened so to do ;^ a former recovery ; ^ that defendant de- 
 clared he could prove the truth of the words ;^ or in an 
 action for slander of husband and wife, that they lived un- 
 happily together ; ^ or kept a disorderly house.* 
 
 INJUNCTION. 
 
 § 417a;. The courts will, in some cases, interpose by in- 
 junction to prevent the perpetratio^i of a wrong, but as a 
 general rule the publication of an alleged libel will not be 
 stayed by injunction.'" The court of Star Chambers was 
 in the habit of restraining the publication of libels,^' and 
 
 * Pallett V. Sargent, 36 N. Hamp. 
 496. 
 
 2 Goodbread v. Ledbitter, i Dev. 
 & Bat. 12; Wakley v. Johnson, I Ry. 
 & M. 422 ; May v. Brown, 3 B. & Cr. 
 113; M' Alexander v. Harris, 6 Munf. 
 465 ; contra, see Botelar v. Bell, i Md. 
 173. In a suit for slander, for charg- 
 ing plaintiff with perjury, defendant 
 cannot show that, upon a wholly differ- 
 ent occasion, the plaintiff called him a 
 liar and a perjured wretch. (Porter v. 
 Henderson, 11 Mich. 20.) 
 
 ' Maynard v. Beardsley, 7 Wend. 
 560; 6, Id. 336; Gould V. VV'eed, 12 
 Id. 12; see Sullivan v. O'Leary, 15 
 No. East. Rep. 775 (Mass.). 
 
 * Forshee v. Abrams, 2 Clarke 
 (Iowa), 571. 
 
 " Cochran v. Butterfield, 18 N. 
 Hamp. 115. 
 
 « The defendant is not allowed to 
 give in evidence, in mitigation of 
 damages, a former recovery of dam- 
 ages, against him, in favor of the same 
 plaintiff, in another action for a libel, 
 which formed one of a series of num- 
 bers published in the same gazette, 
 and containing the libelous words 
 charged in the declaration in the sec- 
 
 ond suit. (Tillotson v. Cheetham, 3 
 Johns. 56.) The damages are not to 
 be lessened by the fact that plaintiff 
 has an action against other persons 
 for publishing the same language. 
 (Harrison v. Pearce, I Fost. & Fin. 
 567; Frescoe v. May, 2 Id. 123; and 
 see Cook v. Ellis, 6 Hill, 467.) 
 
 ' James v. Clarke, i Iredell, 397. 
 
 8 Anon. I Hill (S. Car.), 251. 
 
 ' Watson V. Moore, 2 Cush. 133. 
 1 " See, Restraining libel by injunc- 
 tion, 17 Irish Law Times, 40; Restraint 
 of libellous publications, 53 Law Times, 
 112; Injunction to restrain slander in 
 respect to business, by Robert P. Clapp, 
 23 Amer. Law Register, N. S. 701 ; 
 Oral slander of one's business, In- 
 junction against ; 20 Central Law Jour. 
 13; Injunction to restrain defamation, 
 18 Irish Law Times, 627; Injunction 
 to restrain libel and slander, 2 Mani- 
 toba Law Jour. 49; Enjoining publica- 
 tion of libels, 4 Cent. Law Jour. 170. 
 The law and practice of Injunctions, 
 by W. W. Kerr, with notes by Frank- 
 lin I. Dickson, Chapter XIII. Injunc- 
 tion against the publication of a libel 
 and against slander of Title. 
 1 1 Hudson's Star Chamber. 
 
688 INJUNCTION. [CH. XVII.. 
 
 after the abolition of that court, Chief Justice Scroggs, and 
 the other Judges of the Court of Kings Bench, prohibited 
 the publication of a periodical entitled "The Weekly- 
 Packet of Advice from Rome or the History of Popery." 
 Fof this Scroggs was impeached.' Lord Ellenborough 
 said obiter that the exhibition of a libelous painting might 
 be restrained by injunction.^ This dictum is said to have 
 excited much astonishment in the minds of all the practi- 
 tioners in the Court of Equity in England.^ Lord Chan- 
 cellor Parker granted an injunction to restrain the pub- 
 lication of a translation of a book from Latin into Eng- 
 lish, on the ground that the book in English might have a 
 hurtful public tendency.* The Chancellor of New York^ 
 on demurrer to a bill praying an injunction to restrain the 
 publication of a libelous pamphlet, dismissed the bill.^ The 
 House of Lords reversed a decree of the Scotch courts, 
 enjoining the publication of a register of the names of 
 persons whose notes had been protested.* Where plaint- 
 iff, a physician, applied for an injunction to restrain de- 
 fendant from, among other things, publishing an advertise- 
 ment, so expressed as to raise the inference that certain 
 pills sold by defendant, were sold by him on behalf of 
 plaintiff. The court held the advertisement amounted to 
 a libel on plaintiff and dismissed the bill, because to grant 
 the injunction "would imply that the court has jurisdiction 
 to stay the publication of a libel, and I cannot think it 
 
 1 8 Howell's St. Trials, 189. Norwich alderman. Oh Beasely! Oh 
 
 2 DuBost V. Beresford, 2 Camp, beastly !! obesity !!! Beasely got an 
 Rep. 511. injunction to restrain the publication, 
 
 3 Home's Case, 20 Howell's St. and the sheet containing the obnoxious 
 Trials, 799, note; 10 Campbell's Lives passage was cancelled. See Notes and 
 of the Chancellors, ch. ccxiii. Rev. G. Queries, 6th series, iii, April 2, 1881, 
 W. Lemon was master of Norwich page 271. 
 
 Grammar School and author of " En- * Burnett -v. Chetwood, 2 Merivale 
 
 ghsh Etymology,'' A. D. 1783. It is Rep. 441, note. 
 
 related of him that one Beasely, an = Brandreth v. Lance, 8 Paige, 24; 
 
 alderman of Norwich, offended him, and see Hoyt v. McKenzie, 3 Barb. 
 
 and in revenge he gave in his book Ch. R. 320. 
 
 as the derivation of obesity " The ex- « Fleming v. Newton, i Ho. of 
 
 clamation of people who see a certain L'ds Cas. 363. 
 
§4i7B.] 
 
 INJUNCTION. 
 
 689 
 
 has.^ But where a jury has found matter to be libelous, 
 there the courts in England will restrain its further publi- 
 cation.* 
 
 It has been said that the constitution of the State of 
 New York, by providing that every citizen may freely 
 speak, write and publish his sentiments on all subjects, de- 
 prives a court of equity of jurisdiction to restrain the pub- 
 lication of libelous matter.* An association incorporated 
 to protect dealers from giving credit to delinquent debtors 
 to members thereof, cannot be restrained by injunction 
 from publishing, to its members, plaintiff's name as such 
 delinquent, if he be in fact a delinquent.* 
 
 § 417^. For a time there was in England a decided 
 
 } Clark V. Freeman, 11 Beavan, 
 112; 12 Jur. 149; 17 Law Jour. Rep. 
 Ch. 142. This case is questioned in 
 supplement to Drewry on Injimctions, 
 34; but not on the ground that the 
 court had no jurisdiction to restrain the 
 publication of a libel. The case is 
 questioned also, in Springhead Spin- 
 ning Co. V. Riley, Law Rep. 6 Eq. 551 ; 
 Dixon V. Holden, Law Rep. 7 Eq. 488 ; 
 Maxwell v. Hogg, Law Rep. 2 Eq. 310. 
 An injunction to restrain publication 
 of an alleged libel was dented. (Mul- 
 kem V. Ward, Law Rep. 13 Eq. 619.) 
 And an application by Mr. Weldon to 
 restrain a publication in London edi- 
 tion of New York Herald was denied 
 by Lord Denman, September, 1889. 
 Injunction will not be granted to re- 
 strain publication of libelous notices, 
 unless no damages can be collected of 
 defendant. (Burnett v. Tak, 45 Law 
 Times Rep. 743.) 
 
 ' Saxby v. Easterbrook, 3 C. P. D. 
 339 ; see 30 English Reports (Moak's 
 Notes), 209. 
 
 ' N. y. Juvenile Guard. . So. v. 
 Roosevelt, 7 Daly, 188. In Louisiana 
 it was held that a Court of Equity 
 could not enjoin the publication of 
 a libel. (The State v. Civ. Dist. 
 Court, 34 La. Ann. 741.) And in 
 Kiddi-. Horry, 28 Fed. Rep. 773; 34 
 Alb. L. J. 371, Bradley, J., held that 
 the English cases which favored an 
 
 44 
 
 injunction were based upon the Com- 
 mon Law Procedure Act of 1854, and 
 the Judicature Act of 1873; "but 
 neither the statute law of this country 
 nor any well considered judgment of 
 the courts has introduced this new 
 branch of equity into our jurispru- 
 dence. " The Codes of Criminal Pro- 
 cedure and the Penal Code in Texas 
 provide for restraining the publication 
 of a libel and the distribution of libels, 
 and for putting under bonds not to 
 publish a libel. In Life Asao. of 
 Amer. v. Boogher(3 Mo. App. 173; 4 
 Cent. Law. Jour. 40), it was held that 
 a court of equity has no power; to; enr 
 join the threatened publication of a 
 libel, though its publisher is insolvent 
 and the damage will be irreparable. 
 In Francis v. Flinn (6 Supreme Court 
 Reporter, 1148), the Supreme Court 
 of the United States sustained a de- 
 murrer to a bill seeking to restrain 
 the publication of a libel, saying plaint- 
 iff had his remedy at law. ' , 
 * Greene v. U. S. Dealers' and 
 Protective Ass'n, 16 Abb. N. C. 419; 
 39 Hun, 300. An injunction will not 
 be granted to restrain a mercantile 
 agency from publishing representa- 
 tions as to the standing ai)d character 
 of a person, or as to his property, 
 even though false, if there is no breach 
 of trust or of contract involved. (Ray- 
 mond V. Russell, 143 Mass., 295.). 
 
690 INJUNCTION. [CH. XV 
 
 leaning towards extending the jurisdiction in the raatl 
 of injunctions to restrain libelous publication. An : 
 junction was granted against the publication of a noti 
 stating that plaintiff, a merchant, was a partner in a bar 
 rupt firm. Malins, V. C, in granting the injunction, sai 
 " I go further, and say if it (the publication sought to 
 restrained) had only injured his (plaintiff's) reputation, 
 is within the jurisdiction of this court to stop the public 
 tion of a libel of this description, which goes to destri 
 his (plaintiff's) property, or his reputation, which is 1 
 property, and, if possible, more valuable than any oth 
 property. In this case, I go on general principle, and 
 am fortified by authority. General principle is in its fav( 
 but authority is not wanting. ... In the decision 
 arrived at, I beg to be understood as laying down that tl 
 court has jurisdiction to prevent the publication of ai 
 letter, advertisement, or other document, which, if p( 
 mitted to go on, would have the effect of destroying t 
 property of another person, whether that consists of ta 
 gible or intangible property, whether it consists of mon 
 or reputation. Professional reputation is the means 
 acquiring wealth, and is the same as wealth itself."^ 
 
 An injuction was refused to restrain defendants, t 
 committee of an association called " The Underwrite 
 Registry," from publishing to their subscribers, againsi 
 report of a survey of plaintiff's ship, "class suspended 
 it was not libelous.'* The courts in Massachusetts refus 
 
 1 Dixon V. Holden, Law Rep. 7 » Clover v. Royden, Law Rep. 
 
 Eq.488;see, also, Springhead Spinning Eq. 190. The fact that plaintiff's » 
 
 Co. V. Riley, Law Rep. 6 Eq. 551. In utation might suffer by his dismii 
 
 Reg. v. L'd Mayor of London (L. R. from defendant's service is not 
 
 16 Q. B. 774), it is said that Dixon v. ground- for equitable interference 
 
 Holden was overruled in Prudential prevent his dismissal. (Johnsor 
 
 Ins. Co. V. Knott, Law Rep. 10 Ch. Shrewsbury R. R. Co. 3 De G. W 
 
 142. Any way the dictum of Malins, G. 926.) In Shore v. Jones & 
 
 V. C, has not been followed nor re- (London Times, Apl. 13, 1889), 
 
 ceived as authority. (See Poulet v. injunction was granted by Mr. Jus 
 
 Chatto, Week. Notes, 1887, pp. 192, Kay, restraining defendants "fi 
 
 230. Statement in Peerage as to publishing libelous and slander 
 
 legitimacy.) statements to the members of 
 
§4i7c.] 
 
 INJUNCTION. 
 
 691 
 
 an injunction to prevent one alleging that a patent is an 
 infringement of a previous patent,^ and so in New York.* 
 
 § 41 7^. In England the Judicature and the Patent acts,' 
 
 Junior Travellers' Club, or any other 
 club, association, or person, respect- 
 ing a debt or claim which defendants 
 alleged to be due them from plaintiff, 
 or respecting any of the matters re- 
 ferred to in a letter dated 20th March, 
 1889, written by defendants to plaint- 
 iff; " the letter being in these terms : 
 
 "Sir — We shall feel obliged if 
 you will kindly favor us with a reply 
 to our letter of the 4th of March. It 
 is, of course, far from our desire to do 
 anything detrimental to your future 
 position, but unless you make some 
 overtures towards satisfactory arrange- 
 ment we think it right to say that we 
 are acquainted with several members 
 of the club, and we shall mention the 
 matter to them." 
 
 And from continuing to write to 
 the plaintiff further letters of the same 
 character, the facts were that plaintiff 
 was bankrupt in 1878, and was then 
 indebted to defendants, his tailors. 
 Defendants had, upon plaintiff's pro- 
 mise to pay their debt when able to 
 do so, accepted a composition. 
 
 ' Whitehead v. Kitson. 119 Mass. 
 484; citing Boston Diatite Co. v. 
 Florence Manuf. Co. 114 Mass. 69: 
 Prudential Ass. Co. v. Knott, Law 
 Rep. 10 Ch. 142. 
 
 » Hovey v. Rubber Tip Pencil 
 Co. 57 N. Y. 119. The action failed 
 chiefly on the ground that it involved 
 the validity of a patent, and so the 
 State Court had no authority. In 
 Flint V. Hutchinson Smoke Burning 
 Co. (38 Fed. Rep. 546), the Federal 
 Court refused an application for an 
 injunction to restrain slander of title 
 to a patent on the ground that the 
 State Court had jurisdiction. As to 
 jurisdiction, see Snow v. Judson, 38 
 Barb. 210. In Mauger v. Dick (55 
 How. Pr. R. 132), plaintiff sought to 
 enjoin defendant from continuing to 
 publish the following circular: 
 
 " To the wholesale and retail drug- 
 gists of the United States : 
 
 " Gentlemen— We have been ad- 
 
 vised that certain parties are infring- 
 ing our trade-mark rights by seeking 
 to place in the market imitations of 
 our soft capsules. We would there- 
 fore warn the trade of such goods, 
 and state that since introducing our 
 soft capsules, in 1865, we have ad- 
 vertised and characterized our medi- 
 cines under that name, and that we 
 have the exclusive right to use the 
 trade mark ' Soft Capsules,' according 
 to law. Therefore, we hereby give 
 notice that we shall punish promptly, 
 and to the full extent of the law, any 
 encroachment on our rights, whether 
 such be of a direct or indirect nature, 
 and whether by selling or offering for 
 sale any goods of that description 
 bearing that name and not of our 
 manufacture. 
 
 " No soft capsules are genuine un- 
 less bearing the signature of Dundas 
 Dick & Co. on each box. 
 
 " Yours, very respectfully, 
 
 "DuNDAS Dick & Co." 
 
 The complaint was dismissed. 
 (Citing Wolfe w, Burke, 56 N. Y. 115; 
 Boston Diatite Co. v. Florence, 114 
 Mass. 69.) The publication of a cir- 
 cular denying plaintiff's patent right 
 was restrained. (Croft v. Richardson, 
 59 How. Pr. R, 356,) 
 
 ^ By the Patents Act, 46 and 47 
 Vict, ch, 57, it is enacted that where 
 any person who claims to be patentee 
 of an invention, by circulars, advertise- 
 ments or otherwise, threatens any 
 other person with legal proceedings 
 or liability in respect to any alleged 
 manufacture, use, sale or purchase of 
 such invention, any person aggrieved 
 thereby may obtain an injunction 
 against the continuance of such 
 threats, &c., proviso, that this section 
 shall not apply if the person making 
 the threat with due diligence prose- 
 cutes an action for infringement. The 
 threats need not relate to acts already 
 committed. (Kurtz v. Spence, 57 
 Law Jour. Ch. 238; 5 Pat. Cas. Rep. 
 161.) Where the proviso is satisfied 
 
692 
 
 INJUNCTION. 
 
 [CH, XVII. 
 
 have conferred the right to enjoin the publication, by cir- 
 cular or otherwise, that plaintiff is infringing defendant's 
 patent.^ Since those acts the court will restrain the pub- 
 lication of circulars which are injurious to trade or prop- 
 erty, although no actual damage is proved in cases where 
 the circular is calculated to injure plaintiffs business.* 
 The court will not in general interfere unless satisfied that 
 the statements contained in the document complained of 
 are untrue, especially where the document is prima facie 
 a privileged communication.* An injunction to restrain 
 
 the act does not apply. (Challender 
 V. Royle, 36 Ch. D. 425.) But during 
 the pendency of an action for infringe- 
 ment the court will not allow circulars 
 containing a positive statement of an 
 infringement. (Goulard v. Lindsey, 4 
 Pat. Cas. Rep. 190 ; 56 Law Times, N. 
 S. S06.) 
 
 ' Rollins V. Hinks, Law Rep. 13 
 Eq. 355; Axman v. Lund, 18 Id. 330. 
 In Hammersmith Skating Rink v. 
 Dublin Skating Rink (10 Ir. R. Eq. 
 23s), it is said that Rollins v. Hinks and 
 Axman v. Lund, were virtually over- 
 ruled by Prudential Asso. Co. v. Knott, 
 Law Rep. 10 Ch. 142. But preliminary 
 injunction ought not to be granted, 
 except on a strong prima facie 
 case to restrain the circulation of cir- 
 culars honestly issued to warn people 
 not to infringe a patent by purchasing 
 certain goods. (Societe Anonyme 
 des Manuf. de Glaces v. Tilghman's 
 Patent Sand Blast Co. 49 Law Times 
 Rep. N. S. 451; 25 Ch. Div. i; dis- 
 tinguishing Beth V. Wilmot, Law 
 Rep. 6 Ch. 239.) Plaintiffs were the 
 makers of "Rainbow Water Raisers 
 or Elevators," they commenced an ac- 
 tion for an injunction to restrain de- 
 fendants from issuing a circular cau- 
 tioning the public against the use of 
 such elevators as being direct infringe- 
 ments of certain patents of defendants. 
 Plaintiffs subsequently gave notice of 
 a motion to restrain the issue of this 
 circular until the trial of the action. 
 Defendants then commenced a cross- 
 action, claiming an injunction to re- 
 strain plaintiffs from infringing their 
 patents. Held, that as there was no 
 
 evidence of mala fides on the part of 
 defendants, they ought not to be re- 
 strained from issuing the circulars un- 
 til their action had been disposed of; 
 that they must undertake to prose- 
 cute their action without delay. 
 (Household v. Fairburn, 51 Law 
 Times Rep. N. S. 498.) In Palmer v. 
 Travis (U. S. Cir. Co't, So. Dist. New 
 York, 18 The Reporter, 99), the court 
 refused to enjoin defendant from 
 making representations in writing to 
 his, plaintiff's, customers that plaint- 
 iff 's hammocks infringed defendant's 
 patent, on the ground that it was not 
 alleged that defendant threatened to 
 continue to make such representations, 
 nor that plaintiff feared he would do 
 so. 
 
 ^ Thomas v. Williams, 43 Law 
 Times Rep, 91 ; Thorley's Cattle Food 
 Co. V. Massam, Law Rep. 14 Ch. D. 
 1763. In Singer Sewing Machine Co. 
 V. Domestic Sewing Machine Co. (49 
 Ga. 70), an injunction to restrain a 
 publication alleged to be injurious to 
 plaintiff 's business was refused. 
 
 » Quartz Hill Con. Gold Mining 
 Co. V. Beal, 20 L. R. Ch. D. 501. In 
 that case, a solicitor, acting for some 
 shareholders, circulated, but only 
 among the shareholders, a circular 
 containing very strong reflections on 
 the way in which the company had 
 been brought out, and on the conduct 
 of the promoters and the directors, and 
 proposing a meeting of shareholders 
 to take steps to protect their interests. 
 The company commenced an action to 
 restrain the further publication, and 
 applied for an interlocutory injunction 
 
§4I7C-] INJUNCTION. 693 
 
 the publication of articles reflecting unfavorably on a com- 
 pany was refused on the ground of the difficulty of grant- 
 ing an injunction which would not include matters that 
 might turn out not to be libelous, and because, if the in- 
 junction was granted in terms to restrain what was libel- 
 ous, the question of libel or no libel would have to be 
 tried in a very unsatisfactory way on motion to commit 
 for contempt.^ 
 
 The parties were rivals in trade, defendants distributed 
 a printed circular, which stated that they were the original 
 firm, and after giving the title of a former action of in- 
 junction between them, headed by the word "caution," 
 proceeded, " By the judgment, the defendant was ordered 
 to undertake not to represent that his firm is, or that the 
 defendants' firm is not the original firm of R. H. & Son. 
 Messrs. R. H. & Son^ finding that serious misrepresenta- 
 tions were in circulation to their prejudice, felt themselves 
 compelled to bring the above action." Held, the circular 
 containing an untrue statement of the effect of the judg- 
 ment in the other action, it was a libel injurious to plaint- 
 iff 's trade, that it was not privileged, that the defendants 
 had published it maliciously, and plaintiff was entitled to 
 an injunction.^ Where an honorary member of a friendly 
 society issued a circular, among the clergymen of the 
 parishes in which the society had district lodges, stating 
 matters which were untrue and calculated to injure the 
 business interests of the society. Held, that an injunction 
 issue restraining the issuing of the circular until the trial 
 of the action (for libel).* 
 
 to restrain the publication of a libel. an infringement of their trade-mark ; 
 
 Held, the court had jurisdiction to in- the prosecution was stayed on Fisher 
 
 terfere. (And see Anderson v. Liebig's & Co. gifing a written apology. The 
 
 Extract of Meat Co. 45 Law Times ApoUinaris Co. advertised this apol- 
 
 Rep. 757.) ogy, whereupon Fisher & Co. applied 
 
 1 Liverpool Household Store Asso. for an injunction restraining the pub- 
 s'. Smith, 37 Ch. Div. 170. lication. The application \yas denied. 
 
 2 Hay ward v. Hay ward, 34 Law (Fisher & Co. v. ApoUinaris Go. Law 
 Rep. Ch. Div. 198. The ApoUinaris Rep. 10 Eq. 297.) 
 
 Co had prosecuted Fisher & Co. for ' Hill v. Hart-Davis, 47 Law 
 
694 
 
 INJUNCTION. 
 
 [CH, xvri. 
 
 § ifi'jd. It is said there cannot be any copy right in a 
 libel/ 
 
 Times Rep. 82. An injunction was 
 granted restraining the circulation of 
 the following circular : 
 
 "Notice to Farmers— The under- 
 signed butter merchants of Limerick 
 will not, from Saturday next, purchase 
 any butter packed in machine made 
 casks or firkins, as we find them most 
 injurious to the keeping qualities of 
 butter; and we strongly urge on the 
 farmers of Limerick, &c., the great 
 necessity of packing their butter in 
 hand-made casks or firkins." (Punch 
 V. Boyd, 16 Irish Law Rep. 476; and 
 see Dicks v. Brooks, 15 Ch. D. 22; 
 Hammersmith Skating Rink v. Dub- 
 lin Skating Rink, 10 Ir. Rep. Eq. 235; 
 Halsey v. Brotherhood, 15 Ch. D. 514; 
 19 Id. 386 ; Herman Loog v. Bean, 
 26 Id. 306 ; Household v. Fairbum, 
 SI Law Times, N. S. 498; Riddle z/. 
 Clydesdale, 12 Co't of Sess. Cas. 4 
 Series, 976; Challender v. Royle, 36 
 Ch. D. 425 ; Kurtz v. Spence, 33 Id. 
 £79 ; Barney v. United Telephone Co. 
 28 Id. 395 ; Duffield v. Linseed Cake 
 Co. 31 Ch. Div. 638; Union Electric 
 Co. V. Electric Power Co. 57 Law 
 Times, N, S. 791.) 
 
 * Drone on Copyright, 181. There 
 is no jurisdiction to enjoin against a 
 wicked or libelous work merely on the 
 ground of its mischievous character, 
 and, on the other hand, if a work 
 alleged to be copyright be tainted by 
 immorality, libel or fraud, it is not 
 acknowledged as property at law, and 
 in that case, or even if it be of a doubt- 
 ful tendency, the Court of Chancery 
 will not interfere. (Adams' Equity, 
 5th Am. ed, A. D. i868, page 426 
 [216] ; citing Gee v. Pritchard, 2 Sw. 
 402; Du Bost V. Beresford, 2 Camp. 
 511; Wright r/. Tallis, i M. G. & S. 
 [Com. B. O. S.] 893; Southey v. Sher- 
 wood, 2 Meriv. 438; Lawrence v. 
 Smith, I Jac. 471.) ^ 
 
 "Jnj unctions had been granted 
 against the piracy of the. ' Dunciad' 
 notwithstanding its libelous passages ; 
 dnd even against the piracy of Mrs. 
 Bellamy's Memoirs, a work of noto- 
 rious indecency. The law upon the 
 subject had never been mooted, until, 
 
 in an action brought by Dr. Priestley, 
 the great apostle of Unitarianism, 
 against the hundred, for the destruc- 
 tion of his manuscripts in the Bir- 
 mingham riots, Lord Justice Eyre told 
 the jury that if the evidence had shown 
 the contents of the destroyed works to 
 be in the nature of libels upon the 
 government, he should have consider- 
 ed such proof as receivable against 
 Dr. Priestley's claim. In this state of 
 the law, an application was made by 
 Dr. Walcot, the noted ' Peter Pindar,' 
 for an injunction against the piracy of 
 some of his works. Lord Eldon, 
 grounding himself upon the common 
 law as stated by Chief Justice Eyre, 
 refused the injunction, and laid down 
 the principle by which, from that 
 time, this subject has been regulated. 
 (Walcot V. Walker, 7 Ves. I.) In the 
 latter case of Mr. Southey's applica- 
 tion for an injunction to restrain the 
 sale of ' Wat Tyler,' a seditious work 
 produced by him in early youth, which 
 a bookseller, having casually obtained 
 a copy of it, was now unfairly pub- 
 lishing. Lord Eldon said, in giving 
 judgment, ' It is very true that, in 
 some cases, it may operate so as to 
 multiply copies of mischievous pub- 
 lications by the refusal of the court to 
 interfere by restraining them ; but to 
 this my answer is, that sitting here as 
 a judge, upon a mere question of prop- 
 erty, I have nothing to do except with 
 the civil interests of the parties ; and 
 if the publication be mischievous, it 
 is not my business to interfere with 
 it. ' " (Southey v. Sherwood. 2 Meriv. 
 435; and see Lawrence v. Smith, i 
 Jacob, 471; and Edinburgh Review, 
 May, 1823; 2 Life of Lord Eldon, by 
 Twiss, ch. Ixiii.) 
 
 Lord Eldon refused an injunction 
 to restrain the sale of a pirated edition 
 of Lord Byron's "Cain," on the 
 ground that it was a profane libel. 
 (Murray v. Benbow, i Jac. 474, note, 
 noticed with other cases in Phillips on 
 Copyright, 23.) Lord Campbell in Lives 
 of the Lord Chancellors, 255, criticises 
 the decisions of Lord Eldon, refusing 
 to protect the copyright in libelous 
 
§4i7E.] 
 
 INJUNCTION. 
 
 695 
 
 §417^, The courts will restrain, as a contempt of 
 court, the publication of anything calculated to prejudice 
 the case of the opposite party .^ A defendant in a suit, 
 a minister of the gospel, was restrained by injunction from 
 publishing notice of an intended sermon on the subject 
 of the suit then pending, and from preaching such ser- 
 mon ; on the ground that such sermon was a contempt of 
 court.* 
 
 publications. The courts interfere by 
 injunction to restrain the publication of 
 letters written by a party or his testa- 
 tor. (2 Story's Eq. Juris. §§ 943-949 ; 
 Woolsey v. Judd, 11 How. Pr. R. 
 49; 4 Duer, 379; Resp. v. Duane, 
 I Binney, 98; 2 Stark. Sland. 268, 
 note I. 
 
 1 See ante, page 359, note 6; Mer- 
 rill on Newspaper Libel, ch. iv. Li- 
 bels as contempts of court. 
 
 ' Markett v. Comm'rs of Heame 
 
 Bay, 24 Week. Rep. 845. In an un- 
 reported case (Meserole v. Goldsmith) 
 decided January, 1870, in New York, 
 Justice Ingraham interdicted the pub- 
 lication of a circular purporting to be 
 the report of a trial relative to a patent 
 right for paper collars. An injunction 
 to restrain a fair report of proceed- 
 ings in court was refused. (Riddell v. 
 Clydesdale Horse Soc. 12 Co't of Sess. 
 Cas. 976 [Scot.].) 
 
PART III. 
 
 MALICIOUS PROSECUTION. 
 
CHAPTER XVIII. 
 
 MALICIOUS PROSECUTION.! 
 
 Right of appeal to criminal tribunal — What is malicious 
 prosecution — Distinction between malicious prosecution 
 and false imprisonment — Essentials to a cause of action 
 — Prosecution commenced — Terminated in favor of 
 plaintiff- — Conviction — Reasonable and probable cause 
 — Advice of counsel — Not guilt or innocence^ but 
 knowledge and belief of prosecutor the question — 
 Probable cause a question of law — Malice— Parties — 
 Pleadings. 
 
 § 418. We have now to consider that wrong by means 
 of language termed a malicious prosecution. As hereto- 
 fore stated, every one having reasonable and probable 
 grounds for believing that a crime had been committed, 
 has the right to communicate his belief to the magistrate 
 having jurisdiction of such offense (§ 220). The existence 
 of this right is essentially necessary to the efficient admin- 
 istration of the criminal law, and its exercise is to be en- 
 couraged rather than repressed.* Having reasonable and 
 
 ' For remarks upon the origin and Discharge by justice or ignoring by- 
 history of the action for malicious grand jury, 
 prosecution, see Bigelow's Leading Discharge by nolle pros. 
 Cases on the Law of Torts, note to Finding true bill by grand jury. 
 Malicious Prosecution; see, also, i Conviction by court of competent 
 American Leading Cases, Hare & jurisdiction. 
 Wallace, 200-224, 4th edit. See note Mixed question of law and fact. 
 to Heap V. Parrish (3 No. East. Rep. Practice. 
 552J, citing a large number of cases. Intent. 
 English and American, with references, Advice of counsel, 
 under following heads : Advice of District Attorney. 
 Probable cause : Advice of Justice of the Peace. 
 
 Definition of. Public officer. 
 
 Want of. Defective process. 
 
 What amounts to. Malice, &c. 
 
 Belief of prosecutor. ' " Actions for malicious prosecu- 
 
700 
 
 MALICIOUS PROSECUTION. 
 
 [CH. XVIII. 
 
 probable cause for believing the accused guilty of the 
 offense imputed confers this right, and the right is not 
 tolled by being exercised maliciously. 
 
 § 419. Attention has been heretofore directed to the 
 difference between the right to appeal to a civil and the 
 right to appeal to a criminal tribunal (§ 221).^ An appeal 
 
 tion are looked upon with disfavor." 
 (Savill z/. Roberts, Carth. 416; Pant- 
 sune V. Marshall, Say. 162; Wanzer 
 V. Wyckoff, 9 Hun, 179.) " Courts 
 will be cautious how they discourage 
 men from suing." (Goslin v. Wil- 
 cock, 2 Wilson, 302; Cardival v. 
 Smith, 109 Mass. 1 58 ; and see Hurd 
 z/. Shaw, 20 111. 354.) "In general, 
 however, every man is of common 
 right entitled -10 prefer an accusation 
 against a party whom he suspects to 
 be guilty." (Chit. Cr. Law, 2.) In 
 some cases it is not only the right, 
 but it is the duty of one cognizant of 
 the commission of a criminal offense 
 to communicate his knowledge. 
 
 * In addition to the instances 
 given (note 3, p. 331, ante), actions 
 have been maintained for issuing an 
 attachment (Brewer v. Jacob, 22 Fed. 
 Rep. 217; Collins 7/. Shannon, 67 Wis. 
 441 ; Biering v. First Nat. B'k of Gal- 
 veston, 69 Texas, 599; Brooks v. 
 Sanger, 7 So. West. Rep. 355 [Texas]; 
 Palmer v. Keith, 16 Neb. 91) ; for 
 filing notice of lis pendens against 
 real estate (Smith v. Smith, 20 Hun, 
 S5S; 56 How. Pra. Rep. 316); for 
 restraining plaintiff by injunction 
 (Lawton v. Green, 5 Hun, 157; Frame 
 V. Sewing Machine Co. 31 Fed. Rep. 
 704); for arresting in a civil action 
 (Ingraham v. Root, 51 Hun, 238 ; 21 
 N. Y. St. Rep. 192; Daniels 7/. Field- 
 ing, 16 M. & W. 200; Gibbons z/. 
 Allison, 3 C. B. 181 ; Petrie v. La- 
 ment, 4 Sc. N. R. 335; Melia v. 
 Neate, 3 Fost. & F. 757; Gibson w. 
 Veasey, 15 Law Times, N. S. 586; 
 Ray V. Law, Peters C. C. R. 207 ; 
 Stokley v. Homidge, 8 Car. & P. 11; 
 Heywood v. Cellinge, 9 Ad. & El. 268 ; 
 Zantzmayer v. Weightman, 2 Cranch 
 C. Ct. 478 ; Breckenridge v. Auld, 4 
 Id. 731 ; Smith v. Cattel, 2 Wils. 376; 
 Goslin V. Wilcock, Id. y)2 ; Norrish v. 
 
 Richards, 3 Ad. & El. 733 ; Newton 
 V. Boodle, 9 Q. B. 948 ; Richardson v. 
 Virtue, 4 Sup. Ct. Rep. [T. & C] 441 ; 
 Cuthbert v. Galloway, 35 Fed. Rep. 
 466); for arresting after debt paid 
 (Tibbutt V. Hoh, i Car. & K. 280); 
 for bringing vexatious ejectment 
 (Purton V. Honnor, i Bos. & P. 205) ; 
 for refusing to consent to plaintiiT's 
 discharge from arrest (Moore v. Gard- 
 ner, 16 M. & W. 595); for issuing ex- 
 ecution against the person of plaintiff 
 after he had been discharged under the 
 insolvent act (Envart v. Jones, 3 
 Dowl. & L. 252 ; and see Yearsley v. 
 Heane, 5 Dowl. & L. 265) ; for arrest- 
 ing one while privileged from arrest 
 (Stokes V. White, 4 Tyr. 786; Mag- 
 nay V. Burt, 5 Q. B. 381 ; Whalley v. 
 Pepper, 7 C. & P. 506); for arresting 
 for more than is due (DeMedina v. 
 Grove, 10 Q. B. 152; Churchill v. 
 Siggers, 3 El. & Bl. 929; Huffer v. 
 Allen, Law Rep. 2 Ex. 15; Gilding 
 V. Eyre, 10 C. B. N. S. 592 ; Went- 
 worth V. Bullen, 9 C. B. 840); for 
 causing one to be declared a bank- 
 rupt (see Farley v. Danks, 4 El. & Bl. 
 493; Brown v. Chapman, 3 Burr. 
 141 8; Chapman v. Pickersgill, 2 Wils. 
 145 ; Whitworth v. Hall, 2 B. & Add. 
 695; Hay V. Weakley, 5 C. & P. 364; 
 Atkinson v. Rawley, 3 G. & D. 611 ; 
 Colton V. James, i B. & Adol. 128; 
 Kemp V. King, Car. & M. 396 ; Quartz 
 Hill Gold Mining Co. v. Eyre, 1 1 Q. 
 B. D. 674) ; for maliciously rendering 
 in discharge of bail (Porter v. Weston, 
 5 Bing. N. C. 715); for procuring one 
 to be outlawed (Drummond v. Pigon, 
 7 C. & P. 228) ; for an unlawful distress 
 (Stevenson v. Newnham, 13 C. B. 285; 
 Grau V. Morgan, i Hodges, 398) ; for 
 issuing a commission of lunacy 
 (Turner v. Turner, Gow, 50 ; and see 
 Lockenour v. Sides, 57 Ind. 360; 
 Ayres v. Russell, 50 Hun, 283; Carr 
 
§ 419] 
 
 MALICIOUS PROSECUTION. 
 
 701 
 
 to a criminal tribunal may involve the defamation of the 
 accused, his arrest, his being held to bail, or imprisoned, 
 and the expense of his defense.^ Ordinarily a civil action 
 involves the defendant merely in the costs of his defense, 
 and in civil actions, with rare exceptions, the award of 
 costs to the defendant is the only penalty to which the 
 plaintiff is subjected for having made an unfounded com- 
 plaint. But where, in a civil action, the defendant is held 
 to bail, or imprisoned, he has, under certain circumstances, 
 a remedy by action, and such an action is usually denom- 
 inated an action for " malicious prosecution." ^ Without 
 
 V. Torre, 54 Law Times, N. S. 516); 
 for suing out a writ of extent (Craig v. 
 Hasell, 3 G. & B. 299; 4 Q. B. 481) ; 
 for instituting proceedings for forcible 
 entry and detainer (Pope v. Pollock, 
 
 46 Ohio St. ) ; for foreclosing a 
 
 mortgage (Marable v. Mayer, 3 So. 
 East. Rep. 429) ; for libeling a vessel 
 (Chambers v. Upton, 34 Fed. Rep. 
 474; Redway w. Mc Andrew, L. R. 9 
 Q. B. 74); for conspiring to have one 
 indicted for trespass (Norris v. Palmer, 
 2 Mod. 51); for suing for libel in a 
 court not having jurisdiction (Eldred 
 V. Fawdrey, 16 N. Y. St. Rep. 83) ; 
 malicious prosecution of civil action. 
 (McPhearson v. Runyon, 40 Alb. L. 
 J. 403); for proceeding for contempt 
 
 (Bartlett v. Christhilf, 69 Md. ) ; 
 
 for vexatious suit for infringement of a 
 patent (Clements v. Oderless Excavat- 
 ing Co. 67 Md. 461, 605) ; for vexa- 
 tious proceedings to recover taxes 
 (Brown v. City of Cape Girardeau, 2 
 So. West. Rep. 302) ; for rejecting a 
 vote (Tozer v. Child, 6 El. & Bl. 289); 
 against magistrate for malicious con- 
 viction (Barley v. Bethune, I Marsh. 
 220; 5 Taunt. 580; Glen z/. Hall, 2 
 Hurl. & N. 379; 2 Law Jour. Rep. M. 
 C. 78) ; for obtaining a search war- 
 rant (Boot V. Cooper, l T. R. 535 ; 
 Leigh V. Webb, 3 Esp. 164; Elsee v. 
 Smith, I D. & R. 28; Wyattw. White, 
 5 H. & N. 371 ; Hope v. Evered, 17 
 Q. B. D. 386); distinction between 
 malicious prosecution, properly so 
 called, and action on the case for con- 
 spiracy, abuse of judicial process, &c. 
 
 (Frierson v. Hewitt, 2 Hill [S. Car.], 
 
 499^ 
 
 * The elements of the action are : 
 "(i) Damage to a man's fame, as if the 
 matter whereof he is accused be scan- 
 dalous; (2) where a man is put in 
 danger to lose his life or limb, or lib- 
 erty ; (3) damage to a man's property, 
 as where he is forced to expend 
 money in necessary charges to acquit 
 him of the crime which he is accused " 
 (Holt, C. J., Savile v. Roberts, i Ld. 
 Raym. 374) ; or, (4) causes any [other] 
 special damage. (Id^ ''Wherever 
 there is an injury done to a man's 
 property by a false and malicious 
 prosecution, it is most reasonable he 
 should have an action to repair him- 
 self.'' (Pratt, C. J., Chapman v. Pick- 
 ersgill, 2 Wils. 145.) 
 
 * ■' The injury to the reputation is 
 in many cases the gravamen of the 
 action. An accusation of crime made 
 under the forms of law, or on the pre- 
 tense of bringing a guilty man to 
 justice, is made in the most imposing 
 and impressive manner, and may 
 inflict a deeper injury upon the repu- 
 tation of the party accused than the 
 same words uttered under any other 
 circumstances. The most appropriate 
 remedy for the calumny in such cases 
 is by the action for malicious prosecu- 
 tion " (Rockwell V. Brown, 36 N. Y. 
 209) ; and in an action for malicious 
 prosecution the plaintiff may recover 
 not only for the unlawful arrest and 
 imprisonment and expenses of his 
 defense, but also for the injury to his 
 
702 
 
 MALICIOUS PROSECUTION. [CH. XVI 
 
 insisting that this is improper, we exclude such actio 
 from our consideration, and confine ourselves exclusive 
 to the action for making a criminal charge maliciously ar 
 without reasonable and probable cause. 
 
 § 420. There is a fundamental distinction between 
 malicious prosecution and a false imprisonment. A ma 
 cious prosecution consists in merely making the complain 
 leaving the officer to whom the complaint is made t 
 determine what shall be done thereupon,^ whereas a fal: 
 imprisonment consists in the party complaining, himse 
 determining what shall be done, as by arresting or d 
 manding the arrest of the accused, without the interventic 
 of an officer having power to decide whether such arre: 
 is or is not proper to be made. False imprisonment 
 defined as an injury to the person, and malicious prosec 
 tion as an injury to the reputation.^ 
 
 reputation. (Sheldon v. Carpenter, 4 
 N. Y. 579.) Costs of defense are part 
 of the damages (Rowlands v. Samuel, 
 II Q. B. 39), and the personal physi- 
 cal suffering of the plaintiff while 
 under arrest may be proved to enhance 
 damages. (Abraham v. Cooper, 2 N. 
 Y. Weekly Dig. 154; 81 Penn. St. 
 232 ; contra, Miles v. Weston, 60 111. 
 361.) 
 
 Distinction between action for 
 malicious prosecution and an action 
 for malicious arrest in a civil action. 
 Injury to character is not an element 
 in the latter; its essential ground be- 
 ing that the process of the law has 
 been put in force maliciously, and 
 without reasonable or probable cause. 
 (2 Rob. Pr. 594; Broom Com. 738; 
 Churchill v. Siggers, 3 Ell., & Bl. 937 ; 
 Tancred v. Leyland, 16 Q. B. 669; 
 De Medina v. Grove, 10 Q. B. 168; 
 Henderson v. Jackson, 9 Abb. Pr. R. 
 N. S. 301.) 
 
 ' Where the acts of plaintiff 
 amount to, or tend to amount to, a 
 breach of the peace, a person giving 
 him in charge is not liable for mali- 
 cious prosecution. (Timothy v. 
 Simpson, i CM. & R. 757; Cohen v. 
 Huskisson, 2 M. & W. 477 ; Wooding 
 
 V. Oxiey, 9 C. & P. 1 ; Ingle v. Be 
 
 1 M. & W. 516; Howell V. Jackson, 
 C. & P. 723 ; Price v. Seeley, 10 C. 
 F. 28.) 
 
 2 Ante, § 200; 3 Black. Com. c. 
 
 2 Bouv. Ins. 508, § 2239; Broom Coi 
 741. Eng. ed. 1869; Watson v. Ha 
 zard, 3 Code R. 218; Martin v. Mat 
 son, 8 Abb. Pr. R. 3 ; Hull v. Vre 
 land, 18 Id. 182; Henderson v. Jac 
 son, 9 Abb. Pr. R. N. S. 290. Lib 
 is on all fours with malicious prosec 
 tion. (Briggs v. Garrett, iii Pen 
 St. 404.) While this parliament s 
 (A. D. 1383) an unjust charge w; 
 brought against Michael De la Pole 
 taking a bribe. He was acquitte 
 and John Cavendish, his accuser, w 
 fined 1000 marks for defamation. 
 Camp. L'd Chanc. eh. xvi.) The di 
 tinction between an action for fal 
 imprisonment and an action for ma 
 cious prosecution is explained ai 
 illustrated by Lord Mansfield in Joh 
 stone V. Sutton (i T. R. 544), and I 
 Justice Emott, in Brown v. Chadsi 
 (39 Barb. 260 ; and see Farnham 
 Feeley, 56 N. Y. 454; Voii Lathan 
 Libby, 38 Barb. 339; Austin «». Dov 
 ing. Law Rep. 5 C. P. 540; Teal 
 Fissel, 34 Alb. L. J. 278.) A recove 
 
§§421.422.] MALICIOUS PROSECUTION. 703 
 
 § 421. The facts which constitute a cause of action for 
 malicious prosecution are (i) that there has been a prose- 
 cution against the plaintiff, and which has occasioned 
 damage to the plaintiff; (2) that the proceeding on such 
 charge has terminated, and that, too, in favor of the plaint- 
 iff ; (3) that the charge was without reasonable or prob- 
 able cause ; and (4) was malicious. All these requisites 
 must exist, and the burden is upon the plaintiff to establish 
 their existence.^ 
 
 In actions for malicious prosecution, the statute of lim- 
 itations begins to run from the time of the termination of 
 the prosecution." 
 
 § 422. The first essential to a right of action for a mali- 
 cious prosecution is, that there has been a prosecution 
 against the plaintiff, and by a prosecution is here meant a 
 complaint or charge made to a criminal tribunal. The 
 complaint may be made orally or in writing, and it may 
 charge (i) something which, if otherwise published, would 
 confer a right of action, or (2) something which, if other- 
 wise published, would not confer a right of action, unless 
 followed by special damage, or (3) the complaint may be 
 defective in form, or (4) the tribunal addressed may have 
 no jurisdiction of the offense charged. And the com- 
 plainant may content himself with simply making his 
 complaint, leaving it altogether to the tribunal addressed 
 to decide what shall be done thereupon, or he may go 
 
 in an action for false imprisonment is 888 ; Kine v. Evershed, 10 Q. B. 143 ; 
 
 no bar to an action for malicious prose- Jones v. Howell, 29 Law Jour. Ex. 19. 
 cution. (Guest v. Warren, 9 Exch. * Montreal v. Hall, Cassel's Digest, 
 
 379.) A recovery in an action for Supreme Court Decisions of Ontario, 
 
 malicious prosecution is a bar to an page 280. In New York the period 
 
 action for libel for the same accusa- of limitation for a personal mjury, 
 
 tion. (Tidwell v. Witherspoon, 21 where not otherwise expressed, is six 
 
 Fla. 359; see ante, % 251.) years. (N. Y. Code Civ. Pro. § 382.) 
 
 ' Crescent Live Stock Co. v. Personal injury includes malicious 
 
 Butchers' Union, 120 U. S. 141; prosecution (Id.; % 3343), and no 
 
 iost, § 426 As to notice of action period of limitation for malicious 
 
 under 24 & 25 Vict. ch. 96, see Green prosecution is expressly prefscnbed. < 
 V. Hutt, 46 Law Times Rep. N. S. 
 
704 
 
 MALICIOUS PROSECUTION. [CH. XVIII. 
 
 further and be officious in any proceedings which may 
 ensue. The liabilities and rights of the party complaining, 
 and of the party complained against, are materially affected 
 by the foregoing circumstances. 
 
 The distinctions between oral and written language 
 (§ 1 8), and of language actionable per se, and actionable 
 only by reason of special damage (Chap. VIII), apply 
 to the complaint, so that if the charge is such as if other- 
 wise published would confer a right of action, in that 
 case, the mere fact of making the charge, the other essen- 
 tials to a cause of action (§ 421) existing, will confer a 
 right of action for malicious prosecution.^ But where the 
 charge is such as if otherwise published would not confer 
 a right of action unless special damage ensues, in that 
 case no action lies for malicious prosecution, unless upon 
 proof of special damage." Now, special damage is the 
 natural and proximate consequence of a wrongful act 
 (§ 197), and, therefore, where a complaint, although not 
 of itself sufficient to confer a right of action, does, as a 
 natural and proximate consequence, occasion loss or in- 
 jury to the accused, in that event he may, the other essen^ 
 tials to the action (§ 421) existing, maintain an action 
 for malicious prosecution. The natural and proximate 
 consequences of a complaint to a criminal tribunal, mak- 
 ing a charge which amounts to a criminal offense, and of 
 
 * "To sustain the action of mali- bill was ignored by the grand jury, 
 
 cious prosecution, technically so In an action for such prosecution as 
 
 called, the indictment must charge a malicious and without probable cause, 
 
 crime; and then the action is sustain- the plaintiff was nonsuited, and per 
 
 able per se on showing a want of Mansfield, Ch. J., " I feel a difficulty 
 
 probable cause.'' " There is another to understand how the plaintiff could 
 
 class of actions which are popularly recover in the present action, wherein 
 
 called actions for malicious prosecu- he could recover no damages because 
 
 tions, but they are misnamed; they he clearly has not proved that he sus- 
 
 are actions on the case, in which both tained any. I can understand the 
 
 a scienter and s.per quod must be laid ground upon which an action shall be 
 
 and proved." (O'Neall, J., Frierson maintained for an indictment which 
 
 V. Hewitt, 2 Hill [So. Car.], 499.) contains scandal, but this contains 
 
 » In Byne w. Moore, 5 Taunt. 187, none." The charge of assault was not 
 
 the plaintiff, without being arrested, actionable fer se. 
 had been indicted for an assault. The 
 
§ 422A.] MALICIOUS PROSECUTION. 
 
 705 
 
 which the tribunal addressed has jurisdiction, is the arrest 
 of the accused, which may or may not be followed with 
 detention or imprisonment and cost of defense, and any 
 one of these consequences is such damage or special 
 damage as will confer a right of action.^ This distinction 
 between a complaint which is per se actionable, and one 
 which is actionable only where special damage ensues, 
 explains why some decisions hold that an arrest is, and 
 others that an arrest is not, essential to a right of action.* 
 
 § 422a. We shall consider hereafter (§ 432) who is re- 
 sponsible for making the complaint,* but it will be con- 
 venient here to consider who is responsible for what hap- 
 pens in consequence of the complaint, in those cases in 
 which the complaint, of itself, does not confer a right of 
 action. As in such case the right of action against the 
 complainant depends upon the natural consequences of the 
 act of complaining, if the complaint does not charge a 
 crime — as, for instance, if the complaint amounts to a 
 
 ^ Randall v. Henry, 5 Stew. & P. 506; Malone v. Huston, 17 Neb. 
 Port. 367. And if the charge is fol- 107.) An officer who had a writ 
 lowed by the issue of a search warrant against plaintiff, sent a message in- 
 which is executed on plaintiff's prem- forming him of the fact, and asking 
 ises, that is special damage, and will him to come to the office and execute 
 of itself support an action. (Elsee v. a bail bond, held not to amount to an 
 Smith, I D. & R. 97 ; Miller v. Brown, arrest. (Berry v. Adamson, 6 B & C. 
 3 Mo 127) 528: but see Van Voorhes 2/. Leonard, 
 2 Gregory v. Derby, 8 Car. & P. i Sup. Ct. Rep. [T, & C] 148.) An 
 749; Clarke v. Postan, 6 Id. i^i-y, allegation that defendant caused 
 O'DriscoU v1 M'Bumey, 2 Nptt & plaintiff to be arrested and to be de- 
 McC. 54; Lawyer v. Loomis, 3 Sup. tained until, to procure his release, he 
 Ct. Rep. (T. & C.) 393 ; Mayer v. procured bail, held not a divisible alle- 
 Walter, 64 Penn. St. Rep. 283 ; New- gation, and not sustained by proof of 
 field V. Copperman, 15 Abb. Pr. Rep. giving bail. (,Id.) An averment that 
 N. S. 360, hold an arrest essential to a plaintiff was detained until he found 
 cause of action, and others, as Stapp bail, is supported by proof of a de- 
 V. Partlow, Dudley (Ga.), 176, that an tention only. (Biistow v. Heywood, i 
 arrest is not necessary. If no warrant Stark. R. 48 ; S. C. Bristow v. Hay- 
 issue, the remedy is slander in the form wood. 4 Camp. 413.) 
 of "imposing the crime of felony." ' Preferrmg a charge agarast a 
 (Fuller V. Cook, 3 Leon. 100; Hey- person which was never acted upon, 
 ward V Cuthbert, 4 McCord, 354) insufficient to maintain an action for 
 An allegation that plaintiff was ar- malicious prosecution. (Kneeland v. 
 rested, is satisfied by proof of a de- Spitzka, 42 N. Y. Superior Ct. 470.) 
 tainer. (Whalley v. Pepper, 7 C. & 
 45 
 
7o6 MALICIOUS PROSECUTION. [CH. XVIII. 
 
 charge of conversion only — and the magistrate, of his own 
 volition, erroneously issues a warrant for a felony, upon 
 which the accused is arrested, such warrant and arrest are 
 not natural consequences of the complaint, and for them 
 the complainant is not liable,^ although in such a case a 
 right of action might exist against the. magistrate. If, in 
 the case just mentioned, the complainant had taken part 
 in the arrest of the accused, as if he had personally deliv- 
 ered to the officer the warrant for the arrest of the accused, 
 in that event he would have been liable to an action for a 
 malicious prosecution, the arrest would have been a natu- 
 ral consequence of his act of delivering the warrant to the 
 officer.* 
 
 A charge, the publication of which is otherwise ac- 
 tionable, is not the less so because published to a court 
 having no jurisdiction, and therefore we find decisions 
 to the effect that it is no defense that the court in 
 which the prosecution was had was without jurisdiction' 
 probably where the charge is such as would give no 
 right of action unless with special damage, the complain- 
 
 ^ Leigh V. Webb, 3 Esp. Cas. 165 ; granted an illegal warrant may furnish 
 
 Tempest v. Chambers, i Stark. Rep. ground for an action of trespass 
 
 67 ; and see Cohen v. Morgan, 6 D. & against the magistrate, it does not 
 
 R. 8 ; Bartlett v. Brown, 6 R. I. 37 ; prevent an action for malicious prose- 
 
 Carratt v Morley, i G. & D. 275; i cution being sustained against the 
 
 Q. B. 18; M'Neely ». Driskill, 2 Blackf. person who procured the issuance of 
 
 259; Crawford v. Ryan, 7 Atl. Rep. such warrant. (Elsee v. Smith, i D. 
 
 745 (Pa.); Newman t/. Davis, 58 Iowa, & R. -97; 2 Chit. R. 304; Kline v. 
 
 447 ; Lea v. Charrington, 23 Q. B. D. Shuler, 8 Ired. 484.) The criminal 
 
 45; Hope v. Evered, 17 /*. 338; see law amendment act makes it impera- 
 
 Teal V. Fissel, 28 Fed. Rep. 351; 34 tive on a magistrate to issue a warrant 
 
 Alb. L. J. 277 ; Bartlett v. Hawley, 38 when he is satisfied that the act has 
 
 Minn. 308 ; O'Brien v. Frazier, 47 N. been violated. A warrant under that 
 
 J. 349; Thaule v. Krekeler, 81 N. Y. act protects the prosecutor. (Lea v. 
 
 l^yi\ Dennis v. Ryan, 65 N. Y. 385; Charrington, 23 Q- B. D. 45; aff'd Id. 
 
 Lockz/. Ashton, 12 Q. B. 871; Brown 272; Hope v. Evered, 17 Q. B. D. 
 
 V. Chapman, 6 C. B. 365; West v. 338.) 
 
 Smallwood, 3 M. & W. 418. ' Morris v. Scott, 21 Wend. 281; 
 
 2 Johnson v. Daws, 5 Cranch C. C. Newfield v. Copperman, 15 Abb. Pr. 
 
 283; Collins V. Love, 7 Blackf. 416; R. N. S. 360; but see Braveboy v. 
 
 Gibbs V. Ames, 119 Mass. 60. Al- Cockfield, 2 McMul. 270. 
 though the fact that a magistrate has 
 
§ 423-] MALICIOUS PROSECUTION. 707 
 
 ant might not be responsible for acts of the court done 
 without jurisdiction. 
 
 A charge, the publication of which is otherwise ac- 
 tionable, is not the less so because published in a com- 
 plaint or an indictment which is defective in form/ or 
 upon which, for some other reason, the accused could not 
 have been convicted.* 
 
 § 423. Except, perhaps, in the case of an ex parte 
 exhibition of articles of the peace,^ no action for a ma- 
 licious prosecution can be maintained until after the 
 prosecution alleged to be malicious has terminated,* 
 otherwise the plaintiff might obtain judgment in the one 
 case and yet be convicted in the other.® What is such a 
 termination as will authorize the commencement of the 
 action, is sometimes difficult to determine.* It was for- 
 merly held that a technical acquittal was indispensable,' 
 and in a recent case the court said : " It was necessary to- 
 show the plaintiff's acquittal to lay a foundation for the 
 action. He (plaintiff) could not proceed a step without 
 it."* It is certain that the termination should be such 
 as to furnish prima facie evidence that the prosecution 
 was unfounded* and was terminated on account of the 
 plaintiff's innocence," or at least was in favor of the 
 
 ' Pippet V. Heam, 5 B. & Aid. 634 ; ' A criminal prosecution may be 
 
 Chambers v. Robinson, 2 Stra. 691 ; said to have terminated, (i) where 
 
 Wricks V. Fentham, 4 T. R. 247 ; Jones there is a verdict of not guilty, (2) 
 
 V. Gwynn, 10 Mod. 214; Parli v. where the grand jury ignores a bill, 
 
 Reed, 30 Kansas, 534. (3) where a nolle prosequi is entered, 
 
 * Pedro V. Barrett, i Ld. Raym. or (4) where the accused has been 
 
 81 ; Potter v. Gjertsen, 37 Minn. 386. discharged from bail or imprisonment. 
 
 ' Steward v. Gromett, 29 Law (Lowe v. V^artman, 47 N. J. L. R. 
 
 Jour. Rep. C. P. 170; 7 C. B. N. S. 413.) 
 191. ' Goddard v. Smith. 6 Mod. 262. 
 
 ^ Gillespie v. Hudson, 11 Kan. " Hogeboom, J., Miller v. Milli- 
 163 ; O'Brien v. Barry, 106 Mass. 300; gan, 48 Barb. 42, citing M'Cormick v, 
 Cardival v. Smith, 109 Mass. 158; Sisson, 7 Cow. 715; Gorton v. De- 
 Glasgow V. Owen, 69 Texas, 167; Angelis, 6 W^end. 418. 
 Hall V. Fisher, 20 Barb. 441 ; Bell v. » Wilkinson v. Howel, i Moo. & 
 Matthews, 37 Kansas, 686. M. 495 ; Webb. v. Hill, 3 Car. & P. 
 
 « Fisher z/. Bristow, I Doug. 21 S; 485. „ xt r 
 
 Cardival v. Smith, 109 Mass. 158; 1 » Hams ». Elwell, 3 N. Jersey Law 
 
 O'Brien v. Barry, 106 Mass. 300. (2 Penn.), 411. 
 
7o8 
 
 MALICIOUS PROSECUTION. 
 
 [CH. XVIII. 
 
 plaintiff.^ It was formerly supposed that the termination 
 must be such as would constitute a bar to a subsequent 
 proceeding, but it seems that now a termination of the 
 particular prosecution will sufifice/ as if the grand jury 
 fail to find a true bill,* or the indictment is quashed,* or 
 in certain cases a nolle prosequi is entered,"^ or the com- 
 plaint is dismissed by the magistrate * " in consequence of 
 the complainant not appearing to prosecute at the time 
 to which the case was adjourned," '' or a discharge by a 
 
 1 Gorton v. De Angelis, 6 Wend. 
 418; Clark V. Cleveland, 6 Hill, 344; 
 Hall V. Fisher, 20 Barb. 441 ; Salis- 
 bury V. Creswell, 14 Hun, 460; Galla- 
 gher V. Stoddard, 47 Hun, loi ; 13 N. 
 Y. St. Rep. 218. 
 
 2 Clark V. Cleveland, 6 Hill, 347 ; 
 Stanton v. Hart, 27 Mich. 539; Long 
 V. Rogers, 17 Ala. 546 ; Brown v. Ran- 
 dall, 36 Conn. 56. The right to sue 
 accrues whenever the criminal prose- 
 cution is disposed of in such a manner 
 that it cannot be revived. (Casebeer 
 V. Rice, 18 Neb. 203; Casebeer z/. Dra- 
 hoble, 13 Neb. 465.) 
 
 ' Haupt V. Pohlmann, 16 Abb. 
 Pr. R. 302; Rost V. Hams, 12 Id. 
 446; Morris v. Corson, 7 Cow. 281; 
 McKown V. Hunter, 30 N. Y. 625; 
 Weinberger v. Shelly, 6 Watts & S. 
 343 ; Stancliff v. Palmeter, 1 8 Ind. 32 1 ; 
 Gilbert v. Emmons, 42 111. 143; John- 
 son V. Shove, 6 Gray (Mass.), 498. 
 The failure of the grand jury to indict 
 is not conclusive evidence of plaintiff's 
 innocence. (Barber v. Gould, 20 Hun, 
 446.) 
 
 * Hays V. Blizzard, 30 Ind. 457. 
 
 " In Moulton -v. Beecher, i Abb. 
 N. C. 193, the complaint alleged that 
 the prosecution had been terminated 
 in plaintiff's favor by the entry of a 
 ntlle prosequi on motion of the district 
 attorney, and by leave of the court 
 made after consultation with the de- 
 fendant, and at his request. On de- 
 murrer, it was held that this disclosed 
 a sufficient termination of the proceed- 
 ing. The report of the case contains 
 the briefs of counsel on both sides. 
 They are very elaborate, and probably 
 refer to all the authorities upon the 
 
 point. Entry of a nolle pros, by dis- 
 trict attorney, without plaintiff's 
 knowledge or consent, is a sufficient 
 ending of the prosecution. (Murphy 
 V. Moore, 10 Cent. Rep. 1877 [Pa.]; 
 1 1 Atl. R. 665.) 
 
 » Moyle V. Drake, 141 Mass. 238; 
 Swensgaard v. Davis, 33 Minn. 368. 
 Testimony of the justice, that he dis- 
 charged plaintiff because in his opin- 
 ion the evidence did not support the 
 charge is not admissible. (Dempsey 
 V. State, 16 So. West. Rep. 372 
 [Texas].) Nor is an entry on the jus- 
 tices' docket. (Casey v. Sevatson, 30 
 Minn. 516.) 
 
 ' Fay V. O'Neill, 36 N. Y. 13, cit- 
 ing Clark V. Cleveland, 6 Hill, 344 ; 
 Secor V. Babcock, 2 Johns. 203 ; Pur- 
 cell V. Macnamara, 9 East, 361 ; Bur- 
 hans V. Sanford, 19 Wend. 417; Wat- 
 kins V. Lee, 5 M. & W. 270 ; see, also, 
 Von Latham v. Rowan, 17 Abb. Pr. 
 R. 238; Lawyer v. Loomis, 3 Sup. 
 Ct. Rep. (T. & C.) 393 ; Garrison v. 
 Pearce, 3 E. D. Smith, 255; Center 
 V. Spring, 2 Clarke (Iowa), 393. 
 Where a magistrate can neither acquit 
 nor convict, but only bind over or dis- 
 charge, and discharges the accused, 
 that is a termination of the prosecu- 
 tion. (Driggs v. Burton, 44 Vt. 124; 
 see Cardival v. Smith, 109 Mass. 158; 
 Sayles v. Briggs, 4 Met. 421.) Where 
 a criminal prosecution is commenced 
 before a justice of the peace, and is 
 afterwards dismissed with the inten- 
 tion of commencing it again in the 
 District Court, and on the same day it 
 is commenced in the District Court, 
 held that such criminal prosecution 
 before the justice of the peace cannot 
 
§ 424-] 
 
 MALICIOUS PROSECUTION, 
 
 709 
 
 magistrate having no jurisdiction to try but only to bind 
 over/ or a discharge on habeas corpus^ a discharge by a 
 United States commissioner acting as a magistrate,^ or an 
 acquittal for want of justification,* or for a variance,' or a 
 defect in the indictment,* or complaint.'^ An appeal from 
 the judgment of acquittal suspends the right to sue for 
 malicious prosecution pending the appeal.* 
 
 The determination of the prosecuting officer never to 
 bring the indictment to trial, on the ground that the charge 
 Avas unfounded, is not a sufficient termination of the pro- 
 ceeding,' nor is the discharge of bail,^" nor a compromise of 
 the charge." 
 
 The record is the only competent evidence of the de- 
 termination of the prosecution.^^ 
 
 § 424. As to entitle the plaintiff to maintain an action 
 for a malicious prosecution, it is incumbent upon him to 
 
 constitute the basis of an action for a 
 malicious prosecution while the crim- 
 inal prosecution is still pending in the 
 District Court. (Schippel v. Norton, 
 38 Kan. 567.) 
 
 ' Ames V. Rathbun, 37 How. Pr. 
 R. 289 ; Foote v. Milbier, i Sup. Ct. 
 Rep. (T. & C.) 456; Goodman v. 
 Stroheim, 36 Superior Ct. Rep. (4 J. 
 & S.) 216; SecorJ'. Babcock, 2 Johns. 
 203; Goodrich V. Warner, 21 Conn. 
 432 ; Smith v. Ege, 52 Penn. St. R. 
 419; Van Voorhes v. Leonard, i Sup. 
 Ct. Rep. (T. & C.) 149; Connelly I/. 
 McDermott, 3 Lans. 63 ; Burlingame 
 'V. Burlingame, 8 Cow. 141 ; Farnam 
 f. Feeley, 56 N. Y. 451; Sheldon v. 
 Carpenter, 4 N. Y. 579; Carl v. Ayer, 
 53 N. Y. 14; Stevens v. Lacour, 10 
 Barb. 62 ; Gould v. Sherman, 10 Abb. 
 Pr. R. 41 1 ; Burkett v. Lanata, 1 5 La. 
 An. 337; Straus v. Young, 36 Md. 
 246. 
 
 2 Swartwout v. Dickerman, 12 
 Hun, 358; contra, Zebley v. Storey, 
 .10 Cent. Rep. 823. 
 
 » Vanderbllt v. Mathis, 5 Duer, 
 
 304- 
 
 ■« Morris V. Scott, 21 Wend. 281 ; 
 
 Wood V. Sutor, 8 So. West. Rep. 51 
 (Texasl. 
 
 5 Wicks V. Fentham, 4 T. R. 247. 
 
 « Chambers v. Robinson, 2 Stra. 
 691; Dennis v. Ryan, 5 Lans. 350; 
 Parli V. Reed, 30 Kansas, 534. 
 
 ' Bell V. Keepers, 39 Kansas, 105. 
 
 ' Palmer v. Avery, 41 Barb. 290; 
 Howell V. Edwards, 8 Ired. Law (N. 
 Car.), 516; Chelf v. Penn, 2 Mete. 
 (Ky. ) 463 ; Nebenzhal v. Townsend, 
 61 How. Pr. R. 353; lo Daly, 232. 
 
 « Thomason v. DeMott, 18 How. 
 Pr. Rep. 529; but see Kelly v. Sage, 
 
 12 Kansas, 109; Bell v. Matthews, 37 
 Kansas, 686. 
 
 »» Bacon v. Townsend, 6 Barb. 
 426; Wood V. Graves, 144 Mass. 365; 
 s. C. Wood V. Bailey, 11 No. East. 
 Rep. 567; see § 433, /^J^- 
 
 »» Clark V. Everett, 2 Grant, 416; 
 Mayer v. Walter, 64 Penn. St. R. 283 ; 
 Gallagher v. Stoddard, 47 Hun, loi ; 
 
 13 N. Y. St. Rep. 218; Van Voorhies 
 V. Leonard, i Sup. Ct. Rep, (T. & C.) 
 148. 
 
 ' 3 Haynes v. Ware, i Vict. L. R. 
 L. 272. 
 
7IO MALICIOUS PROSECUTION. [CH. XVIIL 
 
 show a termination of tlie prosecution in his favor, it would 
 seem necessarily to follow that where the accused was con- 
 victed of the charge, he cannot be heard to allege that the 
 prosecution was without probable cause ; yet it has been 
 doubted whether a conviction is such conclusive evidence 
 of probable cause as to bar an action for malicious prose- 
 cution.^ "The true principle appears to be that a verdict 
 of guilty is strong prima facie evidence, but capable of 
 being rebutted," by showing it was obtained by corrupt or 
 undue means." On the other hand, it has been said that a 
 conviction is conclusive evidence of probable cause, and 
 that the reversal of the conviction does not change the 
 rule;* and that to allow an action after conviction would, 
 in effect, be allowing an appeal.* It may be that where 
 the conviction has been before a magistrate or justice of 
 the peace, and the conviction has been quashed on cer- 
 tiorari or appeal, that the conviction is not conclusive evi- 
 dence of probable cause.® 
 
 ' I Am. Lead. Cas. 270, 5 ed. ; ' Basebee v. Matthews, Law Rep. 
 
 citing Witham v. Go wen, 14 Maine, 2 C. P. 684; Bacon v. Towne, 4 
 
 362; Payson v. Caswell, 22 Maine, Cush. 217; Parker v. Huntington, 7 
 
 212. Gray, 37 ; Boyd v. Cross, 35 Md. 194; 
 
 « Miller v. Deere, 2 Abb. Pr. Rep. see Herman v. Brookerhoff, 8 Watts, 
 
 1; Burt V. Place, 4 W^end. 591; Olson 240; Jones v. Kirksey, 10 Ala. 139. 
 
 V. Neal, 63 Iowa, 214; Bowman v. To an action for maliciously and with- 
 
 Brown, 52 Iowa, 437. A commit- out probable cause informing against 
 
 ment for trial is ^r/wza/aczW, not con- plaintiflf for an offense, it is a good 
 
 elusive, evidence of probable cause. answer to say he was convicted and 
 
 (Haupt V. Pohlmann, \ Robertson, underwent his sentence without ap- 
 
 127; Ganea 7/. Railroad, 51 Cal. 140; pealing. (Mellor z/. Baddeley, 4 Tyrw. 
 
 Diemer v. Herber, 75 Cal. 287.) 962; 6 C. & P. 374; 2 C. & M. 675; 
 
 Plaintiff was indicted under § 4 of the and see Renehan v. Geriken, i Legal 
 
 newspaper libel act, though committed Notes, 267 [Quebec].) 
 for trial and convicted under § 5 ; held, ' Witham v. Gowen, 14 Maine, 
 
 the conviction was no bar to an action 362 ; Burt v. Place, 4 Wend. 591 \ 
 
 for malicious prosecution. (Boaler v. Mayer v. Walter, 64 Penn. St. Rep. 
 
 Holder, 51 J. P. 277.) 283; but see Reynolds v. Kennedy, I 
 
 » Whitney v. Peckham, 15 Mass. Wils. 232; Herman v. Brookerhoff, 8 
 
 243; Miller v. Deere, 2 Abb. Pr. Rep. Watts, 240; Labar v. Crane, 49 Mich. 
 
 I; Crescent Live Stock Co. v. 561; Olson v. Neal, 63 Iowa, 214; 
 
 Butchers' Union, 120 U. S. 141, 151 ; Phillips v. Kalamazoo, 53 Mich. 33; 
 
 Welch V. Boston & Prov. R. R. 14 R. Diemer v. Herber, 75 Cal. 287; Ganea 
 
 1- 609- V. So. Pac. R. R. Co. 51 Cal. 140. 
 
§ 425-J MALICIOUS PROSECUTION. 71 I 
 
 § 425. In order to ascertain when a prosecution is 
 without reasonable and probable cause, it is necessary to 
 inquire what is reasonable and probable cause? "The 
 words '■probable cause'' have come to have a fixed meaning, 
 and they mean reasonable ground for believing the party 
 guilty ; such reasons and such circumstances as would be 
 convincing and satisfactory to right reason. If these 
 grounds exist, and are brought to the notice of the prose- 
 cutor, and he acts upon them, he will be justified.^ So that 
 upon the question of probable cause, it is not sufficient justi- 
 fication that the accused is in fact guilty; but, in addition 
 to that, the prosecutor must believe in his guilt, and must 
 have reasonable ground for such belief ^ Probable cause 
 is " a reasonable ground of suspicion, supported by circum- 
 stances sufficiently strong in themselves to warrant a cau-r 
 tious man in his belief that the person accused is guilty of 
 the offense with which he is charged." * " Such a state of 
 facts and circumstances as would lead a man of ordinary 
 caution and prudence, acting conscientiously, impartially, 
 reasonably, and without prejudice, upon the facts within 
 his knowledge, to believe that the person accused is 
 guilty." * Probable cause is a reasonable ground of sus- 
 picion, supported by circumstances sufficiently strong in 
 themselves to warrant a cautious ra.-d.Vi in the belief that the 
 person accused is guilty of the offense with which he is 
 charged.® In a subsequent case,* Hogeboom, J., said he 
 was not quite satisfied with this definition, and added : " If 
 by cautious man is meant one of ordinary caution or pru- 
 dence, the definition is well enough ; but if it means any- 
 thing more, I dissent from it." Again, it is said : Probable 
 cause in general may be understood to be such conduct on 
 
 1 Ganea v. So. Pac. R. R. 51 Cal. Bishop Butler has well said: " Probr 
 I40_ ability is the guide of life." 
 
 2 Wanser v. W^yckoff, 9 Hun, 179, * Heyne v. Blair, 62 N. Y. 22. 
 Dykman J ° Munns v. Dupont, 3 Wash. C. 
 
 » Carl 'v. Ayers, 53 N. Y. 17. C. 37. 
 
 « Miller V. Milhgan, 48 Barb. 40. 
 
712 MALICIOUS PROSECUTION. [CH, XVIII. 
 
 the part of the accused as may induce the court to infer 
 that the prosecution was undertaken from public motives.^ 
 If one, by his folly or fraud, exposes himself to well- 
 grounded suspicion of being guilty, there is probable 
 cause for instituting a prosecution against him for the 
 crime. It is not necessary to prove the crime on plaintiff 
 to show probable cause. * Probable cause " is that appar- 
 ent state of facts found to exist upon reasonable inquiry, 
 that is, such inquiry as the given case rendered convenient 
 and proper, which would induce a reasonably intelligent 
 and prudent man to believe the accused person had com- 
 mitted in a criminal case the crime charged."* Probable 
 cause is such a state of facts in the mind of the prosecutor 
 as would lead a man of ordinary caution and prudence to 
 believe or entertain an honest and strong suspicion that 
 the person arrested is guilty.* 
 
 To establish " probable cause " facts sufficient to induce 
 belief in guilt of accused must have been known to defend- 
 ant before making the charge.* " Probable cause " is the 
 existence of such facts as would excite belief in a reason- 
 able mind, acting on the facts within the knowledge of the 
 prosecutor, that the person accused is guilty.* If after the 
 prosecution is commenced the prosecutor learns facts 
 
 1 Ulmer v. Leland, l Greenl. Rep. Rep. 293 ; Young v. Lyall, 23 /«/. 21 5 ; 
 
 *38. Paddock v. Watts, 116 Ind. 146.) 
 
 » Wilmarth v. Mountford, 4 Wash. ' Phillips v. Waller, 5 Hawaiin R. 
 
 C. C. 79- 609. 
 
 » Lacy V. Mitchell, 23 Ind. 67 ; • Glasgow v. Owen, 69 Texas, 
 
 Burton v. St. Paul R. R. 33 Minn. 189. 167. An instruction that " probable 
 
 * Bacon v. Towne, 4 Cush. 217; cause is the existence of such facts and 
 
 Harpham v. Whitney, T] 111. 42. It circumstances as would excite in a 
 
 does not depend on the actual fact, reasonable mind a belief " in guilt, &c., 
 
 but upon the reasonable belief of the is not erroneous in ofnitting the word 
 
 prosecutor. (Phillips v. Waller, 5 " impartial," which was requested in 
 
 Hawaiin R. 609 ; see Donnelly v. Bur- connection with the word " reason- 
 
 kett, 75 Iowa, 613; Casey z'. Sevatson, able," the words being nearly synon- 
 
 30 Minn. 516; Walker v. Kamp, 63 ymous. (Thompson 7/. Beacon Valley 
 
 Iowa, 627; Murphy w. Martin, 58 Wis. Rubber Co. 56 Conn. 493.) 
 276 ; Mohar v. Simmons, 3 N. Y. St. 
 
§ 426.] MALICIOUS PROSECUTION. 713 
 
 which induce a belief of the falsity of the charge perhaps 
 the probable cause ceases.^ 
 
 § 426. Formerly the burden was on the defendant to 
 show probable cause.* Savil v. Roberts^ (A. D. 1699) is 
 supposed to be the first case in which it was declared to 
 be the duty of the plaintiff to prove the negative averment, 
 the want of probable cause. The rule is now well estab- 
 lished that the burden of proving want of probable cause 
 is upon the plaintiff.* The want of reasonable and prob- 
 able cause, sufficient to sustain the plaintiff's case, is so 
 much a matter of fact in each individual case as to render 
 it impossible to lay down any general rule on the subject, 
 but there ought to be enough to satisfy a reasonable man 
 that the accuser had no ground for proceeding but his 
 desire to injure the accused,® or to enforce a civil right* 
 Prosecuting with any other motive than that of bringing a 
 guilty person to justice is a malicious prosecution.'' As 
 
 ' Musgrave v. Newall, i M. & W. St. Paul, 33 Minn. 189; Williams ^'. Mc- 
 
 582; Blank v. Atchison, &c. R. R. Co. Ravey,6 Vict.Law Rep.487. Defendant 
 
 38 Fed. Rep. 31 1. took an officer to plaintiff 's home and 
 
 2 Knight z/. Jermin, Cro. Eliz. 134; threatened to dispossess her by a writ 
 
 Pain w. Rochester, Cro. Eliz. 871. on a judgment of which he was 
 
 ' I Salk. 13. assignee, against one not her privy in 
 
 * Wheeler v. Nesbitt, 24 How. U. estate. Plaintiff threatened if the 
 S. Rep. 544; Thaule v. Krekeler, 81 officer dispossessed her there would 
 N. Y. 428 ; Hicks v. Faulkner, 8 Q. be trouble. Upon this defendant 
 B. D. 167; aff'd 46 Law Times Rep. sued out a peace warrant against 
 N. S. 127; Abrath z/. N. East. R'way plaintiff. In an action for this as 
 Co. II Q. B. D. 440; rev'g S. C. /^. malicious prosecution, evidence that 
 79; Walker v. So. East. R'y Co. L. R. the deed under which plaintiff claimed 
 5 C. P. 640; Ganea z/. So. Pac. R'way was without consideration and in- 
 Co. 51 Cal. 140; Teal v. Fissel, 28 tended to defeat the execution for pos- 
 Fed. Rep. 351; Purcellz/. Macnamara, session held irrelevant. (Wright z/. 
 9 East, 361; Good v. French, 115 Church, no N. Y. 463; aff'g 30 Hun, 
 Mass. 201. 562.) It was also held that evidence 
 
 5 Tindal, C. J.. Willans v. Taylor, was not admissible that defendant at 
 
 d Bing. 183. Evidence is admissible the time of plaintiff's threat, knew of 
 
 of hostility and unfriendly feeling resistance to and the killing of officers 
 
 entertained by defendant towards shortly before in the vicmity, in the 
 
 plaintiff prior to prosecution. (Bru- execution of writs on judgments simi- 
 
 ington V. Wingate, 55 Iowa, 140.) lar to that which he was attemptmg to 
 
 • Gallawayz/. Burr, 32 Mich. 332; enforce. {Id) r r- t 
 Thompson v. Beacon Valley Rubber ' Larocque -v. Willett, 23 L. C. J. 
 Co. 56 Conn. 493: So. West. R. R. 184 Q. B. 
 
 Co. V. Mitchell, 80 Ga. 438 ; Burton v. 
 
7H 
 
 MALICIOUS PROSECUTION. 
 
 [CH. XVIII. 
 
 where the prosecution was instituted with a view of terrify- 
 ing persons from the commission of some particular 
 offense.^ ' The probable cause the want of which is 
 required to be proved, relates to the cause for instituting 
 the prosecution, probable cause for believing the accused 
 guilty of the offense imputed to him.^ " The want of 
 probable cause must be substantially and expressly proved, 
 and cannot be implied. . . . From the most express 
 malice, the want of probable cause cannot be implied.* A 
 man from a malicious motive may take up a prosecution 
 for real guilt, or he mav from circumstances which he 
 really believes, proceed upon apparent guilt, and in neither 
 case is he liable to this kind of action."* Neither a dis- 
 charge by the magistrate before trial* nor an acquittal 
 at the trial is alone evidence of want of probable cause,* 
 nor is the entry of a nolle prosequi!^ nor a compromise.* 
 The acquittal on examination of a person who has been 
 
 1 Stevens v. Midland Co. Railway 
 Co. lo Exch. 352; Lafontaine v. Bol- 
 dere, i Legal Notes, 266 Quebec. 
 
 ' Laird v. Taylor, 66 Barb. 139. 
 The conduct of defendant must be 
 weighed in view of what then appeared 
 to him to be the acts and declarations 
 of the accused, and not in the light of 
 suhsequently appearing facts. (Atchi- 
 son, T. & S. F. R. Co. V. Watson, 37 
 Kansas, 773.) 
 
 ^ Smith V. Austin, 49 Mich. 286. 
 
 * Johnstone z/. Sutton, i T. R. 544; 
 and see Mitchell v. Jenkins, 5 B. & 
 Ad. 594; Willans v. Taylor, 6 Bing. 
 183. Want of probable cause cannot 
 be inferred from express mahce. (Hall 
 V. Suydam, 6 Barb. 83; Murray v. 
 McLane, 5 Hall Law Jour. 514; s. c. 
 2 Car. Law Rep. 187 ; Wheeler 7/. Nes- 
 bitt, 24 How. U. S. Rep. 544; Blunt 
 V. Little, 3 Mason, 102 ; Wiggins v. 
 Coffin, 3 Story, i ; Heyne v. Blair, 
 62 N. Y. 22.) 
 
 ^ Bruley ^z. Rose, 57 Iowa, 621. 
 
 « Baldwin v. Weed, 17 Wend. 
 224; Scott V. Simpson, I Sandf. 601 ; 
 Vanderbilt v. Mathis, 5 Duer, 304; 
 Griffin v. Chubb, 7 Texas, 603 ; Bell 
 
 V. Pearcy, 11 Ired. 233; Wicks v. 
 Fentham, 4 T. R. 247 ; McCrosson v. 
 Cummings, S Hawaiin Rep. 391. An 
 acquittal because of a defect in the 
 indictment is no evidence of want o< 
 probable cause. (Pippet v. Hearn, I 
 D. & R. 266.) Discharge and 
 acquittal, after investigation before a 
 magistrate, held prima facie evidence 
 of a want of prolaable cause. (Straus 
 V. Young, 36 Md. 246.) Plaintiff may 
 prove his innocence of the charge pre- 
 ferred against him for the purpose of 
 showing want of probable cause. 
 (Long V. Rogers, 17 Ala. N. S. 540; 
 Katterman v. Stitzer, 7 Watts, 189.) 
 
 ' Roberts v. Bayles, i Sandf. 47 ; 
 Parker v. Farley, 10 Cush. 279 ; see 
 Gordon v. Upham, 4 E. D. Smith, 9; 
 Yocum V. Polly, i B. Mon. 358. 
 
 * Clark V. Everett, 2 Grant, 416; 
 Mayers/. Walter, 64 Penn. St. Rep. 
 283; Foshay v. Ferguson, 2 Denio, 
 617; Fagan v. Knox, i Abb. N. C. 
 246 ; S. C. Fagnan v. Knox, 66 N. Y. 
 528; McCormick v. Sisson, 7 Cow. 
 715; Burhans v. Sanford, 19 Wend. 
 417. 
 
§ 426.] MALICIOUS PROSECUTION. 715 
 
 arrested and brought before a United States Commissioner 
 is prima facie evidence of want of probable cause ;^ and 
 so is the discontinuance of an action.* The defendant 
 presented two bills for perjury against the plaintiff, but 
 did not himself appear before the grand jury, and the bills 
 were ignored. Afterwards the defendant presented a third 
 bill, which on his own testimony was found. This prose- 
 cution he kept pending for three years, when the plaintiff 
 took the record down for trial, the defendant, although in 
 court and called upon, declining to appear as a witness. 
 The plaintiff was acquitted ; Held, there was prima facie 
 evidence of want of probable cause.* But the mere failure 
 on the part of the prosecutor to appear and prosecute is 
 not of itself evidence of want of probable cause.* Where 
 it appeared that plaintiff was employed by H. to work 
 some timber into spars ; before the work was completed 
 H. assigned all his goods to defendant for the benefit of 
 his creditors. At this time £\<^ remained due plaintiff for 
 work done to that time. Plaintiff went to defendant's 
 yard, where the spars were, and asked for them, and on 
 defendant's foreman refusing to give them up, plaintiff 
 next morning took them away, and his attorney wrote 
 defendant's attorney that plaintiff claimed a lien on the 
 spars. Defendant demanded the spars back ; plaintiff 
 refused to deliver them ; defendant gave plaintiff into 
 custody for stealing the spars ; plaintiff asked defendant 
 why he gave him into custody ; defendant replied, " You 
 had no right to take the spars away ; 1 think you merely 
 fetched them away to get what was your due." Held, 
 
 » Jones V. Finch, 84 Vt. 204. Alpine, i Camp. 204, note ; Nicholson 
 
 ' Emmerson v. Cochran, in Pa. v. Coghill, 4 B. & C. 21; Brown z/. 
 
 St. 619. Randall, 36 Conn. 56; Johnson v. 
 
 ' Taylor w. Willans, 2 B. & Adol. Chambers, 10 Ired. 287; Braveboy z/. 
 
 845; S. C. Willans v. Taylor, 6 Bing. Cockfield, 2 McMul. 270. 
 
 183; affi'd 3 M. & P. 350: see Purcell * Gorton v. De Angelis, 6 Wend. 
 
 V. Macnamara, 9 East, 361; Wallisz/. 418; Roberts 2/. Bayles, i Sandf. 47. 
 
yi6 MALICIOUS PROSECUTION. [CH. XVIII. 
 
 there was evidence of the absence of reasonable and prob- 
 able cause.^ In an action for a malicious prosecution, the 
 charge having been for stealing a horse, left with a servant 
 to show with a view to a sale, and the horse having been 
 bought honestly and openly; — Held, that there was no 
 reasonable cause.^ The plaintiff was tenant to defendant, 
 who resided in Wiltshire, of lands in Carmarthenshire, 
 together with the exclusive right of sporting over defend- 
 ant's lands adjacent. Plaintiff fished one of the ponds by 
 cutting down the dam. D., defendant's local agent, sug- 
 gested to plaintiff that he might fish a certain pond on the 
 estate by cutting down the bank, which plaintiff accord- 
 ingly did. Disputes afterwards arose between plaintiff 
 and defendant. D. laid an information before a magis- 
 trate against plaintiff for unlawfully breaking down the 
 dam and destroying the fish ; and on D.'s testimony the 
 magistrate held plaintiff to answer an indictment. A bill 
 was preferred, but ignored. Defendant was not present at 
 the hearing of the information, nor was there any evidence 
 to show that he knew that D. had given the plaintiff per- 
 mission. At the trial the jury found that D. had given 
 permission, and that D. acted under defendant's authority 
 in instituting the proceedings. Held, that, independently 
 of the permission given by D., there was no reasonable or 
 probable cause for instituting the proceeding.* 
 
 The defendant may rebut the evidence of want of prob- 
 able cause by evidence of reasonable and probable cause,* 
 
 ' Huntley v. Simson, 2 Hurl. & N. 4 Taunt. 616; and see Ellis v. Abra- 
 
 €00. hams, 8 Q. B. 709; Candler v. Petit, 
 
 ' Stewart I'. Beaumont, 4 Fost. & 2 Hall [N. Y.], 315; as to probable 
 
 Fin. 1034. cause, see Cuthbert v. Galloway, 35 
 
 • Michell V. Williams, 11 M. & W. Fed. Rep. 466; R'road v. Watson, 37 
 
 205. Where the prosecution was Kansas, 773 ; Sweeney v. Perney, 19 
 
 founded upon several charges or a Pac. Rep. 328.) 
 
 divisible charge, an action may be * Lunsford v. Deitrich, 86 Ala. 
 
 maintained (other circumstances con- 250. To show want of probable cause, 
 
 curring) if one or some divisible part it is not necessary to show that the 
 
 of the charge was without reasonable prosecution was instituted through ill- 
 
 and probable cause. (Reed v. Taylor, will to defendant therein. (Southwest 
 
§ 426.J 
 
 MALICIOUS PROSECUTION. 
 
 717 
 
 and reasonable and probable cause may be shown by evi- 
 dence of facts which would constitute a prima facie case 
 against plaintiff, although the evidence might be insuffi- 
 cient to convict.^ It is some evidence of probable cause 
 that the jury failed to agree,'^ or paused before rendering a 
 verdict of not guilty,^ and so is the finding of a true bill by 
 the grand jury.* But to rebut evidence of want of prob- 
 able cause, defendant cannot prove the general bad repu- 
 tation of the plaintiff.^ Nor can a defendant give evidence 
 that the general reputation of plaintiff was suspicious, and 
 that his house had been searched on former occasions.* 
 Defendant may show the bad reputation of plaintiff in 
 mitigation of damages.^ 
 
 R. Co. V. Mitchell, 80 Ga. 438.) Evi- 
 dence of the good character of plaint- 
 iflF is admissible as tending to show 
 want of probable cause. (Woodworth 
 V. Mills, 61 Wis. 44.) 
 
 ' Dawson v. Van Sandau, 11 
 Weekly Rep. 516. Defendant may 
 show by district attorney what was his, 
 defendant's, testimony before the 
 grand jury. (Avery v. Blair, 105 N. 
 Y. 669; memorandum only, reported 
 8 Cent. Rep. 778 ; rev'g S. C. 21 Week. 
 Dig. 178.) plaintiff may give evidence 
 of acts of defendant to deprive plaint- 
 iff of the means of disproving the 
 charge made against him. (Edgall v. 
 Francis, i Sc. N. R. 118; Silkman z/. 
 Crosby, 14 N. Y. St. Rep. 594.) Evi- 
 dence of what the magistrate said in 
 disposing of the charge is not admis- 
 sible on the question of reasonable and 
 probable cause. (Barker v. Angell, 2 
 M. & Rob. 371 ; Wetzlarz/. Zachariah, 
 16 Law Times, N. S. 432 ; Richards 
 V. Turner, Car. & M. 414; Hickey v. 
 O'Keefe, 8 Vict. Law Rep. L. 400; 
 contra, see Edden v. Thorniloe, 6 Jur. 
 265.) ^ ^ 
 
 2 Johnson v. Miller, 63 Iowa. 529; 
 but see Spalding v. Lowe, i;6 Mich. 
 
 356- 
 
 3 Smith V. Macdonald, 3 Esp. 7. 
 Disagreement of jury is prima facie 
 evidence of probable cause. (Johnson 
 V. Miller. 63 Iowa, 529 ; on rehearing, 
 19 No. West. Rep. 310.) 
 
 * Brown v. Griffin, Cheves, 32. 
 Defendant cannot prove by a grand 
 juror that the grand jury hesitated 
 about returning " no bill," and that 
 eight jurymen were in favor of finding 
 an indictment. (Scotten v. Longfel- 
 low, 40 Ind. 23.) 
 
 = Oliver v. Pate, 43 Ind. 132. A 
 recognizance executed by plaintiff 
 reciting that there appeared to the 
 justice probable cause for believing 
 plaintiff guilty, which had never been 
 filed, is no evidence of probable cause. 
 (Van de Wiele v. Callanan, 7 Daly, 
 386.) Plaintiff may prove his good 
 reputation and defendant's knowledge 
 thereof as showing want of probable 
 cause. (Blizzard v. Hays, 46 Ind. 166; 
 see Tait v. Snewin, 5 Vict. Law Rep. 
 
 L- 374.) ^ , „ 
 
 « Newsam v. Carr, 2 Stark. Rep. 
 69; see Edgworthz/. Carson, 43 Mich. 
 241. Where defendant gave evidence 
 of probable cause, defendant was 
 allowed to prove plaintiff a man of 
 notoriously bad character. (Rodriguez 
 V. Tadmire, 2 Esp. 72.) But since 
 held that defendant cannot cross-ex- 
 amine as to bad character of plaintiff, 
 nor as to previous charges against him. 
 (Downing v. Butcher, 2 Moo. & Rob. 
 
 374-) ^ . XT T T T, 
 
 ' O'Brien v. Frasier, 47 N. J. L. R. 
 349; Rosenkrans v. Barker, 115 111. 
 331 ; contra, Walker v. Pittman, 108 
 Ind. 341. 
 
7i8 
 
 MALICIOUS PROSECUTION. 
 
 [CII. XVIII. 
 
 § 427. Under certain conditions it is sufficient evi- 
 dence of reasonable and probable cause that the defend- 
 ant in what he did acted under the advice of reputable^ 
 counsel. The conditions upon which this defense is 
 available are, that the defendant honestly sought the 
 advice of counsel to direct his action and not to cloak 
 his malice,* and that, prior to receiving advice, he fully 
 and fairly stated to counsel all the facts of the case, so 
 far as known to him ; and what were the facts so stated 
 must be shown.* Nor is a defendant deprived of the 
 
 ^ Advice of "pettifogger " no de- 
 fense (Stanton v. Hart, 27 Mich. 539); 
 nor is the adfice of a justice of the 
 peace (Burgett v. Burgett, 43 Ind. 78 ; 
 Rigdon V. Jordan, 7 So. East. Rep. 
 857 [Ga.]) ; or of one who holds him- 
 self out as a licensed lawyer, but is not 
 so in fact. (Murphy v. Larson, ^^ 111. 
 172.) To admit evidence of advice of 
 counsel is going a good way. (Blunt 
 ■V. Little, 3 Mason, 102.) " We do 
 not feel at liberty to carry it further 
 by admitting testimony of the opinion 
 of any gentleman, however reputable, 
 who has not qualified himself for giv- 
 ing advice upon questions of law by 
 studying it as a science and pursuing 
 it as a profession.'' (Beal v. Robeson, 
 8 Ired. 276.) Advice of counsel a de- 
 fense. (See Mesher v. Iddings, 72 
 Iowa, 553; Blunk v. Atchison, T. &S. 
 F. R. Co. 38 Fed. Rep. 311 ; Moore z/. 
 North. Pac. R. R. Co. 37 Minn. 147 ; 
 Donnelly v. Burkett, 75 Iowa, 613; 
 Acton V. Coffman, 74 Iowa, 17; Glas- 
 gow V. Owen, 69 Texas, 167 ; St. 
 Johnsbury & L. C. R. Co. v. Hunt, 59 
 Vt. 294; Smith V. Walter, 125 Pa. St. 
 Rep. 453; Paddock v. Watts, 116 Ind. 
 146; note to Norrel v. Vogel, 38 No. 
 West. Rep. 705 ; Manning ■z/. Finn, 23 
 Neb. 511; and note to Chambers v. 
 Upton 34 Fed. Rep. 474.) 
 
 Advice of county attorney a de- 
 fense. (Bartlett v. Hawley, 37 No. 
 West. Rep. 583, and note; Shippell 
 V. Norton, 38 Kans. 567; Johnson 
 V. Miller, 63 Iowa, 529.) Advice 
 of State attorney general a de- 
 ■ fense. (Gilbertson v. Fuller, 42 No. 
 
 West. Rep. 203 [Minn.].) Acting 
 under advice of counsel is not conclu- 
 sive of probable cause. (Gulf, C. & S. 
 F. R'y Co. V. James, 10 So. West. 
 Rep. 744.) Advice of counsel no 
 defense because defendant did not 
 state all the facts to counsel. (Don- 
 nelly V. Daggett, 145 Mass. 314; 
 Logan V. Maytag, 57 Iowa, 107 ; 
 Porter -u. Knight, 63 Iowa, 365 ; Man- 
 ning V. Finn, 23 Neb. 511; Cuthbert 
 V. Galloway, 35 Fed. Rep. 466; 
 Comtement v. Cropper, 6 So. Rep. 
 127 [La.].) 
 
 2 Fisher v. Forrester, 33 Penn. St. 
 R. 501 ; and see Skidmore v. Bricker, 
 ']^ 111. 164; Galloway v. Stewart, 49 
 Ind. 156; Cole v. Curtis, 16 Minn. 
 182 ; Sharpe v. Johnston, 59 Mo. 557; 
 St. Johnsbury & L. C. R. R. Co. v. 
 Hunt, 59 Vt. 294; Chambers v. Up- 
 ton, 34 Fed. Rep. 474. 
 
 » Stanton v. Hart, 27 Mich. 539; 
 Wicker v. Hotchkiss, 62 111. 107; 
 Blunt V. Little, 3 Mason, 102 ; Center 
 V. Spring, 2 Iowa, 403; Potter v. 
 Seale, 8 Cal. 217 ; Bliss v. Wyman, 7 
 Cal. 257 ; Manning v. Finn, 23 Neb. 
 511; Cuthbert v. Galloway, 35 Fed. 
 Rep. 466 ; Norrel v. Vogel, 38 No. 
 West. Rep. 705 : Paddock v. Watts, 
 116 Ind. 146. Where a collector, by ad- 
 vice of the U. S. district attorney, insti- 
 tuted a suit against plaintiff, held such 
 advice was probable cause. (Murray v. 
 McLane, 2 Car. Law Repos. 186; and 
 see Laughlin v. Clawson, 27 Penn. St. 
 R. 330.) Laying the facts before a 
 justice of the peace and acting on 
 his advice in causing the arrest is no 
 
§ 428.] 
 
 MALICIOUS PROSECUTION. 
 
 719 
 
 benefit of this defense by the fact that the advice was 
 erroneous.^ If the defendant acted bona fide on the ad- 
 vice received, it is a defense.^ But it has been said: 
 "Advice of counsel will not of itself protect a client from 
 the imputation of malice. To enable it to have that 
 effect the question must be one of law, or some legal prin- 
 ciple must be involved, in order to a proper decision of 
 which the law applicable to the question must be ascer- 
 tained. In such a case, if the client acts in good faith 
 upon the advice of counsel learned in the law, he cannot 
 be charged with malice."^ 
 
 § 428. The question of probable cause does not turn 
 upon the actual guilt or innocence of the plaintiff.* The 
 guilt or innocence was the issue in the prosecution of 
 which the plaintiff complains, and where, after the ter- 
 mination of that prosecution in his favor, he sues for 
 
 defense. (Gee v. Culver, 13 Oregon, 
 598.) 
 
 ' Richardson v. Virtue, 2 Hun, 
 208 ; 4 Sup. Ct. (T. & C.) 441 ; Hall 
 V. Suydam, 6 Barb. 83 ; Stone v. Swift, 
 4 Pick. 389; Hewlett v. Cruchley, J 
 Taunt. 277. In an action against A. 
 for malicious prosecution, defendant's 
 attorney proved that he instituted the 
 prosecution by the order of a city al- 
 derraan ; Held that defendant's counsel 
 might ask the witness, the attorney, 
 whether defendant had desired him 
 not to prosecute on his, defendant's, 
 behalf, but not ask him what defend- 
 ant had said to him on the subject of 
 the prosecution. (Osterman v. Bate- 
 man, 2 C. & K. 728.) 
 
 2 Ravenga v. Mackintosh, 2 Barn. 
 & Cr. 693. As to when advice of 
 counsel is not a protection, see Cres- 
 cent Live Stock Co. v. Butchers' 
 Union, 120 U. S. 141, 154. 
 
 ' MuUin, J., Laird v. Taylor, 66 
 Barb. 143. If it appears to the jury 
 that the suit was malicious notwith- 
 standing the advice of counsel, that 
 fact is no protection to the defendant, 
 and if the court can see that notwith- 
 standing the advice, it was unreason- 
 
 able to believe that a ground existed, 
 that fact does not constitute probable 
 cause. (Brewer v. Jacobs, 22 Fed. 
 R. 217.) Advice of counsel is refer- 
 able rather to the issue of malice 
 than the want of probable cause. 
 (Jd.) 
 
 ^ Carl V. Ayers, 53 N. Y. 17; Hall 
 V. Suydam, 6 Barb. 83; Foshay v. 
 Ferguson, 2 Denio, 619; Wanser v. 
 WyckofiF, 16 Sup. Ct. Rep. (9 Hun), 179 ; 
 Scanlan v. Cowley, 9 Abb. Pr. Rep. 
 94; Siebert v. Price, 5 Watts & S. 438; 
 Swaim v. Stafford, 3 Ired. 289 ; 4 Id. 
 392; Sharpe v. Johnston, 50 Mo. 557. 
 Held error to lead the jury to infer 
 that the guilt or innocence of the 
 plaintiff of the charge was a question 
 in the cause. (Fisher v. Forrester, 33 
 Penn. St. R. 501.) The question of 
 guilt only bears on the question of 
 probable cause. (Thompson v. Bea- 
 con Valley Rubber Co. 56 Conn. 
 493.) Probable cause is a good de- 
 fense, although plaintiff was innocent. 
 (Wilson V. King, 39 N. Y. Superior 
 Co't, 384 ; Burley v. Bethune, i Marsh, 
 220; 5 "Taunt. 580; see Simmonds i/. 
 Brinkmeyer, 72 Cal. 486.) 
 
720 MALICIOUS PROSECUTION. [CH. XVIII. 
 
 damages, on the ground that the prosecution was withr 
 out probable cause, it is a defense to allege that in fact 
 the plaintiff was guilty.' Nor does the question of prob- 
 able cause turn upon a consideration of what were the 
 facts of the case, but upon a consideration of what were 
 the facts as they appeared to, or were known by, or were 
 believed to be by the defendant.^ The controlling fact 
 is not was there reasonable and probable cause for the 
 prosecution, but had the defendant, at the time of insti- 
 tuting the prosecution, reasonable and probable cause 
 for so doing. One who makes a charge or institutes a 
 prosecution which at the time he knows to be un- 
 founded, acts without reasonable or probable cause.' In 
 an action for maliciously prosecuting the plaintiff for 
 perjury, the judge charged : " That ... if defend- 
 ant, at the time he preferred the indictment, acting upon 
 information he had received, believed, and had reason- 
 able grounds for believing, that plaintiff had sworn false- 
 ly, then there was reasonable and probable cause -for pre- 
 ferring the indictment ; but if defendant, at the time he 
 preferred the indictment, did not believe the informa- 
 tion he had received to be true, but, in his own mind, 
 believed, and had reasonable ground to believe, that 
 plaintiff had not sworn falsely, or, still more, if he be- 
 lieved that plaintiff had spoken the truth, then there was 
 no reasonable or probable cause for the prosecution ; " 
 held correct.* Where the prosecution is for larceny, the 
 
 ^ If jury satisfied that plaintiff able cause should be submitted to the 
 
 was guilty of the crime charged, no jury. (Gierhon v. Ludlow, 6 N. Y. 
 
 recovery can be had. (Parkhurst v. Supp. iii.) 
 
 Mastellar, 57 Iowa, 474; Turner v. ^ James v. Phelps, 11 Adol. & El. 
 
 Dinnegar, 20 Hun, 465; see Delegal 483; Gallaway z/. Burr, 32 Mich. 332; 
 
 V. Highley, 3 Bing. N. C. 950.) Plummer z/. Johnson, 70 Wis. 131. 
 Where plaintiff was acquitted, and on ^ Casebeer v. Rice, 18 Neb. 203. 
 
 the trial of the action for the prose- * Heslop v. Chapman, 23 Law 
 
 cution as malicious testifies to his Jour. Rep. N. S. 49 Q. B.; affirming 
 
 innocence, and the only evidence of s. C. Hadrick v. Heslop, 12 Q. B. 267; 
 
 probable cause is that of defendant and see Paddock v. Watts, 116 Ind. 
 
 and his agent, the question of prob- 146. 
 
§ 428.J MALICIOUS PROSECUTION. 72 1 
 
 knowledge of defendant that the plaintiff claimed to own 
 the property he was accused of stealing, and had a 
 prima facie right to it, is evidence of want of probable 
 cause.^ In an action for a malicious prosecution for 
 sheep stealing, it appeared at the trial that plaintiff was 
 possessed of a sheep which defendant claimed as one of 
 a lot stolen from him. Plaintiff gave an account of the 
 way he became possessed of it, which, if the sheep was 
 the defendant's, must have been willfully false. The de- 
 fendant took away the sheep. The plaintiff sued him 
 for so doing in the county court. To stop the action, 
 the defendant indicted the plaintiff, who was acquitted. 
 There was evidence both ways, but it appeared that the 
 sheep really never was the defendant's, though he bona 
 fide believed it was. The judge, assuming these facts to 
 be true, asked the jury if the defendant had reasonable 
 grounds for his belief. On their finding that he had, he 
 ruled that there was reasonable and probable cause for 
 the indictment. Held, by Coleridge and Crompton, JJ., 
 that the finding of the jury on that one point, in addi- 
 tion to the facts beyond dispute, made out a complete 
 case of reasonable and probable cause, and, therefore, 
 that the judge was right. Earle, J., dissentiente? Al- 
 though the facts known to the prosecutor may make out 
 a prima facie case of guilt against the plaintiff, yet if the 
 prosecutor does not believe thje plaintiff to be guilty, 
 he acts without reasonable and probable cause.® But 
 while it is necessary to a probable cause for a prosecution 
 that the prosecutor should believe in the guilt of the 
 accused, a belief in the guilt of the accused, however 
 
 ' Weaver v. Townsend, 14 W^end. ' Turner v. Ambler, 10 Q. B. 252; 
 
 192. Possession of recently stolen Broad v. Ham, S Bing. N. C. 722; 8 
 
 property is probable cause for believ- Sc. 40; Fagan v. Knox, i Abb. N. C. 
 
 inff the possessor guilty of larcency. 193; s. C. Fagnan v. Knox, 66 N. Y. 
 
 (McDonald v. Atlantic & Pac. R. Co. 528 ; Henton v. Heather, 14 M. & W. 
 
 21 Pac. Rep. 338 [Ariz.].) 131- 
 
 2 Douglas V. Corbett, 6 El. & Bl. 
 Sii. 
 
 46 
 
722 MALICIOUS PROSECUTION, [CH. XVI 
 
 honestly entertained, will not alone constitute a defenj 
 To constitute a defense, there must be a belief founde 
 upon knowledge or information which renders such 
 belief reasonable.^ It is not enough to show that the cai 
 appeared sufficient to this particular person, but the cai 
 must be sufficient to induce a sober, sensible and discre 
 person to act upon it, or it must fail as a justification f( 
 the proceeding upon general grounds.* 
 
 Where the defendant is the prosecutor, his mere beli 
 in the guilt of the accused is not probable cause; ^ yt 
 where the defendant was not the prosecutor in fact, ar 
 can be made so only by construction, by reason of h 
 having given information which led to plaintiff's arrest, tl 
 motive is material, and the mere fact that defendant acte 
 in good faith is a defense.* 
 
 § 429. To constitute reasonable and probable cause, 
 prosecutor need not necessarily have personal knowledg 
 of the transaction of which he complains ; he may righ 
 fully act upon information communicated to him in tl 
 ordinary routine of business, where he honestly believ< 
 
 ' I Amer. Lead. Cas. 281 ; cited constituting probable cause. (Carl 
 
 and approved, Dennis v. Ryan, 63 Ayers, 53 N. Y. 17; Galloway 
 
 Barb. 149; 5 Lans. 350; Farnam v. Stewart, 49 Ind. 156.) Defenda 
 
 Feeley, 56 N. Y. 456. It is error to had indicted plaintiff for felony, f 
 
 leave to jury the question whether de- maliciously obstructing the air-way 
 
 fendant honestly and reasonably be- a mine, but which it appeared plain 
 
 lieved, &c., a belief maybe honest iff did ^o»a_;fflfe under a claim of rigl 
 
 though unreasonable. (Lowe v. Col- In an action by plaintiff for a malicio 
 
 lum, 2 Ir. L. R. 1 5. Honest belief is prosecution, held that it ought to ha 
 
 reasonable cause. (Hicks v. Faulk- been left to the jury to say wheth 
 
 ner, 8 Q. B. D. 167; aff'd 46 Law defendant knew that the obstructii 
 
 Times, N. S. 127.) had been done under a claim of rigl 
 
 2 Redfield, Ch. J., Barron v. Ma- for that, if so, there was no probal 
 son, 31 Vt. 197. cause for the indictment. (James 
 
 3 I Amer. Lead. Cas. 265 ; Merriam Phelps, 3 Per. & Dav. 231 : n A. 
 V. Mitchell, 13 Me. 439; Travis v. EI. 483; and see Scanlan v. Co' 
 Smith, I Barr(Pa.), 234; Burlingame ley, 9 Abb. Pr. R. 94; 2 Hilto 
 V. Burlingame, 8 Cow. 141 ; Hall v. 489; citing Gordon z/. Upham, 4 E. 
 Suydam, 6 Barb. 84; Shaferw. Loucks, Smith, 9; Baldwin v. Weed, 17 Wen 
 58 Barb. 426 ; Huffer v. Allen, Law 224 ; Munns v. Dupont, 3 Wash. C. 
 Rep. 2 Ex. 15. Defendant must, at 37.) 
 
 the time he prosecutes, know the cir- * Farnam v. Feeley, 56 N. Y. 45 
 
 cumstances upon which he relies as see Woodworth v. Mills 61 Wis". 4^ 
 
§ 429-J MALICIOUS PROSECUTION. 723 
 
 such information to be true, and the information is of 
 such a character, and is communicated in such a manner 
 as, under similar circumstances, it would be acted upon 
 by a business man of ordinary prudence.^ And where it 
 appears that the prosecutor acted upon information, the 
 presumption is that he believed in the truth of such in- 
 formation, and in the absence of any evidence that one 
 who acted upon information knew, or had reason to sus- 
 pect, the information to be false, it was held error to 
 charge the jury that, to justify the defendant's acts, they 
 must be satisfied — i. e., satisfied by something more than 
 the presumption in his favor — that he believed in the 
 truth of the information upon which he acted.* A pros- 
 ecutor may act upon appearances, and if the apparent facts 
 are such as would lead a discreet and prudent person to 
 the belief that the accused had committed a crime, they 
 constitutef reasonable and probable cause, although the 
 accused is in fact innocent.* But even where the appear- 
 ances against the accused are suspicious, if the prosecutor 
 has knowledge of facts which will explain the suspicious 
 circumstances, and exonerate the accused from a criminal 
 
 ^ Gallaway v. Burr, 32 Mich. 332 ; cessible ; held, defendant should have 
 Lamb v. GaHand, 44 Cal. 609 ; Chat- applied to A. before prosecuting 
 field V. Comerford, 4 Fost. & F. 1008; plaintiff. (Jennerz/. Harbison, 5 Vict. 
 Lister v. Ferryman, Law Rep. 4 Ho. Law Rep. L. in.) The bare fact 
 of L'ds, 521 ; Miller v. Milligan, 48 that certain persons had stated to de- 
 Barb. 30. fendant they believed plaintiff had 
 
 ' Carpenter v. Shelden, 5 Sandf. committed the crime, does not tend to 
 77. It is an essential element of justify the prosecution. (Norrel v. 
 the defense that defendant honestly Vogel, 38 No. West. R. 705 [Minn.] ; 
 believed plaintiff was guilty of the of- but see Turner v. Wright, 6 Vict, 
 fense charged. (Spear v. Hiles, 67 Law Rep. L. 273.) Plaintiff may 
 Wis. 350.) Two persons told defend- show that defendant knew his inform- 
 ant a consistent and not improbable ant was a disreputable person. (Mc- 
 story clearly bringing the crime home Intire v. Levering, 20 No. East. Rep. 
 to plaintiff; held, defendant was jus- 191 ; see Chapman v. Dunn, 56 Mich, 
 tified in setting the law in motion, 31.) Defendant making inquiries to 
 without making inquiry into the ascertain the facts is evidence of good 
 character of his informants. (Rob- faith. (Rigdon v. Jordan, 7 So. East, 
 bins V. David, 5 Vict. L. R, L. 163.) Rep. 857.) 
 
 Where stolen goods were found in » Fagan v. Knox, I Abb. N. C. 
 
 plaintiff's possession, and he stated he 246; s. c. Fagnan v. Knox, 66 N. Y. 
 
 received them from A. who was ac- 528 ; Carl v. Ayers, 53 N. Y. 14. 
 
724 MALICIOUS PROSECUTION. [CH. XVIII, 
 
 charge, he acts without reasonable and probable cause.* 
 Mere suspicion is not probable cause.* Defendant had a 
 sick child on board a steamboat. He was approached by 
 plaintiff, a stranger, who touched him on the shoulder, and 
 said he wished to speak with him. Plaintiff being roughly 
 answered, turned away, and then turned back stating to 
 defendant he intended to speak with him concerning his 
 child. Whereupon defendant caused plaintiff's arrest on 
 a charge of an attempt to steal his, defendant's, diamond 
 breast-pin — held there was no probable cause for the arrest.* 
 A. committed a robbery and immediately absconded. 
 Plaintiff, a fellow-workman of A., stated that A. had in- 
 formed him of his intention to go to Australia ; and A. 
 had been seen the morning after the robbery, coming from 
 a public entry leading to the place where the robbery was 
 committed. Defendant, plaintiff's employer, on learning 
 these facts, caused plaintiff to be arrested on a charge of 
 robbery — held there was no evidence of probable cause.* 
 Defendant, a miller, saw some sacks partly covered with 
 a tarpaulin, lying on a quay, alongside a vessel ; seeing 
 his mark on one of the sacks, he opened it, and found it 
 filled with pieces of sacks, old and new. He found also 
 sacks on which was his mark, and some from which his 
 mark had been cut. He learned that plaintiff was about 
 shipping these sacks to a paper-mill. Defendant caused 
 plaintiff's arrest for having stolen goods in his possession, 
 but the charge was dismissed. In an action for malicious 
 prosecution, held there was reasonable and probable cause."^ 
 
 1 Fagan v. Knox, i Abb. N. C. rev'g S. c. 3 Sup. Ct. Rep. FT. & C 1 
 
 246; 66 N. Y. 528; Peden v. Mail, 264.) 
 
 118 Ind. 560. Similarity of hand- ^ Busst z/. Gibbons, 30 Law Jour, 
 
 writing is not per se and without Rep. Ex. 75. 
 
 other circumstances probable cause ' Carl v. Ayers, 53 N. Y. 14. 
 
 for preferring a charge of forgery » Crescent Live Stock Co. v. 
 
 against one whose handwriting re- Butcher Union, 120 U. S. 141; Busst 
 
 sembles that of the forged instru- v. Gibbons, 30 Law Jour. Rep. Ex. 75. 
 
 ment. (Clements v. Ohriy, 2 C. & K. » Wyatt v. W^hite, 5 Hurl. & n" 
 
 686; Heyne v. Blair, 62 N. Y. 19; 371. 
 
§ 43°-] MALICIOUS PROSECUTION. 725 
 
 The owner in fee of certain premises mortgaged them to 
 the defendant, and afterwards let the mortgaged premises 
 to the plaintiffs. The plaintiffs occupied the premises as 
 a storehouse. Afterwards defendant, without notice to or 
 knowledge of the plaintiffs, and while they were absent 
 from the premises, obtained possession by removing the 
 lock of the outer door. When plaintiffs became aware of 
 this, they endeavored to eject defendant ; and on failure 
 to do so, effected an entrance at a side window and held 
 possession against defendant. Defendant procured plaint- 
 iffs to be indicted for a forcible entry, upon which they 
 were tried and acquitted — held there was reasonable and 
 probable ground for the prosecution.^ Plaintiff was in 
 possession of horses, under a contract of hiring from de- 
 fendant prohibiting him from removing them from his 
 farm ; he had offered them for sale in Victoria and in 
 another colony — held there was reasonable and probable 
 •cause for instituting a prosecution for larceny as bailee.^ 
 
 § 430. The facts being undisputed. What is reasonable 
 and probable cause is a question of law.^ It is always for 
 the court to define what is reasonable and probable cause, 
 and besides defining the law, explain its application to the 
 
 ' Lows V. Telford, Law Rep. i Mass. 405; Turner v. O'Brien, 11 
 
 Appeal Cas. 414; see Krulevitz v. Neb. 108; Gilbertson'z/. Fuller, 42 No. 
 
 East. R.R. Co. 140 Mass. 573; 143 /</. West. Rep. 203 (Minn.); Moore z/. 
 
 331. No. Pac. R'd Co. 37 Minn. 147; Wil- 
 
 2 Playford v. Brown, 6 Vict. Law liamson v. M'Ravey, 6 Vict. Law Rep. 
 
 Rep. L. 467. L. 487 ; McNulty v. Walker, 64 Miss. 
 
 « Bulkeley v. Keteltas, 6 N. Y. 198 ; Bell v. Keepers, 39 Kansas, 105 ; 
 
 384 ; Miller v. Milligan, 48 Barb. 30; Atchison T. S. H. v. Watson, 37 Kan- 
 
 Busst v. Gibbons, 30 Law Jour. Rep. sas, 773. The fact being undisputed 
 
 Ex. 75 : Watson v. Whitmore, 14 /^. the court should instruct the jury that 
 
 41 ; Hailes v. Marks, 7 H. & N. 56 ; there was or was not probable cause. 
 
 Carpenter v. Shelden, 5 Sandf. 77; (Brewer v. Jacobs, 22 Fed. R. 217; 
 
 Gordon z/. Upham, 4 E. D. Smith, 9; Castro v. De Uriarte, 16 Id. 93; 
 
 Waldheim v. Sichel, i Hilton, 45; Fulton z/. Onesti, 66 Cal. 575 ; Alan z/. 
 
 Good z*. French, 115 Mass. 201 ; Porter Parke, 5 Hawaiin Rep. 2; Achu z/. 
 
 2/. White, 4 Central Reporter, 151; Wongkuai, 3 /d. 81.) And direct a 
 
 Coleman v. Allen, 5 So. East. Rep. verdict accordingly. (Besson v. South- 
 
 205, note; Bartlett v. Hawley, 38 ard, 10 N. Y. 236.) 
 
 Minn. 308; Sartwell v. Parker, 141 
 
726 MALICIOUS PROSECUTION. [CH. XVIII, 
 
 facts of the particular case.^ The existence of reasonable 
 and probable cause is a mixed proposition of law and fact,* 
 sometimes to be decided by the court alone, and some- 
 times by the jury under the instructions of the court.' It 
 is frequently difficult duly to apportion the duty of the 
 court and of the jury. The leading rule is : " Where the 
 circumstances relied on as evidence of probable cause are 
 admitted by the pleadings, it belongs to the court to pro- 
 nounce upon them ; and where these circumstances are 
 clearly established by uncontroverted testimony, or by the 
 concession of the parties, and they [the circumstances] 
 fully establish a probable cause, the court may refuse to 
 submit the cause to the jury, and order the plaintiff to be 
 nonsuited." * The rule as thus laid down has been gene- 
 rally approved of, and it has been remarked : " This rule 
 adhered to will prevent a confounding of the duties of 
 courts and of juries in actions of this character." * Con- 
 ceding this, still there is a difficulty in the application of 
 the rule, and the difficulty is this: What are the facts 
 
 ^ Lyon V. Browne, 8 Vict. Law of reasonable and probable cause is 
 
 Rep. L. 247. for the judge; yet where defendant 
 
 ' Johnstone v. Sutton, i T. R. was found by the jury not to have 
 
 545 ; Ravenga v. Macintosh, 4 D. & acted bona fide, the question of rea- 
 
 R. 107; Wheeler v. Nesbitt, 24 How. sonable and probable cause cannot be 
 
 U. S. Rep. 544; Blunt v. Little, 3 ruled in his favor. Reasonable and 
 
 Mason, 102; Munns v. Dupont, 3 probable cause in the mind of the 
 
 Wash. C. C. 31 ; see So. West. R. R. judge is not sufficient, there must have 
 
 Co. V. Mitchell, 5 So. East. Rep. 490 been reasonable and probable cause 
 
 (Ga.), and note thereto; McNulty v. moving defendant; also held no 
 
 Walker, i So. Rep. 55 (Miss.) ; Cole- error to submit the question of malice 
 
 man v. Allen, 5 So. East. Rep, 205, at the close of plaintiff 's case, 
 
 note. (Shrosbery v. Osmaston, 37 Law 
 
 ' At the close of plaintiff's case Times, N. S. 792.) 
 the judge asked the jury, against the * By Marcy, j., Masten -v. Deyo, 2 
 
 protest of defendant's counsel, if they Wend. 424; and see Bums v. Erben, 
 
 believed defendant acted with malice; 40 N. Y. 463; Besson v. Southard, 10 
 
 and, contrary to his expectation, they Id. 236 ; Davis v. Hardy, 6 Barn. & 
 
 answered yes. The judge refused to C. 225; 9 D. & R. 380; see Burton v. 
 
 rule whether there was reasonable and St. Paul, M. & M. R. R. 33 Minn, 
 
 probable cause. On the conclusion 189. Error to submit question of 
 
 of the case, the jury found that de- probable cause to jurj' even by im- 
 
 fendant had acted with malice and plication. (Bulkeley v. Smith, 2 Duer, 
 
 without probable cause, and gave 261.) 
 plaintiff a verdict. Held, the question » Heyne v. Blair, 62 N. Y. 23. 
 
§ 430-] MALICIOUS PROSECUTION. 727 
 
 which " fully establish a probable cause ? " ^ Thus, where 
 the defendant had discounted for the plaintiff two notes 
 of $300 each, both purporting to be indorsed by A., sub- 
 sequently the defendant, doubting if the indorsements were 
 those of A., showed the indorsements to the cashier and 
 teller of A.'s banker, who both doubted the genuineness of 
 the signatures indorsed. At defendant's request the said 
 cashier inquired of A. what notes he had indorsed for the 
 plaintiff. A. answered two only, one for $300 and the 
 other for $150. Upon this being communicated to the 
 defendant, he had the plaintiff arrested on a charge of 
 forgery, when the indorsements proved to be genuine. 
 In an action by the plaintiff for malicious prosecution, 
 the facts were uncontroverted, and the judge directed a 
 verdict for the defendant, on the ground that there was 
 reasonable and probable cause for the arrest. The gene- 
 ral term upheld the action of the judge, but the Court 
 of Appeals reversed the judgment, upon the grounds 
 that "the evidence did not conclusively establish a prob- 
 able cause, and that the evidence tended to show a want 
 of such cause;" and further that it ought to have been 
 left to the jury " to determine the effect which all the in- 
 formation and knowledge in the defendant's possession 
 would have had upon the mind of a man of ordinary 
 prudence and caution, acting conscientiously, that is, the 
 belief which the defendant might have honestly enter- 
 tained from these and all the other circumstances of the 
 case." The prevailing opinion of the court in the case 
 now under consideration further states: "It is pre- 
 
 1 Although the question of rea- G't West. R'way of Ireland Co. 7 Ir. 
 sonable and probable cause is an in- R. C. L. 8.) Instances of want of 
 
 ference to be drawn by the judge probable cause. (See Ayres v. El- 
 from facts undisputed, yet the test is brough, 22 Law Times, N. S. 106; 
 not what impression the circumstances ''—'—=-- ■^--' ^ t> r-„ ,-.,Tv/r„,„ 
 would make on the mind of a lawyer, 
 but whether the circumstances war- 
 ranted a discreet man in instituting 
 the proceedings. (Kelly v. Midland 
 
 Irom tacts undisputea, yei me test is urougn, zz j^dw ximcD, 11. ^. luu, 
 
 not what impression the circumstances Krulevitz v. East. R. R. Co. 140 Mass. 
 
 would make on the mind of a lawyer, 573; 143 Mass. 231; Wans v. Stephens, 
 
 but whether the circumstances war- 24 N. Y. St. Rep. 695; Young v. 
 
 ranted a discreet man in instituting Lyall, 5 N. Y. Supp. 11.) 
 
728 MALICIOUS PROSECUTION. [ciI. XVIII. 
 
 eminently a question for tiie judgment of twelve men 
 to determine what, upon a doubtful state of facts, or 
 upon facts from which different Tnen would draw differ- 
 ent conclusions — that is, upon facts capable of different 
 inferences — would be the belief and action of men of 
 ordinary caution and prudence." ^ Good faith alone, with- 
 out probable cause, is not a defense.^ We have seen to 
 what extent the belief of the prosecutor affects the ques- 
 tion of probable cause (§ 428), and as the belief of the 
 prosecutor may be directly proved,* the conclusion at 
 which we arrive is that to authorize the court, in determin- 
 ing the question of the existence of probable cause, the 
 admitted or uncontro verted facts must include the fact of 
 the defendant's belief. The rule of law on this point, as 
 laid down by the American courts, appears to be far more 
 intelligible than is the rule propounded by the English 
 courts. Thus, in a leading case in the House of Lords,* it 
 was said by Lord Chelmsford ; " No definite rule can be 
 
 ' Heyne v. Blair, 62 N. Y. 19; it had been done by plaintiff; after- 
 rev 'g S. C. 3 Sup. Ct. Rep. (T. & C.) wards S. told defendant the daubing 
 264. In an action against a defendant was done by him, S., and agreed with 
 for taking the plaintiff to a police defendant to settle the matter by re- 
 office, and causing him to be im- painting the fence and paying $5. 
 prisoned without reasonable or prob- After this defendant had plaintiff ar- 
 able cause, on a charge that he utter- rested for malicious mischief, upon 
 ed menaces against the defendant's which charge she was tried and acquit- 
 life— held that it was not for the judge ted. Plaintiff sued for malicious prose- 
 alone to determine whether the cution, and was nonsuited— held error; 
 menaces justified the charge, but that that it should have been left to the 
 it should have been left to the jury to jury to say whether defendant, when 
 determine whether the defendant be- he made the charge against plaintiff, 
 lieved the menaces, before the judge actually credited S.'s first statement, 
 decided whether or not there was and commenced the prosecution in 
 reasonable and probable cause for the good faith. (Foote v. Milbier, I Sup. 
 charge. (Venafra v. Johnson, 3 M. & Ct. Rep. [T. & C] 456.) 
 Scott, 847; 10 Bing. 301 ; 6 C. & P. 2 Wilson v. Bowen, 64 Mich. 133. 
 50.) In Haupt V. Pohlmann (i Rob- ' McKown v. Hunter, 30 N. Y. 
 ertson, 126), held proper to instruct 628; Dillon v. Anderson, 43 N. Y. 
 the jury that they were to determine 236 ; Goodman v. Stroheim, 36 Su- 
 from all the facts in the case whether periorCt. R. (4 Jones & S.) 216; ante, 
 there was probable cause. (Acker v. note, § 402. 
 Gundy, n Cent. Rep. 618 fPa.].) * Lister v. Ferryman, Law Rep. 4 
 
 One S. daubed defendant's fence Ho. Lds. App. Cas. 521. 
 with paint, and told defendant's wife 
 
§ 430A.] MALICIOUS PROSECUTION. 729 
 
 laid down for the exercise of the judge's judgment. Each 
 case must depend upon its own circumstances, and the 
 result is a conclusion drawn by each judge for himself, 
 whether the facts found by the jury constitute a defense to 
 the action.^ The verdict, therefore, in cases of this descrip- 
 tion, is only nominally the verdict of the jury." And by 
 Lord Westbury, in the same case : " The existence of rea- 
 sonable and probable cause is an inference of fact. It must 
 be derived from all the circumstances of the case. I regret, 
 therefore, to find the law to be that it is an inference to be 
 drawn by the judge, and not by the jury. I think the law 
 ought to be the other way." 
 
 § 430a. Where the facts are controverted, or the ve- 
 racity of witnesses is impeached, the question of probable 
 cause is a mixed one of law and fact, to be determined by 
 the jury, under the instructions of the court.^ The judge 
 is to instruct the jury what facts will constitute a defense, 
 and the jury are to determine if such facts have or have not 
 been proved, and decide accordingly.^ The question of 
 
 ' Nonsuit held proper. (Kelly z/. Moore, 44 Cal. 144; Foshay z/. Fergu- 
 
 Midland Gt. West. R'way, 7 Ir. Rep. son, 2 Denio, 619; Turner z/. Ambler, 
 
 C. L. 8; Fish v. Scott, Peake, 135; 10 Q. B. 252; Rowlands v. Samuel. 
 
 Brooks V. Blair. 39 Law Jour. C. P. i ; 11 Q. B. 39; Chapman v. Hislop, 1 8 
 
 Davidson v. Smyth, 20 Law Rep. Ir. Jur. 348 ; Heslop v. Chapman, 23 Law 
 
 326 ; Hicks v. Faulkner, 46 Law Jour. Rep. Q. B. 49. In an action for 
 
 Times, N. S. 127; aff'g 8 Q B. D. a malicious prosecution, though in it 
 
 167; Rippon V. Dennis, 6 Vict. Law the question of reasonable or probable 
 
 Rep. L. 81 ; Castro v. De Uriarte, 16 cause depends not upon a few and 
 
 Fed. Rep. 93 ; Dearmond v. St. simple facts, but upon facts which are 
 
 Amant, 40 La. An. 374; Davison v. numerous and complicated, and upon 
 
 Smyth, 20 L. Rep. Ir. 326; Phillips numerous and complicated inferences 
 
 V. Naylor, 4 H. & N. 565 ; Longden v. to be drawn therefrom, it is the duty 
 
 Weigall, 3 Vict. Law Rep. L. 266.) of the judge to inform the jury, if they 
 
 * Besson v. Southard, 10 N. Y. find the facts to be proved, and the 
 
 236 ; Bell V. Matthews, 37 Kansas, inferences to be warranted by such 
 
 686 ; Burton v. St Paul, M. & M. R. facts, that the same do or do not 
 
 R. Co. 33 Minn. 189. amount to reasonable and probable 
 
 ^ Bulkeley v. Keteltas, 6 N. Y. cause, so as thereby to leave the ques- 
 
 384 ; Fagan v. Knox, i Abb. N, C. tion of fact to the jury, and the ab- 
 
 246; Pangburn v. Bull, i Wend. 352; stract question of law to the judge. 
 
 Hasten v. Deyo, 2 Wend. 428; (Panton z/. Williams, i G. & D. 504.) 
 
 M'Cormick v. Sisson, 7 Cow. 715; In an action for charging plaintiff with 
 
 Hall V. Suydam, 6 Barb. 86 ; Stevens a felony, maliciously and without rea- 
 
 V. Lacour, 10 Barb. 62 ; Harkrader v. sonable or probable cause — held that 
 
72,0 
 
 MALICIOUS PROSECUTION. 
 
 [CH. XVIII. 
 
 existence or want of probable cause is not fairly submitted 
 to the jury, where they are not told what facts they are to 
 consider in determining the question but are left to deter- 
 mine it in the light of all the facts proven.^ The jury may 
 be asked whether or not the defendant, at the time when 
 he prosecuted, knew of the existence of those circum- 
 stances which led to show probable cause, or believed they 
 amounted to the offense charged ; and if they negative 
 either of these facts, the judge will decide there was no 
 probable cause.^ 
 
 § 431. To sustain the action for malicious prosecution, 
 malice and want of probable cause must co-exist.' Proof 
 
 the judge was warranted in leaving to 
 the jury, instead of deciding himself, 
 the existence of probable cause, upon 
 the following statement of facts : The 
 plaintiff, a servant, being discharged 
 from service on a Friday, took away 
 with her from her master's house a 
 trunk and bag, the property of her 
 master. The master wrote to her the 
 next day demanding his property, and 
 threatening to proceed criminally on 
 the Monday following, if it was not 
 restored ; the servant being absent 
 from home when the letter was de- 
 livered, no answer was returned; 
 whereupon the master the same day, 
 Saturday, had her taken in custody, 
 but, when she was brought before the 
 magistrates on Monday, declined to 
 make any charge. (M'Donald v. 
 Rooke, 2 Bing. N. C. 217 ; 2 Scott, 
 359; I Hodges, 314) 
 
 * Sweeney v. Perney, 40 Kansas, 
 102; Atchison, &c. v. Watson, 37 
 Kansas, 773. It is for the jury to de- 
 termine what facts are proved, and 
 for the court to say whether or not 
 such facts amount to probable cause. 
 Moore v. No. Pac. R. R. Co. 37 
 Minn. 147; Burton v. St. Paul, M. & 
 M. Co. 33 Minn. 189; Johnson v. 
 Miller, 63 Iowa, 530 ; Ross v. Lang- 
 worthy, 13 Neb. 492; Castro v. De- 
 Uriarte, 16 Fed. Rep. 93; Gee v. 
 Culver, 12 Oregon, 228; Sartwell 
 V. Parker, 141 Mass. 405 : McNulty 
 
 V. Walker, 64 Miss. 198. When 
 the evidence as to probable cause 
 is conflicting, the court is not re- 
 quired to state the evidence which 
 if true would establish a want of 
 probable cause, and instruct that if 
 such evidence is believed, there was 
 not probable cause, or to state that 
 which, if true, would establish prob- 
 able cause. (Gulf, C. & S. F. Rail- 
 way Co. V. James, 10 So. West. Rep. 
 744 [Texas].) 
 
 2 McWilliams v. Hoban, 42 Md. 
 56. 
 
 " Besson v. Southard, 10 N. Y. 
 236; Rhodes v. Brandt, 21 Hun, l; 
 Kingsbury v. Garden, 45 N. Y. Su- 
 perior Co't, 224 ; Richardson v. Vir- 
 tue, 2 Hun, 208 ; Castro v. De Uriarte, 
 16 Fed. Rep. 93 ; McCormack v. Perry, 
 14 N. Y. St. Rep. 154; 47 Hun, 71; 
 Livingston v. Hardie, 6 So. Rep. 129 
 [La.]; Fagan v. Knox, 1 Abb. N. C. 
 246 ; S. C. Fagnan v. Knox, 66 N. T. 
 528; Metcalfe v. Brooklyn Life Ins. 
 Co. 45 Md. 198; Lillard v. Carter, 
 Sup. Ct. Tenn. Feb. 1876; i Law & 
 Eq. Rep. 539; Byne v. Moore, i C. 
 Marsh. 12; 5 Taunt. 187 ; Farmer v. 
 Darling, 4Burr. 1971; Zantzinger t*. 
 Weightman, 2 Cranch C. C. 478; 
 Breckenridge z/. Auld, 4 Id. 731 ; Ace. 
 Transit Co. v. McCerren, 13 La. An. 
 214; Pellenz v. Bullerdieck, Id. 274; 
 Potter z/. Scale, 8 Cal. 217; Vander- 
 bilt V. Mathis, 5 Duer, 304 ; Murray v. 
 
§431.] 
 
 MALICIOUS PROSECUTION. 
 
 731 
 
 that the prosecution was malicious will not sustain the 
 action, unless it also appear there was a want of probable 
 cause.^ To prove that prosecution was without probable 
 cause, plaintiff may show his good reputation, known to 
 defendant when the prosecution was commenced.^ Show- 
 ing the want of reasonable and probable cause, does not, 
 per se, and as a conclusion of law, prove malice,^ but the 
 want of reasonable and probable cause is a circumstance 
 which the jury may and should consider in determining 
 the motive of the prosecution/ The absence of reasonable 
 and probable cause is at least a link in the chain of evi- 
 dence of an improper or malicious motive in the prose- 
 cutor, and one dictum has gone so far as to declare that 
 "malice is inferred from want of probable cause. . . . 
 
 McLane, 5 Hall L. J. 514: Blunt z'. 
 Little, 3 Mason, 102; Richardson v. 
 Virtue, 2 Hun, 208 ; Munns v. Du- 
 pont, 3 Wash. Cir. Ct. 31 ; Harpham 
 V. Whitney, 77 111. 32; Porter v. 
 White, 4 Central Reporter, 151; 
 Green v. Cochran, 43 Iowa, 544, and 
 many more. 
 
 » Wheeler v. Nesbitt, 24 How. U. 
 S. Rep. 544. 
 
 * Mclntire v. Levering, 20 No. 
 East. Rep. 191 (Mass.). 
 
 2 Malice not necessarily inferred 
 from want of probable cause. There 
 may be want of probable cause and 
 no malice. (Harkrader v. Moore, 44 
 Cal. 144; Harpham v. Whitney, 77 
 111. 32.) Probable cause is not a de- 
 fense to an action for having signed 
 an order for plaintiff 's removal to a 
 lunatic asylum, and for the libel con- 
 tained in such order. (Carr v. Torre, 
 54 Law Times, N. S. 516; rev'g Id. 
 87 ; and see A3a-es v. Russell, 50 Hun, 
 283: Lockenour v. Sides, 57 Ind. 360.) 
 
 The inference is not of law but of 
 fact, which the jury is not bound to 
 draw (Mitchell v. Jenkins, 2 Nev. & 
 M. 301; 5 B. & Adol. 588), and 
 charging the jury that the absence of 
 probable cause is conclusive of legal 
 malice, held a misdirection. (Id.) 
 There is a material distinction be- 
 tween the institution of the prosecu- 
 
 tion and its continuance after it has. 
 been already instituted without author- 
 ity by an agent. And the absence of 
 reasonable and probable cause, which 
 might be evidence of malice in the one 
 case, will not be so in the other. 
 (Weston V. Beeman, 27 Law Jour. 
 Rep. Ex. 57.) 
 
 * Malice may be implied from the 
 want of probable cause. (Hall v. 
 Suydam, 6 Barb. 83 ; Murray v. Mc- 
 Lane, 5 Hall Law Jour. 514; Wheeler 
 V. Nesbitt, 24 How. U. S. 544; Blunt 
 V. Little, 3 Mason, 102 ; Wiggin v. 
 Coffin, 3 Story, i ; Wilmarth v. Mont- 
 ford, 4 Wash. C. C. 79 ; Warner z/. 
 Bruen, 4 City Hall Rec. 92 ; Burhans 
 V. Sanford, 19 Wend. 417 ; Garrison 
 ■u. Pearce, 3 E. D. Smith, 255 ; Craw- 
 ford V. Ryan, 7 Atl. Rep. 745 [Pa.] ; 
 Bartlett v. Hawley, 38 Minn. 308: 
 Wertheim v. Altschuler, 12 Neb. 591 j 
 Edgworth v. Carson, 43 Mich. 241 ; 
 Heap V. Parrish, 104 Ind. 36 ; Blunk 
 V. Atchison, T. & S. F. R. Co. 38 Fed. 
 Rep. 311 ; Murphy v. Hobbs, 8 Col- 
 orado, 17.) The court should not in- 
 struct the jury that they may infer 
 malice from want of probable cause, 
 as such a charge might give the jury 
 the impression that the judge believed 
 want of probable cause had been 
 shown. (Biering v. First Nat'l Bank 
 of Galveston, 69 Texas, 599.) 
 
732 MALICIOUS PROSECUTION. [CH. XVIII. 
 
 A case of want of probable cause without malice would be 
 felo de se. The thing is impossible." ^ But it is settled in 
 New York that the want of probable cause must be shown 
 as an independent fact, and cannot be inferred from any 
 degree of malice.^ The termination of the proceedings in 
 favor of the plaintiff is not alone a presumption of malice,' 
 but it is evidence of malice that the defendant circulated 
 reports prejudical to the plaintiff,* or published an adver- 
 tisement of the finding of the indictment,' or had misstated 
 the facts and exhibited anger,' or that defendant resorted 
 to criminal proceedings to collect a debt.'' It is admissible 
 to ask the defendant as a witness on his own behalf, 
 whether, in procuring the warrant for plaintiff's arrest, he 
 acted without malice.^ The existence or absence of malice 
 is a question for the jury." Evidence of malice may be 
 rebutted by proof of bona fides}^ The want of probable 
 cause is not malice itself but only evidence of malice. It 
 has not the force of a legal conclusion, and therefore the 
 
 1 Mullen, J., Lawyer v. Loomis, 3 S. Rep. 545; Munns v. Dupont, 3 
 Sup. Ct. Rep. (T. & C.) 393. Wash. C. C. 31 ; Payne v. Revans, 9 
 
 2 Besson v. Southard, 10 N. Y. Weekly Rep. 693 ; s C. at Nisi Prius, 
 236. Payne v. Revons, 2 Fost. & F. 367 ; 
 
 ^ Boeger v. Langenberg, 11 So. Bulkeley w. Smith, 2 Duer, 271 ; Laird 
 
 West. Rep. 223 (Mo.): Thompson z/, Taylor, 66 Barb. 142 ; Miller 7/. Mil- 
 
 11. Beacon Valley Rubber Co. 56 ligan, 48 Barb. 30. Where all men 
 
 Conn. 493 ; Johnson v. Chambers, would not draw an inference of malice, 
 
 10 Ired. 287; UUman v. Abrams, it is a question for the jury, and it is 
 
 ■9 Bush (Ky.), 738. Offer of com- error to charge that as matter of law 
 
 promise not evidence of malice. (Em- there was no reasonable cause for 
 
 merson z/. Cochran, III Pa. St. 619.) procuring the arrest. (Neill v. 
 
 * Zantzinger v. Weightman, 2 Thorn, 17 Hun, 144; and see Gale v. 
 
 Cranch C. C. 478; Brockleman v. Bohanan, 73 Iowa, 511.) 
 Brandt, 10 Abb. Pr. R. 141; Caddy Mere dislike or ill-will towards one 
 
 ^. Barlow, i Man. & R. 275. by another does not constitute malice 
 
 ^ Chambers 7/. Robinson, 2 Str.691. in the legal sense. There must be 
 
 ' Stewart v. Beaumont, 4 Fost. & some act done by defendant with in- 
 
 F. 1034. tent to injure plaintiff, and such act 
 
 ' Gallaway v. Burr, 32 Mich. 332 ; must be wrongful and done without 
 
 Ross V. Langworthy, 13 Neb. 492 legal justification or excuse. (Peck v. 
 
 ' McCormack v. Perry, 47 Hun, Chouteau. 91 Mo. 138; Glasgow v. 
 
 71 ; 14 N. Y. St. Rep. 154, disregard- Owen, 69 Texas, 167.) 
 ing to the contrary. See in note to § • » Wheeler v. Nesbitt, 24 How. U., 
 
 402, an/e; Lawyer v, Loomis, 3 Sup. S. Rep. 545 ; Wilmarth v. Mountford, 
 
 Ct. Rep. (T. & C.) 393. 4 Wash. C. C. 79; Lawyer v. Loomis, 
 
 " Wheeler v. Nesbitt, 24 How. U. 3 Sup. Ct. Rep. (T. & C.) 393. 
 
43 I- j MALICIOUS PROSECUTION. 
 
 733 
 
 existence of malice is a fact to be found by the jury. 
 Defendant may testify as to his motive in making the 
 complaint.^ It is true there are certain things which, if 
 proved, the law declares to be conclusive evidence of 
 malice ; but mere want of probable cause is not one of 
 them. If a prosecution be instituted to harass an oppo^ 
 nent in a civil action,^ or for the purpose of extorting 
 money or other property, the law implies malice, and if, in 
 this case, the prosecution . . . was . . . to obtain 
 title to the horse alleged to have been stolen, that fact was 
 conclusive evidence of malice.* To prosecute for the 
 sake of making an example of the offender is not indicative 
 of malice.* In an action for maliciously indicting plaint- 
 iff, for cattle stealing, it appeared that plaintiff, who 
 was driving his cattle to market, had, on passing 
 defendant's farm, received into his drove two of defend- 
 ant's cattle, and had proceeded on his journey with them 
 seventy miles, when he was overtaken by defendant who 
 charged him with the theft, and plaintiff paid defendant a 
 large sum of money to settle the affair. Defendant was 
 informed that plaintiff had in like manner driven off 
 other cattle ; held the action could not be maintained, 
 although it was shown the prosecution was malicious, and 
 plaintiff on trial had been acquitted.^ The defendant, the 
 owner of a fishing boat, on going to look for it on several 
 occasions, found that it had been taken from its mooring. 
 It was brought back, however, once with a net, another 
 time with a net and some sea filth left in it. The third 
 
 1 Sherburne V. Rodman, 51 Wis. Rep. 152; Prough 7/ Entriken, ii 
 
 474; White V. Beck, 64 Iowa, 122; Penn. St. R. 82; Schofield 7/. Ferrers, 
 
 Heap I'. Parrish. 104 Ind. 136; Gar- 47 -^'^^ '96; Colson v. Radchffe, 4 
 
 rett V. Mannheimer, 24 Minn. 193; Times Law Rep. 60. 
 McKown V. Hunter, 30 N. Y. 625 ; » Schofield v. Ferrers, 47 Penn. St. 
 
 Burkey ^z. Judd, 22 Minn. 287 ; Mc- R- I96- ^„ „„ ^, ^„ 
 
 Cormack v Perry, 47 Hun, 71 ; H N. * Coleman v. Allen, 19 Ga. 637.. 
 
 Y St R^p. isT; see ante, note i, » Foshay v. Ferguson, 2 Demo, 
 
 page 661. ^ 617. 
 
 * McElroy v. Meredith, 1 1 Cent. 
 
734 MALICIOUS PROSECUTION. [cH. XVIII. 
 
 time the boat was taken, defendant caused plaintiff to be 
 arrested for grand larceny. In an action by plaintiff for 
 malicious prosecution, held there was an entire want of 
 reasonable ground for believing the party guilty of that 
 crime, and that malice might be inferred from such want 
 of probable cause.^ The plaintiff had left his wife with 
 her father, and gone, as he alleged, in search of work. 
 Defendant, the brother of plaintiff's wife, at her request, 
 and with her father's consent (the latter being unable to 
 support his daughter), procured plaintiff's arrest for desert- 
 ing his wife. Prior to any hearing, defendant took plaint- 
 iff 's wife to the overseer and obtained some relief, and she 
 was taken to the workhouse. There was some evidence 
 that this proceeding was colorable, and done to support 
 the charge of desertion. The charge was dismissed, 
 whereupon plaintiff sued for malicious prosecution, held 
 that the judge properly instructed the jury that there was 
 no reasonable or probable cause for the prosecution ; and 
 although defendant acted under a mistake, the jury might 
 infer malice from the fact of defendant's proceedings to 
 make a colorable chargeability.* 
 
 § 43 1«. Plaintiff, a surgeon, was prosecuted by defend- 
 ant for conspiracy (defrauding the defendant in an accident 
 case). The directors of the company on receiving the in- 
 formation, caused statements to be taken by a solicitor 
 with reference to plaintiff's connection with the alleged 
 conspiracy, and were advised by counsel that there was 
 good ground for prosecuting plaintiff. Plaintiff was ac- 
 quitted and brought this action. The judge directed the 
 jury to find whether defendants had taken reasonable care 
 to inform themselves of the true state of the case, and 
 whether they honestly believed the case which they laid 
 before the magistrates; the jury answered in the affirma- 
 
 1 Wansert/.Wyckoff,i6Sup.Rep. 2 Heath v. Heape, i Hurl. & N, 
 
 (9 Hun), 178. 478. 
 
§ 432-] MALICIOUS PROSECUTION. 
 
 735 
 
 tive, and the judge entered judgment for defendant. Held, 
 the direction correct.^ 
 
 § 432. The person liable to be sued is he who insti- 
 tutes the prosecution, or who authorizes it, by previous 
 authority or subsequent ratification.^ The defendant's 
 son, aged seventeen, and in defendant's employ, caused 
 plaintiff, also in defendant's employ, to be arrested on a 
 charge of false pretenses. Plaintiff was remanded. After 
 the remand the son told the defendant what he had done. 
 The defendant did not prohibit the son from proceeding 
 further, but said as the son had commenced the proceed- 
 ing, he, defendant, would not interfere. Held, there was 
 no evidence of either previous authority or subsequent 
 ratification by the defendant, and that he was not liable 
 for the son's act ; ' and where a prosecution is instituted 
 by husband and wife, the latter acting in the presence of 
 and by the direction of the husband, the wife is not lia- 
 
 ' Abrath v. The Northeastern neither directs, participates in, nor 
 
 Railway Company, 11 Q. B. D. 440; receives any Ijenefit from. (Rosin- 
 
 rev'g S. C. Id. 79. krans v. Barker, 115 111. 331 ; and see 
 
 ' Ante, § 422a. " Plaintiff must Johnson v. Miller, 63 Iowa, 529.) The 
 
 show that the defendant, and not fact that defendant signed a charge 
 
 somebody else, has prosecuted him, sheet, and appeared before the magis- 
 
 has been the real party in fact who trate, is strong, though not conclusive 
 
 has set on foot and conducted the evidence that he authorized the arrest, 
 
 proceedings against him. " (Hoge- (Harris v. Dignum, 29 Law Jour. Ex. 
 
 boom, J., Miller v. Milligan, 48 Barb. 23.) One who seeing a man in cus- 
 
 37.) "If he were the mere clerk or tody for a supposed offense points 
 
 agent of others, or a mere witness in out another as the real criminal, and 
 
 the transaction, he would not hold does not direct the officer to take that 
 
 the character, nor be liable to the other into custody, is not liable, 
 
 penalties, of a malicious prosecutor." (Gosden v. Elfick, 4 Exch. 445.) " It 
 
 {Id.) It must appear that the prose- sometimes becomes a point of very 
 
 cution was instituted by the defendant. subtle evidence to determine who was 
 
 (Gorton z/. De Angelis, 6 Wend. 418; the prosecutor. . . . It is a ques- 
 
 Besson v. Southard, 10 N. Y. 236; tion to be ascertained [answered] by 
 
 Wheeler v. Nesbitt, 24 How. U. S. inquiry and evidence. " (EUenborough, 
 
 Rep. 544; Clements v. Ohrly, 2 Car D. J., Rex v. Commerell, 4 M. & Sel. 
 
 & K 686.) Or that he caused it to be 207 ; see Rowe v. London Piano Forte 
 
 instituted. (Casebeer v. Drahoble, Co. 34 Law Times Rep. N. S. 450. 
 13 Neb. 465 ; see Barrett v. Chouteau, » Moon v. Towers, 8 C. B. N. S. 
 
 94 Mo. 13; and as to an attorney's 611. Held, an infant is not liable for 
 
 liability, Peck v. Chouteau, 91 Mo. a suit maliciously prosecuted in his 
 
 138.) A partner is not liable for the name by his guardian. (Burnham v. 
 
 false arrest of a debtor which he Seaverns, loi Mass. 360,) 
 
Tl^i MALICIOUS PROSECUTION. [CH. XVIII. 
 
 ble.^ An employer is not liable for an arrest made by a 
 police officer upon information furnished by a clerk of such 
 employer, without authority from the employer.^ One is 
 not relieved from his liability as prosecutor because bound 
 over to prosecute ;^ and where the plaintiff and defendant 
 were witnesses in an action, and in consequence of the 
 false swearing of the defendant, the presiding judge ordered 
 the prosecution of the plaintiff for perjury, and bound over 
 the defendant to prosecute, and defendant accordingly ap- 
 peared before the grand jury and repeated his false swear- 
 ing, he was held liable to an action.* Defendant having 
 lost some horse clippers from his stables sent for a police 
 constable and said to him : " I have had two pairs of clip- 
 pers stolen from me, and they were last seen in the pos- 
 session of Dan by (plaintiff)," upon this the constable 
 having made inquiries and without communicating with 
 defendant, arrested plaintiff who was taken before the 
 magistrate and committed for trial. Held, defendant was 
 not the prosecutor, and not liable." All who voluntarily 
 participate in the prosecution are liable;* and where there 
 are two or more prosecutors, the action may be against 
 one or some, or all of them.'' A complaint against several 
 
 ' Cassin z/. Delany, 38 N. Y. 178; had committed a murder, in conse- 
 
 rev'g S. C. I Daly, 224. quence of which the police attempted 
 
 " Hershey v. O'Neill, 36 Fed. to arrest plaintiff. (Harris v. Warre, 
 
 Rep. 168. L. R. 4 C. P. D. 125.) 
 
 » Dubois V. Keats, 1 1 Adol. & El. ' Stroud v. Roper, i Bulst. 1 5 ; 
 
 329; 4 Jur. 148; Davis v. Noak, i Pencavin v. Trapping, Latch, 262; 
 
 Stark. Rep. 377. Thomas v. Rumsey, 6 Johns. 27; 
 
 * Fitzjohn z/. Mackinder, 9 C. B. Patten v. Gurney, 17 Mass. 182; 
 N. S. 505; rev'gs. C. 8 C. B. N. S. Barratt v. Collins, 10 Moore, 446; 
 78. W^alser v. Thies, 56 Mo. 89; Lows 
 
 « Danby v. Beardsley, 43 Law v. Telford, i App. Cas. 514; 35 I^w 
 
 Times, N. S. 603. Times Rep. N. S. 69. In an action 
 
 • Stansbury v. Fogle, 37 Md. 369. for malicious prosecution against A. & 
 Mr. Justice Lopes, in Danby v. Beards- B., it appeared that both entered into 
 ley, 43 Law Times Rep. N. S. 603, a joint recognizance to prosecute and 
 defines a prosecutor as " a man ac- give evidence, but only A. employed 
 lively instrumental in putting the crim- the attorney, and B. attended and 
 mal law in force." It is not prose- gave evidence at the request of such 
 cution to write a letter to a superin- attorney ; held, B. was not liable, 
 tendent of police, stating that plaintiff (Eagar v. Dyott. 5 Car. & P. 4.) 
 
§ 433.] 
 
 MALICIOUS PROSECUTION. 
 
 Ill 
 
 defendants for malicious prosecution, need not allege that 
 they conspired together to commit the injury, the damage 
 is the gist of the action and not the conspiracy.^ 
 
 It seems there cannot be a joint action by two or more 
 for a malicious prosecution.^ 
 
 An action for malicious prosecution may be maintained 
 against a corporation.* 
 
 § 433. The complaint should allege the existence of 
 facts constituting a cause of action (§ 321).* The fact of 
 the prosecution is to be alleged according to circumstances, 
 as whether by indictment or otherwise. The complaint 
 need not allege jurisdiction in the court.^ Unless where 
 the action is founded upon a false charge upon which no 
 further proceeding was had, it is not necessary to state the 
 language of the charge ; it is sufficient to state its sub- 
 stance or effect.^ A declaration which alleges that defend- 
 
 1 Jenner v. Carson, 1 1 1 Ind. 522. 
 
 ' Lows V. Telford, Law Rep. i 
 App. Cas. 414. 
 
 » Ante, % 261 ; Hussey v. King, 98 
 No. Car. 34 ; Jordan v. Alabama, &c. 
 R. R. 49 Am. Rep. 800; West. News 
 Co. V. Wilmarth, 33 Kansas, 510; 
 Goff V. G't North. R'way Co. 3 El. & 
 El. 672 ; Edwards v. Midland R'way 
 Co. L. R. 6 Q. B. D. 287 ; Henderson 
 V. Midland R'way Co. 20 Week. Rep. 
 23. The case of Stevens v. Midland 
 R'way Co. (10 Ex. 352), not followed. 
 The corporation is jointly and sever- 
 ally liable with its servants and agents 
 for the acts of such servants and 
 agents within their authority or subse- 
 quently ratified. (Gulf, C. & S. F. 
 R'way Co. v. James. 10 So. West. 
 Rep. 744 ; Turner v. Phoenix Ins. Co. 
 55 Mich. 236 ; Hussey v. Norfolk So. 
 R'way Co. 98 No. Car 34.) It cannot 
 be inferred that an acting manager of 
 a corporation has, by reason of his po- 
 sition, authority to direct a prosecu- 
 tion. (B'k of New South Wales v. 
 Owston, 4 App. Cas. 270.) Directors 
 instructed their solicitor to take steps 
 against their manager for the recovery 
 of their books. He prosecuted the 
 
 47 
 
 manager for stealing them. Held, 
 that as the directors had not protested 
 against nor repudiated the criminal 
 proceedings, they were liable. (Len- 
 nox V. Langdon, 3 Austral. Jurist 
 Rep. 25 ; see Thurling v. No. Cornish 
 Co. Id.; 3 Vict. Law Rep. L. 236.) 
 Individual members of a voluntary 
 association, the object of which is to 
 bring thieves to justice, are not liable 
 to a person whose prosecution was 
 caused by the association, although 
 they voted for it and contributed 
 money, unless in doing so they acted 
 with malice and without probable 
 cause. (Johnson v. Miller, 63 Iowa, 
 
 529) 
 
 * A count alleging that defendant 
 caused plaintiff to be arrested and im- 
 prisoned without reasonable or prob- 
 able cause, on a false and malicious 
 charge of felony, is a count for an 
 assault and false imprisonment, and 
 not for a malicious prosecution. 
 (Brandt v. Craddock, 26 L. J. Ex. 31 5.) 
 
 5 Goslin V. Wilcock, 2 Wils. 302. 
 
 » Blizard v. Kelly, 2 B. & C. 283; 
 Morris V. Scott, 21 Wend. 281; 
 Thomas v. Hunter, 44 Ind. 477. 
 
738 MALICIOUS PROSECUTION, [CH. XVIII. 
 
 ant charged plaintiff with felony is supported by evidence 
 that defendant stated to the magistrate that he had been 
 robbed of certain articles, and suspected and -believed that 
 plaintiff had stolen them.^ But where A,, the servant of 
 B., stated before a magistrate that plaintiff came into the 
 yard of defendant (B.) and took from a stable there two 
 geldings, the property of B., and rode them away, after 
 being told he must not do so ; held, this did not support a 
 count that '' the information charged plaintiff with having 
 feloniously stolen and ridden away with two geldings." " 
 
 The complaint must also allege the termination of the 
 prosecution ; ^ if the plaintiff was acquitted, it should be so 
 alleged.* It might be insufficient to allege that the plaint- 
 iff was released and discharged from imprisonment.^ The 
 complaint should also allege that defendant acted without 
 reasonable and probable cause, and maliciously ; an allega- 
 tion that the charge was false and malicious will not dis- 
 pense with the allegation of want of probable cause.^ The 
 omission of an allegation of the want of probable cause is 
 cured by verdict.'^ 
 
 * Davis V. Noake, 6 M. & S. 29. ing. (Thomason v. Demotte, 9 Abb. 
 
 1 Milton V. Elmore, 4 Car. & P. Pr. Rep. 529.) 
 456. * Acquitted means acquitted by a 
 
 » Vi^hitworth v. Hall, 2 B. & Adol. jury. (Morgan v Hughes, 2 T. R. 
 
 695; MellorT'. Baddeley, 2 Cro. & M. 231 ; Hunter v. French, Willes, 517; 
 
 67 s; Barber v. Lissiter, 29 Law Jour. and see Woodford v. Ashley, 11 East, 
 
 Rep. C. P. 161 ; Carman v. Truman, 508; Stone v. Hutchinson, 4 Hawaiin 
 
 I Bro. Pari. Cas. loi ; Fisher 7>. Bris- Rep. 127.) 
 
 tow, I Doug. 215 ; Thomason v. De- " Morgan v. Hughes, 2 T. R. 225. 
 
 motte, 9 Abb. Pr. Rep. 529 ; Sutton v. Alleging that grand jury did not find 
 
 Aiken, 51 Mich. 463 ; Parton v. Hill, a bill is sufficient. {Id.) Kvcj dis- 
 
 10 Law Times, 414; Foster v. Orr, 21 missal before trial is sufficient. (Mar- 
 
 Pac. Rep. 440 (Oregon); but see Red- bourgt/. Smith, m Kan. 554.) 
 way V. McAndrew, Law Rep. 9 Q. B. » Given v. Webb, 7 Robertson, 65 ; 
 
 74. Showing that plaintiff gave bail Scotten v. Longfellow, 40 Ind. 23; 
 
 to answer the complaint, and that the Turner v. Turner, i Pickle (85 Tenn.), 
 
 bail were afterwards discharged, does 387. The complaint need not allege 
 
 not show the prosecution was termi- that the accusation was false or was 
 
 nated. (Bacon v. Townsend, 6 Barb. falsely made. (Avery v. Blair, 21 
 
 426.) The determination of the Week. Dig. 178; rev'd on another 
 
 prosecuting officer never to bring the point, 105 N. Y. 669 ) 
 indictment to trial, for the reason that ' Weinberger v. Shelly, 6 Watts & 
 
 he deems the charge unfounded, is not S. 336; contra, Maddox v. McGinnis, 
 
 a sufficient termination of the proceed- 7 T. B. Monr. 371 ; Bishop v. Martin, 
 
 14 Up. Can. Q. B. Rep. 416. 
 
§§ 434> 435-] MALICIOUS prosecution. 739 
 
 An averment that plaintiff incurred large expense in 
 obtaining release from imprisonment is a sufficient allega- 
 tion of special damage to sustain proof of the amount 
 incurred for attorney's fees.^ 
 
 A plaintiff may unite in one complaint causes of action 
 for malicious prosecution and slander or libel,'' or malicious 
 prosecution and false imprisonment.' 
 
 § 434. In an action for malicious prosecution, the plea 
 of not guilty put in issue the probable cause, and therefore, 
 pleas of not guilty and want of probable cause could not 
 be pleaded together.* A plea in justification on the ground 
 that the plaintiff was guilty of the offense imputed, must 
 allege that at the time the defendant made the charge, he 
 had been informed of the facts upon which the charge was 
 made.® 
 
 § 435. The measure of damages is the expense of the 
 defense, the value of the time, or profit or property lost by 
 plaintiff, and a reasonable compensation for injury to repu- 
 tation.* The jury may properly consider the degree of 
 malignity displayed by the prosecutor,^ and any acts of 
 
 ' Swart V. Kimball, 43 Mich. 443. v. Deckard, 45 Ind. 572.) Not guilty 
 
 An allegation that plaintiff's wife be- did not put in issue the determination 
 
 came sick and helpless in consequence of the prosecution. (Haddrick v. 
 
 of the prosecution is too remote. Heslop, 12 Q. B. 267; Watkins v. 
 
 (Hampton v. John, 58 Iowa, 317.) Lee, 5 M. & W. 270; Drummond v. 
 
 « Watts V. Hilton, 10 Sup. Ct. Pigou, 2 Bing. N. C. 114; Atkinson, 
 
 Rep. (3 Hun), 606; Watson v. Haz- v. Raleigh, 3 Q. B. 79; Wren v. Hes- 
 
 zard, 3 Code Rep. 218; Martini/. lop, 12 Q. B. 267.) 
 
 Mattison, 8 Abb. Pr. Rep. 3; Brewer » Delegal v. Highley, 3 Bmg. N. 
 
 V. Temple, 15 How. Pr. Rep. 286; C. 950; and see what is said m 
 
 Barr 2/. Shaw, 10 Hun, 580. Wanser v. Wyckoff, 9 Hun, 179; 
 
 » Brown v. Foster, i Hurl. & N. Busst v. Gibbons, 30 Law Jour. Rep. 
 
 736: 3 Jur. N. S. 245; Henderson w. Ex. 75. „ ^ ^ „ 
 
 Jackson, 2 Sweeny, 324; Barr v. « Blunk 7/. Atchison, 38 Fed. Rep. 
 
 Shaw, 10 Hun, 580. ^ 31 1; Wagner e/. Renk, 65 Wis. 364; 
 
 * Sheehee v. Resler, i Cr. C. C. Walker v. Pitman, io8 Ind. 341 ; 
 
 42- Cotton V Brown, 4 Nev. & M. Moffat z/. Fisher, 47 Iowa, 473. Dam- 
 
 831; Hounsfield z/. Drury, 11 Ad. & ages under the Code in Georgia. 
 
 Ell 98 In Indiana, where defendant (Coleman v. Allen, 5 So. East. Kep. 
 
 pleaded a general denial and a special 205 [Ga.].) 
 
 answer of probable cause, a demurrer ' Murphy v. Hobbs, 8 Colo. 17. 
 to the latter was sustained. (Trogden 
 
740 
 
 MALICIOUS PROSECUTION. [CH, XVIII. 
 
 violence or insult to which plaintiff has been subjected.* 
 Punitive damages may be given where the defendant has 
 acted maliciously,^ and damages should have some relation 
 to defendant's financial ability.* 
 
 * Hinsworth v. Fowkes, 4 B. & 
 Ad. 449. As his treatment while in 
 jail, (Zebley v. Storey, 117 Pa. St. 
 Rep. 478.) 
 
 * Spear v. Hiles, t^ Wis. 350. 
 
 » Id.; and see Wilcox v. Moon, 
 17 Atl. Rep. 742 (Vt); Peck v. Small, 
 35 Minn. 465 ; Coleman v. Allen, 5 
 
 So. East. Rep. 205 (Ga.); Stone v. 
 Hutchinson, 4 Hawaiin Rep. 117. 
 Where no actual damage is suffered 
 exemplary damages should not be 
 given. (Schippel v. Norton, 38 Kan- 
 sas, 567 ; and as to damages see note 
 to this case in 16 Fac. Rep. 804.) 
 
APPENDIX, 
 
APPENDIX. 
 
 King's Bench, A. D. 1821. 
 SWADLING V. TAEPLBY.i 
 
 Where a servant brings an action for an alleged false character given of him 
 by his late master, the latter is in general privileged, and, to sustain the 
 action, malice must be proved, but this may be inferred by the jury from 
 the language used and the circumstances under which the defamatory 
 character is given. 
 
 This was an action for a libel : the defendant pleaded, 1. The 
 general issue, not guilty; and 2. A justification of the truth of 
 the alleged libel, on which issue was joined. At the trial before 
 Gabbow, B., at the last assizes for the county of Oxford, a ver- 
 dict was found for the plaintiff, damages £50. 
 
 The case was this : — The plaintiff had been a nursery maid 
 for four years in the family of the defendant, a magistrate and 
 clergyman, residing in the county of Northampton ; three 
 months after she quitted the service, a lady, to whom she had 
 hired herself, wrote to the defendant's wife for the plaintiff's 
 character, vrishing to know whether she had been found honest, 
 sober, and steady, and equal to undertake plain cooking ? To 
 this letter the defendant sent an answer to the following effect : 
 
 Madam, — 
 
 Mrs. Tarpley being unwell, she has requested me to answer 
 your letter. Svsan Swadling lived as nursery maid in my family 
 for more than four years ; and I think it my duty to inform you 
 that she is neither honest, sober, nor steady, and that she was 
 turned away for the most gross and improper misconduct. She 
 is a most wicked and profligate woman. It is impossible for 
 me to describe the gross insolence and ingratitude shown by 
 her to Mrs. Tarpley and myself. We have undoubted proof of 
 
 1 See ante, § 345, note 3, p. 428; and § 399, note 5, p. 658. 
 
744 APPENDIX. 
 
 her going to the man-servant's bed many nights for months be- 
 fore she left us. One servant who lived with us for many yeara 
 has left us on her account. I am glad of an opportunity of ex- 
 posing this woman's character. A more vile wretch does not 
 exist ; I know her to be a liar, a great thief, and insolent beyond 
 bearing. She has been guilty of a criminal intrigue with the 
 
 man-servant, David S . I wish you to read this letter to 
 
 her should you see her, and I warn you upon no account to take 
 her into your service. I am, &c. 
 
 On the part of the plaintiff, the man-servant alluded to in 
 ' the letter, and mentioned as the person with whom she had had 
 an improper intercourse, was examined, and he positively denied 
 that any such intercourse had ever taken place between them ; 
 and he further said that she was a modest, discreet, and well- 
 behaved young woman. He admitted that she had been dis- 
 missed for insolence ; but, on his cross-examination, nothing 
 came out to shake his testimony. On the part of the defendant, 
 evidence was offered in support of the justification pleaded. It 
 was proved by other servants in the family that during the six 
 months previous to her being turned away, after the family had 
 gone to bed, she had several times left her own bed-room and 
 gone to that of the man-servant; that she was watched, and 
 next morning seen to come out of his room ; that on one occa- 
 sion one of the servants being disturbed by the crying of a 
 child, she went to the plaintiff 's room and found her absent 
 from her bed ; and the child continuing to cry, she was seen to 
 return to her own room from that of the man-servant's, in her 
 night-gown, and appeared to the witness to be extremely con- 
 fused. Upon this part of the case expressions of strong affec- 
 tion for the man were proved to have been uttered by her 
 repeatedly, and going, to a certain extent, to an admission of a 
 criminal amour subsisting between them. In addition to this, 
 evidence was offered affecting her character for honesty. It was 
 proved that she had stolen coffee and sugar, the property of her 
 master ; and one witness deposed to her having stolen a pair of 
 shoes. Other evidence was offered tending to show that she 
 was a person of depraved habits. On the part of the defendant 
 it was contended : 1. That the letter in question was privileged ; 
 2. That there should have been evidence of express malice to 
 
APPENDIX. 
 
 745 
 
 render it actionable ; and 3. That the weight of evidence was in 
 favor of the defendant, and substantially justified him in writing 
 such a letter. The learned judge summed up the whole of the 
 case for the jury, and left it for them to say whether there was 
 anything upon the face of the Ubel to warrant the conclusion 
 that the defendant was influenced by malicious motives. If they 
 were satisfied that the defendant was actuated by malicious mo- 
 tives, the plaintiff was entitled to a verdict, notwithstanding the 
 privilege which the law threw around a master in giving the 
 character of a servant ; and notwithstanding there were some 
 circumstances in the case which, to a certain extent, would 
 justify a strong expression of opinion concerning the plaintiff's 
 character and conduct. The jury found their verdict for the 
 plaintiff, damages £50. 
 
 G. Cross now moved for a rule to show cause why the ver- 
 dict should not be set aside and a new trial granted. He made 
 two points : 1. That to sustain this action, there must be evi- 
 dence of express malice, for that such a letter is privileged 
 when written honestly, though with heat and intemperance ; and 
 2d. That the verdict was against the weight of evidence. 
 
 Abbott, C. J. — I am of opinion that in this case there ought 
 to be no rule granted. I should be sorry that any decision in 
 which I took part should have the effect of breaking down or 
 lessening that which I consider to be a very wholesome rule of 
 law, namely, that a character written by a former master to a 
 person instituting an inquiry, with a view to take a dismissed 
 servant into his service, is to be considered as a privileged com- 
 munication, unless it can be shown in some way that the state- 
 ment of such character proceeds from a vindictive motive. The 
 master in such cases is privileged in what he does ; and, in my 
 mind, it is of the utmost importance to society that he should 
 be so privileged. The error is too often committed on the 
 other side ; persons are more apt to conceal the faults of serv- 
 ants, in order that they may not be deprived of another service, 
 than to enlarge and expatiate upon their misconduct in a man- 
 ner that might be justifiable. If, upon reading this letter, a 
 judge could take upon himself to say that it bore nothing upon 
 the face of it manifesting a vindictive motive, I should think he 
 would have been bound to tell the jury that it was a privileged 
 
74^ APPENDIX. 
 
 communication, and upon the general issue they ought to have 
 found a verdict for the defendant. But I cannot say, upon read- 
 ing this letter, that I do not see upon the face of it something 
 leading me to suppose there was an improper motive in the 
 mind of the defendant ; and if the contents of the letter were 
 such as to make it a point in any reasonable degree doubtful, 
 then that doubt must be submitted as a question of fact to the 
 jury ; it must be for them to say, upon the view of the whole 
 case, whether this letter did proceed from vindictive motives, 
 or was founded in that correct and proper motive which the law 
 permits. I think this letter does contain such expressions as 
 were fit for the consideration of the jury upon the question of 
 malice, and the question was so presented to the jury. It was 
 left to them to say, upon the whole of the case, whether or no 
 they thought the defendant was actuated by malicious motives 
 at the time. They have, upon the view of the whole of the evi- 
 dence, found that he was influenced by such motives ; and the 
 credit due to the witnesses was a matter peculiarly for their 
 consideration, and I cannot say that they have come to a wrong 
 conclusion. We are not to take it for granted that the question 
 was not fitly left to them as a question for their consideration. 
 I am of opinion, therefore, that we ought not to disturb this 
 verdict. 
 
 Bayley, J. — It appears to me that this question was most 
 properly left to the jury; The point upon the general issue 
 was, whether, at the time the letter was written, there was 
 malice in the mind of the defendant in writing it. He is fully 
 warranted in giving an answer to the questions which are put 
 to him ; and, in a temperate manner, stating everything which 
 may have a fair tendency to enable the person to whom the 
 letter is written to exercise a discreet judgment upon the sub- 
 ject. But looking at this letter, it appears to me there is a de- 
 gree of heat and warmth and particularity in it, which was not 
 called for by the application made for the character of the 
 plaintiff ; and that being left for the consideration of the jury, 
 it appears to me to have been the proper point for their deter- 
 mination on the general issue. Upon the other question, 
 whether the facts were true or not, that would depend upon the 
 credit given by the jury to the witnesses. There was conflict- 
 
APPENDIX. 
 
 747 
 
 ing evidence on the one side and the other ; there was the evi- 
 dence of the man-servant on the one hand ; and they had the 
 opportunity of hearing his testimony, and seeing the manner 
 in which it was delivered. There were several witnesses cer- 
 tainly on the part of the defendant, and after hearing their 
 testimony, the jury had an opportunity of seeing on which side 
 the balance of truth lay. If it had been suggested to us that 
 the learned judge had been dissatisfied with the conclusion to 
 which the jury came, it would have been right for us to have 
 made some application to him upon the subject ; but I do not 
 find that anything of that kind is suggested. Not knowing that 
 there is any dissatisfaction in the mind of the learned judge, we 
 cannot act upon the notion that there is any such dissatisfac- 
 tion existing. 
 
 HoLBOTD, J. — In cases of this kind, the proof certainly lies 
 upon the party bringing the action, where the alleged slander, 
 whether by words or in a letter, proceeds in consequence of an 
 application to a master for the character of a dismissed 
 servant to show that there was malice in the mind of the de- 
 fendant, either by direct evidence, or by some other circum- 
 stances from which malice can be collected. In the absence of 
 such proof, the defendant would be either entitled to a verdict 
 or the plaintiff must be noursuited. If that were the case in 
 the present action, the defendant would be entitled to succeed, 
 and the court would grant a new trial. But the letter in this 
 case contained such matter as was sufficient to be left to the 
 jury to say whether the defendant was influenced by malicious 
 motives ; and they having drawn a conclusion which appears 
 to me to have been perfectly right, I think we ought not to 
 disturb their verdict. 
 
 Best, J. — I am of the same opinion. This motion is made 
 on two grounds : first, that this letter is privileged ; and, second, 
 that the verdict is against the weight of the evidence in the 
 cause. There is no doubt that if a man gives a character of a 
 servant, it is prima facie privileged, and the party injured must 
 go on to show that the character was given from motives of 
 malice. The learned judge at the trial very fairly left it to the 
 jury to consider whether this letter was written with a malicious 
 
748 APPENDIX. 
 
 intention. He also left the whole of the evidence for their 
 consideration. The letter itself imported sufficient matter to 
 raise the question of malice or no malice ; in this respect the 
 case of Rogers v. Clifton is in point. No doubt the defendant, 
 as a clergyman and magistrate, might be yery justly incensed at 
 the proceedings of the plaintiff in the bosom of his own family ; 
 but if he exceeded the bounds of discretion in the expression of 
 his opinion, he must be answerable for the consequences. 
 
 Bide refused. 
 
 King's Bench, A. D. 1822. 
 KING V. TOWNSEND.i 
 
 A voluntary affidavit made before a justice of the peace, is not a judicial pro- 
 ceeding, and therefore, if such an affidavit contains libelous matter, it is 
 actionable. 
 
 To describe a man as an informer in such a publication is libelous. 
 
 Where special damage was laid, in that A. B. had wholly ceased to deal with 
 the plaintiff, by reason of the libel complained of, and it was proved only 
 that she had not dealt with him to so great an extent as before : Heldf 
 that this was sufficient evidence of special damage to sustain the declara- 
 tion. 
 
 Action for a libel contained in an affidavit voluntarily made 
 by the defendant, before a magistrate, imputing to the plaintiff 
 that he had given information to the commissioners of customs, 
 that one Decima Barber, a milliner, was possessed of certain 
 uncustomed goods, which were in fact seized, whereby the 
 plaintiff, who carried on the business of a silk mercer, sustained 
 special damage, by reason that the said Decima Barber wJioUy 
 ceased to deal with the said plaintiff in consequence of such 
 slander. Plea, not guilty, and issue joined. 
 
 After proof was given of the publication of the libel, Mrs. 
 Decima Barber was called to prove the special damage. She 
 deposed that previous to the publication of this libel she had 
 dealt almost entirely with the plaintiff, for such articles of silk 
 as she required in her business ; but that since the publication, 
 
 ' See Barber v. St. Louis Dispatch Co. 3 Cent. L. J. 360 ; and ante, note 1, p. 335 ; 
 note 1, p. 583. 
 
APPENDIX. 
 
 749 
 
 believing that the plaintiff had been the person who caused in- 
 formation to be given against her to the customs, she had 
 ceased to deal with him to so large an extent as formerly. 
 She still dealt with him, but not so largely as before the pub- 
 lication. 
 
 Abbott, Ch. J. — I am of opinion that this action is main- 
 tainable. First, I think this affidavit is not a judicial proceed- 
 ing, for it is the mere voluntary affidavit of the defendant ; and 
 if such an affidavit were to be considered as a judicial proceed- 
 ing, and therefore privileged, it would afford a very easy recipe 
 for a libeler to traduce the characters of the most innocent 
 persons. Second, I think that to designate a man as an informer, 
 in a publication like this, if done maliciously (which is for the 
 jury), it is libelous in a very offensive degree, and may be the 
 subject of an action. And, Third, I have no doubt that proof of 
 Mrs. Decima Barber having ceased to deal with the plaintiff to 
 any extent, in consequence of the publication of this libel, will be 
 sufficient proof of special damage to sustain this declaration ; 
 and it is for the jury to say what damages they will give under 
 the circumstances of the case. 
 
 The jury found for the plaintiff, damages £20. 
 
 Chitty, in Hilary term, moved to arrest the judgment on the 
 same ground, but the court refused the rule. 
 
 Sittings in Middlesex, A. D. 1822. 
 FOOTE V. EOWLBY.i 
 
 Declaration for words imputing that the plaiatifE had murdered his infant 
 daughter, means his legitimate daughter, and it appearing that the daughter 
 of and concerning whom the words were spoken was an illegitimate child of 
 the plaintiff: Held, that the declaration was ill. 
 
 Bed qu. As the words were spoken by an apothecary who had attended the 
 child in the small-pox, were they actionable, it not appearing that they were 
 meant in a criminal sense ? 
 
 This was an action for defamatory words, imputing to the 
 plaintiff that he had murdered his infant daughter. Plea, not 
 
 » See ante, note 6, p. 617. 
 
750 APPENDIX. 
 
 guilty, and issue thereon. The words set out were, " You have 
 murdered your little girl." " This child is murdered." " He 
 has murdered his daughter." 
 
 The plaintiff had lost his child in the small-pox ; the defend- 
 ant, a surgeon and apothecary, had attended the child during 
 her illness, and it was alleged that the defendant had said of 
 the plaintiff, of and concerning the child, that he had murdered 
 his daughter, &c. It appeared in evidence that the daughter was 
 not born in wedlock, although the plaintiff was a married man. 
 The declaration described the child generally as being " the 
 infant daughter of the said plwintiff." 
 
 Scarlett, for the defendant, objected that the plaintiff must 
 be nonsuited. The child was stated in the declaration to be 
 the infant daughter of the plaintiff ; now the presumption of law 
 was that the child was born in wedlock ; but the fact was other- 
 wise, and that fact should have been stated in the declaration. 
 Supposing the words themselves were actionable, the illegiti- 
 macy of the daughter would have been no objection ; but the 
 illegitimacy ought to have been averred. 
 
 Gurney and Long, contra, endeavored to answer the objection ; 
 sed per : 
 
 Abbott, Ch. J. — This is a fatal objection. The fact of the 
 illegitimacy ought to have been stated. In the declaration the 
 child is described as the plaintiff's infant daughter ; now that 
 imports his legitimate daughter, but the fact is not so. The 
 words might have been set out with a colloquium of and concern- 
 ing " a certain illegitimate child of the said plaintiff." There 
 must therefore be a nonsuit. But I do not intimate that the 
 plaintiff may bring another action and avoid this objection ; 
 for then the question would be, in what sense these words were 
 used ? Unless they were used by the defendant in a criminal 
 sense, they would not be actionable. 
 
 Nonsuited. 
 
APPENDIX. ^51 
 
 King's Bench, A. D. 1822. 
 MAKTINEEE v. MACKAY ET UX.^ 
 
 Saying of the plaintiff and one P. S., " I dare say they have got some of the 
 silver spoons in their pockets," is not actionable without an innuendo show- 
 ing that the words import a felonious stealing. 
 
 Where some counts in a declaration are good and some bad in law, and 
 general damages are given, the court will arrest the judgment in toto. 
 Sed guare, whether a venire de novo may not be awarded on payment of 
 costs. 
 
 This was an action for words of slander, imputing to the 
 plaintiff that she had been guilty of theft. The declaration 
 contained a great many counts. At the trial before Holboyd, 
 J., at the Westminster sittings after last Trinity term, A. D. 
 1822, a verdict was found for the plaintiff on the whole declara- 
 tion, with £50 damages. In Michaelmas term a rule nisi was 
 obtained for arresting the judgment, on the ground that the 
 eleventh count did not allege any actionable words, and the 
 damages found by the jury being on the whole declaration, the 
 judgment could not be entered up. 
 
 Abbott, Ch. J. — I am clearly of opinion that the eleventh 
 count of this declaration is bad, and that the judgment must be 
 arrested. It cannot be said, that because there is a general al- 
 legation in the first count, " tJuxt the defendant maliciously intend- 
 ing to have it bdieved that the plaintiff was a thief," that will make 
 words afterwards introduced into other counts actionable, which 
 are not actionable of themselves ; or can be prayed in aid of 
 other counts which are clearly defective. The words them- 
 selves must reasonably import a charge concerning some matter 
 or thing which will subject the party accused to punishment. 
 I cannot say that these words convey an allegation that the 
 spoons had been stolen by the plaintiff. The allegation is that 
 the defendant, speaking of certain spoons belonging to her, 
 said, " I dare say the plaintiff has some of them in her pocket." 
 Now, she might have them in her pocket consistently with per- 
 fect innocence ; and it is impossible to say that these words of 
 
 » See ante, note 3, p. 135. 
 
752 APPENDIX. 
 
 themselves are actionable. Then as to the venire de novo, I am 
 not clear that we can grant such an application as a matter 
 of course. If it is granted, it must be on payment of costs, 
 and the plaintiff will consider whether she will take a venire 
 subject to such conditions, and liable to the consequences which 
 may possibly follow upon a writ of error. 
 
 Bayley, J. — I am of opinion that this judgment must be 
 arrested. My difficulty in awarding a venire de novo is, that it 
 may be error on the record, and that would be subjecting the 
 plaintiff to a great deal of unnecessary expense. Besides, I do 
 not see how a new jury are to be restrained in giving damages 
 upon the other counts beyond what the former jury have given, 
 and that would be exposing the defendant to consequences 
 which the justice of the case may not require. 
 
 The rest of the court concurred in the same opinion. 
 
 Rule absolute for arresting the judgment. 
 
INDEX. 
 
 48 
 
I N D E-X . 
 
 [The reference is to the number of the page.] 
 
 ABANDONING a cause of action or defense on the trial, 501. 
 ABATEMENT of action, in what cases, 530, 531, 532. 
 
 by death. See Death, Bamkruptcy. 
 
 of appeal, in what cases, 531. 
 ABOMINATION, charge of committing, 196 n. 
 
 ABORTION, charge of taking medicines to produce, actionable, 191, 191 n., 
 192. 
 
 justification of charge of procuring, 600. 
 See Miscarriage. 
 ABROAD. See Foreign State. 
 ABSENCE of knowledge as an excuse, 103 n. 
 
 See Involuntary. 
 ABSOLUTE RIGHT, no such thing as, 32. 
 ACCIDENT, liability for, 53 n. 
 ACCORD and satisfaction, defense of, 442. 
 
 defense of, must be pleaded,[442, 665. 
 by judgment, 442. 
 ACCOUNT BOOKS, charge of falsifying, when actionable, 234. 
 ACCUSATION, what amounts to an, 154. 
 ACQUITAL, does not prevent a defense of truth, 592. 
 ACT, word is, 2 n. 
 
 may give character to words, 260 n. 
 
 public, comment on, 467. 
 
 See Acts, Public Act. 
 ACTION, how commenced, within what time, and in what court, 480. 
 
 right to institute, 331 »., 529, 70071. 
 
 list of actions, for wrongful resort to legal proceedings, 331 «., 700 n. 
 
 the ordinary remedy for a wrong, 35. 
 
 notice of, when required, 480 n. 
 
 for words, meaning of, 14 n. 
 
 lies for words written, which not actionable if only spoken, 12 »., 13 n. 
 
 for libel, a dangerous experiment, 132 n. 
 
 on the case, origin of, 36. 
 
 for words, gist of, 37-50- 
 
 compared with action for nuisance, l n. 
 
 right of, not assignable, 531. 
 
756 Reference] INDEX. {is to page. 
 
 XCTIO^.— continued. 
 
 when it survives, 530, 531. 
 
 among the most ancient in the law, 38 n. 
 
 number of formerly, 38 n. 
 
 removal of, 481, 481 n. 
 
 venue, 482. 
 
 for cause arising out of the State, 91 n. 
 
 consolidation of, 482, 394, 395, 533 n. 
 
 no counter-claim allowed in, 608. 
 
 for a joint publication, loi, 102. 
 
 what requisite to give a right of, 113. 
 
 who may maintain, 114 re., 115 n., 529. 
 
 proceedings in, are privileged, 336. 
 
 trial of, 497, 497 n. 
 
 court may refuse to try, 497. 
 
 by or against corporation, 469. 
 
 time of limitation, 480 re. 
 
 discovery in aid of, 485. 
 
 for dishonoring check, 2 n. 
 
 for slander, a sordid action, "J n., 132 n. 
 
 for slander, formerly discouraged, 131 re. 
 
 maliciously brought, remedy for, 331 n., 700 n. 
 
 when it may be commenced, where libel is in a judicial proceeding 
 
 337- 
 pendency of another, no mitigation, 443 re. 
 See Parties ; Slander. 
 ACTIONABLE LANGUAGE, concerning a class of persons, who may sue, 
 
 115 re. 
 what is, 118 re., 157, 159. 
 
 when burden on defendant to show it is not, 122 re. 
 impossible to be true, 124 re, 125 re,, 126 n., 153 re., 171 re. 
 concerning a person, what is, 1 59. 
 published orally, is such as charges an indictable offense involving 
 
 moral turpitude, 162, 164. 
 may be actionable for charging a statutable offense, although after the 
 
 publication the statute creating the offense is repealed, 169. 
 may be innocent on its face, 1 10 re. 
 peril of punishmerit, is it the gist of action for, 168. 
 for offense in foreign State, 169. 
 charging offense, afterwards pardoned, 168 n. 
 charging offense barred by limitation, 168 re. 
 must charge an offense, punishable in a temporal court of criminal 
 
 jurisdiction, 166. 
 charging a purpose or intent to do an unlawful act, 172. 
 charging a consent to a crime, 183 re. 
 charging, " he sought " to committ a crime, 172 n. 
 charging, being guilty of conduct unfit for publication, 174 re. 
 
Refennce\ INDEX. \is to page. 757 
 
 ACTIONABLE LANGUAGE.— <:o«^/««^rf. 
 
 imputing evil inclinations or principles, 173. 
 
 denoting opinion or suspicion, 173, 
 
 by interrogation, 175. 
 
 by adjectives, 176. 
 
 apparently innocent words may be shown to be, no n. 
 
 per se and not per se. distinction between, 158. 
 
 statutory provisions as to, 160. 
 
 of the mind and of the body, distinction between, 201 n. 
 
 in the past tense, 168, 201. 
 
 charging arson, 177. See Arson. 
 
 forgery, 178. See Forgery. 
 
 murder, 179. See Murder. 
 
 being a thief, 180. See Thief. 
 
 larceny, 181. See Larceny. 
 
 perjury, 184. See Perjury. 
 
 a woman with want of chastity, 189. See FEMALE. 
 published orally, instances of, 192, 196. 
 charging disease, 200, 208. 
 published in writing, 203, 207, 216. 
 concerning one in any trade or office, 221, 232, 242. 
 concerning one in trade, must be in a lawful trade, 224, 226. 
 concerning partners, 228. 
 charging disinherison, 230. 
 of a candidate for office, 231. 
 
 of a minister of the Gospel, 240 n., 253, 254 n. See Minister. 
 of one in office, 255. 
 
 by reason of special damage, 260. See SPECIAL DAMAGE, 
 belief in charge, 268, 676. 
 repetition of, 273. See REPETITION, 
 concerning things, 283. See Slander of Title. 
 agreement not to publish, 30 re., 480 n. 
 
 when the court, and when the jury, determine what is, 502, 508. 
 See Words. 
 ACTOR, language concerning an, 237 n., 435, 465 n. 
 hissing, 268 re., 465 n. 
 
 See Actress; Criticism. 
 ACTRESS, charge of intermarriage with, is actionable, 210. 
 language concerning, 273. 
 See Actor. 
 ACTS, reputation may be affected by, 2 n. 
 differ from supposed acts, 465 n. 
 must be lawful or unlawful, 29. 
 when malicious, 61. 
 patently and latently wrongful, 51. 
 must be voluntary or involuntary, 61. 
 words are, 2 n. 
 
 See Involuntary; Voluntary; Actual Malice. 
 
758 Reference^ INDEX. [is to page. 
 
 ADJECTIVE WORDS, may confer a right of action, 176. 
 ADMINISTRATION of justice, a subject of criticism. 461. 
 ADMINISTRATOR, words concerning, 258. 
 
 See Executor. 
 ADMISSION, by defendant, effect of, 639, 639 n. 
 
 in one defense, not applicable to the whole answer, 590. 
 
 in answer, cannot be retracted on trial, 587 n. 
 
 by plaintiff, 665 n., 667. 
 
 by defendant, of making the publication, 421 »., 609 »., 610 n., 627? 
 
 637»-, 639- 
 
 by not answering, 495, 587. 
 
 in pleading, 588 n., 626 n. 
 
 of facts showing malice, 657, 657 n. 
 ADULTERATION of goods, charge of, 200, 206, 241, 246. 
 ADULTERER, charge of being, not actionable, 196, 240 n. 
 ADULTERY, what words import, 138, 138 ra., 195 «., 196 n. 
 
 charge of, with injury to business, 281 n. 
 
 justifying charge of, 314, 314 n. 
 
 charge of, actionable in certain States, 161, 195, 196 n. 
 
 charge of, not actionable, 171, 191, 240. 
 See Unchastity. 
 ADVERTISEMENT in newspaper, when privileged, 391, 419. 
 
 liability for, 95 n., 448. 
 
 calling meeting of creditors, 418. 
 
 of bond for sale, 211. 
 
 of debt for sale, 211 n. 
 
 for plaintiff to pay debt, 213 ra. 
 
 for date of plaintiff's marriage, 214 ra. 
 
 not to pay moneys to certain persons, 388 n. 
 negotiate notes, 412 n. 
 ADVICE, when privileged, 394. 
 
 of counsel, as a defense in malicious prosecution, 718. 
 slander of title, 291. 
 ADVOCATE, privilege of, 391. See COUNSEL. 
 
 AFFIDAVIT, made in the course of a legal proceeding, cannot give a right of 
 action for Ubel, 334 n., 335 n., 336 n., 337 n. 
 
 See Judicial Proceedings; Voluntary Affidavit. 
 AFFIDAVIT MEN, charge of being, 360 n. 
 AFFIRM ATION,/fl/j«, charge of making is actionable, 161. 
 AFOUL of, 152. 
 AGENCY, none in crime, 54 n. 
 
 See Commercial Agency. 
 AGENT, cannot do a wrong as such, 54 n. 
 liability of principal for acts of, 103. 
 communication by principal to, 413. 
 publication to plaintiffs, 96 n. 
 advertising that one has ceased to be, 388 n. 
 
Reference] INDEX. \is to page. ^cg 
 
 AGENT. — continued. 
 
 of stage company, words concerning, 247. 
 of steamboat, words concerning, 247. 
 See Principal and Agent. 
 AGGRAVATING CIRCUMSTANCE, must be justified, 317. 
 AGGRAVATION OF DAMAGES, by mode of conducting cause, 498, 499, 
 659. 
 by justification, 659. 
 by other publications, 656. 
 by delaying to publish contradiction, 449 71. 
 evidence for the purpose of, 645, 649. 
 injury to feelings may be, 271 n. 
 by pleading, 543 n., 659, 659 n. 
 what plaintiff may prove on, 649, 652. 
 by proof of plaintiff 's poverty, 650 n. 
 
 by proof of publications after action commenced, 650 n., 656. 
 by proof of repetition, 650 n., 651 n. 
 by proof that defendant indemnified, 651 n. 
 by proof of express malice, 653. 
 what plaintiff may not prove in, 652. 
 by proof of defendant's wealth, 652. 
 AGREEMENT, not to publish libel, 30 n., 480 n., 486 n. 
 to pay expenses of prosecution privileged, 423 n. 
 courts will enforce, 441 n., 497. 
 See Petition. 
 ALABAMA, to call a woman whore is actionable in, 190 n. 
 
 statute as to retraction in, 681 n. 
 ALDERMAN, words concerning, 257. 
 ALIEN, action by, 529. 
 
 ALLEGATION, /ojzVzw^, what amounts to, 154. 
 divisible, what is, 154. 
 
 See Divisible Allegation. 
 ALLEGORY, defaming by means of, 118 n. 
 ALMANAC, publication concerning publisher of, 461 n. 
 AMBIGUOUS LANGUAGE, how construed, no, 188, 190 «., 524, 641. 
 
 ' innuendo to point meaning of, 586. 
 AMBO DEXTER, meaning of, 120 n. 
 AMENDMENT, to retain verdict, 538. 
 of complaint, 538 n., 576 re. 
 when allowed, 609, 609 n., 623-625. 
 is as of the commencement of action, 623 n. 
 ANAGRAM, defaming by means of, 118 n. 
 ANCIENT LAWS against offenses by language, 37. 
 AND AND FOR, distinction between, 138. 
 ANGLO-SAXON, the term objected to, 41 n. 
 ANNOYANCE is special damage, 263. 
 ANONYMOUS LETTER received in evidence, 405. 
 
760 Reference] INDEX. [is to page: 
 
 ANSWER, corresponds to plea, 586. 
 
 effect of not making, 495, 587. 
 
 what amounts to a general denial, 586 «.., 587 n. 
 
 of justification and mitigation, 586, 591. 
 
 to part of a cause of action, 589, 589 n. 
 
 of privilege, 588, 590. 
 
 admits falsity of charge, 589 n. 
 
 of justification must give color, 589. 
 
 of justification taken most strongly against pleader, 597 n. 
 
 of justification failing in part, 602. 
 
 several defenses in, 589, 591. 
 
 of truth, requisites of, 591, 593. 
 
 that w^ords published by another, 596 n. 
 
 of mitigating circumstances, 603. 
 
 may traverse meaning alleged in inducement, 195. 
 
 admissions in, cannot be retracted on trial, 587 n. 
 
 demurrer to, 596 n., 607. 
 
 answer and demurrer, 606, 606 n. 
 
 to inquiry, when privileged, 444. 
 
 need not be verified, 587 n. 
 
 notice, when substituted for, 603. 
 
 defamatory matter in, is privileged, 336 n. 
 
 inspection to prepare, 488. 
 
 withdrawing on trial, 501, 501 n. 
 
 that action prosecuted by some one else in name of plaintiff, 529 ». 
 
 justifying charge of perjury, 601 n. 
 
 in action for malicious prosecution, 739. 
 
 in action for slander of title, 293 n. 
 
 See Plea ; Mitigating Circumstances ;" Notice. 
 ANTI-RENTER, charge of being concerned in serving writs on, 210. 
 APOLOGY, defense of, 441. 
 
 defense of in Virginia, 591 n. 
 
 defense of in England, 591 n. 
 
 plea of, 442 n., 449 n. 
 
 withdrawal of plea of, 501, 501 n. 
 
 stipulation for, 441 ra., 497. 
 
 refusing to make, 499 n., 659 re. 
 APOTHECARY. See Physician. 
 APPENDIX, 741. 
 APPLES, charge of stealing, 149. 
 APPLE TREES, charge of stealing, 180 re. 
 APPRAISER, words concerning, 245. 
 APPREHENSION of loss, not special damage, 269. 
 ARBITRATION, in actions of slander or libel, 497. 
 
 is a judicial proceeding, 187. 
 ARCHBISHOP, language concerning, 255. 
 See Bishop. 
 
Refnmce\ INDEX. \is to page. 76 X 
 
 ARCHITECT, language concerning, 237 n., 250 n. 
 
 See Experience. 
 ARISTOCRAT, charge of being an, 220. 
 ARKANSAS, what language is actionable in, 161, 185 n. 
 
 statute defining libel in, 20 to. 
 ARRANT ROGUE, charge of being, not actionable, 196. 
 ARREST in action for slander or libel, 481. 
 
 of judgment, for unwarranted innuendo, 138, 568 n. 
 where damages given on a bad count, 522. 
 for declaration not stating a cause of action, 503, 606, 751. 
 ARSON, what words import, 139, 170 n., 177, 177 to., 538 ra. 
 
 charge of, actionable, 177, 177 n. 
 when privileged, 400, 401, 
 
 how alleged in complaint, 567 ra. 
 ASSASSIN, charging that appearance like an, 217. 
 ASSAULT, charge of when actionable, 165 to., 198. 
 ASSESSMENT of damages, where there is no plea or answer, 495. 
 
 after payment into court, 449 n. 
 ASSIGNMENT of cause of action, 531. 
 
 ASSOCIATE WITH, charging that plaintiff not proper to, 217. 
 ASSUMED NAME, charging the use of, 206 to., 211. 
 ASTERISKS, putting them for plaintiffs name, 119 n., 121 »., 245 n. 
 
 as references, 245 n. 
 ATTACHMENT cannot issue in actions for slander or libel, 481. 
 ATTEMPT to commit a crime, charge of, not actionable, 171 «., 198. 
 ATTORNEY, when client not responsible for acts of, 105 to. 
 
 words of, 177 re., 220, 239, 248, 249, 250, 357, 357 to., 462 ». 
 
 who may appear by, 342 ra. 
 
 continues such although not licensed, 235 to. 
 
 not liable for objecting to title, 286 to. 
 
 bill of costs of, is not a judicial proceeding, and defamatory matter in, 
 is not privileged, 335 n. 
 
 liability in acting for client, 54 to., 735 to. 
 
 charge of being a bribing knave, 175 «., 248. 
 
 charge of disreputable practice, 239 n. 
 
 may be disbarred for inserting slanderous matter in pleadings, 335 to. 
 
 abuse of when a contempt, 362 to. 
 
 report concerning, headed " Shameful conduct of an attorney," or 
 " How lawyer Bishop treats his clients," held not privileged, 357. 
 
 right of, to vindicate reputation of his client, 390 to. 
 
 to disclose residence of plaintiff, 483. 
 
 lien of, not a ground for denying a new trial, 524 n. 
 
 language held not to affect him in his professional character, 239. 
 
 See Barrister; City Attorney; Counselor; Lawyer; 
 Struck off the Roll. 
 AUCTIONEER, words concerning, 238 n., 245. 
 
762 Reference] INDEX. \is to page. 
 
 AUTHOR, words concerning, 209 ra., 212, 252 n. 
 
 evidence of being, 631 , 632. See PUBLISHER. 
 
 admission of being, 637, 637 n., 639, 639 n. 
 
 opinion of witness as to who is, 638 n. 
 
 witness knowing who is author, must disclose his knowledge, 639 n. 
 
 of slander or libel, charge of being, 207, 212 re. 
 
 rights and duties of, 452, 453. 
 
 criticism of, 451, 
 
 injuring reputation, by an imperfect copy of his work, 252 n. 
 
 liable as publisher, 94, 95 n. 
 
 effect of publisher disclosing name of, 304, 305. 
 
 effect of publisher refusing to disclose name of, 304, 305, 627 »., 652. 
 
 plaintiff being, of libel on himself, 210 n., 306 n. 
 AVERMENT in pleading, what it is, 1 1 1 n. 
 
 when necessary to point the language to plaintiff, 114 n., 565, 576. 
 See Inducement. 
 AXIOMS, law maxims are not, 71 n. 
 
 BABY FARMING, charge of, must be explained, 120 n. 
 
 See Starving. 
 BAD DISORDER. See Pox. 
 BAD FAITH, what is, 280. 
 BAD GIRL, does not mean prostitute, 575. 
 BAD HOUSE, does not mean bawdy house, 140 »., 575 n. 
 BAD REPUTE, justifying charge that plaintiff is in, 321, 595 n. 
 BAD WOMAN, meaning of, 1 53 n. 
 BAG MAKER, words concerning, 241 n. 
 BAIL. See Arrest. 
 BAILIFF, words concerning, 246. 
 BALL, charge of attending, on day plaintiff had killed a man, 213. 
 
 criticism upon, 461 n. 
 BANK, action for libel by, 473. 
 BANK DIRECTOR, words concerning, 197 «., 246 n. 
 
 charge against, 246 n. 
 
 charge by, 419. 
 BANKER, action against for dishonoring a check, 2 n. 
 BANKERS, words concerning, 229, 243, 244 n. 
 
 communication by, 413. 
 BANK NOTES, charge of stealing, 170 m. 
 BANKRUPT, charge of being, when not actionable, 196, 235 n., 243. 
 
 applied to a bishop, actionable, 254 n. 
 
 applied to one in trade, 177, 235 n. 
 
 commissioner, words concerning, 259. 
 See Insolvency. 
 BANKRUPTCY, report of proceedings in, are privileged, 332 n., 365 n. 
 
 of defendant, does not abate action, 531 n. 
 
 of defendant, plaintiff may discontinue, 528 n. 
 
Reference] INDEX. [is to page. 763 
 
 BANKRUPTCY.— <r(7«//««^rf. 
 
 does not discharge from damages in action for slander or libel, 482 n. 
 right of action for libel does not pass by, 531. 
 charge of committing act of, 287. 
 BANKRUPT KNAVE, not actionable, 177. 
 BANKRUPT ROGUE, when actionable, 177. 
 BANKRUPT SKRUB, when actionable, 177. 
 BANK TELLER, words concerning, 237 n. 
 BANNERS, proof of inscription on, 633 n. 
 BARKING of dogs, i n. 
 BARN, charge of burning, 170 to., 177. 
 BARRATOR, defined, 5 n. 
 
 See Common Barrator; Champertor; Maintainerof 
 Suits. 
 BARRISTER, words of, 251 n., 252. 
 
 can he sustain special damage, 264 n. 
 See Divulging Secrets. 
 BASE, justifying charge that there was " nothing too base '' for plaintiff to be 
 
 guilty of, 321. 
 BASTARD, charge of having had, 124 re., 190, 191 re., 539. 
 
 charge of having had, actionable with special damage, 265. 
 charge of being, when actionable, 197, 197 re. 
 charge of being father of, 197. 
 justifying charge of begetting, 314. 
 See Illegitimacy. 
 BATTERY, charge of, not actionable, 165 re. 
 BAWD, charge of being a, not actionable, 191, 196. 
 BAWDY HOUSE, what equivalent to charge of keeping, 140. 
 charge of keeping, involves moral turpitude, 164. 
 charge of keeping, is actionable, 194. 
 BEADLE. See Ward Beadle. 
 BEAR, justifying charge of being, 322 re. 
 BEATING drums, i n. 
 BEE-TREE, charge of stealing, 149. 
 BEGIN, right to, 497. 
 
 BELIEF in truth of charge, not necessary, 268. 
 of publisher, when material, 279. 
 
 in truth of charge, no defense, 175 re., 324, 324 n., 596 n. 
 in truth, in mitigation, 324 «., 306 n., 668 re., 676, 678. 
 how it differs from suspicion, 173 re. 
 hearsay is probable ground for, 396 n. 
 in possessing knowledge affecting the rights of others, when it gives a 
 
 privilege, 395. 
 is the only evidence of good faith, 396 re. 
 as affecting reasonable and probable cause, 712. 
 
 of publisher, when important, 280, 287, 304, 306 re., 311 re., 395 re., 
 425. 
 
 See Disbelief. 
 
764 Reference'] INDEX. [is to page. 
 
 BELL-ROPES, charge of stealing, 124 n., 176. 
 
 BELLS, ringing, i n. 
 
 BELT, charge of stealing, 182. 
 
 BENIGNIOR SENSU, specimens of constructions in, 132 n. 
 
 See MiTiORi SENSU. 
 BERSOGLISVISUR or free speaking song, 6 n. 
 BIGAMY, what does not amount to a charge of, 140. 
 charge of, is actionable, 214 n., 253. 
 charge of, how justified, 666. 
 with an actress, 210. 
 BILL of costs, defamatory matter in, 335 n. 
 
 of particulars, when ordered, 489, 494. 
 
 in action for slander of title, 293 n., 494. 
 malicious prosecution, 489 n. 
 of justification, 494. 
 
 defamatory matter in, is privileged, 334 n., 336 n. 
 examination of party, to furnish, 492, 635 n. 
 in Massachusetts, 561 n. 
 in England, 489. 
 BILLS, ^/(S of, charge of stealing, 182 n. 
 BISHOP, words concerning, 254 n. 
 
 charge of in convocation, 381 n. 
 petition to, is privileged, 377, 378 n. 
 See Archbishop. 
 BITCH does not import whoredom, 153 n., 575 n. 
 BLACK CROSS, jury to determine meaning of, 502. 
 BLACKGUARD, calling a tradesman a blackguard, actionable, 245 ». 
 BLACK-LEG, meaning of, 120 n., 141, 642. 
 
 charge of being, not actionable, 135, 196. 
 BLACK LIST, 245 n., 318, 417. 
 BLACKMAIL, judicial notice of meaning, 120 n. 
 BLACKMAILER, charge of being, 248. 
 BLACKMAILING, charge of, 209, 357, 358. 
 BLACKMAN, charge of being a, 123 n. 
 BLACK SHEEP, meaning of, 120 n., 1 36. 
 BLACKSMITH, charge against, of keeping false books, 234 n. 
 BLANKS, in defamatory matter, to be judged of by jury, 116 re. 
 BLASPHEMOUS matter, report of, not privileged, 354. 
 BLASPHEMY, charge of, is actionable, 209. 
 
 justifying charge of, 317. 
 BLOOD-SUCKER, charge of being, 199, 250 re., 257. 
 BLOODY THIEF, actionable, 180. 
 BOARDING-HOUSE keeper, vfOxAs concerning, 211, 245 n. 
 
 See Inn Keeper. 
 BOARD OF EXCISE, memorial to, is privileged, 377. 
 BOARDS, charge of stealing, 149, 182. 
 BOGTROTTER, explaining meaning of, 120 n. 
 
/ie/erence-i INDEX. [is to pa^e. 765 
 
 BOGUS BABY, charge of producing, held actionable, 194. 
 BOGUS PEDDLER, judicial notice of, meaning of, 120 n. 
 charge of being, actionable, 192. 
 See Peddler. 
 BOLTED, a charge that plaintiff bolted is not justified by saying he quitted, 
 
 313 «■ 
 BONA FIDES, jury to judge of, 515 n. 
 
 See Motive. 
 BOND advertised for sale, 211. 
 BOOK PUBLISHER, language concerning, 457. 
 BOOKS, how made, 10 n. 
 
 language concerning plaintiffs', 281 n. 
 
 See Account Books ; False Books ; New Books ; Text 
 Books. 
 BOOKSELLER, liability of, 106, 107 n. 
 BOTCH, charge of being is actionable, 253. 
 BOX-WOOD, charge of stealing, 150. 
 BRAWLING, 6 n. 
 
 BREACH 0/ the peace, words amounting to, actionable in Mississippi, Vir- 
 ginia and Georgia, 160. 
 
 See Disorderly Conduct. 
 of trust, what amounts to a charge of, 1 54. 
 charge of, not actionable, 171. 
 BREAKING into a store, charge of, 184. 
 BREAKING OPEN LETTERS, charge of, 154, 220 ra., 225. 
 charge of, involves moral turpitude, 164. 
 
 contra, see 170 n., 220 n. 
 charge of, is actionable, 194. 
 is not actionable, 170 n. 
 BREWER, words concerning, 238 n., 246, 312. 
 BRIBE, charging with acting under influence of, 210. 
 
 charge of taking, 453 n. 
 BRIBERY, charge of, is actionable, 164, 194, 194 n., 208, 210, 213 n., 236 n. 
 461 n. 
 language not amounting to charge of, 260. 
 BRIBING JUSTICE, actionable, 236. 
 BRIBING KNAVE, actionable, 177 n., 248. 
 BRICKS, charge of stealing, 180. 
 
 presumed to be chattels, 180 n. 
 BRIEF OF COUNSEL, privileged, 344 n. 
 
 publishing before trial held a contempt, 360 n. 
 BRIMSTONE, charge of stinking of, 208. 
 BROKEN UP. See Breaking Open. 
 BROTHEL, charge of letting a house for a, 194 n. 
 
 See Goose-House; Prostitution; Whorehouse. 
 BRYANT, WILLIAM CULLEN, why he left the law, 537 ». 
 BUGGERING ROGUE, actionable, I77- 
 
766 Reference] INDEX. [is to page. 
 
 BUGGERY, charge of. Ii8 n., 152. 
 
 See Unnatural Offense. 
 BUNGLER, charge of being a, is actionable, 252 n. 
 BUNTER, charge of being a, 642 n. 
 
 meaning of not judicially noticed, 120 n. 
 meaning of, 565 n. 
 BURDEN of proof of malice, 299. 
 
 of probable cause, 713. 
 BURNING. See Arson; Barn; Gin- House; School-House. 
 BUSHWHACKER, judicial notice of its meaning, i2ora. 
 charge of being, not actionable, 196. 
 is in constitution of Missouri, 196 n. 
 BUSINESS, meaning of the term, 224 n. 
 
 See Trade. 
 BUTCHER, words concerning, 239, 246, 266, 381, 415, 415 n. 
 BYSTANDER, how far publisher responsible for understanding and hearing 
 of, 129, i3o».,64o n. 
 See Hearers. 
 
 CALF-SKIN, charge of steahng, 182. 
 CALIFORNIA, security for costs in, 482 n. 
 
 statute defining libel in, 20 n., 161 n. 
 
 law as to costs in, 481 n. 
 CALUMNY, meaning of, 330 n. 
 CANADA, charge of stealing made in, 170 n. 
 CANDIDATE/or office or employment, words concerning, 231, 435. 
 
 no defense that language was intended to defeat him, 439.n> 
 
 for admission to school, words concerning, 299 n. 
 CANT PHRASE, meaning of a matter of fact, 502 n. 
 
 witness may depose to, 640 n. 
 CAPTAIN, publishing that one is not a, 217. 
 
 See Master Mariner. 
 CARDS, charge of cheating at, 209 re., 214, 
 CARPENTER, words concerning, 243 re., 421 re. 
 CARRIER, liability of, 108. 
 
 CARRYING AWAY, a charge of, imputes a trespass, 146 n., 539 re, 
 CATCHING INDIANS, charge of being engaged in, 210. 
 CATERPILLAR, charging an innkeeper with being a, 248 re. 
 CATTLE, marks on, altering, involves moral turpitude, 165. 
 
 charge of altering is actionable, 193. 
 
 charge of niismarking, not actionable, 171 re. 
 killing, 193 n. 
 CAUSE, import of the term, 146. 
 
 charge of being the cause of suicide, 146 re. , 199. 
 
 justifying a charge of causing an act to be done, 312. 
 See Reasonable and Probable Cause. 
 
Seference\ INDEX. Yistofage. 767 
 
 CAUSES of action, \qi\tAs[ of, 271 n., 583, 737. 
 not assignable, 531. 
 by illegal act, 270, 271, 273 71. 
 to be numbered, 584. 
 See Complaint. 
 CAUTION not to trust another, when privileged, 407, 419, . 
 not to marry, 410. 
 not to purchase a bond, 211, 420. 
 CERTAINTY, how it may be insured, 21, 21 re., 564, 582 n. 
 what required, 133. 
 excessive, 133 n. 
 in charge of crime, 164. 
 in statement of words published, 562. 
 innuendo, to insure, 564. 
 in justification on ground of truth, 597. 
 CHAIRMAN of political convention, language concerning, 467. 
 CHAMPERTOR, actionable, 193. 
 
 meaning of the term, 1 23 n. 
 CHANGING place of trial, 483. 
 
 See Venue. 
 CHARACTER, meaning of the term, 24 n., 25 re., 26 n. 
 necessity of protecting, 40 n., 46 n. 
 evidence of, 670. 
 to servant, right to give, 425, 743. 
 
 no action for refusing to give, 428 n. 
 
 See Master and Servant ; Reputation. 
 CHARGE, by way of question, 175. 
 
 to jury. See JURY. 
 CHARITIES, report of inspector of, 366 re., 461 n. 
 CHARITY, collecting for unworthy objects, 213. 
 report as to merits of applicants for, 388. 
 CHASTE CHARACTER, meaning of the term, 25 re. 
 
 See Matron. 
 CHASTITY, charge of want of, not actionable, 189. 
 
 actionable, if in writing, 209, 241. 
 CHATTEL MORTGAGE, charge of giving, 242 re., 244. 
 
 charge of selling property which is subject to, 163 n. 
 CHEAT, charge of being, not actionable, 196. 
 
 what is not a justification of a charge of being, 312 re. 
 charging an attorney with being, is actionable, 248. 
 CHEATED AND ROBBED, actionable, 151/1. 
 CHEATER, charge of being, actionable if applied to one in trade, 248. 
 CHEATING, charge of, not actionable, 171, 171 re., 198. 
 when actionable,i245, 258. 
 at cards, charge of, is actionable, 209 re., 214. 
 the government, charge of, 200. 
 
768 Reference] INDEX. [is to tage. 
 
 CHECK, action for dishonoring, 2 n. 
 
 charging a merchant with having his dishonored, 244. 
 CHILD, parent not answerable for wrongs by, 105 n., 735. 
 
 charge of begetting, 195. 
 
 of being with, 191. 
 
 charge of starving, 246. 
 
 punishing, for libeling parent, 207 n. 
 
 See Illinois ; Parent ; Infant. 
 CHRISTIANITY, introduction of, into England, 41. 
 
 part of the common law, 41. 
 CHURCH, charge of robbing, 182 n. 
 
 charge of having been deprived of the ordinances of, 208. 
 
 charge of desecrating, 255. 
 
 discipline, proceedings in course of, are privileged, 367, 369. 
 
 privilege of, only applies where both parties members of the 
 church, 369. 
 See Desecrating Church. 
 CHURCH MEETING, proceeding at, how far privileged, 346, 367 »., 369 n. 
 CHURCH WARDEN, language concerning, 124 «., 258 n. 
 CIPHER, libel in, 11871. 
 
 CIRCULATION of libel, proof of extent of, 651, 651 n. 
 CIRCUMSTANCES, affect meaning of language, 122. 
 CITY ATTORNEY, words concerning, 236 n. 
 CITY COURT of New York, jurisdiction of, 481. 
 CIVIL ACTION, malicious prosecution of, 331 n.., 700 n. 
 CIVIL LAW, distinguishes between oral and written defamation, 88 n. 
 
 See Action. 
 CLAIM of title, whether actionable, 289. 
 CLAPPING hands, i n. 
 
 CLASS of persons, language concerning, when actionable, 11 5 n. 
 CLERGYMAN. See Minister of the Gospel. 
 CLERK in a gas company, words concerning, 240. 
 
 words concerning, 248. 
 
 See Collector; Merchant's Clerk. 
 CLIENT, when not responsible for acts of attorney, 105 n. 
 charge of divulging secrets of, justifying, 316. 
 attorney may vindicate reputation of, 390 n. 
 CLIPPER and coiner, meaning of the terms, 137 n., 141. 
 CLOTHES, charge of stealing, 182 n. 
 CLUB, preventing election to, not special damage, 264 n. 
 COACH BUILDER, words of, 241, 
 COAL MERCHANT, language concerning, 458 n. 
 COBBLER, charge of being, actionable, 252. 
 
 COCKBURN, Lord Chief Justice, his views of the law of libel, 458 n. 
 COINING, charge of, 172. 
 
 COLLECTOR, publishing notice that he no longer authorized to collect, 388 n. 
 U. S., language concerning, 259. 
 
Reference'\ INDEX. [is to page. 76'Q 
 
 COLLOQUIUM, what it is, iii n. 
 when necessary, 133 n. 
 must be proved, 643 n. 
 
 sometimes used as synonymous with inducement, 552. 
 innuendo, cannot perform office of, 566. 
 See Inducement. 
 COLOR, justification must give, 589. 
 COMBINATION, to raise prices, charge of, 171 n. 
 
 See Conspiracy. 
 COMMENT, right of, 268 n. 
 
 See Criticism. 
 COMMERCIAL AGENCY, publication'by, how far privileged, 417, 417 n. 
 justification of libel by, 605 n. 
 action against, 121 m., 417 ra. 
 
 is a lawful business and courts take judicial notice of it, 417. 
 use of asterisks by, 245 n. 
 COMMISSION to examine witnesses, 496. 
 COMMISSIONER, words concerning, 258, 259. 
 
 to take testimony, words concerning, 236 n. 
 of police, report of, not privileged, 366 n. 
 to inquire into corporations, report of, not privileged, 366 n. 
 in bankruptcy, reports of proceedings before, privileged, 365. 
 language concerning, 259. 
 See Bankrupt. 
 COMMITTEE of House of Lords, is a public court, 365, 366. 
 
 of Congress, proceedings before, 366. 
 COMMON BARRATOR, charge of being, 193. 
 not actionable, 167 n. 
 actionable, 193, 250. 
 COMMON CHAMPERTOR, charge of being, 193. 
 COMMON FILCHER, charge of being.'not'actionable, 196. 
 COMMON LAW, ecclesiastical law part of, 7 n. 
 
 Christianity part of, 41. 
 COMMON PROSTITUTE, charge of being, 190. 
 COMMON SENSE in construing language, iign. 
 
 differs in different ages, 123 n. 
 COMMON WHORE, charge of being, actionable, 19071. 
 COMPANION 0/ cut-tAroats, not actionable, 196. 
 
 COMPANY, unincorporated, when members of, cannot maintain action^for 
 libel, 1 1 5 ra. 
 
 See Corporation. 
 COMPLAINT, corresponds to declaration, 537. 
 for words affecting a merchant, 238 n. 
 general requisites of, 537, 583. 
 need not aver facts charged or implied by the language published 
 
 539 n., 544- 
 need not aver malice, 75 «., 558. 
 
 49 
 
770 Reference] INDEX. [" tofage. 
 
 ^OMPhh-WT. —contmued. 
 
 the usual preliminary panegyric on plaintiff is superfluous, 543, 543 n., 
 
 544 »• 
 inducement, 538. 
 
 in England, 539. 
 
 in New York, 540. 
 
 where there are several counts, 541. 
 
 of ironical language, 538 n. 
 
 to be stated in a traversable form, 542. 
 
 may be put in issue, 542, 544 n. 
 
 superfluous, 543, 544' 
 
 of plaintiff's occupation, 235, 236 re., 547, 548. 
 
 in action for charge of false swearing, 550. 
 should show that the language is concerning the plaintiff, 113 w., 545i 
 
 when it should show plaintiff's standing or occupation, S47, 54o> 54° »■, 
 
 554 Ji. 
 need not allege legality of plaintiff's occupation, 549. 
 colloquium, sometimes used as synonymous with inducement, 552. 
 must allege a publication, 552. 
 publication, how alleged, 89 re., 552, 555, 556. 
 alleging place of publication, 558. 
 alleging time of publication, 558. 
 to allege absence of legal excuse, 558. 
 to set out the language published, 559. 
 where words published in a foreign language, 556, 561. 
 need it set out obscene words, 562. 
 degree of certainty required in setting forth the language pubUshed, 
 
 563. 
 need not set forth the whole of the matter published, 563. 
 parts not set forth, query to be taken as true, 564 n. 
 should state the sense in which plaintiff claims the words were used, 
 
 135, 561 n. 
 allegations of, must be certain, 564. 
 
 each cause of action must be separately stated and numbered, 584' 
 innuendo, 171 ra., 565. 
 
 cannot perform office of colloquium, 566. 
 
 cannot introduce new mattei: nor change meaning, 565 n. 
 
 cannot extend the meaning, 565, 571 n. 
 
 to point meaning of ambiguous language, 572. 
 
 xejecting, 574. 
 
 warranted, 570 n., 574. 
 
 unwarranted, 575. 
 
 evidence to explain, 576. 
 
 cannot make language apply to plaintiff, 576. 
 
 may -show language applies to a class, 576. 
 
 cannot be aided by witness, 576 n. 
 
Refennce-\ INDEX. \is to page. 
 
 771 
 
 COVai^Kmii.— continued. 
 
 innuendo may justify a demurrer, 576 n. 
 mental suffering need not be alleged in, 580 n. 
 -when to allege special damage, 264, 579. 
 
 what is an allegation of special damage, 265, 265 n., 267 n„ 291 n. 
 491 n., 492, 580 »., 581 n. ' 
 
 ■what causes of action may be united in, S33, 540 n., 583. 
 for slander of title, 291 n. 
 form of, for slander of ship, 281 n. 
 to_court of justice and complaint made elsewhere, distinction between, 
 
 377 n. 
 striking out, for plaintiff's refusal to answer proper question, 496 n., 
 
 663 n. 
 inspection of documents, to prepare, 484. 
 examination of defendant, to prepare, 484. 
 supplemental, when allowed, 584. 
 demurrer to, 606. See Demurrer. 
 
 difficult to sustain, 239 n. 
 for malicious prosecution, 561 ra., 737, 738, 738 n. 
 judge to determine whether it sets forth a cause of action, 510. 
 by husband and wife, 532 ra., 534 n. 
 for false swearing, 550. 
 against newspaper proprietor, 555 n. 
 
 setting forth several portions of libel, but one count, 564 n. 
 several counts, 541. 
 charging insanity, 579 n. 
 
 See Innuendo; Supplemental Complaint. 
 COMPROMISE, court will enforce, 441, 496. 
 
 evidence of negotiation for, 639 n. 
 CONCEALER of felony, charge of being, 194 n. 
 CONCEALING a felony, charge of, is actionable, 167 n., 194. 
 stolen goods, charge of, 193. 
 
 stolen goods, what not equivalent to charge of, 242 n. 
 CONDITION in life of parties, effect of, 127, 222, 649, 652, 679, 685, 691. 
 
 evidence of, on face of libel, 644. 
 CONDUCT unfit for publication, charge of being guilty of, not actionable, 
 174 TO. 
 derogatory to a gentleman, 251. 
 
 See Violent Conduct. 
 CONFESSION, implicating another, writing it down, 422 n. 
 CONFIDENCE, letters merely written in, not privileged, 384 w., 402 w. 
 communications in. 383 n., 398 n., 409. 
 law respects communications made in, 402 n., 410 n. 
 See Secrecy. 
 CONFIDENTAL relation, effect of, 416, 680 n. 
 CONGRESS, report of testimony before committee of, 366, 
 
 See Legislative Proceedings; Member of Congres?,- 
 
772 Sefertnce] INDEX. [is to page. 
 
 CONJURING KNAVE, not actionable, 176. 
 
 CONNECTICUT, false swearing in ecclesiastical court of, 187 n, 
 
 calling a woman a whore is actionable in, 189 n. 
 
 proof of malice in, 647 n. 
 
 repetition of slander in, 304. 
 
 laws of, relating to newspapers, 450 n. 
 CONSENTING to a crime, charge of, not actionable, 183 «. 
 
 CONSOLIDATING actions for slander or libel, 394, 395, 482, 533 n. 
 
 CONSORTIUM, of husband and wife, loss of is special damage, 263. 
 
 vicinorum, is not special damage, 264. 
 CONSPIRACY, what does not amount to a charge of, 141. 
 
 members of the House of Lords, as such, cannot be guilty of,'325 n. 
 
 to defame action for, 6 n., 99. 
 See Combination. 
 CONSTABLE, words concerning, 236, 257. 
 
 words spoken on giving in charge of, are privileged, 374 n. 
 
 need not prove his appointment, 236 n. 
 See Police Officer. 
 CONSTRUCTION ^/fl!«faa^.f, 109. 
 
 written and oral, ii6. 
 
 when not allowed, 1 1 1 «■. 
 
 in popular sense, 117 re. 
 
 when ironical, no ra., 119 m. 
 
 how affected by bad grammar, 119 ra. 
 
 by judicial notice, 120 re, 
 
 to be by court and jury, not by witness, 639. 
 
 explanatory circumstances, effect on, 121 re. 
 
 to be consistent with the whole of the^'matter'published, I27^». 
 
 how affected by the condition in life of the^person^spoken of, 1 27,, 222. 
 
 of pleading, 132 re., 134, 134 re. 
 
 on demurrer, 134 re., 216. 
 
 of plea of justification, S97 re. 
 
 when for the judge and when for the jury, 502. 
 
 what to guide the jury in, 116 n., 122 n., 126 re. 
 
 effect of time, place, and usage upon, 122, 122 re. 
 
 meaning of the publisher, how far material to, 128, 129 n. 
 
 when ambiguous and when unambiguous, 129. 
 
 for court and jury, not witnesses, 639. 
 
 m. mitiori sensu, 131. 
 
 according to the natural meaning, 134. 
 
 courts do not strain to find an innocent meaning, 135. 
 
 after verdict, 136, 136 re., 137. 
 
 See Language; Jury; Meaning. 
 CONSTRUCTIVE publication, 88 re. 
 CONTAGIOUS DISEASE, charge of having, 201. 
 
Sefmnce] INDEX. [is to page. 773 
 
 CONTEMPT in publishing reports of proceedings of a court of justice', 334 n., 
 3S9, 36s "., 695. 
 
 in writing private letter to a judge respecting a cause pending before 
 him, 334 re., 362 n. 
 
 of court, 347 n., 360 n. 
 
 of court, will be restrained by injunction, 695. 
 
 in publishing disparagfing comments on courts or judges, 360 n. 
 
 in publishing libel on Member of Parliament, 326 n. 
 
 by inserting scandalous matter in pleading, 335. 
 CONTEMPTIBLE FELLOW, charge of being, 254 n. 
 CONTEXT, to be considered in construing langfuage, 118 n., 121 n., 126 »,, 
 
 171 n. 
 CONTRACT, words published with intent to cause breach of, 273 n., 274 n. 
 
 action for maliciously causing breach of, 291 n. 
 CONTRADICTION, delay in publishing, 449 n. 
 CONTRIBUTION, none between wrong-doers, 536. 
 CONVENTIONAL ETIQUETTE, charge of breach of, 216. 
 CONVICT, actionable, 149. 
 
 See Returned Convict. 
 CONVICTED FELON, meaning of the term, 141. 
 
 report of speech of, not privileged, 366. 
 
 and "convicted of a felony,'' difference between, 168 n. 
 
 justification of charge of being, 323 n. 
 CONVICTED of perjury, held not to mean technically convicted, 185 n. 
 CONVICTED SCOUNDREL, charge of being, actionable, 142 n. 
 CONVICTION for crime not mitigation in civil action, 7 n. 
 CONVOCATION, charge of bishop in, 381 n. 
 COOPER, words concerning, 238 n. 
 COPYRIGHT, none in libelous publications, 226 n. 
 
 charging infringement of, 283 n. 
 See Patent. 
 CORN, charge of carrying away, 146 n. 
 
 charge of stealing, 151 n., 180, 183. 
 CORN-DEALER OR FACTOR, words concerning, 246, 415. 
 CORN-STEALER. charge of being, is actionable, 194. 
 CORONER, when not liable for slander or libel, 347, 383 n. 
 
 criminal information granted for publishing minutes of inquest "before, 
 
 339 n. 
 report of inquest by, 366 n. 
 lang[uage concerning, 207 n. , 238. 
 CORPORATIONS are legal persons, 469. 
 
 their rights and duties assimilated to natural persons, 469. 
 can act only through agents, 469. 
 may be indicted for libel, 470 n. 
 
774 Reference^ INDEX. [is to f age. 
 
 CORPORATIONS.— <:(7«/z««?^. 
 
 may be sued for acts of agents, 470. 
 
 libel, malicious prosecution and trespass, 470, 737^ 
 
 737 n. 
 conspiracy to injure others, 470 n. 
 trespass, 470 re. 
 may have a reputation, 471. 
 language concerning, 472. 
 action by, for libel, 472. 
 cannot be guilty of slander, 474, 474 n. 
 may be guilty of libel, 475. 
 suits by married women against, 471 n. 
 criticism of to be encouraged, 473 n^ 
 may act maliciously, 475. 
 officers of, when liable, 95 n. 
 as publishers of newspapers, 448, 448 re. 
 can it be guilty of fraud, 476 n. 
 proof of publication by, 476 re. 
 exemplary damages against, 476 re. 
 
 See Fire Company; Foreign Corporation; Joint 
 Stock Company; Mutual Aid Association. 
 CORPSE, contempt of a, 18 re. 
 
 See Dead Body. 
 CORRESPONDENTS. See Newspapers. 
 CORRUPT, charging a judge with being, is actionable, 256. 
 
 agreement, charge of making, 212. 
 CORRUPTION in office, charge of, 212, 235, 257. 
 what words imply, 256 n. 
 COSTS, plaintiff may be taken in execution for, 481. 
 
 when a married woman cannot be taken in execution for, 162 n. 
 security for, 482. 
 what to be recovered, 481. 
 when action referred, 497 n. 
 not allowed as damages, 518 n. 
 effect of amount of verdict upon, 527. 
 informing jury as to effect of costs upon, 517, 517 n. 
 in England, 527 ^, 
 discontinuing without, 528 n. 
 staying proceedings until paid, 528. 
 COTTON, charge of stealing, i8i re. 
 COUNCIL of appointment, petition to, is privileged, 378. 
 COUNSEL, privilege of, 333 «., 343, 343 re. 
 
 attorney acting as, his privilege, 343 re. 
 opening and summing up of, on trial, 498. 
 when he may refuse to testify, 633 re. 
 
 advice of, as a defense to action for malicious prosecution, 718. 
 as a defense for slander of title, 291. 
 
Reference\ INDEX. [is to page. 7^5 
 
 COXJ'HSiEL.— continued. - .j 
 
 not privileged to maliciously publish a fair report for judicial proeeed- 
 ings, out of court, 345 n. -j 
 
 See Attorney; Counsellor. 
 COUNSELLOR, langfuage concerning, 250, 252. 
 
 See Divulging Secrets; Lawyer. 
 COUNTER-CLAIM, in action for slander or libel, 608, 608 n. 
 
 defamatory matter in, is privileged, 332. 
 COUNTERFEIT imports felony, 193 n. 
 COUNTERFEITER, what amounts to a charge of being a, 153. 
 
 charge of being, is actionable, 193. 
 
 thought no more of than a counterfeiter, is actionable, 20S. 
 COUNTERFEITING, charge of, involves moral turpitude, 165. 
 COUNTERFEIT MONEY, charge of being a dealer in, is actionable, igz. 
 
 passing when not actionable, 198. 
 COUNTY COURTS of England.^ no jurisdiction of actions for slander or 
 
 libel, 481 n. 
 COURT and jury ^ province of, 502-516. 
 
 jury to determine meaning in certain cases, 502, 639. 
 
 court may define what is a libel and leave to jury, 505. 
 
 judge to decide if language capable of meaning ascribed to it, 506. 
 
 truth of facts charged are for the jury, 508. 
 
 how language construed by, 116 n., 117 n. 
 
 to take judicial notice of meaning, 120 re. 
 
 to inform itself of meaning of English words, 120 n. 
 
 court to construe unambiguous language, 502, 508, 509. 
 
 court to instruct jury what will render publication privileged, 512. 
 
 on uncontroverted facts, court to decide if publication privileged, 513. 
 
 court to leave bona fides to jury, 514 n. -' 
 
 COURT commissioner, language concerning, 258. 
 COURT OF JUSTICE, to be held with open doors, 352. 
 
 every one presumed to know proceedings of, 352. 
 
 publication of proceedings of, 352. 
 
 publishing disparaging remarks on, 362 re., 359 n., 695. 
 
 restraining publication of proceedings of, 359 n., 695, 695'«. 
 See Judicial Proceedings ; Contempt. 
 COURT MARTIAL, report of decision of, is privileged, 3491 
 COURTS, jurisdiction of tort, in foreign country, or State, 91. 
 
 See Ecclesiastical Courts ; Piepowder.. 
 COUSIN, his remark on definition, 17 n. 
 COW, charge of poisoning, 193 n. 
 See Killing. 
 
 charge of offense with, 195. 
 COWARD, charge of being, when actionable, 161, 161 n. 
 COZEN, held not actionable, 248, 248 n. 
 COZENER, judicial notice of meaning of, 120 n. 
 
 charge of being, not actionable, 197, 246. 
 
,fj() Reference^ INDEX. [" to page. 
 
 COZENING KNAVE, actionable, 248. 
 'CRANK, charge of being a, 209 »., 541 n. 
 CRAZY, charge of being, 237 n. 
 CREDIT, imputing want of, when actionable, 242. 
 
 what does not impute want of, 241 n. 
 CREDITOR, seeking redress, 382 ra., 385 re. 
 CREDITORS, calling meeting of, 418. 
 
 See Meeting of Creditors. 
 See Insanity. 
 CRIME, words imputing, must be precise, 118 n. 
 
 how justified, 665. 
 
 against nature. See Unnatural Offense. 
 
 and tort, difference between, 91 n. 
 
 no agency in, 54 n. 
 
 intent the essence of, 53, 53 n. 
 
 malice an ingredient of, 74 n. 
 
 charge of procuring to commit, 171. 
 
 charge of attempt to commit, 171, 171 n. 
 inciting to commit, 175 n. 
 how justified, 600. 
 
 infamous, libel is not, 167 n. 
 what is, 167, 225. 
 See Criminal Offense. 
 CRIMINAL INTERCOURSE, charge of, 240. 
 CRIMINAL OFFENSE, charge of committing, when actionable, 162, 167. 
 
 right, to complain of, 331 re. 
 
 charge of committing, in foreign country, 170 re. 
 .CRIMINAL, PROSECUTION, for speech, 3 re. 
 CRIMINALITY LEGAL, is legal liability, 103 n. 
 CRITICISM, right of, 268 »., 410 »., 449. 
 
 is a question of good faith, 455 re., 464. 
 
 of persons and things, 450. 
 
 persons, right of, 453. 
 
 is a general right, 444 re. 
 
 is not a privileged occasion, 456. 
 
 fairness of.is for the jury, 455 re., 457 re., 463 re. 
 
 what is not fair, 462 n. 
 
 defense of, 590 re. 
 
 See Fair Comment; Public Men. 
 
 of public men, 437 re., 438 re., 439 n., 451, 453, 466 n. 
 
 of actors. See Actor. 
 
 of authors. See Author. 
 
 of administration of justice, 402. 
 
 of witness, 462. 
 
 of publisher, 457. 
 
 of public acts, 467. 
 
 of corporations, 473 n. 
 
Reference\ INDEX. \i! to page. 'ji'j 
 
 CVATICISU.— continued. 
 
 is founded on the assumption that what is criticised exists, 462. 
 
 is opinion, 449. 
 
 test of its fairness, 463. 
 
 of matters of public interest, 467. 
 
 includes rights and duties of newspaper editors, 448. 
 
 license of in England, 466 n. 
 CRUELTY, language may amount to, 2 n. 
 CUCKOLD, charge of being, is actionable, 207, 207 n. 
 CUCKOLD Y ROGUE, actionable, 177. 
 CUNNING, malice used in the sense of, 65 n. 
 CUNNINGHAM AFFAIR, not proper to admit evidence of meaning of, 
 
 639 n. 
 CUSTOMERS, loss of, is special damage, 263, 266. 
 
 how to be alleged in complaint, 266, 581, 581 n. 
 evidence of, 266, 581, 748. 
 bill of particulars of, 494. 
 
 right of, to complain of tradesman with whom he deals, 415. 
 CUT HIM OUT OF DOORS, meaning of the phrase, 123 n. 
 CUT-THROATS, comparison of, 196. 
 CYPRUS, comparing candidate for office to, 437 n. 
 
 DACOTA, statute defining libel in, 20 n. 
 DAFFA-DOWN-DILLY, meaning of the phrase, 183 n. 
 DAMAGES, power of court over, 40, 40 n. 
 
 correspond to Anglo-Saxon were, 40 n. 
 
 what are, 50 «., 158. 
 
 effect of intent upon, 75 n., 77. 
 
 allegation of special, does not prevent recovery of general, 519. 
 
 circumstances to mitigate, 604. 
 
 when plaintiff to elect de melioribus, 100, 536, 536 n. 
 
 particular and general, distinction between, 266 n. 
 
 after recovery of judgment, 442 n. 
 
 how assessed on judgment for want of plea, 495, 519. 
 
 some must be given, on verdict for plaintiff, 520. 
 
 no proof of actual injury necessary to entitle plaintiff to, 521 re, 
 
 after a payment into court, 449 n. 
 
 aggravation of, 645, 649, 
 
 aggravation of, by conduct of cause, 498, 499, 659. 
 
 mitigation of, 667, 669, 685, 687. 
 
 jury to fix amount of, 516, 524. 
 
 appellate court cannot fix amount of, 524 n. 
 
 costs not to be allowed as, 518 n. 
 
 cannot exceed the amount claimed, 521. 
 
 nominal, when proper, 516, 519, 688 n. 
 
 actual, when proper, 582 n. 
 
 malice, an element of, 75 n., 77. 
 
 for injury to feelings, 520. 
 
778 Reference^ INDEX. \is to page. 
 
 DAMAGES. — continued. 
 
 exemplary or vindictive, 521. 
 
 in actions by or against partners, 229, 519. 
 
 for part not justified, 322 n. 
 
 vindictive., when allowed, 520, 520 n., 521 n. 
 
 prospective, not allowed, 519. 
 
 effect of costs upon, 527. 
 
 on several counts and one count bad, 522. 
 
 general damages, where there is a misjoinder of counts, 523. 
 
 reducing amount of, on appeal, 526 n. 
 
 rule of, for acts of servants, 517 ra. 
 
 against mercantile agencies, 520 n. 
 
 against newspapers, 517 n. 
 
 after death of plaintiff and action continued by his representative^, 
 
 521 n. 
 new trial for excessive, 524. 
 new trial for inadequate, 525. 
 measure of, in malicious prosecution, 739. 
 
 See Aggravatiom; Special Damage; Nominal Dam- 
 ages ; New Trial. 
 DAMNED ROGUE, charge of being, not actionable, 196. 
 DANCING TEACHER, female, words concerning, 199 n., 240. 
 DANGER of punishment, not the gist of an action for slander or libel, 16S. 
 DANGEROUS MAN, charge of being, not actionable, 239. 
 DEAD, libel on the, 18 n. 
 
 DEAD BODY, charge of stealing from, 182 n. See CORPSE. 
 DEAD-HEADING, charge of, 213 n. 
 DEALER in counterfeit money, charge of being a, is actionable, 192. 
 
 in paints, may complain that his wares have been adulterated, 415 »- 
 DEATH, charge of being the cause of, does not amount to murder, 146. 
 charge of being guilty of the death of D. is actionable, 146, 194. 
 of party to action, effect of, 480 n., 521 n., 525 «., 530, 531, 533 ». 
 publishing false notice of, 210, 210 n. 
 See Suicide. 
 DEBATE, freedom of. See LEGISLATIVE PROCEEDINGS, 
 DEBAUCHEE, charge of being, is actionable, 207 n. 
 DEBT, charge of inability to pay, 219, 242. 
 
 charge of not paying, 210, 211, 211 n. 
 See Insolvency. 
 DECLARATION. See Complaint. 
 
 of right to vote, making a false, 165. 
 DEER STEALING, charge of, not actionable, 167. 
 DEFACING plaintiff's documents, 307, 308. 
 DEFAMATION, what it is, 7. 
 
 jurisdiction of ecclesiastical courts in matter of, 7. 
 jurisdiction of ecclesiastical courts in matter of, abolished, 7 n. 
 evidence, 644. 
 
 See Libel; Slander. 
 
Seference] INDEX. [is to page. 779 
 
 DEFAMATORY, language must be, to constitute^slander^or libel, 58, 317. 
 libel, 26 n. 
 
 See Libelous. 
 DEFAMED, meaning of, 15, 15 re. 
 DEFAMER, who is, 15. 
 
 See Libelee. 
 DEFAULT of plea or answer, effect of, 495. 
 DEFAULTER, charge of being, 243. 
 DEFENDANT, examination of, to prepare complaint,^484,[488. 
 
 may be arrested, 481. 
 
 examination of, 484, 486. 487, 634 n. 
 
 no contribution between or indemnity to, 536. 
 
 interrogatories to, 484, 484 n., 488,^634 »., 635 n. 
 
 inspection by, 484. 
 
 allowed to take photographs of alleged libels, 495 n. 
 
 effect of death of, 480 n., 521 n., 525 n., 530, 531 »., 533 n. 
 
 bankruptcy of, 531 n. 
 
 evidence of liability of, 638. 
 
 evidence for, 661. 
 
 evidence of his intent, 63 »., 64 n., 647''7i.,r6S7, 661, 671 n., 732.. 
 
 wealth of, cannot be shown to aggravate damages, 652. 
 
 poverty of, cannot be shown in mitigation, 685. 
 
 declarations of, in mitigation, 680. 
 
 cannot set up his own iniquity in mitigation, 686 n. 
 
 execution against his person, 481. 
 
 not obliged to declare to whom defamatory matter applied, 488. 
 
 may offer to allow judgment, 527. 
 
 in malicious prosecution, 735. 
 See Parties. 
 DEFENSE, distinction between legal excuse and, 53. 
 
 language used in, is privileged, 342, 345. 
 
 of privileged communication, 295,5589, 590. 
 
 of repetition, 301, 304. 
 
 of truth, 59 71., 306, 307, 674. 
 
 of truth, not new matter, 608. 
 
 retraction, 304. 
 
 giving name of author, 304. 
 
 belief in truth, 304. 
 
 previous publication, 304. 
 
 inconsistent allowed, 591 n. 
 
 of legislative proceedings and report thereof, 325. 
 
 judicial proceedings, 330, 340, 342, 
 
 parties to proceedings, 330, 340, 342, 529. 
 
 that language published by one as counsel, 343, 344- 
 
 as witness, 338. 
 as a judge, 346. 
 previously published by_ plaintiff himself, 306 n. 
 
.780 Reference^ INDEX. [is to page. 
 
 DEFEliSE.—continuea. 
 
 report of judicial proceedings, 351. 
 
 of quasi judicial proceedings, 359. 
 
 that plaintiff not the real party in interest, 529 n. 
 
 that publication made in the course of church discipline, 367 
 
 that publication made at a public meeting, 369. 
 
 that publication made in seeking redress other than judicially, 374. 
 
 that publication made in giving advice or information generally, 1395. 
 
 giving a character to a servant, 425, 743. 
 
 that publication concerning a candidate for office or employment, 435, 
 
 insanity, 440. 
 
 drunkenness, 441. 
 
 infancy, 441. 
 
 accord and satisfaction, 441. 
 
 previous recovery, 442. 
 
 publication, 300 «., 442. 
 
 apology, 441. 
 
 publication in newspaper, 442. 
 
 criticism, 449. 
 
 what must be specially pleaded, 442, 443, 588, 665. 
 
 what may be pleaded together, 591. 
 
 in mitigation. See MITIGATION. 
 
 copied from another paper, 301 n, 
 
 that libel written by plaintiff himself, 210 re., 306 n. 
 
 communication by third person, 302, 304 n. 
 
 of previous rumors, 302 n. 
 
 notice or specification of, 603. 
 
 to part of a count, 589. 
 
 abandoning on trial, 501, 659, 668. 
 
 evidence for, 661. 
 
 of explanation, 121 ». 
 
 See Answer; Defendant; Plea; Self-defense. 
 DEFINITE and certain, making pleading, 582 »., 606 »., '607 n. 
 DEFINITION of writing, 3. 
 
 of effigy, 3. 
 
 of slander, 3. 
 
 of defamed and defamer, 5. 
 
 of blackleg, 642. 
 
 of crank, 209 re. 
 
 of libeler, 4. 
 
 of satirist, 4 n. 
 
 of barrator, 5 n. 
 
 of scandal, 2 n. 
 
 of lampooner, 5 n. 
 
 of libellus, 15 re. 
 
 of missay, 4 re. 
 
 of slanderer, 5 n. 
 
Refertnce\ INDEX. [is to page. 78 1 
 
 "DEFmiTlO^.— continued. 
 of defamed, 5 n. 
 of injury, 30 n. 
 of play, 219. 
 
 of reputation, 24 re., 25 n. 
 of character, 24 n., 25 n. 
 of honor, 26 n. 
 of rights, 27. 
 of duties, 27. 
 
 of malice, 64 n., 65 n., 66 n., 76 n., 78 re. 
 of maliciously, 64 re., 65 71. 
 of malicious acts, 61. 
 of voluntary act, 61. 
 of involuntary act, 61. 
 of intent, 64, 76. 
 of bunter, 565 n. 
 
 of publish and published, 81 n., 89 n. 
 of publication, 8i re., 83 n. 
 of privileged publication, 295 n. 
 communication, 298 n. 
 of special damage, 261. 
 of meaning, 129 re. 
 of business and trade, 224 n. 
 of runagate, 225 re. 
 of lawsuit, 187 re. 
 absolute, impossible, 21 n. 
 of unchastity, 162 re. 
 of taken away, 151 re. 
 of judicial proceeding, 341 n. 
 of statutory, 19 re. 
 of law of libel, 8. 
 none of libel, 15 re. 
 attempted, of libel, 17 re., 75, 204 n. 
 of action for words, 14 n. 
 difficulty of, 15, 20 re., 21 re., 33 re. 
 of oral language actionable per se, 162. 
 DEFRAUDED, not actionable, 198, 239. 
 DEGRADED WRETCH, actionable, 457 n. 
 DELAWARE, statute as to action by married woman, 532 n. 
 DELIRIUM TREMENS, perhaps a defense to an action of slander or libel, 
 
 440 re. 
 DEMURRER, for improper joinder of parties, 534. 
 to complaint, 539 re., 540 n., 542, 606. 
 
 when it may be overruled, 508 n., 509 «., 534 n. 
 difficult to sustain, 239 re. 
 admit allegation of malice, 280 re., 289 n. 
 does not admit the intent attributed by the innuendo, 607, 
 607 n. 
 
782 Reference] INDEX. \is to page. 
 
 DEMVRREK.—coniznued. 
 
 a demurrant to complaint prima facie a wrong-doer, 607 
 
 when illegality of plaintiff's occupation appears on face of complaint, 
 226 n. 
 
 none to mitigating circumstances, 606. 
 
 difficult to sustain in Victoria, 239 n. 
 
 in Mississippi and Virginia, 509 re., 606 n. 
 
 innuendo may justify, 576 n. 
 
 special, abolished, 582 n., 606 n. 
 
 language how construed on, 134 n., 216, 607. 
 
 to answer, 619. 
 
 not allowed to mitigating circumstances, set up in the answer, 606. 
 
 Lord Coke's advice in relation to, 606. 
 
 argued by a lady, 216 n. 
 
 See Definite and Certain. 
 DENIAL of falsity, not allowed, 60 n. 
 
 of special damage, 580, 664 n. 
 
 See General Denial. 
 DENTIST, words concerning, 206. 
 DEODORIZED, charge of requiring to be, 436 n. 
 DEPUTY SHERIFF, language concerning, 257 n. 
 
 See Sheriff. 
 DESECRATING CHURCH, charging a minister with, is actionable, 255, 468. 
 DESERTER, charge of being, 192, 196. 
 DESERTION of wife, not special damage, 278. 
 DESPERATE MAN, charge of being, not actionable, 238. 
 DESTROYER, game and rabbit, 217. 
 DETECTED, meaning of the term, 146, 20971. 
 DETENTION, what is, 705 n. 
 DETERMINATION. See Termination. 
 DEVIL, charge of being imp of, 208. 
 DINNER, public, saying it was bad, not actionable, 294 n. 
 DIRECTOR of public company, words concerning, 258. 
 DIRTY SLUT, charging a school mistress with being, 241. 
 DISAPPEARED, with employer's funds, may impute embezzlement, 142 n. 
 DISBELIEF, of publisher, in matter published, 204 n., 268, 268 »., 269 n. 
 
 See Belief. 
 DISCHARGE LISTS, publication of, is privileged, 389 n. 
 DISCONTINUANCE of action, effect of, 442 n. 
 DISCONTINUE, when plaintiff allowed to, 528 n. 
 DISCOVERY, in aid of action for slander or libel, 485, 486, 635 n. 
 DISEASE, charge of having, 200, 208. 
 
 DISGRACEFUL DISEASE, does not mean venereal disease, 623. 
 DISGUST, charge of being an object of, 259. 
 DISHONESTY, charge of, is actionable, 209, 209 n. 
 
 what words impute, 258 n. 
 DISHONORING CHECK, action for, 2 n. 
 
Seference\ INDEX. [is to page. 783 
 
 DISMISSAL, announcement of the, 218, 388 n. 
 
 when special damage, 262 7i., 268. 
 DISTILLER, words concerning, 243 n. 
 DISTRESS warrant, defamation in, 335 n. 
 
 of mind, aggravation, 652. 
 
 special damage, 271, 520. 
 DIVISIBLE ALLEGATIONS, what are, 154, 705 n. 
 
 justification of, 311, 396 n. 
 
 INNUENDO, part of may be rejected, 574. 
 DIVULGING secrets of clients, charge of, against a counsellor, justifying, 317. 
 
 See Counsellor. 
 DOCTOR. See Physician. 
 
 DOCUMENTS, inspection and production of, when ordered, 484, 488, 632 n. 
 presumption as to possession of, 483 n. 
 defacing, by writing defamatory matter thereon, 307, 308. 
 DOG, charge of stealing, 149, 149 n. 
 charge of killing, 179 n. 
 
 charge of having intercourse with a, 124, 124 n., 192. 
 barking of, i n. 
 DOME BOOK of King Alfred, 42 n. 
 DOMESTIC SERVANT, words concerning, 250. 
 
 See Servant. 
 DRESSMAKER, language concerning, 181 ra. 
 DROVER, words concerning, 235, 235 n., 243 n. 
 
 complaint, how to allege his occupation, 235. 
 DRUGGIST, words of, 219, 241. 
 DRUMS, beating, i n. 
 
 DRUNKARD, charge of being, is actionable, 207, 207 ra., 254. 
 DRUNKEN FOOL, charging a physician with being, 251. 
 DRUNKENNESS, charge of, when actionable, 199, 240, 253. 
 
 not a defense to an action for slander or libel, 441. 
 
 in mitigation, 441 n., 685 «. 
 
 " sober moments," may impute, 119 n. 
 
 See Intoxication ; Master Mariner. 
 DRUNKEN WHORE, held actionable, 190 n. 
 DUE process of law, meaning, how evolved, 17 n. 
 
 DUEL, calling one coward for refusing to fight, is actionable in Tennessee, 161. 
 DUFFING, charge of, 598. 
 DUNCE, actionable, spoken of a lawryer, 252. 
 DURESS, act done under, is involuntary, 61. 
 DUTY, the opposite of a right, 27. 
 
 not a person or a thing, 27. 
 
 object of, 27. 
 
 and right reciprocal, 28. 
 
 pertains solely to persons, 28. 
 
 performance of, compulsory, 28. 
 
 how to be performed, 28. 
 
784 Reference] INDEX. [is to page. 
 
 DUTY. — continued. 
 
 in some sense the result of law, 29. 
 
 every act in performance of, &c., 29. 
 
 diiierent under different laws, 30. 
 
 law prescribes, 34. 
 
 impossibility of defining. 34. 
 
 charge of not paying, 210. 
 
 publication in discharge of, 300, 399 n. 
 DYER, words concerning, 243, 243 ra., 244. 
 
 EARTH, charge of stealing, 149, 149 n. 
 
 See Soil. 
 ECCLESIASTICAL courts, powers of, 7, 43 n. 
 establishment of, 42. 
 
 jurisdiction of, in cases of defamation, abolished, 7 n. 
 in Connecticut, 187 n. 
 law, part of English common law, 8 n. 
 no status in New York, 7 n. 
 EDITOR of newspaper, liability of, 95 ra., 105 n. 
 
 See Newspaper. 
 EFFIGY, is language expressed in signs, 2. 
 meaning of, 3. 
 publication of, 88, 118 n. 
 ELECTION, charge of bribery to secure, 194. 
 
 de melioribus damnis, 100. 
 ELECTIONEERING SQUIB, is it actionable, 467 n. 
 ELECTOR, privilege of, 439. 
 ELOPEMENT, charge of, planning, 209 n. 
 
 advertising wife's, 389. 
 EMBEZZLEMENT, what amounts to a charge of, 142, 148, 154 «., 260, 639 ft.- 
 
 charge of, not actionable, 154 re., 198, 423 n. 
 EMBRACERY, what amounts to a charge of, 142. 
 
 charge of, involves moral turpitude, 165. 
 EMOLUMENT, loss of, is special damage, 263. 
 EMPIRIC, judicial notice of meaning of, 120 n. 
 
 charge of being, is actionable, 251. 
 ^MP\^0\'E.K and employee. See Master; Servant; Overseer. 
 EMPLOYMENT, loss of, is special damage, 263, 263 n. 
 language to, concerning servant, 423 n. 
 See Condition ; Trade. 
 ENCHANTER, charge of being, not actionable, 196. 
 ENCIENTE, charge of being, 191. 
 See Pregnant. 
 ENGINEER, charge of drunkenness against, 199 n. 
 
 language concerning his goods, 281 n. 
 ENGLISH WORDS, court will inform itself of meaning of, 120 n. 
 
Refej-ence-\ INDEX. {is to page. 785 
 
 ENJOINING judgment in action for libel, because defendant insane, 441. 
 
 See Injunction. 
 EPITAPH, libel in form of, 210 n. 
 
 See Obituary Notice. 
 ETIQUETTE, charge of a breach of, not actionable, 216. 
 ETYMOLOGY, not controlling in construction, 122 n. 
 EVIDENCE of intention, 63 n., 64 n., 647 re., 657, 661 n., 671 »., 732. 
 to defeat privilege, 653. 
 
 and pleading should correspond, 609. 
 
 of the language published, 610. 
 
 for plaintiff, 626. 
 
 of appointment to office, 236 n. 
 
 of being duly licensed, 227. 
 
 of publication of defamatory matter, 627, 627 n. 631. 
 
 that language concerned plaintiff, 629. 
 
 of language published, 631. 
 
 of placard, 633 n., 638. 
 
 of writing on a wall, 633 n. 
 
 of inscriptions on banners, 633 n. 
 
 as to innuendo, 576. 
 
 of witnesses as to meaning, 639, 640. 
 
 of handwriting, 638. 
 
 of defendant's liability, 633, 634 n. 
 
 of inducement, 643. 
 
 of colloquium, 643 n. 
 
 of inducement on the face of the libel, 644. 
 
 of plaintiff's occupation, 548, 644. 
 
 of special damage, 579. 
 
 •n aggravation of damages, 645, 649-660. 
 
 of plaintiff's reputation, 645, 671. 
 
 of malice, 63 n., 647, 647 n., 650, 653, 653 re., 732. 
 
 of malice, falsehood may be, 648. 
 
 of malice, when necessary to maintain action, 653 n. 
 
 of plaintiff's rank and condition in society to aggravate damages, 
 649. 
 
 of defendant's wealth, 652. 
 
 of current report that defendant had made charge against plaintiff, 
 
 653. 
 of plaintiff's distress of mind, 652. 
 
 of malice to aggravate damages or to defeat defense of privilege, 
 
 653- 
 of extent of circulation, 651, 651 re. 
 on assessment of damages, 495. 
 
 of other pubhcations by defendant to prove malice, 650 n., 653. 
 of admissions by defendant, 657. 
 of admissions on negotiation for compromise, 639 re. 
 of personal ill-will, 657, 657 n. 
 
 50 
 
y86 Sefertnce] INDEX. [is to page. 
 
 'EVlDZViCE.— continued. 
 
 of malice on the face of the libel, 658. 
 
 by expressions in excess of what the occasion requires, 424, BjfS, 
 
 733- 
 from interposing a justification which is not proved, 659. 
 
 by plaintiff to rebut defendant's evidence, 660. 
 for defendant, "661-^7. 
 
 to rebut malice, 663. 
 
 under general issue, 663. 
 
 of matter happening after commencement ■of actiOn,J|6s6, '657. 
 
 of meaning, 120 n., 502. 
 
 to sustain a plea of justification, 665, 667. 
 
 of plaintiff's reputation in mitigation, 669. 
 
 of plaintiff's general reputation, 670, 673. 
 
 of truth under general issue, 674. 
 
 of truth, or tending to prove the truth of the matter publa^bed, in mit- 
 igation, 676. 
 
 of acts of plaintiff, inducing a belief of the truth Jof the charge com- 
 plained of, 676. 
 
 of general reports or suspicion of plaintiff's guilt, 678. 
 
 of plaintiff 's standing and condition in society in mitigailHOii, 679. 
 
 of intention, 63 n., 64 n., 647 n., 657, 66iJ»., 671 «., 732. 
 
 of intoxication, 667 n. 
 
 of a series of publications, to reduce damages, 506 n. 
 
 of defendant's declaration in mitigation, 674. 
 
 of defendant's reputation, 686 n. 
 
 of heat and passion in mitigation, 681. 
 
 of prior publications of plaintiff in mitigation, 682. 
 
 of controversies between plaintiff and defendant in mitigation, 683. 
 
 of defendant's poverty not admissible in mitigation, ^Ss. 
 
 what not receivable in mitigation, 684. 
 
 of loss of customers, 267 n., 581, 748. 
 
 of facts alleged in the defainatory matter, 539 n,, 544. 
 
 of reason for refusing to fulfill contract, 273 n. 
 
 in reply, 660, 660 n. 
 
 secondary, of publication, 633, 633 n. 
 
 Of not being influenced by the publication, 275 n. 
 
 anonymous letter received in, 405. 
 
 See Mitigation; Repetition ;;^ Variance. 
 EVIL inclinations, charge of, 173. 
 
 EXAMINATION of party as a witness, 485, 486, 635 n. 
 EXCESS, evidence of malice, 424, 658, 733. 
 EXCISE duties, charge of not paying, 210. 
 
 See Board of Excise. 
 EXCOMMUNICATED, charge of having been, is actionable, 195, 195 »., 
 199 n., 208, 209. 
 report that church member had been, 369. 
 
Rtfirence^ INDKX. [is to pagt. ^8^ 
 
 EXCUSE. See Legal Excuse. 
 EXECUTION in action for slander or libel, 481. 
 EXECUTOR, continuation of actions of slander or libel by S^i 
 EXEMPLARY DAMAGES, when allowed. 476 «., 498. 516, 5.6 »., 520 »., 
 521 n. 
 
 in action for slander of title, 293. 
 
 against corporation, 476 n. 
 EXHIBITION and exhibitor, language concerning, 452 n., 457. 
 EX PARTE AFFIDAVITS, publication of, not privileged,»364'n.,'748. 
 
 protected by New York statute, 351 ». 
 EX PARTE PROCEEDINGS, report of, how far privileged, 359,-364 n. 
 EXPERIENCE, charge of want of, 250 n., 253. 
 EXPLANATION of meaning of language, 120 n. 
 
 in mitigation, 680 n. 
 EXPOSURE 0/ the person, charge of, 194. 
 
 involves mora) turpitude, 165. 
 
 See Indecent Exposure. 
 EXTENT of publication, 651, 651 v. 
 EXTORTING MONEY, charge of, 211. 
 EXTORTION, attempt at, through the mail, 152 n. 
 EXTORTIONER, charge of being an, 248. 
 EXTRA JUDICIALLY, seeking redress, 374. 
 
 FACT and opinion, supposed distinction between, 175 «., 467. 
 
 existence of mind is a matter of, 63 re. 
 FAILURE of proof , of justification, 315. 
 FAIR COMMENT, defense of, 590 re. 
 
 form of plea of, 591 n. 
 
 what is not, 462 n. 
 
 See Criticism. 
 FAIR REPORT, what is meant by, 356. 
 
 question for jury, 358, 358 n. 
 
 when not privileged, 345 re. 
 FALLING SICKNESS, charge of having, doubtful if actionable, 200. 
 FALSE, charging a judge with being, is actionable, 256. 
 
 See Falsity. 
 FALSE BOOKS, charge of keeping, 234. 
 
 mean false debt books, 234 n. 
 
 charge of keeping, implies they were knowingly so kept, 234 re. 
 FALSE HEIR, charge of producing, held actionable, 194. 
 FALSEHOOD, charge of, is actionable, 208, 212, 241. 
 
 justifying charge of, 317. 
 
 See Falsity; Untruthfulness. 
 FALSE IMPRISONMENT and malicious prosecution, distinguished, 702. 
 
 and slander, may be joined, 583. 
 
 recovery in action for, no bar to action for malicious prosecution, 703 ». 
 
 and malicious prosecution in one action, 739. 
 
788 Reference^ INDEX. \is to fage. 
 
 FALSE SWEARING, charge of, actionable in Arkansas, Illinois and Missis- 
 sippi, 161, 185 n. 
 
 charge of, not actionable, 146. 
 
 charge of, actionable, 185. 
 
 charge of, is actionable if in writing, 209. 
 
 complaint for, 550, 
 
 justifying charge of, 323 n., 600. 
 
 See Foresworn ; Perjury. 
 FALSE WEIGHTS, charge of using, 246. 
 FALSITY, how far necessary to constitute libel or slander, 59. 
 
 must it be alleged, 59. 
 
 if alleged cannot be traversed, 60 n. 
 
 evidence of, 60. 
 
 cannot be traversed, 60 n. 
 
 answer of privilege admits, 589 n. 
 
 evidence of malice, 400 n., 425, 439, 648, 
 See Falsehood. 
 FAME, meaning of, 65. 
 
 FAMILY WAY, charge of being in the, 191. 
 FARMER, charge of keeping false books, when actionable, 234. 
 
 words concerning, 234, 243 n. 
 FAT, meaning pregnant, 123 n. 
 FATHER. See Parent. 
 
 FAWNING SYCOPHANT, charge of being a, 259. 
 FEELINGS, how far law gives remedy for outrage of, 39, 39 n., 271. 
 
 when may be considered, ,271. 
 
 injury to may be aggravation, 271 n. 
 not special damage, 271. 
 FELLOW. See Miserable Fellow. 
 FELON, charge of being, is actionable, 207 n. 
 
 not justified by proving conviction, 323 n. 
 See Convicted Felon. 
 FELON EDITOR, justification of charge of being, 323 n. 
 FELONY, what does not amount to a charge of, 174 »., 239 n. 
 
 charge of being guilty of, actionable, 193. 
 
 the word counterfeit imports, 193 n. 
 
 charge of concealing, actionable, 167 n., 194. 
 FEMALE, charge against, of incontinency, when actionable, 160, 188, 265. 
 
 charge of being enciente, 191. 
 
 charging with having had a child, and made away with it, 190 n. 
 
 with being a bad character, actionable, 191 n. 
 
 charging with fornication, when actionable, 161, 190 »., 191 %., 209 n. 
 
 charging with taking medicines to produce abortion, is actionable, 191, 
 192. 
 
 charging sexual intercourse with a dog, 124, 124 »., 192. 
 
 charging with going to goose-house, 192. 
 
 charge of insulting, 209. 
 
 k, - - 
 
Rejerence\ INDEX. {is to page. 789 
 
 T'EMKLE..— continued. 
 
 charging with drunkenness, actionable, 199 n. 
 
 may be arrested in action for slander or libel, 481. 
 
 argument of demurrer by, 2,16 n. 
 
 See Hermaphrodite; Unmarried^Woman ; Married 
 Woman; Woman. 
 FEME SOLE, charge against chastity of, when actionable, 161, 190, 265. 
 
 See Special Damage; Unmarried_,Woman. 
 FICTIONS, how they affect the law, 47, 48. 
 
 FICTITIOUS NAMES, use of, to conceal defamation, 115 71. ,'119 n. 
 FIELD, DAVID DUDLEY, on newspapers, 445 n. 
 FIGURING in squatter riots, charge of, 135. 
 FILE OF BILLS, charge of stealing, 182 n. 
 FINED, publishing that plaintiff had been, 210. 
 FIRE COMPANY, unincorporated, cannot maintain an action for libel, 115 n. 
 
 See Corporation. 
 FIRE DEPARTMENT, charge of drunkenness against engineer of, 199 n. 
 FIRE MARSHAL, memorial to, privileged, 378. 
 FIRING guns, i n. 
 FIX, meaning of, 123 n., 191 n. 
 FLORIDA, what language is actionable in, 161. 
 FOAMETH, not actionable, ^er se, 205 n. 
 FOOD. See Tainted Food. 
 FOOLS, tacitly exempted out of all law, 440, 
 FOR and AND, distinction between, 1 58. 
 FOREIGN CORPORATION, can it sue for libel, 470 n. 
 
 See Corporation. 
 FOREIGN LANGUAGE, publication in, 84. 
 FOREIGN STATE, charge of committing crime in, is actionable, 169. 
 
 action for publication in, 91 n. 
 
 jurisdiction of torts committed in, 91 n. 
 FORFEITURE of recognizance, cannot be effected by words, 2 n. 
 FORGERY, meaning of the term, 143. 
 
 charge of, actionable, 135, 178. 
 
 what does not amount to charge of, 135, 219. 
 
 justifying charge of, 315, 604 n. 
 FORGING ROGUE, actionable, 248. 
 FORMER PUBLICATION, by another, 302 re. 
 
 See Repetition. 
 FORMER RECOVERY, defense of, 443. 
 
 defense of, must be specially pleaded, 448, 665. 
 
 in mitigation, 687, 687 n. 
 
 when not a bar, 230. 
 
 in slander, does not affect action for malicious prosecution, 443. 
 See Second Action. 
 
790 Reference] INDEX. [is to page. 
 
 FORNICATION, what amounts to a charge of, 143. 
 
 charge of, actionable in certain States, 161, 189 n., 195. 
 
 charge of, not actionable, 196. 
 
 justifying charge of, 319, 321. 
 
 involves moral turpitude, 195 n. 
 FORSWORN, charge of being, not actionable, 146, 170 n., 184, 185. 
 
 actionable in Arkansas and Mississippi, 185 n. 
 FOX'S LIBEL ACT, effect of, 21 n. 
 FRACAS. See Gambling Fracas. 
 FRAUD, charge of, actionable, 211, 214, 258. 
 FREEDMAN, Mr. Justice, on the rights and duties of newspaper editors, 
 
 &c., 44; n. 
 FREEDOM 0/ speech, in legislative bodies, 325, 445 n. 
 
 of the press, 444. 
 
 constitutional provision to secure, 445 n. 
 FREE MASON, charge of being, held actionable, 264 re. 
 
 proceedings in lodge of, 369 n. 
 FREE NEGRO, charge of being, 197, 255 n. 
 FRENCH POX, charge of having, 200. 
 FRIVOLOUS denial of malice, 587 n. 
 
 FROZEN SNAKE, judicial notice of meaning of, 120 n., 137 n. 
 FRUIT, taking, in Pennsylvania, 183. 
 
 FUCK, an English word, and meaning known without an innuendo, 120 n. 
 FUDGE, prefixed to a newspaper article, effect of, 358, 505. 
 FUGITIVE from jusUce. requisition for arrest of, is privileged, 335 n. 
 FURZE, charge of stealing, 180 re, 
 
 presumed to be attached to the soil, 180 n. 
 
 GALLOWS, speech from the, not privileged, 366 n. 
 GAMBLING FRACAS, judicial notice of meaning of, 120 n. 
 
 charge of being engaged in, not actionable, 219. 
 GAMBLING HELL or ^/air^, charge of keeping, 194. 
 GAME DESTROYER, charge of being a. 217. 
 GAME KEEPER, language concerning, 398. 
 GAOL, charge of being in, actionable, 169. 
 
 a public court, 365. 
 GARDENER, language concerning, 435. 
 GAS COMPANY. See Clerk. 
 GENERAL DENIAL, effect of, 562, 587, 664 n. 
 
 what amounts to, 586 n., 587 n. 
 
 and justification may be pleaded together, 586, 591. 
 
 and mitigation, 604. 
 
 See General Issue. 
 GENERAL ISSUE, what it put in issue, 562. 
 
 what it admits, 588 n. 
 
 no longer admissible, 587 n. 
 
Reference\ INDEX. {is to page. 79I 
 
 GENERAL ISSVE.— continued. 
 
 admits character in which plaintiff sues, 645 n. 
 does not admit colloquium, 643 n. 
 evidence under, 307 n., 663, 669, 673 n., 674. 
 See General Denial. 
 GENERAL REPUTATION, proof of, 673. 
 GENERAL SUSPICION, in mitigation, 679. 
 GENERAL VERDICT, in action for libel, 448 n., 510. 
 plaintiff is entitled to, 602 n. 
 See Verdict. 
 GEORGIA, what language is actionable in, 160. 
 
 statute defining libel in, 20 n. 
 GESTURES, included in effigy, 3. 
 
 evidence of meaning of, 640 n. 
 GIN HOUSE, charge of burning, 178 n. 
 
 GIST OF ACTION for slander and libel, 37, 45, 50, 204 »., 264 ». 
 GOLDSMITH, words concerning, 246. 
 GONORRHCE A, charge of having, is actionable, 200. 
 GOOD FAITH, meaning of the term, 279. 
 right to publish in, 395. 
 belief the only evidence of, 396 n. 
 may defend oh character of acts, 468. 
 jury to judge of, 514, 514 n. 
 GOOD HUMOR of defendant, no mitigation, 685. 
 GOOD MOTIVE, no excuse, 300, 323 n. 
 GOODS, reflections on, 241 n., 281 n. 
 
 charge of adulterating, 200, 206, 246. 
 See Things. 
 GOOSE HOUSE, no judicial knowledge that it means brothel, 120 n. 
 
 charging female with visiting, not actionable, 192. 
 GOVERNESS, language concemijig, 433. 
 GOVERNOR, report by, is privileged, 350. 
 
 communication to, is privileged, 350 n., 380. 
 See Lieutenant Governor. 
 GRAMMATICAL CONSTRUCTION not always followed, 119, 119 n. 
 GRAND JUROR, language by, when privileged, 348 n. 
 GRAND JURY, report of, is privileged, 348. 
 
 presentment to, is privileged, 335 n., 348. 
 report of proceedings before, when privileged, 351 n., 366. 
 reflections upon, 362 n. 
 See Juror; Jury. 
 GRATUITOUS HOSPITALITY, loss of, is special damage, 263, 263 n. 
 GRATUITY, loss of, is special damage, 264 n., 270 n. 
 GRAZIER, words concerning, 243 n. 
 GREATER the truth, the greater the libel, 306 n. 
 GROSS IGNORANCE, charge of, 253. 
 See Ignorance. 
 
7g2 Reference^ INDEX. \}s to page, 
 
 GROSS MISCONDUCT, charge of, 209. 
 
 GUARDIAN, petition for appointment of, privileged, 336 n. 
 
 for infant, 530 ra. 
 GUILTY, import of the term, 146. 
 
 of conduct unfit for publication, not actionable, 174 n. 
 
 supposing to be, not actionable, 175. 
 GULLING THE PUBLIC, charge of, 461 n. 
 GUNS, firing, i n. 
 
 HABITUAL DRUNKARD, charge of being, 199 re., 253 n. 
 HANDBILL offering reward, when privileged, 412. 
 HANDS, clapping, i n. 
 HANDWRITING, evidence of, 638, 639. 
 HANGING, charge of offense punishable by, 174. 
 HARBORING NEGROES, charge of, 198. 
 HARDSHIPS, the law cannot redress, 30 n. 
 HEALER of felons, meaning of, 123 n. 
 
 HEARERS, effect of their understanding of the language, n6 »., 12411., 
 125 n., 129. 
 
 publisher responsible for their construction, 129. 
 HEARSAY is probable ground for belief, 396 n. 
 HEAT and passion, in mitigation, 681, 681 ra. 
 HEIR presumpiive, words concerning, 230. 
 
 See False Heir. 
 HERETIC, not actionable, 197 n. 
 
 HERMAPHRODITE, charge of being, 199, 240, 241 n., 266 n. 
 HIEROGLYPHICS, defamation by means of, 118 n. 
 HIGHWAYMAN, charge of being, not actionable by reason of context, 179 n. 
 
 report of speech of, not privileged, 366 n. 
 HISSING, at theatre, 268 n., 465 n. 
 HOG, charge of being a, 171 n., 207. 
 HOG-STEALING, charge of, ijon. 
 
 justifying charge of, 319. 
 HOG-THIEF, charge of being, is actionable, 180, 193. 
 HOMO INFAMATUS, disability of, 207 n. 
 HONEST LAWYER, actionable, when used ironically, 119 n. 
 HONOR, injury to, 26 n. 
 
 means reputation, 26 n. 
 HONORARY OFFICE, words of one in, 227. 
 HOOKED, court cannot take judicial notice of its meaning, 120 n. 
 HOOTING, I n. 
 
 HOP-POLES, charge of stealing, 149. 
 HORSE, charge of killing, 193, 193 n. 
 
 charge of cutting tail off, 198. 
 
 plaintiff's, language concerning, 293 n. 
 
Reference\ INDEX. \is to page. 793, 
 
 HORSE-STEALER, charge of being a, 311 n. 
 
 justification of charge of being, 311 ». 
 
 I think he is a, not actionable, 175. 
 HORSE-STEALING, charge of, 358. 
 HORSE-THIEF, what amounts to a charge of being, 153. 
 
 charge of being thought no more of than a horse-thief, is actionable, 
 I S3, 208. 
 HOSPITALITY, loss of, is special damage, 263, 263 n. 
 HOTEL KEEPER. See Inn-keeper. 
 HOUSE of ill-fame., meaning of the term, 140 n. 
 HOUSE of Lords. See LORDS. 
 HOUSE PAINTER, words of, 24S n. 
 
 See Painter. 
 HUSBAND, loss of, is special damage, 263. 
 
 suits by, for libel and slander, 271 n., 532, 533. 
 
 advertising that wife eloped and that he not responsible for her debts, 
 
 389- 
 and wife, publication by, 99. 
 
 cannot sue jointly for slander, 99 n. 
 may sue, after recovery by husband, 443. 
 as parties, 99 re., 535- 
 defense to action by, 534. 
 
 joinder of causes of action, in action by, 533, 533 n. 
 liable at common law for tort of wife, 99 n. 
 by statute, not liable for tort of wife, 532 n., 535 n. 
 See Married Woman ; Suicide. 
 HYPOCRITE, charge of being, is actionable, 207. 
 
 he is no hypocrite, actionable, 119 re. 
 HYPOTHETICAL charge, 184 n. 
 
 defense, not allowed, 590. 
 
 ICELAND, actionable language in, 160 n. 
 ICELANDERS, their horror of libel, 12 n. 
 IDENTITY of plaintiff, how proved, 113 re. 
 
 presumed from identity of name, 113 ra., 629. 
 IGNORANCE, charge of, when actionable, 231, 250, 253, 453 n. 
 what amounts to a charge of, 252 n. 
 
 See Gross Ignorance. 
 ILLEGAL ACTS, are they special damage, 271-274. 
 \\AS£.GK\ATY of occupation, when a defense, 226, 227, 534 n. 
 must be pleaded. 226 ra., 665. 
 
 See Unlawful. 
 ILLEGITIMACY, charge of, 208, 209. 
 
 See Bastard. 
 ILL-FAME. See House of Ill-fame. 
 ILLICIT intercourse, charge of, 143 «• 
 
 See Fornication. 
 
794 Reference] INDEX. [w topage^ 
 
 ILLINOIS, what language is actionable in, by statute, l6i, 185 n. 
 
 child under ten years of age cannot be punished for larceny iiBi, 171 n. 
 
 calling a woman whore is actionable in, 189 n. 
 
 statutory definition of libel in, 20 ». 
 ILL-WILL. See Malice. 
 IMMATERIAL allegations in complaint, 543. 
 IMP of the devil charge of being, 208. 
 IMPOSSIBILITY of charge being true, 171 n., 124. 
 IMPOSTOR, charge of being, is actionable, 251 n. 
 
 what does not amount to a charge of being, 217. 
 IMPOSTURE, charge of living by, not actionable, 171. 
 IMPRISONMENT, language may amount to, 3 n. 
 INCAPACITY, charge of, 453 n. 
 INCEST, imputation of, when actionable, 161, 171, 254. 
 
 charge of, not actionable, 171. 
 
 what is not a justification of a charge of, 313 n. 
 
 what language does not impute, 131. 
 impute, 135 71. 
 INCLINATION, charge of, not actionable, 173. 
 INCONTINENCE, charge of, when actionable, 161, 196, 228 »., 240. 
 
 against clerk in gas company, 240, 
 seldom made in coarse language, 1 29 n. 
 See Unchastity. 
 INCONVENIENCE is special damage, 263. 
 INDECENT exposure of person, charge of, involves moral turpitude^ 165. 
 
 charge of, 194. 
 
 exposure of immoral book, 203 n. 
 
 exposure of person, charge of, is actionable, 194. 
 See Obscene. 
 INDEMNITY, none against consequences of wrongful act, 536 n. 
 
 if an aggravating circumstance, 651 n. 
 INDIANA, what language is actionable in, 161, 170 n., 189 »., 191 »., 19.5 )». 
 
 action for slander in, 92 n. 
 
 mitigation in, 606 n. 
 
 amendment in, 609 «. 
 INDIANS, charge of being engaged in catching, 210. 
 INDICTABLE OFFENSES, charge of committing, when actionable, 165. 
 INDICTMENT for libel, 6. 
 
 does not lie for slander, 6. 
 INDIRECT charge actionable, 173 re., 180. 
 INDUCEMENT, office of, and when necessary, 538, 539 n. 
 
 of ironical language, 538 n. 
 
 to show meaning, not necessary in England, 539. 
 
 to show application to plaintiff, not necessary in New York, 540. 
 acquired sense of words, 120 n. 
 
 in what part of complaint to be inserted, 541. 
 
 where there are several counts, 541. 
 
Reference\ INDEX. \is to pagt. 795 
 
 INDUCEMENT.— <ro«//«af^. 
 
 to be stated in a traversable form, 542. 
 
 matter of, may be put in issue, 542, 543, 587. 
 
 not denied, taken as truth, 587. 
 
 when superfluous, 543, 544. 
 
 of showing application to plaintiff, 546. 
 
 plaintiff's occupation, 547. 
 too great minuteness in, to be avoided, 548. 
 of plaintiff being duly qualified, 549. 
 where the charge is of false swearing, 550. 
 when it does not occasion a variance, 613. 
 may be denied, 588. 
 must be proved, 643 n., 644. 
 how proved, 614, 643. 
 libel is evidence of, 644. 
 
 See Averment; Colloquium. 
 INEVITABLE ACCIDENT, no action for, 53 n. 
 INFAMOUS CRIME, what is, 167, 167 re., 225. 
 INFAMOUS PUNISHMENT, what is, 167, 167 n. 
 INFAMOUS VERDICT, held actionable, 258 re. 
 INFANCY, not a defense to an action for slander or libel, 441. 
 INFANT, liable to arrest on execution in an action for slander or libel, 481, 
 482 n. 
 action for accusing of theft, 171 re. 
 not liable for nuisance, 441 w. 
 not liable for malicious prosecution, when, 735 n. 
 why exempt from liability, 70 re. 
 charging that one in trade is an, 232 re. 
 may sue by guardian, 530 n. 
 
 under ten years of age, cannot be guilty of larceny in Illinois, 171 re. 
 See Child. 
 INFERENCE. See Presumption. 
 INFORMATION, giving, when privileged, 395. 
 INFORMER, charge of being, is actionable, 207 re., 748. 
 INFRACTING a patent, charge of, 208. 
 INGRATITUDE, charge of, actionable, 137 «., 220. 
 INITIALS of name, description of party by, 116 n., 119 n. 
 INJUNCTION to restrain publication of libel not ordinarily allowed, 687. 
 to restrain issue of circular, 387 re., 693. 
 to restrain advertisement, 688. 
 constitutional provision against, 689. 
 in England, under judicature and patents acts, 691 . 
 in Texas, 689 re. 
 against publication which amounts to contempt of court, 359, 364 n., 
 
 695. 
 against verdict, 72 n. 
 
796 Reference\ INDEX. \is to page. 
 
 INJUNCTION— <:o«/z««^^. 
 
 against rendition of judgment in an action of slander, on account of 
 
 insanity of defendant, 441. 
 to secrecy, 639, 680 n. 
 
 See ENJOINING; Prohibition. 
 
 INJURY, defined, 30 n. 
 
 See Personal Injury. 
 INNKEEPER, words concerning, 211, 242, 243 n., 248 n., 
 
 is a trader, 243 n. 
 INNOCENCE, allegation of, immaterial, 543. 
 INNOCENT WORDS, on their face may be shown to be actionable, 1 10 n. 
 
 INNUENDO, what it is, in n., 564. 
 
 when it cannot apply language to the plaintiff, 114 w., 553 «., 576, 578. 
 
 when not necessary, 120 n. 
 
 not admitted by not answering, 495. 
 
 to point meaning, 133, 133 n., 565, 572, 751. 
 
 unwarranted arrest of judgment for, 138, 568 n. 
 new trial for, 527, 573 n. 
 
 when it may be rejected, 574, 579. 
 
 effect of, after verdict, 138 n. See Verdict. 
 
 justifying, 323, 592 ra., 600, 600 n. 
 
 not admitted by demurrer, 607. 
 
 evidence to support, 576, 640 n. 
 
 cannot extend meaning of words, 566, 568. 
 
 court is to determine if authorized, 576. 
 
 instance of use of, 246 n. 
 
 plaintiff bound by, 567, 573, 
 
 not allowed to be stricken out, 624. 
 
 held proper, 574. 
 
 held unwarranted, 217, 218, 575. 
 
 demurrer because not warranted, 576 n. 
 
 may justify a demurrer, 576 re., 579. 
 See Complaint. 
 INQUIRY, answer to, when privileged, 403. 
 
 writ of, to assess damages, 495. 
 INSANITY, charge of, is actionable, 200, 209, 241. 
 
 is a defense to an action for slander or libel, 72 n., 121 n., 440. 
 
 in mitigation, 681 n. 
 
 complaint for charge of, need not allege special damage, 579 n. 
 
 judgment enjoined on account of defendant's, 441. 
 
 why it exempts from liability, 70 n. 
 See Crazy. 
 INSOLVENCY, charge of, when actionable, 242. 
 INSOLVENT, charge of being, not actionable, 196. 
 
 See Debts. 
 INSERTING the wedge. See False Weight. 
 
Reference\ INDEX. \is to page. ygj 
 
 INSPECTION of documents, when ordered, 484, 488, 632. 
 
 See Photographs. 
 INSPECTOR OF CHARITIES, report of, when privileged, 366 n., 461 n. 
 INSTRUCTIONS to jury, 504, 512, 533. 
 INSULT, words amounting to, actionable in Mississippi, Virginia and Georgia, 
 
 160. 
 INSULTING FEMALES, charge of, is actionable, 209. 
 INSULTING PASSENGERS, charge of, 209 n. 
 INSURANCE, refusal of, is special damage, 263 n. 
 INSURANCE COMPANY, information to president of, 401 a. 
 
 language concerning, 473. 
 INTEGRITY, charge of a want of, 248. 
 INTENT, kinds of, 63. 
 
 one meaning of is will, 76. 
 meaning of, 65, 65 n. 
 the essence of crime, 53 »., 70, 70 n. 
 if charged, must be justified, 324 n. 
 proof of, 63 «., 64 n., 647 n., 657, 661 n., 671 n., 732. 
 See Intention ; Malice ; Motive. 
 INTENTION, presumption of, 55, 55 ?i. 
 how judged of, 64 n. 
 what is, 61, 62, 63. 
 kinds of, 63., 
 
 is a mental conception, 63. 
 is a fact, 63, 63 n. 
 in doing a lawful act, 72 n. 
 affects the question of damages, 75 n., ^T. 
 bad, is malice, 64. 
 meaning of, 65. 
 
 evidence of, 63 n., 64 «., 647 n., 657, 661 ra., 671 «., 732 n. 
 how far necessary to constitute a wrong, 55 ?i., 103. 
 justifying, 324 n. 
 
 charge of, when not actionable, 173. 
 when not to be left to jury, 515, 516. 
 question for jury, 514, 648 n. 
 
 See Intent; Malice; Motive. 
 INTENTIONAL ACTS, liability for, 53 n. 
 INTEREST, defense of, 388. 
 INTERPRETATION, when not allowed, ilin. 
 
 See Construction. 
 INTERPRETER, privilege of, 345 n. 
 INTERROGATION, charge of offense by means of, 175. 
 INTERROGATORIES, to defendant, when allowed, 485, 486, 487, 634 n. 
 to witness, 634 n. 
 
 defamatory matter in, privileged, 336 n. 
 INTOXICATION, no defense, 441 n. 
 
 charging a Lieutenant-Governor with, 258. 
 
ygS Reference\ INDEX. [«> to page. 
 
 \WiQ>y.\ZK1\Qi^.— continued. 
 
 what amounts to charge of, 466 n. 
 
 charge of, how proved, 667 n. 
 
 See Drunkenness. 
 
 INVOLUNTARY ACT, what is, 61. 
 
 no responsibility for, 53, 53 n., loi «., 103 n. 
 
 is privileged, 102. 
 
 immaterial if voluntary or involuntary, 397 ». 
 See Voluntary. 
 IOWA, calling a woman whore is actionable in, 190 ti. 
 
 statute defining libel, 20 w., 161 n. 
 IRELAND, charge of murder in, 170 n. 
 IRONICAL WORDS, now., 11971. 
 
 defense to, 311. 
 
 to be explained by inducement, 538 n. 
 
 jury to determine what are, 502. 
 
 no thief, 180 n. 
 
 no hypocrite, 119 n. 
 
 honest lawyer, 119 «. 
 
 sober moments, 119 n. 
 ISSUES, the jury try, 57 «. 
 ITCH, charge of having, not actionable, 200. 
 
 charge of having, is actionable if in writing, 208. 
 
 JACOBITE, charge of being a, when actionable, 173. 
 JAIL, held to be a public court, 365. 
 
 charge of being in, 169. 
 See Gaol. 
 JEOPARDY. See Danger of Punishment. 
 JEST, as a defense to an action of slander or libel, 440 w., 502 n. 
 JESUITS, sanctioning killing, for slander, 40 n. 
 JEWELER, words concerning, 246. 
 JEZEBEL, judicial notice of meaning of, 120 n. 
 JOINDER of causes of action, 583, 583 re., 585 ft. 
 
 of causes of action in England, 535 n. 
 
 of counts in action by husband, 534 n. 
 
 of parties. See Parties. 
 JOINT ACTION, when maintainable, 100, 229, 536. 
 
 none for slander, 99 n. 
 
 malicious prosecution, 737. 
 JOINT PUBLICATION of oral language, cannot be, 98. 
 
 of written language, 98. 
 
 action for, 99. 
 JOINT STOCK COMPANY^ action by, 472, 473. 
 
 against, 475. 
 JOKE. See Jest. 
 
Reference] INDEX. [is to .page. 7QA 
 
 JOURNALIST. See Libelous Journals; Newspaper. 
 JUDAS, charging a lawyer with being, 250. 
 JUDGE, words concerning, ?56. 
 
 not liable in slander or libel, 34.6. 
 
 private letter to, not privileged, 334 n. 
 
 may be a contempt, 334 n. 
 
 may refuse to try a cause, 497. 
 
 new trial before the judge who presided at the first trial, 407. 
 
 to say of unambiguous language if it is actionable, per se, 509, 639. 
 
 charge to jury, 510. 
 
 on uncontroverted facts to decide if publication is privileged, 512. 
 See Court. 
 JUDGMENT, arres/ of. See Arrest of Judgment. 
 
 record, publication of, 351 n. 
 
 transcript., publication of, 351 n. 
 
 offer to allow, 527. 
 
 how taken, where no answer interposed, 495. 
 JUDICIAL NOTICE of meaning of words, &c., 120 ». 
 of commercial agency, 417. 
 
 officer, liability of, 350. 
 
 acting without jurisdiction, 351. 
 See Judge; Magistrate. 
 JUDICIAL PROCEEDINGS, privilege of, 332, 333. 
 
 reports of, are privileged, 351. 
 
 restraining publication of reports of, 359 n., 365 »., -695. 
 
 to be conducted openly, 352. 
 
 law suit implies a, 187 n. 
 
 arbitration is, also proceeding de lunatico, 187. 
 
 attorney's bill of costs is not, 335 n. 
 
 what words imply, 187 n. 
 
 includes every proceeding before a competent court or magistrate, 
 34071. 
 
 voluntary affidavit is not, 748. 
 
 acts done after termination of, 364 n. 
 JURISDICTION of torts committed abroad, 92 n. 
 
 of city court of New York, 481, 481 n. 
 JUROR, language concerning, 185 »., 258, 258 n. 
 
 withdrawing a, 528. 
 JURY to decide questions of fact, 56. 
 
 motive, 286 »., 503 71., 514, 648 »., 664 '«. 
 
 power of court over, 57 n. 
 
 to judge of meaning, 253 n., 502, 509 n. 
 
 province of, 502. 
 
 try the issues, not the cause, 57 n. 
 
 instructing as to effect of verdict On costs, 517, 517 »• ^ 
 
 what to guide them in deciding on meaning of words,* 117 n., 122 n., 
 126 n. 
 
800 Reference] INDEX. [«> to page. 
 
 JURY. — continued, 
 
 charge to, 510. 
 
 instructions to, as to damages, 516. 
 
 taking questions of fact from, 57 n. 
 
 to determine the meaning of words, 323 »., 502, 639. 
 
 to determine if the meaning ascribed by the innuendo is the true 
 
 meaning, 506. 
 to determine if language applies to plaintiff, 642 n. 
 to determine if language published of plaintifi in special capacity, 
 
 238 n. 
 to determine truth of the facts charged, 508. 
 to determine intent, 514, 647, 664 n. 
 what the judge may charge, 512. 
 trial by, origin of, 40 n. See Trial. 
 charge of packing, 146, 199. 
 
 See Questions for Jury ; Grand Jury ; Struck Jury. 
 JURYMAN, words concerning, 185 ra., 258, 258 n. 
 
 not liable for words spoken in the jury room, 348 n. 
 examination of, 717 n. 
 JUSTICE, meaning of, 146 n. 
 
 words concerning, 238, 256, 257 n. 
 
 certificate by, is privileged, 348 n. 
 
 courts of, to be held with open doors, 352. 
 
 administration of, a subject of criticism, 462. 
 
 OF THE PEACE, no jurisdiction of action for slander or libel, 481. 
 
 paying money to secure election of, involves moral turpitude, 
 164. 
 
 words concerning, 236, 238, 256 n. 
 
 what a sufficient description of, 550, 550 n. 
 
 not liable for defamatory matter in his ofificial certificate or 
 return, 348 re., 349. 
 
 liable for defamation, 349 n. 
 
 need not prove his appointment 236 n. 
 JUSTIFICATION, truth is, 59. 
 
 must be as broad, as the charge, and must justify the precise charge, 
 
 311,312, 592. 
 no such thing as a half-way justification, 312 ». 
 must be of the meaning, 313 n., 322 ra., 323. 
 of oneself, right to publish, 388. 
 of innuendo, 323, 323 ra., 324, 576 n.., 592, 600 n. 
 requisites of plea of, 321 n.., 322 n., 592, 600. 
 no inspection to prepare, 488. 
 withdrawing on trial, 501. 
 failing in part, 318, 602. 
 
 plea of, not sustained, when evidence of malice, 659. 
 plea of, construed against the pleader, 597 n. 
 how proved, 665. 
 
Reference\ INDEX, {is to page. 8oi 
 
 JUSTIFICATION.— fi>«^z««^^. 
 
 of divisible allegations, 300, 311. 
 
 need not go further than the charge, 319. 
 
 must extend to every part of the matter which could form a ground of 
 
 action, 311, 319, 320, 321 n. 
 of publication in black list, 318. 
 of intent, 324 n. 
 
 belief in truth, is not, 324, 324 n. 
 suspicion is not, 325 n. 
 rumor is not, 325 n. 
 110 bill of particulars of, 494. 
 of a charge of crime, 600. 
 
 of a charge of perjury, 315 n., 323, 599 n., 601, 601 n. 
 of a charge of forgery, 315, 602 n. 
 
 of the fact sufficient, without denying the innuendoes and epithets, 324 n . 
 motive, manner, and intention, immaterial to a, 324 n. 
 of intent necessary, where intent charged, 324 n. 
 must be of the sense imputed in the innuendo, 323. 
 of innuendo, 323, 600, 600 n. 
 
 plaintiff entitled to judgment for part not justified, 322 n. 
 by the occasion, 324 n. 
 some libels do not admit of, 295 n. 
 plea of, in action for malicious prosecution, 739. 
 must be of the sense imputed by the language, 130 n. 
 cannot defame in one sense and justify in another, 130 n. 
 error of time in, 600 n. 
 may be evidence of malice, 659. 
 
 See Defense; Perjury; Truth; Plea; Self-Defense. 
 
 KANSAS, charging stealing a dog actionable in, 149 n. 
 KENTUCKY, calling a woman whore is actionable in, 189 n., 191 n. 
 
 charging a man with fornication in, is actionable, 195 n. 
 KEY, charge of stealing, 183, 183 n. 
 KIDNAPPING, charge of, is actionable, 208. 
 KILL, KILLED, KILLING, meaning of the terms, 144. 
 KILLING, charge of, actionable, 179. 
 
 a horse, charge of, actionable, 193, 193 n. See Cow. 
 
 and salting a hog, charge of, not actionable, 198. 
 
 charging a physician with killing a patient with physic not actionable, 
 
 . 251 ; contra, 180, 180 n. 
 he killed her by his bad conduct, 199. 
 KNAVE, import of the termi 122 n., 145, 193 n. 
 charge of being, is actionable, 193, 207 n. 
 change in meaning of the term, 122 n. 
 
 See Rebellious Knave; Traitor Knave; Traitorous 
 Knave; Thievish Knave; Bankrupt Knave; 
 Pocky Knave; Bribing Knave; Bankruptcy 
 Knave; Leprous Knave. 
 51 
 
8o2 Seference] INDEX. [is to f age. 
 
 KNOWLEDGE of plaintiff, how it affects the meaning of language, 130, 
 130 n. 
 of plaintiff, when to be alleged, 131, 131 n. 
 of the hearer, its effects, 121 n., 131 n. 
 absence of, as an excuse, 103 n. 
 of hearers, its effect, 125 n. 
 See Scienter. 
 KNOWN, import of the term, 145. 
 
 LACEMAN, words concerning, 243 n. 
 
 LADY, demurrer argued by, 216 n. 
 
 LAMPOONER, defined, S n. 
 
 LANDLORD and tenant, communications between, how far privileged, 412. 
 
 law of, a subject for criticism, 468 n. 
 LAND-MARKS, charge of removal, involves moral turpitude, 164. 
 
 charge of removing, is actionable, 193. 
 LAND SPECULATOR, words concerning, 238 n. 
 LAND SURVEYOR, words concerning, 247. 
 
 LANGUAGE, formerly no action for, unless the words, if true, would endan- 
 ger life, 44 n. 
 
 joint publication of, 100. 
 
 construction of, 109, 116. 
 
 ambiguous or unambiguous, 109. 
 
 kinds of ambiguity of, no.. 
 
 ambiguous, as to whether it concerns a person or a thing, no, 113, 
 241, 241 n. 
 how construed, 129 re. 
 
 may give a right of action when it concerns one in trade, although 
 not actionable as applied to an individual as such, 1 1 5. 
 
 a means of effecting injury, 1. 
 
 ancient laws against offenses by, 37. 
 
 oral or written, i . 
 
 effect of, 2, 22. 
 
 coarseness of, in former times, 40 n. 
 
 is not a trespass, 3 re. 
 
 may amount to imprisonment and cruelty, 2 n. 
 
 can have no effect until published, 22. 
 
 must assume the form of propositions, 22. 
 
 must concern a person or a thing, 23. 
 
 concerning things, 278. 
 
 explanatory circumstances to be taken into account in construction of, 
 121 n. 
 
 effect of its publication must be direct or indirect, or both, 23. 
 
 direct effects of, 23. 
 
 effect of, the same whether oral or witten, 23. 
 
 must produce some effect, 24. 
 
Reference\ INDEX. [is to page. 803 
 
 LANGUAGE. — continued. 
 
 impossible to anticipate all the indirect effects of, 24. 
 
 affects the reputation, 24. 
 
 actionable /^r se, and language actionable by reason of special dam- 
 age, distinction between, 157, 261. 
 
 supposed origin of such distinction, 44. 
 
 effect of time on meaning of, 122, 122 n. 
 
 effect of extraneous circumstances upon meaning of, 123, 123 n. 
 
 what oral is actionable, 158, 159. 
 .written when actionable, 203. 
 
 written, actionable per se, 1 58, 203. 
 
 evidence of meaning of, 121 n. 
 
 jury to determine meaning of, 502, 509, 631 n., 639. 
 
 to be set forth in complaint, 559. 
 
 presumed to be false and malicious, 647. 
 
 evidence of facts alleged, 544, 644. 
 
 evidence of malice, 658. 
 
 affecting one in a special character, 239. 
 
 whether language affects a person or thing, how determined, 293. 
 
 See Actionable Language; Construction; Libel; 
 Meaning; Slander; Speech; Words; Writing. 
 LARCENY, what will amount to a charge of, 135, 136 n., 145, 181, 182 n. 
 
 in Illinois, child under ten years cannot be guilty of, 171 n. 
 
 charge of, actionable, 181. 
 
 justifying charge of, 672. 
 
 of goods of married woman, 137 n. 
 
 of soil, in New York, 183 n. 
 
 law does not presume, 55. 
 
 See Robbery; Stealing; Thief. 
 LAW BUSINESS, arises from difficulty of definition, 21 n. 
 LAW MAXIMS, not to be received as axioms, 71 n. 
 LAW of libel, what understood by, 8, 1 5. 
 denounced as vague, 9 n. 
 Lord Chief Justice Cockbum's views concerning, 330 n., 458 n. 
 
 ecclesiastical, part of English common law, 7 n. 
 no status in New York, 7 n. 
 LAW STUDENT, letter of, held privileged, 414. 
 LAWSUIT, implies a judicial proceeding, 187 n. 
 LAWYER, charge of drunkenness, 199 n. 
 
 and author, charge of being a crank, 209 n. 
 
 charge of being a shyster, 245 n. 
 
 See Attorney ; Counsellor. 
 LEATHER GUN, shooting out of, courts take notice of meaning of, 120 n. 
 
 charge of shooting out of, 207 n. 
 LEGAL EXCUSE, what is, 52, 295, 295 n. 
 
 distinction between, and defense, 53. 
 
 malice is absence of, 76, yj. 
 
8o4 Refennti\ INDEX, [is to page. 
 
 LEGAL PROCEEDINGS. See Judicial Proceedings. 
 LEGISLATIVE PROCEEDINGS, are privileged, 325. 
 
 supposed to be secret, 326. 
 
 when to be with open doors, 326. 
 
 publication of, how far privileged, 327. 
 
 publication of, unlawful, 326 n. 
 LEGISLATOR, privilege of, 326, 327, 329. 
 
 words of, 259. 
 
 See Member of Parliament. 
 LEGISLATURE, petition to, is privileged, 327 n. 
 LEPER, treatment of, 201. 
 
 See Social Leper. 
 LEPROSY, charge of having, is actionable, 200. 
 LEPROUS KNAVE, actionable, 200. 
 LETTER CARRIER, words of, 225. 
 LETTERS, confidential, not privileged, 384 n. 
 
 proof of publication of, 627. 
 
 enjoining publication of, 659 n. 
 
 post-marks on, 627. 
 
 charge of obtaining, 220 n. 
 
 See Breaking Open ; Private Letters ; Threatening 
 Letters. 
 LEWD, charging a judge with being, is actionable, 256I 
 
 adulterer, charging a Minister of the Gospel with being, 254 n. 
 LEWDNESS, charges of, seldom made in plain terms, 129 n. 
 LIABILITY, extent of, 53, 651 n. 
 
 of defendant, how proved, 639. 
 LIAR, what imports a charge of being, 146. 
 
 charge of being, not actionable, 196. 
 
 charge of being, actionable if in writing, 207, 207 n. 
 
 charge of being, against a merchant's clerk, actionable, 248. 
 
 charge of being, against a minister, actionable, 254 n. 
 
 charge of being, against a judge, actionable, 256 n. 
 
 charge of being, how justified, 596. 
 LIBEL, what it is, 4, 6, 21. 
 
 law of, vague and uncertain, 9. 
 
 ought to be considered a benevolent provision, 131 n. 
 gradually developed, 365 n. 
 
 requisites of, 58. 
 
 cannot be created out of nothing, 18 n. 
 
 not worth while to be learned on the subject of, 160 «. 
 
 action for often a dangerous experiment, 132 n. 
 
 action not maintainable for cost of printing, 534 n. 
 
 Icelander's horror of, 12 n. 
 
 Russian idea of, 12 ». 
 
 agreement not to, 30 n., 480 n. 
 
 a personal injury, 480. 
 
Reference^ INDEX. [is to fagt. 805 
 
 LIBEL. — continued. 
 
 formerly meant book, 14 n. 
 
 cause of action for, constitutes plaintiff a creditor, 531 n. 
 
 remedy for, 6, 
 
 dies with plaintiff, 530. 
 
 not assignable, 531. 
 not within actions for slanderous words, 159 n. 
 kinds of, 13 n. 
 and slander, distinction between, 11, 12 n. 
 
 proposal to assimilate, 44 n. 
 no definition of, 15?!. 
 attempts to define, 16, 17, 204 n. 
 statutory definitions of, 19 n. 
 
 uncertain when remedy by action for, was introduced, 37. 
 gist of action for, 37, 45, 50, 204 ra., 264 n. 
 publication of is not an infamous crime, 167 n. 
 charging being the author or publisher of, 207, 207 n. 
 consists of three acts, 58. 
 essential elements of, 58. 
 to constitute, language must be defamatory, 58. 
 
 must language be false, 59. 
 
 must the publication be malicious, 60. 
 in newspaper, statutory provisions as to, 448 n. 
 enjoining publication of, by iujunction, 687, 695. 
 agreement not to publish, 30 n., 480 n. 
 of one in special capacity, 221. 
 by corporation, 470. 
 no copyright in, 226 n., 694. 
 some it is impossible to justify, 295 n, 
 cannot show it benefitted plaintiff, 520, 
 reading to the jury, 680 n. 
 may contain intrinsic evidence of malice, 658. 
 
 See Slander of Title; Slander; Actionable Lan- 
 guage; Conspiracy; Action; Evidence. 
 
 LIBELER, who is, 5, S re, 
 
 and satirist, distinction between, 5 n. 
 
 oral charge of being, not actionable, 196. 
 
 charge of being, is actionable, 207. 
 
 could not take as devisee, nor make a will, 207 n. 
 LIBELLI, cards of the races so called, 16 n. 
 LIBELLUS, meaning of, 13 «• 
 LIBELOUS JOURNALIST, charge of being, is actionable, 207. 
 
 publications, not protected by law, 534 ». 
 
 LIBERTINE, charge of being a, 237 n. 
 
 LIBERTY of the press, 444. 
 
 See Newspaper. 
 
8o6 Seference] INDEX. [is to page. 
 
 LICENSE to trade, need not bp alleged, 226, 227. 
 
 want of, must be set up as a defense, 227. 
 LIE, charge of swearing, 188 n. 
 LIEN of attorney, not a ground for denying a new trial, 524 n. 
 
 on real property, improperly filing, 289. 
 LIEUTENANT GOVERNOR, words concerning, 258. 
 
 petition to, is privileged, 377. 
 LIFE INSURANCE COMPANY, language concerning, 473. 
 LIMAR, meaning of the term, 123 n. 
 LIME-BURNER, words concerning, 246. 
 LIMITATION, time of, 480. 
 
 See Statute of Limitation. 
 LIQUOR LAW. See Prohibitory. 
 LIS PENDENS. See Lien. 
 LITIGIOUS, charge of being, 215. 
 LIVERY-STABLE keeper, words of, 224 »., 240. 
 
 keeping, a business, 224 n. 
 LIVING PERSON, obituary notice of, 210. 
 
 See Epitaph. 
 LOATHING, charge of being an object of, 259. 
 
 LODGE of Odd Fellows, charges preferred to, not privileged, 378, 379 n. 
 LOGS, charge of stealing, 146 n., 183. 
 
 LOOSE CHARACTER, not equivalent to charge of fornication, 143. 
 LOOSE WOMAN, charge of being a, actionable, 191. 
 LORDS, lives of, not to be published, 326 n. 
 
 members of house of, cannot be guilty of conspiracy to libel, 325 », 
 
 committee of house of, is a public court, 366. 
 See Member of Parliament. 
 LOSS. See Special Damage. 
 LOUISIANA, rule as to actionable language in, 157. 
 
 client not Uable for acts of attorney, 105 n. 
 LOYALTY, charging want of, 207 n. 
 
 See Traitor. 
 LUES VENEREA. See Pox. 
 LUNATIC, liable in trespass, 440 n. 
 LUNATIC ASYLUM, charge of being fit for, 209. 
 LYING, justifying charge of, 313. 
 
 charge of, 209 re, 
 
 MADE AWAY WITH, does not impute larceny, 146. 
 MADMEN, tactitly exempted out of all law, 440. 
 
 why exempt, 70 n. 
 MAG AZINE puih'sker, language concerning, 457. 
 MAGISTRATE, lang^Jage concerning, 256 n. 
 
 report of proceedings before, privileged, 365, 365 n. 
 
 language by, how far privileged, 350. 
 
 criticism of proceedings before, 462. 
 
 See Justice; Judge; Judicial Officer. 
 
Xeferencel INDEX. [is to page. 807 
 
 MAIL, the U. S., charge of robbing, 181. 
 MAIL MATTER, libelous, &c., i's2 n. 
 MAINE, statutory definition of libel in, 20 n. 
 
 provision as to bill of particulars, 492. 
 
 repetition of slander in, 304. 
 MAINTAINER of suits, not actionable, 193 n. 
 , See Barrator. 
 
 MAINTENANCE, 332 n. 
 MALICE, is really bad intent, 64. 
 
 ill will is not, 732 n. 
 
 what is meant by, 60, 66 n. 
 
 nonsense concerning, 60 n. 
 
 denial of, when frivolous, 587 »., 588 n., 590 n. 
 
 meaning of, 60, 64, 66, 103 n. 
 
 division of, into malice in law, and malice in fact, 67, 68, 404. 
 
 how far necessary to constitute a wrong, 72, 73 n., 102, 103. 
 
 presumption of, 70 n., 410 n. 
 
 may be inferred from manner of oral charge, 416. 
 
 necessary to a cause of action concerning a thing, 283. 
 
 verdict for defendant for want of proof of, 102 n. 
 
 need not be alleged in complaint, 75 «., 558. 
 
 falsehood is evidence of, 400, 425, 439, 648. 
 
 is absence of legal excuse, 76, 77. 
 
 formerly meant cunning, 65 n. 
 
 demurrer to complaint admits, 280 n., 289 n., 299 n. 
 
 implied, 68. 
 
 proof of, 74 ra., 410 n., 421 n. 
 
 burden on plaintiff to show, where privilege proved, 299, 653, 653 «. 
 
 in report, takes away the privilege, 359. 
 
 an element of damage, 75 n., 77. 
 
 a question for the jury, 286 n., 503 n., 514, 639, 648 n., 664jn. 
 
 when evidence of, to be given, 69 n., 73 n., 75, 299, 647. 
 
 justification may be evidence of, 659, 659 n. 
 
 proof of, 647, 653. 
 
 on the face of the publication, 658. 
 
 evidence of, 397, 423, 424, 425. 
 
 in fact, may be inferred, 434 n. 
 
 See Intention ; Maliciously ; Malicious Prosecution. 
 MALICIOUS intent, a conclusion of law, 69 n. 
 
 mischief, charge of, actionable, 151 ra. 
 MALICIOUS PROSECUTION, what it is, and how it differs from slander 
 
 and libel, 330. 
 
 distinction between and action for arrest in a civil action, 702 n. 
 
 appeal from acquital suspends right to sue for, 709 
 
 no remedy for, in an action for slander or libel, 330. 
 
 action for not barred by recovery in slander or libel, 443 n. 
 
 recovery in action for is a bar to action for libel, 443. 
 
8o8 Reference] INDEX. [is to page. 
 
 MALICIOUS V'S.OSECUTIO^.— continued. 
 when maintainable, 330, 703, 704. 
 by corporation, 470, 470 n. 
 actions for, not favored, 700 re. 
 distinction between, and false imprisonment, 702. 
 facts which constitute a cause of action for, 703. 
 arrest necessary to cause of action for, 705. 
 what amounts to an arrest, 705 re. 
 malice and, want of probable cause must both exist, 730. 
 termination of prosecution, what is, 707, 707 n. 
 evidence of termination of prosecution, 709. 
 termination in favor of plaintiff to be shown, 709. 
 damages in, 699 n., 700 n. 
 what is reasonable and probable cause, 711 
 reasonable and probable cause does not turn on guilt or innocence, 
 
 719. 
 
 who to be defendant, 735. 
 
 is infant liable for, 735 re. 
 
 attorney's liability for, 735 n. 
 
 no joint action for, 737. 
 
 complaint for, what to allege, 737. 
 
 plea of not guilty in, 739. 
 
 plea of justification, 739. 
 
 advice of counsel as a defense, 718. 
 
 effect of recovery in, 443. 
 
 variance in action for, 616 n. 
 
 of civil action, 331 n. 
 
 See Reasonable and Probable Cause. 
 MALICIOUS TRESPASS, charge of committing, not actionable, i5o«., 
 171. 
 
 See Trespass. 
 MALICIOUSLY, meaning, 66 n. 
 
 wrongfully and injuriously not equivalent to, 75 re. 
 
 sometimes equivalent to scienter^ 66. 
 
 corporation may act, 475. 
 See Malice. 
 MALPRACTICE, charging physician with, 251 re. 
 MAN, how distinguished from other animals, 450 n. 
 
 accountable for uprightness of his views, 648 re. 
 See Homo Infamatus ; Woman. 
 MAN FRIDAY, judicial notice of the meaning of the term, 120 re. 
 
 not actionable words, 123 n. 
 MANSLAUGHTER, what words impute, 144, 251 re. 
 MARINE C0\}KT: of New York. See CITY COURT. 
 MARINE STOREDEALER, publication concerning, 458. 
 MARINER. See Master Mariner, 
 
Reference] INDEX. \is to page. 809 
 
 MARKS on cattle, charge of altering, involves moral turpitude, 165. 
 
 charge of altering, actionable, 193. 
 MARL, charge of stealing, 149. 
 
 See Soil. 
 MARRIAGE, loss of, is special damage, 263, 265, 273. 
 
 loss of, how alleged in the complaint, 582. 
 
 advertising for proof of, 391. 
 
 charging a married man with going through ceremony of, with an 
 actress, is actionable, 210. 
 
 See Married Man. 
 MARRIED MAN, charging with being sued for breach of promise of mar- 
 riage, 210, 652. 
 
 See Marriage ; Political Meeting. 
 MARRIED WOMAN, language concerning, 160, 191, 191 n. 
 
 charge of stealing goods of, when actionable, 137 n., 171 n. 
 
 charge of committing crime in presence of husband, 165 n. 
 
 publication by, action for, 535. 
 
 may be held to bail, 482. 
 
 may sue for slander or libel, 161, 532. 
 
 can she sue for injury to her separate estate, 223 n. 
 
 cannot sue her husband for slander or libel, 532. 
 
 costs, how collected of, 162 n. 
 
 damages recovered by, to be separate estate, 162. 
 
 may sue corporation for libel, 571 n. 
 
 separated from her husband, may sue alone, 535 n. 
 
 charges by, of stealing ker goods, 171 n. 
 
 charge of planning elopement with, 209 n. 
 
 abatement of action, by, 531. 
 
 See Husband and Wife; Wife. 
 MARRYING for money, charge of, 216 n. 
 MARYLAND, what language is actionable in, 161, 189 n. 
 MASON, words of, 252. 
 MASS, charge of going to, actionable, 167 n. 
 MASSACHUSETTS, pleading in, 626 n. 
 
 bill of particulars in, 492. 
 MASTER MARINER, charge of drunkenness against, is actionable, 199 n. 
 
 charge of selling consignment and pocketing proceeds, 246. 
 
 MASTER, liable for acts of his servants, 103. 
 
 and servant, effect of relation of, 408 n., 411, 426 n. 
 
 right of master to give character to servant, 425, 427 n,, 428, 
 
 743- 
 may refuse to give " character " of, 428 n. 
 
 See Servant ; Slave. 
 MATE of a ship, words concerning, 429. 
 MATHEMATICS, why certain, 20 n. 
 
 MATRON of charitable institution, language concerning, 423 n. 
 MAXIMS, not to be received as axioms, 71 n. 
 
8lO Refennce\' INDEX. [is to page. 
 
 MAYOR, words concerning, 257. 
 
 language by, is privileged, 348 n. 
 MEANING, the term, how used, 129 n. 
 court to determine, 136, 509. 
 
 jury to determine, 253 n., 323 n., 502, 631 n., 639, 639 n. 
 opinion of witness as to, when allowed, 116 «., 130 n., 504 »., 641. 
 judicial notice of, 120 n. 
 evidence of, 121 n. 
 natural, to be taken, 133 n., 505. 
 doubtful, helped by innuendo, 134. 
 alleged, defendant may traverse, 135. 
 to be justified, 313 re. 
 
 See Construction ; Innuendo. 
 MEANNESS, charge of, 216 n. 
 MEAT, charge of selling unwholesome, 246. 
 See Adulteration. 
 MECHANIC, charge of not being a, 252. 
 
 MECHANICS, charging with keeping false account books, 234 n. 
 MEDICAL officer, publication concerning, 373 n. 
 
 society, proceedings at, 384. 
 MEETING, when reports of proceedings at, are privileged, 372. 
 of creditors, notice of, 418. 
 
 false notice of, 242 n. 
 
 See Church Meeting; Public Meeting. 
 MEMBER, of Congress, words concerning, 259. 
 privilege of, 325. 
 of Legislature, privilege of, 325. 
 of churches, communication between, 367, n. 
 of Parliament, words concerning, 259. 
 
 when he may refuse to testify as a witness, 633 n. 
 cannot, as such, be guilty of conspiracy to libel, 325 n. 
 privilege of speech of, 325, 327. 
 
 may publish to his constituents a speech delivered in Parlia- 
 ment, 327 n. 
 contempt to publish libel on, 326 n. 
 See Legislator. 
 MEMORIAL. See Petition. 
 
 MENTAL DISTRESS, is not special damage, 271, 520. 
 need not be allied, 580 n. 
 aggravation,^^,!' 
 MERCANTILE AC^Mhi, privilege of, 417. 
 number of suits against, 418 n. 
 law takes judicial notice of, 447. 
 damages against, 520 n. 
 
 cannot be restrained from making reports to its customers, 689, 689 n. 
 publication of "black list," 318. 
 MERCER, words concerning a, 234 n. 
 
Reference\ INDEX. \is to page. gll 
 
 MERCHANT, charge of keeping false account books, 234. 
 charge of being a swindler, actionable, 246 n. 
 words of, 225, 235, 237 n., 248. 
 continues so, 235. 
 
 See Trader. 
 MERCHANT'S CLERK, words concerning, 248, 248 n. 
 METHODIST MINISTER, language concerning, 254 n. 
 
 See Minister. 
 MICHIGAN, what language actionable in, by statute, 161, 449 n. 
 
 statute of, held unconstitutional, 449 n. 
 MIDWIFE, words concerning, 251. 
 
 MILITARY OFFICER, whether amenable to civil action, 350 n. 
 MILK, watered, charge of supplying, 163 n. 
 
 impure, charge of selling, 241. 
 MILK PURSE, judicial notice of meaning of, 120 n. 
 MILK WALK, no larceny of, 125 ».. 
 MILLER, words concerning, 124 n. 
 MIND, existence of, is a matter of fact, 63 n. 
 distress of, as aggravation, 652. 
 not special damage, 271, 520. 
 MINE, charge of preparing, fraudulently, 214. 
 language concerning, shares in, 282 n. 
 loss of sale of, 284 re. 
 MINISTER of the Gospel, words of, 184, 231, 240 re., 253, 255 n., 267,'283're., 467. 
 not privileged in communications with members of his congregation, 
 
 414. 
 words spoken by, at a church meeting, privileged, 369 n, 
 
 from the pulpit, 195 re., 199 »i., 414 n., 415 n. 
 complaint of, to his superior, 369. 
 
 charge of drunkenness against, when actionable, 199 re., 240, 
 charge of incontinence against, 228 re., 254, 254 re. 
 justifying charge of blasphemy against, 317. 
 what words do not affect him in his office, 240. 
 See Methodist Minister. 
 MINNESOTA, libelous words in, 161 n. 
 laws of as to newspapers, 450 re. 
 MINOR. See Infant. 
 MISANTHROPIST, charge of being a, 259. 
 MISAPPROPRIATION of funds by a trustee, charge of, 198 n. 
 
 of funds, 214. 
 MISCARRIAGE, charge of attempting to procure or causing, not actionable,, 
 171. 
 charge of having had a, 250. 
 See Abortion. 
 MISCHIEF, everything in nature may be instrument of, i re. 
 caused by words, i re. 
 malicious, charge of, 151 re. 
 
8l2 Reference] INDEX. \is to page. 
 
 MISCONDUCT in trade, charge of, is actionable, 244. 
 
 MISERABLE FELLOW, charge of being, is actionable, 208. 
 
 MISFEASANCE, charge of, against a justice of the peace, is actionable, 256 ». 
 
 MISJOINDER. See Joint Action. 
 
 MISREPRESENT ATIVE, charge of being a, 259. 
 
 MIS-SAY, defined, 4 n. 
 
 MISSISSIPPI, what language is actionable in, by statute, 160, 185 ft. 
 
 effect of demurrer in, 509 n. 
 
 is demurrer allowed in, 606 n. 
 MISSOURI, what language is actionable in, 161, 189 n., 195 n. 
 MISTAKE, in mitigation, 673, 67?. 
 
 publication by, loi n., 421 n. 
 
 plea that publication was by, 587 n. 
 MITIGATING CIRCUMSTANCES, what amounts to, 604. 
 
 setting up in answer, 603, 663. 
 
 must be pleaded, 604 ft., 664 
 
 defendant must have known before the publication, 604, 605 n. 
 
 striking out, 605, 605 n. 
 
 not the subject of demurrer, 606. 
 
 in Indiana, 606 n. 
 
 See Mitigation. 
 MITIGATION, rumors against plaintiff's character, 301 ra., 324 n., 678, 679 «. 
 
 naming previous publisher, 304 n., 685. 
 
 truth cannot be shown in, unless pleaded, 674. 
 
 facts showing suspicion of plaintiffs guilt, not amounting to actual 
 proof, 324 ft., 325, 674, 678, 679 ft. 
 
 facts tending to prove truth, but falling short of it, 312 »., 674 »., 675. 
 
 plaintifTs general bad reputation, 324 n. , 670. 
 
 copied from previous publication, 325 re., 675 ft., 685. 
 with omissions, 325 n., 686 n. 
 
 communication from correspondent, 692 n. 
 
 drunkenness may be shown in, 441, 685 n. 
 
 apology in, 441. 
 
 retraction, 449 re., 658, 681, 681 ft. 
 
 general report or suspicion, 678. 
 
 pendency of other actions by plaintiff in, 443 re., 687 re. 
 
 plaintiff's standing and condition in society, 679. 
 
 conviction for criminal offense, 7 n. 
 
 defendant's acts and declarations, 680. 
 
 that plaintiff, defendant's enemy, 686. 
 
 boasts of plaintiff of having committed similar offenses to those 
 charged, 685. 
 
 plaintiff in the habit of abusing defendant, 687. 
 
 plaintiff a common libeler, 687. 
 
 former recovery against defendant, 687, 687 n. 
 
 injunction to secrecy, 639, 680 n. 
 
 heat and passion, 681, 681 n. 
 
Reference^ INDEX. \is to page. 813 
 
 yHllGKIVa^.— continued. 
 
 former publications by plaintiff, 681, 682, 682 n. 
 
 provocation by plaintiff, 681-684. 
 
 controversies between plaintiff and defendant, 683. 
 
 defendant's poverty, 685. 
 
 defendant unable to read, loi n. 
 
 defendant's apparent good humor, 685. 
 
 previous publication by others, 686 
 
 benefit to plaintiff, 686, 686 n. 
 
 declarations of plaintiff that he had not been injured, 686, 686 ». 
 
 declaration by plaintiff that he believed the defendant was not the 
 
 author of the defamation, 686. 
 must be pleaded, 675. 
 
 matter happening after publication not admissible, 677. 
 relying on truth of representation by agent, 351 «., 447 n. 
 intended to defeat candidate is not, 439 n. 
 on assessment of damages, 495. 
 
 See Mitigating Circumstances. 
 MITIORI SENSU, construction in, 131, 131 n., 132 ra., 216. 
 MONEY, charge of marrying for, 216 n. 
 MORAL obliquity, charge of, is actionable, 209. 
 
 how justified, 598 n. 
 turpitude., what is meant by, 163. 
 
 what offenses involve, 164. 
 fornication involves, 195 n. 
 when charge must involve, in order to be actionable, 164 ». 
 
 MORTALITY. See Old Mortality. 
 MORTGAGED property, charge of selling, 163 n. 
 MORTGAGEE of printing press not liable as publisher, 105 n. 
 MOTHER, charge of whipping or assaulting, not actionable, 198. 
 
 in law, charge of suing, not actionable, 216. 
 MOTION, to make definite, 582, 607. 
 MOTIVE synonymous with intent, 62. 
 
 men do not act without, 61 n. 
 
 imputation of, unworthy, 213. 
 
 in bringing suit, 664 n. 
 
 jury to decide as to, 286 ra., 503 ra., joS «•, 5H. 648 »., 664 n. 
 See Intention. 
 MOUNTEBANK, judicial notice of meaning of, 120 n. 
 
 charge of being, is actionable, 251, 251 ». 
 MULATTO, charge of being a, when actionable, 123 n., 198. 
 MURDER, /^r lingua, 2 n. 
 
 charge of, when actionable, 125, 179. 
 
 what amounts to charge of, 146. 
 
 charge of soliciting to commit, involves moral turpitude, 165. 
 
 charge of committing, in Ireland, 170 n. 
 
8 14 Reference\ INDEX. \is to page. 
 
 MURDERER, charge of being a, actionable, 179. 
 
 charge of being, not actionable by reason of context, 136 jv., 179 n. 
 
 report of speech of, not privileged, 366 n. 
 MURDERING ROGUE, actionable, 177. 
 MURDEROUS QUEEN, not actionable, 176 n. 
 MURDEROUS VILLAIN, not actionable, 176. 
 MUTUAL AID ASSOCIATION, no action against, 529 n. 
 See Corporation. 
 
 NAME, presumption from identity of, 113 »., 629. 
 
 See Assumed Name. 
 NATURAL RIGHT, no such thing as, 29, 31. 
 NAVAL ARCHITECT, publication concerning, 459. 
 NEGLIGENCE, what it embraces, 104 n. 
 NEGRO, harboring, charge of, 198. 
 giving a free pass to, 198. 
 charge of being akin to, 198. 
 charge of hiring, to kill cattle, 198. 
 charge of being a, 123 re., 197. 
 
 See Free Negro ; Yellow Negro. 
 NEW BOOKS, how made, 10 n. 
 
 NEW HAMPSHIRE, charge of fornication actionable in, 195 n. 
 NEWjJERSEY, charge of fornication actionable in, 191 n. 
 statute for protecting reputation of women, 161 n. 
 NEW^MATTER, defense of truth is not, 608 n. 
 
 demurrer to, 607 ra., 608 re. 
 NEWSBOY, libel of, 209 re. 
 
 NEWSPAPER, receiver to conduct, liability of, 105 n. . 
 dealer, liability of, 529 n. 
 proprietor, liability of, 102 »., 103. 
 proof of liability of, 627 n. 
 words concerning, 453 re., 456, 457 re. 
 statute requiring him to admit or deny publication, 488 re. 
 in New York, privilege of, 351 n. 
 against, in Michigan, privilege of, 449 n. 
 joint action by, or against, 534 re. 
 
 fined for publishing report of judicial proceedings, 360 re. 
 refusing to give name of author, 304, 305, 627 n., 652. 
 editor, liability of, 105 re., 536 re. 
 
 rights of, 267 re., 351, 444, 445 «., 447 n. 
 in New York, 351 re. 
 proposed law as to, 445 re. 
 reporter, rights of, 351 re., 358, 359. 
 rule as to damages against, 448 re., 517 re., 653 re. 
 proof of defendant's absence at time of publication, 680 re. 
 proprietor, no right of indemnity, 536 re. 
 allegation in complaint by newspaper proprietor, 548 re., 555, 565 re. 
 
Reference^ INDEX. \is to page. 815 
 
 NEWSPAPER.— <:(7«//«w^^. 
 
 proof of malice in actions against, 658. 
 
 when it may be read in evidence, 636, 637. 
 
 proof of publication of, 630, 633, 634. 
 
 actionable language concerning, 282 n. 
 
 advertisement in, when privileged, 391, 418, 419, 448. 
 
 law does not take judicial cognizance of, 446. 
 
 statutory provisions relating to libels in, 448 n., 449 n. 
 
 courts said to sit in, 353 n. 
 
 called an opinion mill, 445 n. 
 
 copying from, not a justification, 325. 
 
 agreement not to use to libel, 480 n. 
 
 correspondent, relying on truth of, 351 n., 447 n. 
 NEWSVENDER, liability of, 107. 
 
 words concerning, 209 n. 
 NEW TRIAL, before what judge, 497. 
 
 when not granted, 499. 
 
 for excessive damages, 524. 
 
 for insufficient damages, 525. 
 
 because verdict for defendant, instead of for plaintiff, with nominal 
 damages, 526. 
 
 because innuendoes unwarranted, 527, 573 n. 
 
 because innuendo disproved, 527. 
 
 on one of several issues, not allowed, 527 n. 
 
 for newly discovered evidence, 526. 
 
 because verdict against weight of evidence, 120 to., 527. 
 
 on a question of fair comment, 527 n. 
 
 because judge influenced verdict, 512 n. 
 
 reducing amount of damages on motion for, 526. 
 
 not denied because it may affect the attorney's lien, 524 n. 
 
 refused, but judgment arrested, 188 n. 
 
 may be before the judge, who presided at first trial, 497 n. 
 
 in Ohio, 525 n. 
 
 in Vermont, 57. 
 
 after death of plaintiff, 525 n. 
 NEW YORK, what language actionable in, by statute, 19 n., 161, 449 n. 
 
 as to proposed change in law of, 450 n. 
 
 statutory protection of newspapers in, 449 re., 351 re. 
 
 taking soil a criminal offense in, 183 n. 
 NEXT FRIEND, for infant plaintiff, 530 re. 
 NICK NAME, witness may depose to meaning of, 640 n. 
 NOISES, action for, i n. 
 NOISY NUISANCE, i n- 
 
 NOMINAL DAMAGES, when proper, 517, 685 n. 
 where jury not limited to giving, 495 re., 519. 
 
 judge may advise jury to give, 517. 
 
 new trial not granted because verdict should have been for, 526. 
 See Damages. 
 
8l6 Reference] INDEX. \is to page. 
 
 NONSUIT, action for same cause after, 528. 
 
 motion for does not raise question of privilege, 513. 
 
 when judge may direct, 506, 513, 515 ra., 516 «. 
 NORTH CAROLINA, what language is actionable in, 161, 191 n. 
 
 damages under Code of, 520 n. 
 NOTARY, action against, for wrongly protesting a note, 2 n. 
 
 language concerning, 240. 
 NOTICE, as a substitute for a plea or answer, 603. 
 
 of action, sometimes required, 480 n. 
 NOT GUILTY. See General Denial. 
 NOVICE in religious community, case of, 270 n. 
 NUISANCE, action for, compared to action for slander, I n. 
 
 See Noisy. 
 NUMBER, allegations of, are divisible, 156. 
 
 OBESITY, ludicrous derivation of, 688 n. 
 
 OBITUARY NOTICE, publishing of one alive is actionable, 210. 
 
 See Epitaph. 
 OBLIGATION, duty is, 27. 
 OBLIQUITY. See Moral Obliquity. 
 OBLOQUY, unwritten words of, not actionable, 160 n. 
 
 meaning censure and reproval, BettneriW. Holt, Cal. Sup. Co't, July^ 
 1886. 
 OBSCENE WORDS, setting forth in pleading, 562, 562 ». 
 
 uttering in presence of a woman, 162 n. 
 
 publication of report of, not privileged, 355 n. 
 See Indecent. 
 OCCASION upon which an act is enacted, 34. 
 
 justification implied from the, 295 n. 
 
 materiality of the, 463 n. 
 
 whether it gives a privilege is a question of law, whether the privilege 
 has been used in good faith is a question of fact, 515 n. 
 OCCUPATION of plaintiff, how proved, 643. 
 
 presumption of continuance in, 236. 
 of legality of, 549. 
 
 illegality of, must be specially pleaded, 665. 
 See Trade. 
 ODD FELLOWS. See Lodge. 
 OFF, saying a merchant is, is actionable, 242 n. 
 OFFENSES, involving moral turpitude, 164, 
 OFFER by defendant to allow judgment, 527. 
 OFFICE words concerning one in, 227, 232, 256. 
 
 means employment, 436. 
 
 of profit and of honor, distinction between, 228 ». 
 
 words concerning candidate for, 231, 435. 
 
Reference'] INDEX. \is to page. 817 
 
 OFFICE. — continued. 
 
 proof of appointment to, 236 n. 
 
 charge of paying money to obtain, 208. 
 
 charge of selling, 208. 
 
 See Candidate; Trade. 
 OFFICER. See Judicial Officer; Military Officer; Police Of- 
 ficer. 
 OFFICERS ef a regiment, language concerning, 115 n. 
 OHIO, calling a woman whore is actionable in, 189 n., igo n. 
 
 charging a woman with having had a bastard in, 190 n. 
 
 charging a man with fornication not actionable in, 195 n. 
 
 new trial in, 525 n. 
 OLD MORTALITY, account of his slander, 279 n. 
 ONANISM, charge of, igi. 
 OPENING letters addressed to another, 164. 
 
 on the trial, 497, 498. 
 OPINION, words denoting, not actionable, 173. 
 
 of witnesses, when receivable, 116 n., 130 n., 640 n. 
 not receivable, 85, 85 n., n6 re. 
 
 when privileged, 403, 467. 
 
 criticism is, 463, 
 
 and fact, supposed distinction between, 175 re., 467. 
 OPINION MILL, a newspaper so designated, 445 re. 
 OPTICIAN, language concerning, 253. 
 ORAL language, what is, 1. 
 
 distinction between that and written language, 11, 222. 
 construed the same as written language, 116, 386. 
 less capacity for injury than written langfuage, 11, 222. 
 what actionable, 1 59, 203. 
 publication, requisites of, 88, 89. 
 ORDER, defamatory matter in, 236 n. 
 
 ORDINANCES of the church, charge of having been deprived of, 208. 
 ORIGINAL WRITS abolished, 35 re. 
 OTHER ACTION. See Second Action. 
 OUTLAW, action by, 529. 
 
 song of the, 81 n. 
 OUT-PUTTER, meaning of the term, 123 n. 
 OVERSEER, words of, 181 n., 258, 440. 
 
 communication by employer to, 413. 
 OVERSEERS' MEETING, proceeding at, how far privileged, 371. 
 OWNER, evidence of defendant being, 635. 
 
 PACKING A JURY, charge of, 146, 199. 
 PAINTER, charge of adulterating his paint, 206. 
 
 See House Painter; Dealer in Paints. 
 PALINODE, 8 n. 
 52 
 
Si 8 Reference), INDEX. [is to page. 
 
 PAPER, presumption as to possession of, 483 n. 
 
 See Documents. 
 PAPIST, not actionable, 197 n. 
 
 formerly actionable, 122 n. 
 PARAMOUR, charge of being a, 191 n. 
 PARDON, effect of, on right of action, 168, 168 n. 
 
 statute as to effect of, 168 n. 
 
 no answer to a plea of truth, 307 n., 592. 
 PARENT, not liable for acts of children, 105 re., 735. 
 
 may disinherit a child who libels him, 207 ». 
 
 not liable for tort of child, 105 re., 735. 
 
 charging with bringing up his children in vice, 210. 
 
 has the right to know report concerning his minor child, 395 n. 
 PARISH MEETING, proceedings at, how far privileged, 370. 
 PARLIAMENT, proceedings of, in theory, conducted with closed doors, 326 
 
 speech in, is privileged, 325. 
 
 minute to, not privileged, 461. 
 
 petition to, is privileged, 327. 
 
 comment on, 457, 458 n. 
 See Legislative Proceedings; Member of Parlia- 
 ment. 
 PARLIAMENTARY AGENT, publication to, not privileged, 385 re. 
 PARTIAL, charging a judge with being, is actionable, 256. 
 
 satisfaction, 442 n. 
 PARTICULARS. See Bill of Particulars. 
 PARTIES to action, for joint publication, 98, 99, 534 n. 
 
 privilege of, 331, 340, 340 n. 
 
 may appear by attorney, 342. 
 
 may conduct their suits in person, 342. 
 
 conducting a suit in person, how privileged, 342. 
 
 generally, 113 n., 529, 532. 
 
 in action for malicious prosecution, 735. 
 PARTISAN, charge of being a, 259. 
 PARTNERS, actions against, 99, 534 re. 
 
 action by, 534. 
 
 charge against, 181, 184. 
 
 words concerning, 228. 
 
 parties to actions by and against, 534. 
 
 libel by, of partners, 94 re. 
 
 liability among themselves, 103 re. 
 
 for malicious prosecution, 735 n. 
 
 when all liable, 102 n. 
 
 damages in action by, 229. 
 
 abatement of actions by, 548. 
 
 malice of one not imputable to the other, 653 n. 
 VA'R.TY plamftff, who may be, 113 re., 529, 735. 
 PASSING counterfeit money, charge of, not actionable, 198. 
 
Reference'\ INDEX. lis to page. 819 
 
 PASSION. See Heat and Passion ; Towering Passion. 
 PASTOR. See Minister of the Gospel. 
 PAST TENSE, charge in, 201 n. 
 PATENT, charge of infracting, 208, 292 n. 
 
 medicine, forging testimonial of, 178 n. 
 See Copyright. 
 PATIENT. See Physician. 
 PATRONAGE, meaning of, 134. 
 PAUPER, inducing him to bring an unfounded action, 332 n. 
 
 charge of being a, 243 n. 
 PAWNBROKER, words concerning, 243 n. 
 PAYMENT into court, defense of, 442 71., 591. 
 
 assessment of damages after, 449 n. 
 
 plea of and apology not allowed, 449 n. 
 PEACE, breach of, words leading to, actionable, 160. 
 PEACE OFFICER, need not prove his appointment, 236 re. 
 PECUNIARY condition of plaintiff, 649, 650 n. 
 of defendant, 652, 685. 
 
 difficulties, charge of being in, 220 n. 
 PECUNIARY LOSS, the gist of an action for slander or libel, 45, 48, 227, 228. 
 
 is special damage, 49, 263. 
 PEDDLER, a rogue by statute, 225 n. 
 
 See Bogus Peddler. 
 PENAL ACTIONS, actions for slander and libel in nature of, 526. 
 PENANCE, charge of imposing, 255. 
 PENCIL MARK is writing, 3 n. 
 PENDENCY of other actions, when not a defense, 442 n. 
 
 of other actions by plaintiff for same libel, in mitigation, 443 »., 687 ». 
 PENITENTIARY OFFENSE, charge of committing, is actionable, 195. 
 PENNSYLVANIA, false swearing in ecclesiastical court of, 187. 
 
 charge of fornication actionable in, 195 n. 
 
 taking yegetables and fruit in, 1 83. 
 
 repetition of slander in, 304. 
 
 statute of, as to libels on public officers, 437 re. 
 
 action against husband and wife in, 99 re. 
 PERIL. See Danger of Punishment. 
 PERJURED KNAVE, not actionable, by reason of the context, 127 »., 184 n. 
 
 actionable, 177 re. 
 PERJURED PRIEST, actionable, 254. 
 PERJURED ROGUE, actionable, 177 n. 
 PERJURY, what amounts to charge of, 136 re., 146, 209 n., 342 
 
 charge of, how justified, 313 re., 323, 601 re., 602, 666. 
 
 charge of procuring one to commit, is actionable, 172^. 
 
 charge of, actionable, 184. 
 
 charge of, " convicted of perjury," 185 re. 
 
 in swearing to a promise void by the statute of frauds, 189 ». 
 
 complaint for charge of, 550, 551 re., 552 re. 
 See False Swearing. 
 
Sao Reference^ INDEX. \is to page. 
 
 PERSON, language concerning the, ill. 
 
 charge of exposure of, actionable, 135, 194. 
 
 involves moral turpitude, 165. 
 PERSONAL INJURY, what it includes, 480. 
 PERSONAL INVECTIVE, justifying charge of, 321. 
 PERSONAL PROPERTY, slander of title to, 292. 
 PERSONS, no distinction between, 467. 
 PETITION to Parliament, when privileged, 327 n., 376, 461. 
 
 to legislature, 327. 
 
 for appointment of guardian, 336 n. 
 receiver, 336 n. 
 
 for redress, when privileged, 376. 
 
 circulating, to obtain signatures, is allowable, 386, 
 
 to remove sheriff, 378 re. 
 
 to governor or lieutenant governor, 377. 
 
 to board of excise, 377. 
 
 to fire marshal, 378. 
 
 to council of appointment, 377. 
 
 to post office department, 378. 
 
 to secretary of war, 378. 
 
 to superior officer, 378. 
 
 to bishop, 378. 
 
 to school committee, 378, 378 n. 
 
 foreigfn board, 378 re. 
 
 to lodge of Odd Fellows, 378. 
 
 to trustees of college, 379. 
 
 to council of the Bar, 378 n. 
 PETTIFOGGING, charge of, against attorney, actionable, 250 n. 
 PHOTOGRAPHS of alleged libel, defendant allowed to take, 495 n. 
 PHYSICIAN, words of, 134 re., 180, 180 re., 216 re. ,1250. 
 
 can he sustain special damage, 264 re. 
 
 unlicensed, when he cannot sue, 227. 
 
 language which does not touch him in his profession, 240. 
 
 giving certificate of insanity, 348 n., 383 n. 
 
 report to Board of Health concerning patient, 388. 
 
 not privileged to defame patient, 387 re. 
 
 proof of qualification as, 613 re. 
 
 See Druggist ; Surgeon. 
 PICKPOCKET, charge of being, 151 re. 
 
 charge of being, is actionable, 192 
 PICTURES, included in effigy, 3. 
 PIEPOWDER, court of, 8 re. 
 PIGEONED, charge of having been, by plaintiff, a minister of the gospel, not 
 
 actionable, 254. 
 PILFERING, meaning of the term, 148. 
 
 charge of, when actionable, 181. 
 PILOT, language concerning, 237 n., 389. 
 
Rcferenci!-\ INDEX. {is to page. gst 
 
 PIMP/meaning of, 123 n. 
 PIRACY, of patent, 292 n. 
 
 of copyright, 283 n. 
 PLACARD, proof of publication of, 631 n., 638. 
 
 a subject for criticism, 458. 
 PLACE of publication, how far material, go, 558. 
 
 of trial of action for slander or libel, 482. 
 changing, 483. 
 PLAINTIFF, must be identified in the alleged defamatory matter, 113 n., 552, 
 553 ri., 629. 
 
 need not be directly named, 113, 118, 118 n. 
 
 if language not applicable to, innuendo cannot make it so, 114 «., 
 552 n., 566, 576. 
 
 what language does not sufficiently point to, 113 n. 
 
 what he must show to sustain an action, 116 n. 
 
 who may be. 113 re., 529, 735. 
 
 publication by, how alleged, 554. 
 
 his motive in suing not material, 664 n. 
 
 effect of death of, 530, 530 ra., 531, 531 n. 
 
 admissions by, 665 re., 667. 
 
 evidence of good reputation of, to aggravate damages, 645. 
 
 evidence of his rank and condition to aggravate damages, 649. 
 
 evidence of occupation of, 643. 
 
 distress of mind as damage to, 271, 520, 652. 
 
 ill-will of defendant towards, to aggravate damages, 520. 
 
 evidence for, 626 ei seq. 
 
 See Evidence. 
 
 withdrawing a cause of action at the trial, 501. 
 
 general reputation of, is put in issue, 669. 
 
 rumors as to truth of charge, 301 n. 
 
 inquiry into reputation of, 670. 
 
 evidence of standing and condition in society to mitigate damages, 
 679. 
 
 previous publication of defamatory matter by, not a defense, 306 n. 
 
 evidence that libel was written by, 210 ra., 306 re. 
 
 evidence of acts of, in mitigation, 678 et seq. 
 
 benefits to, by libel, cannot be shown, 520 re., 686, 686 re. 
 
 execution against person, for costs, 481. 
 
 attorney to disclose place of residence of, 483, 483 re. 
 
 conviction of, for the imputed offense, 308 re. 
 
 trial of, for imputed offense, 308 n., 530. 
 
 examination of, before trial, 484, 486. 
 
 defacing his documents by writing detamatory matter thereon, 307, 
 308. 
 
 who to be in action for malicious prosecution, 735- 
 See Joint Action. 
 PLAY, not construed illegal play, 219. 
 
822 Reference^ INDEX. [is to page. 
 
 PLEA, formerly only one allowed, 310. 
 
 to whole or part of complaint, 311. 
 
 eflFect of not interposing, 495. 
 
 withdrawal of, on trial, 501. 
 
 answer corresponds to, 586. 
 
 that publication by mistake, 587 «. 
 
 of general issue, 562. 
 
 in bar, must answer the whole count, 589. 
 
 of justification must give color, 589. 
 
 of general denial and truth, 591. 
 
 of truth, requisite of, 591. 
 
 justifying a charge of crime, 600. 
 
 of justification failing in part fails altogether, 602. 
 
 notice in lieu of, 603. 
 
 of apology and payment into court, 442 n., 449 n. 
 
 of accord and satisfaction, 442. 
 
 of former recovery, 442. 
 
 of justification, inspection to prepare, 484, 485. 
 
 in confession and avoidance, 592. 
 
 See Answer; General Issue. 
 PLEADING, how construed, 132 n., 134, 134 n. 
 
 defamatory matter in, will it give a right of action for, 332, 333 n. 
 
 334 »• 
 defamatory matter in, may be struck out, 334, 334 n. 
 certainty in, 133, 564. 
 
 carried to excess, 133 n. 
 formerly in latin, 556 n. 
 
 defamatory matter in, when client not responsible for, 54 »., 105 n. 
 mitigating circumstances, 604, 663. 
 and proof to correspond, 609. 
 
 pleader is supposed to have made it most favorable to himself, 133. 
 no right to publish, except for the purpose of the action, 336 n. 
 stranger may not publish, 335 n. 
 
 See Answer; Complaint; Demurrer. 
 PLUNDERED, does not mean a felonious taking, 148. 
 
 not actionable, 198 
 POCKY knave, held actionable, 177. 
 
 rascal, query if actionable, 176 n. 
 whore, not actionable, 176. 
 POINTS, or brief, publication of before trial, a contempt, 360 n. 
 POISON, meaning of the term,. 148. 
 
 charge of administering, 17071., 179, 193, 194, 239. 
 POLICE COMMISSIONERS, publication by, 366 n. 
 POLICE OFFICER, words concerning, 257, 358. 
 words published to, 354 »., 374 n. 
 See Constable. 
 
Reftrince\ INDEX. \is to page. %2% 
 
 POLITICAL MEETING, charge of attending.'while wife dead and un^urieii, 
 
 213. 
 POLTROON, charge of being, when actionable in Tennessee, 161. 
 POLYGAMY, charge of, how justified, 666. 
 POOR. See Rich and Poor. 
 
 POOR LAW GUARDIAN, publication concerning, 393. 
 PORK, charge of stealing, 182. 
 PORK BUTCHER, words concerning. 239. 
 
 See Butcher. 
 POSTAL CARDS, or telegram, libelous, &c., sending, 418, 418 n. 
 through the mail, 1 52 n. 
 publication by, who liable for, 263 n. 
 POSTMARK on letter, proof of, 627, 628 n. 
 POSTMASTER, words concerning, 173, 259. 
 charge in presence of, 423. 
 complaint to, privileged, 378. 
 POTATOES, charge of stealing, 146 n. 
 POVERTY of defendant, no mitigation, 685. 
 plaintiff in mitigation, 650 n. 
 charge of living in, 220 n. 
 POX, charge of having, is actionable, 200, 200 n. 
 
 See Small-Pox. 
 PREACHER. See Minister. 
 PREACHING/<i&^ doctrine, charge of, 253. 
 PRECEDENTS, value of, in actions for words, 122 n., 395 n. 
 
 for declaration on libel in rhyme, 208 n. 
 PREGNANT, /a^ held to mean, 123 n. 
 charge of being, 191. 
 
 justification of, 314. 
 PRELIMINARY PROCEEDINGS, reports of, 359, 359 «• 
 PRESS, freedom of, 444- 
 
 See Newspaper. 
 PRESUMPTION, what it is, 55 n. 
 
 of law, objections to, 55, 55 n. 
 
 of knowledge of court proceedings, 352. 
 
 of knowledge of law, 55 n. 
 
 of identity, win., 629. 
 
 of malice, 70 n. 
 
 of continuance in occupation, 235, 236 n. 
 
 of continuance of ownership, 636 n. 
 
 of delivery of message, 632 n. 
 
 of legality of plaintiff's trade, 225, 225 n. 
 
 none of what is not averred, 132 n. 
 
 of intent, 55 ra. , .. n 
 
 distinction between presumption of evidence and presumption of law, 
 
 55 n. 
 as to where, publication made, 92 n. 
 as to possession of papers, 483 n. 
 
824 Reference^ INDEX. \." to page. 
 
 PREVIOUS PUBLICATION, by plaintiff himself, 306 n. 
 
 See Repetition. 
 PREVIOUS RECOVERY. See Former Recovery. 
 PREVIOUS REQUEST, effect of, 405, 407. 
 PRICES, charge of combining to raise, 171 n. 
 PRIEST, language concerning, 253, 372. 
 by, 199 71., 367 n. 
 See Minister; Perjured Priest; Pulpit. 
 PRINCIPAL and agent, communications between, how far privileged, 412, 
 416. 
 
 liability of, 103, 104 n. 
 PRINCIPLES, charge of evil, not actionable, 173. 
 PRINTER, liability of, 106. 
 PRINTING, writing includes, in. 
 PRIOR PUBLICATION. See Repetition. 
 PRIVATE ACT, is it distinct from public act, 467 n. 
 PRIVATE CHARACTER of candidate not to be attacked, 437 ». 
 PRIVATE LETTERS, charge of publishing, is actionable, 212. 
 PRIVILEGED, court to determine what is, 512, 513, 513 n., 5x5. 
 motion for nonsuit does not raise question of, 513. 
 must be specially pleaded, 588. 
 answer of, admits falsity, 589 n. 
 witness, 634 n. 
 PRIVILEGED COMMUNICATIONS, kinds of, 296, 296 n. 
 
 not easily defined, 300. 
 
 defense of, must be pleaded, 663 n. 
 
 statutory definition of, 298 n. 
 
 question for jury, 298 n. 
 
 exceptions to rule that malice implied, 299. 
 See Privileged Publication. 
 PRIVILEGED OCCASION, when it arises, 389 re., 391 n. 
 PRIVILEGED PUBLICATION, what is, loo, 295, 299, 334 n. 
 
 kinds of, 295 n. 
 
 meaning of, 295. 
 
 suggested rule as to, 301. 
 
 repetition, 301. 
 
 court to determine if it is, 295 n., 512. 
 
 court not inclined to extend doctrine of, 297 n. 
 
 defense of, 295, 589, 590 n. 
 
 divided into absolutely privileged and conditionally privileged, 295 
 
 statutory definitions of, 295 n,, 298 n. 
 
 in legislative proceedings, 325. 
 
 injudicial proceedings, 330. 
 
 in a pleading, 332, 333 re., 334 re. 
 
 in an affidavit, 335 re., 336 re., 337 re., 338 n. 
 
 as a witness, 338. 
 
 as a party to an action, 340. 
 
Reference^ INDEX. [istopage. 825 
 
 PRIVILEGED W^^ACATIO^^.— continued. 
 
 as advocate. See Counsel. 
 
 in the course of church discipline, 369. 
 
 at public meetings, 369. 
 
 on giving in charge to poHce officer, 333 n., 374 n. 
 
 in seeking redress, 331, 374. 
 
 confidential is not, 384 n. 
 
 to protect person, property, or reputation of publisher, 388, 392 , 422 n. 
 
 oral, not the less so because written, 386. 
 
 part privileged and part not privileged, 396 n. 
 
 by one employed to obtain information concerning traders, 416. 
 
 proof of malice to defeat defense of, 653, 653 n. 
 
 to protect rights of others, 394. 
 
 giving advice or infonnation, 394. 
 
 to others than those interested, 421, 423. 
 
 when privilege ceases, 418, 419. 
 
 not lost, because exercised rashly, 396 n. 
 
 production of documents, 632, 632 n. 
 
 See Truth; Publication; Privileged Communica- 
 tion : Postal Card ; Telegraph. 
 PROBABILITY, is the guide of life, 711 n. 
 
 PROBABLE CAUSE. See Reasonable and Probable Cause. 
 PROCEEDINGS (t/ cw^-Zj, are privileged, 335, 350. 
 
 in interdicting publication of, 359 n., et seq. 
 
 ex parte, privileged, 364. 
 
 on trial, 497. 
 PROCHEIN AMY. See Guardian. 
 PROCTOR, justifying charge against, 317. 
 
 liability of, for defamatory statements, 344 n. 
 PROCURING to commit crime, charge of, not actionable, 170. 
 PRODUCE, notice to, 631. 
 
 PRODUCTION of documents, when ordered, 484, 488, 632. 
 PROFANE, charge of being, 237 n. 
 PROFESSION. See Trade. 
 PROFITS, loss of, is special damage, 263. 
 
 See Customers. 
 PROHIBITION, in cases of defamation. 43 n. 
 
 of publication of judicial proceedings, 359 n., et seq. 
 See Injunction. 
 PROHIBITORY liqiurr law, setting up to avoid payment, 220. 
 PROMOTER, charging a lawyer with being a, 250. 
 PROOF. See Evidence. 
 PROPERTY, reputation is, 690. 
 
 See Personal Property. 
 PROPRIETOR of newspaper, liability of, 104, 105 n. 
 PROSECUTING ATTORNEY, words concerning, 236 n. 
 PROSECUTOR, who is a, 736 n. 
 
826 Reference^ INDEX. [" to page. 
 
 PROSPECTIVE DAMAGES, not allowed, 519. 
 PROSTITUTE, what amounts to charge of being a, 148. 
 charge of being, not actionable, 190. 
 justifying charge of being a, 313 n., 314 n., 315 n. 
 charge of having one under protection or patronage, 134. 
 See Whore. 
 PROSTITUTION, charge of letting house for purposes of, 208. 
 PROTECTION, meaning of, 134. 
 
 of person, property or reputation, publications for the purpose of, are 
 privileged, 388. 
 PROTESTS, register of, a public document, 366. 
 PROVER under bankruptcies, charge of being, 240. 
 PROVINCE of court and jury, 502, 515. 
 PROVOCATION in mitigation, 681, 682 n., 683, 684. 
 PRUSSIAN CODE, provision of, as to libel on parent, 207 n. 
 PUBLIC AND PRIVATE ACTS, distinction of, 467. 
 
 acts, what are, 468. 
 PUBLIC eov/tt, what is a, 364. 
 
 dmner, alleging it was bad, not actionable, 294 n. 
 exhibition, criticism of, 452 n. 
 good, not defense that publication was for, 467 n. 
 house, not equivalent to bawdy house, 140. 
 interest, what are matters of, 468. 
 
 meeting, when reports of proceedings at, are privileged, 372. 
 proceedings at, how far privileged, 369, 466 n. 
 right of reporters to attend, 364 n. 
 publishing speech made at, 372, 373 n. 
 men, criticism of, 451, 465 n. 
 
 acts, but not supposed acts, open to criticism, 465 n. 
 extreme license of criticism, in England, 466 n. 
 private men, is there a difference in rights of, 466, 467. 
 prima fade, the subject of comment, 467 n. 
 officer, publication concerning, in Pennsylvania, 437 ». 
 criticism of, 451, 453, 453 n. 
 immunities of, 347 n. 
 See Candidate. 
 opinion, originated with the press, 444. 
 prosecutor, publications to, 331 n. 
 robber, charge of being, 227 n. 
 trust, charge of breach of actionable, 233 n. 
 writers, criticism of, 453. 
 PUBLICATION of language necessary, before language can have any effect, 
 22, 96 n. 
 must concern the plaintiff, 113 n., 552 n., 553 n., 629. 
 is an indirect wrong, 23. 
 restraining by injunction, 687. 
 agreement not to make, 30 n., 480 n. 
 
Reference^ INDEX. \istopagc. %2'J 
 
 ^XHAAQKIIO^.— continued. 
 
 to be unlawful must be voluntary, 53 n. 
 
 at plaintiflf's instance, 96 n. 
 
 the essential element of slander or libel, 58. 
 
 meaning of the term, 83. 
 
 mode of, formerly, 81 n. 
 
 necessity for, 83. 
 
 actionable, what is, 53 »., 54 re., 83. 
 
 to husband or wife of party affected, 84, 84 re. 
 
 in answer to questions, 420 re., 421 re. 
 
 place of, 90. 
 
 presumption as to place of, 92 n. 
 
 each one a distinct injury, 93 re., 95. 
 
 necessary to constitute a wrong, 22, 96 re. 
 
 involuntary, 99. 
 
 understanding necessarj- to, 84, 84 re. 
 
 of language, 84. 
 
 may be of oral or written language, 85. 
 
 of summons, 480. 
 
 to be alleged in complaint, 555. 
 
 how alleged, 89 re., 555, 556. 
 
 place of, how alleged, 558. 
 
 time of, how alleged, 558. 
 
 must be before action commenced, 90. 
 
 after action commenced, 656. 
 
 proof of time of, 630 re. 
 
 what amounts to, 83, 84, 85, 639 re. 
 
 oral, requisites of, 88. 
 
 in writing, requisites of, 89. 
 
 time of, 90. 
 
 place of, 90. 
 
 proof of extent of, 651, 651 re. 
 
 liability for, 94, 263 re. 
 
 joint, cannot be of oral language, 98. 
 
 by husband and wife, 99, 99 re., S3S. 
 
 privileged, 100, loi, 295, 299, 334 re. 
 
 proof of, 499, 626, 627 re., 631. 
 
 admission of, 420 re., 609 re., 610 n., 627 re., 637 re. 
 
 secondary evidence of, 628, 630, 631. 
 
 part may be privileged and part not, 396 n. 
 
 respecting one in trade, made on request, 403. 
 
 made without any request, 407, 408 n. 
 by a pastor to his parishioners, 414. 
 
 by customer respecting tradesman with whom he deals, 41 5. 
 made to persons not interested, 416, 427, 429, 430, 438. 
 by master respecting his late servant, 425. 
 concerning candidates for office, 435. 
 
828 Reference\ INDEX. \is to fage. 
 
 WBLlCATlOa.—cofiUnueel. 
 
 by or to electors, 438 n. 
 
 by mistake to B. instead of A., loi n., 421 n. 
 
 no injunction to restrain, 687, ei seq. 
 
 indemnifying against, 536 w., 661 n. 
 
 See Privileged Publication; Repetition. 
 PUBLISH, meaning of, 8i n. 
 PUBLISHED, meaning of. 81 n. 
 PUBLISHER, who is a, '92. 
 
 of slander or libel, charge of being. 207. 
 
 in what sense the term is used, 92. 
 
 and person liable as publisher not always one and the same, 92, 103. 
 
 proof of defendant being, 633, 634 n. 
 
 who liable as, 92, 93, "94, 95, 274 w.,275 n. 
 
 extent of liability, 93. 
 
 criticism of, 457. 
 
 belief of, when material, 280. 
 
 in mitigation, 306 »., 324 re., 668 n., 676, 678. 
 
 disbelief of matter published, 204 n. 
 
 indemnifying, 536 n., 651 n. 
 
 refusing to disclose name of author, 627 n., 652. 
 See Book; Magazine; Newspaper. 
 PUGILISTIC EXHIBITIONS, unlawful, 226. 
 PULPIT, privilege of, 415 »., 
 
 words from, 195 n., 199 n., 367 n., 369, 415 n. 
 See Sermon; Rector; Priest. 
 PUNCH, The London, charge of contempt of court against, 361 n. 
 PUNISHMENT. See Danger OF Punishment ; Infamous Punishment. 
 PUNITIVE DAMAGES. See Damages. 
 VVBiCiilASWG stolen goods, charge of, is actionable, 193. 
 PURSE-PROUD ARISTOCRAT, charge of being a, 220. 
 PUTAIN, spoken of an unmarried woman, actionable, 161 n. 
 
 QUACK, actionable, of a barrister, 251 n. 
 of a physician, 251. 
 of an optician, 253. 
 QUAKER. See Church Discipline. 
 QUESTION, charge by means of a, 175. 
 of fact, who to decide, 56. 
 
 whether language is concerning a person or a thing, 295. 
 taking from the jury, 57 n. 
 and of opinion, distinction between, 175 n. 
 of law, who to decide, 56. 
 
 is responsible for a publication, 627. 
 if occasion privileged, 512. 
 
Reference^ INDEX. {is to f age. 829 
 
 QUESTION.— fo«/z««^</. 
 for jury, 56. 
 
 whether ambiguous reference, or initials, or fictitious name, applies to 
 plaintiff, 116 n. 
 
 whether any publication, 509, 627. 
 
 whether the language concerns the plaintiff in any special capacity, 
 238 n. 
 
 whether a report is a fair one, 357, 357 ra., 358. 
 
 whether criticism is fair, 457 n., 463 n. 
 
 whether privilege exercised in good faith, 405, 514 n. 
 
 whether there is any excess in the comment, 455 n. 
 
 amount of damages, 516. 
 
 intention of defendant, 102 n., 647. 
 
 in England, where language capable of defamatory meaning, case 
 must be left to jury, 509 n. 
 See Jury. 
 
 RABBIT DESTROYER, charge of being a, 217. 
 
 RAPE, charge of committing, 195, 195 n. 
 
 RASCAL, charging a judge with being a, is actionable, 256 n. 
 
 charging a merchant with being a, is actionable, 248. 
 
 charging an attorney with being, is actionable, 248. 
 
 charge of being, not actionable, 198. 
 
 charge of being, actionable, if in writing, 207, 207 n. 
 RAVISHING, charge of, 177, 19S »• 
 
 a cow, 1 52. 
 READ, charge of being unable to, meaning of, 1 54. 
 
 defendant's inability to, in mitigation, loi n. 
 READER. See Hearer., 
 REASONABLE and probable cause, what it is, 711. 
 
 burden of proof of absence of, 713. 
 
 proof of absence of, 713. 
 
 rebutting evidence of want of, 716. 
 
 evidence of, 716, 717. 
 
 does not turn on guilt or innocence, 719. 
 
 effect of knowledge upon, 720, 722. 
 
 when a question of law, 725. 
 
 when a mixed question of law and fact, 729. 
 REBEL, action by, 530. 
 
 charge of being a, 197, 197 n. 
 REBELLIOUS KNAVE, not actionable, 235. 
 REBUS, defaming by means of, 118 71. 
 RECEIVER, liability of, 105 n. 
 
 of newspaper, 105 n., 106 n. 
 
 right of action for slander or libel, does not pass by assignment to, 
 
 531- 
 of stolen goods, charge of actionable, 192. 
 
 RECORD of judgment, publication of, 351 n. 
 
830 Reference^ INDEX. \is to page. 
 
 RECOVERY, when a bar to a subsequent action, 230. 
 
 See Former Recovery. 
 RECTOR, communications by to curate privileged, 367 n. 
 
 See Pulpit. 
 REDRESS, language published in seeking, is privileged, 374, 375. 
 REDUNDANT, refusing to strike out as, 564. 
 REFEREE, actions of slander or libel may be tried by, 497. 
 REGIMENT. See Officers. 
 REGISTER of the land office, false swearing before, is not perjury, 188. 
 
 of protests, publication of, is privileged, 366. 
 REGRATOR, charge of being a, not actionable, 166 n. 
 REGULAR prover under bankruptcy. See Prover Under Bankruptct. 
 RELATIONS, confidential communications between, 410 n. 
 RELIGIOUS INTOLERANCE, charge of, 216. 
 REMEDY for libel, 6. 
 for slander, 6. 
 for defamation, 7. 
 law provides, 35. 
 by action, 36. 
 
 for slander and libel, uncertainty as to introduction of, 37. 
 party taking in his own hands, 39 n. 
 referring to, to illustrate right, 30 n. 
 if none, no wrong, 30. 
 
 for injury by unfair report of judicial proceedings, 361 n. 
 REMOVAL of action into City Court, 481 n. 
 
 REMOVING land-marks, charge of, involves moral turpitude, 164. 
 RENTER ^/o&, words of, 225. 
 REPEAL of statute, effect of, on right of action, 169. 
 REPETITION, what is, 92. 
 
 admission of publication is not, 609 n., 610 n. 
 none of speech, 93. 
 effect of, 274. 
 
 who liable for, 94, 274, 274 n., 300, 300 n. 
 not a ground of defense, 301 n. 
 evidence of, 650 n. 
 
 as evidence of malice, 650 re., 654, 655, 656. 
 as mitigation, 686. 
 
 of charge made to a magistrate, 331. 
 See Republication. 
 REPLICATION, when necessary, 608. 
 REPLY, evidence in, 660. 
 
 REPORT of judicial proceedings, when privileged, 345 re., 351, 351 «., 356. 
 of legislative proceedings, 327, 329,351 re. 
 what is a fair report, 356. 
 
 of ex parte proceedings, how far privileged, 364. 
 of proceedings of a court where a contempt, 360 n. 
 of commissioner, not privileged, 366 n. 
 
Sefere,ue-\ INDEX. \is to page. 83 1 
 
 REPORT. — continued. 
 
 of inspector of charities, 366 n., 461 re. 
 of Committee of House of Lords, 365, 366. 
 of proceedings before registrar in bankruptcy, 365. 
 of proceedings before grand jury, 366. 
 of proceedings of medical society, 418. 
 of police commissioners, 366 n. 
 of auditor of public company, 387. 
 of speech of convict, not privileged, 366 n. 
 of speech at public meeting, not privileged, 372. 
 of speech in legislature, 327. 
 remedy of one affected by, 361 n. 
 when a contempt of court, 360 n. 
 REPORTER, privilege of, 364 n. 
 
 privilege of, by statute, in New York, 351 n. 
 REPRESENTATIONS, difference between mistaken and dishonest, 396 n. 
 REPUBLICATION, what is. 92. 
 
 cannot be of oral language, 93. 
 of speech in Parliament, 327 n. 
 of legislative proceedings, 328. 
 See Repetition. 
 REPUTATION, may be injured by acts, 2 n. 
 what it is, 24. 
 language affects, 24. 
 
 injury to, differs from injury to person or property, 26. 
 not an absolute right, 33. 
 defined, 24 n., 25 n. 
 is property, 690. 
 how the law protects it, 47. 
 is under protection of the law, 46 n. 
 value of, 47 n. 
 
 of plaintiff, in aggravation, 645. 
 in mitigation, 307 re., 679. 
 of plaintiff, in issue, 669, 670. 
 good, not presumed, 56. 
 proof of, 671, 671 71. 
 
 See Character. 
 REQUEST, for character of servant, 428. 
 effect of, on privilege, 397, 408 n. 
 REQUISITION, for arrest of fugitive, 335 n. 
 RESIDENCE of plaintiff, order to disclose, 483, 483 n. 
 RESPONDEAT SUPERIOR, principle of, 103, 104 re. 
 RESTAURATEUR, words concerning, 267 n. 
 RETAILER, language concerning, 225. 
 RETRACTION of charge, in mitigation, 304, 681, 681 re. 
 refusing a, evidence of malice, 658. 
 delay in publishing, 449 n. 
 
832 Reference^ INDEX. \is to page. 
 
 RE-TRIAL, before what judge, 497. 
 
 See New Trial. 
 RETURNED CONVICT, actionable, 169. 
 REVEALING secrets, charge of, 250. 
 REVERSAL of conviction, effect of, 323 n. 
 REVIVAL of action, in what cases, 530 n., 531 n. 
 REWARD, offering, for information, 391. 
 RHODE ISLAND, what words libelous in, 161 n. 
 RICH and poor, one rule for, 225 n. 
 RIGHT, the opposite to, is not a wrong but a duty, 27. 
 
 defined, 27. 
 
 object of, 27. 
 
 and duty reciprocal, 28. 
 
 pertains to persons, not to things, 28. 
 
 exercise of, is optional, 28. 
 
 how it must be exercised, 28, 28 n. 
 
 in some sense the result of law, 29. 
 
 every act is exercise of, &c. 29. 
 
 different under different laws, 30. 
 
 cannot catalogue, 31. 
 
 wrong is an invasion of, 32. 
 
 not proper to say law prescribes, 33. 
 
 impossibility of defining, 34. 
 
 kinds of, 32 re. 
 
 of action, not assignable, 531. 
 when it survives, 530, 531. 
 
 to open and close on trial, 497, 498. 
 RINGING, bells, i n. 
 
 RINGLEADER of the nine hours system, charge of being, not actionable, 217. 
 RIOTS. See Squatter Riots. 
 ROBBED— ROBBING— meaning of these terms, 148, 248 n. 
 
 charge of having, 151 n,., 182 n. 
 
 secreted not equivalent to robbed, 199. 
 
 not actionable by reason of context, 182 n. 
 ROBBERS, charge of being, not actionable by reason of context, 179 n. 
 
 See Public Robber. 
 ROBBERY, charge of attempt to commit, not actionable, 171 re., 198. 
 
 charge of, actionable, 182. 
 
 charge of, when not justified, 432 71. 
 ROBBING, charge of actionable, 177. 
 
 not construed feloniously, 248 n. 
 ROGUE, charge of being, is actionable, 193, 194, 207, 243, 247, 257. 
 
 is not actionable, 195. 
 
 of record, held actionable, 196 n. 
 
 See Arrant Rogue; Buggering Rogue: Bankrupt 
 Rogue; Murdering Rogue; Peddler; Tinker; 
 CucKOLDY Rogue; Perjured Rogue; Damned 
 Rogue. 
 
Reference\ INDEX. \is to page. $33 
 
 ROMAN CATHOLIC, and therefore a traitor, cannot be justified, 294 n, 
 
 ROMAN CATHOLIC PRIEST. See Priest. 
 
 ROMAN CIVIL LAW, administered in England, 39. 
 
 ROTTEN GOODS, charge of having, in store, 241. 
 
 RUGGED RUSSIAN BEAR, justifying charge of being a, 322 n. 
 
 RULES relating to remedy differ from rules determining when a wrong done, 
 
 36. 
 RUMORS not a defense, 302 n., 325 n., 596 n. 
 
 in aggravation, 652 n. 
 
 in justification, 325 n. 
 RUNAGATE, meaning of the term, 225 n. 
 RUSSIANS dread verbal insult more than a blow, 12 n. 
 
 SABLE, charge of stealing, 149. 
 
 SACRILEGE, charge of, not actionable, 196. 
 
 SALE. See Unlawful Sale. 
 
 SATIRIST differs from libeler, 5 n. 
 
 SATISFACTION, what amounts to, 442. 
 
 SAXON LAWS in England, 39. 
 
 SCAFFOLD, speech from, not privileged, 366 n. 
 
 SCANDAL defined, 2 n. 
 
 SCANDALOUS and familiar converse, meaning of the phrase, 144 n. 
 
 SCANDALOUS MATTER in a plea may be struck out, 334. 
 
 in a will may be suppressed, 82 n. 
 SCANDALUM MAGNATUM, not knovra in the United States, 127, 127 n. 
 SCHOOL COMMITTEE, communication to, how far privileged, 378 n. 
 SCHOOL HOUSE, charge of burning, 178 n. 
 SCHOOL-MASTER, words concerning, 199 n., 252, 253, 312, 414. 
 SCHOOL-MISTRESS, calling a dirty slut, 241. 
 
 charging with being insane, 241 . 
 SCHOOL-PUPILS, noise of, i n. 
 SCHOOL SUPERINTENDENT, criticism by, 465 n. 
 SCHOOL TEACHER, words of, 225, 241, 378 n., 398 ». 
 
 charge of making false report, 241, 299 n. 
 
 untruthfulness, and want of chastity, 241, 
 
 criticism of, 465 n. 
 SCIENTER, when to be alleged, 130, 193 n. 
 
 when need not be alleged, 130 n. 
 
 when implied, 234 n. 
 
 See Knowledge. 
 SCOLDING, indictable, 6 n. 
 
 SCOTLAND, what language is actionable in, 160 n. 
 SCOUNDREL, oral charge of being, not actionable, 196. 
 See Convicted Scoundrel. ' 
 SCREWED, meaning of, 123 n. 
 SEALER OF WEIGHTS, words concerning, 208. 
 
 53 
 
834 Reference] INDEX. \is to page. 
 
 SEARCH WARRANT, defamatory matter in the affidavit to obtain, 335 n., 
 351 n. 
 
 charge made to officer executing, 333 n. 
 SECOND ACTION, when barred, 230. 
 
 staying proceedings in, 482 n. 
 
 staying proceedings in until costs of first action paid, 528. 
 See Former Recovery. 
 SECONDARY EVIDENCE of libelous publication, 633, 633 n. 
 
 of paper not produced, 636 n. 
 SECRECY, injunction of, 639, 680 n. 
 
 SECRET INTENT of publisher, when not material, 129 re. 
 SECRETARY of State, letters to, privileged, 382, 383. 
 
 of Treasury, report to, privileged, 379. 
 
 of War, letters to, privileged, 378, 382. 
 SECRETING, charge of, does not amount to a charge of robbery, 199. 
 SECRETS, charge of revealing, 250. 
 SECURITY for costs, when required, 482. 
 SEDITIOUS SERMON, charge of preaching, is actionable, 253. 
 SEDUCER, charge of being, is actionable, 197, 207 n. 
 SEDUCTION, fiction in action for, 48. 
 SEEKING REDRESS, publication in the course of, 374. 
 SELECTMAN, privilege of, 368, 372. 
 SELF-DEFENSE or justification, language pubhshed in, is'privileged, 341 n., 
 
 343. 345, 388- 
 
 See Defense; Vindication. 
 SELF-POLLUTION, charge of, 191. 
 SENATOR, words concerning, 236. 
 SENTIMENTS, no direct remedy for outrage of, 39. 
 SEPARATE ACTIONS for same libel, 115 n., 442 n. 
 
 by partners, 229. 
 SERIOUS AMOUNT, justifying charge of stealing to a, 318. 
 SERMON, how far the subject of criticism, 468. 
 prohibiting publication of, 695. 
 
 See Pulpit ; Seditious Sermon. 
 SERVANT, when liable as publisher, 100, loi n. 
 
 no injunction to restrain dismissal of, 690 n. 
 
 employer liable for acts of, 103, 103 n., 104 n., 426. 
 
 loss of employment is special damage, 265 n. 
 
 charge against, when privileged, 374 n. 
 
 communication to employer concerning, when privileged, 407. 
 
 notice of discharge of, 389 n. 
 
 giving character to, 425, 428. 
 
 cannot maintain action against master for refusing to give a character, 
 
 428 n. 
 words concerning, 209 n., 422, 423 n. 
 
 See Domestic Servant; Master. 
 SERVICE OF SUMMONS; in action for libel, 480. 
 
Reference\ INDEX. {is to f age. 835 
 
 SET-OFF of one libel against another, 608, 608 n. 
 
 See Counter-claim. 
 SHAREBROKER, See Stockbroker. 
 SHAREHOLDER. See Stockholders. 
 
 SHARP PRACTICE, saying of a lawyer he had been reprimanded for, 250. 
 SHAVING PURPOSES, meaning of the term, 134 n., 148. 
 
 charge of putting money in Wall street for, not actionable, 216. 
 SHEARING. See Sheep. 
 SHEEP, charge of shearing, 184. 
 
 charge of stealing, 193. 
 SHEEP-STEALER, charge of being, is actionable, 193. 
 SHERIFF, words concerning, 257. 
 
 petition for removal of, 378 n. 
 See Undersheriff. 
 SHIP, language concerning, 282 n.. 391. 
 
 charge that it is unseaworthy, 241, 241 n. 
 
 justification of charge that ship is unseaworthy, 313 n. 
 
 form of declaration for language concerning, 281 n. 
 See Shipowner. 
 SHIPMASTER, words concerning, 246, 391, 393 n. 
 
 See Master Mariner. 
 SHIPOWNER, words concerning, 241, 241 n. 
 SHOEMAKER, words concerning, 177, 243 «., 252. 
 SHOOTING out of leather gun, charge of, is actionable, 207 n. 
 
 judicial notice of meaning of, 120 n. 
 SHOP-KEEPER, charging with keeping rotten goods, actionable, 241. 
 
 See Tradesman. 
 SHOUTS of spectators, evidence of, 665 n. 
 SHYSTER.-witness not to testify to meaning of, 640 n. 
 SICKNESS, is not special damage, 271, 521. 
 SIGNS, a means of injury, i . 
 SINCERITY, charge of want of, 259. 
 SINGLE WOMAN. See Unmarried Woman. 
 SKUNK, charge of being, actionable, 128 ra., 207. 
 SLANDER defined, 3, 3 ra., 81. 
 
 not indictable, 6 n. 
 
 remedy for, 6. 
 
 and libel, distinction between, 11, 12. 
 personal injuries, 480. 
 
 proposed assimilation of, 44 n. 
 
 consists of two acts, 58. 
 
 requisities of, 58. 
 
 charge of being author or publisher of, 207. 
 
 action for, not to be encouraged, 132 n. 
 
 corporation cannot be guilty of, 474. 
 
 a private wrong, 6. 
 
 must language be defamatory to constitute, 58, 59 n. 
 
I836 Reference^ INDEX. \is to page. 
 
 SLAT>iD'ER.—coniiMued. 
 
 member of the legislature not liable for, 325, 327 re. 
 See Libel; Slander of Title; Words. 
 SLANDERER, who is, 3. 
 
 Fielding's description of a, 5 n. 
 
 charge of being a, 207. 
 SLANDER OF TITLE, part of the law of language concerning a thing, 112, 
 284. 
 
 not properly an action for slander, 112 re. 
 
 distinction between writing and speech does not apply to, 13 n. 
 
 who may maintain, 283 re. 
 
 complaint for, 291 re. 
 
 and trespass, cannot be joined, 585. 
 
 plea in action for, 293 re. 
 
 a metaphorical expression, 112 re. 
 
 what necessary to maintain action for, 283. 
 
 damages in action for, 285, 293 re. 
 
 to personal property, 285, 292. 
 
 to a slave, 292 re. 
 
 attorney not liable for rejecting title, 286 n. 
 
 advice of counsel as a defense, 291. 
 
 bill of particulars in action for, 293 n., 494. 
 
 exemplary damages in, 293 re. 
 See Things. 
 SLANDEROUS RASCAL, justifying charge of being, 314. 
 SLANDEROUS WORDS, action for, 158 n. 
 
 held not to mean libel, 1 58 re. 
 
 charge of being publisher of, is actionable, 207. 
 
 within Vermont statute, 158 re. 
 SLANG, meaning of a matter of fact, 502 re. 
 SLAVE, selling spirituous liquors to, held to involve moral turpitude, 164 n. 
 
 slander of title to, 292 re. 
 
 words used by the owner of, in defending, 343 n. 
 SLUT, calling a schoolmistress dirty slut, actionable, 241. 
 SMALL POX, charge of having, not actionable, 202. 
 SMITH, words concerning, 247. 
 SMUGGLING, charge of, is actionable, 209. 
 
 justifying charge of, 315, 316. 
 SOBER MOMENTS, may impute drunkenness, 119 re. 
 SOCIAL LEPER, charge of being, 436 re. 
 
 See Leper. 
 SODOMITE, oral charge of being, not actionable, 197; contra, 197 n. 
 SOIL, taking in New York may be a crime, 183 re. 
 
 See Marl. 
 SOLDIER, actionable to charge a tradesman with being a, 126 re. 
 SOLICITING io commz'i murder, involves moral turpitude, 165. 
 SORCERER, oral charge of being, not actionable, 196. 
 
Refermci\ INDEX. \is to page. 837 
 
 SOUGHT, the term implies more than intent, 172 n. 
 SOUNDS and signs, a means of injury, i. 
 SOUTH CAROLINA, charge of stealing in, 170 n. 
 
 calling a woman whore is actionable in, 190 n. 
 SOVEREIGN, petition to the, is privileged, 377. 
 SPACE, allegations of, are divisible, 1 56. 
 SPECIAL CHARACTER, language concerning one in, 221. 
 
 evidence of, 235, 644. 
 SPECIAL DAMAGE, nature of, 158, 261. 
 
 must be of a pecuniary nature, 50 n. 
 
 occupation supplies the place of, 223 n., 248 n., 580 n. 
 
 in what it consists, 261, 270 n., 519, 519 re., 579. 
 
 language actionable by reason of, 261. 
 
 apprehension of loss is not, 269. 
 
 loss of services of wife, when it is not,^27i n., 520 n. 
 
 occurring -after a recovery in an action for the defamation, 271, 271 n. 
 
 occurring after action commenced,'' 5 19. 
 
 illegal act of third party, 271, 273 n., 274 n. 
 
 effect of repetition is not, 274-278. 
 
 must be alleged in complaint, 112 n., 579, 739. 
 
 need not be alleged, 248 re., 579'n. 
 
 general issue is a denial of, 664. 
 
 traverse of, 580, 664 re. 
 
 proof of, 267 re., 583. 
 
 when question for jury, 521. 
 
 what is not a statement of, 265 n., 267 n., 282 »., 291 re., 491 n., 492. 
 
 that publication did not occasion, 275 n. 
 
 in slander of title, 279-284. 
 
 See Damage ; Customers. 
 SPECIAL DEMURRERS, abolished in England, 582 n. 
 
 abolished in New York, 606 n. 
 See Demurrer. 
 SPECULATOR. See Land Speculator. 
 SPEECH, is oral language, I. **> 
 
 distinction between sound and its signification, 93. 
 
 no repetition of, 93. 
 
 criminal prosecution for, 3 re. 
 
 in Parliament, when privileged, 325. 
 
 in Congress or State legislature, when privileged, 325. 
 
 of convict on scaffold, report of not privileged, 366 n. 
 
 of counsel, effect of, 498. 
 
 is privileged, 343. 
 publication of, 345. 
 
 at public meeting not privileged, 369, 373 re. 
 republication of, 328 re., 373 re. 
 See Freedom of Speech. 
 SPY, charge of being a, 210. 
 
838 Reference] INDEX. [is to fas^e. 
 
 SQUATTER riots, charge of figuring in, 135. 
 STAGE AGENT, words concerning, 247. 
 
 See Steamboat Agent. 
 STALLION, language concerning a, 293 n. 
 STAND, held to mean witness stand, 186 n. 
 STAR CHAMBER, restrained the publication of libels, 687. 
 STARVING A CHILD, charge of, 246. 
 STATUES, included in effigy, 3 n. 
 STATUTE OF LIMITATIONS, charge of having plead, not actionable, 219. 
 
 in the several States, 480 n. 
 
 must be'pleaded, 588. 
 
 leave to add plea of, 623 n. 
 See Limitation. 
 STATUTES, effect of repeal on right of action, 169. 
 
 defining libel, 19 n., 20 n. 
 
 defining privilege, 295 »., 298 n. 
 STAYING PROCEEDINGS in action, 482 n., 528. 
 
 until return of commission to examine witnesses, 496. 
 
 until plaintiff tried for offense charged, 530. 
 
 until costs of former suit paid, 528. 
 STAYMAKER, words concerning, 240. 
 STEAL, meaning of the term, 149. 
 STEALING, what amounts to charge of, 118 n., 135, 140 »., 149, 151. 
 
 charge of, in foreign State, 170 n. 
 
 justification of charge of, 313 n., 314. 
 
 goods of married women, 137 n. 
 
 a will, charge of, 171 n. 
 STEAMBOAT, words concerning, 281 n. 
 STEAMBOAT AGENT, language concerning, 247. 
 
 See Stage Agent. 
 STINKING OF BRIMSTONE, charge of, is actionable, 208. 
 STIPULATION, courts will enforce, 441 n., 497. 
 
 as to death not abating action, 531 n, 
 STOCKBROKER, words of, 218, 225, 244 n. 
 STOCKHOLDERS, words concerning, 244 n., 398 n. 
 
 meeting, proceedings at, how far privileged, 370. 
 
 reports to, privileged, 387, 418. 
 STOCKS, charge of selling under false representations, 218. 
 STOLE, meaning of the term, 120 n., 149, 149 n. 
 
 as good as, not actionable, 183 n. 
 STOLEN, meaning of the term, 149. 
 STOLEN GOODS, charge of being receiver of, actionable, 193. 
 
 charge of purchasing, when actionable, 193. 
 
 charge of having, not actionable, 242. 
 STORE, charge of breaking into, 184. 
 STRAINED, meaning of, 123 n. 
 
Reference] INDtX. \is to page. 3 39 
 
 STRIKING OUT complaint, for plaintiff not answering proper question, 
 663 n. 
 
 matter in mitigation, 605, 605 n. 
 
 defamatory matter in pleading, 334, 334 n. 
 
 defamatory matter in record of will, 82 n. 
 STRUCK JURY, when it may be ordered, 497. 
 
 STRUCK OFF THE ROLL, charge that an attorney was, what is not a jus- 
 tification, 316. 
 STRUMPET, meaning of, 190 »., 620 n. 
 
 actionable in Bristol, 190 n. 
 SUBORNATION of perjury, charge of, 184 n. 
 
 SUBSCRIBER to a charity, publication by, respecting the charity, 381, 412. 
 SUBSCRIPTIONS, publishing that plaintiff not authorized to receive, 218. 
 SUBSEQUENT DAMAGES, no action for, 442 n., 519. 
 SUBSEQUENT PUBLICATION. See Repetition. 
 SUFFER, meaning of the term, 1 50. 
 SUICIDE, charging one with causing another to commit, 146 »., 199. 
 
 See Death. 
 SUITORS, loss of, is special damage, 265, 265 n. 
 SUMMING UP of counsel, on the trial, 498. 
 SUMMONS, action commenced by, 480. 
 
 may be served by publication, 480. 
 SUPERINTENDENT of railway, language concerning, 402. 
 SUPERIOR OFFICER, reports to, how far privileged, 378, 381. 
 SUPPLEMENTAL COMPLAINT, when allowed, 584. 
 SURGEON, publication concerning, 457. 
 
 See Physician. 
 SURPLUSAGE, rejecting the innuendo as, 574, 579. 
 
 rejecting inducement as. 543. 
 
 preliminary panegyric on plaintiff is, 543. 
 SURVEYOR, language concerning, 247. 
 SURVIVAL of right of action for slander or libel, 531. 
 SUSPENDED payment, charge that a banker had, 244 n. 
 SUSPENSION, justifying charge of, 317. 
 SUSPICION, words denoting, not actionable, 173. 
 
 and belief, distinction between, 173 n. 
 
 not a justification, 324, 325 »., 674. 
 
 in mitigation, 325 n., 674, 678, 679 n. 
 SWINDLER, oral charge of being, not actionable, 197, 375 "•• 
 
 charge of being, actionable if in writing, 197, 207, 207 71., 246, 246 ». 
 
 charging a merchant with being, is actionable, 246 n. 
 a banker with being, is actionable, 197 n. 
 
 what will not justify a charge of being, 312 ra., 593 n. 
 
 can court take judicial notice of its meaning, 120 n. 
 SWISS GALLOWS, meaning of the phrase, 640 n. 
 SYCOPHANT, charge of being a, 259. 
 
840 Seference] INDEX. [is to page. 
 
 TAILOR, words concerning, 243 n., 247. 
 TAINTED FOOD, selling, a criminal offense, 247 n. 
 TAKEN away, meaning of the term, J51, 596 n. 
 
 See Took. 
 TAKING, meaning of the term, 1 5 1 ra. 
 
 charge of, when actionable, 183. 
 See TOOK. 
 TAMPERING with weights, charge of, 208. 
 TAN-MONEY, judicial notice of meaning of, 120 n., 148 n. 
 TANNER, words of, 177 n. 
 TEA, charge of stealing, 182. 
 TELEGRAPH, publication may be by means of, 82 n. 
 
 publication by, not privileged, 418, 418 n. 
 TENANT, refusal to employ, 290 n. 
 TENNESSEE, what language is actionable in, 161. 
 TERMINATION of prosecution, what is, 707, 707 n. 
 TESTIMONIAL of patent medicine, forgery, 178 n. 
 TEXAS, restraining publication of libel in, 689 n. 
 
 court may order destruction of libel in, 82 n. 
 
 statute as to taxing sellers of Poljce Gazette, 445 n. 
 TEXT-BOOKS, errors in the mode of composing, 10. 
 THEATRE, words concerning proprietor of, 267. 
 
 right to comment on, 268 n. 
 THEATRICAL managers, rule as to language concerning, 436. 
 
 See Criticism. 
 THIEF, charge of being, when actionable, 151, 168, 180. 
 
 not actionable by reason of the circumstances, 151 n. 
 
 charge of having been a, 168. 
 See Larceny. 
 TW^SMY^G person, puppy or rogue , actionable, 152, 176, 177. 
 THIEVISH KNAVE, not actionable, 176. 
 PIRATE, actionable, 177. 
 PUPPY, actionable, 177. 
 THINGS have no rights and owe no duties, 28. 
 
 language cannot affect, 23. 
 
 what is meant by, 278. 
 
 language concerning, 112, 278, 279. 
 
 words are, 2 n., 480 n. 
 
 See GOODS; Slander of Title. 
 THREATENING LETTERS, charge of sending, 152, 152 n. 
 
 action for sending, 205 n. 
 
 U. S. statute against sending through the mail, 1 52 n. 
 THREATS, action for, 3 n. 
 
 to prevent attendance of witnesses, 657. 
 
 to extort money, charge of, 211 n. 
 
 to publish, 639 n. 
 
Seferencel INDEX. \is to page. 84 1 
 
 TIME, how it affects the meaning of language, 122 n. 
 error as to in a justification, 600 n. 
 allegations of, are divisible, 1 56. 
 material in criminal proceedings, 630 n. 
 of publication, how alleged, 558. 
 
 how proved, 630 n. 
 of limitation, 480. 
 TINKER, a rogue by statute, 225 n. 
 
 TITLE, slander of, included in language concerning things, 112. 
 claim of, whether actionable, 289. 
 See Slander of Title. 
 TOLLS, renter of, words concerning, 225. 
 TONGUE, the iniquity of the, 2 n. 
 TOOK, construed to mean stole, 183 n. 
 
 See Taken. 
 TORT and crime, difference between, 91 n. 
 committed at sea, 91 n. 
 
 in foreign country or State, 91 n. 
 jurisdiction of, 91 «. 
 See Wrong. 
 TORY, charge of being, is actionable, 207. 
 
 TOWERING PASSION, charging a minister with entering a pulpit in a, ac- 
 tionable, 255. 
 TOWN, charge of robbing, 148 n. 
 TOWN CLERK, words concerning, 258. 
 
 TOWN MEETING, proceedings at, are privileged, 370 %., 371. 
 TRADE, language concerning one in trade may be actionable, which not 
 actionable if concerning an individual as such, 116, 221. 
 distinction between speech and writing, does not extend to words of 
 
 one in trade, 13 n. 
 humility of, no obstacle to right of action, 225 n. 
 must be a lawful one, 224, 226. 
 legality of, need not be alleged, 549. 
 words concerning one in, 222, 234. 
 presumption of continuance in, 236. 
 being in, stands in place of special damage, 223 n. 
 business includes, 224 n. 
 
 the fact of plaintiff being in, how alleged, 547, 548 n. 
 society for protection of, circular letter from, 417. 
 
 See Commercial Agency; Tradesman. 
 TRADESMAN, words of, 126 ra., 402 n., 403. 
 
 law is tender of the reputation of, 223 n. 
 
 charge of keeping false books, 234. 
 
 charge of being bankrupt or insolvent, ig6, 235 w., 242, 402 n. 
 
 charge of fraud by, 245. 
 
 charge of ignorance, 250, 253. 
 
 charge that his place of business not respectable, 241. 
 
842 Se/mnce] INDEX, [«> to page. 
 
 TR ADESM AN . —continued. 
 
 saying that his checks were dishonored, actionable, 244. 
 
 can have an action for words published concerning the article in which 
 he deals, 280 n. 
 
 right of customer to complain of, 415. 
 
 charge of adulterating his wares, 200, 206, 241, 246. 
 
 See Painter; Shopkeeper; Trader; Upholsterer. 
 TRAIL-LE-BASTON, outlaw's song of, 81 n. 
 TRAITOR, actionable, 193, 295 n. 
 
 See Loyalty ; Roman Catholic. 
 TRAITOR KNAVE, actionable, 176. 
 TRAITOROUS KNAVE, actionable, 176. 
 TRANSACTION, what is a, 27. 
 
 two questions arise in, 56. 
 TRANSCRIPT of judgment, publishing, 351 n., 352 n. 
 TRANSITORY, actions for libel are, 482. 
 
 TRANSPORTABLE OFFENSE, charge of committing, actionable, 195. 
 TRANSPORTATION, what amounts to a charge of crime punishable by, 153. 
 TREASON, overt act necessary to, 6 n. 
 
 charge of intent to commit, 172. 
 TREASURY, charge of robbing the, 148, 18^. 
 TREE, charge of stealing, 149. 
 TRESPASS, charge of, not actionable, 165 n. 
 
 words do not amount to, 3 n. 
 
 first reported case of action for, 36 n. 
 
 and slander of title, cannot be joined in one complaint, 585. 
 See Malicious Trespass. 
 TRIAL, place of, 91 ra., 482. 
 changing, 483. 
 
 of issues in action for slander or libel, 497. 
 
 when judge may refuse to try, 497. 
 
 proceedings on, 497, 594 n. 
 
 when may be private, 352 n. 
 
 right to begin on, 497. 
 
 opening and summing up of counsel on, 498. 
 
 reading publication on, 499, 
 
 evidence on, 499, 500. 
 
 objecting to sufficiency of answer on, 594. 
 
 admissions in answer cannot be retracted at, 587 n. 
 
 abandoning defense on, 501, 503. 
 
 aggravating damages by proceedings on, 498, 499 »., 659 ». 
 
 province of court and jury on, 502, et seq. 
 
 aggravating damages by mode of conducting, 498. 
 
 abandoning one or more causes of action on, 501. 
 
 by jury, origin of, 40 n. 
 
 amendment on, 623, 623 n. 
 See New Trial. 
 
Seferaice] INDEX. {is to page. 843 
 
 TRUCKMASTER, meaning of, 120 n., 639 n. 
 TRUST, caution not to, 407. 
 
 See Breach of Trust; Public Trust. 
 TRUSTEE, charge against, of misappropriating funds, 198 n. 
 TRUTH, is a justification of slander or libel, 59 re., 306, 307. 
 
 not a justification for writing defamatory matter on plaintiff's docu- 
 ments, 307, 308. 
 defense of, must be pleaded, 307 n., 591, 665, 674. 
 pardon no answer to defense of, 307 re. 
 effect of establishing defense of, 307 n. 
 a question for jury, 508. 
 justification on ground of, must be as broad as the charge, and of the 
 
 very charge, 311, 592. 
 justification on ground of, need go no farther than the charge, 319. 
 plea of, is an issuable plea, 59. 
 defense of, not new matter, 608 n. 
 should extend to every part of the defamatory matter which can form 
 
 a substantive ground of action, 321 n... 322. 
 justification of charge of perjury, 313 re., 315 n., 323. 
 justification must be of the meaning assigned by the innuendo, 313 n., 
 
 596 n., 600 n. 
 justification on ground of truth, on assessment of damages, 495. 
 belief in truth. See Belief. 
 requisites of plea of, 323 n., 324 n., 591, 596] 
 in mitigation, 675. 
 
 provisions of N. Y. Constitution as to defense of truth do not apply to 
 civil actions, 307 re. 
 
 See Greater the Truth. 
 
 UMBRELLA manvfcuiturer, words concerning, 440 n. 
 UNCHASTITY, charge of, when actionable, 162, 189, 209, 241. 
 
 seldom made in plain terms, 129 n. 
 
 what amounts to charge of, 162 n. 
 See Incontinence. 
 UNINCORPORATED COMPANY, cannot sue for libel, 115 n. 
 
 See Corporation. 
 UNITED STATES Collector, language concerning, 259. 
 
 mail, charge of robbing, 181. 
 UNLAWFUL act, meaning of, 29 n. 
 
 business, one in cannot sue, 224. 
 
 sale of intoxicating liquors, justifying a charge of, 314. 
 See Illegality. 
 UNMARRIED WOMAN, language concerning, 143, 161, 191, 265. 
 UNNATURAL OFFENSE, what amounts to a charge of, n8 «., 152. 
 
 charge of, when actionable, 161, 195. 
 
 charge of, not actionable, 171, 171 n. 
 
 justifying charge of committing, 314- 
 
844 Reference] INDEX. \istofage. 
 
 UNSEAWORTHY. See Ship. 
 
 UNSKILLFULNESS, charge of, when actionable, 250, 253. 
 UNTRUTHFULNESS, charging a schoolmistress with, actionable, 241. 
 
 an architect with, 237 n. 
 See Falsehood. 
 UNWHOLESOME meat, charge of selling, 246. 
 
 water, charge of using, how justified, 312. 
 See Adulteration ; Tainted. 
 UNWORTHY MOTIVES, imputation of, is actionable, 213. 
 UPHOLSTERER, words of, 126 n. 
 USED^held to import incest, 135 n. 
 
 VAGABOND, charge of being a, not actionable, 197. 
 VAGRANT, charge of being, is actionable, 194. 
 
 oral charge of being, is not actionable, 197. 
 VARIANCE, as to words published in a foreign tongue, 563. 
 
 in New York, when material, 609. 
 
 what will amount to, 609. 
 
 instances of immaterial variance, 613, 614. 
 
 instances of material variance, 275 »., 315, 548 n., 593 n., 616, 623. 
 
 amendment of, 623. 
 
 in malicious prosecution, 6i6 n. 
 
 See Failure of Proof. 
 VARLET, charge of being, not actionable, 197, 238 n. 
 VEGETABLES, carrying away in Pennsylvania, 183. 
 VENEREAL DISEASE, charge of having, is actionable, 200. 
 
 that plaintiff's stallion had, 293 n. 
 
 charge of having, does not impute unchastity, 640 n. 
 
 variance in proof of charge of, 623. 
 VENUE, in actions for slander and libel, 482. 
 
 change of, 482. 
 
 cannot be objected to, after judgment by default, 495 n. 
 VERBAL. See Oral Words. 
 VERDICT, construction after, 136. 
 
 for part not justified, 322 n. 
 
 effect of, on the costs„if to be considered, 517. 
 
 what amount will carry costs, 527. 
 
 on one of several counts, 522. 
 
 for defendant, because no proof of malice, 102 n. 
 
 compromise, what not evidence of, 515 n. 
 
 setting aside for excessive damages, 524. 
 
 setting aside for insufficient d^amages, 525. 
 
 setting aside as against evidence, 57 ra., 526, 527. 
 
 injunction against, 72 n. 
 
 defects cured by, 136, 534, 551, 552, 552 »., 556 ra., 563 n., 566 »., 578, 
 738. 
 
 See General Verdict; Infamous Verdict. 
 
RefirenciX INDEX. [is to page. 845 
 
 VERIFICATION of answer, not compulsory, 587 n. 
 
 VERMONT, no new trial in, because verdict against weight of evidence, 57 n. 
 
 action for slander in, 92 n. 
 
 judiciary act, slander within, 158 «. 
 
 sending threatening letters in, 205 n. 
 VESTRY MEETING, report of proceedings at, not privileged, 371. 
 VILLAIN, charge of being, held actionable, 194, 248, 256 n. 
 
 not actionable, 197. 
 
 actionable, if in writing, 207. 
 
 charge in meaning of the term, 122 n. 
 VINDICATION, publications made in, 393. 
 
 VINDICTIVE DAMAGES, when allowed, 476 n., 498, 517, 517 71., 521, 521 » 
 VIOLENT CONDUCT, what a justification of a charge of, 312. 
 
 See Conduct. 
 VIOLENT PARTISAN, charge of being a, 259. 
 VIRGINIA, what language is actionable in, 160. 
 
 effect of demurrer in, 509 n. 
 
 is demurrer allowed in, 606 n. 
 
 privileged communication in, 400 n. 
 
 charge of stealing in, 170 n. 
 
 statute requiring proof of malice, 74 ii,. 
 as to libel, 160, 160 n. 
 VOLUNTARY act, what is, 61. 
 
 publication, may be privileged, 397 n. 
 
 affidavit, not a judicial proceeding, 337 n., 340 n., 748. 
 
 benefit., withdrawal of, is special damage, 270 n. 
 See Affidavit, Involuntary. 
 VOTE, charge of fraudulently destroying, is actionable, 195, 258. 
 
 false declaration of right to, involves moral turpitude, 165. 
 VOTER, charge against, of false swearing at an election, 188 n. 
 
 charge of voting twice is actionable, 208. 
 
 words which deter him from voting are actionable, 231 n. 
 
 charge of unduly influencing, 208. 
 VOTING, charge of illegal, 208. 
 
 WALL, proof of writing on, 631 ra., 633 n. 
 
 WANT OF CREDIT. See Credit. 
 
 WAR. See Secretary of War. 
 
 WARD BEADLE, liable to action for slander, 348 n. 
 
 WARRANT. See Distress Warrant ; Search Warrant. 
 
 WATCHMAKiER, words concerning, 215, 252 n. 
 
 WATER. See Unwholesome Water. 
 
 WATERED MILK, charge of supplying, 163 n. 
 
 See Milk. 
 WAY WARDEN, language concerning, 451 n. 
 WEALTH of defendant, to aggravate damages, 652. 
 WEAVER, words of, 181, 245. 
 
846 Refere7ue\ INDEX. [it to page. 
 
 WEDGE, inserting. See False Weights. 
 
 WEIGHT. See False Weights; Tampering. 
 
 WELCHER, oral charge of being, not actionable, 197. 
 
 WELSH WORDS, court will inform itself as to meaning of, 120 n. 
 
 WEST VIRGINIA, power of court to punish for contempt in, 362 n. 
 
 WHIPPING wife or mother, charge of, not actionable, 198. 
 
 WHORE, what amounts to a charge of being a, 1 53, 
 
 charge of being, when actionable, 161, 190. 
 of keeping company with, 254 n. 
 
 justifying charge of, 313 ra, 315 n., 319, 592 »., 620 n. 
 
 See Common Whore; Prostitute; Strumpet. 
 WHOREDOM, what implies a charge of, 1 53 n. 
 
 words imputing, when actionable, 161. 
 WHORE-HOUSE, equivalent to bawdy-house, 140. 
 
 charge of keeping, is actionable, 194. 
 
 charge of letting, 208. 
 WHOREMASTER, charge of being, not actionable, 197. 
 
 minister being, is actionable, 254 n. 
 
 charge of being, actionable, if special damage, 266. 
 WHOREMONGER, charge of being, is actionable, 195. 
 WICKED MAN, applied to a bishop, actionable, 254?!. 
 WIDOWER, words concerning, 266. 
 WIFE, when letters to, not privileged, 384 n. 
 
 charge of burning building belonging to, 178 n. 
 
 charge of deserting husband, 209 n. 
 
 desertion of, by husband, not special damage, 278. 
 
 charge of whipping, not actionable, 198. 
 
 loss of, is special damage, 266. 
 
 cannot sue husband for slander or Hbel, 532. 
 
 when husband liable for tort of, 99 n., 532 «., 535 n. 
 
 publication to, 84. 
 
 advertising elopement and non-liability for debts of, 389. 
 See Husband and Wife; Married Woman. 
 WILD BEES, charge of stealing, 149. 
 WILL, charge of destroying, not actionable, 171. 
 
 charge of suppressing, 249. 
 
 libeler could not make nor take under, 207 n. 
 
 publication of defamatory matter in, 82. 
 
 suppression of defamatory matter in, 82 n. 
 
 charge of stealing, actionable, 171 ra. 
 See Intention. 
 WILLFUL, meaning of, 318 n. 
 
 WILLFUL MISCONDUCT, justifying charge of, 318. 
 WILLFULLY and maliciously, meaning of, 75 n. 
 WILLFULLNESS, is malice, 103 n. 
 WINDOWS, charge of stealing, 1 50 n. 
 WINE MERCHANT, language concerning, 413. 
 WISCONSIN, what words hbelous in, 161 n. 
 
Reference'] INDEX. \is to page. 847 
 
 WITCH, charge of being, not actionable, 197. 
 
 WITH CHILD, charge of being, 191. 
 
 WITHDRAWING a juror, when allowed, and effect of, 528. 
 
 WITNESS, cannot be asked how he understood the language published, 85, 
 85 »., 116 «., 130 re., 642. 
 cannot aid innuendo, 576, 640 n. 
 admission by, 627 n. 
 
 who knows who is the author of a libel is bound to disclose his knowl- 
 edge, 639 n. 
 
 action for slander against for words spoken as, 338, 462. 
 
 opinion of, as to meaning, not allowed, 116 re., 130, 639, 639 n., 640, 
 641, 642. 
 
 opinion of, as to meaning, allowed, 130 ra., 504 n. 
 
 when he may refuse to testify, 634, 634 n. 
 
 must himself object that answer may imperil him, 634, 634 n. 
 
 commission to examine, 496. 
 
 defendant as a, 485, 643 n., et seg. 
 
 charging with false swearing, 188. 
 
 examination of party as before trial, 485, 486, 635. 
 
 judgment of, not to be substituted for judgment of jury, 130 n. 
 
 charging with unworthy motives, 213. 
 
 may refresh his memory, 629. 
 
 cannot state his impressions, 629. 
 
 subject of criticism, 462. 
 
 counsel as, 633 n. 
 WITTOL, import of the term, 207 n. 
 WOMAN, charge of being a man, actionable, 266 n. 
 
 uttering obscene words in presence of, 161, 161 n. 
 
 words of, with special damage, 192 n. 
 
 See Female ; Hermaphrodite. 
 WOOD, charge of steaHng, 149, 181. 
 WOODENWARE, words concerning a dealer in, 244 ». 
 
 allegation of being a dealer in, 548 n. 
 WOOL-COMBER, judicial notice of meaning of, 120 n. 
 WOOL STAPLERS, words of, 229. 
 WORDS, a cause of mischief, i n. 
 
 are acts, 2 n. 
 
 a thing done, 480 n. 
 
 action on the case for, 36, 36 n. 
 
 the phrase, action for, 14 n. 
 
 may be divided into three classes, 109 n. 
 
 imputing crime, must be precise, 118 n. 
 
 mean written or spoken words, 1 58 n. 
 
 action for, compared to action for nuisance, i n. 
 
 meaning of, how affected by circumstances, 1 10 m., 121 n. 
 
 if unambiguous cannot be treated as ambiguous, \\\ n. 
 
 when no interpretation of allowed, in ». 
 
 how construed on demurrer, 216. 
 
 the consequences of, give character to, 261 n. 
 
848 Reference\ INDEX. \is to page. 
 
 WORDS, —continued. 
 
 to be taken according to natural meaning, 118 re. 
 
 See Actionable Language ; Adjective Words ; Lan- 
 guage; Slanderous Words. 
 WORKMEN, action for threatening, 2 n. 
 
 words concerning, 247. 
 WRETCH. See Degraded Wretch. 
 WRIT of inquiry, of damages, 495. 
 WRITING, is written language, 2. 
 
 what it includes, 2, 3, 3 re. 
 
 joint publication of, 98. 
 
 distinction between what is written, and the writing, 86, 96. 
 
 charge of forging a, 178. 
 
 See Publication. 
 WRITS, commencement of action by, 37. 
 
 charge of forging, 179 n. 
 
 See Original Writ; Inquiry. 
 WRITTEN LANGUAGE, what it includes, 2. 
 
 greater capacity for injury, than has oral language, 1 1 . 
 
 not construed differently from oral language, 116, 386. 
 
 what actionable, 203. 
 WRONG, is not the opposite to a right, 27. 
 
 language may amount to, 3. 
 
 what amounts to, 29, 217. 
 
 how to determine what is, 30. 
 
 kinds of, 30, 31. 
 
 description of, 31. 
 
 not proper to say law prohibits, 34. 
 
 redress of, 35. 
 
 only a wrongful act can amount to, 52. 
 
 what is the essential element of, 52. 
 
 cannot be done as agent, 54 n. 
 
 elements of, 58. 
 
 committed out of the State, 91 re. 
 
 some actions for, die with the person, 530. 
 
 right may be so exercised as to become, 28 n. 
 
 none, if no remedy, 30. 
 
 supposes intention, 70 re. 
 WRONGFUL ACT, what is, 51. 
 
 is ^rireid /ascee a wrong, 52. 
 
 liability for, 53, 54. 
 WRONG DOER, cannot excuse his act, by reason of act of others, 97. 
 
 no indemnity to, 536 n. 
 
 See Contribution. 
 
 YELLOW NEGRO, charge of being, not actionable, 198 n. 
 See Free Negro. 
 
 Whole Number of Pages, 952.