cumstance, that thereby the party injured is for ever disabled from making so good a defence against future external injuries, as he otherwise might have done. Among these defensive members are reckoned not only arms and legs, but a finger, an eye, and a foretooth, (t) and also some others. (u) But the loss of one of the jaw-teeth, the ear, or the nose, is no mayhem at common law as they can be of no use in fighting. The same remedial action of trespass vi et armis lies also to recover damages for this injury, an injury which (when wilful) no motive can justify, but necessary self-preservation. If the ear be cut off, treble damages are given by statute 37 Hen. VIII. c. 6. though this is not mayhem at common law. And here I must observe, that for these four last injuries, assault, battery, wounding, and mayhem, an indictment may be brought as well as an action ;9 and frequently both are accordingly prosecuted; the one at the suit of the crown for the crime against the public; the other at the suit [122] of the party injured, to make him a reparation in damages." 4. Injuries, affecting a man's health," are where by any unwholesome t Finch. L. 204. 10 u 1 Hawk, P. C. 111. One remarkable property is peculiar to the action for a mayhem, viz. that the court in which the action is brought have a discretionary power to increase the damages, if they think the jury at the trial have not been sufficiently liberal to the plaintiff; but this must be done super visum vulneris, and upon proof that it is the same wound, concerning which evidence was given to the jury 1 Wils. 5. Barnes, 106. 153. 3 Salkeld, 115. 1 Ld Raym. 176. 339. Christian. (9) An indictment lies at common law for each offence as a misdemeanor, and by several statutes malicious injuries to the person are severely punished. See post, 4 Book. (10) The party injured may proceed by indictment and by action at the same time, and the court will not compel him to stay proceedings in either. 1 Bos. & P. 191. But in general the adoption of both proceedings is considered vexatious, and will induce the jury to give smaller damages in the action. The legislature has discouraged actions for trifling injuries of this nature, by enacting, that in all actions of trespass for assault and battery, in case the jury should find a verdict for damages under forty shillings, the plaintiff shall have no more costs than damages, unless the judge at the trial shall certify that an assault and battery was sufficiently proved. See constructions on the statute. Tidd Prac. 8 ed. 998. (11) The injuries to health are of two descriptions:-1st. By breach of contract, express or implied. 2d. By some tortious act unconnected with contract. Those of the first descriptions are occasioned by the misconduct of a medical man, or the sale of unwholesome food. 1st. Misconduct of Medical Men.-The law implies a contract on the part of a medical man, as well as those of other professions, to discharge their duty in a skilful and attentive manner, and the law will grant redress to the party injured by their neglect or ignorance, by an action on the case, as for a tortious misconduct. 1 Saund. 312. u. 2. 1 Ld. Raym 213, 4. Reg. Brevium, 105, 6. 2 Wils 359. 8 East, 348. And in that case the surgeon could not recover any fees. Peake, C N. P. 59. see 2 New. Rep. 136. But in the case of a physician, whose profession is honorary, he is not liable to an action, Peake, C. N. P. 96. 123. 4 T. R. 317, though he may be punished by the college of physicians. Corn. Dig. tit. Physician; Vin. Ab. tit. Physician. According to Hawkins, P. C. if any person, not duly authorized to practise, undertake to cure, and should kill his patient, he is guilty of felony, though clergyable. And such person, so employed, cannot recover in an action for the medicines supplied. See 55 Geo. III. c. 194. However, if the party employ a person as surgeon, knowing him not to be one, he has no civil remedy. 1 Hen. B. 161. Bac. Ab. Action on the Case F. 2 Wils. 359. Reg. Brev. 105. 8 East, 348. 2dly. Sale of unwholesome Food-Though the law does not in general imply a warranty, as to the goodness and quality of any personal chattel, it is otherwise with regard to food and li quors, in which, especially in the case of a publican, the law implies a warranty. 1 Rol. Ab. 90. pl. 1, 2. 2 East 314 2dly. By some tortious Act unconnected with Contract.—With respect to the second description of injuries to the health, which are effected by tortious acts unconnected with contract, they are divided into, 1st, Private Nuisance; 2dly, Public Nuisance. 1st. With regard to private nuisances, it is particularly observable, that the law regards the health of the individual, though it will not afford a remedy for malicious and ill-natured acts tending to destroy the beauty of situation, such as stopping a prospect, &c 9 Co. 58. b-In complaining of a nuisance in stopping ancient lights, &c. the consequent injury must be stated to have been the deprivation of lights and air, which are considered as conducive to health. Peake, 91. Com. Dig. tit. Action on the Case for a Nasance. As to ancient lights in gene. ral, see ante. practices of another a man sustains any apparent damage in his vigour or constitution. As by selling him bad provisions, or wine; (w) by the exereise of a noisome trade, which infects the air in his neighbourhood; (x) or by the neglect or unskilful management of his physician, surgeon, or apothecary. For it hath been solemnly resolved, (y) that mala praxis is a great misdemesnor and offence at common law, whether it be for curiosity and experiment, or by neglect; because it breaks the trust which the party had placed in his physician, and tends to the patient's destruction. Thus also, in the civil law, (2) neglect or want of skill in physicians or surgeons, "culpae adnumerantur, veluti si m dicus curationem dereliquerit, male quempiam secuerit, aut perperam ei medicamentum dederit." These are wrongs or injuries unaccompanied by force, for which there is a remedy in damages by a special action of trespass upon the case. This action of trespass, or transgression, on the case, is an universal remedy, given for all personal wrongs and injuries without force; so called because the plaintiff's whole case or cause of complaint is set forth at length in the original writ. (a) For though in general there are methods prescribed and forms of actions previously settled, for redressing those wrongs, which most usually occur, and in which the very act itself is immediately prejudicial or injurious to the plaintiff's person or property, as battery, non payment of debts, detaining one's goods, or the like; yet where [123] any special consequential damage arises, which could not be fore 12 seen and provided for in the ordinary course of justice, the party injured is allowed, both by common law and the statute of Westm. 2. c. 24. to bring a special action on his own case, by a writ formed according to the peculiar circumstances of his own particular grievance. (b) For wherever the common law gives a right or prohibits an injuiry, it also gives a remedy by action; (c) and therefore, wherever a new injury is done, a new method of remedy must be pursued. (d) And it is a settled distinction, (e) that where an act is done which is in itself an immediate injury to another's person or property, there the remedy is usually by an action of trespass vi et armis; but where there is no act done, but only a culpable omission; or where the act is not immediately injurious, but only by consequence and collaterally; there no action of trespass vi et armis will lie, but an action on the special case, for the damages consequent on such omission or act.13 5. Lastly; injuries affecting a man's reputation" or good name are, first, y Lord Raym. 214. w 1 Rol. Abr. 90. x 9 Rep. 32. Hutt. 135. a For example: "Rex vicecomiti salutem, Si A fecerit te securum de clamore suo prosequendo, tune pone par vadium et salvos plegios B quod sit coram justitiariis nostris apud Westmonasterium in octabis sancti Michaelis, ostensurus quare cum idem B ad dextrum oculum ipsius A casualiter laesum bene et competentur curandum apud S. pro quadam pecuniae summa prae manibus soluta assumpsisset, idem B curam suam circa oculum praedictum tam negligenter et improvidė apposuit, quod idem a defectu ipsius B visum oculi praedicti totaliter amis:t, ad damnum ipsius A viginti librarum, ut dicit. Et habeas ibi nomina plegiorum et hoc breve. Teste meipso apud Westmonasterium, &c." (Registr Brev. 105.) b See pag. 52. d Cro. Jac. 478. c 1 Salk 20 6 Mod. 54. e 11 Mod. 180. Lord Raym. 1402. Stra. 635. 2dly. Public Nuisance With respect to the injuries to health, as a consequence of a public nuisance, it seems that if the injury be attributable to the inhabitants of a county, no action is sustainable. 2 T R 667 9 Co. 112. b. 117 a. But if the special injury be occasioned by an individual, an action ies. Bac. Ab. Action on the Case; 1 Salk, 15, 16. Chitty. (12) See 'his statute, and the decisions thereon, 1 Chitty on Plead. 82, 83, 84. (13) Id. 114 to 167. (14) As to actions for verbal slander and libels in general, see Bac. Ab. Libel, and tit. Slander: Com Dig. Action upon the Case for Defamation, and tit. Libel; Vin. Ab. tit. Libel; Selw. N. P. Libel, and tit. Slander; Holt, George, Starkie, and Mence's Treatises on Slander, and $ Starkie on Evidence, 844 to 883.; and as to indictment for libels, see post, ♣ Book, 150. by malicious, scandalous, and slanderous words, tending to his damage and derogation. As if a man maliciously and falsely utter any slander or It is a principle of law that injuries to the reputation ought to be punished, because, if no le gal remedy were afforded, men would be induced to indulge their revenge, and violate the public peace. Gilb. Cases, L. & E. 117. 4 Co. 15 b. 10 Mod. 198. Bac. Ab tit. Slander. In Gilbert, C. L. E. 117. it was said, that Parker, Ch. J., remembered a saying of Treby, Ch. J., that people should not be discouraged that put their trust in the law, for if men could not have a remedy at law for such slanders, they would be apt to carve it for themselves, which would let in all the ill consequences of private revenge; and Powys, J. said, that the latter judgments had been right in denying the rule of taking words in mitiori sensu, because it lett a liberty for men to defame others, provided they did it with a little caution, and it had been known that people had taken advice of counsel upon a sheet of paper full of scandalous words, in order to know which they might use with safety. Actions for trifling and frivolous slanders are sufficiently repressed by the enactment in 21 Jac. I. c. 16. s. 6. which provides, that in an action for words in any court of record at Westminster, it the jury find the damages under forty shillings, the plaintiff shall have no more costs than the damages found. Willes, 438. 4 East, 567. 1 Saund. 246. n. 8. Tidd, 8 ed. 997. The injuries to reputation are effected by verbal or written slander. 1st. The nature of the accusation. 2d. The falsity of the charge. 3d. The mode of publication. 4th. The occasion. 5th. The malice or motive of the slander. I. THE NATURE OF THE VERBAL ACCUSATION-Actionable words are of two descriptions, first, those actionable in themselves, without proof of special damage; and, secondly, those actionable only in respect of some actual consequential damage. Words of the first description must impute either, 1st, the guilt of some offence for which the party, if guilty, might be indicted and punished in the temporal courts, as "for an infamous crime," or at least punishable with imprisonment, and are sometimes, though improperly, called words which endanger a man at law, 3 Wils. 186. 6 T. R. 694. 2 Ventr. 266. Salk. 695. 1 Rol. Ab. 83. Bull. N. P 9. Holt's Law of Libel, 176; or 2dly, the having an existing contagious disorder, tending to exclude him from society, 2 T. R. 473. 2 Wils. 404. Cro. Eliz. 289.; or, 3dly, an unfitness or inability to perform an office or employment of profit, or want of integrity in an office of honour, Salk. 695. a. 2 Esp. 500. 5 Co. 125. 2 Ld. Raym. 1369. 4 Co. 10. a.; or, 4thly, words prejudicing a person in his lucrative profession or trade. 3 Wils. 186. 1 Lev. 115. 1. With respect to an imputation of the guilt of some offence punishable in the temporal courts, as an infamous crime, or punishable with imprisonment: the imputation of guilt, however general, as to call a person a "traitor," "thief," " highwayman," or to say he is guilty of "perjury," "forgery," "murder," &c. though without stating the particulars of the pretended crime, is actionable, Cro. Jac. 114. 142. 6 T. R 694. 3 Wils. 186 2 Ventr 266 128 2 New. Rep. 335.; and an action lies for such imputations, although it appear that the party accused has been punished or pardoned, which absolves him from continuing guilt. Owen, 150 Hob 81. These words are considered as tending generally to affect the individual's influence in society, whence it may reasonably be inferred that he has sustained damage, though he cannot readily point out the particular instance. Bac. Ab. Slander, B 4. The accusation, however, must be precise, or have such an allusion to some prior transaction, that the hearers of the slander must necessarily have understood that the slanderer meant to impute the plaintiff's guilt of some punishable offence; for though the rule of construing words in mitiori sensu is now exploded, (5 East, 463. Fitzg. 253 Bul. N. P. 4. 10 Mod. 198.) yet an innuendo or construction cannot be given to words which they do not necessarily import, either of themselves, independently of any other circumstances, or with necessary reference, or some other circumstances occurring at the time of the accusation. 6 T. R. 691. 4 Co. 17. b. 11 Mod. 99. 4 Esp. N. P. 218. 8 East, 427. On this account it is not actionable to call a person " villain," "cheat," " rascal," swindler," or" rogue," or to say he is "forsworn," without a colloquium of some proceeding in a court of justice, in which the party had been examined on oath. 6 T. R 691. 2 H. Bla. 531. 2 Wils. 404. 87. 8 East, 428. 1 Bos. & Pul. 331. 2 Saund. 307. 4 Co. 15. b. 2 Ventr. 28. 2 Buls. 150. Holt's Law of Libel, 176. As to this point, see Com. Dig. tit. Libel. Fitzg. 121. 253. The law does not consider these latter words as necessarily imputing the guilt of a crime punishable by the temporal courts. The accusing another of being a thief, or of perjury, having long been understood in a criminal sense; but in common acceptation the terms swindling, cheat, rogue, villain, &c. may and frequently are intended to mean, that the party accused has bilked or outwitted some person, or has been guilty of some other shabby mean conduct, not amounting to any definite crime punishable in the temporal courts, and therefore the accusation is not actionable. H. B. 531. 4 Co. 16. b. 18. b. Willes, 438 So, the saying of another he has defrauded a mealman of a roan horse, without proof of special damage, is not actionable. 2 Chitty's R. 657. So the term "forsworn" does not, in legal consideration, necessarily import perjury or false swearing in a regular judicial proceeding, and consequently does not necessarily impute to the party the guilt of having committed a punishable crime. 6 T. R. 694. 4 Co. 15 2 Bulst. 150. Holt's Law of Libel, 176. This subject has been fully discussed by C. J. De Grey, who lays down this position, ་་ false tale of another; which may either endanger him in law, by impeaching him of some heinous crime, as to say that a man hath poisoned ano "that there must be some certain or probable temporal loss or damage to make words actionable; but to impute to a man the mere defect or want of moral virtue, moral duties, or obligations, which renders a man obnoxious to inankind, is not actionable." And therefore he and the court determined, that the following declaration concerning a member of parliament, at a county meeting did not amount to a legal slander, viz. "As to instructing our members to obtain redress, I am totally against that plan, for, as to instructing Mr. O., we might as well instruct the winds; and should he even promise his assistance, I should not expect him to give it us." 3 Wils. 177. 3 B. & P. 372. But if either of the above expressions, not actionable in themselves, be accompanied by any other circumstances tending to throw the imputation of a punishable crime on the party accused, and be so understood by the hearers, they are actionable. 6 T. R. 694. So, on the other hand, words prima facie importing a charge of guilt, as to call a person "thief," may be qualified by the expressions and other circumstances, evincing that the accuser did not mean to insinuate that the party had been guilty of such crime, and in that case no action will be sustainable; as, if the words be "you are a thief," for "you stole my tree," the stealing of which is not felony; or where the witnesses called to prove the slander, admit that they do not believe the defendant meant to impute that the plaintiff had been guilty of felony. Cro. Jac. 114. B. N. P. 5. Peake, N. P. 4. 4 Co. 19. Stra. 142. 2 Esp. R. 218. 2 New. R. 335. The accusation of a mere intent, propensity, or inclination to commit a crime, &c. is not actionable, because it only imputes an inchoate immorality, and not the actual commission of a crime for which the party accused could be punished 4 Co. Rep. 16. b. 18 b. 4 Esp. R. 219. Cro. Jac. 158. 1 Rol. Ab. 41. Freem. 46. 7 Taunt. 431. 4 Price, 46. But an accusation of seducing another to commit a crime, as subornation of perjury, is actionable, 1 Rol. Ab. 41.; or of soliciting a servant to steal, 3 Wils. 186. 2 East, 5.; but see Salk. 696. A verbal imputation of the breach of any moral virtue, duty, or obligation, such as chastity, piety, &c. (which, though it may depreciate a person in the opinion of society, and subject him to censure in the ecclesiastical court, does not expose him to punishment in the temporal courts), is not actionable, 4 Taunt. 355.; though if in writing, it will be otherwise, S Wils. 187. Com. Dig. tit. Action on the Case for Defamation, F. 20; and the party aggrieved must resort to the ecclesiastical courts for redress, which courts were established for reformation of morals, and have an exclusive jurisdiction over the punishments of fornication, &c. Therefore in accusations of such offences, as could not endanger the party in the temporal courts, the judges, professing not to be acquainted with the extent of the jurisdiction of the ecclesiastical courts, considered it most expedient to refer the party to those courts for redress. 2 Salk. 692. 2 Stra. 946. 1 Lev. 49. 7 Mod. 78. But when the accusation is partly of an offence punishable in the ecclesiastical courts, and partly in the temporal, or where special dainage has been sustained, the latter courts have the exclusive jurisdiction, and will afford redress for the entire slander. 2 T. R. 473. & Co. Rep. 20. a. b. Sid. 214. 1 Lev. 134. Rol. Ab. 34. 4 T. R. 16. b. Cro. Jac. 163. 12 Mod. 248. Ld. Rayın. 809 Vent 220. 3 Lev. 193. Stra. 545. 55. 2. With respect to the Imputation of having a contagious Disorder.—Man being formed for society, and standing in almost constant need of the advice, comfort, and assistance of his fellowcreatures, it is highly reasonable that any words which import the charge of having a contagious distemper, should be in themselves actionable, because all prudent persons will avoid the company of a person having such a distemper. Bac. Ab. Slander, B. Com. Dig. Action on the Case for Defamation, D. 28. 2 Wils. 403, 4. The mere accusation of having had a disease, is not actionable, because it alludes to a past disease. 2 T. R. 473, 4. 2 Stra. 1189. As to particular disreputable disorders, see Cro. Eliz. 289. Hob. 5. 219. Rol. M. 43. 2 T. R. 473. 1 Saund 248. n. 3. Bac. Ab. tit. Slander. 3. As to Slander affecting a Person in his Office or Trust.-When profit or emolument is attached to them, any words which directly impute an unfitness, either in respect of morals or inability to discharge the duty of the office, are actionable. 1 Salk. 695, 698. Rol. Ab. 65. 2 Esp. 500. 5 Rep. 125. 1 Stra. 617 2 Ld Raym. 1369. 4 Rep. 16. a. Bull. N. P. 4. But in an office merely honorary, to which no profit, &c. is attached, a verbal accusation of incapacity, &c. is not actionable. 5 Co. Rep. 125. 4 Rep. 16. a. Salk. 695. 8. 1 Rol. Ab. 65. 2 Esp. 500. 3 Wils. 177. 1 Mal. Ent. 244. In an office of trust and emolument, an imputation of an intent or inclination to commit a criminal breach of duty, is actionable, which is an exception to the before-mentioned rule. Salk. 695. 1 Stra. 617. 2 Ld Raym. 1369. 1480 4 Rep. 16. a. 3 Wils. 177. 2 Saund. 307.; see Cro. Jac. 839. h. 1. 9 Bull. N. P. 5. Holt's Law of Libel, 197. A verbal imputation, that the plaintiff gave to the commissioners of the admiralty 2001. for a warrant to be purser of a man of war, would be actionable, as imputing a corruption of a public trust, and a crime in tempting to corruption. 5 Burr. 2699. 4. As to Slander affecting a Person in his Trade, Profession, or Occupation.-Words which impute the want of integrity or capacity, whether mental or pecuniary, in the conduct of a profession, trade, &c. in which the party is engaged, are actionable. 1 Mal. Ent. 244. Thus an action will lie for accusing a clergyman of incontinence, &c. for which he may be deprived, 4 Co. 17., or a barrister, attorney, or artist, of inability, inattention, or want of integrity, 3 Wils. 187. 2 Bia. R. 750.; as to say of an attorney, “what does he pretend to be a lawyer? he is no more a lawyer than the devil." S Wils. 59, 7 Moore, 200. 3 Bro. & B. 297. 3 B. & A. 702.; ther, or is perjured; (ƒ) or which may exclude him from society, as to charge him with having an infectious disease; or which may impair or f Finch. L. 185. or a person in trade, (however inferior, 1 Lev. 115) of fraudulent or dishonourable conduct, or of being in insolvent circumstances. Ld. Raym. 1480. And to say of one who carries on the business of a corn vender, "you are a rogue and a swindling rascal, you delivered me 100 bushels of oats worse by 6s. a bushel than I bargained for," is actionable, and entitles him to a verdict without proof of special damage. 3 Bing. 104. But an action is not sustainable for saying a tradesman has charged an exorbitant sum for his goods, &c. unless fraud be imputed, &c. Bac. Ab. tit. Slander, B. 4. If defamatory words be spoken of two persons affecting them in their joint trade, they may join in an action for the injury. 3 B. & P. 150. In all these cases the words are actionable, without proof of special damage, because they have a certain tendency to injure the person accused. Bac. Ab. Slander, B. 4. In these and the prior cases the words must be spoken of the party in relation to his office, trade, &c., and be so alleged in the decla ration, and proved at the trial, or the words themselves must appear to have been spoken of the office, &c., or necessarily to affect in that view, unless special damage be averred and proved. 2 Saund. 807. a. 1 Saund. 242. n. 3. 1 Lev. 280. Ld. Raym. 1480. Stra. 618. 696. 1169. Cro. Jac. 554. Salk. 694. Words actionable in respect of Special Damage.-Though the law will not permit the infèrence of damage unless in the instances above mentioned, yet when damage has actually been sustained, the party aggrieved may support an action for the malicious publication of any untruth, 1 Lev. 53. 1 Sid. 79, 80. 3 Wood. 210. 2 Leon. 111. unless the assertion be made for the purpose of enforcing a supposed claim. Com. Dig. tit. Action upon the Case for Defaination, D. $0. Bac. Ab. Slander, B. 1 Lev. 55. 261. 1 Sid. 79. 4 Rep. 17. Cro. Jac. 213. 1 Rol. Ab. 3. 53.; but it lies if spoken maliciously and falsely. The special damage, sufficient to support an action, must be a certain actual loss (as of a particular marriage), or the acquaintance or friendship of some specified person, 1 Rol. Ab. 36. 1 Lev. 261. 2 Bos. & Pul. 284. 1 Saund. 243. 3 B. & P. 372. 4. 6. 1 Taunt. 59. 2 Edw. II. Ed. 11. b. 1. Bac. Ab. Slander, C.; or where in consequence of the imputation of incontinence, cast upon a dissenting preacher at a licensed chapel, the congregation refuse to allow him to preach there any more, and discontinue the emolument they would otherwise have given him, he may maintain an action for the consequential damage. 8 T. R. 150. Probable damage has been in some instances declared sufficient, as to say to a father of an heir apparent, that he is a bastard, in consequence whereof the father has declared a design of disinheriting him, and does actually convey away the estate. 1 Rol. Ab. 38. Cro. Jac. 213. sed vide 3. Wils. 188. Yet having incurred the danger of being turned out of doors from the parents' displeasure, from calumnious imputation, is not sufficient. Lev. 261. 1 Taunt. 39. The special damage must be incident and natural to the words spoken, and not the consequence of the unlawful act of a third person. 8 East, 1. Where the action is sustainable merely on account of special damage occasioned by words not actionable themselves, it suffices to bring the ac tion within six years, and the plaintiff is entitled to full costs, however small the damages; but if the words be actionable in themselves, though special damages be proved, the plaintiff, unless he recover damages, will be entitled to no more costs than damages. Willes, 438. 2 Ld. Raym. 1588. 2 Stra. 936. Tidd, 8 ed. 997. II. FALSITY OF THE IMPUTATION. To render any imputation against the character actionable, it must be false, 5 Co. 125, 6. Hob. 253. ; and though the falsity of the imputation is in general to be implied till the contrary be shewn, 2 East, 436. 1 Saund. 242. yet the defendant may, in any civil action, plead specially, though he cannot give in evidence under the general issue, that the slanderous representation was true. Willes, 20. 1 Saund. 130 The instance of a master making an unfavourable representation of his servant, upon an application for his character, seems to be an exception, in that case there being a presumption from the occasion of speaking, that the words were true. 1 T. R. 111. 3 Bos. and Pul. 587. III. THE PUBLICATION.-The sending a libel to the party libelled, is a sufficient publication to subject the libeller to an indictment, as tending to a breach of the peace. 2 Bla. Rep. 1038. 1 T. R. 110. 1 Saund. 132. n. 2. 4 Esp. N. C. 117. 2 Esp 623 2 East's Rep. 301. 2 Barn. K. B. 102. 2 Kel. 58. 2 Stark. 245. But it is essential to the support of an action, that there be a publication by the defendant of the libel or words to a third person, and also that such person understood the words in the sense the plaintiff wishes to establish, or that they necessarily have that meaning. 1 Rol. Ab. 74. Cro. Eliz. 857. 861. 1 Saund. 242. n. 3. 2 Saund. 307. Bab. Ab. Slander, D. It is the province of a jury to decide whether or not a publication be sufficiently proved. 2 Bla. Rep. 1037. 1 Saund. 132. n. 2. It is immaterial in what way the slander was conveyed, however obscure, if the person who heard it understood it in an actionable sense, and the court will put the witnesses' construction on the words, the old rule of intendment in mitiori sensu being exploded. 5 East, 463. Bac. Ab. Libel, A. 3. If A. send a manuscript to the printer of a periodical work, and does not restrain the printing and publishing it, and he print and publish it, A. is liable as the publisher, and liable to an action, 5 Dow. 201.; and proof that the defendant knew that letters addressed to the plaintiff were usually opened by his clerk, is evidence to go to a jury, of his intention that the libel should be read by a third person, so as to amount to an actionable publication, 2 Stark, 63.; and proof of the delivery of a copy c FOL. IL 13 |