hurt his trade or livelihood, as to call a tradesman a bankrupt, a physician a quack, or a lawyer a knave. (g) Words spoken in derogation of a g Finch. L. 186. a newspaper, containing a libel, to the stamp office, is sufficient proof of publication. 4 B. & C. 35. Every copy of a libel sold by defendant is a separate publication, and a separate offence, and the court will not restrain the proceedings against the party for second and subsequent publications. 1 Chitty R. 451. IV. THE OCCASION.-To render words actionable, they must be uttered without legal occasion. On some occasions it is justifiable to utter slander of another, in others it is excusable, provided it be uttered without express malice. Bac. Ab. Slander, D 4 1 B. & P. 527. Styles, 46. 2. Cro. Jac. 90. 1 Roll. Ab. 87. 2 Burr. 809 1 Vin. Ab. 540. It is justifiable for a barrister to use scandalizing expressions in support of his client's cause, and pertinent thereto. 1 Maule & Sel. 280. Holt L. L. 1 Holt's Rep. 531. 1 B. & A. 232. And no false or scandalous matter contained in articles of the peace exhibited to justices, or any other proceedings in a regular court of justice, where the court has jurisdiction, (Dyer 285. 4 Co 14. Holt's L. L. 179.) or before the house of commons, 1 Saund. 181, 2, 3. n. 1. 1 M. & S. 280. 3 Taunton, 456. will be actionable. A petition or memorial, addressed by a tradesman to the secretary at war, complaining of the conduct of a half-pay officer in not paying his debts, and stating the facts of his case bonâ fide, is not actionable as a libel. And evidence shewing the occasion of the writing, and his belief of the facts stated, may be given under the general issue. 5 B. & A. 642. 1 Dow. & Ry. 252. The declaration of a court-martial, that the charge of the prose cutor was malicious and groundless, and that his conduct in faisely calumniating the accused, was highly injurious to the service, will not subject the president to an action for a libel for having delivered such declaration, annexed to their sentence of acquittal of the officer accused, to the judge advocate, 2 N. R. 341. or to the commander-in-chief. It is a privileged communication, and cannot be produced in evidence, or an office copy thereof. 4 Moore, 563. 2 Bro. Bing. 130 But an order to a governor abroad to dismiss an officer does not, therefore, authorize his publishing the grounds of dismissal. 3 Taunt. 456. These words, "the Rev. John Robinson and Mr. Jaines Robinson, inhabitants of this town, not being persons that the proprietors and annual subscribers think it proper to associate with, are excluded this room," published by posting a paper on which they were written, purporting to be a regulation of a particular society, were held not to be a libel." 1 Price, 11 It is also lawful. without malice, to circulate a slanderous report of another which turns out untrue, provided, at the time of publishing such slander, the narrator give up the author, and he vary not from the first statement, and be ignorant of the falsity. (2 East Rep. 426. 3 B. & P. 150 7 T. R. 17) The reason assigned in 12 Co. 134. is that if the author had been named, his credit might have been in so low estimation, that the party slandered might not have suffered from the imputation; and Lord Kenyon adds, "it is just that when a person repeats any slander against another, he should at the same time declare from whom he heard it, and give the very words, in order that the party injured may sue the author of the slander." 7 T. R. 17. 5 East, 463. He must repeat the precise words, so as to give the party a precise remedy against the author of the slander, and it will not be a justification to repeat the general effect or purport of the words. 2 East. 426. And it is not lawful to reduce verbal slander into writing, and publish it, unless in confidence and without malice. 2 East R. 426. 1 T. R. 40. SB & P 587. And, therefore, a plea to a declaration for a libel, that it was copied from another newspaper, setting forth the proprietors of such newspaper, is no justification, as it did not set forth that they were the original authors of the libel, B. & A. 603.; and it seems that if they had been named by the defendant as such, in his publication, that would not amount to a justification. Ib. A servant cannot maintain an action against his former master for words spoken or written, giving him a character, even though the master make specific charges of fraud, unless the latter prove the falsehood and malice of the charges, Bul. N. P 8. 3 Esp. 201. 1 Camp. 267. 1 T R. 110. 4 Burr. 2425 Carr. 279. A master is not generally bound to prove the truth of the character he gives to a servant, yet if he officiously state any trivial misconduct of the servant to a former master, in order to prevent him giving a second character, and then himself, upon application, give the servant a bad character, the truth of which he is not able to prove, an action is maintainable against him. Id. ibid. and 3 B. & P. 587. and Holt L. L. 201. So a letter written, or words spoken to a father in relation to some supposed fault of his children, are excusable. 2 Brown. 151. 2 Burn E. L. 126 779. 1 Vin. Ab. 540. 60 Or if the words are innocently read, as a story out of history, Cro Jac. 91.; or were spoken in a sense not defamatory 4 Rep. 12.; or confidentially, as a warning against the mal-practices of another. 1 Camp. 267. The repeating or reading a libel out of merriment, if malicious, is actionable, 9 Rep. 39., but if there be no malice, it is said to be otherwise. Moore, 627. 9 Rep. 59. It is not a libel if a party deeply interested in the investigation of any fact, should, as one of the means of investigation, make such a written inquiry after another, as amounts to the imputation of a crime. Even where such inquiry should not appear to be made with a view towards a legal proceeding, yet if done bond fide, and with an honest intention, the law will protect such a publication, Delany v. Jones, 4 Esp. N. P. 191. Holt's L. L. 184.; but if the legal object might have been obtained by means ess injurious, then an action is sustainable. 2 Štark. 297. Where A. B. met the defendant, 1 peer, a judge, or other great officer of the realm, which are called scanda lum magnatum, are held to be still more heinous; (h) and, though they be h 1 Ventr. 60. and said, "I hear that you say the plaintiff's bank at M. has stopped. Is it true?" Defendant answered, "Yes, it is, I was told so; it was so reported at C., and nobody would take their bills, and I came to town in consequence of it myself," it is a question for the jury, whether the dedefendant understood A. B. asked the question for his own guidance, and if so, it was a privileged communication (if the facts were true), but if not so understood by the defendant, then the law infers malice, without its being so found by the jury. 4 B. & C. 247. It is not libellous to ridicule a literary composition, or the author of it, as far as he has embodied himself with his work; and if he is not followed into domestic life for purposes of personal slander, he cannot maintain an action for any damage he may suffer in consequence of being thus rendered ridicu lous. 1 Camp. 355. 1 Esp. Rep. 28. & 194. Holt L. L. 205, 6. Selwyn N. P. 1044. So a fair comment on a public entertainment or performance is lawful, 1 Esp. R. 23. ; but it is otherwise if the critic introduce facts and comments, or abuse, not connected with the work, for the purpose of defaming the private character of the author 1 Camp. 355. Selw. N. P. 1044. 3 Bing. R. 88. And where the slanderous comments are upon a petition to the house of commons, and likewise the petitioner, the criticism is not privileged. 3 Bing. R 88. The editor of a public newspaper is not justified in calumnious attacks on the private character of the editor of another newspaper. 2 Stark. 93. With respect to the Reports of judicial Proceedings, &c.—To publish a full, true, and entire account of judicial proceedings in courts of Justice upon a trial, or in parliament, is not in general libellous. 8TR. 298. 1 B. & P. 525 7 Hob. 267. 7 East, 503. But a party will not be jus tified in publishing conclusions unfavourable to another, which he draws himself from the evi dence delivered in a court of justice, instead of stating the evidence itself. 4 B. & A. 605. Es, pecially if such conclusion be calculated to produce a more unfavourable impression than the original proceeding itself. 7 East, 493. 7 Moore, 200 3 Brod. & B. 297. 3 B. & A. 702. Nor can a correct account of the proceedings in a court of justice be published, if such account contain matter of a scandalous, blasphemous, or criminal tendency; and if it do, it is a ground for a criminal information. 3 B. & A. 167. And the publication of the proceedings of a court of law, containing matter defamatory of a person who is neither a party to the suit, nor present at the time of the inquiry, seems to amount to a libel. 3 B. & A. 702 7 East, 503. 1 M. & S. 278. And if the publication of proceedings before a coroner's inquest, or a preliminary inquiry before a magistrate, however correct in the statement, contain libellous matter of another, it is actionable. S B. & C. 583. V. THE MALICE OR MOTIVE.-See in general, 2 Stark. on Evid 862 to 871. 902 to 907. Malice is also considered essential to the support of an action for slanderous words. But malice is to be presumed until the contrary be proved, (4 B. & C. 247-585. 1 Saund. 242. n. 2. 1T. R. 111. 544. 1 East, 563. 2 East, 436. 2 New. R. 335. Bul N. P. 8.) except in those cases where the occasion prima facie excuses the publication, 4 B. & C. 247.; as in the before-mentioned instance of a master giving the character of his servant, in which the plaintiff must prove express malice; or that the imputation was wholly false, from which malice may be inferred. T. R. 111. 3 B. & P. 587. But if the plaintiff can prove that the defendant acted maliciously under the mask of the former excusable occasions, an action is always sustainable. 3 B. & P. 587. 150. 9 Rep. 59. 2 East, 426. And on the same ground that a lunatic has been held liable to make compensation, civilly, for any injury he may do, 15 Vin 160. 12 Mod. 332. & Rol. Ab. 547. Co. Lit. 247.; it should seem that when an injury has been sustained by the flippant and inconsiderate unfounded report of another, though not malicious, an action is sustainable. The averment in pleading, that the words were falsely uttered, is tantamount to an averment of malice. 1 Saund. 242. n. 2. In the case of written slander, the intent is to be collected from the paper itself, unless explained by the mode of publication and other circumstances; and the defendant must be presumed to intend that which his act is likely to produce. 4 B & A. 95. This is elucidated in some modera cases where it is laid down, that although malice is the gist of the action for slander, there are two sorts of malice, malice in fact, and inalice in law; the former denoting an act done from ill will towards an individual; the latter a wrongful act, intentionally done, without just cause or excuse. In ordinary actions for slander, malice in law is to be inferred from the publishing the slanderous matter, the act itself being wrongful and intentional, and without any just cause or excuse; but in actions for slander, prima facie excusable on account of the cause of publishing the slanderous matter, malice in fact must be proved, 4 B. & C. 247. ; and see Gilb. Cases, L. & E. 190, 1, 2. where it is laid down, that though malice, in vulgar acceptation, is a desire of revenge, or a settled anger against a person, yet, in its legal sense, it means the doing an act without a just cause. See judgment of court in 3 B. & C. 584, 5. 2 B. & C. 257. Again, in Duncan v. Thwaites, 4 B. & C. 584, 5. Ch. J Abbot delivered the following judgment: "I take it to be also a general rule, that an act unlawful in itself, and injurious to another, is considered, both in law and reason, to be done malo animo toward the person injured; and this is all that is meant by a charge of malice in a declaration of this sort, which is introduced rather to exclude the supposition that the publication may have been made on some innocent occasion, than for any other purpose. There are even some acts not in themselves unlawful, but which become so only such as would not be actionable in the case of a common person, yet when spoke, in disgrace of such high and respectable characters, they amount to an atrocious injury: which is redressed by an action on the case [124] founded on many ancient statutes; (i) as well on behalf of the crown, to inflict the punishment of imprisonment on the slanderer, as on behalf of the party, to recover damages for the injury sustained.15 Words also tending to scandalize a magistrate, or person in a public trust, i Westm. 1. s Edw. I. c. 34. 2 Ric. II. c. 5. 12 Ric. II. c. 11. by reason of their injury to others, which in all civil actions are charged to be maliciously done. Take the common case of an offensive trade, the melting of tallow, for instance; such a trade is not in itself unlawful, but if carried on to the annoyance of the neighbouring dwellings, it becomes unlawful with respect to them, and their inhabitants may maintain an action, and may charge the act of the defendant to be malicious; and no one ever objected to such a charge; though probably in most cases the defendant has no personal malice towards his neighbours, but acts only with a view to his own profit and gain. The publication in question impeaches the plaintiff's character; a publication impeaching private character is actionable, unless the occasion of publishing makes the publication excusable; and where the publication is a violation of the criminal jarisprudence of the country, and there is nothing to call for it, the publication is not excusable." Secondly, Written Slander.-A libel, in its most extensive meaning, signifies any malicious defamation, expressed either in printing, writing, pictures, or effigies. 5 Co. Rep. 125, 6. Bac. Ab. tit. Libel. Com. Dig. tit. Libel. 1 Saund. 132. n. 2. 2 Camp. 511. The rules which we have noticed with respect to verbal slander are, for the most part, applicable to libels; with the exception of one important distinction, that slanderous accusations, reduced into writing, are not the less actionable because not imputing a crime punishable in the temporal courts; for any written slander, though merely tending to render the party subject to disgrace, ridicule, or contempt, is actionable, though it do not impute any definite crime, punishable in the temporal courts; as, to write that a person is a swindler or hypocrite, or that a woman has been guilty of fornication, or that a man is an itchy old toad. 1 B. & P. S31. 2 H. B. 532 2 Wils. 404. 1 T. R. 748. Hard. 470. 2 B. & P. 748. Holt's Law of Lib. 212. 2 Salk. 697, 8. Holt Rep. 654. 4 Taunt. 355. So, an action is sustainable for a libel imputing to a person gross want of feeling; as, that although he was aware of the death of a person occasioned by his improperly driving a carriage, he had attended a public ball in the evening of the same day. 1 Chiity R. 480. 2 B. & C. 678. 4 Dowl. & R. 230. This distinction proceeds from the difference between the degrees of maJignity, and the extent of the iujury with respect to slander written or spoken; the former being more deliberate, more capable of extensive circulation, and more permanent in its injurious consequences, than the latter. 2 East, 430. Hard. 470-2. Burr. 980. Fitzg. 253. Another distinction between them is, that written slander is indictable, as tending to a breach of the peace, whereas verbal is not indictable, unless against a magistrate in the execution of his office, And. 684. 1 Stra. 420. 2 Stra. 1157. Salk. 689 698. Holt's Law of Lib. 169. and cases there referred to, Holt's Rep. 654.; or calculated to provoke a person to fight a duel. So, with regard to the statute of limitations, an action for words, actionable in themselves, is not sustainable after two years have elapsed. 21 Jac. I. c. 16.; but the remedy for a libel is not thereby affected, and may be brought within six years. With respect to the remedies for words and libeis, an action on the case is the general remedy, the writ of conspiracy having grown obsolete. 1 Saund. 228. 1 Stra. 193. Co. Lit 161. a. n. 4. AS TO SLANDER OF TITLE, see in general Vin. Ab Slander of Title, pl. 16. 2 B. & C. 486. The slander is act onable if a malicious motive be proved 4 Burr. 2422. But to say that a vendor cannot make a good title, believing at the same time that he cannot, from a supposed forfeiture of the estate, is not actionable. 6 Taunt. 246. See also 1 M. & S. 301. 639. 644. But a stranger who justifies a publication defamatory of another's title under the party claiming title, must shew that it was made by his authority. 1 M. & S 304. No action will lie when the slanderer prevents the sale of the land by asserting a claim in himself, though unfounded, unless it be knowingly bottomed in fraud, as, upon an instrument which the claimant knows to be forged, and it is so averred in the declaration, and proved on the trial. 4 Rep. 18. Chitty. (15) This action or public prosecution, (for it partakes of both) for scandalum magnatum, is totally different from the action of slander in the case of common persons. The scandalum magnatum is reduced to no rule or certain definition, but it may be whatever the courts in their discretion shall judge to be derogatory to the high character of the person of whom it is spoken; as it was held to be scandalum magnatum, to say of a peer," he was no more to be valued than a dog;" which words would have been perfectly harmless if uttered of any inferior person. Bull. N. P. 4. This action is now seldom resorted to By the two first statutes upon which it is founded, (3 Ed. I. c. 34. and 2 R. II. st 2. c. 5.) the defendant may be imprisoned till he produces the first author of the scandal; hence probably is the origin of the vulgar notion that a person who Jas propagated slander may be compelled to give up his author.-Mr. Christian's note; and see ante, 1 Book, 402 note 17. are reputed more highly injurious than when spoken of a private man. (ë) It is said, that formerly no actions were brought for words, unless, the slander was such as (if true) would endanger the life of the object of it. (1) But too great encouragement being given by this lenity to false and malicious slanderers, it is now held that for scandalous words of the several species before-mentioned, (that may endanger a man by subjecting him to the penalties of the law, may exclude him from society, may impair his trade, or may affect a peer of the realm, a magistrate, or one in public trust,) an action on the case may be had, without proving any particular damage to have happened, but merely upon the probability that it might happen. But with regard to words that do not thus apparently, and upon the face of them, import such defamation as will of course be injurious, it is necessary that the plaintiff should aver some particular damage to have happened; which is called laying his action with a per quod. if I say that such a clergyman is a bastard, he cannot for this bring any action against me, unless he can shew some special loss by it; in which case he may bring his action against me, for saying he was a bastard, per quod he lost the presentation to such a living. (m) In like manner to slander another man's title, by spreading such injurious reports, as, if true, would deprive him of his estate, (as to call the issue in tail, or one who hath land by descent, a bastard,) is actionable, provided any special da mage accrues to the proprietor thereby; as if he loses an opportunity of selling the land. (n) 16 But mere scurrility, or opprobrious words, which neither in themselves import, nor are in fact attended with, any injurious effects, will not support an action. So scandals, which concern matters merely spiritual, as to call a man heretic or adulterer, are [125] cognizable only in the ecclesiastical court; (o) unless any temporal damage ensues, which may be a foundation for a per quod. Words of heat and passion, as to call a man a rogue and rascal, if productive of no ill consequence, and not of any of the dangerous species before-mentioned, are not actionable: neither are words spoken in a friendly manner, as by way of advice, admonition, or concern, without any tincture or circumstances of ill-will: for, in both these cases, they are not maliciously spoken, which is part of the definition of slander. (p) " Neither (as was formerly hinted) (q) are any reflecting words made use of in legal proceed. ings, and pertinent to the cause in hand, a sufficient cause of action for slander. (r) Also if the defendant be able to justify, and prove the words to be true, no action will lie, (s) even though special damage hath ensued for then it is no slander or false tale. As if I can prove the tradesman a bankrupt, the physician a quack, the lawyer a knave, and the divine a heretic, this will destroy their respective actions; for though there may be damage sufficient accruing from it, yet, if the fact be true, it is damnum absque injuria; and where there is no injury, the law gives no remedy. And this is agreeable to the reasoning of the civil law: (t)" eum qui nocentem infamat, non est aequum et bonum ob eam rem condemnari; delicta enim nocentium nota esse oportet et expedit." A second way of affecting a man's reputation is by printed or written libels, pictures, signs, and the like; which set him in an odious or ridicu k Lord Raym. 1369. 17 1 2 Vent. 28. (16) See ante, note 14. as to slander of title. (17) See ante, note 14. as to the occasion of speaking words. 1 Lev. 248. lous (u) light, and thereby diminishes his reputation. With regard to libels in general, there are, as in many other cases, two remedies; one by indictment, and the other by action. The former for the public offence; for every libel has a tendency to the breach of the peace, by provoking [126] the person libelled to break it: which offence is the same (in point of law) whether the matter contained be true or false; and therefore the defendant, on an indictment for publishing a libel, is not allowed to allege the truth of it by way of justification. (w) 1 But in the remedy by action on the case, which is to repair the party in damages for the injury done him, the defendant may, as for words spoken, justify the truth of the facts, and shew that the plaintiff has received no injury at all. (a) What was said with regard to words spoken, will also hold in every particular with regard to libels by writing or printing, and the civil actions consequent thereupon: 19 but as to signs or pictures, it seems necessary always to shew, by proper innuendos and averments of the defendant's meaning, the import and application of the scandal, and that some special damage has followed; 20 otherwise it cannot appear, that such libel by picture was understood to be levelled at the plaintiff, or that it was attended with any actionable consequences. A third way of destroying or injuring a man's reputation is by preferring malicious indictments or prosecutions against him;" which, under the mask of (18) As to indictments and informations for libels, see post, 4 Book, 150. (19) But see the distinction that written slander is actionable when verbal is not, ante, note (14). (20) To support an action for a libellous sign or picture, the learned judge says, it is neces sary to shew, that some special damage has followed; but there is no ground for this opinion, and a picture intending to make any one ridiculous is equally actionable as if the same effect had been produced by any other mode of publication, though no damage can be proved. (21) Malicious prosecutions are of a criminal or civil nature. To enable a party aggrieved to support an action for a criminal prosecution, four circumstances must occur. Gilb. L. & E. 185. 12 Mod. 208. 1 T. R. 493 to 551. 1st. Falsehood in the charge. 2d. Want of probable cause for instituting it. 3d. Malice in the prosecutor. 4th. Damage to the accused party. 1st. It is essential that the falsehood of the charge should have been substantiated by the ver dict, or the decision of the court in which it is instituted, or by the proceedings having been otherwise legally determined, before the party aggrieved commence his action for the injury sustained. 2 TR. 225. 1 Saund. 228. Bul. N. P. 11. 1 Esp. Rep. 79. Dougl. 215 Yelv. 116. Hob 267. A husband alone may maintain an action for a malicious prosecution of his wife, the expenses of which have been defrayed by him. Stra. 977. Ca. Temp. Hardw. 54. And the action will lie, although the plaintiff has been acquitted on a defect in the indictment, the subject matter of which did not affect his reputation. 4 T. R. 247. Stra. 691., or for the malicious prosecution of a bad indictment for perjury. 5 B & A. 634. 1 Dow & Ry. 266 An action on the case lies for maliciously obtaining or executing a warrant to search a house for smuggled goods, where none such are found. 1 T. R. 535. n. 1 Dowl. & R. 97. 2 Chitty R. 304. And maliciously impleading and causing the plaintiff to be excommunicated in the ecclesiastical court, whereby he was taken upon an excom cap and imprisoned, is actionable. 1 Ventr. 86 But an action on the case will not lie against the vicar-general of the bishop, for excommunicating plaintiff with the greater excommunication for contumacy, in not taking upon him administration of an intestate's effects, to whom plaintiff was next of kin, and had intermeddled with the goods, &c. although the citation by which plaintiff was cited was void, by reason that it required him to appear and take administration, &c. without leaving him an option to renounce it, and the proceedings thereupon had been set aside upon appeal, for the vicar-general had jurisdiction over the subject matter, viz. the granung administration, and there was no malice. 3 M. & S. 411. So a naval officer accused of neglect of duty, &c. by his commander, and tried by court-martial, though honourably acquitted, cannot maintain an action for a malicious prosecution against such commander. T. R. 493. 1 Bro. P. C. 76. But an action for trespass lies for an inferior against his superior military officer (both being ander martial law), who imprisons him for dispbe |