X slander or and derogation. As if a man maliciously and falsely utter any consider these latter words as necessarily imputing the guilt of a crime punishable by the temporal courts. 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. 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, 3 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 VOL. II. the temporal, or where special damage has 2. With respect to the Imputation of having 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 actiohable. 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. 339. b. 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 Bla. R. 750; as to say of an attornery, "what, does he pretend to be a lawyer? he is no more a lawyer than the devil." 3 Wils. 59. 7 Moore, 200. 3 Bro. & B. 297. 3 B. & A. 702; or a 15 ing him of some heinous crime, as to say that a man hath poisoned another, or is perjured (ƒ); or which may exclude him from society, as to (f) Finch. L. 185. person in trade, (however inferior, 1 Lev. 115.) Words actionable in respect of Special Damage. 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. 39. 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. 130. 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. 1 Lev. 261. 1Taunt. 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 action within six years, and the plaintiff is entitled to full costs, however small the dainages; 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. P. 117. 2 Esp. 623. 2 East's Rep. 361. 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. Bac. 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 of 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 se + The Revised Statutes of New-York require both actions of slander to be brought in two years. (2 R. S. 296, § 20.) charge him with having an infectious disease; or which may impair or hurt his trade or livelihood, as to call a tradesman a bankrupt, a physician 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. 131. 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 bona 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 prosecutor was malicious and groundless, and that his conduct in falsely 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. James 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. 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. 3 B. & 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, 4 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 mantain 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 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 inquíry should not appear to be made with a view towards a legal proceeding, yet if done bona 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 less injurious, then an action is sustainable. 2 Stark. 297. Where A. B. met the defendant, 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 defendant 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 this 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 ridiculous. 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. 28; but it is otherwise if the critic introduce facts and comments, or abuse, not connected with the work, for the purpose of a quack, or a lawyer a knave (g). Words spoken in derogation of a peer, a judge, or other great officer of the realm, which are called scandalum (g) Finch. L. 186. 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 proceedings in courts of justice upon a trial, or in parliament, is not in general libellous. 8 T. R. 298. 1 B. & P. 525. 7 Hob. 267. 7 East, 503. But a party will not be justified in publishing conclusions unfavourable to another, which he draws himself from the evidence delivered in a court of justice, instead of stating the evidence itself. 4 B. & A. 605. Especially 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. 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 modern 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 malice 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. & É. 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. Secondly, Written Slander.-A libel, in its most extensive meaning, signifies any mali1 M. & S. 278. And if the publication cious defamation, expressed either in printing, of proceedings before a coroner's inquest, or writing, pictures, or effigies. 5 Co. Rep. 125, a preliminary inquiry before a magistrate, how- 6. ever correct in the statement, contain libellous matter of another, it is actionable. 3 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. 1 T. 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, 1 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. 3 Rol. Ab. 547. Co. Litt. 247, it should seem that when an injury has been sustained by the flippant and inconsiderate unfounded report Bac. Ab. tit. Libel. Com. Dig. tit. Libel. 1 Saund. 132. n. 2. 2 Camp. 511. The rules which we have noticed in 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. 331. 2 H. B. 532. 2 Wils. 404. 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 Chitty R. 480. 2 B. & C. 678. 4 Dowl. & R. 230. This distinction proceeds from the difference between the degrees of malignity, and the extent of the injury with respect to slander written or spoken; 1 magnatum, are held to be still more heinous (h): and though they be such as would not be actionable in the case of a common person, yet when spoken in disgrace of such high and respectable characters, they amount to an atrocious injury; *which is redressed by an action [*124] on the case 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 (10). Words also tending to scandalize a magistrate, or person in a public trust, are reputed more highly injurious than when spoken of a private man (k). 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 (7). 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. As 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 liv (h) 1 Ventr. 60. (1) Westm. 1. 3 Edw. I. c. 34. 2 Ric. II. c. 5. 12 Ric. II. c. 11. 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. 384. 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 libels, 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 actionable 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. 3 Taunt. 246. See also 1 M. & S. 301. 639.644. But a stranger who justifies (E) Lord Raym. 1369. 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. (10) 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 has propagated slander may be compelled to give up his author. |