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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


parate offence, and the court will not restrain servant cannot maintain an action against his the proceedings against the party for second former master for words spoken or written, and subsequent publications. í Chitty R. giving him a character, even though the masa 451.

ter make specific charges of fraud, unless the IV. THE OCCASION.–To render words ac- latter prove me falsehood and malice of the tionable, they must be uttered without legal charges. Bul. N. P. 8. 3 Esp. 201.

On some occasions it is justifiable Camp. 267. I T. R. 110. 4 Burr. 2425. 1 to utter slander of another, in others it is ex. Carr. 279. A master is not generally bound cusable, provided it be uttered without express to prove the truth of the character he gives to malice. Bac. Ab. Slander, D. 4. I B. & P. a servant, yet if he officiously state any trivial 527.

Styles, 46. 2. Cro. Jac. 90. 1 Roll. misconduct of the servant to a former master, Ab. 87. 2 Burr. 809. 1 Vin. Ab. 540. It is in order to prevent him giving a second characjustifiable for a barrister to use scandalizing ter, and then himself, upon application, give expressions in support of his client's cause, ihe servant a bad character, the truth of which and pertinent thereto. 1 Maule & Sel. 280. he is not able to prove, an action is maintainHolt L. L. 1 Holt's Rep. 531. 1 B. & A. able against him. Id. ibid. and 3 B. & P. 587 232. And do false or scandalous matter con. and Holt L. L. 201. So a letter written, or tained in articles of the peace exhibited to jus- words spoken to a father in relation to some tices, or any other proceedings in a regular supposed fault of his children, are excusable. court of justice, where the court has jurisdic. 2 Brown. 151. 2 Burn. E. L. 126. 779.1 tion, (Dyer, 285. 4 Co. 14. Holi's L. L. Vin. Ab. 540. 60. Or of the words are inno179.) or before the house of commons, 1 cently read, as a story out of history, Cro. Jac. Saund. 131, 2, 3. n. 1. I M. & S. 280. 3 91; or were spoken in a sense noi defamatoTaunton, 456. will be actionable. A petition ry, 4 Rep. 12; or confidentially, as a warning or memorial, addressed by a tradesman to the against the mal-practices of another. I Camp. secretary at war, complaining of the conduct 267. The repeating or reading a libel out of of a hall-pay officer in not paying his debts, merriment, if malicious, is actionable, 9 Rep. and stating the facts of his case bona fide, is 39, but if there be no malice, it is said to be not actionable as a libel. And evidence shew- otherwise. Moore, 627. 9 Rep. 59. It is ing the occasion of the writing, and his belief not a libel if a party deeply interested in the of the facts stated, may be given under the investigation of any fact, should, as one of general issue. 5 B. & A. 642. | Dow. & the means of investigation, make such a writ. Ry. 252. The declaration of a court-martial, ten inquiry after another, as amounts to the that the charge of the prosecutor was malici: imputation of a crime. Even where such inous and groundless, and that his conduci in quiry should not appear to be made with a falsely calumniating the accused, was highly view towards a legal proceeding, yet if done injurious to the service, will not subject the bona fide, and with an honest intention, the president to an action for a libel for having law will protect such a publication, Delany v. delivered such declaration, annexed to their Jones, 4 Esp. N. P. 191. Holt's L. L. 184 sentence of acquittal of the officer accused, but if the legal object might have been obtainto the judge advocate, 2 N. R. 341. or to the ed by means less injurious, then an action is commander-in-chief. It is a privileged com- sustainable. 2 Stark. 297. Where A. B. anunication, and cannot be produced in evi- met the defendant, and said, "I hear that you dence, or an office copy thereof. 4 Moore, say the plaintiff's bank at M. has stopped. Is 563. 2 Bro. Bing. 130. But an order to a it irue?" Defendant answered, “ Yes, it is, governor abroad to dismiss an officer does I was told so; it was so reported at C., and not, therefore, authorize his publishing the nobody would take their bills, and I came to grounds of dismissal. 3 Taunt. 456. These town in consequence of it myself;" it is a words, "the Rev. John Robinson and Mr. question for the jury, whether the defendant James Robinson, inhabitants of this town, not understood A. B. asked the question for his being persons that the proprietors and annual own guidance, and if so, it was a privileged subscribers think it proper to associate with communication, (if the facts were true), but if are excluded this room," published by posting not so understood by the defendant, then the a paper on which they were written, purporis law insers malice, without its being so found ing to be a regulation of a particular society, by the jury: 4 B. & C. 247. It is not libel. were held not to be a libel. Price, 11. And lous to ridicule a literary composition, or the it is not lawful to reduce verbal slander into author of it, as far as he has einbodied him. writing, and publish it, unless in confidence self with his work; and if he is not followed and without malice. 2 East R. 426. 1 T. R. into domestic life for purposes of personal 40. 3 B. & P. 587. And, therefore, a plea slander, he cannot maintain an action for any to a declaration for a libel, that it was copied damage he may suffer in consequence of befrom another newspaper, setting forth the pro- ing thus rendered ridiculous. i Camp. 355. prietors of such newspaper, is no justification, 1 Esp. Rep. 28. & 194. Holt L. L. 205, 6. as it did not set forth that they were the origi- Selwyn. N. P. 1044. So a fair comment on a nal authors of the libel, 4 B. & A. 603 ; and public entertainment or performance is lawful, it seems that if they had been named by the Esp. R. 28 ; but it is otherwise if the critic defendant as such, in his publication, that introduce facts and comments, or abuse, not would not amount to a justification. Ib. A connected with the work, for the purpose of


a quack, or a lawyer a knave (8). Words spoken in derogation of a peer, a judge, or other great officer of the realm, which are called scandalum

(g) Finch. L. 186.

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defaming the private character of the author. of another, though not malicious, an action is 1 Camp. 355. Selw. N. P. 1044. 3 Bing. R. sustainable. The averment in pleading, that 88. And where the slanderous comments are the words were falsely uttered, is tantainount upon a petition to the house of commons, and to an averment of malice. I Saund. 242. n. likewise the petitioner, the criticism is not 2. In the case of written slander, the intent privileged. 3° Bing. R. 88. The editor of a is to be collected from the paper itself, unless public newspaper is not justified in calumni- explained by the mode of publicalion and ous attacks on the private character of the other circumstances ; and the defendant must editor of another newspaper. 2 Stark. 93. be presumed to intend that which his act is

With respect to the Reports of judicial Pro- likely to produce. 4 B. & A. 95. This is ceedings, fc.- To publish a full, irue, and en. elucidated in some modern cases, where it is tire account of proceedings in courts of jus- laid down, that although malice is the gist of tice upon a trial, or in parliament, is not in the action for slander, there are two sorts of general libellous. 8 T. R. 298. 1 B. & P. malice, malice in fact, and malice in law; the 525. 7 Hob. 267. 7 East, 503. But a party former denoting an act done from ill will towill not be justified in publishing conclusion's wards an individual; the latter a wrongful act, unfavourable to another, which he draws him intentionally done, without just cause or erself from the evidence delivered in a court of cuse. In ordinary actions for slander, malice justice, instead of stating the evidence itself. in law is to be inferred from the publishing 4 B. & A. 605. Especially if such conclu- the slanderous matter, the act itself being sion be calculated to produce a more unfa. wrongful and intentional, and without any just vourable impression than the original proceed. cause or excuse; but in actions for slunder, priing itself. 7 East, 493. 7 Moore, 200. 3 ma facie excusable on account of the cause of Brod. & B. 297. 3 B. & A. 702. Nor can a publishing the slanderous matter, malice in fact correct account of the proceedings in a court must be proved, 4 B. & C. 247; and see Gilb. of justice be published, if such account con- Cases, L. & E. 190, 1, 2. where it is laid tain matter of a scandalous, blasphemous, or down, that though malice, in vulgar acceptacriminal tendency; and if it do, it is a ground tion, is a desire of revenge, or a settled anger for a criminal information. 3 B. & A. 167. against a person, yet, in its legal sense, it And the publication of the proceedings of a means the doing an act without a just cause. court of law, containing matier defamatory of See judgment of court in 3 B. & C. 584, 5. 2 a person who is neither a party to the suit, nor B. & C. 257. present at the time of the inquiry, seems to Secondly, Written Slander.---A libel, in its amount to a libel. 3 B. & A: 702. 7 East, most extensive meaning, signifies any mali503. 1 M. & S. 278. And if the publication cious defamation, expressed either in printing, of proceedings before a corner's inquest, or writing, pictures, or effigies. 5 Co. Rep. 125, a preliminary inquiry before a magistrate, how. 6. Bac. Ab. tit. Libel. Com. Dig. tit. Libel. ever correct in the statement, contain libelluus 1 Saund. 132. n. 2. 2 Camp. 511. The rules matter of another, it is actionable. 3 B. & which we have noticed in respect to verbal C. 583.

slander are, for the most part, applicable to liV. THE MALICE OR Motive.-See in bels; with the exception of one important dis. general, 2 Stark. on Evid. 862 to 871. 902 10 tinction, that slanderous accusations, reduced 907. Malice is also considered essential to into writing, are not the less actionable bethe support of an action for slanderous words. cause not imputing a crime punishable in the But malice is to be presumed until the contra temporal courts ; for any written slander, ry be proved, (4 B. & C. 247–585. 1 Saund. though merely tending to render the party 242. n. 2. I T. R. 111. 544. 1 East, 563. 2 subject to disgrace, ridicule, or contempt, is East, 436. 2 New. R. 335. Bul. N. P. 8.) actionable, though it do not impute any defiexcept in those cases where the occasion prima nite crime, punishable in the temporal courts; facie excuses the publication, 4 B. & C. 247; as, to write that a person is a swindler or hyas in the before-mentioned instance of a mas- pocrite, or that a woman has been guilty of ter giving the character of his servant, in fornication, or that a man is an itchy old toad. which the plaintiff must prove express malice; 1 B. & P. 331. 2 H. B, 532. 2 Wils. 404. or that the imputation was wholly false, from 1 T. R. 748. Hard. 470. 2 B. & P. 748. which malice may be inferred. 1 T. R. 111. Holt's Law of Libel. 212. 2 Salk. 697, 8. Holt 3 B. & P. 587. But if the plaintiff can prove Rep. 654. 4 Taunt. 355. So, ay action is that the defendant acted maliciously under the sustainable for a libel imputing to a person mask of the former excusable occasions, an gross want of feeling; as, that although he action is always sustainable. 3 B. & P. 587. was aware of the death of a person occasion150. 9 Rep. 59. 2 East, 426. And on the ed by his improperly driving a carriage, he same ground that a lunatic has been held lia- had attended a public ball in the evening of ble to make compensation, civilly, for any inju. the same day. 1 Chitty R. 480. 2 B. & C. ry he may do, 15 Vin. 160. 12 Mod. 332. 678. 4 Dowl. & R. 230. This distinction Rol. Ab. 547. Co. Lit. 247, it should seem proceeds from the difference between the de. that when an injury has been sustained by the grees of malignity, and the extent of the in. flippant and inconsiderate unfounded report jury with respect to slander written or spoken;


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magnatum, are held to be still more heinous (1): 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 (?). 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(A) 1 Ventr. 60.

(k) Lord Raym. 1369. (1) Westm. I. 3 Edw. I. c. 34. 2 Ric. II. c. 5. (1) 2 Vent. 28. 12 Ric. Il. c. II. the former being more deliberate, more capa. a publication defamatory of another's title, ble of extensive circulation, and more perma- under the party claiming title, must shew that nent in its injurious consequences, than the it was made by his authority, 1 M. & S. 304. lalter. 2 East, 430. Hard. 470—2. Burr. No action will lie when the slanderer prevents 980. Fitzg. 253. Another distinction be- the sale of the land by asserting a claim in tween them is, that written slander is indict. himself, though unfounded, unless it be know. able, as tending to a breach of the peace, ingly bottomed in fraud, as, upon an instru. whereas verbal is not indictable, unless ment which the claimant knows to be forged, against a magistrate in the execution of his and it is so averred in the declaration, and otfice. And, 394. 1 Stra. 420. 2 Stra. 1157. proved on the trial. 4 Rep. 18. Salk. 689. 698. Holt's Law of Lib. 169. and (10) This action or public prosecution, (for cases there reserred to, Holt's Rep. 654; or it partakes of both), for scandalum magnatum, calculated to provoke a person to fight a duel. is iotally different from the action of slander So, with regard to the statute of limitations, in the case of common persons. The scandaan action for words, actionable in themselves, lum magnatum is reduced to no rule or certain is not sustainable after two years have elapsed, definition, but it may be whatever the courts 21 Jac. I. c. 16; but the remedy for a libel is in their discretion shall judge to be derogatory not thereby affected, and may be brought with. to the high character of the person of whom in six years. With respect to the remedies it is spoken; as it was held to be scandalum for words and libels, an action on the case is magnatum, to say of a peer," he was no more the general remedy, the writ of conspiracy to be valued than a dog;" which words would having grown obsolete. 1 Saund. 228. 1 Stra. have been perfectly harmless if uttered of any 193. Co. Lit. 161. a. n. 4.

inferior person. Bull. N. P. 4. This action As to SLANDER OF TITLE, see in general is now seldom resorted to. By the two first Vin. Ab. Slander of Title, pl. 16. 2 B. & C. statutes upon which it is founded, (3 Ed. I. c. 486. The slander is actionable if a malicious 34. and 2 R. II. st. 2. c. 5.), the defendant may motive be proved. | Burr. 2422.

be imprisoned till he produces the first author that a vender cannoi make a good title, he. of the scandal; hence probably is the origin of lieving at the same time that he cannot, from the vulgar notion that a person who has propaa supposed forfciture of the estate, is not ac- gated slander may be compelled to give up his tionable. 3 Taunt 246. See also 1 M. & S. author. 301. 639. 644. But a stranger who justifies


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ing (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 damage accrues to the proprietor thereby ; as if he loses an opportunity of selling the land (n). But mere scurrility, or opprobrious words, which neither in themselves import, nor are in fact attend

ed with, any injurious effects, will not support an action. So [*125] scandals, which concern matters merely spiritual, as to call a *man

heretic or adulterer, are 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 circumstance 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) (9) are any reflecting words made use of in legal proceedings, 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 ridiculous (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

the person libelled to break it: which offence is the same (in point (*126] of law) whether *the matter contained be true or false ; and there

fore the defendant, on an indictment for publishing a libel, is not allowed to allege the truth of it by way of justification (w) (11). 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 (x). 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 (12): but as to signs or pictures, it seems necessary always to shew, by proper innuendos and averments of the de(m) 4 Rep. 17. I Lev. 248.

(5) 4 Rep. 13. (n) Cro. Jac. 213. Cro. Eliz. 197. (0) Noy. 64. 1 Freem. 277. (p) Finch. L. 186. 1. Lev. 82. Cro. Jac. 91.

(10) 5 Rep. 125. (g) Page 29. () Dyer, 285, Cro. Jac. 90.

(11) In New-York he may show that the (12) But see the distinction that written publication was true, and was made with good slander is actionable when verbal is not, ante, motives and for justifiable ends.

note (9).

(4) F. 47. 10. 18.
(u) 2 Show. 314. 11 Mod. 99.

(*) Hob. 53. 11 Mod. 99.

fendant's meaning, the import and application of the scandal, and that some special damage has followed (13); 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 (14); which, under the

(13) To support an action for a libellous they amount to a probable cause, is a question sign or picture, the learned judge says, it is of law. 1 T. R. 520. 534. 5 Bul. N. P. 14. necessary to show, that some special damage 4 Burr. 1974. 2 Bar. & C. 693. 5 Dow. & has followed; but there is no ground for this R. 107. i Carr. Rep. 138. 204. 1 Gow. Rep. opinion, and a picture intending to make any 20. one ridiculous is equally actionable as if the 3dly. Malice also is essential to the support same effect had been produced by any other of this action; it is not, however, necessary in mode of publication, though no damage can be all cases for the plaintiff to prove by positive proved. See note (10) ante.

evidence, that the defendant was actuated by (14) Malicious prosecutions are of a crimi- malice, but he may establish it by inserence nal or civil nature. To enable a party ag- or collateral proof, and the plaintiff having esgriered to support an action for a criminal pro- tablished want of probable cause, malice may secution, four circumstances must occur. Gilb. thence be implied." 1 T. R. 455.518. 9 East, L. & E. 185. 12 Mod. 208. I T. R. 493 to 361. I Camp. 202, 204. Willes, 520. Malice, 551.

is not to be inferred from the mere proof of the Ist. Falsehood in the charge.

plaintiff's acquittal for want of the prosecutor's 2d. Want of probable cause for instituting it. appearing when called, 9 East, 361. or from 3d. Malice in the prosecutor.

proof that the bill was returned not found. 1 4th. Damage to the accused party.

Marsh. 12. 5 Taunt. 187; but sec 4 Bar. Ist. It is essential that the falsehood of the Cres. 24. The defendant, however, may repel charge should have been substantiated by a this presumptive evidence, by shewing suffverdict, or the decision of the court in which cient grounds for suspicion in point of fact, or it is instituted, or by the proceedings having to induce him to suspect the guilt of the party been otherwise legally determined, before the accused. Cro. Jac. 193. Selw. N. P. 105. 1 party aggrieved commence his action for the Rol. Ab. 113. Gilb. L. & E. 189. 3 Dow. injury sustained. 2 T. R. 225. 1 Saund. 228. R. 160. Bul. N. P. 11. 1 Esp. Rep. 79. Dougl. 215. 4th. Damage is essential to the support of Yelk. 116. Hob. 267. A husband alone may almost all civil actions ; it appears from the maintain an action for a malicious prosecution case of Jones v. Gwynne, Gilb. L. & E. 185. of his wife, the expenses of which have been 202, and that of Saville v. Roberts, 12 Mod. 208. defrayed by him. Stra. 977. Ca. Temp. Stra. 977. that there are three descriptions of Hardw. 54. And the action will lie, although damages, either of which is sufficient to supthe plaintiff has been acquitted on a defect in port an action, but one of them must be proved the indictment, the subject matter of which or the action will fail. 5 Taunt. 187. 1 Marsh. did not affect his reputation, 4 T. R. 247. 12. 9 East, 361. viz. Ist. To the person by imStra. 691, or for the malicious prosecution of prisonment.–20. To the reputation by scan. a bad indictment for perjury. 5 B. & A. 634. dal.-3d. To the property by expense. 1 Dow. & Ry. 266. An action on the case Ist. To the Person by Imprisonment.--Ist. lies for maliciously obtaining or executing a Whenever imprisonment is occasioned by a warrant to search a house for smuggled goods, malicious unfounded criminal prosecution, it wbere none such are found. I T. R. 535. n. is a sufficient damage to support an action, al1 Dowl. & R. 97. 2 Chitty R. 304. So a though the detention might have been momennaral officer accused of neglect of duty, &c. tary, and the party released on bail. by his commander, and tried by court-martial, 2d. To the Reputation by Scandal.- Most though honourably acquitted, cannot maintain criminal prosecutions charge the party accused an action for a malicious prosecution against with some breach of moral duty, and though, such commander. I T. R. 493. 1 Bro. P.C. as observed by chief justice Holt, Hob. 266 76. But an action of trespass lies for an in. when the court in which the proceeding is ferior against his superior military officer adopted has sufficient jurisdiction over the (both being under martial law), who imprisons subject matter, the unfounded proceeding can. him for disobedience to an order inade under not be treated as a libel in respect to the max. colour, but not within the scope of military au- in executio juris non habil injuriam; yet the thority, 4 Taun. 67. although the imprisonment party defamed may proceed by action for the be followed by a trial by a court-martial. Ib. maliciously preferring such charge.

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Any 2017. Ii is necessary that the prosecution charge which would be a libel is not preshould have been carried on without probable ferred in the course of legal proceeding, cause, before an action can be brought against may be considered as sufficiently defamatory the prosecutor. 3 Dow. Rep. 160. li is a to enable the parly to support an action for mixed proposition of law and fact, whether malicious prosecution. But an indictment there was probable cause, and whether the for a mere trespass as an assault, does not circumstances, alleged to shew it probable, sufficiently scandalize the party accused to are true, and existed as matter of fact. But enable him, on the ground of injury to his whether or not, supposing them to be true, repulalion, to support an action.

12 Mod. 210.

6.) ***


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