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edy 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 any special consequential damage arises, which could not be [*123] foreseen 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 injury, 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. (7)
5. Lastly: injuries affecting a man's reputation or good name are, first, by malicious, scandalous and slanderous words, (8) tending to his damage and dero
(a) For example: "Rex vicecomiti salutem, Si A. fecerit te securem de clamore suo prosequendo, tunc pone per vadium et salvos plegios B. quod sit corem justitariis nostris apud Westmonasterium in octabis sancti Michaelis, ostensurus quare cum idem B. ad dextrum oculum ipsius A. casualiter læsum bene et competenter curandum apud S. pro quadem pecuniæ summa præ manibus soluta assumpsisset, idem B. curam suam circa oculum prædictum tam negligenter et improride apposuit, quod idem A. defectu ipsius B. visum oculi prædicts totaliter amisit, ad damnum ipsius A. viginti librarum, ut dicit. Et habeas ibi nomina plegiorum et hoc breve. Teste meipso apud Westmonasterium," &c. Registr. Brev. 105. (c) 1 Salk. 20. 6 Mod. 54. (d) Cro. Jac. 478.
(b) See page 52.
(e) 11 Mod. 180. Lord Raym. 1402. Stra. 635.
(7) [See the author's celebrated judgment in the case of Scott v. Shepherd, 2 Bl. Rep. 892. the principle of which has been since repeatedly recognized. No distinction arises from the lawfulness or unlawfulness of the act; if one, turning round suddenly, were to knock another down, whom he did not see, without intending it, no doubt, said Mr. J. Lawrence, the action must be trespass vi et armis. Neither will it vary the case that, besides the immediate injury, there is an ulterior consequential injury: for it is the former on which the action is supported; the latter is merely an aggravation of the damages. Leame v. Bray, 3 East, 593.]
(8) [With respect to an imputation of the guilt of some offence punishable as an infamous crime, or with imprisonment; the accusation 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 to 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, and Pul. 331; 2 Saund. 307; 4 Co. 15, b; 2 Ventr. 28; 2 Buls. 150; Holt's Law of Libel, 176. 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
gation. As if a man maliciously and falsely utter any slander or 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 another, or is perjured; (f) or which may exclude him from society, as to charge him with having an infec
(f) Finch, L. 185.
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. But when the accusation is partly of an offence punishable in the ecclesiastical courts and partly in the temporal, or where special damage has been sustained, the latter courts wil afford redress.
2. With respect to the imputation of having a contagious disorder. Man being formed for soci ety, 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. 2 Wils. 403, 404. The mere accusation of having had a disease, is not actionable, because it alludes to a past disease. 2 T. R. 473, 474; 2 Stra. 1189.
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; 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, 698; 2 Esp. 500; 3. Wils. 177. 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; 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 profes sion, trade, &c., in which the party is engaged, are actionable. 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; 3 Wils. 59; 7 Moore, 200; 3 Bro. and B. 297; 3 B. and A. 702, or a person in trade (however inferior), (1 Lev. 115) of fraudulent or dishonorable conduct, or of being in insolvent circumstances. Ld. Raym. 1480. And to say of one who carries on the business of a corn vendor," You are a rogue and 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 tradesinan has charged an exorbitant sum for his goods, &c., unless fraud be imputed, etc. Bac. Ab. tit. Slander, B. 4. 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. 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. and Pul. 284; 1 Saund. 243; 3 B. and P. 372, 374, 376: 1 Taunt. 39; 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; 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.
tious disease; or which may impair or 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 peer, a judge, or other great officer of the realm, which are called scandalum magnatum, are held to be still more heinous: (h)
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 shown: 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 unfavorable 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. 557.
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 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 id. 307; Bac. Ab. Slander, D. 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. and C. 35. Every copy of a libel sold by defendant is a separate publication, and a separate offence. 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. It is justifiable for a barrister to use scandalizing expressions in support of his client's cause, and pertinent thereto. 1 Maule and Sel. 280; 1 Holt's Rep. 531; 1 B. and 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. 131-133, n. 1; 1 M. and S. 280; 3 Taunton, 456), will be actionable. A petition or memorial, addressed by a tradesman to the secretary of 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 showing the occasion of the writing, and his belief of the facts stated, may be given under the general issue. 5 B. and A. 642; 1 Dow. and Ry. 252. The declaration of a court-marital, 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. and 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. 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. Bull. N. P. 8; 3 Esp. 201; 1 Camp. 267; 1 T. R 110; 4 Burr. 2425. 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. 3 B. and P. 587. So a letter written, or words spoken, to a father in relation to some supposed fault of his children, are excusable. 2 Brownl. 151; 2 Burnl. 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 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 ridiculous. 1 Camp. 355; 1 Esp. Rep. 28 and 194; 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 com ments, or abuse, not connected with the work, for the purpose of defaming the private char
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 on the case, founded on many ancient statutes; (i) as well on behalf of [*124]
(f) Westm. 1. 3 Edw. I, c. 34. 2 Ric. II, c. 5. 12 Ric. II, c. 11.
acter 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. 4 Bing. R. 83. 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. 268; Í B. and P. 525; 7 Hob. 257; East, 503. But a party will not be justified in publishing conclusions unfavorable to another, which he draws himself from the evidence delivered in a court of justice, instead of stating the evidence itself. 4 B. and A. 605. Especially if such conclusion be calculated to produce a more unfavorable impression than the original proceeding itself. 7 East, 493; 7 Moore, 200; 3 Brod. and B. 297; 3 B. and A. 702. Nor can à 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. and 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. and A. 702; 7 East, 503; 1 M. and 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, contains libellous matter of another, it
is actionable. 3 B. and C. 583.
V. THE MALICE OR MOTIVE. 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. and C. 247, 585; 1 Saund. 242, n. 2; 1 T. R. 111, 544; 1 East, 563; 2 id. 436; 2 New. R. 335; Bul. N. P. 8; except in those cases where the occasion prima facie excuses the publication: 4 B. and 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. 1T. R. 111; 3 B. and 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. and 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 of another, though not malicious, an action is sustainable. 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 circum stances; and the defendant must be presumed to intend that which his act is likely to produce 4 B. and A. 95; 4 B. and C. 247; and as to what constitutes malice, see 3 B. and C. 584; 2 B and C. 257.
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, 126; 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. and P. 331; 2 H. Bl. 532; 2 Wils. 404; 1 T. R. 748; Hard. 470; 2 B. and P. 748; Holt's Law of Libel, 212; 2 Salk. 697; 8 Holt Rep. 554; 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. and C. 678; 4 Dowl. and 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; the former being more deliberate, more capable of extensive circulation, and more permanent in its injurious consequences, than the latter. ? East, 430; Hard. 470, 472; 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: 1 Stra. 420; 2 id. 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.
As to SLANDER OF TITLE, see in general Vin. Ab. Slander of Title, pl. 16; 2 B. and C. 486. The slander is actionable if a malicious motive be proved. 4 Burr. 2422. But to say that a vender 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. and S. 301, 639, 644.
the crown, to inflict the punishment of imprisonment on the slanderer, as on
(m) 4 Rep. 17. 1 Lev. 248. (n) Cro. Jac. 213. Cro. Eliz. 1
(k) Lord Raym. 1369. (1) 2 Vent. 28.
No action will lie when the slanderer prevents the sale of the land by asserting a claim in him self, though unfounded, unless it be knowingly bottomed in fraud. 4 Rep. 18.]
Upon this subject in general, see the recent work on libel and slander by Mr. Townsend where the authorities are very fully collected.
(9) This action is now obsolete.
(10) [And now by statute 6 and 7 Vic. c. 96 (amended by statute 8 and 9 Vic. c. 75), in any action for defamation, the offer of an apology is admissible in evidence in mitigation of damages and in an action against a newspaper for libel, the defendant may plead that it was inserted without malice.]
general issue, in miti-
The defendant in an action for slander may give in evidence under the gation of damages, any such facts as, without showing the truth of the that defendant believed it, and thus to rebut the presumption of malice. Wagner v. Holbrunner, 7 Gill, 296; Scott v. McKinnish, 15 Ala. 662; Bisbey v. Shaw, 12 N. Y. 67; Hart v. Reed, 1 B. Monr. 163; Farr v. Rasco, 9 Mich. 353; Chapman v. Calder, 14 Penn. St. 365; Kennedy v. Dear, 6 Port. 90; Blickenstaff v. Perrin, 27 Ind 527. As to damages in actions against pubshers of newspapers, for the publication of an article inserted by a subordinate, see Daily Post Co. v. McArthur, 16 Mich. 147; Jones v. Mackie, Law Rep. 3 Ex. 1.