Sivut kuvina

ear be cut off, treble damages are given by statute 37 Hen. VIII. c. 6. though this is not mayhem at common law. And here I must observe, that for these four last injuries, assault, battery, wounding, and mayhem, an indictment may be brought as well as an action; and frequently both are accordingly prosecuted; the one at the suit of the crown for the crime against the public; the *other at the suit of the party [*122] injured, to make him a reparation in damages (6).

4. Injuries, affecting a man's health (7), are where by any unwholesome practices of another a man sustains any apparent damage in his vigour or constitution. As by selling him bad provisions, or wine (w); by the exercise of a noisome trade, which infects the air in his neighbourhood (x); or by the neglect or unskilful management of his physician, surgeon, or apothecary. For it hath been solemnly resolved (y), that mala praxis is a great misdemeanor and offence at common law, whether it be for curiosity and experiment, or by neglect; because it breaks the trust which the party had placed in his physician, and tends to the patient's destruction. Thus also, in the civil law (2), neglect or want of skill in physicians or surgeons, "culpæ adnumerantur, veluti si medicus curationem dereliquerit, male

(w) 1 Roll. Abr. 90.

(z) 9 Rep. 32. Hutt. 135.

Barnes, 106. 153. 3 Salkeld, 115. 1 Ld. Raym. 176. 339.

(6) The party injured may proceed by indictment and by action at the same time, and the court will not compel him to stay proceedings in either. 1 Bos. & P. 191. But in general the adoption of both proceedings is considered vexatious, and will induce the jury to give smaller damages in the action. The legislature has discouraged actions for trifling injuries of this nature, by enacting, that in all actions of trespass for assault and battery, in case the jury should find a verdict for damages under forty shillings, the plaintiff shall have no more costs than damages, unless the judge at the trial shall certify that an assault and battery was sufficiently proved. See constructions on the statute, Tidd Prac. 8 ed. 998.

In New-York, the plaintiff in an action for assault and battery, false inprisonment, slanderous words, or libel, if he sues in the supreme court, and recovers no more than 50 dollars, can have no more costs than damages: but if he sues in the common pleas, he recovers full costs. 2 R. S. 613, § 6. Id. 614, § 12.

(7) The law implies a contract on the part of a medical man, as well as those of other professions, to discharge their duty in a skilful and attentive manner, and the law will grant redress to the party injured by their neglect or ignorance, by an action on the case, as for a tortious misconduct. 1 Saund. 312. n. 2. 1 Ld. Raym. 213, 4. Reg. Brevium, 205, 6. 2 Wils. 359. 8 East, 348. And in that case the surgeon could not recover any fees. Peake, C. N. P. 59; see 2 New. Rep. 136. But in the case of a physician, whose profession is honorary, he is not liable to an action.† Peake, C. N. P. 96. 123. 4 T. R. 317. though he may be punished by the college of physi

(y) Lord Raym. 214.

(z) Inst. 4. 3. 6, & 7.

cians. Com. Dig. tit. Physician; Vin. Ab. tit. Physician. According to Hawkins, P. C. if any person, not duly authorized to practice, undertake to cure, and should kill his patient, he is guilty of felony, though clergyable. And such person, so employed, cannot recover in an action for the medicines supplied. See 55 Geo. III. c. 194. However, if the party employ a person as surgeon, knowing him not to be one, he has no civil remedy. 1 Hen. B. 161. Bac. Ab. Action on the Case, F. 2 Wils. 359. Reg. Brev. 105. 8 East, 348.

Though the law does not in general imply a warranty, as to the goodness and quality of any personal chattel, it is otherwise with regard to food and liquors, in which, especially in the case of a publican, the law implies a warranty. 1 Roll. Ab. 90. pl. 1, 2. 2 East, 314.

With regard to private nuisances, it is par. ticularly observable that the law regards the health of the individual though it will not af ford a remedy for malicious and ill-natured acts tending to destroy the beauty of situa tion, such as stopping a prospect, &c. 9 Co. 58. b.-In complaining of a nuisance in stopping ancient lights, &c. the cousequent injury must be stated to have been the deprivation of lights and air, which are considered as condu cive to health. Peake, 91. Com. Dig. tit. Action on the Case for a Nuisauce. As to ancient light in general, see ante.

Public Nuisance.-With respect to the injuries to health, as a consequence of a public nuisance, it seems that if the injury be attributable to the inhabitants of a county, no action is sustainable. 2 T. R. 667. 9 Co. 112. b. 117. a. But if the special injury be occasioned by an individual, an action lies. Bac. Ab. Action on the Case; 1 Salk. 15, 16.

+ In New-York, physicians are entitled to sue for their fees. See note* p. 28 ante.

quempian secuerit, aut perperam ei medicamentum dederit." These are wrongs or injuries unaccompanied by force, for which there is a remedy in damages by a special action of trespass upon the case. This action of trespass, or transgression, on the case, is an universal remedy, given for all personal wrongs and injuries without force; so called because the plaintiff's whole case or cause of complaint is set forth at length in the original writ (a). For though in general there are methods prescribed, and forms of actions previously settled, for redressing those wrongs, which most usually occur, and in which the very act itself is immediately prejudicial or injurious to

the plaintiff's person or property, as battery, non-payment of [123] debts, detaining one's goods, or the like; yet where any special consequential damage arises, which could not be 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 (8).

5. Lastly; injuries affecting a man's reputation or good name are, first, by malicious, scandalous, and slanderous words (9), tending to his damage

(a) For example: "Rer vicecomiti salutem, Si A fecerit the securum de clamore suo prosequendo, tunc pone par vadium et salvos plegios B quod sit coram justitiariis nostris apud Westmonasterium in octabis sancti Michaelis, ostensurus quare cum idem B ad dextrum oculum ipsius A casualiter laesum bene et competenter curandum apud S. pro quadam pecuniae summa prae manibus soluta assumpsisset, idem B curam suam circa oculum praedictum tam negli genter et improvidè apposuit, quod idem A defectu

(8) The Revised Statutes of New-York seem to allow the action of trespass on the case to be brought in all cases where trespass may be brought, except for trespass on lands. (2 R. S. 553, 16).

(9) As to actions for verbal slander and libels in general, see Bac. Ab. Libel, and tit. Slander; Com. Dig. Action upon the Case for Defamation, and tit. Libel; Vin. Ab. tit. Libel; Selw. N. P. Libel, and tit. Slander; Holt, George, Starkie, and Mence's Treatises on Slander, and 2 Starkie on Evidence, 844 to 883; and as to indictment for libels, see post, 4 book, 150.

With respect to an imputation of the guilt of some offence punishable in the temporal courts, as an infamous crime, or punishable with imprisonment; the 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

ipsius B visum oculi praedicti 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.)

(b) See page 52.

(c) 1 Salk. 20. 6 Mod. 54.
(d) Cro. Jac. 478.

(e) 11 Mod. 130. Lord Raym. 1402. Stra. 635.

of some punishable offence; for though the rule of construing words in mitiori sensu is now exploded, (5 East, 463. Fitzg. 253. Bul. N. P. 4. 10 Mod. 198), yet an innuendo or construction cannot be given to words which they do not necessarily import, either of themselves, independently of any other circumstances, or with necessary reference, or some other circumstances occurring at the time of the accusation. 6 T. R. 691. 4 Co.,17. b. 11 Mod. 99. 4 Esp. N. P. 218. 8 East, 427. On this account it is not actionable to call a person "villain," "cheat," "rascal," "swindler," or "rogue," or to say he is "forsworn," without a colloquium of some proceeding in a court of justice, in which the party had been examined on oath. 6 T. R. 691. 2 H. Bla. 531. 2 Wils. 404. 87. 8 East, 428. 1 Bos. & Pul. 331. 2 Saund. 307. 4 Co. 15. b. 2 Ventr. 28. 2 Buls. 150. Holt's Law of Libel, 176. As to this point, see Com. Dig. tit. Libel. Fitzg. 121. 253. The law does not

and derogation. As if a man maliciously and falsely utter any slander or false tale of another; which may either endanger him in law, by impeach

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 or 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.


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 been sustained, the latter courts have the exclusive jurisdiction, and will afford redress for the entire slander. 2 T. R. 473. 4 Co. Rep. 20. a. b. Sid. 214. 1 Lev. 134. Rol. Ab. 34. 4 T. R. 16. b. Cro. Jac. 163. 12 Mod. 248. Ld. Raym. 809. Vent. 220. 3 Lev. 193. Stra. 545. 55.

2. With respect to the Imputation of having a contagious Disorder.-Man being formed for society, and standing in almost constant need of the advice, comfort, and assistance of his fellow-creatures, it is highly reasonable that any words which import the charge of having. a contagious distemper, should be in themselves actionable, because all prudent persons will avoid the company of a person having such a distemper. Bac. Ab. Slander, B. Com. Dig. Action on the Case for Defamation, D. 28. 2 Wils. 403, 4. The mere accusation of having had a disease, is not actionable, because it alludes to a past disease. 2 T. R. 473, 4. 2 Stra. 1189. As to particular disreputable disorders, see Cro. Eliz. 289. Hob. 5. 219. Rol. M. 43. 2 T. R. 473. 1 Saund. 248. n. 3. Bac. Ab. tit. Slander.

3. As to Slander affecting a Person in his Office or Trust.-When profit or emolument is attached to them, any words which directly impute an unfitness, either in respect of morals or inability to discharge the duty of the office, are actionable. 1 Salk. 695.698. Rol. Ab. 65. 2 Esp. 500. 5 Rep. 125. 1 Stra. 617. 2 Ld. Raym. 1369. 4 Rep. 16. a. Bull. N. P. 4. But in an office merely honorary, to which no profit, &c. is attached, a verbal accusation of incapacity, &c. is not actionable. 5 Co. Rep. 125. 4 Rep. 16. a. Salk. 695. 8. 1 Rol. Ab. 65. 2 Esp. 500. 3 Wils. 177. 1 Mal. Ent. 244. In an office of trust and emolument, an imputation of an intent or inclination to commit a criminal breach of duty, is actionable, which is an exception to the before-mentioned rule. Salk. 695. 1 Stra. 617. 2 Ld. Raym. 1369. 1480. 4 Rep. 16. a. 3 Wils. 177. 2 Saund. 307; see Cro. Jac. 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 capaci ty, 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 attorney, "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 (f); or which may exclude him from society, as to

(f) Finch. L. 185.

costs, however small the damages; but if the words be actionable in themselves, though special damages be proved, the plaintiff, unless he recover damages, will be entitled to no more costs than damages. Willes, 438. 2 Ld. Raym. 1588. 2 Stra. 936. Tidd, 8 ed. 997.

person in trade (however inferior, 1 Lev. 115.) of fraudulent or dishonourable conduct, or of being in insolvent circumstances. Ld. Raym. 1480. And to say of one who carries on the business of a corn vender, "you are a rogue and a swindling rascal, you delivered me 100 bushels of oats worse by 6s. a bushel than I bargained for," is actionable, and entitles him II. FALSITY OF THE IMPUTATION.-To to a verdict without proof of special damage. render any imputation against the character 3 Bing 104. But an action is not sustainable actionable, it must be false, 5 Co. 125, 6 Hob. for saying a tradesman has charged an exor- 253; and though the falsity of the imputation bitant sum for his goods, &c. unless fraud be is in general to be implied till the contrary be imputed, &c. Bac. Ab. tit. Slander, B. 4. If shewn, 2 East, 436. 1 Saund. 242. yet the defamatory words be spoken of two persons defendant may, in any civil action, plead speaffecting them in their joint trade, they may cially, though he cannot give in evidence unjoin in an action for the injury. 3 B. & P. der the general issue, that the slanderous re150. In all these cases the words are action- presentation was true. Willes, 20. 1 Saund. able, without proof of special damage, because 130. The instance of a master making an unthey have a certain tendency to injure the favourable representation of his servant, upon person accused. Bac. Ab. Slander, B. 4. In an application for his character, seems to be these and the prior cases the words must be an exception, in that case there being a prespoken of the party in relation to his office, sumption from the occasion of speaking, that trade, &c., and be so alleged in the declara- the words were true. 1 T. R. 111. 3 Bos. and tion, and proved at the trial, or the words Pul. 587. themselves must appear to have been spoken of the office, &c. or necessarily to affect in that view, unless special damage be averred and proved. 2 Saund. 307. a. 1 Saund. 242. n. 3. 1 Lev. 280. Ld. Raym. 1480. Stra. 618. 696. 1169. Cro. Jac. 554. Salk. 694.

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. Words actionable in respect of Special Da- 361. 2 Barn. K. B. 102. 2 Kel. 58. 2 Stark. mage. The special damage sufficient to sup- 245. But it is essential to the support of an port an action, must be a certain actual loss, action, that there be a publication by the de(as of a particular marriage), or the acquaint fendant of the libel or words to a third person, ance or friendship of some specified person, 1 and also that such person understood the words Rol. Ab. 36. 1 Lev. 261. 2 Bos. & Pul. in the sense the plaintiff wishes to establish, 284. 1 Saund. 243. 3 B. & P. 372. 4. 6. 1 or that they necessarily have that meaning. Taunt. 39. 2 Edw. II. Ed. 11. b. 1. Bac. 1 Rol. Ab. 74. Cro. Eliz. 857.861. 1 Saund. Ab. Slander, C.; or where in consequence of 242. n. 3. 2 Saund. 307. Bac. Ab. Slander, the imputation of incontinence, cast upon a D. It is the province of a jury to decide dissenting preacher at a licensed chapel, the whether or not a publication be sufficiently congregation refuse to allow him to preach proved. 2 Bla. Rep. 1037. 1 Saund. 132. n. there any more, and discontinue the emolu- 2. It is immaterial in what way the slander ment they would otherwise have given him, was conveyed, however obscure, if the person he may maintain an action for the consequen- who heard it understood it in an actionable tial damage. 8 T. R. 130. Probable damage sense, and the court will put the witnesses' has been in some instances declared sufficient, construction on the words, the old rule of inas to say to a father of an heir apparent, that tendment in mitiori sensu being exploded. 5 he is a bastard, in consequence whereof the East, 463. Bac. Ab. Libel, A. 3. If A. send father has declared a design of disinheriting a manuscript to the printer of a periodical him, and does actually convey away the es- work, and does not restrain the printing and tate. 1 Rol. Ab. 38. Cro. Jac. 213. sed vide publishing it, and he print and publish it, A. 3 Wils. 188. Yet having incurred the dan- is liable as the publisher, and liable to an acger of being turned out of doors from the tion, 5 Dow. 201; and proof that the defendparents' displeasure, from calumnious impu- ant knew that letters addressed to the plaintiff tation, is not sufficient. 1 Lev. 261. 1 Taunt. were usually opened by his clerk, is evidence 39. The special damage must be incident to go to a jury, of his intention that the libel and natural to the words spoken, and not the should be read by a third person, so as to consequence of the unlawful act of a third amount to an actionable publication, 2 Stark. person. 8 East, 1. Where the action is sus- 63; and proof of the delivery of a copy of a tainable merely on account of special damage newspaper, containing a libel, to the stamp occasioned by words not actionable them- office, is sufficient proof of publication. 4 selves, it suffices to bring the action within B. & C. 35. Every copy of a libel sold by six years, and the plaintiff is entitled to full 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

parate offence, and the court will not restrain the proceedings against the party for second and subsequent publications. i Chitty R.


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 malici ous 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 origi. nal 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 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. Camp. 267. 1 T. R. 110. 4 Burr. 2425. 1 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 of 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 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 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. & 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

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