against me, unless he can show some special loss by it; in which case he may maintain his action against me, for saying he was a *bastard, [* 132] per quod he lost the presentation to such a living (b). Words spoken in derogation of a peer, judge, or other great officer of the realm, were formerly called scandalum magnatum, and were held to be especially heinous (c): and though such as would not be actionable in the case of a common person, yet when spoken in disgrace of these high and respectable characters, were held to amount to an atrocious injury; which was redressed by an action on the case founded on several ancient statutes (d); as well on behalf of the crown, to inflict punishment on the slanderer, as on behalf of the party, to compensate him by damages for the injury sustained. The action for scandalum magnatum is now obsolete, but words tending to scandalize a magistrate, member of parliament, or person in an eminent position, or in a public trust, are reputed to be in general more highly injurious than when spoken of a private man, and may render the individual who has promulgated the slander punishable on criminal information (e).

Mere scurrility, or opprobrious words, without damage, will not support an action; neither will words of heat and passion do so, if productive of no ill consequence: nor are words spoken in a friendly manner, as by way of advice, admonition, or concern, without any tincture or circumstance of ill will, and under circumstances such as will be presently indicated (f), actionable. Neither (as was formely hinted (g)), do reflecting words made use of by counsel in legal proceedings, and pertinent to the cause in hand, or made use of by the judge (h), constitute a sufficient cause of action for slander. Also if the [* 133] defendant * be able to justify, and prove the words to be true, no action will lie (i), even though special damage has ensued: for then it is no slander or false tale. Thus, if I can prove the tradesman a bankrupt, the physician a quack, or the lawyer a knave, this will furnish a defence to their respective actions: for though there may be damage accruing from it, yet, if the fact be true, it is damnum absque injuriâ; and where there is no injury, the law, as a general rule, gives no remedy. And this is agreeable to the reasoning of the Roman law (k): “eum qui nocentem infamat, non est æquum et bonum ob eam rem condemnari; delicta enim nocentium nota esse oportet et expedit."

The repeating of a rumour which is slanderous is not, however, justifiable (7). And falsely and maliciously to slander another man's title, by spreading such injurious reports, as, if true, would deprive him of his estate, or tend to cut down the extent of title to it, is actionable, provided any special damage accrues to the proprietor thereby; as if he loses an opportunity of selling the land (m). (488)

(488) Slander is defined as the imputation (1) of some temporal offense for which the party might be indicted and punished in the temporal courts; (2) of an existing contagious disorder tending to exclude the party from society; (3) an unfitness or inability to perform an office or employment of profit, or want of integrity in an office of honor; (4) words prejudic

2ndly. A second way of affecting a man's reputation is by the maliciously publishing of a printed or written libel, picture, sign, or the like; which sets. him in an odious, contemptible, or ridiculous light, and thereby 2ndly. Libel. diminishes his reputation (n). A libel, as we shall hereafter see, is indictable (0); it is also actionable, without proof of special damage, and in an action which is to compensate the plaintiff by pecuniary damages for the

(n) Du Bost v. Beresford, 2 Camp. 511; Anon. 11 Mod. 99. The Case of Libels, 5 Rep. 125 a.

(0) Post, vol. iv.

ing a person in his lucrative profession or trade; (5) any untrue words occasioning actual damage. 1 Hill, on Torts, 228. And see Kimmis v. Stiles, 44 Vt. 351; McEwen v. Ludlow, 2 Harr. (Del.) 12; Brooker v. Coffin, 5 Johns. 188; Van Ness v. Hamilton, 19 id. 367; Irons v. Field, 9 R. I. 216; Hammond v. Hussey, 51 N. H. 40.

In several of the States of the Union, statutes prescribe what words shall be actionable; thus, in New York "an action may be maintained by a female, whether married or single, to recover damages for words hereafter spoken, imputing unchastity to her, and it shall not be necessary to allege or prove special damages in order to maintain such action." Laws 1871, ch. 219. The statutes of the particular State should be consulted.

Among actionable words and phrases per se, when published orally of an individual, are the following: Receiver of stolen goods (Dias v. Short, 16 How. 322); counterfeiter (Thirman v. Matthews, 1 Stew. [Ala.] 384); dealer in counterfeit money (Pike v. Van Wormer, 6 How. 99); bogus peddler (id.); concealing stolen goods (Miller v. Miller, 8 Johns. 74); hog thief (Cheatwood v. Mayo, 5 Munf. [Va.] 16); he killed a horse (3 Rich. [S. C.] 242); he poisoned my cow (Burton v. Burton, 3 Iowa, 316); you are a vagrant (Miles v. Oldfield, 4 Yeates [Penn.], 423); she keeps a whore-house (Wright v. Page, 36 Barb. 438); she produced a false heir or a bogus baby (Weed v. Bibbins, 32 id. 315). So words spoken of a woman, charging that she had intercourse with a beast, or had committed sodomy, are actionable per se. Haynes v. Ritchey, 30 Iowa, 76; S. C., 6 Am. Rep. 642. The following have been held not actionable per se: Cheat (Stevenson v. Hayden, 2 Mass. 406; Chase v Whitlock, 3 Hill, 139); deserter (Hollingsworth v. Shaw, 19 Ohio, 430); liar (Smalley v. Anderson, 4 Monr. [Ky.] 367); rogue (Idol v. Jones, 2 Dev. [N. C.] 162); scoundrel (Quinn v. O'Gara, 2 E. D. Smith, 388); swindler (Chase v. Whitlock, 3 Hill, 139); he robbed the treasury and bought a farm with it (Allen v. Hillman, 12 Pick. [Mass.] 101); he whipped his wife (Dudley v. Horn, 21 Ala. 379; Birch v. Benton, 26 Miss. 153); or his mother (Speaker v. McKenzie, id. 255). Imputations of having, at the present time, the venereal disease or the gonorrhoea are actionable in themselves. Williams v. Holdredge, 22 Barb. 396; Golderman v. Stearns, 7 Gray (Mass.), 181. It is held that words to be slanderous must be spoken with an intent to slander, and must be so understood by the hearers. St. Martin v. Desnoyer, 1 Minn. 156; Harwood v. Keech, 4 Hun, 389; Studdard v. Linville, 3 Hawks (N. C.), 474; Mousler v. Harding, 33 Ind. 176; S. C., 5 Am. Rep. 195. But see McKee v. Ingalls, 4 Scam. (Ill.) 30; Long v. Eakle, 4 Md. 454. The defendant may prove, either in excuse or mitigation, that he was insane when the words were spoken. Yeates v. Reed, 4 Blackf. (Ind.) 463; Horner v. Marshall, 5 Munf. (Va.) 466; Dickinson v. Barber, 9 Mass. 225. So, drunkenness may be shown in mitigation of damages (see Howell v. Howell, 10 Ired. [N. C.] 84; Gates v. Meredith, 7 Ind. 440); or, with the same view, it may be shown that the words were spoken in the heat of passion or under excitement. Mousler v. Harding, 33 Ind. 176; S. C., 5 Am. Rep. 195.

No action will lie for slanderous words which are immediately retracted or explained in the same conversation, and in the hearing of all who heard them spoken. Brown v. Brooks, 3 Ind. 518; Luine v. Maton, 13 Tex. 449; Wenchell v. Strong, 17 Ill. 597. But it is not enough that the party swears that he made the explanation. It must be made to appear that the explanation was heard and understood by the hearers, since only in that event would the words be rendered harmless in respect to the plaintiff. Maybee v. Fisk, 42 Barb. 326. See Kent v. Bonsey, 38 Me. 435; Scott v. McKinnish, 15 Ala. 662; Matthews v. Beach, 5 Sandf. 256; Stallings v. Newman, 26 Ala. 300.

To render a charge actionable it is not necessary that it should be made in direct terms. It may be made in ambiguous language or by insinuation. Dickey v. Andros, 32 Vt. 55;

VOL. II.-15

wrong done him, the defendant may, as in an action for words spoken, justify by showing the truth of the facts which he has alleged and published. The publication of a libel may be evidenced in various ways, as by reading it aloud,

*

[*134] by selling it, or distributing it gratis, or by sending it through the post, or otherwise, to a third person (p). Such publication is presumed to have been malicious, though it is competent to the defendant to rebut the inference of malice by proving that the libel was published on an occasion or under circumstances which would, on grounds of public policy, justify the publication, ex. gr. in giving the character of a servant (g). But the counter presumption which thus arises that the words were not maliciously spoken, may be rebutted by proof of express malice on the part of the defendant (r). (489)

(p) R. v. Burdett, 4 B. & Ald. 126, 143, 160; Wenman v. Ash, 13 C. B. 836.

(g) As to which Chambre, J. in Rogers v. Clifton, B. & P. 594, said, I take the law to be well settled, that where a master is applied to for the character of a servant, the former is not called upon in an action to prove the truth of any aspersions thrown out by him against the latter; but that it lies

upon the servant to prove the falsehood of such aspersions. In such case, the master is justified, unless the servant prove express malice." See also Taylor v. Hawkins, 16 Q. R. 321, and cases there cited; Somerville v. Hawkins, 10 C. B. 583.

(r) Bromage v. Prosser, 4 B. & C. 247; Jackson v. Hopperton, 16 C. B. N. S. 829.

Rundell v. Butler, 6 Barb. 260; Cooper v. Perry, Dudley (Ga.), 247; Marshall v. Gunter, 6 Rich. (S. C.) 419; Goodrich v. Davis, 11 Metc. (Mass.) 473.

Words that are merely abusive and insulting are not actionable, unless special damages are alleged and proved. Davis v. Farrington, Walk. (Miss.) 304. See Seaton v. Cordray, Wright (Ohio), 101; Lucas v. Nichols, 7 Jones (N. C.), 32. Ortherwise, by statute, in Mississippi. Davis v. Farrington, Walker, 304. And it is actionable in Massachusetts to charge a woman with drunkenness. Brown v. Nickerson, 5 Gray, 1.

An action for slander is transitory (Hull v. Vreeland, 42 Barb. 543; S. C., 18 Abb. 182; Boynton v. Boynton, 43 How. 380, 383); and the action will lie in one State for words spoken in another, if actionable at common law. Id.; Linville v. Earlywine, 4 Blackf. (Ind.) 469; Offutt v. Earlywine, id. 460; Lister v. Wright, 2 Hill, 320; Johnson v. Dicken, 25 Mo. 580; Poe v. Grever, 3 Sneed (Tenn.), 664.

The truth of the charge is, in general, a sufficient defense in an action for slander; but the defendant cannot give in evidence the truth of the imputation, without pleading such truth as a justification. See Taylor v. Robinson, 29 Me. 323; Douge v. Pearce, 13 Ala. 127; Shepard v. Merrill, 13 Johns. 475; Van Ankin v. Westfall, 14 id. 234; Haws v. Stanford, 4 Sneed (Tenn.), 520; Burke v. Miller, 6 Blackf. (Ind.) 155; Gilmer v. Ewbank, 13 Ill. 271; Watson v. Moore, 2 Cush. (Mass.) 133. See Spooner v. Keeler, 51 N. Y. (6 Sick.) 527; Farr v. Rasco, 9 Mich. 353.

Like v.

Slander of title to personal property, as well as to real property, is actionable. McKinstry, 3 Abb. Ct. App. 62; S. C., 4 Keyes, 397. To support the action it must be shown that false words, maliciously spoken, were followed as a strict legal consequence by pecuni. ary damage to the plaintiff; and this must be specially alleged and substantially proved. Kendall v. Stone, 5 N. Y. (1 Seld.) 14; Bailey v. Dean, 5 Barb. 297. See Hill v. Ward, 13 Ala. 310; Stark v. Chetroood, 5 Kan. 141; Paull v. Halferty, 63 Penn. St. 46; Linden v. Gra. ham, 1 Duer, 670.

(489) Any one who knowingly circulates a libel publishes it. Layton v. Harris, 3 Harr. (Del.) 406. If the publication is made without the consent of the writer the offense is not complete as to him. Weir v. Hoss, 6 Ala. 881. An action for a libel lies by the party injured, against the proprietor of a newspaper, although the publication was made by the editor without the knowledge of such proprietor. Huff v. Bennett, 4 Sandf. 120; Andres v. Wells, 7 Johns. 260; Com. v. Morgan, 107 Mass. 199. And the publication in a newspaper of rumors is not justified by the fact that such rumors existed; but such fact may be given in evidence in mitigation of damages. Skinner v. Powers, 1 Wend. 451. See Sanford v.

A communication disparaging to the character (s), and prima facie libellous, will be privileged, when made bond fide by the defendant, in the performance of some social or moral duty, or in the conduct of his own affairs, and with a fair and reasonable hope of protecting his own interest in a matter which concerns it, or where there is a corresponding interest in the party who receives the communication (t); words spoken by a member of parliament in his place are not actionable (u), nor is a fair, correct and bona fide report of proceedings in a public court (x), nor reasonable comment on a matter of public interest and concern (y); neither is a criticism, if it be fair, and do not [* 135]

contain slanderous observations unconnected with the work professed to be criticised (z). (490)

The mode of declaring in an action for defamation, whether libel or slander, has been simplified by the Common Law Procedure Act, 1852 (a), and by the

Bennett, 24 N. Y. (10 Smith) 20; Buckley v. Knapp, 48 Mo. 152; Snyder v. Fulton, 34 Md. 128.

One who writes an article and employs another person, as his agent, to translate it into another language and publish it, will be liable, if the article, as published, is libellous, although the translation is inaccurate. Wilson v. Noonan, 27 Wis. 598. See Keene v. Ruff, 1 Clarke (Iowa), 482.

(490) Privileged communications are said to be of four kinds : 1. Whenever the author and publisher of the alleged slander acted in the bona fide discharge of a public or private duty, legal or moral, or in the prosecution of his own rights or interests. 2. Any thing said or written by a master in giving the character of a servant who has been in his employment. 3. Words used in the course of a legal or judicial proceeding. 4. Publications duly made in the ordinary mode of parliamentary proceedings. White v. Nichols, 3 How. (U. S.) 266, 286. And see Perkins v. Mitchell, 31 Barb. 467; Warner v. Paine, 2 Sandf. 198; Newfield v. Copperman, 15 Abb. N. S. 360; Klinck v. Colby, 46 N. Y. (1 Sick.) 427.

To show the truth of the matter published is a complete defense in an action for libel as well as for slander; but it cannot be given in evidence unless it is pleaded, or notice thereof is given with the general issue. See cases cited in preceding note. It is held, however, that the defendant may give in evidence under the general issue, in mitigation of damages, any such facts as, without showing the truth of the charge, tend to show that the defendant believed it, and thus to rebut the presumption of malice. Kennedy v. Dear, 6 Port. (Ala.) 90; Chapman v. Calder, 14 Penn. St. 365; Spooner v. Keeler, 51 N. Y. (6 Sick.) 527 ; Bisbey v. Shaw, 12 N. Y. (2 Kern.) 67. Evidence of general bad character may be admitted under the general issue. Taylor v. Richardson, 29 Me. 323; Smith v. Smith, 8 Ired. (N. C.) 29.

The justification, when pleaded, must be as broad as the charge. Bissell v. Cornell, 24 Wend. 354; Gregory v. Atkins, 42 Vt. 237. Thus, if the charge is perjury, it will avail nothing to prove that the plaintiff swore falsely through an innocent mistake. Fero v. Ruscoe, 4 N. Y. (4 Comst.) 162; Torrey v. Field, 10 Vt. 353; State v. Burnham, 9 N. H. 34. The proof must be of willful and corrupt falsehood. M Kinly v. Rob, 20 Johns. 351. So, a charge of committing one offense is not justified by showing the commmission of another offense, although of the same or even greater enormity. Andrews v. Van Deuzer, 11 Johns. 38; Stow v. Converse, 4 Conn. 17; McClintock v. Crick, 4 Iowa, 453; Smith v. Buckecker, 4 Rawle (Penn.), 295; Skinner v. Grant, 12 Vt. 456. And where the libellous matter imputes a dishonest, corrupt, or criminal intent, a plea of justification must show not only the facts, but also the intent. Gage v. Robinson, 12 Ohio, 250.

stat. 6 & 7 Vict. c. 96, some material improvements with regard to it have been effected, the defendant in an action for slander or libel, giving notice in writing to the plaintiff at the time of pleading of his intention, may give in evidence, in mitigation of damages, that he made or offered an apology before the commencement of the action, or as soon afterwards as he had an opportunity, in case the action was commenced before (b). And in an action for a libel in a public newspaper, or other periodical publication, the defendant may plead that it was inserted without actual malice, and without gross negligence, and that before the commencement of the action, or at the earliest opportunity afterwards, he inserted a full apology for it; or, if the newspaper or other periodical in which it appeared should be ordinarily published at intervals exceeding one week, had offered to publish the apology in any newspaper &c., to be selected by the plaintiff: and upon filing such plea, he may pay into court a sum of money by way of amends for the injury sustained by the publication of the libel (c).

3rdly. A third way of destroying or injuring a man's reputation is by preferring a malicious indictment or instituting a malicious prosecution against 3rdly. Malicious him; which, under the mask of justice and public spirit, is prosecution. sometimes made the engine of private spite and enmity. For this the law has given a remedy, either by action for conspiracy (d), which cannot be brought but against two persons at the least; or, which is the more [* 136] usual way, by an action on the case * for a false and malicious prosecution (e). The essential ground of which action is, that a legal prosecution was carried on without a probable cause; and this must be substantively and expressly proved, and cannot be implied. From the want of probable cause, malice, indeed, may be, and most commonly is, implied, and the knowledge of the defendant is also implied; but from the most express malice, the want of probable cause cannot be implied (ƒ). (491) At the trial

(b) S. 1.

(f) Sutton v. Johnstone, 1 T. R. 544; per

(c) S. 2; see 15 & 16 Vict. c. 76, s. 70; Jones Parke, J., Mitchell v. Jenkins, 5 B. & Ad. 594; v. Mackie, L. R. 3 Ex. 1. Panton v. Williams, 2 Q. B. 192; Mitchell v. Williams, 11 M. & W. 205.

(d) Finch, L. 305.

(e) F. N. B. 116.

(491) To maintain an action for malicious prosecution, and more especially in order to recover vindictive damages, the plaintiff must allege and prove that he has been prosecuted by the defendant, either criminally or in a civil suit, and that the prosecution is at an end; that it was instituted maliciously, and without probable cause; and that he has sustained damage thereby. 1 Hill. on Torts, 416; Vanderbilt v. Mathis, 5 Duer, 304; Wheeler v. Nesbitt, 24 How. (U. S.) 544; Hall v. Suydam, 6 Barb. 83; Schofield v. Ferrers, 47 Penn. St. 194; Given v. Webb, 7 Rob. 65; Greenwade v. Mills, 31 Miss. 464; Driggs v. Burton, 44 Vt. 124; O'Brien v. Barry, 106 Mass. 300; Mitchinson v. Cross, 58 Ill. 366; Bauer v. Clay, 8 Kan. 580; Ritchey v. Davis, 11 Iowa, 124. Proof of express malice is not enough, without showing also the want of probable cause (Hall v. Suydam, 6 Barb. 83; Shafer v. Loucks, 58 id. 426); nor want of probable cause without malice. Ewing v. Sanford, 21 Ala. 157; McNeese v. Herring, 8 Tex. 151; Payson v. Caswell, 9 Shep. (Me.) 212; Leidig v. Rawson, 1 Scam. (III.) 272. Probable cause is defined to be a reasonable suspicion supported by circumstances sufficient to warrant a cautious man in the belief that the person accused is guilty of the offense charged. Munns v. Nemours, 3 Wash. C. C. 37; Foshay v. Ferguson, 2 Denio, 617; Bacon v. Towne, 4 Cush. (Mass.) 218; Carl v. Ayres, 53 N. Y. (8 Sick.) 18; see Foote v. Milbier, 1 Pars. Sup. Ct. 456; Cole v. Curtis, 16 Minn. 182; Driggs v. Burton, 44 Vt. 124: Farnam v. Feeley, 56 N. Y. (11 Sick.) 451. If want of probable cause be shown, the question of malice must be left to the jury. Grinnell v. Stewart, 20 How. 478; S. C., 12 Abb. 220; 32 Barb. 544.