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 A TREATISE 
 
 ON THE WRONGS CALLED 
 
 SLANDER AND LIBEL 
 
 THE REMEDY BY CIVIL ACTION FOR 
 THOSE WRONGS. 
 
 By JOHN TOWNSHEND. 
 
 HI 
 
 SECOND EDITION. 
 
 NEW YOEK: 
 BAKER, VOORHIS & CO., PUBLISHERS, 
 
 66 NASSAU STREET. 
 1872. 
 
 ?4S.; 
 
 !
 
 T 
 19 1U 
 
 Entered, according to Act of Coheres?, in the year eighteen hundred and seventy-two. by 
 
 JOHN TOWNSHEND. 
 
 In the office of the Librarian of Congress, at Washington. 
 
 B A K i: R £ GODWIN, PRINTERS 
 Printing-House Square.
 
 •CI 
 
 PREFACE 
 
 TO THE SECOND EDITION. 
 
 It was my good fortune to be called upon, very much 
 sooner than I had expected, to prepare a second edition 
 of the following essay. For more than a year past the 
 first edition has been what is termed " out of print." The 
 rapid sale of the first edition, and the continual demands 
 for copies, is a gratifying evidence of the favor with which 
 my work has been received, and a sufficient excuse for its 
 republication. 
 
 As stated in my former preface : warned by experience 
 of the difficulties in the law regarding defamation, I hoped 
 by means of this essay, to mitigate to the student and the 
 practioner the obstacles to an understanding of the Law 
 of Libel. 
 
 While large additions have been made, there are but 
 few modifications of the propositions as originally pub- 
 lished ; and many propositions for which, in my' first 
 edition, no direct authority could be cited, have been since 
 legitimatized by judicial decision. 
 
 In preparing this edition, I have had the advantage of 
 the third English edition of Starkie on Slander, by Fol- 
 
 67888
 
 4 PREFACE. 
 
 kard, published in 1869 ; but as the work has not been 
 reproduced in this country, I have throughout made my 
 references to the second American edition of Starkie by 
 Wendell. My references to Holt on Libel are to the 
 American edition. 
 
 The devotion of twelve pages of appendix to some 
 cases deemed important and not of easy access, will, it is 
 believed, be generally approved. 
 
 As the major part of the additions is contained in the 
 notes, and as the size of the page has been enlarged, the 
 increase in the number of pages (more than 150) but 
 imperfectly indicates the amount of new matter. 
 
 Solely for typographical reasons, I have departed from 
 the plan pursued in the first edition of numbering the 
 notes consecutively throughout the volume. The number- 
 ing of the sections has been retained to correspond with 
 the first edition. The index has been enlarged, and the 
 whole work has, it is hoped, been improved.
 
 CONTENTS. 
 
 Preface ....... 3 
 
 Table of cases cited . . . . .11 
 
 Table of references to reports without the name 
 
 of the case prefixed . . . . .41 
 
 Table of works referred to, exclusive of the reports . 43 
 
 List of works on the subject of libel, in addition 
 
 to those referred to in the notes . . .49 
 
 PART I. 
 
 THE LAW OF SLANDER AND LLBEL. 
 
 CHAPTER I. 
 
 INTRODUCTORY. 
 
 Language as a means of effecting injury — Slander — Libel — Defama- 
 tion — Redress — The Law of Libel — Object in view — Division of 
 subject — Attempts to define Libel. ..... 57 
 
 CHAPTER II. 
 
 HOW ONE MAY AFFECT ANOTHER BY LANGUAGE. 
 
 Language can have no effect unless published— It must be true or false, 
 commendatory or discommendatoiy — Must concern a person or 
 thing — Its effect, direct or indirect, or both — Reputation . . 78
 
 CONTENTS. 
 
 CHAPTER III. 
 
 EIGHTS ; DUTIES ; WRONGS ; REMEDIES. 
 
 Description of Rights and Duties — Wrongs, Rights and Duties, unde- 
 finable — What determines of any act if it be a Wrong — Remedies — 
 Injunction — Original Writs ...... 83 
 
 CHAPTER IV. 
 
 WHAT IS THE GIST OF THE ACTION FOR SLANDER OR LIBEL. 
 
 History is silent as to the Introduction of the Action for Slander — Hy- 
 pothesis necessary — How the Law protects Reputation — Fiction — 
 Pecuniary Loss the Gist of the Actions for Slander and Libel . 95 
 
 CHAPTER V. 
 
 WRONGFUL ACTS. ELEMENTS OF A WRONG. 
 
 Wrongful Acts — Liability — Presumptions of Law — Questions of Law 
 and Fact — Essential Acts in Slander and Libel — Defamatory — 
 Falsity — Voluntary— Involuntary — Intention— Malice . . 108 
 
 CHAPTER VI. 
 
 FCBLICATION. PUBLISHER. 
 
 A Publication is necessary — Meaning of the term Publication — The 
 Language published must be understood — The Publication may 
 be Orally or in Writing — What amounts to an Oral and what to 
 a Written Publication — Publication of Effigy — Requisites of an 
 Oral Publication — Requisites of a Written Publication — Time of 
 Publication — Place of Publication — Who is a Publisher — Republi- 
 cation and Repetition. Distinction between — Joint Publication — 
 Liability for Publications — Voluntary and Involuntary Publica- 
 tions — Liability of Principal and Agent — Newspaper Publisher — 
 Bookseller . . . . . . . . 13G
 
 CONTENTS. 
 
 CHAPTER VII. 
 
 CONSTRUCTION OF LANGUAGE. 
 
 Actionable quality of language dependent upon its construction — All 
 language ambiguous or unambiguous— Difficult to determine 
 what is and what is not ambiguous — Points upon which ambigu- 
 ity arise — Causes of ambiguity — Ambiguity, how explained — Dif- 
 ferent effects of Language concerning a person and of language 
 concerning a thing — Materiality of questions, what person or thing 
 affected, and whether the person is affected as an individual 
 merely, or in some acquired capacity — Principles of construction ; 
 before verdict ; after verdict — Examples of construction — Divisi- 
 ble matter. ........ 159 
 
 CHAPTER VIII. 
 
 WHAT LANGUAGE IS ACTIONABLE. 
 
 Language must be such as does or does not occasion damage — What 
 is meant by actionable per se, and actionable by reason of special 
 damage — What language concerning a person as such, published 
 orally, is actionable per se — What language concerning a person 
 as such, published in writing, is actionable per se — What language 
 concerning one in an acquired capacity, is actionable p>er se — What 
 language concerning a person is actionable by reason of special 
 damage — What language concerning the affairs of a person, his 
 property or his title thereto, is actionable. . . . 202 
 
 CHAPTER IX. 
 
 DEFENSES. 
 
 Privileged publications generally — Repetition — Truth — Legislative 
 proceedings and reports thereof — Judicial proceedings — Parties to 
 proceedings — Counsel — Witnesses — Judges — Grand jurors — lie- 
 ports of judicial proceedings — Quasi judicial proceedings — Church 
 discipline — Seeking advice or redress other than judicially — 
 Giving information or advice generally — Attorney and client — 
 Master and servant— Candidates for office or employment — Insan- 
 ity — Drunkenness — Infancy — Accord and satisfaction — Previous 
 recovery — Apology — Freedom of the Press — Criticism. . . 318
 
 b CONTENTS. 
 
 CHAPTER X. 
 
 CORPORATIONS. 
 
 Corporations are legal persons — Their rights and duties assimilated to 
 those of natural persons— Can act only through agents — May carry 
 on business, sue and be sued, and are liable for injuries committed 
 by agents — Corporations may have a reputation — Language con- 
 cerning corporations — Actions by corporations for libel — Corpora- 
 tions cannot be guilty of slander — May be guilty of libel. . 455 
 
 PART II. 
 
 REMEDY BY ACTION FOR THE WRONGS CALLED SLANDER 
 
 AND LIBEL. 
 
 CHAPTER XL 
 
 PROCEEDINGS IN AN ACTION. 
 
 Action, how commenced — Within what time — In what court — Attach- 
 ment — Holding defendant to bail — Execution against the per- 
 son — Security for costs — Consolidating action — Place of trial — 
 Inspection and discovery — Assessment of damages where no an- 
 swer interposed — Mode of trial — Struck jury— Refusing to try — 
 Compromise — Right to begin — Address of counsel — Reading libel 
 to jury — Evidence for plaintiff — Abandonment of one of several 
 causes of action or defense — Province of the court and jury — 
 Damages — Verdict — New trial — Costs — Staying proceedings until 
 costs of former action paid. ...... 463 
 
 CHAPTER XII. 
 
 PARTIES. 
 
 Question as to parties anticipated — Action by alien — Outlaw — Rebel — 
 Executors or administrators — Married woman- Husband and 
 wife — Partners — General rule as to joinder — Action against hus- 
 band and wife — Contribution. ..... 497
 
 CONTENTS. 9 
 
 CHAPTER XIII. 
 
 PLEADING. THE COMPLAINT. 
 
 General requisites of a complaint — Complaint for language concerning 
 a person only — Inducement — Colloquium — Publication — Matter 
 published — Innuendo — Special damage — Several counts — Supple- 
 mental complaint ....... 503 
 
 CHAPTER XIV. 
 
 PLEADING. ANSWER. DEMURRER. 
 
 The answer corresponds to plea — What it must contain — Plea to part 
 of a count — Answer of justification must give color, show a lawful 
 occasion, and deny malice — Several answers — Defense of truth 
 must be pleaded — How pleaded — Where the charge is general — 
 Where the charge is specific — Certainty in statement of facts — 
 Answer of justification bad in part, bad altogether — Mitigating 
 circumstances — Demurrer — Counter-claim .... 546 
 
 CHAPTER XV. 
 
 VARIANCE. AMENDMENT. 
 
 Allegation of pleadings and proof should correspond — Variance in 
 New York — General rule as to variance — Immaterial variance — 
 Material variance — Amendment ..... 565 
 
 CHAPTER XVI. 
 
 EVIDENCE FOR PLALNTIFF. 
 
 Proof: of publication ; of oral publication ; of publication in writing ; 
 of defendant's liability — Opinion of witnesses as to meaning — 
 Proof of inducement ; of plaintiff's good reputation ; of malice ; 
 to aggravate damages — Falsehood not evidence of malice — Other 
 publications by defendant ; subsequent publications ; publication 
 after commencement of action — Defendant's ill-will to plaintiff — 
 Ill-will to plaintiff of persons other than the defendant — The 
 publication itself evidence of malice — Attempted justification an 
 aggravation — Evidence in reply . ... 582
 
 10 
 
 CONTENTS. 
 
 CHAPTER XVII. 
 
 EVIDENCE FOR DEFENDANT. 
 
 What evidence is admissible depends upon what plea or answer is 
 interposed — What may be proved under the general issue — Evi- 
 dence to support a justification — Plaintiff's reputation in issue — 
 Inquiry limited to plaintiff's general reputation, and to his repu- 
 tation prior to the publication complained of —Truth in mitigation 
 — Conduct of plaintiff leading to belief in truth — Report or sus- 
 picion of plaintiff's guilt in mitigation — Plaintiff's standing and 
 condition in society — Prior or subsequent declarations of defen- 
 dant — Heat and passion — Previous publications by the plaintiff — 
 Controversies between plaintiff and defendant prior to the publica- 
 tion — Circumstances not admissible in mitigation . 
 
 610 
 
 Appendix 
 
 Swadling r . Tarpley 
 King v. Townsend . 
 Foote v. Rowley 
 Martincre v Mackav 
 
 886 
 
 8SS 
 
 641 
 04-J 
 
 Index 
 
 04'.)
 
 TABLE OF CASES. 
 
 A 
 
 Abbey v. Lill, 583. 
 
 Abrams v. Foshee, 215. 
 
 Abrams v. Smith, 170, 325, 484, 563, 602, 
 
 612. 
 Absbire v. Cline, 238, 327, 328, 333. 
 Adams v. Kelly, 149. 
 Adams v. Lawson,245, 248, 251, 592, 598. 
 Adams v. Miredew, 2S7. 
 Adams v. Rankin, 235. 
 Adams v. Rivers, 58. 
 Adams v. AVard, 616. 
 Addington v. Allen, 491. 
 Adecock v. Marsh, 234, 409, 602. 
 Aefele v. Wright, 227. 
 Aier v. Frost, 222. 
 Alcorn v. Hooker, 328. 
 Alderman v. French, 323, 327, 549, 608, 
 
 617, 624, 626. 
 Aldrich v. Brown, 171, 616. 
 Aldrich v. Press Printing Co., 433,* 456, 
 
 460. 
 Alexander v. Alexander, 190, 207, 222 ; 
 
 223, 226. 
 Alexander v. Angle, 258, 271, 512, 537. 
 Alexander v. Harris, 626. 
 Alexander v. N. East R. R. Co., 340, 460. 
 Alexandria, The, 91. 
 Alfred v. Farlow, 236, 491. 
 Allardice v. Robertson, 363. 
 Allcott v. Barber, 259. 
 Allen v. Crofoot, 150, 354, 355, 382, 559. 
 Allen v. London <fc S. W. R'way, 157. 
 Allen v. Hillman, 195, 226, 240, 267. 
 Allen v. Patterson, 180. 
 Allen v. Perkins, 523, 580, 595. 
 Allensworth v. Coleman, 166, 178, 601. 
 Alleston v. Moor, 287. 
 Alley v. Neely, 197, 224, 584. 
 Alsop v. Alsop, 179, 233, 298. 
 Amann v. Damm, 139, 410. 
 Ames v. Hazard, 548. 
 Amick v. O'Hara, 128. 
 Anderson v. Hill, 502, 544. 
 Anderson v. Stewart, 165, 539. 
 Andres v. Koppenheafer, 207, 211, 247. 
 
 Andres v. Wells, 157. 
 
 Andrew v. N. Y. Bible & Prayer Book 
 
 Soc, 99. 
 Andrews v. Bird, 222. 
 Andrews v. Chapman, 367. 
 Andrews v. Murray, 502. 
 Andrews v. Thompson, 496. 
 Andrews v. Thornton, 331. 
 Andrews v. Van Deuser, 327, 334, 335, 
 
 616, 618. 
 Andrews v. Woodmansee, 168, 170, 190. 
 
 222, 476, 527. 
 Angle v. Alexander, 271, 490. 
 Anibal v. Hunter, 551. 
 Ankin v. Westfall, 550. 
 Annison v. Blofield, 280. 
 Auon v. Moore, 218. 
 Anthony v. Stephens, 617, 624, 629. 
 Aon v. McNiel, 361. 
 Apton v. Penfold, 238. 
 Archbold v. Sweet, 283, 481. 
 Armentrout v. Moranda, 74. 
 Armitage v. Dunster, 566. 
 Armstrong v. Jordan, 281. 
 Armstrong v. Pierson, 486. 
 Arne v. Johnson, 175. 
 xYrnold v. Clifford, 502. 
 Arnold v. Cost, 222. 
 Arrington v. Jones, 327, 328, 614. 
 Artieta v. Artieta. 239, 626. 
 Ashley v. Bates, 473. 
 Ashley v. Billington, 169. 
 Ashley v. Harrison, 59, 116, 301. 
 Aspinwall v. Whitmore, 586. 
 Astley v. Younge, 341, 351, 353, 355. 
 Aston v. Blagrave, 287. 
 Atkins v. Perrin, 313. 
 Atkinson v. Congreve, 388, 409. 
 Atkinson v. Fosbrook, 467. 
 Atkinson v. Hartley, 172, 241. 
 Atkinson v. Reding, 222. 
 Atkinson v. Scammon, 190. 
 Attebury v. Powell, 516, 549, 551, 585. 
 Attorney-General v. Daken, 89. 
 Attorney-General v. Ennis, 494. 
 Attorney-General v. Pearson, 99. 
 Attorney -General v. Siddon, 158. 
 Atwinger v. Fellner, 518.
 
 12 
 
 TABLE OF CASES. 
 
 Ausman v. Veal, 173. 
 
 Austen v. Wilson, 490. 
 
 Austie v. Mason, 222. 
 
 Austin v. Culpepper, 59. 
 
 Austin v. Hauchett, 325, 326. 
 
 Austin v. White, 244. 
 
 Austria, Emperor of. ». Day, 91. 
 
 Avarillo v. Rogers, 566. 
 
 Ayrault v. Chamberlain, 472, 475. 
 
 Ayre v Craven, 234, 265, 272, 512. 
 
 Ayres' Case, 224. 
 
 Ayres v. Covell, 504, 561. 
 
 Ayrey v. Fearnsides, 490. 
 
 B 
 
 Baal v. Baggerly, 184. 
 
 Baboneau v. Farrell, 250, 259, 276, 533, 
 
 538, 603. 
 Backus v. Richardson, 179, 266, 267, 470. 
 Bacon v. Beach, 249. 
 Bacon's Case, 178. 
 Badgley v. Decker, 106. 
 Badgley v. Hedges, 232, 355, 357. 
 Bagley v. Johnson, 523. 
 Bagnall v. Underwood, 596. 
 Bailey v. Dean, 02, 162, 309, 351,492. 
 Bailey, ex-parte, 477, 495. 
 Bailey v. Maynard, 200. 
 Bailey v. Mogg, 259. 
 Baker v. Bailey, 1 28. 
 Baker v. Briggs, 493. 
 Baker v. Hart, 371. 
 Baker v. Lane, 468. 
 Baker v. Morfue, 283. 
 Baker v. Pierce, 97, 171, 180, 184, 187, 
 
 195, 196, 205. 
 Baker v. Sanderson, 491. 
 Baker v. Swackhamer, 465. 
 Baker v. Wilkinson, 589. 
 Baldwin v. Elphinstone, 142, 418, 520. 
 Baldwin v. Flower, 499. 
 Baldwin v. Hildreth, 517. 
 Baldwin v. Soule, 567, 605. 
 Ball v. Bridges, 179. 
 Ballard v Lockwood, 120. 
 Banbury v. Duckworth, 355. 
 Banfield v. Lincoln, 223. 
 Bank of U. S. v. Owens, 86. 
 Barbaud v. Hookliam, 386. 
 Barber v. Bennett, 370. 
 Barber v. Dixon, 612. 
 Barclay v. Thompson, 213. 
 Barfield v. Britt, 613, 625. 
 Barger v. Barger, 228, 4 7'.>. 
 Barham v. Nethesall, 187, 21 1, 222, 52Y, 
 
 530. 
 Barnabas v. Traunter, 238. 
 Barnard v. Whiting, 491. 
 
 Barnes v. Bruddell, 297. 
 
 Barnes v. Holloway, 466, 566. 
 
 Barnes v. Hard, 491. 
 
 Barnes v. McCrate, 353. 
 
 Barnes v. Trundy, 291, 518, 541. 
 
 Barnett v. Allen. 183, 1S8, 239, 295, 301, 
 
 476, 543, 594. 
 Baron v. Beach, 246. 
 ! Barr v. Gaines, 567, 571. 
 I Barren v. Mason, 121. 
 Barrett v. Jarvis, 172, 241. 
 Barrett v. Long, 273, 532, 535, 538, 540, 
 
 601, 604, 606. 
 Barrons v. Ball, 180, 223. 
 Barrow v. Bell, 382, 482. 
 Barrow v. Gibson, 295. 
 Barrow v. Lewellin, 154. 
 Barrow v. Carpenter, 328, 548, 550, 551, 
 
 585, 621. 
 Barry v. Fisher, 145. 
 Barry v. McGrath, 440. 
 Barthelomy v. The People, 335, 615, 616. 
 Bartholomew v. Bentley, 180, 188. 
 Bartlett v. Lewis, 468. 
 Bartlett v. Robinson, 161. 
 Bartley v. Richtmeyer, 107. 
 Barton v. Barton, 519. 
 Barton v. Brand, 603. 
 Barton v. Holmes, 592. 
 Barton v. Port Jackson Plank Road, 259. 
 Barwell v. Adkins, 001. 
 Bash v. Sommer, 171, 179, 196, 215, 430. 
 
 499, 500. 
 Basket r. University of Cambridge, 438. 
 Bassett v. Spofford, 523, 567. 
 Bateman v. Lyall. 543. 
 Baum v. Clause, 116, 212, 328. 
 Baxter's Case, 536. 
 Bayard v. Passmore, 373. 
 Baylis v. Lawrence, 482, 483, 489. 
 Beach v. Beach, 500. 
 Beach v. Ranney, 107, 291, 294, 298, 500, 
 
 563. 
 Beamond v. Hastings, 297, 511. 
 Beardsley v. Bridgman, 233, 235, 621, 
 
 024. 
 Beardsley v. Dibblee, 171, 211. 
 Beardsley v. Tappan, 171, 202, 275, 415, 
 
 627/528. 
 Beasley v. Meigs, 608. 
 Beatson v. Skene, 38.;, 416, O'. 686. 
 Beaumond >\ Bastings, 297,611. 
 Beaumont v. Reeves 
 Beavor v. Hides, 213. 
 Bechtell v. Shaler, 139. 
 Beck i*. Stiteel, 207, 212, 288. 
 Beckett v. Storrott, 194, 226. 
 Beckfqrd v. D'Arcy, 468. 
 Bedford Charity, 99. 
 Bedell v. PoweU, 07, 298. 
 Beebe v. Bank of New York, 68. 
 Beechev v. Sides, 164 
 Beers v. Root, 41U. 
 Beers v. Strong, 179, 185, ISO, 828.
 
 TABLE OF CASES. 
 
 13 
 
 Behrens v. Allen, 374, 551, 552. 
 Bell v. Bugg, 523. 
 Bell v. Byrne, 575. 
 Bell v. Farnsworth, 227, 231. 
 Bell v. Howard, 493. 
 Bell v. Parke, 617. 
 Bell v. Stone, 245, 247. 
 Bell v. Thatcher, 237, 270, 279, 510. 
 Bell v. Quinn, 259. 
 Bellamy v Barker, 239. 
 Bellamy v. Burch, 258, 267, 268. 
 Bellingham v. Minors, 236, 336. 
 Benaway v. Congre, 492, 500, 527, 540. 
 Bendish v. Lindsey, 237, 508. 
 Bennett v. Barr, 379. 
 Bennett v. Bennett, 327, 629. 
 Bennett v. Deacon, 320. 
 Bennett v. Hyde, 598, 602. 
 Bennett v. Wells, 273, 490. 
 Bennett v. Williamson, 179, 246, 253,477. 
 Benson v. Flowers, 498. 
 Benson v. Morley, 226. 
 Bentley v. Reynolds, 291, 299. 
 Benton v. Pratt, 307. 
 Berry v. Adamson, 201. 
 Berry v. Carter, 233, 235. 
 Berry v. Drydea, 567, 578. 
 Berryman v. Wise, 268, 596. 
 Best v. Bauder, 259. 
 Bestwick v. Chappel, 228, 527, 529. 
 Biddulph v. Chamberlayne, 337, 496, 560. 
 Biggs v. Great Eastern Railway Com- 
 pany, 341, 537, 557. 
 Bignell v. Buzzard, 296. 
 Bihint\ Bihin, 58. 
 Billing v. Knight, 505. 
 Billings v. Russell, 153, 416. 
 Billings v. Waller, 551. 
 Billings v. Wing, 207, 209, 210, 211. 
 Binns v. McCorcle, 325. 
 Binns v. Stokes, 323. 
 Birch v. Benton, 210, 241, 541, 565. 
 Birch v. Simms, 566. 
 Birch v. Walsh, 372. 
 Bird v, Higginson, 473. 
 Bisbey v. Shaw, 327, 328, 561, 612, 620, 
 
 622. 
 Bishop v. Latimer, 369. 
 Bissell v. Cornell, 171, 215, 332, 340, 557, 
 
 560. 
 Black v. Holmes, 319. 
 Blackburn v. Blackburn, 485, 495. 
 Blackham v. Pugh, 320, 394. 
 Blackwell v. Wiswall, 156. 
 Blagg v. Sturt, 389, 479, 538, 599. 
 Blair v. Sharp, 228. 
 Blaisdell v. Raymond, 477, 506, 547. 
 Blake v. Pilford, 3S5, 587. 
 Blake v. Stevens, 336, 368. 
 Blanchard v. Fisk, 225, 226. 
 Blessing v. Davis, 523. 
 Bleverhassett v. Baspoole, 287. 
 Blickenstaff v. Perrin, 181, 198, 233, 561. 
 Blizard v. Kelly, 523. 
 
 Bloodworth v. Gray, 242. 
 
 Bloome v. Bloome, 185, 211, 491. 
 
 Bloss v. Tobey, 171, 181, 208, 222. 
 
 Blunden v. Eustace, 278. 
 
 Blunt v. Zuntz, 563. 
 
 Bodell v. Osgood, 249, 272, 385, 485, 493, 
 
 598, 608. 
 Bodwell v. Swan, 327, 600, 625. 
 Boldroe v. Porter, 104, 174. 
 Bolton v. Clapham, 256. 
 Bond v. Douglass, 142, 150, 592, 601, 625. 
 Bond v. Kendall, 630. 
 Bonner v. Boyd, 225. 
 Bonner's case, 244. 
 Bonner v. McPhail, 472, 515. 
 Bonomi v. Backhouse, 108, 128. 
 Bonyon v. Trotter, 167. 
 Boosey v. Wood, 435. 
 Booth v. Leach, 220, 221. 
 Booth v. Milnes, 473. 
 Booth v. Sweezy, 121. 
 Borbidge v. Herat, 239. 
 Bornman v. Boyer, 197, 226. 
 Boston v. Tatham, 212. 
 Bostwick v. Hawley, 541. 
 Bostwick v. Jervis, 354. 
 Bostwick v. Nicholson, 541. 
 Botelar v. Bell, 601, 627, 631. 
 Boulten v. Clapham, 256. 
 Boulton v. Shields, 314, 317. 
 Bourke v. Warren, 169, 568. 
 Bourland v. Eidson, 628. 
 Bouyon v Trotter, 167. 
 Bowden v. Allen, 468. 
 Bowditchv. Peckham, 516, 617. 
 Bowen v. Hall, 617, 624. 
 Bowman v. Early, 490. 
 Box v. Barnaby, 233. 
 Box's Case, 244. 
 Boyd v. Brent, 233, 563. 
 Boydell v. Jones, 168, 276, 281, 476, 504. 
 Boyle v. Wiseman, 588. 
 Boynton v. Kellogg, 81. 
 Boynton v. Remington, 447. 
 Boys v. Boys, 233. 
 Bracebridge v. Watson, 297. 
 Bracegirdle v. Bailey, 616. 
 Bracegirdle v. Orford, 58. 
 Braden v. W r alker, 609. 
 Bradford v. Edwards, 625, 626. 
 Bradlaugh v. Brooks, 487. 
 Bradley v. Gibson, 624. 
 Bradley v. Heath, 378, 381, 398, 623. 
 Bradley v. Kennedy, 491, 612, 614. 
 Bradley v. Methuen, 67. 
 Bradshaw v. Perdue, 519. 
 Brady v. Wilson, 207, 221. 
 Brandford v. Freeman, 473. 
 Brandreth v. Lance, 91, 92. 
 Brandt v. Towsley, 298, 489. 
 Brashen v. Shepherd, 517. 
 Bray v. Andrews, 216. 
 Brayne v. Cooper, 208, 272. 
 Brecheley v. Atkins, 221.
 
 14 
 
 TABLE OF CASES. 
 
 Breckett v. Davis, 601. 
 
 Brembridge v. Latimer, 506. 
 
 Breeze v. Saris, 284. 
 
 Brent v. Ingram, 165. 
 
 Bretton v. Anthony, 222. 
 
 Brewer v. Day, 58. 
 
 Brewer v. Temple, 544. 
 
 Brewer v. Weakly, 264, 433. 
 
 Bricker v. Potts, 231, 505. 
 
 Brickett v. Davis, 552, 560, 580, 601. 
 
 Bridges v. Horner, 491. 
 
 Bridgman v. Hopkins, 617, 623. 
 
 Brigg's Case, 236. 
 
 Briggs v. Byrd, 164, 166, 349, 350. 
 
 Brill v. Flagler, 57. 
 
 Brine v. Bazalgette, 600. 
 
 Brite v. Gill, 174, 197, 214. 
 
 Brittain v. Allen, 506, 603. 
 
 •Brittridge's Case, 170. 
 
 Brodrick v. James, 143. 
 
 Bromage v. Prosser, 123, 125, 128, 405, 
 
 485, 599. 
 Bronson, Re, 373. 
 Brook v. Evans, 371. 
 Brook v. Montague, 129, 358. 
 Brook v. Pawl, 313, 315. 
 Brooke v. Wise, 244. 
 Brooker v. Coffin, 205, 234. 
 Brook's Case, 267. 
 Brooks v. Bemiss, 192, 247, 337, 553. 
 Brooks v. Blanchard, 389, 403, 579. 
 Brooks v. Bryan, 326. 
 Brooks v. McLellan, 465. 
 Broome v. Gosden, 495, 538. 
 Broomfield v. Snoke, 240. 
 Brow v. Hathaway, 418, 420. 
 Brown v. Brasher, 143. 
 Brown v. Brooks, 626. 
 Brown v. Brown, 192, 528, 529, 626. 
 Brown v. Charlton, 174, 220. 
 Brown v. Croome, 416. 
 Brown v. Dankes, 236. 
 Brown v. Hall, 618. 
 Brown v. Hatchaway, 383. 
 Brown v. Hirley, 153. 
 Brown v. Hook, 279. 
 Brown v. Kennedy, 293. 
 Brown v. Lamberton, 185, 510, 517. 
 Brown v. Leeson, 472. 
 Brown v. Lisle, 179. 
 Brown v. Michel, 349. 
 Brown v. Minis. 276, 279. 
 Brown v. .Murray, 471, 475, 
 Brown v. Nickerson. 212. 
 Brown v. Orvis, 278. 
 Brown v. Piner, 227, 530. 
 Brown v. Remington, 247. 
 Brown v. Smith, 256, 273, 274, 362, 488. 
 Brown v. Thurlow, 518. 
 Browning v. Aylwin, 469. 
 Browning v. Newman, 542. 
 
 Brownlow's Case, 514. 
 Bruff v. Mali, 157. 
 Brunson v. Lynde, 617. 
 Brunswick v. Harmer, 150,486. 
 Brunswick, Duke of, v. Pepper, 547, 612. 
 Bruton v. Downes, 352, 493, 551. 
 Bryan v. Gurr, 552, 617. 
 Bryan v. Wikes, 196. 
 Bryant v. Foot, 105. 
 Bryant v. Jackson, 434. 
 Bryant v. Loxton, 259, 275, 276. 
 Back v. Hersey, 208, 242, 270, 284. 
 Buckingham v. Murray, 526 
 Buckley v. Kiernan, 394, 608. 
 Buckley v. Wood, 349, 350. 
 Bucklin, v. Ohio, 81. 
 Buddington v. Davis, 451, 549, 551. 
 Buford v. McLuniff, 617. 
 Buhler v. Wentworth, 549. 
 Bulli*. Chapman, 501. 
 Bullock v. Babcock, 128, 434. 
 Bullock v. Cloves, 601. 
 .Bullock v. Koon, 231, 506. 
 Bulnois v. Mann, 112. 
 Bundy v. Hart, 213, 222. 
 Bunning v. Perry, 465. 
 Bunton t'. Wurley, 350. 
 Burbank v. Horn, 143, 195, 196, 225, o\9, 
 
 520. 
 Burcher v. Orchard, 502. 
 Burdett v. Abbott, 592. 
 Burdett v. Cobbett, 142, 150. 
 Burford v. Wible, 332,334. 
 Burgess v. Boucher, 184. 
 Bunjis's Case, 611. 
 Burke v Miller, 617, 61S, 621. 
 Burlingame v. Burlingame, 350. 
 Burnett v. Chetwood, 91. 
 Burnett ;\ Wells, 490. 
 Burns v. Webb, 327. 
 Burrell v. Nicholson, 473. 
 Burson v. Edwards, 601, 603. 
 Burtch v. Nickerson, 207, 26X3, 267. 
 Burton v. Burton, 143, 207, 236. 
 Burton v. March, 598, 0' H >. 
 Burton v. Plummer, 584. 
 Burton v. Tokin, 287. 
 Bury ?'. Wright, 226. 
 Bush v. Prosser, 129, 130, 131, 561, 612, 
 
 615, 622. 
 Bush v. Smith, 218. 
 Butler i'. Howes, _78, 541. 
 Butler v. Maples, 589. 
 Butler v. Wood, 535. 
 Butteuiicld v. Buff urn, 167, 1S5. 
 Button v. Hey ward, 104, 167, 178. 119, 
 
 191, 223, 509. 
 Butts v. Burnett, 464. 
 Buys !•. Gillespie, 2o4. 
 Bvrket v. Monohon. 598, 608, 614, 623. 
 Byron v. Elmes, 233.
 
 TABLE OF CASES. 
 
 15 
 
 C 
 
 Caddy v. Barlow, 599. 
 
 Caesar v. Curseny, 287. 
 
 Caldwell v. Abbey, 199, 239, 527. 
 
 Caldwell v. Raymond, 249, 506, 507. 
 
 Calhoun v. McMeans, 630. 
 
 Calkins v. Sumner, 353. 
 
 Calkins v. Wheaton, 476. 
 
 Call a. Foresman, 193, 240, 515. 
 
 Gallagher v. Cavendish, 466. 
 
 Callan v. Gaylord, 583. 
 
 Calloway v. Middleton, 323. 
 
 Camfield v. Bird, 581. 
 
 Camp v. Martin, 281, 282, 283, 284. 
 
 Campagnon v. Martin, 566. 
 
 Campbell v. Butts, 436, 437, 603. 
 
 Campbell v. Lewis, 491. 
 
 Campbell v. Spottiswoode, 330, 342, 439, 
 
 441, 449. 
 Campbell v. White, 239. 
 Cane v. Goulding, 315. 
 Cann v. Cann, 371. 
 Cannon v. Phillips, 604, 515, 516. 
 Canterbury v. Hill, 229, 515. 
 Capel v. Jones, 246. 
 Carlock v. Spencer, 229, 492, 549. 
 Carmichael v. Schiel, 174. 
 Carn v. Osgood, 287. 
 Carpenter v. Dennis, 25S, 273, 275, 512. 
 Carpenter v. The People, 81. 
 Carpenter v. Tarrant, 212. 
 Carr v. Duckett, 306, 316. 
 Carr v. Hood, 309, 317, 442, 444. 
 Carr v. Jones, 369. 
 Carrol v. Bird, 423. 
 Carroll v. White, 167, 191, 223, 224, 281, 
 
 506, 540. 
 Carslake v. Mapeldora, 242, 243. 
 Carson v. McFadden, 498. 
 Carter v. Andrews, 174, 175, 194, 240, 
 
 286, 507, 510, 540. 
 Carter v. Jones, 472. 
 Carter v. McDowell, 605. 
 Carter v. Smith, 298. 
 Cartwright v. Gilbert, 372. 
 Cartwright v. Wright, 575. 
 Case of "the Seven'Bishops, 146, 591, 592. 
 Case v. Buckley, 221, 226, 491, 505. 
 Case v. Marks,*495, 602, 623. 
 Casneau v. Bryant, 470. 
 Cass v. Anderson, 1(38, 1S5, 231, 507. 
 Cassin v. Delany, 98, 494. 
 Castlebury v. Kelly, 215. 
 Castleman v. Hobbs, 528, 537. 
 Gates v. Kelto™, 148. 
 Catterall v. Catterall, 63, 153. 
 Catterall v. Kenyon, 502. 
 Caulfield v. Whitworth, 406, 581, 600, 
 
 608. 
 Cavanagh v. Austin, 603, 608. 
 Cave v. Shelor, 517. 
 Cavel v. Birket, 234. 
 
 Caverly v. Caverly, 527. 
 
 Cawdrey v. Tetley, 282. 
 
 Ceeley v. Hoskins, 171, 184. 
 
 Cefret v. Burch, 214. 
 
 Center v. Finney, 110. 
 
 Center v. Spring, 121. 
 
 Chaddock v. Briggs, 181, 185, 208, 242, 
 246, 284, 287. 
 
 Chadwick v. Herepath, 436, 440. 
 
 Chalmers v. Payne, 367, 369, 477. 
 
 Chalmers v. Shackell, 201, 508, 512. 
 
 Chamberlain v. Gaillard, 473. 
 
 Chamberlain v. White, 152. 
 
 Chamberlain ". Willmore, 152. 
 
 Chambers v. Caulfield, 493, 
 
 Chambers v. Payne, 367. 
 
 Chambers v. White, 510. 
 
 Chandler v. Holloway, 165, 191, 223, 510, 
 567. 
 
 Chandler v. Robison, 558. 
 
 Ch antler v. Lindsey, 500. 
 
 Chapin v. White, 569. 
 
 Chaplin v. Cruikshauk, 236. 
 
 Chapman v. Calder, 328. 
 
 Chapman v. Gillett, 227, 230. 
 
 Chapman v. Lamphire, 273, 274. 
 
 Chapman v. Pickersa-ill, 57. 
 
 Chapman v. Smith, 185, 228, 515. 
 
 Chapman v. Wright, 406. 
 
 Charlton's Case, 371. 
 
 Charlton v. WaltoD, 370, 375. 
 
 Charlton v. Watson, 613. 
 
 Charnell's Case, 214. 
 
 Chase v. Whitlock, 239. 
 
 Chatfield v. Comerford, 397. 
 
 Cheadle v. Buell, 209, 214, 237, 567. 
 
 Cheatwood v. Mays, 236. 
 
 Cheese v. Scales, 289. 
 
 Cheatham v. Tillotson, 491, 544. 
 
 Cheney v. Goodrich, 260. 
 J Chester v. Wortley, 468. 
 
 Chetwind v. Meeston, 2S6. 
 
 Chevalier v. Brush, 327. 
 
 Child v. Affleck, 428, 599. 
 
 Child o. Homer, 628. 
 
 Childs v. State Bank of Mo., 456. 
 
 Chilvers v. Greaves, 486. 
 
 Chipman v. Cook, 237, 276, 270, 287. 
 
 Chisholm v. State of Georgia, 87. 
 
 Christie v. Cowell, 171, 197. 
 
 Chubb v. Flaunagan, 110, 1.53, 560. 
 
 Chubb v. Gsell, 597. 
 
 Chubb v. West ey, 601, 6<">5. 
 
 Church v. Bridgman, 178, 240, 324, 517 
 528. 
 
 Churchill v. Hunt, 200, 250, 337, 552. 
 
 Churchill v. Kimball, 523, 544. 
 
 Churchill v. Siggers, 348. 
 
 Churlter v. Barrett, 568. 
 
 Cilley v. Jenness, 549, 617. 
 
 Cincinnati <fcc. Co. v. Timberlake, 367, 
 373. 
 I City of London v. Vanacker, 434. 
 
 Clapp v. Hudson River R. R. Co., 493.
 
 16 
 
 TABLE OF CASES. 
 
 Clare v. Blakesley, 471. 
 
 Clark v. Binney, 245, 246, 247, 250. 
 
 Clark v. Creitzburgh, 164. 
 
 Clark v. Dibble, 340, 341. 
 
 Clark v. Gilbert, 195, 196. 
 
 Clark v. Lamb, 491. 
 
 Clarke v. Albert, 580. 
 
 Clarke v. Creitzburgh, 164. 
 
 Clarke v. Fitch, 183. 
 
 Clarke v. Freeman, 91. 
 
 Clarke v. Mount, 233. 
 
 Clarke v. Munsell, 322, 339, 469. 
 
 Clarke v. Periam, 543. 
 
 Clarke v. Rankin, 114. 
 
 Clarke v. Taylor, 338, 341, 548, 560. 
 
 Clarkson v. Lawson, 184, 200, 337, 548, 
 
 563. 
 Clarkson v. McCarty, 327. 
 Classon v. Bailey, 59. 
 Clay v. Barkley, 240. 
 Clay v. Roberts, 252, 548. 
 Clay v. Yates, 501. 
 Cleaver v. Senaude, 410. 
 Clegg v. Loffer, 248, 534. 
 Clement v. Chivis, 245, 249. 
 Clement v. Fisher, 491, 518. 
 Clement v. Lewis, 369, 492. 
 Clements v. Newcombe, 466. 
 Clerk v. Dyer, 168. 
 Clerk v. James, 466. 
 Cleveland v. Detweiler, 233, 235. 
 Clift v. White, 120. 
 Clifton v. Wells, 244. 
 Clinton v. Mitchell, 475. 
 Clissold v. Clissold, 466. 
 Clutterbuck v. Chaffers, 138, 141. 
 Coburn v. Harwood, 207, 215. 
 Cochran v. Butterfield, 148, 149, 631. 
 Cock v. Weatherby, 195, 566. 
 Cockaine's Case, 219. 
 Cockaine v. Hopkins, 258. 
 Cockayne v. Hodgkisson, 246, 321, 399. 
 Coe v. Chambers, 164. 
 Coffin v. Coffin, 343, 493. 
 Coghill v. Chandler, 565, 567. 
 Cohen v. Morgan, 348. 
 Colabyn v. Viner, 234. 
 Colbert v. Caldwell, 510. 
 Colburn v. Patmore, 502. 
 Colburn v. Whiting, 446. 
 Colby v. Reynolds, 209, 245, 247. 
 Cole v. Fisher, 57. 
 Cole v. Grunt, 232. 
 Cole v. Perry, 493, 619. 
 Cole v. Wilson, 400. 
 Coleman's Case, 628. 
 Coleman v. Harcourt, 499. 
 Coleman v. Playstead, 195, 197, 225, 599. 
 Coleman v. Southwick, 493, 509, 630. 
 Coleman v. West Hartlepool Railway Co. 
 
 371. 
 Coles v. Haviland, 172. 
 Coles v. Kettle, 270. 
 Collisv. Malin, 268, 511. 
 
 Collier v. Bourn, 221. 
 Collins v. Carnegie, 282, 568. 
 Collins v. Cave, 300, 349. 
 Collins v. Matthews, 295. 
 Collins v. Middle Level Com'mrs, 150. 
 Collins v. Yates, 466. 
 Colman v. Goodwin, 168. 
 Colonies' Case, 229. 
 
 Commons v. Walters, 227, 572, 613, 624. 
 Commonwealth v. Abbott, 482. 
 Commonwealth v. Anthes, 482. 
 Commonwealth v. Blanding, 146, 343, 588. 
 Commonwealth v. Buckingham, 166, 625. 
 Commonwealth v. Child, 168. 
 Commonwealth v. Clapp, 74, 129, 433. 
 Commonwealth v. Guild, 592. 
 Commonwealth v. Holmes, 524. 
 Commonwealth v. Kneeland, 157, 169, 177. 
 Commonwealth v. Porter, 482. 
 Commonwealth v. Runnels, 168, 169. 
 Commonwealth v. Snelling, 123, 129, 537, 
 
 540. 
 Commonwealth v. Tarbox, 524. 
 Commonwealth v. Varney, 569. 
 Commonwealth v. Wright, 245, 28S, 522, 
 
 523. 
 Connors v. Justice, 281. 
 Conro v. Port Henry Iron Co., 455. 
 Conroe v. Conroe, 580, 617, 620. 
 Cooban v. Holt, 340. 
 Cook v. Barkley, 624, 627. 
 Cook v. Batchelor, 262, 501. 
 Cook v. Bostwick, 227, 228. 
 Cook v. Cook, 543. 
 Cook v. Cox, 491, 522. 
 Cook v. Ellis, 490. 
 Cook v. Field, 32S, 540, 550, 601. 
 Cook v. Gilbert, 196. 
 Cook v. Hill, 319, 383, 385, 392, 415, 493. 
 Cook v. Stoke3, 573. 
 Cook v Tribune Association, 164, 175, 
 
 338, 474, 551. 
 Cook v. Ward, 327, 589. 
 Cook v. Wingfield, 233, 576. 
 Cook v. Barkley, 130, 325. 
 Cook v. Hughes, 175, 474, 526. 
 Cook v. Smith, 575. 
 
 Cook v. Wildes, 410, 484, 608. 
 
 Coombs v. Rose, 1 94, 378. 
 
 Coons v. Robinson, 229. 
 
 Cooper v. Barber, 332, 621. 
 
 Cooper v. Bissell, 491. 
 
 Cooper v. Greely, 74, 80, 175, 191, 246, 
 
 339, 479, 540, 548, 55S. 
 Cooper v. Hakewell, 226. 
 
 Cooper v. Lawson, 200, 338, 339, 450, 451, 
 
 480, 548. 
 Cooper v. Marlow, 567. 
 Cooper v. Perry, 171. 
 Cooper v. Smith, 191, 223. 
 Cooper v. Stone, 245, 246, 248, 249, 442, 
 
 443, 445, 446. 
 Cooper v. The Butcher of Croydon, 472. 
 Cooper v. Weed, 465, 497.
 
 TABLE OF CASES. 
 
 17 
 
 Coote v. Gilbert, 179. 
 
 Cope v. Rowland, 259. 
 
 Corbett v. Jackson, 384. 
 
 Corcoran v. Corcoran, 239, 298. 
 
 Core v. Morton, 231. 
 
 Corne v. Augell, 229. 
 
 Cornelius v. Van Slyck,169,185, 192, 19G. 
 
 Corner v. Shew, 491. 
 
 Corning- v. Corning-, 490. 
 
 Cornwall v. Gould, 491. 
 
 Cornwall v. Richardson, 597. 
 
 Cortland Co. v. Herkimer Co., 610. 
 
 Cory v. Bond, 559, 560. 
 
 Cotton's Case, 287. 
 
 Cottrell v. Jones, 488. 
 
 Cousins v. Merrill, 544. 
 
 Coventry v. Barton, 502. 
 
 Cowan v. Milbourn, 259. 
 
 Coward v. Wellington, 393, 500. 
 
 Cowdry v. Coit, 610. 
 
 Cowles v. Potts, 431, 434. 
 
 Cox v. Bunker, 233. 
 
 Cox v. Coleridge, 370. 
 
 Cox v. Cooper, 182, 252, 506. 
 
 Cox v. Feeney, 375, 450. 
 
 Cox v. Humphreys, 236. 
 
 Cox v. Lee, 246, 253, 482, 490. 
 
 Cox v. Smith, 349. 
 
 Cox v. Thomason, 508, 570. 
 
 Coxhead v. Richards, 130, 320, 407, 421. 
 
 Cracraft v. Cochran, 544. 
 
 Craft v. Boite, 466. 
 
 Craig v. Brown, 217, 289. 
 
 Craig v. Catlet, 630. 
 
 Crain v. Petrie, 301. 
 
 Cramer v. Noonan, 190, 247, 250, 490, 
 
 527. 
 Cramer v. Riggs, 269. 
 Crane v. Douglass, 325. 
 Crass v. Matthew, 240. 
 Cranden v. Walden, 284. 
 Crawford v. Mellton, 229. 
 Crawford v. Middleton, 324. 
 Crawford v. Milton, 549. 
 Crawford v. Wilson, 207, 208, 228. 
 Crawford Re, 372, 373. 
 Crawford v. Dale, 266, 267. 
 Crebnan v. Morley, 339. 
 Creelman v. Marks, 222, 238, 567. 
 Creevy v. Carr, 342. 
 Cregier v. Bunton, 477. 
 Crisp v. Gill, 414. 
 Croft v. Stevens, 360. 
 Croft v. Brown, 179, 216. 
 Crook v. Averin, 179. 
 Crookshank v. Gray, 229, 232, 507. 
 Croskeys v. O'Driscoll, 241. 
 Crosswell v. Weed, 540. 
 Crotty v. Morrissey, 568. 
 Crow, Ex-parte, 371. 
 Crozier v. The People, 81. 
 Crump v. Adney, 332. 
 Cruger v. Hudson River R. R. Co., 180. 
 Cuddington v. Williams, 212. 
 
 2 
 
 Cude v. Redditt, 323. 
 
 Culberton v. Stanley, 566. 
 
 Cuban v. Gaylord, 591. 
 
 Culver v. Van Anden, 525. 
 
 Cummerford v. Mc Avery, 326. 
 
 Cummin v. Smith, 228. 
 
 Cummins v. Butler, 521. 
 
 Cundell v. Dawson, 259. 
 
 Cunningham v. Brown, 353. 
 
 Curry v. Walter, 365, 373, 587. 
 
 Curtis v. Curtis, 197, 199, 218, 237, 468, 
 
 646. 
 Curtis v. Lawrence, 490. 
 Curtis v. Mussey, 157, 323, 433,. 593. 
 Custis v. Sandford, 613. 
 Cutler v. Friend, 172. 
 
 D 
 
 Da Costa v. Paz, 99. 
 
 Dailey v. Reynolds, 233, 234. 
 
 Dailey v. Gaines, 566. 
 
 Dain v. Wyckoff, 107. 
 
 Daines v. Hartley, 140, 17S, 183, 185, 276, 
 
 593. 
 Dale v. Lyon, 149. 
 Dalrymple v. Lofton, 212, 229, 230, 515, 
 
 516. 
 Dalton v. Higgins, 231, 232. 
 Dane v. Kenney, 597. 
 Damport v. Sympson, 353. 
 Dancaster v. Hewson, 350, 382, 571. 
 Dane v. Kenney, 323. 
 Darby v. Ouseley, 218, 342, 473, 475, 482, 
 
 483, 484. 
 Darcy v. Markham, 136. 
 Darling v. Banks, 232, 
 Darry v. The People, 123, 124 
 Davey v. Pemberton, 471. 
 Davidson v. Duncan, 439. 
 Davidson v. Isham, 57. 
 Davies v. Taylor, 244. 
 Davis' Case, 228. 
 Davis v. Cutbush, 486, 622, 629. 
 Davis v. Davis, 259, 276, 492. 
 Davis v. Gardiner, 264, 294. 
 Davis v. Griffith, 629. 
 Davis v. Johnston, 224, 477. 
 Davis v. Lewis, 273, 274, 324. 
 Davis v. Matthews, 549. 
 Davis v. Miller, 241, 276. 
 Davis v. Noah, 218. 
 Davis v. Noaks, 523, 573. 
 Davis v. Okeham, 224. 
 Davis v. Reeves, 397, 407. 
 Davis v. Ruff, 263, 270. 
 Davis v. Scott, 405. 
 Davis v. Sheron, 571, 573. 
 Davis v. Sneed, 383, 394, 420.
 
 18 
 
 TABLE OF CASES. 
 
 Davis v. Taylor, 244. 
 
 Davison v. Duncan, 345, 378, 381. 
 
 Dawn. Elv, 371. 
 
 Dawes v. Bolton, 236. 
 
 Dawkins v. Lord Paulet. 303. 
 
 Dawling v. Venman, 349, 353. 
 
 Dawling v. Wenman, 349. 
 
 Day v. Bream, 138, 155. 
 
 Day v. Buller, 281, 283. 
 
 Day v. Robinson, 170, 195,490, 536, 540. 
 
 Day v. Tuckett, 469. 
 
 Dayton v. Rockwell, 231, 232. 
 
 Dayton v. Wilkes, 157. 
 
 Deas v. Short, 506. 
 
 DeBode v. Regina, 145. 
 
 Deboux v. Lehind, 524. 
 
 De Costa v. Jones, 472. 
 
 De Crespigny v. Wellesly, 327. 
 
 Dedway v. Powell, 592. 
 
 Deford v. Miller, 209. 
 
 Deffries v. Davies, 465, 603. 
 
 Defries v. Davis, 435. 
 
 Delacroix ». Thevenot. 138. 
 
 Delamater v. Russell, 88. 
 
 Delaney v. Jones, 250, 395. 
 
 Delaware v. Pawlet, 287. 
 
 Delegal v. Highley, 316, 368, 544. 
 
 Dellevene v. Percer, 169. 
 
 Demarest v. Raring, 167, 177, 179, 207, 
 208, 209, 284. 
 
 De Medina v. Grove, 131. 
 
 Dengate v. Gardiner, 299, 499. 
 
 Derry v. Handle}', 148, 303. 
 
 Detroit Daily Press Co. v. McArthur, 486. 
 
 De "Witt o. Buchanan, 145. 
 
 De Witt v. Greenfield, 617, 618. 
 
 Dexter v. Spear, 74, 124, 134, 149, 598. 
 
 Dexter v. Taber, 196, 477. 
 
 Deyo v. Brundage, 526. 
 
 Dial v. Hotter, 208, 377. 
 
 Dias v. Short, 167, 236, 506. 
 
 Dibdin v. Swan, 296, 445. 
 
 Dickerson ». Fletcher, 361. 
 
 Dickey v. Andros, 219, 573. 
 
 Dickinson v. Barber, 434. 
 
 Dickson v. Earl Wilton, 387, 485. 
 
 Didway v. Powell, 357. 
 
 DigbyV Thompson, 185, 245, 251, 529. 
 
 Dillaye v. Hart, 470. 
 
 Dillon v. Anderson, 610. 
 
 Dimmock v. Fawset, 172. 
 
 Dioyt v. Tanner, 544. 
 
 Ditchen v. Goldsmith, 472. 
 
 Dixon v. Holden, 91, 92, 104. 
 
 Dixon v. Parsons, 425. 
 
 Dixon v. Smith, 148, 295, 301. 
 
 Dobsou v. Thornistone, 259, 273, 274. 
 
 Dod v. Robinson, 268, 284, 511. 
 
 Dodd v- Crease, 496. 
 
 Dodds v. Henry, 238, 288, 380. 
 
 Dodge v. Lacey, 188, 190, 527, 536. 
 
 Doe"?;. Brayne, 473. 
 
 Doe v. Earnhart, 112. 
 
 Doherty v. Brown, 576. 
 
 Dole v. Lyon, 326, 327, 602. 
 Dole v. Van Rensselaer, 171, 288. 
 Dolevin v. Wilder, 561, 562, 612, 623, 626, 
 
 627. 
 Dollaway v. Turrell, 126, 180, 182, 2S6, 
 
 328, 482. 
 Donage v. Rankin, 518. 
 Dongate v. Gardiner, 299, 499. 
 Donge ». Pearce, 327, 584, 620. 
 Donoghue v. Hayes, 434, 476. 
 Donnelly v. Swain, 622. 
 Dorian d v. Patterson, 167, 170, 177. 
 Dorrell v. Grove, 221. 
 Darrel v. Jay, 505. 
 Dorsey v. Whipps, 214, 236. 504, 505, 527, 
 
 563. 
 Doss v. Jones, 549, 608. 
 Dottarer v. Bushey, 163, 197, 208, 224, 
 225, 479, 529. 
 
 Doty v. Wilson, 502. 
 
 Douge v. Pearce, 327, 584, 620. 
 
 Douglass v. Tousey, 81, 493, 617. 
 
 Dowd v. Winters, 570. 
 
 Dowling v. Brown, 498. 
 
 Down's~Case, 218. 
 
 Downing v. Marshall, 351. 
 
 Downing v. Wilson, 235. 
 
 Doyle ?'. O'Doherty, K52. 
 
 Doyley v. Roberts, 246, 270, 271. 
 
 Doyton v. Rockwell, 231, 232. 
 
 Drake v. Beekman, 498. 
 
 Drake v. Drake. 284. 
 
 Drummond v. Leslie, 168. 
 
 Drvden v. Dryden, 491. 
 
 Du Bost v. Beresford, 91, 166, 168. 
 
 Dudley v. Horn, 209, 241. 
 
 Dudley v. Robinson, 197, 223, 224. 
 
 Duel v. Agan, 519. 
 
 Duffy v. The People, 482. 
 
 Duke v. Jostling, 508. 
 
 Dukes v. Clarke, 215, 238. 
 
 Dumont v. Smith, 121. 
 
 Duncan v. Brown, 167, 179, 217, 342, 484, 
 486, 626. 
 
 Duncan v. Little, 212. 
 
 Duncan v. Thwaites, 131, 373. 
 
 Dunckle v. Wills, 201. 
 
 Duncombe v. Daniell, 432, 473. 
 
 Dunham v. Bigg, 402. 
 
 Dunham v. Powers, 361. 
 
 Dunlap v. Gladding, 353. 
 
 Dunman v. Bigg, 402. 
 
 Dunn v. Hall, 157. 
 
 Dunn v. Winters, 359, 612. 
 
 Dunn v. Withers, 245. 
 Dunne v. Anderson, 447. 
 
 Dnnnell v. Fiske, 195, 209, 480. 
 
 Durant v. Durant, 57. 
 Durham v. Musselman, 116. 
 Dutton v. Eaton. 242, 243. 
 Duvall v. Griffith, 603. 
 Dwinell v. Aiken, 613. 614. 
 Dyer v. Morris, 170, 235.
 
 TABLE OF CASES. 
 
 19 
 
 E 
 
 Eagan v. Gantt, 327. 
 
 Eagleton v. Duchess of Kingston, 350. 
 
 Eakin v. Evans, 494. 
 
 Earl v. Vass, 586. 
 
 Early v. Smith, 469. 
 
 Easley v. Moss, 411, 567. 
 
 East v. Chapman, 375, 613. 
 
 Eastern Counties Railway v. Brown, 456. 
 
 Easterwood v. Quinn, 326, 629. 
 
 Eastland v. Caldwell, 212, 335, 617. 
 
 Eastmead v. Witt, 426. 
 
 Eastwood v. Holmes, 165, 450, 594, 595. 
 
 Eaton v. Allen, 219, 241. 
 
 Eaton v. Johns, 201, 536, 563. 
 
 Ebersol v. Krug, 499, 500. 
 
 Ecart v. Wilson, 174, 191, 510. 
 
 Eccles v. Shannon, 227. 
 
 Eckartv. Wilson, 174, 191,510. 
 
 Edde v. Waters, 564. 
 
 Eddowes v. Hopkins, 490. 
 
 Ede v. Scott, 333, 554. 
 
 Eden v. Legare, 172, 241. 
 
 Edgar v. McCutchen, 169. 
 
 Edgar v. Newell, 493, 617. 
 
 Edgerley v. Swain, 181, 209, 214, 504, 
 
 526, 573. 
 Edmonds v. Walter, 552. 
 Edmonson v. Stephenson, 424. 
 Edmonds v. Greenwood, 468. 
 Edsall v. Brooks, 166, 288, 364, 369, 476, 
 
 607. 
 Edsall v. Russell, 181, 182, 191, 210, 224, 
 
 272, 282, 341, 549. 
 Edwards v. Bell, 201, 285, 338, 339, 548. 
 Edwards' Case, 104. 
 Edwards v. Chandler, 599. 
 Edwards v. Howell, 268. 
 Edwards v. Reynolds, 491. 
 Edwards v. Wooton, 138. 
 Egerton v. Furzman, 472. 
 Effie v. Jacob, 435, 436. 
 Elam v. Badger, 169, 522. 
 Eldridge v. Bell, 501. 
 Elliott v. Ailsberry, 208, 233. 
 Elliott v. Boyles, 603, 622. 
 Elliott v. Brown, 487. 
 Ellis w. Kimball, 165, 525. 
 Ellis v. The People, 121. 
 Else v. Evans, 327. 
 Else v. Ferris, 273, 274, 621, 626. 
 Emery v. Miller, 171, 576. 
 Emery v. Prescott, 528, 536. 
 Emington '.'. Gardiner, 500. 
 Emperor of Austria v. Day, 91. 
 Empson v. Fairfax, 496. 
 Empson v. Fairford, 479, 483. 
 Empson v. Griffin, 490. 
 England v. Burke, 550. 
 Engurst v. Brown, 278. 
 Entick v. Carrington, 360. 
 Erwin v. Sumrow, 598, 599. 
 
 Estes v. Antrobus, 598. 
 Estes v. Carter, 215. 
 Evans v. Franklin, 552. 
 Evans v. Gwyn, 234. 
 Evans v. Harlow, 162, 308. 
 Evans v. Harries, 295, 488, 542. 
 Evans v. Smith, 322, 630. 
 Evans v. Tibbins, 191. 
 Evarts v. Smith, 232, 566. 
 Ewing v. Cullen, 499. 
 
 F 
 
 Fairchild v. Adams, 376. 
 
 Fairman v. Ives, 330, 385, 388,391, 599. 
 
 Faith v. Carpenter, 498. 
 
 Falkuer v. Cooper, 165, 234. 
 
 Fallen stein v. Boothe, 167, 179. 
 
 Faris v. Starke, 409. 
 
 Farley v. Ranck, 598, 600. 
 
 Farmers' Bank v. Butchers' Bank, 157. 
 
 Farnsworth v. Storrs, 186, 238, 376, 378. 
 
 Farr v. Roscoe, 326, 342. 
 
 Faulkner v. Wilcox, 493. 
 
 Fawcett v. Charles, 364, 380, 390. 
 
 Feise v. Linder, 542. 
 
 Fellows v. Hunter, 551. 
 
 Fenn v. Dixe, 173. 
 
 Feray v. Foote, 202. 
 
 Ferdon v. Cunningham, 259. 
 
 Fero v. Ruscoe, 331, 332, 341, 608, 621. 
 
 Fidler v. Delavan, 176, 263, 332, 333, 340, 
 
 341, 501, 549, 551. 
 Fidman v. Ainslie, 327. 
 Figgins v. Cogswell, 512. 
 Filkin v. Herbert, 371. 
 Finch v. Gridley, 259. 
 Finden v. Westlake, 395, 411. 
 Findley v. Bear, 196. 
 Findlay v. Lindsay, 468. 
 Finnerty v. Barker, 522. 
 Finnerty v. Tipper, 591. 
 First Baptist Church v. Brooklyn Fire 
 
 Ins. Co., 455. 
 First Baptist Church in Schen. v. Schen. 
 
 <fe'Troy R. R. Co., 57, 456. 
 Fish v. Dodge, 57. 
 Fish v. Thorowgood, 335. 
 Fisher v. Atkinson, 218. 
 Fisher v. Clement, 495. 
 Fisher v. Pattison, 624. 
 Fisher v. Rotereau, 197, 224. 
 Fisk v. Chester, 121. 
 Fittler v. Veal, 299. 
 Fitzgerald v. Ferguson, 476. 
 Fitzgerald v. Redtield, 283. 
 Fitzgerald v. Seward, 6] ■>, 618. 
 Fitzsimmons v. Cutter, 528. 
 Flamingham v. Boucher, 604. 
 Fleetcraft v. Jenks, 598. 
 Fleetwood v. Curley, 139, 140, 538, 593.
 
 20 
 
 TABLE OF CASES. 
 
 Fleming v. Jales, 225. 
 
 Fleming v. Newton, 91, 375. 
 
 Flemington v: Smithers, 97. 
 
 Fletcher v. Braddyll, 583. 
 
 Fletcher v. Burroughs, 624. 
 
 Flint v. Clarke, 488, 617. 
 
 Flint v. Pike, 359, 365, 366, 367, 368, 369, 
 
 370, 553. 
 Flower's Case, 282. 
 Flower v. Pedley, 567. 
 Floyd v. Jones, 218. 
 Folger v. Hoogland, 373. 
 Folsom v. Brown, 549, 613. 
 Fonville v. Nease, 68, 138, 141. 
 Foote v. Rowley, 574, 642. 
 Foot v. Brown, 276, 283. 
 Foot v. Tracy, 617,624. 
 Forbes v. Gregory, 496. 
 Forbes v. Johnson, 165, 349. 
 Forbes v. King, 169, 172, 182, 184, 245, 
 
 253. 
 Forbes v. Myers, 601. 
 Forbes v. Waller, 120. 
 Force v. Warren, 138, 418. 
 Ford v. Bennett, 523. 
 Ford v. Johnson, 239. 
 Ford v. Primrose, 185, 191. 
 Fores v. Johns, 501. 
 Forescoe v. May, 149, 437, 631. 
 Forrest v. Hanson, 170, 239, 614. 
 Forsdike v. Stone, 494, 496. 
 Forsher v. Abrams, 613, 630, 631. 
 Forster v. Browning, 180, 197. 
 Forsyth v. Edmiston, 152, 523. 
 Forward v. Adams, 267, 268. 
 Fossv. Hildreth, 116. 
 
 Foster v. Cronkhite, 120. 
 
 Foster v. Lawson, 262, 263, 275, 501. 
 
 Foster v. Pointer, 496, 580, 581. 
 
 Foster v. Small, 171, 272, 577. 
 
 Foulger v. tfewcomb, 104, 257, 293, 505, 
 541. 
 
 Fountain v. Boodle, 429, 600. 
 
 Fountain v. West, 472, 618. 
 
 Fowell v. Plunkett, 214. 
 
 Fowel v. Robbins, 230. 
 
 Fowler v. Dowdney, 212. 
 
 Fowler v. Homer, 418. 
 
 Fowler v. Lindsay, 86. 
 
 Fowles v. Bowen, 148, 248, 265, 270, 276, 
 278, 303, 423, 429, 599. 
 
 Fox v. Broderick, 141, 546. 
 
 Fox v. Vanderbeck, 566, 567. 
 
 Fox v. Wilson, 566. 
 
 Fradley v. Fradley, 547, 595, 613. 
 
 Francis v. Roose, 185, 218, 531. 
 
 Fraser v. Berkeley, 4 45. 
 
 Fray v. Blackburn, 361. 
 Fray v. Fray, 251, 481. 
 Fream v. Sergeant, 472. 
 Fmleritze v. Odeawalder, 550. 
 Freeman v. Price, 233. 618. 
 Freeman v. Taylor, 233. 
 Freeman v. Tinsley, 493. 
 
 Freethy v. Freethy, 499. 
 
 French v. Creash, 213. 
 
 French v. Millard, 81. 
 
 Frescoe v. May, 149, 437, 631. 
 
 Frisbie v. Fowler, 233. 
 
 Frost v. Ayer, 222. 
 
 Fry v. Bennett, 125, 129, 131, 260, 268, 
 269, 342, 451, 472, 473, 475, 481, 
 484, 489, 490, 493, 504, 506, 537, 
 549, 555, 551, 561, 562, 584, 588, 
 598, 602, 604, 630. 
 
 Frver v. Gathercole, 591. 
 
 Fryer v. Kinnersley, 431. 
 
 Fuller v. Dean, 323, 617, 624. 
 
 Fuller v. Fenner, 298, 489. 
 
 Fysh v. Thorowgood, 335. 
 
 G 
 
 Gage v. Robinson. 340, 341, 512. 
 
 Gage v. Shelton, 187, 198, 207, 236, 241, 
 
 535, 540. 
 Gainford v. Tuke, 212. 
 Gainsford v. Blatchford, 530. 
 Gale v. Hays, 514. 
 Gale v. Leckie, 501. 
 Gallager v. Brundel, 307. 
 Galloway v. Courtney, 177, 225, 504. 629. 
 Gall we v >: Marshall", 215, 261, 266. -T-. 
 
 284, 511. 
 Gandy v. Humphries, 600. 
 Gantz v. Vinard, 613. 
 Gardiner v. Helvis, 247. 
 Gardiner v. Hopwood, 268. 
 Gardiner v. Spurdance, 223. 
 Gardiner v. Williams, 530, 540. 
 Gardiner v. Dyer, 523. 
 Gardiner v. Slade, 424, 428, 485. 
 Gardiner v. Thomas, 146. 
 
 Garford ». Clark, 244. 
 
 C-rland M&parte, 212. 
 
 Garnett v. Derrv, 193. 
 
 Garr v. Selden, 281, 283, 352, 522. 
 
 Garret v. Taylor, 59. 
 
 Garrett v. Dickerson, 603, 608. 
 
 Garrett r. Ferrand, 370. 
 
 Gascoigne v. Ambler, 233. 
 
 Gassett v. Gilbert, 417. 
 
 Gates o. Bowker, 185, 258, 569, 587. 
 
 Gates v. Meredith. 435. 629. 
 
 Gathercole v. Miall. 246, 441, 454, 590. 
 
 Gaul v. Fleming, 225. 
 Gawdy v. Smith, 239. 
 Cay v. Horner, 190. 276, 278, 523. 
 GaV.ynski v. Colburn, 499, 500. 
 I Mare v. Britton. 541. 
 Geary v, Connoss, 567. 
 Geary v. Physic, 59. 
 Gelen v. Hall, 361. 
 
 Genet v. Mitchell, 127, 336, 472, 47:-, 17 5, 
 481.
 
 TABLE OF CASES. 
 
 21 
 
 George v. Goddard, 379, 434, 485. 
 
 George v. Lemon, 556. 
 
 Gerard v. Dickinson, 314. 
 
 Gerard Will Case, 99. 
 
 Getting v. Foss, 415. 
 
 Gfroever v. Hoffman, 473, 493. 
 
 Gibbs v. Arthur & Burdell, 373. 
 
 Gibbs v. Dewey, 189, 207, 209. 
 
 Gibbs v. Pike, 314. 
 
 Gibbs v. Tucker, 230. 
 
 Gibson v. Niven, 498. 
 
 Gibson v. Williams, 140, 16G, 178, 180, 
 
 477. 
 Giddins v. Mirk, 185, 187, 207. 
 Gidney v. Blake, 165, 177, 517, 537. 
 Gilbert v. Rodd, 193. 
 Gilbert v. Sheldon, 81. 
 Gilbert v. The People, 350. 
 Gilbreath v. Allen, 490. 
 Giles v. The State, 150, 247, 520, 540. 
 Gill v. Bright, 225. 
 Gillet v. Mason, 195. 
 Gillett v. Bullivant, 297, 303. 
 Gilman v. Lowell, 229, 326, 612, 617, 621, 
 
 623. 
 Gilmer v. Ewbank, 342, 598. 
 Gilmore v. Borders, 609. 
 Gilpin v. Fowler, 320, 413, 485, 607. 
 Girard v. Risk, 518. 
 Giraud v. Beach, 165, 457, 468. 
 Glass v. Stewart, 501. 
 Glen v. Hodges, 146. 
 Godfrey v. More, 223. 
 Godfrey v. Owen, 280. 
 Godson v. Home, 481. 
 Goldman v. Stearns, 242, 328. 
 Goldstein v. Foss, 184, 262. 
 Gompertz v. Levy, 527, 532, 535. 
 Goodale v. Castle, 222. 
 Goodall v. Ensall, 496. 
 Goodbread v. Leadbitter, 631. 
 Goodburne v. Bowman, 337. 
 Goodenow v. Tappan, 361. 
 Goodrich v. Davis, 166, 185, 482, 483, 505. 
 Goodrich v. Hooper, 290. 
 Goodrich v. Stone, 166, 607. 
 Goodrich v. Warner, 143, 569. 
 Goodrich v. Woolcot, 185, 215, 476, 529. 
 Goodspeed v. East Haddani Bank, 456. 
 Goodwin v. Daniels, 612. 
 Gordon's Case, 268. 
 Gordon v. Spencer, 150. 
 Gore v. Gibson, 435. 
 GorLara v. Ives, 190, 219, 220, 477. 
 Gorman v. Sutton, 608, 613. 
 Gorton v. Keeler, 227, 340, 562, 614, 623. 
 Goslin v. Carry, 489, 606. 
 Gosling v. Morgan, 181, 208, 491, 504, 527. 
 Go?slin v. Cannon, 349, 855. 
 Gostling v. Brooks, 98, 275, 477, 479, 491. 
 Gould v. Glass, 180. 
 Gould v. Hulme, 350. 
 Gould v. Oliver, 490. 
 
 Gould v. Weed, 475, 628, 631. 
 
 Goulding v. Herring, 313. 
 
 Gower v. Heath, 494. 
 
 Graham v. Jones, 561. 
 
 Graham v. Woodhull, 580. 
 
 Grant v. Astle, 490. 
 
 Grant v. Hover, 615, 621. 
 
 Grant v. Mosely, 156. 
 
 Grater v. Collard, 487. 
 
 Graves v. Blanchard, 233, 234. 
 
 Grave's Case, 226. 
 
 Graves v. Waller, 478. 491. 
 
 Gray v. Metcalfe, 268. 
 
 Gray v. Neilis, 521. 
 
 Gray v. Pentland, 363, 384, 586. 
 
 Gray v. Wayle, 226. 
 
 Gray v. West, 496. 
 
 Grayson v. Meredith, 472. 
 
 Greely's Case, 392. 
 
 Green v. Button, 300, 310, 315, 316. 
 
 Green v. Chapman, 446. 
 
 Green v. How, 233. 
 
 Green v. Hudson River R. R. Co., 97. 
 
 Green v. Lincoln, 221. 
 
 Green v. London Omnibus Co., 456. 
 
 Green v. Long, 515. 
 
 Green v. Telfair, 431. 
 
 Green v. Warner, 223. 
 
 Greenfield's Case, 276. 
 
 Greenshields v. Crawford, 163. 
 
 Greenshade v. Ross, 466. 
 
 Greeve v. Copshill, 288. 
 
 Gregory Re, 440. 
 
 Gregory v. Atkins, 332. 
 
 Gregory v. Duke of Brunswick, 57, 296, 
 
 331, 491. 
 Gregory v. Regina, 246. 
 Gregory v. Williams, 489. 
 Grenfel v. Pierson, 496. 
 Greville v. Chapman, 260. 
 Griffin v. Marquardt, 120. 
 Griffin v. Walker, 466. 
 Griffith v. Wells, 259. 
 Griffiths v. Hardenburgh, 502. 
 Griffiths v. Lewis, 150, 273, 277, 536, 545, 
 
 181,418, 491, 534, 544. 
 Grills v. Marwells, 549. 
 Grimes v. Coyle, 342, 383. 
 Grosvenor v. Hunt, 472. 
 Grove v. Brandenburg, 353. 
 Grove v. Hart, 499. 
 Grubs v. Keyser, 523. 
 Guard v. Risk, 234. 
 Gugy v. Kerr, 361. 
 Guildersleeve v. Ward, 196. 
 Guille v. Swan, 128. 
 Gulford's Case, 220. 
 Gurneth v. Derry, 230. 
 Gutsole v. Mathers, 316, 517, 522, 525. 
 Guy v. Gregory, 298. 
 
 Gwynn v. South-Eastern Railway Co., 340. 
 Gwynne v. Sharpe, 547, 595, 613. 
 Gyles v. Bishop, 282.
 
 22 
 
 TABLE OF CASES. 
 
 H 
 
 Hackett v. Brown, 615, 627. 
 
 Haddon v. Lott, 291. 
 
 Hagan v. Hendry, 123, 546, 550, 625. 
 
 Haggart's Trustee v. Hope, 361. 
 
 Haight v. Cornell, 382, 386, 481, 485. 
 
 Haight v. Hoyt, 219. 
 
 Haine v. Welling, 326. 
 
 Haire v. Wilson, 112, 486. 
 
 Hackwell v. Ingram, 482, 483. 
 
 Hale v. Blandv, 510, 529. 
 
 Halford v. Smith, 496. 
 
 Hall v. Montgomery, 227, 229, 231. 
 
 Hall v. Nees, 544. 
 
 Hall v. Warner, 203. 
 
 Hall v. Weedon, 229. 
 
 Hall v. Vreeland, 146. 
 
 Halley v. Stanton, 222. 
 
 Halliwood's Case, 137. 
 
 Hallock v. Miller, 107, 249, 292, 506, 542. 
 
 Halloran v. Thompson, 400. 
 
 Hamber v. Roberts, 163. 
 
 Hamer v. McFarlin, 617. 
 
 Hamilton v. Dent, 231. 
 
 Hamilton v. Glenn, 476. 
 
 Hamilton v. Langley, 570, 572. 
 
 Hamilton v. Smith, 185. 
 
 Hamilton v. Walters, 162, 307, 542. 
 
 Hampton v. Wilson, 322, 323. 
 
 Hancock v. Case, 395. 
 
 Hancock v. Stephens, 167, 185, 567, 624. 
 
 Hancock v. Winter, 218, 578. 
 
 Hankinson v. Bilby, 128, 171, 173, 174, 
 
 177, 178. 
 Hanks v. Palton, 522. 
 Hanna v. De Blaguere, 399. 
 Harbison v. Shook, 597, 602, 608. 
 Harcourt v. Harrison, 541, 597. 
 Hardin v. Cumstock, 157, 349. 
 Harding v. Brooks, 191, 236, 492. 
 Harding v. Bullman, 353, 354. 
 Harding v. Greening, 157. 
 Hardwick v. Chandler, 279. 
 Hare v. Mellor, 384. 
 Hargrave v. Le Breton, 125, 128, 162, 309, 
 
 312. 
 Harker v. Orr, 491. 
 Harle v. Catherall, 289, 441. 
 Harman v. Brotherson, 362. 
 Harman v. Delany, 169, 247, 2r>7. 
 Harman v. Carrin^ton, 190, 509. 
 Harper v. Delph, 164, 198, 510, 517. 
 Harper v. Luffkin, 107. 
 Harris v. Amery, 257. 
 Harris v. Bailey, 267. 
 Harris v. Burley, 529. 
 Harris v. Dixon, 216. 
 Harris v. Harrington, 385. 
 Harris v. Huntington, 501. 
 Harris v. Lawrence, 565. 
 Harris v. Porter, 297. 
 Harris v. Pnrdy, 230, 514, 516. 
 
 Harris v. Smith, 238. 
 
 Harris v. Thompson, 401, 484, 485, 600. 
 
 Harris v. Wilson, 597. 
 
 Harris v. Woody, 228, 558. 
 
 Harrison v. Bevington, 165, 263, 50], 593. 
 
 Harrison v. Bush, 84, 322, 364, 385, 388, 
 
 398, 496. 
 Harrison v. Findlav, 171. 
 Harrison v. King, *1 83, 217, 219, 271. 
 Harrison v. Pearce, 149, 437, 489. 631. 
 Harrison v. Stratton, 181, 215. 
 Harrison v. Thornborough, 171, 177, 17\ 
 
 219, 273, 275. 
 Hart v. Crow, 500. 
 Hart v. Reed, 248, 328. 
 Hartin v. Hopkins, 492, 495. 
 Hartley v. Herring, 293, 295, 542. 
 Hartrauft v. Hesser, 600. 
 H.irtsock v. Reddick, 350. 
 Hartwell v. Vesey, 409, 599, 600. 
 Harvey v. Boies,"212, 229, 230. 
 Harvey v. Brand, 169. 
 Harvey v. Coffin, 163. 
 Harvey v. Dunlap, 110. 
 Harvey v. French, 167, 197, 537, 540. 
 Harwood v. Astley, 130, 255, 260, 433, 
 
 512. 
 Harwood v. Green, 392. 
 Ilaskins v. Lumsden, 323, 624. 
 Hastings v. Lusk, 130, 356. 357, 364. 
 Hatch v. Potter, 434. 
 Hatcher v. Rocheleau, 163. 
 Hawk v. Harman, 502. 
 Hawkes v. Coster, :;^"i. 
 Hawkes v. Hawkev, 528, 531, 540. 
 Hawks v. Patton, 177, 584. 
 Hawley v. Sidenham, 227. 
 Hawn v. Smith, 225. 
 Haws v. Stanford, 227, 327, 474. 
 Haynes v. Leland, 150, 325. 
 Hays v. Allen, 289. 
 I lavs ?•. Berrymao, 470. 
 Haya v. Brieriv, 476, 538. 
 Hays v. IIavs,"l91. 223,477. 
 Hays v. .Mitchell, 170, 171, 529. 
 Havter v. Moat, 491. 
 Haythorne v. Lawson, 262, 489, 501. 
 Haywood v. Foster, 623. 
 Haywood v. Naylor, 2.M. 
 Haywood v. Newton, 494. 
 Head v. Briscoe, 501. 
 Heake v. Monlton, 211, 218, 286. 
 Hearne v. Stowell, 286,364, 365, 36 
 Heaton ;■. Wright, 561. 
 Hecker v. DeGroot, 111, 459. 
 Heilley r. Barlow, 450, 474. 
 Helly v. Hender, 227. 
 Helsham v. Blackwood. 200, 307. 
 Heming ;•. Power, 170, 174, 21c, 212, 477, 
 
 509, 532, 547, 595. 
 Hemmenwav v. Woods, 179. 
 Hemmings "v. Gasson, 479, 505, 538, 604. 
 
 Henacre ». , 165. 
 
 Henderson v. Broomhead, 351, 353, 360
 
 TABLE OF CASES. 
 
 23 
 
 Henderson v. Hale, 248. 
 
 Henken v. Guers, 472. 
 
 Hennessey ». Morgan, 552. 
 
 Henning v. Power, 170. 
 
 Henry v. Hamilton, 231. 
 
 Henry v. Norwood, 617, 621. 
 
 Henshaw v. Foster, 59. 
 
 Henson v. Veatch, 436, 621, 623, 624. 
 
 Her v. Cromer, 598. 
 
 Heriot v. Stuart, 308, 444, 445, 513. 
 
 Herle v. Osgood, 269. 
 
 Herr v. Bamburg, 276, 551. 
 
 Herrick v. Lapham, 107, 541. 
 
 Hersh v. Ringwalt, 107, 325, 567. 
 
 Herst v. Borbridge, 236, 239. 
 
 Herver v. Dawson, 4n2. 
 
 Hesler v. Degant, 475, 596, 601. 
 
 Hess v. Jockley, 192, 583. 
 
 Hewitt v. Mason, 242, 543. 
 
 Hewlett v. Crunch, 450. 
 
 Hewlett v . Crutcliley, 493. 
 
 Hibbins v. Lee, 450. 
 
 Hibbs v. Wilkinson, 442, 445, 627. 
 
 Hibler v. Servoss, 569. 
 
 Hickinbotham v. Leach, 556. 
 
 Hickley v. Grosjean, 524. 
 
 Hicks' Case, 138. 
 
 Hicks v. Foster, 487. 
 
 Hicks v . Hollingshead, 234. 
 
 Hicks v. Joyce, 233. 
 
 Hieks v. Rising, 614. 
 
 Hicks v. Walker, 541. 
 
 Higginson v. Flaherty, 358. 
 
 Hiajhniore v. Harrington, 493. 
 
 Hills' Case, 273. 
 
 Hill v Miles, 349, 350, 523, 573. 
 
 Hill v. Patterson, 496. 
 
 Hill v. Sellick, 362. 
 
 Hill v. Ward, 309, 316. 
 
 Hillhousew. Dunning, 229, 245, 246. 
 
 Hillhouse v. Peck, 207, 2<>9, 214, 237. 
 
 Hilliard v. Constable, 287. 
 
 Hills v. University of Oxford, 438. 
 
 Hilsden v. Mercer, 335. 
 
 Hilton v. Playters, 280. 
 
 Hinkman v. Firnie, 473. 
 
 Hirst v. Goodwin, 295. 
 
 Hitchin v. Campbell, 436. 
 
 Hitchon v. Best, 466, 583. 
 
 Hix v. Drury, 549, 553. 
 
 Hoag v. Hatch, 207, 209, 237, 491. 
 
 Hoar v. Wood, 349, 356, 358. 
 
 Hoare v. Dickson, 472, 496. 
 
 Hoare v. Silverlock, 169, 172, 185, 250, 
 
 366, 367, 373. 
 Hobart v. Wilkins, 466, 
 Hobkins v. Beadle, 214. 
 Hobson v. Hudson, 242. 
 Hodge v. Churchyard, 466. 
 Hodgson v. Scarlett, 217, 256, 358, 873. 
 Hogan'i 1 . Sutton, 454. 
 Hogan v. Wilmarth, 515. 
 Hogg v. Dorrah, 167, 290. 
 Hogg v. Vaughan, 281. 
 
 Hogg v. Wilson, 167, 224, 491 
 
 Hogle v. Hogle, 231. 
 
 Holcombe v. Roberts, 522. 
 
 Holland v. Stoner, 180. 
 
 Hollenbeck v. Clow, 549. 
 
 Holly v. Burges, 213. 
 
 Hollingsworth v. Duane, 373. 
 
 Hollingsworth v. Shaw, 239. 
 
 Hollis v. Briscow, 287. 
 
 Holly v. Burgess, 192, 597. 
 
 Holmes v. Catesby, 551, 556. 
 
 Holmes v. Johnson, 385. 
 
 Holt v. Muzzy, f29, 545. 
 
 Holt v. Parsons, 342, 377, 603. 
 
 Holt v. Scholefield, 104, 181, 210, 211, 
 
 214, 246, 490, 531. 
 Holt v. Taylor, 505. 
 Holton v. Muzzy, 334. 
 Holwood v. Hopkins, 302. 
 Home v. Bentinck, 363, 586. 
 Homer v. Battyn, 57. 
 Homer v. Taunton, 169, 170, 592. 
 Honess v. Stubbs, 550. 
 Honywood, Re, 646. 
 Hooker v. Tucker, 508. 
 Hooper v. Truscott, 383. 
 Hopkins v. Beadle, 214, 227, 228, 490. 
 Hopkins v. Smith, 614. 
 Hopton v. Baker, 289. 
 Hopwood v. Thorn, 214, 285, 399. 
 Horn v. Foster, 228, 232. 
 Home's Case, 91. 
 Home v. Powell, 216. 
 Horner v. Marshall, 434. 
 Horton v. Banner, 550, 580. 
 Horton v. Byles, 499. 
 Horton v. Payne, 502. 
 Horton v. Reavis, 565. 
 Hoskins v. Tarrence, 226. 
 Hosley v. Brooks, 490, 520, 600, 602, 630. 
 Hosmer v. Loveland, 90, 351, 363, 390. 
 Hotchkiss v. Lothrop, 602, 627. 
 HotchMss v. Oliphant, 219, 327, 625. 
 Hotchkiss v. Porter, 342, 608. 
 Honghtaling v. Kiklerhouse, 598. 
 Houghton v. Davenport, 518. 
 House v. House, 221. 
 Hovey v. Rubber Tip Pencil Co., 92. 
 How v. Prinn, 266. 
 Howard v. Crowther, 498. 
 Howard v. Sexton, 125, 129, 232, 603, 605, 
 
 608. 
 Howard v. Stephenson, 209, 236. 
 Howard v. Thompson, 364, 383, 385, 391, 
 
 586. 
 Howe v. Buffalo <fe Erie R. R., 502. 
 Howe v. Perry, 600, 625, 629. 
 Howell v. Cheatem, 605. 
 Howell v. Howell, 435, 598, 629. 
 Hoyle v. Oornwallis, 169. 
 Hoylo v. Young, 186. 
 Hoyt v. McKenzie, 91. 
 Hoyt v. Smith, 534, 544. 
 Hoyt v. Thompson, 145.
 
 24 
 
 TABLE OF CASES. 
 
 Huckle v. Reynolds, 188, 572, 581. 
 
 Hudson v. Garner, 540, 598. 
 
 Hudson v. Plets, 498. 
 
 Huff?;. Bennett, 157, 373, 481, 588. 
 
 Huffman v. Shumate, 566. 
 
 Hughes i'. Rees, 185, 199, 491, 544. 
 
 Hughley v. Hughley, 167. 
 
 Hull v. Blandv, 504. 
 
 Hull v. Smith," 273, 274. 
 
 Hull v. Vreeland, 465, 544. 
 
 Humber v. Ainge, 403. 
 
 Hume v. Arrasmith, 173. 
 
 Humfries' Case, 197. 
 
 Humphrey v. Douglass, 128. 
 
 Humphreys v. Miller, 594. 
 
 Humphreys if. Stanfield, 240. 
 
 Humphreys if. Stillwell, 3S7, 398. 
 
 Humphries v. Parker, 602. 
 
 Hungerford v. Watts, 222. 
 
 Hunt v. Algar, 369, 478. 
 
 Hunt v. Bell, 250. 
 
 Hunt v. Bennett, 264, 432, 482, 490, 495, 
 
 418, 520, 521. 
 Hunt v. Jones, 244. 
 Hunt v. Lane, 502. 
 Hunt v. Merrychurch, 221. 
 Hunt v. Thimblethorp, 219. 
 Hunter v. Hudson River R. R. Co., 456. 
 Hunter v. Hunter, 192. 
 Hunter v. Sharp, 347, 535. 
 Hunter v. The Publishers of the Tall Mall 
 
 Gazette, 347. 
 Huntington v. Conkey, 472. 
 Huntley v. Ward, 400. 
 Hurd v. Moore, 519. 
 Huron if. Smith, 1 99. 
 Hurrell v. Ellis, 329. 
 Hurtert v. Weines, 495, 583. 
 Huson if. Dale, 342, 622, 623. 
 Hutch v. Potter, 601. 
 Hutchins v. Blood, 515. 
 Hutchinson if. Wheeler, 623. 
 Hutton v. Beck, 289. 
 
 FAnson if. Stewart, 170, 239, 247, S27, 
 
 329,538,551. 
 Idol v. Jones, 175, 239. 
 Ilderton v. Ilderton, 146. 
 Ingalls v. Allen, 164. 
 Ingebath v. Jones, 221. 
 Ingram v. FergusoD, 436. 
 Ingram if. Lawson, 162, 163, 273, S07, 333, 
 
 489, 541. 
 Ings v. London and South West R. R., 
 
 496. 
 Inman v. Foster, 323, 327, 597, 604, 625. 
 Inman if. Jenkins, 4GS, 588. 
 Ireland v. Champneys, 49S. 
 Ireland v. McGarrish, 271. 
 
 Ireland v. Smith, 172. 
 Irwin v. Brandwood, 242. 
 Irwin v. Cook, 494. 
 Isley v. Lovejoy, 435, 567. 
 Isham v. York,"2S7. 
 
 Jackson v. Adams, 173. 220. 
 
 Jackson v. Christman, 163. 
 
 Jackson v. Cody, 163. 
 
 Jackson v. Goes, 163. 
 
 Jackson v. Greer, 188. 
 
 Jackson v. Hopperton, 430, 489, 608. 
 
 Jackson v. King, 163. 
 
 Jackson v. Mayne, 375. 
 
 Jackson v. Stetson, 549, 608, 617. 
 
 Jackson v. Weisinger, 22^. 
 
 Jacob if. Miles, 179. 
 
 Jacobs v. Fyler, 214, 229. 
 
 James v. Boston, 385. 
 
 James v. Brook, 218, 265, 288. 
 
 James v. Clarke, 631. 
 
 James v. Rutledge, 163. 
 
 J' Anson v. Stuart, 170, 239, 247, 327, 329, 
 
 538, 551. 
 Jarnigan v. Fleming, 177, 325, 437. 
 Jarvis v. Hathaway, 130, 376, 484, 492. 
 Jaycocks v. Ayres, 551. 
 Jefferson R. R. v. Rogers, 460. 
 Jeffries if. Duncombe, 58, 146, 520. 
 Jeffryes if. Payhem, 280. 
 Jekylle v. Moore, 362. 
 Jellerman v. Dolna, 564. 
 Jellison v. Goodwin, 602. 
 Jenkins if. Cockerharn, 341, 625. 
 Jenkins if. Phillips. 524. 
 Jenkins if. Smith, 279. 
 Jenkins r. Wheeler, 12S. 
 Jenkinson if. Mayne, 218. 
 Jenkinson ?'. Wra}-, 280. 
 Jennings if. Paine, 358. 
 Jewett if. Whitney, 489. 
 Joannes if. Bennett, 409. 
 Joannes if. Burt, 242. 
 Johns if. Gittinga, 201, 336. 
 Johnson if. Brown, 198, 204, 603, 604. 
 Johnson v. Dalton, 146. 
 Johnson v. Dicken, 214. 
 Johnson if. Evans, 350, 382. 
 Johnson v. Hedges, 530. 
 Johnson v. Hudson, 587. 
 Johnson v. Robertson, 191, 223, 28 
 
 541, 543. 
 Johnson if. Shields, 207, 211, 218, 237, 
 
 288. 
 Johnson v. Sledge, 198. 
 Johnson if. Stebbins, 245, 289, 554, 551. 
 Johnson if. Sutton, 362, 521. 
 Johnson if. Tait, 57'.'. 
 Johnston if. Lance, 326. 
 Johnston v. Laud, 327.
 
 TABLE OF CASES. 
 
 25 
 
 Johnston v. McDonald, 495, 537. 
 
 Johnston v. Morrow, 207, 215, 236. 
 
 Jones v. Bewicke, 4G9, 551. 
 
 Jones v. Cecil, 551. 
 
 Jones v. Chapman, 195, 225, 325, 566. 
 
 Jones, Ex-parte, 371, 372. 
 
 Jones v. Givin, I'll. 
 
 Jones v. Hearne, 222, 236. 
 
 Jones v. Hungerford, 221. 
 
 Jones v . Joice, 258. 
 
 Jones v. Jones, 163, 601. 
 
 Jones v. Littler, 265, 270, 273, 274. 
 
 Jones v. Mackie, 440. 
 
 Jones v. Marrs, 232, 515. 
 
 Jones v. McDowell, 224. 
 
 Jones v. Pritchard, 465. 
 
 Jones v. Powell, 281. 
 
 Jones v. Rivers, 477. 
 
 Jones v. Stevens, 268, 509, 617. 
 
 Joralemon v. Pomeroy, 181, 234, 238, 528, 
 
 534. 
 Jordan v. Lyster, 219, 268. 
 Justice v. Kirlin, 479, 592, 600, 628. 
 
 K. 
 
 Kane v. Mulvany, 359, 368, 375, 439, 450. 
 
 Karney v. Paisley, 602. 
 
 Kay v. Fredrigal, 327. 
 
 Kean v. McLaughlin, 232, 256, 601. 
 
 Kearney v. Gough, 596. 
 
 Keegan v. Robson, 613. 
 
 Keeler v. Dusenbury, 467. 
 
 Keene v. Ruff, 138, 139, 146. 
 
 Keenholts v. Decker, 107, 293, 301, 304, 
 
 489, 524, 603. 
 Keensle v. Sass, 278. 
 Keiler v. Lessford, 233. 
 Kelly v. Craig, 549, 
 Kelly v. Dillon, 198, 233, 326, 327. 
 Kelly v. Huffington, 540, 541. 
 Kelly v. Partington, 107, 116, 128, 182, 
 
 241, 291, 292, 293, 495, 496, 599. 
 Kelly v. Sherlock, 286, 453, 493. 
 Kelly v. Tinling, 445, 
 Kelmore v. Abdoolah, 454, 487. 
 Kemp v. Housgoe, 287. 
 Kendall v. Stone, 162, 301, 309, 315, 605. 
 Kendillon v. Maltby, 302, 360, 362. 
 Kenedy v. The People, 118. 
 Kennedy v. Dear, 328. 
 Kennedy v. Gifford, 173, 174, 177, 186, 
 
 323, 605. 
 Kennedy v. Gregory, 325, 629. 
 Kennedy v. Hilliard, 353. 
 Kennedy v. Lowry, 491, 523. 
 Kenney v. McLonghlin. 322, 494 
 Kent v. Bonzey, 626. 
 Kent v. David, 558. 
 Kent v. Pocock, 287. 
 
 Kerle v. Osgood, 287. 
 
 Kern v. Towsley, 193, 227, 509. 
 
 Kerr v. Force, 247, 248, 250, 342, 551, 554, 
 
 556, 559. 
 Kerschbaugher v. Slusser, 524. 
 Kershaw v. Bailey, 351. 
 Keson v. Barclay, 435. 
 Keyworth v. Hill, 153, 502. 
 Keyzor v. Newcomb, 283. 
 Kidder v. Parkhurst, 251. 
 Kiene v. Ruff, 519. 
 Killick v. Barnes, 220. 
 Kilmore v. Abdoolah, 454, 487. 
 Kimmel v. Kimmel, 81. 
 Kincade v. Bradshaw, 613, 614. 
 Kine v. Sewell, 320, 382, 405, 418, 599. 
 King v. Bagg, 180. 
 King's Case, 247. 
 King v. Fisher, 370. 
 King v. Lake, 69, 169, 175. 
 King v. Parsons, 329. 
 King v. Root, 81, 364. 
 King v. Sea Ins. Co., 351. 
 King v. Shore, 279, 2S0. 
 King v. Townsend, 351, 543, 641. 
 King v. "Waring, 150, 424, 436, 544, 598. 
 Kiug v. Watts, 405, 543, 
 King v. Whitley, 566. 
 King v. "Wood, 172, 241. 
 Kingsley v. Bill, 491. 
 Kinnersly v. Cooper, 170. 
 Kinney v. Hosea, 2u7, 209, 490, 598. 
 Kinney v. Kash, 265, 266, 270, 2S6, 568, 
 
 595. 
 Kirby v. Simpson, 580. 
 Kirk v. Nowell, 549. 
 Kirkaldy v. Paige, 475, 607. 
 Kirksey v. Fike, 192. 
 Kitchenman v. Skeel, 491. 
 Klein v. Hentz, 499. 
 Kloppenburg v. Xeefus, 465. 
 Kneeland v. Rogers, 502. 
 Knickerbacker v. Colver, 435. 
 Knickerbocker Ins. Co. v. Ecclesine, 464. 
 Knight v. Foster, 323, 490, 613, 623. 
 Knight v. Gibbs, 292, 296, 411. 
 Knight v. Knight, 370. 
 Knight v. Wilcox, 106, 107. 
 Knightley v. Birch, 491. 
 Knightly v. Marrow, 533. 
 Knobel v. Fuller, 624. 
 Koenig v. Ritchie, 395, 416. 
 Kramer v. "Waymark, 498. 
 Krebs v. Oliver, 409. 
 Krom v. Sehoonmaker, 127,434. 
 Kunkel v. Markell, 602. 
 
 Lafone ?\ Smith, 436, 496. 
 Laine '•. Wells, 012. 
 Lake v. Button, 327, 329.
 
 26 
 
 TABLE OF CASES. 
 
 Lake v. King, 344, 350, 351. 
 
 Lambert v. Pharis, 618. 
 
 Lamb's Case, 519. 
 
 Lamos v. Snell, 61*7, 618. 
 
 Lancaster v. French, 278. 
 
 Lancey v. Bryant, 484. 
 
 Landlia v. Shanklin, 613, 622. 
 
 Lane v. Applegate, 435, 436. 
 
 Lane v. Howman, 553. 
 
 Langdon v. Young, 146, 213, 214. 
 
 Langley v. Colson, 221. 
 
 Lansing v. Carpenter, 245, 286, 289. 
 
 Lansing v. Smith, 57. 
 
 Lanter v. McEvven, 601. 
 
 Larkins v. Tarter, 326. 
 
 Lamed v. Buffington, 600, 625,' 626. 
 
 Lassels v. Lassels, 287. 
 
 Lathrop v. Hyde, 350, 382. 
 
 Latimer v. West. Morning News Co., 
 308, 317, 445,456. 
 
 Laurie v. Wells, 226. 
 
 Law v. Cross, 476. 
 
 Law v. Scott, 432, 587. 
 
 Lawler v. Earle, 400, 623. 
 
 Lawless v. Anglo-Egyptian Cotton Com- 
 pany, 393, 411, 456. 
 
 Lawson's Case. 153. 
 
 Lawton v. Hunt, 551. 
 
 Lawyer v. Smith, 492. 
 
 Lay v. Lawson, 395. 
 
 Layer's Case, 586. 
 
 Layer v. Begg, 399, 400. 
 
 Lay ton v. Harris, 68, 154. 
 
 Lea v. White, 349, 355. 
 
 Leach v. Thomas, 490. 
 
 Leddy v. Tousey, 81. 
 
 Lee v. Bennett, 591. 
 
 Lee v. Huson, 61 1 1 . 
 
 Lee v. Kane, 522. 
 
 Lee v. Robertson, 227, 475, 608. 
 
 Lee v. Swan, 2ti { .>. 
 
 Lee v. Village of Sandy Hill, 157. 
 
 Leete v. Hart, 217. 
 
 Le Fanu v. Malcolmson, 165, 262, 501, 588. 
 
 Lehman v. City of Brooklyn, 97. 
 
 Leister v. Smith, 325, 629. 
 
 Le Merchant's Case, 5S6. 
 
 Lent v. Butler, 475. 
 
 Lenthall's Case, 238. 
 
 Leonard v. Allen, 165, 593, 598, 602, 618, 
 .620. 
 
 Lester v. Perryman, 348, 397. 
 
 Lester v. Wright, 628. 
 
 Letton o. Young, 601, 606. 
 
 Lever v. Torrey, 489. 
 
 Levermore ;■. Martin, 229. 
 
 Levi v. Milne, 482, 483, 494. 
 
 Lewin v. Edwards, 490. 
 
 Lewis v. Acton, 187. 
 
 Lewis v. Allcock, 116. 
 
 Lewis ?•. Babcock, 501. 
 
 Lewis v. Black, 230, 333, 515. 
 
 Lewis v. Chapman, 124, 129, 273, 406, 
 412, 478, 602. 
 
 Lewis v. Clement, 369. 
 
 Lewis v. Few, 353, 378, 381, 433, 370, 584. 
 
 Lewis v. Hawley,.273, 274. 
 
 Lewis v. Levy, 185, 363, 367, 368, 370, 
 
 373, 376. 
 Lewis v. Niles, 323. 
 Lewis v. Soule, 164, 229. 
 Lewis v. Walter, 201, 255, 260, 325, 327, 
 
 368, 553, 569. 
 Liddle v. Hodges, 126, 401, 599, 608. 
 Lidster if. Barrow, 464. 
 Like v. McKinstry, 309, 316. 
 Lillier'. Price, 130, 612. 
 Linck v. Kelley, 233. 
 Lincoln v. Chrisman, 604, 619. 
 Linden v. Graham, 162, 309, 315. 
 Lindenmuller v. The People, 99. 
 Lindley v. Horton, 248, 272. 
 Lindsey v. Smith, 237, 287, 517, 528. 
 Linney ». Malton, 233, 626. 
 Linville v. Earlywine, 146, 213. 
 Lipe V. Eissenlord, 107. 
 Lister ». McXeal, 580. 
 Lister v. Perryman, 397, 348. 
 Lister v. Wright, 146. 
 Litman v. West, 280. 
 Little v. Barlow, 221. 
 Little v. Clements, 485. 
 Littlejohn v. Greeley, 125, 131, 250, 264, 
 
 269. 472, 603. 
 Littler v. Thompson, 371. 
 Litton v. Young, 493. 
 Livingston ;•. Cheatham, 248. 
 Livingston v. Rogers, 490. 
 Lloyd v. Morris, 490, 491. 
 Lockwood v. Lockwood, 58. 
 Logan v. Steele, 187, 198. 
 London v. Eastgate, 278, 283. 
 Long v. Brougher, 333, 342. 
 Long o. Chubb, 596, 603. 
 Long v. Eakle, 454, 483. 
 Long v. Fleming, 577. 
 Long i>. Hitchcock, 498. 
 Long v. Long, 499. 
 Longman v. Pole, 501. 
 Loomis v. Swick, 567, 507. 
 Loubz v. Hafner, 57. 
 Loughead v. Bartholomew, 472. 
 Lovett v. Wellor. 314. 
 Lowe v. Harwood, lu4, 162, 315. 
 Lowenstein w. The People, 111. 
 Loyd r. Pearce, 221. 
 Lucan ?'. Cavendish, 466. 
 Lucan v. Smith, 550, 612. 
 Lncas ». Nichols, 234, 477. 
 Ludwell v. Hole, 276. 
 Lukehart v. Byerley, 181, 197, 209. 522, 
 
 529. 
 Lnmbyv. Allday, 265, 271, 568. 
 Lumley v. Gye,*300. 
 LumpMns v. Justice, 179, 504. 
 Lntban v. Berry, 626. 
 Luther v. Skeen, 618, 620. 
 Lyle v. Classon, 137, 141, 490, 520.
 
 TABLE OF CASES. 
 
 27 
 
 Lynch v. Henderson, 46V. 
 Lynch v. Knight, 293. 
 
 M 
 
 McAlexander v. Harris, 236, 630, 631. 
 
 McAlister v. Sibley, 621. 
 
 McAnnally v. Williams, 193. 
 
 McBean v. Williams, 578. 
 
 McBrayer v. Hill, 233, 234. 
 
 McBride v. Ellis, 249. 
 
 McCabe v. Cauldwell, 375. 
 
 McCabe v. Platter, 598, 617. 
 
 McCampbell v. Thornburgh, 621. 
 
 McCarty v. Barrett, 195. 
 
 McClaughry v. Wetmore, 229, 232, 527. 
 
 McClintock v. Crick, 567, 626. 
 
 McClurg v. Ross, 199, 215. 
 
 McCluskey v. Cromwell, 161, 534. 
 
 McCoombs v. Tuttle, 142, 567, 583, 592. 
 
 McConnell v. McCoy, 566. 
 
 McConnell v. McVenna, 566. 
 
 McCorkle v. Binns, 130, 246, 248, 588. 
 
 McCuen v. Ludlam, 199, 207, 209, 214, 
 
 237, 289, 291, 527. 
 McDaniel v. Baca, 162, 309, 314, 316. 
 McDonald v. Murchison, 605. 
 McDougall v. Claridge, 399. 
 McDougall v. Sharp,493. 
 McFadzen v. Mayor of Liverpool, 456. 
 McGee v. Sodusky, 597. 
 McGee v. Wilson, 208, 233. 
 McGlenery v. Keller, 601, 614. 
 McGough v. Rhodes, 229, 505, 558. 
 McGovern v. Manifee, 592. 
 McGowan v. Manifee, 167, 625. 
 McGrath v. Cox, 586. 
 McGregor v. Gregory, 170, 184, 201, 548, 
 
 563. 
 McGregor v. Thwaites, 245, 327, 364. 
 McGuire v. Blair, 286. 
 Mcintosh v. Matherly, 583. 
 Mclntyre v. McBean, 391, 399. 
 Mclvor v. McCabe, 145. 
 McKee v. Ingalls, 129, 197, 215, 434, 435, 
 
 567, 598, 599. 
 McKennon v. Geen, 224. 
 McKinley v. Robb, 176, 232, 332, 477, 481, 
 
 614. 
 McLaughlin v. Russell, 590. 
 McLeod v. Murphy, 268. 
 McLaughlin v. Russell, 166. 
 McManus v. Jackson, 228, 241. 
 McMillen v. Birch, 242, 256, 284. 
 McNab v. McGrath, 187, 222. 
 McNally v. Oldham, 74, 338, 544. ♦ 
 McNaught v. Allen, 577. 
 McNutt v. Young, 617. 
 McPherson v. Daniels, 130, 131, 325. 
 Macdougall v, Maguire, 564. 
 MacGill, Ex-parte, 350. 
 
 Macauley v. Shackell, 467, 471. 
 
 Mackay v. Ford, 240, 357. 
 
 Macleod v. Wakely, 445. 
 
 Maconnehey v. The State, 434. 
 
 Madison Ave. Baptist Church, Re, 309. 
 
 Magee v. Stark, 230. 
 
 Mair v. Kealy, 317. 
 
 Maitland v. Bramwell, 385, 387, 397, 411. 
 
 Maitland v. Goldney, 104, 116, 129, 262, 
 
 325. 
 Malachy v. Soper, 162, 308, 309, 315, 316. 
 Mallison v. Sutton, 164. 
 Malone v. Stewart, 233, 241, 272. 
 Malone v. Stillwell, 153. 
 Malony v. Dows, 541. 
 Manby v. Witt, 321, 418, 426. 
 Mangan v. Atterton, 156. 
 Manly v. Cory, 576. 
 Manning v. Clements, 260, 327, 550. 
 Manning v. Fitzherbert, 544. 
 Mapes v. Weeks, 323, 326, 327, 626. 
 Maretzek v. Cauldwell, 555, 561. 
 March v. Davison, 179, 281, 467. 
 Markham v. Russell, 486, 603, 629. 
 Marsden v. Henderson, 538. 
 Marsh v. Davisoo, 260. 
 Marsh v. Elsworth, 354. 
 Marsh v. Marsh, 646. 
 Marshall v. Addison, 237. 
 Marshall v. Dean, 230. 
 Marshall v. Gunter, 350, 355, 480, 491. 
 Marshall v. Martin, 496. 
 Marston v. Dennis, 238. 
 Marten v. Van Schaick, 157,493. 
 Martin v. Desnoyer, 196, 225, 477, 493. 
 Martin v. Hooker, 597. 
 Martin v. Kennedy, 465. 
 Martin v. Loei, 594, 625. 
 Martin v. Mattison, 544. 
 Martin v. Melton, 228. 
 Martin v. Xutkin, 57. 
 Martin v. Stillwell, 207, 208, 237. 
 Martin v. Van Schaick, 157, 493. 
 Martin v. Strong, 410. 
 Martinere v. Mackay, 183, 643. 
 Martyn v. Burlings, 279. 
 Martyn v. Williams, 581. 
 Marzetti v. Williams, 58, 273. 
 Masham v. Bridges, 287. 
 Mason v. Keeling, 434. 
 Mason v. Mason, 598. 
 Mason v. Thompson, 184. 
 Matthew v. Crass, 2'.»4. 
 Matthews v. Beach, 373, 481, 483, 4S6, 
 
 562, 564. 
 Matthews v. Davis, 615, 618. 
 Matthews v. Huntley, 598. 
 Mawe v. Pigott, 247, 252. 
 Maxwell v. Allison, 164. 
 Maxwell v. Hogg, 91. 
 May v. Brown, 570, 591, 627, 631. 
 Maybee v. Avery, 614. 
 Maybee v. Fisk, 165, 177. 
 Mayer, Be, 372.
 
 28 
 
 TABLE OF CASES. 
 
 Maynard v. Beardsley, 628, 631. 
 Maynard v. Fireman's Ins. Co., 456. 
 Mayne v. Digle, 210. 
 Mayne v. Fletcher, 155, 158, 5S9. 
 Mavatt v. Gibbons, 220. 
 Mayrant v. Richardson, 248, 433. 
 Mays v. Sample, 236. 
 Mayson v. Sheppard, 224, 492. 
 Mead v. Daubigny, 603. 
 Mead v. Perkins, 280. 
 Mead v. Axe, 161. 
 Mears v. Griffin, 487, 493. 
 Mebane v. Sellars, 228. 
 Medaugh v. Wright, 601. 
 Melton v. The State, 245. 
 M'Elveney v. Conellan, 586. 
 Mercer v. Sparks, 130. 
 Mercer v. Whall, 472. 
 Merchants' Bank v. Curtis, 435. 
 Merrill v. Peaslee, 567. 
 Merry weather v. Nixon, 502. 
 Mersey Nav. Co. v. Douglass, 145. 
 Meserole v. Goldsmith, 91. 
 Metcalf v. Markham, 466. 
 Metcalf v. Williams, 585. 
 Metropolitan Saloon Omnibus Co. v. Haw- 
 kins, 458, 469. 
 Meyer v. Schultz, 562. 
 Mezzara's Case, 168. 
 Middleton v. Barned, 586. 
 Milan v. Burnsides, 364. 
 Miles v. Oldfield, 237, 239. 
 Mile3 v. Spencer, 323, 326. 
 
 Miles v. Van Horn, 172, 235, 580, 597. 
 
 Miller v. Buckdon, 193. 
 
 Miller v. Butler, 149, 150, 166, 245, 501, 
 599. 
 
 Miller's Case, 242. 
 
 Miller v. Fenton, 502. 
 
 Miller v. Graham, 549. 
 
 Miller v. Gunn, 498. 
 
 Miller v. Hope, 360. 
 
 Miller v. Houghton, 235. 
 
 Miller v. Kerr, 326, 605. 
 
 Miller v. Maxwell, 163, 164, 170. 
 
 Miller v. Miller, 178, 187, 208, 236, 566, 
 567. 
 
 Miller v. Parish, 208, 234, 511, 538. 
 
 Millett v. Hulton, 247. 
 
 Millier v. Shepherd, 92. 
 
 Milligan v. Thorn, 517, 528, 544. 
 
 Millison v. Sutton, 608. 
 
 Mills v. Monday, 138. 
 
 Mills v. Taylor, 190, 222. 
 
 Mills >'. Wimp, 208, 237. 
 
 Minesinger v. Kerr, 622, 623. 
 
 Minnes v. Johnson, 502. 
 
 Minter v. Stewart, 203. 
 
 Mitchell v. Burden, 340, 341, 560. 
 
 Mitchell /•. Jenkins, 123. 
 
 Mix v. Woodward, 164, 165, 193, 481, 534, 
 605. 
 
 Moberly v. Preston, 233, 238, 323, 325, 
 327. 
 
 Moffat v. Sackett, 494. 
 
 Moises v. Thornton, 282, 514. 
 
 Moloney v. Bartley, 111, 364, 459, 588. 
 
 Moloney v. Dows, 145. 
 
 Monkman v. Shepherdson, 201. 
 
 Montgomery v. Deeley, 214. 
 
 Montgomery v. Richardson, 549. 
 
 Montifiori v. Montifiori, 630. 
 
 Moody v. Baker, 300, 302, 493. 
 
 Moon v. Towers, 157. 
 
 Moor v. Foster, 269. 
 
 Moor v. Roberts, 468. 
 
 Moore v. Ames, 360. 
 
 Moore v. Bennett, 182, 247. 
 
 Moore v. Bond, 566. 
 
 Moore v. Clay, 628. 
 
 Moore v. Horner, 231. 
 
 Moore v. Meagher, 291, 293, 543. 
 
 Moore v. Oastler, 590, 628. 
 
 Moore v. Stevenson, 342, 602. 
 
 Moore v. Syne, 268. 
 
 Moore >>. Terrill, 338. 
 
 Morehead v. Jones, 176, 622. 
 
 Morey v. Newfane Township, 435. 
 
 Morgan ;•. Lingen, 242, 248, 272. 
 
 Morgan v. Livingston, 166, 16S, 225, 229, 
 
 516, 567, 606. 
 Morris v. Barker, 602, 624. 
 Morris v. Barkley, 238. 
 Morrison v. Belcher, 450. 
 Morris v. Duane, 325. 
 Morris v. Langdale, 258, 268, 299, 617. 
 Morrison v. Harmer, 338, 495, 615. 
 Morrison v. Moat, 371. 
 Morrow v. McGaver, 332, 568. 
 Morrow v. McGovern, 580. 
 Morthland v. Cadell, 165. 
 Moscati v. Lawson, 502. 
 Moseley v. Moss, 328, 522, 529, 540. 
 Moshier v. Utica <fe Sch. R. R. Co., 57. 
 Mostyn v. Fabri^as, 145. 
 Motley r. Shany,^.!. 
 Mott "'•. Comstock, 273, 275. 
 MonltoD >•. i Jlapham, 373. 
 Mountney v. Wattou, 201, 332, 369 
 Mousley v. Harding, 626. 
 Mower v. Watson, 232. 
 Moyer v. Pine, 342, 624. 
 Muchle v. Mulhollen, 232. 
 Muck's Case, 536. 
 Mullet v. Hulton, 628. 
 Mulvehall v. Mil ward, 107. 
 Mama v. Harmer, 554. 
 Munn e. Morewood, 180. 
 Murphy v. Antley, 196. 
 Murphy v. Killet, 412. 
 Murphy v. Stout, 608. 
 Murray v. DeGross, 464. 
 Musgr6ve v. Bovev. 284. 
 Myers v. Curry. 493, 617. 
 Myers v. Malcolm, 602, 629.
 
 TABLE OF CASES. 
 
 29 
 
 N 
 
 Naber v. Miecock, 179. 
 
 Nail v. Hill, 557. 
 
 Napier v. Daniell, 492, 014. 
 
 Nash v. Benedict, 247, 474, 602, 628. 
 
 Neal v. Lewis, 491, 493. 
 
 Neal v. Mallard, 235. 
 
 Nearing v. Bell, 473. 
 
 Needham v. Dowling, 357. 
 
 Nelson v. Borchenius, 279, 593. 
 
 Nelson v. Evans, 323. 
 
 Nelson v. Musgrave, 199, 248, 335. 
 
 Nelson v. Patrick, 201. 
 
 Nelson v. Robe, 354. 
 
 Nelson v. Staff, 240, 295. 
 
 Nesmith v. Atlantic Mutual Ins. Co., 472. 
 
 Nestle v. Van Slyke, 517, 567. 
 
 Netle v. Harrison, 493.- 
 
 Nettleton v. Dinehart, 498. 
 
 Newbit v. Statuck, 227, 613, 614. 
 
 Newbraugh v. Curry, 517. 
 
 New Haven R. R. Co. v. Schuyler, 456. 
 
 Newlyn v. Fasset, 211, 236. 
 
 Newman v. Bailey, 555. 
 
 Newman v. Harrison, 561. 
 
 Newman v. Otto, 561, 562. 
 
 Newton v. Masters, 237. 
 
 Newton v. Rowe, 465, 499. 
 
 Newton v. Stubbs, 287, 522. 
 
 Nichols v. Badget, 237, 241. 
 
 Nichols v. Guy, 242. 
 
 Nichols v. Hayes, 222, 567, 571. 
 
 Nichols v. Packard, 496, 527, 528, 529. 
 
 Nichols v. The People, 173. 
 
 Nicholls v. Reeve, 491. 
 
 Nicholson v. Lynes, 272, 284. 
 
 Hiven v. Munn, 233, 516, 525. 
 
 Nixon's Case, 371. 
 
 Noah's Case, 253. 
 
 Nolton v. Moses, 487. 
 
 Norman v. Simons, 29S. 
 
 Norris v. Elliott, 585. 
 
 Norris v. Smith, 464. 
 
 Northern Railroad v. Miller, 123. 
 
 Norton v. Gordon, 566. 
 
 Norton v. Ladd, 171, 196. 
 
 Norwich, Bishop of, Case, 284. 
 
 Novion v. Hullett, 146. 
 
 Nutt's Case, 154, 158. 
 
 Nutting v. Goodridge, 498. 
 
 Nye v. Otis, 196, 198, 523. 
 
 o 
 
 Oakes v. Barrett, 493. 
 Oakley v. Farrington, 239. 
 Obaugh v. Finn, 245, 276. 
 O'Brien v. Bryant, 333. 
 O'Brien v. Clements, 164, 245, 436, 440, 
 517, 550, 612. 
 
 O'Brien v. The People, 434. 
 
 O'Connell v. Mansfield, 189, 201, 331, 548. 
 
 O'Conner v. O'Conner, 502. 
 
 O'Connor v. Lloyd, 185. 
 
 O'Connor v. Wallen, 556. 
 
 Oddy v. Paulet, 414. 
 
 Odiurne v. Bacon. 215, 239, 262, 270, 332. 
 
 O'Donaghue v. McGovern, 364, 378, 384, 
 
 385, 612. 
 Offutt v. Earlywine, 146, 213, 613. 
 O'Gara v. Eisenlohr, 112. 
 Odgen v. Riley, 107, 179, 196, 197. 
 O'Hanlon v. Myers, 215, 242, 284. 
 O'Kesson v. Barclay, 435. 
 Oldham v. Peake, 536. 
 Oliver v. Bentinck, 363, 586. 
 Olmstead v. Brown, 293, 298, 301. 
 Olmstead v. Miller, 294, 566, 592. 
 Ombony v. Jones, 274. 
 Onslow v. Home, 63, 104, 211, 246, 265, 
 
 289. 
 Opdyke v. Marble, 467. 
 Opdyke v. Weed, 131, 521. 
 Oram v. Franklin, 207, 286. 
 Ormsby v. Brown, 549. 
 Ormsby v. Douglass, 332, 415, 608. 
 Orpwood v. Barkes, 200, 572. 
 Orpwood v. Parkes, 200, 572. 
 Orr v. Skofield, 277. 
 Orton v. Fuller, 221, 228. 
 Osborne v. London Dock Co., 468. 
 Oswald's Case, 61. 
 
 Ostrom v. Calkins, 258, 273, 274, 493, 630, 
 Owen v. McKean, 232, 465, 021, 023. 
 Owens v. Roberts, 397. 
 Owsley v. Montgomery &c. R. R. Co., 450 
 
 Packer v. Spangle, 228. 
 
 Paddock v. Salisbury, 495, 617. 
 
 Padmore v. Lawrence, 382, 419, 485. 
 
 Padwick v. Wittcomb, 81. 
 
 Page v. Fawcett, 169. 
 
 Page v. Hatchett, 201. 
 
 Paine v. Prestney, 236. 
 
 Pallet v. Sargeant, 334, 608, 615, 622, 630. 
 
 Palmer v. Edwards, 195, 287. 
 
 Palmer v. Haight, 558. 
 
 Palmer v. Haskins, 519, 602, 629. 
 
 Palmer v. Hunter, 516. 
 
 Paris v. Levy, 447. 
 
 Parke v. Blackiston, 598. 
 
 Parker v. Lewis, 224. 
 
 Parker v. McQueen, 323, 326, 550, 559. 
 
 Parker v. Meader, 188. 
 
 Parker v. Mitchell, 358. 
 
 Parker Mills v. Commissioners of Taxes. 
 
 257. 
 Parker v. Raymond, 510, 538.
 
 30 
 
 TABLE OF CASES. 
 
 Parkes v. Prescott, 149. 
 
 Parkhurst v. Ketchum, 617, 618. 
 
 Parkins v. Scott, 148, 293, 302. 
 
 Parmer v. Anderson, 174. 
 
 Parmiter v. Coupland, 245, 453, 482, 483. 
 
 Parret v. Parret, 236. 
 
 Parret v. Carpenter, 272, 284. 
 
 Parrctt Nav. Co. v. Stower, 564. 
 
 Parry v. Collis, 513. 
 
 Parsons v. Bellows, 523. 
 
 Parsons v. Surgey, 379, 401. 
 
 Parsons v. Young, 203. 
 
 Pasley v. Freeman, 423. 
 
 Pasley v. Kemp, 571. 
 
 Passie v. Mondford, 219. 
 
 Pater v. Baker, 162, 311, 315, 580, 581. 
 
 Patten v. Greeley, 491. 
 
 Patten v. Gourney, 152. 
 
 Patterson v. Collins, 236, 273. 
 
 Patterson v. Edwards, 190, 527, 528, 567. 
 
 Patterson v. Patterson, 191. 
 
 Patterson v. Wilkinson, 191, 528. 
 
 Pattison v. Jones, 321, 405, 407, 423, 430, 
 
 485, 599. 
 Patton v. Hamilton, 494. 
 Paul v. Harden, 491. 
 Paul v. Halferty, 309. 
 Payne v. Beaumorris, 284. 
 Payson v. Macomber, 523, 549, 573. 
 Peachell v. Watson, 501. 
 Peake v. Oldham, 193 219, 238. 
 Pearce's Case, 170. 
 Pearce v. Ormsby, 601, 605. 
 Pearce v. The State, 482. 
 Pearce v. Whale, 268. 
 Peard v. Jones, 281, 283. 
 Pearse v. Rogers, 581. 
 Pearson v. Le Maitre, 603, 605. 
 Pearson v. Picket, 465. 
 Pearson v. Skelton, 502. 
 Pechell v. Watson, 349. 
 Peck v. Ellis, 502. 
 Pegram v. Styron, 171. 
 Peltier v. Mict, 600. 
 Pelton v. Ward, 211, 229. 
 Pemberton v. Colls, 285, 491. 
 Penfold v. Westcote, 171, 197. 
 Penn. State of v. Honey man, 123. 
 Penn. State of v. Lewis, 123. 
 Pennyman v. Rabanks, 314. 
 Penters v. England, 153. 
 Pepper v. Gay, 287. 
 Percival v. Hickey, 128, 146. 
 Perdue v. Burnett, 207, 208, 209. 236. 
 Perkins v. Mitchell, 249, 319, 353, 355, 
 
 384, 3S8, 472, 541. 
 Perring v. Harris, 613. 
 Perrott v. Morris, 468. 
 Perry v. Mann, 171, 174, 189, 327. 
 Ferryman v. Lister, 397. 
 Perselly v. Bacon, 193, 230. 
 Petrie v. Rose, 597, 622, 629. 
 Philadelphia R. R. Co. v. Quiglev, 144, 
 416, 456, 489. 
 
 Phillips v. Badly, 284. 
 
 Phillips v. Barber, 160, 195, 226. 
 
 Phillips v. Beene, 574. 
 
 Phillips v. Chapman, 466. 
 
 Phillips v. Evre, 145. 
 
 Phillips v. Hoeffer, 273, 274. 
 
 Phillips v. Jansen, 138, 141, 144, 271, 279. 
 
 Phillips v. Odell, 566. 
 
 Phillips v. Wiley, 238. 
 
 Phincle v. Vaughan, 228, 229. 
 
 Pickard v. Collins, 128. 
 
 Pickford v. Gutch, 282. 
 
 Picton v. Jackman, 408. 
 
 Pierce v. Ellis, 381, 382. 
 
 Pierrepoint v. Sharpland, 475. 
 
 Pierson v. Stroitz, 221. 
 
 Pigot's Case, 328. 
 
 Pike v. Hauson, 57. 
 
 Pikev. Van Wormer, 167, 170, 178, 179, 
 
 235, 242, 506, 545. 
 Pinckney v. Collins, 466. 
 Pinero v. Goodlake, 373. 
 Pippet c. Hearn, 523. 
 Pisani v. Lawson, 465, 497. 
 Pitt v. Donavan, 312. 
 Pittock v. O'Neill, 367, 476, 479, 483. 
 Pizani v. Lawson, 465, 497. 
 Pledger v. Hitchcock, 233. 
 Plunkettt-. Cobbett, 330,587, 601. 
 Poe v. Grever, 209, 212, 213. 
 Poe v. Mendford, 281. 
 Pond v. Hartwell, 523, 595. 
 Pool v. Devers, 490, 60S. 
 Pool v. Sacheverel, 371. 
 Pope v. Welsh, 617. 
 Popham v. Pickburn, 365, 381, 453. 
 Poplett v. Stockdale, 501. 
 Poppenheim v. Wilkes, 323,672. 
 Porter v. Botkins, 621. 
 Porter v. Henderson, 628, 630, 631. 
 Porter v. Hughey, 241. 
 Porter v. McCreedv, 549. 
 Portman v. Stowell, 236. 
 Potter v. Thompson, 494, 520, 569. 
 Pott's Case, 216. 
 Potts v. Pace, 593. 
 Potwrite v. Barrel, 238. 
 Powell v. Cleaver, 212. 
 Powell v. Jones, 199, 283. 
 Powell v. Kane, 351. 
 Powell ;•. Plunkett, 185, 342. 
 Power v. Heming, 613. 
 Power o. Miller. S 
 Power v. Price, 232, 516. 
 Power v. Shaw, 234. 
 Powers v. Dubois, 249, 264. 
 Powers v. Presgroves, 620, 626. 
 Powers v. Skinner, 332, 336, 337, 342, 624. 
 Powers v. Smith, 484. 
 Powis i\ Smith, 121. 
 Preckington's Case, 244. 
 Prettyman v. Shocklev, 273, 274. 
 Price v. Wall, 603. 
 Prichard v. Lloyd, 226.
 
 TABLE OF CASES. 
 
 31 
 
 Prickett v. Greatrex, 128. 
 
 Pridham v. Tucker, 269. 
 
 Prim) v. Howe, 216, 264, 266. 
 
 Prior v. Wilson, 246, 277. 
 
 Pritcbard v. Corporation of Georgetown, 
 
 456. 
 Proctor v. Owens, 235, 566. 
 Proed v. Johnes, 2S1, 283. 
 Prowse v. Loxdale, 496. 
 Prudhomme v. Frazer, 581. 
 Prynne v. Brown, 496. 
 Puckett v. Greatrex, 128. 
 Pngh v. McCarty, 228, 627. 
 Pugh v. Neal, 515. 
 Purdyw. Carpenter, 131. 
 Purdy v. Stacey, 237, 525. 
 Purple v. Horton, 567, 621, 623. 
 Pursell v. Archer, 569. 
 Pybus v. Scudamore, 466. 
 Pye v. Wallis, 294. 
 
 Q 
 
 Quigley v. Phil. <fcc. R.R. Co., 630. 
 Quinn v. O'Gara, 197, 207, 208, 239, 246. 
 Quinn v. Wilson, 550. 
 
 R 
 
 Raikes v. Richards, 591. 
 
 Raineyi'. Thorn bury, 230. 
 
 Ralph v. Davye, 165. 
 
 Ram a. Lamley, 348. 
 
 Ramsdaie v. Greenacre, 270, 580, 581. 
 
 Ramsey v. Elms, 186. 
 
 Randall v. Brigham, 361. 
 
 Randall v. Holsenbake, 334, 335, 604. 
 
 Randell v. Butler, 208. 
 
 Randle v. Beal, 240, 297. 
 
 Ranger v. Goodrich, 233, 626. 
 
 Rangier v. Hummell, 166, 499, 594. 
 
 Ratcliff v. Lonfj, 178. 
 
 Ratcliffe v. Shublev, 225. 
 
 Rathbun v. Emigh, 267, 544. 
 
 Rawlings v. Norbnry, 527, 594. 
 
 Ra}'ner v. Kinney, 608. 
 
 Read v. Ambridge, 177, 185, 218. 
 
 Read v. Hudson, 273, 274. 
 
 Me Bronson, 373. 
 
 lie Chaplin, 440. 
 
 He Clements, 440, 
 
 Rector v. Smith, 361, 362, 598. 
 
 Redfern v. Todd, 238. 
 
 Redman v. Pyne, 283. 
 
 Redway v. Gray, 215, 222, 270. 
 
 Reede v. Sweetzer, 442. 
 
 Reeks v. Cooper, 223. 
 
 Reeves v. Templar, 254, 481, 482. 
 
 Regina v. Ardley, 219. 
 
 Regina v. Hoardman, 121. 
 
 liegina v. Boucher, 591. 
 
 Regina v. Browne, 168, 476. 
 
 Regina v. Bull, 111. 
 
 Regina v. Cooper, 149. 
 
 Regina v. Duffy, 440. 
 
 Regina v. Foxby, 62. 
 
 Regina v. Gathercole, 99. 
 
 Regina v. Hetherington, 99. 
 
 Regina v. Hicklin, 112, 451. 
 
 Regina v. Hurt, 169. 
 
 Regina v. Hutchins, 355. 
 
 Regina v. Langley, 62, 287. 
 
 Regina v. Lovett, 591. 
 
 Regina v. Lowe, 497. 
 
 Regina v. Marshall, 194. 
 
 Regina v. Mawgridge, 124. 
 
 Regina v. Mills, 63. 
 
 Regina v. Newman, 323. 
 
 Regina v. Thompson, 181. 
 
 Regina v. Veley, 393. 
 
 Regina v. Verrier, 490, 527. 
 
 Readier v. Cabot, 622, 623, 624. 
 
 Rehauser v. Schwerjrer, 524. 
 
 Reid v. Delorme, 384. 
 
 Reid v. Harper, 435. 
 
 Reignald's Case, 267. 
 
 Remington v. Congdon, 376,378, 612. 
 
 Rendall v. Hayward, 494. 
 
 Respublica v. Dtiane, 92. 
 
 Respublica v. Oswald, '373. 
 
 Reston v. Pomfreicht, 294. 
 
 Revis v. Smith, 353. 
 
 Rex v. Abingdon, 110, 129, 154. 
 
 Rex v. Alderton, 540. 
 
 Rex v. Alexander, 158. 
 
 Rex v. Almon, 150, 158. 
 
 Rex v. Amphlett. 142. 
 
 Rex v. Aylett, 528, 536. 
 
 Rex v. Baillie, 386, 392. 
 
 Rex v. Baxter, 165. 
 
 Rex v. Bayley, 388. 
 
 Rex v. Bear, 149, 523. 
 
 Rex v. Berry, 565, 566. 
 
 Rex v. Brereton, 520, 525. 
 
 Rex v. Brown, 168. 
 
 Rex v. Burdett, 136, 144, 146, 150, 4S2, 
 
 592. 
 Rexv. Burke, 116. 
 Rex v. Carlile, 366. 
 Rex v. Cator, 591. 
 Rex v. Clement, 370. 
 Rex v. Cooper, 149. 
 Rex v. Creevey, 248, 345. 
 Rex v. Dean of St. Asaph, 482. 
 Rex v. Dixon, 112. 
 Rex v. Dodd, 158. 
 Rex v. Donnison, 589. 
 Rex v. Dover, 149. 
 Rex v . Drake, 149. 
 Rex v. Edgar, 169. 
 Rex e. Enes, 393. 
 Rex v. Fisher, 158.
 
 32 
 
 TABLE OF CASES. 
 
 Rex v. Fleet, 3*70, 
 
 Rex v. Foster, 230. 
 
 Rex v. Gilliam, 370. 
 
 Rex v. Girdwood, 146, 583. 
 
 Rex v. Godfrey, 253. 
 
 Rex v. Greepe, 527. 
 
 Rex v. Griffin, 165. 
 
 Rex v. Gutch, 158. 
 
 Rex v. Hall, 592. 
 
 Rex v. Hart, 373, 377, 589. 
 
 Rex v. Harvey, 124, 248. 
 
 Rex v. Hedges, 226. 
 
 Rex v. Holt, 154, 323. 
 
 Rex v. Home, 165, 175, 527. 
 
 Rex v. Hunt, 509. 
 
 Rex v. Hurt, 169. 
 
 Rex v. Jenneaur, 402. 
 
 Rex v. Johnson, 146, 583. 
 
 Rex v. Kinnersley, 249. 
 
 Rex v. Lambert, 182, 474. 
 
 Rex v. Lee, 372, 373. 
 
 Rex v. Lord Abinger, 345. 
 
 Rex v. Lord Cochrane, 258. 
 
 Rex v. Marsden, 517. 
 
 Rex v. Matthews, 536. 
 
 Rex v. May, 523. 
 
 Rex v. Middleton, 146. 
 
 Rex v. Miller, 482. 
 
 Rex v. Moore, 112. 
 
 Rex v. Osborne, 165. 
 
 Rex v. Paine, 99, 149. 
 
 Rex v. Pearce, 586, 589, 590. 
 
 Rex v. Powell, 522. 
 
 Rex v. Roberts, 329, 442. 
 
 Rex v. Rosenstein, 150. 
 
 Rex v. Salisbury, 349. 
 
 Rex v. Shelly, 268. 
 
 Rex v. Skinner, 353, 360. 
 
 Rex v. Sutton, 435. 
 
 Rex v. Taylor, 99. 
 
 Rex v. Topham, 589. 
 
 Rex v. Tutchiu, 443. 
 
 Rex v. Watson, 146, 371, 583, 591. 
 
 Rex v. Webster, 99. 
 
 Rex v. Wegener, 138. 
 
 Rex v. Williams. 149, 583. 
 
 Rex v. Woodfall, 169, 479, 482, 630. 
 
 Rex v. Wright, 345, 367. 
 
 Reynell v. Sackfield, 222. 
 
 Reynolds v. Tucker, 623, 627. 
 
 Rhodes v. James, 597. 
 
 Rice v. Cottrell, 585, 602. 
 
 Rice v. Pidgeon, 295. 
 
 Rice v. Simmons, 68. 
 
 Rice v. Withers, 583, 626. 
 
 Rich v. Holt. 237, 281, 336. 
 
 Richards v. Boulton, 612. 
 
 Richards v. Cohen, 496. 
 
 Richards v. Richards, 624. 
 
 Richardson v. Alien, 215, 240. 
 
 Richardson v. Northrup, 617, 626. 
 
 Richardson v. Roberts, 235, 585,608, 615. 
 
 Richmond v. Dayton, 373. 
 
 Rickett v. Stanley, 234, 238, 334. 
 
 Ridley v. Perrv, 334, 618. 
 Rigby v. Heron, 187, 504. 
 Riggs v. Denniston, 245, 276, 279, 290, 
 
 336, 338, 341, 551, 554, 563. 
 Riley v. Byrne, 471. 
 Riley v. Nugent, 493. 
 Rineheart v. Potts, 230. 
 King v. Wheeler, 356, 357. 
 Rish Allah Bey ;•. Johnstone, 440. 
 Rish Allah Bey v. Whitehurst, 367, 473. 
 Roace v. Gar van, 371. 
 Roach v. Read, 169. 
 Robbins v. Fletcher, 571, 605, 611. 
 Bobbins v. Treadway, 286. 
 Roberts v. Brown, 368. 
 Roberts v. Camden, 167, 179, 185, 22S. 
 
 540, 598, 599. 
 Roberts v. Champlin, 232. 
 Roberts v. Richards, 428. 
 
 Roberts v. Roberts, 107, 293, 294, 541. 
 Robertson v. Lea, 197, 229. 
 Robertson v. McDougall 249, 417. 
 Robertson v. Powell, 233. 
 Robertson v. Wylde, 607. 
 Robinettu Ruby, 417, 571. 
 Robins v. Hildredon. 19.",, 220. 
 Robinson v. Drummond, 164, 608. 
 Robinson »•. Harvey, 326. 
 Robinson v. Jermyn, 252. 
 Robinson v. Keyser. 171. 197, 505. 
 Robinson v. Marehant, 58, 263, 273, 501, 
 
 541, 544. 
 
 Robinson v. May, 382, 392, 485, 599. 
 
 Robinson v. Miller, 221. 
 
 Robinson v. Wallis, 572. 
 
 Robson o. Blackmail, 466. 
 
 Rochester White Lead Co. v. The City of 
 
 Rochester, 362, 456. 
 Rockweller v. Brown, 437, 472. 
 Rodebur^h v. Hollingsworth, 172, 233, 
 
 526, 540, 596. 
 Roe ?'. Birkenhead Railway Co., 456. 
 Roella v. Follow, 228, 527. 
 Rogers v. Clifton, 427, 599. 
 Rogers v. Gravat, 240. 
 Rodgcrs r. Lacey, 238, 238. 
 Rogers t>. Macnamara, 329. 
 Rogers r, Munns. 495. 
 Rogers v. Spaulding, 384. 
 Rolm i'. Steward, 2."'7. "_7"'. 
 Romayne v. Duane, 327, 598, 622. 629. 
 Root v. King, 74, 128, 130, 131, 219, 29'\ 
 
 327,433,438,466, 493, 495, 59S, 
 
 603, 617. 
 Root v. Lowndes, 125, 436, 604. 
 Root v. Woodruff, 563. 
 Rose v. Groves, 295, 542. 
 Rose well' s Case, 537. 
 Ross v. Pines, 128, 316. 
 Ross i'. Ross, 493. 
 Ross v. Rouse, 231, 232. 
 Row v. Claris,. 172. 
 Rowcliffe v/Edmouds, 185, 225. 
 Rowe v. Roach, 316, 521, 554.
 
 TABLE OF CASES. 
 
 33 
 
 Ruckman v. Cowt-11, 128. 
 
 Rue v. Mitchell, 229. 
 
 Rnmsey v. Webb, 327. 
 
 Rundell v. Butler, 227, 492, 491, C03 
 
 Rankle v. Meyers, 326. • 
 
 Rush v. Kavanagh, 276, 279. 
 
 Russ v. Brooks, 622. 
 
 Russell v. Corne, 591. 
 
 Russell v. Ligon, 247. 
 
 Russel v. Wilson, 215, 240. 
 
 Ruth v. Kutz, 491. 
 
 Rutherford v. Evans, 474, 567, 596. 
 
 Rutherford v. Moore, 197, 566. 
 
 Ryallsv. Leader, 365, 367, 374. 
 
 Ryan v. Madden, 501. 
 
 Ryckman v. Delavan, 165, 277. 
 
 Ryckman v. Parkins, 493. 
 
 Ryder v. Burke, 466. 
 
 s 
 
 Safford v. The People, 81. 
 
 Safford v. Wyckoff, 121, 128. 
 
 Sale v. Marsh, 222. 
 
 St. Martin v. Desnoyer, 195, 225, 477, 493. 
 
 St. John v. St. John's Church, 502. 
 
 Salenger v. Lusk, 546. 
 
 Salter v. Brown, 240, 297. 
 
 Sample v. Wynn, 598. 
 
 Sampson v. Mackay, 496. 
 
 Samuel v. Bond, 327, 549. 
 
 Sanders v. Johnson, 493, 617, 624. 
 
 Sanders v. Rollinson, 351, 587. 
 
 Sanderson v. Hubbard, 514, 516. 
 
 Sanderson v. Ituddes, 264. 
 
 Sandford v. Bennett, 281, 323, 375 440 
 
 472, 498. 
 Sands v. Robison, 251, 361. 
 Sandwell v. Sandwell, 584. 
 Sanford v. Gaddis, 228, 231, 338, 515, 516, 
 
 522, 558, 566, 567, 578. 
 Sargent v. Hehnbold, 464. 
 
 Sargent v. , 493. 
 
 Saunders v. Bates, 522, 580, 581. 
 
 Saunders v. Mills, 342, 367, 368, 630. 
 
 Saunderson v. Jackson, 59. 
 
 Saus v. Joerris, 327. 
 
 Sauter v. McEwen, 613. 
 
 Savage ». Robery, 540. 
 
 Saville v. Jardine, 239, 496. 
 
 Saville v. Sweene}', 499. 
 
 Sawyer v. Eifert, 219, 617, 618. 
 
 Sawyer v. Hopkins, 472, 510, C02. 
 
 Sayer v. Begg, 399, 400. 
 
 Sayles v. Wooden, 551. 
 
 Sayre v. Jewett, 491, 517, 528. 
 
 Sayre v. Sayre, 618. 
 
 Scanlan v. Cowley, 121. 
 
 Scarll v. Dixon, 390. 
 
 Schaus v. Putscher, 465. 
 
 Scheckell v. Jackson, 439. 
 
 Schenck v. Schenck, 138, 588, 592, 601. 
 
 Schewer /'. Kleine, 470. 
 
 Schock v. Mel Ihesney, 348. 
 
 Schoonover v. Rowe, 437. 
 
 Schwartz v. Thomas, 585. 
 
 Scobett v. Lee, 2 1 0. 
 
 Scott v. Cook, 492. 
 
 Scott v. Hallock, 545. 
 
 Scott v. Hilliers, 216. 
 
 Scott v. McKinnish, 233, 327, 328, 567, 
 572, 601, 603, 606, 617,621,624, 
 625. 
 
 Scott v. Montsinger, 605. 
 
 Scott v. Pebbles, 205, 326, 598. 
 
 Scott v. Renforth, 567. 
 
 Scott v. Seymour, 145. 
 
 Scott v. Stansfield, 361. 
 
 Scovill v. Geddings, 362. 
 
 Scoville v. New, 547. 
 
 Scovel v. Kingsley, 144. 
 
 Seaman v. Bigg, 240. 
 
 Seaton v. Cord ray, 215. 
 
 Secor v. Harris, 281, 284. 
 
 Seely v. Blair, 433, 613, 016. 
 
 Seely v. Cole, 564. 
 
 Selby v. Carry er, 220, 221. 
 
 Self v. Gardner, 335, 579. 
 
 Sell v. Facy, 294. 
 
 Sellars v. Killew, 258, 568. 
 Sellars v. Tell, 535. 
 
 Sellars v. Killen, 568. 
 Sempsey v. Levy, 276, 533. 
 
 Seneca Co. Bank v. Lamb, 259. 
 Senior v. Medland, 380. 
 Senter v. Carr, 620. 
 Sergart v. Carter, 174. 
 Setterman v. Eitz, 524. 
 Severance v. Hilton, 597. 
 Sewall v. Evans, 163. 
 Sewell v. Catlin, 273, 275, 291, 417. 
 Sexton v. Brock, 600. 
 Sexton v. Todd, 233, 326. 
 Seycroft v. Dunker, 273, 274, 275. 
 Seymour v. Lutterworth, 447. 
 Seymour v. Morrell, 617. 
 Seymour v. Wilson, 120. 
 Shackell v. Rosier, 502. 
 Shaffer v. Knitzer, 211, 229,491. 
 Shaftsbury's Case, 466. 
 Shalmer v. Foster, 537. 
 Shank v. Case, 608. 
 
 Sharp v. Mayor of New York, 58, 456. 
 Sharp v. Scoggin, 81. 
 Sharp v. Stephenson, 334, 557, 569, 615. 
 Sharp v. Williite, 514. 
 Shattuck v. Allen, 215, 382, 482, 483. 
 Shaver v. Linton, 495. 
 Shaw v. Stine, 120. 
 Shaw v. Thompson, 230. 
 Shaw v. Wakeman, 280. 
 Shay v. Tuolumne Water Co., 4S7. 
 Sheahan v. Collins, 327, 613 617 622 
 624.
 
 34 
 
 TABLE OF CASES 
 
 Shearlock v. Beardsworth, 152. 
 
 Sheckell v. Jackson, 630. 
 
 Shecut v. McDowel, 171, 117. 
 
 Sheddon v. Patrick, 180. 
 
 Sheely v. BUzgs, 228. 
 
 Sheffij v. Van Deusen, 143. 
 
 Sheldon v. Carpenter, 437. 
 
 Shelfer v. Gooding, 357, 349. 
 
 Shelford v. Gooding, 349, 357. 
 
 Shellenbarger v. Xorris, 515. 
 
 Shelton v. Nance, 247, 248, 327, 376. 
 
 Shelton v. Simmons, 622. 
 
 Shephard v. Merrill, 327, 333, 557, 560. 
 
 Shephard v. Watrous, 435, 472. 
 
 Shepherd v. Bliss, 578. 
 
 Shepherd v. Wakeman, 235, 294. 
 
 Sherry v. Freeking, 491. 
 
 Shervvin v. Swindall, 123. 
 
 Sherwood v. Chase, 185, 229, 230. 
 
 Sherwood v. Gi bert, 415. 
 
 Shields v. Cunningham, 233. 
 
 Shinier v. Bromenburg, 514, 517. 
 
 Shinloup r. Ammerman, 228. 
 
 Shipley v. Todhunter, 185, 245, 399, 583 
 
 Shipman v. Burrows, 293, 541, 597. 
 
 Shipp v. McCraw, 207, 212, 213. 
 
 Shire v. King, 279, 280. 
 
 Shirley ». Keatley, 415, 612, 621. 
 
 Shock v. McChesney, 605. 
 
 Shoe and Leather Bank v. Thompson, 459. 
 
 Shore v. Smith, 544. 
 
 Shortly v. Miller, 601, 608, 613. 
 
 Shoulty v. Miller, 613, 623. 
 
 Showell v. Haman, 213. 
 
 Shrimper v. Heilman, 605. 
 
 Shroyer v. Miller, 516, 598. 
 
 Shultz v. Chambers, 530. 
 
 Shute v. Barrett, 493. 
 
 Sibley v. Tomlins, 266, 270, 271. 
 
 Sibley v. Tompkins, 270. 
 
 Sibthorpe's Case, 221,226. 
 
 Sidgreaves v. Myatt, 233, 328. 
 
 Sidman v. Mayo, 216, 525. 
 
 Silvers v. Neralinger, 502. 
 
 Simmons v. Holster, 224, 5S9. 
 
 Simmons v. Morse. 47s. 
 
 Simpson v. Barlow, 275. 
 
 Simpson v. Dinsmore, 163. 
 
 Simpson v. Downs, 416. 
 
 Simpson v. Ilardie, 496. 
 
 Simpson v. Robinson, 374, 473, 606, 608. 
 
 Simpson v. Wiley, 586. 
 
 Sims v. Kinder, 425, 612. 
 
 Sinclair v. Charles Phillipe, 258. 
 
 Sinclair v. Fitch, 545. 
 
 Skelton u. Seward, 496. 
 
 Skinner v. Bronnenburg, 496. 
 
 Skinner v. Grant, 270, 326, 332, 337, 567 
 619. 
 
 Skinner ». Kitch, 59. 
 
 Skinner ads. Towers. 624. 
 
 Skinner v. Shoppee, 496. 
 
 Skinner v. White, 207, 241. 
 
 Skutt v. Hawkins, 517. 
 
 Slator v. Slator, 469. 
 
 Sloan v. Petrie, 608. 
 
 Slocum v. Kuykeudall, 566. 
 
 Sloman v. Chisholm, 277. 
 
 Sloman v. Dutton, 185, 224. 
 
 Sluder v. Wilson, 228. 
 
 Smale v. Hammon, 210, 213, 229. 
 
 Smalley v. Anderson, 233, 234, 239, 323. 
 
 Smalley v. Stark, 166, 594. 
 
 Smart v. Blanchard, 140, 165, 166, 342, 
 
 567, 592. 
 Smayles, v. Smith, 267, 280. 
 Smiley v. McDougal, 571. 
 Smith v. Andrews, 280. 
 Smith v. Ashlev, 130, 155. 
 Smith v. Buckecker, 334, 342. 
 Smith v. Bull, 146. 
 Smith v. Carey, 530, 534, 535. 
 Smith's Case, 196, 236, 242, 243, 371. 
 Smith v. Cleveland, 491. 
 Smith v. Collins, 214. 
 Smith v. Cooker, 501, 538. 
 Smith, Ex-parte, 371. 
 Smith v. Gafford, 177/215, 504, 536. 
 Smith v. Hamilton, 505. 
 Smith v. Harrison, 440. 
 Smith u. Higgins, 379, 610. 
 Smith v. Hixon, 499. 
 Smith v. Hobson, 500. 
 Smith v. Hodsreskins, 236, 382. 
 Smith v. Hollister, 540, 565, 566. 
 Smith v. Howard, 124, 354. 
 
 Smith v. Joyce, 260. 
 
 Smith v. Kerr, 382, 435, 495. 
 
 Smith v. Knowelden, 580, 581. 
 
 Smith r. Lewis, 353, 354. 
 
 Smith v. Lovelace, 600. 
 
 Smith v. Matthews, 392, 418. 
 
 Smith v. Mawhootl. 
 
 Smith v. Miles, 178, 477, 593. 
 
 Smith v. Minor, 235. 
 
 Smith v. Parker, 331, 332. 
 
 Smith v. Richardson, 330, 624. 
 
 Smith v. Scott, 307, 374,613. 
 
 Smith v. Silence, 233. 
 
 Smith v. Smith, 209, 211, 232, 327, 328, 
 . 580, 612. 
 
 Smith i'. Spooner, 162, 309, 311. 
 
 Smith v. Stewart, 198, 212, 326. 
 
 Smith v. Taylor, 569. 
 
 Smith v. Thackerah, 108. 
 
 Smith v. Thomas. 488, 549, 613. 
 
 Smith v. Tracv, 259. 
 
 Smith v. Ward, 197. 
 
 Smith v. Wilcox, 259. 
 
 Smith v. Williams, 508. 
 
 Smith v. Wood, 150, 247. 
 
 Smith v. Wyman, 333, 605, 608. 
 
 Smith r. Youmans, 376, 599. 
 
 Smithies v. Harrison, 330, 334. 
 
 Snag r. Grey, 281. 
 
 Sna<j v. Gee, 174. 
 
 Sneade v. Bradley, 314, 315. 
 
 Sneed v. Davis, 418.
 
 TABLE OF CASES. 
 
 35 
 
 Snell v. Snow, 166, 178, 194, 536, 593. 
 
 Snell v. Webbling, 168. 
 
 Snow v. Judson, 307. 
 
 Snow v. Witcher, 233, 333, 339, 552. 
 
 Snowdon v. Linda, 247, 334. 
 
 Snyder v. Andrews, 142, 190, 327, 328, 
 
 477, 482, 483, 557. 
 Soane v. Knight, 416. 
 Society of Solicitors v. Robertson, 152. 
 Solomon v. Law. son, 163, 530, 543. 
 Solomon v. Medex, 263, 573. 
 Soltan v. Deheld, 57. 
 Somers v. Holt, 497, 
 Somers v. House, 167, 178, 184. 
 Somers v. Torrey, 351. 
 Somerstaile's Case, 240. 
 Somerville v. Hawkins, 321, 426, 484, 485, 
 
 599. 
 South v. The State of Maryland, 360. 
 Southall v. Dawson, 294. 
 Southam v. Allen, 258, 273, 274. 
 Southee v. Denny, 185, 265, 282, 283, 581. 
 Southold v. Daunston, 295. 
 Southwick v. Stevens, 248, 493, 588, 595, 
 
 627. 
 Spall*. Massey, 5S, 512. 
 Sparkham v. Pye, 227. 
 Sparrow v. Maynard, 213, 515. 
 Speaker v. McKenzie, 241. 
 Spencer v. Amerton, 379, 392. 
 Spencer v, McMasters, 233, 493, 500, 526, 
 
 608. 
 Spencer v. Southwick, 167, 176, 333, 548. 
 Sperry v. Freckin, 491. 
 Spill v. Maule, 397, 599, 608. 
 Spilling v. Carson, 602, 618, 622. 
 Spooner, Re, 372. 
 
 Springhead Spinning Co. v. Riley, 91. 
 Springstein v. Field, 598, 617, 624. 
 Spruil v. Cooper, 611. 
 Squier v. Gould, 541. 
 Squire v. Johns, 274. 
 Squires v. Whisken, 472. 
 Stace v. Griffith, 485. 
 Stafford v. Green, 214, 490. 
 Stafford v. Grier, 229. 
 Stallin.o-s v. Newman, 174, 409, 510, 625. 
 Stamp v. White, 214. 
 Stanfield v. Lover, 234, 565. 
 Stanhope v. Blith, 180, 229. 
 Stanley v. Boswel, 280. 
 Stanley v. Osbaston, 274. 
 Stanley v. Webb, 369, 373, 562, 623. 
 Stannard v. Harper, 566. 
 Stanton v. Andrews, 384. 
 Stanton v. Smith, 274. 
 Stark v. Chetwood, 309. 
 Starr v. Gardner, 215, 284, 
 Starr v. Harrington, 335, 559, 608. 
 State. See The People, 
 State v. Atkins, 528. 
 State v. Avery, 246. 
 State v. Burnham, 129,341. 
 State v. Burroughs, 207. 
 
 193, 
 
 613, 
 
 State v. Butman, 327. 
 
 State v. Chace, 168. 
 
 State v. Croteau, 482. 
 
 State v. Davis, 589. 
 
 State v. Farley, 74, 246. 
 
 State v. Henderson, 510, 527, 528, 530, 
 
 537. 
 State v. Honeyman, 123. 
 State v. Jeandall, 74, 165, 482, 569, 588, 
 
 603. 
 State v. Lewis, 123. 
 State v. Neese, 504. 
 Si at.' v. Qswald, 373. 
 State v. Powers, 576. 
 State v, Roulstone, 152. 
 Stationers' Co. v. Partridge, 91. 
 Staverton v. Relfe, 221, 228. 
 Ste adman v. Arden, 469. 
 Stearns v. Cox, 603. 
 Stearns v. Howe, 114. 
 Stebbing v. Warner, 236. 
 Steele v. Phillips, 557. 
 Steele v. Southwick, 74, 130, 164, 
 
 248. 
 Stees v. Kemble, 168, 192, 623. 
 Steever v. Beehler, 626. 
 Steinman v. Clark, 553. 
 Steinman v. McWilliams, 516, 598, 
 
 614, 617, 618, 619. 
 Stephens v. Corben, 196. 
 Sterling v. Sherwood, 563. 
 Stern v. Sevastopulo, 468. 
 Sterry v. Foreman, 577. 
 Stetson v. Jackson, 617. 
 Stevens v. Ask, 173. 
 Stevens v. Handlay, 171, 525, 527. 
 Stevens v. Hartley, 301. 
 Stevens v. Midland Counties Railway, 356, 
 Stevenson v. Hayden, 239. 
 Steventon v. Higgins, 236. 
 Steward v. Young, 314. 
 Stewart v. Howe, 215. 
 Stewart v. Layton, 144. 
 Stewart v. Nugent, 407. 
 Stewart v. Wilkinson, 630. 
 Stieber v. Wensel, 233, 238, 513. 
 Sties v. Kemble, 578. 
 Stiles v. Comstock, 335, 618. 
 Stiles v. Kokes, 331, 365, 369, 558. 
 Still v. Finch, 221. 
 Stilwell v. Barter, 248, 332, 335. 
 Stirley v. Hill, 199. 
 Stitch v. Wisedom, 219. 
 Stitzel v. Reynolds, 192, 208, 227. 491, 
 
 528. 
 Stockdale v. Hansard, 246, 470. 
 Stockdale v. Onwhyn, 501. 
 Stockdale v. Tarte, 477. 
 Stocken v. Collen, 583. 
 Stocking v. Clement, 252. 
 Stockley v. Clement, 253. 
 Stokes i\ Arey, 227. 
 Stokes o. Stnckcy, 225. 
 Stone v. Clark, 174, 232, 286, 510, 514.
 
 36 
 
 TABLE OF CASES*. 
 
 Stone?'. Cooper, 182, 195, 252, 507. 
 
 Stone v. Smalcombe, 222, 236. 
 
 Stone v. Varney, 617. 
 
 Storey v. Chalfands, 403, 542. 
 
 Storrer v. Audley, 216. 
 
 Stout v. Wood, 1*46, 213, 214. 
 
 Stow v. Converse, 217, 248, 334, 475, 598, 
 
 601, 609, 621, 624. 
 Strachey's Case, 508. 
 Strang v. Holmes, 435. 
 Strang v. Whitehead, 541. 
 Strauss v. Francis, 443, 448. 
 Strauss v. Schwarzwaelden, 465. 
 Street v. Bushnell, 579. 
 Streety v. Wood, 385. 
 Strieber v. Wensel, 510. 
 Strode v. Holmes, 289. 
 Strong, Re, 372. 
 Strong v. Foreman, 293, 542. 
 Strong v. Kean, 486. 
 Stroop v. Swartz, 499. 
 Stuart v. Lovell, 444. 
 Stubbs t\ Marsh, 403. 
 Stucker v. Davis, 530. 
 Sturgenegger v. Tavlor, 240. 
 Stutley v. Billhead, 287. 
 Subley v. Mott, 500. 
 Suiman v. Shilletto, 215. 
 Sullivan v. Holker, 491. 
 Sullivan v. Lenihan, 476. 
 Sullivan v. White, 522. 
 Sumner v. Buel, 163, 165. 
 Sumner v. Utley, 284. 
 Sutton v. Plumridge, 3S7, 581, 608. 
 Sutton v. Smith. 150. 
 Suydam v, Moffat, 353, 603. 
 Swadling v. Tar]. lev, 424, 608, 635. 
 Swails v. Butcher, 608, 
 Swan v. ( 'lei ami. 193. 
 Swan v. Kavv, 337. 
 Swan v. Tappan, 162, 163, 307, 320. 
 Swearingen v. Stanley, 510. 
 Sweetapple v. Jesse, 186, 5! 
 Swift v. Dickerman, 489, 602, 603, 612, 
 
 618, 620, 621, 62"7. 
 Swiimey v. Nave, 521. 
 Swithen v. Vincent, 153, 500, 501. 
 S\m v. I loeklev, 244. 
 Symons v. 1 192, 494, 601, 604, 
 
 605. 
 Symonds v. Carter, 235, 238. 
 
 T 
 
 Tabart v. Tipper, 130, 442, I 
 
 574, 575. 
 Tabbe v. Matthews, 179. 
 Tail v. Howard, .vjs. 
 Tait v. Culbertson, 153,501. 
 Talbot's Case, 22:;. 
 Taibutt v. Clark, 323, 629 
 
 Tallent v. Morton, 466. 
 
 Talmadge v. Baker, 334. 
 
 Tamlin v. Hamlin, 240. 
 
 Tapley v. Wainwright, 201. 
 
 Tappan v. Beardsley, 416. 
 
 Tappan v. Wilson, 254, 442. 
 
 Tardrew v. Brook, 471. 
 
 Tarpley v. Blabey, 591. 
 
 Tarleton v. McGawley, 57. 
 
 Tasburgh v. Day, 315. 
 
 Tassan v. Rogers, 205. 
 
 Tate v. Humphrey, 605. 
 
 Taverner v. Little, 504. 
 
 Taylor v. Carpenter, 490. 
 
 Tavlor v. (air, 563. 
 
 Tavlor v. Casey, 191, 223. 
 
 Tavlor v. Church, 131, 248, 263, 415, 490, 
 
 501 
 Tavlor r. t'rowland Gas Co., 259. 
 Taylor v. Hawkins, 320, 418, 426, 484, 
 
 485. 
 Tavlor v. Howe, 28S, 519. 
 Tavlor v. Kneeland, 131, 164, 2< 
 
 521, 5-7, 530, 5:::, :>77. 
 Tavlor v. Moran, 522, 565, 566, 603. 
 Taylor r. Perkins. 242, 
 Tax lor *•. Richardson, ! 
 Taylor v. Robinson, 327, 482, 
 Tavlor v. Rowan, 329. 
 Taylor v. Starkey, 279, 280. 
 Taylor Georgia, 474. 
 
 Taylor r. Stnrgingger, 144. 
 Taylor v. Tally, 238, 294. 
 Taylor v. The State, 518. 
 Teacy w. McEenna, 252 
 
 198, 605, 
 
 621. 
 'i". ague '-. Williams 
 Teall v. 1-Ylton, 361. 
 
 ill- v. < lement, 518, 5! 
 Tempest v. Champers, 2 is, 4 77. I : 
 v. Clement, 17-1. 209, 510, 
 Terry v. Bright, 233,522. 
 Terry v. Hooper, 258, 27''.. 
 Terwilliger v. Wan. Is. '.'7. 291, 29S 
 
 298, 301, - "'2. 
 
 Tettal v. Osborne, 216. 
 The King. Se< J. 
 The People. See state. 
 The People v. Atkins, 250. 
 The People v. Compton, 371. 
 The People v. Crosswell, 71. 129, I 
 The People v. Few. 
 The People v. Freer, 128, 373. 
 The People v. Jerome, 253. 
 The People v. McCann, 1 12. 
 The People v. Rathbun 
 
 The People V. Saxlon, 120. 
 The People v. Sturtevant. 371. 
 i he People v. Townsend, 4S5. 
 The Queen. See Regiaa, 
 The state. So,. State. 
 Thimmelthorp's Case, 241. 
 Thirman r. Mathews, 167, 209.
 
 TABLE OF OASES. 
 
 37 
 
 Thomas v. Axworth, 222. 
 
 Thomas' Case, 288. 
 
 Thomas v. Churton, 861. 
 
 Thomas v. Croswell, 290, 367, 369, 472, 
 
 480, 527, 540, 603. 
 Thomas*. Dunaway, 608, 612, 622, 626. 
 Thomas v. Hughes, 285. 
 Thomas v. Jackson, 276. 
 Thomas v. Piatt, 231. 
 Thomas v. Ramsey, 153, 472. 
 Thompson v. Barkley, 525. 
 Thompson v. Bernard, 171, 107. 
 Thompson v. Bowers, 327, 341, 342, 552, 
 
 603, 621, 629. 
 Thompson v. Grimes, 477, 4S1. 
 Thompson v. Knott, 2 2 7. 
 Thompson v. Shackell, 443, 446. 
 Thompson v. Twenge, 271. 
 Thorley's Case, 68, 69. 
 Thorley v. Kerry, 247. 
 Thorn v. Blanchard, 130, 349, 351, 385. 
 Thorn v. Moser, 129, 150, 417. 
 Thornton v. Stephen, 471. 
 Thrall v. Smiley, 554, 569, 506. 
 Throgmorton v. Davis, 601, 604. 
 Thurston v. Cornell, 120. 
 Tibbetts v. Gooding, 187, 214, 222, 506. 
 Tibbs v. Brown, 499, 598. 
 Tichborne v. Mostyn, 371. 
 Tifft v. Tifft, 157. 
 Tighe v. Cooper, 170, 340, 556. 
 Tilk v. Parsons, 316, 543. 
 Tilley v. Hudson River R. R. Co., 97. 
 Tillotson v. Cheetham, 470, 493, 600, 031. 
 Tilson v. Clark, 552, 558. 
 Timmerson v. Morrison, 259. 
 Tindall v. Moore, 507. 
 Titus v. Follett, 262, 517, 518. 
 Titus v. Sumner, 601, 630. 
 Tobias v. Harland, 162, 306, 317, 512, 
 
 580. 
 Todd v. Bedford, 501. 
 Todd v. Hastings, 267. 
 Todd v. Hawkins. 409. 
 Todd v. Rough, 207, 208. 
 Tomlinson v. Brittlebank, 185, 195, 226, 
 
 270, 481. 
 Tompkins v. Wisener, 166. 
 Tonneman v. DeWitt, 434. 
 Toogood v. Spyring, 320, 408, 418, 485, 
 
 599. 
 Toose Case, 223. 
 Torbett v. Clare, 183, 209, 237. 
 Torrance v. Hurst, 74. 
 Torrey v. Field, 332, 334, 341, 348, 548, 
 
 554. 
 Townsend v. Barker, 240, 289. 
 Tozer v. Mashford, 171, 217, 480 
 Trabue v. Mayo, 171, 326, 492. 598. 
 Traphagen v. Carpenter, 62(3, 629. 
 Treanor v. Donahue, 493. 
 Treat v. Browning, 194, 323, 325, 327, 
 
 571, 629. 
 Tremain v. Cohoes Co., 128. 
 
 Tremaine v. Parker, 425. 
 
 Trenton Ins. Co. v. Perrine, 295, 456, 458, 
 
 542. 
 Tripp v, Thomas, 470. 
 Trottman v. Dunn, :;.",.",. 
 True y. Plumbey, 198, 469, 486, 489, 602. 
 Tinman ><. Taylor, 167. 
 Trumbull v. Gibbons, 138, 142, 146, 493. 
 Trustees &c. v. Utica, <fcc, 57. 
 Tuam v. Robeson, 285. 
 Tupling v. Ward, 468. 
 Turnbull v. Bird, 449. 
 Turner v. Foxall, 275. 
 Turner, Ex-parle, 372. 
 Turner v. Horton, 496. 
 Turner v. Merryweather, 164, 198, 246, 
 
 539. 
 Turner?;. Ogden, 210. 
 Turner v. Pullman, 367. 
 Turner v. Sullivan, 368. 
 Turrill v. Dolloway, 477. 
 Tuson v. Evans, 400, 477, 608. 
 Tut v. Kerton, 240. 
 Tutchin's Case, 536. 
 Tuthill v. Milton, 268, 511. 
 Tuttle v. Bishop, 167, 186, 187. 
 Tutty v. Alewin, 281. 
 Tyler v. Tillotson, 164, 517. 
 
 u 
 
 Underhill v. Taylor, 627. 
 Underbill v. Welton, 233, 234, 298. 
 Underwood v. Parkes, 327, 330. 
 Union Turnpike Co. v. Jenkins, 490. 
 United States v. Cornell, 124. 
 United States v. Morris, 482. 
 United States v. Paddleford, 212. 
 Updegrove v. Zimmerman, 327, 608. 
 Upsheer v. Betts, 335. 
 Upton v. Penfold, 196. 
 Usher v. Severance, 368, 477, 483, 598 
 623. 
 
 V 
 
 Vail v. Owen, 362. 
 
 Vanada's Heirs v. Hopkins, 171. 
 
 Van Aikin v. Caler, 479, 483. 
 
 Van Ankin v. Westfall, 212, 214, 327. 
 
 Van Benschoten v. Yapel, 561. 
 
 Van Cleef v. Lawrence, 142. 
 
 Vanderlip v. Roe, 169, 190, 479. 
 
 Vanderslice v. Newton, 291. 
 
 Van Derveer v. Sutphin, 331, 332, 549, 
 
 560, 603, 623. 
 Vanderzee v. McGregor, 251, 385, 392.
 
 38 
 
 TABLE OF CASES. 
 
 Van Deusen v. Sutpkin, 612. 
 
 Van Hook, Re, 372. 
 
 Van Kenrin v. Griffis, 577. 
 
 Van Ness v. Hamilton, 207, 551, 554. 
 
 Van Pelt v. McGraw, 291. 
 
 Van Rensselaer v. Dole, 214, 223. 
 
 Van Rensselaer v. Jones, 86. 
 
 Van Sandau, Re, 372. 
 
 Van Slyke v. Carpenter, 510. 
 
 Van Spike v. Cleyson, 402. 
 
 Van Steenburgh v. Kortz, 233. 
 
 Van Tassel v. Capron, 270. 
 
 Van Vechten v. Hopkins, 140, 161, 166, 
 
 178, 477, 480, 481, 510, 527, 528, 537, 
 
 538. 
 Van Wyck v. Aspinwall, 386, 392. 
 Van Wyck v. Guthrie, 386, 553. 
 Vaughan v. Havens, 228, 527. 
 Vansse v. Lee, 355. 
 Venard v. Waton, 222. 
 Vessey v. Pike, 201. 331, 622. 
 Vickars v. Wilcoeks, 116. 298, 299. 
 Vick v. Whitfield, 617, 618. 
 Viele v. Gray, 107, 110, 112, 122, 128, 131, 
 
 154, 247, 379, 521. 
 Villers v. Monsley, 242, 248. 
 Vincent v. Dixon, 601. 
 Vinners v. Serell, 625. 
 Vivian's Case, 219, 275. 
 
 w 
 
 W. v. L., 233. 
 
 Wachter v. Quenzer, 333, 476, 562, 566, 
 
 558, 592. 
 Waddington v. Cousins, 691. 
 Waffle v. Dillenback, 487. 
 Wagaman >\ Byers, 211, 215, 482, :>7'.'. 
 Waggonor v. Richmond. 'J2-. 
 Wagner v. Holbrnnner, 327, 328, 621. 
 Wagstaff v. Ashton, 327, 621. 
 Waisted v. Hobnan, R0. 
 Waithmau v. Weal i r, 323. 
 Wakefield v. Smithwiek. 400, I": 1 ,. 
 Wakelin v. Norriss, 479, 487, 488, 626. 
 Waklev v. Cooke, 247, 332. 437,493. 
 Wakley v. Healey, 164, 179, 185, 186, 246, 
 
 282,618, 540, 597. 
 Wakley v. Johnson, 591, 626, 631. 
 Walcotw. Hind, 17". 
 WaHen (Sir L.) v. Mitchell, 172, 211. 269. 
 Wales r. Norton, 200. 
 Walker v. Brogden, 286, 453, 466, 550. 
 Walker ;■. Goe, 300. 349. 
 Walker?'. Winn, 248, 628. 
 Wall v. Hoskins. 207. 213. 
 Wallace v. Carroll, 419. 
 Wallace v. Young. 221, 222. 
 Wallis v. Mease, 196. 
 Wahnsley «. Russell. 210. 
 
 Walrath v. Nellis, 167, 228, 229. 
 
 Walsh v. Henderson, 52.}. 
 
 Walsh v. The State, 522. 
 
 Walters v. Beaver, 188. 
 
 Walters v. Mace, 574, 578. 
 
 Walters v. Nettleton, 498. 
 
 Walters v. Snioot, 334, 615. 
 
 Walton v. Singleton, 185, 191, 234, 238. 
 
 Wandsworth v. Bentlev, 437. 
 
 Ward v. Clark, 214, 22*9, 523. 
 
 Ward v. Colvhan, 528. 
 
 Ward v. Smith. 138, 402. 
 
 Ward v. Thorne, 220. 
 
 Ward v. Weeks, 148, 301. 
 
 Warden v. Bailey, 362. 
 
 Ware v. Clowney, - 
 
 Ware v. Curtledge, 519, - 
 
 Ware v. Johnson, 68, 101. 
 
 Warrnan v. Hine, 481. 
 
 Warrnuth ?•. Cramer, 519. 
 
 Warne v. Chadwell, 605. 
 
 Warner v. Paine, 319, 353, 355. 
 
 Warr v. Jolly, 398. 
 
 Warren v. Norman, 242. 
 
 Warren v. Warren, 398, 583. 
 
 Wartnaby, lie, 646. 
 
 Washburn v. Cooke, 125, 412. 413. 
 Wason, Ex-parte, 
 
 Wason v. Walter, 7:;, 374. 
 
 Waterhouse v. Hatfield, 
 
 Waters v. Guthrie. 
 
 Waters v. Jones, 1*7, 222. 
 
 Watkin ;•. Hall, 323, 331, 333, 506, I 
 
 Watson v. Bennett, 456. 
 
 Wataon r. Buck, 323. 
 
 V. ataon v. Churchill, 619. 
 ». Hampton, 21 | 
 
 Wataon v. McCarthy, 242. 
 
 Watson v. Moore, 342, 605, 622, 681. 
 
 A .\ atson r. Music, 528, ">66. 
 
 d v. Nicholas, 171. 197, 527, 584. 
 
 Watson v. Reynolds, 309, 311, 315, 821. 
 
 Watson v. Trask, 
 
 Waft, - | 616. 
 
 Watts v. Fraser, 149, 489, 501, 6» 
 
 Watts v. Ore. Dleaf, 
 
 Watts r. Greenlee, 143, 215, 233, 238, 573, 
 
 529. 
 Weatberhead v. Armitn-je, 241, 27"-'. 
 Weatherstone v. Hawkins 818, 426. 
 
 • r r. Devendorf, 362. 
 Weaver v. Hemlrich. I 2!'. 
 
 Weaver /•. Lloyd. 200, 832, 474. 553. 
 Weaver r. Ward, 434. 
 Webb v. (Veil, 152, 158. 
 Webb v. Nicholls, 280. 
 Webb >: Poore, 223. 
 Weblin -■. M. yer, 167, 223. 
 Weed v. Bibbins, 237, .".27. 
 Weed v. Poster, 217. 
 Weekerly v. Geyer, 124. 
 Weir v. llnss, 154,158, 164, 52 
 
 587.
 
 TABLE OF CASES. 
 
 39 
 
 Wells v. Com. Mut. Ins. Co., 114. 
 
 Wells v. Webber, 586. 
 
 Welsh v. Eakle, 477. 
 
 Wenman v. Ash, 138, 318, 322, 389, 484, 
 
 485. 
 Wesley v. Bennett, 182. 
 West v. Smith, 540. 
 West v. Walker, 622. 
 Weston v. Dobniet, 358. 
 Weston v. Lumley, 550. 
 Weston v. Worden, 580. 
 Westwood v. Cowne, 542. 
 Wetherbee v. Marsh, 623. 
 Wetherell v. Clerkson, 543. 
 Wetsel v. Lennon, 516. 
 Wharton v. Brook, 257, 282. 
 Wharton v. Clover, 282. 
 Wheatcraft v. Mouselev, 466. 
 Wheatley v. Wallis, 225. 
 Wheeler v. Haines, 537, 564. 
 Wheeler v. Robb, 549, 567. 
 Wheeler v. Shields, 323. 
 Whitaker v. Bradley, 104, 258, 273, 274. 
 Whitaker v. Carter, 335, 376, 514, 616. 
 Whitaker v. Freeman, 522, 549, 617. 
 White v. Carroll, 282, 354. 
 White v. Delavan, 165, 177. 
 White v. Harwood, 499. 
 White v. Merritt, 307. 
 White v. Nellis, 107. 
 White v. Nicholls, 74, 130, 131, 319, 321, 
 
 485, 521, 608. 
 White v. Sayward, 166, 595. 
 White v. Tyrrell, 610. 
 Whitehead v. Fownes, 282. 
 Whitley v. Adams, 397, 465. 
 Whitfield v. South East R. R. Co., 460. 
 Whiting v. Smith, 523, 567. 
 Whitlocke v. Musgrove, 163. 
 Whittemore v. Ware, 547. 
 Whittington v. Gladwin, 258, 273, 274. 
 Wickham v. Baker, 465, 470. 
 Wicks v. Macnamara, 469. 
 Wicks v. Shepherd, 294. 
 Widrig v. Oyer, 207, 235. 
 Wierback v. Trone, 215. 
 Wilborn v. Odell, 475, 566, 568, 569. 
 Wilby v. Elston, 215, 234, 291, 613. 
 Wilcox v. Edwards, 215. 
 Wilcox v. Webb, 422. 
 Wiley v. Campbell, 212, 570. 
 Wilks' Case, 197. 
 WilletU>. Harmer, 613, 614. 
 Williams v. Beaumont, 459. 
 Williams v. Bickerton, 193. 
 Williams v. Breedon, 490. 
 Williams v. Bryant, 233, 576. 
 Williams v. Cooper, 580. 
 Williams v. Cowley, 171. 
 AVilliams v. Gardiner, 192. 
 Williams v. Greenwade, 233, 598, 622. 
 Williams v. Harrison, 566, 601. 
 Williams v. Hill, 293. 
 Williams v. lloldridge, 233, 242, 499. 
 
 Williams v. Karnes, 215, 236, 246,247. 
 Williams v. Minor, 565, 570, 605, 612, 615, 
 
 621, 623. 
 Williams v. Spears, 514. 
 Williams v. Stott, 174, 240, 534, 574. 
 Willis v. Shepherd, 289. 
 Willmet v. Harmer, 613. 
 Willymote v. Welton, 227. 
 Wilmot v. McCabe, 467. 
 Wilner v. Hold, 223. 
 Wilson v. Beighler, 332, 505, 549. 
 Wilson v. Cloud, 232. 
 Wilson?/. Collins, 361. 
 Wilson v. Crow, 221. 
 Wilson v. Fitch, 553. 
 
 Wilson v. Goit, 97, 107, 293,298,489,602. 
 Wilson v. Hamilton, 164. 
 Wilson v. Harding, 230. 
 Wilson v. Mayor of New York, 362. 
 Wilson v. McKenzie, 146. 
 Wilson v. Mitchell, 576. 
 Wilson v. Natrous, 567. 
 Wilson v. Nations, 338, 608. 
 Wilson v. Xoonan, 269, 290. 
 Wilson v. Oliphant, 232. 
 Wilson v. Reed, 381, 450, 487. 
 Wilson v. Robbins, 233, 234, 238. 
 Wilson v. Robinson, 608, 609. 
 Wilson v. Runyon, 233, 541. 
 Wilson v. Stephenson, 402. 
 Wilson v. Tatum, 215. 
 Winchell v. Strong, 626. 
 Winter v. Donovan, 475, 565, 586. 
 Winter v. Sumvalt, 239. 
 Wiseman v. Wiseman, 537. 
 Witcher's Case, 240, 294. 
 Witcher v. Richmond, 515, 516. 
 Wogan v. Somerville, 569. 
 Wolbreight v. Baumgarten, 516. 
 Wolcott v. Hull, 617. 
 Wolf v. Rodifer, 566. 
 Wolmer v. Latimer, 624. 
 Wonderly v. Nokes, 613. 
 Wonson v. Sayward, 225. 
 Wood v. Adams, 578. 
 Wood v. Brown, 277, 523, 524. 
 Wood v. Gunston, 358, 493. 
 W^ood v. Jones, 470. 
 Wood v. Pringle, 472. 
 Wood v. Scott, 514, 516. 
 Wood v. Southwick, 231, 614. 
 Woodard v. Dowling, 245, 289. 
 Woodbeck v. Keller, 358, 613, 614. 
 Woodburn v. Miller, 247, 248, 590, 621. 
 Woodbury v. Sackrider, ISO. 
 Woodbury v. Thompson, 234, 293. ' 
 AVoodcock v. Houldsworth, 583. 
 Woodfall's Case, 129, 158. 
 Woodgate v. Ridout, 368, 450. 
 Woodruff v Richardson, 342. 
 Woodruff v. Vaughan, 511. 
 Woodruff v. Wooley, 289. 
 Woodward v. Andrews, 550. 
 Woodward v. Cotton, 459.
 
 40 
 
 TABLE OF CASES. 
 
 "Woodward v. Dowsing, 245, 289. 
 
 "Woodward v. Lander, 385. 
 
 Woolcott v. Goodrich, 198. 
 
 Woolcott v. Hall, 328. 
 
 Woolnotk v. Meadows, 167, 185, 198, 824. 
 
 Woolsey v. Judd, 92. 
 
 Wormuth v. Cramer, 524, 621. 
 
 "Worth v. Butler, 146, 191, 233, 527. 
 
 "Wren v. Weild, 316, 349, 469. 
 
 Wright v. Britton, 585. 
 
 Wright v. Clements, 522, 523, 525. 
 
 Wright v. Lindsay, 214, 349. 
 
 Wright v. Moorhouse, 287. 
 
 Wright v. Orient Mut. Ins. Co. 114. 
 
 Wright v. Paige, 140, 167, 18S, 207, 203, 
 
 237, 593. 
 Wright v. Schroeder, 597, 598, 618. 
 Wright v. Sullivan, 551. 
 Wright v. Woodgate, 321, 400, 599, 6<>7. 
 Wyant v. Smith, 214, 563. 
 Wyatt v. Cocks, 580. 
 Wyatt v. Gore, 138, 398, 586. 
 
 Yardley v. Ellis, 221', 27!'. 
 
 Yardrew v. Brook, 435. 
 
 Yates v. Lansing, 361. 
 
 Yates Re, 372. 
 
 Yearley v. Ashley, 236. 
 
 Yeates v. Reed, iU, 593, 625. 
 
 York's Case, 123. 
 
 York v. Cecil, 221. 
 
 York v. Pease, 359, 475, 607. 
 
 Young v. Bennett, 617, 624. 
 
 Young v. McCrae, 292, 306, 307. 
 
 Young v. Miller, 207, 208, 237, 246. 
 
 Young v. Ransom, 63. 
 
 Young v. Slemons, 624. 
 
 Yrisarri v. Clement, 260, 491, 495, 5S7, 
 
 596. 
 Yundt v. Yundt, 5 - 
 
 Zeigw. Orts, 519, 523, 524. 
 Zenobia v. Axtell, 524. 
 v. Moore, 616.
 
 TABLE 
 
 OF REFERENCES TO REPORTS, WITHOUT THE NAME 
 OF THE CASE PREFIXED. 
 
 (The references are to the page.) 
 
 Aleyn, 187. 
 
 Barnwell & Creswell, 123, 124. 
 
 Bingham, 274. 
 
 Bligh, 471. 
 
 Bosanquet & Puller, 433. 
 
 Bridgman, 342. 
 
 Brownlow, 186, 312, 402. 
 
 Bulstrode, 168, 197, 274, 299. 
 
 Burrow, 128. 
 
 Caine's Reports, 143. 
 
 Carthew, 171, 199. 
 
 Clark & Finnelly, 123. 
 
 Clayton, 113. 
 
 Coke's Reports, 63, 156, 170, 176, 
 
 220. 
 Croke, Carolus, 231, 233, 509, 517, 
 
 519, 537. 
 Croke, Elizabeth, 139, 179, 186, 237. 
 
 519, 537, 566. 
 Croke, Jacobus, 168, 170, 180, 186, 
 
 231, 436, 519, 543. 
 Dalton, 236, 242, 269, 280. 
 Dow & Clark, 363. 
 English Common Law Reports, 124. 
 Freeman, 101, 277. 
 Godbold, 186, 216. 
 Goldsborough, 519, 537. 
 Hammond, 272. 
 Hardress, 187. 
 Hetley, 282. 
 Hill, 580, 631. 
 Hobart, 170, 186, 229. 
 
 Holt's Reports, 233, 344. 
 
 Howard's Practice Reports, 551, 618. 
 
 Hutton, 342. 
 
 Jenkin's Century, 167, 223, 314. 
 
 Keble, 233. 
 
 Levins, 61, 230, 384. 
 
 Lofft. 273, 274. 
 
 Lord Raymond, 73, 168, 220, 543. 
 
 Metcalf, 153. 
 
 Modern, 150, 154, 187, 233, 274, 280, 
 
 283, 329, 536, 537, 543. 
 Moor, 156, 158, 176, 323, 521. 
 Noy, 101, 227, 519, 521. 
 Owen, 521. 
 
 Phillip's Ecclesiastical Cases, 101. 
 Robinson's Practice, 348. 
 Rolle, 98, 123, 181 , 510, 538. 
 Salkeld, 344. 
 Saunders, fa, 130, 138, 139, 141 , 
 
 143, 391, 498, 521. 
 Selwyn, 500. 
 
 Sergeant and Rawle, 124. 
 Shaw & Dun, 363. 
 Siderfin, 58, 222, 233, 244, 543. 
 Strange, 69, 123, 221. 
 Style, 187, 314, 521. 
 Term Reports, 127, 566. 
 Ventris, 258, 543. 
 Wendell, 269. 
 Wilson & Shaw, 363. 
 Wilson, 329. 
 Yelverton, 176, 436.
 
 TA B LE 
 
 OF WORKS REFERRED TO, EXCLUSIVE OF THE 
 
 REPORTS, ARRANGED GENERALLY BY 
 
 THE NAME OF THE AUTHOR. 
 
 (The references are to the page.) 
 
 American Encyclopedia, 73. 
 
 Addison on Wrong?, 74. 
 
 Albany Law Journal, 143. 
 
 Addison on Contracts, 433. 
 
 Austin's Lectures on Jurisprudence, 38, 93, 99, 105, 110, 118, 119, 121, 122, 
 
 123, 124, 126. 
 Anthon's Law Student, 105. 
 American Law Journal, 81. 
 American Quarterly Eeview, 127. 
 Anecdotes of Imagination, 113. 
 American Leading Cases, 222, 246. 
 Areopagitica — a Plea for Unlicensed Printing, 438. 
 Burke — Letter to his Son, 57. 
 
 Blackstone's Commentaries, 62, 69, 88, 102, 123, 176, 329, 330. 
 Bishop's Criminal Procedure, 152. 
 Bishop on Criminal Law, 59, 99, 149. 
 Bishop on Marriage and Divorce, 63. 
 Bouvier's Law Dictionary, 59, 62, 73, 123. 124, 129. 
 Bacon's Abridgment, 60, 68, 101, 154, 158, 214, 231, 402. 
 Bacon's Introduction to his Reading on the Statute of Uses, 66. 
 Bacon's Use of the Laws, 88. 
 Bacon's Charge against Lumsden, 105. 
 Bacon's Maxims, 129. 
 Baron's War (The), 69. 
 Broom's Commentaries, 68. 
 Broom's Maxims, 1 27. 
 Bolingbroke Lord, Letter of, 69. 
 Burns' Ecclesiastical Law, 377, 402. 
 Burnt Njal, The Story of, 68.
 
 44 TABLE OF WOEKS 
 
 Borthwick on Libel, 69, 71, 98, 104, 121, 129, 153, 169, 171, 172, 176, 204, 
 
 205, 329, 330, 349, 370. 
 Bun-ill's Law Dictionary, 73, 76, 123, 127. 
 Burrill on Presumptive Evidence, 112. 
 Burton, 66. 
 
 Blackwood's Magazine, 204. 
 Book of Entries, 71. 
 Barrington on Penal Statutes, 176. 
 Bacon (Roger), Works of, 98. 
 Bosworth's Anglo-Saxon Dictionary, 98. 
 Bentham's Principles of Morals and Legislation, 118. 
 Bennett & Hurd's Leading Criminal Cases, 482. 
 Boston Monthly Law Reporter, 196. 
 Buller, N. P., 186. 
 
 Code of Procedure, New, York, 464,466, 470, 472, 501, 546, 547, 561,565, 579. 
 Contempts, Inquiry into Doctrine concerning, 373. 
 Campbell's (Lord) Lives of the Chancellors, 113, 137, 344, 434, 471, 501. 
 Campbell's (Lord) Lives of the Chief Justices, 91, 345, 378, 482. 
 Code Criminal, 76, 176. 
 Capgrave's Chronicle of England, 60. 
 Coke's Institutes, 61, 63. 
 Calendar of State Papers, 62. 
 Chitty's General Practice, 68, 122. 
 Cousin, 73. 
 
 Constitution of United States, 344, 438. 
 Comyn's Digest, 57, 73, 130, 155, 170, 205, 210, 217. 870. 
 Cowen & Hills Notes, 81, 614. 
 Chitty on Pleading, 88, 558. 
 
 Cooke on Defamation, 126. 165, 247, 258, 299, 338, 528, 594. 
 Doria & McCreas' Law of Bankruptcy, 405. 
 Domat's Civil Law, 82, 247, 347, 502. 
 Drewry on Injunctions, 91. 
 Dugdale's Origincs Juridicales, 95. 
 Disney's Ancient Laws against Immoralities, 95. 
 Doddridge's English Lawyer, 128. 
 Doctor and Student, 128. 
 Danver's Abridgment, 139. 
 Dauske Erobring, of England, &c, 62, 97. 
 Dunlap's Admiralty Practice, 346. 
 English Parliament, Ordinances of, 70. 
 English Pleader. 71. 
 
 English Record Commissioners' Publications, 95, 99, 105. 
 Encyclopedia Britannica, 65, 69, 73. 
 Ecclesiastical Commissioners' Report, 101. 
 Ethica Christina, 98. 
 Edinburgh Review, 76, 88, 117, 219. 
 Edwards' Notes, 614. 
 Edwards on the Will, 118.
 
 REFERRED TO. 45 
 
 Essai Bur L'Histoire de la Civilization eu Russie, 68. 
 
 F inch's Law, 70. 
 
 Forsyth's History of Trial by Jury, 98, 113, 114, 482. 
 
 Fortescue, De Laudibus Legurn Angliee, 98, 128. 
 
 Foss' Judges of England, 137. 
 
 Finlayson's Common Law Procedure Act, 505. 
 
 Fourth Estate (The), 438. 
 
 Federalist (The), 438. 
 
 Fraser's Magazine, 370. 
 
 George on Libel, 71, 73, 130, 155, 156, 177, 245 . 
 
 Gurdon's History of Court Baron and Court Leet, 9 "5. 
 
 Greenleaf on Evidence, 125, 169, 433, 474, 490, 550, 602. 
 
 Heineccius, 143. 
 
 Howell's State Trials, 91, 113, 129. 
 
 Hudson on the Star Chamber, 91. 
 
 Hawkin's Pleas of the Crown, 73, 92, 212, 373. 
 
 Hilliard on Torts, 60, 75, 123, 143, 153, 154. 
 
 Highmore on Bail, 92. 
 
 Hallam's History of the Middle Ages, 98. 
 
 Historical Law Tracts, 104. 
 
 Hazard on the Will, 118, 119. 
 
 Hales' History of the Common Law, 243. 
 
 Hale's Pleas of the Crown, 123. 
 
 Hazlett's Essay on Wills, 137. 
 
 Holt on Libel, 65, 67, 69, 75, 83, 95, 99, 124, 131, 139, 140. 142, 146, 149, 150, 
 
 154, 155, 156, 158, 163, 165, 168, 169, 171, 176, 248, 25'), 266, 285, 370, 
 
 376, 434, 438. 
 Holt's Nisi Prius, 358. 
 
 Heard on Libel, 69, 107, 152, 1G2, 178, 185, 195, 201, 208. 211. 214. 22G. 
 Hume's History of England, 343. 
 House of Lords, Journals of, 129. 
 Jacob's Law Dictionary, 58, 62, 64, 98, 104. 
 Jones on Libel, 130. 
 
 Johnson's Institutes of the Civil Law of Spain, 95. 
 Justinian Institutes, 60. 
 Kent's Commentaries, 88, 129, 130, 329. 
 Locke on the Conduct of the Understanding, 128, 176. 
 Liberty of the Press, Essay on, 438. 
 Leigh's Nisi Prius, 245. 
 
 Lewis on Authority in Matters of Opinion, 99. 
 London Gazette, 438. 
 
 Libels, Digest of the Law concerning, 69. 
 Life and Letters of Joseph Story, 99. 
 London Law Magazine, 102, 112. 
 London Quarterly Review, 136, 137, 449. 474. 
 Loft, Capel, Essay on Libels, 73. 
 Lieber on Civil Liberty, 76, 89, 364. 
 Lambard Saxon Laws, 95.
 
 46 TABLE OF WORKS 
 
 Lappenburg's History of England, 98. 
 
 Leges Gul. Oonq., 10 j. 
 
 Lindley's Studies of Jurisprudence, 122. 
 
 Laws, see Statutes. 
 
 London Times, 346. 
 
 London Athenaeum, 122. 
 
 Law Times, 351. 
 
 London Law Reporter, 247, 259. 
 
 London Quarterly Review, 136, 137, 449, 474. 
 
 Mayne on Damages, 489, 491, 493, 542. 
 
 Mirrour of Justices, 60, 61. 
 
 Milton John, Areopagitica, 438. 
 
 Mackenzie's Narrative, 70. 
 
 May's Law and Practice in Parliament, 346. 
 
 Maunder, 73. 
 
 Monthly Law Reporter, New Series, 435. 
 
 Mence on Libel, 62, 75, 88, 95, 97, 99, 132, 438. 
 
 Montford, Simon De, Miracles of, 61, 98. 
 
 Minshai, or Guide into the Tongues, 73. 
 
 Maine, Inquiry into the Origin of Legal Ideas, 83, 105. 
 
 Michaelis' Commentary on the Law of Moses, 95. 
 
 March on the Action of Slander, 96, 373. 
 
 McNally, Criminal Evidence, 105. 
 
 Mills' Logic, 125. 
 
 Massachusetts, Sketches of Judicial History of, 95, 
 
 Norske Folkes Historic, 62. 
 
 North British Review, 62. 
 
 Nicholson, Prefat. ad. Leg. Anglo Sax. 95. 
 
 New York, Constitution of, 344, 439. 
 
 Parry — Lord Campbell's Libel Act, 17";. 
 
 Pitcairn's Criminal Trials in Scotland, 95. 
 
 Petit, Leges Attica, 95. 
 
 Pascal's Letters, 98. 
 
 Pomeroy, Introduction to Municipal Law, 96. 
 
 Palgrave's Rise, &c, of the English Commonwealth, 98. 
 
 Palgrave's History of Normandy and of England, 99. 
 
 Political Songs of England, 136, 137. 
 
 Political Ballads, 113. 
 
 Pope's Satires, 61. 
 
 Pall Mall Gazette, 347. 
 
 Parsons on Contract, 259. 
 
 Parliamentary History, 329. 
 
 Percy Anecdotes, 434. 
 
 Price's Points of Practice, 466. 
 
 Redfield on Wills, 247. 
 
 Raes' Medical Jurisprudence, 434. 
 
 Rastell's Entries, 142. 
 
 Russell on Crimes, 73, 123.
 
 REFERRED TO. 47 
 
 Reeves' History of the Common Law, 93, 98, 170. 
 
 Rolles' Abridgment, 98, 170, 173, 214, 321, 224, 228, 231, 233. 
 
 Report of Criminal Law Commissioners, 482. 
 
 Report of House of Lords on Libel, 72, 103, 123, 329, 346. 
 
 Report to House of Commons on Publication of Printed Papers, 346. 
 
 Report on Leprosy, 243. 
 
 Report of House of Lords on Contagious Diseases, 244. 
 
 Robinson's Practice, 348. 
 
 Reading on the Statute Law, 375. 
 
 Reg. Aberd., 60. 
 
 Reg. Gen. H. T., 612. 
 
 Ridley's Civil Law, 60, 62. 
 
 Sedgewick on Damages, 400. 
 
 Somers Lord, on Grand Juries, 62. 
 
 Saunders on Pleading and Evidence, 210, 263. 
 
 Selwyn's Nisi Prius, 176, 330, 500. 
 
 Stephens' Ecclesiastical Statutes, 62, 101. 
 
 State Trials, 91, 113, 129. 
 
 State Papers, Calender of, 62. 
 
 Stephens on Pleading, 92, 98. 
 
 Stephen's Criminal Law, 111, 112, 118, 121, 130, 132, 145. 
 
 Sullivan's Lectures, 93. 
 
 Stiernhook de Jure Vetusto Sucomum, &c, 95. 
 
 Saltern, De Antic. Leg. Brit., 95. 
 
 Sharswood's Blackstone's Commentaries, 98. 
 
 Shaw's Digest, 414. 
 
 Sheppard's Action on the case for Slander, 58, 511. 
 
 Smith's Leading Cases, 299. 
 
 Spencer, 60. 
 
 Shakespeare, 60, 247, 434. 
 
 Smith, Sidney, Elementary Sketches of Moral Philosophy, 120. 
 
 Story on the Constitution, 438, 442. 
 
 Story on Contracts, 259. 
 
 Story on Agency, 455. 
 
 Story on Equity Jurisprudence, 92. 
 
 Swinburn on Wills, 247. 
 
 Starkie on Evidence, 127, 139, 582, 617. 
 
 Starkie on Slander. 92, 95, 103, 116, 117, 123, 125, 137, 138, 139, 140, 142, 
 146, 149, 150, 154, 155, 158, 160, 165, 1G6, 167, 168, 171, 175, 176, 
 180, 184, 185, 187, 198, 204, 205, 211, 212, 214, 215, 217, 220, 221, 
 230, 233, 234, 239, 246, 258, 259, 260, 266, 290, 311, 327, 328, 329, 
 330, 338, 341, 348, 365, 366, 373, 433, 464, 477, 496, 499, 511, 512, 
 513, 517, 519, 527, 537, 553, 591. 
 
 Shelley, Memoir of, 370. 
 
 Solicitor's Journal, 373. 
 
 Statutes of, Arkansas, 76. 
 California, 76. 
 Illinois, 76.
 
 48 TABLE OF WOBKS EEFEEEED TO. 
 
 Statutes of Iowa, 76. 
 
 Georgia, 76. 
 
 Maine, 76. 
 
 Massachusetts, 549. 
 
 New York, 92, 206, 343. 344, 346, 356, 804, 371, 439, 440. 456, 
 404. 400, 498, 499, 547, and see GocU of Procedure. 
 
 England, 60, 69, 95, 101, 103. 343. 340. 350. 435. 436, 440, 464. 
 465, 467, 496, 500, 505, 626, 040. 
 
 Hotchkiss' Digest, 76. 
 
 Prince's Digest, 76. 
 
 Cobb's Digest. 70. 
 Thibaut, System of Pandekten Rechts, 83. 
 Taylor on Evidence, 024. 
 Trench, Dean, 70. 
 
 Tremayne's Pleas of the Crown. 99. 
 Tacitus De Mor. Germ., 95. 
 
 Thomas, History of Printing in America, 95. 32 s . 
 Tomlin's Law Dictionary, 71. 
 Tindal's History of England, 438. 
 Trials per Pais, 579. 
 
 Trials at Nisi Prius, Introduction to the Law relative to, 60. 
 Finnerty's, 74. 
 David Lee Cliilds, 74. 
 Gibbs ». Arthur, 373. 
 Upper Canada Law Journal, X. S., 625. 
 United States. Constitution 
 Yoorhies' Code, 470, 549. 
 Vidian's Entries, 58. 
 Valentine's Corporation Manual. 95. 
 
 Viner's Abridgment, 59, 92, 98, 101, 13 63, 164, 105. Hi:'. 172, 1-7. 
 
 193, 194, 197, 201, 216, 217, 220, 22 . . 23d. 287, 
 
 239, 240, 242. 244. 247, 266, 268, 2;.'. 274, . 
 283, 314, 319. :;00, 499. 
 
 Walford on Parties, 498. 
 Wood's Civil Law, 58, 104, 107, 4 
 Wood's Institutes, 58, L04, 
 Westminster Review, 68, ~0, 70, 245. 
 Whewell, The Mechanical Luc lid, 76. 
 Woodeson's Lectures, 70. 
 Whittier, 438. 
 
 Wilkin's Leges Anglo-Sax., 95. 
 Wilkin's Political Ballads, 113. 
 Wright, England under the House of Banover, 113. 
 Willard's Equity Jurisprudence, 304. 
 Whateley's Logic, 219. 
 Yates' Pleadings and Forms, 307. 558.
 
 WORKS OF REFERENCE. 
 
 [For the convenience of those who may desire further information on the subject 
 of Slander and Libel, we subjoin the following list of publications, to which reference 
 may be made.] 
 
 Treatise on Libel. By Sir Thomas Mallett, Judge of the Queen's Bench, 
 England. (Referred to by Finnerty when brought up for Judgment.) 
 
 Ax Essay on the Liberty op the Press, chiefly as it respects personal 
 slander. By Bishop Hayter. 
 
 [In Marvin's Legal Bibliography a treatise with a precisely similar title 
 is attributed to John Asgill. I know not if it is the same work.] 
 
 " Another Letter to Mr. Almon on Matters of Libel." — " The posi- 
 tion that it is not material whether the libel be true or false, or whether 
 the person that made it be of good or ill fame, is a proposition of truth 
 and the provision of a sanctuary for weak and wicked men, who may be 
 employed as ministers or judges." 
 
 The People. Dedicated to Sir Francis Burdett, Bart. By an unlettered 
 man. Printed for the Author, and sold by M. Jones, 5 Newgate Street, 
 London. 1811. 
 
 [This work professes to contain an analysis of Pitt's system, and to 
 show the great danger of the theory, with regard to libels. To trace 
 that theory to its origin, and that it is directly contrary to the re- 
 formed religion and the New Testament.] 
 
 Law of Libel (On the), with strictures on the self-styled Constitutional 
 Society. By John Hunt. 8vo. London, 1823. 
 
 Erskine's Speech in the case of the King v. "Williams, for publishing Paine's 
 Age of Reason ; with Mr. Kvd's reply and Lord Kenyon's charge to the 
 Jury. — Trials, vol. xviii., iV". T. State Library. 
 
 The Englishman's Right; or, a Dialogue between a Barrister at Law and a 
 Juryman, concerning the antiquity, use, power, and duty of Jurors, by 
 the Law of England. Extract in appendix to trial of .John Lambert for 
 libel. — Trials, vol. xv., N. Y. State Library. 
 
 Juryman's Touchstone (The) ; or, A full refutation of Lord Mansfield's 
 opinion in Crown Libels. 8vo. London, 1784. 
 
 A Letter on Libels and Warrants. (Referred to, 1 Biographical Anec- 
 dotes, by Almon, p. 226.) 
 4 

 
 50 WORKS OF REFERENCE. 
 
 Masset's History of England. Vol. 2. As to Dowdeswell's Bill to make 
 juries judges of the Law in libel cases. 
 
 Speech of Sir Robert Peel, in vindication of the House of Commons 
 claim to publish its proceedings. London, 1837. 
 
 A Letter to Lord Langdale on the recent proceedings of the House of 
 Commons on the subject of privilege. By Thomas Pemberton, M. P. 
 2d edit. London, 1837. 
 
 Observations on the Rights and Duttes of Juries in trials for Libels, 
 with remarks on the origin and nature of the Law of Libels. By J. 
 Towers. 8vo. Dublin, 1785. 
 
 Free Speech. An oration by Daniel "Webster, A. D. 1814. 
 
 Lecture on the Law of Libel. By James T. Brady, Esq. 
 
 An Apology for the Freedom of the Press. By the Rev. Mr. Robert 
 Hall. London, 1821. 
 
 BOLLAN ON THE RlGHT OF EVERT MAN TO THLNK AND SPEAK FREELV. 
 
 (Referred to Quiney's Massachusetts Reports, p. 270.) 
 
 Of Slander and Flattery. A sermon by Jeremy Taylor. 
 
 Erskine's Speeches on subjects connected with the Liberty of the Press. 
 
 " Discussion of the Law of Libel as at present received, in which its 
 authenticity is examined; with incidental observations on the Legal 
 effect of Precedent and Authority." Pamphlet. London, 1785. As- 
 cribed to J. TV". Adair. 
 
 Skene on Crimes. 25th chapter of title 2 — Of famous Libels and Seditious 
 Speeches. 
 
 Tract on Libel. By Lord Bacon. Mentioned in the memoirs of T. Hollis, 
 p. 169. 
 
 [It is referred to in a note to T. Holt White's edition of Milton's Areo- 
 pagitica, and the annotator adds: '* My inquiries after this posthu- 
 mous publication have been fruitless."' Query. If the same tract as 
 one entitled " Certain observations upon a Libel. By Lord Bacon, 
 A. D. 1592," to be found in several editions of Bacon's works.] 
 
 Lord Sidmouth's Circular respecting libels. 
 
 Earl Gray's Speech on the above circular. House of Lords, 1817. 
 
 Tendal's Continuation of Rapin's History of England as to Pulteney's Bill 
 to prohibit the circulation of unlicensed newspapers. 
 
 Domestic Annals of Scotland. By Chambers. Vol. 1, p. 126. 
 
 Dodslet's Annual Register. A. D. 1792. 
 
 Mr. Stammer's Pamphlet on the case of Rex >'. D'Israeli. 
 
 [I have been unable to find a copv. It is referred to 1 Townsend's 
 Modern State Trials. 260.] 
 
 Bacon's Abridgment, tit. Slander, Courts Ecclesiastical.
 
 WOKKS OF REFERENCE. 51 
 
 Siieppard's Abridgment, tit. Libel. 
 
 Blue Laws of Connecticut. 
 
 Otto Thesaurus. Vols. 3, 4. 
 
 Coote's Ecclesiastical Courts, tit. Defamation. 
 
 Burn's Ecclesiastical Law, tit. Defamation. 
 
 Quinct's Massachusetts Reports, A. D. 1761 to A. D. 1777. See pages 
 
 260, 267, 270, 278, 309— Charge as to law of libel. 
 
 Page 245 — As to right of the court to commit for libel. 
 
 Page 561 — Discussion on the right of juries to judge of law and fact. 
 Essai Historique sur la Liberte d'ecrere chez les ancienes et au rnoyen 
 
 age, sur la liberte de la press, &c, &c. Par G. Peignot. 
 Encyclopedia Britannica, supplement ; art. Liberty of the Press. 
 Jacob's Law Dictionary, titles Justification, Court of Piepowders, Copia 
 
 Libelli Deliberanda, Scandal. 
 Viner's Abridgment, tit. Good Behaviour. 
 
 McDougall's Case, 3 Documentary History of New York, 534; cited 10 Ab- 
 bott's Practice Reports, 170; and see id. p. 169. 
 Freedom op Wit and Humor. By Lord Shaftesbury. A. D. 1709. 
 Considerations on the Law of Libel as relating to publications on the 
 
 subject of religion. By John Search. Ridgway, 1833. 
 
 [This pamphlet is referred to 11 London Law Magazine, 444. John 
 Search is a fictitious name.] 
 
 The Craftsman, No. 281, vol. viii., p. 213. 
 
 [Contains the reasons why the Commons would not agree to the clause 
 which revived the old printing act, delivered at a conference with 
 the Lords, 1695.] 
 
 A Digest of the Law Concerning Libels containing all the resolutions 
 in the books on the subject, and many MS. cases, &c, by a gentleman of 
 the Inner Temple. 4to. London, 1765. 
 
 Reasons Against the Intended Bill for laying restraint on the Liberty of 
 the Press. London, 1792. 
 
 Essay on the Liberty of the Press. Richmond, 1803. 
 
 London Quarterly Review. April, 1865. Libel and freedom of the 
 Press. 
 
 Edinburg Review. Review of George on Libel. Abuses of the Press, vol. 
 22. Review of Holt on Libel, 2d edition, vol. 27. French Law of Libel, 
 vol. 32. Libels on Christianity, vol. 58. 
 
 Westminster Review. Review of Mence on libel, vol. 3. 
 
 London Law Magazine. Application of Libel, vol. 2. The Law of Libel, 
 vol. 11. Communicating slanderous words in answer to inquiries, vol. 
 34. Presumptions of Law and presumptive evidence, vol. 6. The 
 province of the Judge distinguished from the province of the jury, 
 vol. 12.
 
 52 WORKS OF REFERENCE. 
 
 Solicitor's Journal. The Law of Libel, vol. 8. Libels on Professional 
 
 Men, vol. 9. Law of Libel, vol. 10. 
 City Hall Reporter. Slander, p. 1G0. 
 Cornhill Magazine, January, 18G7. 
 Eclectic Review, March, 1867. 
 
 Knickerbocker Magazine. Scandal and Envy, vol. 33. 
 Christian Examiner, vols. 16, 17. 
 
 " Discipline, vol. 3. 
 
 Western Law Journal, vol. 2. N. S. 
 American Encyclopedia, art. Libel. 
 American Law Journal. (Hall, Baltimore), vol. 1. Commonwealth v. 
 
 Duane, Commonwealth v. Cobbett, State of Maryland v. Irvine, Carr v. 
 
 Hood, Van Vechten v. Hopkins. Vol. 3. The People v. Frothingham, 
 
 Libel on General Hamilton. Vol. 4. Rex v. Creavy. 
 American Quarterly Review, vol. 5, (A. D. 1829), contains a Review of 
 
 Holt's Law of Libel. 
 American Lancet. Report of Libel Trial in New York, A. D. 1831. 
 Trial of John Stockdale for a libel on the House of Commons, in the 
 
 Court of King's Bench in 1789 — with an argument in support of the 
 
 Rights of Juries — London, 1790. 
 The Trial of Theophilus Swift for a Libel on the Fellows of the Dublin 
 
 University, and the Trial of the Rev. Dr. Burrows for a libel on Theo- 
 philus Swift, published together with notes by Theophilus Swift. 
 
 [The result of these trials was that both Swift and Burrows found 
 themselves inmates of the same jail. Each for libelling the other. 
 See Barrington's Memoirs.] 
 
 Report of the Maharaj Libel case, Bombay, 1862, as to which see West- 
 minster Review, January, 1864. 
 
 Pamphlet Trials, of Joseph T. Buckingham for Libel on John N. Maffit ; 
 of David Lee Childs for Libel on John Keys ; of Daniel Isaac Eaton for 
 Libel entitled " Politics for the People, or Hogs-wash;" of Dr. New- 
 man ; of Aston Williams ; of Francis S. Beattie ; of William Hone. 
 
 Among the Papyri unearthed from the ruins of Herculaneum is an essay on 
 Freedom of Speech, by Philodemus. It forms part of a work entitled 
 " Philodemi Uepi ' PnropiKfjs, ex Herculanensi Papyro restitutuit, LatinC- 
 vertit, et Dissertationibus auxit. [E. Gros, Parisiis : 1840. Publisher.] 
 
 Observations upon the Mode of prosecuting for libel according to the 
 laws of England. By Borthwick, London, 1830. 
 
 [This is not the work referred to in the following pages as Borthwick 
 on Libel.] 
 
 Memorials of London, and London Life in the 13th, 14th and 15th Cen- 
 turies, refers to Conviction for making a false accusation and a protec- 
 tion from the king alleged (12 Richard II, A. D. 1388). Punishment of 
 the Pillory and Whetstone for circulating lies (48 Edward III, A. D.
 
 WORKS OF REFERENCE. 53 
 
 1371). Punishment of the Thewe inflicted upon a common scold (49 
 Edward III, A. D. 1373.) Punishment for practicing the art of magic, 
 and for defamation (3 Richard III, A. D. 1348). Punishment of im- 
 prisonment for reviling the Mayor (6 Richard II, A. D. 1352). 
 
 Considerations on the respective rights of judge and jury, particularly 
 upon trials for libels occasioned by an expected motion of the Hon. C. 
 J. Fox. London, 2d ed., 1791. John Bowles. 
 
 Two Letters to the Hon. C. J. Fox, occasioned by his late motion in the 
 House of Commons, respecting libels and suggesting the alarming con- 
 sequences likely to ensue, if the bill now before the legislature should 
 pass into a law. By John Bowles. London, 1792. 
 
 Dialogue between a country farmer and a juryman, on the subject of Libels. 
 London, 1770. 
 
 Parliamentary Debates on the statute (32 Geo. Ill, c. 60) for removing 
 doubts respecting the functions of juries in cases of libel. London, 
 1792. 
 
 The Whole Proceedings on the trial, &c, of Thomas Paine for a libel 
 entitled " The Rights of Man." London, 1792. 
 
 Sandford's Penal Codes of Europe, pp. 70, 100, 105, 10G, 116. Prussian 
 Code, ch. 13, part II. Verletzungen der Ehre, translated of Slander and 
 Libel. 
 
 A Case of Libel. By Thomas Moore. 
 
 Collard Royer. Discussion upon the Law of the Press. 
 
 Haydn's Dictionary of Dates, Title, Trials. 
 
 Report of the Trial of Dr. Samuel Thompson, founder of the Thornp- 
 sonian practice for libel in warning the public against the imposition of 
 Paine D. Badger, as a Thompsonian Physician. Boston. 
 
 Cooley on Constitutional Construction. Chapter xii. "Liberty of 
 Speech and of the Press." 
 
 The Law relating to Literature and Art, the law relating to Newspapers, 
 and the law of Libel. By John Shortt, LL.B. London, 1871. 
 
 The Medical Practitioner's Legal Guide. London, 1870. [Chapter v, 
 p. 43. Character. Defamation.]
 
 PAET I. 
 
 THE LAW 
 
 SLANDER AND LIBEL.
 
 SLANDER AND LIBEL. 
 
 CHAPTER I. 
 
 INTRODUCTORY. 
 
 Language as a means of effecting injury — Slander — Libel 
 — Defamation — Eedress — The Laiv of Libel — Object 
 in view — Division of subject — Attempts to define 
 Libel. 
 
 § 1. Among the means which one individual may em- 
 ploy to affect another or to affect society in general are 
 sounds and signs. 1 Language, in so far as it is the medium 
 for communicating or exciting ideas, consists of a system 
 of sounds and signs, and is the chief among the sounds 
 and signs which affect individuals or society in general. 2 
 
 1 As ringing bells, firing gnns, beating drums, clapping hands, hooting, (fee, see 
 Martin v. Nutkin, 2 P. Wms. 266 ; Soltan v. De Held, 2 Sim. N. S. 133 ; 16 Jur. 326 ; 
 First Bap. Ch. v. Sch. R. R. Co. 5 Barb. 79 ; Tarleton v. McGawley, Peake's Cas. 205 ; 
 Moshier v. Utica & Sch. R. R. Co., 8 Barb. 427 ; Cole v. Fisher, 11 Mass. 137 ; Loubz 
 v. Hafner, 1 Dev. 1 85 ; Gregory v. Brunswick, 6 M. and G. 953 ; Trustees, <fec, v. 
 Utica, &c, 6 Barb. 313 ; Davidson v. Isham, 1 Stock. 186. Noise of pupils in schools, 
 Com. Dig. Act. on case, c. 294 ; noise in manufacturing steam boilers, Fish v. Dodge, 
 4 Denio, 311 ; barking dogs, Brill v. Flagler, 23 Wend. 354. In Lansing v. Smith, 8 
 Cow. 146, Sutherland, J., compares the action for a nuisance to an action of slander 
 for words not actionable in themselves. 
 
 i There is nothing in nature but may be an instrument of mischief (L'd Chief J. 
 Pratt, in Chapman v. Pickersgill, 2 Wils. 145). 
 
 " A very great part of the mischiefs which vex the world arise from words." 
 (Burke in a letter to his son.) " Among the abounding iniquities of this age, the ini- 
 2
 
 58 EFFECT OF LANGUAGE. [Cll. I. 
 
 Language expressed in sound is oral language or speech. 
 Language expressed in signs is written language, or writ- 
 
 quity of the tongue, that little member, set on fire by hell, is not least. And among 
 the evils of the tongue is there any more pernicious and deadly, and yet more com- 
 mon and epidemical than backbiting and slander ? And hence it is, I have been en- 
 couraged to engage in this work, -which is nothing else but a naked and methodical 
 collection of the remedies prescribed by the law against this malady." (Preface to 
 Sheppard on Slander.) 
 
 Words are contained under the general expression of a human act, as also signs 
 which have the same effect with word3. (Wood's Civil Law, 28.) A fraudulent rep- 
 resentation is in effect a wrongful action (Sharp v. Mayor of X. Y. 25 How. Pra. 
 R. 396) scribere est agere. (The People v. Rathbun, 21 Wend. 509, 540.) On the trial 
 of Algernon Sidney, the prisoner inquired, And is writing an act ? to which Lord 
 Jefferies replied, Yes it is agere. 
 
 Language is not the only mode by which reputation may be injured. " Scandal 
 sifnifies a report or rumor or an action whereby one is affronted in public." (Jacob's 
 Law Diet.) Thus, in Brewer v. Day, ] 1 M. and W 625, one cause of special damage 
 was, that defendants, by causing plaintiffs goods to be seized on an unfounded claim 
 for debt, occasioned his customers to think him insolvent ; and in trespass for break- 
 ing and entering plaintiff's dwelling, upon false charge of having stolen property con- 
 cealed therein, per quod she was injured in her credit, it was held that the jury might 
 give damages as aggravated by the false charge (Bracegirdle v. Orford, 2 Maule and 
 Selw. 77. See Jeffries v. Duncombe, 1 1 East, 226 ; Spall v. Massey, 2 Stark. Cas. 
 559.) As to injury to reputation by act, see Beaumont v. Reeve, 8 AdoL and Ell. 483 ; 
 and 1 Siderfin, 375, where one Cooper brought an action upon the case against 
 TVitham and his wife, for that the wife maliciously intending to marry him, did often 
 affirm that she was sole and unmarried, and importuned et strenue inquisivit the 
 plaintiff to marry her ; to which affirmation he gave credit, and married ber. when 
 in ado she was wife of the defendant ; so that the plaintiff was much troubled in 
 mind, and put to great charges, and damnified in his reputation. He had a verdict, 
 but no judgment; for by .Twisden, J., the action lies not, because the thing here done 
 is felony; no more than if a servant be killed, the master cannot have an action per 
 quod servitium amisit, quod curia concessit ; see also Vidian's Entries, where is a form 
 of declaration for saying : Regard brothers went to a house which was a brothel and 
 ought to be torn down, special damage that the house was torn down. As to defa- 
 mation by deed, see Of Libels : An Institute of the Laws of England, by Thomas 
 Wood, LL. D., 1720. Where a banker having sufficient funds in hand belonging to 
 his customer, dishonors that customer's check, he is liable to an action for damages. 
 (Robinson v. Marchant, 1 Q. B. 918; and see Marzetti v. Williams, 1 B. <t A. 415.) 
 And where a notary protested a note for non-payment, without having previously 
 presented the note to and demanded payment of the maker, he was held liable in an 
 action for the damage thereby occasioned to the reputation of the maker (MS.) 
 
 Language, however licentious and abusive, is not a trespass (Adams v. Rivers, 11 
 Barb. 397), but may constitute an imprisonment (Homer v. Battyn, Puller's X. P. 62; 
 Pike v. Hanson, 9 X. H. Rep. 491); and cruelt}- (Durant v. Durant, 1 Hagg. Ecc. R. 
 769; Lockwood v. Lockwood, 2 Curteis' Ecc. R. 2S1, cited and approved Bihin ;•. Bi- 
 hin, 17 Abb. Pr. Rep. 26). A recognizance to keep the peace is not forfeited by re-
 
 §§ 2, 3.] EFFECT OF LANGUAGE. 59 
 
 ing and effigy. By writing * is intended to be understood, 
 every means of symbolizing language by alphabetic char- 
 acters, with every kind of implement, as pen, pencil, 
 graver, type ; with every kind of pigment, as ink, lead, 
 chalk; on any kind of substance, as paper, parchment, 
 linen, wood, copper, steel, stone, or on any wall or post. 2 
 And by effigy being intended to be understood every 
 other means of communicating or exciting ideas other than 
 by speech or by writing. Effigy, therefore, includes pic- 
 tures, statues, gestures. 
 
 § 2. The effect of language may be beneficial or injuri- 
 ous. If injurious, the injury may amount to a wrong, en- 
 titling the party wronged to redress by law. The desig- 
 nations of the wrong and of its remedy and of the wrong 
 doer differ according to the means employed to effect the 
 wrong. 
 
 § 3. One may be so injuriously affected by speech as 
 to be what is termed slandered ; and, in that event, the 
 speech so affecting him is called slander 3 or a slander, and 
 the speaker is denominated a slanderer. 
 
 proachful words (4 Bl. Com. oh. xviii). As to speech being the foundation of a 
 criminal prosecution, see 2 Bishop on Crim. Law, § 813. 
 
 If a man menaces my tenants at will, of life and member, per quod they depart 
 from their tenures, an action upon the case will lie against him, but the threatening 
 without their departure is no cause of action. (9 II. 7, 8, Vin. Ab. Actions Case, N. c. 
 21.) 
 
 Action lies for threatening workmen to maim and prosecute them, whereby the 
 master lost the selling of his goods, the men not daring to go on with their work. 
 (Garret v. Taylor, Cro. J. 567 pi. 4, a. d. 1621 ; Skinner v. Kitch, Law Rep. 2 Q. B. 
 393; see, however, Ashley v. Harrison, 1 Esp. 48 and post, § 201.) 
 
 1 Writing includes printing (Sannderson v. Jackson, 2 Bos. and Pul. 238; Hen 
 shaw v. Foster, Pick. 318) and marks with a lead pencil (Geary v. Physic, 5 B. and 
 C. 238 ; Classon v. Bailey, 14 Johns. 484). See Bouvier's Law Diet. tit. Effigy. 
 
 2 Austin v. Culpepper, Skin. 123, Show. 314. 
 
 3 Slander is defaming a man in his reputation by speaking or writing words 
 which affect his life, office or trade; or which tend to his loss of preferment in mar
 
 60 LIBEL. [Ch. I. 
 
 § 4. One may be so injuriously affected by writing or 
 effigy as to be what is termed libeled ; and, in that event, 
 the writing or effigy so affecting him is called libel or a 
 libel, and he who puts forth such writing or effigy (the 
 publisher or venter) is denominated a libeler, 1 " one whose 
 
 riage or service, or to his disinheritance, or which occasion any particular damage. 
 (Introduction to the Law relative to trials at Nisi Prius. By a Learned Judge [Lord 
 Bathurst]. Vol. I, p. 3.) 
 
 Slander is the imputation: 1. Of some temporal offence 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 to perform an 
 office or employment of profit, or want of integrity in an office of honor. 4. Words 
 prejudicing a person in his lucrative — possession [profession], or trade. 5. Any 
 untrue words occasioning actual damage. (1 Hilliard on Torts, ch. vii. § 3.) 
 
 Slander is defined to be " the publishing of words in writing, or by speaking, by 
 reason of which the person to whom they relate becomes liable to suffer some cor- 
 poreal punishment, or to sustain some damage." (Bac. Abr.) 
 
 " Slander being an unwritten or unprinted libel, and libel a written or printed 
 slander." (1 Hilliard on Torts, ch. vii. § 2.) 
 
 The word slander, as used in former times, seems to have had a meaning different 
 to that in which it is now used. Thus : " But because some are wrongfully slandered 
 [accused), King Henry I ordained that none should be arrested or imprisoned for a 
 slander (accusation) of mortal offence, before he was thereof indicted by the oaths of 
 honest men before those who had authority to take such indictments." (Mirrour of 
 Justices, ch. xi, § 22.) " In this same year the mysseles (lepers) thorow-oute Cristen- 
 dom were slaundered that they had made covenant with Sarasenes for to poison all 
 Christen men." (Capgrave's Chronicle of England, p. 186.) 
 
 In a document addressed by the Dean and Chapter of Aberdeen to Bishop Gor- 
 don, dated January 5, 1558, is the following: 
 
 " Imprimis, that my Lord Bishop cause the kirkmen within his diocie to reform 
 themselves in all their slanderous manner of living, and to remove their open concu- 
 bines, as well great as small. Secundo, that his Lordship will be so good as to show 
 edificative example — in special in removing and discharging himself of the company 
 of the gentlewoman by whom he is greatly slandered ; without the which be done, di- 
 verse that are partners say they cannot accept counsel and correction of him which 
 will not correct himself," &c, &c. — Reg. Aberd., lxi. 
 
 If any slanderously charge another with any false crime (Ridley's Civil Law, 31) ; 
 and in the Statute, 3 Edw. I, ch. xxxiv, none are|to publish false news whereby slander 
 may grow betweeen the king and his people. 
 
 Mis-say, to slander, to speak ill. (Spencer.) 
 " I would not, * * 
 
 Have you so slander any moment's leisure 
 As to give words or talk with the Lord Hamlet." (Shakespeare.) 
 
 1 " Libeler — he who shall, to the infamy of another, write, compose, or publish a 
 book, song, or fable, or maliciously procure any of those acts to be done, is guilty of 
 a lib J." (Just. Inst.)
 
 §§ 5-7.] SLANDER. 61 
 
 heart is more dark and base than that of an assassin, or 
 than his who commits a midnight arson." 1 
 
 § 5. So, too, formerly in England, one might "be so 
 injuriously affected by language, whether in the form of 
 speech, writing, or effigy, as to be what was termed 
 defamed ; 2 in which event the lano-uasfe so affecting him 
 was called defamation, and he froni whom the lano-uao-e 
 
 7 DO 
 
 proceeded was denominated a defamer. 
 
 § 6. Again, by means of language may be effected a 
 wrong, termed "a malicious prosecution," as also the 
 wrong, termed " slander of title." Neither to the authors 
 of these wrongs nor to the parties affected has any descrip- 
 tive appellation been assigned. 
 
 § 7. Besides slander, libel, defamation, malicious pros- 
 ecution and slander of title, language is the means by 
 
 " The distinction between the satirist and the libeler is, that the one speaks of 
 the species, the other of the individual ; the one holds the glass to thousands in their 
 closets, that they may contemplate the deformity, and thereby endeavor to reduce it, 
 and thus by private mortification avoid public shame. Thus the satirist privately 
 corrects the fault, like a parent, while the libeler mangles the individual like an exe- 
 cutioner." (Joseph Andrews, vol. II, p. 5.) 
 
 " And indeed there is not in the world a greater error than that which fools are 
 apt to fall into, and knaves with good reason, to encourage, the mistaking a satirist for 
 a libeler." (Pope, Anon. Satires and Epistles — Advertisement.) 
 
 " The early English satirists were mighty in their vocation against the lawyers, 
 the regular and secular clergy, and the more eminent professors. The political 
 ballad-mongers aimed higher. They stoutly supported Simon de Montfort against 
 Henry the Third. This support was probably the occasion for the statute of 12*75, 
 ' against slanderous reports or tales to cause discord betwixt king and people.' " 
 (See The Barons' War, <fcc, by W. H. Blaauw, M. A. ; The Miracles of Simon de 
 Montfort, Camden Soc. Pub.) 
 
 A Barrator is a mover of suits and quarrels in courts ***** by 
 spreading false rumors and reports to raise discord among neighbors. (1 Coke's Inst. 
 368.) Lampooner, see 3 Lev. 248. 
 
 1 Oswald's Case, 1 Dall. 329. 
 
 5 Defamed seems formerly to have been used in the sense of charged, thus in the 
 forms of indictment referred to in " The Mirrour of Justices," we find it so used ; as
 
 62 SLANDER. [Ch. I. 
 
 which may be effected, at least in England, the offences 
 called treason, 1 heresy, sedition, blasphemy, profanity, 
 scandalum magnatum, calumny, scolding, brawling, men- 
 aces, deceit, perjury, and many more. 2 
 
 § 8. Slander is a private wrong or tort, cognizable by 
 the common law, the remedy for which is a civil action 
 formerly known as an " action on the case for words," and 
 now as an action or the action of or for slander. 3 
 
 thus: " I say. Sebounre there is defamed by good people of the sin of heresy." &c. 
 and in Lord Soraers' Tract on Grand Juries, " the constitution intrusts such inquisi- 
 tions in the hands of persons of understanding * * * that might suffer no man 
 to be falsely accused or defamed." " Thieves openly defamed and known." (4 Bl. 
 Com. ch. xxii.) "There is a fame against Mr. Spencer for not burying Edward 
 Merrick as a Christian ought to be." (Calendar of State Papers, Domestic Series, of 
 the reign of Charles I, 1633-1634. Edited by John Bruce.) 
 
 "To diffame is, as Bartol saith, to utter reproachful speeches of another with an 
 intent to raise up an ill fame of him and therefore himself expresseth the act itself in 
 these words: Diffamare est in mala fama ponere. Albeit diffamations properly con- 
 sist iu words, yet may they also be done by WTiting, as by diffamatory libels, and 
 also by deeds as by signs and gestures of reproach, for these no less show the mali- 
 cious mind of the diffamer than words do." (Ridley's Civil Law, 339.) 
 
 1 In the United States there must be some overt act to constitute the act of treason. 
 (Bouvier's Law Diet. tit. Treason.) 
 
 8 Scolding often repeated to the disturbance of the neighborhood makes it a 
 nuisance, always punishable at the leet and therefore indictable. (The Queen v. 
 Foxby, 6 Mod. 145.) As to Brawling, see Stephen's Ecclesiastical Statutes, p. 336, 
 and copious notes ; and see Jacob's Law Diet. tit. CuckinstooL In Denmark there 
 was a species of libel called Bersoglisvisur or free-speaking song. "When King Mag- 
 nus (say about A. D. 1040) gave dissatisfaction to his subjects, a meeting was held at 
 which lots were drawn as to which one of those assembled should address one of 
 these songs to the King. See Det Norske Folkes Historie, 3 vols., Christiania, 
 1852-5; also Den Danske Erobring of England og Norrnandict, Copenhagen, 1863, 
 and North British Review, Nov., 1863. 
 
 8 Slander is not like libel, an indictable offence. (Bailey v. Dean, 5 Barb. 297.) 
 Nor is a single precedent of any criminal proceeding for unwritten imputations upon 
 the characters of individuals to be found, except in cases of high treason, * * 
 and it must have been as constituting rather an offence against the government, than 
 an injury to the individual, and being therefore seditious that words reflecting on a 
 magistrate in the immediate execution of his office were for the first time in the reign 
 of Queen Anne held to be indictable. (Reg. v. Langiey, 2 Ld. Raym. 1060; Holt R. 
 654.) But I am not aware that Mr. Starkie has adverted to this case, or to the 
 doctrine which is laid down in it. (1 Mence on Libel, 90.)
 
 §§ 9-11.] DEFAMATION. 63 
 
 § 9. Libel is both a public wrong or crime aud a pri- 
 vate wrong or tort, cognizable by the common law. The 
 remedy for the public wrong is by indictment or criminal 
 information. The remedy for the private wrong is a civil 
 action, now known as an action or the action of or for libel. 
 
 § 10. Defamation was an ecclesiastical offence, cogniz- 
 able only in the ecclesiastical courts, by a proceeding in 
 such courts. 1 
 
 § 11. The redress sought in the actions of slander and 
 libel is a pecuniary compensation called damages for the 
 injury sustained by the party complaining, to be recovered 
 against the party complained against, and is intended 
 solely for the benefit of the complainant f on the other 
 hand, the proceeding in the ecclesiastical court was in 
 theory at least, one solely for the benefit of the party 
 complained against. It was to awaken him to a sense of 
 the sin he had committed, and cause him to do penance 
 therefor pro salute animce. In a proceeding for defama- 
 tion no damages were nor could be awarded to the party 
 defamed. The defamer might be censured, compelled to 
 recant the defamation, to perform penance and pay costs, 
 and for disobedience to the court's decree be excommuni- 
 cated. Beyond this the ecclesiastical court had no power. 3 
 
 1 Suits in ecclesiastical courts for defamation were abolished by statutes 18 & 19 
 Vict. ch. xli. 
 
 2 "Action for slander is to recover damages for words spoken of a person who is 
 thereby injured in his reputation, and for words spoken of a person which affect his 
 life, office, profession, or trade, or which tend to his loss, or occasion any particular 
 or special damage to him." (Onslow v. Home, 3 Wilson, 177.) 
 
 3 The ecclesiastical law is part of the English common law. (Reg. v. Millis, 10 CI 
 and F. 534, 671; and see Catterallv. Catterall, 1 Robertson, 580; Bisliop on Marriage 
 and Divorce, § 9.) But has no status in the State of New York. (Young v. Ransom, 
 31 Barb. 49, 60.) 
 
 The power of the ecclesiastical court is the infliction of penance pro salute anhnoz 
 and awarding costs, but not damages. (4 Co. 20, 2 Inst. 492.) The sentence of an
 
 64 LAW OF LIBEL. [Ch. L 
 
 § 12. The law applicable to the wrongs here termed 
 slander and libel is sometimes designated the law of libel ; 
 sometimes the law of defamation ; and sometimes the law 
 of slander and libel. For no better reason than that it is 
 the one most in use we shall adopt the term law of libel. 
 
 § 13. The term law of libel, as generally understood, 
 comprises the law as applicable to nearly all the wrongs of 
 which may be effected by means of language. Our pur- 
 pose, however, is not to consider the whole of the law of 
 libel so understood, but so much of it only as applies to 
 slander and to libel as a private wrong. 
 
 § 14. As it is sometimes only that words which affect 
 another amount to a wrong, we propose to ascertain, if we 
 can, what are the rules by which to test in any particular 
 instance of words affecting another, whether they do or do 
 not constitute a wrong, what kind of wrong, and what is 
 its appropriate remedy. In the execution of this purpose 
 we desire not merely to collect, epitomize and classify 
 under appropriate titles the reported adjudications, but to 
 probe the subject to its core and unfold the principles 
 which it involves ; to show not only what has been de- 
 cided, but the principles of those decisions : to lay down, 
 if we can, such rules as will enable one under any given 
 state of circumstances to determine when a wrong, as 
 slander or libel, has occurred, when a remedy may prop- 
 erly be sought and how it may be pursued and obtained. 
 
 ecclesiastical court in a proceeding for defamation has its counterpart in the Scotch 
 Law under the name of Palinode. 
 
 As to suits in spiritual or eccelesiastical courts they are for the reformation of 
 manners or for punishing of heresy; defamation, laying violent hands on a clerk and 
 the like. * * * Thiugs that properly belong to these jurisdictions are matri- 
 monial and testamentary and defamatory words for which no actioD lies at law, as 
 for calling one adulterer, fornicator, usurer, or the like. (Jacob's Law Diet., tit. 
 Courts Ecclesiastical.) The courts of Piepowder had jurisdiction of certain actions 
 for slander. (Jacob's Law Diet., tit. Court of Piepowders.)
 
 § 15.] DIFFICULTIES. 65 
 
 To accomplish this aim we shall advert to some elementary 
 principles, the relevancy of which may not at once be ap- 
 parent, but the reason for which will be observed as we 
 proceed, and without a reference to which we should in 
 vain attempt to make ourselves or our subject understood. 
 
 § 15. A thorough investigation into elementary prin- 
 ciples seems peculiarly necessaiy in treating on the law of 
 libel, because it is a branch of the law in which, perhaps, 
 more than any other, principles have, from various causes, 
 been most subject to perversion by undue influences, have 
 been less scientifically treated and more superficially con- 
 sidered. The law of libel has been denounced as vague, 
 fluctuating and incomprehensible. Of the decisions on 
 the subject many are conflicting, more are scarcely recon- 
 cilable, and the reasoning in support of all is, with very 
 few exceptions, more or less weak, obscure, and unsatisfac- 
 tory. It has almost been claimed or conceded that there 
 is something so subtle in the principles of the law of libel 
 as to elude detection, and the law of libel has come to be 
 regarded as a parasitical growth on the main body of the 
 law, presenting features so exceptional as to render inap- 
 plicable those general principles which govern other 
 branches of legal science. 1 It will be our endeavor to 
 show that properly understood there is nothing excep- 
 tional in the wrongs called slander and libel, nor in the 
 legal principles applicable to these wrongs, that these 
 wrongs are governed by the same principles which apply 
 to all other wrongs, and that there is nothing in the law 
 of libel itself which should render it less easy to compre- 
 hend than any other division of jurisprudence. 
 
 1 A noted peculiarity of the law of libel is its vagueness and uncertainty. 
 (Encyc. Brit., voce Libel.) Holt, writing in 1816, says: "It is indeed in the very 
 nature of the subject (The Law of Libel) that it is extremely difficult to clear it of 
 those popular conceits and of that vagueness of generality which adhere to it as a 
 question of political discussion. (Holt on Libel, Preface.)
 
 66 DIFFICULTIES. [Ch. I. 
 
 § 16. While profoundly sensible of the difficulty prop- 
 erly to execute this, our self-imposed task, and of our 
 comparative inability to do justice to the subject, we 
 nevertheless natter ourselves that we shall be able to lay 
 before our readers a more systematic outline of the prin- 
 ciples of the law of libel than any which has hitherto been 
 offered or attempted. 1 
 
 § 17. Chief among the difficulties to be encountered is 
 the combating many of the existing theories and ideas on 
 the subject, most of them coming down to us with the 
 prestige of high authority, hallowed by time and all of 
 them received for law. We esteem it an error and a mis- 
 fortune that among text writers on legal subjects there 
 has been such a reverence for precedent, such an unques- 
 tioned following the one of the other, 2 so little attempt at 
 enlarged and connected views of their subjects in their 
 principles untrammeled by precedent, rendering text 
 books collections of materials for essays rather than essays. 
 For ourselves, we brave being deemed presumptuous, in 
 the hope that we may be useful, and where, after the 
 many years of patient reflection we have bestowed upon 
 our subject, we have arrived at any conclusion which 
 conflicts with existing ideas or decisions, we shall be deter- 
 
 1 "Though I could not be ignorant either of the difficulty of the matter which he 
 that taketh in hand shall soon find, or much less of my own inability, which I had 
 continual sense and feeling of, yet because I had more means of absolution than the 
 younger sort, and more leisure than the greater sort, I did think it not impossible to 
 work some profitable effect, the rather because where aa inferior wit is bent aud con- 
 versant upon one subject, he shall many times, with patience and meditation, dis- 
 solve and undo many knots, which a greater wit, distracted with many matters, 
 would rather cut in two than unknit ; and at the least, if my invention or judgment 
 be too barren or too weak, yet, by the benefit of other arts, I did hope to dispose or 
 digest the authorities and opinions * * .in such order and method, as they should 
 take light one from another, though they took no light from me." (Bacon's Introduc- 
 tion to his Reading on the Statute of Uses.) 
 
 2 Making new books, as apothecaries make new mixtures by pouring only out of 
 one vessel into another. Burton, repeated by Sterne.
 
 § 18.] DIVISION OF SUBJECT. 67 
 
 red neither by the antiquity of the precedent, nor the high 
 position of its author, nor its indorsers, from expressing 
 our dissent. Besides a general and connected view of the 
 subject, we shall study to present a faithful record of all 
 the adjudged decisions and dicta, and as we really have 
 no pet theory to maintain, and are influenced solely by 
 the desire to elicit the true principles on which the law 
 concerning our subject is based, we shall be especially 
 careful throughout to distinguish from received authori- 
 ties what are merely our inferences or suggestions ; and we 
 promise our readers most religiously to abstain from any 
 intentional garbling of authority, or the willful withhold- 
 ing of any decision or dictum in order to support any 
 particular view or theory. The meager attempts hereto- 
 fore made to reduce the subject into any systematic form 
 will oblige us, to a considerable extent, to treat the sub- 
 ject as res nova. 
 
 § 18. We have divided our subject into two principal 
 divisions — slander and libel. Slander and libel have this 
 in common, that each may be, and usually is, effected by 
 means of language. As we have described them, their 
 distinguishing feature of difference is, that the one is 
 effected by oral language, the other by written language. 
 To language in writing is attributed in most cases a greater 
 capacity for injury than is attributed to language spoken 
 or speech, so that language which, if spoken, gives no 
 right to redress, may, if reduced to writing, give a cause 
 of action. 1 It is proper to say that the broad distinction 
 
 2 A distinction was very early taken in the Roman law between slander spoken 
 and written, and the injuria verbalis was deemed to constitute a much lower degree 
 of injury than the malum carmen and famoaiis libellus. (Holt on Libel, 21.) Holt 
 wrote in 1816. He says, p. 225: "It has lately become a question whether there 
 be any difference between written and unwritten slander ;" and then he refers to 
 Bradley v. Methuen, 2 Ford's MS. 78, in which Lord Hardwicke is reported to have 
 said that courts do make a distinction " between words written and bare words."
 
 68 DIVISION OF SUBJECT. [Ch. I. 
 
 we have drawn between slander and libel is not one uni- 
 versally adopted ; * indeed it is not the one, in our judg- 
 ment, the most logically correct ; but we adopt it partly in 
 
 In Thorley's case, 4 Taunt. 355, the question was, Whether an action would lie for 
 words viritten, when such action would not lie for them if spoken? " For myself," 
 said Chief Justice Mansfield, "I cannot, upon principle, make any difference between 
 words written (as to the right which arises out of them to bring an action) and words 
 spoken ; but the difference has been recognized by the courts for at least a century 
 backwards, and has been established by Lords Hardwicke, Hale, Holt, and others." 
 
 This species of defamation [libel] is usually called written scandal, and hereby re- 
 ceives an aggravation in that it is presumed to have been entered upon with coolness 
 and deliberation, and to continue longer, and to propagate wider and farther than any 
 other scandal. (Bac. Abr.) 
 
 The distinction between verbal and written slander proceeds upon the principle 
 that words are often spoken in heat upon sudden provocations, and are fleeting and 
 soon forgotten, and therefore less likely to be permanently injurious; while written 
 slander is more deliberate and malicious, more capable of circulation in distant 
 places, and consequently more likely to be permanently injurious. (1 Chit. Gen. 
 Pr. 45.) 
 
 The great distinctioJi between libel and slander is, " that from a libel damage is 
 always implied by law, whereas some kinds of slander only are actionable without 
 proof of special damage." (Broom's Comm. p. 513 [762].) 
 
 "Words written and published may be actionable which, if spoken, would not be 
 so without special damage. But they must be such as, in the common estimation of 
 mankind, are calculated to reflect shame and disgrace upon the person concerning 
 whom they are written, or hold him up as an object of hatred, ridicule and contempt. 
 (Fonville v. Nease, Dudley, S. C. 303.) As to what is libelous, and as to the distinc- 
 tion between libel and slander. (Rice v. Simmons, 2 Harring. 417 ; Layton v. Harris, 
 3 Harring. 406.) Vox emissa void, litera scripta manet. (Beebev. Bank of N. Y., 1 
 Johns. 529, 571.) 
 
 There was something superstitious in the horror with which the Icelanders re- 
 garded a libel, and no offence among them was more surely or bloodily avenged than 
 the publication of satirical verses, or the setting up of a Nid — that is, an insulting or 
 indecent figure, or a horse's head on a pole on the lands of another. (See " The 
 Story of Burnt Njal ; or, Life in Iceland at the End of the Tenth Century." By 
 George W. Dasent, D. C. S.) It is a marked trait in the character of the Russian 
 people to " feel corporeal punishment less sensibly than a verbal insult. This idea 
 has a religious foundation ; a good Christian cannot admit that the punishment of 
 fustigation which has been inflicted on the Saviour of huinanitj- can be for a man a 
 stain of infamy ; he believes that a verbal insult affects the immortal part of man, 
 whereas a blow only produces suffering in the least noble part of his being." (Essai 
 sar V Histoire de la Civilization en Russie. Par Ni colas de Gcrebtzoff. Paris, 185S, 
 vol. II, p. 575. Westminster Review, January, 1864 — Art. Russia.) 
 
 1 It does not apply to the wrong called slander of title, nor to language affecting 
 one in his calling or office, nor to proceedings in the ecclesiastical courts. As to 
 this last, see Ware v. Johnson, 2 Sir Geo. Lee's Cases in Eccles. Courts, 103. Holt
 
 § 18.] DIVISION OF SUBJECT. 69 
 
 deference to a very prevalent use of the terms slander and 
 libel, to distinguish between an injury by speech and an 
 injury by writing, and partly because by this arrangement 
 one word suffices to denote to which particular branch of 
 the subject we refer. In our opinion, the more logical ar- 
 rangement would be to take slander or defamation as the 
 generic term, and then indicate the division by the epi- 
 thets oral and written. There are, however, objections to 
 this division — among others, that it omits effigy. An- 
 other mode of dividing the subject is to take libel for the 
 generic term, and then distinguish the kind by the epi- 
 thets defamatory, seditious, &c} This is objectionable on 
 
 says, p. 211 : " It is evident, moreover, from the authorities, that words written of a 
 man tending to disparage him in his profession will support an action, although the 
 same words when spoken will not;" and he refers to King v. Lake, Hardres, 471 ; but 
 that case does not authorize any such doctrine. 
 
 1 Blackstone speaks of blasphemous, immoral, treasonable, schismatical, seditious 
 or scandalous libels. (4 Bl. Comm. ch. xi.) And Lord BoliDgbroke, writing to 
 Queen Anne, Oct. 17th, 1*711, says: "I have discovered the author of another scan- 
 dalous libel, who will be in custody this afternoon; he will make the thirteenth I have 
 seized and the fifteenth I have found out." In Borthwick on Libel, 25, note, it is 
 6aid: His Lordship seems to have retained the adjective [infamous] in reference to 
 the usual meaning of the word libel, when not qualified, in the law of Scotland, which 
 is the same [meaning] as it still has in the spiritual courts of England. It would 
 appear, however, that, even in the courts of common law in England, there was 
 formerly some doubt whether libel, or libellus, by itself, was the proper technical ex- 
 pression. This we learn from a note (a. p. 4) in the " Digest of the Law Concerning 
 Libels." "Lord Chief Justice Raymond," says the author, "in Curl's case, said that 
 he did not think that libellus was always to be taken as a technical word, and asked 
 whether action would lie de quodam libello intilulat — the New Testament — and 
 whether the spiritual court did not proceed upon a libel ? Mr. Justice Fortescue 
 said a libel was a technical word at common law. Mr. Justice Rej-nolds said that 
 libellus did not, ex vi termini, import defamation, but was to be governed by the epi- 
 thet added to it." (2 Stra. 791.) 
 
 In Thorley's case, 4 Taunt. 355, the expression " written and unwritten slander " 
 is used. 
 
 Mr. Heard, in his treatise on libel and slander, § 8, uses the phrase " actionable 
 libel." This implies that there may be a libel which is not actionable. He also 
 uses the phrase printed libel. In the index to the same treatise is the phrase " iron- 
 ical libel." 
 
 The Encyclopaedia Britannica, voce Libel, uses the phrase " defamatory libel ;" and 
 the statute, 6 and 7 Vict., ch. xcvi, uses the term " defamatory words and libel " in 
 lieu of " slander and libel."
 
 70 DIVISION OF SUBJECT. [Ch. I. 
 
 many grounds. Upon the whole, we conclude that the 
 division we have adopted will be found obnoxious to as 
 few objections, and be more convenient, than any other we 
 could have selected. In describing the matter of a slan- 
 der or libel — that is, the speech or writing which may or 
 may not constitute a slander or a libel, but which is 
 charged to be a slander or a libel — we shall designate it 
 speech or writing, as the matter of slander or libel may be 
 intended ; but generally, and where both slander and libel 
 are used, shall employ the term language or defamatory 
 matter. Neither judges, advocates, nor text writers con- 
 fine themselves to the terms slander and libel, but employ 
 the terms libel, slander, scandal, calumny, defamation, de- 
 traction, verbal injury, and some others, without any ac- 
 cord as to, and with very little regard for, their definitions 
 or connotations. We shall confine ourselves throuo-hout 
 to the terms slander and libel, and employ them as dis- 
 tinct terms and as marking the division between an offence 
 by means of speech and an offence by means of writing or 
 effigy ; but in using the phrase law of libel, we desire, 
 nothing being said to the contrary, to be understood 
 as meaning and including as well the law applicable to 
 what we call slander as to what we call libel. 
 
 " The high court of the Paris Parliament commenced a prosecution against him 
 for libelous defamation." (Westminster Review, July, 1860; Art. The French Press, 
 page 118, Am. Reprint.) 
 
 "Mr. J. Mackenzie's Narrative, a false libel, a defence of Mr. G. "Walker, <fec, 
 1690," is the title of a pamphlet published in 1690. And the phrase "fa'se slander " 
 is used ; Finch's Law, 185. 
 
 In an ordinance agreed to by both Houses of the English Parliament, 30th Sep- 
 tember, 1647, the word libel seems to be used in the sense of a book or pamphlet. 
 The ordinance runs thus : " That what person so ever shall make, write, print, pub- 
 lish, sell or utter any book, pamphlet, treatise, ballad, libel, or sheet of news whatso- 
 ever, or cause so to be done, except the same be licensed by both or either House of 
 Parliament," &c The word libel cannot here mean a defamatory publication, as it 
 is not to be supposed the Parliament would in any case license a defamatory publica- 
 tion. 
 
 Sometimes any unfair statement is called a libel, and we say it is a libel on hu- 
 manity, on the goodness of God, &c.
 
 §§ 19, 20.] definition-. 71 
 
 § 19. From some cause — perhaps from the fact that 
 language in writing may amount to a public wrong — it 
 has happened that the wrong occasioned by writing 
 (libel) has occupied a larger share of attention than has 
 the wrong occasioned by speech (slander). 1 Whether 
 this is sufficient to account for the circumstance or not, 
 these facts result, that while it is common to speak of 
 the law of libel, it is quite uncommon to speak of the law 
 of slander; and while ingenuity has been tortured to 
 frame a definition of libel or a libel, scarcely any attempts 
 have been made to frame a definition of slander or a 
 slander. 
 
 § 20. The attempts which have been made to define 
 libel or a libel are so many as to be almost innumera- 
 ble, yet they have in reality been unavailing ; no defini- 
 tion, properly so called, of libel or a libel exists. 2 The 
 
 "The phrase, 'action for words' might seem to be always, as it generally is, em- 
 ployed by the English lawyers, in reference alone to words spoken. This, however, 
 is not the case. Thus, Mr. Tomlins, in his Law Dictionary (voce Action II. § 1), 
 says : ' Action on the case /or words ; which is brought for words spoken or written. 1 
 This passage may be remarked as another instance of the varied meaning of legal 
 phrases." (Borthwick on Libel, 22, note.) 
 
 1 Notwithstanding we observe that "A Book of Entries, by W. B.," A. D. 1671, 
 contains eighteen precedents of declarations for slander and not one for libel — " The 
 English Pleader," A. D. 1734, contains several declarations in slander, but not one in 
 libel. 
 
 5 " It is to be observed that no correct, no logical definition of a libel has evev 
 been given." (George on Libel, 14.) 
 
 Lord Lyndhurst, in answer to the question, how far it was possible to define the 
 law of libel, said: "It is a subject to which I have paid considerable attention, but I 
 must freety own without any success whatever. I hold it to be hardly possible to 
 define libels by which guilt may be incurred as tending to a breach of the peace, to 
 other proceedings of a violent nature, * * and to a variety of other heads. 
 * * * * Any definitions that I have ever seen given had one or other of 
 two faults, * * * they were either so vague as not to specify or define 
 anything, or * * they were only rendered particular and definite, by omit- 
 ting some species of libel * * * which ought to have been compre- 
 hended. * * * I have never yet seen, or been able myself to hit upon 
 anything like a-definition of libel * * which possessed the requisites of a
 
 72 OF LIBEL. [Ch. L 
 
 term libel being connotative, its definition to be complete 
 should unfold the whole meaning it involves, the whole 
 of what is connoted ; should " select from among the 
 whole of its properties those which shall be understood 
 to be designated and declared by its name;" "those 
 which unfold its nature, which are peculiar to it and 
 which are not found in a like combination elsewhere." 
 This describes a real definition of the kind, called essen- 
 tial, and before we can frame such a definition, we must 
 know all the properties of our subject, and then select 
 those proper for the purpose. As a libel comprehends a 
 complex aggregate of particulars, either not all known or 
 not all agreed upon, it may be impossible to circumscribe 
 them by a correct and compact general description. 
 
 § 21. The definitions which have been attempted have 
 been framed as supposed standards by which to deter- 
 mine of any given proposition whether or not it consti- 
 tutes a libel; and experience demonstrating the total 
 worthlessness for any practical purposes of these supposed 
 definitions, it has come to be taken for granted, at least 
 by some, that there is that inherent in the subject which 
 prevents the possibility of its definition. This, although 
 imputed to libel as a peculiarity, is not so in fact, the like 
 difficulty attaches to many other terms, and particularly 
 to every other wrong. An attempt to frame a concise, 
 
 definition, and I cannot help thinking that the difficulty is not accidental, but essen- 
 tially inherent in the nature of the subject. * * * The Latin of libel is 
 not Melius but Melius famosus. * * Libel then means, in its original, not 
 " little book" but "a defamatory little book." * * * Libel is an offence 
 of a somewhat vague description, but sufficiently known in law, and, perhaps, as well 
 defined as assaults and some others ; and I do not believe, from all the experience I 
 have had, that in practice any considerable difficulty is felt on account of its indis- 
 tinctness." (Report of House of Lords on Defamation and Libel, July, 1S43.) 
 
 At Rome, the cards of the races, with the names and colors of the riders and 
 drivers, were called libelli.
 
 21.] OF LIBEL. 73 
 
 real, essential definition of any other wrong, will disclose 
 the like difficulties as occur in the case of libel. 1 
 
 1 As Cousin said, when asked to state in a single sentence the spirit of German 
 philosophy, " These things do not sum themselves up in single sentences." 
 
 We subjoin some specimens of the attempts to define libel: 
 
 In Wasson v. Walter, see in note to § 219, post, the plaintiff, a barrister, gave 
 the following neat designation of libel — "Defamation without legal excuse." We 
 esteem this as the most successful among the many attempts to define libel. (See 
 § 50, post.) 
 
 It is not infamous matter or words which make a libel; for, if a man speak such 
 words, unless they are written, he is not guilty of the making of a libel ; writing is of 
 the essence of a libel. (Ld. Raym. 416.) In order to constitute a libel, the subject- 
 matter complained of must be a subject of visible perception. But, provided ouly it 
 be an object of visible perception, a libel does not appear to be confined to any par- 
 ticular form or shape. By the requisite, which is essential to the existence of a libel, 
 that it be an object of visible perception, libel is distinguished from what is techni- 
 cally called defamation or spoken slander. Again : " The words most nearly synony- 
 mous to the word libeling, are defaming, disparaging, aspersing, slandering." (George 
 on Libel, pp. 35, 36, 41.) 
 
 " A libel is a contumely or reproach, published to the defamation of the govern- 
 ment, of a magistrate, or of a private person." (Comyn's Digest.) 
 
 A libel is a malicious publication, tending to the disrepute of an individual, the 
 breach of the peace, the seditious violation of the good order of government. (Capel 
 Loft's Essay on Libels, edit. 1785, p. 6.) 
 
 The American Encyclopedia, voce Libel, refers to the following definition of libel 
 as the best definition: " A libel is any published defamation." And the same article 
 states the difference between libel and slander to consist in this, that libel is pub- 
 lished defamation, and slander is spoken defamation. 
 
 Written defamation is otherwise termed libel, and oral defamation slander. (Bur- 
 rell's Law Diet.) 
 
 Defamatory words, written and published, constitute a libel. (Maunder.) 
 
 Libel, a word which has many different meanings, but is chiefly known in this 
 couutry a3 the name of a department of the law, which, from incidental circum- 
 stances, has come to include the naturally distinct heads of written slander, sedition, 
 and outrage against religion. (Eucyc. Brit, voce Libel.) 
 
 A libel has been usually treated of as scandal, written or expressed by symbols. 
 Libel may be said to be a technical word, deriving its meaning rather from its 
 use than its etymology. (Russell's Treatise of Crimes and Misdemeanors, edit. 
 1819, p. 308.) 
 
 In a strict sense it [libel] is taken for a malicious defamation, expressed either in 
 printing or writing ; in a larger sense, the notion of libel maybe applied to any 
 defamation whatsoever, expressed either by signs or pictures, as by affixing up a 
 gallows at a man's door, or by painting him in a shameful and ignominious manner. 
 (Hawkins' PL Cr.) 
 
 Libel, a criminous report of any man cast abroad or otherwise unlawfully pub- 
 lished in writing, but then, for difference sake, it is called an iD famous libel — / 
 libellus. (Minshaei: A Guide into the Tongues, &c. London, lr.-jT.j 
 
 Written or printed slanders are libels. (Bouvier.) 
 G
 
 T4 DEFINITION" [Cll. I. 
 
 § 22. It is rare, indeed, that we can frame a real, 
 essential definition, but by a definition is sometimes 
 understood such an explanation of a given term as 
 
 "All publications injurious to private character or credit of another are libel- 
 lous." (Addison on Wrongs, referred to as a good definition : McXally v. Oldham, 8 
 Law Times, Rep. N. S. 604.) 
 
 "A libel is anything of which ;my one thinks proper to complain." (Essay pre- 
 fixed to report of Finnerty's Trial; supposed to be from Jeremy Bentham's Writings.) 
 It is also quoted thus : " A libel is anything published upon any matter of anybody, 
 which any one was pleased to dislike." Attributed to Bentham, cited in pamphlet — 
 Trial of David Lee Child. 
 
 A libel is a censorius or ridiculing writing, picture, or sign, made with a mis- 
 chievous and malicious intent towards government, magistrates, or individuals. {Per 
 Hamilton, arg. People v. Crosswell, 3 Johns. C. 35-1 ; adopted Steele v. Southwick, 9 
 Johns. 214 ; Cooper v. Greeley, 1 Den. 347.) 
 
 A libel is a malicious publication in printing, writing, signs, or pictures, imputing 
 to another something which has a tendency to injure his reputation ; to disgrace or 
 to degrade him in society, and lower him in the esteem and the opinion of the world, 
 or to bring him into public hatred, contempt, or ridicule. (State v. Jeandell, 5 
 Harring. [Del.] 4*75.) 
 
 Everything written of another, holding him up to scorn and ridicule, and calculated 
 to provoke a breach of the peace, is a libel. (Torrance v. Hurst, "Walker, 403 ; New- 
 braugh v. Curry, Wright, 47.) 
 
 Every publication by writing, printing, or painting, which charges or imputes to 
 anv person that which renders him liable to punishment, or which is calculated to 
 make him infamous, odious, or ridiculous, is, pr ima facie, a libel, and implies malice 
 in the publisher. (White v. Nicholls, 3 How. U. S. 266.) 
 
 A publication, to be a libel, must tend to injure the plaintiff's reputation, and 
 expose him to public hatred, contempt, and ridicule. (Armentrout v. Moranda, 8 
 Blackf. 426.) 
 
 Any publication, the tendency of which is to degrade and injure another person, 
 or to bring him into contempt, hatred, or ridicule, or which accuses him of a crime 
 punishable by law, or of an act odious and disgraceful in society, is a libel. (Dexter 
 v. Spear, 4 Mason, 115.) 
 
 A libel is a malicious publication expressed either in printing or writing, or by 
 signs and pictures, tending either to blacken the memory of one dead, or the reputa- 
 tion of one who is alive, and expose him to public hatred, contempt, or ridicule. 
 (Commonwealth v. Clapp, 4 Mass. 163, 168. Per Ch. J. Parsons, quoted in Root v. 
 King, 7 Cow. 613.) 
 
 A libel is a censorious or ridiculing writing, picture, or sign, made with a 
 mischievous intent. (The State v. Farley, 4 M'Cord, 317.) 
 
 A publication is a libel which tends to injure one's reputation in the common 
 estimation of mankind, to throw contumely or reflect shame and disgrace upon him, 
 or hold him up as an object of hatred, scorn, ridicule, and contempt, although it 
 imputes no crime liable to be punished with infamy, or to prejudice him in his em- 
 ployment. So every publication by writing, printing, or painting, which charges or 
 imputes to any person that which reuders him liable to punishment, or which is
 
 § 22.] 
 
 OF LIBEL. 
 
 conveys an idea of its connotation, and enables us to 
 distinguish it from, and prevents our confounding it with, 
 any other term of a similar, but not the same, import. 
 
 calculated to make him infamous or odious or ridiculous, is prima facie, a libel. (1 
 Hilliard on Torts, ch. vii, § 13.) 
 
 Holt, in his treatise, p. 213 [223], defines libel as against private persons thus: 
 " Everything, therefore, written of another which holds him up to scorn and ridicule, 
 that might reasonably (that is, according to our -natural passions) be considered as 
 provoking him to a breach of the peace, is a libel." Mr. Mence (Law of Libel, vol. I, 
 p. 120), referring to this passage in Holt, says : "This agrees with his two preceding 
 definitions, and with the common acceptation of the term libel, by making it essential 
 that the subject or object of the attack should be some person or persons ; but it dis- 
 agrees with them, by introducing the tendency to provoke a breach of the peace. It 
 follows that, if this be a correct definition, the other two must be defective, because, 
 in one of them, the tendency, or (as is there said) the intent to provoke is required 
 only in cases where the object of the slander is a deceased person, and in that from 
 Lord Coke it is wholly omitted. On the other hand, if the two former definitions be 
 correct, the third must necessarily be inaccurate, for an accurate definition is one 
 which neither omits what is essential, nor admits what is superfluous. * * * 
 And it is to be further observed that the third definition disagrees with the two former 
 and the common acceptation of the term libel, not only by introducing the intent or 
 the tendency to provoke, but by leaving out the falsehood and malice. For libel, in 
 common acceptation, signifies written slander; and the term slander and all its 
 synonyms, as defamation, detraction, calumny, even without the epithets malicious 
 and injurious, imply falsehood and malice." 
 
 "The familiar acceptation of the word libel is no less simple and intelligible [than 
 the term horse-stealing], but the legal and technical use is as if horse-stealing stood 
 not only for stealing a horse, but for murder, arson, larceny, and other crimes more 
 or less atrocious ; and even for actions not criminal, or of which the criminality is at 
 least doubtful, and not to be measured or ascertained till we have separated them 
 from the greater crimes with which they are confounded. This perverse and cabal- 
 istic use of language it is that has given birth to so much of the obscurity with 
 which the law of libel is reproached. And nothing can be easier than to reform it. 
 "We have only to consider written challenges to fight as a class by themselves; to 
 class blasphemous writings under the head of blasphemy ; obscene and grossly 
 indecent or immoral writings under the head of obscenity; or both these heads, 
 together, under that of offences immediately against God; seditious writings under 
 the head of sedition; and all other writings denominated libels under the two 
 distinct heads of libels and censure, as they are either tainted with falsehood and 
 malice, or criminal by carrying upon them the manifest intent to provoke a 
 breach of the peace, or by having a tendency, or of being merely suspected of having 
 a tendency, so to do." And, on page 181, he says: "This is blasphemy under the 
 title of libel upon the Christian religion, classed or confounded, as is obscenity also, 
 with crimes (if crimes they be), from which it differs as much, both in kind and 
 degree, as murder does from picking a pocket or robbing a hen-roost." (1 Mence on 
 Libel, 125.) 
 
 In several of the States, libel has been defined by statute. Thus, in Maine, it is 
 enacted that " a libel shall be construed to be the malicious defamation of a person,
 
 76 DEFENTTIOISr [Ch. L 
 
 "Wlien we employ definition in this sense, and for this 
 purpose merely, it ceases to "be important whether the 
 definition adopted be strictly accurate. If we always 
 employ the term in that one predetermined sense, it 
 serves to avoid confusion, and enables us to reason upon 
 it with certainty. Mathematical science is certain, not 
 because its definitions are true, but because they are 
 certain ; and legal science is only uncertain because its 
 definitions are uncertain. 1 We may ensure certainty by 
 having definitions which, however defective in other 
 respects, at least admit of our using the terms defined 
 
 made public either by any printing, writing, sign, picture, representation, or effigy, 
 tending to provoke him to wrath, or expose him to public hatred, contempt, or ridi- 
 cule, or to deprive him of the benefits of public confidence and social intercourse ; or 
 any malicious defamation, made public as aforesaid, designed to blacken and vilify 
 the memory of one that is dead, and tending to scandalize or provoke his surviving 
 relatives or Wends." And in Illinois it is enacted, " a libel is a malicious defamation, 
 expressed either by printing or by sijjns, or the like, tending to blacken the memory 
 of one who is dead, or to impeach the honesty, integrity, virtu.', or reputation, or 
 publish the natural defects of one who is alive, and thereby to expose him or her to 
 public hatred, contempt, or ridicule." Definitions of the like import are to be found 
 in the statute books of some other States. 
 
 See Maine Rev. Stat, 1840, ch. clxv, ^ 1 ; Iowa Rev. Code of 1851, ch. cli, art. 
 2161; Arkansas Rev. Stat. 1837, div. VIII, ch. xliv, art. 2, § 1, p. 280; Georgia, 
 Prince's Dig. pp. 643, G44; Hotchk. Dig. p. 739 ; Cobb's Dig. vol 11. p. 812; California 
 Stat. 1850, ch. xcix, § 120; Illinois Rev. Stat. 1845, Crim. Code, g 12'". 
 
 1 " Mathematics will, in no greater degree than theology or metaphysics, jrive us 
 ' certainty by rigid demonstration ' without the assumption of those primary truths 
 which we accept, because we are so constituted that we must accept them." — 
 minster Review, October, 1SG4; art. Dr. Newman's Apologia.) The question, What 
 is the foundation of mathematical demonstration ? was discussed by Dugald Stewart, 
 and the conclusion at which he arrived was, that the certainty of mathematical 
 reasoning arose from its depending on definitions. And further, that mathematical 
 truth is hypothetical; if the definitions are assumed, the conclusion follows, Mr. 
 Whewell controverts these views. See "The Mechanical Euclid," Ac., and Remarks 
 on Mathematical Reasoning, &c, by the Rev. W. Whewell, M.A., and Edinburgh 
 Review, April, 1838. 
 
 " Nothing is harder than a definition. While, on the one hand, there is for the 
 most part no easier task than to detect a fault or a flaw in the definition of those who 
 have gone before us; nothing, on the other hand, is more difficult than to propose one 
 of our own which shall not also present a vulnerable side." — Dean Trench. See 
 Burrill's Law Diet, voce Definition, and 2 Wooddes. Lect. 196. 
 
 "The greater portion of all law business arises from the impossibility of giving 
 absolute definitions for things that are not absolute in themselves." — (Lieber's Civil 
 Liberty, 23 note.)
 
 § 22.] OF LIBEL. 77 
 
 always in one and the same sense, and always so using 
 them. We shall not attempt to construct real definitions 
 of slander and libel, but to definitely mark what is meant 
 when those terms are employed ; we define slander and 
 libel as wrongs occasioned by language or effigy — that is to 
 say, slander is a wrong occasioned by speech, and libel is a 
 wrong occasioned by writing or effigy.
 
 CHAPTER II 
 
 nOW OXE may affect axothee, by language. 
 
 Language can have no effect unless published — It must he 
 true or false, commendatory or discommendatory — 
 Must concern a person or thing — Its effect, direct or 
 indirect, or both — Reputation. 
 
 § 23. Language may exist as mere thought, but, 
 before it can have any effect ultra, the individual with 
 or in whom it originated, it must be expressed ; it must 
 come into existence as an expression, by sound, as in 
 speech, or by sign, as in writing or effigy ; and not only 
 must it be expressed, it must also be published — that i>, 
 communicated by the individual with or in whom it 
 originated to some other. 
 
 § 24. Language when employed to communicate ideas 
 must assume the form of a proposition, or a series of 
 propositions ; by a proposition being meant, " discourse 
 which affirms or denies something of some person or 
 thing, the subject of the proposition." Every proposition 
 is an assertion, and must be either true or false — that is, 
 it must assert of its subject that which is true, or that 
 which is false, and the assertion may be either of com- 
 mendation or discommendation. 
 
 § 25. Language must concern either a person or a 
 thing, or both, and it may concern a person in his indi- 
 vidual and natural capacity merely, or in some acquired 
 or artificial relation or capacity as a trader, an office- 
 holder, or as the author, owner, or possessor of some 
 certain thing.
 
 §§ 26-29.] EFFECT OF LANGUAGE. 79 
 
 § 26. The effect of the publication of language upon 
 a person, other than the author or publisher of the 
 language, must be direct or indirect, or both. 
 
 § 27. Language cannot directly affect a thing; what- 
 ever direct effect it can have must be upon a person. 
 
 § 28. Language, whether it concerns a person or a 
 thing, may have a direct effect upon the person to whom 
 it is published, but upon none other. It may directly 
 affect the feelings, health, belief, or opinion of him to 
 whom it is published, and it may influence or excite him 
 towards a particular course of action or forbearance by 
 himself, or in respect of himself or his affairs, or in 
 respect of some other person or some thing, or the affairs 
 of some other person. It may either please or displease 
 him, or cause him to feel pleased or displeased with some 
 other person or thing, or cause him to do some act or to 
 abstain or resolve to abstain from doing some act to the 
 advantage or disadvantage of himself or some other, or 
 cause him to think better or worse of himself or of some 
 other person or of some thing. That other person may be 
 either he who makes the communication or he whom the 
 language concerns. All the direct effects of the publica- 
 tion of language are personal to the individual to whom 
 the publication is made, and can extend no further. The 
 publication of language can have no direct effects other 
 than those we have enumerated ; whatever other effects 
 may result frorn the publication of language must be 
 indirect or consequent upon one or other of some of these 
 enumerated direct effects. 
 
 § 29. The kind of effect produced, i. e., the direct or 
 indirect effect, must be the same whether the publication 
 be by sound (speech), or by sign (writing or effigy), but 
 the mode of publication may affect the amount of effect 
 produced.
 
 80 EFFECT OF LANGUAGE. [CL II. 
 
 § 80. It is scarcely supposable that the publication of 
 lano-uao'e which concerns another or his affairs can pro- 
 duce no direct effect, but it is easy to suppose that it may 
 not produce any indirect effect. The publication may 
 occasion a resolve (a direct effect), and that resolve may 
 never be put into execution (produce no indirect effect), 
 or it may occasion a change in the opinion entertained of 
 another, and that other may never be otherwise in any 
 the least degree affected by that change of opinion. The 
 change of opinion may not prevent or occasion any action 
 different from what would otherwise have been done or 
 forborne ; while, however, this is supposable, it is improb- 
 able ; the possibility, however, of such an occurrence 
 suffices for our purpose. Sometimes, indeed, the direct 
 and indirect effects are apparent, and their extent ascer- 
 tainable; and again, it may be that neither the direct 
 nor the indirect effect is apparent nor its extent ascertain- 
 able. 
 
 § 31. It is impossible to anticipate all the indirect 
 effects which may result from the publication of lan- 
 guage ; experience has made us acquainted with some of 
 them, and to these we shall have occasion to refer by way 
 of illustration. 
 
 § 32. Among the direct effects of the publication of 
 language which we have enumerated is the occasioning 
 the person to whom the publication is made to think well 
 or ill of another. Now, what one thinks of another is the 
 reputation of that other, and hence, when by language 
 one is induced to think ill of another, the reputation of 
 that other suffers disparagement. 1 That others think well 
 of him is as gratifying to a man as that others think ill. of 
 
 1 Reputation is the estimate in which an individual is held by public fame in the 
 place where he is known. (Cooper v. Greeley, 1 Denio, 347, 365.) 
 
 " Character is defined by Webster to be the peculiar qualities impressed by 
 nature or habit on a person, which distinguish him from others ; these constitute real
 
 § 32.] EFFECT OF LANGUAGE. 81 
 
 him is distasteful, but their merely thinking well or ill of 
 him by itself can neither benefit nor prejudice him. Un- 
 less in consequence of the opinion thus entertained, some 
 act is done or forborne m reference to him or his affairs, 
 which would not otherwise have been done or forborne, 
 he is physically and pecuniarily in nowise better nor 
 worse for such opinion. It cannot affect his person or his 
 property. In the ordinary course of events some indirect 
 effect does always result from the publication of language. 
 The probability or improbability of any indirect effect 
 
 character, and the qualities he is supposed to possess constitute his estimated character 
 or reputation." {Per Welles, J., in Carpenter v. The People, 8 Barb. 608.) 
 
 "If the word reputation, when unqualified, does, ex vi termini, or, in common par- 
 lance, mean general reputation — as we think it does — it is unnecessary to prefix the 
 word general." (French v. Millard, 22 Ohio Rep. 50.) 
 
 " Reputation is thinking. I repute a man to be good or bad — that is, I think him 
 to be so." (Maule, J., Doe dem. Padwick v. Wittcomb, 15 Jur. 778; 5 Eng. Law & 
 Eq. Rep. 487.) 
 
 " The mere entry of something that was in a lease is not any expression of opinion 
 or reputation." (Cresswell, J., id.) 
 
 "The words character and reputation are often used as synonymous terms 
 though in fact not synonymous." (Bucklln v. Ohio, 20 Ohio R. 18; French v. Mil 
 lard, 22 id. 50.) 
 
 " Character is a term convertible with common report." (Kimmel v. Kimmel, 3 
 Serg. <t R. 337. Gibson, J.) 
 
 Character and reputation are the same. (Id., Duncan, J.) 
 
 " General character is the estimation in which a person is held in the community 
 where he resides." (Marcy, J., Douglass v. Tousey, 2 Wend. 354.) 
 
 "Public opinion is the question in common cases where character is in issue." 
 (Boynton v. Kellogg, 3 Mass. R. 192. Parsons, Ch. J.) 
 
 The word character has been variously used in legal proceedings, and sometimes 
 denotes the personal, official, or special character in which a party sues or is sued as 
 executor, officer, &c, but it more frequently refers to reputation or common report. 
 (1 Cow. «fe Hill, notes, 460, 1768; Leddy v. Tousey, 2 Wend. 352; King v. Root, 4 
 Wend. 113.) It is seldom used as synonymous with mere inclination or propensity, 
 or even secret habit, nor is descriptive of the mere qualities of individuals, only so 
 far as others have formed opinions from their conduct. (Safford v. The People, 1 
 Parker's Crim. R. 478 ) 
 
 General character is the result of general conduct. (Sharp v. Scoggin, Holt's 
 N. P. C 541 ; 3 Amer. Law J. X. S. 145.) 
 
 Proof of general bad character — as that term is generally understood and used in 
 society — does not necessarily and legally prove the fact that the witness' character 
 for veracity is bad. (Gilbert v. Sheldon, 13 Barb. 627.) 
 
 " Chaste character" means actual personal virtue — not mere reputation. (Car- 
 penter v. The People, 8 Barb. 603 ; Crozier v. The People, 1 Park. Cr. R. 453 ; Safford 
 v. The People, id. 474.)
 
 82 EFFECT OF LANGUAGE. [Ch. II. 
 
 resulting depends sometimes on the kind of language 
 published, and sometimes on the circumstances of the 
 publication, and sometimes on Loth the kind of language 
 published and the circumstances ^>f the publication. 
 
 § 33. We conclude, therefore, that there may be an 
 injury to the reputation without, and independently of, 
 an injury to the person or property, and that an injury to 
 the reputation does not necessarily imply an injury to the 
 person or the property. 1 
 
 1 Domat Civil Law, Public Law, Book III, enumerates "defamatory libels" among 
 private offences, and in the same book, title 1, " of crimes and offences," enumerates 
 three kinds of "goods;" "the third is that good which is called honor, and which 
 men value above all other goods." The author then proceeds to inquire what is sig- 
 nified by the term honor, and concludes, "lastly.it signifies reputation." Further 
 on it is laid down that honor may be wounded, either by injurious treatment of the 
 honor or by assaulting the reputation, for one may offend another's honor by actions 
 or by opprobrious language, without lessening his reputation, and we may blemish 
 his honor by words, by writing, and other attempts against his reputation, or one 
 may attack by one and the same way both the reputation and person of another.
 
 CHAPTER III. 1 
 
 eights; duties; wrongs; eemedies. 
 
 Description of Rights and Duties — Wrongs, Rights, and 
 Duties undefinable — What determines of any act if 
 it be a Wrong — Remedies — Injunction — Original 
 Writs. 
 
 §34. Having in a preceding chapter, [ch. i,] de- 
 scribed slander and libel as wrongs, it is proper to 
 explain what is meant by a wrong, and to that end we 
 must briefly consider the nature of rights and duties. 
 For the opposite to a right is not a wrong, but a duty. 
 
 §35. Rights and duties are neither persons nor things, 
 but powers and obligations. A right is a power to do or 
 forbear or require another to do or forbear. A duty is an 
 obligation, a necessity to do or forbear, or to submit to 
 some act of another. We hear frequently of " moral and 
 social duties of imperfect obligation," 2 but really there is 
 no such thing as a duty of imperfect obligation, what is so 
 denominated is really a right — a right which should be 
 exercised, but which, as in the case of all rights, the person 
 in whom it is vested, may or may not exercise at his 
 option. " Rights are universal and unexceptive, or, if not 
 so, then they are none at all." 3 
 
 1 For the tenor of this chapter we acknowledge our indebtedness to the general 
 part of "Thibaut's System of Pandekten Rechts," as translated by Lindley; also to 
 Mr. Maine's admirable book, " Ancient Law, or, an Inquiry into the Origin of Legal 
 Ideas." As to rights and duties, reference may be had to Austin's Lectures on 
 Jurisprudence. 
 
 2 Harrison v. Bush, 5 El. & Bl. 344. 
 
 8 Essay on Ultimate Civilization. By Isaac Taylor.
 
 84 EIGHTS AXD DUTIES. [Ch. HL 
 
 § 36. The object of a right or duty is a transaction. 
 By transaction is meant an act, and the occasion on which 
 the act is enacted. 
 
 § 37. Eights and duties are reciprocal. The act which 
 one has the right, the power, to do or forbear, that no 
 other can or should hinder or compel the doing or for- 
 bearing ; but to such doing or forbearing it is the duty, 
 the necessity, of every other to submit ; and what one has 
 the right, the power, to command another to do or for- 
 bear, that it is the duty, the necessity, of that other to do 
 or forbear ; what it is the duty of one to do or forbear, 
 that it is the right of some other to have done or for- 
 borne ; what it is the duty of one to do, to that it is the 
 duty of every other to submit. 
 
 § 38. Rights and duties pertain solely to persons. A 
 thing cannot have any rights and cannot owe any duties. 
 And as a thing has no rights, a person cannot owe a duty 
 to a thing. 
 
 § 39. The exercise of a right is always optional ; the 
 performance of a duty is always compulsory. One may 
 forego the exercise of a right, or exercise it, at his option, 
 for either way no right of any other suffers ; but one can- 
 not, at his option, forego the performance of a duty ; be- 
 cause to omit the performance of a duty is to take away a 
 right somewhere, either in society or an individual, the 
 right to have such duty performed. Therefore every act 
 done in exercise of a right is a voluntary [optional] act, 
 and every act done in the performance of a duty is an in- 
 voluntary [not optional] act. One may in fact perform 
 his duties willingly, but as the performance or non-per- 
 formance is not optional, and may be enforced, perform- 
 ance is properly regarded as involuntary. 
 
 § 40. Rights must be exercised and duties must be
 
 §§ 41-43.] RIGHTS AND DUTIES. 85 
 
 performed strictly and in good faith. An act which ex- 
 ceeds the prescribed limits of a right is not the exercise of 
 that right, and an act which falls short of the prescribed 
 limits of a duty is not the performance of that duty. 
 
 § 41. Rights and duties cannot exist in the absence of 
 a supreme power somewhere, which protects the exercise 
 of the one and enforces the performance of the other ; that 
 supreme power is called a law, and that branch of it 
 which relates to the rights and duties of individuals in 
 their social relations constitutes the municipal law. In 
 some sense, therefore, it is proper to say that lights and 
 duties are the results of laiu, and if this be granted, it 
 must follow that all rights and duties of which the muni- 
 cipal law takes cognizance are legal rights and legal duties. 
 There can be no such right recognized by law as a natural 
 right. A right anterior to or independent of the law can 
 be a right only of superior physical power. 
 
 § 42. Every act must be done either in the exercise of 
 a right or in the performance of a duty, or neither in the 
 exercise of a right nor in the performance of a duty ; and 
 every act must be either such as the law permits and does 
 not punish or such as the law does not permit and will 
 punish. Every act done in the exercise of a right or in 
 the performance of a duty is a permitted act. Every act 
 done neither in the exercise of a right nor the performance 
 of a duty is an unpermitted act. Every act which the 
 law permits is lawful, and every act which the law does 
 not permit is unlawful. 
 
 § 43. A lawful act cannot amount to a wrong, but 
 every unlawful act is a wrong ; and as every act must be 
 either lawful or unlawful, every act must be either a 
 wrong or not a wrong. The rule that for every wrong 
 the law provides a remedy holds true only by postulating 
 that only that act is a wrong for which the law provides
 
 86 RIGHTS AND DUTIES. [Ch. III. 
 
 a punishment or a remedy. The rule that for every 
 wrong the law provides a remedy is not universally true, 
 because sometimes although a wrong has been committed, 
 the subject of the wrong is by some means estopped from 
 claiming any redress. The formula by which this rule is 
 expressed is, that one cannot take advantage of his own 
 wrong. An act may be such as not to be obnoxious to 
 every remedy, but if it is obnoxious to any remedy it is a 
 wrong. 
 
 § 44. Different laws prescribe different rules of right 
 and duty, and where there are courts of different jurisdic- 
 tions that may be a wrong in one jurisdiction which is not 
 a wrong in another ; as where there are civil and criminal 
 courts, and as in England where there are common law 
 courts and ecclesiastical courts. "We may sometimes de- 
 termine of any act whether or not it is a wrong by 
 inquiring whether or not the law provides for it any 
 remedy or punishment. There can be no civil right 
 where there is no remedy. 1 " It is a mockery to talk of 
 existing rights without applying corresponding reme- 
 dies." 2 If there is no remedy we conclude there is no 
 wrong — meaning, of course, legal wrong. This, it must be 
 conceded, is an illogical and inverse method of arriving at 
 the desired conclusion, but we find it oftentimes resorted 
 to, as the best attainable standard by which to determine 
 of any act if it be a wrong. 8 
 
 § 45. Wrongs which only affect society in general, and, 
 so far as they affect society in general, are distinguished 
 from wrongs affecting only individuals, by denominating 
 them crimes. Hereafter we shall invariably use the term 
 wrong to signify an act injuriously affecting only individ- 
 
 1 B'k of U. S. v. Owens, 2 Peters, 539. 
 
 2 Fowler v. Lindsay, 3 Dallas, 413. 
 
 3 "The remedy may always be referred to as illustrating the right and e con- 
 verso." (Van Rensselaer v. Jones, 2 Barb. 656.)
 
 §§ 40, 47.] wroxgs; remedies. 87 
 
 uals. Wrongs are direct or indirect. Direct wrongs are 
 those where the act done may be per se a violation of a 
 right — a blow is of this character. Indirect wrongs are 
 those where the act done cannot be per se a violation of a 
 right, and only becomes a violation of a right by reason of 
 some consequence resulting from that act. The act of 
 publishing language is of this character. 
 
 § 46. We are accustomed to describe law as the su- 
 preme power in the State, commanding what is right and 
 prohibiting what is wrong ; but this, besides being untrue, 1 
 does not aid in determining what is a legal right or a legal 
 wrong. So, too, a wrong is correctly enough described, 
 not defined, as an invasion of a right, but unless or until 
 we know what is a right, we cannot know when a right 
 has been invaded. 
 
 § 47. If we could catalogue rights, and distinguish 
 each by an intelligible and unvarying definition, we should 
 then have no difficulty in ascertaining when a wrong has 
 been done. But the nature of a right forbids any such 
 proceeding. We do, indeed, find text writers and judges 
 speaking of the right of speech, the rights of the press, and 
 the right of property. Blackstone, and others following 
 him, state that the absolute natural rights are the rights of 
 life, liberty and reputation. Text writers also speak of 
 relative rights and tangible rights, but all these are mere 
 words, entirely illusory, capable of no practical applica- 
 tion. The utmost that can be derived from all that has 
 ever been written on this subject is, that a man has some 
 rights pertaining to his person, his property and his repu- 
 tation ; the nature of a right is nowhere attempted to be 
 defined or explained, except in the illogical way of stating 
 a rule with a multitude of exceptions, leaving us in doubt 
 
 1 See, Chisholm v. State of Georgb, 3 Peter'3 Cond. Rep. 74.
 
 8S EIGHTS AND DUTIES. [Cll. III. 
 
 as to each particular case which arises whether it comes 
 within the rule, or is one of the exceptions. 
 
 § 48. While denning a wrong as an invasion, meaning 
 every invasion of a right, text writers have contented 
 themselves with speaking of the absolute right of prop- 
 erty, the absolute right of reputation, etc. 1 Now, if the 
 words "absolute right of property" have any meaning, 
 they must mean that one has such a right to his property 
 that no one may, under any circumstances, take it from 
 him ; and if this be so, and every invasion of a right be a 
 wrong, it must follow that every deprivation of property 
 is a wrong. We know this is not true ; one may be de- 
 prived of his property in many ways without a wrong 
 
 1 " Bights of persons are divided into absolute and relative. 1 Ch. PI. 137. This 
 classification is recognized by all our elementary writers. 2 Kent's Coin. 129 ; 3 Bl. 
 Com. 138." ( Delamater v. Russell, 4 How. Pr. R. 235.) "The character of individ- 
 uals is unquestionably one of their absolute and personal rights. It is, therefore, un- 
 necessary to make any distinct affirmation that the protection of it most immediately 
 falls within the common law. Reputation, indeed, is not only one of our perfect 
 rights, but that which alone gives a value to all our other rights." (Holt on Libel, 
 p. 15.) " The security of his reputation, or good name, from the arts of detraction 
 and slander are rights to which every man is entitled by reason and natural ju- 
 (1 Bl. Com. book I, ch. i.) " The use of the law consisteth principally in these three 
 things : * * * * III. For preservation of men's good name from shame 
 and infamy." Bacon's The Use of the Law. His Lordship says nothing further OB 
 the subject in that essay. 
 
 Slander or libel is an infringement of the absolute rights of persons, (l'arker J. 
 Delamatei- v. Russell, 4 How. Pr. R.235.) "Whether reputation be by the law of nature 
 one of the absolute rights of persons or not, the common law of England does not so 
 consider it. The law of unwritten slander is incompatible with it, and in part 
 establishes a different principle. For it would follow fr< m that principle, and ho 
 evidently means by it, that no man can lawfully say or publish anything to the dis- 
 advantage of another, even though it be true, and he is prepared to prove its truth." 
 (1 Mence on Libel, 132.) Blackstone and others, translating persona, person, in-tea 1 
 of status or condition, place among the rights of persons the right of personal 
 security, the reputation, &c, whereas the right to reputation is among the ri„- 
 rem. (Edinburgh Review, Oct. 1863, p. 239, Amer. Reprint.) The riirht which 
 Blackstone styles the right of reputation is original or innate as opposed to acquired. 
 This right has no connection with a natural right in the other sense of th« 
 Blackstone has confounded them, and, supposing the right of reputation to belong to 
 the law of persons, has called it an absolute right of persons. (2 Austin's Lect. on 
 Juris. 268, 476, 3 id. 179.)
 
 § 49.] wrongs; remedies. 89 
 
 being done. A man's property may be taken from him 
 directly for public use, on making due compensation, or it 
 may be taken from liim to satisfy bis obligations, and it 
 may be indirectly taken from him in many ways by acts 
 subjecting him to loss, for which the law affords him 
 no remedy. So, too, if the supposed right to reputation 
 be an absolute right, then every invasion of it must be a 
 wrong ; but reputation is often invaded without such in- 
 vasion amounting to " a wrong," hence the inutility, for 
 any practical purpose, of the definition of a wrong as an 
 invasion of a right. The truth is, that a man has the 
 right to the uninterrupted enjoyment of his property to 
 such an extent only, and subject to such conditions, as the 
 general welfare of the community demands, and so of rep- 
 utation. It must be, therefore, that instead of saying of 
 one he has an absolute right to property or reputation, we 
 should say he has a right thus and so, describing it with 
 such limitation and qualification as will make it true that 
 every interference by another with such an enjoyment of 
 it will amount to a wrong. This may be difficult, or it 
 may be impossible ; if the latter, as we conceive it to be, 1 
 let the attempt be abandoned, but it furnishes no reason 
 for describing that as an absolute right which is some- 
 thing else. " It is difficult to say when night ends or day 
 begins, or to draw the line between them, yet day and 
 night are not the same thing.'' 2 
 
 § 49. It is not so proper to say that the law prescribes 
 what is rightj and prohibits what is wrong as to say that 
 law determines rights by prescribing duties, and inde- 
 pendently of any positive enactment, all legal duties are 
 
 1 " The time is passed when * * it was believed that everything was 
 strictly definable, and must be compressed within the narrow limits of an absolute 
 definition before it could be entitled to the dignity of a thorough discussion. The 
 hope of being able absolutely to define things * * betrays a misconception 
 of human language, which, itself, is never absolute except in mathematics. It mis- 
 leads." (Lieber's Civil Liberty, 23.) 
 
 3 Att'y-Gen'l v. Daken, Law. Rep. II Ex. 295. 
 1
 
 90 eights ; DUTIES. [Ch. III. 
 
 comprised in this one prohibition. N~o one shall, without 
 a legal excuse, do or forbear any act, by which doing or 
 forbearing there results a breach of the peace, injury to the 
 community, or damage to the person or property of another. 
 
 § 50. What determines of any given act whether or 
 not it is permitted, i. <?., lawful ; or unpermitted, i. e., un- 
 lawful ; whether there is or is not a legal excuse for the 
 doing such acts, is the occasion upon which it is enacted. 1 
 The occasion being the entire group of circumstances sur- 
 rounding the act, including the actor, the patient or per- 
 son acted upon, the kind of act, the manner of effecting 
 the act, the motive of the actor, and the consequences of 
 the act. It is the occasion to which we must, in eveiy in- 
 stance, refer to ascertain whether there was or was not a 
 legal excuse for the act. Everything considered, was the 
 act lawful or unlawful ? Was it in exercise of a right or 
 performance of a duty \ As it is manifestly impossible to 
 preconceive or anticipate every possible group of circum- 
 stances, so necessarily it is impossible to catalogue rights 
 and duties — that is, to catalogue the acts which may or 
 may not be done or forborne. 
 
 § 51. The impossibility of framing such a definition of 
 a right or of a duty as shall enable us to say of any partic- 
 ular act by itself, that it is lawful or unlawful, is evident. 
 The utmost we can do is to say that an act done under a 
 certain given state of circumstances is a permitted act, one 
 the actor had the right to do, or that it is an unpermitted 
 act, one the actor had not the rigid to do — that is, the do- 
 ing of which it was his duty to forbear. 
 
 § 52. The law, besides prescribing duties, provides the 
 means called remedies for protecting rights and redressing 
 wrongs. It will, in some cases, interpose by injunction to 
 prevent the perpetration of a wrong, but, as a general 
 
 1 Hosmer v. Lovelaml, 19 Barb. 115.
 
 § 53.] 
 
 WRONGS; REMEDIES. 91 
 
 rule, the pul >lication of an alleged libel will not be stayed 
 by injunction. 1 
 
 § 53. The ordinary mode of remedying a wrong is by 
 an action. Actions were anciently commenced by original 
 
 1 The court of star chamber, which Lord Campbell described as a court of 
 criminal equity (Emperor of Austria v. Day, 7 Jur. N. S. 483), and which description 
 was quoted with approval by Chief Baron Pollock (The Alexandria, MS.), was in 
 the habit of restraining the publication of certain libels (Hudson's Star Chamber). 
 After the abolition of that court, Chief Justice Scroggs, and the other judges of the 
 King's Bench, prohibited the publication of a periodical called "The Weekly Packet 
 of Advice from Rome ; or, the History of Popery." For this, Scroggs was impeached 
 (8 Howell's State Trials, 198). In Du Bost v. Beresford, 2 Camp. Rep. 511, Lord 
 Ellenborough said the exhibition of a libelous painting might be restrained by in- 
 junction. That was an obiter dictum, and is said to have excited great astonishment 
 in the minds of all the practitioners in the courts of equity in England. (Home's 
 case, 20 Howell's State Trials, 799 note; 10 Campbell's Lives of the Chancellors, ch. 
 ccxiii.) In Burnett v Chetwood, 2 Merivale's Rep. 441, note, Lord Chancellor Parker 
 granted an injunction to restrain the publication of a translation of a book from Latin 
 into English, on the ground that the book in English might have a hurtful public 
 tendency not likely to occur while the matter remained in Latin. In Brandreth v. 
 Lance, 8 t'aige, 24, the chancellor, on demurrer to a bill jiraying an injunction to 
 restrain the publication of a libelous pamphlet, dismissed the bill on the ground that 
 the court had no jurisdiction to interfere, no right to " literary or medical property" 
 being invaded ; and see Hoyt v. McKenzie, 3 Barb. Ch. R. 320. In Clarke v. Free- 
 man, 11 Beavan, 112; 12 Jurist, 149; 17 Law Jour. Rep. Ch. 142, the plaintiff, a 
 physician, applied for an injunction to restrain the defendant from, among other things, 
 publishing an advertisement so expressed as to raise the inference that certain pills 
 sold by defendant were sold by him on behalf of the plaintiff. The court held the 
 advertisement in question amounted to a libel on the plaintiff, and dismissed the 
 bill ; because, to grant the injunction, " would imply that the court has jurisdiction 
 to stay the publication of a libel, and I cannot think it has." This case is questioned 
 in supplement to Drewry on Injunctions, 34, but not on the ground that the court 
 had jurisdiction to restrain the publication of a libel ; and Clarke v. Freeman is also 
 questioned in Springhead Spinning Co. v. Riley; and Dixon v. Holden, infra; and 
 in Maxwell v. Hogg, Law Rep. II Eq. 310. 
 
 A. person, whose name was on the register of persons whose notes had been pro- 
 tested, applied to the Court of Session, in Scotland, for an interim interdict to prevent, 
 so far as his own name was concerned, the publication of a copy of the register. The 
 court decreed for the application. Held, by the Lords, reversing that decree, that 
 the interdict ought not to have been granted. (Fleming v. Newton, 1 Ho. of Lords, 
 Cas. 363.) " The king has no authority to restrain the press." (Mansfield, Ch. J., 
 Stationers' Co. v. Partridge.) An injunction was granted against the publication of a 
 notice stating that the plaintiff, a merchant, was a partner in a bankrupt firm (Dixon 
 v Holden, Law Rep. VII Eq. 488; see also Springhead Spinning Co. v. Riley, Law 
 Rep. VI Eq. 551 ). In an unreported case (Meserole v. Goldsmith) decided January, 
 1870, in New York, Justice Ingraham interdicted the publication of a circular pur- 
 porting to be the report of a trial relative to a patent right for paper-collars. There
 
 92 EIGHTS ; DUTIES. [Cll. III. 
 
 writ. 1 These writs differed from each other according to 
 the nature of the wrong to be redressed. These write 
 were preserved in the Chancery in The Register of Writs, 
 which register was printed and published in the reign of 
 
 is now pending in the Superior Court of New York, Hovey v. Rubber Tip Pencil Co., 
 an action to restrain tbe publication of a circular affecting plaintiffs business. As to 
 courts restraining reports of their proceedings, see post note to ^ 231. In Missouri, 
 in the case of Millier v. Shepherd, now pending, an injunction was granted restrain, 
 ing the publication of " Bradstreet's Commercial Report," a mercantile agency report, 
 and containing matter affecting the credit and standing of the plaintiff as a mer- 
 chant. In Dixon v. Holden, supra, Malins, V.-C, says : "I go further, and say if it 
 [the publication sought to be restrained] had only injured his [plaintiffs] reputation, 
 it is within the jurisdiction of this court to stop the publication of a libel of this 
 description, which goes to destroy his [plaintiff's] property, or his reputation, which 
 is his property, and, if possible, more valuable than any other property. In this 
 case, I go on general principle, and I am fortified by authority. General principle is 
 in its favor, but authority is not wanting. * * * In the decision I ar- 
 rived at, I beg to be understood as laying down that this court has jurisdiction to 
 prevent the publication of any letter, advertisement, or other document, which, if 
 permitted to go on, would have the effect of destroying the property of another per- 
 son, whether that consists of tangible or intangible property, whether it consists of 
 money or reputation. Professional reputation is the means of acquiring wealth, and 
 is the same as wealth itself." In deciding Brandreth v. Lance (supra), the Chancel- 
 lor referred to 2 R. S. 737, s. 1, pt. IV, ch. xi, tit. 6, art. 1. This section confers on 
 courts the power to bind persons to give security to keep the peace in certain cases, 
 and its last clause reads thus : " This section shall not extend to convictions for 
 writing or publishing any libel, nor shall any such security be hereafter required, by 
 any court upon any complaint, prosecution, or conviction for any such writing or 
 publishing." The revisers, in their note to that section, say, in reference to the 
 above-recited clause, that it is 7ieu; and " it is conceived that this provision virtually 
 takes away from the courts the common law power of binding over a party guilty of 
 publishing a libel." As to the common law power of binding to good behavior, see 
 Hawkins' Pleas Cr., ch. lxi, and Viner's Abridgment, tit. — Good behavior ; Highmore 
 on Bail, 248. By Laws of 1860, ch cviii, § 20, p. 1007, every person in the city of 
 New York shall be deemed guilty of disorderly conduct " who shall use any threat- 
 ening, abusive, or insulting behavior with intent to provoke a breach of the peace." 
 The courts interfere by injunction to restrain the publication of letters written by a 
 party or his testator to the defendant or others. (2 Story's Eq. Juris. §§ '.'43 to 949 ; 
 "Woolsey v. Judd, 11 How. Prac. Rep. 49; 4 Duer, 379; Resp. v. Duane, 1 Binney, 
 98; 2 Stark. Slan. 268, note 1.) 
 
 1 One of the earliest refinements in forensic science was that of classifying the 
 various subjects of htigation, and allotting to each class an appropriate formula of 
 complaint or claim. Such was the practice in ancient Rome almost as early as the 
 law of the twelve tables, and continued until the time of Constautine, who abolished 
 the judicial formula;. These for mid a in the English law were called writs. How, or 
 when, or whence introduced into England is undetermined. (Stephens' PL ch. i, and 
 id. appendix, note 2.)
 
 § 54.] wrongs; remedies. 93 
 
 Henry VIII of England. 1 The most ancient writs provided 
 for the most obvious kinds of wrongs, as nuisance, waste, 
 trespass, &c. ; but in the progress of society, it seems that 
 cases of injury arose new in their circumstances, and not 
 within any of the writs then known, and that the power 
 to issue writs of a new kind was conceived not to exist 
 without the authority of the . Parliament ; accordingly, by 
 the statute of the 13 Edward I, chap, xxiv, called the 
 statute of Westminster the lid (say A. D. 1285), it was 
 provided " That as often as it shall happen in the chan- 
 cery, that in one case a writ is found, and in a like case 
 (in consimilu casii) falling under the same right, and re- 
 quiring like remedy, no writ is to be found, the clerks in 
 the chancery shall agree in making a writ," &c. Under the 
 sanction of this act, large accessions were made to the exist- 
 ing stock of original writs. 2 These new writs were said 
 to be issued upon the case, and the actions commenced by 
 them were designated actions upon the case, or actions of 
 trespass on the case. Among this class was the action of 
 trespass on the case for words — the ancient fomi of the 
 action — now known as the action of slander or libel, and 
 which is the only civil remedy for slander and libel. 
 
 § 54. The consideration of the course of procedure in 
 an action pertains more properly to a subsequent stage of 
 our inquiry. We will here merely remark that the rules 
 by which we determine when a wrong has been commit- 
 ted, and the rules of pleading, of evidence and of practice, 
 although they have a certain inter-dependence, are in fact, 
 
 1 4 Reeve's Hist. 426, 432. Original writs were abolished in England by statute. 
 (2 Will. IV, ch. xxxix.) 
 
 2 Although the new writs were to be framed only in consimilu casu, " many writs 
 were framed for various kinds of trespasses unknown in former ages." (Sullivan's 
 Lectures, Lect. 83 ; Stephens' PI. 7.) The first reported action of trespass on the 
 case is said to be found 22 Edw. Ill, Ass. 41. (Reeve's Hist.) That would be A. D. 
 1349. We have not verified this statement, and doubt its correctness. The action 
 on the case has its counterpart in the actio utilis of the Roman Law. (See 2 Austin's 
 Lect. Jur. 303.)
 
 94: WRONGS ; EE3IEDIES. 
 
 and. if we would avoid confusion, must ever be regarded 
 as separate and distinct rules. Preliminary to attempting 
 an analysis of the wrongs, slander and libel, we shall in 
 our next chapter consider what is the gist of the action 
 for slander or libel.
 
 CHAPTER IV. 
 
 » 
 
 WHAT IS THE GIST OF THE ACTION FOR SLANDER OR LIBEL. 
 
 History Silent as to the Introduction of the Action for 
 Slander — Hypothesis Necessary — How the Law Pro- 
 tects Reputation — Fiction — Pecuniary Loss the Gist 
 of the Actions for Slander and Libel. 
 
 §55. It is not known with certainty, or, rather, all are 
 not agreed, either as to the origin of the remedy by action 
 for slander or libel, or as to the gist of such an action, and 
 neither histoiy nor judicial decision furnishes any satisfac- 
 tory solution of these doubts. We know, indeed, that all 
 nations have recognized the capacity for injury inherent in 
 language, and have provided some means for punishing 
 offences arising from an abuse of the gift of speech ; but 
 we seek in vain among these laws for a clew to the prin- 
 ciples by which at this day we may determine when a 
 wrong by slander or libel has been occasioned, and when 
 we may properly invoke the remedy, by action for slander 
 or libel. 1 As the action of trespass on the case owed its 
 
 2 After a reference to all available authorities on the subject of the ancient laws 
 against offences by language, and preparing a lengthy note on the subject, we con- 
 clude that however interesting as history, its publication here would not advance the 
 object of this essay. The curious student may refer to Holt on Libel, cb, i, voL H.; 1 
 Mence on Libel, ch. viii, ix ; Starkie on Slander, 3 Johns. Cas. 382 ; Wilkins' Leg. 
 Anglo-Sax. ; Lambard's Saxon Laws ; Nicholson's Prefat. ad Leg. ADglo-Sax. ; Stiern- 
 hook De Jure Vetusto Suconum et Gothoruru ; Tacitus' De Mor. Germ. ; Saltern De 
 Antiq. Leg. Brit.; Dugdale's Origines Juridicales; Disney's Ancient Laws against 
 Immoralities; Gurdon's History of Court Baron and Court Leet; Petit's Leges At- 
 ticae; Johnson's Institutes of the Civil Law of Spain ; Michaelis' Com. on the Law of 
 Moses, Smith's Translation; The English Statutes, 3 Edw. I; 2 Rich. II; 1 Phil, 
 and Mary; 1 Eliz. ; the publications of the English Record Commissioners; Pitcairn's 
 Criminal Trials in Scotland. For seventeenth century ideas of the law of libel in
 
 96 GIST OF ACTION. [Ch. IV. 
 
 origin to the provisions of the statute, 13 Edward I, A. D. 
 1285, it seems necessarily to follow that the action of tres- 
 pass on the case for words must date its origin at some 
 period subsequent to that statute ; 1 but it does not thence 
 follow that anterior to the introduction of the action of 
 trespass on the case for words, there existed, in England 
 no remedy for wrongs by language. We know that for 
 centuries prior to the statute of 13 Edward I, offences 
 which we at this day designate slander and libel were 
 recognized and punished ; but of the time and manner of 
 introducing the remedy by action of trespass on the case 
 for words we know absolutely nothing. The reported 
 decisions in the courts of law in England, printed and in 
 manuscript, reach back at least as far as A. D. 1216, but 
 we find in those reports no reference to an action for 
 words earlier than A. D. 1321. 3 That decision merely 
 serves to inform us that at that time existed the struggle 
 for jurisdiction which probably commenced on the division 
 of the courts into courts temporal and courts ecclesiastical, 
 and which continued certainly until after the reign of the 
 first James of England. 
 
 § 56. Since, then, we can obtain no positive informa- 
 tion on the subject of our inquiry, we are driven to hypo- 
 thesis. Our mnvritten law is based on the so-called corn- 
 
 Massachusetts, see Sketches of the Judicial History of Massachusetts; and among 
 the Dutch in New York, see Valentine's Manual of Common Council for 1849, p. 402, 
 421. and under English rule : Valentine's Manual for 1847, p. 359 ; and Thomas' Hist, 
 of Printing in America. And see List of Authors following Tahle of Cases, ante. 
 
 1 Section 53, ante and note 2, p. 93, ante, Mr. Pomeroy, in his introduction to Municipal 
 Law, says, § 199: That before the statute "there was absolutely no provision for a 
 vast majority of the legal rights * * which are now the most common and im- 
 portant." And § 201 : The effect of the statute " was to extend this action to cases 
 where the injury was consequential or indirect." 
 
 a That case is in the year book of Edward II (Hil. 14 Edw. II, p. 416); it was an 
 attachment upon a prohibition against proceeding in a court Christian for defamatory 
 words. There is nothing in the report to indicate that it was a novel proceeding. 
 March, in his Treatise on Slander, says he could find no action for scandalous words 
 before Edward the Third's time, and only one such action during fifty years of that
 
 § 56.] GIST OF ACTION". 97 
 
 mon law of England, and whatever the number of sources 
 which contributed to make up that complex, vaguely un- 
 derstood and imperfectly ascertained set of legal ideas 
 denominated the common law of England, it is certain 
 that so much of it as pertains to the rights of persons is 
 mainly derived from the Anglo-Saxon and Roman civil 
 laws. Of both of those systems of laws history furnishes 
 us ample details. We know that Rome held possession of 
 Britain from about the end of the first half century of the 
 Christian era to about the middle of the fifth century (say 
 from A. D. 45 to A. D. 448), and during this period Roman 
 civil law was administered in England. When the Romans 
 abandoned Britain the Saxons became its masters, and, 
 alternately with the Danes, so continued until the Norman 
 conquest (A. D. 1066). The Saxons introduced their own 
 system of laws. The controlling idea of those laws was 
 the maintenance of the peace and protecting the person 
 and property. They did not, nor does the law at this 
 day, give directly any remedy for outraged feelings or sen- 
 timents. 1 With few exceptions, these laws designed to 
 
 King's reign ; three such actions during the reign of Edward the Fourth ; not one in 
 the reign of Henry the Seventh ; and only five in thirty-eight years of the reign of 
 Henry the Eighth. At p. 5 he says: Actions for scandal are amongst the most 
 ancient in the law. 
 
 1 See Tilley v. Hudson R. R. Co., 23 How. Pr. R. 370; Green v. Hudson R. R. Co., 
 32 Barb. 25 ; Lehman v. City of Brooklyn, 29 Barb. 234 ; Flemington v. Smithers, 2 
 C. & P. (K P.) 292; Terwilliger v. Wands, 17 N. Y. 54; Wilson v. Goit, 17 K Y. 
 442; Bedell v. Powell, 13 Barb. 183; the cases to the contrary were overruled. 
 Mence, commenting on the statement of Holt, that the few actions for slander to be 
 found in the earlier law reports was creditable to the people of those times, remarks 
 that the credit was not due to the good manners but to the fact that " the common 
 law took cognizance only of injuries to the person and property." (1 Mence on Libel, 
 333.) Perhaps among the reasons why there were so few actions for slander, one 
 may be that the parties themselves undertook to redress the injury without resorting 
 to the law. When King Harold required of Reidar, the Icelander, a blood fine for 
 killing one of his (Harold's) followers, Reidar refused to pay it, because the man 
 brought his deatli upon himself, by behaving rudely to him. See Den Danske Ero- 
 bring of England og Normandict; Copenhagen, 18G3. In Baker v. Pierce (2 L'd 
 Raym. 960), Holt, Ch. •!., said he remembered a story told by Mr. Justice Twisden, of 
 a man who had brought an action for slander, who, on judgment beim;- given against 
 him, said if he had thought lie should not have recovered he would have cut the de-
 
 98 gist OF ACTIOX. [CL IV. 
 
 remedy every wrong by a pecuniary mulct or fine (were) * 
 proportioned and adjusted to the kind and degree of the 
 wrono 1 committed. In that form of trial which corre- 
 sponded to our present jury trial, the question in Saxon 
 times was only the guilt or innocence of the accused. 2 
 The penalty (the damages) was fixed by the codes. At a 
 later period, after the Norman Invasion, and when the 
 Anglo-Saxon codes had been lost by desuetude, the courts 
 fixed the amount of damages ; this power, when jury trials 
 assumed their present phase, appears to have been trans- 
 ferred by the court to the jury — the court, however, retain- 
 ing its power to regulate the damages. 8 For ages the 
 courts always revised the allowance by the jury of dam- 
 ages, and the power is still held and exercised by the 
 
 fendant's throat. The Jesuits sanctioned killing for slander, particularly for slander 
 of one in religious orders, but they held that the killing should be secret, and not 
 open, to create scandal. (Pascal Letters, xiii.) In the " Ethica Christiana/' by Father 
 Benedict Stattler, published in 1789, it is stated, paragraphs 1889, 1891, and 1892, 
 that a Christian may, to prevent a " contumelia gravis certo provisa * * * * 
 aut calurania" * * * murder the " injusti aggresoris aut calumniatoris." Father 
 Stattler's book was published " cum permissu superiorum," and is said to be still in 
 use as a manual for ecclesiastics. 
 
 The necessity of protecting character by law could not obtrude itself till society 
 had begun to assume a complicated form. (Borthwick on Libel, 1.) The coarseness 
 of language indulged in. formerly must strike every student of history. Henry III 
 (A. D. 1248) spoke of the Aldermen of London as "London boors," applied alike 
 epithet to the Bishop of Ely, and dismissed Bishop Aymer by telling him to go to 
 the devil. See Miracles of Simon de Montfort and works of Roger Bacon. 
 
 1 Damages correspond to the Anglo-Saxon were : 1 Palgrave's Rise, d:c., Eng. 
 Commonwealth, 205; Bosworth's Anglo-Saxon Diet., tit. Were and Wite ; 2 Lappen- 
 burg's History of England (Thorp's Translation), 336. 
 
 2 As to the origin of trial by jury, <fcc, see Forsyth's Hist, of Trial by Jury, and 
 Stephen's PI. Appendix, note 40; 2 Reeves' Hist. 270; Fortescue de Laudibus Legum 
 Anglise, ch. xxv, xxvi, xxvii, and notes to the edition by Amos ; 2 Hallam's Middle 
 Ages, 388-406, note, 11th edit. ; Palgrave's English Commonwealth, 272. 
 
 3 See Viner's Abr., tit. Damages — J. K. L. M., as to powers of courts to in- 
 crease or mitigate damages. The right was denied in an action for slander, because 
 there is in such an action nothing apparent for the judgment of the court to act upon. 
 Id. K. See Cassin v. Delany, 38 N. Y. 178; but in Gostling v. Brooks, 2 F. A F. 76. 
 the court in bauk upheld the verdict for the plaintiff, but reduced the amount of dam- 
 ages. The damages increased for giving plaintiff bad food to eat. (1 Rolle, 89.) And 
 in cases of maihem. See Jacobs' Law Diet., tit. Maihem. Rolle Ab., tit. Damages ; 
 2 Sharswood's Blackstone's Comm., 121 note.
 
 § 56.] GIST OF ACTION. 99 
 
 courts, although at the present time it is customary to 
 make the revision by granting a new trial. Even now 
 the courts not unfrequently order a reduction of damages, 
 or a new trial, at the election of the party to whom dam- 
 ages have been awarded. The Anglo-Saxon 1 codes pro- 
 vide for offences occasioned by language, but they are all 
 offences which amount to public wrongs or crimes, sedition, 
 or treason, rather than private wrongs or torts. These 
 codes are in fact barren of any provision of a pecuniary 
 fine or penalty for a private injury by language. While 
 the Saxons were yet dominant in Britain, Christianity, 
 which had been early introduced into England and become 
 extinct, was reintroduced through the Church of Rome — 
 say A. D. 596. The introduction of Christianity did not 
 abrogate the Saxon laws, but it at least supplemented 
 upon them many precepts of Christianity, and, beyond a 
 doubt, laid the foundation for the dictum that Christianity 
 is part of the common law of England. 2 The clergy rose 
 
 1 Sir Francis Palgrave, in his "History of Normandy and of England," which un- 
 happily he was not spared to complete, objects to the term Anglo-Saxon as a designa- 
 tion of the English of the ante-Norman period. He denies there was any Anglo- 
 Saxon people or language, properly so-called, and says : " If you had asked Alfred 
 what he had in his hand, he would have answered it was an Engliscboc * * * 
 The name of our nation then, as now, was English." (Vol. Ill, p. 631, edit. 1864.) 
 Mr. Palgrave himself employs the term Anglo-Saxon in his earlier works. 
 
 a We do not intend to assert that Christianity is parcel of the English common 
 law. Sir Matthew Hale, in Rex v. Taylor (Ventris, 293 ; 3 Keble, 621 ; Tremayne's 
 Pleas of the Crown, 226;) following Lord Coke, uttered a dictum that " Christianity 
 is part of the laws of England." That dictum has been repeated in subsequent cases. 
 See, among others, Rex v. Webster, Fitzg. 64 ; 2 Str. 834 ; Reg. v. Gathercole, 2 
 Lewin C. C 237 ; Reg. v. Hetherington, 5 Jur. 529, Q. B. ; Rex v. Paine, 1 East P. C. 
 5; Lindenmuller v. The People, 33 Barb. 54S ; Bedford Charity, 2 Swans. 52*7; Da 
 Costa v. Paz, 2 Swans. 420 n. ; Att'y-Gen'l v. Pearson, 3 Mer. 399 ; Andrew v. N. Y. 
 Bible & Prayer Book Soc, 4 Sandf. 157; 1 Bish. Cr. Law, § 945, 947 ; 2 Id. § 87. 
 Jefferson, in a letter to Major Cartwright, controverts the dictum that Christianity is a 
 part of the common law. This letter is commented upon in the Inaugural Discourse 
 delivered by Joseph Story on taking the chair of Dane Professor at Harvard Univer- 
 sity, and in an article in 9 American Jurist, and see Life and Letters of Joseph Story, 
 vol. I, pp. 430^134; vol. II, pp. 8, 462, 463; and on this subject see the arguments of 
 Webster and Sergeant in the Girard will case ; and Lewis on Authority in Matters of 
 Opinion. Holt says Alfred made Christianity part and parcel of the common law. 
 (Holt on Libel, 32.) See strictures on this dictum, 1 Mence on Libel, 303.
 
 100 GIST OF ACTION. [Ch. IV. 
 
 to great power in the State, they sat in the courts of jus- 
 tice, and took part in the decision of all judicial controver- 
 sies, and they claimed and exercised a sole jurisdiction 
 over all questions involving considerations of moral right 
 and wrong (sins), rather than considerations of legal rights 
 or rights of property ; those rights in fact which were pro- 
 vided for by the letter of the laws. The jurisdiction thus 
 claimed and exercised included heresy, adultery, perjury, 
 and defamation. This jurisdiction was assumed and exer- 
 cised with the avowed design not of compensating the in- 
 jured party, but for the reformation of the offender. 
 Reparation in damages was made only in the cases and for 
 the offences provided for in the codes. In the exercise of 
 their powers the clergy adopted — at least to some extent 
 — the forms of procedure in use in the Roman law. 
 
 On the Norman accession, William introduced the 
 feudal system, but professed to respect and continue in 
 force the Saxon laws. He separated the courts into 
 ^ courts of different jurisdictions, the clergy no longer sat 
 in the temporal courts, but apart in courts Christian or 
 Ecclesiastical. It would seem they were debarred the 
 exercise of any jurisdiction in controversies in which 
 money damages were claimed. The line of demarca- 
 tion between the jurisdiction of the temporal and eccle- 
 siastical courts appears to have been that, where com- 
 pensation was sought, resort was to be had to the 
 temporal courts; and where the reformation of the 
 
 The Dome-Book of Alfred, said by Blackstone to have been extant so late as the 
 reign of Kino- Edward the Fourth, and to have been lost, was supposed by both Ilal- 
 lam and Turner never to have existed. It has since been published by the Record 
 Commissioners, vol. I, pp. 55-101. It commences with the ten commandments, fol- 
 lowed by many Mosaic precepts. After quoting the canons of the Apostolical coun- 
 cil at Jerusalem, Alfred refers to the command, " As ye would that men should do 
 unto you, do ye also to them ; " adding, " from this one doom, a man may remember 
 that he judge every one righteously he need heed no other doom book." 
 
 The Puritan Colony of New England resolved at a " General Court, October 25th, 
 1639 * * * the worde of God shall be the onely rule to be attended vnto in 
 ordering the affayres of government in this plantatio."
 
 § 56.] GIST OF ACTION. 101 
 
 offender only was desired, then resort was to be had to 
 the ecclesiastical courts. And where the ecclesiastical 
 courts entertained jurisdiction of suits in which money 
 might be demanded, the temporal courts restrained them 
 from proceeding therein by the writ of prohibition. As 
 there is now, so there must ever have been, a distinction 
 between language occasioning pecuniary or temporal 
 injury, and language insulting and provoking and 
 harrowing to the feelings, without occasioning pecuniary 
 or temporal injury. This distinction seems to have been 
 clearly recognized by the statute circumspecte agatis, 1 and 
 leads almost irresistibly to the conclusion that the gist 
 of the action of trespass on the case for words, was the 
 pecuniary loss, and not for the injury to the reputation — 
 the defamation. In the early stages of society, only that 
 language which put one in peril of punishment, loss of 
 inheritance, or of social companionship, could occasion 
 j)ecuniary loss ; 2 but as society progresses, as more faith 
 
 1 The statute thus styled was passed 13 Edward I, stat. 4, ch. i, A. D. 1285. 
 The King to his justices sendeth greeting : " Use yourselves circumspectly (circum- 
 specte agatis) in all matters concerning the Bishop of Norwich and his clergy, not 
 punishing them if they hold pleas in courts Christian of such things as be meer 
 spiritual * * * and for laying violent hands on a clerk, and in canons 
 of defamation it hath been granted already that it shall be tried in a spiritual court 
 when money is not demanded but a thing done for punishment of sin." By this it 
 appears, said Lord Coke, that the cognizance of defamation was granted by act of 
 Parliament. (2 Inst. 492.) See Appendix D, No. 11, to Ecclesiastical Comm'rs 
 Report, Feb. 27, 1832; and Stephens' Ecclesiastical Statutes, pp. 26-34. The 
 statute 9 Edward II, stat. 1, ch. iv, A. D. 1315, enacted: "In defamation, prel- 
 ates shall correct also in manner above said, the King's ^prohibition notwith- 
 standing." 
 
 It seems of those defamations by which the party is damnified the spiritual court 
 cannot hold plea. (Vin. Ab. tit. Prohibition, D. 5.) In Bacon's Abr. tit. Courts 
 Ecclesiastical D, it is said : " No suit can be instituted in an ecclesiastical court for 
 defamatory words in writing, because they may be the subject of an action at law." 
 (Comb. 71.) This, however, appears not to be correct. In "Ware v. Johnson, 2 Sir 
 Geo. Lee's Cas. in Eccl. Co'ts, 103 (A. D. 1755), the words, " He keeps a whore in his 
 house," were held to be defamation, and that whether the language was in writing or 
 by parol. And see 2 Phil. Eccl. Cas. 106. 
 
 2 " 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. (Noy, 64 ; 1 Freem. 
 277.) But too great an encouragement being given by this lenity to false and ma-
 
 102 GIST OF ACTIOX. [Ch. IV. 
 
 and reliance have to be placed by men each in the 
 integrity of the other, so increases the power to inflict 
 pecuniary injury by means of language. The theory of 
 the law being to redress all wrongs by a pecuniaiy fine, 
 whenever it appeared that a pecuniary wrong was 
 occasioned by language, there the temporal courts under- 
 took to afford redress. It may be that at first, in all 
 cases, in order to maintain an action for words in the 
 temporal courts, it was necessary to prove a pecuniary 
 loss ; but those courts, by laying it down as a rule of 
 evidence, that certain words 'per se, and without any 
 further evidence, were proof of pecuniaiy loss, facilitated 
 a resort to the temporal courts, and, by gradually ex- 
 tending the list of words which were regarded per se as 
 evidence of pecuniary loss, so did those courts extend 
 their jurisdiction. Thus, probably, originated the dis- 
 tinction between words actionable per se and words 
 actionable only on proof by other evidence than the 
 words themselves of pecuniary loss. It is supposed that 
 formerly the English law recognized no distinction 
 between the effect of written and spoken words. When 
 or why that distinction was introduced is unknown. 
 It may well be that the desire of the temporal courts to 
 enlarge their jurisdiction led them to adopt this distinc- 
 tion, a distinction for which they found some warrant in 
 the Roman law. 1 
 
 § 57. We attempted to explain in Chapter II, the 
 
 licious slanders, it is now held that for scandalous words of the species before men- 
 tioned (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. (3 Bl. Com. ch. viii.) 
 
 1 See note , p. 67, ante, Daniel O'Connell, in 1834, proposed a bill in the English 
 Parliament intended, amongst other things, to assimilate libel to slander as to what 
 language should give a right of action. See this bill commented upon, XI Londoo 
 Law Mag. 432.
 
 § 57.] GIST OF ACTION. 103 
 
 difference between an injury to reputation and an injury 
 to property ; and to show that an injury to the reputa- 
 tion did not necessarily imply an injury to the person or 
 property. In Chapter III, we undertook to show that 
 reputation was not an absolute right, and in the preceding 
 portion of this chapter we have attempted to show that 
 the temporal courts of common law only recognized 
 injuries involving pecuniary or temporal loss. It nowhere 
 appears that the temporal courts recognized any right to 
 reputation, and it is entirely consistent with all our 
 knowledge of the law to assert that, in theory at least, 
 the temporal courts of England never did, and, as the 
 law in this respect has not been changed, they do not 
 now, recognize reputation as a right which the law 
 protects. And if this be so in England, then is it so in 
 the United States. When we consider that "falsely 
 and maliciously to impute, in the coarsest terms and 
 on the most public occasion, want of chastity to a woman 
 of high station and unspotted character, or want of 
 veracity or courage to a gentleman of undoubted honesty 
 and honor, cannot be made the foundation of any proceed- 
 ing civil or criminal ; whereas an action may be maintained 
 for saying that a cobbler is unskillful in mending shoes, 
 or that any one has held up his hand in a threatening 
 posture to another," 1 it would seem to need nothing more 
 to satisfy the most skeptical that the protection is to the 
 property, and not to the reputation. We conclude, there- 
 fore, to state as law, that pecuniary loss to the plaintiff is 
 the gist of the action for slander or libel. If the lan- 
 guage published has not occasioned the plaintiff pecuniary 
 1< >ss (actual or implied), then no action can be maintained. 2 
 
 1 Report of Committee of House of Lords on Defamation ami Libel, July, 1843. 
 
 a In a note to the " Preliminary Discourse " to the American edition of Starkie on 
 
 Slander, a ter referring to the Roman law as making personal contumely and insult 
 
 '■nee of the offence of slander, adds: " This, it will be seen, is a circumstance 
 
 which constitutes a very essential and characteristic distinction between the law of 
 
 England and that of Rome, and of those countries which have adopted the civil law ;
 
 104 GIST OF ACTION. [Ch. IV. 
 
 Let us not be misunderstood. We concede all that can 
 be urged as to the value of a " good reputation? We 
 believe, with Lord Bacon, that "men's reputations are 
 
 * * * for the law of England has from very distant times considered the 
 temporal injury to a man's estate, and not the contumely or insult of the agent as the 
 ground of compelling reparation in damages." (Prelim. Disc, vii.) "There must be 
 some certain or probable temporal loss or damage to make words actionable ; " this 
 was said of. oral words by De Gray, C. J., in Onslow v. Home, 3 Wils. 177, and this 
 was approved by Lawrence, J., in Holt v. Scholefield, 6 T. R. G91. And per Bayley, 
 J., in Whittaker v. Bradley, 7 D. & R. 649 : " The principle on which this species of 
 action (action for saying orally plaintiff, an innkeeper, was a bankrupt) is, that the 
 slander has the effect of producing temporal damage to the party complaining." To 
 maintain the action there must be injury to the plaintiff. (Ellenborough, Ch. J.. Mait- 
 land v. Goldney, 2 East, 426.) An action on the case is not maintainable in any case 
 without showing especial prejudice. (Lowe v. Harwood, Cro. Car. 140 S. C. ; Palmer, 
 529; Ley, 82.) 
 
 Reputation or fame is under the protection of the law, because all persons have 
 an interest in their good name, and scandal and defamation are injurious to it, though 
 defamatory words are not actionable otherwise than as they are a damage to the 
 estate of the person injured. ("Wood's Ins. 37 ; Jacob's Law Diet, voce Reputation or 
 Fame.) An action on the case lies for words and for deeds. For words spoken to or 
 concerning another, whereby one is defamed and damnified. (2 Wood's Ins. 927.) 
 " One essential ingredient of a good cause of action for defamation is damage." 
 (Channell, B., Foulger v. Newcomb, Law Rep. II Ex. 330.) Reputation is property. 
 (Dixon v. Holden, Law Rep. VII Eq. 492.) 
 
 " In England, by the common law, defamatory words are not actionable, other- 
 wise than as they are a damage to the estate of the person injured." (Wood's 
 Law, 244, note.) " I am not certain," says Lord Karnes, " that in England any verbal 
 injury is actionable, except such as may be attended, with pecuniary loss or damage. 
 If not, we in Scotland are more delicate. Scandal, or any imputation upon a man's good 
 name, may be sued before the commissaries, even when the scandal is of such a nature 
 that it cannot be the occasion of any pecuniar}' loss. It is sufficient to say, I am hurt 
 in my character." (Historical Law Tracts, p. 225.) 
 
 "The party injured [by libel] may no doubt bring an action on the case. This 
 process, however, is not competent unless it is grounded on an actual loss, which must 
 be shown to have been sustained." (Borthwick on Libel, 4.) In Boldroe v. Porter, 
 Yelv. 20, the declaration alleged per quod the plaintiff was in danger to lose her goods 
 and life. In Edward's Case, Cro. Eliz. 6, held the charge actionable, and assigned as 
 the reason, that " by such speech the plaintiff's good name is impaired." In Button i>. 
 Heywood, 8 Mod. 24, Fortescue, J., observed : " It was the rule of Holt, Ch. J., to make 
 words actionable whenever they sound to the disreputation of the person of whom they 
 were spoken, and this was also Hale's and Twisden's rule, and I think it a very good 
 rule." 
 
 "I will cite rights to forbearances merely. A man's right or interest in his good 
 name is a right which avails against persons as considered generally and indetermin- 
 ately. They are bound to forbear from such imputations against him as would amount 
 to iujuries towards his right in his reputation. But though the right is a real right, 
 there is no subject, thing, or person over which it can be said to exist. If the right
 
 § 57.] GIST OF ACTION. 105 
 
 tender things, and ought to he like Christ's coat, without 
 seam." * And " who can see worse days than he that, yet 
 living, doth follow in the funeral of his own reputation." 
 We do not intend to deny that the law does in fact, and 
 to a great extent, protect reputation ; but we intend to be 
 understood as insisting that, where the law does protect 
 reputation, it does so indirectly, by means of a fiction — an 
 assumption of pecuniary loss. In theory, the action for 
 slander or libel is always for the pecuniary injury, and 
 not for the injury to the reputation. There are many 
 such fictions introduced into the administration of the 
 law, by means of which, without changing the rule of law, 
 the law is, in effect, changed. 2 When this is the case, this 
 difficulty arises : Shall the rule be stated as it is in theory 
 or as it is in effect ? and then this further difficulty, that these 
 two phases of the same rule are sometimes stated as two 
 distinct rules, and the rule being stated sometimes one way 
 and sometimes the other, creates confusion and apparent 
 contradiction. It may be that practically it is the same 
 thing, whether the remedy is given by law for the injury 
 to the reputation, or for the pecuniary injury by means of 
 an attack on the reputation ; but in reasoning on this, as 
 on any other subject, it makes all the difference whether 
 we start with a true proposition, or a false one. With 
 a false premise we may arrive at a conclusion which is 
 
 has any subject, its subject consists of the contingent advantages which he may pos- 
 sibly derive from the approbation of others. (2 Austin's Lect. Juris. 51.) Right to 
 reputation may be classed with property. It is a right to the chance of the favorable 
 opinion and the good offices of others. There is no obligation to do me good, but an 
 obligation to forbear from lessening the chance of deriving good from voluntary 
 service, &c. (2 Id. 479, and 3 id. 179, 184.) 
 
 1 Lord Bacon's charge against Lumsden. Good reputation has ever been, as it is 
 now, of great value as a shield against imputation of crime ; by a law of William the 
 Conqueror, if a man of good reputation was charged with theft, he might clear him- 
 self by his single oath. (Leges Gul. Conq. 14, in the Ancient Laws and Institutes 
 published by the English Record Commissioners. See Anthon's Law Student, Thesis X: 
 Character, how far a Universal Shield. Also, McXally's Crirn. Ed. 573.) 
 
 2 See Maine's Ancient Law, 2G, and Bryant v. Foot, Law Rep. II Q. B 181.
 
 106 GIST OF ACTION. [Ch. IV. 
 
 true ; but we can never, under such circumstances, be sure 
 that our conclusion is true. 
 
 § 58. Among the fictions referred to in the last pre- 
 ceding section, perhaps the most noticeable, and the one 
 which best illustrates our meaning, is that by which more 
 than nominal damages are recovered by a parent for the 
 seduction of a daughter. At the present day, no lawyer 
 doubts that at common law no action could be main- 
 tained for the seduction of a daughter, merely as a daugh- 
 ter, nor merely for the seduction. But at common law, 
 to deprive one of the sendees of his hired sen-ant gave a 
 cause of action, because it occasioned a pecuniaiy injur}-. 
 The common law gave a parent a right to the services of 
 his minor children ; then, in order to afford a remedy 
 for seduction, which was not contemplated by the common 
 law, the daughter is styled servant, and the remedy is 
 given in theoiy, not for the grief and shame of the seduc- 
 tion, but because, by means of the seduction, the servant 
 was the less able to perform the services required of her, 
 and the parent thereby sustained a pecuniary loss. 1 This 
 was the first step ; and where the daughter was, in fact, 
 one of the parent's household, the change from the status 
 of daughter to that of servant was easy enough. The 
 next step was where the infant daughter was not in fiict 
 one of the parent's household, but was in the service of 
 another, by her own contract, and not by the contract of 
 the parent ; then the action was allowed on these grounds : 
 the daughter, being an infant, could not lawfully contract 
 for her services, therefore the parent could at will rescind 
 the contract, and take the daughter to the parental service ; 
 but if the "parent did so, the servant would be less 
 
 1 There can be no doubt that the law is as above stated (Knight v. Wilcox, 14 N. 
 Y. 413); and yet it is but candid to say that there are dicta to the effect that the 
 mortification and disgrace and wounded feelings constitute the gravamen of the action. 
 See Badgley v. Decker, 44 Barb. 577, and cases there cited.
 
 § 59.] GIST OF ACTION. 107 
 
 efficient, and so a pecuniary injury might or did result. 
 The next and final step thus far is, that where the infant 
 daughter was, by the contract of the parent, the servant 
 of another, still the action can be maintained if the 
 seducer by his fraud had procured the making of the con- 
 tract, and this on the ground that the fraud vitiated the 
 contract, and leaves the parent an option to reclaim the 
 daughter's services. 1 
 
 § 59. By similar processes to those detailed in the 
 last preceding section it has come to pass that the remedy 
 for injuries by language, in theory given only to redress a 
 pecuniary loss, is now applied to and embraces cases in 
 which no pecuniary loss is or can be shown to have 
 occurred. The process by which this result has been 
 arrived at is, by adopting the rule of evidence above 
 referred to (§ 56), that certain language is per se, and 
 without other evidence, conclusive proof of pecuniary 
 loss; this, however, is only a rule of evidence, and the 
 rule of right remains intact — that a pecuniary loss must be 
 shown to entitle a remedy. That the rule is so is demon- 
 strated by the case of words to which the rule of evidence 
 just referred to does not apply, or to words which are said 
 not to be actionable per se — that is, which are not per se 
 evidence of pecuniary loss. As to these, it has 'never been 
 doubted that a pecuniary loss must be shown to entitle 
 the plaintiff to a remedy. 2 
 
 1 See Lipe v. Eisenlerd, 32 N. Y. 229 ; "White v. Nellia, 31 K Y. 405 ; Dain v. 
 "Wyckoff, 18 N. Y. 45 ; s. c. 7 N. Y. 191 ; Mulvehall v. Milward, 11 N. Y. 343 ; Bartley 
 v. Richtmeyer, 4 N. Y. 38 ; Knight v. Wilcox, 14 N. Y. 413; Harper v. Luff kin, 7 B. 
 & C. 887 ; 1 M. & R. 166. This last case is a noticeable instance of how far courts 
 will in effect depart from the rule of law, while they uphold it in the letter. 
 
 2 Beach v. Ranney, 2 Hill, 309; Herrick v. Lapham, 10 Johns. 291 ; Hallock y. 
 Miller, 2 Barb. 630; Hersh v. Ring-wait, 3 Yeates, 508. "The real foundation of the 
 action [for libel] is the right to recover pecuniary satisfaction." (Viele v. Gray, 10 
 Abb. Pr. R. 7.) The special damage must be of a pecuniary nature. (Beach v. Ranney, 
 
 2 Hill, 309.) And see ante note to § 57, and post note to § 72 ; Heard on Libel, ch. v, 
 § 54, Kelly v. Partington, 3 Nev. & M. 116; 5 B. & Ad. 645; Keenholts v. Decker, 
 
 3 Denio, 346; Foulger v. Newcomb, Law Rep. II Ex. 330; Terwilliger v. Wands, 17 
 K Y. 62; Wilson v. Goit, 17 N. Y. 444 ; Roberts v. Roberts, 33 Law Jour. Q. B. 250.
 
 CHAPTER V. 
 
 WRONGFUL ACTS. ELEMENTS OF A WEONG. 
 
 Wrongful Acts — Liability — Presumptions of Law — 
 Questions of Law and Fact — Essential acts in Slan- 
 der and Libel — Defamatory — Falsity — Voluntary — 
 Involuntary — Intention — Malice. 
 
 § 60. Although we are unable to predicate of any 
 act per se whether or not it is a xvrong (§ 51), we may, 
 at least as to some acts, determine of them per se whether 
 or not they are wrongful. 
 
 § 61. An act is wrongful which, as a necessary or as a 
 natural and proximate consequence, occasions hurt of 
 body or pecuniary loss to another than the actor. 1 When 
 the necessary consequences of the act must be hurt of 
 body or pecuniary loss, then the act is patently wrongful, 
 or wrongful per se. When the act is one the conse- 
 quences of which are not necessarily hurtful to the person 
 or property of another, but is an act the natural and 
 proximate consequences of which may occasion hurt to 
 the person or property of another, then it is latently 
 wrongful. It is wrongful, provided that as a natural and 
 proximate consequence there ensues personal hurt or 
 pecuniary loss to another. One and the same act may 
 occasion harm to the person and loss of property of 
 another, and either by its necessary or its natural and 
 proximate consequences, or both. It is not always easy 
 to determine what are necessary and natural and proxi- 
 
 1 Bonomi v. Buckhouse. 9 Ho. Lords' Cas. 503 ; Smith v. Thackerah, Law Rep. 1 C. 
 P. 566.
 
 WRONGFUL ACTS. 109 
 
 mate consequences, and tB distinguish them from those 
 which are not necessary, not natural, or not proximate 
 (remote) consequences. The rules for making this deter- 
 mination and distinction will be hereafter considered. 
 We have here but to remark that the necessaiy, natural, 
 and proximate consequences of an act are those of which 
 alone the law takes cognizance, and these it 4s which 
 constitute in legal phraseology damage or injury. Any 
 consequence which is neither necessary nor natural and 
 proximate is disregarded in law. 
 
 § 62. No act, but a wrongful act, can become a wrong ; 
 but every wrongful act, in the absence of any excuse for 
 it being shown, is prima facie a wrong. It is a wrong 
 provisionally or conditionally ; that is to say, it is regarded 
 for all purposes as a wrong, unless and until a legal excuse 
 for the doing it is shown. That which does not exist and 
 that which is not shown to exist are the same. A legal 
 excuse not shown to exist is the same as though no legal 
 excuse existed. The burden of showing the existence of 
 a legal excuse or a defence is always upon the doer of the 
 wrongful act. 
 
 § 63. Anything which must be shown to establish a 
 legal excuse or a defence is no part of the essential ele- 
 ment of a wrong. In practice, to entitle to a remedy, it 
 is required only to show a wrongful act done, and nothing 
 more appearing, the right to the remedy follows as of 
 course. Reason and expediency alike demand that in this 
 respect the theory should correspond to the practice. 
 
 § 64. Legal excuses are of two kinds — such as consti- 
 tute an absolute bar or defence to the act, or such as con- 
 stitute a conditional defence. A le^al excuse of the latter 
 kind is a defence, until some additional fact is shown 
 which takes from it the character of a legal excuse. The 
 legal excuse that the language was spoken by a judge as
 
 HO WRONGFUL ACTS. [Cll. V. 
 
 such, or by a witness as such^s of the first or absolute 
 kind. The legal excuse that the language was published 
 to one who was interested to know it and with a belief 
 that it was true is a legal excuse of the second or qualified 
 kind. The excuse exists only provided it does not appear 
 that the language was published not believing it to be 
 true, or published to one not interested to know it. 
 
 § 65. There is this distinction between legal excuse 
 and defence. Legal excuse is such a state of facts as pre- 
 vents a wrongful act amounting to a wrong. Defence 
 includes legal excuse and more; namely, those cases in 
 which the wrong is admitted to have been done, but 
 where, from some circumstance, such as the statute of 
 limitations, or satisfaction, or in the action for libel the 
 truth of the language published, the plaintiff has forfeited 
 or waived his right of action. 
 
 §66. The question what constitutes a wrong or when 
 has a wrong been committed, and the question who is 
 liable therefor, are essentially distinct questions, and to 
 be determined by different rules. 
 
 § 67. As regards liability, no one is responsible for 
 involuntary acts, 1 nor for any other than 'wrongful 
 
 1 A man must will an act before he can be responsible for it. (Wood's Civil Law, 
 18.) No action lies for an inevitable accident. (Harvey v. Dunlop, Hill it Denio, 
 Sup. 193 ; see Center ». Finney, 17 Barb. 94, affirmed 2 Selden's notes, 44.) No man 
 is liable civilly or criminally for a purely accidental mischief; that is to say, for the 
 consequences of an act not his own which he was unable to foresee, or, foreseeing, 
 was unable to prevent (2 Austin's Lect. Juris. 165, 167.) The act must be inten- 
 tionally clone ; the meaning of which is, that the defendant should know what he 
 published, for, as in the case put by Starkie, if a servant should deliver a sealed letter 
 containing the defamatory matter without knowing its contents, he would not, though 
 the actual instrument of publication, be liable to an action. (Daly. F. J., Viele v. 
 Gray, 10 Abb. Pr. R. 7; 18 How. Pr. R. 550.) If published inadvertently it would 
 not be a libel. (Rex v. Abingdon, 1 Esp. Cas. 228.) Being the sale of a few copies of 
 a periodical journal containing the libel, it was for the jury to say if the defendants 
 were cognizant of what they sold. (Chubb v. Flannagan, 6 C.i P. 431.) Sinco 
 intention and will are essential to every act, and intention, will, and malice to every
 
 § 68.] ELEMENTS OF A WRONG. Ill 
 
 acts (§ 62). All who without legal excuse concur in a 
 wrongful act are alike liable either jointly or separately. 
 No one can excuse his concurrence in a wrongful act merely 
 on the ground that in what he did he acted as agent for 
 another. 1 It sometimes happens that those who are in no. 
 wise concerned in the actual doing of a wrongful act, or a 
 wrong, are nevertheless liable therefor; this, be it ob- 
 served, is not on account of any presumed connection iviih 
 the act, but because under the circumstances they are 
 legally responsible for the acts of the actual wrongdoers. 2 
 It may also occur that the one who actually does the act 
 may not be liable, while for that same act another may 
 be liable. 3 
 
 § 68. The proposition that one is liable for his wrong- 
 ful act implies, in terms, liability for the necessary, natural, 
 and proximate consequences of the act. This leaves no 
 room for any question as to the intent with which the act 
 is done. There may or may not be any intent, good or 
 bad ; but intent or no intent, the liability is for the act 
 and its consequences, not for the intent. By the law of 
 England intent alone, without any overt act, may con- 
 stitute treason, with this exception there is no case in 
 which intent alone, without an act, can constitute a wrong. 
 The prima facie liability for the commission of a wrong- 
 ful act can be avoided only by showing some defence or 
 lawful excuse. Showing the act to have been done with 
 
 crime, the absence of any intention or will will prevent any occurrence from being an 
 action, and the absence of malice * * * will prevent any action from being a 
 crime. (Stephen's Crim. Law, 85.) 
 
 1 " There are no agencies in crime." (E.Darwin Smith, J., Lowenstein v. The 
 People, 54 Barb. 305.) If a person does an act with a guilty intent, he is not the 
 agent of any one. If he does it innocently, he is the agent of some person or per- 
 sons, and if two have agreed to employ him, he is the agent of both. Alderson, B., 
 Reg. v. Bull, 7 Law Times, 8; and see Moloney v. Bartlett, 3 Camp. 210; Ilecker v. 
 De Groot, 15 How. Pr. R. 314, and post, §§ 265-7. 
 
 2 See post, Publisher. 
 
 3 See ante, note to § 67, and post, Publisher, § 121.
 
 112 WKONGFUL ACTS. [Ch. V. 
 
 a good intent would not of itself, in any case, constitute a 
 defence or lawful excuse. The consequences of an act are 
 incidents to the act, and inseparable from the act. Liability 
 for the one is inseparable from liability for the other. The 
 usual ground upon which this liability for the consequen- 
 ces of an act is placed is, that the law presumes every one 
 to intend the necessary and natural consequences of his 
 acts. 1 The phrase, the law presumes, is objectionable. The 
 law does not presume. 2 It is customary to say that the 
 law presumes every one innocent ; every one of good re- 
 pute ; every wrongful act to be malicious ; every one to 
 intend the consequences of his acts, &c. But it is not so. 
 If one is accused of wrong, the law requires proof of his 
 guilt ; not because it presumes him innocent, but because 
 it does not presume him guilty, and requires the fact to 
 be proved. One complaining of injury to his reputation 
 is not excused from proving his reputation to be good be- 
 cause the law presumes his reputation to be good, but 
 because the law does not presume it bad. On proof of a 
 
 1 The law presumes a party to intend the injury his acts are calculated to pro- 
 duce. (Haire v. Wilson, 9 B. <fc Cr. 643 ; Viele v. Gray, 10 Abb. Pr. R. 7, and series 
 of dicta.) A man is as much answerable for the probable consequences of his act as 
 for the actual object. (Rex v. Moore, 3 B. <fc A. 184.) " It is a universal principle 
 that when a man is charged with doing an act (that is a wrongful act without any 
 legal justification) of which the probable consequences may be highl\- injurious, the 
 intention is an inference of law resulting from the doing the act." (Rex v. Dixon, 3 
 M. & S. 15; cited Reg. v. Hicklin, Law Rep. Ill Q. B. 375. 
 
 3 We are not unmindful of the fact that the books are full of such expressions, as 
 the law presumes, presumption of law, <fcc. But the phrase is objectionable and 
 should be reformed. Burrill says the presumption is rather an assumption. (Pre- 
 sump. Ev. 10, 43; and see 6 Lond. Law Mag., 354.) The inference, for it is absurd 
 to call it a presumption. (Stephen's Crini. Law, 1S2.) " Presumptions of fact are but 
 inferences drawn from other facts." (Mason, J., O'Gara v. Eisenlohr, 7 Trans. App. 
 317.) Distinction between presumption of evidence and presumption of law, see 
 The People v. McCann, 16 N. Y. 66; Powell v. Cleaver, 2 Brown Ch. R. 499. Pre- 
 sumptions are not based on the supposition that the fact presumed exists, but because 
 the policy of the law requires such a presumption. (Doe v. Earnhart, 10 Iredell's 
 Law Rep. 516.) Presumption " is the inference of one fact from another." (Duncan 
 v. Little, 2 Bibb, 426.) Counsel : It must be assumed that the trustee will do his 
 duty. (Pollock, Ch. B.) We must assume nothing either way, but he may not. 
 (Bulnois v. Mann, Law Reports I, Ex. 30.)
 
 § 69.] ELEMENTS OF A WRONG. 113 
 
 wrongful act the law will punish it as a wrong, not because 
 it presumes the act to be malicious, but because it does 
 not presume there was any legal excuse for doing the act. 
 An act being wrongful is prima facie a wrong, and if it 
 is not, the burden of showing the legal excuse to exist is 
 on the actor, or whoever is liable for the act. One is 
 liable for the consequences of his acts because the law 
 will not presume the actor intended any other than the 
 consequences of his act, not because the law presumes 
 any intention. It would be as illogical and unfair to pre- 
 sume that one did not intend to do exactly what he has 
 done, as it would be unwise to allow one to say he did 
 not intend to effect the necessary and natural consequences 
 of his acts. 
 
 § 69. In every transaction brought before a court of 
 law for adjudication two questions always arise : (1) what 
 are the facts, and (2) what is the law applicable to those 
 facts? The court always decides the questions of law. 
 Some questions of fact are decided by the court, and some 
 by the jury. 1 Courts control the decisions of juries on 
 questions of fact. 2 (1) By determining whether or not 
 
 1 For twelve honest men have decided the cause 
 Who are judges alike of the facts and the laws. 
 From a political ballad by Alderman Glover, called " Hosier's Ghost." In " Polit- 
 ical Ballads of the 17th and 18th Centuries," by W. Walker Wilkins, London, 1860; 
 also to be found in a work entitled " England under the House of Hanover," by 
 Wright. On the motion for a new trial in the case of the Dean of St. Asaph, (3 T. 
 R. 428, note,) Lord Mansfield cited the above lines as thus: 
 
 For twelve honest men have decided the cause 
 Who are judges of facts, though not judges of laws. 
 He attributed the authorship to Mr. Pulteny, and as written on the occasion of 
 the failure of the prosecution against " The Craftsman." (See 21 State Trials, 847, 
 1046; 17 id. 625; Forsyth's Hist, of Trial by Jury, 272.) Lord Campbell in his 
 Lives of the Chancellors (vol. VI, p. 176, Life of Lord Hardwicke) attributes thi3 
 ballad to Pulteny — The Percy Anecdotes (Anecdotes of Imagination) not only give 
 Alderman Glover as the author, but mention the circumstances under which it was 
 composed, while the author was on a visit at the house of Lady Temple. 
 
 3 The judge put back the jury twice because they offered their verdict contrary 
 to their evidence. (Clayton, 50.) Instances of judges taking questions of fact out
 
 114 WRONGFUL ACTS. [Cll. V. 
 
 the evidence adduced tends any way to prove the fact in 
 issue ; whether there is some evidence or ?w evidence. 
 
 (2) By deciding in some cases that certain established 
 facts warrant or do not warrant certain inferences, and 
 requiring the jury to accept such inferences as proved. 
 
 (3) By deciding what evidence is to be regarded, and 
 what disregarded, whether as going to prove or disprove 
 a fact, or to affect damages. (4) By granting new trials 
 when they deem the verdict as contrary to or as against 
 evidence, or the damages excessive or inadequate. The 
 connection between one fact and another, as cause and 
 effect, is always a question of fact. It is the degree of 
 probability of such connection which leads courts to de- 
 termine whether they decide the question, or whether 
 they leave it to the jury to decide. (1) If one event is 
 very generally the cause of a certain other event, the 
 courts lay down the general rule that the proof of the one 
 event is the proof of the other, and do not allow juries to 
 decide contrariwise. (2) If one event is often but not so 
 generally the cause of a certain other event, then the 
 courts leave it to the jury in each case to decide whether 
 or not in that particular case that certain other event has 
 followed. 
 
 The necessary consequences of an act always follow 
 the act, and therefore the courts pronounce it a rule of 
 evidence that the proof of the act is proof of its necessary 
 consequences, and the jury may not find otherwise. The 
 natural and proximate consequences of an act do often, 
 but not always, follow the act ; therefore the jury decide 
 in each case whether or not those consequences have fol- 
 lowed in that particular case. 
 
 of hands of jury. (Wright v. Orient Mut. Ins. Co., 6 Bosw. 269; "Wells v. Com. Mut. 
 Ins. Co., 46 Barb. 413; Clarke v. Rankin, 46 Barb. 571, and numerous cases.) Juries 
 are assistants to the courts in determining some issues of fact. (Forsyth's Hist. Trial 
 by Jury.) In Vermont by statute the courts are forbidden to grant new trials be- 
 cause they differ from the jury as to the weight of testimony. (Stearns v. Howe, 12 
 Verm. 579.)
 
 §§ 70-72.] ELEMENTS OF A WRONG. 115 
 
 § 70. In every slander there are two acts, (1) the com- 
 posing, and (2) the publishing. In every libel there are 
 three acts : (1) the composing, (2) the writing, and (3) 
 the publishing. The act which is the essential element in 
 the wrongs, slander and libel, is a wrongful publication of 
 language (§ 23), and the general prohibition (§ 49) as 
 applicable to those wrongs would be : No one shall, with- 
 out legal excuse, publish language concerning another or his 
 affairs which shall occasion him damage. In other words: 
 Every publication of language concerning a man or his 
 affairs, which, as a necessary or natural and proximate con- 
 sequence occasions pecuniary loss to him, is prima facie a 
 slander or a libel — a slander, if the publication be oral ; a 
 libel, if the publication be by writing. This, it must be 
 remembered, is not a description, much less a definition of 
 a slander or a libel, but merely a description of what is 
 prima facie a slander or a libel. 
 
 § 71. In describing or defining a slander or a libel, it 
 is customary to enumerate among its requisites (1) that 
 the language must be defamatory, (2) false, and (3) that 
 the publication must be with malice, or made maliciously. 
 We shall endeavor to give sufficient reasons for omitting 
 these three supposed requisites from our description. 
 
 § 72. To constitute a slander or libel must the lan- 
 guage be defamatory? This question- suggests others: 
 What is meant by defamatory ? Does defamatory mean 
 more than discommendatory % It appears to us that to 
 say the t language must be defamatory, is only stating a 
 portion of what is implied in saying that it must be such 
 language as by a necessary or natural and proximate con- 
 sequence occasions pecuniary loss to him whom, or whose 
 affairs, it concerns. It is scarcely conceivable that any 
 other than discommendatory language can by a necessaiy 
 or natural and proximate consequence occasion damage ; 
 it may therefore not be improper to say that the language
 
 116 WRONGFUL ACTS. [Ch. V. 
 
 must be defamatory, but that alone does not express so 
 much as is implied in the requisite of occasioning damage. 
 We shall hereafter have occasion to advert to this subject 
 more in detail. 1 
 
 § 73. To constitute a slander or libel must the lan- 
 guage be false % If the language is true, it is a defence f 
 but it does not thence follow that falsity is an essential 
 element of the wrong. We know that the fact of the 
 language being true is not alone an answer to a prosecu- 
 tion for a libel as a public offence ; the fact, then, of the 
 language being true does not prevent its amounting to a 
 wrong (§ 43). To say that showing the truth of the lan- 
 guage published is a defence, and to say the language 
 must be false, are not identical propositions. It may be 
 correct to say one has the right to speak the truth, 3 but it 
 is not correct to say one has the right to publish the truth 
 by writing (§ 43). In certain cases, as will hereafter be 
 explained, a cause of action for slander or libel can not be 
 shown without alleging the language to be false ; but in 
 the ordinary case of language concerning the person, no 
 allegation of falsity is required to show a cause of action. 
 In the latter instance the allegation of falsity is not neces- 
 sary in a civil action, nor even in a criminal prosecution. 4 
 
 1 " But if the matter was not in its nature defamatory, the rejection of the plaintiff 
 cannot be considered the- natural result of the speaking of the words. To make the 
 speaking of the words wrongful, they must in their nature be defamatory." (Patte- 
 son, J., Kelly v. Partington, 5 B. ifc Ad. 645; 3 Nev. & M. 116; and to the same 
 effect see Vicars v. Wilcocks, 1 East, 1 ; Ashley v. Ilarrison, 1 Esp. 48; Peake, 194.) 
 "We cannot have a definite idea of a design to injure unconnected with some degree 
 of probability that the means made use of would effect the design." (Durham v. Mus- 
 selman, 2 Blackf. 99.) 
 
 2 "The truth of the supposed slander is in effect a ground of justification, which 
 must be substantiated by the defendant." (1 Starkie on Libel, 9.) To maintain the 
 action, the words should be untrue. (Ellenborough, Ch. J., Maitland t\ Goldney, 2 
 East, 426.) 
 
 3 " Our laws allow a man to speak the truth, although it be done maliciously." 
 (Bronson, J., Baum v. Clause, 5 Hill, 199; and to the like effect, Foss v. Hildreth, 10 
 Allen, 76.) 
 
 * Rex v. Burke, 7 T. R. 4, and if falsity is alleged, it cannot be traversed (Lewis v. 
 Allcock, 3 M. &. W. 188 ; 6 Dowl. Pr. C. 389) and post, Pleading.
 
 §§ 74, 75.] ELEMENTS OF A WRONG. 117 
 
 But where, as often happens, the language is alleged to 
 "be concerning the person and also concerning the affairs, 
 then the allegation of falsity becomes material. The ap- 
 proved precedents of pleadings all contain the allegation 
 of falsity, and thus, probably, falsity has come to be re- 
 garded as essential to the wrongs and to the descriptions 
 of the wrongs slander and libel. 
 
 In those cases in which falsity must be alleged to show 
 a cause of action, then the language cannot, as a necessary 
 or natural and proximate consequence, occasion a pecuni- 
 ary loss unless it is false ; in such cases, therefore, if not in 
 every case, the requirement that the publication must, as a 
 necessary or natural and proximate consequence, occasion 
 pecuniary loss, includes the requirement that the lan- 
 guage be false. As will appear hereafter, where the lan- 
 guage is concerning the person, the plaintiff is not allowed 
 in the first instance, nor, except to disprove a defence of 
 truth, to give any evidence of the falsity of the language 
 published. 1 
 
 § 74. To constitute a slander or libel must the publi- 
 cation of the language be with malice or maliciously ? To 
 answer this question it is material to inquire what is 
 malice, and what is meant by the term malice as used in the 
 text-books and the reports. 2 
 
 § 75. We have seen that every act must be lawful or 
 unlawful (§ 42). Lawful, such as has a legal excuse ; un- 
 lawful, such as has not a legal excuse. Acts done without 
 lawful excuse are said to be done with malice or to be 
 malicious acts. All acts, whether lawful or unlawful, 
 must be voluntary or involuntary. 3 
 
 1 2 Starkie on Libel, 59 ; Stuart v. Lovell, 2 Starkie's Cas. 93. 
 
 s How much bad law and bad philosophy of law have arisen from imperfect com- 
 prehension of the terms will, motive, intention and negligence, may be seen in the 
 nonsense of English law writers concerning malice. (Edinburgh Review, Oct., 1863, 
 p. 230, Amer. Reprint.) 
 
 3 " I purposely abstain from the use of the words voluntary and involuntary, on ac-
 
 118 WBOXGFUL ACTS. [Cll. V. 
 
 § 76. A voluntary act is an act done under no legal or 
 other obligation to perform it, and which the actor may 
 do or forbear at his option, as an act done in the exercise 
 of a right. An act done with a consciousness or knowl- 
 edge of the character of the act, or under such circum- 
 stances as that the actor ought to know, and by the exer- 
 cise of a degree of care proportionate to the exigencies of 
 the occasion the actor might know, the character of the 
 act. A voluntary act does not mean a mere act of voli- 
 tion, but an act of volition coupled with a means of know- 
 ing the character of the act about to be performed, and 
 an intention to do that very act. 1 It is the act sometimes 
 called an intentional act. Every act is prima facie, and 
 without more, a voluntary act ; it is regarded for all pur- 
 poses as a voluntary act unless and until it is shown to be 
 involuntary. 2 
 
 § 77. An involuntary act is an act done under circum- 
 stances which permit to the actor no option as to whether 
 he will do or forbear the act ; an act done under some 
 legal obligation to perform it as an act done in discharge 
 of a duty ; an act done under duress ; an act done uncon- 
 sciously and without knowledge as to the character of the 
 act, the unconsciousness not being self-imposed ; and the 
 act done without the opportunity, by the exercise of a de- 
 gree of care proportioned to the exigency of the occasion, 
 of knowing the character of the act. 
 
 § 78. Besides, and in addition to the intention of per- 
 
 count of the extreme ambiguity of their signification. By a voluntary act is meant 
 sometimes an act in the performance of which the will has bad any concern at all — 
 in this sense, it is synonymous to ' intentional' — sometimes it means uncoerced, and 
 sometimes spontaneous." (Bentham's Principles of Morals and Legislation, 22, 79, 81, 
 and see 2 Austin's Lect. Juris. 88.) 
 
 1 " An act of the will is the same as an act of choosing or choice." (Edwards on 
 the Will, pt. 1, § 1 ; commented on Hazard on the Will, 177.) As to will and inten- 
 tion, see Stephen's Crim. Law, 76. 
 
 2 " Men do not act wholly without motive." (Woodruff, J., Kenedy v. The People, 
 39 N. Y., 254.)
 
 §§ 79, 80.] ELEMENTS OF A WKONG. 119 
 
 forming any act, there may be an intention in the mind of 
 the actor to accomplish, by means of the act done, certain 
 ends, or to produce certain consequences. Passing over 
 the metaphysical distinctions between will and intent we 
 may draw a distinct line of demarkation between the in- 
 tent to do an act and the intent to 'produce the consequences 
 of the act. This line we draw. 
 
 § 79. Intent may or may not, in fact, be synonymous 
 with motive, but we desire it understood that we use in- 
 tent and motive as synonymous. By intent we mean 
 motive, and if the term motive be employed instead of in- 
 tent, it must be divided as we have divided intent, and a 
 distinction observed between the motive for doing the act 
 and the motive to produce the consequences of the act. 
 The intent or motive which goes towards the doing the 
 act we include in the term voluntary. The intent or mo- 
 tive which refers to the consequences of the act we denom- 
 inate intent or intention. 
 
 § 80. A voluntary act may be done without any in- 
 tent to produce its consequences, and an involuntary act 
 may be done with an intent to produce its consequences. 1 
 In the cases in which there exists any intent to do more 
 than commit the act itself, the intent may be either to 
 produce all or some of the consequences of the act, or to 
 produce an effect not a consequence of the act done. As 
 
 1 " Nor does the nature of the resulting effect make any difference to the moral 
 quality or character of the effort. A man's intentions may be most virtuous, and yet 
 the actual consequences of his efforts be most pernicious. * * The moral 
 nature of the volition is not, then, in any way affected by what actually follows that 
 volition." (Hazard on the Will, 154.) "Feeling that will implies intention, numer- 
 ous writers on jurisprudence employ will and intention as synonymous. They forget 
 that intention does not imply will. * * * The agent may not intend a 
 
 consequence of his act. In other words, when the agent wills the act, he may not 
 contemplate the given event as a consequence of the act which he wills." (2 Austin's 
 Lect. Juris. 94.) " It is perfectly manifest that badness or goodness cannot be 
 affirmed of the will, and that a criminal intention may accord with a good disposi- 
 tion." (Id. 133.)
 
 120 WRONGFUL ACTS. [Ch. V. 
 
 one is responsible only for the necessary and natural and 
 proximate consequences of his acts, at least any intent to 
 produce any other consequence or effect must be immater- 
 ial. If the intent is at all material, it must be the intent 
 to produce the necessaiy and natural and proximate con- 
 sequences of the act. 
 
 § 81. The various hinds of intents with which an act 
 may be done are all resolvable into two classes, (1) an in- 
 tent to injure some one, (2) an intent to benefit some one. 
 The one to be injured or benefited may be the actor or 
 some other. One and the same act may be done with an 
 intent to injure one and benefit another. 
 
 § 82. Intent may be divided into general and partic- 
 tdar. Particular intent, or the intent with which any 
 certain act may be done, is to be distinguished from the 
 general intent. One may have a general intent to injure 
 or benefit another, and synchronously with that intent 
 may do some act concerning that other without any refer- 
 ence to the general intent, or without any particular in- 
 tent, or with a particular intent different from or contra- 
 dictory to the general intent. As a question of proba- 
 bility, the particular intent will follow the general, but 
 not necessarily so ; whether it does or does not is in every 
 case a question of evidence. 
 
 § 83. Intent or intention is a mental conception — an 
 existence. It is a fact, 1 impalpable, intangible, invisible, 
 
 1 The existence of mind is as much a matter of fact as the existence of matter. 
 (Elementary Sketches of Moral Philosophy, by Sidney Smith, Introductory Lecture.) 
 Intention is a fact. (Clift v. White, 12 N. Y. 638.) A witness may be asked with 
 what intent he did an act. (Seymour v. Wilson, H N, Y. 567 ; Griffin v. Marquardt, 
 21 N. Y. 121 ; Forbes v. Waller, 25 N. Y. 439.) But his evidence is not conclusive. 
 (Griffin v. Marquardt, 21 N. Y. 121; Thurston t>. Cornell, 38 N. Y. 287; Foster r. 
 Cronkhite, 35 N. Y. 147.) And it seems this question is not permissible in certain 
 cases, as where the intent may be or must be inferred from the act. (The People v. 
 Saxton, 22 N. Y. 309 : Shaw v. Stine, 8 Bosw. 161 ; Ballard v. Lockwood, 1 Daly, 
 164.) We are not aware of the right to put the question as to intent having been
 
 § 84.] ELEMENTS OF A WRONG. 121 
 
 but nevertheless a fact. The existence or non-existence of 
 an intent or an intention and its character are always 
 questions of fact. Save the declarations of the individual 
 in whose mind the intent is supposed to exist, we can 
 have no direct testimony as to the existence or non-exist- 
 ence of any intent, or its character. Save such declara- 
 tions we can have none but indirect testimony. That in- 
 direct testimony is the inference we may draw from his 
 
 § 84. Not technically, but in reality, when the intent 
 is to injure it is a bad intent, and bad intent is malice} 
 The act by means of which a bad intent is sought to be 
 realized is a inalicious act, and the act is done maliciously. 
 
 mooted in an action for slander or libel. We suppose it could not properly be put in 
 any action for slander or libel, because we are of opinion the question of mere intent can 
 ' never be material in those actions. But assuming that intent is or may be material, 
 then the question might be put in connection with a state of facts which discloses a 
 qualified legal excuse. In our opinion, the decisions show the rule to be : you may 
 inquire into the intent, directly, as by inquiring of the party, in cases where the in- 
 tent is material, and the act complained of is as consistent with a good intent as with 
 a bad intent, but in no other cases. (See supra, and Booth v. Sweezy, 8 jS". Y. 281 ; 
 Ellis v. The People, 21 How. Pr. R. 356 ; Powis v. Smith. 5 B. <fc A. 850.) "Because," 
 says Mr. Erskine (Inst, iv, 4, 80), " the intention of the defender canaot always be 
 known with certainty, in the trial of this crime (verbal injury), doctors are gener- 
 ally of opinion that his oath in supplement may, in doubtful cases, be admitted to- 
 wards his exculpation." (Borthwick on Libel, 1*72, note.) 
 
 1 The state of a man's mind can only be known by others through his acts, 
 through his own declarations, or through other conduct of his own. (2 Austin's Lect. 
 Juris. 106 ; Fisk v. Chester, 8 Gray, 508.) Previous intentions are judged by subse- 
 quent acts. (Dumont v. Smith, 4 Denio, 319, 320.) The intention of an act done 
 must be judged by its necessary consequences. Where these are directly pernicious 
 the intent to work mischief becomes a conclusion of law. (Safford v. Wyckoff, 1 
 Hill, 11, referring to Reg. v. Boardman, 2 Moo. & Rob. 147, 148.) Where the guilt 
 or innocence of the act depends upon the motive of the actor, his conduct and dechi ra- 
 tions as to other similar transactions about the same time are always admissible to 
 show it. (Barren v. Mason, 31 Verm. (2 Shaw) 189; Scanlan v. Cowley, 2 Hilton, 
 489; Center v. Spring, 2 Clarke (Iowa), 393.) 
 
 5 " Hardly any word in the whole range of the criminal law has been used in such 
 various and conflicting senses, nor is there any which it is more important to under- 
 stand correctly." (Stephen's Crim. Law, 81.) The etymological meaning of the 
 words malice and malicious is simply wickedness and wicked (id. 82), and it will be 
 found in practice impossible to attach to these terms any other meaning. (Id.) " I 
 9
 
 122 "WRONGFUL ACTS. [Ch. V. 
 
 § 85. Upon reference to the text-books and reports to 
 discover the meaning in use of the terms intent 1 and 
 malice we find : 
 
 §' 86. As respects the term intent, it is sometimes em- 
 ployed to signify done intentionally, and in that sense is 
 equivalent to will, or to what we have designated volun- 
 tary ; sometimes employed to signify an intent to produce 
 the consequences or some certain consequences by means 
 of the act done, and sometimes employed to signify bad 
 intent or bad motive. When employed in the sense of will 
 or intentionally, it is sometimes divided into express, tacit, 
 presumed, and fictitious. 2 
 
 § 87. As respects the term malice, it is sometimes em- 
 ployed to signify the absence of legal excuse, 3 sometimes 
 
 apprehend that there is no ground for distinguishing between the legal and the 
 popular sense of the word, and that it means in its legal sense exactly what it means 
 in its popular sense, namely, a mischievous design or intent to do an injury to an 
 individual, or to the public." (Daly, F. J., Viele v. Gray, 10 Abb. Pr. R. 5 ; 18 How. 
 Pr. R. 650.) The law presumes from the act an intent to bring about its conse- 
 quences ; " to denominate this intent malice or malice in law, when it may have 
 arisen from a good motive, the defendant believing what he alleges to be true, is to 
 employ the word malice in a sense neither justified by its etymology, its ordinary 
 meaning, nor its previous legal signification." (Id.) The difference in the import of 
 the word malice in legal and in common acceptation is commented on, 17 Howell's 
 State Trials, 43, 63. And see Sir Thomas Moore's distinction between Mnlitia and 
 Malevolentia (1 id. 391), and remarks on the introduction of the words Falso et mali- 
 tiose'mto indictments for libel. (1 Id. 30; 6 id. 1113.) 
 
 The term " malice," it is said, was formerly used in the sense of " cunning," as in 
 the following sentence : " It (the letter) seemed very sensible, and composed with 
 great malice, and in no sort to be suspected of being the letter of a madman.'' 
 (Calendar of State Papers, Domestic Series of the Reign of Charles the First. Lon- 
 don Athenaeum, 7 Aug., 1869, p. 169.) 
 
 1 " If we would know the nature of wrongs, we must try to determine the mean- 
 ing of intention and negligence with precision, for both of them run in a continued 
 vein through the doctrine of wrongs, and one of them, intention, meets us at every 
 step in every department of jurisprudence. (2 Austin's Lect. Juris. 80.) Unless the 
 import of those terms are determined at the outset, the subsequent speculations will 
 be a tissue of uncertain talk. (3 Id. 353.) v 
 
 2 See Lindley's Studies of Jurisprudence, 168, § 187, and id. App. civ. 
 
 3 Malice, the doing any act without a just cause. (1 Chit. Gen'l Pr. 46.) Malice 
 in its legal sense always excludes a just cause. (Jones v. Givin, Gilb. Cas. 185.) It
 
 87.] 
 
 ELEMENTS OF A WRONG. 123 
 
 as meaning a bad or wicked motive or intent, 1 sometimes 
 as meaning scienter 2 or knowingly, sometimes as meaning 
 intentionally or voluntarily, 3 and often without any defi- 
 nite or ascertainable meaning whatever. 4 The term inalipe is 
 
 is a technical expression, and means the absence of any excuse. (Penn. v. Lewis, 
 Addison's R. 282.) It is implied in every [wrongful] act for which there is no legal 
 justification, excuse, or extenuation. (Penn. v. Honeyman, Addison's R. 149.) A term 
 of law denoting directly wickedness, and excluding just cause or excuse. (1 Russ. 
 Or. 483 ) A wrongful act, done intentionally, without just cause or excuse. (Brom- 
 age v. Prosser, 4 B. & C. 247.) If malice be used as a descriptive term, it must be 
 understood of malice in a technical and artificial sense as merely signif3'ing the ab- 
 sence of any legal justification or excuse. (1 Starkie on Libel, 3.) If malice be used 
 as descriptive * * * it must be understood in its legal and technical 
 sense as merely denoting that which is inferred from the doing of a wrongful act 
 without lawful justification or excuse. (Id. 213.) Malice, the doing any act injuri- 
 ous to another without just cause. (Bouvier's Law Diet., tit. Malice ; see York's case, 
 9 Mete 93 ; Darry v. The People, 10 N. Y. 139; Hilliard on Torts, ch. vii, § 106; 
 Mitchell v. Jenkins, 5 B. & A. 590.) Malice is the deliberate disregard of the rights 
 of others. (Abbott, Ch. J., 3 B. & C. 584.) 
 
 1 "Malice. In criminal law and general practice, wickedness of purpose; a spite- 
 ful or malevolent design against another ; a settled purpose to injure or destroy an- 
 another. Any formed design of doing mischief. (1 Hale's P. C. 455, Am. ed. note; 
 2 Stra. 766.) Any evil design in general. (4 Bl. Com. 198.) A disposition or in- 
 clination to do a bad thing. (2 Rolle's R. 461.) General wickedness of heart; in- 
 human or reckless disregard of the lives or safety of others, a3 when one cooly dis- 
 charges a gun, or throws any dangerous missile among a multitude of people, or 
 strikes even upon provocation with a weapon that must produce death. (4 Bl. Com. 
 199, 200.) Deliberate disregard of the rights of others, as when one carries on the 
 trade of melting tallow to the annoyance of the neighboring dwellings. (Abbott, C. 
 J., 3 B. & C. 584 ; Burrill's Law Diet., tit. Malice, and see p. 121, note 2, ante.) 
 
 2 " Maliciously is sometimes equivalent to scienter." (3 Austin's Lect. Juris. 327.) 
 A "conscious violation" of law. (9 CI. & Fin. 321 ; and Sherwin v. Swindall, 12 M. 
 & W. 787.) In the Code prepared by Messrs. Austin & Lewis for the Island of 
 Malta, they employ the phrase "culpable knoivledge" in lieu of "implied malice." 
 See Appendix A. to House of Lords' Report on Law of Defamation, A. D. 1843. 
 
 3 If I am arraigned of felony, and willfully stand mute, I am said to do it of 
 ■malice, because it is a wrongful act and done intentionally. (Bayley, J., Bromao-e v. 
 Prosser, 4 B. <fc C. 247.) Any unlawful act done willfully is malicious. (Common- 
 wealth v. Snelling, 15 Pick. 337.) In this respect, malice resembles a promise. A 
 promise may be express or implied, but the only difference between an express and 
 implied promise is the mode of proof. (N. R'road v. Miller, 10 Barb. 260.) In an 
 action of libel, malice consists in intentionally, doing what is injurious to another, 
 falsely or without justifiable cause, and the presumption is against the truth or justi- 
 fiable cause of the publication, until the contrary h expressly proved by evidence 
 from the defendant. (Hagan v. Hendry, 18 Md. 177.) 
 
 4 In the English law, in certain cases we have employed the word malice to mean 
 intention generally. As malice implies intention, it has been extended to cases in
 
 124 WRONGFUL ACTS. [Ch. V. 
 
 also divided into malice in fact, 1 and express malice and 
 implied malice? Probably the phrase implied malice is 
 identical with the phrase malice in law, and the phrase 
 express malice with the phrase malice in fact ; for among 
 the definitions we find malice in law defined as "The 
 
 which there is no malice. As I shall show, it does not denote the motive. And it is 
 manifest that the motive to a criminal action may be laudable. The intention of an 
 act, suggested by a blamable motive, lawful. (2 Austin's Lect. Juris. 110.) It hav- 
 ing been assumed inconsiderately that malice or criminal design is of the essence of 
 every crime, the term is extended abusively to negligence * * * it is 
 often confounded with malice, as denoting malevolence, insomuch that malevolence 
 (though the motive or inducement of the party is foreign to his guilt or innocence) is 
 supposed to be essential to the crime. (3 Id. 327.) Malice has also been defined " as 
 the plain indication of a heart regardless of social duty, and fatally bent on mis- 
 chief "(U. S. v. Cornell, 2 Mason, 60); improper motives (YVeekerly v. Geyer, 1 S. & 
 R. 35); willfulness (Dexter v. Spear, 4 Mason, 115; Holt on Libel, 55); a design 
 formed of doing mischief to another (Reg. v. Mawgridge, Kely. R. 127) ; any wicked 
 or mischievous intention of the mind (Rex. v. Harvey, 2 B. <fc C 257). Malice, as 
 applied to torts, does not necessarily mean that which must proceed from a spiteful, 
 malignant, or revengeful disposition, but a conduct injurious to another, though pro- 
 ceeding from an ill-regulated mind not sufficiently cautious before it occasions an in- 
 jury to another. (11 S. <fe R. 39, 40.) Indeed, in some cases it seems not to require 
 any intention in order to ni'ike an act malicious. When slander has been published, 
 therefore, the proper question for the jury is not whether the intention of the publica- 
 tion was to injure the plaintiff, but whether the tendency of the matter published was 
 so injurious. (10 B. & C. 472 ; s. c. 21 E. C. L. Rep. 117 ; and see 3 B. & C. 584 ; 8. 
 c. 10 E. C. L. Rep. 179. Bouvier's Law Diet, voce Malice.) 
 
 1 Malice " has been sometimes divided into legal malice or malice in law, and 
 actual malice or malice in fact. These terms might seem to imply that the two kinds 
 of malice are different in their nature. The true distinction, however, is not in the 
 malice itself, but simply in the evidence by which it is established. In all ordinary 
 cases, if the charge complained of is injurious, and no justifiable motive for making 
 it is apparent, malice is inferred from the falsity of the charge. The law in such 
 cases does not impute malice not existing in fact, but presumes a malicious motive for 
 making a charge which is both false and injurious when no other motive appears. 
 When, however, the circumstances show that the defendant may reasonably be sup- 
 posed to have had a just and worthy motive for making the charge, then the law ceases 
 to infer malice from the mere falsity of the charge, and requires from the plaintiff other 
 proof of its existence. It is actual malice in either case, the proof only is different." 
 (Selden, J., Lewis v. Chapman, 16 N. Y. 372.) The jury may infer malice from want 
 of probable cause, but they are not bound to make this inference. And if malice is 
 deduced from want of probable cause, it is as much malice in fact, within the meaning 
 of the law, as though shown or deduced from any other fact or facts. (Smith v. 
 Howard, Supreme Court, Iowa.) 
 
 2 The distinction between express and implied malice is well illustrated in the 
 argument of that distinguished lawyer. Nicholas Hill, in Darry v. The People, 10 N. 
 Y. 123, as thus: The term, express malice, originally meant malice proved independ-
 
 § 87.] ELEMENTS OF A WRONG. 125 
 
 malice which is inferred from the doing a wrongful act 
 without lawful justification or excuse." 1 The distinction 
 between malice in law and malice in fact is sujyposed to 
 consist in this, that the one is inferred and the other is 
 proved. The attempted distinction is unreal and unsound ; 
 there is no distinction between what is inferred and what 
 is proved — what is supposed to be rightly inferred is 
 proved. " We say of fact, it is proved when we believe its 
 truth by reason of some other fact from which it is said 
 to follow." 2 Some judges have avoided this objection by 
 denying that malice in law is a question of fact, and styl- 
 ing it a conclusion of law not required to be proved, and 
 not permitted to be denied. 3 If malice in law is a con- 
 
 ently of the mere act from which death resulted, and implied malice the reverse. 
 They therefore described only different modes of proving actual guilt, not different 
 degrees of it; and they belonged to the law of evidence, not to a definition of homi- 
 cide. They did not even indicate different degrees of evidence, both kinds when 
 sufficient being conclusive until overcome. And they were applicable to every case 
 where proof of the actual intent was requisite to characterize an offence." He sup- 
 ports these views by a profuse citation of authorities. The opinions in this case 
 should be perused by those who desire information on the subject of implied 
 malice. 
 
 1 1 Starkie on Libel, 213. 
 
 2 Mill's Logic, b. 2, c. 1, § 1. 
 
 3 " The malicious intent of the publication is not a question of fact, but a conclu- 
 sion of law. It is the intent which the law implies, and which the plaintiff is, there 
 fore, not required to prove, nor the defendant permitted to deny." (Duer, J., Fry v. 
 Bennett, 1 Code Rep. N S. 243 ; 5 Sandf. 54.) The only case in which malice may 
 be proved is where privilege is pleaded. (Root v. Lowndes, 6 Hill, 520 ; Washburn 
 v. Cook, 3 Denio, 112; Howard v. Sexton, 4 N. Y. 15*7.) "Malice, so far as the law 
 requires it to sustain the action, is implied from the publication of that which is untrue 
 — the law presuming it to exist in such a case. Therefore, express malice in not required 
 to sustain the action." (Littlejohn v. Greeley, 13 Abb. Pr. R. 55.) " It is said that 
 malice is involved in the issue. * * The answer to this suggestion is, 
 that in the action of slander, except in cases of privileged communications, express 
 malice forms no part of the issue. Legal malice only is affirmed or denied, and this 
 results from proof of the transaction * * * which the law pronounces 
 wrongful, and therefore malicious. — 2 Greenl. Ev. §§ 410, 518, 421." (Gardiner, J. 
 Howard v. Sexton, 4 N. Y. 160.) "In an ordinary action for a libel or for words, 
 though evidence of malice may be given to increase the damages, it never is consid- 
 ered as essential, nor is there any instance of a verdict for the defendant on the ground 
 of a want of malice." (Mansfield, Ch. J., Hargrave v. De Breton, 4 Burr. 2425, re- 
 peated by Bayley, J., in Bromage v. Prosser, 4 B. & C. 247; 6 Dowl. & R. 296.)
 
 126 WRONGFUL ACTS. [Ch. V. 
 
 elusion of law, then is malice in fact a conclusion of law ; 
 and if this be so, it is still true that they are not dis- 
 tinguishable the one from the other. Whether malice in 
 fact is here employed in the sense of want of legal excuse 
 or in the sense of bad intent is immaterial on this point. 
 The non-existence of legal excuse in the one case, and the 
 existence of bad intent in the other can be proved only 
 by inference. No argument can make it more clear than 
 the mere statement that the non-existence of a legal ex- 
 cuse does not admit of direct proof, and can be proved 
 only by inference. As to the proof of malice in fact or 
 of a bad intent, we have already considered how intent 
 may be proved (§ 83) ; and from the nature of the sub- 
 ject it will conclusively appear that, inasmuch as, at the time 
 when this division of malice took place parties to a trans- 
 action were not allowed to testify, there could at that 
 time be none other than indirect evidence of bad intent 
 or malice. At that time the existence of bad intent or 
 malice could be proved in no other manner than by in- 
 ferring it from the acts or declarations of the actor, or by 
 the like means as the proof of, so called, malice in law. 
 
 § 88. Pursuing the subject, and upon reference to the 
 text-books and reports to ascertain whether intent and 
 malice are elements of a wrong, we find some authors and 
 judges laying down the rule that intent, meaning bad in- 
 tent, is the essential ingredient of every wrong, 1 and this is 
 
 Others say malice must be proved. "The jury have no more right to find malice in 
 the defendant, without sufficient evidence, than they have to find any other fact in the 
 plaintiff's favor without proof." (Woodruff, J., Liddle v. Hodges, 2 Bosw. 544.) And 
 see Dolloway v. Turrell, 26 Wend. 396; Cooke on Defamation, ch. iv. 
 
 1 Every wrong supposes intention or negligence on the part of the wrong-doer. 
 (2 Austin's Lect. Juris. 2.) Intention, negligence, heedlessness, or rashness, is of the 
 essence of a wrong, is a necessary condition precedent to the existence of guilt (Id. 
 144.) Guilt imports that the party has broken a duty [Id. 147, 149) ; it denotes the 
 intention, and connotes the act, forbearance, or omission, which was the effect of his 
 intention (Id. 147) ; and at p. 165 : Unlawful intention or unlawful inadvertence is of 
 the essence of injury. And on examining the grounds of exemption from liability, 
 we find the party is, or is presumed to be, clear of intention or inadvertence ; and
 
 •] 
 
 ELEMENTS OF A WRONG. 127 
 
 so universally conceded that all collections of legal 
 maxims include this : " Actus non facit reum, nisi mens 
 sit rea;" which is tranlated: "An act does not make 
 guilty, unless the mind be guilty " — that is, unless the in- 
 tention be criminal ; others assert that intent is immaterial 
 in civil actions, except in the civil actions for slander and 
 libel ; * others that intent is immaterial in slander and 
 
 (p. 108) the ultimate ground of exemption for ignorance or error of fact is, the absence 
 of unlawful intention or unlawful inadvertence. At p. 179: An infant or a person 
 insane is exempted from liability, not because he is an infant or insane, but because 
 it is inferred from his infancy or insanity that the wrong was not the consequence of 
 unlawful intention or inadvertence; and (p. 185) the reason assigned by Black- 
 stone and other writers is hardly worth powder and shot. He tells us that a 
 wrong is the effect of a wicked will. And (says) infants and madmen are exempted, 
 because the act goes not with their will, or is not imputable to a wicked will. 
 * * * He cannot mean to affirm that an infant or madman has not as much 
 will as the adult or the sane. [It must be observed that Austin makes a distinction 
 between will and motive. By will, if we interpret him aright, he intends only the 
 mere act of volition.] 
 
 Intent is the essence of crime. (Krom v. Schoonmaker, 3 Barb. 647.) The crim- 
 inality of the act depends altogether upon the intent with which it was done. (Genet 
 v. Mitchell, 7 Johns. 120 ; and see 2 Starkie on Ev., tit. Intention; 5 Amer. Q'rly Rev. 
 79.) 
 
 1 See Burrill's Law Diet., tit. Actus, where he adds: The intent and the act must 
 both concur to constitute the crime. (Kenyon, Ch. J., 7 T. R. 514 ; Broom's Max. 144.) 
 This maxim is exclusively applicable to criminal law, and to civil proceedings for 
 slander and libel; in [qy. other] civil actions, the intent is immaterial if the act done 
 be injurious to another. (Id. 155, 161.) The maxim, "Affectio tua nomen imponit operi 
 tuo," [your disposition or intention gives name or character to your work or act] 
 embodies the same principle. (Bract, fo. 101 b.) See Broom's Maxims, tit. Actus non 
 facit, &c, where he says: With respect to libel and slander the rule is * * * 
 where an occasion exits which, if fairly acted upon, furnishes a legal protection to 
 the party who makes the communication complained of, the actual intention of the 
 party affords a boundary of legal liabilit}?. See also Burrill's Law Diet. tit. Voluntas, 
 citing Voluntas et propositum disting aunt malejicia — Will and purpose characterize 
 crimes. Crimen non contrahitur, nisi voluntas nocendi intercedat — Crime is not con- 
 tracted unless the intention of doing harm be present. Tolle voluntatem et eris omnis 
 actus indifferens. Take away will and every act becomes indifferent. 
 
 We cannot pass the quotation of a so-called law maxim without entering our protest 
 against their reception as legal axioms. We believe that not a single law maxim can 
 be pointed out which is not obnoxious to objection. The old law maxims must be put 
 aside or forgotten, or remembered only as things of the past and dead, even a9 we 
 have put aside and forgotten maxims in science, supplying their places with maxims 
 drawn from a larger experience and more philosophical analysis. " Perhaps there is 
 a period in every system of law previous to which the formation of maxims will be 
 productive of bad effects, as leading to the establishment of principles which it is not
 
 128 WRONGFUL ACTS. [CL V. 
 
 libel, or immaterial except under certain circumstances ; 
 and others, that the essential element of a slander or a 
 libel is malice or a malicious intent, the mind must be in 
 
 permitted to controvert, but which more enlightened views would repudiate." 
 (Fortesque de Laudibus, &c, ch. viii, note to edition by Amos. See Dodderidge's 
 English Lawyer ; Doctor and Student, Dialogue I, ch. viii, ix ; Bacon's Preface to his 
 Maxims.) The benefit which science has received from the use of maxims is of a 
 questionable nature, and the adoption of these is of a questionable nature whenever 
 the ideas are confused. (Locke on the Understanding, B'k IV, ch. vii.) In Bonomi 
 v. Backhouse (27 Law Jour. IS". S. 388, Q. B.), Erie, J., says: "The maxim, s>c utere 
 tuo ut alienum non Icedas, is mere verbiage. A party may damage the property of 
 another where the law permits, and he may not where the law prohibits; so that the 
 maxim can never be applied until the law is ascertained, and when it is, the maxim 
 is superfluous." And in Jenkins v. Wheeler (4 Robertson, 575), the court held that 
 the maxim, Freight is the mother of wages, is not universally true. 
 
 1 The secret intention of the publisher is immaterial (Hankinson v. Bilby, 10 M. A 
 W. 442.) " It is an error to suppose that motive, except where the words are privi- 
 leged, is in any way essential to a cause of action." The motive of the defendant is 
 wholly immaterial as respects the right of action. The motive may be a good or a 
 bad one. (Daly, F. J., Viele v. Gray, 10 Abb. Pr. R. 6, 7 ; 18 How. Pr. R. 550.) In 
 an action brought by A against B for slandering the title of the former to certain 
 slaves by him exposed to public sale, a verdict was found for him ; B brought his bi.l 
 praying for relief, and an injunction against the verdict, and it was held that as the 
 loss in the sale of the slaves was caused by B, even though he was believed to have 
 designed no injury, he was bound to make reparation, and his bill was dismissed. 
 (Ross v. Pines, Wythe, 71.) There is no instance of a verdict for the defendant on 
 the ground of want of malice. (Mansfield, Ch. J., Hargrave v. Le Breton, 4 Burr. 
 2425; repeated by Bailey, J., Bromage v. Prosser, 4 B. & C. 247.) If I give a man 
 slanderous words, whereby I damnify him in his name and credit, it is not material 
 whether I use them upon sudden choler and provocation, or of set malice, but in an 
 action upon the case I shall render damages alike. (Bacon's Maxims of the Law, 
 Regula VII.) 
 
 The intent with which an act is done is by no means the test of the liability of a 
 party to an action of trespass. (Guille v. Swan, 19 Johns. 381 ; Percival v. Hickey> 
 18 id. 257; Tremain v. Cohoes Co., 2 N. Y. 164; Ruckman v. Cowell, 1 X. Y. :,<)7 ; 
 Safford v. Wyckoff, 1 Hill, 11.) Bona fides will not protect a magistrate who does 
 an illegal act. (Prickett v. Greatrex, 1 New Mag. Cas. 543; 7 Law Times, 139.) It 
 is immaterial with what motive a man does a legal act. (Humphrey v. Douglass, 11 
 Verm. R. 22); and so of an unlawful act. (Amick v. OTIara, 6 Blackf. 258.) Inten- 
 tion held to be immaterial. (Bullock v. Babcock, 3 Wend. 391 ; Baker v. Bailey, 16 
 Barb. 60.) Intent immaterial if the words are a libel. (People v. Freer, 1 Caines' 
 Rep. 485.) In a private action for libel the motives are out of the question. (Root 
 v. King, 7 Cow. 633.) If the words are not actionable per se, and have not occasioned 
 any special damage, no amount of malice in the publisher will make them actionable. 
 (Kelly v. Partington, 3 Nev. & M. 116; 5 B. & Adol. 645 ; and see 2 Xev. <fc M. 460; 
 4 B. & Adol. 700.) " Bad motives in doing an act which violates no legal right of 
 another, cannot make that act a ground of action." (Pickard v. Collins, 23 Barb. 
 459.) If the fact be justified, the motive, intention, and manner are immaterial. 
 (Burr. 807.)
 
 §88.] 
 
 ELEMENTS OF A WRONG. 129 
 
 fault; 1 and some expressly, and some- by implication, 
 assert that this fault in the mind, this bad intent or 
 
 Where an act in itself indifferent if done with a particular intent becomes crim- 
 inal, there the intent must be proved and found ; but when the act is in itself unlaw- 
 ful (i. e. prima facie and unexplained), the proof of justification or excuse lies on the 
 defendant, and in failure thereof the law implies a criminal intent ; in the latter case 
 the intention is immaterial, and therefore not a question of fact in issue, for the crime 
 consists in publishing a libel : " a criminal intention in the writer is no part of the 
 definition of the crime of libel at the common law." Per Lord Mansfield, in Woodfall's 
 case, the words quoted are from the opinion of the twelve English judges delivered 
 in the House of Lords upon questions put to them on the subject of libel. (Journals 
 of the House of Lords, 1792, Appendix 27; and 22 Howell's State Trials, 300 ; The 
 People v. Crosswell, 3 Johns. Cas. 364.) Except in the cases of privileged communi- 
 cations, express malice forms no part of the issue. (Howard v. Sexton, 4 N. Y. 157, 
 and see p. 125, note 3, ante.) " In which case [privileged communication] express malice 
 must be shown, while in other cases express malice forms no part of the issue. Thorn 
 v. Moser, 1 Denio, 488 ; The State v. Burnham, 9 N. Hamp. 34 ; Howard v. Sexton, 4 
 N. Y. 157." (W. F. Allen, J., Bush v. Prosser, 11 N. Y. 355; see id. p. 358, and the 
 next following note.) 
 
 1 "To constitute that injury [slander] malice must be proved, not mere general 
 ill-will, but malice, in the special case set forth in the pleadings, to be inferred from 
 it and the attending circumstances." (Gardiner, J., Howard v. Sexton, 4 N. Y. 161; 
 quoted and approved by Rosekrans, J., Fry v. Bennett, 28 N. T. 328 ; and by W. F. 
 Allen, J., Bush v. Prosser, 11 N. Y. 357.) "Malice is essential to every action for 
 libel." (Selden, J., Lewis v. Chapman, 16 N. Y. 372.) " In all cases malice is essen- 
 tial to the action. Not imputed malice merely, but actual malice, malice established 
 by proof." (Selden, J., Bush v. Prosser, 11 N. Y. 358.) To maintain the action there 
 must be : " (1) malice in the defendant; (2) injury to the plaintiff; (3) that the words 
 should be untrue." (Ellenborough, Ch. J., Maitland v. Goldney, 2 East, 426.) The 
 malice of the publication, or the intent to defame the reputation of another, is the 
 essence of the offence of libel. (Com'wealth v. Clapp, 4 Mass. R. 163; Com'wealth v. 
 Snelling, 15 Pick. 337.) In order to render the publisher amenable to the law, the pub- 
 lication must be maliciously made, but malice will be presumed if the matter be libelous. 
 (Bouvier's Law Diet, voce Publisher.) " The criminality of the charge in the indict- 
 ment consisted in a malicious and seditious intention. There can be no crime without 
 a wicked mind." (Kent, J., The People v. Crosswell, 3 Johns. Cas. 364) ; and " as a 
 libel is a defamatory publication made with a malicious intent. {Id. 377.) The injury 
 consists in "falsely and maliciously" charging another with, &c. (Kent's Com., Part 
 IV, sect. 24, p. 706, of vol. I, 11th ed., and id. p. 617.) "The essential ground of 
 action for defamation consists of the malicious intention, and when the mind is not in 
 fault, no prosecution can be maintained ; " and the story recited from Fox's Martyr- 
 ology, in Brook v. Montague, Cro. Jac. 91, is referred to. " The mind must be in fault 
 and show a malicious intention to defame." (Kenyon, J., Rex v. Abingdon, 1 Esp. 
 226.) "By the law of England, malice is an essential ingredient in every action on 
 the case for slander." (Borthwick on Libel, 194.) And in a note (id.) attributed to 
 Starkie, it is said : Every definition of the subject-matter of an action for slander, to 
 be found in the books of reports or elementary writers, includes malice as an essential 
 ingredient. Malice is the gist of the action for slander. (McKee v. Ingalls, 4 Scam.
 
 130 WRONGFUL ACTS. [Ch. V. 
 
 malice, must be, in fact or impliedly, in the mind of the 
 defendant in the action. And the divisions of will and 
 of malice heretofore referred to (§§ 86, 87) appear to 
 have been designed to meet this requirement in those 
 cases in which there is no pretence of any bad intent, or 
 
 30; White v. Nicholls, 3 How. U. S. Rep. 266.) There must be a mischievous inten- 
 tion. (George on Libel, 162.) The guilt [gist] of and essential ground of action for 
 defamation consists in the malicious intention, and when the mind is not in fault, no 
 prosecution can be maintained. (2 Kent's Com. 26 ; W. F. Allen, J., Bush v. Prosser, 
 11 N. Y. 355.) In the trial of the Seven Bishops, Justices Holloway and Powell both 
 say, to make a libel it must be malicious. " The main question is, qv*> animo the 
 defendant published the article complained of. * * * The plaintiff is 
 bound to show that the defendant was actuated by malice." (Ellenborough, Chief J., 
 Tabart v. Tipper, 1 Camp. 350, 351.) "The gist of an action of slander, for words 
 in themselves actionable, is the malice which produced them; take away this, and the 
 suit is not maintainable in any shape." (Rossell, J., Cook v. Barkley, 1 Penn. N. J. 
 Rep. 180, and p. 183 per Pennington, J.) "The quo animo with which the words 
 were spoken was the point in issue, as malice constitutes the gist of the action." " It 
 is said there need be no express malice except in the case of privileged communica- 
 tions, that, in other words, implied or legal malice is all that is required. What is 
 meant by implied malice ? Does it mean malice which the law imputes without any 
 proof of its existence? I apprehend not. It means this: that the fact that the de- 
 fendant is shown to have published a false charge against another which was calculated 
 to injure him, proves that the defendant was actuated by malicious motives, unless the 
 circumstances are such as to suggest some other and innocent motive. This is nothing 
 more than the application of a familiar rule of evidence, viz , that every person is 
 presumed to intend that which is the natural consequence of his actions. * * * 
 But is malice any more the ground of the action in cases of privileged communica- 
 tion than in others ? Clearly not. It is called, for the sake of convenience express 
 malice, in the one case, and implied, in the other ; but the malice is the same, the 
 difference is in the proof alone. We may, therefore, assume that in all cases malice is 
 essential to the action. Not imputed malice merely, but actual malice ; malice estab- 
 lished by proof." (Selden, J., Bush v. Prosser, 11 N. Y. 358.) In actions for slander, 
 it is of the essence of the action that the words be spoken maliciously. (Jarvis v. 
 Hatheway, 3 Johns. 180.) No doubt but malice, as well as falsehood, is essential to 
 sustain an action of slander. (Thorn v. Blanchard, 5 Johns. 529.) 
 
 The case of Mercer v. Sparks (Owen, 51 ; Noy, 35) was cited in McPherson v. 
 Daniels (10 B. & Cr. 266) as an authority for the proposition that, in an action for 
 slander, malice need not be alleged ; but per Parke, J., " that was after verdict, and 
 malice must have been proved at the trial." Malice "may be said to be a necessary 
 ingredient, in one form or other, of all crimes whatever." (Stephen's Crim. Law, 81.) 
 As to necessity of proving malice in actions for slander and libel, see George on Libel, 
 149; Jones on Libel, 8, 9, 11, 14, Comyn's Dig. Action for Defamation, G; Smith v. 
 Ashley, 11 Met. 486 ; McCorkle v. Binns, 5 Binney, 340 ; Coxhead v. Richards, 2 C. B. 
 608 , Lillie v. Price, 5 Ad. & El. 645 ; Harwood v. Astley, 4 Bos. & Pul. 47 ; and Hastings 
 v. Lusk, 22 Wend. 416 ; Steele v. Southwick, 9 Johns. 214 ; Root v. King, 4 Wend. 113 ; 
 1 Saund. 243, note 4.)
 
 § 88.] ELEMENTS OF A WRONG. 131 
 
 no possibility of any bad intent in the mind of the de- 
 fendant in the action. There will be no necessity for any 
 such division of will or malice, if the distinction between 
 the wrong and the liability be observed (§ 66). At the 
 same time that courts hold malice, meaning bad intent, to 
 be a necessary ingredient of slander and libel, they hold 
 that it is not absolutely necessary to allege malice in a 
 declaration, 1 and that the introduction of an allegation of 
 malice in a declaration for libel is " rather to exclude the 
 supposition that the publication had been made on some 
 innocent occasion, than for any other purpose." 2 And 
 except to aggravate the damages, courts will not allow, 
 on a trial, any evidence of malice (bad intent) in addition 
 to that which is said to be inferred, until evidence has 
 been given which countervails or reverses the so-called 
 presumption of malice, or malice in law ; 3 nor will they 
 allow this presumption, nor malice in fact, to be contra- 
 dicted by any mere denial, or shown not to exist by 
 proving an actual good intent. They permit but one way 
 of evading this malice in law, and that is by showing the 
 existence of a legal excuse for the act of publication. If 
 the legal excuse shown be a prima facie one only, its 
 effect is merely to remove the alleged presumption of 
 malice, and raise an alleged presumption of absence of 
 malice, and, as it is said, require the plaintiff to show 
 malice in fact. This very intricate course of procedure 
 arises from erroneously treating, in practice, as an affirm- 
 
 1 In a complaint for libel, it is not necessary to aver express malice. (Purely v. 
 Carpenter, 6 How. Pr. R. 366.) Maliciously need not be used, if words of an equivalent 
 import are used. (White v. Nicholls, 3 How. U. S. Rep. 266 ; Opdyke v. Weed, 8 Abb. 
 Pr. R. 223 ; Viele v. Gray, 10 id. 6.) The omission is cured by verdict. (McPherson 
 v. Daniels, 10 B. & C. 266 ; Taylor v. Kneeland, 1 Doug. 67.) Wrongfully and injuriously 
 are not equivalent to maliciously. (De Medina v. Grove, 10 Jur. 426.) 
 
 3 Abbott, Ch. J., Duncan v. Thwaites, 3 B. & C. 585. 
 
 3 In the adjustment of damages, malice [bad intent] may become an element. 
 (Viele v. Gray, 10 Abb. Pr. R. 6 ; 18 How. Pr. R. 566 ; Root'*;. King, 7 Cow. 633 ; Fry 
 v. Bennett, 28 N. Y. 32T ; s. c. 3 Bosw. 200 ; Taylor v. Church, 1 E. D. Smith, 279 ; and 
 8 N. Y. 452 ; Littlejohn v. Greeley, 13 Abb. Pr. R. 57 ; Bush v. Prosser, 11 N. Y. 359 ; and 
 see post, Damages.)
 
 132 WRONGFUL ACTS. [CL V. 
 
 ative part of the essential element of a wrong that which 
 is more properly a negative part, not required to establish 
 the fact of a wrong done, but required only when it is 
 designed to show that what is a wrongful act, and prima 
 facie a wrong, is not so in fact (§ 63). Let a wrongful 
 act stand for a wrong, unless and until a legal excuse be 
 shown, and we make intelligible and consistent what is 
 now difficult to understand, and only to be reconciled by 
 a series of fictions. 1 
 
 8 89. One meaning in which intent or intention is em- 
 ployed is will. When so employed it corresponds to 
 what we have described as voluntary. And if instead of 
 saying intent is necessary to constitute a wrong, we say 
 will is necessary to constitute a wrong, and then keep in 
 view the distinction between will (voluntary) and intent, 
 we at once remove very much of the difficulty which has 
 been supposed to be inherent in the law relating to slander 
 and libel. It is conceded, at least by some, that in civil 
 actions other than those for slander and libel, intent, in 
 the sense of intending the consequences of an act, is 
 immaterial ; why should the civil actions for slander and 
 libel "be excejrtions % Certainly the burden of proving 
 them to be exceptions lies upon those who insist that they 
 are not within the rules which govern every other civil 
 action. 
 
 § 90. One meaning of malice is absence of legal excuse. 
 This is the sense in which the term is most frequently 
 employed, and it is, we conceive, the only sense in which 
 it is properly employed. 2 Substitute " absence of legal 
 
 1 Mr. Stephen, after referring to the manner in which the word " malicious " 
 operates in shifting the burden of proof from the prosecutor to the prisoner, and stat- 
 ing that legal fictions are matters of regret, says: " It would be better to throw the 
 law into a different shape, and to enact specifically that persons who do acts of which 
 the natural consequence "is to kill, (fee, shall be punished, instead of introducing the 
 question of intent at all. (Stephen's Crim. Law, 304.) 
 
 2 See p. 122, note 3, ante
 
 § 91.] ELEMENTS OF A WKONG. 133 
 
 excuse " for " malice " in many opinions in the reports 
 which are difficult to be understood, and they will become 
 easily intelligible, and accord with the principles we 
 venture to propound. 
 
 To illustrate, that what is called malice in fact really 
 means nothing more nor less than absence of legal excuse ; 
 suppose A. has untruly said B. is a thief, under cir- 
 cumstances that A. believing B. to be a thief, would 
 constitute a legal excuse. A familiar instance of this is 
 the case of giving, as it is termed, the character of a former 
 employe. In the case supposed, the material inquiry is : 
 what was A's belief? To answer this inquiry, and only 
 for the purpose of answering this inquiry, it may be 
 material to ascertain what feeling; or intention A. had to- 
 wards B. ; if the feeling or intention is found to be friendly, 
 it is a link in the chain of evidence that A. spoke believing 
 what he said. If the feeling or intention of A. towards 
 B. was unfriendly, it is a link in the chain of evidence 
 that A. spoke rather from that feeling or intent or for 
 some purpose other than from his belief ; and being spoken 
 not in a belief of its truth, the speaking was out of the 
 pale of legal excuse, and was wrongful, not merely or in 
 anywise because of the intent, which may have been good 
 or bad, but because the speaking was not under cir- 
 cumstances which constitute a legal excuse ; namely, under 
 a belief that the words spoken were true. If in such a 
 case A. was allowed to testify, and was to admit that he 
 did not believe to be true what he said concerning B., but 
 that he spoke without any intent to injure or with a good 
 intent towards B. or any other, that testimony would not 
 constitute any defence ; admitting that he did not believe 
 what he spoke would take away the legal excuse. 
 
 § 91. The intent — meaning the intent to effect certain 
 consequences — with which an act is done is material on 
 the question of the amount of damages : the absence of a 
 bad intent will mitigate the damages; the presence of a
 
 134 WEONGFUL ACTS. [Ch. V. 
 
 bad intent will aggravate them. The intent of the actor is 
 sometimes material as a link in the chain of evidence to 
 determine whether or not some certain act was or was not 
 done under circumstances constituting a legal excuse, as 
 where the legal excuse is dependent upon the question : 
 what was the belief of the actor ? "With these exceptions, 
 we conceive that intent is never material and that intent is 
 never an essential element of a wrong. No amount of 
 good intent will excuse an act otherwise wrongful, and no 
 amount of bad intent will make wrongful that which is 
 otherwise a permitted act. If intent is not an essential 
 element of a wrong, neither, in the sense of bad intent, is 
 malice. If the term malice is to be retained in use as a 
 technical term, it must be only in the sense of want of 
 legal excuse. 
 
 § 92. This view is not, we are pleased to say, any 
 innovation or novel doctrine ; it is but a return to the old 
 paths, from which the departure has been very wide. 
 Holt, after referring to the objections urged against the 
 law of libel, says 1 : " It is urged that the motive of many 
 publications which the law decrees libels, may be innocent 
 and even laudable ; and that without the proof of malice, 
 or, what is equivalent to malice, the mere act of composing 
 or publishing a libel ought not to be the subject of punish- 
 ment. This objection only becomes specious from the 
 misapprehension of the term malice. Malice, in legal under- 
 standing, implies no more than willfulness. 2 The first in- 
 quiry of a civil judicature, if the fact do not speak for 
 itself as a malum in se, is to find out whether it be will- 
 fully committed ; it searches not into the intention or motive 
 any further or otherwise than as they are the marks of a 
 voluntary act / and having found it so, it concerns itself 
 
 1 Holt on Libel, conclusion of ch. iii., b'k 1, p. 55; and see comments on this, 2 
 Mence on Libel, 25. 
 
 2 See Dexter v. Spear, 4 Mason, 115.
 
 § 92.] ELEMENTS OF A WKONG. 135 
 
 no more with a man's design or principle of acting, "but 
 punishes without scruple what manifestly to the offender 
 himself was a breach of the command of the legislature. 
 The law collects the intention from the act itself — the 
 act being in itself unlawful [wrongful], an evil intent is 
 inferred, and needs no proof by extrinsic evidence. That 
 mischief which a man does he is supposed to mean, and 
 he is not permitted to put in issue a meaning abstracted 
 from the fact. ' The crime consists in publishing a libel ; 
 a criminal intention in the writer is no part of the defini- 
 tion of the crime of libel at common law.' ' He who 
 scattereth firebrands, arrows, and death (which if not an 
 accurate is a very intelligent description of a libel) is 
 ea ratione criminal.' It is not incumbent on the prosecu- 
 tion to prove his intent, and on his part he shall not be 
 heard to say, ' Am I not in sport.' To determine, there- 
 fore, the guilt of a civil act, and to inflict punishment on 
 the offender, there is no need of knowing his motives. 
 Human laws require no justification in imposing penalties 
 for an act prohibited by the magistrate, in its consequences 
 injurious, and which has indubitable marks of being vol- 
 untarily committed." This exhibits and illustrates our 
 view that the intent which the law regards is that intent 
 which enters into the question: was the act voluntary? 
 and this it determines by the knowledge of the actor, did 
 he know or ought he to have known, that his act 
 would produce an injury, if he had this knowledge, or 
 might, but for his own misfeasance or omission, have had 
 this knowledge, he is liable for his act and its consequences. 
 And it is altogether immaterial whether we say he is liable 
 for the act and its consequences, or say he is liable for the 
 act because it was voluntary, and for the consequences 
 because he must be presumed to have intended them. 
 The latter mode of statement is the more usual, but we 
 think less correct, and may have contributed to the confu- 
 sion which pervades our subject.
 
 CHAPTEE VI. 
 
 PUBLICATION PUBLISHES. 
 
 A Publication is Necessary — Meaning of the term Publi- 
 cation — Ihe Language Published must be Understood — 
 The Publication may be Orally or in Writing — What 
 amounts to an Oral and what to a Written Publication — 
 Publication of Effigy — Requisites of an Oral Publica- 
 tion — Requisites of a Written Publication — Time of 
 Publication — Place of Publication — WJio is a Publisher 
 — Republication and Repetition — Distinction betioeen — 
 Joint Publication — Liability for Publications — Volun- 
 tary and Lnvoluntary Publications — Liability of Prin- 
 cipal and Agent — Newspaper Publisher — Bookseller. 
 
 § 93. As heretofore observed 1 (§ 23), for language to 
 affect another than its author the language must be pub- 
 
 1 To publish, means not only a "giving out," but a "taking in." In English 
 we have only one word to express the idea, in the German they have two words. 
 They say of a book herausgegtbtn that it is "given out," but not that it is published 
 until sales of it have been effected. 
 
 " Publication [of a writing] is nothing more than doing the last act for the accom- 
 plishment of the mischief intended by it." (Rex v. Burdett, 4 B. & Aid. 126.) 
 
 " The sense in which the word published is used in law, is an uttering of the libel. 
 Though in common parlance that word may be confined in its meaning to making the 
 contents known to the public, yet the meaning is not so limited in law. The making 
 it known to an individual only is indisputably, in law, a publishing. (Id.) 
 
 The mode of publication of writings in early times was by scattering them in the 
 highways or fields — (see Darcy v. Markham, Hobart, 120.) The conclusion of "The 
 Outlaw's Song of Trail-le-baston," temp. Edward II, is as follows: 
 Escrit estoit en parchemyn pur mout remember 
 E gitte en haut chemyn qe um le dust trover. 
 [It was written on parchment to be better remembered, and cast on the highway 
 that people may find it.] See Political Songs of England from John to Edward II. 
 Edited and translated by Thomas Wright, Camden Society, 1S39. (Astor Library-) 
 And see London Quarterly Review, April, 1857. 
 
 This method of publication seems to have continued at least until the sixteenth
 
 §§ 94, 95.] PUBLICATION. 137 
 
 lished ; that is to say, it must be communicated to some 
 other than its author. There must be a publication. 1 
 
 § 94. Publication is an ambiguous term, employed 
 to signify sometimes the matter published, sometimes an 
 act of publishing only, and sometimes an act of publishing 
 such as may subject the publisher to legal liability. 
 Ordinarily the context will disclose in which of these 
 several senses the term is employed. 
 
 § 95. Every communication of language by one to 
 another is a publication. But to constitute an actionable 
 publication that is, such a publication as may confer a 
 
 century. John Fox mentions " A libel or book entitled the Supplication of Beggars, 
 thrown and scattered at the procession in Westminster, on Candlemas day (2d Feb- 
 ruary, 1526), before King Henry the Eighth, for him to read and peruse;" and 
 again, Wolsey immediately went to his Majesty (Henry Eighth) complaining of divers 
 seditions persons having scattered abroad books. The like mode of publication was 
 adopted by Burdet, tried "for conspiring to kill the king and the prince by casting 
 their nativities, fortelling the speedy death of both, and scattering letters containing 
 the prophecy among the people." 9 Foss's Judges of England, and Croke Car. 121. 
 
 The meaning and etymology of the word Trail-lebaston is discussed in 3 Foss's 
 Judges of England, 30, and note to Political Songs of England, and claimed to be 
 different from that given in the Law Dictionaries. 
 
 That the mode of publication of libels among the Romans was by scattering them 
 on the highways may be inferred from the provisions in the Codes in reference to the 
 finding and finders of libels. The 4th resolution in Halliwood's Case, in Coke's fifth 
 report, commences, "If any one find a libel." (See 2 Starkie on Libel, 226.) 
 
 A new method of framing and dispersing libels was invented, says Hume, by the 
 leaders of popular discontent : petitions to Parliament were drawn up stating particular 
 grievances, presented and immediately printed. And Lord Campbell (VI Lives of 
 the Chancellors, 149) speaks of " a dispersion of libels in Westminster Hall, by means 
 of an explosion of gunpowder, while the judges were sitting there;" of this he gives 
 a further account, same volume, p. 186. 
 
 A most cowardly and atrocious, yet ingenious method of defaming is mentioned 
 by Hazlitt in his " Essay on "Wills," and referred to in the London Quarterly Review 
 for October, 1860, as thus: "A wealthy nobleman hit upon a still more culpable 
 device for securing posthumous ignominy. He gave one lady of rank a legacy ' by 
 way of compensation for injury he feared he had done her fair fame ; ' a large sum to 
 the daughter of another, a married woman, ' from a strong conviction that he was the 
 father ; ' and so on through half a dozen more items of the sort, each leveled at the 
 reputation of some one from whom he had suffered a repulse : the whole beiDg nullified 
 (without being erased) by a codicil." 
 
 1 There must be a publication. (Lyle v. Clason, 1 Cai. 581 ; Weir v. Hoss, 6 
 Ala. 881.) 
 
 10
 
 138 PUBLICATION. [CL VL 
 
 remedy by civil action, it is essential that there be a 
 publication to a third person, that is, to some person other 
 than the author or publisher and he whom or whose affairs 
 the language concerns. No possible fomi of words can 
 confer a right of action for slander or libel, unless there 
 has been a publication to some third person. 1 The husband 
 or wife of the author or publisher, or the husband or wife 
 of him whom or whose affairs the lano-uao;e concerns, is 
 regarded as a third person. 2 
 
 § 96. There cannot properly be said to be a communi- 
 
 1 2 Starkie on Libel, 13, 14, citing 1 W. Saund. 132, note 2 ; Phillips v. Jansen, 
 2Esp. Cas. 226; Hick's Case, Hob. 215; Rex v. Wegener, 2 Stark. Cas. 245; Force 
 v. Warren, 15 C. B. N. S. 806 ; Edwards v. Wooton, 12 Rep. 35. Where the de- 
 fendant, knowing that letters addressed to the plaintiff were opened and read by his 
 clerk, wrote and sent a letter directed to the plaintiff which was opened and read by 
 his, plaintiffs, clerk, this was held to be a publication. (Delacroix v. Thevenot, 2 
 Starkie's Cas. 63.) Where a letter, folded but not sealed, was delivered to a third 
 person to be conveyed to the plaintiff, and was so conveyed without being read by 
 any one, held there was no publication. (Clutterbuck v. Chaffers, 1 Starkie's Rep. 
 471 ; Day v. Bream, 2 Moo. & Rob. 54.) Where a writing is sent to the plaintiff, 
 and he, in the presence of a third person, repeats the contents of such writing to the 
 writer, who admits having sent such a writing, this is not a publication of the writing 
 to the third party. (Fonville v. Nease, Dudley (S. C), 303.) 
 
 The delivery of a writing by the governor of & colony to his attorney-general, 
 not for an official purpose, is an actionable publication. (Wyatt v. Gore, Holt, 299.) 
 So is the delivery of a writing to any third person. (Ward v. Smith, 6. Bing. 
 749.) Giving a writing to a witness to copy, the copy being immediately sent to a 
 foreign country, and the original retained in the defendant's possession, is a publication 
 upon which the cause of action arises here. (Keene v. Ruff, 1 Clarke (Iowa), 482.) 
 
 2 A sealed letter, addressed and delivered to the wife, containing a libel on her 
 husband, is a publication. (Schenck v. Schenck, 1 Spencer, 208 ; Wenman v. Ash, 
 13 Com. B. 836) : and see Mills v. Monday, Lev. 112. 
 
 Gibbons wrote defamatory matter of Trumbull and had fifty copies printed in 
 pamphlet form in Massachusetts. Forty-five copies he retained and five copies he 
 sent to his wife in New Jersey, indorsing four of them with the names of certain 
 persons, acquaintances of the wife, but without any instructions to the wife as to how 
 she should dispose of the copies so sent her. The wife delivered two of the copies 
 in New Jersey to the persons whose names were indorsed thereon, and the others she 
 delivered in New Jersey to Trumbull, who exhibited them to various persons. On 
 Trumbull suing Gibbons in New Tork for libel, it was contended for defendant (1) 
 that there was no publication by defendant, (2) or no publication within the State. 
 The second point was overruled, and as to the first it was held that the delivery of (he 
 manuscript to be printed was a publication, although a delivery to a wife in confidence 
 would not be a publication, yet in the case then before the court the wife acted as the 
 agent of her husband, and her delivery of the pamphlets amounted to a publication 
 by the defendant. (Trumbull v. Gibbons, 3 City Hall Recorder, 97.)
 
 § 97.] PUBLICATION. 139 
 
 cation of language by one to another unless that other 
 understands the signification or meaning of the language 
 sought to be communicated. 1 "When we say the language 
 must be understood by the one to whom it is published, 
 we mean only that the matter published must be in a 
 language which the person to whom it is published can 
 interpret to some meaning. To one who does not under- 
 stand the language in which a publication is made, it is as 
 to him nothing more than unmeaning sounds or signs and 
 not language (§ l). 2 
 
 § 97. The publication of language may, in reference 
 to the place at which the publication is made, be either in 
 the vernacular or in a foreign language. "Where the lan- 
 guage published is the vernacular of the place of publica- 
 tion, it requires no proof that those who heard or read it 
 understood it ; but it may be shown that those who heard 
 or read such language did not in fact understand its 
 significations. Where the language published is one 
 foreign to the place of publication it will not be assumed 
 that those who heard or read understood it, but it may be 
 shown that such hearers or readers did, in fact, understand 
 what they heard or read. 3 Where the matter published 
 is in a language which he who hears or reads it understands, 
 it will be assumed he understood it in the sense which 
 properly belongs to it. In all cases of doubt, the question 
 whether or not the third person to whom the publication 
 
 1 Keene v. Ruff, 1 Clarke (Iowa), 482. 
 
 a "Scandalous words, if they be spoken in an unknown tongue which none of 
 the auditors understand, will not bear an action because they do no injury." 
 (Danvers Abr. 146, pi. 1,2.) "Where slander is published in a foreign language 
 it is necessary to show that the hearers understood the language " (2 Starkie on 
 Slander, 52 ; Fleetwood v. Curley, Hob. 267 ; Viner's Abr. tit. Actions for Words, 
 A. b. ; 2 Stark. Ev. 844; Holt on Libel, 245), for the slander and damage consist in the 
 apprehension of the hearers. (Cro. Eliz. 496, pi. 16.) 
 
 3 Amann v. Damra, 8 Com. B. N. S. 597. But in Ohio it is held that where words 
 are spoken in German in a German county, it will be presumed they were understood, 
 and no averment that they were understood is necessary. (Bechtell v. Shaler, Wright, 
 107.) And as to Welsh words see what is said 1 W. Saund. 242, n. 1.
 
 140 PUBLICATION. [Ch. VI. 
 
 was made understood the language employed, is a question 
 of fact. How such third person understood the language, 
 that is to say, the sense in which he understood it, is 
 ordinarily a question of interpretation. In our courts a 
 witness cannot be asked how he understood the language, 
 or what he understood by the language. 1 [§ 384.] 
 
 § 98. The publication of language may be orally or in 
 writing. The distinction between these two modes of 
 publication is material to be observed, as it marks the 
 boundary line between slander and libel. That alone is a 
 libel which " has an existence per se off the tongue." 2 
 
 § 99. Where the language has not been reduced to 
 writing, its communication from one to another must be an 
 oral publication. Where the language has been reduced 
 to writing, its communication from one to another may, 
 according to the circunistances of the communication, 
 amount to either an oral publication or a publication in 
 writing. 
 
 § 100. As respect oral language, speech, we must dis- 
 tinguish between the sound itself and the signification 
 of the sound. As respects language in writing, we must 
 distinguish between the writing, i. e., the paper, or other 
 substance written upon ; the writing, i. e., the characters 
 inscribed upon the paper, or other substance written upon ; 
 and the signification of those inscribed characters, the 
 subject-matter of the writing. 
 
 1 Smart v. Blanchard, 42 N. H. 137; Wright v. Paige, 36 Barb. 438 ; Gibson v. 
 "Williams, 4 Wend. 320 ; Van Vechten v. Hopkins, 5 Johns. 211. A witness who has 
 heard a conversation cannot be asked " What did you understand by that," without 
 previously laying a foundation for such a question by showing that something bad 
 previously occurred in consequence of which the words would convey a meaning 
 different to their ordinary meaning ; having done so, the witness may then be asked 
 "What did you understand/' (fee. (Daines v. Hartley, 3 Ex. 200; 11 Law Times, 
 271: see 2 Starkie on Libel, 52; Fleetwood v. Curl ey, Hob. 267.) See post Con- 
 struction. 
 
 2 Holt on Libel, 254.
 
 §§ 101, 102.] PUBLICATION. 141 
 
 § 101. The possession of a writing, the material written 
 upon, may be parted with, and the writing itself, the 
 material written upon, may be passed from hand to hand 
 without any communication of either the characters 
 inscribed upon such material written upon, or of the 
 signification of such characters. As, for example, the 
 delivery of a sealed letter to another. Such a parting 
 with the writing does not of itself, and without more, 
 amount to a publication of any kind. Thus where a folded 
 letter was delivered to a third person to deliver to him 
 whom the subject-matter of the letter concerned, and the 
 third person delivered the letter as addressed, without 
 reading its contents, it was held that there was not any 
 publication to such third person. 1 But if the messenger 
 had opened and read the letter entrusted to him to carry, 
 that would be a publication, and it would be no defence 
 to say the sender did not intend that the messenger should 
 read the letter. 2 
 
 § 102. The characters inscribed upon a paper may be 
 communicated by one to another without any parting 
 with the possession of the writing, the material written 
 upon, itself ; as by an exposure of the writing, the material 
 written upon, in such a manner as that the characters 
 inscribed upon it may be seen and read by another. 
 
 1 Clutterbuck v. Chaffers. 1 Starkie's Rep. 471. 
 
 Throwing a sealed letter, addressed to the plaintiff or at hird person, into the en- 
 closure of another, who delivers it unopened to the plaintiff himself, is not a publica- 
 tion. (Fonville v. Nease, Dudley, S. C. 303.) 
 
 Sending to the person whom the writing concerns, a letter sealed up is no publiea - 
 tion ; and a letter is always to be understood as being sealed up, unless otherwise 
 expressed. (Lyle v. Clason, 1 Cai. 5S1 ; Phillips v. Jausen, 2 Esp. 625.) See 1 W. 
 Saund. 132, note 2. 
 
 Nor would it amount to a publication, though the plaintiff afterwards repeated 
 the contents of it publicly, and the defendant avowed himself the author of it. 
 (Fonville v. Nease, Dudley, S. C. 303.) 
 
 2 Fox v. Broderick, 14 Irish Law Rep. 453.
 
 142 PUBLICATION. [CL VL 
 
 § 103. The subject-matter of a writing, the signification 
 of the characters inscribed upon a paper, may be com- 
 municated orally by one to another ; and if this be done 
 without any parting with the possession of the writing 
 itself, and without any exposure of such writing to any 
 other person ; as where one reads the contents of a writing 
 to another without parting with the writing itself, and 
 without permitting the other to read the contents of such 
 writing. This we mi/gpose would amount only to an oral 
 publication. 1 
 
 § 104. Parting with the possession of a writing, the 
 material written upon, in such a condition and under such 
 circumstances as that the characters inscribed upon it may 
 be and are seen and read and understood by another, is a 
 publication in writing. It amounts to a publication if or 
 provided the subject-matter be read and understood. 2 
 
 § 105. An exposure by one person to another of a 
 writing, the material written upon, without parting with 
 
 1 The writer's reading to a stranger his letter to the plaintiff, before dispatching 
 it, is a publication. (Snyder v. Andrews, 6 Barb. 43 ; McCombs v. Tuttle, 5 Blackf. 
 431 ; Van Cleef v. Lawrence, 2 City Hall Recorder, 41.) Query, the kind of publica- 
 tion. 
 
 2 Posting a writing in a public place, and taking it down before any one had read 
 it, would not be a publication. (2 Starkie on Libel, 16, note n.) 
 
 A publication by delivery of letters containing the defamatory matter, or by 
 posting the writing on a church door, are termed constructive publications in Baldwin 
 v. Elphinstone, 2 W. Black. Rep. 1037, referring to Rastell's Entries tit. Action sur le 
 case, 13. 
 
 By section 17 of statute 38 Geo. Ill, ch. lxxviii, the printer or publisher of 
 every newspaper or other such paper is required to deliver a copy of the paper at the 
 stamp office, it was held that such delivery was a publication. (Rex v. Amphlitt, 4 B. 
 <fc Cr. 35.) 
 
 If A. sends a manuscript to the printer of a periodical publication, and does not 
 restrain the printing and publishing of it, and he prints and publishes it in that 
 publication, A. is the publisher, and liable to an action. (Burdett v. Cobbett, 5 Dowl. 
 301. See Bond v. Douglas, 7 Car. & P. 626.) 
 
 Printing, * * unless qualified by circumstances, is prima facie a publishing, 
 the manuscript must be delivered to the compositors. (Baldwin v. Elphinstone, 2 W. 
 Black. Rep. 1037 ; Holt on Libel, 293 ; Trumbull v. Gibbons, 3 City Hall Recorder, 
 97.)
 
 §§ 106, 107.] PUBLICATION. 143 
 
 the possession of such writing, but permitting the writing, 
 the characters inscribed, to be read by the other, is a 
 publication in writing. 
 
 § 106. Effigy resembles a writing, the material written 
 upon, as distinguished from the subject-matter of a writing. 
 An exposure of an effigy or a parting with the possession 
 of it in such a condition that it may be seen by another is 
 a publication. 1 
 
 § 107. The requisites of cm oral publication are : (1) 
 that the language be spoken to or in the presence of at 
 least some one third person (§ 95). No possible form of 
 words can be the basis of an action for slander if at the 
 time of their utterance the only persons present are the 
 speaker and the person whom or whose affairs the language 
 concerns. 2 (2) The third person present must hear the 
 language spoken. 3 Whether the third person present at 
 the speaking did or did not hear the language spoken is, 
 in every case, a question of fact. And this is not the less 
 the rule, because where the speaking is in the presence of 
 a third person, under such circumstances that he might 
 have heard what was spoken, he may, as a rule of evidence, 
 be assumed to have heard it, until it be shown that he 
 did not hear. 4 The burden is on him who alleges a publi- 
 
 J The civil law made a distinction not only between oral and written defamation 
 but between a publication by writing and by pictures. (Heineccius, lib. 47, tit. 10.) 
 
 2 Uttering slanderous words in the presence of the person slandered only is not 
 actionable. (Sheffill v. Van Deusen, 13 Gray, 304; Brodrick v. James, 3 Albany 
 Law J. 232, and see note to § 95, ante.) 
 
 3 " If none heard the words it is no slander." (Viner's Abr. tit. Actions for Words 
 L. b. 4 ; and see cases cited, 1 Caine's R. 582.) 
 
 4 The word " publish," as applied to speech, implies that the language was 
 spoken in the presence and hearing of others. (Watts v. Greenlee, 2 Dev. 115; 
 Viner's Abr. tit. Actions for Words, L. b. 4 ; contra, Burton v. Burton, 3 Iowa, 316. 
 See Goodrich v. Warner, 21 Conn. 432 ; 1 Ililliard on Torts, 319, note.) In slander it 
 is sufficient if the words are said to have been spoken "in the presence" of others, 
 (Brown v. Brashier, 2 Penns. 114.) Or in the presence and hearing of divers persons, 
 or of certain persons named. (Burbank v. Horn, 39 Maine, 233, and see 1 W. 
 Saund. 242, n. 1.) See § 324, post.
 
 144 PUBLICATION. [CL VI. 
 
 cation to establish that the third person heard the language 
 spoken. (3) The third person must understand the lan- 
 guage (§ 96). "When hereafter we speak of an oral publi- 
 cation, or a publication orally, we shall intend a publication 
 with the requisites above mentioned. 
 
 § 108. The requisites of a pubUcaitwn in writing are 
 (1) that the writing, the material written upon, be so 
 exposed as that the subject-matter of the writing is read 
 by at least some one third person (§ 101). No possible 
 form of language in writing can be the basis of an action 
 for libel if read only by the writer and the person whom 
 or whose aifairs the language concerns. 1 (2) The subject- 
 matter of the writing must be understood by at least some 
 one third person by whom it is read (§ 96). When here- 
 after we speak of a publication in writing, we shall intend 
 a publication with the requisites above mentioned. 
 
 § 109. The publication must be prior to the com- 
 mencement of the action, and a publication prior to the 
 commencenent of the action, should be proved. 2 
 Where a witness called to prove publication was unable 
 to say whether the speaking the words referred to was 
 before or after the date when the action was commenced, 
 it was decided that his testimony was not admissible. 3 
 But it was held not to be a ground for arresting the judg- 
 ment that it appeared on the face of the record that the 
 writ issued prior to the alleged publication. 4 
 
 § 110. The place of publication may be within or 
 
 1 But delivery to the party libelled is a sufficient publication to support an 
 indictment. (Phillips v. Jansen, 2 Esp. 624.) The moment a man delivers a libel from 
 his hand and ceases to have control over it, there is an end of his locus penitent ice the 
 injuria is complete. (Holroyd J. Rex v. Burdett, 4 B. <fc Aid. 143.) 
 
 2 Taylor v. Sturgingger, 2 Rep. Con. Ct. 367 ; Phila. <fcc, R. R. v. Quigley, 21 How. 
 202. 
 
 3 Steward v. Layton, 3 Dowl. Pr. Cas. 430. 
 * Scovel v. Kingsley, 1 Conn. R. 284.
 
 § 110.] PUBLICATION. 145 
 
 without the territorial limits of the State or country with- 
 in which redress is sought. The decisions, so far as they 
 go, all hold, that as a question of jurisdiction, it is im- 
 material whether the publication was within or without 
 the territorial limits of the State or country within which 
 redress is sought, and this on the ground that the wrong 
 follows the person and may be redressed by civil action in 
 any court having jurisdiction of the person at the time 
 redress is sought. It is conceded, however, that as regards 
 crimes no redress can be had in one State for a crime 
 enacted within the territorial limits of another State, 
 because a crime is a violation of the law of the State 
 within which it is enacted. This concession seems to imply 
 that for a wron^ committed in one State there can be no 
 remedy in another ; because the right to remedy is based 
 on a violation of some general prohibition of the law, and 
 not like a remedy on contract for a breach of a private 
 convention between the parties, which of course follows 
 the persons of the parties to the convention. 1 The effect 
 
 1 Mr. Stephens, in his " Treatise on Criminal Law," insists that a crime and a 
 tort differ only as regards their consequences. 
 
 Kb court " administers justice in general" (De Bode v. Reg., 13 Ad. & EL, N. S. 
 386), and " the laws of a State have no force propria vigore beyond its territorial 
 limits." (Hoyt v. Thompson, 5 N. Y. 340.) "If two persons fight in France, and both 
 happening casually to be here [in England], one should bring an action of assault 
 against the other, it might be doubtful whether such an action could be maintained 
 here [in England]. * * * It might perhaps be triable only where both 
 parties at the time were subjects." (Mostyn v. Fabrigas, 20 State Tr. 82 ; 1 Smith's 
 Leading Cases.) In Molony v. Dows (8 Abb. Pr. E. 316) it was held at nisi prius, 
 but after elaborate argument and deliberation, that an action for an assault in Califor- 
 nia could not be maintained in the courts of the State of New York. In Mclvor v. 
 McCabe (16 Abb. Pr. R. 319), it was held that the courts of New York had jurisdic- 
 tion of an action for a personal injury committed in New Jersey by one citizen of 
 that State upon another. As to action 'for tort committed in a foreign country, see 
 Scott v. Seymour, 6 Law Times Rep. N. S. 607; 1 Hurl. & Colt. 219 ; 32 Law Jour. 
 61 Ex. ; DeWitt v. Buchanan, 54 Barb. 31. " As a general rule, in order to found a 
 suit in England for a wrong alleged to have been committed abroad, two conditions 
 must have been fulfilled. First, the wrong must be of such a character that it would 
 have been actionable of committed in England * * * Secondly, the 
 act must not have been justifiable by the law of the place where it was done," 
 (Phillips v. Eyre, Law Rep. VI. Q. B. 29; and see s. c. Law Rep. IV. Q, B. 225; 
 Barry v. Fisher, 39 How. Pr. R. 521.)
 
 146 PUBLISHER. [CLVL 
 
 of the place of publication upon the construction of the 
 language published, and as a question of venue, and as 
 affecting the liability, will hereafter be considered. 
 
 §111. The person who makes a publication is a pub- 
 lisher. In the text books, and in reference to slander and 
 libel, the term publisher is employed sometimes to signify 
 
 " Of matters arising in a foreign country, pure and unmixed with matters arising 
 in this country, we have no proper original jurisdiction, but of such matters as are 
 merely transitory and follow the person, we acquire a jurisdiction by the help of that 
 fiction to which I have already alluded [the fiction of laying the venue], and we 
 cannot proceed without it." (Eyre, C. J. Uderton v. Hderton, 2 H. BL 145, 169 
 to torts committed at sea. (Percival ).•. Hickey, 18 Johns. 257: Xovion v. Hullett, 16 
 id. 327 ; "Wilson v. McKenzie, 7 Hill, 95.) 
 
 To maintain an indictment for libel, the publication must be proved to have been 
 made in the county laid in the indictment, all matters of crime being locaL (Holt 
 on Libel, 299 ; citing Rex v. Johnson, 7 East, 65.) In Trumbull v. Gibbons, 3 City 
 Hall Recorder, 97, the libel was printed in Boston and published in New Jersey, but 
 held the courts of New York had jurisdiction; and see Glen v. Hodges, 9 Johns. 
 67: Smith v. Bull, 17 Wend. 323; Johnson v. Dalt on, 1 Cowen, 54 S; Gardner r. 
 Thomas, 14 Johns. 134. 
 
 If one of our citizens goes into Canada and slanders his neighbor, an action will 
 lie in this State. (Lister v. Wright, 2 Hill, 320 ; Hall v. Yreeland, 42 Barb. 543 ; 
 18 Abb. Pr. R 182 
 
 An action for slander will lie, in Indiana, for words spoken in another State 
 actionable at common law. (Offutt v. Earlywine, 4 Blackf. 460; Linville v. Early- 
 wine, 4 Blackf. 469 ; Stout v. "Wood, 1 id. 71.) And the same in Vermont (Langdon 
 .. Young, 33 Yerm. (4 Shaw,) 136.) 
 
 In an action of slander brought in Indiana, it will be presumed until the con- 
 trary be proved that the words were spoken in that State. (Worth v. Butler, 7 
 Blackf. 251.) 
 
 It is sometimes necessary to show a publication in a particular county. "Where 
 the defendant wrote letters in Ireland, and sent them to Middlesex county, England, 
 to be printed and published, and the letters were there published, it was held to be a 
 publication by the defendant in Middlesex county. (Rex p. Johnson, 7 East, 65 : and 
 to the like effect Rex v. Middleton, Str. 77 ; KeeDe v. Ruff, 1 Clarke (Iowa 
 "Where A. wrote a letter and sent it by mail to B., in the county of B., and it was 
 again sent by mail to the county of M., at which county B. received and read it, 
 held to be a publication in the county of M. (Rex v. "Watson, 1 Camp. 215 ; and see 
 Rex v. Girdwood, East's PC. 1116, 1120; "Case of the Seven Bishops, 4 State Trials 
 304 ; Rex v. Burdett, 4 B. <t A. 717 : 2 Starkie on Slander, 39-43 ; Commonwealth 
 v. Blanding, 3 Pick. 304.) 
 
 In an action for suspending a lamp before the plaintiffs house, intimating that it 
 was a house of ill-fame, the parish in which the declaration states the house to have 
 stood and the tort to have been committed, is to be considered as venue merely, and 
 not as local description, and it is immaterial whether there be any such parish in 
 existence. (Jefferies v. Duncombe, 2 Camp. 3: 11 East, 226.) And see Mersey 
 Navigation Company v. Douglas, 2 East. 497.
 
 §§ 112-114.] PUBLISHER. 147 
 
 the person who actually makes a publication, and sometimes 
 the person who, not being the actual publisher, is liable 
 for the publication; is liable as publisher. We shall 
 always employ the tenn publisher in the sense of and to 
 signify the person who actually makes the publication. 
 
 § 112. Republication is a second or subsequent publi- 
 cation of the same language. Repetition is a publication 
 of language of the same import or meaning, as the language 
 of a previous publication. Repetition is a subsequent 
 publication independent and distinct from the first publi- 
 cation. There may be a republication of a writing, the 
 material written upon, there may be a repetition of the 
 subject-matter of a writing, and there may be a repetition 
 of oral language (speech), but there cannot be a republi- 
 cation of oral lano'uao-e. 
 
 § 113. Speech is but sound, a mere vibration of the 
 atmosphere, cognizable only by the auditory sense. From 
 its nature it necessarily follows that the same sound cannot 
 be repeated; a similar or a like sound may be produced, 
 undistinguishable in every respect from the first, and of 
 the like character and signification, but that will not be 
 the same sound. One who repeats a word previously 
 spoken does not utter the identical word, but a similar or 
 like word: he repeats a like sound of the sa//ie significa- 
 tion as the first. The two sounds are separate and distinct, 
 although each has the same meaning. Hence each publi- 
 cation of oral language is a new, distinct, and separate 
 publication. 
 
 § 114. As respects oral publications, the person who 
 actually makes the publication, the publisher, and the 
 person liable as the publisher, must be always one and 
 the same person. Every speaker is the publisher of what 
 he speaks, and is solely liable therefor. That the words 
 spoken have been previously published by another, can 
 neither relieve the subsequent speaker from his liability
 
 148 PUBLISHER [Ch. VI 
 
 for the publication made by him, nor impose any liability 
 on the previous publisher. The act of publication is as 
 to each publisher an entirely distinct act. Each person 
 can be liable only for the publication made by him. If 
 one makes an oral publication, and another repeats it, 
 without authority from the first speaker, the first publisher 
 is not liable for the rejDetition. 1 Besides that, the repetition 
 is not a repetition of the same language (§ 113). The 
 repetition is neither a necessary nor a natural and proxi- 
 mate consequence of the first publication. It is not an 
 exception, but a corrollary of this rule, that where the 
 repetition is privileged, the author of the defamation is 
 liable for the consequences of such privileged repetition. 
 The repetition is a natural consequence of the first publi- 
 cation. Thus, where the defendant made a defamatory 
 communication to A. respecting the plaintiff, in the em- 
 ploy of his A.'s wife, which A. repeated to his wife, who 
 in consequence dismissed the plaintiff from her service, 
 held that the defendant was liable for the damages occa- 
 sioned by the dismissal. 2 
 
 f § 115. As respects a publication by writing, a libel 
 not only the publisher "but all who in anywise aid or are 
 concerned in the production of the writing are liable as 
 publishers ; the publication of the writing is the act of all 
 concerned in the production of the writing (§ 113). Thus, 
 if one composes and dictates, a second writes, and a third 
 publishes, all are liable as publishers, and each is liable as 
 a publisher. 3 j 
 
 1 Where A. uttered a slander of B. the wife of C, and B. repeated the slander to 
 C, in consequence of which C. refused to cohabit with B., held that no action could 
 be maintained against A.; the publication was not A.'s, and A. was not responsible 
 for the consequences of it. (Parkins v. Scott, 6 L. T. N. S. 394 ; s. c. Perkins v. Scott, 
 1 Hurl. & Colt. 153.) But the person who originates the slander can only be liable 
 'or the special damage occasioned by his own communication of it. (Cates v. Kel- 
 logg, 9 Ind. 506; Dixon v. Smith, 5 Hurl. & Nor. 450; Fowles v. Bowen, 30 N. T. 
 20; Ward v. "Weeks, 7 Bing. 211 ; Cochran v. Butterfield, 18 N. Hamp. 115.) 
 
 2 Derry v. Handley, 16 Law Times N. S. 263 ; and see post, § 202. 
 
 3 All concerned in making a libel are alike liable. " The law denominates them
 
 § 116.] PUBLISHER. 149 
 
 § 116. The mere composing or writing any certain 
 form of words, and keeping the writing and its contents 
 confined to the custody and to the knowledge of the 
 composer or writer, so that it is not communicated to any 
 other person, does not render the composer or writer lia- 
 ble either to indictment or to civil action, for there is no 
 publication. So, having or retaining possession of a wri- 
 ting, no matter by whom written, cannot amount to a 
 wrong by the person so having or retaining possession of 
 such writing ; for as to him, at least, there is no publica- 
 
 all makers." (Holt on Libel, 2S8, 289 ; 2 Starkie on Slander, 225 ; Bishop's Crini. 
 Law, § 931 [814], citing Rex v. Drake, Holt, 425; Rex v. Paine, 5 Mod. 163; Rex v. 
 Bear, Carth. 407 ; Rex v. Williams, 2 Camp. 646.) "All persons who concur and 
 show their assent or approbation to do an unlawful act, are guilty ; so that murder- 
 ing a man's reputation by a scandalous libel may be compared to murdering his per- 
 son ; and if several are assenting and encouraging a man in that act, though the 
 stroke was given by one, yet all are guilty of homicide." (Quoted by Kent, Ch. J., 
 in Dale v. Lyon, 10 Johns. 461 ; Cochran v. Butterfield, 18 N. Hamp. 115.) 
 
 The publisher is equally responsible with the author of a libel. (Dexter v. Spear, 
 4 Mason, 115.) Printer and editor are both liable. (Watts v. Fraser, 7 Car. & P. 
 369 ; Rex v. Dover, 16 Charles II, 2 St. Tr. 547, Hargreaves Ed.) The proprietor 
 of a newspaper is liable for defamatory matter, published in the form of an adver- 
 tisement in his paper, although others are also liable for the same publication. (Har- 
 rison v. Pierce, 1 Fos. & Fin. 567), and the author of a libel may be sued for its pub- 
 lication, notwithstanding that the publisher of the libel has been sued in respect of 
 it. (Frescoe v. May, 2 F. & F. 123.) The responsibility of the writer of a private 
 letter for the publication of its contents, is not limited to the consequences of a com- 
 munication of them to the person to whom the letter is addressed, but extends to the 
 probable consequences of thus putting the letter in circulation, (Miller v. Butler, 6 
 Cush. 71.) 
 
 Where, in case for oral and written slander, to support the count on the latter, a 
 reporter to a newspaper was called, who proved that he had written down from the de- 
 fendant's mouth (who said at the time it would make a good case for the newspapers) the 
 statement which he afterwards sent to the editor, and that a paragraph, -which after- 
 wards appeared, was in substance the same, held, that what was so published in con- 
 sequence of what passed with the defendant might be considered as published by the 
 defendant ; but to prove that what was published was the same as that given to the 
 editor by the reporter, could only be done by producing the written paper itself. 
 (Adams v. Kelly, 1 Ry. & M. 158.) 
 
 Two persons having participated in the composition of a libelous letter written 
 by one of them, which was afterwards put into the post-office, and sent by mail to 
 the person to whom it was addressed ; such participation was held to be competent 
 and sufficient evidence to prove a publication by both. (Miller v. Butler, 6 Cush. 
 71.) And see Reg. v. Cooper, 15 Law Jour. Rep. Q. B. 206; 8 Q. B. 533; Parkes v. 
 Prescott, Law Eep. IV Ex. 168.
 
 150 PUBLISHER. [Ch. VI. 
 
 tion. 1 The composer and the writer of matter which is 
 afterwards published is liable as publisher for such publi- 
 cation. 2 And this liability, as ice suppose, is not to be 
 qualified by the circumstances under which the publica- 
 tion occurred. It would be no excuse to say that the 
 writing was kept guarded and concealed, and was taken 
 from him by force, or obtained from him by fraud or by 
 the procurement of the party whom or whose affairs it 
 concerns. 3 If the matter written is of an injurious ten- 
 dency, and any injury ensues from its publication, the com- 
 poser and the writer are liable, not because of any im- 
 puted or presumed malice in making the publication, but 
 because, unless such a writing had been created, the in- 
 jury occasioned by it could not have happened ; creating 
 the writing and preserving it were wrongful acts, for the 
 necessary or natural and proximate consequences of which 
 the authors are liable on the general principle that a wrong 
 doer cannot excuse his act, by reason of the act whether 
 rightful or wrongful of others. 4 
 
 § 117. The material written upon, and the subject- 
 matter inscribed upon such material, are substantial 
 entities. The veiy identical writing may be passed from 
 
 • J Until publication, possession of a libel is no more tban the possession of a man's 
 thoughts. (Rex v. Almon, 5 Burr. 2689.) So long as the writer retains possession 
 of the writing he has a locus penitentice ; but " The moment a man delivers a libel 
 from his hands, and ceases to have control over it, there is an end of his locus peni- 
 tentice ; the injuria is complete, and the libeler [the writer] may be called upon to 
 answer for his act" (Rex v. Burdett, 4 B. & Aid. 143 ; Holroyd, J.); and see 5 Mod. 
 167; Holt on LibeL 294; 2 Starkie on Slander, 228; Rex v. Rosenstein, 2 Car. A P. 
 414. 
 
 2 Holt on Libel, 289 ; Bond v. Douglass, 7 C. & P, 626 ; Miller v. Butler, 6 Cush. 
 71 ; Burdett v. Cobbett, 5 DowL 301 ; Giles v. The State, 6 Geo. 276. 
 
 3 "Where the plaintiff sent his agent to the office of the defendant, the publisher of 
 a newspaper, to purchase a copy of the paper, held that a sale to such agent was a 
 publication to a third person. (Brunswick v. Harmer, 14 Q. B. 185 ; see King v. 
 "Waring, 5 Esp. Cas. 13; Smith v. "Wood, 3 Camp. 323; Thorn v. Moser, 1 Denio, 
 488; Griffiths v. Lewis, 7 Ad. & Ell. N. S. 61 ; contra, see Sutton v. Smith, 13 IGsa. 
 120; Allen v. Crofoot, 2 "Wend 515; Gordon v. Spencer, 2 Blackf. 286; Hayes v. Le- 
 and, 29 Maine (16 Shep.) 233 ; and see in notes to §§ 121, 123, post.) 
 
 4 Collins v. Middle Level Com'mrs, Law Rep. IV, C. P. 279 ; affirming the princi- 
 ple in Scott v. Shepherd, 2 "W. Bl. 892.
 
 § 117.] PUBLISHER. 151 
 
 hand to hand, and each such passage is as well a separate 
 and distinct publication as a republication of such writing. 
 Every person concerned in making such a publication is 
 liable not alone for the consequences of that publication, 
 but for the consequences of any subsequent publication of 
 the same writing. One and the same writing may be 
 many times published at the same or at several and dis- 
 tinct places, and may have mariy publishers; and many 
 persons may be liable as publishers at one and the same 
 time or at several times. The subject-matter of a writing 
 cannot be republished apart and separate from a republi- 
 cation of the writing, the material written upon. Apart 
 from the material on which the matter is inscribed, it is as 
 impossible to republish the same subject-matter of a writ- 
 ting as it is to republish the same sound or oral language 
 of speech. If one copies the subject-matter of a writing 
 upon another piece of material, the copy is no more the 
 same subject-matter as the subject-matter copied from, 
 than is the repetition of a sound an uttering of the same 
 sound. The copy is not the same writing but another — a 
 second and independent writing, having the like but not 
 the same subject-matter. A publication of this copy would 
 have no other connection with the original than that it 
 contained the like subject-matter. The persons liable for 
 the publication of the first writing would not be liable 
 for the publication of the second or the coj)y, and the per- 
 sons responsible for the publication of the second writing 
 would not be responsible for the publication of the original 
 writing. The publication of the second writing is neither a 
 necessary nor a natural and proximate consequence of the 
 publication of the first writing, nor is a publication of the first 
 writing a necessary or a natural and proximate consequence 
 of the publication of the second writing. It may be 
 urged that but for the publication of the first writing the 
 second might not, or perhaps could not, have come into 
 existence. The author of the second writing could not 
 have possessed the material or knowledge requisite for its
 
 152 PUBLISHER. [Ch. VL 
 
 production. The same objection would apply, and with 
 equal force, to an oral publication. If the first speaker 
 had not uttered the words the second speaker could not 
 have repeated them. We know such an objection would 
 be unavailing. Again, it may be urged that the one who 
 dictates the language forming the subject-matter of a wri- 
 ting, which is afterwards published by another, is respon- 
 sible for such publication, either solely or jointly with the 
 publisher, or that the writing first published is equivalent 
 to a dictation of the language of the second writing ; but 
 this is not so ; the dictation, to incur any responsibility 
 for a subsequent publication of the language dictated, 
 must be made with an intent or a request that the lan- 
 guage so dictated shall be subsequently published (§§ 
 114, 115, 118). 
 
 § 118. There may be a joint publication by writing, 
 but, for the reasons heretofore stated (§ 113), there cannot 
 be a joint oral publication. If two or more utter the like 
 words, either simultaneously or separately, it is not a joint 
 publication, but a several publication by each, for which 
 each must be sued separately, and for which they cannot 
 be sued jointly. 1 Within this rule husband and wife are 
 considered as separate individuals. If husband and wife 
 utter the like words, either simultaneously or separately, 
 there are two publications — a separate publication by 
 each (§ 304). For the words uttered by the husband he 
 must be sued alone ; for the words uttered by the wife, 
 
 1 A joint action cannot be maintained against two or more persona for slander 
 (Webb v. Cecil, 9 B. Mon. 198; Forsyth v. Edmiston, 2 Abb. Pr. R. 431; 5 Duer, 
 653; Chamberlaine v. Vilkuore, Palm. 313; 1 Bulst, 15; 2 W. Saund. 117 a; The 
 State v. Roulstone, 3 Sneed, 107; 2 Bish. Crim. Pro. § 766; Patten v. Gurney, 17 
 Mas3. 182 ; Heard on Libel, 222, note 1 ; Chamberlain v. White, Cro. Jac. 647.) " It is 
 an established rule, both here and in England, that two persons cannot join as pursu- 
 ers in an action of calumny ; but if defamatory language is published of partners in 
 trade, whereby they are injured in their trade, a joint action will lie at the suit of the 
 partners ; and, upon an extension of the same principle, it has been determined that 
 a body corporate or an association of individuals may be injured by scandal, and may, 
 accordingly, prosecute for redress of it. (Society of Solicitors v. Robertson, Novem- 
 ber 16, 1781, Mor. 13, 935, Shearlock v. Beardsworth, December 20, 1816, 2 Mur.
 
 §§ 119, 120.] PUBLISHER. 153 
 
 the husband and wife must be sued together. 1 Two or 
 more may agree together (conspire) in composing a set of 
 words which one or both shall speak ; that is to say, two 
 or more may conspire to injure another by an oral publi- 
 cation of language ; for this the remedy would be, not an 
 action for slander, but an action for a conspiracy to 
 defame. 2 
 
 § 119. "Where the publication is the joint act of two or 
 more, they may be sued jointly or separately ; if sued sepa- 
 rately, the plaintiff can have but one satisfaction, but may 
 elect de meliorihus damn is. Thus, where A. brought an 
 action of libel against B., who pleaded puis darrein contin- 
 uance, that he was a partner with C. in the printing and 
 publishing the newspaper which contained the libel, and 
 that A. brought a previous action against C. for the same 
 identical publication, and recovered a judgment which had 
 been satisfied, <fcc. On demurrer this was held a good 
 plea, and that the plaintiff could have but one satisfaction, 
 but nnVht elect de melioribus damnis? 
 
 § 120. A publication, the act of publishing, must be 
 upon some occasion (§ 50), and must be voluntary or invol- 
 untary (§ 67). Liability as publisher depends upon the 
 occasion and upon whether, as to the person sought to be 
 charged, the publication was voluntary or involuntary, 
 and generally upon the principles to which reference has 
 heretofore been made (§§ 50, 67, 68, 70). In the text 
 
 Rep. 19./' Borthwick on Libel, 174. — It is impossible for tbree men to make arbitra- 
 ment by word of mouth, because it cannot be jointly pronounced. (Lawson's Case, 
 Clayt. 17, A. D. 1663 ; and see Billings v. Russell, 8 Boston Law Rep. N. S. 699.) 
 
 1 (Tait v. Culbertson, 57 Barb. 9.) There must be separate actions for words 
 spoken by a husband and a wife. (Penters v. England, 1 M'Cord, 14; Malone v. Still- 
 well, 15 Abb. Pr. R. 425 ; Switljen v. Vincent, 2 Wils. 227.) Husband and wife may 
 be jointly sue 1 lor a libel published by them jointly. (Catterall v. Kenyon, 3 Q. B. 
 310 ; Keyvorth v. Hill, 3 B. <fe Aid. 685.) See Parties, post. 
 
 2 See 2 Hilliard on Torts, 444, 458 n. ; 8 Barr, 237 ; 10 id'. 369 ; 11 Met. 356. 
 
 3 Thomas v. Rumsay, 6 Johns. 26 ; Brown v. Ilirley, 5 Up. Can. Q. B. R. (0. S.) 
 734; Webb v. Cecil, 9 B. Mon. 198. 
 
 11
 
 154 PUBLISHER. [Ch. VL 
 
 books and reports much is said on the subject of privileged 
 publications, employing the term publication to mean as 
 well the act of publishing as the matter published ; and 
 these privileged publications are divided into such as are 
 absolutely privileged and such as are conditionally priv- 
 ileged. Reserving the subject of privileged publication to 
 be hereafter considered at length, we limit ourself here to 
 stating that all involuntary and some voluntary publica- 
 tions are privileged. 
 
 § 121. Where a closed paper is given to an employe 
 to deliver to another, it becomes the duty of the employe 
 to deliver such paper as directed, without inspecting its 
 contents, and in making the delivery without ascertaining 
 the contents of the paper, he performs a duty ; and, as the 
 performance of a duty is an involuntary act (§ 39), and 
 cannot amount to a wrong (§ 42), if it happen that the 
 paper contained defamatory matter, the employe incurs no 
 liability. The act of publishing defamatory matter was as 
 to him involuntary. He did not know, and was not under 
 any obligation to know, the contents of the paper carried 
 and delivered by him. He could have known the contents 
 of the paper only by a violation of his duty ; having sim- 
 ply performed his duty, no liability attached to him. 1 But 
 
 1 In Nutt's case, as reported Barnard. 806, it is said : if a servant carries a libel 
 for his master, he certainly is liable for what he does, though he cannot so much as 
 read or write. Mr. Starkie (2 Starkie on Slander, 29, note/), referring to this dic- 
 turn, says : " It is impossible not to dissent from this doctrine, so expressed, without 
 the qualification added that the servant bad some reason to know that he was dis- 
 charging an illegal mission." That the defendant could not read, and therefore was 
 ignorant of the contents of the paper published may be urged in mitigation. (Rex v. 
 Holt, 5 T. R. 444.) To constitute a publication such as will render the publisher 
 liable to an action, the publication must be knowingly. (Layton v. Harris, 3 Harring. 
 406.) Intentional. (Viele v. Gray, 10 Abb. Pr. R. 12; 18 How. Ft. R 567.) One is 
 not liable for a publication inadvertently. (Rex v. Abingdon, 1 Esp. Cas 228.) As 
 by delivering by mistake a paper out of bis study. (5 Mod. 167 ; Holt on Libel. 290.) 
 Or if it be stolen from him. See Weir v. Hoss, 6 Ala. S81 ; Barrow w. Lewellin, Hob. 
 62; 1 Hill. Torts, 321, note 1 ; § 116, ante. Reading a libel in the presence of an- 
 other without knowing it before to be a libel, with or without malice, does not amount 
 to a publication. (4 Bac. Abr. 458 ; Holt on Libel, 290.) But if he who has either 
 read a libel himself or has heard it read by another, do afterwards maliciously read or
 
 § 121.] PUBLISHER. 155 
 
 if, in such a case, the employe does in fact know the con- 
 tents of the paper, he cannot excuse himself by saying he 
 carried and delivered it as agent or employe (§ 67). Ordi- 
 narily it would be said that the non-liability of the em- 
 ploye, in the instance above put, arose from the absence of 
 "malice on his part in making the publication ; but this can 
 only mean that he had a legal excuse for performing the 
 act, namely, that the act, so far as it was wrongful, was as 
 to him involuntary. This is the true ground for the deci- 
 sions in which the non-liability is said to be the absence of 
 malice. Decisions that cannot be explained on this ground 
 were either erroneously decided or decided upon erroneous 
 grounds. The true ground for the decision in Smith v. 
 Ashley 1 was, the absence of " conscious violation" of law, 
 and "culpable knowledge?* The work of fiction pub- 
 repeat any part of it in the presence of others, or lend or show it to another, he is 
 guilty of an unlawful publication of it. (Hawk. P. C. c. 73, § 10 ; Holt on Libel, 291.) 
 Reading a libel by command of his father or master is not an actionable publication 
 — so said Comyn's Dig. tit. Libel, B. II, and cited George on Libel, 162. 
 
 If a man deliver by mistake a libelous paper out of his study, he would probably 
 be held liable civilly, for the publication was by his carelessness. (Majne v. Fletcher, 
 4 M. & Ry. 312.) 
 
 "The mere act of communicating that which is slanderous will not subject a party 
 even to civil liability without some degree of culpability on his part. If, for instance, 
 a servant or agent were in the ordinary course of his duty to deliver a sealed libel, 
 without any knowledge of it3 contents, though he were thus the actual instrument of 
 publication, yet if he acted but as the agent of another, without any reason for sus- 
 pecting that any wrong was intended, he would not subject himself to any civil, still 
 less to any criminal" responsibility." (1 Starkie on Libel, 226, [227].) 
 
 In an action against the defendant for publishing libels, it appearing that five 
 packets, addressed to individuals and enclosed in one addressed to him, had been re- 
 ceived at the coach-office where he was porter, and he delivered them; held that if 
 the jury found that he did so in the course of his business, and in ignorance of the 
 contents, he was not liable; but being prima facie liable, it was for him to show such 
 ignorance. (Day v. Bream, 2 M. & Rob. 54.) 
 
 1 An action for a libel cannot be maintained against the publisher of a newspaper, 
 if he has no knowledge, at the time of publication, that the article complained of is 
 libellous. Hence, if he publishes an article which he believes to be a fictitious narra- 
 tive, or mere fancj 7 sketch, and does not know that it is applicable to any one, he 
 cannot be held responsible, although it was intended by the writer to be libellous, 
 and to apply to the party who brings the action. In such case, the writer only is 
 answerable to the party libeled. (Smith v. Ashley, 11 Met. 367.) 
 
 3 See note to § 87, ante. " He who shall be convicted in the said case either ought
 
 156 publishes. [Ch. VL 
 
 lished had nothing on its face to indicate that it reflected 
 upon any individual or his affairs ; the publisher did not 
 know, and had no means of knowing, that it reflected on 
 any individual or his affairs ; in so far, therefore, as it did 
 reflect upon any individual, it was as to the publisher an 
 involuntary act, equally as much as the unconscious deliv- 
 ery by an employe of defamatory matter by the direction 
 of his employer. This subject will be further discussed 
 hereafter, when we come to treat of defences. 
 
 § 122. Upon the principles of law condensed in the 
 expression respondeat superior, one is responsible not only 
 for what he does or omits to do in his own proper person, 
 but also for all that his agents may do or omit to do in and 
 about his business. Every one is charged with the duty 
 to exercise such a vigilance in the selection of agents, ani- 
 mate and inanimate, as are competent and adequate to the 
 performance of the business they may be required to trans- 
 act and the ends they may be designed to accomplish ; he 
 must exercise such a control over them that in the trans- 
 action of his business they neither do or omit to do any act 
 amounting to a wrong. He cannot escape this liability 1 ly 
 omitting to exercise this vigilance ; for such omission is 
 itself negligence. It is upon this principle, and not upon 
 any presumption of malice, that an employer or principal 
 is held responsible for the act of his servant or agent. 1 
 
 to be a contriver of the libel, or a procurer of the contriving of it, or a malicious pub- 
 lisher of it, knowing it to be a libel." (9 Co. 59, Mo. 813; George on Libel, 107.) 
 
 1 Legal criminality is merely legal responsibility, and may exist where there is no 
 moral criminality whatever. (Holt on Libel, 5 3.) Malice, in legal understanding, 
 implies no more than wilfulness {id. 55, note 3, p. 123, ante), and between negligence 
 and wilfulness there is no difference but of degree. (Bramwell B. Mangan v. Atterton, 
 Law Reports, 1 Ex. 240.) Negligence embraces acts of commission as well as of omis- 
 sion, and diligence implies action as well as forbearance to act. (Grant v. Mosely, 29 
 Ala. 302.) But the only principle on which a man can be rendered liable for the 
 wrongful acts of another, is that such a relation exists between them that the former, 
 whether he be called principal or master, is bound to control the conduct of the latter 
 whether he be agent or servant. The maxim of the law is respondeat superior. 
 (Blackwell v. Wiswall, 14 How. Pr. R. 258.) 
 
 The rule of liability [of a principal for the acts of his agents], is not based upon
 
 § 123.] PUBLISHER. 157 
 
 § 123. The proprietor of a newspaper is responsible 
 for all that appears in its columns, although the publication 
 may have been made without his knowledge, in his 
 absence, and contrary to his orders. His liability is not on 
 the ground of his being the publisher, nor of being pre- 
 sumed to be the publisher, but because he is responsible 
 for the acts of the actual publisher. 1 
 
 any presumed authority in the agent to do the acts, but upon the ground of public 
 policy. (Lee v. Village of Sandy Hill, 40 N. Y. 448 ; Farmers' B'k v. Butchers' B'k 
 16 N.Y. 133.) The wrongful act is the servant's in fact and the principal's by construc- 
 tion. (Bruff v. Mali, 34 How. Pr. R. 344.) It is said to be the law that a master is 
 responsible for all wrongful acts of his servant, within the scope of his emploj'ment 
 and in executing the matter for which he was engaged at the time. See Allen v. 
 London & S. W. R'way, Law Rep. VI, Q. B. 67. 
 
 In an action for a libel contained in a letter : Proof that it was written by defend- 
 ant's daughter, who was authorized to make out his bills and write his general letters 
 of business, is not sufficient, unless it can be shown that such libel was written with 
 the knowledge of or by the procurement of the defendant. (Harding v. Greening, 1 
 Moore, 477; 1 Holt N. P. 531 ; 8 Taunt. 42.) Writing the letter was not within the 
 scope of the daughter's authority to act for her father. (Id.) A parent is not liable 
 as such for the wrongful acts of his child. (Tifft v. Tifft, 4 Denio, 1*75, and see Moon 
 v. Towers, 8 Com. B. N. S. 611.) 
 
 If an attorney introduces slanderous matter into the pleadings, without the direc- 
 tion of his client, the client is not responsible. (Hardin v. Cumstock, 2 A. K. Marsh, 
 480.) 
 
 1 The proprietor of a newspaper is responsible for whatever appears in its 
 columns. It is unnecessar}* to show that he knew of the publication, or authorized it. 
 (Huff v. Bennett, 4 Sand. 120.) For he is liable even though the publication was 
 made in his absence and without his knowledge by an agent to whom he had given 
 express instructions to publish nothing exceptionable, personal, or abusive, which 
 might be brought in by the author of the libel. (Dunn v. Hall, 1 Carter (Ind.), 345 ; 
 1 Smith, 288.) And see Curtis v. Mussey, 6 Gray (Mass.), 261. 
 
 An action for a libel lies against the proprietor of a gazette edited by another, 
 though the publication was made without the knowledge of such proprietor. 
 (Andres v. Wells, 7 Johns. 260.) 
 
 But if a printing press and newspaper establishment be assigned to a person 
 merely as security for a debt, and the press remains in the sole possession and 
 management of the assignor, the ownership of the person holding the security or lien 
 is not such as will render him liable to an action as proprietor. (Id.) 
 
 A receiver of a newspaper establishment, appointed to take charge thereof, and 
 continue the publication of the newspaper, would be responsible for any defamatory 
 matter published in the newspaper while the same was under his control. (Marten v. 
 Van Schaick, 4 Paige, 4*79.) A receiver was appointed to carry on the publication 
 of a newspaper in Dayton v. Wilkes, 17 How. Pr. R. 510. 
 
 The editor and publisher of a newspaper is answerable in law, if its contents are 
 libelous, unless the libelous matter was inserted by some one without his order and 
 against his will. (The Commonwealth v. Kneeland, Thacher's Crim. Cas. 346.)
 
 158 PUBLISHES. 
 
 § 124. The liability of the proprietor of a newspaper 
 is shared in common with the proprietor of a printing- 
 press, a printer, "book publisher, and bookseller. The 
 proprietor of a bookstore is liable for the contents of every 
 book and paper sold in his store. 1 
 
 Rex v. Gutch, 1 Moo. & Mai. 433, on the trial of defendant for publishing a libel 
 in a newspaper of which he was the proprietor, it was contended on his behalf that he 
 was not liable, because he took no part in the publication of the newspaper ; but he 
 was held liable and the court said : "A person who derives profit from and who 
 furnishes means for carrying on the concern, and entrusts the conduct of the publica- 
 tion to one -whom he selects, and in whom he confides, may be said to cause to be 
 published what actually appears ; " and see Rex v. Alexander, 1 Moo. & Mai. 437 ; 
 3 Albany Law Jour. 46, and see Atty. Genl. v. Siddon, 1 Cr. <fe Jer. 220. 
 
 2 " It is not material whether the person who disperses libels is acquainted with 
 their contents or otherwise, for nothing would be more easy than to publish the most 
 virulent papers with the greatest security, if the concealing the purport of them from 
 an illiterate publisher would make him safe in dispersing them. (2 Starkie on Slander, 
 30, note z. ; Moore, 62V ; Wood's Inst. 431 ; Bac. Abr. tit. Libel, 458.) See note, p. 154 
 ante. 
 
 Kutt's Case, Fitzg. 47; Barnard. 306: The defendant was tried for publishing a 
 libel. It appeared in evidence the defendant kept a pamphlet shop, and that the libel 
 was sold in defendant's shop, by her servant, for her account, in her absence, and that 
 she did not know the contents of it, nor of its coming in or going out. This was 
 held to be a publication by the defendant, but a jury was withdrawn. 
 
 Rex v. Dodd, 2 Sess. Cas. 33 : The defendant was tried for publishing a libel. 
 It was insisted for the defendant that she was sick, and that the libel was taken into 
 her house without her knowledge ; this was held no excuse, the law presumed her 
 acquainted with what her servant did. 
 
 In Rex v. Ahnon, 5 Burr. 2689, the liability of booksellers was much discussed, 
 and the court expressed an opinion that the sale of a libel in a booksellers's shop was 
 prima fade evidence of a publication, though not so conclusive but that it might be 
 rebutted by circumstances. It is said (2 Starkie on Slander, 34) ; " But the 
 defendant may rebut the presumption by evidence that the libel was sold contrary to 
 his orders, or clandestinely; or that some deceit or purprise was practiced upon him ; 
 or that he was absent under circumstances which entirely negative any presumption 
 of privity or connivance." And reference is made to Rex v. Almon, supra, and to 
 Woodfalls' Case, where the publication was by a servant of the defendant, the de- 
 fendant being at the time within prison walls. In Rex v. Fisher, 1 Moo. & Mai. 433, 
 it is said the presumption arising from proprietorship of a newspaper may be 
 rebutted, and an exemption established. If the publication is made without the con- 
 sent of the writer, the offence is not complete as to him. (Weir v. Hoss, 6 Ala. 881. 
 See Holt on Libel, 294.) As if the writing be stolen from him. (Mayne v. Fletcher, 
 9 B. & C. 3S2.) 
 
 In Chubb v. Flanaghan, 6 Car. & P. 431, it was held that if a publication consists 
 in merely selling a few copies of a periodical in which the libel was contained among 
 the articles, it was a question for the jury whether the defendant knew what he was 
 selling.
 
 CHAPTER VII. 
 
 CONSTRUCTION OF LANGUAGE. 
 
 Actionable quality of language dependent upon its con- 
 struction — All language ambiguous or unambiguous — 
 Difficidt to determine what is and what is not ambiguous 
 — Points upon which ambiguity arise — Causes of am- 
 biguity — Ambiguity, how explained — Different effect of 
 language concerning a person and of language concern- 
 ing a thing — Materiality of questions, what person or 
 thing affected, and whether the person is affected as an 
 individual merely, or in some acquired capacity — Prin- 
 ciples of construction; before verdict — after verdict — 
 Examples of construction — Divisible matter. 
 
 § 125. Language as a means for effecting a wrong 
 must be either such as is actionable or such a,s is not action- 
 able. To which of these divisions any particular language 
 is to be referred, may depend upon the construction of the 
 language in question. Anterior, therefore, to an inquiry 
 into what language is and what language is not actionable, 
 it is proper here to consider at least the principal rules by 
 which alleged defamatory language is construed. The 
 question as to when the construction is with the court, 
 and when by the jury is discussed in a subsequent chapter 
 (§§ 281-286). 
 
 § 126. Language may be ambiguous or unambiguous. 1 
 
 1 "Words or signs may be divided into three classes: (1) those which bear an 
 obvious and precise meaning on the face of them ; as if A. say to B., you murdered C. ; 
 (2) those which on the face of them are of dubious import, and are capable either of a 
 criminal or innocent meaning ; as if A. says to B., you were the death of C ; (3) 
 those which are prima facie and abstractedly innocent, and which derive their 
 offensive quality from some collateral or extrinsic circumstances; as if A. says to B.,
 
 160 CO-NSTKUCTIOX OF LANGUAGE. [Ch. VII 
 
 It is not easy in every case to determine what is ambiguous 
 and what is unambiguous language. Language may be 
 unambiguous on its face, which, by reason of some cir- 
 cumstances connected with it, is in fact ambiguous. This 
 is always the case with language used ironically. When 
 language is unambiguous on its face it must be construed 
 as unambiguous, unless its ambiguity be shown ; and on 
 the one who asserts the ambiguity of language unambig- 
 uous on its face, is the burden of establishing the ambiguity. 1 
 
 § 127. When language is ambiguous, the ambiguity 
 may be either (1) whether the language concerns a per- 
 son or a thing, or (2) what person or what thing it con- 
 cerns, or (3) if it concerns a person does it concern him as 
 an individual merely or in some acquired capacity, as in an 
 office, trade or profession ; (4) what is the import or sig- 
 nification of the language, and (5) is the charge or matter 
 divisible or indivisible. 
 
 § 128. The ambiguity may be patent or latent, that is 
 to say, the ambiguity may be inherent in the language and 
 apparent upon its face, or the ambiguity may arise by rea- 
 son of the language in question being connected with 
 some other language or event in such a manner as that its 
 
 you did not murder O, which words, from the ironical manner of speaking them, may 
 convey to the hearers as unequivocal a charge of murder as the most direct imputa- 
 tion." (1 Starkie on Slander, 46.) 
 
 1 " Where the words of themselves impute a larceny, and are unaccompanied by 
 an explanation showing the hearers that they were not so intended, the defendant must 
 show that they referred to a transaction that was not larceny, and were so understood 
 by all who heard them. And where the plaintiff had taken wood through mistake, 
 and the defendant, knowing the excuse for taking it, persists iu charging him with 
 stealing, in reference to such taking, he cannot fall back and rest upon the plaintiff's 
 innocence." (Phillips v. Barber, 7 Wend. 439.) 
 
 " As doubtful or apparently innocent words may by circumstances be shown to be 
 actionable, so may words apparently actionable be explained by circumstances to 
 have been intended and understood in an innocent sense. Thus, though the defendant 
 should say, Thou art a murtherer, the words would not be actionable if the defendant 
 could make it appear that he was conversing with the plaintiff concerning unlawful 
 hunting, when the plaintiff confessed that he killed several hares with certain engines, 
 upon which the defendant said, Thou art a murtherer, meaning a murtherer of hares 
 so killed. 4 Co. 13." (1 Starkie on Slander, 98.)
 
 §§ 129, 130.] CONSTRUCTION" OF LANGUAGE. 161 
 
 accustomed signification is affected and changed by such 
 other language or event. 
 
 § 129. The ambiguity of language unambiguous upon 
 its face is shown, and the ambiguity of language in every 
 case is explained, by introducing the other language or 
 event which exhibits or which explains the ambiguity, 
 and by alleging the supposed true meaning of the language 
 in question. The manner by which ambiguity is shown 
 and explained is by allegations in pleading, termed aver- 
 ments, colloquia, and innuendoes, the nature and ofhces of 
 which several allegations will be considered under the 
 head of Pleading. 1 
 
 § 130. Whether the language concerns a person or a 
 thing, i. e. the affairs of a person (§§ 25, 27, 28), is ma- 
 terial in this respect : that language when it concerns a 
 person, and is discommendatory, is always, in the absence 
 of any evidence to the contrary, regarded as uncalled for, 
 as published without any lawful excuse, and as not to be 
 believed or considered as true unless its truth be estab- 
 lished ; or, as the phrase is, such language is presumed to 
 be malicious and false. But as to language concerning a 
 
 1 An averment is to ascertain that to the court which is generally or doubtfully 
 expressed, so that the court may not be perplexed of whom, or of what, it [the lan- 
 guage] ought to be understood, and to add matter to the plea to make doubtful things 
 clear. A colloquium serves to show that the words were spoken in reference to the 
 matter of the averment. An innuendo is explanatory of the subject-matter sufficiently 
 explained before, and it is explanatory of such matter only ; for it cannot extend the 
 sense of the words beyond their own meaning unless something is put upon the record 
 for it to explain. (Van Vechten v. Hopkins, 5 Johns. 220.) 
 
 It seems that in some instances where the language is unambiguous on its face the 
 plaintiff will not be allowed to treat it as ambiguous and give it a meaning different 
 from that it ordinarily bears. Thus the words spoken of a dyer were " Thou art 
 not worth a groat," the plaintiff alleged that at E., where the words were spoken, 
 they were all one as calling him Bankrupt. The court held the averment idle, be- 
 cause the words in themselves imply a plain and intelligible sense. (Meade v. 
 Axe, Mar. 15, pL 37.) "It is not allowable to interpret what has no need of inter- 
 pretation, and when the words have a definite and precise meaning, to go elsewhere 
 in search of conjecture in order to restrict or extend the meaning." (McCluskey v. 
 Cromwell, 11 N. T. 601 ; Bartlett v. Robinson, 6 Trans. App. 166.)
 
 162 CONSTRUCTION OF LANGUAGE. [Ch. "VTL 
 
 thing no such presumption is indulged ; and upon those 
 who allege language concerning a thing to be false and 
 malicious is the burden of establishing those conclusions 
 by other evidence than that afforded by a mere publica- 
 tion of the language. And besides, to give a cause of 
 action for language concerning a thing, damage gen- 
 eral or special must in all cases be alleged and proved. 1 
 
 While a distinction has been actually maintained be- 
 tween language concerning a person and language concern- 
 ing a thing, the essential grounds of the distinction seems 
 not to have been clearly, nor indeed rightly, apprehended. 
 That branch of the law of libel known as " Slander of 
 Title," has been regarded as something distinct from Slan- 
 der and Libel, properly so called, whereas in reality 
 slander of title is but a portion of that division of the 
 law relating to wrongs by language which includes lan- 
 guage concerning things. 2 The rules relating to slander of 
 title apply to all language concerning things, but where 
 the language concerns both a person and a thing, it is 
 governed by the rules which relate to language concerning 
 
 J See Swan v. Tappan, 5 Cush. 104; Ingram v. Lawson, 6 Bing. N. C. 212; 8- 
 Scott, 5*71 ; Evans v. Harlow, 5 Q. B. 624 ; Kendall v. Stone, 5 N. Y. 14, reversing 
 s. c. 2 Sand. 269 ; Hargrave v. Le Breton, 4 Burr. 2422 ; Smith v. Spooner, 3 Taunt. 
 246; Bailey v. Dean, 5 Barb. 297; Linden v. Graham, 1 Duer, 6*70; Tobias v. Har- 
 land, 4 Wend. 53*7; McDaniel v. Baca, 2 Cal. 326; Hamilton v. Walters, 4 Up. Can. 
 Q. B. Rep. 0. S. 24. 
 
 2 Debated if slander of title within statute 21 Jac. 1, ch. xvi, actions on the case 
 for slander, held by three judges against one, that it was not ; " that action on the 
 case for slander " referred to the person of a man and not to the title of lands. For 
 this is not properly a slander but a cause of damage. (Lowe v. Harwood, Cro. Car. 
 140.) " An action for slander of title is not properly an action for words spoken or 
 libel written and published, but an action on the case for special damage sustained by 
 reason of the speaking or publication of the slander of the plaintiffs title. This 
 action is ranged under that division of actions in the Digests and other writers on 
 the text law, and is so held by the courts at the present day. Malachy v. Soper, 3 
 Bing. N. C. 371 ; 3 Scott, '723." (Heard on Libel, § 59.) "An action of slander of 
 title is a sort of metaphorical expression." (Maule, J., Pater v. Baker, 3 C. B. 831.) 
 " The cause of action is denominated slander of title by a figure of speech, in which 
 the title to land is personified and made subject to many of the rules applicable to 
 personal slander, when the words in themselves are not actionable." (Gardiner, 
 J., Kendall v. Stone, 5 N. Y. 14; see post, note to § 150.)
 
 § 131.] CONSTRUCTION OF LANGUAGE. 163 
 
 the person. The question whether the language concerns 
 a person or a thing arises in cases of alleged privileged 
 publications in the form of criticisms on books, works of 
 art, or places of public entertainment. It must be deter- 
 mined in those cases whether in point of fact the language 
 of the criticism was concerning the thing: the book, 
 the work of art, the entertainment, or concerning the per- 
 son : the author, the artist, or the proprietor of the place ; 
 and according to the decision of that question may the 
 language be, or not be, actionable. We shall advert to 
 this hereafter, in treating of the actionable quality of lan- 
 guage concerning things, and of defences (§§ 203, 251). 
 
 § 131. What person or what thing the language con- 
 cerns is material; as upon the answer to that question 
 depends whether the party complaining has, or has not, 
 any right to redress. Of course unless the language con- 
 cerns either the person or the affairs of the person com- 
 plaining, no wrong can have been done him of which he 
 can rightfully complain 1 (§ 343). 
 
 1 In action for scandalous words it is requisite that " the person scandalized be 
 certain." (James v. Rutledge, 4 Rep. 17 b.) " Xo writing whatever is to be esteemed 
 a libel unless it reflects upon some particular person," (Hawk. P. C, c. 79, § 9.) 
 After quoting the foregoing sentence, Holt (Holt on Libel, 246) adds: "This is un- 
 questionably true, as it relates to the action on the case for slander, in which the 
 party complaining must show himself to be meant by the libel." (Holt on Libel, 
 247; Harvey v. Coffin, 5 Blackf. 566.) It is not material whether the person is de- 
 scribed nominally or indirectly, provided his identity be ascertained. (Sumner v. 
 Buel, 12 Johns. 475.) Identity is presumed from identity of name. (Jackson v. 
 Goes, 13 Johns. 518; Jackson v. King, 5 Cow. 237; Jackson v. Cody, 9 Cow. 140; 
 Hamber v. Roberts, 18 Law Jour. R. (N. S.) 250, C. P.; 7 C. B. SCO; Sewall v. Evans, 
 4 Q. B. 626 ; Simpson v. Dismore, 9 M. ^ W. 47, 1 Dowl. P. C. N. S. 357; Hatcher v. 
 Rocheleau, 18 N. Y. 86, but see Jackson v. Christman, 4 Wend. 277 ; Whitlocke v. 
 Musgrove, 1 CAM. 511 ; Jones v. Jones, 9 M. & W. 75 ; Greenshields v. Crawford, 
 id. 314 ; 1 Dowl. P. C. N. S. 439.) Where the language is not applicable to the plain- 
 tiff (does not concern the person) no averment or innuendo can make it so. (Solomon 
 v. Lawson, 8 Q. B. 823; Ingram v. Lawson, 6 Bing. N. C. 212; 8 Scott, 571 ; Dot- 
 tarer v. Bushey, 16 Penns. 208; Swan v. Tappan, 5 Cush. 104; Vin. Abr., Act. for 
 Words, H. b. 12, 13.) Where the language is applicable to the plaintiff, although 
 not so upon its face to maintain an action therefor he must by averment introduce such 
 facts as make it apparent that persons who knew him would, on hearing or reading 
 such language, perceive its application to him. (Miller v. MaxwehV16 Wend. 9.)
 
 164 CONSTRUCTION OF LANGUAGE. [CL VII. 
 
 § 132. When the language concerns a person, it is 
 material further to inquire whether it concerns him as an 
 individual merely, or in some acquired capacity, as in an 
 office, trade or profession, because language which would 
 not be actionable if it concerned one as an individual 
 merely, may be actionable if it concerns him in his office, 
 trade, or profession (§ 179). 
 
 He cannot show the application of the language to himself by an innuendo alone. 
 (Wilson v. Hamilton, 9 Rich. Law (So. Car.), 382; Maxwell v. Allison, 11 S. & R. 
 343; Turner v. Merryweather, 7 C. B. 251 ; Tyler v. Tillotson, 2 Hill, 507 ; see § 343, 
 post.) Thus it is not sufficient to allege that the defendant said, " R. saw a young man 
 (meaning the plaintiff) ravishing a cow." (Harper v. Delph, 3 Ind. 225.) Or, W. or 
 somebody altered the indorsement on a note. (Ingalls v. Allen, Breeze, 233.) I know 
 of but one man who owes me enmity enough to do such a thing, and you know whom 
 
 I mean. (Robinson v. Drummond, 24 Ala. 174.) A. was supervisor of an election, at 
 which there was false swearing. (Lewis v. Soule, 3 Mich. 514.) And held that the 
 postmaster of J. could not maintain an action for words spoken of a missing letter 
 containing the resignation of one M. : " I do not think M.'s resignation has gone to 
 Washington. I have no doubt it was embezzled at J." (Taylor v. Kneeland, 1 Doug. 
 67.) For the words, "All the bravery you (A.) ever showed was sleeping with your 
 sisters," held that the sisters of A. could not sue. (Mallison v. Sutton, 1 Smith (Ind.) 
 364.) For calling W. a bastard, the mother of W. could not sue for the imputation upon 
 her without proper averments connecting the allegation with her. (Maxwell v. Allison, 
 
 II S. & R. 343.) An action may be supported for language in which the plaintiff is 
 described directly or indirectly, though his name is not given. In which case the 
 whole of the publication must be considered, in determining whether the averments 
 be sufficient to make it applicable to the plaintiff (Cook v. Tribune Association, 5 
 Bl. C. C. 352), with proper averments showing the plaintiff to be intended, one 
 may bring an action for words concerning on their face " his friend'' (Clark v. Creitz- 
 burgh, 4 M'Cord, 491) ; or the " surgeon of whiskey memory " (Miller v. Maxwell, 16 
 Wend. 9) ; or the " man at the sign of the Bible " (Steele v. Southwick, 9 Johns. 
 214); or, O. B. (O'Brien v. Clements, 16 M. & W. 159); or "desperate adventurers" 
 (Wakley v. Healey, 18 Law Jour. 241, C. P.) "The writer in the Register who was 
 deprived of a twopenny justiceship for malpractice in packing a jury" (Mix v. Wood- 
 ward, 12 Conn. 262); and see "One who edits the Times" (Tyler v. Tillotson, 2 Hill, 
 507); "Filly Horse" (Weir v. Hoss, 6 Ala. 881). Where B. had been accused of 
 stealing a tray of biscuits, and A. said in the hearing of B. and of other persons, 
 that if they did not look out he would make the tray of biscuits roar, held, that with 
 proper averments connecting B. with this language of A., B. might maintain an ac- 
 tion against A. (Briggs v. Byrd, 21 Ired. 353.) The words " I am a true subject, 
 and thou servestno true subject," spoken to the servant of I. S., held sufficient to give 
 a right of action to I. S. (Vin. Abr., Act. for Words, C b. 1.) And so of the 
 words, "Thy master, Mr. Browne, hath robbed me." (Id. 3.) If A. says to B., One 
 of us two is perjured, and B. say to A., It is not I, and A. says again, It is not I, B. 
 may maintain an action. (Id. 4 ; Coe v. Chambers, 1 Rolle Ab. 75.) For the words 
 " Thy son hath robbed " me, the son of the person spoken to may maintain an action 
 if he be the only son ; and if one say to a son, thy father, or to a wife, thy husband
 
 § 133.] CONSTRUCTION OF LANGUAGE. 165 
 
 § 133. Tile different effect which in certain cases is at- 
 tributed to written, as distinguished from oral language, 
 does not extend to the construction of lano-uas;e with a 
 
 hath robbed me, the father or the husband may have an action. (Vin. Abr. Act. for 
 Words, C. B. 6; H. b ; Kb; and see Ralph v. Davye, Sty. 150; Brent v. Ingram^ 
 Cro. Eliz. 36 ; Anderson v. Stewart, 8 Up. Can. Q. B. Rep. 243.) For the words 
 " Your boys stole my corn," " your children are thieves," either of the sons in the 
 one case, and of the children in the other, may sue. (Maybee v. Fisk, 42 Barb. 326 ; 
 
 Gibney v. Blake, 11 Johns. 54; and see Henacre v. , Keb. 525.) And for the 
 
 words, A. or B. killed T. S., either A. or B. may sue. (Falkner v. Cooper, Carth. 56.) 
 And where several are included in the same libel, they may each maintain a separate ac- 
 tion. (Smart v. Blanchard, 42 N. Hamp. 137; Ellis v. Kimball, 16 Pick. 132.) 
 Where the language affects a particular class of men, as for instance men of the 
 gown, it gives no right of action to an individual of that class. (Ryckman v. Dela- 
 van, 25 Wend. 186; rev'g White v. Delavan, 17 Wend. 49.) And see Ellis?;. Kim- 
 ball, 16 Pick. 132; Le Faun v. Malcolmson, 1 Ho. of Lords Cas. 637. Thus where 
 Ensign Sumner brought an action against Buel for defamatory matter published by 
 Buel, reflecting on the character of the officers generally of the regiment to which the 
 plaintiff belonged, it was held by a majority of the court that the action could not be 
 maintained, and that the appropriate remedy in such a case was indictment. (Sum- 
 ner v. Buel, 12 Johns. 475.) An information may issue in such a case. See Rex. v. 
 Baxter, 12 Mod. 139; L'd Rayni. 879; Rex v. Osborne, 2 Barnard. 138 ; Kel. 230 PI. 
 183; Rex v. Griffin, Rep. temp. Hardwicke, 39; Rex v. Home, Cowper, 672; Holt 
 on Libel, 249; Cooke on Defamation, 215. Where the defamatory matter is concern- 
 ing a class, as an unincorporated fire company, the members of the class cannot main- 
 tain a joint action. (Giraud v. Beach, 3 E. D. Smith, 337.) A man may be libeled, 
 not by name, or any specific description of himself, but under some such description 
 of persons as includes him with others — as all the brewers in a designated portion of 
 a city. (Ryckman v. Delavan, 25 Wend. 186; rev'g White v. Delavan, 17 Wend. 49; 
 and see Le Faun v. Malcolmson, 1 Ho. of Lords Cas. 637.) And "a scandal pub- 
 lished of three or four or any one or two of them is punishable at the complaiut of 
 one or more or all of them." (Holt on Libel, 247 ; Harrison v. Bevington, 8 C. & P. 
 807.) Thus where there was an indictment against sixteen persons for conspiracy, 
 and I. S. said the defendants were those who helped to murder W. N., held, either of 
 the sixteen defendants might have his action (Vin. Abr., Act. for Words, C. b. 5 ; and 
 see Forbes v. Johnson, 11 B. Mom*. 48; Chandler v. Holloway, 4 Port. 17; and see 
 Parties, post.) And where the charge was against the deputy -lieutenants engaged in 
 suppressing a riot, held one of such lieutenants might sue. (Morthland v. Cadell, 4 
 Paton, 385; Boyd Kinnears Dig. of H. C. Cas. 227.) But where the allegation was 
 that a number of articles had been put into the market, and fraudulently sold as an- 
 tiquities, held that a dealer in antiquities could not maintain an action. (Eastwood v. 
 Holmes, 1 Fos. & F. 347.) Where the intention to apply defamatory remarks to the 
 prosecutor is rendered doubtful and ambiguous by the defendant having left blanks 
 for names, or from his having given merely the initials or introduced fictitious names, 
 it is always a question for the opinion and judgment of the jury whether the prosecu- 
 tor was the party really aimed at. (2 Starkie on .Slander, 32; The State v. Jeandell, 
 32 Penn. State Rep. 475 ; Mix v. Woodward, 12 Conn. 262 ; Ryckman v. Delavan, 25 
 Wend. 186.) For this purpose the judgment and opinion of witnesses who, from
 
 166 CONSTRUCTION OF LANGUAGE. [Ch. VLL 
 
 view to determine its proper meaning. 1 For the purpose 
 of its construction, language is to be regarded not merely 
 in reference to the words employed, but according to the 
 sense or meaning which, all the circumstances of its pub- 
 lication considered, the language may be fairly presumed 
 to have conveyed to those to whom it was published. 
 The language is always to be regarded with reference to 
 what has been its effect, actual or presumed, and the sense 
 is to be arrived at with the help of the cause and occasion 
 of its publication. 2 The court or the jury is to place 
 
 their knowledge of the parties and the circumstances, are liable to form a conclusion 
 as to the defendant's intention and application of the libel, is evidence for the infor- 
 mation of the jury ; (2 Starkie on Slander, 321), and he adds in a note ; Lord Ellen- 
 borough held that the declarations of spectators while they looked at a libelous 
 picture, publicly exhibited in an exhibition-room, was evidence to show that the 
 figures portrayed were meant to represent the parties alleged to have been libeled. 
 (Du Bost v. Beresford, 2 Camp. 512); and see Starkie on Evidence, part iv., p. 861. 
 In New York a witness is not allowed to state his conclusion from the facts as to the 
 intention of the defendant to apply the words or libel to the party or circumstances 
 as alleged. (Van Vechten v. Hopkins, 5 Johns. 211; Gibson v. Williams, 4 "Wend. 
 320.) In some other States witnesses have been allowed to testify as to the sense in 
 which they understood the words, and the application of the words to the plaintiff. 
 (Morgan v. Livingston, 2 Rich. 573; Miller v. Butler, 6 Cush. 71 ; Leonard v. Allen, 
 11 Cush. 241 ; McLaughlin v. Russell, 17 Ohio, 475 ; Goodrich v. Davis, 11 Met. 473; 
 Goodrich v. Stone, 11 Met. 486; Allensworth v. Coleman, 5 Dana, 315; White v. 
 Sayward, 33 Maine, 322; Mix v. Woodward, 12 Conn. 262; Smarts. Blanchard, 42 
 N. H. 137; Smaley v. Stark, 9 Ind. 386; Tompkins v. Wisener, 1 Sneed, 458; Com- 
 monwealth v. Buckingham, Thacher's Crim. Cas. 29.) But the rule adopted in New 
 York appears to have been followed in Snell v. Snow, 13 Met. 278; Rangier v. IIuui- 
 mell, 37 Penn. St. Rep. 130; Briggs v. Byrd, 11 Ired. 353. 
 
 'In Edsall v. Brooks, 3 Robertson, 295, it is said: "Although greater liberality 
 seems to be exercised in the case of words when they are spoken, than when they 
 are contained in written or printed articles, yet in both cases it must be one of intent, 
 of course a person must be presumed to have used words in their ordinary import 
 among those who speak the language to which such words belong, in the community 
 in which they are uttered or published, but if they have acquired by local usage a 
 different meaning, it must be presumed that they were used to convey the ideas 
 attached to them by such usage, and such meaning may be alleged as a fact in the 
 pleadings, and the evidence upon it may be passed upon by the jury. The meaning 
 of all words in the English language is not everywhere the same, and the only cri- 
 terion of the meaning of them, as used on any occasion, is the understood meaning 
 in the community, society or individuals to whom they were addressed ; it is only 
 when iinderstood in that sense they do the party at whom they are aimed any 
 injury." 
 
 2 In actions for words we are to consider the words themselves and the causa dicendi,
 
 § 133.] CONSTRUCTION OF LANGUAGE. 167 
 
 itself in the situation of the hearer or reader, and deter- 
 mine the sense or meaning of the language in question 
 according to its natural and popular construction. 1 
 
 It is said that words to confer a cause of action for 
 slander or libel ought to be in the affirmative, 2 and that 
 actions for slander do not lie upon inferences, 3 but negative 
 
 for sometimes in the first case 1;hey will bear an action, and yet when the causa 
 dicendi is considered they will not. (Barclay, J., Mar. 20, p. 45.) " In case of slan- 
 der by words, the sense of the words ought to be taken, and the sense of them 
 -appears by the cause and occasion of speaking them ; for sensus verborum ex causa 
 dicendi accipiendus est." (4 Co. 18.) The construction which it behooves a court of 
 justice to put on a publication which is alleged to be libelous, is to be derived as well 
 from the expressions used, as from the whole scope and apparent object of the writer. 
 (Van Buren, Senator, Spencer v. Southwick, 11 Johns. 592.) 
 
 1 " Words are now construed by courts as they always ought to have been, in the 
 plain and popular sense in which the rest of the world naturally understand them." 
 (Roberts v. Camden, 9 East, 93.) " It is quite clear, from all the modern authorities, 
 that a court must read these words in the sense in which ordinary persons, or in 
 which we ourselves, out of court, reading this paragraph, would understand them." 
 (Tenterden, C. J., Harvey v. French, 1 Cr. & M. 11.) We cannot pervert the words 
 and alter the ordinary construction of them. (Bonyon v. Trotter, Sty. 231.) The 
 words must be understood by the court in the same sense in which the rest of man- 
 kind would ordinarily understand them. (Woolnoth v. Meadows, 5 East, 463; Spen- 
 cer v. Southwick, 11 Johns. 579.) We " ought to expound words according to their 
 general signification." (Pratt, C. J., Button v. Heyward, 8 Mod. 24), or acceptation 
 (Fallenstein v. Boothe, 13 Mis. 427; Ogden v. Riley, 2 Green, 186); their popular 
 sense (Duncan v. Brown, 15 B. Monr. 186; Hancock v. Stephens, 11 Humph. 507) 
 their most obvious meaning (Hogg v. Wilson, IK it M. 216), or common import 
 (Thirman v. Mathews, 1 Stew. 384; Hogg v. Dorrah, 2 Port. 212), as understood by 
 the hearer (Dorland v. Patterson, 23 Wend. 422 ; Butterfield v. Buffum, 9 N. Hamp. 
 156; McGowan v. Manifee, 7 Monr. 314); and according to the ideas they are cal- 
 culated to convey (Demarest v. Haring, 6 Cow. 76; Truman v. Taylor, 4 Iowa, 424) ; 
 according to their natural meaning and common acceptation (Wright v. Paige, 36 
 Barb. 438; s. c, on appeal, 3 Trans. App. 134.) The jury are to be guided in 
 forming their opinion [on the meaning of the alleged defamatory matter] by the im- 
 pression which the words or signs used were calculated to make on the minds of 
 those who heard or saw them, as collected from the whole of the circumstances. (1 
 Starkie on Slander, 60.) Words are to be taken in that sense in which they are gen- 
 erally understood, and when that puts upon them a guilty sense they are actionable. 
 (Pike v. Van Wormer, 6 How. Pr. R. 99 ; Dias v. Short, 16 id. 322 ; Walrath v. Nellis, 
 17 id. 72 ; Ilughley v. Hughley, 2 Bailey, 592 ; Tuttle v. Bishop, 30 Conn. 80.) The 
 words are to be taken in their natural meaning and according to common acceptation 
 (Carroll v. White, 33 Barb. 618), and the vulgar intendment of the bystanders. 
 (Somers v. House, Holt, 39.) 
 2 Weblin v. Meyer, Yelv. 153. 
 * Jenk. 302 PI. 72. To sustain an action plaintiff must show (1) that the words
 
 168 CONSTRUCTION OF LANGUAGE. [Cll. VII. 
 
 or ironical language may be shown to be in fact affirmative, 
 and if so found, has the like effect as affirmative words. 1 
 " The law cannot be evaded by any of the artful and dis- 
 guised modes in which men attempt to conceal libellous 
 or slanderous meanings ; " 2 and the fact of language being 
 
 used either " of themselves or by reference to circumstances, are capable of the 
 offensive meaning attributed to them ; (2) that the defendant did, in fact, use them in 
 that sense." (1 Starkie on Slander, 44.) " Words imputing crime must be precise." 
 (Id.) See note to § 142, post. 
 
 1 "Words calculated to induce the hearers to suspect that the plaintiff was guilty 
 of the crime alleged, are actionable. (Drummond v. Leslie, 5 Blackf. 453.) It is not 
 necessary that the words iu terms should charge a crime. If such is the necessary 
 inference, taking the words altogether, and in their popular meaning, they are 
 actionable. (Morgan v. Livingston, 2 Rich. 573 ; Cass v. Anderson, 33 Verm. 182 ; 
 Colman v. Godwin, 3 Doug. 90 ; 2 B. & C. 285 ; Commonwealth v. Runnels, 10 Mass. 
 518.) " A libel in hieroglyphics is as much a libel as an open invective. Not only 
 an allegory but a rebus or an anagram may be a libel." (Holt on Libel, 245.) The 
 man that is painted with a fool's cap or coat, or with horns, or whose picture is 
 drawn with asses' ears, is certainly abused. (1 Wood's Inst. 445; Holt on Libel, 
 244 ; Du Bost v. Beresford, 2 Camp. 512 ; Mezzara's Case, 2 City Hall Recorder, 
 113.) 
 
 " I know what I am, and I know what Snell is ; I never buggered a mare." These 
 words held to import a charge of buggery against Snell. (Snell v. Webbling, 2 Lev. 
 150.) But the words, "I never came home and poxed my wife," held not capable 
 of being construed as a charge that the party to whom the words were addressed 
 had gone home and poxed his wife. (Clerk v. Dyer, 8 Mod. 290.) And so the words, 
 " A man that would do that would steal," held not to amount to a charge of stealing. 
 (Stees v. Kemble, 27 Penns. 112.) 
 
 The defendant wrote a pamphlet called " Advice to the Lord Keeper, by a Country 
 Parson," wherein he would have him love the church as well as the Bishop of Salis- 
 bury, manage as well as Lord Havesham, be brave as another Lord, dire. The 
 defendant was found guilty, and upon motion in arrest of judgment, it was urged that 
 no ill thing was said of any person, and all he said was good of them ; but by the 
 court; the words were laid to be ironical, and the jury have found them to be so, 
 and the motion was refused. (Reg. v. Browne, Holt, 435; 11 Mod. 86, recognized, 
 Andrews v. Woodmarisee, 15 Wend. 232 ; Boydell v. Jones, 4 M. A W., 446; 7 Dowl. 
 Pr. Cas. 210.) So where the words were, " You are no thief." (4 Rep. 19 ; Cro. Jac. 
 65; 2 Bulst. 138; L'd Raym. 236.) You will not play the Jew nor the hypocrite. 
 (Rex v. Brown, Popham, 139 ; Hob. 215.) "An honest lawyer." (Boydell v. Jones, 
 4 M. & W. 446; 7 Dowl., P. C. 210.) They being alleged to have been spoken 
 ironically, and so found by the jury, held to be actionable. 
 
 9 Shaw, Ch. J., Commonwealth v. Child, 13 Pick. 198. The court will regard the 
 use of fictitious names and disguises in a libel in the sense that they are commonly 
 understood. (The State v. Chace, Walk. 384.) " If, therefore, obscure and ambigu- 
 ous language is used, or language which is figurative or ironical, courts and juries 
 will understand it according to its true meaning and import; and the sense in which 
 it was intended, is to be gathered from the context and from all the facts and
 
 § 133.] CONSTRUCTION OF LANGUAGE. 169 
 
 ungrammatical, or such as is not usually found in any 
 dictionary, 1 will not suffice to prevent the law taking 
 cognizance of such language, or of the meaning it properly 
 conveys. 2 
 
 circumstances under which it was U3ed." (Shaw, Ch. J., Commonwealth v. Kneeland, 
 20 Pick. 206; and see Vanderlip v. Rose, 23 Penn. State Rep. (11 Harris), 82.) 
 " One half of the English language is interpreted by the context." Alderson, B. 
 Dellevene v. Percer, 9 Dowl. P. C. 245. 
 
 A defamatory writing expressing only one or two letters of a name, in such a 
 manner that from what goes before and follows after it, must necessarily be under- 
 stood to signify a certain persoD in the plain, obvious, and natural construction of the 
 whole, is to be understood as if the name were written in full. (Reg. v. Hurt, Hawk. 
 PI. Cr. 194; Rex v. Woodfall, Lofft, 776; Roach v. Read, 2 Atk. 469 ; Holt on Libel, 
 243.) If in a libel asterisks be put instead of the name of the party libeled, it is 
 sufficient that the plaintiff should be so designated that those who know him may 
 understand that he is the party meant. It is not necessary that all the world should 
 understand that the plaintiff is the party intended. (Bourke v. Warren, 2 C. & P- 
 307) ; and see in note 2 infra, and note page 163, ante. 
 
 1 One " cannot protect himself from an action by the mere grammatical structure 
 of the phrase." (Cowen, J., Cornelius v. Van Slyck, 21 Wend. 70.) "The etymology 
 of words, or the grammatical construction of sentences, will be fallacious if followed 
 as the only guides in the interpretation of language." (Borthwick on Libel, 142.) 
 "Here is three cockeh in this place we now them well, he is a nave, he cheats and 
 rongs the country, and is the cur of a son of a whore." The indictment for these 
 words was demurred to because the words were not intelligible, but the court over- 
 ruled the demurrer, and said " it would be hard that a court of justice must not 
 understand what is spelt badly, when all the world besides makes no scruple to find 
 the signification of the words." (Rex v. Edgar, 2 Sess. Cas. 29, PL 33.) " Common 
 sense is not to be deemed a stranger to legal process, but as very influential in 
 ascertaining the force and effect of words and sentences which, although technical, 
 are to receive a sensible construction." (Parker, Ch. J., Commonwealth v. Runnels, 
 10 Mass. 518.) 
 
 2 Courts take judicial notice of the meaning of words and idioms in the ver- 
 nacular language. (1 Greenl. Ev. § 5, citing 6 Vin. Ab. 491, PI. 6, 7, 8 ; Tit. Court 
 C. ; Hoyle v. Cornwallis, 1 Stra. 387 ; Page v. Faucet, Cro. El. 227 ; Harvey v. Brand. 
 2 Salk. 626 ; and see note 1, p. 1*71, post.) An J no colloquium or innuendo is necessary 
 to point their meaning. (Elam v. Badger, 23 111. 49S ; Forbes v. King, 1 Dowl. P. 
 C. 072; Hoare v. Silverlock, 12 Adol. & Ell., N. S. 624; Homer v. Taunton, 5 HurL 
 & Nor. 661 ; Fuck is an English word and no innuendo is necessary to point it3 
 meaning (Edgar v. McCutchen, 9 Missouri, 768.) In Hoare v. Silverlock (12 Ad. & 
 El., N. S. 621), the court took judical notice, without an innuendo, of the reproachful 
 meaning of the term "frozen snake," and so in Ashley v. Billington (Carth. 231), of 
 the term "Jezebel," and so of the terms "Empirick" and '•Mountebank." (Vin. 
 Abr., Act. for Words, S. a. 12.) In King y. Lake (2 Ventr. 18), the court said they 
 could not take notice of " milk your purse," because it had not become an idiom. 
 See as to "Man Friday," "Gambling Fracas." (Forbes v. King, 1 Dowl. 672.) 
 Shooting out of a leather gun. (Ilarman v. Delany, 2 Stra. 893.) "Bogus pedlar" 
 was said not to have acquired a meaning sufficiently definite to allow the court to 
 
 12
 
 170 CONSTRUCTION OF LANGUAGE. [Ch. VII. 
 
 § 134. Whenever language charged to be defamatory 
 has any reference to or is connected with any other 
 language or event, which affects its meaning or effect, it 
 must be construed in relation to such other lano-uao-e or 
 event ; and this, although on the face of the alleged de- 
 famatory matter there is no reference to any other language 
 or event. 1 In the absence, however, of any allegation or 
 proof to the contrary, matter which has on its face no ref- 
 erence to any other language or event, will not be pre- 
 sumed to have any such reference, and must be construed 
 as standing; alone. 2 
 
 take judicial notice of its import. (Pike v. Van Wormer, 6 How. Pr. R. 101; 5 id. 
 115.) The law does not take notice of what a "cozener" is (Walcot v. Hind, Hutt, 
 14); or the meaning of "tan money." (Day v. Robinson, 1 Ad. & El. 554.) Wool- 
 comber held not to need an innuendo to show it means one who buys wool to work 
 with. (Anon. Lofft, 322.) Truckmaster, a word said not to be found in any 
 dictionary, was used without an innuendo ; it was left to jury to decide if used in 
 libelous sense. (Homer v. Taunton, 5 Hurl. & Xor. 661.) Doubted if the term 
 " swindler" was one of which the court would take judicial notice (1' Anson v. Stewart, 
 1 T. R. 748) ; but see Forrest v. Hanson, 1 Cr. C. C. 63. The Court refused to take 
 notice that "hooked" is sometimes used to mean "stole" (Hays v. Mitchell, 7 Blackf. 
 117); or " goose -house" to mean "brothel." (Dyer *■. Morris, 4 Mis. 214.) 
 
 The court is to inform itself of the meaning of English words, although unusual 
 and peculiar to a particular place (Parke, B., McGregor v. Gregory, 2 Dowl., X. S. 
 769; 11 M. AW. 287; Com. Dig., Act, for Defam. C). as healer of felons (Rolle 
 Abr. 86); or Welsh words (Hobart, 126), Da ffa-down-dilly, by averment meaning 
 arnbo dexter (Pearce's Case, Cro. Car. 382); and where particular English words have 
 acquired some sense different from their natural one, an averment by way of induce- 
 ment of that acquired sense is necessary ; an innuendo without such an averment 
 would be insufficient (McGregor y. Gregory, 2 Dowl. X. S. 769); so held of the terms 
 black sheep and black legs (id.) ; and see notes 1. pages 171 and 17">. post. 
 
 1 Tighe v. Cooper, 7 Ell. it Bl. 639. The defendant has always been permitted, 
 by way of defence, to show the matter affecting the meaning of the alleged defamatory 
 matter, as in an action for calling plaintiff a murderer, it may be urged that the words 
 ■were used in the course of a conversation about unlawful hunting and merely 
 imported that plaintiff was a murderer of hares 14 Co. 14 1, so where the charge was 
 ma ntenance defendant might show that lawful maintenance was intended (Cro. Jac. 
 90; Kinnersly v. Cooper, Cro. Eliz. 168; and see Britti" . 4 Co. 18.) And 
 •where defendant charged plaintiff with the commission of an offence, but alleged 
 that plaintiff was insane at the time: Held, that although otherwise actionable yet 
 as insanity would be an excuse for the offence the charge was not actionable 
 (Abrams v. Smith, 8 Blackf. 95.) 
 
 2 Explanatory circumstances known to both parties, speaker and hearer, are to be 
 taken into the account as part of the words. (Dorland v. Patterson, 23 Wend. 422, 
 citing Andrews v. Woodmansee, 15 id. 232; Miller v. Maxwell, 16 id. 9; Ileming v.
 
 § 134.] CONSTRUCTION OF LANGUAGE. 171 
 
 It is impossible to anticipate or catalogue all the cir- 
 cumstances which may affect the meaning of language, but 
 among them are the circumstances of tune, place, and 
 usage, 1 and some others to be presently mentioned. 
 
 Power, 10 M. & W. 569 ; and see Hankinson v. Bilby, 2 Car. and Kir. 440; 16 M. <fc 
 W. 446; Perry v. Mann, 1 Rhode I. 263.) Words otherwise actionable explained at 
 the time of publication by referring to a known and particular transaction are to be 
 construed ace irdingly. (Dole v. Rensselaer, 3 Johns. Cas. 458; Aldrich v. Brown, 11 
 Wend. 596; Trabue v. Mays, 3 Dana, 138; Emery r. Miller, 1 Denio, 208; Thomp- 
 son v. Bernard, 1 Camp. 4S ; Shecut v. McDowel, Const. Rep. 35 ; Christie v. Cowell, 
 Peake, 4 ; Pegram v. Styron, 1 Bailey, 595.) Words which do not necessarily import 
 anything injurious, may do so when taken in connection with other charges (Beards- 
 ley v. Tappaa, 1 Blatch. C't. Co't Rep. 588), or according to the common understand- 
 ing of them. (Cooper v. Perry, Dudley, 247.) The defendant may show the lan- 
 guage related to some transaction (Ceeley ;■. Hoskins, Cro. Car. 509 ; Norton v. Ladd, 
 5 N. H. 203), or was uttered in connection with other words, which controlled its 
 meaning. (Stevens v. Handley, Wright, 123; Williams v. Cowley, 18 Ala. 206; 
 Hays v. Mitchell, 7 Blackf. 117; Harrison v. Findlay, 23 Ind. 265; Robinson v. 
 Keyser, 2 Foster (N H.), 323. 
 
 Where the language is prima facie actionable, the burden is on the defendant to 
 show that they are not actionable. (2 Starkie on Slander, 85 ; Penfold v. Westcote, 
 2 N. R. 335; Christie v. Cowell, Peake's Cas. 4; Sel. N. P. 1250; Bissel v. Cornell, 
 24 Wend. 354 ; Watson v. Nicholas, 6 Hump. 174.) 
 
 1 "Libel * * * has been variously construed at various times ; being a mere 
 legal reason, and therefore variable not only according to all the circumstances of the 
 times, but according to the ability and information of the judges. In ignorant and 
 despotic times it had not the same limits and precision as in the days of liberty and 
 science." (Holt on Libel, 43.) "In judging of the meaning of language, our juries 
 have been directed to attend to the criteria of the time, the place, when and where, 
 and the person by and to whom the language has been employed." (Borthwick on 
 Libel, 142.) 
 
 "Precedents in actions for words are not of equal authority as in other actions; 
 norma Joquendi is the rule for the interpretation of words, and this rule is different in 
 one age from what it is iu another. The words which an hundred years ago did not 
 import a slanderous sense, may now, and vice versa" (Harrison v. Thornborough, 10 
 Mod. 196; cited Beardsley v. Dibblee, 1 Kerr, 246.) And it is the duty of courts to 
 take notice of the mutations in language. (Vanada's Heirs v. Hopkins, 1 Marshall 
 Ken. R. 287.) "The precedents in Croke's reports are beginning to be considered 
 apocryphal." (Gibson, J., Bash v. Sommer, 20 Penn. St. R. 159.) "Many of those 
 cases [in Cro. Jac. and Cro. Car.] could not be supported at the present day. I do 
 not mean to cast any doubt upon the cases quoted from Bacon's Abridgement and 
 Comyn'a Digest." (Pollock, C. B., Tozer v. Mashford, 6 Ex. 539; and see Beardsley 
 v. Dibblee, 1 Kerr, 260; Foster v. Small, :; Wliart. 143; Bh.ss v. Tobey, 2 Pick. 320.) 
 Bridgeman, Ch. J., said he was not s itisfied to go by precedents, because he held that 
 to be scandalous now which was not twenty years ago. That it is use makes words 
 have force, and words that are actionable now, hereafter may not he so. (Carth. 55.) 
 " The opinions of later times have been in many instances different from those in 
 former days in relation to words." (Holt, Ch. J., Baker v. Pierce, 6 Mod. 23.)
 
 172 CONSTRUCTION OF LANGUAGE. [CL VH 
 
 § 135. In allowing extraneous circumstances to affect 
 the construction of language, courts inquire whether or 
 not the hearer or reader of the language knew such cir- 
 cumstances. If the hearer or reader was acquainted with 
 those extraneous circumstances, the construction will be 
 with reference to them, not because it is important how 
 the hearer or reader understood the language, but because 
 those circumstances form a proper element in determining 
 the meaning to be attributed to the language in question. 
 If the hearer or reader was not acquainted with those 
 extraneous circumstances, then they will not be taken 
 into consideration in deternmiino; the meaning of the Ian- 
 guage. The hearer or reader not being acquainted with 
 those circumstances which affect the meaning of the lan- 
 guage, its effect upon such hearer or reader is as if no such 
 circumstances existed, and the lans-uao-e is to be construed 
 without reference to such circumstances. The circum- 
 stance that the act charged is physically or legally impos- 
 sible, does not always prevent the language being 
 actionable. The alleged test in such a case is the knowl- 
 edge possessed by those to whom the language is pub- 
 
 In the time of Charles the Second of England, it was held actionable to call one a 
 Papist or to say he went to Mass (Row v. Clargis, L'd Raym. 482 ; 2 Salk. 696; Wal- 
 den v.Mitchell, 2 Vent. 265; Cutler v. Friend, 2 Show. 140); but held otherwise in 
 the reign of King James. (Ireland v. Smith, 2 Brown, 166.) So in England, to write 
 of one that he was a " Man Friday" was held not actionable (Forbes v. King, 1 Dowl. 
 P. C 672; 1 Cr. & M. 435; 2 Law Jour. Rep. N. S. Ex. 109), for the reason as stated 
 in Hoare v. Silverlock, 12 Adol. & El. N. S. 624, that being a black man might be a 
 great misfortune, but was no crime ; while in the United States it has been held action- 
 able to call one a mulatto. (King v. Wood, 1 N. <fe M (So. Car.) 1S4 ; Eden v. Legare, 
 1 Bay, 171 ; Atkinson v. Hartley, 1 McCord, 203; contra Barrett v. Jarvis, 1 Hamm. 
 83, note; see Borthwick on Libel, 176; Trench's English Past and Present; Mills' 
 Logic, Bk. iv. ch. v. — The history of variations in the meaning of terms.) 
 
 The word "screwed," or "strained," does not of itself import sexual intercourse, 
 but in certain localities it may have that import. (Coles v. Haviland, Oo. Eliz. 250; 
 Miles v. Van Horn, 17 Ind. 245; Rodeburgh v. Hollingsworth, 6 Ind. 339; Vin. Abr. 
 Act. for Words, L. b. 7.) In London, England, pimp signifies common bawd. (Dim- 
 mock v. Fawset, Cro. Car. 393, pi. 5.) Healer of felons means, in some localities, aider 
 of felons; limir means thief ', and outputtcr means receiver of jclons (Vin. Abr. Act. 
 for Words, L. b. 1, 6), and see id. 4, 7, as to the word champcrlor and the phrase cut 
 him out of doors ; and see note 2, page 169, ante.
 
 § 135.] CONSTRUCTION OF LANGUAGE. 173 
 
 lislied. Tims where the defendant attributed to the 
 plaintiff sexual intercourse with a dog, and of having 
 given birth to a litter of pups in consequence of such 
 intercourse, it was held not to be a defence — that such a 
 result was impossible. But semUe that it might have 
 been a defence if it had been shown that the defendant 
 and those who heard the words knew that such a result 
 was impossible. 1 
 
 To charge A. with the murder of B., although B. was 
 
 1 Kennedy v. Gifford, 19 Wend. 296. Courts cannot say judicially whether it he 
 possible for a woman to have connection with a dog, or to have pups by him, but as it 
 is not popularly believed to be impossible, the people not being presumed to know 
 Bcientific facts, the injury to the plaintiff will be the same in either case, and the action 
 will lie. (Ausman v. Veal, 10 Ind. 355; Cleaveland v. Detweiler, IS Iowa, 299.) 
 
 In Fenn v. DLxe, Jo. 444, pi. 5, the words were of a brewer and his beer. " I will 
 give my mare a peck of malt, and lead her to the water and let her drink, and she 
 shall piss as good beer as any Tom Fenn (the plaintiff ) brews." One reason assigned 
 for holding the words not to be actionable, was that the words were impossible to be 
 true in the understanding of any man. 
 
 " Thou art a bastard-bearing whore, and hadst two bastards." It was objected that 
 these words spoken of a married woman were not actionable, because a married woman 
 cannot have a bastard, but held actionable because they purported that she was not 
 married when she had the bastards. (Stevens v. Ask, Sty. 424.) 
 
 These words concerning a churchwarden, "Who stole the bell ropes, you scamp- 
 ing rascal?" Not actionable, because the property of the bell ropes was in the plain- 
 tiff as churchwarden, and as he could not steal his own property, the words imputed 
 no felony. (Jackson v. Adams, 2 Bing. N. C. 402; 2 Scott, 599.) " If a man says to 
 a miller who keeps a corn mill, thou hast stolen three pecks of meal, an action lies; 
 for, although the corn was delivered to him to grind, nevertheless, if he steal it, it is 
 felony, being taken from the rest." (1 Rolle's Abr. 73, s. 16, cited Nichols v. The 
 People, 17 X. Y. 117; and see Hume v. Arrasmith, 1 Bibb, 165, and § 169, post.) 
 
 In an action for slander the words were, "You are a thief; you robbed Mr. L. of 
 £30." The words were spoken in the hearing of B. and of several strangers. B. knew 
 that the words did not mean to impute felony, but meant to impute that the plaintiff 
 had improperly obtained £30 from Mr. L. to compromise an action for a distress: 
 Held, that under these circumstances the question to be left to the jury was not what 
 the defendant meant by the words he spoke, but what reasonable men, hearing the words, 
 would understand by them. Semble, also, that if all the persons present when the words 
 were spoken had known that the words did not impute felony, that would have been 
 an answer to the action. (Ilankiuson v. Bilby, 2 Car. & Kir. 440; 16 M. <fe W. 442.) 
 The mere fact that the defendant charged the plaintiff with theft, in regard to an arti- 
 cle of property which had been either loaned or sold to the plaintiff, but which sale 
 or loan was not known to those in whose presence he made the charge, will not ba a 
 ground of showing either that the act charged was impossible or that the charge was 
 not seriously made. (Smith v. Miles, 15 Verm. 245.)
 
 174 construction or language. [Ch.VII. 
 
 alive at the time, would be actionable ; but semble not so 
 if those to whom the publication was made knew that B. 
 was alive. 1 So, semble, one tenant in common of chattels 
 cannot be guilty of larceny of the chattels held in com- 
 mon; and therefore to charge one of several tenants in 
 common with larceny of a chattel held in common, 
 would be actionable, unless those to whom the publication 
 was made knew of the tenancy in common. 2 For " if, at 
 the time the words are uttered, there are circumstances 
 [known to the hearers] which clearly show the words are 
 not used in the sense of imputing a felony, then the 
 charge falls to the ground and no action will lie." 3 
 "Words uttered must be construed in the sense which 
 hearers of common and reasonable understanding would 
 ascribe to them, even though particular individuals better 
 informed on the matter alluded to might forni a different 
 judgment on the subject.' 1 4 
 
 § 136. In the case of all oral, and of some written 
 publications, it may be possible to prove whether or not 
 the hearer or reader was acquainted with such extraneous 
 
 1 So held, Sergart v. Carter, 1 Dev. <fe Bat. 8; Snag v. Gee, 4 Coke, 16. "You 
 have killed A. ; you have poisoned him," are slanderous words, though, at the time 
 they were spoken, A. was living in a distant part of the country. (Eckhart v. Wilson, 
 10 S. & R. 44; and see Tenney v. Clement, 10 N. H. 52; Carter v. Andrews, 16 Pick. 
 1 ; Stone v. Clark, 21 Pick. 51 ; Stallings v. Newman, 26 Ala. 300.) Wilt thou murder 
 my sister as thou didst thy wife, actionable although the wife was alive. (Brown v. 
 Charlton, Keb. 359, pi. 52.) Thy father says thou hast murdered thy husband. Judg- 
 ment was arrested after verdict for plaintiff for these words, because it was not alleged 
 that the husband was dead at the time the words were spoken. (Boldroe v. Porter, 
 Yelv. 20.) Words actionable per se are not so when spoken of a transaction not 
 amounting to the crime charged if known to the hearers to be so spoken. (Parmer v. 
 Anderson, 33 Ala. 78; Hankinson v. Bilby, 2 Car. & K. 440 ; Carmichael v. Schiel, 21 
 Ind. 66; Perry v. Man, 1 Rhode Island, 263; Kennedy v. Gifford, 19 Wend. 296; 
 Williams v. Stott, 1 Cr. & M. 675; 3 Tyrw. 688; Brite v. Gill, 2 Monr. 65; and see 
 post, note to § 160. 
 
 2 Carter v. Andrews, 16 Pick. 1; Stone v. Clarke, 21 Pick. 51; and see note 1. page 
 173, ante. 
 
 3 Parke, B. Heming v. Power, 10 M. & W. 569. 
 
 4 Hankinson v. Bilby, 16 M. & W. 445; and see note to § 140, post.
 
 § 137.] CONSTRUCTION OF LANGUAGE. 
 
 circumstances, but in the majority of cases it wou- 
 impossible to make such proof. Some circumstances are 
 of such general notoriety that every person is presumed 
 to be acquainted with them, and then all language must 
 be construed in reference to them. 1 With circumstances 
 of less general notoriety the knowledge of the hearer or 
 reader is in every case a question of proof, and the burden 
 of making such proof rests upon him who claims that the 
 hearer or reader possessed such knowledge. 
 
 § 137. The construction to be put upon any language 
 spoken or written must be that which is consistent with 
 the whole of the speech or writing. Thus the language of 
 any part of a writing is to be construed with reference to 
 the entire writing, and the language of any part of an oral 
 discourse is to be construed with reference to the entire 
 discourse. Hence words which, standing alone, would be 
 actionable, may not be actionable when taken in connec- 
 tion with their context. 2 
 
 1 " It is the duty of the jury to construe plain words and clear allusions to matters 
 of universal notoriety, according to their obvious meaning and as everybody else who 
 reads must understand them. But the defendant may give evidence to show they 
 were used on the occasion in question in a different or qualified sense. If no such evi- 
 dence is given, the natural interpretation of the words and the obvious meaning to 
 every man's understanding must prevail. (Lord Mansfield, Res v. Home, 2 Cowper, 
 672.) 
 
 "You are a soldier; I saw you in your red coat doing your duty; your word is 
 not to be taken." These words, spoken of an upholsterer, held actionable, it being 
 known to be a common practice for tradesmen to protect themselves from arrest by 
 their creditors by a counterfeit listing. (Arne v. Johnson, 10 Mod. 111.) 
 
 In an action for libel for writing to a client of the plaintiff, a barrister, " He would 
 give her ill counsel and stir up a suit; he would milk her purse and fill his own large 
 pockets," per Vaughan, C. J., " Saying he will milk your purse, taken annunciatively, 
 signifies no more than milking a bull ; the phrase is not come to an idiom." (King v. 
 Lake, 2 Ventr. 18.) Mr. Parry, in his edition of Lord Campbell's Libel Act, says 
 (p. 13) it is doubtful if this decision could now be supported, and we agree with him. 
 See note 2, page 169, ante. 
 
 2 The sense is to be gathered from the whole of the words or writing. (2 Starkie 
 on Slander, 85; Cooke v. Hughes, 1 R. & M. 112; Carter v. Andrews, 16 Pick. 1; 
 Cook v. Tribune Association, 5 BL C. C. 352.) The construction which it behooves a 
 court of justice to put on a publication is to be derived as well from the expressions 
 used as from the whole scope and apparent object of the writer. (Cooper v. Greely,
 
 176 CONSTRUCTION OF LANGUAGE. [Cll. VII. 
 
 § 138. Formerly the condition in life of the person 
 spoken of materially affected the construction, and words 
 concerning " great men of the realm " were held actionable, 
 which would not have been so held when published con- 
 cerning private persons. Language defaming these " great 
 men " was called scandalum magnatum. In the United 
 States no such distinction of persons is known. 1 How far 
 the condition in life of the parties will affect the damages 
 will hereafter be considered. [§§ 391, 417.] 
 
 § 139. The sense in which the publisher . meant the 
 language cannot be material. The dicta which apparently 
 sanction such a rule will, on a comparison with their con- 
 text, be found in reality to be, not what did the defendant 
 mean, but what properly may he be taken to have meant. 
 How might the language be understood by those to whom 
 it was published. It cannot, therefore, be correct to say 
 that the lana;uao;e is to be construed in the sense in which 
 the publisher intended it to be understood. "When a 
 party has made a charge that clearly imputes a crime, he 
 cannot afterwards be permitted to say, I did not intend 
 what my words legally imply." 2 
 
 1 Denio, 358; citing Spencer v. Southwick, 11 Johns. 592; Fidler v. Delavan, 20 
 Wend. 57.) " God forbid that a man's words should, by strict and grammatical con- 
 struction, be taken by parcels, against the manifest intent of the party upon considera- 
 tion of all the words which import the true cause and occasion which manifest the 
 true sense of them." (4 Co. 18.) 
 
 A defendant should be tried by all that he has published in the same pamphlet or 
 paper. (Morehead v. Jones, 2 B. Munroe, 210.) Brittridge brought an actiun for 
 the words, "Mr. Brittridge is a perjured old knave, and that is to be proved by a 
 stake parting the lands of Martin and Wright." The judgment was arrested, on the 
 ground that the latter words explained the former as not meaning judicial perjury. 
 (4 Co. 18; Yelv. 10, 34; Mo. 600.) 
 
 1 For information as to scandalum magnatum, the reader is referred to Starkie on 
 Slander ; Ilolt on Libel. Sicundem gradurn dignitatis, <fec, was the rule of the Roman 
 law, and is the rule in Scotland and France. (Borthwick on Libel, 176, 177 n., Inst. 
 Lib. IV, tit. 4; Code Criminel, tit, 111, art. 1; Black. Com. B'k III, c. vii, s. 5; 
 Selwy's N. P. 1155; Barrington on Penal Statutes ; 3 Reeve's Hist, of the Common 
 Law.) See note to § 182. 
 
 2 Woodworth, J., McKinly v. Rob, 20 Johns. 351. Words having naturally none 
 of their own, carry that signification to the hearer that he is used to put upon them,
 
 § 140.] CONSTRUCTION OF LANGUAGE. 177 
 
 § 140. Where the language is a/mbiguous, in that case 
 the manner in which it was or might be understood by 
 those to whom it was published is material, and will con- 
 trol in determining the meaning ; but where the language 
 is unambiguous, it is to be construed in its ordinary- 
 sense, and without reference to how those to whom it 
 was published understood it, or what was intended by 
 the publisher. 1 
 
 whatever be the sense of him that uses them. (Locke, Conduct of the Understand- 
 ing, § 35.) 
 
 The question in an action for words is not what the party using them considered 
 their meaning by any secret reservation in his own mind, but what he meant to have 
 understood as their meaning by the party to whom he uttered them. (Read v. Am- 
 bridge, 6 C. & P. 308.) 
 
 " The effect of the words used, and not the meaning of the party in uttering them, is 
 the test of their being actionable or not." That is, first ascertain the meaning of the 
 words themselves, and then give them the effect any reasonable bystander would affix 
 to them. (Hankinson v.Bilby, 16 M. & W.442.) " The secret intent of the publisher is 
 immaterial." (Id.) The injury caused by slander depends on the effect of the words 
 on the hearers. (Hawks v. Patton, 18 Geo. 52.) 
 
 The speaker "is accountable for the import of the words as they will naturally 
 be understood by the hearer." (Dorland v. Patterson, 23 Wend. 424 ; citing Harri- 
 son v. Thornborough, 10 Mod. 196; Gidney v. Blake, 11 Johns. 54.) "It was not 
 enough that the defendant could point the slander in his own mind, so long as it ap- 
 pears to have been pointless in the minds of the hearers." (IJ.) It is the sense in 
 which the hearers understood the words on which the jury are to pronounce. (Dem- 
 arest v. Haring, 6 Cow. 16; Kennedy v. Gifford, 19 Wend. 296.) "Language shall 
 be construed and understood in the sense in which the writer or speaker intended it." 
 (Commonwealth v. Kneeland, 20 Pick. 206.) If the words impute a crime, it is not 
 necessary to allege an intention to charge such crime. (Galloway v. Courtney, 10 
 Rich. Law, 414.) 
 
 " Nor by the term meaning are we to understand what the defendant intended 
 to express ; for he may have designedly written that which, in its literal sense, should 
 be imperfect. But we are to understand the meaning which he intended others should 
 believe him to have — the sense in which he designed his production should be received 
 by others. (George on Libel, 36.) 
 
 1 A man is to some extent responsible for the hearing of the bystanders, if he uses 
 language which imputes crime, with an explanation; if the bystanders did not hear 
 the explanation, he is liable to an action. (Maybee v. Fisk, 42 Barb. 336 ; see, how- 
 ever, apparently contra, Shecut v. M'Dowell, 3 Brevard, 38.) But the understanding 
 of the bystanders cannot be shown to make words actionable per se, which, as alleged 
 in the declaration, are not actionable per se. (Smith v. Gafford, 33 Ala. 168.) Where 
 the charge was actionable per se, and unambiguous, and there were no circumstances 
 to qualify them, it was held error to charge the jury that unless the words were 
 understood by the hearers in a slanderous sense they must find for the defendant. 
 (Jarnigan v. Fleming, 43 Missi. 711.)
 
 178 CONSTRUCTION OF LANGUAGE. [Ch. VII. 
 
 § 141. The construction of language as actionable or 
 not actionable, is sometimes determined by the knowledge 
 or imputed knowledge of the person spoken of; thus the 
 w< >rds " that thief A. hath stolen my goods and delivered 
 them to Bacon," held not to give any right of action to 
 Bacon, it not being alleged he knew the goods were stolen. 1 
 So of the words, he received goods that were stolen and 
 will be hanged for them. 2 You have passed counterfeit 
 money. 3 So to allege that one got his sister with child, or 
 had carnal intercourse with his daughter, does not impute 
 
 " Taken by itself, and without more, the understanding of a person who hears an 
 expression is not the legal mode by which it is to be explained. If words are uttered 
 or printed, the ordinary sense of those words is to be taken to be the meaning of the 
 speaker." (Daines v. Hartley, 3 Ex. 200.) "There can be no doubt that words 
 may be explained by bystanders to import something very different from their obvi- 
 ous meaning. The bystanders may perceive that what is uttered is uttered in an 
 ironical sense, and therefore that it may mean directly the reverse of what it pro- 
 fesses to mean. Something may have previously passed which gives a peculiar char- 
 acter and meaning to some expression; and some word which ordinarily is used in 
 one sense may, from something that has gone before, be restricted and confined to a 
 particular sense, or may mean something different from that which it ordinarily and 
 usually does mean." (Id.) 
 
 " We are to understand words in the same sense as the hearers understood them." 
 (Button v. Hey ward, 8 Mod. 24.) "In a common sense, according to the vulgar 
 intendment of the bystanders." (Somers v. House, Holt, 39; ante, § 135; Hankinson 
 v. Bilby, 16 M. <fe W. 442.) Language imputing an indictable offense is actionable or 
 not, according to the sense in which it may fairly be understood by those who hear or 
 read it, and who are not acquainted with the matter to which they relate, or which 
 may render them a privileged communication. (Id.) To accept the understanding 
 of the words by the hearer or reader as their true meaning " would be to make the 
 defendant's liability depend, not on his own malicious intent aud purpose, in using 
 the language, which might be quite innocent and free from blame, but upon the mis- 
 conception or morbid imagination of the person in whose hearing they were spoken." 
 (Heard on Libel, § 268, citing Snell v. Snow, 13 Mete. 2*78; Van Vechten v. Hopkins, 
 5 Johns. 211; Gibson v. Williams, 4 Wend. 320; Allensworth v. Coleman, 5 Dana, 
 315.) The judgment of the witness is not to be substituted for the judgment of the 
 jury. (Heard on Libel, § 269.) " Words are to be taken in that sense that is most 
 natural and obvious, and in which those to whom they are spoken will be sure to 
 understand them. (Id., § 163.) 
 
 J Bacon's case, Dal. 41, pi. 21. 
 
 2 Ratcliff v. Long, Palm. 67; in Miller v. Miller, S Johns. 74: Held,th&t where the 
 offense charged was concealing stolen goods, it was not necessary to allege that the 
 plaintiff knew the goods were stolen. See notes to § 173, post. 
 
 3 Pike v. Van Wormer, 6 How. Pr. R. 171 ; Church v. Bridgman, 6 Miss. 190.
 
 § 142.] CONSTRUCTION OF LANGUAGE. 179 
 
 incest without an allegation that the plaintiff was guilty 
 of the act charged with a knowledge of the relationship. 1 
 Without an allegation of knowledge, it was held not ac- 
 tionable to charge, " He hath gotten much wealth by trad- 
 ing with pirates," 3 or, " He was confederate with Campion 
 the Jesuit," 2 or, " He poisoned Smith," 4 or, " He is a main- 
 tainer of thieves," 5 or, " He offered, or was about to offer 
 for sale unwholesome meal." 6 
 
 § 142. It is customary to concede (1) that formerly 
 courts construed language in mitiori sensu, and (2) that 
 the practice of so construing language has been aban- 
 doned. 7 These propositions require some qualification. 
 
 1 Lumpkins v. Justice, 1 Smith (Ind.) 322 ; Griggs v. Vickroy, 12 Ind. 549. 
 
 2 Crook v. Averin, Godb. 252; 2 Eulst. 216. 
 
 3 Brown v. Lisle, Cro. Eliz. 251. 
 
 4 Jacob v. Miles, Vin. Abr., Act. for Words, E. b. ; and see March v. Davidson, 9 
 Paige, 580, and post, § 144, subd. x. 
 
 8 Ball v. Bridges, Cro. Eliz. 746; and see Tabbe v. Matthew, 1 Bulst. 109. 
 
 6 Hemmenway v. "Woods, 1 Pick. 524. See note 1, page 174, ante. 
 
 7 Where words are ambiguous, so as they may be expounded in good or ill part, 
 no action lies, for they shall be expounded in the best sense. (Anon., Cro. Eliz. 672.) 
 " The law strains not to hurt but to heal." (Coote v. Gilbert, Hob. 77 PI. 100); and 
 " where words are indifferent, and are equally liable to two distinct interpretations, 
 we ought to construe them in mitiori sensu, but we will never make any exposition 
 against the plain, natural import of the words." (Pratt, C. J., Button v. Heyward, 8 
 Mod. 24; and see Naber v. Miecock, Skin. 183.) Words are not to be taken in a 
 milder sense than they have in common acceptation. (Beers v. Strong, Kirby, 12.) 
 The maxim for expounding words in mitiori sensu has for a great while been exploded. 
 (Fortescue, J., Button v. Ueywood, 8 Mod. 24; Eoberts v. Camden, 9 East, 93; and 
 see Wakley v. Healey, 7 Com. B. 591; Ogden v. Riley, 2 Green, 186; Duncan v. 
 Brown, 15 B. Monr. 186; Fallenstein v. Boothe, 13 Mo. R. 427; Demarest v. Blaring, 
 6 Cow. 76 ; Pike v. Van Wormer, 6 How. Pr. R. 99 ; Backus v. Richardson, 5 Johns. 
 476.) "The earlier English judges discouraged the action of slander by all sorts of 
 evasions." (Gibson, J., Bash v. Sommer, 20 Penn. St. R. 159; and see Harrison v. 
 Thornborough, 10 Mod. 196.) " We will not give more favor unto actions on the case 
 for words than of necessity we ought to do, where the words are not apparently scan- 
 dalous, these actions being now too frequent." (Coke, C. J., Crofts v. Brown, 3 Bulst. 
 167.) In Alsop v. Alsop (5 Hurl. <fe N. 534), the court says actions for slander are not 
 to be encouraged; and see Bennett v. Williamson, 4 Sandf. 67, where it is said: 
 "The law of libel ought to be considered and is in its spirit a benevolent and salutary 
 provision for the peace and security of the community, but it cannot redress every 
 injury sustained by a breach of morals or of good manners. We may not approve of
 
 180 CONSTRUCTION OF LANGUAGE. [Cll. VII. 
 
 Alleged defamatory matter comes "before the court for 
 construction in the form of a pleading, and then of course 
 is governed by the rules for construing pleadings, and 
 among these rules that by which the pleader is supposed 
 to have stated his case in the manner most favorable to 
 himself. 1 We are of the opinion that an examination of 
 
 the taste of publications such as is set forth in the declaration in this case. We may 
 lament the existence of a disposition to make private character too much the subject 
 of comment and abuse without having it in our power through the instrumentality of 
 the law to arrest the evil ; " and in Dollaway v. Turrell, 26 "Wend. 397, the action for 
 libel is designated as a sordid action. " Although slanders are to be suppressed, yet 
 the judges had resolved that actions for scandals should not be maintained by any 
 strained construction." (Wray, C. J., Stanhope v. Blith, 4 Co. 15.) Ch. J. Holt said 
 that, whenever words tended to take away a man's reputation, he would encourage 
 actions for them, because so doing would contribute to the preservation of the peace ; 
 and he repeated a story attributed to Justice Twisden, of a man who, failing in his 
 action for words, said, if he thought he should not have recovered damages he would 
 have cut the defendant's throat. (Baker v. Pearce, L'd Raym. 959; 6 Mod. 24; Cas. 
 temp. Holt, 654 ; and see ante, note p. 9*7.) One who couches his slander in ambigu- 
 ous terms, in the hope of blasting the reputation of his neighbor, without incurring 
 any legal responsibility, cannot claim an indulgent construction of his words. (Gibson 
 v. Wiliams, 4 Wend. 320.) 
 
 Starkie (1 Starkie on Libel, 47) refers to the following cases as specimens of the 
 doctrine of benignior sensus : " Thou art as arrant a thief as any in England, for thou 
 broken up J. S.'s chest, and taken away £40." After verdict for plaintiff held not 
 actionable. (Forster i>. Browning, Cro. Jac. 687.) "Thou art a lewd fellow; thou 
 didst set upon rne by the highway, and take my purse from me, and I will be sworn 
 to it." After judgment for the plaintiff, held on error not actionable. (Holland v. 
 Stoner, Cro. Jac. 315.) "Thou art a thievish rogue, and hast stolen bars of iron out 
 of other men's windows; " held not actionable. (Cro. Jac. 204.) "J. D. was robbed 
 of £40, and Alice Bagg (the plaintiff) and J. S. had it, and for which they will be 
 hanged ; " after judgment for plaintiff, held not actionable. (King v. Bagg, Cro. Jac. 
 331.) And so of "Thou dost lead a life in manner of a rogue; I doubt not but to see 
 thee hanged for striking Mr. Sydman's man, who was murdered." (Barrons v. Ball, 
 Cro. Jac. 331.) 
 
 1 The law will not assume in favor of a party any thing he has not averred (Cruger 
 v. Hudson River R. R. Co., 12 N. Y. 201), or that the pleading is less strong than the 
 facts warrant (id.). A pleading is to be construed in its popular sense (Woodbury v. 
 Sackrider, 2 Abb. Pr. R. 405; Munn v. Morewood, 5 Sandf. 557); according to what 
 it says, and not what the pleader intended. (Gould v. Glass, 19 Barb. 185; and see 
 Allen v. Patterson, 7 N. Y. 480; Sheddon v. Patrick, 1 Macq. H. L. Cas. 535.) The 
 court will not, in support of a pleading, infer a criminal intention where the pleader 
 has not ventured directly to aver its existence. (Bartholomew v. Bentley, 15 Ohio, 
 670.) "It is a clear principle that the language of an indictment [a pleading] must 
 be construed by the rules of pleading, and not by the common interpretation on ordi- 
 nary language, for nothing indeed differs more widely in construction than the same 
 matter when viewed by the rules of pleading and when construed by the language of
 
 § 142.] CONSTRUCTION OF LANGUAGE. 181 
 
 the decisions will disclose the fact that what are regarded 
 as constructions in mitiori sensu are usually a more or less 
 rigorous application of this rule of pleading. The words 
 admitting of two constructions, the one actionable and 
 the other not actionable, where the pleader failed to point 
 the language to the actionable meaning, courts have re- 
 fused to put the actionable meaning on the language, sup- 
 posing that if the language had such a meaning the 
 pleader would have pointed it out. The rule requiring 
 certainty in the allegations of a pleading was no doubt 
 carried to excess, 1 but we take it to have always been and 
 to be still the rule, that where a party makes a charge of 
 having been injured by language it is for him to show 
 that the words have a defamatory sense, 2 and that where 
 the language is equally as susceptible of a harmless as of 
 an injurious meaning, it is the duty of the pleader and not 
 of the court to point out the injurious meaning, and if he 
 fails to do this the court will not put upon the language 
 the injurious meaning. Although there may be no rule 
 by which courts are required to put on ambiguous lan- 
 
 ordinary life." (Per Erie, J., in Reg. v. Thompson, 16 Q. B. 832, 846 ; 4 Eng. Law & 
 Eq. R. 287, 292; and see Blickenstaff v. Perrin, 27 Ind. 527; Lukehart v. Byerley, 53 
 Penns. 418.) 
 
 1 Action for The words Home dit: Sir Th. Holt hath taken a cleaver and stricken 
 his cook upon the head, so that one side of the head fell upon one shoulder and the 
 other upon the other shoulder, et [the declaration] ne averr que le cook fuit mort, et 
 pur ceo fuit adjudge nemy bon. (Rolle R. 286.) 
 
 8 Tindal, Ch. J., Edsall v. Russell, 5 Scott's N. R. 801 ; 2 Dowl. N. S. 614; 4 M. & 
 G. 1090; 12 Law Jour. Rep. N. S. C. P. 4; note 3, p. 167, ante. " Either the words them- 
 selves must be such as can only be understood in a criminal sense, or it must be shown 
 in a colloquium in the introductory part that they have that meaning, otherwise they 
 are not actionable." (Holt v. Scholefield, 6 T. R. 691.) Words to be actionable should 
 be unequivocally so. (Harrison v. Stratton, 4 Esp. Cas. 218.) "Where there is no 
 colloquium, the plaintiff must be held to allege that the words were used in their natu- 
 ral and ordinary signification (Edgerly v. Swain, 32 N. Hamp. 478); and theywill be 
 so construed, and not in mitiori sensu. (Chaddock v. Briggs, 13 Mass. 248; Bloss v. 
 Tobey, 2 Pick 320.) Where the words have two meanings, one of them harmless, and 
 the other injurious, the innuendo may properly point out the injurious meaning. 
 (Joralemon v. Pomeroy, 2 N. Jersey, 271 ; Griffith v. Lewis, 8 Q. B. 841; 7 Law 
 Times, 177; Gosling v. Morgan, 32 Penns. 273.)
 
 182 CONSTRUCTION OF LANGUAGE. [Ch. VII. 
 
 guage its non- actionable sense, certainly there is no rule 
 by which courts are required to put on ambiguous lan- 
 guage the actionable sense. The rule is that the natural 
 meaning is to be taken, 1 and if in that view the language 
 will bear a non-actionable meaning equally as well as an 
 actionable one, courts will adopt the non-actionable con- 
 struction. Where the meaning is doubtful, the pleader 
 may by an innuendo point the language to the sense in 
 which he wishes it to be understood. Where the alleged 
 defamatory matter was that A., a prostitute, was under 
 the patronage or protection of the plaintiff, but there was 
 no innuendo pointing an injurious meaning, the language 
 was held not actionable. The court held, in effect, that it 
 would not give language the injurious sense when the 
 words may as properly receive a harmless as an offensive 
 construction. 2 " Where words in their ordinary sense do 
 not bear a defamatory construction there must be a dis- 
 tinct averment that the words bear a meaning that is ac- 
 tionable." 3 Courts will not strain to find an innocent 
 
 1 Words " are not to be taken in the more lenient or the more severe sense, but in 
 the sense which fairly belongs to them, and which they were intended to convey." 
 (IA1 Ellenborough, Rex v. Lambert, 2 Camp. N. P. Cas. 398.) See note 1, p. 167, ante. 
 The court will not in support of a pleading infer a criminal intention, when the pleader 
 has not ventured directly to aver its existence. (Bartholomew v, Bentley, 15 Ohio, 
 670.) 
 
 8 More v. Bennett, 33 How. Pr. R. 180; 48 Barb. 229; and see Dolloway v. Turroll, 
 26 Wend. 383 ; the court in the absence of an innuendo construed in a harmless sense 
 a charge of using money for shaving purposes. (Stone v. Cooper, 2 Denio, 292.) In 
 Edsall v. Paissell (5 Scott, N. R. 801 ; 2 Dowl. N, S. 614 ; 4 Man. <fe G. 1090), the words 
 were, " He made up the medicines wrong through jealous\', because I would not allow 
 him to use his own judgment." There being no innuendo that the defendant meant 
 to impute that the medicines occasioned any injury, the court refused to put that 
 meaning upon them, and held the words not actionable. And see Forbes v. King, 1 
 Dowl. 672 ; Kelly v. Partington, 5 B. & Adol. 645. The head note to Wesley v. Ben- 
 nett (5 Abb. Pr. R. 498); that "where the words alleged in a complaint for libel are 
 fairly susceptible of a construction which would render them actionable, the complaint 
 will be sustained upon demurrer, although the words may also be interpreted in a way 
 which would render them innocent," although it may be a correct statement of the 
 law, seems not to be justified by the opinion of the court. The decision was that the 
 alleged libel might " fairly be held to mean" that plaintiff was engaged in the con- 
 spiracy mentioned in the charge. 
 
 3 Blackburn, J., Cox v. Cooper, 9 Law Times, N. S. 329.
 
 § 142.] CONSTRUCTION OF LANGUAGE. 183 
 
 meaning, nor will the court put a forced construction on 
 words having an innocent meaning. The words, he was 
 guilty of most abominable conversation and exposure of 
 his person held not actionable per se. 1 Where the allega- 
 tion was that defendant, speaking of certain spoons 
 belonging to her, said, "I dare say she [the plaintiff] has 
 some of them in her pocket." There being no innuendo, 
 held not actionable as plaintiff might have the spoons in 
 her pocket innocently. 2 Publishing of plaintiff that he 
 figured prominently in the squatter riots not explained by 
 innuendo, held not actionable as it did not follow plaintiff 
 was wrongly or unlawfully engaged in said riots. 3 Where 
 the words were of persons in trade, " look out sharp to get 
 your bills met by them," the court held that prima facie 
 the words were harmless. 4 And the word " blackleg " un- 
 explained was held not actionable. 5 So, there being no 
 proper colloquium to point the meaning of the words " he 
 was taken to court on a charge of forgery " were held not 
 actionable as they might mean plaintiff was taken to 
 court as a witness. 6 Among other reasons which might 
 be urged for requiring the plaintiff to allege in what sense 
 he considers and desires the court and jury to consider 
 the language was used is this, that unless he does so he 
 deprives the defendant of the right to traverse the sense 
 which the plaintiff imputes to the language of which he 
 complains. An instance of the advantage to a defendant 
 of this right is the case where the plaintiff alleged that de- 
 fendant had applied to him the term " black sheep," and 
 that the defendant was accustomed to use that term to mean 
 a person of bad reputation, and that the term was so used 
 
 1 Torbett v. Clare, 9 Irish Law Rep. 89 ; Ward v. Reynolds, 1 Lav. & Mer. 507. 
 
 2 Martinere v. Mackay, 2 Law Reporter, 120 (London, 1822). 
 
 3 Clarke v. Fitch, to be reported, 40 or 41 Cal. 
 
 4 Daines v. Hartley, 3 Ex. 200. 
 
 6 Earnett v. Allen, 1 Fos. <fe F. 1»5; 3 Hurl. & N. 376. 
 6 Harrison v. King, 7 Taunt. 431 ; affirming 4 Trice, 46.
 
 184 CONSTRUCTION OF LANGUAGE. [Ch. VII. 
 
 on the occasion of which the plaintiff complained. The 
 defendant pleaded that he had not so used the term on the 
 occasion in question, and upon demurrer the plea was 
 sustained. 1 
 
 § 143. Where language may be taken in a double 
 sense, the court, after a verdict, will usually construe it in 
 that sense which will support the verdict. 2 If the lan- 
 
 1 McGregor v. Gregory, 11 M. & W. 28*7; affirming Clarkson v. Lawson, 6 Bing. 
 587. 
 
 s la Burgess v. Boucher, 8 Mod. 240, it is said that after verdict the court will 
 always construe the words to support the verdict, and the dictum is repeated by Star- 
 He without qualification. (2 Starkie on Slander, 108.) But such a rule as was 
 pointed out by Best, C. J., in Goldstein v. Foss (6 B. & Cr. 154; 9D.4E. 197: 4 
 Bing. 489: Moo. & P. 402; 2Y.it Jer. 146), would practically deprive a party of the 
 right to move in arrest of judgment; and see Forbes v. King, 1 Dowl. Pr. Cas. 672. 
 In Ceely v. Hoskins (Cro. Car. 509), the words were, " Thou art forsworn in a court of 
 record, and that I will prove." It was contended after verdict for plaintiff that the 
 action would not lie, because it was not said in what court of record he was forsworn, 
 nor that he was forsworn in giving any evidence to a jury ; that it might be intended 
 only that he was forsworn, not judicially, but in ordinary discourse in some court of 
 record: Held, the words must be taken as an accusation of perjury ; the court adds ; to 
 say such an one is a murderer without saying whom he murdered, or when, an action 
 lies, and it shall not be intended that he was a murtherer of hares, unless such foreign 
 intendment be shown or discovered in pleading. In Baal v. Baggerly (Cro. Car. 326), 
 the words were, " Thou hast forged a privy seal and a commission ! why dost thou 
 not break open thy commission?" after verdict for plaintiff it was contended that tlie 
 words were not actionable, but by the court being found guilty, the words are to be 
 intended according to the vulgar interpretation, that the king's privy seal was meant, 
 the counterfeiting whereof is treason. In Somers v. House (Holt, 39), the words were, 
 " You are a rogue, and broke open a house at Oxford ; and your grandfather was 
 forced to bring over £30 to mend the breach ; " after verdict for plaintiff, it was urged 
 in arrest of judgme :t that the word rogue was not actionable, that breaking open a 
 house was but a trespass, and mending the breach might be repairing ; but the court 
 held the contrary, for, taking all the words together, one who heard them could not 
 but understand a felonious breaking; the court would take the words in a common 
 sense according to the vulgar intendment of the bystanders. In Baker v. Pierce (L'd 
 Raym. 959; 6 Mod. 234; Holt, 654), the words were, " Baker stole my boxwood, and 
 I will prove it." After verdict for plaintiff, it was urged in arrest of judgment, that 
 the words mean wood growing, of which only a trespass could be committed. That 
 to say you are a thief, and have stolen my timber, or my apples, or my hops, is not 
 actionable, for it imports only a trespass; but the court ordered judgment for the 
 plaintiff, and denied the authority of the case of Mason v. Thompson (Ilutt. 38), in 
 which the words "I charge thee with felony in taking forth from J. D.'s pocket, and 
 
 1 will prove it," were held not actionable. In 3 Salk. 325 ; 2 Vent. 172. 2 Lev. 51 ; 
 
 2 Sir T. Jo. 235, the words were "he is a clipper and coiner;" after verdict for
 
 § 143.] CONSTRUCTION OF LANGUAGE. 185 
 
 guage admits of a harmless as well as an injurious mean- 
 ing, which is the meaning to be attached to it will be 
 resolved by the verdict. 1 It is not sufficient to show by 
 argument that the language will admit of some other 
 meaning than that which obviously the jury have at- 
 tached to it, 2 and therefore, after verdict for plaintiff, lan- 
 guage which admits of an innocent and an injurious 
 meaning will be construed to have its injurious meaning. 3 
 After verdict all averments on the side of the successful 
 party which were involved in the issue tried, will be 
 taken to have been duly proved unless the contrary ap- 
 pear upon the record, 4 and thus after verdict for plaintiff, 
 
 plaintiff, it was moved in arrest of judgment that it was not a charge of clipping and 
 coining money, but held a clipping and coining of money must be intended. Where 
 the words were spoken by a married woman, charging a theft of her goods, to support 
 a verdict it was held that she meant a theft of her goods before marriage. (Powell v. 
 Plunkett, Cro. Car. 52.) 
 
 1 Ford v. Primrose, 5 D. & Ry. 287 ; Giddins v. Merk, 4 Geo. 364 ; O'Conner v. 
 Lloyd, 2 Hudson & Br. 626; Chapman v. Smith, 13 Johns. 78; Sherwood v. Chase, 
 11 Wend. 38. 
 
 2 Woolnoth v. Meadows, 5 East, 463 : Roberts v. Camden, 9 East, 93. 
 
 3 " Words or signs will, after a verdict for the plaintiff, be considered by the courts 
 to have been used in their worst sense." (1 Starkie on Slander, 60; repeated, Heard 
 on Libel, § 173, citing Southee v. Denny, 1 Ex. 195 ; Sloman v. Dutton, 10 Bing. 402 ; 
 4 M. & Sc. 174 ; Wakley v. Healey, 7 Com. B. 591 ; Tomlinson v. Brittlebank, 4 B. 
 & Adol. 630; 1 Nev. & M. 455; Francis v. Roose, 3 M. <fc W. 191 ; Hughes v. Reese, 
 
 4 M. & W. 204; Rowcliffe v. Edmonds, 7 M. & W. 12; Digby v. Thompson, 4 B. & 
 Adol. 821; 1 Nev. & M. 485; Daines v. Hartley, 3 Ex. 200; Read v. Ambridge, 6 C. 
 & P. 308; Shipley v. Todhunter, 7 C. & P. 680; Chaddock v. Briggs, 13 Mass. 248; 
 Goodrich v. Davis, 11 Mete. 473 ; Brown v. Lamberton, 2 Binney, 35 ; Bloom v. Bloom, 
 
 5 Serg. & R. 391 ; Cornelius v. Van Slyck, 21 Wend. 70 ; Butterfield v. Buffum, 9 N. 
 Hamp. 156; Hamilton v. Smith, 2 Dev. & B. 274; Hancock v. Stephens, 11 Hump. 
 509; Goodrich v. Woolcott, 3 Cow. 231; Walton v. Singleton, 7 Serg. & R. 451; and 
 see Beers v. Strong, Kirby, 12.) 
 
 One of the reports commenced, " Wilful and corrupt perjury ; " held that, after 
 verdict for the defendant, this must be taken as a description of the nature of the 
 charge, not as an imputation, by the publisher, of the perjury in fact. (Lewis v. Levy, 
 1 Ellis, B. & E. 537.) 
 
 Publishinj; in writing that the plaintiff had realized the fable of the frozen snake; 
 after verdict for plaintiff, the court refused to arrest the judgment, as the jury might 
 have understood the words " frozen snake" to impute a charge of ingratitude to friends, 
 although not so explained by innuendo. (Hoare v. Silverlock, 12 Ad. & Ell. N. S. 
 624.) 
 
 4 Gates v. Bowker, 18 Verm. (3 Washb.), 23; Cass v. Anderson, 33 Verm. (4 Shaw) 
 
 13
 
 186 CONSTRUCTION OF LANGUAGE. [CL VII. 
 
 if the language published may in its ordinary acceptation 
 and without the aid of extrinsic circumstances be reasona- 
 bly understood as having an actionable meaning, judgment 
 will not be arrested upon the ground that the inducement 
 and innuendoes do not sufficiently apply the language to 
 the plaintiff, nor because the innuendoes in so far as they 
 apply the language to the plaintiff are unwarranted. 1 If 
 the innuendoes are unwarranted in any other respect it is 
 a ground for arresting the judgment, of which hereafter. 3 
 
 § 144. We will here give some few additional illustra- 
 tions of the manner in which the courts have construed 
 certain language ; many more illustrations will be found 
 in the next succeeding chapter : 
 
 a. Afliiltfrij. — A charge of violating the seventh com- 
 
 mandment held not to import a charge of adultery. 3 
 
 b. And — For. — A distinction has been taken between 
 
 saying, Thou art a thief, for thou hast stolen such a 
 thing, as a tree, which could not be felony, and the 
 saying, Thou art a thief, and hast stolen such a thing, 
 since in the former case the subsequent words show 
 the reason of calling the plaintiff a thief, and that no 
 felonious imputation was meant ; but in the latter, the 
 action lies for calling him a thief, and the addition, 
 Thou hast stolen, is another distinct sentence by itself, 
 and not the reason of the former speech, nor any 
 diminution thereof. 4 To say one has been in jail for 
 
 182; Hoyle v. Young, 1 Wash. 150; Ramsey v. Elms, 3 Jur. 1189. But nothing 
 more will be presumed after verdict than is necessary to support the allegations. 
 (Sweetapple v. Jesse, 2 Nev. <fc M. 36 ; 5 B. & Adol. 27.) Where the words taken by 
 themselves do not necessarily import a charge of crime, yet where it is alleged in the 
 innuendo that the defendant meant by the words that the act was maliciously done, 
 they will be taken, after verdict, to have been intended to import such a charge. 
 (Tuttle v. Bishop, 30 Conn. 80; and see Kennedy v. Gifford, 19 Wend. 256; Beers v. 
 Strong, Kirby, 12; Ramsey v. Elms, 3 Jurist, 1189.) 
 
 1 Wakley v. Healey, 18 Law Jour. C. P. 241 ; 7 C. B. 591. 
 
 2 Note to § 362, post. 
 
 3 Farnsworth v. Storrs, 5 Cush. 412. 
 
 "Cro. Jac. 114; Bull. N. P. 5 ; Hob. 77, 106; Cro. Eliz. 857; Browl. 2, Godb.
 
 § 144.] CONSTRUCTION OF LANGUAGE. 187 
 
 stealing, in some cases held not to imply that the 
 party stole, and in others that it did. In the latter 
 class of cases, it was said he could not be imprisoned 
 for stealing if he did not steal. 1 
 c. Arson. — The words " Thou set fire to those buildings, 
 and thou wilt never be easy till thou hast told of it," 
 do not impute arson. 2 So of the. words, " he fired 
 his house ; " 3 he burnt my barn ; 4 he set the store on 
 fire, and none but him ; 5 T. burned the mill himself; 6 
 but the words, He set fire to and burnt my factory, 
 were construed to mean a willful burning ; 7 and the 
 words, " Public ojpinion says you was the author of it 
 (firing a stable), and what public opinion says I be- 
 lieve to be true," held to amount to a charge of 
 arson ; 8 and so of the words, " I have every reason to 
 believe he burnt the barn, and I believe he burnt the 
 barn." 9 " You set your house on fire, you are a bad 
 character," thereby meaning that plaintiff had been 
 guilty of willfully setting his house on fire, and was 
 a person of bad character, and had subjected himself 
 to the penalties of the law for setting his house on 
 
 241 ; Hard. 7 ; All. 31 ; Sty. 66 ; 1 Starkie on Slander, 99. This distinction was re- 
 ferred to and its correctness questioned by Holt, Ch. J., Baker v. Pierce, 6 Mod. 23, 
 where it is said and and for have the same meaning; and see Lewis v. Acton, Yelv. 
 34. 
 
 a Vin. Abr., Act. for Words, P. «. 2. 
 
 2 Rigby v. Heron, 1 Jur. 558. 
 
 3 Anon., 11 Mod. 220. 
 
 4 Barham v. Nethersoll, Yelv. 21. 
 
 5 McNab v. McGrath, 5 Up. Can. Q. B. Rep. 0. S. 516. 
 c Tibbetts v. Gooding, 9 Gray (Mass.), 254. 
 
 7 Tuttle if. Bishop, 30 Conn. 80. 
 
 "Gage v. Shelton, 3 Rich. 242. It is the general opinion of the people in J. 's 
 (plaintiffs) neighborhood that he burnt C.'s gin-house, held actionable. (Waters v. 
 Jones, 3 Port. 442.) 
 
 9 Logan v. Steele, 1 Bibb, 593 ; I believe A. (plaintiff) burnt the camp-ground, held 
 actionable. (Giddens v. Mirk, 4 Geo. 364.) My watch was stolen in Polly Miller's 
 bar ; I have reason to believe that Tina M. (plaintiff) took it, and Polly Miller, her 
 mother, concealed it, actionable. (Miller v. Miller, 8 Johns. 60.)
 
 188 CONSTRUCTION OF LANGUAGE. [Ch. VIE. 
 
 fire, there being no colloquium that the words were 
 concerning a house insured by the plaintiff against 
 fire, nor of a house situated in or contiguous to a 
 populous neighborhood, held on motion in arrest of 
 judgment after a verdict for plaintiff, that the words 
 were not actionable. 1 
 
 d. Baiudy House. — Your house is no better than a bawdy- 
 
 house, is equivalent to charging that the party kept a 
 bawdy-house ; 2 but public-house, or house of ill-fame, 
 cannot be so construed. 3 Whore-house is equivalent 
 to bawdy-house, or house of ill-fame. 4 
 
 e. Bigamy. — The words "he was married to a woman 
 
 (naming her), and kept her till he got sick of her, 
 and then sent her away, having all this time two 
 wives," amount to a charge of bigamy. 5 
 
 f. Blackleg. — The term blackleg does not necessarily mean 
 a cheating gambler. 6 
 
 g. Clipper. — Where the words were, Thou art a clipper, 
 and shall be hanged for it, or, Thou art a clipper, and 
 thy neck shall pay for it, — it was held that the word 
 clipper, taken in connection with the words which 
 followed it, meant a clipping of money — a felony. 7 
 
 li. Conspiracy. — A libel which was alleged to be concern- 
 ing a false charge of felony, made through feelings of 
 religious bigotry, by the plaintiff against one D. S., 
 went on to allege that plaintiff was aided in making 
 
 1 Jackson v. Greer, 1 Law Reporter, 5. (London, 1821.) 
 
 2 Huckle v. Reynolds, V C. B. (N. S.) 114. 
 
 3 Dodge v. Lacey, 2 Carter (Ind.) 212. House of ill-fame means the house is one 
 of bad reputation, not that it is a bawdy-house, unless there is an inducement that 
 the defendant was in the habit of using the words " house of ill-fame," to convey the 
 idea of " bawdy-house." (Id.) 
 
 4 Wright v. Paige, 36 Barb. 438 ; affd Co't of Appeals, 3 Trans. App. 134. 
 6 Parker v. Header, 32 Verm. (3 Shaw) 300. 
 
 6 Barnett v. Allen, 3 Hurl. & N. 376; 1 Fos. & F. 125. 
 
 7 Walter v. Beaver, 3 Lev. 166 ; Cro. Jac. 255, 276; 1 Lev. 155.
 
 § 144.] CONSTRUCTION OF LANGUAGE. 189 
 
 said charge by one C. R., who were stated to " have 
 been for some time back employing every means to 
 win the confidence of this young gentleman, their in- 
 tended victim (meaning thereby that plaintiff and 
 said C. R. had been contriving some plan to assail the 
 character of said D. S.), as taking him on country 
 visits, and inviting him to the continent, with the 
 hope, it is alleged, of getting him altogether to them- 
 selves, and destroying his prospects the more easily, 
 by some foul charge, which he might not find means 
 of contradicting, there being no one else of the com- 
 pany. They had met with a direct refusal, it seems, 
 to their invitation to the continent, and therefore, 
 rather prematurely, opened their present plot (mean- 
 ing said charge of felony). Affidavits are, we under- 
 stand, shortly to be laid before the law officers of the 
 Crown, charging the above facts, together with cer- 
 tain conversations between the pair of Romanists, 
 who have trained this ingenious manoeuvre (meaning 
 the charge of felony aforesaid)." Held that the lan- 
 guage did not amount to a charge of conspiracy. 1 
 
 i. Convicted Felon. — Plaintiff having been convicted of 
 selling liquor in violation of law, was termed in a 
 printed circular a " convicted felon / " held that if these 
 terms, taken in connection with the context and the 
 evidence, were understood to mean only an offender 
 against the license law, they were no cause of action. 2 
 
 ;'. Embracery. — Saying that A., on a certain trial, handed 
 papers to one of the jury, and that he ran away, or 
 the judge would have put him in prison for it, — or 
 that he handed papers to the jury to influence or 
 bribe them, — imputes embracery, and is actionable 
 per se. 8 
 
 1 0'Connell>. Mansfield, 9 Irish Law R. 179. 
 
 2 Perry v. Mann, 1 Rhode Island, 263. 
 
 3 Gibbs v. Dewey, 5 Cow. 503.
 
 190 CONSTRUCTION OF LANGUAGE. [Gil. VII. 
 
 Jc. Forgery. — The term forgery does not necessarily mean 
 a felonious forgery, 1 as to say one forged words and 
 sentiments for Silas Wright; 2 and to deny having 
 signed a note, or authorized his name being in- 
 dorsed, does not import a charge of forgery; 3 nor 
 does a charge, if yon have any letters from them, you 
 forged them ; 4 or, I never put my name on the back 
 of the note, but he must have done it. 5 A charge of 
 altering books may impute forgery. 6 Exhibiting a 
 note and saying, " Do you think it is Gr.'s hand- 
 writing," may import a charge of forgery ; 7 and so 
 the words, " He altered the note to get better security, 
 to bind me to pay it. 8 The words, I would give five 
 dollars if I could write as well as that, — I never 
 signed the note, 9 do not necessarily impute forgeiy. 
 But a letter charging plaintiff with having subscribed 
 defendant's name to a receipt without authority, and 
 to defraud him out of the money, and adding, It is 
 not my purpose to call hard names — the statute fixes 
 . the name and punishment, imputes forgery. 1 " 
 
 I. Fornication. — To allege that a woman is not a decent 
 woman, 11 or a bad character, a loose character, 1 ' 2 or has 
 raised a family of children to a negro, does not 
 amount to a charge of fornication ; 13 but to say of an 
 unmarried woman, she had a child and buried it in 
 
 1 Alexander v. Alexander, 9 Wend. 141. See § 167, post. 
 
 2 Cramer v. Noonan, 4 Wis. 231. 
 
 8 Andrews v. Woodmansee, 15 Wend. 232. 
 
 4 Mills v. Taylor, 3 Bibb, 469. 
 
 6 Atkinson v. Scamrnon, 2 Fost. 40. 
 
 6 Gay v. Homer, 13 Pick. 535. 
 
 7 Gorham v. Ives, 2 Wend. 534. 
 
 8 Harmon v. Carrington, 8 Wend. 488. 
 
 9 Andrews v. Woodmansee, 15 Wend. 232. 
 
 10 Snyder v. Andrews, 6 Barb. 43. 
 
 11 Dodge v. Lacey, 2 Carter (lnd.), 212. 
 
 12 Vanderbp v. Roe, 25 Penn. St. Rep. (11 Harris), 82. 
 
 13 Patterson v. Edwards, 2 Gilman, 720.
 
 § 144.] CONSTRUCTION OF LANGUAGE. 191 
 
 the garden, imputes fornication. 1 To say " Malvina 
 (plaintiff) has been to swear a young one," fairly con- 
 veys the idea that the plaintiff had been guilty of 
 fornication. 2 So do, with proper innuendoes, the 
 words " A. caught them (plaintiff and B.) together in 
 the packing-room." 3 " There is no offense which can 
 be conveyed in so many multiplied forms and figures 
 as that of incontinence. The charge is seldom made, 
 even by the most vulgar and obscene in broad and 
 coarse language." 4 
 
 m. Kill — Killed — Killing. — The words kill, killed, and 
 killing, unexplained, have a felonious signification. 5 
 The words, " I think the business ought to have the 
 most rigid inquiry, for he murdered his first wife, 
 that is, he administered improperly medicines to her 
 for a certain complaint, which was the cause of her 
 death," after verdict for plaintiff, held actionable as 
 imputing a charge of manslaughter. 6 
 
 n. Knave. — Imports dishonesty. 7 
 
 o. Known. — Stating plaintiff is about to commence an 
 action, but that he will not bring it to trial in a par- 
 ticular county because he is known there, amounts to 
 a charge that the plaintiff is in bad repute in that 
 county. 8 
 
 1 Worth v. Butler, 7 Blackf. 251. See § 172, post. Scandalcms and familiar con- 
 verse with a woman can only mean illegal connection. (Patterson v. Patterson, 15 
 Law Times, 539.) 
 
 2 Patterson v. Wilkinson, 55 Maine, 42. 
 
 3 Evans v. Tibbins, 2 Phila. 210. 
 
 4 Duncan J. Walton v. Singleton, 7 S. & ft. 457. 
 
 5 Carroll v. White, 33 Barb. 620; Button v. Hayward, 8 Mod. 24; Cooper v. 
 Smith, Cro. Jac. 423; Hays v. Hays, 1 Hump. (Tenn.) 402; Taylor v. Casey, Minor 
 (Ala.), 258 ; Ecart if. Wilson, 10 Ser. & R. 44 ; Johnson v. Robertson, 4 Porter, 486; 
 Chandler v. Holloway, id. 18; Edsall v. Russell, 5 Scott, N. R. 801; 2 Dowl. N. S. 
 614; 4 Man. & G. 1090. 
 
 6 Ford v. Primrose, 5 Dowl. & R. 287. See § L68, post 
 ' Harding v. Brooks, 5 Pick. 244. See § 173, post, 
 
 9 Cooper v. Greely, 1 Denio, 347.
 
 192 CONSTRUCTION OF LANGUAGE. [Ch. VIL 
 
 p. Lcvrceny. — The words, A man that would do that would 
 steal, do not impute a larcency ; 1 but to say one was 
 whipped for stealing hogs, does. 2 You will steal, im- 
 putes a charge of larceny. 3 The words " he is mighty 
 smart after night," and " put him in the dark, and he 
 would get it all," spoken with reference to a dispute 
 which existed "between plaintiff and defendant, rela- 
 tive to the division of a certain tan-yard ; held not to 
 impute the crime of larceny, and not actionable. 4 I 
 have reason to suppose that many of the flowers of 
 which I have been robbed are growing on your 
 premises, held to amount to a charge of larceny. 5 The 
 words, " my table-cloths are gone, and you know 
 where they are gone. If you will bring them back, I 
 will say nothing about it. My husband has gone 
 down town to get a warrant to search your house 
 and imprison you," impute a crime. 6 
 
 q. Liar. — The words, " this is not the first time the idea 
 of falsehood and B. (plaintiff) have been associated 
 in the minds of many honest men," import that B. 
 is a liar. 7 
 
 t. Made a/way with. — A charge of making away with does 
 not amount to a charge of larceny. 8 
 
 s. Murder. — To say one is guilty of the death of another 
 imports a charge of murder. The word guilty im- 
 
 1 Stees v. Kemble, 27 Penns. 112; and see Stolen, p. 195, post. 
 
 2 Holly v. Burgess, 9 Ala. 728. 
 
 3 Cornelius v. Van Slyck, 21 Wend. 70. 
 
 4 Kirksey v. Fike, 29 Ala. 206. 
 
 6 "Williams ;•. Gardiner, 1 M. & W. 245 ; and see note 2, p. 174, ante. 
 
 6 Hess v. Jockley, 25 Iowa, 9. 
 
 7 Brooks v. Bemiss, 8 Johns. 455. 
 
 h The words, " Uncle Daniel must settle for some of my logs he has made away 
 
 with," do not of themselves amount to a charge of larceny. (Brown v. Brown, 2 
 
 Shep. 317.) A charge of carrying away corn does not impute felony, but trespas s 
 
 (Stitzell v. Reynolds, 59 Penns. 488.) Go home and steal more potatoes from Peggy's 
 
 field, held actionable. (Hunter v. Hunter, 25 Up. Can. Q. B. 145.)
 
 § 144.] CONSTRUCTION OF LANGUAGE. 193 
 
 plies a malicious intent, and can be applied only to 
 something which is universally allowed to be a crime. 
 But to say one was the cause of another's death does 
 not import a crime, for a physician may be the cause 
 of a man's death, and very innocently. 1 
 
 t Packing. — The charge of " packing a jury " imports the 
 corrupt selection of a jury. 2 
 
 u. Perjury. — To publish a direct and positive contradic- 
 tion of what a witness, at a certain trial, had sworn 
 that A. had said ; Jield, not to amount to a charge of 
 perjury. 3 Nor do the words, Thou wert detected of 
 perjury, imply being guilty of perjury. 4 Words 
 charging a grand juror with having " forsworn him- 
 self by neglecting or refusing to present an offense 
 within his knowledge," do not amount to a charge of 
 perjury, or any indictable offense. 5 To say one is 
 forsworn, was indicted for it, and compounded for it, 
 imputes perjury; for the alleged compounding is 
 equivalent to a confession of the indictment being 
 true. 6 And to say, Thou art forsworn, and I will 
 set thee on the pillory, or I will have his ears cropt, 
 imply perjury. 7 Loss of life was occasioned by the 
 collision of two steamboats. An inquest was after- 
 wards held, and a person named Granger, who was 
 
 'Peake v. Oldham, Cowp. 275; Miller v. Buckdon, 2 Bulst. 10. See § 168,. 
 post. 
 
 2 Mix v. Woodward, 12 Conn. 262. 
 
 3 Steele v. Sonthwick, 9 Johns. 214. See post in note to § 171 ; Perselly v. Bacon, 
 20 Miss. 330; Kern v. Towsley, 51 Barb. 385. 
 
 * Vin. Abr., Act. for Words, P. a. 21. The words, Thou didst take a false oath be- 
 fore Justice Scawen, may mean not a justice of the peace named Scawen, but one 
 named Justice Scawen. (Garnett v. Derry, 3 Lev. 166), note to g 177, post; and 
 Call v. Foresman, 5 Watts, 331 in § 321, post. 
 
 6 McAnnally v. Williams, 3 Sneed, 26. 
 c Gilberd v. Rodd, 3 Bulst. 304. 
 
 7 Williams v. Bickerton, Het. 63 ; Vin. Abr., Act. for Words, F. a. 11. "I could 
 prove J. S. perjured, if I would" implies that J. S. committed perjury. (/</.)
 
 194 construction of language. [Ch. VII. 
 
 on board of one of the steamboats at the time of the 
 accident, gave his evidence. The defendant, in giv- 
 ing an account of the accident and inquest, stated — 
 " Had requisite means been employed, the lives of 
 the two children might have been saved, in spite of 
 the story of Mr. Granger, who swore through thick 
 and thin, and who, although asleep at the moment of 
 the accident, had yet sufficient time to dress himself 
 and assist his wife : " held, that the lano-uas-e did not 
 charge Granger with perjury. 1 The following was 
 published by A. : " Charge 4. Refusing to correct 
 G. C. in his statement as a witness before Esq. B., 
 when I believe he, J. C, knew his, G. C.'s statement, 
 was not true." Held, that this writing, when shown 
 by proper innuendoes to have been applied by A. to 
 the testimony of G. C, on the trial of a cause, im- 
 puted perjury to G. C, and was actionable. 2 
 
 v. Pilfering. — The term pilfering imports a crime. 3 
 
 w. Plundered. — The term plundered does not import a 
 felonious taking. 4 
 
 x. Poison. — Saying of a surgeon that he did poison the 
 wound of his patient, may mean that he poisoned the 
 wound to cure it. But if it be charged that he 
 poisoned the wound to get money, that is different. 5 
 
 y. Prostitute. — She is a bad girl, and unworthy to be em- 
 ployed, will not support an innuendo, a prostitute. 6 
 " If I am not misinformed, she is a prostitute," is the 
 same as saying she is a prostitute. 7 
 
 .z. Pobbed — Robbing. — The 'prima facie meaning of rob- 
 
 1 Reg. v. Marshall, 2 Jur. 254; and see note to § 137, ante. 
 
 2 Coombs v. Rose, 8 Blackf. 155. 
 
 3 Beckett v. Sterrett, 4 Blackf. 499 ; contra, see Carter v. Andrews, 16 Pick. 1. 
 
 4 Carter v. Andrews, 16 Pick. 1. 
 
 5 Vin. Abr., Act. for Words, R. a. 10, 40. 
 c Snell v. Snow, 13 Met. 278. 
 
 "* Treat v. Browning, 4 Conn. 408.
 
 § 144.] CONSTRUCTION OF LANGUAGE. 195 
 
 bed is to impute a crime, an unlawful taking ; 1 but 
 the words, You have robbed me df one shilling tan 
 money, amount only to a charge of embezzlement. 2 
 Robbing: is a word of an uncertain signification. 3 The 
 words, " He robbed the treasury, and bought a farm 
 with it," were held not to impute felony. 4 
 
 a. a. Shaving Pwrposes. — Shaving, as applied to promis- 
 sory notes, means buying notes at a discount, beyond 
 the debt and interest, which is neither dishonorable 
 nor discreditable. 5 
 
 h. h. Steal — Stolen. — The natural and obvious meaning of 
 steal is a felonious taking or larceny. 6 The term 
 stolen imputes a larceny. 7 Stealing unexplained, ex vi 
 termini, imports felony. 8 Stealing and feloniously 
 stealing are not the same ; in common parlance, steal- 
 ing does not always import felony. 9 If the article al- 
 leged to have been stolen is of the kind of which 
 felony can be committed, the term steal or stolen im- 
 putes a larceny, otherwise if the article alleged to 
 have been stolen could not be the subject of a felony. 10 
 Thus it has been held not actionable to say, You 
 stole my wood, 11 or my apples ; 12 or a load of hop- 
 
 1 Tomlinsou v. Brittlebank, 1 Nev. & M. 455; Jones v. Chapman, 5 Blackf. 88; 
 Heard on Libel, § 38. 
 
 2 Day v. Robinson, 1 Ad. & El. 554. 
 
 3 Palmer v. Edwards, Rep. of Cas. of Prac. in C. P. 160. 
 
 4 Allen v. Hillman, 12 Pick. 101. The words "You did rob the town of St. Cloud ; 
 you are a public robber," are not actionable, for the crime of robbery cannot be com- 
 mitted against a town. (McCarty v. Barrett, 12 Minn. 494.) See § 170, post. • 
 
 6 Stone v. Cooper, 2 Denio, 293. 
 
 8 Dunnell v. Fiske, 11 Mete. 551. See § 170, post. 
 
 7 Burbank v. Horn, 39 Maine (4 Heath), 233 ; Coleman y. Playsted, 36 Barb. 26 ; 
 contra, Dunnell v. Fiske, 11 Mete. 551; St. Martin v. Desnoyer, 1 Min. 156. 
 
 8 Powell, J., Baker v. Pierce, 6 Mod. 23. 
 
 9 Holt, Ch. J., Baker v. Pierce, 6. Mod. 23. 
 
 10 Cock v. Weatherby, 5 Sme. & M. 333. See note p. 173, ante. 
 
 11 Meaning standing timber. Robins v. Hildredon, Cro. Jac. 65 ; Idol v. Jones, 2 
 Dev. 162; Heard on Libel, 37, note 3; contra, Phillips v. Barber, 7 Wend. 489. 
 
 ,2 Clark v. Gilbert, Hob. 331.
 
 196 construction of language. [Cli. VII. 
 
 poles; 1 or a tree; 2 or a dog; 3 or a bee-tree; 4 or 
 wild bees ; 5 o»r a sable caught in a trap ; 6 or marl, 
 earth, or furze ; T because felony cannot be committed 
 of such thing's. A charge of having; stolen boards, 8 
 or " my box- wood," 9 held to impute a larceny ; and a 
 charge of stealing the property of A., deceased, im- 
 ports a larceny from the personal representatives of 
 A. 10 He will steal, and I can prove it, is equivalent 
 to saying he had stolen ; n and to allege, I will ven- 
 ture anything he has stolen the book, is equivalent 
 to a charge of stealing the book. 12 To say, You are 
 as bad as your wife when she stole my cushion, is 
 not a charge of stealing, without an averment that 
 the wife had committed felony. 18 
 
 c. c. Suffer. — To suffer, held to import suffer death, as 
 
 where the defendant said, " I will make you suffer 
 for a witch, 1 ' it was held to mean suffer death for a 
 witch. 14 
 
 d. d. Taken. — Words which charge the taking of the per- 
 
 sonal property of another, may be slanderous or not, 
 
 1 Guilderslew v. Ward, Cm Eliz. 225; Dexter v. Taber, 12 Johns. 239. 
 
 2 Cook v. Gilbert, Hob. 77. See Bryan v. Wikes, Cro. Car. 572. 
 
 3 Findlay v. Bear, 8 Serg. <fc R. 571. 
 
 4 Cock v. Weatherby, 5 Sme. & M. 333. 
 
 5 Wallis v. Mease, 3 Binn. 546 ; Gillet v. Mason, 7 Johns. 16. 
 
 6 Norton v. Ladd, 5 N. Hamp. 203. 
 
 7 Ogden v, Riley, 2 Green, 186; Clarke v. Gilbert, Hob. 331. 
 b Burbank v. Horn, 39 Maine (4 Heath), 233. 
 
 9 After verdict for plaintiff. Baker v. Pierce, 6 Mod. 23. 
 
 10 Bash v. Sotnmer, 20 Penn. St. R. 159. 
 
 11 Cornelius v. Van Slyck, 21 Wend. 70. 
 13 Nye v. Otis, 8 Mass. 122. 
 
 18 Upton v. Pinfold, Comyn's R. 268. The words, " I expect Murphy -will have 
 plenty of bacon to sell, as he has killed some of my hogs," after verdict for plaintiff, 
 were held to amount to a charge of hog-stealing. (Murphy v. Antley, 2 Boston 
 Monthly Law Rep. N. S. 520.) R. S. was attainted of felony, and defendant said, 
 You (plaintiff) have done as ill and worse ; it will not cost you as much to be quit as 
 it cost him. Court doubted if actionable. (Smith's Case, Cro. Eliz. 31.) 
 
 34 Stephens v. Corben, 3 Lev. 394.
 
 § 144.] CONSTRUCTION OF LANGUAGE. 197 
 
 according to circumstances. 1 Ordinarily, taken is not 
 equivalent to stolen ; 2 but where the words were, I 
 have lost a calf-skin, * * Bornnian must have 
 taken it, they were held to impute a larceny. 3 
 
 e. e. Thief. — To call one thief is not actionable, unless it 
 
 is intended to impute to him a felony. 4 Unexplained, 
 it will be construed in a felonious sense, 5 but subject 
 to explanation by the context. 6 To say of one, he is 
 a thieving person, 7 or " he gets his living by thieving," 8 
 is the same as saying he is a thief. 
 
 f. f. Threatening Letters. — A charge of sending threaten- 
 
 ing letters, and that the plaintiff had been indicted 
 therefor, must mean that they were unlawful threat- 
 ening letters. 9 
 
 1 Watson v. Nicholas, 6 Hump. 1*74. 
 
 a Robertson v. Lea, 1 Stew. 141 ; Coleman v. Playstead, 36 Barb. 26. The 
 words, Thou hast picked my pocket, and taken away ten shillings, held not actionable, 
 although the charge of picking the pocket without more would be. (Humfries' Case, 
 cited Godb. 287.) Taking away implies a lawful taking. (Foster v. Browning, Cro. 
 Jac. 688, pi. 2; Wilks' Case, Vin. Abr., Act. for Words, R. a. 3); see Dottarer v. 
 Bushey, 16 Penn. 204. 
 
 8 Borninan v. Boyer, 3 Binn. 515. He is a thief, for he hath stolen corn from Mr. 
 Kay, held actionable (Smith v. Ward, Cro. Jac. 673), for corn threshed, and not in 
 the sheaf, shall be intended ; but if the words had been hath taken away, instead of 
 hath stolen, no action would lie — a lawful taking would be intended. (Foster v. 
 Browning, Cro. Jac. 688, pi. 2); see Lukehart v. Byerly, 53 Penns. 418.) Thou art as 
 arrant a thief as any in England, for thou hast broken up J.'s chest, and taken away 
 £40; not actionable. (Id.) Thou art a thief, for thou takest my beasts by reason of 
 an execution, and I will hang thee. (Wilks' Case, Vin. Abr., Act. for Words, R. 
 a. 3.) 
 
 4 Brite v. Gill, 2 Monroe (Ky.), 66 ; Quinn v. O'Gara, 2 E. D. Smith, 388. 
 
 5 Penfold v. Westcote, 2 New Rep. 335 ; Curtis v. Curtis, 10 Bing. 477; Fisher v. 
 Rotereau, 2 M'Cord, 189; Dudleys. Robinson, 2 Iredell, 141. The words, He is a 
 thief and a liar, and I can prove it, import a charge of larceny, and are actionable. 
 (Robinson v. Keyser, 2 Foster (N. Hamp.), 323.) 
 
 8 Thompson v. Bernard, 1 Camp. 48 ; Christie v. Powell, Peake's Cas. 4 ; McKee v. 
 Ingalls, 4 Scam. 30; Ogden v. Riley, 2 Green, 186 ; Vin. Abr., Actions for Words, G. 
 a. 1, 2. To say, " Thou art as very a thief as any in Warwick gaol," no thief being 
 then in the gaol, would not be actionable, but if a thief is in the gaol at the time the 
 words would be actionable. (Fenner, J., 1 Bulst. 40.) 
 
 7 Alley v. Neely, 5 Blackf. 200. 
 
 8 Rutherford v. Moore, 1 Cr. C. C. 388. 
 
 ' Harvey v. French, 1 Cr. & M. 1, aff'd 2 M. & Sc. 591. " Threatening letters. The
 
 198 CONSTRUCTION OF LANGUAGE. [Ch. VII. 
 
 g. g. Unnatural Offense. — To allege that one has been 
 with a beast, 1 was seen ravishing a cow, amounts to a 
 charge of buggery ; 2 but an allegation that one was 
 seen a fouloi a cow, or "with a heifer," 3 do not 
 amount to a charge of buggery. To say of one, his 
 character is infamous, he would be a disgrace to any 
 society ; I will publish his infamy ; delicacy forbids 
 me bringing a direct charge, but it was a male child 
 who complained to me ; held to impute unnatural 
 practices without an innuendo. 4 * 
 
 It. h. Whore. — To assert that " A. is a whore, or else she 
 would never ride with B.," is to assert that A. is a 
 whore. 5 
 
 i. i. — To say, there is strong reason to believe, 6 or there is 
 a rumor, 1 or if report be time, 8 a certain fact occurred, 
 is equivalent to an allegation that such fact occurred ; 
 and so to say, I would venture anything, 9 or public 
 opinion says so, and what public opinion says I believe 
 to be true, 10 or I have every reason to believe, 11 is 
 equivalent to a positive allegation. But the words 
 " Sparkham did steal or else Godwin is forsworn, was 
 held too indirect a charge to give a right of action, 12 
 
 grand jury have returned a true bill against a gentleman named French," con- 
 strued to mean that the grand jury had found a true bill against French for sending 
 threatening letters, but that the words would not bear the meaning that French had 
 sent threatening letters to extort money. {Id.) 
 
 1 Woolcott v. Goodrich, 5 Cow. 714. 
 
 2 Harper v. Delph, 3 Ind. 225. 
 
 3 Id. ; Johnson v. Hedge, 6 Up. Can. Q. B. Rep, 331 
 
 4 Woolnoth v. Meadows, 5 East, 463. See note 1, on page 168, ante. 
 
 5 True v. Plumley, 36 Maine, 466. " E. P. was one week in L. in a whore-house," 
 implies a charge of whoredom (Blickenstaff v. Perrin, 2*7 Ind. 527.) 
 
 6 Turner v. Merryweather, 12 Law Times, 474; 7 C. B. 251. 
 
 7 Kelly v. Dillon, 5 Porter (Ind.), 426. 
 
 8 Smith v. Stewart, 5 Barr, 372 ; Johnson v. Brown, 57 Barb. 118. 
 
 9 Nye v. Otis, 8 Mass. 122. 
 
 30 Gage v. Shelton, 3 Rich. 242 ; and see note 8, p. 187, ante. 
 11 Logan v. Steele, 1 Bibb, 593 ; and see note 9, p. 187, ante. 
 " 1 StarMe on Slan. 70.
 
 § 145.] CONSTRUCTION OF LANGUAGE. 190 
 
 so of the allegation she had a child, and either she or 
 some one else made away with it. 1 
 
 j. j. — To say of one, he is thought no more of than a horse- 
 thief and a counterfeiter, is to call him a horse-thief 
 and a counterfeiter ; 2 and when it said of one, he has 
 committed an act for which he could be transported, 
 it must be understood he has been guilty of a crime 
 punishable by transportation. 3 
 
 h "k. — To charge, he has broken open my letters in the 
 post-office, do not import an. unlawful breaking open. 4 
 
 1. I. — Thou canst not read a declaration, construed to mean 
 from ignorance, not blindness. 5 
 
 m. m. — The words "we again assert the cases formerly 
 put by us on record, we assert them against [the 
 plaintiff] ; we again assert they are such as no gentle- 
 man or honest man would resort to." Construed 
 not to be a mere denial of some assertion made by 
 plaintiff, but as an accusation against the plaintiff. 6 
 
 n. n. — " He was an United Irishmen, and got the money of 
 the United Irishmen into his own hands and ran 
 away with it," imputes a breach of trust, not a 
 felony, and not actionable. 7 
 
 § 145. What allegations are divisible? One rule 
 whereby to test whether a charge is divisible or not, is to 
 inquire if the measure of damages would be different for 
 the whole or for a part ; and if it would, then the charge 
 
 1 Carth. 55. The words thy brother was whipped for stealing sheep, or burned 
 in the hand or shoulder, held too uncertain to warrant an action, as one could not be 
 burned in the shoulder for stealing sheep. (Stirley v. Hill, Cro. Car. 283.) 
 
 2 Nelson v. Musgrave, 10 Mo. R. 649. 
 
 3 Curtis v. Curtis, 4 Mo. <fe S. 337 ; 10 Bing. 477. 
 * McCuen v. Ludlam, 2 Har. 12. 
 
 6 Powell v. Jones, 1 Lev. 297. 
 6 Hughes v. Rees, 4 M. & W. 204. 
 
 7 McClurg v. Ross, 5 Binn. 218; and see Caldwell v. Abbey, Hardin, 529; Huron 
 v. Smith, 4 B. Monr. 385.
 
 200 CONSTRUCTION OF LANGUAGE. [Ch. VII. 
 
 is divisible, and part may be justified. 1 Another rule 
 would be to inquire if a part of the charge would sustain 
 an action. Where the charge was that the plaintiff, a 
 proctor, had been suspended three times for extortion, held 
 divisible, and that the defendant might justify as to one 
 suspension. 2 Where the alleged defamatory matter pro- 
 fessed to give a report on an election petition, and com- 
 mented on a person, bail for one of the petitioners, and 
 stated " he is hired for the occasion," held divisible. 3 The 
 charge was acts of barbarity to a horse, and " beating out 
 one of his eyes, and that plaintiff had ordered the person 
 having charge of the horse, not to let any one see it," 
 held divisible. 4 So of the words ; Ware, hawk, you must 
 take care of yourselves there, mind what you are about ; 5 
 and where the charge was that plaintiff had killed, his 
 adversary in a duel, and that a portion of the night 
 preceding the duel was spent in practicing with a pistol, 
 held to be divisible allegations ; 6 and where the charge 
 was that the plaintiff had, by furious driving, caused the 
 death of a person and then commented, in terms held 
 to be actionable, on the fact of the plaintiff, on the same 
 evening, attending a public ball, held that the charges 
 were divisible ; 7 so of the words, she is a forsworn whore 
 and a perjured whore, 8 and Thou are a roguish knave and 
 a thief. 9 Where the charge was that plaintiff was in 
 prison and unable to pay his rent, and a mere man of 
 
 1 Clarkson v. Lawson, 6 Bing. 587 ; Cooper v. Lawson. 1 Perr. <feD. 15; Churchill 
 v. Hunt, 2 B. & A. 685. 
 
 2 Clarkson v. Lawson, 6 Bing. 587. 
 
 3 Cooper v. Lawson. 1 Perr. & D. 15. 
 
 4 Weaver v. Lloyd, 2 B. & Cr. 678 ; 4 D. & R. 230. 
 
 5 Orpwood v. Barkes, 4 Bing. 261 ; S. C. sub. nom. Orpwood v. Parkes, 12 Moore, 
 492. 
 
 6 Helsham v. Blackwood, 11 C. B.lll ; 5 Eng. Law <fc Eq. R. 409. 
 
 7 Churchill v. Hunt, 2 B. & A. 685 ; 1 Chit. 480. 
 - Wales v. Norton, Hard. 7. 
 
 9 Bailey v. Maynard, 2 Bulst. 134.
 
 § 145.] CONSTRUCTION OF LANGUAGE. 201 
 
 straw, held not divisible, but one charge of insolvency. 1 
 Allegations of time, and space, and number, are divisible. 2 
 
 1 Eaton v. Johns, 1 Dowl. Pr. C. N. S. 602. 
 
 2 Monkman v. Shepherdson, 3 Perr. & D. 182; 11 Ad. & El. 411; so said in 
 argument, Page v. Hatchett, 6 Law Times, 218 ; and as to divisible allegations, see 
 McGregors Gregory, 2 Dowl. Pr. C N. S. 769; 11 M. & W. 289; Nelson v. Patrick, 
 3 C. B. 772 ; Mountney v. Watton, 2 B. & Ad. 673 ; Tapley v. Wainwright, 5 B. & 
 Adol. 395, cited, Dunckle v. Wiles, 6 Barb. 523; Vessey v. Pike, 3 C. <fc P. 512; 
 Berry v. Adamson, 2 C. & P. 503 ; O'Connell v. Mansfield, 9 Ir. Law R. 179 ; Edwards 
 v. Bell, 1 Bing. 403; Lewis v. Walter, 4 Dowl. & R. 810; 3 B. & Cr. 138; Johns v. 
 Gittings, Cro. Eliz. 239; Vin. Abr. Act. for Words, F. a, 43; Heard on Libel, 286, 
 note 2 and 4 M. & S. 548; Chalmers v. Shackell, 6 C & P. 474. 
 
 14
 
 CHAPTER VIII. 
 
 WHAT LANGUAGE IS ACTIONABLE. 
 
 Language must be such as does or does not occasion damage 
 — What is meant by actionable per se, and actionable by 
 reason of special damage — What language concerning a 
 person as such, published orally, is actionable per se — 
 What language concerning a person as such, published in 
 writing, is actionable per se — Wliat language concerning 
 one in an acquired capacity, is actionable per se — What 
 language concerning a person is actionable by reason of 
 special damage — What language concerning the affairs 
 of a person, his property or his title thereto, is actionable. 
 
 § 146. All language concerning a person or Lis affairs, 
 which, as a necessary or natural and proximate consequence, 
 occasions him pecuniary loss, is prima facie actionable (§§ 
 57, 59, 70). Language must be either (1) such as neces- 
 sarily, in fact, or by a presumption of evidence, occasions 
 damage to him whom or whose affairs it is concerning, or 
 (2) such as does not necessarily, or as a necessaiy conse- 
 quence, but does by a natural and proximate consequence, 
 occasion damage to him whom or whose affairs it is con- 
 cerning, or (3) such as neither as a necessary nor as a 
 natural and proximate consequence occasions damage to 
 him whom or whose affairs it is concerning. 1 The loss 
 which ensues as a " necessary consequence" is termed dam- 
 age; the loss which ensues as a " natural and proximate 
 consequence" is termed " special damage. 1 '' One and the 
 
 1 In the jurisprudence of Louisiana, a distinction is not made between words, 
 actionable and words not actionable, as the basis of damages in a suit for slander, 
 where no special damages are proved. (Feray v. Foote, 12 La. Ann. 894.)
 
 ACTIONABLE LANGUAGE. 203 
 
 same set of words may both necessarily occasion damage 
 and also occasion damage as a natural consequence. 
 
 § 147. Language of the first of these classes is com- 
 monly termed libellous per se, or actionable per se, because 
 its publication confers a prima facie right of action, and 
 is prima facie a wrong without any evidence of damage 
 other than that which is implied or presumed from the 
 fact of publication. Probably language of this class 
 might more correctly be termed injurious per se, or lan- 
 guage which imports damage. 
 
 § 148. The publication of language of the second of 
 these classes does not, per se, confer a, prima facie right of 
 action, and is not, per se, a prima facie wrong. It confers 
 a right of action only in those cases in which, as a natural 
 and proximate consequence of the publication, loss 
 (special damage) has in fact ensued to him whom or 
 whose affairs the lano-ua^e was concerning. 
 
 § 149. The publication of language of the third of 
 these classes cannot in any event amount to a wrong, and 
 cannot in any event confer a right of action. 
 
 § 150. We attempted to explain in Chapter IV. that 
 pecuniary loss, actual or presumed, is the gist of the action 
 for slander or libel, and we stated (pp. 101, 102) the basis, 
 as we suppose, of the distinction between words action- 
 able per se and words only actionable by reason of special 
 damage, to consist solely of a rule of evidence ; the rule by 
 which courts decide what words 1 shall be considered by 
 their publication necessarily to occasion pecuniary loss or 
 damage. The courts, while exercising this power, have 
 failed to promulgate a formula which can be applied with 
 
 1 Words mean written or spoken words (Minter v. Stewart, 2 How. (Mis.) 183), 
 and an action for written slander may be an action for " slanderous words " within 
 the Vermont Judiciary Act (Parsons?;. Young, 2 Verm. 434), but see note 1, p. 141, ante. 
 And in Hall v. Warner, T. 24 Geo. III., Tidd, 861, held that an action for libel was 
 not within statute 21 Jac. I., ch. 16, relating to actions for "slanderous words."
 
 204 WHAT ORAL LANGUAGE [Ch. VJH. 
 
 any degree of certainty, to distinguish the cases in which 
 damage is necessarily implied, from the cases in which 
 no such implication occurs, and in which to give a right of 
 action special damage must be proved. 
 
 § 151. As the injurious, or presumed injurious effect 
 of language depends upon whether (1) the language con- 
 cerns a person or a thing (2) or the person as such or in 
 some acquired capacity, or (3) in certain cases, whether 
 the language be published orally or by writing, it will be 
 necessary to consider the topic of actionable language 
 under the following heads : 
 
 I. — What language concerning a person, as such, pub- 
 lished orally, is actionable per se. 
 
 II. — What language concerning a person as such, pub- 
 lished in writing, is actionable per se. 
 
 HI. — What language concerning one in an acquired 
 capacity or special character, as in a business, profession, 
 or office, or as partner, or as heir-at-law, is actionable per 
 se. 
 
 IV. — What language is actionable by reason of special 
 damage. 
 
 V. — What language concerning things, as the affairs 
 of a person, his property, or his title thereto, is actionable. 
 
 § 152. What language concerning a person, as such, 
 published orally, is actionable per se f Although it has 
 been said that "The law of England defines with much 
 greater distinctness than is usually found in other codes, 
 the limits of the civil action for oral slander in the ab- 
 sence of special damage," 1 it is nevertheless true that 
 
 3 Prelim. Discourse to Starkie on Slander, XXX. (30), note v. ; see note to § 57, 
 ante. In Scotland, any words that produce " uneasiness of mind " are said to be ac- 
 tionable. (Borthwick on Libel, 184, note.) But words merely " uncivil" are not 
 actionable. In Iceland, to say of a gentleman he did menial labor is punishable. 
 (Blackwood's Magazine, Feb'y, 1869.) Mere words of obloquy, not written, are not 
 actionable. (Johnson v Brown, 4 Cr. G. C. 235.)
 
 § 153.] IS ACTIONABLE. 205 
 
 " There is not perhaps so much uncertainty in the law 
 upon any subject, as when words shall be in themselves 
 actionable." * " The line of demarcation seems never to 
 have been satisfactorily defined," 2 and is " more satisfac- 
 torily determined by an accurate application of the prin- 
 ciples upon which actions on the case for words depend, 
 than by a reference to adjudged cases, especially those in 
 the more ancient authors." 3 The diversity of opinion as 
 to what words should be treated as imputing damage, or 
 actionable per se, arose from a wavering in the minds of 
 the judges between two opposite inconveniences. The 
 fear of encouraging a spirit of vexatious litigation, by af- 
 fording too great a facility for this species of action, was 
 contrasted with the mischief resulting to the public peace 
 from refusing legal redress ; and according as the former 
 or latter of these considerations preponderated, so was the 
 rule of decision rigid or relaxed. 4 
 
 CD 
 
 § 153. Several of the States provide by statute what 
 words shall be actionable; thus, in Mississippi, Virginia, 
 and Georgia, it is enacted that all words which from their 
 usual construction and common acceptation are considered 
 as insults and lead to violence and breach of the peace, 
 shall be actionable. 5 In Tennessee, imputing adultery or 
 fornication, or calling one coward or poltroon for not 
 fighting a duel, is actionable. In Arkansas and Illinois, 
 to impute adultery, fornication, or false swearing, or hav- 
 ing sworn [or affirmed in Illinois] falsely in common 
 acceptation, whether in a judicial proceeding or not, is 
 
 1 Spencer, J., Brooker v. Coffin, 5 Johns. 192. 
 
 a Borthwick on Libel, 5; Lord Holt said it was not worth while to be learned on 
 the subject. Baker v. Pierce, 6 Mod. 24. 
 
 3 1 Comyn's Di^. 213, note, 4th edit. 
 
 4 1 Starkie on Slander, 12. 
 
 6 It is not necessary, to support an action under these statutes, that the words 
 should have been spoken in the presence of the plaintiff. (Scott v. Peebles, 2 Smedes 
 & Marsh. 646.)
 
 206 WHAT OKAL LANGUAGE [Ch. VIII. 
 
 actionable. In Missouri, to impute adultery or fornica- 
 tion is actionable. In Indiana, to impute to a female 
 incest, fornication, adultery, or whoredom, or to impute to 
 any one incest, or an infamous crime against nature with, 
 man or beast, is actionable. In Florida, a charge by any 
 citizen of that State against another, imputing incest, for- 
 nication, or adultery, is actionable. In North Carolina, 
 any words spoken of a female which amount to a charge 
 of incontinency, are actionable; and in Maryland, all 
 words tending to the injury of the reputation for chastity 
 of a feme sole, are actionable. 1 In Michigan, willfully to 
 insult or indecently to annoy any female, with any 
 obscene or indecent word or act, is a misdemeanor; and 
 in New York, 2 "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 dam- 
 ages in order to maintain such action. In such actions, a 
 married woman may sue alone, and any recovery therein 
 shall be her sole and separate property." 
 
 § 153«. In the absence of any statutory provision on 
 the subject, all language concerning a person in his indi- 
 vidual capacity merely, when published orally, is action- 
 able per se, which, 
 
 I. Charges an indictable offense involving moral tur- 
 pitude; or, 
 
 II. Charges the being afflicted with certain diseases. 
 
 § 154. In New York, oral language is actionable per 
 se, when it imputes a charge which if true will subject the 
 party charged to an indictment for a crime involving 
 moral turpitude, or subject him to an infamous punish- 
 ment. This was the rule laid down by Justice Spencer, 
 
 1 See in note p. 76, ante, and note to § 171, post. 
 
 2 Laws N. Y. 1871, ch. 219, took effect 29th March, 1871.
 
 § 154.] IS ACTIONABLE. 207 
 
 in Brooker v. Coffin, 1 and as to which Justice Bronson 
 said, that although it was not entirely satisfactory to his 
 mind, he felt bound to follow it. 2 It was proposed by 
 counsel to modify the rule as stated above by altering or 
 into and, but the court refused assent to the suggestion, 3 
 and the rule, as laid down in Brooker v. Coffin, has been 
 followed in numerous cases in New York and other 
 States. 4 In reference to the above rule it has been re- 
 marked that " when the courts say the words are action- 
 able if they subject the party to indictment and infamous 
 punishment, provided they be true, we clearly understand 
 what is the extent of the rule ; " but when they add " or 
 subject the party to an indictment for an offense involving 
 moral turpitude, we are left in doubt what charges are 
 embraced within the sentence ; it lacks precision." 5 And 
 again, "This element of moral turpitude is necessarily 
 adaptive ; for it is itself denned by the state of public 
 morals, and thus far fits the action to be at all times 
 accomodated to the common sense of the community." 6 
 Chief Justice Parker refused to adopt the rule as laid 
 
 1 5 Johns. 188. 
 
 2 Young v. Miller, 3 Hill, 22. 
 
 3 "Widrig v. Oyer, 14 Johns. 124. 
 
 •Wright v. Paige, 36 Barb. 438; aff'd 3 Trans. App. 134; Quin v. O'Gara, 2 E. 
 D. Smith, 388; Martin v. Stillwell, 13 Johns. 275; Burtch v. Nickerson, 17 Johns. 
 219 ; Van Ness v. Hamilton, 19 Johns. 367; Gibbs v. Dewey, 5 Cow. 503; Demarest 
 v. Haring, 6 Cow. 88 ; Crawford v. "Wilson, 4 Barb. 504 ; Alexander v. Alexander, 9 
 "Wend. 141; Hoag v. Hatch, 23 Conn. 590; Andres v. Koppenheafer, 3 Serg. & R. 
 255 ; Todd v. Rough, 10 Serg. <fe R. 18 ; McCuen v. Ludlam, 2 Harrison (N. J.), 12 ; 
 Johnson v. Shields, 1 Dutcher, 118 ; Giddens v. Mirk, 4 Geo. 360; Burton v. Burton, 3 
 Iowa, 316; Gage v. Shelton, 3 Rich. 242; Kinney v. Hosea, 3 Harr. 77; Coburn v. 
 Harwood, Minor, 93; Perdue v. Burnett, Minor, 138; Hilhouse v. Peck, 2 Stew. <fe 
 Por. 395; Johnston v. Morrow, 9 Porter, 525; Taylor v. Kneeland, 1 Doug. (Mich.), 
 67 ; Beck v. Stitzel, 21 Penn. St. R. 522 ; Billings v. "Wing, 7 Verm. 439 ; The State 
 v. Burroughs, 2 Halst. 426; 1 Amer. Lead. Cas. 113, 3d ed. 
 
 6 Daniel, J., Skinner v. White, 1 Dev. & Bat. 471 ; and see Brady v. Wilson, 4 
 Hawks, 93; Wall v. Hoskins, 5 Ired. 177; Shipp v. McCraw, 3 Murph. 463. 
 
 e Lowrie, J., Beck v. Stitzel, 21 Penn. St. Rep. 622.
 
 208 WHAT ORAL LANGUAGE [CL VHT. 
 
 down in Brooker v. Coffin, supra, and laid down the rule 
 as thus : an accusation is actionable whenever an offense is 
 charged which, if proved, may subject the party to a pun- 
 ishment, though not ignominious, and which brings dis- 
 grace upon him. 1 The same judge has also laid down 
 the rule as thus : " Words imputing crime in the party 
 against whom they are spoken, which if true would 
 subject him to disgraceful punishment, are actionable with- 
 out special damages." 2 To render the imputation of a 
 crime actionable there needs not the same certainty in 
 stating the crime as in an indictment for such a crime. 3 
 
 § 155. The following offenses, among others, have 
 been held to involve moral turpitude : keeping a bawdy- 
 house, 4 removing land marks, 5 selling spirituous liquor to 
 
 1 Miller v. Parish, 8 Pick. 385. 
 
 * Chaddock v. Briggs, 13 Mass. 248 ; and to the like effect, Bloss v. Tobey, 2 
 Pick. 320; "Words to be actionable must charge an offense subject to corporal or 
 infamous punishment." (Elliott v. Ailsberry, 2 Bibb, 473 : McGee v. Wilson, Lit. Sel. 
 Cas. 187.) Words are not actionable per se when "they impute no crime which 
 could be visited by infamous punishment." (Buck v. Hersey, 31 Maine, 558; Gos- 
 ling v. Morgan, 32 Penn. State Pep. (8 Casey), 273.) The charge of a misdemeanor to 
 be actionable per se must be one which " implies some heinous offense involving moral 
 turpitude." (Mills v. Wimp, 10 B. Monroe, 417.) Dotharcr v. Bushey, 4 Harris, 204 ; 
 Stitzell v. Reynolds, 9 P. F. Smith, 488. An indictment lies for many acts not in- 
 volving moral turpitude. (Quinn v. O'Gara, 2 E. D. Smith, 388.) 
 
 Words charging an offense involving moral turpitude and indictable, although 
 not subjecting the offender to infamous punishment, are actionable in themselves. 
 (Perdue v. Burnett, Minor, 138.) 
 
 Any words which, according to their natural import, impute a crime or mis- 
 demeanor, which is punishable in the temporal courts by corporal punishment, are 
 actionable in themselves. (Demarest v. Haring, 6 Cow. 76.) 
 
 " An action will lie for all words spoken of another, which impute to him the 
 commission of a crime involving moral turpitude, and which is punishable by law." 
 Heard on Libel, 25. 
 
 3 Miller v. Miller, 8 Johns. 74 ; Randell v. Butler, 7 Barb. 260. 
 
 4 Martin v. Stillwell, 15 Johns. 275; Brayne v. Cooper, 5 M. &. W. 249; Wright 
 v. Paige, 36 Barb. 438 ; 3 Trans. App. 134. 
 
 6 Young v. Miller, 3 Hill, 24 ; Todd v. Rough, 10 S. &. R. 18 ; Dial v. Holter, 6 
 Ohio (N. S.), 228.
 
 § 156.] IS ACTIONABLE. 209 
 
 a slave, 1 paying money to secure election as a justice of 
 the peace, 3 opening a letter addressed to another, 3 altering 
 the owner's marks on animals, 4 soliciting one to commit' 
 murder, 5 indecent exposure of the person, 6 embracery, 7 
 making a false declaration of a right to vote, 8 and coun- 
 terfeiting. 9 
 
 § 156. In some of the States it seems that all oral 
 language which imputes an indictable offense or an offense 
 punishable at law, is actionable per se j thus it is said : 
 " All that is essential to the maintenance of the action for 
 slander is that the words shall impute the commission of a 
 punishable offense." 10 To be actionable the effect of the 
 language must be "to charge some crime or offense 
 punishable by law ; " n " a charge of crime or some punish- 
 able offense," 12 or " words imputing to another a crime 
 punishable by law," 13 or an indictable offense. 14 While in 
 other States it is held that words, to be actionable, must 
 
 I Smith v. Smith, 2 Sneed, 4*73. 
 
 5 Hoag v. Hatch, 23 Conn. 585. 
 
 3 Cheadle v. Buell, 6 Ham. 67; contra, McCuen v. Ludlam, 2 Harr. 12 ; and see 
 Hillhouse v. Peck, 2 Stew. <fe Port. 395. 
 
 4 Perdue v. Burnett, Minor, 138. 
 
 ' Demarest v. Haring, 6 Cow. 76. 
 
 6 Torbitt v. Clare, 9 Irish Law Pv. 86. 
 
 ' Gibbs v. Dewey, 5 Cow. 503 ; see ante, § 144. subd. j. 
 
 8 Crawford v. Wilson, 4 Barb. 505. 
 
 8 Howard v. Stephenson, 2 Const. Rep., 2d series, 408 ; Thirman v. Matthew, 1 
 Stew. 384. All words imputing a crime are actionable. (Deford v. Miller, 3 Penns. 
 103). See Arson, Forgery, Larceny, Perjury, Homicide. 
 
 10 McKinney, J., Poe v. Grever, 3 Sneed, 666. " Words which impute trespass, 
 assault, battery, and the like, are .not actionable per se, and yet these offenses are 
 punishable by indictment." (Smith v. Smith, 2 Sneed, 478; Dudley v. Horn, 21 
 Ala. 379; Billings v. Wing, 7 Verm. 444.) Oral language to be actionable must im- 
 pute something criminal or that would exclude from society. (Colby v. Reynolds, 6 
 Verm. 489.) 
 
 II Bunnell v. Fiske, 11 Mete. 552. 
 
 11 Edgerley v. Swaine, 32 N. Hamp. 481. 
 
 13 Teuney v. Clement, 10 N. Hamp. 57; Lukehart v. Byerly, 53 Penns. 418. 
 M Kinney v. Hosea, 3 Harring. 77.
 
 210 WHAT OEAL LANGUAGE [Ch. VIII. 
 
 impute not only an indictable offense, but an indictable 
 offense for which corporal punishment may be inflicted as 
 the immediate penalty. 1 
 
 § 157. Judging from the language of many English 
 dicta, the rule in England would seem to be that all oral 
 language is actionable per se, which imputes a crime or in- 
 dictable offense. " An action lies for any words which 
 import the charge of a crime for which the party may be 
 indicted." 2 " The test is, whether the crime is indictable 
 or not." 3 " Where an offense of a criminal nature is im- 
 puted by the slander for which the party is liable to in- 
 dictment or punishment by the common or statute law, 
 those words are actionable per se" 4 " It is well known 
 that words are not actionable unless they impute some 
 crime or indictable offense." 5 " The words, to be action- 
 able, must impute a criminal offense ; that is, the words, 
 if true, must be such that the plaintiff would be guilty of 
 a criminal offense." 6 While other decisions seem to re- 
 quire that an offense must be imputed — which would not 
 only subject the party charged to imprisonment, but to an 
 infamous punishment. To make the words actionable per 
 se "there must not only be imprisonment, but an in- 
 famous punishment ; " 7 and therefore in that case it was 
 
 1 Birch v. Benton, 26 Miss. (5 Jones) 153 ; Billings v. Wing, 7 Verm. 144. 
 
 3 Mayne v. Digle, Freeman, 46. Words, to be actionable in themselves, must 
 charge some scandalous crime ; they must be such as to impute to the party an 
 offense for which he may be indicted. (Walmsley v. Russell, 6 Mod. 200.) In 
 Smale v. Hammon, 1 Bulst. 40, it was said where the words spoken do tend to the 
 infamy, discredit or disgrace of the party, they shall be actionable, but this dictum 
 was said to go too far. (Holt v. Scholefield, 6 T. R. 691.) In Scobell v. Lee (2 Show. 
 32), it was held not actionable to call one regrator, because regrating, although crim- 
 inal, was not punishable by loss of life or limb. In ancient books we do not meet 
 with the action for words unless the slander concerned life. . Vaughan Ch. J., 2 
 Vent. 28. 
 
 3 Comyn's Dig. Act. for Defam. F. 20. 
 
 4 2 Saund. Pi and Ev. 898, 2d Eng. Ed. 
 
 6 TyndalCh. J. Edsall v. Russell, 5 Sc. N. R. 815 ; 2 Dowl. N. S. 648; 4 M. and 
 G. 1099 ; 12 Law Jour. N. S. C. B. 7. 
 
 6 Alderson, B. Heming v. Power, 10 M. and W. 570. 
 
 7 Holt, Ch. J., Turner v. Ogden, 2 Salk. 696.
 
 § 158.] IS ACTIONABLE. 211 
 
 held that the words " Thou art one of those that stole my 
 Lord Shaftesbury's deer " were not actionable per se, be- 
 cause, although the offense of deer-stealing was punishable 
 by imprisonment, it was not an infamous punishment. " The 
 words [to be actionable] must contain an express imputa- 
 tion of some crime liable to punishment, some capital 
 offense, or other infamous crime or misdemeanor." * Mr. 
 Starkie says : " Perhaps it may be inferred generally, that 
 to impute any crime or misdemeanor for which corporal 
 punishment may be inflicted in a temporal court is action- 
 able, without proof of special damage. Where the penalty 
 for an offense is merely pecuniary, an action will not lie 
 for charging such offense ; even though in default of pay- 
 ment imprisonment should be prescribed, imprisonment 
 not being the primary and immediate punishment for the 
 offense." 2 
 
 § 158. It has been supposed that the gist of the action 
 for slander was the peril of prosecution to which a person 
 was exposed by the charge, and therefore that for charg- 
 ing an offense which has been pardoned or atoned for, or 
 which is barred by the statute of limitations, no action can 
 be maintained. Thus it is said, " The ground of the mat- 
 ter being actionable is, that a charge is made which, if it 
 
 1 De Grey, Ch. J., Onslow v. Home, 3 Wilson, 186. This rule, says Mr. Heard 
 (Heard on Libel, 16), is universally referred to as the correct rule, and was repeated 
 in Holt v. Scholefield, 6 T. R. 694, and in Beardsley v. Dibblee, 1 Kerr, 258, and 
 adopted in Shaffer v. Knitzer, 1 Binney, 542 ; Andres v. Koppenheafer, 3 Serg. & 
 R. 257; Bloom v. Bloom, 5 id. 392 ; Pelton v. Ward, 3 Caines, 79 ; Smith v. Smith, 2 
 Sneed, 478; Johnson v. Shields, 1 Dutcher, 119. 
 
 2 1 Starkie on Slander, 43; 6 Mod. 104. This view of the law is adopted in 
 Billings v. Wing, 7 Verm. 439 ; Wagaman v. Byers, 17 Md. 183 ; and in a note at 
 page 90 ofMetcalfs edition of Yelverton's Reports, but is questioned 1 Amer. Lead. 
 Cas., 112, 2d ed., and in Smith v. Smith, 2 Sneed, 478. Saying that plaintiff went to 
 mass was held actionable, because it was by statute an offense punishable by fine and 
 imprisonment. (Sir Lionel Walden v. Mitchell, 2 Vent. 265.) And concealing a 
 felony was held actionable at a time when such an offense was punishable by fine 
 only. (Newlyn v. Fasset, Yelv. 154). But the words thou art a common barrator, it 
 was said would not support an action because the punishment was merely fine and 
 binding to good behavior. (Heake v. Moulton, Yelv. 90.)
 
 212 WHAT OEAL LANGUAGE [Ch. Vffl. 
 
 were true, would endanger the plaintiff in point of law." 1 
 The better opinion is, that the action of slander " is al- 
 ways for the loss of character and not the danger of 
 punishment," 2 or the hazard of a criminal prosecution. 3 
 " It is a great slander to be once a criminal ; and although 
 a pardon may discharge the punishment, 4 yet the scandal 
 of the offense remains." 5 It is in this view that it has 
 been held actionable, subject to justification on the ground 
 of truth, 6 to say of one, " He was a thief and stole my 
 gold ; " 7 or, " He is a returned convict ; " 8 or, " He is a con- 
 vict and has been in the Ohio penitentiary ; " 9 or, " You 
 have been cropped for felony ; " 10 or, " Thou wast in Laun- 
 ceston gaol for coining and burnt in the hand for it ; " u or, 
 "Robert Carpenter (the plaintiff) was in Winchester gaol 
 and tried for his life, and would have been hanged had it 
 not been for Leggett, for breaking open the granary of 
 farmer A. and stealing his bacon ; " 12 or, " He was whipped 
 
 4 Parke B., HemiDg v. Power, 10 M. &. W. 569. See Hervey v. Boies, 1 PeDns. 
 14; Andres v. Hoppenheafer, 3 Serg. & R. 258; Dalrymple v. Lofton, 1 M'Mullan, 
 118. " The grounds of action are to be found in the degradation of the party in so- 
 ciety, or his liability to criminal animadversion. * * * The party's jeopardy, in 
 a legal point of view, is regarded by the law as the principal ground of action." (1 
 Starkie on Slander, 18.) But criminal liability is not always the peculiar and ex- 
 clusive ground of action ; instances are to be found of remedy for imputations which 
 could not subject the party to any future jjenalty. (Id. 19.) 
 
 2 Van Ankin v. Westfall, 14 Johns. 233 ; Shipp v. McCraw, 3 Murph. 466. 
 
 3 Eastland v. Caldwell, 2 Bibb, 24 ; Smith v. Stewart, 5 Barr, 372 ; Beck v. 
 Stitzel, 21 Penn. St. R. 524; Poe v. Grever, 3 Sneed, 664. 
 
 4 " In the eye of the law the [pardoned] offender is as innocent as if he had never 
 committed the offense." (Ex-parte Garland, 4 Wallace, 380 ; U. S. v. Paddleford, 9 
 Wallace, 542.) "The pardon makes him a new man, and gives him a new capacity 
 and credit." (2 Hawk. P. C, ch. 57, §48.) 
 
 6 Boston v. Tatham, Cro. Jac. 622, and see Cuddington v. Williams, Hobart, 81. 
 8 Banm v. Clause, 5 Hill, 196; Van Ankin v. Westfall, 14 Johns. 233; and see 
 
 post, Defenses. 
 
 7 Boston v. Tatham, Cro. Jac. 622. 
 
 8 Fowler v. Dowdney, 2 Moo. <fe Rob. 119; and see the reporter's note to this case 
 8 Smith v. Stewart, 5 Barr, 372. 
 
 10 Wiley v. Campbell, 5 Monr. 396. 
 
 11 Gainford v. Tuke, Cro. Jac. 536. 
 
 - 2 Carpenters. Tarrant, Rep. temp. Hard. 339, cited by L'd Ellenborough, Roberta 
 v. Camden, 9 East, 97.
 
 § 159.] IS ACTIONABLE. 213 
 
 for stealing hogs ; " * or, " He was put in the roundhouse 
 for stealing ducks at Crowland ; " 2 or, " Thou hast been in 
 gaol for stealing a pan." 3 For the words, "Thou wert in 
 gaol for robbing on the highway," the court was divided 
 if actionable or not ; 4 a charge of committing a statutable 
 offense was held actionable, although intermediate the 
 speaking the words and the commencement of the action 
 the statute was repealed. 5 
 
 § 159. Where the offense is charged to have been com- 
 mitted in a foreign state, it will be actionable if it appear 
 that the offense charged is one by the law of that state 
 punishable by indictment, and involving moral turpitude. 
 Where the offense charged is one punishable by indict- 
 ment at common law it will be presumed to be indictable 
 everywhere ; but if the offense charged be one created by 
 statute or punishable by indictment by statute, then, as 
 courts cannot take judicial notice of the statutes of foreign 
 states, to make the charge actionable the statute relating 
 to the offense charged must be pleaded and proved like 
 any other fact. 6 Thus it is actionable per se, to charge one 
 with stealing in a foreign state or country, 7 or with mur- 
 
 1 Holley v. Burgess, 9 Ala. 728. 
 
 2 Beavor v. Hides, 2 Wils. 300. 
 
 3 She-well v. Haman, Cro. Jac. 153. 
 * Smale v. Hammon, 1 Bulst. 40. 
 
 5 French v. Creath, Breese, 12. 
 
 c ' Offutu Earlywine, 4 Blackf. 460; Linville v. Earlywine, id. 469; Langdon v. 
 Young, 33 Verm. 136; Stout v. "Wood, 1 id. 71 ; Barclay v. Thompson, 2 Penns. 148,- 
 Poe v. Greyer, 3 Sneed, 644; Sparrow v. Maynard, 8 Jones L. (N. Car.) 195. Burning- 
 a barn is an offense by the statutes of Indiana, but not at common law, therefore a 
 charge, " He had to leave Indiana for burning a barn," is not actionable without 
 a colloquium of the law of Indiana. (Bundy v. Hart, 46 Mo. 460.) Thus the 
 stealing of bank notes not being indictable at common law, to charge a theft of bank 
 notes in South Carolina, was held not to be actionable in North Carolina, unless it was 
 shown that, by the laws of South Carolina, such stealing was subject to an infamous 
 punishment. (Wall v. Hoskins, 5 Iredell, 177.) A. and B. being in North Carolina, 
 A. charged B. with stealing a note from him in Virginia, and it appearing that steal- 
 ing notes was a larceny in Virginia, the charge was held to be actionable. (Shipp v. 
 McCraw, 3 Murph. 463. ) 
 
 1 As to say in Canada, Old Smith (plaintiff) is a damned thief, he stole a cow in
 
 214 WHAT ORAL LANGUAGE [Ch. VIII. 
 
 der, 1 and an action may be maintained for charging a 
 crime committed in another state, which it would not be 
 actionable to charge the commission of in the state in 
 which the action is commenced. 2 
 
 § 160. "No charge upon a plaintiff, however foul, will 
 be actionable without special damage, unless it be of an 
 offense punishable in a temporal court of criminal j mis- 
 diction," 3 and therefore held not actionable per se to 
 
 the States (United States). (Smith v. Collins, 3 Up. Can. Q. B. R. 1 ; and see John- 
 son v. Dicken, 25 Missouri (4 Jones), 580 ; Cefret v. Burch, 1 Sneed, 400.) 
 
 1 Words charging the commission of murder in Ireland are actionable without 
 proving murder to be an indictable offense in that country. (Montgomery v. Deeley, 
 3 Wis. 709.) To charge one with administering poison in a foreign country, with 
 intent to kill, is actionable, semble the court will presume such an offense to be indict- 
 able. See Langdon v. Young, 33 Verm. 136. 
 
 2 Van Ankin v. Westfall, 14 Johns. 233 ; and see Stout v. Wood, 1 Blackf. 91. 
 
 3 1 Starkie on Slander, 21, and he proceeds to establish this proposition by refer- 
 ring to the cases in which it has been decided that to say a man is " forsworn," or has 
 "taken a false oath," is not actionable unless the charge connects it with some judicial 
 proceeding. Without this connection he says the charge only imputes a breach of 
 morality, for which no action lies. [See Perjury, pout.] Besides the older authori- 
 ties there is cited Hopkins v. Beedle, 1 Cai. 347 ; Stafford v. Green, 1 Johns. 505 ; 
 Ward v. Clark, 2 id. 10; Watson v. Hampton, 2 Bibb's R. 319 ; Jacobs v. Fylee, 3 
 Hill, 572. To these we add Hopwood v. Thorn, 8 C. B. 293 ; Brite v. Gill, 2 Monr. 
 65 ; Dorsey v. Whipps, 8 Gill, 457 ; Holt v. Scholefield, 6 T. R. 694 ; Wyant v. Smith, 
 5 Blackf. 293 ; Tebbetts v. Coding, 9 Gray, 254 ; Edgerley v. Swain, 32 ET. H. 478 ; 
 Wright v. Lindsay, 20 Ala. 428; Barham v. Nethersall, Yelv. 21; and see Heard on 
 Libel, § 28. A charge of having " broken open and read a letter " sent by mail, held 
 not actionable, because the offense, although indictable, is not, morally speaking, a 
 crime. (Hillhouse v. Peck, 2 Stew. <fe Port. 395 ; and see McCuen v. Ladlum, 2 Harr. 
 12; Cheadle v. Buell, 6 Ham. 67; post, note to § 178, and ante, p. 208, note 3. 
 
 Where the words on their face charge a criminal offense, but are shown by their 
 context or otherwise, not to have that meaning, they are not actionable ; thus the 
 words, they are highwaymen, robbers, and murderers, being shown to relate to a 
 transaction not amounting to a criminal offense, were held not to be actionable. (Van 
 Rensselaer v. Dole, 1 Johns. Cas. 279.) And see J: 134 and note to § 137, ante. 
 
 It has been held that a charge by a married woman of having stolen her goods, is 
 not actionable [she having no separate estate], as a married woman could not have 
 goods of her own. (1 Rolle Abr. 74; 6 Bac. Abr. 238; 1 Starkie on Slander, 77.) 
 But where a married woman said, my turkeys are stolen, Charnell hath stolen them, 
 it was held Charnell might have his action. (Charnell's Case, Cro. Eliz. 279.) And 
 so where a married woman said, thou hast stolen my faggots. (Stamp v. White, 
 Palmer, 358; and see Fowell v. Plunkett, Cro. Car. 52.) 
 
 By the statutes of Illinois, no child under the age of ten years can be punished 
 for larceny; but an action may be maintained by such child for slanderous words
 
 § 161.] 13 ACTIONABLE. 215 
 
 charge a breach of trust, 1 or a malicious trespass, 2 or of 
 burning, destroying, and suppressing a will, 3 or attempting 
 to procure, or causing or procuring a miscarriage, 4 or with 
 incest, 5 or adultery, 6 or crime against nature, 7 or with 
 cheating, 8 or "mismarking" cattle, 9 or living by im- 
 posture. 10 
 
 § 161. A purpose or intent to do an unlawful act, 
 without any act being done, is not punishable criminally, 
 and therefore within the rule stated in the last preceding 
 section (§ 160), it is not actionable orally to charge one 
 with a mere intent to commit an offense, 11 " and this rule 
 seems in all times to have been adhered to with more con- 
 sistency than is generally observable in decisions relating 
 to slander." 12 Thus it has been held not actionable to say 
 
 accusing her of theft. (Stewart v. Howe, 17 111. VI; and see Redway v. Gray, 31 
 Verm. (2 Shaw) 292; Dukes v. Clark, 2 Blackf. 20; Bash v. Somers, 20 Penns. (8 
 Harris) 159. See notes pp. 173, 174, and note 10, p. 195, and § 144, subd. bb. ante. 
 
 1 McClurg v. Ross, 5 Binn. 218. 
 
 2 Wilcox v. Edwards, 5 Blackf. 183. 
 
 3 O'Hanlon v. Myers, 10 Rich. Law (S. Car.), 128; and see 3 Salk. 327. 
 
 4 Not within the exceptions of the statute (Bissell v. Cornell, 24 Wend. 354 ; 
 Abrams v. Foshee, 3 Clarke, 274; Smithy. Gafford, 31 Ala. 45), and held not ac- 
 tionable to charge an attempt to commit a robbery. (Russell v. Wilson, 7 B. Monr. 
 261.) 
 
 6 Eure v. Odom, 2 Hawks, 52; and as to charge of incest, see Starr v. Gardner, 6 
 Up. Can. Q. B. Rep. O. S. 512; Watts v. Greenlee, 2 Der. 115; Gallwey v. Marshall, 
 9 Exch. 294, ante, § 141. 
 
 6 Wagaman v. Byers, 17 Md. 1S3 ; Castlebury v. Kelly, 26 Geo. 606 ; see ante, 
 § 144, subd. a., and j>ost. 
 
 7 Coburn v. Harwood, Minor, 93 ; Estes v. Carter, 10 Iowa, 400; see ante, §§ 144, 153, 
 and post. Where the crime against nature is indictable, to charge the commission of 
 
 it is actionable. (Goodrich v. Woolcot, 3 Cow. 231; 5 Cow. 714.) 
 
 8 Odiorne v. Bacon, 6 Cush. 185 ; Richardson v. Allen, 2 Chit. 657; Wierback v. 
 Trone, 2 Watts & Ser. 408. Thou hast cheated me of several pounds, held actionable. 
 (Surman v. Shilletto, 3 Burr. 1688.) 
 
 9 Williams v. Karnes, 4 Humph. 9 ; Johnson v. Morrow, 9 Port. 52."). 
 
 10 Wilby v. Elston, 18 Law Jour. 320, C. P. ; 13 Jur. 706 ; 7 Dowl. & L. 143 ; 8 C. 
 B. 142. 
 
 11 McKee v. Installs, 4 Scam. 30; Seaton v. Cordray, Wright, 101; Harrison v. 
 Stratton, 4 Esp. 218; Wilson v. Tatum, 8 Jones L. (N. Car.) 300. 
 
 " 1 Starkie on Slander, 23.
 
 216 WHAT OEAL LANGUAGE [Ch. VIII,. 
 
 of one, Thou hast procured J. S. to come thirty miles to 
 commit perjury against his father * * * and hast 
 given him £10 for his pains; or, Harris hath procured 
 and suborned one Smith to come thirty miles to commit 
 perjury against his father * * * and given Smith 
 £10 for that purpose; 1 or, Thou wouldst have killed me, 2 
 or, She would have cut her husband's throat ; 3 or, Thou 
 wouldst have taken my purse from me on the highway ; 4 
 or, Thou wouldst have murdered me ; 5 or, Sir Harbert 
 Crofts keepeth men to rob me ; 6 but for the words, He 
 sent his man A. to kill me, the court was divided if ac- 
 tionable or not ; 7 and the words, He will lie in wait to 
 rob J. S. within two days, were held actionable. s So were 
 the words, "You may well spend money at law, for you 
 can coin money out of half pence and farthings," because 
 the words implied an act, for by a mere power the plaintiff 
 could never be able to spend money at law. 9 From the 
 fact that in England a mere intent may constitute the 
 crime of treason, a charge of treasonable intention has 
 there been held to be actionable ; thus, for saying, " he is 
 a Jacobite, and for bringing in the Prince of Wales and 
 popery to the destroying of our nation," held an action 
 could be maintained. 10 
 
 8 162. It has been said the cases are uniform on the 
 
 1 Harris v. Dixon, Cro. Jac. 158; Yelv. 72. 
 
 2 Potts' Case, Vin. Abr. Act. for Words, Q. a. 8 ; cited as Dr. Poe's Case, 2 
 Bulst. 206. 
 
 3 Scott v. Hillers, Lane, 98; but it being added, and did attempt it, the latter 
 words were held actionable. 
 
 4 Godb. 202. 
 
 6 Tettal v. Osborne, cited in Storrer v. Audley, Cro. Eliz. 250. He sought tc- 
 murder me, held actionable, because sought implies more than a mere intent. (Cro. 
 Eliz. 308.) 
 
 8 Crofts v. Brown, 3 Bulst. 167. 
 
 7 Bray v. Andrews, Moore, 63; Dal. 66. 
 
 8 Sidman v. Mayo, 3 Bulst. 261. 
 
 9 Home v. Powell, Salk. 697. 
 
 10 Prinn v. Howe, 1 Bro. Pari. Ca?. tU ; and see Eaton >. Allen, 4 Co. 16,
 
 § 163.] IS ACTIONABLE. 217 
 
 point that for an imputation of evil inclinations or princi- 
 ples no action lies, unless it affects the plaintiff in some 
 particular character, or produces special damage. 1 But 
 unless by inclinations and principles are meant intentions 
 (§ 161), or the assertion be limited to oral language, the 
 dictum seems to be unwarranted. It was held actionable 
 to publish in writing that plaintiff had openly avowed 
 the opinion that government had no more right to pro- 
 vide by law for the support of the worship of the Su- 
 preme Being than for the support of the worship of the 
 Devil; 2 or that plaintiff would put his name to anything 
 that T. would request him to sign, that would prejudice 
 D.'s character; 3 and the words, a He would rob the mail 
 for one hundred dollars," spoken of a postmaster, were 
 held actionable. 4 
 
 § 163. It is held, in some cases, that words which de- 
 note the opinion or the suspicion entertained by the pub- 
 lisher, are not equivalent to a direct charge, and therefore 
 are not actionable ; 5 thus, where the words were, " I have 
 a suspicion that you, B., have robbed my house, and 
 therefore I take you into custody," it was held the judge 
 rightly directed the jury that if they believed the defend- 
 ant meant to impute only a suspicion of felony, and not 
 an absolute charge of felony, their verdict must be for the 
 defendant. 6 The words " she ought to have been trans- 
 
 1 1 Starkie on Slander, 24; Harrison v. Stratton, 4 Esp. 218. 
 
 2 Stow v. Converse, 3 Conn. 325. 
 
 3 Duncan v. Brown, 15 B. Monr. 186. 
 
 4 Craig v. Brown, 5 Blackf. 44. 
 
 5 Words wbich denote opinion or suspicion are not actionable. (Comyn's Dig. 
 Act. for Defam. F. 13 ; cited in Hodgson v. Scarlett, 1 B. & Aid. 233.) " What is the 
 difference between suspicion and belief? Suspicion may rest on no grounds, belief 
 rest3 upon some grounds." (Byles, J., Leete v. Hart, Law Rep. III. C. P. 824.) 
 
 6 Tozer v. Mash ford, 4 Eng. L. & Eq. It. 451 ; 6 Exeh. 539; 20 Law Jour. Rep. 
 (N. S.) Ex. 224. The words, " I will take him to How street (a police court so called) 
 on a charge of forgery," held not actionable, as not amounting to a charge of felony. 
 (Harrison v. King, 4 Price, 46; 1 Taunt. 431.) 
 
 15
 
 218 WHAT ORAL LANGUAGE [Cll. VIIL 
 
 ported," were held not actionable because they expressed 
 only the opinion of the speaker. 1 But the words, He 
 ouorht to be handed as much as A., who was in fact 
 hanged, were construed to charge an offense which de- 
 served hanging, and actionable ; 2 and it was held action- 
 able to say of one, if you had your deserts you had been 
 hanged before now ; a and so of the words, He hath de- 
 served his ears to be nailed to the pillory, 4 but not action- 
 able to say: Thou deservest to be hanged; 5 or, Thou 
 shouldst have sat on the pillory if thou hadst thy deserts f 
 or, Thou hast done that for which thou deservest to be 
 hanged. 7 But the words, You have done things with the 
 company for which you ought to be hanged, and I will 
 have you hanged before the first of Augu-t, were held 
 actionable ; 8 and so of the words, " I know enough he has 
 done to send him to the penitentiary." 9 It was held not 
 to be actionable to say of one, " He is a great rogue, and 
 deserves to be hanged as well as Gale," who was con- 
 demned to be hanged. Because the words show opinion 
 merely, and perhaps the speaker might not think Gale 
 deserved hanging. 10 It was held not actionable to say, I 
 will take him to Bow street (a police office so called) on 
 
 1 Hancock v. Winter, 7 Taunt. 205. The words, I will transport him for felony, 
 were held actionable. (Tempest v. Chambers. 1 Stark. Cas. 67.) 
 
 2 Eead v. Ambrklge, 6 Car. <fe P. 308 ; and see Davis v. Noak, 1 Stark. Cas. 372. 
 
 3 Down's Case, Cro. Eliz. 62. 
 
 4 Jenkinson v. Mayne, Cro. Eliz. 384. 
 6 Heake v. Moulton, Yelv. 90. 
 
 6 Anon., Moore, 243. 
 
 1 Fisher v. Atkinson, Vin. Abr. Act. for Words, G. a. 6. 
 
 * On the ground that they imputed the commission of a crime punishable by 
 hanging (Francis v. Roose, 3 M. <fc W. 191). "I will have him transported for per- 
 j ury and forgery," with special damage held actionable. (Floyd ;•. Jones, 2 Barnard, 
 101.) 
 
 9 Johnson v. Shields, 1 Dutcher, 116. A general charge of having been guilty of 
 crime without naming the particular crime, seems sufficient (Curtis v. Curtis, 4 Moo. 
 & S. 337) ; but held not sufficient to say he had been guilty of conduct unfit for pub- 
 lication. (James v. Brook, 10 Jur. 641.) 
 
 10 Bush v. Smith, 2 Jones, 157.
 
 § 164.] IS ACTIONABLE. 219 
 
 a charge of forgery. 1 It was held actionable for one to 
 say lie supposed the plaintiff was guilty of a crime; 2 or, I 
 tli ink he is a horse stealer. 3 It seems no more than the 
 expression of an opinion to say, " Two dyers have gone 
 off, and for auffht I know Harrison will be so too within 
 this time twelve month." Yet these words were held to 
 be actionable ; 4 so of the words, " All is not well with 
 Daniel Vivian ; there are many merchants who have lately 
 failed, and I expect no otherwise of Daniel Vivian " ; 5 
 and so of the words, " I am thoroughly convinced you are 
 guilty of the death of D. D." 6 But held not actionable to 
 express a supposition or belief that one went to a certain 
 place for the purpose of persuading another to commit 
 adultery with him." 
 
 § 164. One may charge another with the commission 
 of an offense as well by way of a question as by a direct 
 assertion, 8 as, Is H. the man who broke jail? 9 what art 
 thou ? a bankrupt ; 10 when will you bring home the nine 
 stolen sheep you stole from I. S. \ u have you brought the 
 
 1 Harrison v. King, 4 Price, 46; 7 Taunt. 431. 
 
 2 Dickey v. Andrews, 32 Verm. 55. 
 
 3 Stitch r. Wisedome, Cro. Eliz. 348. 
 
 4 Harrison v. Thornborough, 10 Mod. 11. 
 
 5 Vivian's Case, 3 Salk. 326. 
 
 6 Peake v. Oldham, Cowper, 275 ; 2 W. Black. 960. 
 
 7 Dickey v. Andrews, 32 Verm. 55, and as to a charge of inciting one to commit a 
 crime (see Passie v. Mondford, Cro. Eliz. 747 ; Lady Cockaine's Case, Cro. Eliz. 49 ; 
 Eaton v. Allen, 4 Co. 16.) The dicta and decisions that words denoting opinion are 
 not actionable, must have their origin in the supposed distinction between matters of 
 fact and matters of opinion. See this distinction discussed in a case of misrepresen- 
 tation, Haight v. Hoyt, 19 N. Y. 468, in an Essay on the influence of authority in 
 matters of opinion, by George Cornewall Lewis, and in the review of that work— Ed- 
 inburgh Review, April, 1860; also in Whateley's Logic; and see the distinction 
 noticed, Root v. King, 7 Cow. 629 ; Reg. v. Ardley, Law Rep. I. Cro. Cas. Res. 304. 
 
 8 Gorham v. Ives, 2 Wend. 534; Sawyer v. Eit'ert, 2 Xev. <fc M. 511. 
 
 9 Hotcliki^s v. Oliphant, 2 Hill, 510. 
 
 10 Jordan v. Ly-ter, Cro. Eliz. 273, pi. 1. 
 
 11 Hunt v Tliimblethorp, Moore, 418.
 
 220 WHAT ORAL LANGUAGE [Ch. VHI. 
 
 £40 you stole ? 1 wilt thou murder my sister as thou didst 
 thy wife? 2 who stole tiie bell-ropes? 8 Asking as to a 
 forgery, whether the witness did not think it was in G.'s 
 handwriting, and asserting that he had shown it to some 
 persons who said it was in G.'s handwriting, would seem 
 to show an intent to impress a belief of G.'s guilt of the 
 forgery. 4 
 
 § 165. In some of the older cases it was held that 
 "adjective words," or "words spoken adjectively," do not 
 confer a right of action. But, as was well said by Lord 
 Coke, "sometimes adjectives will maintain an action and 
 sometimes not." 5 Thus it was held not actionable to call 
 one "conjuring knave, 110 or "murderous villain," 7 or 
 " pocky whore," 8 or " rebellious knave ; " 9 but held action- 
 able to call one a " traitorous knave," 10 or a " traitor 
 knave." n We conceive the true rule to be, that when the 
 word imputes an act it is actionable, and when it imputes 
 an intention or inclination only it is not actionable. 12 
 Thus it has been held not actionable to call one a " thiev- 
 ish knave," or to say to one " thou hast thievishly taken 
 my money," because the word thievish or thievishly im- 
 plies an inclination only; 13 but to call one a thieving 
 
 1 Mayott v. Gibbons, 2 Rolle R. 166. 
 
 2 Brown v. Charlton, Keb. 359, pi. 52. 
 
 s Jaeksou v. Adams, 2 Scott, 599 ; 2 Bing. N. C. 402. The words in this case were 
 held not actionable. See in note p. 173, ante. 
 * Gorham v. Ives, 2 Wend. 534. 
 
 5 4 Cuke, 19. 
 
 6 Killick v. Barns, 2 Bulst. 138. 
 
 7 Ld. Raym. 236. So "murderous quean" held not actionable. (Vin. Abr.. Act. 
 for Words, I. a. 4.) 
 
 8 Gulford's Case, 2 Rolle R. 71; and "pocky rascal," see Vin. Abr., Act. for 
 Words, G. b. 5. 
 
 Ward v. Thorne, Cro. Eliz. 171 ; Booth v. Leach, Lev. 90. 
 
 10 Id. 
 
 11 Selby v. Carryer, 2 Bulst. 210. 
 
 1J 1 Starkie on Slander, 71, and § 162, ante. 
 
 H Vin. Abr., Act. for Words, I. a. 4, 11; Robins v. Hildredon, Cro. Jac. 65.
 
 § 166.] IS ACTIONABLE. 221 
 
 rogue was held actionable because thieving implies an act. 1 
 "Thieving puppy" was held actionable, 2 and so were 
 "thievish pirate, 1 ' 3 "bankrupt knave," "pocky knave," 4 
 and "bankrupt skrub." 5 "Bankrupt rogue" was held 
 not actionable when spoken of an individual as such; 6 
 but those words, when spoken of one in trade (a shoe- 
 maker), were held actionable. 7 " Bankruptcy knave " was 
 said not to be actionable because the phrase implies only 
 bankrupt-like knave. 8 And so " Cuckoldy rogue " was 
 held actionable. 9 A partici])le, it is said, implies an act 
 done,' and therefore held actionable to call one a " murder- 
 ing rogue," 10 or a " buggering rogue," u or to say he is rob- 
 bing or ravishing. 12 
 
 § 166. Words charging a burning amounting to arson, 
 whether at common law or by statute, are actionable ; 13 
 
 1 Hunt v. Merrychurch, 2 Keb. 440; Dorrell v. Grove, Freem. 279. 
 
 2 Little v. Barlow, 26 Geo. 423 ; Pierson v. Stiortz, 1 Morris, 136, and see post, 
 § 169. 
 
 3 Vin. Abr., Act, tor Words, I. a. 1 2. 
 
 4 Inglebath v. Jones, Cro. Eliz. 99 ; but it was doubted in Robinson v. Mellor, Cro. 
 Eliz. 843, if "bankrupt knave" was actionable, and the phrase was held not action- 
 able when spoken of a tanner. (York v. Cecil, Browl. 16.) The words "base, beg- 
 garly, bankrupt knave" were held actionable in Still v. Finch, Cro. Car. 381 ; and so 
 of the words bribing knave spoken of an attorney. (Yardley v. Ellis, Hob. 8.) 
 
 5 Wilson v. Crow, Sty. 75. 
 
 6 Loyd v. Pearse, Cro. Jac. 424. 
 
 7 Langley v. Colson, Godb. 151. 
 
 8 Selby v. Carrier, Cro. Jac. 345 ; but said otherwise, Booth v. Leach, Lev. 90. 
 See Vin. Abr., Act. for Words, I. a. 3. 
 
 9 The words were spoken in London, and held actionable as implying his wife was 
 a whore. 1 Str. 471. 
 
 10 Green v. Lincoln, Cro. Car. 318. 
 
 n Collier v. Bourn, 2 Keb. 377; or "perjured knave," (Staverton v. Relfe, Yelv. 
 160 ;) or " perjured rogue " (O.'ton v. Fuller, Lev, 65) ; but where the word swere, Thou 
 art a perjured knave, that is to be proved by a stake that parts the lands of J. S. and 
 J. D., it was doubted if they were actionable. (Brecheley v. Atkins, Yelv. 10.) 
 
 12 Sybthorp's Case, 1 Rolle Abr. 176; 1 Starkie on Slander, 72. 
 
 13 Brady v. Wilson, 4 Hawks, 93: Case v. Buckley, 15 Wend. 327 ; Jones v. Ilun- 
 gerford, 4 Gill & Johns. 402; House v. House, 5 Har. and Johns. 124; Wallace v. 
 Young, 5 B. Monr. 155. Saying, He [plaintiff] has been at different times close abyut
 
 222 WHAT OEAL LANGUAGE [Cll. VHT. 
 
 but charging one with burning his own store, 1 or the barn 
 of another, is not actionable. 2 But to charge one with 
 burning his own store to defraud the insurers would be 
 actionable. 3 
 
 § 167. A general charge of forgery made orally is ac- 
 tionable ; 4 and so to charge, " You are a rogue, for you 
 forged rny name," 5 or " you signed my name without my 
 permission." 6 But held not actionable to say, " Thou hast 
 forged my hand," or " thou are a forger." T The writing 
 charged to have been forged must it seems be one which 
 if genuine would operate as the foundation of another's 
 liability. 8 It has been held actionable to charge the 
 forgery of a deposition, 9 a warrant, 10 a petition to the legis- 
 
 where C.'s gin-house was burned, in disguise, held not to amount to a charge of 
 arson, and not actionable. (Waters v. Jones, 3 Port. 442.) See ante, § 144, subd. c. 
 
 1 Bloss v. Tobey, 2 Pick. 310; McNab v. McGrath, 5 Up. Can. Q. B. Rep. O. S. 
 S16 ; or a building belonging to the wife of plaintiff, but occupied by plaintiff. (Red- 
 way v. Gray, 31 Verm. 292.) 
 
 3 Barham v. Nethersall, Yelv. 21; Bundy v. Hart, 46 Mo. 460; charging one 
 with burning a school-house was held actionable (Wallace v. Young, 5 B. Monr. 155); 
 and so of a gin-house. (Waters v. Jones. 3 Port. 442.) 
 
 3 1 Am. Lead. Cas. 117, 3d ed. ; and see Tebbets v. Goding, 9 Gray, 254; Bretton 
 v. Anthony, 103 Mass. 37; contra, Redway v. Gray, 31 Verm. 292. 
 
 4 Alexander v. Alexander, 9 Wend. 141 ; Andrews *'. Woodmansee, 15 Wend. 
 232; Nicolls v. Hayes, 13 Conn. 155; Arnold v. Cost, 3 Gill <fe Johns. 219. Thou 
 hast forged a deed or bond actionable, but thou hast forged a writing not actionable 
 (Motley v. Shiny, Keb. 273 ; Austie v. Mason. Cro. Eliz. 554; Reynell v. Sackfield, 2 
 Bulst. 132 ; Aier v. Frost, Rolle R. 431 ; S. C. Fro^t v. Ayer, 3 Bulst. 265 ; Andrews 
 v. Bird, Het. 31), unless with an innuendo, a deed. (Anon. Sid. 16; and see Goodale 
 v. Castle, Cro. Eliz. 554.) You have falsely forged your father's hand, and thereby 
 falsely have procured your father's tenants to pay rents to you which were due to 
 your sister, held not actionable. (A r enard v. Woton, Cro. Eliz. 166.) See ante, t; 141, 
 subd. k. 
 
 5 Jones v. Hearne, 2 Wils. S7. 
 
 6 Creelman v. Marks, 7 Blackf. 2S1. 
 
 7 Via. Abr., Act. for Words, G. a. 20. 
 
 8 Jackson v. Weisiger, 2 B. Monr. 214. You say you were authorized by P. to 
 draw bills on him. You never were authorized ; if you have any letters from him 
 they are forged. These words held not actionable. Mills v. Taylor, 3 Bibb, 469. 
 
 9 Atkinson v. Reding, 5 Blackf. 39 ; or forging writs. (Hungerford v. Watts, 4 
 Lev. 181 ; Sale v. Marsh, Cro. Eliz. 178; contra, Halley v. Stanton, Cro. Car. 2t">S.) 
 
 10 Stone v. Smalcombe, Cro. Jac. 648 ; Thomas v. Axworth, Hob. 2.
 
 § 168.] IS ACTIONABLE. 223 
 
 lature for a grant of land ; x and so of a letter containing 
 these words, " I have to inform you I have received your 
 money, am 1 want you to come and receive it." 2 
 
 § 168. A general charge of being a murderer, 3 or of 
 having killed another, is actionable. 4 Thus held action- 
 able to say " thou hast killed a man ; " 5 " you killed my 
 brother ; " 6 " you killed one negro and nearly killed 
 another ; " 7 " George Button is the man who killed my hus- 
 band ; " & " I will call him in question for poisoning his own 
 aunt, and make no doubt but to prove he hath poisoned 
 his aunt ; " 9 and the words " he killed my child ; it was 
 the saline injection that did it," with an innuendo 
 that it was meant to charge the plaintiff with feloniously 
 
 1 Alexander v. Alexander, 9 Wend. 14. 
 
 2 Ricks v. Cooper, 3 Hawks, 58*7. See § 144, subd. k, ante. 
 
 3 Dudley v. Robinson, 2 Iredell, 141 ; Vin. Abr., Act. for Words, G. a. 11, ante, § 
 144, subd. m. s.; but the words, Thou art a murderer and a bloody fellow, and I am 
 afraid of you, were held not actionable. (Id. 25.) To call one murderer because he 
 murdered a dog, no', actionable ; dictum, Waggoner v. Richmond, Wright, 173 ; see 
 note p. 160, and note 2, p. 184, ante; and the words "They are highwaymen, rob- 
 bers, and murderers," appearing to be spoken in reference to a transaction not involv- 
 ing robbery or murder, were held not actionable. (Van Rensselaer v. Dole, 1 Johns. 
 Cas. 279.) 
 
 4 Johnson v. Robertson, 4 Port. 486 ; Chandler v. Holloway, id. 18. It need not 
 be alleged the party charged to have been killed is in fact dead. (Carroll v. White, 
 33 Barb. 618 ; see an'e, notes 1, p. 174 and 3, p. 214, and § 144, subd. m. s.) 
 
 5 Cooper v. Smith, Cro. Jac. 423 ; Banfield v. Lincoln, Fream. 278. 
 
 6 Taylor v. Casey, Minor, 258. Thou art a rogue and rascal, and hast killed thy 
 wife, held actionable. (Wilner v. Hold. Cro. Car. 489:) 
 
 7 Hays v. Hays, 1 Hump. 402. 
 
 8 Button v. Hayward, 8 Mod. 24. Held actionable to say, Thou didst poison thy 
 husband (Gardiner v. Spurdance, Cro. Jac. 438 ;) or, T (plaintiff) killed thy husband 
 (Toose Case, Cro. Jac. 306) ; or, Thou hast killed a man (Godfrey v. More, Cro. Eliz. 
 317); or, Thon hast killed my wife (Talbot's Case, Cro. Eliz. 823); or, Thou hast 
 killed thy wife (Wilner v. Hold, Cro. Car. 489). 
 
 9 Webb v. Poore, Cro. Eliz. 569. See ante, § 144, subd. x. Not actionable to 
 say, " It could be proved by many violent presumptions that he (plaintiff) was the 
 death of P." (Weblin v. Meyer, Yelv. 153;; or, " I doubt not but to see thee hanged 
 for killing Mr. Sydman's man who was murdered." (Anon. Jenk. 302.) It was held 
 actionable to say, "Thou hast murdered A. thy late servant." If A. is not dead, or if 
 there were no such person, the scandal is the greater (Green v. Warner, 3 Keb. 
 ■624) ; or, Thou didst kill thy master's cook. (Cooper v. Smith, Cro. Jac. 423 ; and 
 see Barons v. Ball, id. 331.)
 
 224 WHAT ORAL LANGUAGE [Ch. VHT. 
 
 killing a child by improperly and with gross negligence 
 and culpable want of caution administering the injection." 1 ' 
 
 § 160. A general charge of being a thief 2 is action- 
 able, as to call one " a hog thief," 3 "a bloody thief." 4 
 It is actionable to say of one he is " a thieving person, he 
 stole and ran away ; " 5 or " he is a thief, he stole my wheat 
 and ground it and sold the flour to the Indians ; " 6 or " you 
 are a thief, you have robbed me of my bricks." T The 
 charge is not the less actionable because made indirectly. 8 
 Thus it was held actionable to say " tell him (plaintiff) 
 he is riding a stolen horse, and has a stolen watch in his 
 pocket ; " 9 or, " I saw him take corn from A/s crib twice, 
 and look round to see if any person saw him measuring ; " 10 
 or, " You get your living by sneaking about when other 
 people are asleep. What did you do with the sheep you 
 killed ? Did you eat it ? It was like the beef you got the 
 negroes to bring you at night. Where did you get the 
 
 1 Edsall v. Russell, 5 Scott X. R. 801 ; 2 Dowl. N. S. 614. 4 Man. <t. G. 1090; 
 and see Carroll v. White, 33 Barb. 615, and ante, § 144. The words "That rogue 
 Davies, the apothecary, hath poisoned my uncle; I will have him digged up again, 
 and hang him," held actionable. Davies v. Okeham. Sty. 245. 
 
 3 Dudley v. Robinson, 2 Iredell. 141 ; and see ante, note 2, p. 221; or of having 
 been a thief, ante, note 1, p. 209 ; and see ? 144, subd.. p. r. z. bl>. dd. ee. 
 
 3 Hogg v. Wilson, 1 X. <fc M. (So. Car. |, - 
 
 4 Fisher v. Rottereau, 2 McCord, 189. 
 
 5 Alley v. Neely, 5 Blackf. 200; and see ante, note- 2, p. 221. 
 
 6 Parker v. Lewis, 2 Greene (Iowa), 311. 
 
 7 Sloman v. Dutton, 10 Bin^. 402; 4 M. A: Sc. 174. Ayresis a thief and hath 
 stolen my apple trees, actionable. Ayres' Case, 2 BrownL 280. 
 
 8 McKennon v. Greer, 2 Watt?, 352; Miyson r. Sheppard, 12 Rich. Law (So. 
 Car.), 254. I believe he will steal, and I believe he did steal, amount to a charge of 
 larceny. (Dottarer if. Bushev, 1.6 Penn. St. R. 2(4; and ante, g 144, subd. bb.) The 
 wife of B, was asked by C, wherefore will your husband hang S. She answered, for 
 breaking our house in the night and stealing our goods, held actionable although 
 spoken in answer to a question. (Hayward v. Naylor, 1 Rolle Abr. 50.) So publish- 
 ing in writing that certain property had been stolen, and the thief was believed to be 
 plaintiff, held actionable. (Simmons v. Holster, 13 Min. 249.) 
 
 9 Davis v. Johnston, 2 Bailey, 5 79. 
 
 10 Jones v. McDowell, 4 Bibb, 18S.
 
 § 170.] IS ACTIONABLE. 225 
 
 little wild shoats you always have in your pen \ You are 
 an infernal roguish rascal ; " ! or, " There is the man who 
 stole my horse and fetched him home this morning." 2 A 
 charge by one partner against his copartner o f" pilfering " 
 out of the store, held actionable ; 3 and held actionable to 
 say of one " he took my wood, and is guilty of any and 
 everything that is dishonest ; " 4 or, " he robbed the United 
 States mail ; " 5 and it is actionable to charge one having 
 the custody of goods with stealing them ; 6 but held not 
 actionable to charge a weaver with stealing filling sent to i 
 his house to be woven into cloth. 7 
 
 § 170. A charge of larceny, that is, the taking animo 
 furandl the personal property of another, the subject of 
 of larceny, is actionable ; 8 thus the words, " You have 
 stolen my belt," 9 or " my boards," 10 or " my tea," u were 
 held actionable. And so of the words " You robbed me, 
 for I found the thing you done it with ; " 12 or, " You 
 
 1 Morgan v. Livingston, 2 Rich. 573. 
 
 2 Bonner v. Boyd, 3 Har. <fc J. 278. 
 
 3 Beckett v. Sterrett, 4 Blackf. 499. Actionable to say, She is as very a thief or 
 a worse thief than any that robbeth by the highway. (Ratcliffe v. Shubley, Cro. 
 Eliz. 224.) 
 
 4 Dottarer v. Bushey, 16 Penn. St. Rep. 204. 
 
 5 Jones v. Chapman, 5 Blackf. 88. 
 
 6 Gill v. Bright, 6 B. Monr. 130. 
 
 7 Hawn v. Smith, 4 B. Monr. 385 ; but see ante, in note, p. 173, and § 144. To 
 charge one with stealing cotton held actionable, although the charge was made in al- 
 lusion to cotton which the plaintiff had to gin for the defendant's brother (Stokes v. 
 Stuckey, 1 M'Cord, 562) ; and as an overseer of an estate may be guilty of stealing 
 the goods of his employer entrusted to him. it was held actionable to charge an over- 
 seer with stealing corn of his employer. (Wheatley v. Wallis, '■> liar. & J. 1.) 
 
 " Galloway v. Courtney, 10 Richard. 414; Blanchard v. Fisk, 2 N. H. 398; Bonner 
 v. Boyd, 3 Ear. <fe Johns. 278; Wheatley v. Wallace,:; id. 1; stokes v. Stuckey, 1 
 M'Cord, 562 ; Gill v. Bright, 6 B. Monroe, 130 ; Gaul *'. Fleming, 10 Ind. 263 ; and see 
 ante, % 144, subd. p. z. lb. dd. ce. and note 3, p. 214. A charge of taking clothes animo 
 furavdi from a dead body, hold acta liable. (Wonson v. Sayward, 13 Pick. 402.) 
 
 9 St. Martin v. Desnoyer, 1 Min. 156; and ro of the words, Thou host stolen my 
 goods, and I will have thy neck. (Fleming v. Jales, 2 Erjwal. 230.) 
 
 10 Burbank v. Horn, 39 Maine (4 Heath), 232. 
 
 11 Coleman v. Playstead, 36 Earb. 26. 
 
 12 Rowcliffe <•. Edmonds, 7 M. & W. 12.
 
 226 WHAT ORAL LANGUAGE [Ch. VIII. 
 
 robbed W. ; " 1 but the words " He robbed the treasury 
 and bought a farm with it, 2 or "Bear witness he hath 
 stolen my cloth," held not actionable. 3 Charging plaintiff 
 with having stolen a barrel of pork may or may not be 
 actionable, according to the circumstances of the publica- 
 tion ; 4 but semble to render them non-actionable it must 
 appear that the facts could not in any view amount to a 
 felony. 5 Where the words were " I have lost a calf-skin 
 out of my cellar. * * * There was no one in the 
 cellar but you, Bornman and Gray. I do not blame you 
 nor Gray, but Bornman must have taken it," they were 
 held actionable. 6 Charging one with stealing a key out 
 of the lock of a door, held actionable. 7 By the laws of 
 
 1 Tomlinson v. Brittlebank, 1 Nev. & M. 455 ; 4 B. & Adol. 630. Tbou bast 
 robbed the church, and thou hast stolen the lead off from the church, held actionable. 
 (Benson v. Morley, Cro. Jac. 153.) And so of the words: He hath robbed the church. 
 (Sibthorpe's Case, Jones, 366.) 
 
 2 Allen v. Hillman, 12 Pick. 101, and see in § 144, subd. z. 
 s Bury v. Wright, Yelv. 126. 
 
 4 Phillips v. Barber, 7 "Wend. 439; and see § 144. You (plaintiff) have stolen a 
 file of bills out of my desk, with an innuendo that by file of bills was intended a tile 
 of unsatisfied accounts, held not actionable. (Blanchard v. Fisk, 2 N. Hamp. 398.) 
 
 5 Laurie v. Wells, 7 Wend. 175; Alexander v. Alexander, 9 id. 141; Case >•. 
 Buckley, 15 id. 327. B. spoke of A., that A and B. and one C. sat down to gamble 
 in a house in D., and while there, C. took from his pocket-book a five dollar bill and 
 proposed to bet one dollar ; that after the bill was put down on a chance it was 
 missing, and search was made for it but it could not be found, whereupon the parties 
 agreed to submit to a search, which was made but the bill was not found ; that after 
 this search, all the parties went out of the house to search for the missing bill ; near 
 the window they found a pocket-book with the clasp unfastened, and in it was the 
 missing bill; that C. took out the bill and banded the pocket-book to A., who took it, 
 and then said, " Boys, don't tell this on me. for if you do it will ruin me." Held 
 that these words did not of themselves, import a charge of larceny. (Prichard v. 
 Lloyd, 2 Carter. 154.) 
 
 6 Bornman v. Boyer, 3 Binn. 515 ; ante, i 144, subd. dd. 
 
 7 Hoskins v. Tarrence, 5 Blaekf. 417, this decision was on the hypothesis that 
 stealing a key out of the lock of a door is larceny. It was S3 held in Rex v. Hedges, 
 1 Leach C G 201, 4 ed., but is said to be " clearly wrong." Heard on Libel, p. 37, 
 note 4. Actionable to say: You never thought well of me since G. [ plaintiff] did 
 steal my lamb (Grave's Case, Cro. Eliz. 2S9); or, I dealt not so unkindly by you 
 [ plaintiff] when you stole a sack of corn. (Cooper w. Hakewell, 2 Mod. 58 ) J W. 
 [ plaintiff] was in question for stealing a mare, and hue and cry went out after him, 
 and he durst not show his face hereabouts, doubtful if actionable. (Gray o. Wnylo.
 
 § 171.] IS ACTIONABLE. 227 
 
 Pennsylvanvia taking and carrying away fruits, vegetables, 
 <fec, whether attached to the soil or not, is a misdemeanor, 
 yet where the words were " Mrs. Reynolds has stolen 
 corn out of Gubbles' field," "he was confident, Pat. Rey- 
 nolds' wife stole Gubbles' corn," held the words were not 
 actionable, if they referred to growing corn. 1 " He sheared 
 two of Zack. Austin's sheep," " He sheared two of Zack. 
 Austin's sheep and kept the wool," with an innuendo that 
 a larceny was intended, but without any colloquium held 
 not actionable. 2 An action will not lie, without allegation 
 of special damage for the words, "you had a share in 
 breaking into the store," alleged to refer to a robbery of 
 a store belonging to the plaintiff and defendant as co-part- 
 ners. 3 
 
 § 171. A direct charge of perjury is actionable per 
 sef and it is actionable to say of one, " The Reverend 
 
 Sty. 159.) A. said to B. [the defendant]. My sheep were feloniously stolen away; 
 B. replied, I know who took them — it was J. S. ; held actionable. (Helly v. Hender, 
 3 Bulst. 83.) Go follow suit against W. [ the plaintiff] for stealing thy two kine, and 
 hang him — held actionable. (Willymote v. Welton, Cro. Eliz. 904.) So were tbe 
 words, " He is infected of the robbery and murder lately committed, and doth smell 
 of the murder." (Hawley v. Sidenham, Vin. Ahr. Act. for Words, P. a. 14.) You 
 might have known your own sheep and not have stolen mine, court divided if action- 
 able or not. (Thompson v. Knott, Telv. 144.) Thou [plaintiff] hast stole my mare 
 or was consenting to it, held not actionable ; the plaintiff might consent and yet be 
 faultless, and the latter part of the sentence controlled the first. (Anon., Noy, 172.) 
 S. [plaintiff] did steal a mare, or else G. is forsworn, not actionable, not being a 
 a direct charge of stealing. (Sparkkani w. Pye, Cro. Jac. 532.) So the words " you 
 as good as stole the canoe of J. H.," were held not actionable per se (Stokes v. Arey, 
 8 Jones L. (N. Car.) 66. 
 
 1 Stitzell v. Reynolds, 9 P. F. Smith, 488. 
 
 2 Brown v. Piner, 6 Ky. (Bush), 596. 
 
 3 Aefele v. Wright, 17 Ohio, 238. 
 
 . 4 Newbit v. Statuck, 35 Maine (5 Red.), 315; Dell v. Farnsworth, 11 Humph. 608; 
 Eccles v. Shannon, 4 Harring. 193; Cook v. Bostwick, 12 Wend. 48; Hopkins v. 
 Beadle, 1 Cai. 347 ; Kern v. Towsley, 51 Barb. 385 ; Gorton v. Keeler, id. 475 ; 
 Commons v. Walters, 1 Port. 377; Hall v. Montgomery, 8 Ala. 510; Haws v. Stan- 
 ford, 4 Sneed, 520; Lee v. Robertson, 1 Stew. 138 ; Chapman v. Gillett, 2 Conn. 40; 
 as to perjured knave, see note 11, p. 221 ante. A., speaking with reference to a complaint 
 preferred by him before the grand jury against B., said that " he went before the 
 grand jury and asked them if they wanted any more witnesses, and they said they 
 had witnesses enough to satisfy them ; " held, actionable, if he thereby meant to im- 
 pute the perjury to B. (Run It'll v. Hutler, 7 Barb. 253.) Saying of plaintiff he
 
 228 WHAT ORAL LANGUAGE [Ch. Vffl. 
 
 Thomas Smith is a perjured man," 1 or "He perjured 
 himself," 2 or " He committed perjury by swearing in his 
 vote at the school district meeting ; 3 and where the 
 defendant, speaking of an allegation in an affidavit made 
 by the plaintiff, said it was not true and plaintiff had 
 perjured himself, was held to be actionable if the intent 
 was to impute perjury. 4 The words "he swore a false 
 oath," or " he swore a lie," or " he swore false," are not 
 actionable per se, nor can an action be maintained for them 
 merely by an innuendo that they imputed or were intended 
 to impute, perjury. There must be an averment and 
 colloquium of a judicial proceeding. 5 To say of one, he 
 
 was under a charge of prosecution for perjury, and that G. W. (an attorney of that 
 name) had the attorney-general's directions to prosecute the plaintiff for perjury, 
 held actionable after verdict for plaintiff. (Roberts v. Camden, 9 East, 93.) And 
 saying "I would not swear to what C. W. has for the town of R. ; P. W. is honestly 
 mistaken but C. W. is wilful," imputes perjury to C. W. and is actionable. (Walrath 
 v. Nellis, 17 How. Pr. R. 72.) See ante, § 144 subd. u. A charge of subornation 
 of perjury is actionable (Cro. Jac. 158; Beers v. Strong, Kirby, 12); as, You hare 
 caused this boy to perjure himself (Brownl. 2). 
 
 1 Cummin v. Smith, 2 S. <fe R. 440. 
 
 5 Sandford v. Gaddis, 13 111. 329. I will prove tbee a perjured knave, actionable. 
 (Staverton v. Relfe, Yelv. 160.) 0. [plaintiff] says I am a perjured rogue; he is a 
 perjured rogue as well as I — held actionable. (Orton v. Fuller, Lev. 65.) If I list I 
 can prove him perjured — held not to impute perjury, and therefore not actionable. 
 (Davis' Case, Hutt. 127.) 
 
 3 Crawford v. Wilson, 4 Barb. 504. 
 
 4 Cook v. Bostwick, 12 Wend. 48. The words " he has delivered false evidence 
 and untruths in his answer to a bill in chancery," held not actionable. (1 Rolle Abr. 
 70; 3 Inst. 167.) Where the allegation was "we have no reply to make to a lad 
 [ plaintiff] convicted of perjury, by the solemn oath of a gentleman, whose veracity 
 is unimpeached," and the context showed that, by convicted it was really meant that 
 the plaintiff was contradicted by the gentleman referred to, held error to instruct the 
 jury that the charge, " convicted of perjury," was actionable, per se, as such instruc- 
 tion implied that the charge was of technical perjury. (I'ugh v. McCarty, 40 Geo. 
 444.) 
 
 5 Packer v. Spangler, 2 Binn. 60 ; Sheely v. Biggs, 2 Har. «fc J. 363 ; Power v. 
 Miller, 2 McCord, 220; Martin v. Milton, 4 Bibb, 99; Sluder v. Wilson, 10 Ire. 92 : 
 Beswick v. Chappel, 8 B. Mon. 486 ; Roella v. Follow, 7 Blackf. 377 : Vaughan v. 
 Havens, 8 Johns. 109; Chapman v. Smith, 18 Johns. 78; Hopkins v. Beadle, 1 Oai 
 347; Phinele v. Vaughan, 12 Barb. 215; Barger v. Barger, 18 Penn. State Rep 
 Blair v. Sharp, Breese, 11; McManus v. Jackson, 28 Miss. (7 Jones) 56; Watson v. 
 Hampton, 2 Bibb. 319; Shinloub v. Ammerman, 7 Ind. 347 ; Mebane v. Sellars, 3 
 Jones' Law (N. Car.), 199 : Harris ». Woody. 9 Mis. 1 13 ; Horn v. Foster. 19 Ark. 346 ;
 
 § 172.] IS ACTIONABLE. 229 
 
 is "mainsworn," was held actionable when spoken at a 
 place where mainsworn meant perjured. 1 A charge of 
 being forsworn is not actionable per se ; it imports only 
 "false swearing," and not "perjury." But a charge of 
 " false swearing " may convey to the minds of the hearer 
 an imputation of perjury, and when it does such a 
 charge is actionable per se,' 2 as where, after a charge 
 of false swearing, the defendant added "I will attend 
 to the grand jury about it ;" 3 or, " If you had your deserts 
 you would have been dealt with in the time of it ; " 4 or, 
 " For which you would now stand indicted ; " 5 or, " To 
 my injury $600 ; " 6 or, " and done it meaning to cut my 
 throat ; " T or, " and I will put him through for it if it costs 
 me all I am worth." 8 And held actionable to say of one, 
 
 Harvey v. Boies, 1 Penn. 12 ; Dalrymple v. Lofton, 2 Speer, 58S ; Shaffer v. Knitzer 
 1 Binn. 537 ; Hall v. Montgomery, 8 Ala. 510; Walrath v. Nellis, 17 How. Pr. R. 72; 
 Ward v. Clark, 2 Johns. 10 ; Stafford v. Grier, 1 Johns. 505 ; Robertson v. Lea, 1 
 Stew. 141, but see Rue v. Mitchell, 2 Dail. 58; Canterbury a. Hill, 4 Stew. & Porter, 
 224; Smale?>. Hammon, 1 Bulst. 40; Lewis v. Soule, 3 Mich. 514 ; Hall v. Weedon, 
 8 Dowl. & R. 140; Colomes' Case, Cro. Jac. 204. "Mr. H.'s oath is not be taken, for 
 he has been a forsworn man. I can bring people to prove it, and they that know him 
 will not sit in the jury-box with him." "Without any colloquium, referring the words 
 to the conduct of the plaint. ff as a juryman, and no special damage, held not in them- 
 selves actionable, and judgment arrested. (Hall v. Weedon, 8 D. & R, 140.) "Stan- 
 hope hath but one manor, and that he got by swearing and forswearing." (Stanhope 
 v. Blith, 4 Co. 15.) In Arkansas, by statute, to charge a person with having sworn 
 falsely or sworn a lie is actionable, without an averment or proof of special damage, 
 or a cMoijuium. (Carlock v. Spencer, 2 Eng. 12 ; McGough w. Rhodes, 7 Eng. 625.) 
 And so in Mississippi. Crawford v. Mellton, 12 S. & M. 328. See ante, § 153. 
 'Hob. 12. 
 
 9 Sherwood v. Chace, 11 Wend. 38 ; Crookshank v. Gray, 20 Johns. 344 ; McClaughry 
 v. Wetmore, 6 Johns. 82; Jacobs v. Fyler, 3 Hill, 572; Coons v. Robinson, 3 Barb. 
 625; Morgan v. Livingson, 2 Rich. 573; IIdlhou3e v. Dunning, 6 Conn. 391. 
 Defendant said, Thou art a /•>rsworn fellow; plaintiff answered, Will you say that I 
 am p rjured? defendant sahl, Yes. if you will have it so — held not actionable. 
 (Levurmore v. Martin, Cro. Eliz. 297.) 
 
 3 Gilman v. Lowell, 8 Wend. 573. 
 
 4 Phincle v. Vaughan, 12 Barb. 215. 
 6 I'eltan v. War J., 3 Cai. 73. 
 
 6 Jacobs v. Fyler, 3 Hill, 572. 
 1 Coons v. Robinson, 3 Barb. 625. 
 * Come v. Angell, 14 Mich 340.
 
 230 WHAT ORAL LANGUAGE [Cll. VIII. 
 
 " Thou art a forsworn man. I will teach thee the price of 
 an oath, and will set thee on the pillory ; " 1 or, " You swore 
 a lie, and I can prove it," used in reference to a judicial 
 proceeding in which the plaintiff had testified as a wit- 
 ness ; 2 or, under similar circumstances, the words, " He 
 swore a lie." 3 Where the charge is of false swearing 
 before a particular court or tribunal, or in a particular 
 proceeding, naming it, the charge is actionable if the court 
 or tribunal named is one authorized to administer an oath, 
 or if the proceeding named is a judicial proceeding ; thus 
 it has been held actionable to say of one, he swore false 
 before the grand jury ; 4 or, "Thou art a forsworn knave, 
 and I will prove thee to be forsworn in the spiritual 
 court ; " 5 or, " Thou wast forsworn before my Lord Chief 
 Justice in evidence ; " 6 or " before a justice of the peace ; " r 
 or, " in Hston Court," a court leet so named ; 8 or, " I had 
 a lawsuit with A., and B. (the plaintiff) swore falsely 
 against me, and I have advertised him as such ;" 9 or, 
 "You swore false at the trial of your brother John." 10 
 Held not actionable to say of one, " Thou wert for- 
 
 1 1 Starkie on Slander, 91. 
 
 a Lewis v. Black, 27 Mass. (5 Cash.) 425; Rhineheart v. Potts, 7 Ired. 403; 
 Rainey v. Thornbury, 7 B. Monr. 475; Sherwood v. Cliace, 11 Wend. 3S. 
 
 3 Harris v. Purely, 1 Stew. 231 ; and see Wilson v. Harding, 2 Blackf. 190 ; Gibbs 
 v. Tucker, 2 A. K. Marsh, 219; and 6 T. R. 691. 
 
 4 Perselly v. Bacon, 20 Miss. 330. 
 
 ' Shaw ». Thompson, Cro. Eliz. 609; and see Rex v. Foster, Russ. <fe R. Cr. Cas. 
 Res. 459 ; Stat. 40 Geo. 4, ch. 76. False swearing before an ecclesiastical tribunal is 
 not perjury in Pennsylvania. (Harvey v. Boies, 1 Penns. 12.) contra in Connecticut. 
 (Chapman v. Gillet, 2 Conn. 40.) 
 
 6 Le. 127. 
 
 1 Gurneth v. Derry, 3 Lev. 166 : 4 Coke, 17. 
 
 8 Marshall v. Dean, Cro. Eliz. 720. 
 
 8 Magee v. Stark, 1 Hump. 506. The words, I had a lawsuit, imply a judicial 
 proceeding. (Id.) 
 
 10 Fowle v. Robbins, 12 Mas?. 49S. The words were held actionable after ver- 
 dict ; and see Cro. Car. 378 ; but the words, you swore falsely on the trial of a case 
 between me and A. before Squire J., were held not actionable. (Dalrymple v. Lofton. 
 2 Speer, 588.)
 
 §171.] IS ACTIONABLE. 231 
 
 sworn at Whitechurcli court;" 1 or "Thou art a false and 
 forsworn knave, and that I will prove, for thou forswore 
 thyself against Peter Ruinball in the hundred court." 2 An 
 arbitration is a judicial proceeding, and false swearing in 
 such a proceeding is perjury; therefore, to charge false 
 swearing in such a proceeding is actionable ; 3 but perjury 
 cannot be predicated of evidence in a controversy relative 
 to pre-emption rights before the registers, &c, of the land 
 office, and therefore a charge of false swearing in such a 
 
 / CO 
 
 controversy is not actionable. 4 Ordinarily words are ac- 
 tionable which imply in their customary import that a 
 false oath has been taken in a judicial proceeding, 5 as, you 
 swore false in court, 6 and "this, although the proceeding 
 referred to never had any existence. 7 Saying of one, he 
 swore to a damned lie, but I am not liable because I have 
 not said in what suit he testified, was held not action- 
 
 1 Cro, Car. 37S, because it did not appear that Whitechurcli court was a court of 
 record, and for the same reason the words " He has forsworn himself in a Leake 
 court," were held not actionable. (1 Rolle Abr. 39; 6 Bac. Abr. 20*7. See Dal ton 
 v. Higgins, 34 Geo 433.) But the words, "A. C. is a forsworn man, and hath taken 
 a false oath in his deposition at Tiverton, where he waged his law against me," were 
 held actionable because the forswearing appeared to amount to perjury. (Cro. Jac. 
 204.) 
 
 2 Core v. Morton, Yelv. 27. So ruled after verdict. 
 
 3 Moore v. Horner, 4 Sneed, 491 ; Eoss v. Rouse, 1 Wend. 475; Bullock v. Koon, 
 9 Cow. 30; and see Sandford v. Gaddis, 13 111. 329. 
 
 4 Hall v. Montgomery, 8 Ala. 510. Held not actionable to charge a voter with 
 swearing falsely at an election for alderman for the City of Toronto. (Thomas v. 
 Piatt, 1 Up. Can. Q. B. 217.) Where the imputation was that plaintiff had taken 
 a false oath, but not in a judicial proceeding, the plaintiff had a verdict for £2. 10 
 damages. The court refused a new trial, but arrested the judgment, the words not 
 being actionable. (Ilogle v. Hogle, 16 Up. Can. Q. B. 518.) 
 
 5 Cass v. Anderson, 33 Verm. 182. 
 
 6 Hamilton v. Dent. 1 Hayw. (N. Car.) 116; see ante, note 10, p. 230. 
 
 7 Bricker v. Potts, 12 Penn. St. R. 200; Henry v. Hamilton, 7 Elackf. 506. And 
 though an affidavit for a warrant be insufficient to justify the granting of it, an action 
 may be maintained for imputing perjury in making the affidavit, if any fact set forth 
 in it be mater ;al to the application. (Dayton v. Rockwell, 11 Wend. 140; and see 
 Bell v. Farnsworth, 11 Humph. 608.) Slander will lie on an accusation of perjury 
 in a criminal cause, although the complaint therein was too defective for an irrever- 
 sible judgment. (Wood v. South wick, 96 Mass. 354.)
 
 232 WHAT ORAL LANGUAGE [Ch. VIII. 
 
 able. 1 To say to a witness whilst giving his testimony 
 on a trial in court, " that is a lie ; 2 or, " I believe you 
 swear false. It is false what you say ; " 3 or, " You have 
 sworn a manifest lie," 4 is actionable. 
 
 Swearing falsely as to immaterial matter does not 
 amount to perjury, and therefore to charge false swearing 
 as respects matter which is immaterial to the issue in- 
 volved, cannot in any event or under any circumstances, 
 be actionable ; 5 thus, saying of one that on a certain trial 
 he testified to what was false, that the matter so testified 
 to was immaterial, but that he, the party testifying, 
 showed great disregard for the truth, was held not ac- 
 tionable. 6 The test of materiality is not whether the wit- 
 ness believes his testimony to be material, but whether if 
 false he can be indicted for perjury. If the testimony is 
 in fact immaterial, it cannot be perjury, though it may be 
 false, and whatever may be the opinion of the witness. 7 
 Another essential element of perjury is, that the oath al- 
 leged to have been broken was administered by competent 
 authority, and therefore to charge the breach of an oath 
 not administered by competent authority would not be 
 actionable. 8 [§§ 321, 322.] 
 
 1 Muchler v. Mulhollen, Supp. to Hill & Denio's Rep. 263. 
 
 - Mower v. Watson, 11 Verm. 536. Probably not actionable to say, " He swore 
 toalie if be swore as Jones said be did." (Evartsti. Smith, 19 Mich. 55.) See $22A post. 
 
 3 Cole v. Grant, 3 Harr. 327. 
 
 4 Keane v. McLaughan, 2 S. & R. 469; McClaughry v. Wetniore, 6 Johns. 82 
 contra Badgley v. Hedges, 1 Penns. 233. 
 
 6 Horn v. Foster, 19 Ark, 346; Darling v. Banks, 14 Dl. 47; Wilson v. Olipbant 
 Wright. 153; Crookshank v. Gray, 20 Johns. 344; Ross v. Rouse, 1 Wend. 475; 
 Dayton ». Rockwell, 11 Wend. 140; Power v. Price, 12 Wend. 500, S. C. 16 Wend 
 450; Roberts v. Chaplin, 14 Wend. 123; Wilson v. Cloud, 2 Speer, 1; Owen a. 
 McKean, 14 111. 459; M'Gougb v. Rhodes, 7 Eng. 625. 
 
 6 Stone v. Clark, 21 Pick. 51 ; and S3e McKinley v. Rob, 20 Johns, 351 ; Smith t». 
 Smith, 8 Ired. 29 ; Wilson v. Cloud, 2 Speer, 1. 
 
 7 Ross i'. Rouse, 1 Wend. 475. Perjury may be alleged in swearing to a promise 
 within tbe statute of frauds, and therefore false swearing as to such a promise may 
 be actionable. (Howard v. Sexton, 8 N. Y. 157.) 
 
 9 Jones v. Marrs, 11 Humph. 214; Dalton v. Higgins, 34 Geo. 433; and see
 
 172.] 
 
 IS ACTIONABLE. 233 
 
 § 172. Ordinarily, and in the absence of any statutory 
 provision (§ 153,) words published orally charging a 
 woman with want of chastity are not actionable per se ; 1 
 as, thus, except in the City of London and Borough of 
 Southward it is not actionable to call a woman a whore, 2 
 
 Vansteenburgh v. Kortz, 10 Johns. 167 ; Xiven v. Munn, 13 Johns. 48 ; Cro. Car. 378; 
 
 1 Rolle Abr. 39. 
 
 1 1 Starkie on Slander, 28 ; Byron v. Ernies, 2 Salk. 693 ; W. v. L., 2 Nev. «fe M. 204 ; 
 Berry v. Carter, 4 Stew. <fc Port, 387 ; Eliot v. Ailsbury, 2 Bibb, 473 ; Keiler v. Lessford, 
 
 2 Cr. C. C. 190; Ranger v. Goodrich, 17 Wis. 78; Rogers v. Lacey, 23 Ind. 507; 
 contra in Connecticut (Frisbie v. Fowler, 2 Conn. 707), in Kentucky, since the statute of 
 1811 (McGee v. Wilson, Litt. Sel. Cas. 187; Smalley v. Anderson, 2 Monr. 56), in 
 Illinois (Spencer v. M'Masters, 16 111. 405), in Missouri (Moberly v. Preston, 8 Mis. 
 462; Stieber v. Wensel, 19 Mis. 513), in Ohio (Malone v. Stewart, 15 Ohio, 319 ; Wil- 
 son v. Robbins, Wright, 40 ; Wilson v. Runyan, id. 351; Sexton v. Todd, id. 317), 
 in Maryland (Terr}' v. Bright, 4 Md. 430), in Alabama (Sidgreaves w. Myatt, 22 Ala. 
 617; but see Berry v. Carter, 4 Stew, k, Port. 387), in Indiana, (Shields i 1 . Cunning- 
 ham, 1 Blackf. 86; Worth v. Butler, 7 id. 251; Rodeburg v. Hollingsworth, 6 Ind. 
 639; Rodgers v. Lacey, 23 Ind. 507; Linck v. Kelley, 25 Ind. 278; Blinkenstaff v. 
 Perrin, 27 Ind. 527), in North Carolina (McBrayer v. Hill, 4 Ired. 136; Snow v. 
 Witcher, 9 id^ 346), in South Carolina (Watts v. Greenlee, 2 Dev. 115; Freeman v. 
 Price, 2 Bailey, 115), in Iowa (Beardsley v. Bridgman, 17 Iowa, 290; Cleveland v. 
 Detweiler, 18 it/. 299; Cox v. Bunker, Morris, 369; Dailey v. Reynolds, 4 G. Greene, 
 354; Freeman v. Taylor, 4 Iowa, 424 ; Smith v. Silence, id. 321.) 
 
 2 12 Mod. 106; Holt R. 40; Keb. 418; Sid. 97; Robertson v. Powell, 2 Selw. 
 N. P. 1224; Alsop o. Alsop, 5 Hurl. & Nor. 5534; Williams v. Holdridge, 22 Barb. 
 397; Linneyv. Malton, 13 Texas, 449; Underhillv. Welton, 32 Verm. 40; Boyd v. 
 Brent, 3 Brev. 241 ; contra, Pledger v. Hatchcock, 1 Kelly, 550 ; Cox v. Bunker, 1 
 Morris, 269. Drunken whore held actionable (Williams v. Greenwade, 3 Dana, 432) ; 
 and so was whore. (Smith v. Silence, 4 Iowa, 321; Kelly v. Dillon, 5 Ind. 426; 
 Clarke v. Mount, Opinions in the Mayor's C't, 18.) The following words have been 
 held actionable : You are a whore. I can have a better whore for a groat; you get 
 your living by your tail ; or, You are a whore, and have played the whore with so 
 many men you cannot number them; or, Thou art a whore and hast been carted; 
 or, Thou art a whore and hast been in Bridewell ; or, Thou art a whore, and hast 
 emptied thy cask in the country; or, Thou art a whore, and thy plying place is in 
 Cheapside, where thou gettest 40s. a day. (Vin. Abr. Act. for Words. D. a. (•">. 89, 
 42.) The words import more than the bare calling a woman whore. (Hicks v. Joyce, 
 Sty. 394.) Common whore held actionable (Green v. How, Sty. 323.) Ami held 
 actionable to call one a whore who held a copyhold dum casta vixerit (Boys v. Boys, 
 Sid. 214.) But held not actionable to say to or of a woman, " You are a whore, and 
 keep a man to lie with you" (Gascoigne v. Ambler, 2 L'd Raym. 1004); or, "She 
 is a whore, and had a bastard by her father's apprentice." (Graves v. Blanchard, 2 
 Salk. 696 ; and see Anon. id. 694.) Calling a woman " whorish bitch," actionable in 
 Alabama. (Scott v. McKinnish, 15 Ala. 662.) To call a woman a strumpet is not 
 equivalent to calling her a whore. (Williams v. Bryant, 4 Ala. 44 ; contra, Cook v. 
 
 16
 
 234 WHAT ORAL LANGUAGE [Ch. "V 111. 
 
 or prostitute, or common prostitute, 1 or to charge an un- 
 married woman with having had a bastard, 2 or to call a 
 woman a bawd, 3 or to charge an unmarried woman with 
 fornication, 4 or a married woman with adultery, 5 or a 
 woman with being of a wanton and lascivious disposition, 6 
 or to say of a woman, she was hired to swear the child on 
 me ; she has had a child before this, when she went to 
 Canada ; she would come damned near going to the state 
 prison. 7 But it has been held actionable to say of a woman, 
 she is a " loose woman," 8 or to charge conduct amounting 
 to open and gross lewdness, 9 or to say of a married woman, 
 she slept with one not her husband, 10 or to charge an un- 
 
 Wingfield, 1 Stra. 555.) By custom in the city of Bristol it is actionable to call a 
 woman strumpet. (Power v. Shaw, 1 Wils. 62). See in § 213, post. 
 
 1 Brooker v. Coffin, 5 Johns. 1S8; Wilby v. Elston, 8 C. B. 142; 1 Dowl. & L. 143 ; 
 1 Starkie on Slander, 28. See ante, § 144, subd. y. 
 
 2 Vin. Abr. Act, for Words, D. a. 19, 23; Graves v. Blanchard, 2 Salk. 696, in 
 note 2, p. 233, ante; and saying to a married woman, "Thou bold cullobine, bastard- 
 bearing whore, thou didst throw thy bastard into the dock at Whitechapel," held not 
 actionable. (Colabyn v. Viner, Jones, 356.) So saying of a woman, She had a 
 child, and either she or somebody else made away with it, was held not actionable. 
 (Falkner v. Cooper, Carth. 55.) 
 
 3 Cavel v. Birket, Sid. 438; contra, Hicks v. Hollingshead, Cro. Car. 261. 
 
 * Buys v. Gillespie, 2 Johns. 115 ; such a charge is actionable in Kentucky 
 (Smalley v. Anderson, 2 Monr. 56), in Ohio (Wilson v. Robins, Wright, 40), in North 
 Carolina (McBrayer v. Hill, 4 Ired. 136), in Indiana (Rickett v. Stanley, 6 Blackf. 
 169), and in New Jersey (Joralemon v. Pomeroy, 2 N. Jersey, 271). Charging an un- 
 married woman with being "a bad character," and guilty of fornication, held ac- 
 tionable in Iowa. (Dailey v. Reynolds, 4 Greene, 354.) And see ante, £ 144, subd. 
 I., and post, note 6, p. 238. 
 
 6 Woodbury v. Thompson, 3 N. Hamp. 194 ; Stanfield v. Boyer, 6 Har. & J. 248; 
 contra, Miller v. Parish, 8 Pick. 384 ; and see Walton v. Singleton, 7 S. & R. 449. 
 To charge a woman with fornication or adultery, or incontinence in any form, is not 
 actionable at common law. (Heard on Libel, p. 46, citing in addition to the cases 
 already noted, Ayre v. Craven, 2 Adol. & El. 2; 4 Nev. & M. 220; Evans v. Gwyn. 
 5 a B. 844.) 
 
 6 Lucas v. Nichols, 7 Jones' Law, No. Ca. 32. 
 
 ' Brooker v. Coffin, 5 Johns. 1S8. 
 
 8 Adecock v. Marsh, 8 Ired. 360. 
 
 9 Underhill v. Welton, 32 Verm. 40. 
 
 10 Guard v. Risk, 11 Ind. 156.
 
 § 173.] IS ACTIONABLE. 235 
 
 married woman with "being in the family- way ; 1 and 
 adding, I can prove it by A. that she has been taking 
 camphor and opinm pills to produce an abortion ; 2 or, she 
 had two or three little ones to A. ; 3 or, her child is A.'s 
 and A. was keeping her unmarried for his own purposes ; 4 
 or charging sexual intercourse with a dog ; 5 and where the 
 defendant said of the plaintiff that B. told him that on Sun- 
 day, at the camp-meeting, he scared the plaintiff and a man 
 up from behind a log ; that they broke and run, and that 
 he (B.) got her (plaintiff's) parasol and handkerchief, held 
 that these words were actionable ; 6 but saying of a 
 woman, she went down the river to the goose-house, with- 
 out averring any special meaning to goose-house, was held 
 not actionable. 7 
 
 § 173. The following words and phrases published 
 orally of an individual as such, have been held actionable 
 per se: Bogus peddler, 8 dealer in counterfeit money, 9 
 
 1 Smith v. Minor, Coxe, 16; Miles v. Van Horn, 17 Ind. 245 ; contra, see Shep- 
 herd v. Wakeman, Sid. 79 ; Lev. 37. 
 
 a Miles v. Van Horn, 17 Ind. 245. "It's my soul's opinion that nothing else kept 
 that girl in the house last winter but taking medicine to banish the young baker," 
 innuendo that plaintiff had taken medicine to procure an abortion, held actionable. 
 (Miller v. Houghton, 10 Up. Can. Q. B. R. 348.) And held actionable to say of a 
 woman, " She procured or took medicines to kill the bastard child she was like to 
 have, and she did kill or poison the bastard child she was like to have." ("Widrig v. 
 Oyer, 13 Johns. 124.) 
 
 3 Symonds v. Carter, 32 N. Hamp. 458, and ante, note 2, p. 234 ; Beardsley v. Bridg- 
 man, 17 Iowa, 290. 
 
 4 Richardson v. Roberts, 23 Geo. 215; Downing v. Wilson, 36 Ala. 717. She 
 (plaintiff) is not chaste. I have kept her, and had criminal intercourse with her; 
 or, "I have had sexual intercourse with her," held not actionable. (Berry v. Carter, 
 4 Stew. <fe Port. 387 ; contra, Adams v. Rankin, 1 Duval (Ky) 58.) The words, I have 
 lain with her and pockified her, held actionable. (Xeal v. Mallard, 2 Show. 312.) 
 
 6 Cleveland v. Detweiler, 18 Iowa, 299, and seeante, note, p. 173. 
 • Proctor v. Owens, 18 Ind. 21. 
 
 7 Dyer v. Morris, 4 Mis. 214. 
 
 8 Pike v. Van Wormer, 6 How. Pr. R. 101 ; 5 id. 175. 
 
 9 Pike v. Van "Wormer, 6 How. Pr. R. 99.
 
 236 WHAT ORAL LANGUAGE [Ch. VIII. 
 
 knave, 1 pickpocket, 2 sheepstealer, 3 traitor, 4 common bar- 
 rator or chainpertor, 3 receiver of stolen goods, 6 counter- 
 feiter. 7 I charge you with felony ; 8 you are a rogue, and I 
 will prove you a rogue, for you forged my name ; 9 conceal- 
 ing stolen goods, 10 purchasing stolen goods, knowing them 
 to have been stolen. 11 H02; thief. 12 He is a roome, and has 
 stolen my sheep. 13 You have altered the marks of four of 
 my hogs; 14 he killed a horse. 15 You have removed my 
 
 1 Knave imports dishonesty, and is actionable. Harding v. Brooks, 5 Pick. 244 ; 
 contra, see Weeks' case, 1 Sid. 149, Latch, 159, and Monthly Law Rep. Oct 1862, 
 p. .716. Pillory knave held actionable (Brown v. Dankes, Cro. Eliz. 11), denied 
 (Smith's case, Cro. Eliz. 31.) In the time of Heury VI knave was a good addition 
 to a man's name, and the term had not a defamatory meaning. There is said to be an 
 edition of the New Testament, which reads: Paul a knave, of Je3us Christ, instead of 
 Paul, an apostle, &c. 
 
 2 Stebbing v. Warner, 11 Mod. 255, and see note 2, p. 197,-awfe. 
 
 3 Parret v. Parret, 3 Bulst. 303 ; Vin. Abr. Act. for Words, I. a. 5. 
 
 4 Dal. 17. Bellingham v. Minors, Cro. Eliz. 133. 
 
 6 Vin. Abr. Act. for Words, H. a. 7 ; Heake v. Moulton, Yelv. 90 ; Box v. 
 Barnaby, Hob. 117, but maintainer of suits is not actionable. {Id.) See contra, 
 Portman v. Stowell, Mo. 43. 
 
 6 Dias v. Short, 16 How. Pr. R. 322. To charge one with having received stolen 
 goods is not actionable, unless the receiving was with a guilty knowledge (/(/.); and 
 Patterson v. Collins, 11 Up. Can. Q. B. R. 63. See Dorsey v. Whipps, 8 Gill. 457 ; 
 Cox v. Humphreys, Cro. Eliz. 877 ; Steventon v. Higgins, 2 Keb. 338 ; Dawes v. 
 Bolton, Cro. Eliz. 888, see note 2 page 178, ante. 
 
 7 Howard v. Stephenson, 2 Rep. Conn. Ct 408; Thirman v. Matthews, 1 Stew. 
 384. The law takes notice of the word counterfeit, as importing a felony. (Stone v. 
 Smalcombe, Cro. Jac. 684.) 
 
 8 Vin. Abr. Act. for Words, G. a. 3; Jones, 32; Smith v. Hodgeskins, Cro. 
 Car. 276; Poph. 210; Paine v. Prestny, Sty. 235. 
 
 9 Jones v. Hearne, 2 Wils. 87, and see Herst v. Borbidge, 57 Penns. 62. 
 
 10 Miller v. Miller, 8 Johns. 74; and see Newlyn v. Fassett, Yelv. 154. 
 
 11 Alfred v. Farlow, 8 Adol. & El. N. S. 854; Mayo v. Sample, 18 Iowa, 306; 
 Brigg's Case, Godb. 157; and see Dorsey v. Whipps, 8 Gill, 457. 
 
 12 Cheatwood v. Mayo, 5 Munf. 16. 
 
 13 McAlexander v. Harris, 6 Munf. 465. 
 
 "Perdue v. Burnett, Minor, 138; contra, Williams v. Karnes, 4 Humph. 9; 
 Johnston v. Morrow, 9 Porter, 525. 
 
 13 Gage v. Shelton, 3 Ptich. 242. He cut my horse's throat is actionable. (Yearly 
 v. Ashley, 4 Har. & J. 314.) He poisoned my cow, held actionable. (Burton v. 
 Burton, 3 Iowa, 316,) contra of He poisoned my horse. (Chaplin v. Cruikshanks, 2 
 Har. & J. 247.)
 
 § 173.] IS ACTIONABLE. 237 
 
 land-marks ; cursed is lie that reinoveth a land-mark. 1 
 She put poison in a barrel of drinking-water to poison 
 me. 2 You are a vagrant, 3 a corn-stealer, 4 concealer of 
 felony. 5 He is a rogue and villain ; he has ruined many 
 families, and the curses of widows and children are on 
 him ; he has wronged my father's estate, and cheated my 
 brother. 6 She produced a false heir, or a bogus baby ; 7 
 she Inept a bawdy-house, 8 or she keeps a whore-house ; 9 
 indecent exposure ; 10 bribery to secure election ; " break- 
 ing ojjen a letter addressed to another, and taking out 
 money and using the money so taken. 12 You have com- 
 mitted an act for which I can transport you. 18 1 know enough 
 he has done to send him to the j^enitentiary. 14 I am thor. 
 oughly convinced that you are guilty (innuendo of the 
 
 1 Young v. Miller, 3 Hill, 21. 
 
 2 Miles v. Wimp, 10 B. Monr. 417. 
 
 3 Miles v. Oldfield, 4 Yeates, 423. See note 19, p. 239. 
 
 4 Vin. Abr. Act. for Words, G. a. 24 ; Anon. Cro. Eliz. 563. 
 
 6 Thou art a concealer of felony, and it lieth in my power to hang thee. Vin. 
 Abr. Act. for Words, G. a. 21; Yelv. 154. M. hath stolen sheep, and Nichols by 
 agreement hast taken a meadow to help him to cloak and escape the felony, held 
 actionable, although not alleged that Nichols knew of the felony for taking the 
 meadow to cloak the felony implied he had notice of it. (Nichols v. Badget, Mo. 
 428.) And see Kich v. Holt, Cro. Jac. 268. 
 
 6 Marshall v. Addison, 4 Har. & McHen. 537. 
 
 7 Weed v. Bibbins, 32 Barb. 315. 
 
 6 The offense, although past, is still punishable. (Newton v. Masters, 2 Lev. 233 ; 
 Martin v. Stillwell, 13 Johns. 275; Vin. Abr. Act. for Words, H. a. 8.) See ante, § 
 144, subd. d. A charge of keeping a bawdy house was held not actionable. Anon. 
 Cro. Eliz. 643. 
 
 9 Wright v. Paige, 36 Barb. 438. Aff'd 3 Trans. App. 134. See ante, § 144 
 subd. d. 
 
 10 Torbett v. Clare, 8 Ir. Law Rep. 86. 
 
 11 Bendish v. Lindsay, 11 Mod. 194; Hoag v. Hatch, 23 Conn. 585, or to procure 
 an appointment under the government. (Purely v. Staccy, 5 Burr. 2698. SeeLindsey 
 v. temith, 7 Johns. 359 ; Chipman v. Cook, 2 Tyler, 456.) 
 
 12 Cheadle v. Buel, 6 Ham. 67; see McCuen v. Ladlam, 2 Harr. 12; Bell v. 
 Thatcher, Freeman, 276 ; Hillhouse v. Peck. 2 Stew. & Port. 395. 
 
 13 Curtis v. Curtis, 4 Mo. <fc Sc. 337: 10 Bing. 477. 
 
 14 Johnson v. Shields, 1 Butcher, 116.
 
 238 WHAT OEAL LANGUAGE [Cll. VIII. 
 
 death of D.), and rather than you should go without a 
 hangman I will hang you. 1 Fraudulently destroying a 
 vote ; 2 signing name to a note without authority ; 3 he has 
 been excommunicated, 4 whoremonger, 5 fornication, when 
 or where punishable by indictment. 6 He hath got M. N. 
 with child. 7 He should [would] have been hanged for a 
 rape, but it cost him all the money in his purse. 8 You 
 will lie with a cow again as you did. If you had your 
 deserts you deserve to be hanged. 9 You (plaintiff) are as 
 great a rogue as your master, who is a rogue for that he 
 stole rugs. 10 Adultery in certain States in which it is 
 punishable as a crime. 11 Incontinence. 12 
 
 1 Peake v. Oldham, Cowp. 275 ; 2 W. Black. 960. 
 
 2 Dodds v. Henry, 9 Mass. 262. 
 
 8 Creelman v. Marks, 7 Blackf. 281. 
 
 4 The defendant, a minister, pronounced in church that the plaintiff had been 
 excommunicated, and refused to proceed with the service until plaintiff left the 
 church, held actionable. (Barnabas v. Traunter, Vin. Abr. Act. for Words, D. a. 15.) 
 
 6 Vin. Abr. Act. for Words, D. a. 26 ; see note 4, p. 240, post. 
 
 6 2 Sid. 21 ; Joralemon v. Pomeroy, 2 N. Jersey, 271. In Kentucky a man may 
 maintain an action of slander for words charging him with having been guilty of 
 fornication (Morris v. Barkley, 1 Litt. 64; see also, Phillips v. Wiley, 2 lb. 153); so 
 in Indiana, under the statute of that State (Rodgers v. Lacey, 23 Ind. 507) ; and so 
 in Pennsylvania, though he be a married man (Walton v. Singleton, 7 S. <fc R. 449), 
 but not so in Ohio. (Wilson v. Robbins, Wright, 40 ; and see Dukes v. Clarke, 2 Blackf. 
 20). And for such a charge a woman may maintain an action in Missouri, Indiana 
 and New Hampshire. (Moberly v. Preston, 8 Mis. 462 ; Abshire v. Cline, 3 Ind. 
 115 ; Syinonds v. Carter, 32 N. H. 468 ;) and see note 4, p. 234, ante. 
 
 ' Marston v. Dennis, 2 Sid. 1657. Sir John Lenthal lay with me, and had the use 
 of my body by force, held actionable ; the majority of the court being of opinion 
 that the words by force imputed a rape (Lenthall's Case, Litt. Rep. 337; and see 
 Taylor v. Tally, Palmer, 385, where a charge that T. rainslied H.'s wife, was held 
 actionable). The words, He had the use of my wife's body by force, with allegation 
 of special damage that in consequence of the words plaintiff was arrested on a 
 charge of rape, and put to expense in making his defense, held actionable. (Harris 
 v. Smith, Vin. Abr. Act. for Words, D. a. 9.) 
 
 8 Redfern v. Todd, Cro. Eliz. 589. 
 
 9 Poturite v. Barrel, Sid. 220. 
 
 10 Apton v. Penfold, Comyn's R. 267. 
 
 11 Steber v. Wensel, 19 Mis. 513; Farnsworth ». Storrs, 5 Cush. 412; Richett *. 
 Stanley, 6 Blackf. 169. See ante, § 144, subd. a, and post, note 1, p. 239. 
 
 H Watts v. Greenlee, 2 Dev. 115. See ante, § 153, and post, g 195.
 
 § 174.] IS ACTIONABLE. 239 
 
 § 174. The following words and phrases published 
 orally of an individual as such, have been held not action- 
 able per se : — Adulterer, 1 bawd, 2 bankrupt, 3 blackleg, 4 
 cheat, 5 common filcher, 6 companion of cut-throats, 7 deser- 
 ter, 8 enchanter, 9 liar, 10 rogue, 11 arrant rogue, 12 damned rogue, 13 
 you are a rogue and cheated J. S. out of «£100, 14 sacrilege, 13 
 scoundrel, 16 sorcerer, 17 swindler, 18 vagrant or vagabond, 19 
 
 1 Vin. Abr. Act. for Words, G. a. 12 ; D. a. 27. 
 
 2 Vin. Abr. Act. for Words, H. a. 9. 
 8 Vin. Abr. Act. for Words, H. a. 6. 
 
 4 Barnett v. Allen, 3 Hurl. & Nor. 376. 
 
 6 Chase v. Whitlock, 3 Hill, 139; Stevenson v. Hayden, 2 Mass. 406; Vin. Abr. 
 Act. for Words, G. a. See note 9, p. 241, post. 
 6 Vin. Abr. Act. for Words, G. a. 
 " Vin. Abr. Act. for Words, G. a. 
 8 Hollingsworth v. Shaw, 19 Ohio, 430. 
 B Vin. Abr. Act. for Words, H. a. 
 
 10 Smalley v. Anderson, 4 Monr. 367; King's Case, 4 Inst. 181; and see ante, § 
 144, subd. q. 
 
 11 Artieta v. Artieta, 15 La. Ann. 48; Idol v. Jones, 2 Dev. 162; Quinn v. O'Gara, 
 2 E. D. Smith, 388. "Your father was a horse-stealing rogue, and you (plaintiff) 
 are a great rogue," not actionable (Bellamy v. Barker, 1 Strange, 304). Rogue, 
 rascal, scoundrel, and the like, are not actionable. (1 Starkie on Slander, 24.) After 
 verdict for plaintiff in an action for calling him "a rogue," the court refused to 
 arrest the judgment. (Borbidge v. Herst, 6 Phil'a. Rep. (Legal Intel. Cond.) 391; 
 8. c. Herst v. Borbidge, 57 Penns. 62.) 
 
 12 Vin. Abr. Act. for Words, G. a. 
 
 13 Oakley v. Farrington, 1 Johns. Cas. 129 ; Caldwell v. Abby, Hard. 529. God 
 damned rogue, not actionable. (Ford v. Johnson, 21 Geo. 399.) 
 
 14 Winter v. Sumvalt, 3 Har. & J. 38. Saying one was a rogue of record, was 
 helda ctionable. (Sty 220.) 
 
 16 Gawdy v. Smith, Sid. 376. 
 
 16 Quinn v. O'Gara, 2 E. D. Smith, 388. 
 
 17 Vin. Abr. Act. for Words, H. a. 
 
 " Chase v. Whitlock, 3 Hill, 139; Saville v. Jardine, 2 H. Black. 531; Odiorne 
 v.Bacon, 6 Cush. 185; Stevenson v. Hayden, 2 Mass. 406. To say of a bank 
 director he is a swindler held actionable. (Forrest v. Hanson, 1 Cr. C. C. 63.) To 
 write of one he is a swindler is actionable (I'Anson v. Stuart, 1 T. R. 748). See notes 
 3, 4, p. 247, post. 
 
 19 Corcoran v. Corcoran, 7 Ir. L. R. N. S. 272; Campbell v. White, 5 Id. 312, but 
 see Miles v. Oldfield, 4 Yeates, 423.
 
 240 WHAT ORAL LANGUAGE [Cll. \ 111. 
 
 varlet, 1 villain, 2 witch, 3 whoreinaster, 4 bastard. 5 He is 
 father of a bastard. 6 He cozened J. S. of one hundred 
 marks. 7 He cozened the Earl of H. of as much as he 
 (plaintiff) is worth. 8 You cozened me of £1,200 at one 
 time. 9 Your master (plaintiff) is a cozening, cheating 
 knave, and a rogue to boot, and cozened and cheated all 
 the parish and all persons he deals with. 10 Those two 
 rascals (plaintiff and his brother) killed my hogs and 
 converted them to their own use. 11 The library has been 
 plundered by C. (the plaintiff). 12 He killed and salted one 
 of my hogs. 13 He defrauded a meal man of a horse. 14 He 
 robbed the treasury and bought a farm with it. 15 He 
 embezzled goods. 16 He attempted to commit a robbery. 17 
 He passed counterfeit money. 18 He cut off the tail of my 
 
 1 Vin. Abr. Act. for Words, G. a. 
 
 9 Vin. Abr. Act. for Words, G. a. 
 
 3 Vin. Abr. Act. for Words, H. a. Witch and sorcerer were actionable, whilst the 
 statutes against witchcraft remained in force. (Rogers v. Gravat, Cro. Eliz. 571.) 
 "Heretic" or "Papist," not actionable. (Vin. Abr. Act. for Words, D. a.) 
 
 * Witcher's Case, Keb. 119; Vin. Abr. Act. for Words, D. a. But actionable 
 with special damage. (Crass v. Mathew, Cro. Jac. 323 ; 2 Bulst. 86.) 
 
 6 Not actionable unless special damage. Vin. Abr. Act. for Words, D. a. 16, 17, 
 18, 21, 22, 31 ; Nelson v. Staff, Cro. Jac. 432. Humphreys v. Stanfield, Cro. Car. 469. 
 
 6 Unless the bastard is chargeable to the parish. (Salter v. Brown, Cro. Car. 436 ; 
 Randle v. Beal, Cro. Jac. 473.) 
 
 7 Somerstaile's Case, Goldsb. 125. 
 
 8 Tut v. Kerton, 1 Bulst. 172. 
 
 9 Townsend v. Barker, Sty. 388. Thou hast no more than thou has got by 
 cozening, not actionable. (Broomfield v. Snoke, 12 Mod. 307.) 
 
 10 Tamlin v. Hamlin, Show. 181. " Thou are a cozening knave, and hast cozened 
 thy master of a bushel of barley," spoken of a servant in husbandry held action- 
 able. (Seaman v. Bigg, Cro. Car. 480.) 
 
 11 Sturgenegger v. Taylor, 2 Brevard, 480. 
 
 ,a Carter v. Andrews, 16 Pick. 1 ; and see Mackay v. Ford, 5 H. & N. 792. 
 19 Clay v. Barkley, Ky. Dec. 79. 
 14 Richardson v. Allen, 2 Chit. 654. 
 JS Allen v. Hillman, 12 Pick. 101. 
 
 16 Caldwell v. Abbey, Hard. 529 ; and see Williams v. Stott, 1 Cr. & M. 675 ; 3 
 Tyrw. 688. 
 
 17 Russell v. "Wilson, 7 B. Monr. 261. 
 
 18 Church v. Bridgman, 6 Miss. 190.
 
 § 174.] IS ACTIONABLE. 241 
 
 horse. 1 He harbored my negroes. 2 He whipped his wife, 3 
 or his mother. 4 He is a mulatto and akin to negroes. 5 
 He gave a free pass to a negro. 6 He (plaintiff) is a 
 brabbler and a quarreller, for he gave his champion 
 counsel to make a deed of gift of his goods, to kill me 
 and then to fly out of the country, but God preserved me. T 
 His (plaintiff's) boys did frequently come to our house 
 and hire our negroes and take the dogs, and go down into 
 the river bottom and killed cattle no more theirs than 
 mine. 8 You cheated the lawyer of his linen and stood 
 bawd to your daughter to make it up with him ; 
 you cheat everybody, you cheated me of a sheet, you 
 cheated T. S., and I will let him know it. 9 She secreted 
 one shilling under the till ; stating these are not times to 
 be robbed. 10 She is an hermaphrodite. 11 He is a blood- 
 sucker, and not worthy to live in a commonwealth, and 
 his child, unborn, is bound to curse him. 12 Thy credit 
 hath been called in question and a jury being to pass upon 
 it, thou foistedst on a jury early in the morning, and the 
 lands thou hast are gotten by lewd practices. 18 Thou wast 
 the cause that J. S. did hang himself, and that K. 1ST. did 
 
 I Gage v. Shelton, 3 Rich. 242. 
 
 * Croskeys v. O'Driscoll, 1 Bay, 481 ; Skinner v. White, 1 Dev. & Bat. 471. 
 
 3 Birch v. Benton, 26 Miss. 153; Dudley v. Horn, 21 Ala. 379. 
 
 4 Speaker v. McKenzie, 26 Miss. 255. 
 
 5 Barrett v. Jarvis, 1 Ham. 83 note. But such a charge was held actionable. 
 (Eden v. Legare, 1 Bay, 171 ; Atkinson v. Hartley, 1 McCord, 203; King v. "Wood, 
 1 N. & M. 184.) 
 
 8 McManus v. Jackson, 28 Miss. 56. 
 
 7 Eaton v. Allen, 4 Co. 16. 
 
 8 Porter v. Hughey, 2 Bibb, 232. 
 
 8 Davis v. Miller, 2 Strange, 1169; and see note 5, p. 239, ante. 
 10 Kelly v. Partington, 2 Nev. <fe M. 460. 
 
 II The words were spoken of one who taught dancing, and held not actionable, 
 because men as well as women taught dancing (Weatherhead v. Armitage, 2 Levinz, 
 233). But in Ohio it has been held actionable to call a woman an hermaphrodite. 
 (Malone v. Stewart, 15 Ohio, 319.) 
 
 n Thimmelthorp's Case, Noy, 61. 
 3 Nichols v. Badger, Cro. Eliz. 348; see ante, § 144, subd. j.
 
 242 WHAT ORAL LANGUAGE [Ch. Viil. 
 
 cut his own throat, and thou beginnest with no man hut 
 thou undoest him ; x drunkenness ; 2 he got drunk on 
 Christmas day. 3 
 
 § 175. With respect to a charge of having a disease, it 
 is actionable to charge one with having the venereal 
 disease, 4 or gonorrhoea, 5 or leprosy, 6 or semble, falling sick- 
 ness, 7 but not the itch or small-pox, 8 or with being in- 
 sane, 9 unless it affects him in his business. 10 To call one 
 leprous knave was held actionable. 11 But it has been 
 held not actionable to charge one with having had any of 
 the diseases above indicated ; 12 thus it was held not action- 
 able to say of one, Thou art a base fellow and liadst [or, 
 hast had] the French pox, 13 or to say of a woman, " I have 
 kept her common these seven years, she hath given me 
 
 1 Anon. Dal. 89. 
 
 3 Buck v. Hersey, 31 Maine, 558; O'Hanlon v. Myers, 10 Rich. Law (So. Car.) 
 128. But held actionable -when charged against a preacher or settled minister 
 (McMillen v. Birch, 1 Binn. 178; Chaddock v. Briggs, 13 Mass. 248), or a female, 
 (Brown v. Nickerson, 5 Gray, 1), or a master mariner in command of a vessel. 
 (Irwin v. Brandwood, 2 Hurl. & C. 960.) There is a statute by which conviction of 
 drunkenness deprives a master mariner of his certificate. 
 
 3 Warren v. Norman, Walker, 387. 
 
 4 Bloodworth v. Gray, 7 M. & G. 334 ; 8 Sc. N. S. 9 ; Goldman v. Stearns, 7 Gray, 
 181; Williams v. Holdridge, 22 Barb. 398; Hewit v. Mason, 24 How. Pr. R. 366; 
 Vin. Abr. Act. for Words, D. a. 56 ; H. a. 3, 4, 5, 9 ; U. a. 15 ; Nichols v. Guy, 2 Car- 
 ter, 82. 
 
 6 Watson v. McCarthy, 2 Kelly, 57 ; Williams v. Holdridge, 22 Barb. 398. 
 
 6 Id. 
 
 7 Spoken of a lawyer. (Tajdor v. Perkins, Noy, 117.) 
 
 8 See Villers v. Monsley, 2 Wils. 403, and notes 2, p. 170 ante, and 3, p. 248, post. 
 8 Joannes v. Burt, 6 Allen (Mass.), 236. 
 
 10 Morgan v. Lingen, 8 Law Times, N. S. 800. 
 23 Taylor v. Perkins, Cro. Jac. 144. 
 
 11 Carslake v. Mapeldora, 2 T. R. 474 ; Bloodworth v. Gray, 7 M. & G. 334 ; 8 Sc. 
 N. S. 9; Pike v. Van Wormer, 5 How. Prac. R. 171. 
 
 25 Smith's Case, Noy, 157; Dutton v. Eaton, All. 31. But in Miller's Case, Cro. 
 Jac. 430, the words Mrs. Miller is a whore, and hath had the pox, were held action- 
 able. So were the words " She went to the spa to be cured of the French pox." The 
 words imply she had that disease. (Hobsou v. Hudson, Sty. 199.)
 
 §175.] IS ACTIONABLE. 243 
 
 the bad disorder, and three or four other gentlemen." 1 
 The reason assigned for these decisions is, that to charge 
 the having such a disease is actionable because the disease, 
 being contagious, the having it renders the person an im- 
 proper member of society, but there is no reason why the 
 company of a person who has had a contagious disease 
 should be avoided ; and therefore, to say one has had such 
 a disease is not actionable. A distinction is taken be- 
 tween having had a disease and having been guilty of a 
 crime, the stain of which remains. 2 These decisions as- 
 sume that it is the fact of the disease being contagious 
 which renders the charge of having it, actionable. We 
 are not satisfied that this assumption is warranted. The 
 charge of leprosy certainly involved more than a mere 
 charge of having a contagious disease. The leper lost his 
 civil rights and all ecclesiastical privileges, he was at once 
 cast off by society and excommunicated by the church. 
 The physician held out to him no hope of being cured, 
 and the priest no hope of being saved; and, besides, 
 leprosy impeded the descent. 8 And there was a writ de 
 faproso amovendo commanding the sheriff to remove him 
 to a solitary place. Even at this day, in those countries 
 in which leprosy prevails, the slightest ascertained taint 
 of the disease entails upon the sufferer a compulsory ex- 
 clusion tantamount to banishment from the rest of the 
 community, or even to perpetual detention in a lazaret ; 
 yet, strange to say, it seems, that leprosy is not a conta- 
 gious disease, 4 although beyond doubt it was so esteemed at 
 
 1 Carslake v. Mapeldora, 2 T. R. 4*73. 
 
 8 There is this difference of scandal in the past tense, when it touches the mind 
 and when it touches the body. If it be a scandal to the mind, and the affections as 
 perjury, felony, <fec, then the mind that remains is slandered; but if it be of an acci- 
 d< nlal infirmity or disease of the body, it is otherwise, for none now will forbear his 
 company, though he had the plague in times past. (Coke, Ch. J. ; see Smith's Case, 
 Noy, 157 ; Dutton v. Eaton, All. 31.) As to charges in the past tense, see § 158, ante. 
 
 3 Half's Hist. Com. Law, ch. vi. 
 
 4 Report on Leprosy by the Royal College of Physicians, prepared for Her 
 Majesty's Secretary of State to the Colonies. (London, 1867.)
 
 24-1 WHAT OEAL LANGUAGE [Ch. VIII. 
 
 the period when the dicta we have above referred to were 
 pronounced. The charge, too, of having the lues venerea, 
 was something more than a charge of having a contagious 
 disease, at least it involved a charge of lewdness. That 
 the bare fact of the disease beino; contagious was not the 
 ground for making the charge actionable, seems to be ap- 
 parent from this : Lues venerea, vulgarly called pox, was 
 formerly called the French pox, or the great pox, to dis- 
 tinguish it from variola or small-pox. Now the small-pox 
 is a contagious disease, but it has never been held action- 
 able to charge one with having the " small-pox," and we 
 find in the reports that when the charge was simply of 
 having the pox — without any other words or facts — to in- 
 dicate that the French pox was intended, the charge was 
 held not actionable. 1 To such an extent was the distinc- 
 tion carried that where the charge was simply of having 
 the pox, it was held the meaning of French pox could not 
 be given to the word by an innuendo, without an aver- 
 ment which warranted it. 2 Notwithstanding the dicta 
 above referred to, probably a better reason for holding 
 actionable a charge of having the leprosy or hies venerea 
 is that those diseases are supposed to be ineradicable from 
 the system, and their taint hereditary. 8 But if this 
 
 1 It was held not actionable to say of a man, Hang him, he is full of the pox 
 (Bonner's Case, 4 Coke, 17), or of a woman, You are a pocky whore, go to the leech 
 
 [doctor] for the pox ( o. Farm, Vin. Abr. Act. for Words, Y. a. 23), or, Thou 
 
 art a scurvy pocky whore (Hunt v. Jones, Cro. Jac. 499), because it was not apparent 
 that French pox was intended, but it was said in another case that when the word 
 pox was coupled with the word whore, the French pox would be intended (Sid. 50; 
 Clifton v. Wells, 12 Mod. 633 ; Garford v. Clark, Cro. Eliz. 857 ; and see note 2, p. 233, 
 ante). So saying of one, He caught the pox, was held not actionable, as not implying 
 the French pox, but saying he got the pox by a yellow-haired wench (Sym v. Hock- 
 ley, Sid. 324), or, He is rotten with the pox (Davies v. Taylor, Cro. Eliz. 648), or, 
 Thy pocky wife, her nose is eaten with the pox (Brooke v. Wise, Cro. Eliz. 878), or, 
 The pox haunts you twice a year (Preckington's Case, Vin. Abr. Act. for Words, Y. 
 a. 17), or, You were laid for the pox (Austin v. White, Cro. Eliz. 214), or, Thou art 
 burnt and has the pox (Box's Case, Cro. Eliz. 2), was held actionable because French 
 pox is implied. Webster, in his Dictionary, says that the word pox, without an 
 epithet, imports hies venerea. 
 
 2 Bonner's Case, Mo. 573 ; 4 Coke, 17. 
 
 8 See Report from Select Committee of House of Lords on the Contagious Diseases
 
 § 17G.] IS ACTIONABLE. 2 45 
 
 reason were the true one, then the charge of having had 
 should be actionable equally with a charge of having such 
 a disease. If, indeed, the disease be ineradicable, then to 
 have had it, is always to have it, and language charging 
 the having had such a disease should be actionable. 
 
 § 176. What language published in writing concern- 
 ing an individual as such, is actionable per se? That 
 language in writing is actionable per se which denies " to 
 a man the possession of some such worthy quality as 
 every man is a priori to be taken to possess," 1 or, which 
 " tends to bring a party into public hatred or disgrace," 2 
 or "to degrade him" 3 "in society," 4 or, expose him to 
 " hatred, contempt or ridicule," 5 or " which reflects upon 
 his character," 6 or " imports something disgraceful to 
 him," T or " throws contumely " on him, 8 or " contumely 
 and odium, 9 or " tends to vilify him," 10 or " injure his 
 character or diminish his reputation," n or which is " in- 
 
 Act of 1866. "West. Rev. July, 1869; Prostitution in relation to the National 
 Health, West. Rev. Oct., 1869. 
 
 1 George on Libel, 17. See § 21, ante. 
 
 2 Tenterden, Ch. J., Woodard v. Dowsing, 2 Man. & Ry. 74. 
 
 3 Holroyd, J., Id. 
 
 4 Bayley, B., Forbes v. King, 1 Dowl. 627. 
 
 6 Parmiter v. Coupland, 6 M. & W. 105; Gathercole v. Mial, 15 M. & W. 319; 
 Miller v. Butler, 6 Cush. 71 ; Shattuck v. Allen, 4 Gray, 540; Com'wealth v. Wright, 
 1 Cush. 46; Hillhouse v. Dunning, 6 Conn. 391; McGregor v. Thwaites, 3 B. & C. 
 24; Clement v. Chivis, 9 B. & C. 172; 4 Man. & R. 127; Clark v. Binney, 2 Pick. 
 113; Cooper v. Stone, 24 Wend. 434; Colby v. Reynolds, 6 Verm. 489; Johnson v. 
 Stebbins, 5 Ind. 364 ; Lansing v. Carpenter, 9 Wis. 540. 
 
 6 O'Brien v. Clement, 15 M. & W. 435 ; Johnson v. Stebbins, 5 Ind. 364; Adams v. 
 Lawson, 17 Gratt. 250. 
 
 7 Digby v. Thompson, 4 B. & Adol. 821 ; 1 Nov. & M. 485. 
 
 6 Bell v. Stone, 1 Bos. & P. 331 ; Obaugh v. Finn, 4 Pike, 110. 
 
 9 Riggs v. Denniston, 3 Johns. Cas. 198. 
 
 10 Shipley v. Todhunter, 7 C. & P. 680. 
 
 11 2 Leighs N. P. 1360; Dunn v. Withers, 3 Humph. 512; Melton v. The State, 3 
 Id. 380.
 
 240 WHAT WRITTEN LANGUAGE [Cll. VIII. 
 
 jurious to his character," 1 or to his " social character," 2 
 or shows him to be " immoralor ridiculous," 3 or " induces 
 an ill opinion of him," 4 or " detracts from his character as 
 a man of good morals," 5 or alters his " situation in society 
 for the worse," 6 or " imputes to him a "bad reputation " 7 
 or " degradation of character," 8 or ingratitude, 9 and all de- 
 famatory words injurious in their nature." 10 But to sus- 
 tain an action for libel the plaintiff must either show 
 special damage or " the nature of the charge must be such 
 that the court can legally presume he has been degraded 
 in the estimation of his acquaintances, or of the public, or 
 has suffered some other loss either in his property, charac- 
 ter or business, or in his domestic or social relations, in 
 consequence of the publication. 11 
 
 §177. It is actionable to charge one in writing with 
 
 1 Cockayne v. Hodgkisson, 5 C. & P. 543. 
 
 2 1 Am. Lead. Cas. 138; 3d Ed. 
 
 3 The State v. Farley, 4 M'Cord, 317. 
 
 4 Hillhouse v. Dunning, 6 Conn. 391. 
 
 6 Young v. Miller, 3 Hill, 21 ; Quinn v. O'Gara, 2 E. D. Smith, 383. 
 
 6 1 Starkie on Slander, 169; and see Turner v. Merryweather, 7 C. B. 251; 
 Wakley v. Healey, Id. 594; Gregory v. Reg., 15 Q. B. 957; Capel v. Jones, 4 C. B. 
 259 ; Prior v. Wilson, 1 C. B. N. S. 95. 
 
 7 Cooper v. Greely, 1 Denio, 347. 
 
 8 McCorkle v. Binns, 5 Binney, 340. 
 
 9 Cox v. Lee, Law Rep. IV. Ex. 284. 
 
 10 Chaddock v. Briggs, 13 Mass. 248. For some definitions of libel see ante, note to 
 § 21 ; The State v. Avery, 7 Conn. 267 ; Williams v. Karnes, 4 Humph. 9; Clark v. 
 Binney, 2 Pick. 113; Baron v. Beach, 5 N. Y. Legal Observer, 448. 
 
 11 Cooper v. Stone, 2 Denio, 299 ; repeated Bennett v. "Williamson, 4 Sand. 65. 
 " There must be some certain or probable temporal loss or damage to make words 
 actionable ; but to impute to a man the mere defect or want of moral virtue, moral 
 duties or obligations, which renders a man obnoxious to mankind, is not actionable. 
 (De Grey, Ch. J., Onslow v. Home, 3 Wils. 177, approved by Lawrence, J., Holt v. 
 Scholefield, 6 T. R. 691.) But it is said (1 Starkie on Slander, 2), " an action lies in 
 respect of any willful communication, oral or written, to the damage of another in 
 law or in fact, made without lawful justification or excuse." " A person cannot say 
 anything disparaging of another that has not a tendencj- to injure him morally or 
 professionally." (Tindal, Ch. J., Doyley v. Roberts, 3 Bing. N. C. 835 ; 5 Scott, 40.)
 
 §177.] IS ACTIONABLE. 247 
 
 being a villain, 1 liar, 2 rogue, rascal, 3 swindler, 4 drunkard, 
 cuckold and tory, 5 informer, 6 the author or publisher of a 
 libel or slander, 7 libellous journalist, 8 a hypocrite, and using 
 the cloak of religion for unworthy purposes ; 9 a miserable 
 fellow, it is impossible for a newspaper article to injure 
 to the extent of six cents, and that the community can 
 hardly despise him worse than they now do ; 10 or with 
 having kidnapped a free colored man and hurried him 
 into slavery ; n or, paid money to procure an appointment 
 to an office, or received money for offices ; 12 or, of having 
 
 1 Bell v. Stone, 1 Bos. & P. 331. 
 
 2 Brooks v. Bemis, 8 Johns. 455, approved Moore v. Bennett, 33 How. Pra. R. 180 ; 
 and see ante, § 144, subd. q. Liar and knave, see King's Case, 4 Inst. 181. A charging 
 that one shot out of a leather gun, meaning that he was guilty of falsehood, held 
 actionable. (Hirmon v. Delaney, 2 Str. 89, and post, note 6, p. 248.) 
 
 3 Rogue, rascal, swindler, villain, are libellous. (Cooke on Defam. 2.) "I look 
 upon him as a rascal," actionable. (Williams v. Karnes, 4 Humph. 9.) Felon, de- 
 bauchee, and seducer, are actionable. (Millett v. Hulton, 4 Esp. Cas. 248.) 
 
 4 I'Anson v. Stuart, 1 T. R. 748 ; see note 18, p. 239, ante, and note 6, p. 276, post. 
 6 Giles v. The State, 6 Geo. 276. In Smith v. Wood, 2 Salk. 692, it is said to call 
 
 a man cuckold is not an ecclesiastical slander, but to call him wittol is, for wittol 
 imports his knowledge and consent. Shakespeare says: Wittol-cuckold, the devil 
 himself hath not such a name. (Merry Wives of Windsor, act II, scene 2.) 
 
 6 2 Law Reporter, 126 (London, 1821 ; but see Informer, not actionable; Mawe v. 
 Pigott, 4 Ir. C. L. N. S. 54). 
 
 7 Andreas v. Koppenheafer, 3 Ser. & R. 255 ; Colby v. Reynolds, 6 Verm. 489 ; 
 Viele v. Gray, 10 Abb. Prac. Rep. 1; Kerr v. Force, 3 Cr. C. C. 8; Russell v. Ligon, 
 Vin. Abr. Act. for words, II. a. 27; Clark v. Binney, 2 Pick. 113. Held actionable 
 to publish " a report circulated by B. (the plaintiff) against C, stating he, C, made 
 him, B., pay a note twice, and proved by B. to be false. (Shelton v. Nance, 7 B. Monr. 
 128.) "' A report has gone abroad through the instrumentality of S. W. (the plaintiff), 
 stating that R. W. had a load of falsely-packed cotton bales, which report is a direct 
 falsehood," was held actionable. (Woodburn v. Miller, Cheves, 194.) " His slander- 
 ous reports nearly ruined some of our best merchants," held actionable. (Cramer v. 
 Noonan, 4 Wis. 231.) "He is a lying and slanderous rascal." (Snowdon v. Linds, 1 
 Cr. C. C. 569.) Formerly a libeler was disqualified from making a will. Sec Swin- 
 burne on Wills, P't 1, § 8, et seq. ; Redfield on Wills, ch. Ill, § 14 a., p. 118, and the 
 author or publisher of a libel could receive no benefit under the will of the person 
 libelled. See Domat's Civil Law, B'k I, p't II, title 1, § 111, subd. vii. Gardiner v, 
 Helvis, 3 Lev. 248. 
 
 6 Wakley v. Cooke, 4 Ex. 511. 
 • Thorley v. Kerry, 4 Taunt. 355. 
 
 10 Brown v. Remington, 7 Wis. 462. 
 
 11 Nash v. Benedict, 25 Wend. 645. 
 
 11 Weed v. Foster, 11 Barb. 203; and see Purdy v. Stacey, 5 Burr. 2698.
 
 2 48 WHAT WRITTEN LANGUAGE [Cll. VIII. 
 
 been deprived of the ordinances of the church ; 1 or with 
 being thought no more of than a horse-thief and a coun- 
 terfeiter ; 2 or, with stinking of brimstone and having the 
 itch ; 3 or, with voting twice on the same ballot for the 
 election of State officers ; 4 with infracting a patent, 5 with 
 falsehood, 6 dishonesty, 7 moral obliquity, 8 smuggling, 9 blas- 
 phemy, 10 false swearing, 11 insanity, 12 or being fit for a lunatic 
 
 1 McCorkle v. Binns, 5 Binn. 340. 
 
 2 Nelson v. Musgrave, 10 Mis. 648. 
 
 3 Villers v. Monsley, 2 Wils. 403. In this case the words complained of were: 
 
 Old Villars, so strong of brimstone you smell, 
 As if not long since you had got out of hell. 
 But this damnable smell I no longer can bear, 
 Therefore I desire you would come no more here. 
 You old stinking, old nasty, old itchy, old toad, 
 If you come any more you shall pay for your board. 
 You'll therefore take this as a warning from me, 
 And never enter the doors while they belong to I. P. 
 
 4 Walker v. Winn, 8 Mass. 248. 
 6 Watson v. Trask, 6 Ham. 531. 
 
 6 Cooper v. Stone, 24 Wend. 434; Lindley v. Horton, 27 Conn. 58; Woodburn v. 
 Miller, Cheeves, 194; Shelton v. Nance, 7 B. Monr. 128, and ante, note 2, p. 247. 
 
 7 Hart v. Reed, 1 B. Monr. 166; Taylor v. Church, 1 E. D. Smith, 279; s. c. on 
 appeal, 8 N. Y. 452 ; Fowles v. Bowen, 30 X. Y. 20; and see Henderson v. Hale, 19 
 Ala. 154. Actionable to publish of one that he had been detected in cheating at 
 cards. (Livingston v. Cheatham, Pamphlet Report; Holt on Libel, 239, note.) De- 
 tected implies guilt, ante § 144, subd. u. Where the defendant wrote concerning the 
 plaintiff, his late servant, " He has now become so inflated with self-importance by 
 the few hundreds made in my service, God only knows whether honestly or otherwise." 
 There was an innuendo that defendant meant that plaintiff was dishonest in the 
 service of defendant. The jury having found a verdict for the plaintiff, the court 
 refused to disturb the verdict. (Clegg v. Loffer, 3 Mo. k Sc. 727.) 
 
 8 Kerr v. Force, 3 Cr. C. C. 8. 
 
 9 Stilwell v. Barter, 19 Wend. 487. 
 
 10 Stow v. Converse, 3 Conn. 325, note 8, p. 272, post. 
 
 11 Steele v. Southwick, 9 Johns. 214. The words were: " Our army swore terribly 
 in Flanders, said Uncle Toby; and if Toby were here now, he might say the same of 
 some modern swearers; the man (meaning A. the plaintiff) is no slouch at swearing 
 to an old storj'; " held, that these words, if they do not import a charge of perjury, 
 were libellous, as they held up the plaintiff to contempt and ridicule, as being so 
 thoughtless or so criminal as to be regardless of the obligation of an oath. " I hope 
 you will stop swearing lies about the trees. * * I advise you either to quit lying 
 or preaching — one," actionable. (Adams v. Lawson, 17 Gratt. 250.) 
 
 12 Southwick v. Stevens, 10 Johns. 443; Morgan v. Lingen, 8 Law Times Rep. N. 
 S. 800 ; Rex v. Harvey, 2 B. & C. 258 ; Rex v. Creevey, 1 M. & S. 273 ; see, however, 
 Mayrant v. Richardson, 1 Kott & McCord, 348.
 
 § 177 «.] IS ACTIONABLE. 249 
 
 asylum, and unsafe to go at large ; * being guilty of gross 
 misconduct in insulting females, &c. ; ' 2 with want of chast- 
 ity ; 3 as engaged in serving writs on the anti-renters and 
 catching Indians ; 4 or for charging that the plaintiff, a 
 married man, went through the ceremony of marriage with 
 an actress ; 5 and to publish an obituary notice of a living- 
 person, was held actionable. 6 
 
 § 177 a. Plaintiff having defendant's bond, the validity 
 of which had been long litigated, advertised it for sale ; a 
 statement of the circumstances under which it was given, 
 concluding with, " His object is either to abstract money 
 from the pocket of an unwary purchaser, or what is more 
 likely, by this threat of publication to extort money from 
 me;" held to be actionable. 7 And held actionable to 
 charge one with the unauthorized publication of private 
 letters; 8 or with entering into a corrupt agreement to 
 benefit himself at the expense of the public, and if elected 
 to the Senate would use his influence to defeat the public 
 interest and benefit himself; 9 or imputing to one who is 
 an author a disregard of justice and propriety as a man, 
 and as being infatuated with vanity, mad with passion, 
 and the apologist from force of sympathy of another stig- 
 matized with ingratitude and perfidy, and as having pub- 
 lished as true statements falsified and encomiums retracted. 10 
 So it was held actionable to publish of one that he was 
 
 1 Perkins v. Mitchell, 31 Barb. 4G1. 
 
 a Clement v. Chivis, 9 B. & Cr. 172; 4 M. & R. 127. 
 
 3 Bod well v. Osgood, 3 Pick. 379. 
 
 4 Ilallock v. Miller, 2 Barb. 632. 
 
 6 Rex v. Kinnersley, 1 W. Black. 294; and see Caldwell v. Raymond, 2 Abb. Pra. 
 R. 193. 
 
 6 McBride v. Ellis, 9 Rich. Law, So. Ca. 313. 
 1 Robertson v. McDougall, 4 Bing. 070. 
 
 8 Bacon v. Beach, 5 N. Y. Legal Observer, 448. 
 
 9 Powers v. Dubois, 17 Wend. 63. 
 
 10 Cooper v. Stone, 24 Wend. 434. 
 
 17
 
 250 WHAT WRITTEN LANGUAGE [Cll. YIII. 
 
 " as versatile as Monroe Edwards (a noted forger) in cir- 
 cumventing the law of right ;" * or that he fraudulently 
 deceived another as to a fact, so as to induce him to in- 
 dorse a note for a larger sum than he intended ; 2 or that 
 he was prominent in the corrupt legislation of last winter f 
 or of one soliciting charity that she prefers unworthy 
 claims ; 4 or of one that, although aware of the death of a 
 person occasioned by his improperly driving a carriage, he 
 attended a public ball on the evening of the same day ; 5 
 or of a man, that he attended a political meeting while his 
 wife lay dead and unburied ; 6 or of one who had con- 
 tracted to relay a road with new material, that he had 
 used old material ; 7 and held actionable where a public 
 officer published, in a report of an official investigation 
 into his conduct, the following comments upon the testi- 
 mony of a witness before the commissioners of inquiry : 
 " I am extremely loath to impute to the witness, or his 
 partner, improper motives in regard to the false accusa- 
 tions against me ; yet I cannot refrain from the remark 
 that, if their motives have not been unworthy of honest 
 men, their conduct in furnishing materials to feed the flame 
 of calumny has been such as to merit the reprobation of 
 every man having a particle of virtue or honor. They 
 have both much to repent of for the groundless and base 
 insinuations they have propagated against me." 8 The de- 
 
 1 Cramer v. Noonan, 4 "Wis. 231. 
 
 2 Kerr v. Force, 3 Cr. C. C. 8. 
 
 3 Littlejohn v. Greeley, 13 Abb. Pra. R. 41. 
 
 4 Hoare v. Silverlock, 12 Q. B. 624. 
 6 Churchill v. Hunt, 1 Chit. R. 480. 
 
 6 The People v. Atkins, 42 Verm. 252. 
 
 7 Baboneau v. Farrell, 27 Eng. Law & Equity R. 339; 13 Com. B. 360; 24 Law 
 Jour. R., N. S., C. P. 9; 1 Jur.'N. S. 114. 
 
 8 Clark v. Binney, 2 Pick. 113. It was held actionable to publish, If any person 
 can ascertain that I. D. (the plaintiff) was married previous to 10 August, 1799. with 
 an innuendo meaning that he was married prior to the date mentioned, and had an- 
 other wife living, he being then married to E. his present wife. (Delaney v. Jones, 4 
 Esp. 191.)
 
 § 177 (t.~\ IS ACTIONABLE. 251 
 
 fendant wrote a letter, in which, referring to plaintiff, he 
 said : " D. keeps a well-spread table, bnt I always consider 
 myself in a family hotel when my legs are under his table, 
 for the bill is sure to come in sooner or later, though I 
 rarely dabble in the mysteries of ecarte or any other game. 
 The fellow is as deep as Crockford and as knowing as the 
 Marquis." This language was held libellous. 1 So this 
 language was held actionable : " As you will make consid- 
 erable by being summoned to court, I will advise you to 
 go and pay George Bowman the balance you owe him for 
 his wild hogs you killed. 11 2 Where the declaration set 
 out a letter addressed by defendant to the clerk of the 
 board of guardians of a poor-law union, in respect of an 
 allowance ordered by said board toward the maintenance 
 of the mother of plaintiff and defendant, the letter stated 
 that the plaintiff "has for years, without the slightest 
 cause, systematically done everything she can to annoy me 
 (defendant), and I am sorry to say my mother is only too 
 glad to assist her. Some years ago they dragged me into 
 chanceiy, and almost every term I am obliged to appear by 
 counsel before the Vice-Chancellor. They had no business to 
 include me in the bill, as I make no claim to my late father's 
 property. But of course it is a pleasure to my mother 
 and Miss Fray (plaintiff) to put me to all the expense 
 they can. Doubting as I do my mother's extreme poverty, 
 I think the proper test of it is an order for the workhouse, 
 the expense of which should be borne proportionately by 
 all her children; and as Miss Fray (plaintiff) is a lady of 
 independence, and a single woman, and can find the money 
 for carrying on all sorts of law proceedings, she should not 
 be exempted, 11 held, on demurrer, that the declaration dis- 
 closed a cause of action. 3 And so where the defendant 
 
 1 Dif;by v. Thompson, 4 B. <fc Adol. 821. 
 
 2 Adams v. Lawson, 17 Grat. 250. 
 
 3 Fray v. Fray, 34 Law Jour. C. P. 45. It may interest some of our readers to 
 know that the plaintiff, a lady, argued the demurrer in person.
 
 252 WHAT WRITTEN LANGUAGE [Cll. YHX 
 
 wrote and published of the plaintiff, a hotel and job coach 
 proprietor by trade, and a Presbyterian by religion, that 
 from mere motives of intolerance he had refused the use 
 of his hearse for the funeral of his deceased servant, be- 
 cause the body was about to be interred in a Eoman 
 Catholic cemetery, held, overruling a demurrer to the de- 
 claration, that the court could not so clearly see that the 
 language might not be actionable as to justify the with- 
 drawal of the case from a jury. 1 And as a rule the court 
 on demurrer will not construe the words mitiori sensu, 
 but will see if there is anything in the language which by 
 a reasonable intendment is actionable. 2 
 
 § 178. It is not actionable to charge one in writing 
 with a breach of conventional etiquette, 8 or with an inten- 
 tion to put money into Wall street for shaving purposes, 4 
 or of having brought suit against one's mother-in-law. 5 
 So the words, " the Kev. 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," pub- 
 lished by posting a paper on which they were written, 
 purporting to be a regulation of a particular society, held 
 not to be actionable. 6 It was held not libellous to pub- 
 
 1 Teacy v. McKenna, 4 Ir. R. C. L. 374. 
 
 8 Mawe v. Pigott, 4 Ir. R. C. L. 54 ; ante, note 2, p. 182. 
 
 3 Clay v. Roberts, 8 Law Times, N. S. 397 ; 9 Jur. N. S. 580. The charge was 
 that plaintiff, an allopathic physician, met homceopathists in consultation, and that in 
 the opinion of the profession it was improper so to do, and against etiquette; and, 
 further, that in the opinion of the profession it was disgraceful for an allopath to 
 meet a homoeopath in consultation. 
 
 1 Stone v. Cooper, 2 Denio, 293. 
 
 6 Cox v. Cooper, 9 Law Times, N. S. 329. Defendant published in a newspaper as 
 a report of a proceeding in court ; C. v. G. When this cause was called, the plaintiff 
 was not in court, upon which A., who appeared for the defendant (the plaintiff's 
 mother-in-law), applied for costs, which were allowed, and the case struck out. The 
 declaration alleged that it did not appear by the proceedings in court that the 
 defendant was plaintiff's mother-in-law, and that that fact was maliciously stated to 
 create an unfavorable impression against plaintiff, and a suspicion of him, and that 
 he ought to be regarded with suspicion of being guilty of something wrong in suing 
 his mother-in-law, but held no cause of action disclosed. 
 
 6 Robinson v. Jcrmyn, 1 Price, 11.
 
 § 178.] IS ACTIONABLE. 253 
 
 lisli of one who was a druggist, "The above druggist 
 refusing to contribute his mite with his fellow merchants 
 for watering Jefferson avenue, I have concluded to water 
 the avenue in front of his store for one week." 1 And 
 held not actionable to publish of one that was engaged in 
 a " gambling fracas " arising out of a dispute at pla/y, 
 there being no averment that illegal play was intended. 3 
 Where a paragraph in a newspaper merely stated that a 
 bill had been drawn, and that the acceptance had been 
 forged or obtained by fraud, but threw no imputation on 
 the drawer (the plaintiff), nor insinuated that the plaintiff 
 had practised the fraud or committed the forgery, it was 
 held not to amount to a libel on the plaintiff. 3 And 
 where it was stated that the plaintiff purchased a news- 
 paper and gave his note for it ; that he was unable to pay 
 the note, and begged for delay ; and that subsequently, 
 when sued upon it, he pleaded the statute of limitations 
 successfully; held that, there being no charge of dishon- 
 esty, the publication was not libellous. 4 So where the 
 defendant published of the plaintiff that he was " a purse- 
 proud aristocrat ;" that he desired to put down the United 
 States Bank to make stock held by him in other banks 
 more valuable; that he was an office-holder, and that he 
 wanted to increase his means by oppressing the farmer 
 and mechanic; that he attacked Mr. Webster to gratify 
 his propensity for misrepresentation with other charges. 
 On demurrer to the declaration, the court held that there 
 
 1 The People v. Jerome, 1 Manning's Mich. R. 142. 
 ■ Forbes v. King, 1 Dowl. 672. 
 
 3 Stockley v. Clement, 4 Bing. 1 62. 
 
 4 Bennett v. "Williamson, 4 Sand. 60. The author was of counsel with the plaintiff 
 in this case, and believes the decision has never been regarded as authoritative. In 
 Cox v. Lee, Law Rep. IV. Ex. 284, the charge was -somewhat similar to that in Ben- 
 nett v. Williamson, and a verdict for the plaintiff was upheld. Where the charge 
 w:i-, " This Major Noah, the knight of the broken seal, who converted to his own u-;e 
 property known to be stolen, meaning he obtained possession of a political letter 
 addressed to another person, which he hid published," the jury failed to agree. 
 (Noah's Case, 3 City Hall Recorder, 18.) Opening a letter and detaining it merely 
 from curiosity or political motives, held to be a trespass only, and not a felony. 
 (Rex v. Godfrey, 8 C <fe P. 563.)
 
 25-1 LANGUAGE COISTCER^NG [Cll. VIII. 
 
 was nothing in this language " calculated seriously to 
 degrade "plaintiff, and allowed the demurrer. 1 Defend- 
 ant wrote of plaintiff, an attorney : " I will give you an 
 anecdote of R. (plaintiff), as told to me. "W., who was 
 considered an opulent farmer, and thought himself such, 
 sent for R. to make his will, which he did, and bequeathed 
 to his wife and family £7,500. R. attended the opening 
 of the will. The family were pleased, when lo, and 
 behold ! and now comes the tale. R. produces a bill 
 for £7,500 for business done for the last fifteen years, 
 pounces on the property, and possesses every shilling to 
 this day. So the story has been told to me." On de- 
 murrer to the declaration, held by the majority of the 
 court that the language was not libellous. 2 
 
 § 179. There is a distinction as to its actionable quality 
 between language concerning an individual as such, and 
 language concerning one in certain capacities or special 
 characters. Heretofore in this chapter the attention has 
 been solely directed to language concerning an individual 
 as such; we have now to consider what language concern- 
 ing one in certain acquired capacities or special characters 
 is actionable per se f Language which is actionable, if 
 published of an individual as such, does not cease to be 
 actionable because published of one in a special character ; 
 and all lano-uas-e which is actionable as concernino- an 
 individual as such, must also be actionable when it con- 
 cerns him in any special character of the kind presently 
 to be mentioned. Our present inquiry is limited to that 
 language which, not being actionable when published of 
 an individual as such, becomes actionable when published, 
 and because it is published, of him in some special 
 character or relation. The effect of the special character 
 of the publisher, and of the person to whom the publica- 
 tion is made, will be considered under the head of defences. 
 Where the language is actionable as concerning an in- 
 
 1 Tapham v. Wilson, 7 Ham. 190. This case cannot be regarded as an authority. 
 
 2 Reeves v. Templar, 2 Jur. 137.
 
 §§ 180, 181.] SPECIAL OHAEACTEES. 255 
 
 dividual as such, it is unimportant and mmecessary, except 
 in some cases as affecting the amount of damages, to 
 inquire further whether such language is also actionable 
 as concerning him in some special character ; as thus, where 
 an action was for language alleged to be concerning the 
 plaintiff generally and concerning him as an attorney, the 
 language being actionable as concerning the plaintiff 
 generally, it was held that he might sustain the action 
 without proof of his being an attorney. 1 
 
 § 180. The distinction maintained between oral and 
 written language, as regards its actionable quality when 
 published concerning an individual as such, is not re- 
 cognized in regard to language concerning one in a special 
 character. As respects language concerning one in a 
 special character, it makes no difference, as we suppose, in 
 regard to its actionable quality, whether it be published 
 orally or in writing. 2 Because the language in writing 
 which concerns one in a special character, is usually 
 actionable when published concerning the individual as 
 such, and without reference to his special character ; it is 
 almost exclusively in respect to oral language that questions 
 arise as to whether it is or is not actionable as affecting 
 one in a special character. 
 
 § 181. In connection with our present inquiry, it must 
 be remembered that no special character which one may 
 occupy can enhance his rights to protection, for that would 
 be in derogation of the rule to which reference has hereto- 
 fore been made (§ 138). Whatever may be the special 
 character, the right must be the same as the right of every 
 other individual, the right that no one shall, without legal 
 excuse, publish language concerning another or the affairs 
 
 J Lewis v. Walter, 4 D. & Ry. 810 ; Harwood v. Astley, 4 B. & P. 87. 
 
 3 Holt on Libel, 218. But he adds, "though defamation when written may be 
 
 actionable under certain circumstances when the same words if spoken would not." 
 See in note to § 18, atitc, and note, p. 250, pout.
 
 256 WHAT LANGUAGE IS ACTIOXABLE [Ch. VIII. 
 
 of another which shall occasion him damage (§§ 70, 49), 
 that is, pecuniary loss. But although one by virtue of 
 his special character has no right superior to that of an 
 individual as such, and who does not possess any special 
 character, yet it must be obvious that one may occupy a 
 position in society which will render it easier to occasion 
 him damage than to occasion damage to one not so 
 situated. The position of a person may render him 
 peculiarly obnoxious to injury. It is this special suscep- 
 tibility to injury alone, that creates the distinction between 
 the actionable quality of language when it concerns one 
 in a special character and when it concerns him only as an 
 individual. It is not every special character the possession 
 of which renders its possessor more than ordinarily sus- 
 ceptible to injury by language, and this being so we have 
 to ascertain which are the special characters that have such 
 an effect. It is not possible to particularize the special 
 characters which entail this greater degree of liability to 
 injury, but it may be stated generally that every legal 
 occupation or position from which pecuniary benefit may 
 or possibly can be derived, will create in the follower of 
 such occupation, or the holder of such position, that peculiar 
 or special susceptibility to injury by language to which 
 reference has already been made ; and hence results this 
 rule, that language concerning one in any such lawful 
 occupation or position may, as a necessary consequence, 
 occasion him damage which would not have that con- 
 sequence if it concerned him as an individual merely ; 
 and therefore, as heretofore (§ 132) observed, language 
 which would not be actionable if it concerned only an 
 individual as such, may be actionable if it concerns him 
 in his special character. 1 The rule which makes language 
 
 1 Brown v. Smith, 13 C. B. 596. "For the reason that from the nature of the 
 case it is evident damage must ensue." (McMillen v. Birch, 1 Binn. ITS.) "The 
 law has always been very tender of the reputation of tradesmen, and therefore 
 words spoken of them in the way of their trade will bear an action that will not be 
 actionable in the case of another person ; and if bare words are so, it will be
 
 § 182.] CONCERNING SPECIAL CHARACTERS. 257 
 
 concerning one in a special character sometimes actionable, 
 when the same language concerning one as an individual 
 
 kD CD O 
 
 merely would not be actionable, is in reality nothing more 
 than a phase of the rule (§ 134) that language connected 
 with any fact affecting its meaning or effect, must be con- 
 strued in connection with such fact. The language being 
 connected with the fact of the special character of the 
 person whom it concerns, must be construed in reference 
 to such special character. 
 
 § 182. Limiting ourselves for the present to occupa- 
 tions, we conclude that subject only to the conditions (1) 
 that the occupation is one in which a person may lawfully 
 be engaged, and (2) that it is an occupation which does 
 or reasonably may yield, or may be expected to yield, 
 pecuniary reward, there is no employment — call it business, 
 trade, profession or office, or what you will 1 — so huinble 
 or so exalted but that language whicji concerns the person 
 in such his employment will be actionable, if it affects him 
 therein in a manner that may, as a necessary consequence, 
 or does as a natural and proximate consequence, prevent 
 him deriving therefrom that pecuniary reward which prob- 
 ably he might otherwise have obtained. 2 West ate the 
 rule much broader than usual. Ordinarily it is said that 
 the language must concern one in his business, profession, 
 or office, and then is discussed what occupations are com- 
 prised within the terms business or profession, and what 
 kind of office is intended. In one case 3 it was said obiter 
 
 stronger in the case of a public newspaper -which is so diffusive." (Harman v. 
 Delany, 2 Str. 898.) "In case of slander of a person in the way of his trade, the 
 fact of his being in trade stands in the place of special damage." (Williams, J., 
 Rolin v. Steward, 14 C. B. G03.) 
 
 1 Business includes trade and more. "Trade has a more restricted meaning than 
 business." (Harris v. Amiry, Law Rep. II, 154, C. P.) The words Business embraces 
 everything about which a person can be employed. (Parker Mills v. Com'rs of 
 Taxes, 23 N. Y. 244.) 
 
 2 Foulger v. Newcomb, Law Rep. II, 32V, Ex. See note 1, p. 258, post. 
 
 3 Wharton v. Brook, 1 Vent. 21. Where I. S. said to A., who kept a stable and
 
 258 WHAT LANGUAGE IS ACTIONABLE [Cll. YIII. 
 
 that to call a woman who taught children to read and 
 write (a school-teacher or school-mistress) a whore was 
 not actionable, because she was not in a business or pro- 
 fession. For the same reason, Lord Hale, in another case, 
 was for denying the right to recover to a letter-carrier 
 charged with breaking open letters. The tenor of his 
 Lordship's remarks was that if such an action could be 
 maintained, a man should not speak disparagingly of his 
 cook or his groom but an action would be brought. 1 It 
 was said of a renter of tolls that he was not in a business 
 or profession in which he could be slandered or libelled, 2 
 and the like was held of a stock broker. 3 On the other 
 hand, it has been held that the business need not be one 
 which renders him who follows it liable as a trader to the 
 bankrupt law, 4 and that the same rule applies to a mere 
 trader or retail dealer as to a merchant. 5 It was supposed 
 
 received horses at livery (a livery-stable keeper), " Thou buyest nothing but rotton 
 hay to poison men's horses," it was held that A. could not maintain an action there- 
 for because he was not of any trade allowed in law. (Jones v. Joice, Vin. Abr. Act. for 
 Words, U. a. 7.) Livery-stable keeping is recognized as a business in which one may 
 be libelled. See Southam v. Allen, Rayni. 231 ; Alexanders. Angle, 1 Cr. & J. 143. 
 
 1 1 Vent. 275. " The humility of the employment or occupation seems no objec- 
 tion to the action, either in law or in reason." (1 Starkie on Slander, 128; and see 
 Cooke on Defam. 21; Terry v. Hooper, Lev. 115.) The courts have not one rule 
 for one individual, and a different rule for another, or one for the rich and another 
 for the poor. (Rex v. L'd Cochrane, 3 Maule &. S. 10; Sinclair V. Charles Phillipe, 
 2 B. & P. 363.) In Cockaine v. Hopkins, 2 Lev. 214, the plaintiff alleged that he 
 used the art of buying and selling and gained great profit thereby, and that defendant 
 said of him, He is a runagate, whereby he, plaintiff, lost his customers, hut did not 
 allege special damage ; after verdict for plaintiff, judgment was arrested because, as 
 the court said, runagate was not equivalent to bankrupt, and as plaintiff did not 
 allege what trade he followed.it might be a tinker or pedlar, who is a rogue by 
 statute. This presuming that plaintiff's trade is unlawful was clone in Morris v. 
 Langdale, 2 Bos. & Pul. 284 ; but at this day the presumption would be the other 
 way. See post, note 4, p. 260. 
 
 2 Bellamy v. Burch, 16 M. tfe W. 590; and see Sellars v. Killew, 7 Dowl. ± R. 
 121; 4 B. & C 55. 
 
 3 Morris v. Langdale, 2 Bos. <fe Pul. 284. 
 
 4 Whitaker v. Bradley, 7 D. & R. 649; S. C. Whittington v. Gladwin. 5 B. A C. 
 180; 2 Car. & P. 146. 
 
 B Gates v. Bowker, 8 Verm. (3 Wash) 23; Ostrom v. Calkins, 5 "Wend. 264; 
 Carpenter v. Dennis, 3 Sandf. 305.
 
 § 183.] CONCERNING SPECIAL CHARACTERS. 239 
 
 formerly tliat the rule was limited to occupations by 
 which the person whom the language concerned obtained 
 his livelihood or " daily bread ; " but such a limitation, 
 if it ever existed, no longer prevails. It is now held to 
 be sufficient if the person whom the language concerns 
 habitually (as distinguished from occasionally) acts in or 
 pursues the occupation to derive an emolument from it. 1 
 Where it was objected against the plaintiff's right to 
 recover that it was not alleged he got his living by his 
 occupation, the objection was overruled. 2 
 
 § 183. We mentioned in the last preceding section 
 (§ 182) as one of the conditions to the right of action for 
 language concerning one in his occupation, that the occupa- 
 tion must be a lawful one. It is a universal rule, of which 
 very numerous examples are to be found in the reports, 
 that one engaged in an unlawful pursuit cannot recover 
 for work done or goods sold by him, nor for any injury he 
 may sustain in such occupation ; 8 hence, for language con- 
 cerning a person in an unlawful occupation, an action is 
 not maintainable. Thus it was held that pugilistic exhi- 
 bitions being illegal, one could not maintain an action for 
 language affecting him as proprietor of a tennis court 
 where such exhibitions were made ; 4 and semble one who 
 
 1 Baboneau v. Farrell, 15 C. B. 360; Bryant v. Loxton, 11 Moore, 344; Davis v. 
 Davis, 1 Nott &, M'C. 290. " The action seems to extend to words spoken of a 
 person in any lawful employment in which he may gain his livelihood." (1 Starkie 
 on Slander, 127.) "It does not appear to be necessary that the party should gain 
 his living in the character to which the slander is applied, but it is sufficient if he 
 habitually act in that character and derive emolument from it. {Id. 129.) 
 
 2 Dobson v. Thorstone, 3 Mod. 112. 
 
 3 Timmerrnan v. Morrison, 14 Johns. 369; Allcott v. Barber, 1 Wend. 526 ; Smith 
 v. Tracy, 2 Hall, 465 ; Bailey w.Mogg, 4 Denio, 60; Finch v. Gridley, 25 Wend. 469; 
 Smith if. Wilcox, 24 X. Y. 353; s. c. 19 Barb. 581, and 25 Barb. 341; Cundell v. Daw- 
 son, 4 C. B. 476 ; Best v. Bauder, 29 How. Pr. R. 489 ; Ferdon v. Cunningham, 20 id. 
 154; Cope v. Rowland, 2 M. & W. 149; Smith v. Mawhood. 14 M. & W. 452 ; Seneca 
 County B'k v. Lamb, 26 Barb. 595; Barton v. Port Jackson Plank Road, 17 Barb. 397 ; 
 Griffith v. Wells, 3 Denio, 227 ; Bell v. Quinn, 2 Sandf. 146; Taylor v. Crowland Gas 
 Co., 10 Ex. 293; 18 Jur. 913; 26 Eng. Law & Eq. R. 460; Cowan v. Milbourn, 2 Law 
 Rep. 230, Ex. ; 2 Pars, on Cont. 259 ; Story on Contr. 620. 
 
 4 Hunt v. Bell, 1 Bing. 1.
 
 260 WHAT LANGUAGE IS ACTIONABLE [Cll. VIII. 
 
 practices as a physician without being duly licensed can- 
 not maintain an action for language concerning him as a 
 physician. 1 The fact, however, that a person is engaged 
 in an unlawful occupation is no reason for his not being 
 allowed his action for any language concerning him as an 
 individual, or concerning him in any other and lawful 
 occupation in which he may be engaged. 2 If the language 
 be actionable as concerning the person as an individual 
 merely, it is unimportant and unnecessary to inquire fur- 
 ther whether he is in any or in what occupation, legal or 
 otherwise. 3 If the illegality of the occupation proceeds 
 from the fact that the person following it is not duly 
 licensed, the burden is on the publisher to show that the 
 person whom the language concerns was unlicensed. 4 
 
 § 184. As to the kind of office which one must hold to 
 render actionable language which concerns him in such 
 office, it is laid down by Starkie, but as we conceive erro- 
 neously, that " words are equally actionable, whether the 
 office be lucrative or merely confidential." 5 Pecuniary loss 
 is the gist of the action for slander or libel (§ 57) ; and 
 as no pecuniary loss can result from language concerning 
 
 1 Marsh v. Davison, 9 Paige, 580, referring to a statute since repealed. 
 
 s Yrisarri r. Clement, 2 C. <fc P. 223 ; 3 Bing. 432 ; 11 Moore, 308 ; Greville >■. Chap- 
 man, 1 D. & M. 553; Cheney v. Goodrich, 98 Mass. 224. In Manning v. Clements, 1 
 Bing. 362 ; 5 M. & P. 211, the plaintiff alleged he was a manufacturer of bitters, and 
 defendant was 'allowed to introduce, evidence of the illegality of such manufacture 
 (namely, that the alleged bitters were another and a prohibited article), not as a justi- 
 fication, but in contradiction of plaintiff's allegation. 
 
 3 Harwood v. Astley, 4 Bos. & P. 47 ; Lewis v. Walter, 4 D & Ry. 810. 
 
 4 Fry v. Bennett, 28 N. T. 324; Smith v. Joyce, 12 Barb. 25. See note 3, p. 268. 
 
 6 1 Starkie on Slander, 119. He states that the whole class of cases in which re- 
 covery has been had for words affecting one in office not lucrative, " seems to rest on 
 more dubious principles than any other." At page 122 he says — erroneously as we 
 conceive — " the danger of exclusion from office gives rise to the action." And *t page 
 118 he says the ground of action is "somewhat different" according as the office is 
 confidential or lucrative. And at page 124 he says "the action appears to extend to 
 all offices of trust or profit without limitation, provided they be of a temporal nature." 
 This word temporal is used as the converse of spiritual, to exclude the ecclesiastical 
 jurisdiction.
 
 § 185.] CONCERNING SPECIAL CHARACTERS. 261 
 
 one ill an office which yields no pecuniary emolument, 
 words not otherwise actionable cannot become so because 
 they concern one in such an office. 1 Whatever may have 
 been the doctrine and practice of the Court of the Star- 
 Chamber, or of the common law courts under the statutes 
 scandalum magnatum, we believe that no court proceed- 
 ing according to the common law, and independently of 
 any statute, has sanctioned the doctrine as laid down by 
 Starkie. Wherever lano-uao-e concerning one in an office 
 merely honorary has in a common law court, and inde- 
 pendently of any statute, been held actionable, it will be 
 seen that the lano;uao;e would have been actionable had it 
 been published of an individual as such. 
 
 § 185. Another relation or special character in which 
 one may be injuriously affected by language, is that of 
 partner. Language may concern partners or one or some 
 of several partners in their or his individual capacity 
 merely, or it may touch them or him in their or his part- 
 nership business. As respects language concerning one 
 who is a partner, and which concerns him as an individual 
 merely, the fact of his being a partner, unless, perhaps, as 
 affecting the damages, has no significance. Language con- 
 cerning partners in their partnership business may be 
 actionable per se, or actionable only by reason of the spe- 
 cial damage. That language touching the business which 
 would be actionable per se if published concerning one 
 who is not a partner, would be actionable per se as con- 
 cerning partners or one who is a partner. Actionable 
 language concerning partners, and which touches them in 
 
 1 Gallwey v. Marshall, 9 Ex. 294. In that action the language (oral) imputed in- 
 continence to a clergyman. The court, in deciding against the plaintiff, said: We 
 should have no doubt of the plaintiff's right to recover if the declaration had averred 
 that he was beneficed, or was in the actual receipt of professional temporal emolument, 
 * * as the charge would have caused the loss of the benefice or the emoluments. 
 In the absence of any averment of plaintiff having any office of temporal (pecuniary) 
 profit, we are not satisfied this action will lie. There is no authority that it will where 
 there is no actual damage.
 
 262 WHAT LANGUAGE IS ACTIONABLE [Cll. \TH. 
 
 their partnership business, is an injury to their joint busi- 
 ness, and is a joint and several injury, for which both may 
 sue jointly or either may sue separately. Thus where the 
 language imputed to two persons, who were partners as 
 wool-staplers, that they had been guilty of fraud in a sale 
 of wool, and they sued jointly, alleging special damage to 
 their trade, the action was sustained. 1 For words charg- 
 ing partners with making an assignment to defraud their 
 creditors, an action by one partner was allowed ; 2 and 
 where the firm was charged with insolvency, the language 
 used being " J. T. &, Co. are down," held a joint action 
 might be maintained. 3 In such a joint action no damages 
 are recoverable for the injury to the feelings of the part- 
 ners. 4 Where language concerns one only of several part- 
 ners, but touches him in his partnership business, there is 
 an injury to the partnership business, for which the part- 
 ner whom the language concerns may sue alone, or all the 
 partners may unite with him. Thus where the language 
 was of one of several partners as bankers, and imputed to 
 him insolvency, and for this he alone brought suit alleging 
 damage to the partnership business, it was pleaded in 
 abatement that the plaintiff carried on his business jointly 
 with A. B., and that the alleged damage accrued to A. B. 
 jointly with the plaintiff. On general demurrer the 
 plea was overruled, but a question was raised whether a 
 special demurrer might not have been interposed to the 
 declaration for uniting; damages which accrued to the 
 plaintiff with damages which accrued to his partner. In 
 other words, as the damage to the business was jointly to 
 the plaintiff and his partners, was it proper for plaintiff 
 
 1 Cook v. Batchelor, 3 Bos. <fe Pul. 150; see note to Goldstein v. Foss, 2 Car. & 
 P. 252. 
 
 3 Odiorne v. Bacon, 6 Cush. 185. 
 
 3 Titus v. Follett, 2 Hill, 318 ; and see Foster v. Lawson, 3 Bing. 4o2 ; Le Fanu v. 
 Malcomson, 1 CI. '<fe Fin. N. S. 63V; Maitland v. Goldney, 2 East, 426; Beardsley r. 
 Tappan, 1 Blatch, C. C. Rep. 588. See Corporations. 
 
 4 Haytliorn v. Lawson, 3 Car. & P. 196.
 
 § 186.] CONCERTING SPECIAL CHARACTERS. 263 
 
 to allege them in his declaration ? It was assumed that 
 on the trial the jury would separate the damages ; 1 and 
 in other cases, one of several partners sustained an action 
 for libel on him in his business. 2 Where the language 
 published purported to give information as to the credit 
 and standing of a mercantile firm, and charged one mem- 
 ber with dishonesty, a joint action by all the partners was 
 sustained. 8 Where the partners unite in the action, or 
 where the partner whom the language concerns sues alone, 
 in either case the language being of the kind called action- 
 able per se (§§ 146, 147), the action may be maintained 
 without any allegation or proof of special damage ; 4 but 
 where a partner whom the language does not personally 
 concern sues alone for language personally concerning his 
 partner, in that case the action cannot be maintained unless 
 there be an allegation and proof of special damage. A 
 recovery by the partner whom the language personally 
 concerns would not bar an action by his partner, and 
 probably would not bar a separate action by all the part- 
 ners ; nor would a recovery by all the partners be a bar 
 to a separate action by the partner whom the language 
 personally concerns. 5 
 
 § 186. The circumstance of one being heir presumptive 
 has been held to give an actionable quality to language 
 concerning him in that character. StarMe devotes a chap- 
 ter to a partial review of the cases in which, on the ground 
 that it may cause his disinherison, it has been held action- 
 able to call a presumptive heir bastard, and he concludes 
 
 1 Robinson v. Marchant, 7 Q. B. (Adol. & Ell. N.S.) 918. 
 
 9 Fidler v. Delavan, 20 Wend. 57; and see Solomon v. Medex, 1 Stark. Cas. 191; 
 Harrison v. Bevington, 8 Car. & P. 708, and Davis ?>. Ruff, Cheves, 17. This last-named 
 case is commented on in Taylor v. Church, 1 E. D. Smith, 287. 
 
 3 Taylor v. Church, 1 E. D. Smith, 279 ; s. c. 8 N. Y. 452. 
 
 4 Id.; 2 Saund. PI. & Ev. 117 a. 117 b. 6 ed. ; and see Foster ». Lawson, 3 Bing. 
 452; 11 Moore, 360. 
 
 6 Taylor v. Church, 1 E. D. Smith, 287.
 
 264 WHAT LANGUAGE IS ACTIONABLE [Cll. VILT. 
 
 that, although such decisions carry the doctrine of presump- 
 tive loss to a great extent, they seem to be warranted by 
 the application of sound and general principles. He does 
 not state what those principles are, and for ourselves we 
 can discover no principle which will support such decis- 
 ions. It certainly is not a necessary consequence that one 
 should disinherit his presumptive heir because it has been 
 said of him that he is a bastard. 
 
 S 187. One beino- a candidate for an office or for em- 
 ployment does not have the effect to make language con- 
 cerning him in that character actionable per se, otherwise 
 than as it would be actionable per se if it concerned him 
 as an individual merely. 1 If the language concerning a 
 candidate for office or employment occasions him special 
 damage, as the failure to obtain such office or employment, 
 it will be actionable ; thus if a clergyman is to be pre- 
 sented to a benefice, and one to defeat him says to the 
 patron, He is a heretic, or a bastard, or excommunicated, 
 and he thereby loses his presentment, he may have his 
 action ; 2 and where a lawyer was a candidate for the office 
 of steward of a corporation, and the electors being assem- 
 bled to make an election, one of them said to the others, 
 He (said candidate) is an ignorant man and not fit for the 
 place, by means of which he was refused, the court inclined 
 to the opinion that the words were actionable, but no 
 judgment was given. 3 The fact of one being a candidate 
 for an office or for employment, in many instances affords 
 a license or legal excuse for publishing language concern- 
 ing him as such candidate, for which publication there 
 would be no legal excuse did he not occupy the position 
 
 1 Powers v. Dubois, 17 Wend. 63; Prinn v. Howe, 1 Browu's Cas. Pari. 64; Little- 
 john v. Greely, 13 Abb. P. R. 41 ; Hunt v. Bennett, 4 E. D. Smith, 647; 19 N. Y. 173. 
 
 s Davis v. Gardiner, 4 Rep. 17 a. 
 
 3 Sanderson v. Ruddes, Mar. 146. Words which will cause others not to vote for 
 him of whom they were spoken, at an election at which he is a candidate, are action- 
 able. (Brewer v. Weakley, 2 Overt. 99.)
 
 § 188.] CONCERNING SPECIAL CHARACTERS. 265 
 
 of such a candidate. The consideration of language con- 
 cerning one as a candidate for office or for employment 
 falls more appropriately under the head of legal excuses 
 or defenses, and it will be there discussed. 
 
 8 188. As regards the kind of lano-uaa-e concerning one 
 in an occupation or office which will confer a right of 
 action, it has been said: "Words are actionable when 
 spoken of one in an office of profit, which may probably 
 occasion the loss of his office, or where spoken of persons 
 touching their respective professions, trades, and business, 
 and do or may probably tend to their damage. 1 " If the 
 words be of probable ill consequence to a person in a trade 
 or profession or an office ; " 2 Bayley, B., objected to this 
 rule that the words probably and probable were too indefi- 
 nite, unless considered equivalent to " having a natural 
 tendency to," and as confined within the limits of showing 
 the want of some necessary qualification or some miscon- 
 duct in the office, it went beyond what the authorities 
 warranted. 3 But, " How is a natural stronger (more defi- 
 nite) than & probable tendency \ " 4 To maintain an action 
 for words spoken, they must impute some matter in rela- 
 tion to the party's particular trade or vocation, and which, 
 if true, would render him unworthy of employment. 5 
 "Every authority which I have been able to find either 
 shows the want of some general requisite, as honesty, ca- 
 pacity, fidelity, <fec, or connects the imputation with the 
 plaintiff's office, trade or business;" 6 or his office of trust 
 and place of honor, provided they be of a temporal na- 
 
 1 De Grey, Ch. J., Onslow v. Home, 2 Wils. 186. 
 9 Same case, as reported 2 W. Bl. R. 753. 
 
 3 Ltimby v. Allday, 1 Cr. & J. 301 ; 1 Tyrw. 217. 
 
 4 Williams, J., James v. Brook, 9 Q. B. 7 ; arid see Sibley v. Tomlins, 4 Tyrw. 90. 
 ' 6 Kinney v. Nash, 3 N. Y. 177; Fowles v. Bowen, 30 N Y. 24. 
 
 8 Bayley B., Lumby v. Allday, 1 Cr. & J. 301 ; 1 Tyrw. 217; approved Ayre v. 
 Craven, 2 Adol. & El. 2; 2 Nev. & M. 220; and see Jones v. Littler, 7 M. & W. 433; 
 South.ee v. Denny, 1 Ex. 196; Jame3 v. Brooke, 9 Q. B. 7. 
 
 18
 
 266 WHAT LANGUAGE IS ACTIONABLE [Cll. VIII. 
 
 ture; 1 and "We ought not to extend the limits of actions 
 of this nature "beyond those laid down by our predeces- 
 sors." 2 Although every lawful lucrative occupation is, as 
 regards the actionable quality of language, governed by 
 the same general principles, yet the kind of occupation 
 affects the application of the principles, and the identical 
 language which may be not actionable as concerning one 
 in some certain occupation, may be actionable as concern- 
 ing one in some other occupation. The test in every case 
 by which to decide if the language be actionable, meaning 
 actionable per se, is, does it necessarily occasion damage ; 
 and because the language which may necessarily occasion 
 damage in one occupation will not have that effect in 
 some other, it happens that in every case regard must be 
 had to the character of the occupation. Numerous illus- 
 trations of this are to be found in the subsequent part of 
 this chapter. We select one instance : In the case of a 
 merchant, the keeping of account books is or is considered 
 to be a requisite to the successful prosecution of his busi- 
 ness, and therefore to charge one who is a merchant with 
 keeping false books has been held to be actionable, 3 but 
 the like charge concerning a farmer was held not action- 
 able, because the keeping of books was not considered 
 
 1 How v. Prinn, Holt, 652 ; s. c. Prinn v. Howe, 1 Brown's Cas. ParL 64 ; 1 Starkie 
 on Slander, 124. " A distinction is usually taken between an office of profit and an 
 office of honor, but the distinction is not n sound one, and though it may apply to an 
 action for words, it does not extend to an action for libel." If a person be in an office ' 
 of profit, it is libellous to impute to him either inability, want of integrity, or anything 
 which amounts to it. But if the office be an office of honor, it is said no action lies ex- 
 cept the import of the words be a charge of dishonesty. In either case, charging a man 
 with inclinations and principles which show him unfit for an office of trust or honor is 
 libellous, without charging him with any act. Any imputations against a person who 
 is in the enjoyment of an office, either public or private, of honor, profit, or trust, 
 which imports a charge of unfitness to administer the duty of the office, are libels." 
 (Holt on Libel, 208.) Words which charge a breach of a public trust are actionable. 
 See Kinney v. Xash, 3 N. Y. 178. 
 
 2 Pollock, Ch. B., Gallwey v. Marshall, 9 Ex. 294. 
 
 3 Backus v. Richardson, 5 Johns. 476; and the like charge against a blacksmith 
 held actionable. Burtch v. Xickerson, 17 Johns. 217; and seeCrawfoot v. Dale. Vent. 
 263 ; and Viner's Abr. Act. for Words, U. a. 2&
 
 § 189.] CONCERNING SPECIAL CHARACTERS. 207 
 
 requisite to the conduct of his business, although in addi- 
 tion to his business of farmer he sawed logs for rewar< I 
 and dealt in lumber. 1 
 
 § 189. One of the essential elements of the actionable 
 quality of language concerning one in his occupation or 
 office, is the fact that the person whom the language con- 
 cerns is in such occupation or office (§ 181) ; it necessarily 
 follows that to render language concerning one in his 
 occupation or office actionable per se, the person whom the 
 language concerns must follow such occupation or hold 
 such office at the time the language is published. No 
 language concerning one in any special character, published 
 after he has ceased to occupy that character, can be 
 actionable as concerning him in such special character. 
 The general rule is that in an action for language concern- 
 ing one in a special character, it must be shown that he 
 maintained that special character at the time the language 
 was published. 2 Where the plaintiff had been com- 
 missioner to make a treaty with the Indians, and after his 
 commission had terminated the defendant charged him 
 
 1 Rathbun »'. Emigh, 6 Wend. 407. Where the defendant said of the plaintiff, a 
 mercer, "He hath deceived in a reckoning, and his debt-book which he keepeth is a 
 false debt-book," judgment went against the plaintiff, because the book might be kept 
 by the plaintiffs servant, and he, plaintiff, not have knowledge of it. (Brook's 
 Case, Godb. 231.) In Backus v. Richardson (5 Johns. 476), the court said the words 
 "You keep false books" implied knowledge in plaintiff; and in Todd v. Hastings 
 (Vent. 1 17), it was held that to charge a trader with keeping "false books" would be 
 construed to mean " false debt books." Keeping books of account is necessary in this 
 country, where credit is generally given, as well by the mechanic as by the merchant 
 and professional man. (Burtch v. Xickerson, 17 Johns. 217.) Mechanics "generallv 
 sell on credit, and their success and reputation depend upon their character for fair 
 dealing." (Rathbun v. Emigh, 6 Wend. 4 1 '7.) Another reason why a charge of keep- 
 ing false books of account was held actionable was, that such books, if generally 
 reputed correct, were receivable as evidence of their contents. (Crawfoot v. Dale 
 Vent. 263.) 
 
 2 Smayles v. Smith, Browl. 1 ; Reignald's Case, Cro. Car. 563 ; Bellamy v. Burch, 
 16 M. & W. 690; Allen v. Eillman, 12 Pick. 101 ; Forward v. Adams, 7 Wend. 204 ; 
 Oram v. Franklin, 5 Blackf. 42; Harris v. Bailey, 8 N. Ilamp. 216. See 2 Vent. 366 
 where it is said, " Where a man had been in an office of trust, to say he behaved him- 
 self corruptly in it, as it imported great scandal, so it might prevent his coming into 
 that or the like office again." See g 290, post.
 
 268 WHAT LANGUAGE IS ACTIOXABLE [Cll. VITI. 
 
 orally with hiring and bribing the Indians to sign such 
 treaty, held that no action could be maintained. 1 Where 
 plaintiff was twice constable, once in 1843 and again in 
 1846, and during the latter period one said of him orally 
 that while constable in 1843 he had made a false return, 
 held that the words would not support an action. 2 If a 
 man has been a merchant and leaves off merchandising 
 for a time, and another calls him bankrupt, an action lies ; 
 for though he does not use the trade of a merchant at the 
 time of the speaking the words, yet he remains a merchant, 
 and may resume the trade at his pleasure ; 3 but where the 
 plaintiff alleged he had for many years used the trade of 
 a drover, but without alleging he was a drover at the time 
 of the publication, it was held he did not show a cause of 
 action. 4 Whether or not the plaintiff occupied the special 
 character alleged, and whether or not be continued in such 
 special character until the time of the publication com- 
 plained against, are questions of fact. A person shown 
 once to have been in any certain office, profession, or trade, 
 is presumed to continue therein. 5 The decisions which 
 
 1 Forward v. Adams, 7 "Wend. 204. 
 
 • Edwards v. Howell, 10 Ired. 211 ; but it was said plaintiff might have recovered 
 on proof of special damage. 
 
 3 Gardner v. Hopwood, Yelv. 159; and see Vin. Abr. Act. for Words, U. a. 19. 
 An attorney who has not taken out his annual certificate, although he is by statute 
 disabled from recovering his fees, nevertheless continues an attorney, and may main- 
 tain an action for language concerning him as an attorney. (Jones v. Stevens, 11 
 Price, 235; Pearce v. Whale, 5 B. & C. 38; Morris v. Langdale, 2 Bos. <fc P. 2t>4.) 
 See § 183, ante. 
 
 4 Collis v. Malin, Cro. Car. 282; Gray v. Metcalfe, Yelv. 21. 
 
 6 Tuthill v. Milton, Yelv. 158; Collis v. Maliu, Cro. Car. 282; Jordan v. Lyater, 
 Cro. Eliz. 273 ; Moore v. Syne, 2 Rolle R. 84 ; Dod v. Robinson, All. 63 ; Forward v. 
 Adams, 7 Wend. 204; Bellamy v. Burch, 16 M. & W. 590; Fry v. Bennett, 2S X. Y. 
 S24; but see M'Leod v. Murphy, 3 Car. & P. 311. Where a plaintiff avers generally 
 that he filled any office, or exercised any trade, his filling such office or being 
 of such trade is sufficiently proved by evidence of his having acted in such office or 
 carried on such trade. And in the case of all peace officers, justices of the peace, 
 constables, &c, it is sufficient to prove that the}- acted in those characters without 
 proving their appointments. (Berryman v. Wise, 4 T. R. 366 ; Gordon's case. Leach, 
 581 ; Rex v. Shelly, Leach, 5S1. n.)
 
 § 190.] CONCERTTCXG SPECIAL CHARACTERS. 269 
 
 are sometimes referred to as exceptions to the rule that the 
 person whom the language concerns must maintain his 
 special character at the time the language is published, 
 are really not exceptions to that rule, they are cases which 
 follow another and different rule because comprehended in 
 a different class. On examination they will be found to 
 rano-e themselves under the division relating: to lano-uao-e 
 concerning an individual as such ; and the true ground on 
 which in such cases the actions were sustained, was of the 
 language being actionable as affecting the individual as 
 such, without regard to his having occupied the special 
 character to which the language refers. Thus where one 
 had been senator, and after his term of office had ceased 
 it was published of hini in writing that he had been guilty 
 of corrupt conduct in his office of senator, the action was 
 sustained ; 1 and so where one had been a constable, and 
 after he quitted that office it was said of him that while 
 in office he was a healer of felons, or of one that when in 
 office as a justice he was a bribing justice. 2 
 
 § 190. To render language concerning one in a special 
 character or relation actionable, " it must touch him " in 
 that special character or relation ; for unless it does, it 
 must be judged in regard to its actionable quality by the 
 rules which apply to language concerning an individual as 
 such. That the language " must touch " the person whom 
 it concerns in his special character, means only that it 
 must concern him in such special character, and affect him 
 therein. It is not sufficient that the language disparages 
 him generally, or that his general reputation is thereby 
 
 1 Cramer v. Riggs, 17 Wend. 209; and see 7 Wend. 204; Wilson v. Noonan, 23 
 Wis. 231; Littlejohn v. Greely, 13 Abb. Pra. R. 41; Walden v. Mitchell, 2 Vent. 
 266. 
 
 2 Pridham v. Tucker, Yelv. 153; and see Ilerle v. Osgood, 1 Vent. 50. To say of 
 a commissioner appointed to take testimony, he hath taken bribes. (Moor v. ! 
 
 Cro. Jne. 65), and charging an officer of a court of record with taking bribes, held 
 actionable. (Anon. Dal. 43; Lee v. Swan, Yelv. 142.)
 
 270 WHAT LANGUAGE IS ACTIONABLE [Cll. VIII. 
 
 affected ; it must be such as if true would disqualify him 
 or render him less fit properly to fulfill the duties incident 
 to the special character he has assumed. It is not enough 
 that the language "tends to injure the person in his office, 
 profession, or trade, it must he spoken (published) of him 
 in his official or business character." 1 It must "touch 
 him in his office, profession, or trade," 2 Thus, saying of 
 a justice of the peace " there is a combined company here 
 to cheat strangers, and Squire Van Tassel has a hand in 
 it. I don't see why he did not tell me the execution had 
 not been returned in time, so that I could sue the con- 
 stable ; " 3 or, " Squire Oakley is a damned rogue," 4 was 
 held to impute misconduct as a man and not as a magis- 
 trate, and not to be actionable. For a like reason it was 
 held not actionable to say of one who kept a public 
 
 1 Van Tassel v. Capron, 1 Denio, 250 ; Sibley v. Tompkins, 4 Tyrw. 90 ; Dolley v. 
 Roberts, 3 Bing. N. S. 835 ; Ridway v. Gray, 31 Verm. (2 Shaw) 292; Buck v. Hersey, 
 31 Maine (1 Red.) 558. It seems, however, that where one is in business, words 
 spoken of him in his private character will bear an action, if they are such as must 
 necessarily affect him in his business ; thus to say of a brewer, he had been locked 
 up in a spongiDg-house (a private jail, kept by deputy-sheriffs where persons arrested 
 for debt, on paj'ing for the indulgence, have the option of remaining instead of 
 going to the debtor's prison), was held actionable, because the words were held 
 necessarily to affect his credit as a trader. (Jones v. Littler, 7 M. <fc W. 423.) And 
 see Bell v. Thatcher, Freem. 277; Fowles v. Bowen, 30 N. Y. 23; Starr v. Gardner, 
 6 Up. Can. Q. B. R. (0. S.) 512. So in Davies v. Ruff, Cheves, 17, it is said that 
 words affecting the pecuniary credit of a merchant need not be averred nor proved 
 to have been used in relation to his occupation as a merchant, for in their nature they 
 strike at the root of mercantile character. 
 
 2 Kinney v. Nash, 3 N. Y. 177; Van Tassel v. Capron, 1 Denio, 250; Comyn's 
 Dig. Act. for Defam. D. 27. Whether words were spoken of a man in a certain 
 capacity, is a question of fact for the jury. (Skinner v. Grant, 12 Verm. 456; 
 Sibley v. Tomlins, 4 Tyrw. 90; Dojdey v. Roberts, 3 Bing. N. S. 835; Tomlinsou v. 
 Brittlebank, 1 Har. & \V. 573.) 
 
 3 Van Tassel v. Capron, 1 Denio, 250. 
 
 4 Oakley v. Farrington, 1 Johns. Cas. 129 ; and held not actionable to say of a 
 justice. "He is a logger-headed, a slouch-headed, and a bursen-bellied hound." 
 (1 Keb. 629.) Calling one who is a cooper varlet and knave is not actionable — the 
 words do not touch him in his trade. (Coles v. Kettle, Cro. Jac. 204.) But the 
 words, " You are a deceitful rascal, villain, and liar; I wonld not trust you with an 
 auctioneer's license. You robbed a man you called your friend, and not satisfied witli 
 £10, you robbed him of £20 a fortnight ago," spokeu of an auctioneer, held actionable. 
 (Ramsdale v. Greenacre, 1 Fos. & F. 61.)
 
 § 190.] CONCERNING SPECIAL CHARACTERS. 271 
 
 garden, " He is a desperate man, a dangerous man. I am 
 afraid to go to his house alone ; I am afraid of my life ; " * 
 and these words of a pork butcher, " Who stole F.'s pigs ? 
 You did, you thief; you poisoned them with mustard and 
 brimstone," were, after verdict, held not to have any nec- 
 essary connection with his trade, and were not calculated 
 to injure him in it, and therefore not actionable. 2 So 
 these words, " He is a regular prover under bankruptcies," 
 published of a livery-stable keeper held not to affect him 
 in his business. 3 The words, "He has defrauded his 
 creditors, and been horse-whipped off the course at D.," 
 spoken of an attorney but not in his character of an 
 attorney, held not actionable. 4 And the same decision 
 was made in reference to these words spoken of an attor- 
 ney : " I have taken out a judge's order to tax A.'s bill, I 
 will bring him to book, and have him struck off the roll. 5 
 I will take him to Bow Street on a charge of forgery." 6 
 And saying of a livery-stable keeper, " You are a regular 
 prover under bankruptcy; you are a regular bankrupt 
 maker ; if it was not for some of your neighbors your 
 shop would look queer," was held not to be a charge in 
 the way of his trade nor actionable. 7 Where words im- 
 puting incontinency and not in themselves actionable 
 were spoken of one in respect of his situation as clerk in 
 a gas company, held that not imputing any misconduct in 
 his capacity of clerk, they were not actionable. 8 A charge 
 
 1 Ireland v. McGarrish, 1 Sandf. 155. 
 
 2 Sibley v. Tomlins, 4 Tyrw. 90. The jury found that the words were not intended 
 to impute felony. 
 
 3 Angle v. Alexander, 7 Bing. 123. 
 
 1 Doyley v. Roberta, 3 Bing. N. S. 835. 
 
 6 Phillips v Jansen, 2 Esp. Cas. 624. 
 
 ' Harrison v. King, 4 Price, 40 ; 7 Taunt. 431. 
 
 7 Alexander v. Angle, 1 Cr. & J. 113: 1 Tyrw. 9. 
 
 8 Luraby v. Allday, 1 Cr. & J. 301 ; 1 Tyrw. 217. The words were, "You are a 
 fellow, a disgrace to the town, unfit to hold your situation for your conduct with 
 whores."
 
 272 WHAT LANGUAGE IS ACTIONABLE [Ch. YlLL. 
 
 against the plaintiff, laid to be spoken of him in hi> trade 
 of a stayniaker, of criminal intercourse with a female 
 employed by him in his trade, held not to affect him in 
 his trade and not actionable. 1 And so it was held that a 
 charge of adultery against a physician did not necessarily 
 touch him in his profession, and was not actionable with- 
 out its beins; shown that the charge was connected with 
 the plaintiff 's profession ; 2 and the same was held of these 
 words of a physician : " He is so steady drunk he cannot 
 get business any more ; 3 or, he is a two-penny bleeder ; 4 
 or, he gave my child too much mercury; or, he made up 
 the medicines wrong through jealousy, because I would 
 not allow him to use his own judgment. 5 Saying of a 
 woman who gained her livelihood by teaching girls to 
 dance, " She is as much a man as I am ; she got I. S. with 
 child ; she is an hermaphrodite," was held not actionable, 
 no special damage being properly alleged, and because 
 girls are taught to dance as frequently by men as by 
 women. 6 It was held actionable to call a school-mistress 
 a dirty slut ; 7 or with being insane, 8 or to charge by 
 writing a school-teacher with making a false report to the 
 school visitors and with general untruthfulness, 9 or with 
 want of chastity. 10 It was held actionable to say of a 
 
 1 Brayne v. Cooper, 5 M. & W. 249. 
 
 1 Ayre v. Craven, 2 Adol. & El. 2 ; 4 New <t M. 220. In Barrett v. Carpenter, Nov, 
 64, it was held not actionable per se to charge a clergyman with adultery ; but that 
 case, it was said in Galwey v. Marshall, 9 Ex. 294, has been overruled; and saying of 
 a clergyman that he had two wives was held actionable. (Nicholson v. Lynes, Cro. 
 Eliz. 94.) See § 195, post. 
 
 3 Anon. 1 Ham. 83, note. 
 
 * Foster v. Small, 3 Whart. 138. 
 
 6 Edsall v. Russell, 4 M. <fc G. 1090. 
 
 6 Weatherhead v. Armitage, 2 Levinz, 233. In Malone v. Stewart, 15 Ohio, 319, it 
 was held actionable to call a married woman an hermaphrodite. 
 
 1 Wilson v. Ruuyon, Wright, 651. 
 
 8 Morgan v. Lingen, 8 Law Times, X. S. 800. See ante, note 10, p. 248 ; note 1, 
 p. 249. 
 
 9 Liudley v. Horton, 27 Conn. 5S. 
 
 10 Bodwell v. Osgood, 3 Bick. 379.
 
 § 191.] CONCERNING SPECIAL CHARACTERS. 2) t 
 
 shop-keeper, lie had nothing but rotten goods in his shop ; l 
 or to charge in writing that the place of business of a 
 trader (a coach-builder) was not respectable ; 2 or, that a 
 ship of which the plaintiff was owner and master, and 
 which he had advertised for a voyage to the East Indies, 
 was not seaworthy, and that Jews had bought her to take 
 out convicts. 3 Saying of an innkeeper, " you have stolen 
 goods in your house and you know it," held not action- 
 able. 4 
 
 § 191. In those trades or professions in which, ordi- 
 narily, credit is essential to their successful prosecution, 
 there language is actionable per se, which imputes to one 
 in any such trade or profession, a want of credit or respon- 
 sibility or insolvency, past, present, or future ; 5 as, to say 
 of a tradesman, He is not able to pay his debts ; or, He 
 owes more than he is worth ; 6 he will break shortly. 7 He 
 is a pitiful fellow and a rogue ; he compounded his debts 
 
 1 Bennett v. Wells, 12 Mod. 420. 
 
 2 Barrett v. Long, 3 Ho. Lords Cas. 395. 
 
 3 Ingram v. Lawson, 6 Bing. N. C. 212; 8 Sc. 7*75. The words were held to be 
 more than a libel on the ship, and to constitute a libel on the plaintiff in his trade, for 
 which he might recover without proof of malice or special damage. 
 
 4 Patterson v. Collins, 11 Up. Can. Q. B. 63. See ante, note 6, p. 236. 
 
 6 Seycroft v. Dunker, Cro. Car. 317; Harrison v. Thornborough, 10 Mod. 11; 
 Southam v. Allen, T. Raym. 231; Sewall v. Catlin, 3 Wend. 291 ; Read v. Hudson, 1 
 L'd Raym. 610 ; Ostrom v. Calkins, 5 Wend. 263 ; Davis v. Lewis, 7 T. R. 17 ; Dobson 
 v. Thornistone, 3 Mod 112; Chapman v. Lampbire, 3 Mod. 155, Mott v. Comstock, 7 
 Cow. 654; Whitaker v. Bradley, 7 D. & R. 619; s. c, Whittington v. Gladwin, 5 B. 
 & C. 180; 2 C. & P. 146; Lewis v. Hawley, 2 Day, 495; Auon., Lofft, 322; Hull v. 
 Smith, 1 M. & S. 287; Else v. Ferris, Anthon, 23; Brown v. Smith, 20 Eng. L. & Eq. 
 R. 243 ; 13 C. B. 596; 22 Law Jour. R. N. S. C. P. 151 ; 17 Jur. 807 ; 1 Com. Law 
 Rep. 49 ; Jones v. Littler, 7 M. & W. 423 ; Carpenter v. Dennis, 3 Sandf. 305 ; Phillips 
 v. Hoeffer, 1 Penn. St. Rep. 62; Pretty nian v. Shockley, 4 Harring. 112; Griffiths v. 
 Lewis, 15 Law Jour. 249, Q. B. 
 
 8 Vin. Abr. Act. for Words, U. a. 11, 12, 13, 20, 21, and to publish in writing con- 
 cerning one engaged in business in which credit was essential, " Had to hold over a 
 few days for the accommodation of L. (plaintiff)." Lewis v. Chapman, 19 Barb. 252 ; 
 s. c. 16 N Y. 369; and see Robinson v. Marchant, 7 Q. B. 918; Marzetti v. Williams, 
 1 B. & A. 415. 
 
 7 Hill's case, Lat. 114; Dobson v. Thornistone, 3 Mod. 'l 12.
 
 274 WHAT LANGUAGE IS ACTIONABLE [Cll. VUL 
 
 at 5s. in the pound. 1 He is indebted to me, and if he 
 does not come and make terms with me, I will make a 
 bankrupt of him and ruin him. 2 He is a bankrupt, 3 He 
 was a bankrupt. 4 He is a bankrupt, and unable to pay 
 his just debts. 5 The sheriff will sell him out one of these 
 days, and claims against him not sued will be lost. 6 He 
 must fail ; his time is come. 7 He is not worth a penny 
 and will run away. 8 He will be a bankrupt. 9 He is next 
 door to breaking. 10 He is broken and run away, and will 
 never return. 11 I heard he was run away. 12 I have heard 
 
 1 Spoken of a pawnbroker, and special damage alleged. (Stanton v. Smith, 2 L'd 
 Raym. 1480.) This case was questioned 3 Bing. N. C. 840, but sustained Jones v. 
 Littler, 7 M. & W. 423. 
 
 2 Brown v. Smith, 13 C. B. 596; 1 Com. Law Rep. 49; 22 Law Jour. Rep. 5T. S. C. 
 P. 151 ; 20 Eng. Law & Eq. R. 243. 
 
 8 Spoken of a grazier. (Anon., 1 Bulst. 40.) Of a dyer. (Squire v. Johns, Cro. 
 Jac. 558.) Of a shoemaker, who bought and sold leather. (Stanley v. Osbaston, Cro. 
 Eliz. 268; and see Vin. Abr. Act. for Words, U. a. 18, 19, 35, 36, 38, I. a.) 
 
 4 Hull v. Smith, 1 M. & S. 287. 
 
 6 Spoken of a drover, whose business was to purchase droves of cattle and drive 
 them to market and sell them. (Lewis v. Hawley, 2 Day, 495.) An innkeeper is a 
 trader. (Ombony v. Jones, 19 N. Y. 241.) The words, "You have been a pauper 
 ever since you have lived in the parish ; you are now a pauper. I have paid £20 a 
 year towards your maintenance ; you will be in the bankrupt list in less than twelve 
 months," spoken of an innkeeper, held actionable. (Whittington v. Gladwin, 5 B. <fc 
 C. 180 ; 2 Car. & P. 140 ; s. c, Whitaker v. Bradley, 7 D. <fc R. 049.) So it is action- 
 able to say of an innkeeper, He is broke, and there is neither entertainment for man 
 nor horse. (Southam v. Allen, T. Raym. 231.) 
 
 6 Spoken of a farmer. (Phillips v. Iloeffer, 1 Penn. St. Rep. 62.} 
 
 7 Spoken of a distiller, the course of whose business was to purchase grain on 
 credit. (Ostrom v. Calkins, 5 Wend. 263.) » 
 
 B Anon., Lofft, 322. He is about to run away and defraud his creditors. (Pretty- 
 man v. Shockley, 4 Harring. 112.) 
 
 9 In three days. (Thompson v. Twenge, 2 Rolle R. 423.) Or in six months. (Else 
 v. Ferris, Anthon N". P. 23.) He will be bankrupt, without saying when, said not to 
 be actionable. (A T in. Abr. Act. for Words, O. a.) 
 
 10 Spoken of a laceman (a dealer in lace). (Read v. Hudson, 1 L'd Raym. 610.) 
 
 11 Spoken of a carpenter. (Chapman v. Lamphire, 3 Mod. 155.) And spoken of a 
 farmer. (Dobson v. Thornistone, 3 Mod. 112.) To say of a merchant, he is broke, is 
 actionable. (Leycroft v. Dunkin, Cro. Car. 31.) 
 
 10 Spoken of a tailor. (Davis v. Lewis, 7 Term R. 17.) Spoken of a carpenter, 
 (3 Mod. 312.)
 
 § 191.] CONCERNING SPECIAL CHARACTERS. 275 
 
 of no failures, but understand there is trouble with S. 1 
 Two dyers are gone off, and for aught I know II. ^vill be 
 so too, within this time twelve months. 2 H. will lose his 
 debt; M. (plaintiff) is unable to pay it. 3 He came a 
 broken merchant from Hamburgh. 4 All is not well with 
 V. ; there are many merchants who have lately failed, and 
 I expect no otherwise of V. 5 There is no bottom to you. 
 I would put you through, but you won't stand ; you will 
 burst or fail before I have a chance. 6 Thou art a beggarly 
 fellow, and not worth a groat. 7 They have been sued; 
 report says J. B.'s wife (J. B. being one of the plaintiffs ) 
 is about to apply for a divorce, and that J. B. has put his 
 property out of his hands ; if so, their store will be closed 
 soon. 8 Where the defendant said of plaintiff, a trades- 
 man in his shop, and in the presence of his customers, 
 that certain wholesale dealers had closed their accounts 
 with him and were going to shut him up (innuendo that 
 plaintiff was insolvent or likely to be so) ; held, it was for 
 the jury to say whether the words had the meaning 
 ascribed to them in the declaration, and if so, they were 
 actionable. 9 So actionable to say of a trader that his 
 checks were dishonored. 10 But held not actionable to say 
 
 1 Spoken of a merchant. (Sewell v. Catlin, 3 Wend. 291.) To say of a banker, he 
 suspended payment, is actionable. {Dictum in Forster v. Lawson, 3 Bing. 432.) 
 
 2 Harrison v. Thornborough, 10 Mod. 11. 
 
 3 Spoken of a merchant. (Mott v. Comstock, 1 Cow. G54.) It was held not 
 actionable to say to a creditor of a merchant (the plaintiff), Yon were best to call 
 for it (your money) in, and take heed how you trust him. (Vin. Abr. Act. for 
 Words, U. a. 11.) 
 
 * Seycroft v. Dunker, Cro. Car. 31 Y. 
 6 Vivian's Case, 3 Salk. 326. 
 
 6 Spoken of one engaged in buying and selling woodenware. (Carpenter v. Dennis, 
 3 Sandf. 305.) 
 
 '' Simpson v. Barlow, 12 Mod. 591. 
 
 " Beardsk-y v. Tappan, 1 Blatch. Cir. C't R. 588. 
 
 9 Gostling v. Brooks, 2 Fos. & F. 76. 
 
 10 Rolin v. Steward, 14 C. B. 595 ; and see ante in note p. 58. Words in relation 
 to the credit of a shareholder in the joint-stock of a boat, held actionable, special 
 damage being shown, and there being a colloquium respecting plaintiff as such stock- 
 holder, and that it was a business requiring credit. (Turner v. Foxall, 2 Cr. C. C. 
 324.)
 
 276 WHAT LANGUAGE IS ACTIONABLE [Ch. Ylll. 
 
 of traders, "look out sharp to get your bills met by 
 them." x 
 
 § 192. Language of one in his trade or profession is 
 actionable per se when it imputes to him fraud, want 
 of integrity, or misconduct in the line of the business 
 or profession "whereby he gains his bread." 2 Thus 
 it was held actionable to say of a weaver, He is a rogue 
 and villain, and taketh the goods of his customers and 
 pawneth them, and he is not a man to be trusted ; 3 of an 
 auctioneer and appraiser, He is a damned rascal, and has 
 cheated me out of £100 on the valuation; 4 of a trader, 
 He was guilty of dishonestly using old materials instead 
 of new in doing a certain piece of work ; 5 of a corn-factor, 
 You are a rogue and a swindling rascal ; you delivered me 
 one hundred bushels of oats worse by six pence a bushel 
 than I bargained for ; 6 of a limeburner, He is a cheating 
 knave ; 7 of a bailiff, You did cozen your master of a 
 bushel of barley, or, he hath deceived his master by 
 buying and selling; 8 of a butcher, That he used false 
 
 1 Dailies v. Hartley, 3 Ex. 200. 
 
 a Baboneau v. Farrell, 15 C. B. 360; Bryant v. Loxton, 11 Moore, 344; Davis v. 
 Davis, 1 Nott & McCord, 290; Chipman v. Cook, 2 Tyler, 456 ; Rush v. Cavenaugh, 2 
 Barr, 187; Brown v. Mims, 2 Rep. Con. C't, 235: Foot v. Brown, 8 Johns. 64; Riggs 
 v. Deniston, 3 Johns. Cas. 198; Thomas v. Jackson, 3 Bing. 104 ; 10 Moore, 425; 
 Odiorne v. Bacon, 6 Cush. 185 ; Gay v. Horner, 13 Pick. 535 ; Ludwell v. Hole, 2 L'd 
 Raym. 1417; Davis v. Miller, 2 Strange, 1169 ; Obaugh v. Finn. 4 Pike, 110; Boydell 
 v. Jones, 4 M. & W. 446 ; 7 Dowl. (P. C.) 210; Sempsey v. Levy, 2 Jur. 770 ; Vin. 
 Abr. Act. for Words, IT. a. 25, 26. "Any charge of dishonesty against an individual 
 in connection with his business, whereby his character in such business may be 
 injuriously affected, is actionable." (Fowles v. Bowen, 30 N. Y. 24.) "Thou hast 
 received money of the king to buy new saddles, and hast cozened the king and 
 bought old saddles," actionable. (Greenfield's Case, Mar. 82 ; 1 Vin. Abr. 465, pi. 19.) 
 
 3 Vin. Abr. Act. for Words, U. a. 4. 
 
 4 Bryant e. Loxton, 11 Moore, 344. 
 
 6 Baboneau v. Farrell, 1 Jur. X. S. 114; 15 C. B. 360; 24 Law Jour. R. N. S. 9 
 C. P. ; 28 Eng. Law & Eq. R. 339. 
 
 6 Thomas v. Jackson, 3 Bing. 104; 10 Moore, 425 ; and to charge a merchant with 
 being a swindler is actionable. (Herr v. Bamburg, 10 How. Pra. R. 128.) Notes 3, 
 4, p. 247, ante. 
 
 7 Terry v. Hooper, Raym. 87; Lev. 115. 
 
 8 Vin. Abr. Act. for Words, U. a. 5, and note 7, p. 225, ante.
 
 § 192.] CONCERNING SPECIAL CHARACTERS. 277 
 
 weights ; * of a jeweler, He is a cozening knave in selling 
 me a sapphire for a diamond ; 2 of a goldsmith, He sold me 
 a chain of copper for gold; of one. who sold chamois skins, 
 He will cozen you and sell jovl lamb skins instead of 
 chamois skins; of a brewer, that he makes or sells un- 
 wholesome beer; of a tradesman, that he adulterates the 
 article in which he deals ; of one who took children to 
 board, that he starved a child entrusted to his care ; 3 of 
 a shipmaster, " he sold the consignment of the ship Rising 
 Sun, and pocketed the money." 4 Both the plaintiff and 
 defendant carried on the business of tailors. Plaintiff in 
 company with A. went to defendant's store to purchase 
 material with which to make trowsers for A. De- 
 fendant said to A., don't have anything to do with that 
 man (plaintiff), he will rob you, he is a rogue. De- 
 fendant also asked A. to allow him (defendant) to make 
 the trowsers. On the trial, the judge directed the jury 
 that the words were actionable if spoken of the plaintiff 
 in the way of his trade, and the jury having found for the 
 plaintiff, the verdict was sustained in banc. 5 And action- 
 able to charge the agent of a stage company, that he 
 (plaintiff) and B., his sub-agent, had altered way-bills 
 and books to screen the plaintiff (innuendo charging for- 
 gery), and that plaintiff and B. were together to cheat the 
 company, and they would cheat them out of more than 
 
 1 Griffiths v. Lewis, 15 Law Jour. 249, Q. B. ; and see Prior v. "Wilson, 1 C. B. 
 N. S. 95. The way in which Messrs. P. (the plaintiffs) do tilings at Guildford — 
 inserting the wedge — innuendo inserting a wedge to falsify the weight. 
 
 2 Vin. Abr. Act. for Words, I. a. 9, and several cases there referred to. 
 
 3 Vin. Abr. Act. for Words, U. a. 27, 30, 28, 31, 29; Freem. 25. Charging a 
 brewer with filthy and disgusting practices in preparing his malt, is actionable. 
 (White v. Delaran, 17 Wend. 49; Ryckinan v. Delavan, 25 Wend. 186.) See Wood 
 v.Brown, 1 Marsh. 522; 6 Taunt. 169. In that case, a declaration which alleged 
 that defendant published of plaintiff, a brewer, that his beer was of a bad quality and 
 sold by deficient measure, was held bad on general demurrer, because the words were 
 not set out in hoec verba, but it was merely alleged that the defendant published words 
 purporting that plaintiff, <fec. 
 
 4 Orr i'. Skofield, 56 Maine, 483. 
 
 6 Sloman v. Chisholm, 22 Up. Can. Q. B. 20.
 
 278 WHAT LANGUAGE IS ACTIONABLE [Cll. YlU. 
 
 the company can make. 1 Actionable to charge by writing 
 a steamboat agent with being an impertinent person and 
 withholding newspapers- entrusted to him for the de- 
 fendants. 2 And it was held actionable to publish orally 
 of a land surveyor, who surveyed by mathematics, as dis- 
 tinguished from one who measured with a pole. He is a 
 cozening and shifting and a cheating knave ; and it was 
 said that the same words of a shoemaker, a butcher, or a 
 baker, would not be actionable, because the goodness or 
 deceit of their wares may be discerned by the eye, but 
 deceit in land measuring could be discovered only by 
 persons skilled in the art ; 3 but not actionable to say of a 
 workman, He has received forty days' wages for work 
 that might have been done in ten days, and is a rogue for 
 his pains ; 4 nor to say of a smith, Thou art a cozening 
 rogue, and in one tire of wheels which thou didst send to 
 J. S., thou didst cozen him of a noble; for the words 
 import he cozened in the price only, and not in the ill- 
 making of the wheels. And for saying of men in trade 
 who sell things that they cozen in the price, is no dis- 
 grace, for every trader cozens in the price when he sells 
 for more than the thing is worth. 5 Actionable to publish 
 orally of a merchant's clerk, That he (plaintiff) had be- 
 come such a notorious liar that he (defendant) could 
 place no confidence in him ; that he had strong reason to 
 doubt his honesty, and had written S. to employ an officer 
 to watch him. 6 Actionable to publish orally of a merchant 
 
 1 Gay v. Homer, 13 Pick. 535. 
 
 2 Keernle v. Sass, 12 Miss. 499. The language being published in writing was 
 actionable as concerning the plaintiff as an individual merely. 
 
 3 Blunclen v. Eustace, Cro. Jac. 504; London v. Eastgate, 2 Rolle R. 72. 
 
 4 Lancaster v. French, 2 Stra. 797. 
 
 5 Vin. Abr. Act. for Words, S. a. 24. Thou didst cozen a woman of her goods, 
 held not actionable. (Engurst v. Browne, Cro. Eliz. 99.) And held not actionable 
 to say of an innkeeper, He is a caterpillar, and lives by robbing his guests. Robbing 
 not construed feloniously. (Vin. Abr. Act. for Words, IT. a. 84.) Ante $ 144. subd. z. 
 
 6 Fowles v. Bowen, 30 N. Y. 20 ; and see Brown v. Orvis, 6 How. Pra. R. 378. 
 Where the words affect one as merchant's clerk, special damage need not be alleged. 
 (Butler v. Howes, 7 Cal. 87.)
 
 § 102.] CONCERNING SPECIAL CHARACTERS. 279 
 
 that lie is a villain, a rascal, and a cheater. 1 And the fol- 
 lowing words spoken of the plaintiff as clerk of the firm 
 of defendant and his partner, "Your man (plaintiff) is 
 plotting to blow me (defendant) and the concern (said 
 firm) up," were held actionable. 2 So it has been held ac- 
 tionable to publish orally of an attorney, He is a forging 
 rogue, 3 a cheat, 4 a damned rascal ; 5 he will play on both 
 sides or he deals on both sides, 6 a bribing knave, and has 
 taken twenty pounds of you to cozen me ; 7 he is not a 
 man of integrity, and is not to be trusted ; he will take a 
 fee on both sides ; s he is a cheater, I will have him barred 
 of his practice ; 9 he deserves to be struck off the roll ; 10 he 
 is a false knave, a cozening knave, and has gotten all that 
 he has by cozenage ; he has cozened all those that have 
 dealt with him ; he arresteth without taking out writs ; he 
 is a knave in his practice f 1 he offered himself as a witness 
 to divulge the secrets of his clients ; 12 he is a roo-ue for 
 taking your money, and has done nothing for it ; he has 
 not entered an appearance for you ; he is no attorney at 
 law, he don't care to appear before a judge ; what signifies 
 going to him, he is only an attorney's clerk and a rogue, 
 he is no attorney. 13 Is M. your attorney ? * * He will 
 overthrow your cause. 14 I marvel you will employ such a 
 knave as Nicholls, you will have but disgrace by it ; he is 
 
 I Xelson v. Borchenius, 52 111. 236. 
 s Ware «. Clownoy, 24 Ala. 707. 
 
 3 Auon., 1 Comyn R. 262. 
 
 4 Rush v. Caranaugh, 2 Barr, 187. 
 
 6 Brown v. Minis, 2 Rep. Con. C't, 235. 
 
 8 Brown v. Hook, Browl. 5; Vin. Abr. Act. for Words, S. a. 2, 4 ; Shire v. King, 
 Yelv. 32; s. c. King v. Shore, Cro. Eliz. 914. 
 
 7 Yardley v. Ellis, Hobart, 8, 9 ; 1 Rolle R. 53. 
 ' i liipman v. Cook, 2 Tyler, 456. 
 
 "Taylor v. Starkey, Cro. Car. 192. 
 
 10 Dictum, Phillips v. Jansen, 2 Esp. 624. 
 
 II Jenkins v. Smith, Cro. Jac. 586 ; Bell v. Thatcher, Freeman, 277. 
 "Riggs v. Denniston, 3 Johns. Cas. 198. 
 
 13 Eardwick v. Chandler, 2 Str. 1138. 
 
 14 Martyn v. Burling*, Cro. Eliz. 589; Golds. 128.
 
 280 WHAT LANGUAGE IS ACTIONABLE [Cll. YIII. 
 
 a proclaimed knave; 1 lie is the falsest knave in Eng- 
 land ; 2 lie is a base rogue, and maintains his family by 
 his knavery; 3 he is an extortioner, and cozened A. in a 
 bill of costs ; 4 he keepeth many markets and stirreth up 
 men to suits, and promises if he do not recover in their 
 cause he will take no charges, and he once promised me 
 that if he did not recover in a cause he would take no 
 charges of me, yet he afterwards took charges of me ; 5 he 
 deserves to have his ears nailed to the pillory. 6 Thou art 
 a paltry fellow ; thy credit is fallen, for thou dealest on 
 both sides, and dost deceive many that trust thee. 7 He 
 suppressed a will ; 8 he is a cozener, and hath cozened me 
 of twenty shillings. 9 He is a cozener, and cozened his 
 clients, and for that cause was discharged the court. 10 He 
 is a base, cheating, cozening knave, and hath cheated me 
 as never any man was cheated. 11 He took corruptly five 
 marks of B. T., being against his own client, for putting 
 off an assize against him. 12 Thou art a common barrator, 
 a Judas, a promoter. 13 He sets people together by the 
 ears, and we shall have him indicted for a common bar- 
 rator. 14 You are a knave; you were attorney for my 
 mother against my husband, and set her on to sue him, and 
 made him spend £1,000, and such knaves as you are have 
 made my husband spend almost all his estate. 15 And 
 
 1 Webb v. Nieholls, Cro. Car. 459. 
 
 2 Anon., Mo. 61 ; Dal. 63. 
 
 3 Shaw v. Wakeman, Vin. Abr. Act. for Words, S. a. 2. 
 
 4 Stanley v. Boswel, Cro. Eliz. 603. 
 
 5 Smith v. Andrews, Sty. 183. 
 
 6 Jenkinson v. Wray, Mo. 41. 
 
 7 Shire v. King, Yelv. 32; s. c, King v. Shore, Cro. Eliz. 914. 
 
 8 Godfrey v. Owen, Palm. 21. 
 
 9 Litman v. West, Het. 123. 
 
 10 Mead v. Perkins, Cro. Car. 261. 
 
 11 Jeffryes v. Payhem, Cro. Car. 510. 
 
 12 Smayles v. Smith, Browl. 1. ■ 
 
 13 Taylor v. Starkey, Cro. Car. 192. 
 
 14 Annison v. Bl -field, Carth. 848. 
 
 15 Hilton v. Playters, All. 13.
 
 § 193.] CONCEENPNG SPECIAL CIIAEACTEES. 281 
 
 actionable to say of a counsellor, He will deceive you ; he 
 revealed the secrets of my cause. 1 It is actionable to 
 publish in writing of an attorney employed to defend 
 a prisoner, that on the trial he sent important witnesses 
 away without the knowledge of his client or of counsel ; 2 
 or that he has been reprimanded for sharp practice. 3 " I 
 was so incensed with that girl (plaintiff) for coming to 
 hire with me, after having had a miscarriage at Mrs. B.'s 
 house, and she afterwards to give the girl a good dis- 
 charge." These words spoken of a domestic servant, held 
 actionable per se. 4 
 
 § 193. Language of one in a business or profession 
 which imputes to him ignorance generally in his business 
 or profession, or such ignorance or other incapacity as un- 
 fits him for its proper exercise, is actionable ; 5 as to say of 
 a physician or an apothecary, " It is a world of blood he 
 has to answer for in this town through his ignorance ; he 
 did kill a woman and two children. He was the death of 
 J. P. ; he killed his patient with physic ; 6 or, Dr. A. killed 
 my children ; he gave them teaspoon doses of calomel, and 
 it killed them. . . . They died right off the same day ; T 
 or, He has killed the child by giving it too much calomel ; 8 
 or, He has killed six children in one year ; 9 or, He is a 
 
 1 Snag v. Gray, March's Slan. 63. 
 
 2 Sanford v. Bennett, 24 N. Y. 20. 
 
 3 Boydell v. Jones, 4 M. & W. 446. Held not actionable to say orally of an 
 attorney, he is a paltry lawyer (Rich v. Holt, Cro. Jac. 267); but actionable to say 
 orally, He is a pett3"-fogging, blood-siickiDg attorney. (Armstrong v. Jordan, Car- 
 lisle Assizes, 1826.) 
 
 4 Connors v. Justice, 13 Ir. C. L. R. 451. 
 
 6 Jones v. Powell, 1 Mad. 272; Peard v. Jones, Cro. Car. 382; Camp v. Martin, 
 23 Conn. 86; Day v. Buller, 3 Wils. 59; Garr v. Selden, 6 Barb. 416. 
 
 8 Tutty v. Alewin, 11 Mod. 221, and see note 1, p. 224, ante. 
 
 7 Secor v. Harris, 18 Barb. 425. 
 
 * Johnson v. Robertson, 8 Porter, 486 ; see dictum March v. Davison, 8 Paige, 580. 
 To charge a physician with having killed a patient with physic, held not actionable. 
 (Poe v. Mondford, Cro. Eliz. 620.) 
 
 9 Carroll v. White, 33 Barb. 615. 
 
 19
 
 282 WHAT LANGUAGE IS ACTIONABLE [Ch. VIII 
 
 drunken fool and an ass, he never was a scholar ; 1 or, I 
 wonder you had him to attend you ; do you know him ? 
 He is not an apothecary ; he has not passed any examina- 
 tion ; he is a had character, none of the medical men here 
 will meet him ; several have died that he has attended, 
 and there have been inquests held upon them ; 2 or, He 
 killed my child, it was the saline injection that did it; 3 
 or, He is an empirick and a mountebank ; 4 or a quack ; 5 
 or, He is a quack, and if he shows you a diploma it is a 
 forgery ; 6 or, His treatment of a patient was rascally ; 7 
 and so it has been held actionable to say of a midwife, 
 Many have perished for want of her skill (i. e. for her 
 want of skill). 8 She is an ignorant woman, and of small 
 practice, and very unfortunate in her way ; there are few she 
 goes to but lie desperately ill, or die under her hands. 9 
 She is no midwife but a nurse, and if I had not pulled her 
 from Mrs. J. S. she had killed her and her child. 10 She 
 lays no woman, but Dr. Chamberlayn or his lady does her 
 work. 11 And it has been held actionable to say of a school- 
 master, Put not your son to him, for he will come away as 
 very a dunce as he went. 12 He has no knowledge in gram- 
 mar or in the Latin tongue, nor knows how to educate his 
 
 J Cawdrey v. Tetley, Godb. 441. 
 
 a Southee v. Denny, 1 Ex. 196 ; 17 Law Jour. R. 151, Ex. Alleging that a physi- 
 cian is not entitled to practice as not being duly licensed, may be actionable. See 
 Collins v. Carnegie, 3 Nev. & M. V03 ; 1 Ad. & El. 695. 
 
 8 The words impute manslaughter. (Edsall v. Russell, 4 M. <fc G. 1090.) 
 
 4 Vin. Abr. Act. for Words, S. a. 12. Publishing in writing of a barrister that he 
 was a quack lawyer and a mountebank and an imposter, is actionable. (Wakley v. 
 Healey, 7 C. B. 591.) 
 
 6 Pickford v. Gutch, Dorchester Assizes, 1787. White v. Carroll, 42 BT. Y. 161. 
 
 6 Moises v. Thornton, 8 Term R. 303. 
 
 1 Camp v. Martin, 23 Conn. 86. 
 
 " Flower's Case, Cro. Car. 211. 
 
 9 Wharton v. Brook, Vent. 21 ; Wharton v. Clover, 2 Keb. 489. 
 
 10 Whitehead v. Fownes, Freem. 277. 
 JI Gyles v. Bishop, Freem. 278. 
 
 u Hot. 71.
 
 § 104.] CONCERNING SPECIAL CHARACTERS. 283 
 
 scholars in the Latin tongue, with an allegation of loss of 
 scholars. 1 So it has been held actionable to say of an at- 
 torney, He hath no more law than Mr. C.'s bull, or than a 
 goose ; 2 he cannot read a declaration ; 8 what, does he pre- 
 tend to be a lawyer ? he is no more a lawyer than the 
 devil ; 4 or of a barrister, He is a dunce, and will get little 
 by law, he was never but accounted a dunce ; 5 or of a 
 shoemaker, that he is a cobbler; 6 or of a watchmaker, 
 that he knows not how to make a good watch. 7 Action- 
 able to say of a mason, " He is no mechanic, he cannot 
 make a good wall, or do a good job of plastering, he is no 
 workman, he is a botch ; " and actionable to write of an 
 optician, he is " a licensed hawker and a quack in spectacle 
 secrets." 9 
 
 § 194. It is not actionable to charge one in a business 
 or profession with want of skill or ignorance in a particu- 
 lar transaction. 10 Thus it was held not to be actionable to 
 say of an attorney in a particular suit, " He knows nothing 
 about the suit ; he will lead you on until he has undone 
 you. 11 It is said, however, that it is actionable to charge 
 ignorance or unskillfulness if it amounts to gross ignorance 
 
 I London v. Eastgate, 2 Rolle's R. 72. 
 e Baker v. Morfue, Sid. 32T. 
 
 3 Powell v. Jones, 2 Keb. 710 ; 1 Mod. 272. It implies ignorance, not a defect of 
 sight. 
 
 4 Day v. Buller, 3 Wils. 59. 
 
 5 Peard v. Jones, Cro. Car. 382. 
 
 6 1 Mod. 19; Vin. Abr. Act. for Words, IT. a. 1G. 
 
 7 Redman v. Pyno, 1 Mod. 19; but to say of a watchmaker, he is a bungler, and 
 knows not how to make a good piece of work, would be actionable. {Id.) Where 
 A., the author of a work, sold the copyright to the defendant, who afterwards pub- 
 lished a new edition as edited by A., containing mistakes and errors, held, if this was 
 calculated to injure A.'s reputation as an author, he might maintain an action. (Arch- 
 bold v. Sweet, 5 C. <fc P. 219; 1 M. & Rob. 162.) 
 
 ■ Fitzgerald v. Redfield, 51 Barb. 484; 36 How. Pr. R. 97. 
 
 • Keyzor v. Newcomb, 1 Fost. & F. 559. 
 
 10 Garr v. Selden, 6 Barb. 416; Camp v. Martin, 23 Conn. 86; Southee v. Denny, 
 1 Ex. 196. 
 
 II Foot v. Brown, 8 Johns. 64.
 
 284 WHAT LANGUAGE IS ACTIONABLE [Ch. VIII. 
 
 or unskillfulness. 1 This seems only another mode of im- 
 puting such ignorance as unfits the person for the proper 
 exercise of his art, of with misconduct therein. 
 
 § 195. It was held actionable to publish orally of a 
 minister of the gospel : that he preaches lies in the pulpit ; 2 
 he made a seditious sermon, 3 he hath two wives, 4 he is a 
 drunkard, 3 or incontinent, 6 or guilty of incest, 7 or he has a 
 bastard, 8 or he is a perjured priest. 9 The following words 
 were held not actionable, spoken of one who was a min- 
 ister at the time of the publication, and who had been a 
 draper in partnership with H. P., and who had a contro- 
 versy with H. P. as to the partnership accounts : " I do 
 not go by reports, I go by a knowledge of facts. Mr. H. 
 (the plaintiff) is a rogue, and I can prove him to be so by 
 the books at S. He pretends to say he has been as good 
 
 1 Secor v. Harris, 18 Barb. 425, and Sumner v. Utley, 7 Conn. 257; Johnson v. 
 Robertson, 8 Port. 486 ; Camp v. Martin, 23 Conn. 86. 
 
 2 Drake v. Drake, Sty. 363; and see Cranden v. Walden, 3 Lev. 17; Bishop of 
 Norwich Case, Cro. Eliz. 1 ; Dod v. Robinson, Aleyn, 63, and Gallwey v. Marshall, 9 
 Ex. 294. 
 
 3 Phillips v. Badly, 4 Rep. 19 a. 
 
 * Nicholson v. Lynes, Cro. Eliz. 94. 
 
 5 McMillan v. Birch, 1 Binn. 178; Chaddock v. Briggs, 13 Mass. 248; contra, see 
 Buck v. Hersey, 31 Maine (1 Red.) 558; O'Hanlon v. Myers, 10 Rich. Law (So. Car.) 
 128. In Dod v. Robinson, Aleyn, 63, the words were : You are a drunkard, a whore- 
 master, a common swearer and a common liar, and you have preached false doctrine, 
 and deserve to be degraded. These words were held actionable. 
 
 6 Demarest v. Haring, 6 Cow. 76. It seems that ia England to render such a 
 charge actionable, the person affected must be beneficed, or in the actual receipt of 
 professional emolument as a preacher, lecturer, or the like. (Gallwey v. Marshall, 9 
 Ex. 294; and see note 12 p. 238, ante.) Saying of a Methodist minister that he 
 kept company with whores, held not actionable without special damage. (Breeze v. 
 Saris, 23 Up. Can. Q. B. 94.) 
 
 7 Spoken of a paid preacher or lay exhorter of the Methodist Church. (Starr v. 
 Gardner, 6 Up. Can. Q. B. Rep. 0. S. 512.) 
 
 8 Special damage being alleged. (Payne v. Beaumorris, Lev. 24S.) He is a lewd 
 adulterer, and hath two children by the wife of 0. S., spoken of a clergyman, held 
 not actionable. (Parret v. Carpenter, Koy, 64, and ante, note 2, p. 272.) And so of the 
 words, You are an old rogue, rascal, and contemptible fellow. (Musgrove v. Bovey, 
 Sura. 946.) 
 
 9 Hogg v. Vaughan, Sty. 6.
 
 § 195.] CONCERNING SPECIAL CHARACTERS. 285 
 
 as a father to H. P., when in fact he has been robbing him. 
 He has cheated P. of £2,000. I will so expose hhn that 
 he will not be able to hold up his head in T. pulpit. * * * 
 I wonder how any respectable person can countenance 
 such a man by their presence. I have been advising some 
 persons to go to the Wesleyan chapel as they would hear 
 plain honest men." * So the following words spoken of a 
 clergyman were held not actionable : " Dr. P. (plaintiff ) 
 placed before me a bill, I signed it ; I do not know for 
 what amount it was, for I was completely pigeoned by Dr. 
 P." (plaintiff). 2 In the same case the following words 
 spoken of a clergymen, held to touch him in his profes- 
 sional character, and to be actionable : " The very day I 
 came into residence, Dr. P. (plaintiff) sent for me; I went 
 and dined with him, and the wine must have been 
 drugged, for I took but two glasses and was quite stupe- 
 fied. While in this condition Dr. P. put a bill into my 
 hands, and requested me to sign it, saying, C. just put 
 your name to this ; I wish to have it as a security for the 
 payment of .£130 per annum for reading for you. I an- 
 swered, Give me a pen and I will sign it. Immediately I 
 had signed it, Dr. P. snatched it up and said, This will be 
 quite safe. The bill I think was drawn for £2,500, but 
 having been stupefied with the wine I do not rightly re- 
 member. You cannot suppose I can meet a man who so 
 cheated me at my first coming ? " It is actionable to charge 
 a Protestant archbishop with having sought by means of. 
 a bribe to induce a Romish priest to abandon his religious 
 creed. 3 It was held not actionable to charge a Roman 
 
 1 Hopwood v. Thorn, 8 C. B. 293. 
 
 2 Peraberton v. Colls, 1011 ; 16 Law Jour. 403, Q. B. To charge a bishop with 
 being a wicked man (Thomas v. Hughes, 2 Mod. 189), or a bankrupt, said to be action- 
 aide (Holt on Libel, 233, note); and held actionable to publish in writing that the 
 plaintiff, a clergyman, had caused a misunderstanding in his congregation by personal 
 invectives from the pulpit against a young lady of spotless reputation. (Edwards v. 
 Bell, 8 Moore, 4GY.) 
 
 3 Tuam v. Robeson, 5 Bing. IT; 2 M. <fe P. 32.
 
 286 "WHAT LANGUAGE IS ACTIONABLE [CL VULL 
 
 Catliolic priest with having imposed certain penance, there 
 being nothing to show that enjoining such penance affected 
 his character as such priest. 1 To publish in writing of a 
 clergyman that he came to the performance of divine serv- 
 ice in a towering passion, 2 or that he desecrated a portion 
 of the church by turning it into a cooking apartment, 3 held 
 actionable. 
 
 § 196. As regards language concerning one in an office, 
 the same general principles apply as to language concern- 
 ing one in trade. Language concerning one in office which 
 imputes to him a want of integrity or misfeasance in his 
 office, or a want of capacity generally to fulfill the duties 
 of his office, or which is calculated to diminish public 
 confidence in him, 4 or charges him with a breach of some 
 public trust, is actionable. 5 But as in the case of one 
 in trade, the language to be actionable must touch him in 
 his office. 6 To charge a judge with erring in judgment or 
 disregarding public sentiment, or with any impropriety 
 which would not furnish a cause of impeachment, is not 
 actionable per se / but to charge that he had " abandoned 
 the common principles of truth," or " lacked capacity as a 
 judge," or made the office of clerk of his court a subject of 
 private negotiation, is actionable per se? So it is action- 
 able ^><?r se to charge that a judge improperly put his offi- 
 cial signature to the jurat of a paper in the forrn of an 
 affidavit, 8 or procured one to take a false oath, 9 or took a 
 
 1 Hearne v. Stowell, 12 Adol. & El. 719. 
 
 2 Walker v. Brogden, 19 C. B. N S. 65. 
 
 8 Kelly v. Sherlock, Law Rep. 1 Q. B. 686. 
 4 Lansing v. Carpenter, 9 Wis. 540. 
 
 6 Kinney v. Nash, 3 N. Y. IV 7, and authorities there referred to. 
 
 e McGuire v. Blair, 2 Law Reporter, 443, and ante, § 190. So that charging a 
 justice with misfeasance in trying a cause, not within his jurisdiction, was held not 
 actionable as not affecting him as justice. (Oram v. Franklin, 5 Blackf. 42; see, how- 
 ever, Carter v. Andrews, 16 Pick. 1 ; Stone v. Clark, 21 id. 51.) 
 
 7 Robbins v. Treadway, 2 J. J. Marsh. 540. 
 
 8 Dollaway v. Turrill, 26 Wend. 383; 17 id. 426. 
 
 9 Chetwind v. Meeston, Cro. Jac. 308.
 
 § 196.] CONCERNING SPECIAL CHARACTERS. 287 
 
 bribe, 1 or acted unjustly in bis office, 9 or to charge that 
 be is a lewd or false, 3 or corrupt, 4 or a partial, 5 or balf 
 eared, and will bear but one side, or that be cannot bear 
 of one ear, 6 or tbat be perverted justice, 7 or made use of 
 bis office to worry one out of bis estate, 8 or, He is forsworn 
 and not fit to sit upon a bencb, 9 or, He did seek my life 
 and offered ten shillings to the under-sheriff to empanel a 
 jury tbat migbt find me guilty. 10 But held not actionable 
 to publish orally of a justice, He is a blood-sucker and 
 seeketb after blood, if a man will give bim a couple of 
 capons be will take them ; n or, You robbed tbe poor and 
 are worse than a bighwayinan. 1 ' 2 It is not actionable to 
 say of a mayor, He is a rogue and rascal ; 13 or of an alder- 
 
 1 Cotton's Case, Mo. 695. In Lindsey v. Smith, 7 Johns. 360, an action was sus- 
 tained for the words, " Lindsey had been feed by Abner Wood, and I could do nothing 
 when the magistrate was in that way against me." 
 
 2 1 have often been with him for justice, but could never get any at his hands but 
 injustice. ( Isham v. York, Cro. Car. 14.) Actionable to say of a judge, his sentence 
 was corruptly given. See Chaddock v. Briggs, 13 Mass. 253; Chipman v. Cook, 2 
 Tyler, 456. 
 
 5 "Wright v. Moorhouse, Cro. Eliz. 358. 
 
 4 Caesar v. Curseny, Cro. Eliz. 305. Tou are a rascal, a villain, and a liar, spoken 
 of a magistrate in the execution of his office, the words, import a charge of corrup- 
 tion. (Aston v. Blagrave, 1 Strange, 617; 2 L'd Raym. 1369.) And so of the term 
 rogue. (Kent v. Pocock, 2 Str. 1168.) 
 
 5 Kemp v. Housgoe, Cro. Jac. 90. 
 
 8 Masham v. Bridges, Cro. Car. 223, and Alleston v. Moor, Het. 167. 
 T Delaware v. Pawlet, Mo. 409. 
 
 8 Newton v. Stubbs, 3 Mod. 71. 
 
 9 Cam v. Osgood, 1 Levinz, 280; s. c, Kerle v. Osgood, 1 Vent. 50; and see 
 Pepper v. Gay, 2 Lutw. 1288; Stutley v. Bulhead, 4 Rep. 16 a, 19 a ; Lassels v. Las- 
 Bels, Mo. 401; Hollis v. Briscow, Cro. Jac. 58; Burton v. Tokin, Cro. Jac. 143; Bea- 
 mond v. Hastings, Cro. Jac. 240. 
 
 10 Bleverhassett v. Baspoole, Cro. Eliz. 313. 
 
 u llilliard v. Constable, Mo. 418. Held actionable to publish in writing of a jus- 
 tice that he had been chairman of a finance committee, and had audited accounts, con- 
 taining items nominally to furnish lodgings for the judges, but in reality for the 
 accommodation of the magistrates; innuendo that plaintiff had conducted himself 
 corruptly in his office of justice. (Adams v. Meredew, 8 Y. t& J. 219, overruling 
 s. c, 2 Y. & J. 417. This case was, it is said, carried to the House of Lords.) 
 
 " Palmer v. Edwards, Rep. of Cas. of Prac. in C. B. 160. 
 
 13 Reg v. Langley, 6 Mod. 125; 2 Salk. 697.
 
 288 WnAT LAKGUAGE IS ACTIOXABLE [Cll. VIII. 
 
 man, When he puts on his gown Satan enters it ; 1 or of 
 an under-sheriff, Thou didst serve an execution and keep 
 in thy hands the money collected. 2 But it is actionable 
 to charge a sheriff with malpractice in his office ; 3 or to 
 say of a constable, He is not worthy of his office, for he 
 and his company the last time he was constable stole five 
 of my swine and eat them ; 4 or to publish in writing of a 
 police officer that he had been guilty of blackmailing and 
 had been dismissed for that cause. 5 But held not action- 
 able to publish orally of a police officer, I saw a letter 
 respecting an officer of the L. police, who had been guilty 
 of conduct unfit for publication, there being no allegation 
 of special damage and the charge not being connected with 
 his official character. 6 It is actionable to publish orally of 
 the director of a public company, that he had sold the 
 property of the company and pocketed the money ; T or of 
 a town clerk acting- as moderator of a town meeting- that 
 he had fraudulently destroyed a vote ; 8 or of an admin- 
 istrator, that he had been guilty of fraud in the appraise- 
 ment of the estate of the decedent ; 9 or of a juror, that 
 he agreed with another juror to determine the amount of 
 damages to be given in a certain cause in which he acted 
 as juror, by the result of a game of draughts. 10 A church- 
 
 1 2 Starkie on Slander, 314. 
 
 2 Geeve v. Copshill, Cro. Eliz. 854. 
 
 3 Dole v. Van Rensselaer, 1 Johns. Cas. 330. 
 
 4 Taylor v. Howe, Cro. Eliz. 861. Doubtful if actionable to say of a constable, 
 Thou art a cozening knave, and has cozened the parish in rates to £30. (Thomas' 
 Case, Het. 36.) 
 
 6 Edsall v. Brooks, 17 Abb. Pra. R. 221 ; 2 Robertson, 29. 
 
 6 James v. Brook, 9 Q. B. 7; 16 Law Jour. 17 Q. B. ; 10 Jur. 541. 
 
 7 Johnson v. Shields, 1 Dutch er, 116. 
 
 8 Dodds v. Henry, 9 Mas. 262. 
 
 9 Beck v. Stitzel, 21 Penn. St. R, (9 Harris), 522. 
 
 10 Commonwealth v. Wright, 1 Cush. 46. The charge was in writing. Held action- 
 able to publish orally of a juryman. Thou art a common juryman, and hast been the 
 overthrow of one hundred men by thy false means. (Vin. Abr. Act. fur "Words, F. a. 
 23.)
 
 § 196.] CONCERNING SPECIAL CHARACTERS. 289 
 
 warden holds a temporal office, and to charge him with 
 cheating the parish, is actionable. 1 It is actionable to pub- 
 lish in writing of a court commissioner, that he will act in 
 his judicial office according to the views of the persons 
 " whose tool and toady he is, and that the past would war- 
 rant the depriving him of his office ;" 2 of an overseer, that 
 when out of office he advocated low rates, and that he 
 (defendant) would not trust him (plaintiff) with .£5 of 
 his private property ; 3 or of an overseer, that he had been 
 guilty of illiberal and illegal practices towards paupers, in 
 compelling them to procure goods from a particular per- 
 son, and threatening him with the rjenalties of the act 
 against such practices ; 4 or of a postmaster, who resided 
 in the house used as the post-office, that the house in which 
 the post-office is kept is of such a low character that a 
 decent lady dare not enter. 5 And actionable to publish 
 orally of a postmaster that he opened a letter, took money 
 out of it, and appropriated it to his own use, and kept 
 and embezzled letters ; 6 or that he would rob the mail for 
 five hundred dollars — yes, he would rob the mail for five 
 dollars. 7 It is not actionable to charge a member of Par- 
 liament with want of sincerity ; 8 or a member of the legis- 
 
 1 Townsend v. Barker, Sty. 394 ; Woodruff v. Wooley, Curt. 1 ; Strode v. Holmes, 
 Sty. 338; and see Hutton v. Beck, Cro. Jac. 339; Hopton v. Baker, 2 Bulst. 218; 
 Willis v. Shepherd, Cro. Jac. 619; Harle v. Catherall, 14 L. T. N. S. 801. 
 
 2 Lansing v. Carpenter, 9 Wis. 540. 
 
 3 The jury found that the words imputed dishonesty. (Cheese v. Scales, 10 M. <fe 
 W. 448.) 
 
 4 Woodard v. Dowsing, 2 M. & Ry. 74. 
 
 6 Johnson v. Stebbins, 5 Ind. (Porter), 364. 
 
 6 Hays v. Allen, 3 Blackf. 408. See contra, McCnen v. Ludlum, 2 Harrison, 12, 
 and notes 12, p. 237, <fe 4, p. 253, ante, and Taylor v. Kneeland, 1 Doug. 67. 
 
 7 Craig v. Brown, 5 Blackf. 44. 
 
 8 Onslow v. Home, 2 W. Black. 750; 3 Wils. 177. The words complained of 
 were: "As to instructing our members to obtain redress, I am totally against that 
 plan; for as to instructing Mr. Onslow (the plaintiff), we might as well instruct the 
 winds, and should he (the plaintiff) ever promise his assistance, I should not expect 
 him to give it us." One of the reasons for holding the words not actionable was, they 
 did not charge the plaintiff with any breach of his duty, bis oath, or any crime or 
 misdemeanor whereby he had suffered any temporal loss, in future office, or in any 
 way whatever.
 
 290 WHAT LANGUAGE IS ACTIONABLE [Cll. VIII. 
 
 lature, in reference to the future discharge of his functions, 
 with being a corrupt old tory. 1 It is actionable to publish 
 in writing of a member of Congress, " He is a fawning 
 sycophant, a misrepresentative in Congress, and a grovel- 
 ing office-seeker ; he has abandoned his post in Congress 
 in pursuit of an office ;" 2 or of a lieutenant-governor, that 
 he was in a beastly state of intoxication while in the dis- 
 charge of his duty in the senate, and was an object of 
 loathing and disgust; 3 or a commissioner of bankrupts, 
 with being a misanthropist, and violent partisan, stripping 
 unfortunate debtors of every cent, and then depriving them 
 of the benefit of the act. 4 In an action by G., a United 
 States collector, for slander, the declaration charged these 
 words : " Gr. has not accounted to the department for the 
 sum paid by W. by some $32,000." " In the settlement of 
 the funds of ~VV., amounting to many hundreds of thou- 
 sands of dollars, the amount paid by them was $135,224; 
 only $125,224 was accounted for, of which $62,612 was 
 credited to the government, leaving the same amount 
 ($62,612) divided between the collector, the naval officer, 
 and the surveyor ; it is not known what has been done 
 with the balance, amounting to the large sum of $32,000, 
 and it is understood that this settlement was made through 
 the interventions of S. and his partner, the late deputy 
 collector ; it is discreditable to the government to have it 
 generally known that the sum of $157,224 was paid by 
 W. in a settlement with the government, and that $32,000 
 of that. sum was not accounted for." No words alleging a 
 failure to pay on demand were charged. The innuendoes 
 averred the imputation of embezzlement and of receiving 
 a bribe. Held, that the words were not actionable. 5 
 
 1 Hogg v. Dorrah, 2 Port. 212. 
 
 2 Thomas v. Crosswell, 1 Johns. 264; and see Vilson v. !Xoonan, 23 Wis. 105 
 
 3 Root v. King, 7 Cow. 613; 4 Wend. 113. 
 
 4 Eiggs v. Denniston, 3 Johns. Cas. 198. 
 6 Goodrich v. Hooper, 97 Mass. 1.
 
 § 197.] "WITH SPECIAL DAMAGE. 291 
 
 § 197. We have already directed attention to the dis- 
 tinction between patently and latently wrongful acts, and 
 to the rule of law that the necessary and natural and prox- 
 imate consequences of an act are those alone for which the 
 actor is responsible (§ 61) ; and we have pointed out the 
 difference between language being actionable per se 
 and actionable only by reason of special damage (§ 146). 
 So far, this chapter has been solely devoted to language 
 actionable per se / we have now to consider what language 
 concerning a person is actionable, because and only because 
 its publication has occasioned special damage. " Undoubt- 
 edly, all words are actionable if a special damage follows." 1 
 " Any words are actionable by which the party has a spe- 
 cial damage." 2 " To make words actionable, they must be 
 such that special damage may be the fair and natural re- 
 sult of them." 3 " There must be some limit to liability 
 for words not actionable per se, both as to the words and 
 the kind of damages, and a clear and wise one has been 
 fixed by law." 4 The limitation is, that special damage 
 must ensue. But what is meant by special damage ? Spe- 
 cial damage is a term ambiguously employed ; properly, it 
 connotes the natural and proximate but not necessary con- 
 sequences of a wrongful act ; 5 but it is frequently used to 
 
 1 Heath, J., Moore v. Meagher, 1 Taunt. 39 ; and see among- other cases, Wilby v. 
 Elston, 13 Jur. 706; 8 C. B. 142; V Dowl. & L. 143; Barnes v. Trundy, 31 Maine (1 
 Red.) 321; McCuen v. Ludlum, 2 Harrison 12; Bentley v. Reynolds, 1 McMullan, 16. 
 Acts (words) may be harmless in themselves, so long as they injure no one, but the 
 consequences of acts ( words) often give character to the acts (words) themselves. 
 (Van Pelt v. McGraw, 4 N. Y. 113.) 
 
 2 Comyn's Dig., Act. for Dcfam. D, 30. 
 
 ' Taunton, J., Kelly v. Partington, 3 Nev. & M* 116; 5 B. & Adol. 645. 
 
 4 Strong, J., Terwilliffer v. Wands, 11 N. Y. 61. 
 
 6 Such damages as are the natural, although not the necessary result of the injury, 
 are termed special damages. (Vanderslice v. Newton, 4 N. Y. 132.) The special 
 damage must be the immediate, not the remote consequence of the publication. (Beach 
 v. Ranney, 2 Hill, 309; Sewell v. Catlin, 3 Wend. 291.) "The damage must be the 
 natural and proximate consequence of the wrongful act complained of." (2 Smith's 
 Lead. Cas. 534, 6th ed.) "1 have always understood that the special damage must 
 be the natural result of the thing done." (Patteson, J., Kelly v. Partington, 5 B. ifc 
 Adol. 546;) and see Iladdon v. Lott, 15 C. B. 411 ; 24 Law Jour. Rep. N. S. 49 C. P.
 
 292 WHAT LANGUAGE IS ACTIONABLE [Cll. VIII. 
 
 indicate any or all loss which, not being a necessary con- 
 sequence, is the subject of other proof than the mere com- 
 mission of the act complained of, and without regard to 
 whether such loss is or is not a natural or natural and 
 proximate consequence of such act. The term is employed 
 in the latter sense when it is said that language which 
 occasions special damage is not actionable unless it be de- 
 famatory, 1 which is equivalent to saying, that language 
 which as a natural and proximate consequence occasions 
 loss, is not actionable unless it is injurious (defamatory). 
 If the language is not injurious (defamatory) in its nature, 
 it cannot as a natural consequence occasion loss, and it 
 may well be that none other than language defamatory in 
 its nature (disparaging) can as a natural and proximate 
 consequence occasion loss. It may be correct to say that 
 " to make the words wrongful they must in their nature 
 be defamatory," 2 provided the rule thus expressed be under- 
 stood as being subordinate to and implied in the more 
 comprehensive rule, that to render actionable that language 
 which is not actionable per se, the language must occasion 
 special damage, in the proper sense of that term. 3 The 
 real question must always be, was the damage complained 
 of a natural and proximate consequence of the publica- 
 tion. 4 For " it is a rule equally consistent with good sense, 
 good logic, and good law, that a person who would recover 
 damages for an injury occasioned by the conduct of another, 
 
 1 " The special damage will not help you if the words are not defamatory." (Black- 
 burn, J., Young v. McCrae, 3 Best & S. 264 ; 7 Law Times, N. S. 354.) 
 
 2 Patteson, J., Kelly v. Partington, 5 B. & Adol. 645. 
 
 3 " I cannot agree that words laudatory of a person's conduct would he the subject 
 of an action if they were followed by special damage. They must be defamatory or 
 injurious in their nature." (Littledale, J., Kelly v. Partington, 3 Nev. k M. 117; 5 
 B. & Adol. 645.) " The words must be defamatory in their nature ; and must in fact 
 disparage the character, and this disparagement must be evidenced by some positive 
 loss arising therefrom directly and legitimately as a fair and natural result." (Strong, 
 J., Terwilliger v. Wands, 17 N. Y. 61); and see Hallock v. Miller, 2 Barb. 633. 
 
 4 Denman, Ch. J., Knight v. Gibbs, 3 Xev. cfc M. 467; 1 AdoL <fc El. 48.
 
 § 198.] WITH SPECIAL DAMAGE. 293 
 
 must show as an essential part of his case, the relation of 
 cause and effect between the conduct complained of and 
 the injury sustained." 1 
 
 § 198. What is special damage % Special damage con- 
 sists 2 in the loss of marriage, loss of consortium of husband 
 and wife, 3 loss of emoluments, profits, customers, employ- 
 ment, or gratuitous hospitality, 4 or by the being subjected 
 to any other inconvenience or annoyance occasioning or 
 involving an actual or constructive pecuniary loss. 5 The 
 special damage must be the loss of some material tem- 
 poral advantage. Loss of consortium vicinorum is not 
 
 1 Olnistead v. Brown, 12 Barb. 662. 
 
 8 "As to what constitutes special damage, Starkie mentions the loss of marriage, 
 loss of hospitable gratuitous entertainment, preventing a servant or bailiff from get- 
 ting a place, the loss of customers by a tradesman, and says that, in general, when- 
 ever a person is prevented by the slander from receiving that which would other- 
 wise be conferred upon him, though gratuitously, it is sufficient." (Terwilliger v. 
 Wands, 17 N. Y. 60; citing Starkie on Slander, 195, 202; Cooke on Defam. 22, 24.) 
 Plaintiffs being refused employment (Strong v. Forman, 2 Car. & P. 592), or iu- 
 surance upon a ship of which he was master (Shipman v. Burrows, 1 Hall, 399), is 
 special damage. 
 
 3 Lynch v. Knight, 5 Law Times, N. S. 291 ; 9 Ho. L. 577, Parkins v. Scott, 6 
 Law Times, N. S. 394; 1 H. L. 153 ; Koberts v. Roberts, 33 Law Jour. Q. B. 249, and 
 see Claytou, 73. 
 
 4 Moore v. Meagher, 1 Taunt. 39; Williams v. Hill, 19 Wend. 305. 
 
 8 " All the cases proceed upon the assumption that the plaintiff has sustained 
 some pecuniary loss in consequence of the slander. It is not sufficient that she has 
 fallen into disgrace, contempt, and infamy, and lost her credit, reputation, and peace 
 of mind, or the society or good opinion of her neighbors, uuless she has been injured 
 in her estate or property." (Woodbury v. Thompson, 3 N. Hamp. 194; and see ante, 
 notes 2, p. 103, and 2, p. 107; Kelly v. Partington, 3 Nev. & M. 116; Keenholts v. 
 Decker, 3 Denio, 346; Foulger v. Newcomb, Law Rep. II, 330, Ex.) And because, in 
 England, the fees of barristers and physicians are honorary, it has been doubted if 
 barristers or physicians can sustain special damage in their professions. (Brown v. 
 Kennedy, 32 Law Journ. Chan. 342.) The doubt, however, is ill-founded, as the loss of 
 a gratuity is special damage. (Hartley v. Herring, 8 T. R. 130, and note 2 supra, and 
 note 1, p. 298, post.) " One essential element of a good cause of action for defamation is 
 damage, "but in Terwilliger v. Wands, 17 N. Y. 61, and Wilson v. Goit, id. 442, the whole 
 tenor of the opinions imply that loss of reputation is the gist of the action, and in the 
 first named case it is said, " It is injuries affecting the reputation only, which are the 
 subject of tlie action." "The special damage must flow from impaired reputation." 
 This, however, may mean only that the language must be defamatory. See ante, 
 note 2, p. 103.
 
 294 WHAT LANGUAGE IS ACTIONABLE [Ch. VIII. 
 
 sufficient. 1 Where words were spoken imputing un- 
 chastity to a woman, by reason whereof she was excluded 
 from a private society and congregation of a sect of 
 Protestant dissenters, of which she had therefore been a 
 member, and was prevented from obtaining a certificate, 
 without which she could not become a member of any 
 other society of the same nature, held that such a result 
 was not " special damage," and did not, render the words 
 actionable, 2 but an action was held maintainable where 
 the plaintiff, an unmarried woman, in consequence of a 
 charge of incontinence, was refused civil treatment at a 
 hotel or tavern. 3 A charge of incontinence against an un- 
 married woman, whereby she loses her marriage, is action- 
 able, 4 as to say of the plaintiff, Anne Reston hath had a 
 child, and if she has not a child, she has made away with 
 it ; 5 or, You ought not to marry M., the plaintiff, for be- 
 fore God she is my wife, and therefore if you do, you will 
 live in adultery, and your children will be bastards. 6 
 Loss of a wife is the same to a man as loss of a husband 
 is to a woman, and therefore, where the defendant called 
 the plaintiff a whoremaster, whereby he lost his marriage, 
 it was held he could maintain his action ; 7 and so saying 
 of one who was a widower that he had kept his wife 
 basely, and starved her or denied her necessaries, whereby 
 he lost his marriage, was held actionable ; 8 and calling 
 
 1 Roberts v. Roberts, 33 Law Jour. Q. B. 250; Beach v. Ranney, 2 Hill, 309. 
 
 5 Roberts v. Roberts, 33 Law Jour. Q. B. 250. 
 
 3 Olrastead v. Miller, 1 Wend. 510. 
 
 4 Davis v. Gardiner, 4 Co. 1 6. 
 
 6 Reston v. Pomfreict, Cro. Eliz. 639. 
 
 6 Shepherd v. Wakeman, Sid. 79; Lev. 37. Saying of a woman, she was a man, 
 not a woman, with special damage held actionable. (Pye v. "Wallis, cited Curt. 55.) 
 See Hermaphrodite. 
 
 7 Matthew v. Crass, Cro. Jac. 323 ; 2 Bulst. S6 ; and see Sell v. Facy, 2 Bulst. 276 ; 
 Southall v. Dawson, Cro. Car. 269; contra, see Witcher's Case, Keb. 119. In Taylor 
 v. Tally, Palmer. 385, defendant said of plaintiff that he, plaintiff, had ravished the 
 wife of II. ; and plaintiff alleging that thereby he lost his marriage, the words were 
 held actionable. 
 
 Anon. Mar. 2; Wicks v. Shepherd, Cro. Ca" 155.
 
 § 198.] WITH SPECIAL DAMAGE. 295 
 
 plaintiff bastard, whereby he lost his marriage, was held 
 actionable. 1 As to loss of customers, where it was said of 
 an innkeeper, I (defendant) saw Cook lie with Collins' 
 (plaintiffs) wife, whereby plaintiff lost his customers, it 
 was held that an action could be maintained ; 2 and so 
 where it was said of an innkeeper, that a person had died 
 in his house of the plague, whereby his (plaintiff's) guests 
 left his house, it was held he might maintain his action. 3 
 Words imputing incontinence to a dissenting minister, 
 whereby the persons frequenting his chapel refused to 
 permit him to preach, and discontinued giving him certain 
 reward as they usually had, and but for the publication 
 complained of would have done, were held actionable. 4 
 Where the declaration alleged that plaintiff being the 
 proprietor of certain rooms adapted for a dancing academy, 
 defendant falsely and maliciously published of the build- 
 ing and rooms, and of plaintiff as proprietor thereof, that 
 " the magistrates havins 1 refused to renew a music and 
 
 1 Nelson v. Staff, Cro. Jac. 422. Saying of the plaintiff, He hath been in bed with 
 Dorchester's wife, whereby he lost his marriage, held actionable. (Southold v. 
 Daunston, Cro. Car. 269.) 
 
 2 Collins v. Matthews, 3 Keb. 242. 
 
 s Comyn's Dig., Act. for Def. D. 29 ; as to loss of customers, see Evans v. Harries, 
 1 Hurl. & Nor. 251 ; 38 Eng. Law and Eq. R. 347 ; Vin. Abr. Act. for Words, U. a. 
 13; Barrow v. Gibson, L'd Raym. 831; 1 Str. 566; Bull. N. P. 7; 1 Lev. 140; 
 Trenton Ins. Co. v. Perrine, 3 Zabr. 402. Action by a butcher for saying a cow, the 
 carcass of which he had to sell, died by calving, by which he lost his customers, 
 judgment was given for the plaintiff, but reversed on error, the alleged loss of cus- 
 tomers being too general ; but held that had it been laid, the plaintiff exposed the 
 meat for sale, and by reason of the words he lost the sale, the action could have been 
 maintained. '(Rice v. Pidgeon, Comb. 161, and Tassan v. Rogers, 2 Salk. 693.) "A 
 distinction has been made between particular damage and general damage ; thus, in 
 an action for slandering a man in his trade, when the declaration alleges that he 
 thereby lost his trade, he may show a general damage to his trade, though he can- 
 not give evidence of particular instances." (Creswell, J., Rose v. Groves, 5 M. & G. 
 618.) To prove the loss of a customer, the customer must be called to prove why he 
 ceased to deal with the plaintiff, and if the witness says he ceased to deal with 
 plaintiff in consequence of something he heard from one, not the defendant, it is not 
 special damage. (Harnett w. Allen, 1 Fost. & F. 125 ; and see Dixon v. Smith, 5 Hurl. 
 & N. 450 ; Hirst v. Goodwin, 3 Fost. & F. 257.) 
 
 4 Hartley v. Herring, 8 T. R. 130.
 
 296 WHAT LANGUAGE IS ACTIONABLE [CL VIII. 
 
 dancing license to the proprietor, all such entertainments 
 there carried on are illegal, and the proprietor renders 
 himself thereby indictable for keeping a disorderly house, 
 and every person found on the premises will be appre- 
 hended and dealt with according to law," by means of 
 which publication plaintiff was prevented from letting said 
 rooms ; held on demurrer that the declaration disclosed a 
 cause of action. 1 
 
 § 199. It seems that where the person to whom the 
 publication is made is, by reason of the charge, induced to 
 act upon it to the prejudice of the person whom it may 
 concern, it is immaterial whether the person to whom the 
 publication was made believed or disbelieved in the truth 
 of the charge ; thus, where a charge was made to a mis- 
 tress against a female (the plaintiff) in her employ, in 
 consequence of which she dismissed the plaintiff from her 
 employ, on the trial she testified that such dismissal was 
 not because she believed the charge to be true, but be- 
 cause she was afraid she should offend the defendant, her 
 landlord, by retaining plaintiff in her employ ; held, that 
 the special damage being the consequence of the charge, 
 the action was maintainable, the court could not speculate 
 upon motives of witnesses. 2 
 
 1 Bignell v. Buzzard, 3 Hurl. & Nor. 217. In Dibdin v. Swan, 1 Esp. Cas. 28, the 
 plaintiff was the proprietor of a place of amusement called Sans Souci, where he sang 
 certain songs supposed to be composed by himself; he sued the defendant, the propri- 
 etor of a newspaper called the World, for publishing in that paper that such songs 
 were not composed by the plaintiff; that on the first night when plaintiff Bttag there 
 had been a very thin audience, and that composed of persons admitted by orders (for 
 free admission), and that the applause was only from the persons so admitted. The 
 report does not state the result of the case, but merely the charge of Lord Kenyon, 
 that the editor of a newspaper may fairly and candidly comment on any place or 
 species of public entertainment, but it must be done fairly and without malice or 
 view to injure the proprietor. That if so done, however severe the censure, the justice 
 of it screens the editor from legal animadversion ; but if the comment be unjust, 
 malevolent, or exceeding the bounds of fair opinion, it is actionable. A< to comments 
 on theatrical performances, see Fry v. Bennett, 5 Sand. 54 ; 3 Bosw. 200 ; 2S X. Y. 
 324 ; Gregory v. Duke of Brunswick, 6 M. & G. 953. 
 
 8 Knight v. Gibbs, 3 Nev. <fe M. 467; 1 Adol. & El. 43. I do not know that the
 
 § 200.] WITH SPECIAL DAMAGE. 297 
 
 § 200. Mere apprehension of loss is not such special 
 damage as will maintain an action ; as where defendant 
 said of plaintiff that he had two bastards, and the alleged 
 special damage was that, by reason of the words, a con- 
 tention arose between plaintiff and his wife, and he was in 
 danger to be divorced. 1 And where the defendant said of 
 plaintiff, she is with child by T. S., and the alleged spe- 
 cial damage was that in consequence of the words the 
 father of plaintiff threatened to turn her out of his house, 
 this was held not to amount to such special damage as 
 would support an action. 2 Where the plaintiff alleged 
 that she was a single woman and chaste, and that her 
 mother meant to give her £150 and her brother £100, and 
 that by reason of the defendant's charging her with incon- 
 tinence, they did not give her these sums, it was doubted 
 if the action was maintainable, and no judgment was ren- 
 dered. 3 Again, where the plaintiff alleged that by reason 
 of the publication he had incurred the ill-will of his moth- 
 er-in-law, who had previously promised him £100, held 
 that no cause of action was shown. 4 Where the plaintiff 
 alleged that her brother had promised to supply her with 
 the means to emigrate from Ireland, but in consequence of 
 the defendant's imputation her brother had retracted his 
 promise until the truth of the charge was established or 
 refuted, this was held to constitute special damage, and 
 that it was not necessary to allege that there was any con- 
 
 belief of the party is at all material. I may not believe a charge, and yet I may not 
 have the courage to keep a person who is suspected by others. I think it better that 
 we shoidd lay it down generally, that if the words are slanderous, and are acted upon 
 to the prejudice of the party slandered, an action may be maintained. (Id.) To the 
 like effect see Gillett v. Bullivant, 1 Law Times, 490. Contra is a dictum, Wilson v. 
 Goit, \1 N. Y. 445. An action of slander * * would plainly be perverted if allowed 
 where the slanderous words were not credited by any individual. 
 
 1 Randle v. Beal, Cro. Jac. 413 ; Salter v. Browne, Cro. Car. 436. 
 
 ' Barnes v. Bruddell, 2 Keb. 451 ; s. c. 1 Lev. 261. 
 
 8 Bracebridge v. Watson, Lilly Ent. 61. 
 
 4 Harris v. Torter, Curt. 1. 
 
 20
 
 298 WHAT LANGUAGE IS ACTIONABLE [Ch. VIIL 
 
 sideration for tlie "brother's promise. 1 Where the injury 
 to the plaintiff is the result in part only of the defend- 
 ant's act, subject to the qualifications hereafter to be men- 
 tioned, it will not give a right of action against the defend- 
 ant; thus, where the plaintiff was discharged from his 
 employment partly on account of the publication by the 
 defendant and partly from other causes, it was held that 
 the plaintiff could not recover. 2 And where the plaintiff 
 alleged that in consequence of the words he (the plaintiff) 
 refused to marry his betrothed, and so he lost his mar- 
 riage, it was held the loss of marriage did not under 
 such circumstances constitute special damage. 3 Where 
 the plaintiff alleged that by reason of the language pub- 
 lished by the defendant all honest persons refused to 
 many their daughters to him (the plaintiff), held that the 
 plaintiff did not disclose a cause of action. 4 As the law 
 gives no remedy for outraged feelings or sentiments (§ 56), 
 a sickness induced by mental distress in consequence of 
 the language published, followed by inability to transact 
 business and expense for medical attendance, does not 
 constitute special damage, and for words not actionable 
 per se which occasion such results, no action can be main- 
 tained. 5 If, after a recovery has been had in an action for 
 
 1 Corcoran v. Corcoran, 7 Ir. L. R. N. S. 272. 
 
 s Vickars v. Wilcocks, S East, 1 ; 2 Stark. Ev. 637. 
 
 8 Carter v. Smith, Via Abr. Act. for Words, D. a. 10. 
 
 4 Norman v. Simons, Via. Abr. Act. for Words, D. a. 12. 
 
 8 Terwilliger v. Wands, 17 N. Y.54; "Wilson v. Goit, 17N.Y.442; Alsop v. Alsop, 
 5 Hurl. & Nor. 534 ; Bedell v. Powell, 13 Barb. 183. These decisions overrule Brandt 
 v. Towsley, 13 Wend. 253; Fuller v. Fenner, 16 Barb. 333; Olmstead v. Brown, 12 
 Barb. 657 ; Underbill v. Welton, 32 Verm. (3 Shaw), 40. That plaintiff was shunned 
 by her neighbors, and turned out of the moral reform society, was held not to consti- 
 tute special damage. (Beach v. Ranney, 2 Hill, 309 ; and see ante, note 2, p. 294.) 
 Loss of a wife's services from illness occasioned by the publication of language not 
 actionable per se, is not special damage, so as to give a right of action to the husband. 
 (Wilson v. Goit, 17 N. Y. 442 ; Alsop v. Alsop, 5 H. cfc N. 534 ; 29 L. J. Ex. 315 ; and 
 see Guy v. Gregory, 9 Car. <fe P. 584 ; Beach v. Ranney, 2 Hill, 309.) In an action 
 by husband and wife, for words of the wife actionable per se, the plaintiff cannot 
 recover as special damage loss occasioned by one refusing to employ his wife as a
 
 § 201.] WITH SPECIAL DAMAGE. 299 
 
 slander or libel, special damage occurs, no action can be 
 maintained therefor; the first recovery is a bar to any 
 subsequent action. 1 
 
 § 201. It has been very generally reputed and ac- 
 cepted for law, that the illegal act of a third party cannot 
 constitute special damage ; 2 in other words, that one illegal 
 (wrongful) act cannot be a natural and proximate conse- 
 quence of another illegal (wrongful) act. This idea 
 appears very frequently in the reports, in the expression 
 that special damage must be the natural and legal conse- 
 quence of the act complained of. The case usually re- 
 ferred to in support of this proposition is one in which 
 the defendant falsely asserted that plaintiff had cut his 
 master's cordage, in consequence of which the plaintiff's 
 master, although under a binding contract to employ him 
 for a term which had not then expired, discharged him, it 
 was held the plaintiff could not recover ; that such dis- 
 charge did not constitute special damage, because it was 
 not a natural and legal consequence of the publication; 
 that the defendant was no more answerable for the dis- 
 charge than if in consequence of the words spoken other 
 persons had assaulted the plaintiff; and that if in such a 
 case plaintiff could recover, for the refusal of a third 
 person to perform his legal contract, he might twice 
 recover for the same cause — once in the action for the 
 slander, and again in an action against the third person 
 for the breach of his contract. 3 It was sivfficient to sustain 
 
 servant. That is damage for which the husband alone must sue. (Dengate v. Gardiner, 
 4 M. & W. 5.) 
 
 1 Bull. N. P. 1, citing Fittler v. Veal, Cas. K. B. 542 ; Cooke Defam. 21. 
 
 2 Bentley v. Reynolds, 1 McMullin, 16. 
 
 3 Vickars v. Wilcocks, 8 East, 1. This is one of the cases selected by Mr. Smith 
 as a leading case, and appears with an elaborate note in 2 Smith's Leading Cases. 
 This case is commented upon in a note, 1 Starkie on Slander, 207. Similar to Vickars 
 v. "Wilcocks is Morris v. Langdale, 2 Bos. & Pul. 289, where Lord Eldon, Ch. J., said : 
 "A great part of the special damage consists in an allegation that other persons did 
 not perform their lawful contracts with him. Now, if the plaintiff has sustained any
 
 300 WHAT LANGUAGE 18 ACTIONABLE [Ch. Vlil. 
 
 this decision that the discharge was not a natural conse- 
 quence of the publication ; the residue of the decision is 
 obiter, and is not sustainable either on principle or pre- 
 cedent. Subsequently, in an action for words whereby 
 one who was under a contract to marry the plaintiff, 
 broke his contract and refused to marry her, it was urged 
 against the maintenance of the action that the plaintiff 
 had her remedy on the contract to marry her, that the 
 breach of the contract was an illegal act of the contract- 
 ing party, and that the breach of said contract was not 
 special damage, because not a legal consequence of the 
 publication, but the action was sustained. 1 These de- . 
 cisions, although apparently conflicting, are not so in 
 reality ; for obviously an illegal act, equally with a legal 
 act, may be the natural consequence of a publication, and 
 where, as in the case of a promise to marry, the breach of 
 it, although illegal, is nevertheless a natural consequence 
 of the publication, in that case the illegal act constitutes 
 special damage; but where the breach of a contract is 
 not a natural, or, if a natural, is not a proximate conse- 
 quence of the publication, in such a case, the breach of 
 contract does not constitute special damage, not because 
 such breach is an illegal act, but because it is not a 
 natural and proximate consequence of the publication. 2 
 Where the defendant published language concerning one, 
 an actress, in the employ of another, the proprietor of a 
 
 damage in consequence of the refusal of any persons to perform their lawful contracts 
 with him, it is damage which may be compensated in action brought by the plaintiff 
 against those persons; and the law supposes that, in such actions, the plaintiff would 
 receive a full indemnity." The authority of both these cases has been very much 
 questioned, see Collins v. Cave, 4 Hurl. <fc X. 225; G id. 131; Walker v. Goe, 3 id. 
 395; 4 id. 351 ; Green v. Button, 2 Cr. M. & R. 707. 
 
 1 Moody v. Baker, 5 Cow. 351. 
 
 4 There are many cases where a recovery has been had for illegal acts of third 
 persons induced by the defendant's act, as for preventing workmen from continuing 
 their work, enticing away wives, servants, apprentices, or tenants, &c. See in note 
 p. 58, ante, and Green v. Button, 2 Cr. M. & R. 707; Lumley v. Gye, 2 Ell. <fc Black. 
 216. See § 206, post.
 
 § 202.] WITH SPECIAL DAMAGE. 301 
 
 theatre, in consequence of which such employee refused 
 to fulfill her engagement with her employer (the plaintiff), 
 and whereby the plaintiff, as he alleged, lost profits in his 
 business, it was held that the action could not be main- 
 tained. 1 That the damages were too remote is usually 
 assigned, and is one of the expressed grounds for the 
 decision ; another and a sufficient ground would be, that 
 her refusal to fulfill her engagement was not a natural 
 result of the publication. 
 
 § 202. Ordinarily the repetition (§ 112) of defama- 
 tory language by another than the first publishei is not a 
 natural consequence of the first publication, and therefore 
 except under circumstances to be presently referred to, 
 the loss resulting from the repetition of defamatory lan- 
 guage does not constitute special damage, and is not 
 attributable to the first publisher. 2 Thus where it was 
 alleged that defendant said of plaintiff, " He is a rogue 
 and a swindler ; I know enough about him to hang him," 
 and it was alleged as sj)ecial damage that one B. who was 
 about to sell goods to plaintiff on credit had by reason of 
 defendants representation refused to trust plaintiff; on the 
 trial the proof was that defendant spoke the words to one 
 C, who repeated them to B., and that it was in conse- 
 quence of that repetition, and nothing else, that B. re- 
 fused to trust plaintiff, it was held the defendant was not 
 liable for the consequences of the repetition, and that the 
 plaintiff could not recover. 3 In Perkins v. Scott, the de- 
 
 1 Ashley v. Harrison, 1 Peake's Cas. 194. In an action for fraudulently selling 
 plaintiff diseased sheep, held it was not special damage that in consequence of a 
 report that plaintiff had purchased defendant's diseased sheep, one A. refused to com- 
 plete a contract he had with plaintiff for a supply of meat, or that plaintiff's custom- 
 ers had left him. (Crain v. Petrie, 6 Hill, 523.) See observations in Kendall v. 
 Stone, 5 N. Y. 20, and note to § 206, post. 
 
 s Stevens v. Hartley, 11 Mete. 542; Olmstead v. Brown, 12 Barb. 65"7; Keenholts 
 v. Becker, 3 Denio, 346; Terwilliger v. Wands, 17 N. Y. 58; Dixon v. Smith, 5 Hurl. 
 & X. 450; Barnett v. Allen, 1 Fost. & F. 125, and note 1, p. 148, ante. 
 
 3 Ward v. Weeks, 7 Bing. 211. The decision seems to have been put on the ground
 
 302 WHAT LANGUAGE IS ACTIONABLE [Ch. VIII. 
 
 fendant charged Mrs. Perkins with adultery ; she commu- 
 nicated this fact to her husband, and he in consequence 
 refused to cohabit with her. 1 It was held that no action 
 could be maintained, for although loss of consortium of 
 husband or wife may constitute special damage (§ 198) 
 yet under the circumstances the defendant was not liable. 
 In some instances the circumstances of the case may be 
 such as render the repetition of the language by another 
 than the first publisher a link in the chain of natural con- 
 sequences of the first publication, and the loss by such 
 repetition to the person whom the language concerns a 
 natural and proximate consequence of the first publica- 
 tion, and therefore special damage for which the first pub- 
 lisher is responsible. Where a police magistrate, after 
 disposing of a charge before him, said to a police officer 
 (the plaintiff) who had been examined as a witness in 
 the matter, that he was not to be believed, and this being 
 heard by another officer present was by him reported to 
 the plaintiff's employers, the police commissioners, and 
 they in consequence dismissed the plaintiff from their em- 
 ployment, it was held, in an action against the magistrate, 
 that such dismissal was special damage. 2 Where the 
 plaintiff was governess in the family of A., and the de- 
 fendant published language to the plaintiff's father im- 
 puting to her having had a child by A., this language the 
 plaintiff's father repeated to A., who thereupon dismissed 
 her from his service, alleging as a reason that although he 
 
 of a variance, the allegation being that the injury was in consequence of a publication 
 by the defendant and the proof being that the injury was in consequence of a publi- 
 cation by another. Where words were spoken to a servant of the plaintiff imputing 
 incontinence to the plaintiff, and the plaintiff alleged for special damages that in con- 
 sequence of the words J. S. who was in communication of marriage with her refused 
 to marry her, the plaintiff failed to sustain her action, because the words were not 
 spoken to J. S. (Holwood v. Hopkins, Cro. Eliz. 787.) In Moody v. Baker, 5 Cow. 
 351, it was held that .the declarations of the man that be was not influenced in his 
 refusal to marry by the words published, were not admissible. 
 
 1 1 Hurl. & Colt. 153 ; s. c. Perkins v. Scott, 6 Law Times, N. S. 394. 
 
 2 Kendillon v. Maltby, 1 Car. & Marsh. 402.
 
 § 202.] WITH SPECIAL DAMAGE. 303 
 
 knew the charge to be false, it would be injurious to the 
 plaintiff and would be unpleasant both to the plaintiff 
 and himself A. that she should remain in his family, it 
 was held that the dismissal was a natural consequence of 
 the defendant's first publication, for which he was liable. 1 
 And so where the plaintiff was a clerk in the employ of 
 C. & S., who were partners, and the defendant, a former 
 employer of plaintiff, published to C, one of said part- 
 ners, language imputing dishonesty to the plaintiff, this 
 language C. rej)eated to S., his partner, and it was held 
 the defendant was liable for the consequences of the repe- 
 tition. 2 In each of the two cases lastly referred to, the 
 court evidently having in view the supposed rule of law 
 above referred to (§ 201), that special damage must be a 
 legal consequence of the act complained of, lays a marked 
 stress upon the fact that the repetition was privileged, 
 that is to say that the father in the one case and the em- 
 ployer and partner in the other, was justified in making 
 the repetition, and that in neither case could the plaintiff 
 have maintained an action against the one making the 
 repetition, and the whole tenor of these decisions lead to 
 the inference that unless the repetition had been justifiable 
 as regards the person making it, the defendant would not 
 have been responsible for its consequences. 3 The repeti- 
 tions, however, were justifiable only in part ; they were 
 justifiable as to the persons making them, but not as to 
 the first publisher; they illustrate the principle (§§ 67, 
 121) that the actual publisher may not be liable, while 
 another, not the actual publisher, is liable. In the case of 
 
 1 Gillett v. Bullivant, 7 Law Times, 490, and see Derry v. Handley, 16 Law Times 
 N. S. 263; ante, § 114, and note 2, p. 296, ante. 
 
 a Fowles v. Bowen, 30 N. Y. 22. 
 
 3 " Occasions may doubtless occur where the communication of slanderous words 
 by a person who heard them will be innocent; and it is certainly reasonable that 
 when repeated on such an occasion and damages result, the first speaker should be 
 held responsible for the damages as flowing directly and naturally from his own 
 wrong." (Terwilliger v. Wands, 17 N. Y. 58, cited Fowles v. Bowen, 30 N. Y. 22.)
 
 304 WHAT LANGUAGE IS ACTIONABLE [Cll. VIII. 
 
 "Ward v. Weeks, above referred to, the court dwelt on the 
 fact that the defendant had not requested the person to 
 whoni he made the publication to repeat the language, inti- 
 mating, indirectly at least, that if the defendant had made 
 such a request he would have been liable for the repeti- 
 tion; most probably that would have been the result, 1 
 but such a request would not have justified the repetition 
 (§ 67). It seems plain, therefore, that it is not the fact of 
 the repetition being or not being justifiable that deter- 
 mines the liability of the first publisher, but the test in 
 every case must be whether or not the repetition was a 
 natural consequence of the first publication. It was natu- 
 ral and to be expected that a father, when told of the 
 seduction of his daughter, should seek out the supposed 
 seducer and tax him with his offense ; it was natural and 
 to be expected that a partner, when informed that one in 
 the employ of himself and partner was dishonest, should 
 communicate the information to his copartner, therefore it 
 was that in both cases the first publisher was held to be 
 liable for the repetition. Nor is there any inconsistency 
 between these decisions and the decision in Perkins v. 
 Scott, guprtij for in that case although the repetition by the 
 wife to her husband was a natural result of defendant's 
 act, yet the husband's refusal, on that account, to consort 
 with his wife was not a natural consequence of the repeti- 
 tion. The husband being the legal protector of his wife, 
 the natural consequences of her appeal to him would 
 have been not to aggravate but to seek to redress her 
 injury. The husband's desertion of the wife was not, 
 therefore, under the circumstances, a natural consequence 
 of the defendant's act. There was this additional diffi- 
 culty in the way of a recovery in that action : the damage 
 for which the plaintiff sought compensation was really 
 done by himself. 
 
 1 Keenholts v. Becker, 3 Denio, 346.
 
 §§ 203-4.] CONCERNED THINGS. 305 
 
 § 203. We have already (§ 130) adverted to a distinc- 
 tion between language concerning a person and language 
 concerning a thing. Thus far, in this chapter, we have 
 confined ourselves exclusively to language concerning a 
 person ; our present business is with language concerning 
 things. As respects language concerning things, no such 
 distinction exists between the effect of oral and written 
 language, as is maintained with respect to language con- 
 cerning persons (§ 18). By things we intend whatever 
 is external to the person ; therefore, as here used, things 
 include whatever one may or may be entitled to own, 
 possess, or enjoy; also, his actions and creations. 
 
 § 204. As a thing has no rights, and as no one owes 
 any duty to a thing (§ 38), no wrong can be done to a 
 thing, and language which merely concerns and affects a 
 thing cannot be actionable. In other words, one may, in 
 good faith, speak or write whatever he may please con- 
 cerning a thing, and with any intention towards the thing, 
 and for such speaking or writing no action can be main- 
 tained. The thing cannot complain; it has no right 
 which can be invaded. But although things have no 
 rights, persons may have a right in or to a thing, the right 
 of property, and this right may be invaded by language 
 concerning the thing. When this invasion occurs, the 
 language which affects a thino- is actionable. A loss of or 
 injury to the property is not an invasion of the right of 
 property, unless the loss is occasioned by a wrongful act 
 (§§ 48, 49). A loss occasioned by a lawful act does not 
 amount to a wrong, and does not confer a right of action 
 (§ 62). Where, therefore, by reason of an exercise of the 
 right of speech or of writing concerning a thing, the 
 owner of the thing sustains a loss, he cannot have any 
 redress therefor, as no wrong has been done. Thus an 
 action cannot be maintained by a manufacturer or dealer 
 for language charging that the article he manufactures, or
 
 306 WHAT LANGUAGE IS ACTIONABLE [Ch. VIII. 
 
 in which he deals, is not a good article, or is a bad article, 
 or is not so good as, or is inferior to, an article manufac- 
 tured or sold by some other person. 1 But rights must be 
 exercised in good faith : bad faith in an act done in the 
 assumed exercise of a right makes the act wrongful 
 (§§ 40, 42). Good faith, in this connection, means an 
 honest belief in the truth and fitness for the occasion of the 
 matter published, and bad faith is the converse of this ; 
 namely, the absence of such honest belief, or the disbelief 
 in the truth and fitness for the occasion of the matter 
 published. As, then, the existence of this belief or of 
 this disbelief determines whether the publication was or 
 was not made with a legal excuse, it becomes necessary 
 to ascertain the belief of the publisher ; and this involves 
 the question of his intent in making the publication. 
 Not as already exjxlained (§§ 90, 91), because the intent 
 is essential to constitute a cause of action, but because it 
 is a link in the chain of evidence of the existence or of 
 the absence of a legal excuse. Proof that the publisher, 
 while pretending to exercise the right of speaking or 
 writing concerning a thing, was in reality designing and 
 intending to injuriously affect the owner of the thing, 
 while it would not of itself constitute bad faith, would 
 be a circumstance from which bad faith might properly 
 be inferred. Although the language concerns only a 
 thing, yet if it appears to have been published without 
 lawful excuse, i. e. maliciously (§ 91), it will be actionable 
 if pecuniary loss is a necessary or natural and proximate 
 consequence of the publication, and hence we may deduce 
 this rule, that language concerning a thing is actionable 
 when published maliciously, i. e. without lawful excuse 
 (§ 91), if it also occasions damage to the owner of the 
 thing (§ 146). 2 
 
 1 Tobias v. Harland, 4 Wend. 537 ; Young v. McCrae, 3 Best & Sm. 264 ; 1 Law 
 Times, N. S. 354; Carr v. Duckett, 5 Hurl. & N. 783. 
 
 3 " I am far from saying if a man falsely and maliciously makes a statement
 
 205.] 
 
 CONCERNING THINGS. 307 
 
 § 205. Malice and damage are both essential requisites 
 to sustain an action for language concerning a tiling. To 
 these requisites is usually added a third, that the language 
 
 disparaging an article which another manufactures or vends (although in so doing 
 he casts no imputation on his personal or professional character), and thereby causes 
 an injury and special damage is averred, an action might not be maintained." 
 (Cockburn, C. J., Young v. McCrae, 3 Best & Sm. 264.) 
 
 In Swan v. Tappan, 5 Cush. 105, the words were "alleged to be of and concerning 
 the plaintiff's books," and nothing else, without any allegation of special damage. 
 The action was held not maintainable, but the court intimated that if special damage 
 had been alleged the action could have been sustained. In Ingram v. Lawson (6 
 Bing. N. C 212; 8 Scott, 4*71), it was held that the language was concerning the 
 plaintiff personally, but that if the language had been concerning the plaintiff's ship, 
 the action could have been maintained if special damage had been alleged. And as 
 to words reflecting on a steamboat, see Hamilton v. Walters, 4 Up. Can. Q. B. Rep. 
 O. S. 24, and in Yates' Pleadings and Forms, p. 436, is the form of a plea to a 
 declaration for slander of the plaintiff's ship. In Young v. McCrae (3 Best & Sm. 264), 
 Cockburn, J., observed : " I am far from saying there can be no action for a false 
 reflection on goods. Such an action, however, would be more in the class of actions 
 for false representations than actions of libel." An intentional false statement by 
 defendant in regard to articles, manufactured by plaintiff, for the purpose of pre- 
 venting sales, by plaintiff, of such articles, and thereby preventing such sales, 
 constitutes a cause of action. (Snow v. Judson, 38 Barb. 212, citing Benton v. Pratt, 
 
 2 Wend. 385; White v. Meriitt, 7 N. Y. 352; Gallager v. Brunei, 6 Cowen, 346.) 
 
 A declaration for libel stated that the plaintiff, before and at, &c, carried on the 
 business of an engineer, and was the inventor and registered proprietor (under 2 & 
 
 3 Vict., c. 17) of an original design for making impressions on metal articles, and 
 sold divers articles on which the design was used. That plaintiff, before and at, &c, 
 had sold and had on sale in the way of his said trade, articles and goods called 
 " self-acting tallow syphons, or lubricators," and that defendant published a libel of 
 and concerning plaintiff, and of and concerning him in his said trade, and of and 
 concerning said design, and j>Iaintiff as the inventor, &c, thereof, and manufacturer 
 of the articles with the said design thereon, and of and concerning the said goods 
 which he had so sold and had on sale, and plaintiff as the seller, as follows : " This is 
 to caution parties employing steam power, from a person" (meaning plaintiff) " offer- 
 ing what he calls self-acting tallow syphons or lubricators " (meaning said design, 
 and meaning said goods and articles which he, plaintiff, had so sold and had on sale 
 as aforesaid), " stating that he is the sole inventor, manufacturer, and patentee, there- 
 by monopolizing high prices at the expense of the public." R. Harlow (meaning 
 defendant), " takes this opportunity of saying, that such a patent does not exist, and 
 that he has to offer an improved lubricator," &c. " Those who have already adopted 
 the lubricators," (meaning, &c, same innuendo as before), " against which It. II. 
 would caution, will find that the tallow is wasted instead of being effectually em- 
 ployed as professed." No direct averment connected the tallow syphon with the 
 registered design mentioned in the first part of the inducement. No special damage 
 was alleged. Held, that the words were not a libel on the plaintiff, either generally 
 or in the way of his trade, but were only a reflection upon the goods sold by him,
 
 30,8 WHAT LANGUAGE IS ACTIONABLE. [Ch. VHI. 
 
 must be false. It is true the language must be false, not 
 because it is an additional requisite to malice and dam- 
 age, but because it is comprised in the requirement of 
 damage. Language concerning a thins; which is not false, 
 i. e. which is true, cannot, as a necessary or natural con- 
 sequence, occasion pecuniary loss. Language concerning 
 a thing is prima facie or presumptively lawful; and, 
 therefore, with regard to it 7> there is neither any assump- 
 tion or presumption of its being untrue or false, nor of 
 its occasioning damage, nor of its being without lawful 
 excuse (malicious) (§ 130); and therefore it is, that one 
 complaining of an injury by reason of language concern- 
 ing a thing, in order to establish his right to maintain an 
 action, has to allege and prove that the publication was 
 made without lawful excuse (maliciously), that the lan- 
 guage was untrue, and that he has sustained pecuniaiy 
 loss as a necessary or as a natural and proximate con- 
 sequence of the publication. 
 
 which was not actionable without special damages. (Evans v. Harlow, 5 Q. B. 624.) 
 See post, note 5, p. 316. 
 
 Publishing of a newspaper that it was a vulgar, ignorant, and scurrilous journal, 
 was held not actionable, but it was held actionable to say that it was low in circula- 
 tion — such a charge being calculated necessarily to produce damage. (Heriot v. 
 Stuart, 1 Esp. Cas. 437.) See Latimer v. "West. Morning Xews Co., 25 Law Times, X. 
 S. 44. 
 
 Plaintiff was possessed of certain shares in a silver mine, touching which shares 
 certain claimants had filed a bill in chancery, to which plaintiff had demurred. 
 Held, that, without alleging special damage, plaintiff could not sue the defendant for 
 falsely publishing that the demurrer had been overruled ; that the prayer of the 
 petition (for the appointment of a receiver) had been granted, and that persons duly 
 authorized had arrived at the mine. Held, also, that an allegation that the plaintiff 
 was injured in his rights, that the shares were lessened in value, that divers persons 
 believed that he had no right to the shares, that the mine could not be worked, and 
 that he had been prevented from disposing of his said shares, and from working the 
 mine in so ample a manner as he otherwise would have done, and was prevented 
 from gaining divers profits which would otherwise have accrued to him, was not a 
 sufficient special damage. (Malachy v. Soper, 3 Bing. N. C. 371; 3 Scott, 723.) 
 
 In an action for misdescribing the plaintiff's vessel in a publication of the 
 defendants, called " The Shipping Piegister," it appearing that the plaintiffs had 
 requested the surveyor of the defendants to examine the ship, held that they could 
 maintain no action against them for what the\ T did in consequence of his report, the 
 remedy was against him if he made a false report. (Kerr v. Shedden, 4 C. & P. 528.) 
 
 The foregoing cases seem to imply that the fact of loss, or special damage, as it is
 
 § 206.] SLANDER OF TITLE. 309 
 
 § 206. What is ordinarily designated slander of title, 
 is comprised within the division of language concerning 
 things. Slander of title is publishing language, not of 
 the person, but of his right or title to something. All 
 the preceding observations upon language concerning 
 things apply to actions for slander of title ; thus, in an 
 action for slander of title, no distinction is made with 
 regard to the medium of the publication, as whether oral 
 or written; 1 and to sustain the action, the publication 
 must be made maliciously; the language must be false, 
 and must occasion, as a natural and proximate conse- 
 quence, a pecuniary loss, i. e. special damage to the plaint- 
 iff. 2 The special damage 3 usually consists in losing the 
 sale of the property in question. This damage can occur 
 only in the cases where no contract to sell exists, i. e. to 
 cases where one is, by the language published, deterred 
 from making a purchase, or entering into a contract to 
 
 termed, will render actionable language concerning a thing ; we state it otherwise in 
 the text, and we suppose it to be otherwise. In Carr v. Hood, 1 Camp. 355, n., Lord 
 Ellenborough, speaking of language concerning a thing (a book), says: " I speak of 
 fair and candid criticism ; this every one has the right to publish, although the author 
 may suffer los3 from it. Such a loss the law does not consider as an injury, because 
 it is a loss which the party ought to sustain." 
 
 This subject is further considered under the head of Defenses, § 254. 
 
 'Malachy v. Soper, 3 Bing. N. C. 371 ; 3 Scott, 723. 
 
 * Kendall v. Stone, 5 N. Y. 14, rev'g s. c. 2 Sandf. 269 ; Like v. McKinstry, 41 
 Barb. 186; aff'd 4 Keyes, 39*7. There must be malice which the plaintiff must 
 prove. (Smith v. Spooner, 3 Taunt. 246; Hill v. Ward, 13 Ala. 310; Stark v. Chet- 
 wood, 5 Kansas, 141.) Malice is not to be presumed. (McDaniel v. Baca, 2 Gal. 
 326.) There must be malice either express or implied. (Hargrave v. Le Breton, 4 
 Burr. 2422.) But all malice is implied. (§ 87, ante.) To support an action for 
 slander of title, special damages must be shown. (Bailey v. Dean, 5 Barb. 297 ; 
 Linden v. Graham, 1 Duer, 670 ; Watson v. Reynolds, 1 Mo. & Malk. 1 ; Paull v. 
 Halferty, 63 Penns. 46, and note 2, p. 315, post.) There must, too, be a want of probable 
 cause; and, if what the defendant said or did, was in pursuance of a claim of title, 
 for which he has some ground, he is not responsible. (Bailey v. Dean, 5 Barb. 297.) 
 The existence of probable cause is no answer to the action, nor does the want of it 
 necessarily prove malice. (Kendall v. Stone, 2 Sand. 269.) Mere assertions, threats, 
 and designs, made against a grantee of real estate, and against the party in posses- 
 sion, cannot be deemed a cloud upon the title. If the owner is injured by any such 
 false claims or representations, he can probably maintain an action for damages. (Re 
 Madison Ave. Bapt. Church, 26 How. Pra. R. 72.) 
 
 ' Kendall v. Stone, 5 N. Y. 14 ; Paull v. Halferty, 63 Penns. 46.
 
 310 WHAT LANGUAGE IS ACTIOXABLE. [Ch. VIII. 
 
 purchase. Where a contract for sale and purchase has 
 already been entered into, the purchaser's refusal, on ac- 
 count of any statement of a third party, to complete his 
 contract, would not in an action against such third party, 
 for making such statement, constitute special damage ! A 
 man may refuse to bid for property upon which, or upon 
 the title to which, an imputation rests, such refusal is a 
 natural consequence of the imputation, but one who is 
 already under a contract to purchase may not (has not 
 the right to), by reason of any imputation on the subject 
 of such contract, refuse to complete, besides that his re- 
 fusal would be illegal, it would not be a natural conse- 
 quence of the imputation. Perhaps this rale is applicable 
 only to the slander of title to real estate, and in the cases 
 where the title is capable of such clear proof as to out- 
 weigh any imputation against it, but in the case of title 
 to personal property the title to which is not capable of 
 such satisfactory proof as is the title to real property, a 
 different rule may prevail, for in such a case it would 
 seem to be but a natural consequence that one under con- 
 tract to purchase should be deterred from conrpleting by 
 reason of imputations upon the seller's title, just as in the 
 case of the contract to deliver battens the seller was de- 
 terred from delivering them by reason of the defendant's 
 claim of lien. 1 (§ 206&.) 
 
 § 206a. Where the assignee of a lease which con- 
 tained a proviso for re-entry in case the rent reserved by 
 it was in arrear, exposed the lease for sale, there being at 
 the time rent in arrear, the lessor appeared at the time 
 and place appointed for the sale, and announced that such 
 assignee had no title and could not make a title, in conse- 
 quence of which announcement, persons who came to bid 
 for the lease refused to bid ; the lessor afterwards offered 
 <£100 for the lease, which was refused ; he brought eject- 
 
 1 Green v. Button, 2 Cr. M. <fc R. 707. See § 201, ante.
 
 § 206ft.] SLANDER OF TITLE. 311 
 
 ment and recovered the possession of the premises. In- 
 termediate the attempted sale and the recovery in the 
 ejectment, the assignee sued the lessor for slander of title; 
 the court on the trial was of opinion that, under the 
 circumstances, the plaintiff could not maintain the action, 
 but left the question of malice in making the publication 
 to the jury, and they found that it was malicious. The 
 court, however, directed a nonsuit. 1 It is supposed that 
 the nonsuit was set aside, and that the plaintiff had judg- 
 ment on the ground that the question of malice having 
 been left to the jury as a question of fact, and found 
 against the defendant, the court could not disregard the 
 finding and say there was no malice. 2 The defendant, a 
 surveyor appointed under Stat. 7 and 8 Vict., ch. 84, 
 attended a sale of some unfinished houses, of which the 
 plaintiff was the lessee for a term of years. The roadway 
 to these houses, although of sufficient width according to 
 the above statute, was at that time in an unpaved state 
 and unfit for traffic. At such sale the defendant made 
 the following announcement: "I shall not allow the 
 houses to be finished until the roads are made good. I 
 have no power to compel any one to make the roads, but 
 I have power to stop the buildings until the roads are 
 made." Some time after such sale, the defendant, on 
 being asked why he pursued Mr. Pater, replied, " I pursue 
 Mr. Pater because I am not able to pursue Mr. Agar, the 
 ground landlord." Upon this state of facts, held, that 
 there was no evidence to support the allegation of malice. 3 
 Where one mortgaged his estate, and afterwards commit- 
 ted an act of bankruptcy, subsequently the property was 
 
 1 Smith v. Spooner, 3 Taunt. 246. The attorney of a party who would be justified 
 in making objections to a title, is not liable to an action, if he bond fide, though 
 without authority, state only what his principal might have stated. (Watson v. Rey- 
 nolds, 1 M. & Malk. 1.) 
 
 9 1 Starkie on Slander, 318. 
 
 8 Tater v. Baker, 11 Jurist, 370; 16 Law Jour. R. 124 C. P. ; 3 C. B. 831.
 
 312 WHAT LANGUAGE IS ACTIONABLE. [Ch. VIII. 
 
 offered for sale by the assignee of the mortgagor, the 
 defendant, the attorney of the mortgagee, stopped the sale 
 by stating that the mortgagor had committed an act of 
 bankruj)tcy, and which was untrue, that a docket had 
 been out for a commission, in an action for losing the sale, 
 held that although the defendant went beyond the truth, 
 there was no material variance and no difference made 
 with respect to plaintiff's title, and there being no proof 
 of malice, the action could not be maintained. 1 The 
 plaintiff being about to sell an estate, the defendant wrote 
 a letter to the intending purchaser, imputing insanity to 
 Y., the person from whom the plaintiff derived his title, 
 and stating that the title would be disputed; in conse- 
 quence of which letter the proposed purchaser refused to 
 purchase. It appeared on the trial that Y. had married a 
 sister of the defendant, and that a term of years in the 
 estate in question was vested in the defendant as trustee, 
 to secure a jointure to Y.'s wife. The judge on the trial 
 ruled that if defendant believed, upon such grounds as 
 would persuade a man of sound sense and knowledge of 
 business, that Y. was insane, the defendant would be 
 entitled to a verdict. A verdict was taken for the plain- 
 tiff; the court above, on granting a new trial, condemned 
 this ruling as unsound, and stated, " If what the defendant 
 wrote was most untrue, but nevertheless he believed it, if 
 he was acting under the most vicious of judgments, yet if 
 he exercised that judgment bond fide, it was a sufficient 
 justification. * * The jury must arrive at their con- 
 clusion through the medimn of malice or no malice in the 
 defendant. The bond fides of the publication, and not 
 what a man of rational understanding would have done, 
 is the question to be canvassed." 2 The defendant, who 
 was the ground landlord and remainder man of leasehold 
 
 1 Hargrave v. Le Breton, 4 Burr. 2422. 
 * Pitt v. DoDOvan, 1 M. & £el. 639.
 
 § 206^.] SLANDER OF TITLE. 313 
 
 premises, of which the plaintiff was assignee of the lessee, 
 stated at an auction at which the lease and assignment 
 were put up for sale, that all the covenants in the lease 
 had been broken, that he had commenced ejectment to 
 recover the possession of the premises, and that it would 
 cost £70 to repair the premises, in consequence of which 
 the lease brought less than it otherwise would. On the 
 trial it appeared that some only of the covenants in the 
 lease had been broken, and the judge directed the jury, 
 that the only question was, whether what the defendant 
 stated was untrue, and if it was, the plaintiff was entitled 
 to recover. The jury found for plaintiff, and gave £40 
 damages. On motion for a new trial, the ruling at the 
 trial was held erroneous, and that the proper question 
 was, whether so much of the defendant's statement as was 
 false was also malicious. 1 Where the plaintiff, as admin- 
 istratrix, was about to sell leasehold property ; defendant? 
 after being informed by the attorney of the plaintiff that 
 there was no will of the decedent, issued an advertise- 
 ment, offering a reward for the will of such decedent, 
 held the question was whether he had "a sincere and 
 genuine belief that there was a will." 2 A. died possessed 
 of furniture in a beer-shop. His widow, without taking 
 out administration, continued in possession of the beer- 
 shop for three or four years, and then died, having whilst 
 so in possession assigned all the furniture by bill of sale 
 to her landlords by way of security for a debt she had con- 
 tracted with them. After the widow's death, the plaintiff 
 took out letters of administration to the estate of A., and 
 informed the defendant, the landlord's agent, that the bill 
 of sale was invalid, as the widow had no title to the fur- 
 niture. Subsequently the plaintiff was about to sell the 
 furniture by auction, when the defendant interposed to 
 
 1 Brook v. Rawl, 4 Exch. 521, and see Goulding v. Herring, 1 Rolle R. 141. 
 a Atkins v. Perrin, 3 Fost. & F. 180. 
 
 21
 
 314 WHAT LANGUAGE IS ACTIONABLE. [Ch. \ 111. 
 
 forbid the sale, and said that he claimed the goods for his 
 principals under a bill of sale. On proof of these facts, in 
 an action for slander of title, the plaintiff was non-suited : 
 held, that the mere fact of the defendant's having been 
 told before the sale that the bill of sale was invalid, was 
 no evidence of malice to be left to the jury, and that the 
 plaintiff was, therefore, properly non-suited. 1 An order 
 having been made by the Court of Chancery, requiring 
 G\, the plaintiff, to pay a sum of money, the defendant 
 registered the order pursuant to Statute 1 and 2 Vict., ch. 
 110, whereby it became a lien on the real estate of the 
 plaintiff, and prevented him raising, by a sale or mortgage 
 of his estate, the money ordered to be paid, held the 
 action could not be maintained, there being no proof of 
 malice. 2 And where the defendant published a notice 
 cautioning all persons not to purchase of the plaintiff a 
 certain tract of land, alleging that the plaintiff obtained 
 the title to said land from the defendant by means of 
 false pretences, and that the defendant intended to insti- 
 tute a suit to annul plaintiff's pretended title, was held 
 not on its face to show malice. 8 
 
 8 206&. Some of the old cases hold that one claiTTirng 
 title in himself cannot give a right of action, that to 
 render the charge actionable it must assert a title in a 
 stranger. 4 This distinction no longer prevails. So for- 
 merly it seems to have been supposed that the only 
 ground of damage was a loss of the sale or leasing of the 
 property, the title to which was assailed ; it is, however, 
 well settled at this day that any damage which is a nat- 
 
 1 Steward v. Young, Law Rep. V, 122 C. P. 
 
 2 Gibbs v. Pike, 1 Dowl. N. S. 409 ; 6 Jur. 465. 
 
 3 McDaniel v. Baca, 2 Cal. 326. 
 
 4 Jenkins Cent. 24V; Pennyman v. Rabanks, Cro. Eliz. 427; s. c, Mo. 410; Lovett 
 v. Weller, l*Rolle R. 409 ; Gerard v. Dickinson, 4 Rep. IS; Sneadc v. Badley, 3 Buls. 
 15; s. c, 1 Rolle R. 244; and see Vin. Abr. Act. for Words, L (B. 2), 8; Anon. Sty. 
 414; Boulton v. Shields, 3 Up. Can. Q. B. 21.
 
 § 200/;.] SLANDER OF TITLE. 315 
 
 ural and proximate consequence of the language will sup- 
 port an action. 1 The action cannot be maintained unless 
 there is special damage. 2 Where, prior to the publication 
 of the language complained against, the plaintiff and one 
 W. had contracted for the sale of a lot of land — in conse- 
 quence of the publication, W. wished to be released from 
 his contract, and plaintiff released him — plaintiff sued, 
 charging the loss of a sale to W. as the special damage, 
 held that the rescinding; of the contract with W. was not 
 special damage, and that no action could be maintained. 3 
 But where plaintiff had borrowed a sum of money of de- 
 fendant, and afterwards plaintiff bought spruce battens 
 of A. Before delivery of the battens, defendant gave 
 notice to A. not to deliver them, and that he, plaintiff, 
 had a lien upon them. In an action by plaintiff, alleging 
 that the defendant falsely claimed such lien, and that by 
 reason of such notice and pretence of lien and non-de- 
 livery of said battens, he had lost the use of them, and 
 been hindered in building certain houses, it was objected 
 that there being a valid contract with A. if plaintiff had 
 suffered any damage by reason of the non-delivery of the 
 battens, he must look to A. .That the non-delivery was 
 an illegal act for which the defendant was not liable, but 
 the court held otherwise, and sustained the action. 4 Per- 
 haps plaintiff being prevented from raising money by 
 mortgage on his lands, is such damage as may entitle him 
 to maintain an action. 5 Where the alleged slander con- 
 
 1 Malachy v . Soper, 3 Bing. N. C. 371 ; 3 Sc. 723 ; Tasburgh v. Day, Cro. 
 Jac. 485. 
 
 3 "Watson v. Reynolds, 1 Mo. & Malk. 1 ; Lowe v. Harwood, Sir W. Jones, 190 ; 
 8. c, Cro. Jac. 140 ; Pal. 529 ; Cane v. Goulcling, Sty. 169 ; Sneade v. Badley, 3 Bulst. 
 75 ; s. c, 1 Rolle R. 244 ; Brook v. Raw], 4 Exch. 521 ; Rater v. Baker, 3 C. B. 831, 
 and ante, in note 3, p. 309. 
 
 8 Kendall v. Stone, 5 N. Y. 14, rev'g s. c, 2 Sandf. 269. 
 
 4 Green v. Button, 2 Cr. M. & R. 707. 
 
 6 Linden v. Graham, 1 Duer, 670. In that c;ihc the action was not maintained, 
 erroneously, as we suppose, because the damage was not stated with sufficient cer-
 
 316 WHAT LANGUAGE IS ACTIONABLE [Cll. VIIL 
 
 sists in the defendant claiming title in himself, the fact of 
 his not having a title is not per se evidence of malice. 1 
 But the defendant having no title is a circumstance from 
 which malice may be inferred. 2 Where the defendant in 
 fact made the publication under the advice of counsel, but 
 did not at the time of making the publication, state that 
 he was acting under such advice, held that the fact of his 
 acting under such advice did not per se shield him from 
 an action ; 3 but it was a circumstance to be considered in 
 determining whether or not the publication was made 
 maliciously. 4 
 
 § 206c. The action for slander of title is not restricted 
 to language affecting real property, it lies for slander of 
 title to personal property ; thus, where at a public sale of 
 rye the defendant attended, and in the presence and hear- 
 ing of the persons there assembled, said : " I forbid selling 
 the rye ; it is mine," in consequence of which persons were 
 deterred from bidding, and the rye sold for less than it 
 would otherwise have done, it was held an action could be 
 maintained. 5 
 
 § 207. As one cannot cloak his wrong-doing by the use 
 
 tainty. The want of certainty was a ground for making the complaint more definite, 
 but not, as we think, for holding the complaint insufficient. As to how the damage 
 must be alleged, see Malachy v. Soper, 3 Bing. N. C. 371 ; Tilk v. Parsons, 2 Car. <fc 
 P. 201 : Delegal & Highley, 8 Car. & P. 444. A general allegation that the plaintiff's 
 property has been lessened in value, or that people believe he has no title, or that he 
 has been prevented from selling, is not sufficient. (See £§ 329, 369, post.) 
 
 1 Hill v. Ward, 13 Ala. 310. 
 
 ■ McDaniel v. Baca, 2 Cal. 326. 
 
 s Like v. McKinstry, 41 Barb. 186; affd 4 Keyes, 397. 
 
 4 Hill v. Ward, 13 Ala. 310. 
 
 6 Like v. McKinstry, 41 Barb. 186; affd 4 Keyes, 397; and see Gutsole v. Math- 
 ers, 1 M. & W. 495 ; 1 Tyrw. & Gr. 694 ; Green v. Button, 1 Gale, 349 ; 2 C. M. <fc 
 R. 707 ; 1 Tyrw. & G. 118 ; Malachy v. Soper, 3 Bing. N C. 371 ; 3 Scott, 723 ; Rowe 
 v. Roach, 1 M. A S. 304; Carr v. Duckett, 5 Hurl. <fe N. 783; Hill v. Ward, 13 Ala. 
 310; and slander of title to a slave. Ross v. Pines, Wythe, 71. An action was 
 maintained for alleging that plaintiffs machines were an infringement on defendant's 
 patents. (Wren v. Weild, Law Rep. IV, Q. B. 213.) See ante, note p. 307.
 
 § 207.] CONCERNING THINGS. 317 
 
 of ironical language (§ 133), so neither can one with im- 
 punity attack a person by pretending to attack a thing ; 
 for although the words may be professedly concerning a 
 thing, yet if in reality they concern a person, they will be 
 judged by the rules governing language concerning the 
 person. 1 Whether certain language concerns a person or 
 a thing is sometimes a question difficult to determine ; but 
 it is always a question of fact, and like every other ques- 
 tion of fact, is to be determined sometimes by the court 
 and sometimes by the jury (§ 69). The language which 
 on its face concerns a person, may indirectly affect a per- 
 son other than the person whom on its face the language 
 concerns. It may affect one as concerning him personally, 
 and affect another as concerning a thing. The language 
 heretofore referred to (§ 201) concerning an actress, where- 
 by she refused to perform her engagement, was as to her 
 concerning the person, but as to her employer it was con- 
 cerning a thing, namely, his right of property in or to her 
 services. 
 
 1 Carr v. Hood, 1 Camp. 355, n. In Tobias v. Harland, 4 Wend. 53?, the court 
 said that words disparaging an article made or dealt in by the plaintiff, were not 
 actionable unless they imputed deceit or malpractice in the making or vending, or a 
 want of skill in the manufacturing. In reference to this dictum it must be observed 
 that words imputing to plaintiff deceit or want of skill, do not concern the thing but 
 the person, and are therefore withiu the rules relating to personal defamation. See 
 Latimer v. West. Morning News Co., 25 Law Times N. S. 44. As to pleas in actions 
 for slander of title, see Mair v. Caly, 12 Up. Can. Q. B. 71 ; Boulton v. Shields, 3 id. 
 21.
 
 CHAPTER IX. 
 
 DEFENSES. 
 
 Privileged publications generally — Repetition — Truth — 
 Legislative proceedings and reports thereof — Judicial 
 
 proceedings — Parties to proceedings — Counsel — Wit- 
 nesses — Judges — Grand jurors — Reports of judicial 
 
 proceedings — Quasi judicial proceedings — Church dis- 
 cipline — Seeking advice or redress other than judicially 
 — Giving information or advice generally — Attorney 
 and client — Master and servant — Candidates for office 
 or employment — In sanity — Drunkenness — Infancy — 
 Accord and satisfaction — Previous recovery — Apology 
 — Freedom of the press — Criticism. 
 
 S 208. The actionable lan<mage referred to in the 
 preceding chapter is to be understood as prima facie 
 actionable only, that is to say, it is actionable when pub- 
 lished without any legal excuse for making the publica- 
 tion. 1 We have, in previous chapters (§§ 64, 65), referred 
 to the kinds of legal excuses, and the distinction between 
 legal excuses and defenses, and (§ 50) stated that it is 
 the occasion which determines of every act, and conse- 
 quently of the act of publication, whether or not it admits 
 
 1 To every libel there may be an implied justification from the occasion. (Weather- 
 stone v. Hawkins, 1 T. R. 110.) But "there are some libels it is impossible to jus- 
 tify." (Pollock, Ch. B., Darby v. Ouseley, 25 Law Jour. 227, Ex.) " Whether the 
 circumstances under which a communication is made constitute it a privileged com- 
 munication or not, is a question which the court has assumed the jurisdiction to 
 decide. But it is more a question of fact in each particular case than a question of 
 law. The court is to consider whether the occasion is such as to make the communi- 
 cation one of a privileged character. That being so, it by no means follows that we 
 can derive much aid in one case from another, the circumstances of which are not 
 exactly the same." (Maule, J., Wenmani/. Ash, 13 G. B. 836); and see D;r 
 Ouseley, 1 Hurl. & N. 1.
 
 PRIVILEGED PUBLICATIONS. 319 
 
 of a legal excuse or defense. When the occasion really 
 or apparently furnishes a legal excuse for making the 
 publication, in that event the publication is termed a 
 privileged publication (§ 120), or a privileged communi- 
 cation. Privileged publication is the better term, because 
 the phrase privileged communication has another mean- 
 ing, namely, a communication made under circumstances 
 which either entitles or obliges the person to whom the 
 communication is made to withhold the disclosure of the 
 matter communicated. 1 The term privileged communica- 
 tion, when hereafter employed, will be as a synonym for 
 privileged publication. 
 
 § 209. Privileged publications are usually divided 
 into absolutely privileged and conditionally privileged. 2 
 By an absolutely privileged publication is not to be 
 understood a publication for which the publisher is in no 
 wise responsible, but it means a publication in respect of 
 which, by reason of the occasion upon which it is made, 
 no remedy can be had in a civil action of slander or libel. 
 A conditionally privileged publication is a publication 
 made on an occasion which furnishes a prima facie legal 
 
 1 As to the distinction between communications privileged from being given in 
 evidence and privileged from being a cause of action for slander or libel, see remarks 
 of Bushe, C. J., Black v. Holmes, 1 Fox & Sm. 35. 
 
 2 Perkins v. Mitchell, 31 Barb. 467; Warner v. Paine, 2 Sandf. 19S. Privileged 
 communications are of four kinds, to •wit: where the publisher of the alleged slander 
 acted in good faith in the discharge of a public or private duty, legal or moral, or in 
 the prosecution of his own rights or interests ; anything said or written by a master 
 concerning the character of a servant who has been in his employment ; words used 
 in the course of a legal or judicial proceeding; and publications duly made in the 
 ordinary mode of parliamentary proceedings. (White v. Nichols, 3 How. U. S. Rep. 
 266.) Absolutely privileged communications are of two kinds: (1.) proceedings in 
 courts of justice ; (2.) memorials and petitions to the legislature. (Cook v. Hill, 3 
 Sandf. 341.) Courts are not inclined to extend the doctrine of absolutely privileged 
 communications. {Id.) A conditionally privileged publication must be made " in 
 good faith, believing the statements it contains to be true, or having probable cause 
 to believe th m to be true." If there was no probable cause for the communication, 
 the law implies that it was made with malice. If, however, it appears that there was 
 probable cause, the communication is privileged, no matter how much actual malice 
 dictated it. {Id.)
 
 320 DEFENSES. [Ch. IX. 
 
 excuse for the making of it; and which is privileged 
 unless some additional fact is shown, which so alters the 
 character of the occasion as to prevent it furnishing a 
 legal excuse. The additional fact which, in the majority 
 of cases, is required to be shown to destroy this condi- 
 tional privilege is malice, meaning bad intent, in the pub- 
 lisher, *. e. an intent to injure the person whom or whose 
 affairs the language concerns ; and, therefore, by a condi- 
 tionally privileged publication is very generally understood 
 one which rebuts the presumption of malice, meaning 
 absence of legal excuse, which in cases where no legal 
 excuse is apparent, arises from the mere fact of publica- 
 tion. 1 And, therefore, it has been said : " Instead of the 
 expression ' privileged communication,' it is more correct 
 to say that the communication was made on an occasion 
 which rebuts the presumption of malice." 2 The proper 
 meaning of a privileged communication is only this : that 
 the occasion on which the communication was made 
 rebuts the inference 'prima facie arising from a statement 
 prejudicial to the character of the plaintiff, and puts it 
 upon him to prove that there was malice in fact, that the 
 defendant was actuated by motives of personal spite or 
 ill-will, independent of the occasion on which the com- 
 
 1 " In general an action lies for the malicious publication of statements which are 
 false in fact and injurious to the character of another (within the well known limits 
 as to verbal slander), and the law considers such publication as malicious unless it is 
 fairly made by a person in the discharge of some public or private duty, whether 
 legal or moral, or in the conduct of his (the publisher's) own affairs, in matters 
 where his interest is concerned. In such cases, the occasion prevents the inference 
 of malice which the law draws from unauthorized communications, and affords a 
 qualified defense depending upon the absence of actual malice. If fairly warranted. 
 by any reasonable occasion or exigency, and honestly made, such communications 
 are protected for the common convenience and welfare of society, and the law has not 
 restricted the right to make them within any narrow limits." (Parke, B., Toogood 
 v. Spyring, 1 Cr. M. <fc R. 181; 4 Tyr. 582; and to the like effect see Coxhead v. 
 Richards, 2 C. B. 569 ; Blackham v. Pugh, 2 C. B. 611 ; Bennett v. Deacon, 2 C. B. 
 628; Taylor v. Hawkins, 16 Q. B. (Adol. & El. X. S.) 308; Kine v. Sewall, 3 M. & 
 W. 297; Swan?;. Tappan, 5 Cush. 104.) 
 2 Erie, J., Gilpin v. Fowler, 9 Ex. 615.
 
 § 200.] PRIVILEGED PUBLICATIONS. 321 
 
 munication was made. 1 The description of cases recog- 
 nized as privileged comnnmications must be understood 
 as exceptions to the rule (that every defamatory publi- 
 cation implies malice), and as being founded upon some 
 apparently recognized obligation or motive, legal, moral, 
 or social, which may fairly be presumed to have led to 
 the publication, and, therefore, prima facie relieves it 
 from the just implication from which the general rule of 
 law is deduced. The rule of evidence as to such cases is, 
 accordingly, so far changed as to impose it on the plaintiff 
 to remove those presumptions, flowing from the seeming 
 obligations and situations of the parties, and to require 
 of him to bring home to the defendant the existence of 
 malice as the true motive of his conduct. 2 And it has 
 been said: Few rules of law are of greater practical 
 importance than that which requires proof of express 
 malice, where the words are spoken under circumstances 
 which make the communication privileged. The malice 
 required to deprive communications of this sort of the 
 protection arising out of the occasion of the speaking of 
 the words, must be such as to induce the court, or any 
 reasonable person, to draw the inference that the occasion 
 has been taken advantage of to give utterance to an 
 unfounded charge. 8 Privileged communications compre- 
 hend all statements made hona fide in performance of a 
 duty, or with a fair and reasonable purpose of protecting 
 the interest of the person making them, 4 or the interest 
 of the person to whom they are made. 5 A communica- 
 
 1 Wright v. Woodgate, 2 Cr. M. <fe R. 5*73. "Where the writer is acting on any 
 duty, legal cr moral, towards the person to whom he writes, or where he has by his 
 situation to protect the interest of that person, that which he writes under such cir- 
 cumstances is a privileged communication, and no action will lie for what is thus 
 written, unless the writer be actuated by malice. (Cockayne v. Hodgkisson, 5 Car. 
 & P. 543.) 
 
 5 White v. Nicholls, 3 How. U. S. Rep. 266. 
 
 3 Manby v. Witt, 18 C B. 544. 
 
 4 Somervillc v. Hawkins, 10 C. B. 583; 15 Jur. 450. 
 
 5 Tattison v. Jones, 8 B. & C. 578.
 
 322 DEFENSES. [Ch. IX. 
 
 cation made bona fide upon any subject-matter in which 
 the party communicating has an interest, or in reference 
 to which he has a duty, is privileged, if made to a person 
 having a corresponding interest or duty, although it con- 
 tain criminatory matter, which, without this privilege, 
 would be slanderous and actionable. But in this defini- 
 tion of a privileged communication, the word duty " can- 
 not be confined to legal duties, which may be enforced by 
 indictment, action, or mandamus, but must include moral 
 and social duties of imperfect obligation." 1 But, as was 
 said by Creswell, J. : 2 " It is not easy very precisely to 
 define what is, and what is not, a privileged communica- 
 cation." We venture, with much hesitation, to suggest 
 the rule as to privilege to be : one may publish, by speech 
 or writing, whatever he honestly believes is essential to 
 the protection of his own rights, or to the rights of 
 another, j^rovided the publication be not unnecessarily 
 made to others than to those persons whom the publisher 
 honestly believes can assist him in the protection of his 
 own rights, or to those whom he honestly believes will, 
 by reason of a knowledge of the matter published, be 
 better enabled to assert, or to protect from invasion, either 
 their own rights, or the rights of others entrusted to their 
 guardianship (§ 241). 
 
 § 210. It will be convenient, prior to considering the 
 several occasions which give rise to privileged publica- 
 tions, to discuss the supposed privilege under certain con- 
 ditions of repeating defamatory matter. It already ap- 
 pears that the publication of defamatory matter cannot be 
 justified on the ground that it is but a repetition' (§ 114). 3 
 
 1 Harrison v. Bush, 5 El. & Bl. 349. 
 
 3 Wenman v. Ash, 13 Com. B. 844. 
 
 3 One who repeats a slander is responsible. (Evans v. Smith, 5 Monr. 363; Ken- 
 nedy v. McLoughlin, 5 Gray, 3; Clarke v. Munsell, 6 Mete. 373; Hampton v. Wilson, 
 4 Dev. 468.) It is no defense to an action for defamatory matter published in a 
 newspaper that it was the communication of a correspondent, or copied from another
 
 § 210.] REPETITION. 323 
 
 For a long period, however, it was tacitly conceded that 
 such a repetition could be justified by declaring the name 
 of the previous publisher. The origin of the error is 
 generally attributed to a dictum in the Earl of North- 
 ampton's case, A. D. 1613. 1 That case was an information 
 under the statutes of scandalam magnatum in the Star 
 Chamber, against Goodrich, Cox, Varner, Minor, Lake, 
 and Ingram, for publishing defamatory language concern- 
 newspaper. (Talbutt v. Clark, 2 Moo. & R. 312; Sanford v. Bennett, 24 N. Y. 20 ; 
 Miles v. Spencer, 1 Holt R. 533 ; Parker v. McQueen, 8 B. Monr. 16) or that it had 
 been previously published, and the plaintiff had failed to prosecute the previous pub- 
 lisher (Rex v. Holt, 5 T. R. 436 ; Curtis v. Mussey, 6 Gray (Mass.), 261 ; see Poppen- 
 heim v. Wilkes, 1 Strobhart, 275) ; or that when the charge was made, the plaintiff 
 did not deny it. (Fuller v. Dean, 31 Ala. 654.) In Reg. v. Newrnan, 1 El. & Bl. 
 268, the defendant on the trial offered to put in evidence the Dublin Review, of a 
 date prior to the alleged libel, in order to show that the charge contained in the libel 
 had been published a considerable time before the alleged libel, and that the pub- 
 lisher had not been prosecuted ; this evidence was rejected, and the rejection was 
 made one of the grounds for a motion for a new trial, and per Coleridge, J., " It has 
 been said that probably the libel was true because another libel was published by 
 another person. Upon that principle, it might have been argued that the statements 
 in the Dublin Review were true because they had previously appeared in some other 
 publication. Such evidence is far too vague to be received. The fallacy of the 
 learned counsel's argument consists in the prosecutor's alleged submission to the pre- 
 vious libel. The utmost that can be said is that he did not prosecute the parties. 
 That might have arisen from various considerations. He might not be able to fix 
 on a particular person, or upon any one of character, or he might be prevented from 
 proceeding by his poverty, or by a variety of other circumstances. Besides, it is not 
 always considered expedient to institute proceedings in respect to the first charge." 
 Nor is it any justification that prior to the publication complained against, there was 
 a rumor or report current aud generally believed that the plaintiff was guilty of the 
 offense imputed. (Hampton v. Wilson, 4 Dev. 468 ; Haskins v . Lumsden, 10 Wis. 
 359; Moberly v. Preston, 8 Mis. R. 462 ; Cude v. Redditt, 15 La. An. 492; Dane v. 
 Kenney, 5 Foster, N. H. 318 ; Lewis v. Niles, 1 Root, 346; Knight v. Foster, 39 N. H. 
 576 ; Woolcott v. Hall, 6 Mass. 514; Alderman v. French, 1 Pick. 1 ; Watkin v. Hall, 
 Law Rep. Ill, Q. B. 396) ; or that the defendant spoke the words as merely giving 
 the report. (Wheeler v. Shields, 2 Scam. 348; Smalley v. Anderson, 4 Monr. 367.) 
 Perhaps a defendant may give in evidence under the general issue the existence of 
 rumors against the plaintiffs character, to show that he has sustained no injury, or 
 mitigation. ( Waithman v. Weaver, 1 D. & R. 10 ; Treat v. Crowning, 4 Conn. 408 ; 
 Nelson v. Evans, 1 Dev. 9; Calloway v. Middleton, 2 A. K. Marsh. 372; Binns v. 
 Stokes, 27 Mis. (5 Cush.) 239.) Neither particular reports, nor public reputation of 
 the slander, nor of kindred charges against the plaintiff, are admissible. (Inman v. 
 Foster, 8 Wend. 602 ; Kennedy v. Gifford, 19 Wend. 296 ; Mapes v. Weeks, 4 Wend. 
 659; Watson v. Buck, 5 Cow. 499.) See § 216. 
 1 12 Rep. 132; Moore, 821.
 
 324 DEFENSES. [CL IX 
 
 ing the Earl of Northampton. The defendants all ap- 
 peared in court ; Goodrich confessed to the publication, 
 but alleged in justification that he was not the first author, 
 and vouched said Cox, who, in like manner, confessed and 
 vouched said Varner, who in like manner confessed and 
 vouched said Minor, who in like manner confessed and 
 vouched said Lake, who in like manner confessed and 
 said he heard the words from one Spoket, who said he 
 heard them from said Ingram, who in like manner con- 
 fessed and said he heard the words from two English fu- 
 gitives at Leghorn. The court intimated that the defense 
 of the language being a repetition would be available in the 
 case of a common person, but not in the case of a peer, and 
 all the defendants were punished by fine and imprison- 
 ment. The error so far gained ground that subsequently 1 
 we find it held that a plaintiff in an action for slander, 
 where the slander appeared to be a repetition, was re- 
 quired in his declaration to negative that the defendant 
 had in fact heard spoken the language he was charged 
 with publishing. Passing over a long interval we find, 
 A. D. 1796, Lord Kenyon, then Chief Justice of the 
 King's Bench, referring approvingly to the Earl of North- 
 ampton's case, but he introduced this qualification that to 
 render the repetition justifiable, the defendant must at the 
 time of the repetition, mention the name of the previous 
 publisher, and that to name the previous publisher for the 
 first time in the defendant's plea 3 was not a justification. 
 This qualification was repeated in a subsequent case, 
 A. D. 1805. 3 This other qualification was also introduced, 
 that if the first publisher retracted what he had published ; 
 one who subsequently and with a knowledge of such re- 
 traction repeated the matter, was not legally excused by 
 
 1 Crawford v. Middleton, 1 Lev. 82. 
 
 2 Davis v. Lewis, 7 T. R. 17 ; and see Church v. Bridgman, 6 Missouri, 190. 
 
 3 Woolnoth v. Meadows, 5 East, 463.
 
 § 210.] REPETITION. 323 
 
 naming the prior publisher. 1 It long continued to be con- 
 ceded as law that no action could be maintained for the 
 repetition orally of defamatory matter, if at the time of 
 the repetition the name of the previous publisher was 
 mentioned ; thus, in A. D. 1829, in an action for slander, 
 the plea that the language was a repetition of words pre- 
 viously spoken by A., and that A. was named as the 
 author at the time of the publication, was overruled, not 
 because naming the author was no defense, but' because 
 the plea did not allege that A. spoke the words mali- 
 ciously, nor that the defendant believed them to be true, 
 nor that they were spoken on a justifiable occasion. 2 In 
 Connecticut, it seems, that giving the name of the author 
 was never allowed as a defense, but the fact was received 
 in mitigation ; 3 subsequently it was held not receivable in 
 that State, even in mitigation. 4 In Pennsylvania, giving 
 the name of the previous publisher was held to rebut the 
 inference of malice, 5 and to amount to a mitigating circum- 
 stance. 6 In Maine, and some other States, it has been 
 held that in an action for slander, giving the name of the 
 previous publisher of the words is a justification of the 
 repetition. 7 Thus far we have had reference only to 
 
 1 Maitland v. Goldney, 2 East, 426. 
 
 2 McPhearson v. Daniels, 10 B. & C. 263 ; and see Moberly v. Preston, 8 Missouri, 
 462. In Lewis v. Walter, 4 B. <fc Aid. 605, it was said there must be a just reason for 
 the repetition. In Hawkes v. Coster, 1 Law Reporter, 192 (London, 1821), Abbott, 
 Ch. J., nonsuited the plaintiff in an action for slander, "for the defendant only — 
 repeated the words of another, and gave his name at the time." 
 
 3 Leister v. Smith, 2 Root, 24. 
 
 4 Austin v. Hanchett, 2 Root, 148 ; Treat v. Browning, 4 Conn. 408. 
 
 6 Binns v. McCorcle, 2 P. A. Brown's R. 79 ; Hersh v. Ringwalt, 3 Yeates, 508. 
 
 8 Kennedy v. Gregory, 1 Binney, 85 ; Morris v. Duane, 1 Binney, 90, n. In New 
 Jersey, naming the previous publisher was received in mitigation. (Cook v. Barkley, 
 1 Pennington's N. J. Rep. 169, A. D. 1807.) In Jarnigan v. Fleming, 43 Missi. 711, 
 it is said that naming the previous publisher is not a defense, unless it is made with a 
 good motive. This is equivalent to saying — that naming the previous publisher is 
 not a defense. 
 
 7 Unless it be proven that the repetition was malicious. (Haynes v. Leland, 29 
 Maine, 233 ; Abrams v. Smith, 8 Blackf. 95 ; Jones v. Chapman, 5 Blackf. 88 ; Crane
 
 326 DEFENSES. [Cll. IX. 
 
 actions for slander ; the first case in which the question 
 appears to have been raised in an action for libel, was in 
 the Supreme Court of Pennsylvania, A. D. 1803. 1 It was 
 there held that giving the name of the author was no ex- 
 cuse for the publication of a libel. The like ruling was 
 made A. D. 1813, in the Supreme Court of New York. 2 
 The first mention of the point arising in an action for libel 
 in the English courts was in A. D. 1817, when it was 
 held not to be a defense that the defamatory matter was 
 communicated to the defendant by a third person. 8 In a 
 subsequent case for publishing an alleged libel, purporting 
 to be an account of a trial, the plea was that the alleged 
 libel had been previously published in the H. Journal, 
 and that Gr. H. M. then and still was the publisher 
 thereof ; on demurrer the plea was held bad, as the de- 
 fendant in his repetition had only named the journal from 
 which the alleged libel was copied, and had not given the 
 name of the publisher, and it was intimated by the court 
 that the defense of the publication being a repetition, and 
 
 v. Douglass, 2 Blackf. 85; Cummerford v. McAvoy, 15 111. 311 ; Johnston v. Lance, 7 
 Iredell, 448.) Disclosing name of author at time of repetition held a defense. (Kelly 
 v. Dillon, 5 Ind. (Porter), 426 ; Trabue v. Mayo, 3 Dana, 138 ; Robinson v. Harvey, 
 5 Monr. 519 ; Parker v. McQueen, 8 B. Monr. 16.) Giving name of author is evidence 
 of want of malice. (Miller v. Kerr, 2 M'Cord, 285 ; Church v. Bridgeman, 6 Miss. 
 190; and see Easterwood v. Quinn, 2 Brevard, 64; Smith v. Stewart, 5 Barr. 372; 
 Sexton v. Todd, Wright (Ohio), 317 ; Haine v. Welling, 7 Ham. 253 ; Farr v. Eoscoe, 
 9 Mich. 353.) The defense of giving name of author must be specially pleaded. 
 (Brooks v. Bryan, Wright, 760.) In slander, evidence that the defendant had been 
 told by a third person that the plaintiff was guilty of the crime imputed to him is 
 inadmissible. (Mapes v. Weeks, 4 Wend. 659; Austin v. Hanchett, 2 Root, 148.) In 
 slander, it is no justification that defendant after speaking the words and before the 
 commencement of the action, disclosed to plaintiff the author of the words. (Skin- 
 ner v. Grant, 12 Verm. 456.) In Scott v. Peebles, 2 Sme. & M. 546, it was held to be 
 no defense to an action for slander that the defendant heard the matter from a person 
 out of the jurisdiction of the -court. See Evidence in Mitigation, and Gilman v. 
 Lowell, 1 Amer. Lead. Cas. 202, n. ; 2 Greenl. Ev. § 424, re. 
 
 1 Runkle v. Meyers, 3 Veates, 518. 
 
 " Dole v. Lyon, 10 Johns. 447. In Tennessee the plea of repeating the words of 
 another is no defense to a libel under any circumstances. (Larkins v. Tarter, 3 Sneed, 
 681.) Otherwise in slander. (Id.) 
 
 3 Miles v. Spencer, 1 Holt, K P. 533.
 
 § 211.] TRUTH. 327 
 
 that the previous publisher was named at the time of the 
 repetition, did not apply to libel. 1 The first case in which 
 the dictum in the Earl of Northampton's case appears to 
 have been altogether repudiated, was one before Judge 
 Betts in New York, A. D. 1825. 2 (.It may now be con- 
 sidered as settled in New York and in England, that 
 neither in the action for slander nor for libel is it any 
 legal excuse that the alleged defamatory matter had been 
 previously published by another, whose name was men- 
 tioned at the time of the repetition. 8 / 
 
 § 211. It is now universally conceded that to show 
 the truth of the matter published is a complete defense to 
 an action either of slander or libel. A publication of 
 the truth is, as to a civil action, absolutely privileged. 4 
 
 1 Lewis v. Walter, 4 B. & Aid. 605, A. D. 1821. 
 
 " Chevalier v. Brush, Anthon's Law Student, 186 ; this was followed by Mapes v. 
 Weeks, 4 "Wend. 659 ; Inman v. Foster, 8 Wend. 602 ; Hotcbkiss v. Oliphant, 2 Hill, 
 510; and see Johnston v. Laud, 7 Iredell, 448 ; Dole v. Lyon, 10 Johns. 447 ; Clark- 
 son v. McCarty, 5 Blackf. 574; Moberly v. Preston, 8 Mis. 462; Romayne v. Duane, 
 3 Wash. C. C. 216 ; The State v. Butman, 15 La. An. 166. 
 
 3 McGregor v. Thwaites, 3 B. & C. 24 ; 4 D. & R. 695 ; De Crespigny v. Wellesly, 
 5 Bing. 392; Bennett v. Bennett, 6 C. & P. 588 ; Fidrnan v. Ainslie, 10 Exch. 63; 
 nor does it make a defense that the defendant believed the matter published to be 
 true (id. ; Saus v. Joerris, 14 Wis. 663); or that plaintiff himself had previously 
 published the same matter. (Cook v. Ward, 6 Bing. 409 ; Abshire v. Cline, 3 Ind. 
 115.) 
 
 4 Truth is a good defense in an action for libel or slander. (Ante, notes 2, 3, p. 116 ; 
 and see Stat. 6 and 7 Vict., ch. 96; Perry v. Mann, 1 Rhode Island, 263; Root v. 
 King, 7 Cow. 613, and 4 Wend. 113; 1 Stark, on Sland. 229; Lake v. Hutton, Hob. 
 253 ; FAnson v. Stuart, 1 T. R. 748) ; but it must be pleaded and cannot be given in 
 evidence under the general issue, either in bar or in mitigation. (Underwood v. 
 Parkes, Str. 1200 ; Manning v. Clement, 7 Bing. 367 ; 2 Greenl. Ev. § 424 ; Andrews 
 v. Van Deuser, 11 Johns. 38; Van Ankin v. West fall, 14 Johns. 233; Shephard 
 v. Merrill, 13 Johns. 475; Snyder v. Andrews, 6 Barb. 43 ; Wagner v. Holbrunner, 7 
 Gill, 296; Smith v. Smith, 8 Ired. 29 ; Kelly v. Dillon, 5 Porter (Ind.), 426; Arring- 
 ton v. Jones, 9 Port. 139; Douge v. Pearce, 13 Ala. 127 ; Kay v. Fredrigal, 3 Barr, 
 221 ; Thompson v. Bowers, 1 Doug. 321 ; Taylor v. Robinson, 29 Maine (16 Shep.), 
 323; Tcagle v. Deboy, 8 Blackf. 134; Wagstaff v. Ashton, 1 Ilarring. 503; Bodwell 
 v. Swan, 3 Pick. 376; Alderman v. French, 1 Pick. 1 ; Updegrove v. Zimmerman, IS 
 Penns. 619; Scott v. McKinnish, 15 Ala. 662; Eagan v. Gantt, 1 McMullan, 468; 
 Rumsey v. Webb, 1 Car. & M. 104 ; Else v. Evans, Anthon N. P. 23; Burns v. Webb, 
 1 Tyler, 17 ; Samuel v. Bond, Litt. Sel. Cas. 158; Treat v. Browning, 4 Conn. 408 ; 
 Bisbey v. Shaw, 1 2 N. Y. 67 ; Sheahan v. Collins, 20 111. 325 ; Haws v. Stanford, 4
 
 328 DEFENSES. [Cll. IX. 
 
 The cases, of rare occurrence, of actions for writing de- 
 famatory words upon documents of the plaintiff, whereby 
 the document is rendered less valuable, or entirely value- 
 less, to the owner, are not exceptions to this rule. Such 
 actions are, in fact, not actions for libel, but actions for 
 malicious injury to property, in such actions the truth 
 of the defamatoiy matter does not amount to a defense ; 
 
 Sneed, 520; and see Sidgreaves v. Myatt, 22 Ala. 617.) The defendant may prove 
 in mitigation such facts as show a ground of suspicion . not amounting to actual proof 
 of the charge (Wagner v. Holbrunner, 7 Gill, 296), or which tends to a proof of the 
 truth, yet falls short of it (Snyder v. Andrews, 6 Barb. 43; Bisbey v. Shaw, 12 X. 
 Y. 67; Scott v. McKinnish, 15 Ala. 662), or which rebut the presumption of malice. 
 (Kennedy v. Dear, 6 Porter, 90 ; Arrington v. Jones, 9 Porter, 139 ; Hart v. Reed, 1 
 B. Monr. 166; Chapman v. Calder, 14 Penns. (2 Harris), 365; Abshire v. Cline, 3 
 Ind. 115 ; and see Moseley v. Moss, 6 Gratt. 534.) Evidence of general bad character 
 may be admitted under the general issue. (Smith v. Smith, 8 Ired. 29 ; Taylor v. 
 Richardson, 29 Maine, 323.) An action of slander for charging a man with having 
 the venereal disease, and, with that disease upon him, contracting marriage, and 
 communicating that disease to his wife, cannot be maintained, if the plaintiff im- 
 mediately after his marriage had the disease in fact, even by proof that his wife, 
 whom he married without knowing that she had the disease, communicated it to 
 him. (Golderman v. Stearns, V Gray, 181.) In slander for calling plaintiff a whore, 
 the words were laid to have been spoken in 1842 ; plea, that plaintiff, while unmar- 
 ried, in 1834, had carnal connection with one A. Replication, that plaintiff, at the 
 time mentioned in the plea, was betrothed to said A. ; that afterwards she was law- 
 fully married to him ; that she lived with him a virtuous life until August, 1836, 
 when he died ; and that she had ever since continued to live in innocent and virtuous 
 widowhood. Held, on general demurrer, that the replication was insufficient. (Al- 
 corn v.Hooker, 7 Blackf. 5S.) "Where the charge is of a crime of which the plaintiff 
 was convicted, it is no answer to a plea of the truth of the charge, that the plaintiff 
 was pardoned. (Baum v. Clause, 5 Hill, 196 ; see ante, § 158.) 
 
 The provision of the Constitution of the State of New York, as to the defense of 
 truth in prosecutions for libel, does not apply to civil actions. (Dolloway v. Turrill, 
 26 Wend. 383.) See further under heads Pleading, Evldtnce. 
 
 It is said that where a crime is charged, and the defense of truth is sustained, 
 the plaintiff may be put upon his trial for the offense without the intervention of a 
 grand jury. (Cook v. Field, 3 Esp. R. 133.) Many instances have occurred where 
 the plaintiff's action for slander imputing the commission of a crime, have occasioned 
 the prosecution and conviction of the plaintiff for the imputed offense. See Pigot's 
 Case, Cro. Car. 383 ; and note t, 1 Stark. Slan. 237 ; Symms v. Blake, 2 C M. & R. 
 416; 4 Dowl. P. C. 263; 1 Gale, 182. 
 
 Wm. Parks, the first printer in Williamsburg, Virginia, published (A. D. 1736) 
 of a member of the House of Assembly, that he had been convicted of sheep-steal- 
 ing; Parks being arraigned before the House, stated the charge to be true, and that 
 being found the fact, he was discharged. See Thomas' History of Printing in 
 America.
 
 § 211.] TRUTH. 329 
 
 thus where a coach proprietor wrote upon the license of his 
 driver " Discharged for being one shilling short," or where 
 a police commissioner wrote on " a certificate " of a police 
 officer " Dismissed the police force," pleas of the truth of 
 these statements were overruled. 1 We do not pretend to 
 vindicate, either as just in its practical operation or sound 
 in principle, the rule which makes truth a complete defense 
 to an action for slander or libel. Neither the justice nor 
 expedience of this rule is universally nor even very gener- 
 ally conceded. 2 The maxim, that a man shall not profit 
 by his own wrong, 3 ordinarily adduced as an apology for 
 
 1 Rogers v. Maenarnara, 14 Com. B. 2*7 ; Hurrell v. Ellis, 2 Com. B. 295 ; Taylor 
 v. Rowan, V Car. & P. 70. 
 
 2 " I am quite clear that the truth ought not to be made decisive (as a defense) 
 either in civil or criminal proceedings ; for cases may be put where the truth instead 
 of being a justification, would not even be any mitigation ; nay, where it would he 
 an aggravation. (Lord Brougham, Evidence, Rep. of Ho. of Lords on Libel, <fec, 
 July, 1843) ; and see in the same report the opinions of other lawyers and judges to 
 the like effect; and see 2 Kent's Com. 25; Borthwick on Libel, 252; 29 Pari. Hist. 
 575 ; Preliminary Discourse to Starkie on Slander, xliv. 
 
 3 Blackstone gives as a reason the merit of the defendant in having exposed the 
 truth. (3 Black. Com. ch. viii.) This is combated by Starkie, who contends for the 
 ground that the plaintiff cannot take advantage of his own wrong. (1 Starkie on 
 Slander, 230, 232); and see Preliminary Discourse to Starkie on Slander. 
 
 If the words be true they are no slander, and may be justified. (2 Wils. 301 ; 1] 
 Mod. 99.) If the defendant * * prove the words to be true, no action will lie, 
 * * for then it is no slander or false tale. (3 Black. Com. ch. viii.) The defendant is 
 justified in law and exempt from all civil responsibility, if that which he publishes be 
 true. (1 Starkie on Slander, 229.) 
 
 In Rex v. Roberts (Ms. 8 Geo. 11, A. D. 1*735, L'd Hardwicke, Ch. J., remarks): 
 «' It is said that if an action was brought, the fact, if true, might be justified, but I 
 think that is a mistake, such a thing was never thought of in the case of Harman v. 
 Delany (1 Str. 898). I never heard such a justification in an action for a libel even 
 hinted at ; the law is too careful in discountenancing such practices ; all the favor 
 that I know truth affords in such a case is, that it may be shown in mitigation of dam- 
 ages." It is added in a note by the editor of the American edition of Starkie on 
 Slander (vol. I, p. 233), " In the time of Lord Harkwicke, it was denied, not only by 
 him but by others, that the truth could be given in evidence in bar of a recover}' ; " 
 and in a subsequent note (vol. I, p. 235), until 1792, when the judges of England gave 
 their opinion in Parliament upon questions put to them on the Libel Bill, the only 
 authorities for the position that a defendant might plead the truth of a libel in justi- 
 fication, were the dicta of Hobart, C. J., in Lake v. Hutton, Hob. R. 253, and of Holt. 
 C. J., in an anonymous case, 11 Mod. 99; and the acquiescence of the bar and the 
 court in I'Anson v. Stuart, 1 T. R. 748. Since then are the cases of King v. Parsons, 
 22
 
 330 DEFENSES. [CL IX. 
 
 the rule under consideration, if it applies in any case, 
 certainly has no application where the truth consists in 
 the misfortune and not in the wrong-doing of the person 
 whom the publication concerns. The rule allowing truth 
 as a defense in a civil action for slander or libel appears 
 to be an innovation, and of comparatively modern intro- 
 duction. 1 Probably its origin was in this wise : Until the 
 statute of the fourth year of Queen Anne, A. D. 1706, 
 only a single plea was permitted in a civil action, and 
 there is no record prior to that statute of a plea of truth 
 in an action for slander or libel. At least until A. D. 
 1702, truth was admitted in mitigation under the general 
 issue of not guilty, 2 but between that date and A. D. 
 1716, probably after the statute of Anne allowing several 
 pleas, at a meeting of the judges of England, the rule 
 was settled not to allow the truth to be given in evidence 
 in mitigation, but requiring " that it should be pleaded." s 
 From this we infer that no such plea existed prior to that 
 time, and the requiring the truth to be specially pleaded 
 was evidently to prevent a surprise upon the plaintiff, and 
 to enable him to be prepared with his reply. Notwith- 
 standing this rule requiring truth to be specially pleaded, 
 we find that at least until A. D. 1735, truth was regarded 
 only as a matter of mitigation. The system of pleading 
 then in vogue knew no such thing as a plea in mitigation ; 
 
 A. D. 1799, in -which L'd Kenyon observed that it was competent for a defendant in 
 an action for libel to plead the truth in justification, and Plunket v. Cobbett, A. D. 
 1804, in which Lord Ellenborough remarked, "in case the libel had been true the de- 
 fendant could have justified it on the record." Another reason assigned for making 
 truth a defense is, that truth disentitles to damages. (Blackburn, J., Campbell v. 
 Spottiswoode, 8 Law Times Rep. N. S. 201 ; 3 Best & S. 769 ; Fairman v. Ives, 5 B. 
 & Aid. 646.) 
 
 1 Selwyn's N. P. 986 ; Borthwick on Libel, 246. Truth, it is said, was at all times 
 a defense in an action for slander. (1 Stark, on Slander, 234; 3 Blac. Com. ch. viii.) 
 This, however, seems doubtful. See Smith v. Richardson, Willes, 20; Bull. N. P. V. 
 Where it is said, " When evidence of the truth of the words was offered in mitigation 
 of damages, Lord Macclesfield, with a great deal of indignation, refused to admit it." 
 
 2 Underwood v. Parks, 2 Strange, 1200. 
 
 3 Smithies v. Harrison, 1 L'd Raym. 727.
 
 § 212.] TRUTH. 331 
 
 in that system every plea was either in abatement or in 
 bar, and when truth was required to be pleaded it was 
 almost of course to regard it as a plea in bar, and thus, as 
 we suppose, the truth, when specially pleaded, became a 
 defense. The truth, however, which is admitted as a de- 
 fense is the truth of the defamatory matter in substance 
 and in fact, and in the sense in which it was used and was 
 intended to be understood. If A. says of X. that he is a 
 thief, and C. publishes that A. said X. was a thief, in a 
 certain sense C. would publish the truth, but not in the 
 sense which would constitute a defense ; C.'s publication 
 would in fact be but a repetition of A.'s words, which, as 
 we have seen, would not be a defense. (§ 210.) The 
 truth, which in such a case would amount to a defense, 
 would be that X. was a thief. 1 Again, if A., speaking 
 ironically, says of X. that he is an honest man, meaning 
 and conveying the idea that X. is a dishonest man, it 
 would not be a justification of these words to allege that 
 it was true X. was an honest man, but to constitute a 
 defense the allegation required would be that it was true 
 X. was a dishonest man. We shall give, in the follow- 
 ing sections, some illustrations of the requirements of a 
 justification on the ground of truth, and the subject will 
 be further illustrated under the head of Pleading. (§ 355.) 
 
 § 212. Where defamatory allegations, whether pub- 
 lished orally or in writing, are divisible (§ 145), but not 
 otherwise, the defendant is permitted to justify on the 
 ground of truth, one or some of them, less than the 
 whole. 2 But whether he justify the whole or a part only, 
 
 1 Watkin v. Hall, Law Rep. Ill ; Q. B. 396. 
 
 e ante, notes, to § 145, and Stiles v. Nokes, 7 East, 493; Andrews v. Thornton, 
 8 Bing. 431; 1 M. & Sc. 070; Gregory v. Duke of Brunswick, 6 Sc. N. R. 809; 
 Vessey v. Pike, 3 C. & P. 512 ; Van Derveer v. Sulphin, 5 Ohio, N. S. 293; O'Connell 
 v. Mansfield, 9 Ir. Law R. 179; Smith v. Parker, 13 M. & W. 459; Fero v. Puiscoe, 
 4 N. Y. 162. A declaration for a libel commencing " horse-stealer," and followed by 
 a statement of facts, and concluding that the defendant published it with intent to 
 cause it to be believed that the plaintiff had been guilty of feloniously stealing a
 
 332 DEFENSES. [CL IX. 
 
 the justification as to so much as is intended to be jus- 
 tified must go the whole length of the charge in all its 
 material allegations. The justification must always be as 
 broad as the charge, and of the very charge attempted to 
 be justified. 1 A charge that the plaintiff, a brewer, caused 
 his establishment to be supplied with unwholesome water, 
 is not proved to be true by showing that the establish- 
 ment tvas supplied with unwholesome water. To estab- 
 lish the truth of the charge, it must be shown the plaintiff 
 caused the supply. 2 To a charge against the plaintiff, a 
 schoolmaster, that the decay of the school under his 
 management was attributable to his violent conduct, 
 it was held, on special demurrer to the plea, not a suffi- 
 cient justification to allege that the plaintiff had been 
 guilty of violent conduct toward some of his scholars ; to 
 have amounted to a justification, it should have been 
 shown that the decay of the school was occasioned by the 
 violent conduct of the plaintiff. 3 A charge that plaintiff 
 
 horse ; plea except as to the word horse-stealer, a justification, statiDg circumstances 
 inducing suspicion that the plaintiff had been guilty of the fact; held on demurrer, 
 that the plea was insufficient. (Mountney v. Watton, 2 B & Ad. 673.) 
 
 1 Weaver v. Lloyd, 2 B. & C. 678; 4 D. <fe R. 230; Bissell v. Cornell, 24 Wend. 
 354; Stillwell v. Barter, 19 Wend. 478 ; Fidler v. Delavan, 20 Wend. 57; Torrey v. 
 Field, 10 Verm. 353 ; Crump v. Adney, 1 Cr. & M. 362 ; Burford v. Wible, 32 Penns. 
 95; Wilson v. Beighler, 4 Iowa, 427; Van Derveer v. Sutphin. 5 Ohio, N. S. 293 ; 
 Morrow v. McGaver, 1 Ir. C. L. 569 ; Powers v. Skinner, 1 Wend. 451 ; Cooper v. 
 Barber, 24 Wend. 105; McKinly v. Rob, 20 Johns. 351. The plea must justify the 
 same words as those contained in the declaration. (Skinner v. Grant, 12 Verm. 466; 
 Gregory v. Atkins, 42 Verm. 237 ; Ormsby v. Douglass, 2 Abb. Pr. R. 407 ; 37 
 N. Y. 377.) "There is no such thing as a half-way justification. When several 
 distinct things are charged (§ 145, ante), the defendant may justify as to one, 
 though he may not be able to do so as to all ; but as to any one charge the justifica- 
 tion will either be everything or nothing. If the charge be of stealing a horse, it is 
 not half a defense, nor any part of one, to show the plaintiff took the horse by a 
 mere trespass." (Fero v. Ruscoe, 4 N. Y. 165.) A charge that plaintiff is a "libellous 
 journalist," is not sustained by proof of his conviction of libel on one occasion. 
 (Wakley v. Cooke, 4 Exch. 511.) 
 
 s Fidler v. Delavan, 20 Wend. 57. A charge that plaintiff was a "cheat" and 
 "swindler" was held justified by the fact that he sold goods for the purpose of 
 preventing their seizure under an attachment for the benefit of his creditors. 
 (Odiorne v. Bacon, 6 Cush. 185.) 
 
 3 Smith v. Parker, 13 M. <fe W. 459. To a declaration for a libel, charging that.
 
 § 212.] truth. 333 
 
 had stolen defendant's shingles is not justified "by the 
 fact that plaintiff sold defendant's shingles without his 
 authority, and afterward denied that he knew anything 
 respecting them; to constitute a justification of such a 
 charge, a felonious taking must be shown. 1 And where 
 the charge was that plaintiff had begotten a bastard 
 
 by hypocritical cant, <fec, plaintiff and his associates effected the incorporation of the 
 Manhattan Bank, in which plaintiff's share of the profits was several thousand 
 dollars ; and that plaintiff, as a member of the senate, advocated the bill entitled 
 " An Act for supplying the city of Xew York with pure and wholesome water," 
 knowiDg that it contained a clause authorizing the company to carry on banking 
 business, and when he knew that the other members of the legislature were ignorant 
 of that fact, <fcc, the defendant pleaded in justification, that the plaintiff was a 
 senator on second April, 1*798; that such a law was passed, and that, at the time of 
 passing said law (first April, 179S), plaintiff, as senator, advocated the bill, knowing 
 at the time that iff contained such clause, <fcc. ; and that a large majority of the 
 members of the legislature were ignorant of that fact, <fcc. ; and that, at the time and 
 place first above mentioned, plaintiff held, and was owner of a large portion of the 
 stock created by the said law, to wit, five thousand dollars ; all which acts of the 
 plaintiff were hypocritical and deceptive, and contrary to his duty as a senator, <fcc. 
 The plaintiff replied, that at the time he advocated the said law as a senator, he did 
 not hold, and was not owner of any stock created by it ; nor had he any interest 
 whatever in the stock, &c. On a general demurrer to the reply the plea was held to 
 be bad, as not being an answer to the declaration, and that the defendant having 
 committed the first fault in pleading, the plaintiff was entitled to judgment. 
 (Spencer v. Southwick, 11 Johns. 573 ; rev'g 10 Johns. 259, where the replication was 
 held to be bad.) Held that a charge of incest could not be justified by alleging that 
 plaintiff told the defendant her brother had had sexual intercourse with her. 
 ( Abshire v. Cline, 3 Ind. 115 ; and see Long v. Brougher, 5 "Watts, 437, and in note 
 3, p. 327, ante.) It is not every act of illicit intercourse on the part of a female that 
 will justify calling her a whore. (Smith v. Wyman, 4 Shep. 13.) The defendant, in 
 a case of slander, admitted in his answer that, while he was conducting his own 
 cause before a justice, and examining the plaintiff as a witness, he interrogated him: 
 "Do you say I put you on Williams' land?" that the witness answered, " I do," 
 and that the defendant replied, " That's a lie." The answer farther alleged that 
 plaintiff's answer to defendant's question, and his statement that the defendant put 
 witness on Williams' land, were untrue. Held, that the answer was not good as a 
 justification of a charge of perjury. (Lewis v. Black, 27 Miss. 425.) A charge that 
 plaintiff's ship was unseaworthy and had been bought by Jews to take out con- 
 victs, is not justified by showing the ship was unseaworthy. (Ingram v. Lawson, 5 
 Bing. N. C. 66.) The justification should be of the mcanhiff, not of the words merely. 
 (Snow v. Witcher, 9 Ired. 346; Fidler v. Delavan, 20 Wend. 57.) The charge must 
 be directly met, and not argumentatively or by inference. {Id.) Where the charge 
 was that the plaintiff had bolted, it is not a justification to say he quitted. (O'Brien 
 v. Bryant, 16 M. & W. 168 ; 4 D. & L. 341 ; 16 Law Jour. Rep. 77, Ex. ; and see 
 Wachter v. Quenzer, 29 N. Y. 547; Ede v. Scott, 7 Ir. L. R. N. S. 607; Watkiu v. 
 Hall, Law Rep. Ill Q. B. 396.) 
 
 1 Shepherd v. Merrill, 13 Johns. 475.
 
 334 DEFENSE.-. [Cll. IX. 
 
 child, innuendo that he had committed adultery with the 
 child's mother, it was held that to allege an adulterous 
 intercourse with the mother of the bastard was not stat- 
 ing a sufficient justification. 1 So a charge of selling in- 
 toxicating liquor contrary to law, is not justified by 
 showing a sale of intoxicating liquor. The charge that 
 the sale was contrary to law is not answered. 2 Nor is a 
 charge that the plaintiff had one night gone nine miles 
 from home to four different colliers' shanties, and that she 
 had gone to bed to the colliers, justified by showing that 
 plaintiff had committed fornication with one collier else- 
 where than at the shanties referred to in the charge. 3 A 
 charge of criminal intercourse with A. cannot be justified 
 by showing a criminal intercourse with B. 4 A charge 
 that " he is a lying, slanderous rascal," is not justified by 
 showing that plaintiff had stated what was untrue, unless 
 it be also shown that he did it maliciously. 5 To justify a 
 charge that plaintiff will steal anything he can get hold 
 of : " He is in the habit of picking up things. He stole 
 wool of L.," various acts of theft must be shown. 6 So a 
 charge of committing one offense is not justified by show- 
 ing the commission of another offense, although of the 
 same, or even greater enormity. 7 A charge of stealing 
 
 1 Holton v. Muzzy, 30 Verm. 365. 
 
 2 Holton v. Muzzy, 30 Verm. 365. 
 
 3 Burford v. Wible, 32 Penn. St. R. 95 ; and see Ricke v. Stanley, 6 Blackf. 169 ; 
 semble, a defendant cannot justify a charge that the plaintiff had criminal intercourse 
 with a certain woman at a certain place, by pleading that he had such intercourse 
 with her at another place. (Sharp v. Stephenson, 12 Ired. 348.) 
 
 4 Walters v. Smoot, 11 Ired. 315 ; and see Pallet v. Sargent, 36 N. H. 496 ; Randall 
 v. Holsenbake, 3 Hill, So. Car. 1*75 ; Ridley v. Perry, 4 Shepl. 21. In case for words im- 
 porting adultery with Jane at stile, defendant may give in evidence in mitigation of 
 damages that plaintiff commited adultery with Jane at stile, but not evidence of 
 adultery with any other. (Smithies v. Harrison, 1 Ld. Raym. 727.) 
 
 5 Snowdon v. Linds, 1 Cr. C. C. 569. 
 
 6 Talmadge v. Baker, 22 Wis. 624. 
 
 7 Stow v. Converse, 4 Conn. 17; Torrey v. Field, 10 Verm. 353; Andrews v. Van 
 Deuzer, 11 Johns. 38. Charging plaintiff with being a whore is not justified by the 
 fact that she is a " reputed thief." (Smith v. Buckecker, 4 Rawle, 295.) It is no
 
 § 212.] truth. 335 
 
 one kind of chattel cannot be justified by showing theft of 
 another kind of chattel. A charge that plaintiff stole " a 
 pot and waiter " is not justified by the fact that he stole 
 a waistcoat pattern. 1 A charge of stealing a dollar from 
 A. cannot be justified by proof of stealing a dollar from 
 B. 2 To prove a forgery to the amount of $80 is not a 
 justification of a charge of forgery to the amount of $250, 
 or any other sum. 3 A charge of the crime against nature 
 with a mare, is not justified by showing a commission of 
 that crime with a cow.* A charge that A, a commissioner 
 to examine witnesses, returned the examination of divers 
 witnesses that were never sworn, is not justified by proof 
 of a return of the examination of one witness who had 
 not been sworn. 5 Nor is a charge that the plaintiff carried 
 on smuggling as a business justified by proof of a single 
 act of smuggling. 6 So a charge of smuggling during the 
 war is not justified by showing a smuggling before the 
 war. 7 And where the charge was that plaintiff was a 
 bankrupt in April, in the twelfth year of James the First, 
 it was held not to be a justification to show that plaintiff 
 was a bankrupt in the fifteenth year of James the First. 8 
 It is not a justification of several charges to prove the 
 
 justification of a charge of horse-stealing and counterfeiting that plaintiff was thought 
 no more of than a horse-thief. (Nelson v. Musgrave, 10 Mis. 648.) A charge of hard- 
 ness toward the poor, dissoluteness of morals, (fee, purporting to be conclusions from 
 instances of bad conduct previously narrated in the publication, cannot be justified by 
 proof of other instances. (Bartholemy v. The People, 2 Hill, 248.) 
 
 1 Eastland v. Caldwell, 2 Bibb, 21 ; Hilsden v. Mercer, Cro. Jac. 676. A charge 
 of perjury on one occasion cannot be justified by showing that plaintiff committed 
 perjury on some other occasion, or in some other respect, than that alleged. ( Whit- 
 taker v. Carter, 4 Ired. 461 ; Starr v. Harrington, 1 Smith (Ind.) 360; 1 Cart. 515; 
 Eandall v. Holsenbake, 3 Hill, So. Car. 175.) 
 
 s Self v. Gardner, 15 Mis. 480. 
 
 * Stiles v. Comstock, 9 How. Pra. R. 44. 
 
 4 Andrews v. Van Deuzer, 11 Johns. 38. 
 
 6 Fish v. Thorowgood, Cro. Eliz. 623. 
 
 6 Stillwell v. Barter, 19 Wend. 487. 
 
 7 Stillwell v. Barter, 19 Wend. 487. 
 
 8 Upsheer v. Betts, Cro. Jac. 578.
 
 336 DEFENSES. [Ch. IX. 
 
 trutli of one of them. 1 A charge in these words : " thou 
 hast played the thief with me, and hast stolen my cloth 
 and a half yard of velvet," is not justified by showing 
 that plaintiff was defendant's tailor, and that he, defend- 
 ant, delivered to plaintiff a yard and a half of velvet to 
 make defendant hose, and plaintiff made them too narrow, 
 by reason of which defendant said, " Thou hast stolen 
 part of the velvet which I delivered to you." 2 A charge 
 against an attorney, " You are a paltry lawyer, and used 
 to play on both hands, 1 ' is not justified by showing that 
 juaintiff had exhibited articles of the peace against R., 
 and had afterwards promised R. that he should not be 
 molested on account of those articles, and that notwith- 
 standing he had endeavored to prosecute R. upon those 
 articles. 3 A charge that plaintiff, an attorney, had been 
 struck off the rolls is not justified by showing that he was 
 suspended for two years. 4 A charge that plaintiff, a pub- 
 lic minister, had traitorously betrayed the secrets of his 
 own government, is not justified by the fact that the plaint- 
 iff disclosed the instructions given to him as such minister, 
 although coupled with the additional fact that he was 
 censured by his government for making such disclosures. 5 
 A charge that plaintiff, a counsellor-at-law, had offered 
 himself as witness in order to divulge the secrets of his 
 client, is not justified by the fact that in a private conver- 
 sation out of court the plaintiff disclosed a secret of his 
 client, nor by the fact that plaintiff offered himself as a 
 witness to divulge matters communicated to him by his 
 client, but which were not privileged publications in the 
 sense of publications he was privileged from disclosing 
 (§ 208). 6 A charge that plaintiff, a clergyman, had asserted 
 
 1 Powers v. Skinner, 1 "Wend. 451. 
 
 2 Johns v. Gittens, Cro. Eliz. 239 ; and see Bellingham v. Myners, Cro. Eliz. 153. 
 
 3 Rich v. Holt, Cro. Jac. 267. 
 
 4 Blake v. Stevens, 4 Fost. & F. 432. 
 
 5 Genet v. Mitchell, 1 Johns. 120. 
 
 6 Riggs v. Denniston, 3 Johns. Cas. 198.
 
 § 212.] TRUTH. 337 
 
 that the blood of Christ had nothing to do with our sal- 
 vation, more than the blood of a hog, is not justified by 
 the fact that plaintiff had denied the divinity of Christ 
 and the doctrine of the atonement; and asserted that 
 Christ was a creature, a perfect man, but there was no 
 more virtue in his blood than that of any creature. 1 So a 
 charge, " But this is not the first time the idea of false- 
 hood and M. B. (plaintiff) have been associated together 
 in the minds of many honest men," is not justified by the 
 fact that more than seven persons believed plaintiff not to 
 be a man of truth, but addicted to falsehood. 2 Charging 
 the plaintiff, a proctor, with having been suspended tliree 
 times, is not justified by the fact that he had been once 
 suspended. 3 Where the charge is of a crime committed 
 under aggravating circumstances, the aggravating circum- 
 stances must be justified ; it is not sufficient to justify as 
 to the commission of the crime. Thus where the alleged 
 libel charged that the plaintiff had been tried for murder 
 in a duel, and that " he had spent nearly the whole of the 
 night preceding the duel in practicing pistol firing," held 
 that to constitute a justification it must be shown not only 
 that the plaintiff had been tried for murder, but that he 
 spent nearly the whole of the night preceding the duel in 
 practicing pistol firing. 4 The charge against the plaintiff 
 was inter alia " he has robbed me to a serious amount" 
 The pleas were the general issue, and as to the words " he 
 has robbed me," the plaintiff had robbed defendant of a 
 loaf of bread of the value of three pence. On the trial 
 the plaintiff proved the charge, and the defendant proved 
 
 1 Skinner v. Grant, 12 Verm. 456. 
 
 2 Brooks v. Bemiss, 8 Johns. 455. 
 
 3 Clarkson v, Lawson, 6 Bing. 200, 587 ; 4 M. & P. 356, 605 ; and see Goodburne 
 v. Bowman, 9 Bing. 532; 3 M. & Sc. 69; Biddulph v. Chamberlayne, 17 Q. B. 351 ; 
 Skinner ads. Powers, 1 Wend. 451. A charge of stealing "hogs" is not justified by 
 the fact that plaintiff stole one hog. (Swan v. Rary, 3 Blackf. 298.) 
 
 4 Helsham v. Blackwood, 11 C. B. Ill ; 20 Law Jour. Rep. N. S. 187, C. P., and 
 see Churchill v. Hunt, 2 B. & Aid. 685.
 
 338 DEFENSES. [CL IX. 
 
 the stealing by plaint iff of the loaf of bread. The judge 
 directed the jury to give some damages for the words to 
 a serious amount, which were not covered by the plea. 
 The jury gave the plaintiff forty shillings damages, and 
 the court above refused to disturb the verdict. 1 The 
 charge that plaintiff had been imprisoned on a charge of 
 high treason, is not justified by the fact that plaintiff was 
 arrested on suspicion of high treason. 2 And a charge that 
 the plaintiff, a commissioner in bankruptcy, had been 
 guilty of wilful misconduct in his office, is not justified by 
 showing misconduct consistent with rectitude of intention. 3 
 Where the publication was in " the blacklist," with ruled 
 columns showing entry of judgments, held not to be justi- 
 fied merely by showing such a judgment once existed. 
 The language and mode of publication imputed the con- 
 tinuance of a judgment. 4 
 
 § 213. A justification on the ground of truth need not 
 go further than the charge, 5 and it is sufficient to justify 
 so much of the defamatory matter as is actionable, 6 or so 
 much as constitutes the sting of the charge ; it is unneces- 
 sary to repeat and justify every word of the alleged de- 
 famatory matter ; T it is sufficient if the substance of the 
 libellous charge be justified. 8 Thus, where the alleged 
 
 1 1 Starkie on Slander, 484. 
 
 2 Cooke on Defani. 116. 
 
 3 Riggs v. Denniston, 3 Johns. Cas. 198. 
 
 4 McNally v. Oldham, 16 Ir. Com. Law, 298 ; 8 Law Times, N. S. 604. 
 B Sanford v. Gaddis, 13 111. 329. 
 
 6 Clarke v. Taylor, 4 Bing. N. C. 654; and see Wilson v. Nations, 5 Yerg. 211. 
 "Where the plea justifying a libel gare no answer to particular scurrilous terms used 
 in it; held that, not containing any ground of imputation against the plaintiff distinct 
 from that which was the gist of the libel, and the truth of which was justified by the 
 plea, the plea was sufficient, and a rule to enter judgment non obstante veredicto re- 
 fused. (Morrison v. Harmer, 3 Bing. N. C. 758 ; 5 Sc. 410.) 
 
 '' Edwards v. Bell, 1 Bing. 403 ; Moore v. Terrell, 1 N. & M. 559 ; Cooper v. Lawson, 
 1 Per. <fc D. 15 ; Clark v. Taylor, 2 Bing. N. C. 654 ; Morrison v. Harmer, 3 Bing. N". C. 
 759; 5 Scott, 410; Barrows v. Carpenter, 1 Cliff. 204 ; Cook v. Tribune Asso., 5 Bl. C. 
 C. 352. See § 358, post. 
 
 8 1 Stark, on Slan. 483.
 
 § 213.] truth. 339 
 
 libel was that a serious misunderstanding had taken place 
 amongst the Independent Dissenters of M. and their pas- 
 tor, the plaintiff, in consequence of some "personal invec- 
 tive " from the pulpit by the latter, and that the matter 
 was to be taken up seriously, held, that a plea alleging 
 that the plaintiff had spoken from the pulpit of a young- 
 lady, naming her, that her conduct was a bad example, 
 and a disgrace to the school, and that she did more harm 
 than good, was a sufficient justification ; that such expres- 
 sions clearly constituted "personal invective." 1 Where 
 the charge was that the plaintiff had been guilty of forni- 
 cation, it was held sufficient as a justification to allege 
 that the plaintiff was a strumpet, as being a strumpet 
 included the offense of fornication. 2 And where the 
 charge was that in consequence of the plaintiff being in bad 
 repute in the county of O., he would not like to bring his 
 action for libel in that county, held, sufficient as a justifica- 
 tion to allege that the plaintiff had the reputation in the 
 county of O. of "a proud, captious, censorious, arbitrary, 
 dogmatical, malicious, illiberal, revengeful, and litigious 
 man, and therefore was in bad repute, and would not like 
 to bring his suit there." 3 And to a charge that a plaintiff 
 signed defendant's name to a note without his (defend- 
 ant's) permission, it was held sufficient as a justification to 
 allege that plaintiff did sign defendant's name to a note 
 without his (defendant's) permission. 4 Where the decla- 
 ration alleged that plaintiff was cashier to Q., and that 
 
 1 Edwards v. Bell, 1 Bing. 403. In an action of slander by a single woman, under 
 the act of 1808, Rev. Sts. of North Carolina, ch. 110, where the words charged were 
 "that she had lost a little one," "A. B. is a credit to her," the said A. B. being noto- 
 riously an incontinent person, and " she better be listening to the report about herself 
 losing a little one," it was held, that it was sufficient to plead that plaintiff was an 
 incontinent woman. (Snow v. Witcher, 9 Ired. 346.) But the justification should 
 extend to every part of the defamatory matter which could by itself form a substan- 
 tive ground of action. (Cooper v. Lawson, 8 Adol. <fe Ell. 751.) 
 
 2 Clark v. Munsell, 6 Mete. 373, ante in note 1 p. 244. 
 
 3 Cooper v. Greely, 1 Denio, 347. 
 
 * Creebnan v. Morley, 1 Blackf. 281.
 
 340 DEFENSES. [Ch. IX. 
 
 defendant, in a letter addressed to Q., falsely wrote and 
 published of plaintiff the words, "I conceive there is 
 nothing too base for him to be guilty of." A plea in 
 justification, that plaintiff signed and delivered to defend- 
 ant an I. O. IT., and afterwards, on having sight thereof, 
 falsely and fraudulently asserted that the signature was 
 not his ; and that the alleged libel was written and pub- 
 lished solely in reference to this transaction, was, on de- 
 murrer, held a sufficient justification, as the alleged libel 
 must be understood with reference to the subject-matter. 1 
 The defendant, a railway company, published a notice that 
 plaintiff had been convicted of an offense against its by- 
 laws, and fined a certain sum, with the alternative of three 
 weeks' inrprisonment in case of non-payment ; in fact, the 
 alternative was two weeks' imprisonment; held, that it 
 was a question for the jury whether the statement was 
 substantially true. 2 So where the charge was that the 
 plaintiff had been convicted and sentenced to a fine or 
 imprisonment with hard labor, a plea that plaintiff had 
 been convicted and sentenced to a fine or imprisonment, 
 held a sufficient justification. 3 
 
 § 214. To justify a charge of perjury on the ground of 
 truth, it must not only be alleged that the plaintiff's testi- 
 mony was false, but that it was wilful or corrupt. 4 It would 
 
 1 Tighe v. Cooper, 21 Jur. 716 ; 7 Ell. & Bl. 639. In this case, Crompton, J., said : 
 "I recollect being satisfied, early in my professional life, that I could justify calling a 
 man ' a rugged Russian bear,' by showing that his manners were rough." The plea 
 must justify according to the sense given by the plaintiff. (Fidler v. Delavan, 20 
 Wend. 57.) If the justification does not cover the whole defamation, the plaintiff is 
 entitled to damages for the part not justified. (Cooban v. Holt, cited 2 Stark. Ev. 
 643, note 2.) 
 
 2 Alexander v. N. E. R'way Co., 11 Jur. N. S. 619. 
 
 3 Gwynn v. So. E'ern R'way, 18 Law Times, N. S. 738. 
 
 4 Mitchell v. Borden, 8 Wend. 570; Clark v. Dibble, 16 Wend. 601 ; Gage v. Rob- 
 inson, 12 Ohio, 250; Bissell v. Cornell, 24 Wend. 354; Gorton v. Keeler, 51 Barb. 
 475.
 
 § 215.] BELIEF. 341 
 
 be no justification of such a charge to allege that the false 
 testimony was given by mistake. 1 
 
 § 215. A justification on the ground of truth must 
 justify in the sense imputed by the innuendo. 2 For the 
 reason that the plea admits the innuendo. 3 Thus, where 
 the plaintiff, an apothecary, was charged with administer- 
 ing medicine to a child, with an innuendo that he had 
 feloniously killed the child, a plea that the plaintiff did 
 injudiciously, indiscreetly and improperly, and contrary to 
 his duty, administer medicine to the child, and that the 
 death of the child was caused or accelerated by the said 
 medicine, was held bad on demurrer, as confessing without 
 justifying the innuendo. 4 But where the language is action- 
 able independently of the meaning imputed by the innu- 
 endo, there the innuendo need not be justified, as where 
 the charge was that plaintiff was tried at petty sessions 
 for traveling on a railway without first paying his fare, 
 and convicted in a penalty and costs, and there was an 
 innuendo that the plaintiff had attempted to defraud the 
 company ; a plea that plaintiff was so convicted, without 
 attempting to justify the innuendo, was held sufficient. The 
 whole gist of the charge was justified. 5 
 
 1 Fero v. Ruscoe, 4 N. Y. 162 ; Torrey v. Field, 10 Verm. 353 ; The State v. Burn- 
 ham, 9 N. namp. 34 ; Jenkins v. Cockerham, 1 Ired. 309. It is not a justification of 
 a charge of false swearing that the defendant had good reason for publishing the 
 words, and made the publication from good motives and justifiable ends. (Thompson 
 v. Bowers, 1 Doug. 321.) 
 
 2 Mitchell v. Borden, 8 Wend. 570; Clarke v. Dibble, 16 Wend. 601; Gage v . 
 Robinson, 12 Ohio, 250; Clarke v. Taylor, 2 Bing. N. C. 654. 
 
 3 Fidler v. Delavan, 20 Wend. 67. 
 
 4 Edsall v. Russell, 2 Dowl. N. S. 641 ; 5 Sc. N. S. 801. Where an intent is 
 charged, it must be justified. (Gage v. Robinson, 12 Ohio, 250; Riggs v. Denniston, 
 3 Johns. Cas. 198.) "If the defendant justify specially it will not be necessary for 
 him in his plea to deny the innuendoes and epithets contained in the declaration, for if 
 the fact be justified ( Astley v. Younge, 2 Burr. 807), the motive, intention, and manner 
 are immaterial" as regards the plea. (1 Stark, on Sland. 476); and see next note, infra. 
 
 6 Biggs v. G't East. R'way, 18 Law Times, N. S. 482.
 
 342 DEFENSES. [Ch. IX. 
 
 § 210. Although the truth of the defamatory matter is 
 admitted as a defense, a mere belief in the truth of the 
 matter published, however honestly that belief may be 
 entertained, will not of itself constitute any defense^ 
 Belief or disbelief in the truth of the matter published 
 can be material only upon an inquiry into the intent with 
 which a publication is made (§ 90). 
 
 § 217. Legislative proceedings are privileged. It is 
 obviously necessary to the efficient discharge of the duties 
 of a legislator, that in the performance of those duties he 
 should be allowed unlimited license of speech, and be un- 
 fettered with any apprehension of being made responsible 
 for the consequences of any utterances he may deem it fit- 
 
 1 However honestly the party who publishes a libel believes it to be true, if it is 
 untrue iu fact, the law implies malice, unless the occasion justifies the act ; and 
 whether the occasion justifies the act, is a question of law. (Darby v. Ouseley, 1 
 Hurl. & N. 1 ; Holt v. Parsons, 23 Texas, 9.) A bona fide belief in the truth of the 
 alleged libel is no defense. (Campbell v. Spottiswoode, 3 Best <fe Smith, 769 ; 8 Law 
 Times Rep. N. S. 201 ; and see Moore v. Stevenson, 27 Conn. 14 ; Woodruff v. Rich- 
 ardson, 20 Conn. 238; Fry v. Bennett, 3 Bosw. 200; Smart v. Blanchard, 42 X. 
 Hamp. 137; Kerr v. Force, 3 Cr. C. C 8; Watson v. Moore, 2 Cush. 133 ; HotchMsa 
 v.Porter, 30 Conn. 314; Gilmer v. Ewbank, 13 111. 271; Duncan v. Brown, 15 B. 
 Monr. 186 ; Grimes v. Coyle, 6 B. Monr. 301.) But belief in the truth may be shown 
 in mitigation (Huson v. Dale, 19 Mich. 35 ; approving Farr v. Rusco, 9 Mich. 353 ; 
 and overruling Thompson v. Bowers, 1 Douglas, 321.) Defendant cannot show that 
 it was generally admitted for many years that the plaintiff was guilty of the crime 
 charged. (Long v. Brougher, 5 Watts, 439); or that plaintiff was reported by her 
 own sister to be guilty of the offense imputed. (Smith v. Buckecker, 4 Rawle, 295.) 
 No suspicion, however strong, will amount to a justification. (Powell v. Plunkett j 
 Cro. Car. 52; Moyer v. Pine, 4 Mich. 409.) Common fame is no ground for justifying 
 an extra judicial charge. (Hutt. 13; Bridg. 62; Brownlow, 2.) A defendant cannot 
 justify a charge of theft by showing that he has just grounds for believing the plain- 
 tiff to be a very dishonest man. (Woodruff v. Richardson, 20 Conn. 238.) The pub- 
 lication in a newspaper of rumors is not justified, but may be mitigated, by the fact 
 that such rumors existed. (Skinner ads. Powers, 1 Wend. 451, § 411, post.) In mit- 
 igation of damages, in an action for a libel, the defendant was allowed, under the 
 general issue, to show that he copied the statement from another newspaper; but was 
 not allowed to show that it appeared concurrently in several other newspapers. 
 (Saunders v. Mills, 6 Bing. 213; 3 M. & P. 520.) In an action for a libel in the de- 
 fendant's newspaper, held that he could not show that it was copied from another 
 paper, against the proprietor of which damages had been recovered, but he might 
 show that he had omitted many of its parts reflecting on the plaintiff. (Creevy v. 
 Carr, 7 C. <fe P. 64.) See ante, note 3, p. 322.
 
 §217.] BELIEF. 343 
 
 ting and necessary to make in his official capacity ; accord- 
 ingly we find it everywhere wisely provided that for what 
 a legislator says as a legislator, and within the legislative 
 chamber, he can never be challenged in any tribunal other 
 than the body of which he is a member. This immunity, 
 enjoyed by the members of the British Parliament in vir- 
 tue of custom and statutes, is guaranteed to members of 
 Congress by the Federal Constitution, and to members of 
 the State legislatures by State constitutions and statutes. 1 
 The proceedings of the English Parliament are in theory 
 conducted with closed doors, and although in fact report- 
 ers and others are usually present during the debates, yet 
 persons so present are supposed to be concealed, and the 
 fact of their presence to be unknown to the House. All 
 persons not members are liable to be expelled on a mem- 
 ber or the clerk of the House rising and stating, "Mr. 
 Speaker, there are strangers present." This intimation is 
 always made prior to a division, and all persons not mem- 
 bers, nor officers of the House, without exception, retire. 
 It is a part of the same theory which forbids the publica- 
 tion, unless by order of the House, of any of its proceed- 
 ings, and which makes any publication of its proceedings 
 without such order a criminal contempt. 2 Congress has 
 
 1 2 Hume's Hist, of England, 280 ; Statutes, 4 Hen. VIII ; 1 W. & M. st. 2, ch. 2. 
 Members of the House of Lords, as such, cannot be guilty of a conspiracy to libel. 
 (Ex-parte Wason, Law Rep. IV, Q. B. 573.) The constitution of New York (Const, of 
 1846, Art. Ill, § 12) enacts, " For any speech or debate in either house of the legis- 
 lature, the members shall not be questioned in any other place." This provision is 
 repeated in exactly the same words. (1 Rev. Stat, of New York, 154, §11.) 
 
 A member of the legislature is not liable to an action of slander for words spoken 
 in the discharge of his official duties, even though spoken maliciously. (Coffin v. 
 Coffin, 4 Mass. 1, 31. But see Commonwealth v. Blanding, 3 Pick. 310, 314.) But 
 this privilege is not extended to words spoken unofficially, though in the legislative 
 hall, and while the legislature is in session. (Coffin v. Coffin, 4 Ma;s. 1.) Thus where 
 one member informally communicated to another, within the representatives' hall, 
 and while the house was in session, that the statement which he had just made to the 
 house upon some question lately under consideration, and likely again to be acted 
 upon, was founded upon misrepresentation, and that his informant was a person not to 
 be believed, using some slanderous expression in regard to the informant, it was held, 
 that the slander was not privileged by the place or occasion, (lb.) 
 
 8 "When Sir Bartholomew Shower published his collection of decisions in the House
 
 344 DEFENSES. [CL IX. 
 
 never asserted, at least as directly as the British Parlia- 
 ment, the right to sit with closed doors, or to control the 
 publication of its proceedings. The twelfth rule of the 
 House of Representatives provides for clearing the galle- 
 ries in cases of disorderly conduct, and the fourteenth rule 
 provides for the admission, by the Speaker, of stenograph- 
 ers wishing to take down the debates. 1 The immunity 
 accorded to speech in legislative assemblies extends to any 
 record such assemblies may make of their proceedings, and 
 to all documents read in such assemblies ; it extends also 
 to all petitions or addresses presented to the legislature, 
 and to such a prior publication of any such documents as 
 may be necessary to their preparation and completeness. 2 
 
 of Lords, still cited as " Shower's Parliamentary Cases," the publication wa3 voted to 
 be a breach of privilege, and the House of Lords resolved : " That it is a breach of 
 privilege of this house for any person whatsoever to print or publish in print, any- 
 thing relating to the proceedings of this house, without the leave of this house." 
 Lord Hardwicke, in 1762, threatened to put this resolution in force against Sir 
 Michael Foster, for introducing, without leave, into his treatise on Common Law, some 
 decisions of the House of Lords. So, too, it was a standing order of the House of 
 Lords, until rescinded on the motion of Lord Campbell, to enable him with safety to 
 publish his Lives of the Lord Chancellors, " that no one presume to publish the lives 
 of any lords, spiritual or temporal, deceased, without the permission of their heirs or 
 executors." (VI Camp. Lives Chanc. 221.) 
 
 1 The constitution of the State of New York of 1111, § 15, enacted that: The 
 doors both of the Senate and Assembly shall at all times be kept open to all persons, 
 except when the welfare of the State shall require their debates to be kept secret. 
 * * This provision was repeated in the constitution of 1823, Art. 1, § 4, but not in 
 the constitution of 1846. The Revised Statutes of New York (1 R. S. 153, § 4) pro- 
 vide : The doors of each house are to be kept open, except when the public welfare 
 shall require secresy. The Constitution of the. United States, Art. I, § 5, subd. 3, 
 provides : That each house (of the legislature) shall keep a journal of its proceedings, 
 and, from time to time, publish the same, excepting such parts as may in their judg- 
 ment require secresy. The constitutions of New York of 1777, § 35, and of 1823, 
 Art. I, § 4, required both branches of the State legislature to keep a journal of their 
 proceedings, and to publish the same; and the Revised Statutes of New York (1 R. 
 S. 153, § 3) enact: Each house is required to keep a journal of its proceedings, and 
 to publish the same, except such part as may, in its judgment, require secresy. 
 
 2 Where a petition to Parliament, containing defamatory matter, was referred to 
 a committee, held that no action would lie for printing and distributing a number of 
 copies for the use of the members. (Lake v. King, 1 Mod. 58; 1 W. Saund. 131 b.) 
 See post, note 2 p. 351. The English House of Commons resolved that it was a breach 
 of the privilege of that house to sue at law for a libel, supposed to be contained in a 
 petition to that body. See 1 Salk. 19; 3 Salt 17; Holt, 524.
 
 §§ 218-19.] LEGISLATIVE PROCEEDINGS. 345. 
 
 § 218. The immunity which is accorded to a legislator 
 while in the performance of his duties, does not extend so 
 far as to justify his repeating, not in his official capacity, 
 any defamatory matter he may have written or spoken 
 while in the discharge of his duties ; and therefore for any 
 repetition by a legislator outside of the legislative cham- 
 ber of what he may have spoken within it, he is liable in 
 like manner as any other individual. 1 
 
 § 219. The English Parliament, as does Congress and 
 our State legislatures, print for the use of their members re- 
 ports of their proceedings in the bodies of their Houses 
 and in their committees, and these are privileged. The 
 English Parliament also print additional copies for sale to 
 the public. These additional copies are printed by the 
 printer to the Parliament Houses, at the public expense, 
 and sold by such printer, the proceeds of the sales being 
 returned to the public treasury. The publication, in this 
 manner, of additional copies of reports to the House of 
 Commons was held by the Court of Queen's Bench not to 
 be privileged, and where such a report so printed and 
 sold contained defamatory matter, the printer and pub- 
 
 1 The defendant, in a speech in the House of Lords, accused the prosecutor (an 
 attorney) of improper conduct in his profession. This speech the defendant after- 
 wards printed in several newspapers. For this publicatiou an information was filed 
 against the defendant, and he was convicted, the publication being held not to be 
 privileged. Lord Kenyon said " That a member of Parliament had certainly a right 
 to publish his speech, but that speech should not be made a vehicle of slander 
 against any individual; if it was, it was a libel." (Rex v. Lord Abinger, 1 Esp. 226 ; 
 Peake Cas. 310.) In Rex v. Creevy, 1 Mau. & S. 278, the defendant, a member of 
 the House of Commons, had made a speech in his place in Parliament containing a 
 charge against an individual. An incorrect report of this speech having been pub- 
 lished, the defendant procured the publication of a correct version of his speech; this 
 publication was held not to be privileged. Semble, a bona fide publication by a mem- 
 ber of the House of Commons to his constituents, of a speech delivered by him in his 
 place in Parliament, is privileged. (Davison v. Duncan, 7 Ell. & Bl. 229; ." L'd 
 Campbell's Lives of the Chief Justices, 167.) Home Tooke applied for a criminal in- 
 formation against a bookseller for publishing a copy of a report made by a committee 
 of the House of Commons. The rule was discharged, partly because the report did 
 not appear to bear the meaning imputed to it, and partly because the court doubted 
 its right to interfere. (Rex v. Wright, 8 Term Rep. 293.)
 
 346 DEFENSES. [Ch. IX. 
 
 lislier were held to be liable therefor in an action for libel. 1 
 In consequence of that decision a statute was passed legal- 
 izing the publication by the orders of the Parliament 
 Houses of such reports, papers, votes, or proceedings, as 
 either house should deem necessary. 2 In the State of New 
 York, the publication in a newspaper of legislative pro- 
 ceedings .and debates is, by statute, conditionally privi- 
 leged. 3 Until quite recently, it was generally supposed 
 that the publication of defamatory matter in a report of 
 the proceedings in Parliament was not justifiable on the 
 ground of its being a fair report, but from the decision in 
 Wason v. Walter, it seems that such a publication is justi- 
 fied by the fairness of the report. 4 
 
 1 In Stockdale v. Hansard, 9 Adol. & El. 1 ; 2 M. & Rob. 9 ; 3 Per. & D. 330 ; 7 
 Car. & P. 731, it was held to be no defense, in an action for libel, that tbe defamatory 
 matter was contained in a report of parliamentary proceedings and was published by 
 order of the House of Commons. As to this case see May's Law and Practice in 
 Parliament, 156, and Report to the House of Commons of a Select Committee on the 
 Publication of Printed Papers, May, 1837, with an Appendix of the orders and pro- 
 ceedings of the two Houses of Parliament relating to the publication of Parliamentary 
 Reports and papers and review of the legal authorities upon the jurisdiction of Par- 
 liament on matters of privilege. 
 
 a 3 and 4 Vict. ch. 9. Defendant may, under the general issue, prove an order to 
 publish, and the absence of malice, which entitles him to a verdict. 
 
 3 Laws of New York, 1854, ch. 130. See post, Freedom of the Press, § 252, and 
 note to § 229. 
 
 4 Lord Campbell: " I think it should be declared and enacted that a fair and faith- 
 ful report of proceedings in either House of Parliament, from which strangers are not 
 excluded, is justifiable, and cannot be made the subject of any action or prosecution." 
 Lord Denman : " I cannot help entertaining a strong opinion that no faithful report 
 of a debate ought to expose the publisher to an action or to a criminal proceeding. 
 As the law now stands, the fact of the report being a faithful one is nothing like a 
 justification, but it ought to be." (Report from Committee of House of Lords on the 
 Law of Defamation and Libel, July, 1843.) 
 
 In the case of Wason v. Walter, reported in the London Times of 19th, 20th, and 
 21st December, 1867. The plaintiff, a member of the bar, sent a petition to Earl 
 Russell for presentation to the House of Lords, praying an inquiry into a complaint 
 he alleged against the Lord Chief Baron of the Court of Exchequer. In the debate 
 on the presentation of this petition, the friends of the Lord Chief Baron cast imputa- 
 tions upon the plaintiff. A report of this debate, and a leading article in reference 
 thereto, appeared in the London Times, of which the defendant was the proprietor. 
 For the publication of this report and leading article the action was brought. The 
 defenses were, that the report was a true report, and that the leading article was a
 
 § 220.] JUDICIAL PROCEEDINGS. 347 
 
 § 220. Defamatory matter published in or to a court 
 of criminal jurisdiction may constitute the wrong called 
 "malicious prosecution" 1 but never, it would seem, the 
 wrong called slander or libel. Thus, where a defendant 
 went before a justice of the peace, and demanded a war- 
 rant against the plaintiff for stealing his ropes, the justice 
 said, " Be advised, and look what you do," and the defend- 
 ant replied, " I will charge him with flat felony, for steal- 
 ing my ropes from my shop ; " in an action of slander for 
 speaking these words, the court agreed that the words 
 being spoken to a justice of the peace, on an application 
 for a warrant which was lawful, would not support an 
 
 just and fair comment upon the proceedings in the debate. It was admitted that the 
 matter was defamatory in its character, and the only questions were, (1) Was it a de- 
 fense to say the matter was a correct report of a proceeding in Parliament? and (2) 
 Was it the subject of criticism? The Lord Chief Justice charged the jury: The re- 
 port being faithful and correct, " I am prepared to direct you, in point of law, that 
 the report is a privileged communication, and one which is not the subject-matter of 
 an action." And after stating that the question was then for the first time directly 
 presented for adjudication, and that some dicta supported his ruling, he added : " The 
 cases have not hitherto gone the length of establishing the law I am now layino- 
 down, but I find nothing which to my mind satisfactorily contradicts the position I 
 adopt." And again : " There may be dicta which may possibly have a different 
 tendency, but, I think, with the larger and more enlightened views relative to the 
 law of libel which have gradually developed themselves in our day, the time has 
 come when the proposition I have put, ought to be affirmatively announced." As to 
 the second point, the charge was : "lam of opinion that the debate in the House of 
 Lords upon the plaintiffs petition was a matter of public interest and concern upon 
 which a public writer was perfectly justified in making such comments as the circum- 
 stances warranted." The plaintiff tendered a bill of exceptions to this charge. The 
 jury gave a verdict for the defendant. A motion for a new trial was denied. (Law 
 Rep. IV, Q. B. 73.) The Lord Chief Justice has shown by his charges in all the 
 cases of libel tried before him, that he favors the greatest latitude of newspaper 
 criticism. For his views on the right of criticism, reference may be had, in addition 
 to the above case, to the case of Dr. Hunter v. The Publisher of the Pall Mall Gazette, 
 printed in pamphlet farm, and in the Pall Mall Gazette of Nov. 27, 28, 29, 30, Dec. 1, 
 3, 18G6. Same case Hunter v. Sharp, 15 Law Times, N. S. 421 ; 4 Fost. & F. 983. 
 
 1 It is " malicious prosecution," and not what we term " slander or libel," which 
 corresponds to " calumny" in the civil law. In the Roman law, calumny signified an 
 nnjust prosecution or defense of a suit, and a calumniator was one who unjustly ac- 
 cused others in a court of law. See Domat's Civil Law, B'k III, tit. 5, § 2, div. 14, 
 note, edit, by Stralian. Calumny is still employed in this sense in the courts of Scot- 
 land, and in the ecclesiastical and admiralty courts of England. See Dunlap's Adtn. 
 Pra. 291, and post, note to § 221.
 
 348 DEFEASES. [Ch. IX. 
 
 action, for if they would, no other would come to a justice 
 of the peace to inform him of a felony. 1 Every one hav- 
 ing reasonable and probable grounds for suspecting that a 
 crime has been committed, has the right to communicate 
 his suspicions to the magistrate having jurisdiction of 
 criminal offenses. 2 The existence of reasonable and prob- 
 able ground for the suspicion is absolutely necessary to 
 create this right; a communication made without these 
 grounds is inexcusable, and is a malicious prosecution, for 
 which, however, no remedy can be had in an action for 
 slander or libel. This results from the rules of pleading 
 and the classification of actions into several different forms 
 (§ 53) or causes of action, and operates even in those 
 States where it has been expressly enacted that all forms 
 of action are abolished. 3 
 
 § 221. The right of appealing to the civil tribunals is 
 more extensive than the right of appealing to the criminal 
 tribunals ; for, as to the former, every one has the right, 
 with or without reasonable cause for so doing, to prefer 
 his complaint to them ; i and whatever he may allege in 
 
 1 Ram v. Larnley, Hutt. 113. An action of slander does not lie for a charge of a 
 criminal offense made to a magistrate upon which a warrant issues, although the ac- 
 cused be discharged after examination. (Schock v. McChesney, 2 P. A. Browne's R. 
 6, App; Cohen v. Morgan, 6 D. & R. 8 ; 2 Stark. Sland. 72, note t.) And see post, note 
 to § 221. 
 
 2 Lester v. Ferryman, Law Rep. v, Ex. 365, reversing s. c. Law Rep. iii, Ex. 197. 
 
 3 This result is brought about as thus: If the plaintiff shows on the face of his 
 (declaration) complaint that the publication was made to a court of criminal jurisdiction, 
 he does not show a cause of action unless he alleges inter alia that the publication was 
 made without reasonable or probable cause. But if the (declaration) complaint does 
 not disclose that the publication was made to a court of criminal jurisdiction, then it 
 would be a complete defense that the publication was made to a court of criminal 
 jurisdiction ; which defense could not be avoided by replying or proving on the trial 
 that the publication was without reasonable or probable cause, as that would be in the 
 one case a departure, in the other a varianee. See Torrey v. Field, 10 Verm. 353. 
 
 4 "No punishment was ever nppointed for a suit in law, however it be false and 
 for vexation." (6 RobiDson's Prac. 897, citing numerous authorities.) But in Churchill 
 v. Siggers (3 El. <fe Bl. 929), it is said: " One man has a right to sue another, but if 
 one sue another with malice and without reasonable cause, it is a wrong." And see
 
 § 221.] JUDICIAL PROCEEDINGS. 349 
 
 his pleading as or in connection with his grounds of com- 
 plaint can never give a right of action for slander or libel. 
 The immunity thus enjoyed by a party complaining ex- 
 tends also to a party defending ; whatever one may allege 
 in his pleading by way of defense to the charge brought 
 against him or by way of counter-charge, counter-claim, or 
 set-off. can never sive a rio'ht of action for slander or libel. 
 The rule as thus laid down has been doubted by some, 
 and it has been said that if the tribunal to which the com- 
 plaint be made has no jurisdiction of the subject-matter, 
 or if the defamatory matter be irrelevant to the matter in 
 hand, or if the party complaining or defending maliciously 
 inserts defamatory matter in his pleading, that in such 
 cases the party aggrieved may maintain his action for 
 slander or libel. 1 Notwithstanding the dicta to the con- 
 
 Wren v. Weild, Law Rep. iv, 736 Q. B. ; Collins v. Cave, 4 H & K 225 ; 6 Id. 131 ; 
 Walker v. Goe, 3H.AN. 395; 4 Id. 351. Inducing a pauper to bring an unfounded 
 suit, actionable. (Pecbell v. Watson, S M. & W. 691, cited 6H.&N, 133.) 
 
 1 " Words that might otherwise import a slander, being necessarily used in a judi- 
 cial procedure, cannot subject the party to any censure or penalty, either in respect 
 to parties, objections to 'witnesses, or challenges to jurymen, that being understood as 
 done in vindication of one's right; but yet, if things that are injurious, quite foreign 
 to the cause, be charged in the libel" («". e., the summons or declaration), "such pur- 
 suer shall suffer as a slanderer; for the cover of a judicial procedure cannot protect 
 him, since the design of injuring is evident, and the more public and solemn it is, the 
 injury is so much the more heinous." (Borthwick on Libel, 215, n.) See Rex v. 
 Salisbury, 1 L'd Raym. 341. If he (a party appealing to a court of competent juris- 
 diction) approaches the council with other than pure views; if under the mask of 
 vindicating his violated rights, seeking a redress for injuries, or removing a public 
 grievance, he calumniates the man against whom he prefers his complaint, I can dis- 
 cover no legal or even plausible ground to shield him from answering as a libeller; 
 and the opinion of the court from 4 Co. 14, in the case of Buckley v. Wood, I consider 
 as very apposite to this case. It is dictated by sound principles of law and solid sense. 
 (The Chancellor in Thorn v. Blanchard, 5 Johns. 525.) No action of slander or libel 
 lies for defamatory matter in a pleading (Vin. Abr. Act. for Words, C, a. 19; Dawliug 
 v. Wenman, 2 Show. 446; s. c. Dawling v. Venman, 3 Mod. 108 ; Cox v. Smith, 1 Lev. 
 119; Brown v. Michel, Cro. Eliz. 500; Hoar v. Wood, 3 Mete. 193; Gosslin v. Cannon, 
 1 Harrington, 3; Briggs v. Byrd, 12 Ired. 377 ; Shelford v. Gooding, 2 Jones, N. Car. 
 175; Lea v. White, 4 Sneed, 111), as in a bill in equity (Forbes v. Johnson, 11 B. 
 Monr. 48), or a writ or declaration (Hardin v. Cumstock, 2 A. K. Marsh. 480), although 
 the charge be groundless. (Hill v. Miles, 9 N. Ilamp. 9.) Where one addresses a 
 complaint to persons competent to redress the grievance complained of, no action 
 will lie against him, whether his statement be true or false, or his motives innocent 
 or malicious. (Thorn v. Blanchard, 5 Johns. 508.) And it is at least doubtful whether
 
 350 DEFENSES. [Ch. IX. 
 
 fcrary, we believe tlie better and the prevailing opinion to 
 be, that for any defamatory matter contained in a pleading 
 
 a want of jurisdiction in the court to which a complaint may be exhibited will make 
 it a libel, because the mistake of the court is not imputable to the party but to his 
 counsel. {Id. ; Lake v. King, 1 W. Saund. 132 ; Hawk. PL Cr. 73, § 8 ; contra, Buck- 
 ley v. Wood, 4 Co. 14.) That was the case of a bill in the Star Chamber ; as to part 
 of the matter the court had, and as to part had not jurisdiction ; the latter being 
 defamatory, held to be actionable. So no action lies for words spoken on giving a 
 party in charge to a constable, or in preferring a complaint to a magistrate. (John- 
 son v. Evans, 3 Esp. 32.) But the privilege is confined strictly to communications 
 which are necessar}' for obtaining redress or forwarding the ends of justice. Thus, 
 where A. obtained a warrant to search the house of B. for goods suspected to be 
 stolen, and in accompanying the officer to execute the warrant told the officer that B. 
 had robbed him, held that this statement was not privileged. (Dancaster v. Hewson, 
 2 Man. & R. 176.) See Lathrop v. Hyde, 25 Wend. 448, where, under a similar state 
 of circumstances, the action was held maintainable, the jury finding express malice. 
 And where the defendant, before making any complaint to a magistrate, made a charge 
 against the plaintiff to C, a constable, adding that he should require C. to serve the 
 warrant on the plaintiff, held this was not a privileged communication ; and where, 
 after the plaintiff had been acquitted before the justice, the defendant repeated the 
 charge against the plaintiff, held this was not a privileged communication. (Burlin- 
 game v. Burlingame, 8 Cow. 141.) Whatever may be said or written by a party to a 
 judicial proceeding, or by his attorney, solicitor, or counsel therein, if pertinent and 
 material to the matter in controversy, is privileged, and lays no foundation for a 
 private or public prosecution. The protection is absolute, and no one shall be per- 
 mitted to allege that it was said or written with malice. But if a party or his agent 
 pass beyond the prescribed limit to asperse or vilify another, he is without protec- 
 tion, and must abide the consequences. As where a person acting as counsel in a 
 justice's court prepared and presented a declaration, charging the defendant with a 
 trespass, and alleging that the defendant was " reputed to be fond of sheep," " in the 
 habit of biting sheep," and that " if guilty, he ought to be shot ; " held, that an indict- 
 ment therefor as a libel, alleging malice, was good. (Gilbert v. The People, 1 Denio, 
 41.) If a party institute proceedings in a court of justice as a pretense, and merely 
 to promulgate slander, or to serve any other improper purposes, an action may be 
 maintained for any libellous matter contained in it. (Hill v. Miles, 9 N. Hamp. 9.) 
 Where words accusing the plaintiff of felony were spoken to a justice, on an applica- 
 tion for a warrant for felony, the question whether they are actionable or not depends 
 upon the question whether they were made in good faith or not, and that question should 
 be left to the jury. (Bunton v. Worley, 4 Bibb, 38 ; and see Marshall v. Gunter, 6 Rich. 
 419; Briggsw. Byrd, 12 Ired. 377.) A letter addressed to a judge before whom a 
 proceeding is pending, being an irregular and improper proceeding, is not privileged. 
 (Gould v. Hulme, 3 C. <fe P. 625.) For such a letter the writer may be punished as for a 
 contempt. (Ex-parteTslacG'ill, 2 FowL 474; Eagleton v. Duchess of Kingston, 8 Ves. 467.) 
 An affidavit made before a magistrate to enforce the law against a person accused there- 
 in of a crime, does not subject the accuser to an action for libel, though the affidavit be 
 false and insufficient to effect its object. (Hartsock v. Reddick, 6 Blackf. 255.) Under 
 statute 5 & 6 Vict. c. 109, the vestry, on precept from the justices, are to return a list 
 of parishioners liable to serve as constables, and to give notice when and where objec- 
 tions will be heard by the justices, who are empowered to strike out of the list the
 
 § 221. J JUDICIAL PROCEEDINGS. 351 
 
 in a court of civil jurisdiction, no action for libel can be 
 maintained ; the power j:>ossessed by courts to strike out 
 scandalous matter from the proceedings before them, 1 and 
 to punish as for a contempt, is considered a sufficient guar- 
 antee against the abuse of this privilege ; 2 but whatever 
 may be the reason, it seems certain that where there is a 
 perversion of the right, " the policy of the law steps in 
 and controls the individual right of redress " by action of 
 libel. 3 
 
 names of persons not liable to serve. Plaintiffs name was inserted in the list of per- 
 sons liable to serve, and he attended a session to be sworn in, when the defendant, a 
 parishioner, objected to him, and made a statement to the justices, in the presence of 
 other persons, imputing perjury to plaintiff. In an action for slander, the jury found 
 that defendant made the statement bona fide, believing- it to be true. Held, that the 
 statement was properly made before the justices, and was a privileged communica- 
 tion. (Kershaw v. Bailey, 1 Exch. 743 ; 17 Law Jour. 11. 129, Ex.) And see 10 Law 
 Times, 289 : and ante, note 1, p. 348 ; and post, § 222. 
 
 1 King v. Sea Ins. Co., 26 Wend. 62; Powell v. Kane, 5 Paige, 265, affirming 2 
 Edw. Ch. 450; Somers v. Torrey, 5 Paige, 54 ; Downing v. Marshall, 37 N. Y. 382. 
 
 2 Henderson v. Broomhead, 4 Hurl. & N. 577; Astley v. Younge, 2 Burr. 807. 
 The action of slander does not lie for a criminal charge made by an affidavit before 
 a magistrate, the plaintiff's remedy being by an action for malicious prosecution 
 or arrest, or for maliciously suing out a search-warrant. (Sanders v. Rollinson, 2 
 Strobh. 447.) No proceeding according to the regular course of justice, will make a 
 complaint or other proceeding amount to a libel for which an action can be main- 
 tained; and a distress-warrant is a proceeding given to the party by law, for the 
 purpose of enforcing a legal right, and comes directly within the reason of the rule. 
 (Bailey v. Dean, 5 Barb. 297.) When a requisition is presented for the arrest of a 
 fugitive from justice, with the proper vouchers, according to the act of Congress, it is 
 the duty of the executive to cause the fugitive to be arrested and delivered to the 
 agent appointed to receive him, and the governor has no power to entertain an appli- 
 cation to recall or modify such warrant, and an affidavit to support such an applica- 
 tion is not a privileged communication. (Hosmer v. Loveland, 19 Barb. 111.) A 
 complaint to the grand jury, containing a charge of perjury, is privileged, although 
 before its presentation it was exhibited to various persons, by whom it Avas signed. 
 (Kidder v. Parkhurst, 3 Allen (Mass.), 393. See Lake v. King, 1 Mod. 58 ; Vauder- 
 zee v. McGregor, 12 Wend. 545; Sands v. Robison, 12 S. & M. 704.) In King v. 
 Townsend, (12 Law Rep. 126; Appendix, post), which was an action for libel con- 
 tained in an affidavit voluntarily made by the defendant before a magistrate — the 
 report does not state under what circumstances — Abbott, Ch. J., said: "This action 
 is maintainable. This affidavit is not a judicial proceeding, for it ia the mere volun- 
 tary affidavit of the defendant, and if such an affidavit were to be considered as a 
 judicial proceeding, and therefore privileged, it would afford a very easy recipe for a 
 libeller to traduce the characters of the most innocent persons." See n. 2, p. 352, post. 
 
 3 Thorn v. Blanchard, 5 Johns. 530.
 
 352 DEFENSES. [CL IX. 
 
 § 222. The protection which is accorded to a pleading 
 extends to every other proceeding in a civil action, 1 and 
 therefore for anything contained in an affidavit made in 
 the course of an action or proceeding, no action for libel 
 can be maintained. Thus, where an attorney sued his 
 client for professional services, the client gave notice, 
 under the general issue, that he would prove that the 
 attorney conducted the prosecution and defense of the 
 several suits, and attended to the other professional busi- 
 ness in the declaration mentioned, in so careless, unskill- 
 ful, and improper a manner, as to render such service of 
 no value ; the attorney moved to strike out the notice as 
 false ; the client resisted this motion upon an affidavit of 
 his own, stating that the attorney had revealed confiden- 
 tial communications of the client relative to a portion of 
 the business to a third person, to the client's prejudice. 
 For the allegations in this affidavit the attorney brought 
 an action of libel against the client, and in his declaration 
 set out the facts to the effect stated above, and charged 
 that the allegations of the affidavit were false, malicious, 
 and impertinent, a demurrer to the declaration was sus- 
 tained, and it was held that the affidavit was pertinent to 
 the motion, and the truth or falsity could not be ques- 
 tioned in an action for libel. 2 
 
 1 An attorney's bill of costs, although delivered under a judge's order is not a legal 
 proceeding, and is not within the above rule. The plaintiff having obtained an order 
 for defendant, his late attorney, to deliver a bill of costs, defendant delivered a bill 
 headed, " Relative to your defalcations," which phrase was repeated in several parts 
 of the bill. In an action of libel for this statement, it was claimed that the bill, hav- 
 ing been delivered under a judge's order, was a legal proceeding, and privileged, but 
 it was ruled otherwise, and plaintiff had a verdict. (Bruton v. Downes, 1 Fost. & F. 
 668.) 
 
 2 Garr v. Selden, 4 N. Y. 91, rev'g 6 Barb. 416. In Doyle v. O'Doherty, 1 Carr. 
 & M. 418, it was held that in an affidavit in answer to the application of the plaintiff 
 for a criminal information against the defendant for sending a challenge, the defend- 
 ant was justified in stating any matters, however defamatory and otherwise libellous 
 to prevent the court making the rule absolute, and that no action could be sustained 
 for anything contained in such an affidavit. 
 
 A., in opposing a motion for an injunction against him, contradicted a material
 
 § 223.] witness. 353 
 
 § 223. The due administration of justice requires that 
 a witness should speak, according to his belief, the truth, 
 the whole truth, and nothing but the truth, without re- 
 gard to consequences, and he is encouraged to do this by 
 the consciousness that, except for any willfully false state- 
 ment of a material fact, which is perjury, no matter that 
 his testimony may in fact be untrue, or that loss ensues by 
 reason of his testimony, no action of slander can be main- 
 tained against him for any statement made as a witness. 1 
 But the act of testifying as a witness must be either in 
 the exercise of a right or the performance of a duty, and 
 in either case the act must be performed in good faith 
 (§ 40), or it will be wrongful. If, therefore, one avails 
 himself of the occasion of his position as a witness " to 
 maliciously answer the questions put to him," in bad faith, 
 and with a knowledge that his answer is not pertinent or 
 relevant, then the law withdraws the protection it would 
 
 fact in the moving affidavit of W., and swore that W. knew its falsity, and had been 
 guilty of perjury ; held, that an action for libel could not be maintained by W. for the 
 allegation in A.'s affidavit. (Warner v. Paine, 2 Sandf. 195 ; and see Suydam v. 
 Moffatt, 1 Sandf. 495.) No action can be maintained for defamatory matter in an 
 affidavit used in the course of a cause, even where the party defamed is not a party 
 to the cause. (Henderson v. Broomhead, 4 Hurl. & N. 569; Revis v'. Smith, 18 C. B. 
 126; Dawling v. Venman, 3 Mod. 109; Kennedy v. Hilliard, 10 Ir. L. R. N. S 195; 
 1 Law Times, N. S. 578.) See ante, note 2, p. 351. 
 
 1 No action lies for words spoken as a witness. ("Weston v. Dobniet, Cro. Jac. 432 ; 
 Damport v. Sympson, Cro. Eliz. 520 ; Astley v. Younge, 2 Burr. 807 ; Harding v. 
 Bulman, 1 Brownl. 2 ; Lewis v. Few, 5 Johns. 13.) Although the words are spoken 
 maliciously and without reasonable or probable cause, and the plaintiff has suffered 
 damage in consequence. (Revis v. Smith, 18 C. B. 126 ; Rex v. Skinner, Lofft, 55.) The 
 witness is not bound to determine the materiality of the evidence, and he may answer, 
 without liability for so doing, questions put to him, and not objected to or not ruled 
 out by the court. The fact that the testimony is irrelevant, or that the witness is 
 influenced by malice, will not render him liable to an action for slander. (Calkins v. 
 Sumner, 13 Wis. 193.) In Barnes v. McCrate, 32 Maine (2 Red.), 442, and Perkins v. 
 Mitchell, 31 Barb. 461, it is said the witness is not liable if the answers are pertinent 
 and responsive. No action will lie against a witness for damage sustained by the 
 falsity of his testimony (Smith v. Lewis, 3 Johns. 157; Grove v. Brandenburg, 7 
 Blackf. 234; Cunningham v. Brown, 18 Verm. 123; Dunlap v. Gladding, 31 Maine, 
 435); as where an action was brought against a witness for swearing that a jewel was 
 worth no more than £180, whereas it was worth £500, a verdict being found for the 
 plaintiff, judgment was arrested. (Damport v. Sympson, Cro. Eliz. 520 ; see cases 
 collected Vin. Abr., Act. on the Case for Deceit.) No action lies for suborning a wit-
 
 354 • DEFEASES. [Ch. IX. 
 
 otherwise have afforded him. 1 Where the defendant, a 
 witness, was asked if a certain person was attended by a 
 physician, his answer was, " Not as I know of; I under- 
 stood he had a quack ; I would not call him a physician," 
 on an action brought for these words, it was held proper 
 to charge the jury that if they " believed from all the 
 circumstances proved, from the question put, from the 
 manner of answering, and from the answers themselves, 
 that the defendant testified in good faith, or in the belief 
 that his answers were pertinent or relevant, then the law 
 protected him ; but if the defendant was actuated by mere 
 malice, and used the words for the mere purpose of defam- 
 ing the plaintiff, then the law withdrew the protection it 
 would otherwise have afforded him. 2 Where the plaintiff 
 brought an action against one L., and the defendant being 
 produced as a witness at the trial, testified that the plaintiff 
 was a common liar, by reason whereof the jury gave the 
 plaintiff but small damages. After verdict for the plaintiff, 
 in an action for slander, it was moved in arrest of judg- 
 ment that the action did not lie, for if it did, every wit- 
 ness might be charged upon such a suggestion, and judg- 
 ment was given for the defendant. 3 
 
 § 224. A party to a proceeding in a court of justice is 
 not liable to an action for any statement he may make in 
 court in relation to the matter there pending, provided 
 that such statement is inacle in good faith, believing it to 
 be material, 4 and that it is not calculated to provoke a 
 
 ness to testify falsely. (Smith v. Lewis, 3 Johns. 157; Bostwick v. Jervis, 2 Day, 
 447.) In slander for charging the plaintiff, in the presence of " sundry persons," with 
 larceny, the defendant pleaded that he spoke the words in giving testimony as a wit- 
 ness in a certain cause. Held, that the defendant might, on the trial, prove what the 
 testimony which he gave was, and that the plaintiff, if he meant to proceed for speak- 
 ing the words on some other occasion than that named in the plea, should have new 
 assigned. (Nelson v. Robe, 6 Blackf. 204.) 
 
 1 Smith v. Howard, 28 Iowa, 51 ; Marsh v. Elsworth, 1 Sweeny, 52. 
 
 2 White v. Carroll, 42 N. Y. 161. 
 
 3 Harding v. Bullman, Brownlow, 2; Hutt. 11. 
 
 4 Allen v. Crofoot, 2 Wend. 515. No statement in the course of " judicial proceed, 
 ings " which a party may reasonably deem necessary to his cause, will be held libel-
 
 § 224.] PAETIES TO PROCEEDINGS. 355 
 
 breach of the peace. 1 "Where the defendant having made 
 a criminal complaint against the plaintiff, was questioned 
 by him with regard to it during its pendency, and an- 
 swered, in the presence of the magistrate, that he believed 
 the charge true, held that if the defendant believed in 
 good faith that it was necessary for him to answer the 
 plaintiff, the answer was privileged. 2 So it has been held 
 that if a servant summon his master before a court of con- 
 science for wages, and the latter, in his necessary defense, 
 utter words imputing a felony to the former, no action 
 will lie. 3 "Where the prosecutor in an indictment said of 
 one offered as bail for the defendant, in the indictment, 
 " I believe he Avas mixed up in the fraud," held privileged 
 if spoken in the belief that it was true. 4 And where the 
 plaintiff was a witness on the trial of cause in which the 
 defendant was a party, on her testifying to a particular 
 fact, the defendant immediately, in open court, exclaimed, 
 " That is a lie, and I can prove it," and soon after added, 
 "and I think I have proved it." For these words the 
 plaintiff brought suit, and it was held no action would 
 lie, the words being uttered " in the progress of a trial, 
 and in the course of justice." 5 Where the plaintiff, in an 
 action for slander, alleged that he took an oath in the 
 
 lous, however defamatory it may in its nature be ; and it makes no difference with 
 regard to such privileged statements whether they are or not malicious, provided they 
 may be reasonably deemed necessary to the case. (Lea v. White, 4 Sneed (Tenn.), 
 Ill; Vausse v. Lee, 1 Hill, So. Car. 19V; Gosslin v. Cannon, ] Harring. 3; Marshall «/. 
 Gunter, 6 Rich. 419; "Warner v. Paine, 2 Sandf. 195.) "Judicial proceedings" arc 
 not confined to trial of civil actions or indictments, but includes every proceeding 
 before a competent court or magistrate in the due course of law, or the administra- 
 tion of justice, which is to result in any determination or action by such court or 
 officer. (Perkins v. Mitchell, 31 Barb. 471.) 
 
 1 Reg. v. Hutching, 7 Ir. L. R. N. S. 426. 
 
 2 Allen v. Crofoot, 2 Wend. 515 
 
 3 Trottman v. Dunn, 4 Camp. 211. An action for libellous words spoken or sworn 
 in a court of justice, in a man's own defense, against a charge upon him in that court, 
 will not lie. (Astley v. Younge, 2 Burr. 807 ; 2 L'd Ken. 536.) 
 
 4 Banbury v. Duckworth, 21 Law Times, 302. 
 
 6 Badgley v. Hedges, 1 Pennington, 233; but see note 2, p. B57,post, also § 171.
 
 356 DEFENSES. [Ch. IX. 
 
 King's Bench, to bind the defendant to good behavior, 
 and thereupon the- defendant falsely and maliciously said, 
 " there is not a word true in that affidavit, and I will 
 prove it by forty witnesses." The jury found the words 
 false and malicious, and for the plaintiff; but judgment 
 was arrested on the ground that what defendant said 
 was in his justification and defense in a legal and judicial 
 way. 1 
 
 § 224#. A party to a proceeding in a court of justice 
 may ordinarily conduct the prosecution or defense in 
 person or by counsel or attorney, 2 where he conducts the 
 case in person, whatever he may reasonably believe neces- 
 sary successfully to maintain his suit or his defense, that 
 he may speak, in the course of the proceeding, without 
 being subject to an action for slander. A party who is 
 not a hamster or counsellor conducting a cause on his 
 own behalf or on behalf of another, has the same privilege 
 as a counsel as to what he may say. 3 The defendant, 
 while advocating his own cause before a referee, and 
 while summing up the cause, called plaintiff, among other 
 things, a perjured scoundrel; in an action for these words, 
 a verdict was taken for the plaintiff; on motion in arrest 
 of judgment the verdict was sustained, and judgment 
 ordered for the plaintiff. The court said that to arrest the 
 judgment, it must be held that counsel are protected for 
 words spoken by them on the trial of a cause, although 
 they may have been false, and uttered willfully and mali- 
 ciously, and were irrelevant, and although neither the evi- 
 
 1 Bolton v. Clapham, W. Jones, 431 ; Mar. 20, cited by Holroyd, J., in Hodgson v. 
 Scarlett, 1 B. & A. 244, and commented upon in Hastings v. Lusk, 22 Wend. 419; 
 and see Kean v. McLaughlin, 2 S. <fc R. 470. 
 
 2 In New York State, every person of full age and sound mind may appear by 
 attorney * * in every action * * by or against him in any court, or may at 
 bis election prosecute or defend such action in person. (2 R. S. 276, § 11.) 
 
 3 Ring v. Wheeler, 7 Cow. 725; Hastings v. Lusk, 22 Wend. 410; Hoar v. Wood, 
 3 Mete. 193.
 
 § 225.] counsel. 357 
 
 dence nor the circumstances afford a suspicion to warrant 
 the accusation. But the court thought the rule could not 
 be earned to that extravagant length. 1 Where a party to 
 a suit was conducting the defense in person, and while 
 cross-examining a witness, upon the witness stating cer- 
 tain facts, exclaimed, " It is not so ; it's not so ; no such 
 thing." In an action for slander by the witness for these 
 words, the jury found they were intended to impute per- 
 jury, and the court held them to be actionable. 2 
 
 § 225. The right which a party to a proceeding in a 
 court of justice, conducting the proceeding in person, has 
 to speak all that he may reasonably believe to be neces- 
 sary for the successful maintenance of his action or de- 
 fense, is enjoyed by one conducting a proceeding for 
 another, whether he be conducting it as counsel, attorney, 
 or otherwise. A party was alleged to have kept a sum 
 of money which, by his contract, he ought not to have 
 kept; counsel, in reference to this matter, used the lan- 
 guage, " This gentleman has defrauded us," and was inter- 
 rupted by the court before he had finished his sentence. 
 Held, first, that the words were not actionable ; secondly, 
 that they were not irrelevant to the matter before the 
 court. 3 "A counsellor hath a privilege to enforce any- 
 thing which is informed him by his client, and to give it 
 
 1 Ring v. Wheeler, 7 Cow. 725 ; Hastings v. Lusk, 22 Wend. 410. 
 
 2 Didway v. Powell, 4 Ky. (Bush) 77 ; see § 171, and Badgley v. Hedges, 
 1 Pennington, 233. 
 
 3 Needham v. Dowling, 15 Law Jour. C. P. 9. An attorney acting as an advocate 
 is privileged as to statements made in the trial of his client's cause, in the same way 
 as counsel. An attorney, in defending his client from a charge of assault in turning 
 out the plaintiff from certain premises in which lie had agreed to sell wine under an 
 agreement with J., stated that J. had sufficient reasons for determining the agree- 
 ment; that he had been plundered by the. plaintiff to a frightful extent. Held, a 
 privileged statement. (Mackey v. Ford, 5 Hurl. <fc Nor. 792.) A master is not liable 
 to an action of slander for words spoken while acting as counsel for his slave, while 
 he is on trial before a competent tribunal, provided the words are material and per- 
 tinent to the matter in question. (Shelfer v. Hooding, 2 Jones' Law (N. Car.), 175.) 
 As to the privilege of counsel, see Vin. Abr., Act. for Words, B. a. 2.
 
 358 DEFENSES. [Ch. IX. 
 
 iii evidence, it being pertinent to the matter in question, 
 and not to examine whether it be true or false, for a coun- 
 sellor is at his peril to give in evidence that which his 
 client informs him, being pertinent to the matter in ques- 
 tion ; but matter not pertinent to the issue, or the matter 
 in question, he need not deliver, for he is to discern in his 
 discretion, what he is to deliver and what not, and 
 although it be false, he is excusable, it being pertinent to 
 the matter. But if he give in evidence anything not ma- 
 terial to the issue which is scandalous, he ought to aver it 
 to be true, for it shall be considered as spoken mali- 
 ciously and without cause, which is a good ground for an 
 action." 1 "Ka counsellor speak scandalous words of one 
 in defending his client's cause, an action doth not lie 
 against him for so doing ; for it is his duty to speak for 
 his client, and it shall be intended to be spoken according 
 to his client's instructions." 2 "Ea man should abuse this 
 privilege, and under pretence of pleading his cause, de- 
 signedly wander from the point in question, and mali- 
 ciously heap slander upon his adversary, I will not say he 
 is not responsible in an action at law." 3 Counsel is not 
 liable to answer for defamatory matter uttered by him in 
 the trial of a cause, if the matter is applicable and perti- 
 nent to the subject of inquiry, but this privilege of 
 counsel must be understood to have this limitation, that 
 he shall not avail himself of his situation to gratify pri- 
 vate malice by uttering slanderous expressions against 
 party, witness, or third persons, which have no relation to 
 the subject-matter of the inquiry, 4 and "if a counsel, in 
 
 J Brook v. Montague, Cro. Jac. 90. 
 
 - Wood v. Gunston, Sty. 462 ; per Glyn, J., in Hodgson v. Scarlett, 1 B. «fc A. 232 ; 
 L'd Ellenborough said Wood v. Gunston carried the privilege too far. 
 
 3 Tilghman, Ch. J., Mciiillan v. Birch, 1 Bin. 178. A proctor is not privileged in 
 making defamatory statements not relevant to the matter in hand (Higginson v. Fla- 
 herty, 4 Ir. L. R. N. S. 125). 
 
 4 Jennings v. Paine, 4 Wis. 358; Hoar v. Wood, 3 Mete. 193 ; Hodgson v. Scarlett, 
 1 B. «fe A. 232; Holt X. P. 621 ; Parker v. Mitchell, 31 Barb. 469.
 
 § 226.] SELF-DEFENSE. 359 
 
 the course of a cause, utter observations injurious to indi- 
 viduals and not relevant to the matter in issue, it seems 
 to me that he would not, therefore, be responsible to the 
 party injured in a common action for slander, but that it 
 would be necessaay to sue him, in a special action on the 
 case, in which it must be" alleged and proved that the 
 matter was spoken maliciously, and without reasonable 
 and probable cause ;' n and semble, that although it be 
 lawful for a counsel in the discharge of his duty to utter 
 matter injurious to individuals, yet the subsequent publi- 
 cation of such slanderous matter is not justifiable unless 
 it be shown that it was published for the purpose of 
 giving the public information which it was fit and proper 
 for them t.o receive, and that it was warranted by the 
 evidence. 2 
 
 § 226. The right of an accused person to say all that 
 he may honestly consider necessaiy for his defense is not 
 confined to proceedings in a court of justice; it extends to 
 every occasion upon which one is called upon to defend 
 himself -from any charge against him. Thus, words spo- 
 ken in good faith, and within the scope of his defense, by 
 a party on trial before a church meeting, are privileged, 
 and do not render him liable to an action, although they 
 disparage private character. 3 Where the defendant ex- 
 pressed an opinion founded upon the statements of others 
 that the plaintiff had maliciously killed his (defendant's) 
 horse. For expressing this opinion the defendant was 
 arraigned before the church. In self-defense he produced 
 certificates of the persons upon whose authority he had 
 spoken. For this the plaintiff sued, but offering no direct 
 proof of malice, it was held the action was not maintain- 
 able. 4 So where R. & Co. received a written order for an 
 
 1 Jlolroyd, J., Flint v. Pike, 6 D. <fc R. 528 ; 4 B. <fc C. 473. 
 ' Kane v. Mulvany, 2 Ir. R. C. L. 402. 
 3 York v. Pease, 2 Gray (Mass.), 282. 
 * DuDn v. Winters, 2 Humph. 512.
 
 360 DEFENSES. [Cll. IX. 
 
 iron target, which order purported to come from the de- 
 fendant ; R. & Co. sent the target to the defendant, who 
 returned it, stating that he had never ordered it, and re- 
 quested to see the written order upon which R. & Co. had 
 acted; the order was sent to the defendant, and he wrote 
 R. & Co. that he firmly believed it was written by the 
 plaintiff. It was submitted on behalf of the defendant 
 that the communication was a (conditionally) privileged 
 one. It was left to the j ury to say whether the defendant 
 had written that the plaintiff was the author of the order 
 sent to R. & Co. bona fide and without malice, believing his 
 statement to be true ; the jury found in the affirmative, a 
 verdict was entered for plaintiff with ,£5 damages, with 
 leave to the defendant to move to enter the verdict for 
 him, and on motion the verdict was entered for the de- 
 fendant. 1 
 
 § 227. No action for slander or libel can be maintained 
 against a judge, or one exercising judicial functions, for 
 anything he may say or write in his judicial capacity upon 
 the trial or upon the determination of a cause or matter 
 pending before him ; if improper, it may be a ground for 
 his impeachment or for an application for his removal, but 
 not for an action of slander or libel. 2 Plea to a declara- 
 tion for slander, that defendant was a county court judge, 
 and the words complained of were spoken by him in his 
 capacity as such judge, while setting in his court and try- 
 
 1 Croft v. Stevens, 7 Hurl. & N. 570 ; see post, § 240. 
 
 2 Rex v. Skinner, Lofft, 1099. Neither party, witness, counsel, jury, or judge, can 
 be made to answer for words spoken in office ; although, if they be opprobrious and 
 irrelevant to the case, the court will notice them as a contempt, and examine on an in- 
 formation, and punish accordingly. (Id. ; Henderson v. Broomhead, 4 Hurl. & N. 
 564; Kendillon v. Maltby, 2 Moo. & Rob. 438; Moore v. Ames, 3 Caines, 170.) In 
 Entick v. Carrington, 19 State Trials, 1062, Lord Camden remarks, " No man ever 
 heard of an action against a conservator of the peace as such." Quoted, South v. The 
 State of Maryland, 18 How. U. S. Rep. 403, and see Vin. Abr. Act. Case Deceit, Q. 
 b. 1. " If judges were liable to be sued for words spoken in their judicial capacity, 
 it may be said, in the words of Lord Stair, ' No man but a beggar or a fool would be 
 a judge.' " (Lord Robertson, Miller v. Hope, 2 Shaw App. Cas. 134.)
 
 § 227.] judges. 361 
 
 iilg a cause in which the, now, plaintiff was defendant. 
 Replication : That the said words were spoken falsely and 
 maliciously, and without any reasonable, probable, or justi- 
 fiable cause, and without any foundation whatever, and 
 not bona fide in the discharge of defendant's duty as judge, 
 and were wholly irrelevant in reference to the matter be. 
 fore him. On demurrer, held that the replication was bad 
 and the action not maintainable. 1 Thus, no action lies 
 against a coroner for words spoken maliciously in the 
 course of an inquest before him. 2 For whenever duties of 
 a judicial nature are imposed upon a public officer, the 
 due execution of which depends upon his own judgment, 
 he is exempt from all responsibility by action, for the mo- 
 tives which influence him and the manner in which said 
 duties are performed. If corrupt, he may be impeached 
 
 1 Scott v. Stansfield, Law Rep. Ill, Ex. 220. See Gelen v. Hall, 2 H. & N. 393; 
 Haggart's Trustee v. Hope, 20 Fac. Dec. 371; Shaw App. Cas. 125; Aon v. McXiel, 
 5 Brown Sup. 573 ; Fray v. Blackburn, 3 B. & S. 576 ; Yates v. Lansing, 5 Johns. 
 282; 9 id. 395; Randall v. Brigham, U. S. Supreme Court Dec, 1868, 7 Wallace, 
 523; Dickerson v. Fletcher, Stuart's Canada Rep. 276; Gugy v. Kerr, id. 292; and 
 296 note. 
 
 2 Thomas v. Churton, 6 Law Times, N. S. 320; 2 B. & S. 475. And semble, there 
 would be no action although the words were spoken without probable cause. (Id.) 
 And per Cockburn, Ch. J. : "I should not wish to lay down the broad proposition 
 that in no case is a judge liable for words uttered by him as a judge." " A public 
 officer, who is not a mere-volunteer, but compelled to act in a judicial capacity, is 
 not amenable, either civilly or criminally, for a mistake in law or error of judgment, 
 when his motives are untainted with fraud or malice." (Teall v. Felton, 1 X. Y. 547.") 
 
 "Words spoken in discharge of official duty are not actionable. (Goodenow r. Tap- 
 pan, 1 Ham. 60.) Aliter, if spoken under pretence of official duty, wantonly and with 
 malice. The question of intention is to be left.with the jury. (lb.) Tims, in an 
 action against the defendant, a ward-beadle, for words spoken by him before an in- 
 quest, but not in answer to any inquiries of the jury nor in the presence of the jury 
 only, held that it was a question for the jury whether the words were spoken by tin: 
 defendant in the discharge of his official duty. (Wilson v. Collins, 5 C. & I'. 373 ) 
 In an action for libel against one, a justice of the peace, for defamatory matter con- 
 tained in an official certificate by him to the grand jury, held the publication was 
 conditionally privileged. (Sands v. Robinson, 12 S. & M. 704.) A report of the 
 grand jury, under any part of § 2992 of the Code of Iowa, held ool a privileged com- 
 munication; but where it was made in good faith, and in tin- discharge of a supposed 
 public duty, it does not furnish ground to BUStain an action for libel. 
 Smith, 11 Iowa (3 With.), 302.) What a petit jury says in the jury room concerning 
 a matter before the jury is absolutely privileged. (Dunham v. Pow< r-, 42 Vi im. 1. 
 24
 
 362 DEFENSES. [Ch. IX. 
 
 or indicted, but lie cannot be prosecuted by an individual 
 to obtain redress for the wrong which may have been done. 1 
 No public officer is responsible in a civil suit for a judicial 
 determination, however erroneous it may be, and however 
 malicious the motive which produced it. 2 No action will 
 lie for defamatory matter contained in a presentment of a 
 grand jury. 3 The plaintiff (Captain Jekyll) having pre- 
 ferred certain charges against Colonel Stewart, an officer in 
 the same regiment with plaintiff, Colonel Stewart was 
 tried by a court martial, and the president of the court, 
 Sir John Moore, delivered to the judge advocate a written 
 opinion, as the decision of the court, and in such opinion, 
 after stating that the court found Colonel Stewart not 
 guilty of the charges imputed to him, added : " The court 
 cannot pass without observation the malicious and ground- 
 less accusations that have been produced by Captain Je- 
 kyll against an officer whose character, during a long period 
 of service, has been irreproachable." For this addition to 
 the decision Captain Jekyll brought an action for libel 
 against the president of the court. The plaintiff was non- 
 suited, and a new trial being moved for, it was refused on 
 the ground that the language complained of formed part 
 of the judgment of acquittal. 4 In another case of an action 
 brought for defamatory matter contained in a report of a 
 
 1 Rochester White Lead Co. v. The City of Rochester, 3 N. Y. 466. See Cooke on 
 Defam. 63; 1 Bish. Cr. Law, §§ 914, 916, 3d ed.; Scovil v. Geddings, 7 Ohio, 211. 
 
 2 Weaver v. Devendorf, 3 Denio, 117; Vail v. Owen, 19 Barb. 22; Brown v. 
 Smith, 24 Id. 419; and see Hill v. Sellick, 21 Barb. 20*7; Harman v. Brotherson, 1 
 Denio, 537. But an officer who violates a ministerial duty, though his office is pri- 
 marily judicial, is liable therefor. (Wilson v. Mayor of New York, 1 Denio, 595; 
 Rochester White Lead Co. v. City of Rochester, 3 N. Y. 463.) Words spoken by the 
 mayor of a city are privileged. (Rector v. Smith, 11 Iowa, 302.) 
 
 3 Bac. Abr. tit. Libel, 445; Mo. 627; Hawk. PI. Cr. c. 73, § 8 ; and see observa- 
 tions in Johnson v. Sutton, 1 T. R. 493. 
 
 4 Jekyll v. Moore, 2 New R. 341 ; and see Kendillon v. Maltby, 1 Car. & M. 402 ; 
 2 Moo. & Rob. 438; Warden v. Bailey, 4 Taunt, 67; 4 M. & 8. 400. And where, 
 upon a proceeding on the game laws in Scotland, after the defendant had confessed, 
 and had appealed to the leniency of the court for a mitigation of the penalty, it was 
 asserted by the defendants, two of the justices, that " he was a thief, and had been
 
 § 228.] judges. 363 
 
 military court of inquiry appointed to investigate charges 
 against the plaintiff, it was held that the report was a 
 privileged publication, and could not be given in evidence. 1 
 So it was held that the defendant, being governor in coun- 
 cil of Fort St. George, was justified in publishing, accord- 
 ing to the fact, that the court of directors had resolved to 
 dismiss the plaintiff from the service for a gross violation 
 of the trust reposed in him as commanding officer of the 
 Molucca Islands, and that he (the defendant) had been 
 ordered to erase his name from the army list. 2 
 
 § 228. With regard to the right of a judicial officer, 
 we suppose a difference exists between a judge of a court 
 of record and a judge of a court not of record, or one who 
 is not, indeed, a judge in the strict sense of the term, but 
 who merely executes judicial functions; as respects the 
 first, his being a judge, without more, constitutes a com- 
 plete defense to an action for anything said or written by 
 him as such judge (§ 227) ; but as respects the second, the 
 privilege arises only in cases in which he had jurisdiction. 
 " If magistrates while occupying the bench, under pretence 
 of giving advice, publicly hear slanderous complaints over 
 which they have no jurisdiction, although their names may 
 be in the commission of the peace, a report of what passed 
 before them is as little privileged as if they were illiterate 
 mechanics in an ale-house." 3 
 
 known to steal bee-hives and leather ; " held, on appeal, that subordinate judges were 
 responsible for words spoken, if malice was clearly made out, the privilege being 
 confined only to members of Parliament and judges of the supreme courts ; the judg- 
 ment of the court of session, as far as the interlocutor of relevancy was concerned, 
 was therefore affirmed, but the House not being satisfied that there was evidence of 
 malice, the cause was remitted to another jury. (Allardice v. Robertson, 1 Dowl. U. 
 S. 495. See s. c. 6 Shaw. & Dun. 242; 1 Id. 691 ; 4 Wil. & Shaw App. Cas. 102 ; 1 
 Dowl. <fc CI. 495.) 
 
 2 Oliver v. Bentinck, 3 Taunt. 456. See Dawkins v. L'd Paidet, Law Rep. V, 94 
 Q. B. 
 
 s Home v. Bentinck, 4 Moore, 563; 8 Price, 220, and note LI. 244. A communi- 
 cation to a governor respecting an officer under his command is quasi judicial and 
 privileged. (Gray v. Pentland, 2 S. & 11. 23; 4 S. & R. 420.) 
 
 "Campbell, Ch. J. Lewis v. Levy. 1 El. B. & E. 537; 86 Law Jour. Rep. 2f2, 
 Q. B; and see as to necessity of tribunal having jurisdiction, Hosmer v. Loveland, 19
 
 364 DEFEASES. [Ch. IX. 
 
 § 220. Independently of any statute, certainly in the 
 State of New York, and probably in every other State, 
 " the publication of the proceedings upon a judicial trial 
 fairly reported and without express malice, is not action- 
 able." * The like rule obtains in England, but as both 
 there and in New York some limitations are imposed 
 upon the rule, it is necessary, in order to show in what 
 these limitations consist, to examine somewhat in detail 
 the authorities upon the subject. The initial principle 
 seems to be that the public good requires that the pro- 
 ceedings in courts of justice should be conducted openly. 
 Accordingly it is in New York provided by statute that 
 "the sittings of every court within this State shall be 
 public, and every citizen may freely attend the same." 2 
 Although there is no such law in England, it is the 
 custom there to hold the courts with open doors. And it 
 is said to be a rule of law that " every one is supposed or 
 presumed to be cognizant of the proceedings in the courts 
 of justice," 3 and hence "it is of great consequence that the 
 public should know what takes place in the courts." 4 A 
 publication of the proceedings of a court " only extends 
 
 Barb. Ill; Howard v. Thompson, 21 Wend. 319; King v. Root, 4 Wend. 113; 
 O'Donaghue v. McGovern, 23 Wend. 26; Hastings v. Lusk, 22 Wend. 410; Faweett v. 
 Charles, 13 Wend. 473; Harrison v. Bush, 5 Ell. & Bl. 344; Milam v. Burnsides, 1 
 Brev. 295 ; Moloney v. Bartley, 3 Camp. 210; McGregor v. Thwaites, 3 B. & C. 24. 
 
 1 Edsall v. Brook3, 17 Abb. Pra. R. 227; 26 How. Pra. R. 426. In New York the 
 publication of judicial proceedings is protected by statute, which enacts: No re- 
 porter, editor, or proprietor of any newspaper shall be liable to aoy action or prose- 
 cution, civil or criminal, for a fair and true report in such newspaper of any judicial, 
 legislative, or other public official proceedings of any statement, speech, argument, or 
 debate, in the course of the same, except upon actual proof of malice in making such 
 report, which shall in no case be implied from the fact of publication. (Laws 1854, 
 ch. 130, § 1.) Nothing in the preceding section contained shall be so construed as to 
 protect any such reporter, editor, or proprietor, from an action or indictment for any 
 libellous comments or remarks superadded to and interspersed or connected with 
 such report. (Id. § 2.) 
 
 2 2 Rev. Stat. 274, § 1. " Xo law insures the publicity of the courts of justice, 
 either in England or the United States." Lieber on Civil Liberty, 134 ; ed. of 1859. 
 
 3 Willard's Eq. Juris. 251. 
 
 4 Campbell, Ch. J., Hearne v. Stowell, 12 Adol. & Fl. 718; 4 Per. & D. 696.
 
 § 220.] REPORTS OF JUDICIAL PROCEEDINGS. 3G5 
 
 that publicity which is so important a feature of the 
 administration of the law in England, and thus enables to 
 be witnesses of it not merely the few whom the court can 
 hold, but the thousands who can read the report," * and 
 " we ought to make as wide as possible the right of the 
 public to know what takes place in a court of justice." 2 
 It is conceded that some "inconveniences and mischief" 
 results or may result from the publication of the proceed- 
 ings in courts of justice, 3 but "the balance of public 
 benefit from the publicity is great." 4 "Those who are 
 present hear all (that takes place), relevant or irrelevant, 
 and those who are absent may * * have all that is said 
 reported to them * * When once you establish that a 
 court is a public court, a fair and bona fide report of all 
 that takes place there may be published. 5 For being a 
 true account of what took place in a court of justice, 
 which is open to all the world, the publication of it 
 (cannot be) unlawful." 6 But, " it must not be taken for 
 granted that the publication of every matter which passes 
 in a court of justice, however truly represented, is under 
 all circumstances and with whatever motive published, 
 justifiable; but that doctrine must be taken with some 
 grains of allowance." 7 For as a judicial proceeding is 
 privileged on principles of public convenience, the privi- 
 lege is limited in respect to the subject-matter of the report, 
 and as to the manner of the reporting, 8 and the "con- 
 
 1 "Wilde, B., Popham v. Piekburn, 7 Flurl. & X. 891. On its beino: remarked to 
 Lord Mansfield, that few persons attended the courts merely to watch the proceed- 
 ings, he replied, " No matter, we sit every day in the newspapers." 
 
 2 Pollock, Ch. B., Ryalls v. Leader, Law Rep., 1 Ex. 298. 
 
 3 Flint v. Pike, 4 B. & C. 473. Littledale, J. 
 
 * Campbell, Ch. J., Hearne v. Stowell, 12 Adol. & El. 718; 4 Per. & D. C9G. 
 6 Bramwell, B., Ryalls v. Leader, Law Rep., 1 Ex. 298. 
 6 Eyre, Ch. J., Carrie v. Walter, 1 B. & P. 526. 
 ' Stiles v, Nokes, 7 East, 493. 
 8 1 Stark. Slan. 263.
 
 366 DEFENSES. [Ch. IX. 
 
 dition necessarily annexed to the immunity is, that the 
 proceeding be fairly, impartially, and correctly reported, 
 and even in that case it will be for the court to consider 
 whether it was lawful to publish it. 1 "Matters may 
 appear in a court of justice that may have so immoral a 
 tendency, or be so injurious to the character of an in- 
 dividual that their publication would not be tolerated." 2 
 And therefore it is said, " There is no privilege when the 
 subject-matter is hlasj>liemous or defamatory of an in- 
 dividual." 3 Thus where on the trial of Carlile for publish- 
 ing Paine's Age of Keason, the defendant read the whole 
 of the book to the jury, and afterwards his wife published 
 a full report of the trial, containing an entire copy of the 
 Age of Reason as read to the jury ; for this publication a 
 criminal information was granted against Mrs. Carlile, the 
 court observing that although as a general proposition it 
 was certainly lawful to publish the proceedings of courts 
 of justice, yet it must be taken with this qualification, 
 that what is contained in the publication must neither be 
 defamatory of an individual, tending to excite disaffection, 
 nor calculated to offend the morals of the people. 4 
 Although in the course of a trial it may become necessary 
 for the purposes of justice to hear or read matter of de- 
 famatory or of immortal tendency, it is not yet competent 
 to any persons, under the pretence of publishing that 
 trial, to re-utter or circulate such matter. It is observed 
 in the Sixth Report of the English Criminal Law Com- 
 missioners, that these qualifications destroy all the sup- 
 posed privilege. Our explanation is this : Truth is not 
 a defense to a criminal prosecution for libel, and therefore 
 where a report of a trial contains blasphemous, indecent, 
 or defamatory matter, it is not the less the subject of a 
 
 1 Littledale, J., Flint v. Pike, 4 B. & C. 473; 1 Stark. Slan. 263. 
 - Maule, J., Hoare v. Silverlock, 9 C. B. 20. 
 
 3 1 Stark. Slan. 263. 
 
 4 Rex v. Carlile, 3 B. & Aid. 167.
 
 § 230.] EEPOKTS OF JUDICIAL PROCEEDINGS. 367 
 
 criminal prosecution because it is a fair or true report of 
 a judicial proceeding. In a subsequent case, 1 Maule, J., 
 said : " I think it is impossible at this day to say that a 
 fair account of proceedings in a court of justice, not being 
 ex parte, but on the hearing of both sides, is not, generally 
 speaking, a justifiable publication. I do not lay it down 
 as a universal proposition / but as a general rule, it may 
 be assumed that the publication of a fair account of what 
 passes in a court of justice, not ex parte, is justifiable, 
 unless there is something to take it out of that rule." 
 " No case has decided that a report of proceedings in a 
 court of justice implicating the reputation of a third 
 person is under any (all) circumstances privileged." 2 
 " There is no dictum to be met with in the books, that a 
 man, under the pretence of publishing the proceedings of 
 a court of justice, may discolor and garble the proceedings 
 by his own comments and constructions, so as to effect the 
 purpose of aspersing the character of those concerned." 3 
 But we ought to protect a fair and bona fide statement of 
 the proceedings in a court of justice, 4 and perhaps the 
 result of the authorities is that : a fair report of a trial or 
 a proceeding in a court of justice, conducted publicly in 
 the presence of the parties concerned, is conditionally 
 privileged. 5 
 
 § 230. When it is said that a fair report of a trial in 
 a court of justice is privileged, what is meant by a fair 
 
 1 Hoare v. Silverlock, 9 C. B. 20. 
 
 2 Ryalls v. Leader, Law Rep., I, 298, Ex. and see Fittock v. O'Neill, 63 Penns. 
 253. 
 
 3 Spencer, J., Thomas v. Crosswell, 7 Johns. 264, and see Rish Allah Bey v. 
 Whitehurst, 18 Law Times, N. S. 615. 
 
 4 Ryalls v. Leader, Law Rep., I, 298, Ex. 
 
 6 A fair account of what takes place in a court of justice is privileged. Ilcarne 
 v. Stowell, 12 Adol. & El. 718; 4 Per. <fe D. 696; Turner v. Pullman, 6 Law Times 
 Rep. N. S. 130; Rex v. Wright, 3 T. R. 298 ; Chambers v. Payne, 2 C. M. <fc R. 156 
 Cincinnati, &c. Co. v. Timberlake, 10 Oliio, N. S. 548; Flint v. Pike, 4 B. <fc C. 84 
 Saunders v. Mills, 6 Ring. 213 ; 3 M. <fe P. 520; Lewis v. Levy, 1 El. B. & E. 537 
 Andrews v. Chapman, 3 C & K. 286 ; Smith v. Scott, 2 C <fe K. 580.
 
 368 DEFENSES. [Cll. IX. 
 
 report ? In one case it is said : " If a party is to "be 
 allowed to publish what passes in a court of justice, he 
 must publish the whole case, and not merely state the 
 conclusion which he himself draws from the evidence," 1 
 and where in a report of proceedings under a commission 
 of lunacy, it was stated,, "The plaintiff's testimony, being 
 unsupported, failed to have any effect upon the jury, * * 
 Mr. Jervis commented with cutting severity on the 
 testimony of Mr. O," the statement was held not pri- 
 vileged, and it was said that the proceedings themselves 
 ought to have been set out, not merely the result of them. 2 
 Yet again it has been said, that an abridged report may 
 be a " fair report," 3 and where in an action against the 
 publisher of a newspaper for a libel, on the plea of not 
 guilty, it appeared that the libel purported to be the 
 account of a trial of a former action, brought by the 
 present plaintiff against other parties for a libel, and after 
 
 1 Abbott, Cli. J., Lewis v. Walter, 4 B. & A. 611. 
 
 2 Roberts v. Brown, 10 Bing. 519 ; 4 M. & Sc. 407; and see Delegal v. Highley, 
 3 Bing. N. S. 950 ; where the matter complained against professed to be a report of 
 proceedings in a court of justice, did not profess to state facts as deposed to by the 
 witness, but only as stated by the counsel for the prosecution — held not to be a fair 
 report, and not privileged. (Saunders v. Mills, 6 Bing. 213 ; 3 M. <fc P. 520.) And 
 where the report stated that the evidence before the magistrate entirely negatived 
 the story of the plaintiff, which story was the statement of the plaintiff in which 
 the imputed perjury was contained, — Held not to be privileged ; and a plea justifying 
 this report on the ground that it was a fair and correct report of the proceedings 
 which had taken plaee, was held bad after verdict. (Lewis v. Levy, 1 Ellis, B. it E. 
 53 T.) The editor of a newspaper has the right to publish the fact that an individual 
 has been arrested, and upon what charge, but he has no right while the charge is in 
 the course of investigation before the magistrate, to assume that the person accused 
 is guilty, or to hold him out to the world as such. (Usher v. Severance, 2 App. 9.) 
 See Woodgate v. Ridout, 4 Fost. & F. 202 ; Kane v. Mulvany, 2 Ir. Com. Law R. 402. 
 
 3 Turner v. Sullivan, 6 Law Times, K S. 130. A report in mbxtance true, it 
 seems is not privileged. (Flint v. Pike, 4 B. & C. 473.) A report " outrageously 
 wrong," is not privileged. (Blake v. Stevens, 4 Fost. <fe F. 232; 11 Law Times, X. 
 S. 543.) Where the defendant the publisher, of a treatise on the "law of attorneys," 
 purporting to give the substance of the report of proceedings against the plaintiff, an 
 attorney, stated that the plaintiff had been "struck off the rolls," instead of stating 
 as the fact was that plaintiff had been suspended for two years, held it was a question 
 for the jury, whether this was a fair representation of the report. The jury found it 
 was not and the plaintiff had a verdict. (Id. see ante, § 213.)
 
 § 230.] REPORTS OF JUDICIAL PROCEEDINGS. 3G9 
 
 stating the libel in the original action, and the facts 
 proved by the then defendants, and the summing up of 
 the judge, it stated that the jury found a verdict for the 
 plaintiff, with £30 damages. No evidence was given as 
 to any such trial having taken place in fact, or ^ whether 
 the report was fair or- not. It was left to the jury to say 
 whether the report, although it contained some allegation 
 injurious to the plaintiff, was, if taken altogether, with 
 the statement of the verdict being in his favor, injurious 
 to the plaintiff on the face of it ; and the jury having 
 found for the defendant, the court refused a rule for a 
 new trial. 1 The report is not privileged if it in anywise 
 discolors or garbles the proceedings, or adds (unwarranted) 
 comments or insinuations. 3 As where the report was 
 headed " Shameful conduct of an attorney," 3 or " How 
 lawyer Bishop treats his clients," 4 or " Extorting money to 
 hush up a complaint," 5 or " Blackmailing by a policeman," 6 
 or "Horse-stealing," 7 it was held not to be privileged. 
 "Where a statement defamatory of the plaintiff was copied 
 from a previous publication, and published by the defend- 
 ant, prefaced by the word "Fudge," the court left it to 
 the jury to say whether that word was added to vindicate 
 the character of the plaintiff, or merely to create an argu- 
 ment in favor of the defendant, in case proceedings should 
 be taken against him for the publication. 8 In another 
 case the report was headed "Wilful and corrupt perjury," 
 and it was said by the court " That (the heading) is 
 & 
 
 1 Chalmers v. Payne, 2 C. M. & R. 1 56. 
 
 2 Thomas v. Crosswell, 7 Johns. 2.04 ; Stiles v. Nokes, 7 East, 403, s. c. sub nom; 
 Carr v. Jones, 3 J. P. Smith, 491; Flint v. Pike, 4 B. & C. 173. 
 
 3 Clement v. Lewis, 3 Prod. & B. 297, affirming Lewis v. Clement, 3 B. <fc Aid. 
 702. 
 
 * Bishop v. Latimer, 4 Law Times, N. S. 775. 
 6 Stanley v. Webb, 4 Sandf. 21. 
 
 ."Edsall v. Brooks, 17 Ah!.. I'm. R. 221 ; 2 Robertson, 29. 
 ' Mountncy v. Wotton, 2 B. & A.d. 673. 
 8 Hunt, v Algar, 6 0. & P. 245.
 
 370 DEFEASES. [Cll. IX. 
 
 merely stating the charge. It may be a heading entirely 
 innocent, simply indicating what is to follow, and it 
 would be a question for the jury whether it is a fair and 
 bona fide report of the proceedings." 1 
 
 § 231. "While it is considered a principle of public 
 convenience to allow or even to encourage reports of the 
 proceedings on a trial, reports of preliminary proceedings 
 have been discouraged and regarded as having " a tend- 
 ency to pervert the public mind, and to disturb the 
 course of justice." 2 In England, the magistrate has the 
 
 1 Lewis v. Levy, 1 Ell. B. & E. 537. In Barber v. Bennett, Ms., tbe report of a 
 proceeding before a magistrate was beaded " Suspicion of stealing money." The 
 defence was a fair report, and on demurrer the Superior Court of Xew York held that 
 the heading did not prevent the report being a privileged publication. 
 
 2 L'd Ellenborou2;h, Kins; v. Fisher, 2 Camp. 563 ; and see Charlton v. Walton, 6 
 Car. <fe P. 385 ; also Rex v. Fleet, 1 B. & A. 379, where a criminal information wos 
 granted against the defendant for publishing the minutes of a coroner's inquest. It 
 was said to be highly criminal to publish ez-parte accounts. Courts and judicial offi- 
 cers have always claimed and exercised the right to dictate whether or not the pro- 
 ceedings before them should be published. In the time of Edward the Third, Lucius 
 de Thacstead, a notary public, was committed to the Tower for merely attending in 
 court to take a note of the proceedings between Johannes de Bourne and Ricardus de 
 Potesgrave, and in Flint v. Pike, 4 Barn. & C. 473, Littledale, J., said it was for the 
 court to consider whether it was lawful to publish a report of the proceedings. Lord 
 Eldon interdicted the publication of the proceedings on the application of the poet 
 Shelley for the custody of his children. (See Memoir of Shelley, by T. L. Peacock, 
 and Fraser's Magazine, No. 342, 361.) So recently as 1867, a justice of the Superior 
 Court of the City of New York prohibited the publication of proceedings had before 
 him, and his course was approved by the other justices of that court. A coroner may 
 prohibit the publication of proceedings had before him (Garrett v. Ferrand, 6 B. & 
 C. 611), and so may a committing magistrate. (Cox v. Coleridge, 1 B. & G. 37. See 
 Borthwick on Libel, 119, 121, note; Holt on Libel, ch. ix.) The cases are more nu- 
 merous where the publication of the proceedings has been prohibited pending the 
 proceedings. A disregard of such a prohibition is a contempt. In one case, Lord 
 Eldon remarked that when he first came into Westminster Hall, the law was well 
 understood that it would be a contempt to publish the proceedings of the court 
 before they were finished. (Knight v. Knight, 1 Jac. & Walk. 167.) In Rex v. 
 Clement, 4 Barn. & Aid. 218, Lord Tenterden ordered that there should be no publi- 
 cation of the proceedings until the several indictments against the defendant had 
 been tried ; and he fined a newspaper proprietor £500 for disobedience to this order, 
 in publishing an account of the first trial before the second had begun. The courts 
 upheld the action of Lord Tenterden. Lord Campbell, in his Lives of the Chief 
 Justices, vol. Ill, p. 208, gives it as his opinion that this transaction tarnished the 
 fame of Lord Tenterden, and that the order forbidding the publication was "impru-
 
 § 231.] EEPOETS OF JUDICIAL PROCEEDINGS. 371 
 
 power of conducting preliminary examinations privately, 
 and a report of such a proceeding would not be privileged. 
 
 dently" made. See Eex v. Gilhara, 1 M. & M. 165 ; Brook v. Evans, 6 Jur. N. S. 1025 ; 
 Filkin v. Herbert, 32 Law Jour. 294, Ch. In New York, by statute (2 Rev. Stat. 278, 
 § 10), "Publishing a false or grossly inaccurate report of the proceedings of a court 
 of record is a criminal contempt." Any publication prejudicing the merits of a cause 
 before it is heard is a contempt. (2 Atk. 4*79.) The validity of plaintiff's marriage 
 coming in question in a suit, her father, pending the suit, advertised in a newspaper, 
 offering a reward to any one who would produce legal proof of the marriage — held a 
 contempt. (Pool v. Sacheverel, 1 P. Wms. 676.) The printers of a newspaper were 
 committed for publishing ; that certain parties to a suit had turned " affidavit men." 
 (Roach v. Gaiwan, 2 Atk. 469 ; 2 Dick. 794.) In that case reference was made to the 
 case of a printer of a newspaper punished for publishing of a certain cause, that it 
 was "a hue and cry after charitable uses," and to the case of Capt. Perry, punished 
 for printing and publishing his brief before the cause came on. A party was com- 
 mitted to prison for publishing an advertisement reflecting on an answer in the cause. 
 (See Cann v. Cann, 2 Dick. 795; 2 Ves. 520; Ex-parte Crow, 2 Turn. & Ven. Pra. 
 231,232.) Where an injunction order appointing a receiver had been granted, the 
 party obtaining the order caused printed copies of it to be dispersed among the ten- 
 ants, to prevent them paying rents except to the receiver; Lord Hardwick refused to 
 adjudge it a contempt, but expressed his disapproval of the proceeding (Baker v. 
 Hart, 2 Atk. 488), as thus: "Nothing is more incumbent upon courts of justice-than 
 to preserve their proceedings from being misrepresented; nor is there anything of 
 more pernicious consequence than to prejudice the minds of the public against per- 
 sons concerned as parties in causes before the cause is finally heard. It has always been 
 my opinion, as well as the opinion of those who have sat here before me, that such a 
 proceeding ought to be discountenanced." Repeated by Sir W. Page Wood, V. C, 
 Tichborne v. Mostyn, Law Rep. VII, Eq. 55, n. ; and see Daw v. Eley, Law Rep. VII, 
 Eq. 49, in which case the solicitor in the cause had published a letter in a newspaper 
 relating to the pending suit ; on a motion to punish said solicitor and editor for con- 
 tempt, the motion was granted as to the solicitor and denied as to the editor. (See 
 Coleman v. West Hartlepool R'wy Co., 8 Weekly Rep. 734; Ex-parte Jones, 13 Ves. 
 237 ; Littler v. Thompson, 2 Beav. 1 29 ; Felkin v. L'd Herbert, 33 Law Jour. Ch. 294 ; 
 Lechmere Charlton's Case, 2 My. & Cr. 316; Ex-parte Smith, 21 Law Times, N. S. 
 294.) Publishing disparaging comments upon the court, or its officers, or its pro- 
 ceedings, is a contempt. Thus the New York Common Council, being enjoined by a 
 preliminary injunction from certain official action, passed resolutions declaring the 
 injunction illegal, proclaiming a resolution to disregard it, and imputing dishonesty 
 to the judge who granted it; held, the resolution was a contempt, (The People v. 
 Compton, 1 Duer, 512; affirmed, The People v. Sturtevant, 9 N. Y. 263 ; and see 
 Morrison v. Moat, 4 Edw. 25.) And where an officer of a corporation had a verdict 
 against him in an action for malicious prosecution, which verdict was sustained by 
 the court, the corporation voted him a sum of money, and passed a resolution to the 
 effect that in instituting the prosecution in question he had been actuated by motives 
 of public justice; this was held a lvhVcf ion upon the court, and a contempt. Rex v. 
 Watson, 2 Term R. 199.) Pending the trial of one Nlxen, in the Oyer and Ter- 
 miner. New York CHy, April, 1864, an article appeared in the New York Tribune, 
 headed, " A judicial outrage," and which was supposed to reflect upon the conduct of
 
 372 DEFENSES, [Cll. IX. 
 
 But if a preliminary proceeding is carried onforibus aper- 
 its, it would be privileged. We are not prepared to lay 
 
 the judge (G. G. Barnard) presiding on the trial of Xixon. The article was supposed 
 to have been written by Horace Greeley, and an order issued for him to show cause 
 before Judge Barnard why "he should not be attached for contempt. Instead of 
 showing cause, he moved for a writ of prohibition, which being denied, the following 
 order was made : 
 
 " In the Mutter of Horace Greeley upon an Order to show cause why he should not answer 
 for a Contempt of Court. — It is ordered by the court, that the said Horace Greeley, now here appearing 
 by I. T. Willams, Esq., his counsel, answer (and the answer under oath is waived) the following interro- 
 gations, and have until Monday next, being the 25th day of April inst.,at 11 o'clock A. M., to file answers 
 thereto, and be then heard in this court in defense of the accusation that he published a grossly inaccu- 
 rate report of the proceedings of this court in the Daily Tribune of April 14, 1864, in the language con- 
 tained in and recited in interrogatory the first. 
 
 "Interrogatory the First. — Did you write in manuscript the following matter, which appeared in 
 page 4, in column 2 thereof, in the New York Daily Tribune of Thursday, April 14,1864, to wit? 
 
 (" A judicial outrage." Here follows the article, portions of which contain the alleged contempt.) 
 
 '* Interrogatory Second. — If not, did you write in manuscript any part thereof? 
 
 " Interrogatory Third. — If not, did you see the same in manuscript or in proof before it was pub- 
 lished? 
 
 " Interrogatory Fourth. — If not, were you or not the responsible editor of the Tribune on the 14th 
 day of April, 1 Mil? 
 
 "Interrogatory Fifth. — If you did not write or see before publication the said matter, do you 
 know who is the author, or writer, or composer thereof, or did you not know that it was to be pub- 
 lished ? 
 
 "Interrogatory Sixth. — If you know the said author or writer, please name him. 
 
 '"Then follows a statement or report of the transactions in court, which were reported and commented 
 on in the Tribune, and a disclaimer from the court of any complaint as to the editorial comments, but 
 only as to what purports to be a report of the proceedings in court." 
 
 To these interrogatories Mr. Greeley made and filed the following statement: 
 
 " Horace Greeley, in the above-entitled proceedings referred to, protesting against the jurisdiction of 
 this court over his person, and over the proceedings now being taken, and insisting that they are irregu- 
 lar and without warrant of law, and further insisting that he ought not to be asked, and cannot legally 
 be compelled, to answer questions upon a charge which is in its nature criminal, and for which he may 
 be exposed to indictment, both as a misdemeanor for a contempt as well as for a libel, and further insist- 
 ing that the said article, in the order to show cause in these proceedings referred to, is not a report of 
 the proceedings of a court, but, on the other hand, is simply an editorial criticism, based upon a report 
 of such proceedings contained In a newspaper called the Evening Express, published two days before 
 said editorial article was published, to wit, on the 12th day of April instant. 
 
 " For answer to the interrogatories filed and served on him, says that he is now, and ever since its 
 foundation has been, the principal editor of the newspaper called the Tribune, and is one of its proprie- 
 tor?, by being a stockholder of the corporation that publishes the same. That as such editor and propri- 
 etor he is subject to all the responsibilities that justly pertain to that relation. Believing that this 
 avowal is a substantial answer to all the interrogatories propounded to him, he most respectfully de- 
 clines to answer any questions that may expose any of his associates in the editorship and publication 
 of said newspaper, to the discipline of this tribunal, preferring to abide the consequences, be they what 
 they may." 
 
 The court being satisfied that no disrespect was intended, discharged Mr. 
 Greeley. 
 
 As to contempts by publications reflecting on courts, &c, see R> Van Hook, 8 
 City Hall Recorder, 64 ; Re Spooner, 5 Id. 109 ; Re Strong, Id. 9 ; Be Yates, 4 Johns. 
 317 ; 6 Johns. 337; Re Eliz. Mayer, 2 Barnard. 43 ; Ex-parte Jones, 13 Yes. Jr. 237 ; 
 Re Crawford, 18 Law Jour. 225, Q. B.; 13 Jur. 955: Ex-parte Turner, 3 Mont. D. & 
 G. 523 ; Re Van Sandau, 1 De Gex, 55 ; Birch v. Walsh, 10 Ir. Law R. 93 ; Rex v.
 
 § 231.] REPORTS OF JUDICIAL PROCEEDINGS. 373 
 
 clown the law that the publication of preliminary inquiries 
 before magistrates is invariably lawful, but Ave are not 
 prepared to lay clown the law that the publication of such 
 inquiries is invariably unlawful. There is no distinction 
 between one court and another as respects the right of 
 publishing reports of their proceedings, provided the pro- 
 ceedings be had publicly, and not ex parte} And where 
 a preliminary examination is publicly conducted, in the 
 presence of the accused, there seems to be no reason why 
 the same rule should not aj:>ply to such a proceeding, as to a 
 trial. No privilege can be claimed for a report of an ex parte 
 proceeding, 2 but probably it is now settled that a fair report 
 
 Lee, 5 Esp. 123; Rex v. Hart, 1 Camp. 359; 1 Hawk. PI. Cr., ch. 73 ; Re Crawford, 
 13 Q. B. 613 ; Starkie on Slander, by Folkard, ch. xxxvi; Moulton v. Clapham, Sir 
 W. Jones, 431 ; March on Slander, 20 ; Hollingsworth v. Duane, J. B. Wallace, 77 ; 
 Bayard v. Passmore, 3 Yeates, 438; Respublica v. Oswald, 1 Dallas, 319; Richmond 
 v. Dayton, 10 Johns. 393 ; Folger v. Hoogland, 5 Johns. 235 ; Re Bronson, 12 Id. 460 ; 
 The People v. Freer, 1 Cai. 485 ; The People v. Few, 2 Johns. 290 ; 2 Stark. Slander, 
 ch. xiii; Solicitor's Journal, 1864, page 142 ; An Inquiry into the Doctrine lately 
 Propagated concerning Attachments for Contempts, <fec, by an English Constitution 
 Crown Lawyer, London, 1769. (Historical Soc. Lib. N. Y.) See a pamphlet entitled 
 Bights of Corporations and Reporters, published at Columbia, South Carolina, A. D. 
 1857, containing the report of the case of Robert W. Gibbs v. Edward I. Arthur and 
 John Burdell. The City Council held, in 1855, a public meeting. The plaintiff, the 
 editor of one of the city papers, being present, was asked by the mayor whether he 
 had come to take notes of the proceedings. The plaintiff answering in the affirmative, 
 the ma}'or ordered him to leave, which on the plaintiff's refusing to do, he was, on the 
 mayor's orders, ejected by a police officer. The plaintiff sued the mayor and the 
 officer, and the defense interposed was in the first instance that the mayor acted on a 
 resolution of the city council forbidding the presence of reporters at their meetings, 
 and subsequently the defense was set up that the city council had authorized the 
 publication of their proceedings in a paper other than that with which the plaintiff 
 was connected. Both these defenses failed, and the plaintiff recovered damages for 
 being ejected. 
 
 1 Lewis v. Levy, 36 Law Jour. R. 282, Q. B. ; 1 El. B. <fe E. 537. 
 
 2 Publishing the contents of an ex-parte affidavit, made to obtain the plaintiff's 
 arrest, is not privileged as a report of judicial proceedings. (Cincinnati, <fec. Co. v. 
 Timberlake, 10 Ohio, N. S. 548.) Report of ex-parte preliminary proceedings not 
 privileged. (Duncan v. Thwaites, 3 B. & C. 556; 5 D. & R. 447; Rex v. Lee, 5 Esp 
 123; Currie v. Walter, 1 B. & P. 523; Huff v. Bennett, 4 Sandf. 127; Stanley v. Webb, 
 A Sandf. 21 ; 8 N. Y. 209; Matthews v. Beach, 5 Sandf. 256; Hoare v. Silverlock, 9 
 C. B. 20.) It was held by Martin, J., in Pinero v. Goodlake (15 Law Times, X S. 
 676), that a fair report of proceedings before a magistrate was privileged.
 
 374 DEFENSES. [Ch. IX. 
 
 of a proceeding before a magistrate, not being ex parte, is 
 privileged. It being shown that the proceeding is judicial, 
 in a public court, and not ex parte, a fair report of it is pri- 
 vileged. Thus, in an action for libel, it appeared that the 
 defamatory matter was published in a fair report of pro- 
 ceedings before two judges at chambers, on applications 
 under the Bankrupt Act, 5 & 6 Victoria, chapter 122, and 
 it was held that the proceeding was judicial, and the report 
 privileged. 1 And in respect to proceedings in jail under 
 the same statute, and before a registrar in bankruptcy, it 
 was held that the jail was a public court, and the proceed- 
 ings judicial, and the report being a fair one, was privi- 
 leged, although it affected a person not a party to the 
 proceedings. 2 A committee of the House of Lords is a 
 
 1 Simpson v. Robinson, 12 Adol. & El. N. S. 511 ; Smith v. Scott, 2 Car. <fe K. 
 580. 
 
 * Ryals v. Leader, Law Rep. 1 Ex. 296. Reports of proceedings in the bankruptcy 
 court said to be privileged. (Behrens v. Allen, 3 Fost. & F. 135; and by Cockburn, 
 Ch. J., in Wason v. "Walter, Law Rep. IV, Q. B. 93.) "Our law of libel has, in many 
 respects, only gradually developed itself into anything like a satisfactory and settled 
 form. The full liberty of public writers to comment on the conduct and motives of 
 public men has only in very recent times been recognized. Comments on govern- 
 ment, on ministers and officers of state, on members of both houses of Parliament, on 
 judges and other public functionaries, are now made every day, which half a century 
 ago would have been the subject of actions or ex officio informations, and would have 
 brought down fine and imprisonment on publishers and authors. Yet who can doubt 
 that the public are gainers by the change, and that, though injustice may often be 
 done, and though public men may often have to smart under the keen sense of wrong 
 inflicted by hostile criticism, the nation profits by public opinion being thus freely 
 brought to bear on the discharge of public duties? Again, the recognition of the 
 right to publish the proceedings of courts of justice has been of modern growth. Till 
 a comparatively recent time the sanction of the judges was thought necessary even 
 for the publication of the decisions of the courts upon points of law. Even in quite 
 recent days, judges, in holding publication of the proceedings of courts of justice law- 
 ful, have thought it necessary to distinguish what are called ex-parte proceedings as a 
 probable exception from the operation of the rule. Yet ex-parte proceedings before a 
 magistrate, and even before this court, as, for instance, on applications for criminal 
 informations are published every day, but such a thing as an action or indictment 
 founded on a report of such an ex-parte proceeding is unheard of, and, if any such 
 action or indictment should be brought, it would probably be held that the true 
 criterion of the privilege is, not whether the report was or was not ex-parte, but 
 whether it was a fair and honest report of what had taken place, published simply 
 with a view to the information of the public, and innocent of all intention to do 
 injury to the reputation of the party affected."
 
 § 232.] REPORTS OF JUDICIAL PROCEEDINGS. 375 
 
 public court, and a report of their proceedings is privi- 
 leged. 1 A report of the proceedings before a grand jury 
 have been held not to be privileged. 2 The register of 
 protests of bills and notes in Scotland, established by 
 statute, was held a public document, to which every one 
 had a right of access, and the publication of which was 
 privileged. 3 Where one who had been convicted of mur- 
 der and sentenced to death, while on the scaffold, and just 
 before his execution, made a speech, in which he reflected 
 upon one of the counsel who defended him on his trial, it 
 was held that a report of this speech published in New 
 York by the defendant in a newspaper of which he was 
 editor, was not privileged either at common law or by the 
 statute. 4 
 
 § 232. Where the judicial proceeding is public, and 
 not ex parte, the report of what takes place is not the less 
 privileged because published pending the proceeding, and 
 before it has terminated; thus where a declaration for 
 libel set out, in three separate counts, reports of three 
 separate days' proceedings, respectively, (on two adjourn- 
 ments,) before a magistrate ; the report of the first day 
 
 1 Kane v. Mulvany, 2 Ir. Com. Law, 402. 
 
 2 McCabe v. Cauldwell, 18 Abb. Pra. R. 37T. The true ground for this decision 
 was that a proceeding before a grand jury is a secret ex parte proceeding, although 
 it seems to rest on the assumption that a grand jury is not a "judicial body." As to 
 report of a coroner's inquest, see East v. Chapman, M. & M. 46. The publication of 
 a report of commissioners appointed to inquire into corporations, held not to be 
 privileged. (Charlton v. Walton, 6 C & P. 385.) A statement in a printed sheet 
 issued by the Police Commissioners, to members of the force, to the effect that 
 plaintiff had been dismissed from his situation under said Commissioners, as Inspector 
 of Hackney carriages for fraud in his accounts, held not privileged. (Jackson v. 
 Mayne, 19 Law Times, N. S. 399.) A publication of a report of an Inspector of 
 Charities, under the charitable trust act, held not to be privileged. (Cox v. Feeny, 
 4 Fost. & F. 13.) 
 
 2 Fleming v. Newton, 1 CI. <fc Fin. N". S. 363. 
 
 4 Sanford v. Bennett, 24 N. Y. 20. See Statute referred to in note to § 229 ante. 
 If a highwayman shall at the gallows arraign the justice of the law, and of those 
 who condemned him, he who publishes (the highwayman's language) shall not go 
 unpunished. (4 Read. Stat. Law, 154; Dig. LL. 32.)
 
 376 DEFENSES. [Cll. IX. 
 
 stating that the plaintiff was charged with perjury, and 
 an adjournment, but reserving the report; the report of 
 the second day also stating an adjournment in language 
 intimating that there would be a report of the proceedings 
 of the day to which the adjournment was ; and the third 
 stating the discharge of the party charged ; and the jury 
 found generally that the reports were fair and correct. 
 Held, that the reports of the first two meetings did not 
 lose the privilege by reason of the proceedings there 
 reported not being final. 1 And in the same case, if we 
 correctly interpret the report, it was held that the pri- 
 vilege of publishing a report of preliminary proceedings 
 is not lost by the fact that the proceeding terminates in 
 the discharge by the magistrate of the party accused. 
 
 § 233. By becoming a member of a church the in- 
 dividual tacitly consents to submit to the church discipline. 2 
 The proceedings of the church to enforce its discipline are 
 quasi judicial, and therefore those who complain, or give 
 testimony, or act, or vote, or pronounce the result, orally 
 or in writing, acting in good faith and within the scope of 
 the authority conferred by this jurisdiction, and not falsely 
 or colorably making such proceedings a pretence for cover- 
 ing an intended scandal, are protected by law. 3 One 
 Miss Mary Jerom was the daughter of Quaker parents, 
 and she was educated in that persuasion. She having 
 acted in disobedience to the rules of the congregation, by 
 frequenting places of public diversion and otherwise, she 
 was warned to discontinue such practices, where upon she 
 
 1 Lewis v. Levy, 1 El. B. & E. 537. 
 
 ; Remington v. Congdon, 2 Pick. 310; Jarvis v. Hathaway, 3 Johns. 180; Holt 
 on Libel, 236; Shelton v. Nance, 7 B. Monr. 128; Whittaker v. Carter, 4 Ired. 461. 
 
 3 Farnsworth v. Storrs, 5 Cush. 412 ; Fairchild v. Adams, 11 Cush. 549 ; Smith v. 
 Youmans, 3 Hill (So. Car.) 85. If words, actionable in themselves, be spoken 
 between members of the same church, in the course of their religious discipline, and 
 without malice, no action will lie ; and the jury are to decide whether there be 
 malice or not. (Jarvis v. Hathaway, 3 Johns. 180.)
 
 § 233.] CHURCH DISCIPLINE. 377 
 
 absented herself from the meetings, and declared that she 
 no longer regarded herself as one of their body. After 
 various fruitless attempts to reclaim her, the society 
 proceeded in the usual way to a sentence of expulsion, 
 which was reduced to writing, approved at a monthly 
 meeting, and read by the defendant Hart, as clerk of the 
 meeting, at a subsequent meeting for worship. This 
 sentence of expulsion recited that the prosecutrix was 
 born of Quaker parents, and educated in that society, but 
 that, not regarding the truth they professed, she had 
 imbibed erroneous notions ; divers part of her conduct 
 was inconsistent with a life of self-denial, and the futile 
 attempts made to reclaim her; then declared her not a 
 member of the society, until by repentance she acknow- 
 ledged scripture doctrine. Miss Jerom, hearing of this 
 sentence, sent her servant to the defendant for a copy, 
 which he sent her under cover. After failing in an 
 application for a criminal information, Miss Jerom procured 
 the defendant to be indicted, tried, and convicted, for libel. 
 On motion for a new trial, the court held that, no express 
 malice being shown, the jury ought to have been directed 
 to acquit the defendant, and ordered a new trial. 1 A vote 
 passed by a board of trustees of a church, censuring C, a 
 former treasurer of such church, for obstinately retaining 
 the church funds received by him as such treasurer in his 
 hands, and refusing to pay them over, is privileged ; but 
 if published maliciously, will support an action. 2 A 
 communication of a church member, complaining of the 
 conduct of his clergy, addressed to their common superior, 
 
 1 Rex v. Hart, 1 W. Blacks. 386 ; 2 Burns' Eccles. Law, 779. 
 
 5 Holt v. Parson, 23 Texas, 9. In an action for libel, the defendant pleaded that 
 the words were used without malice, in a complaint to a churcli, of which both 
 parties were members, for the purpose of bringing the plaintiff to trial before a 
 committee thereof. The plaintiff replied that the charge was made willfully an I 
 maliciously: to which replication the defendant demurred. Held, that the replication 
 was sufficient, although it contained no averment of want of probable cause. (])i a 
 v. Holter, Ohio, N. S. 228.) 
 25
 
 378 DEFENSES. [Cll. IX. 
 
 is privileged. 1 And if a selectman, acting in his official 
 capacity, accuse a member of the church of voting tw ice 
 on the same ballot, it is privileged. 2 
 
 § 234. The privilege extended to proceedings to en- 
 force church discipline, applies only to cases where both 
 parties are members of the church. A complaint, to a 
 church, against one of its members by one who is not a 
 member, is not privileged ; neither would such a complaint 
 by a member against one who is not a member, be pri- 
 vileged ; 3 but if the party accused voluntarily submits 
 himself to the discipline of the church, all the proceedings 
 are privileged. 4 Where a vote of excommunication from a 
 church has been j>assed, and the offender thereby declared 
 to be no longer a member, a subsequent reading of the 
 sentence by the pastor, in the presence of the congregation, 
 is privileged. 5 
 
 § 235. The publication of defamatory matter is not 
 privileged, because made at a public meeting. 6 But at 
 meetings of public bodies, having certain duties to perform, 
 what is said in the exercise of such duties, pertinent to 
 the matter in hand, and within the jurisdiction of the 
 meeting, is privileged. Where at a meeting of a board of 
 public officers, the commissioners of the New York 
 Central Park, and in the course of a debate as to employ- 
 ing the plaintiff to do certain work for said commissioners, 
 the defendant, a member of the board, objected to the 
 employment of plaintiff on the ground that he had pub- 
 lished an obscene libel ; held, that the charge, being 
 pertinent to the subject under discussion, was privileged, 
 
 1 O'Donoghue v. McGovern, 23 Wend. 26. 
 9 Bradley v. Heath, 12 Pick. 163. 
 
 3 Coombs v. Rose, 8 Blackf. 155. 
 
 4 Remington v. Congdon, 2 Pick 310. 
 6 Farnsworth v. Storrs, 5 Cush. 412. 
 
 6 Lewis v. Few, 5 Johns. 1 ; Anthon, 75 ; Davison v. Duncan, 7 El. <fe Bl. 229 ; 3 
 Campbell's Ch. Justices, 64, note.
 
 § 235.] PUBLIC MEETING. 379 
 
 and to entitle the plaintiff to maintain an action in respect 
 of it, he nmst establish* that the charge was made without 
 reasonable or probable cause. 1 The defendant at a parish 
 meeting for the nomination of overseers, imputed to the 
 plaintiff who was put up for re-election, that whilst hold- 
 ing office previously, he had mis-appropriated the parish 
 moneys, it was held to be privileged if made bona fide? 
 A shareholder of a railway company, having summoned a 
 meeting of the shareholders, to which meeting he invited 
 the reporters to the press, to attend, and at which meeting 
 he made defamatory comments on the plaintiff, one of the 
 directors, in his connection with the company, held that 
 although they might have been privileged, if made at a 
 meeting composed only of shareholders, they were not 
 privileged at a meeting, at which other than shareholders 
 were present. 3 The plaintiff being one of the over- 
 seers, and the defendant assistant overseer of a township, 
 a rate was made on a railway company, against which 
 it appealed. Shortly before the hearing of the appeal, 
 a meeting of the overseers was called to consider the 
 matter, when it was resolved to abandon the rate, and a 
 vestry meeting was called to choose fresh overseers and 
 consider the propriety of removing the defendant from his 
 
 1 Viclev. Gray, 10 Abb. Pr. R. 1 ; 18 How. Pr. R. 550. At a meeting of the 
 proprietors of a fisher} 7 , a charge made by one proprietor against another, of having 
 violated the law regulating the fishery, was held to be privileged. (Bennett v. Burr, 
 8 Law Times Rep. N. S. 857.) The assessors of a town having been sued, applied to 
 the town for reimbursement of their expenses, incurred in defending on the ground 
 that they were sued in their official capacity. This was opposed because the suit 
 was brought against them for making false answers, under oath to interrogatories 
 proposed to them in another suit. The statement of a voter and tax-paver that they 
 had perjured themselves therein, made at a town meeting held to consider their 
 application, is privileged if made in good faith and without actual malice. (Smith 
 v. Biggins, 16 Gray, (Mass.) 251.) Where a rate payer was unable to attend a parish 
 meeting, assembled to investigate the accounts of a parish constable,he wrote a 
 letter to the meeting, containing defamatory matter respecting such constable, such 
 letter was held prima facie privileged. (Spencer v. Amerton, 1 Moo. & Rob. 470 
 and see g 239, post.) 
 
 4 George v. Goddard, 2 Fost. & F. 689. 
 
 3 Parsons v. Surgey, 4 Fost. & F. 'J 17.
 
 880 DEFENSES. [Ch. IX. 
 
 office. At that meeting the plaintiff imputed to the 
 defendant neglect of duty in collecting the rates, and 
 having made a rate which the overseers were obliged to 
 give up, to which the defendant retorted by saying that 
 the plaintiff had sold the rate-payers to the railway 
 company, and had received a bribe from them for that 
 purpose. After the meeting a person remarked to the 
 defendant that he ou^ht not to have said what he did 
 without some foundation for it ; to which the defendant 
 replied that he believed there was reason for thinking 
 that the plaintiff had had communications with the officers 
 of the railway company. An action having been brought 
 for the words used by the defendant at the meeting, queiy, 
 whether the words were spoken under circumstances which 
 rendered them a privileged communication? but held, 
 assuming they were, there was evidence of malice proper 
 to be left to the jury. 1 But it was held not to be a justi- 
 fication Vf a charge of official misconduct against a town 
 officer that the charge was made in open town meeting, 
 by the defendant, an inhabitant of the town, while 
 animadverting on the conduct of the plaintiff as such 
 officer, relative to a subject then before the meeting, in 
 which the defendant was interested as a qualified voter. 2 
 And where a resolution introduced into a county medical 
 society, for the expulsion of a member, upon the ground 
 that he had procured his admission by false pretences, and 
 without the legal qualifications, was held not to be pri- 
 vileged, because the society had no power to expel a 
 member for such a cause. 8 Where the defendant, one of 
 the selectman of the town, while he was acting as a public 
 officer, and at an election in an open town meeting, charged 
 the plaintiff with having put two votes into the ballot-box, 
 it was held that the charge was privileged, principally on 
 
 1 Senior v. Medland, 4 Hurl. & N. 843 ; 4 Jur. N. S. 1039. 
 
 3 Dodds v. Henry, 9 Mass. 262. 
 
 3 Fawcett v. Charles, 13 Wend. 473.
 
 § 236.] REPORTS OF PUBLIC MEETINGS. 381 
 
 the ground that the defendant had a duty to perform, 
 and that the charge was made in the performance of his 
 duty. 1 It was held 2 that defamatory matter concerning a 
 Roman Catholic Priest was not privileged by the fact of 
 its having been spoken at a meeting held to petition par- 
 liament against making a grant towards the support of a 
 Roman Catholic College. 
 
 § 236. Nor is the publication of defamatory matter 
 privileged because made in a true report of the proceed- 
 ings of a public meeting, for "there is no analogy between 
 the proceedings at a public political meeting, and the pro- 
 ceedings in a court of justice ; " 3 and therefore it has 
 been held that a publication of defamatory matter made 
 in a report of proceedings at a public meeting called to 
 petition parliament against making a grant in support of 
 a Eoman Catholic college, was not privileged. 4 And 
 where the defamatory matter was contained in a report of 
 the proceedings of a vestry meeting, it was held not to be 
 privileged; thus, an English statute 18 and 19 Vict., ch. 
 120, provided for the appointment of a medical officer in 
 each parish, who was to report from time to time to the 
 vestry, and such reports were to be published annually, 
 in the month of June. A report was made to the vestry 
 in February, and in the same month published by the 
 defendant in a newspaper of which he was the editor and 
 proprietor, in and as part of the proceedings of the vestry. 
 This report contained a charge of misconduct on the part 
 of the plaintiff; he sued the defendant for libel, and it 
 held that the publication, being a true report of what 
 took place at the vestry, did not render it privileged."' 
 
 lley v. Heath, 12 Pick. 163. 
 
 2 Hearne v. Stowell, 12 Adol. <fc El. 719. 
 
 3 Lewis r. Few, ■"> Johns, 1. 
 
 4 Hearne v. Stowell, 12 Adol. <fc El. 710; 4 Per. & D. GOfi; Wilson v. Reed, 2 Fost. 
 & F. 140; Pierce v. Ellis, (1 Jr. L. P., N. S. :,:, ; Davidson v. Duncan, 7 El. & B. 231. 
 
 s ropham v. Pickburn, 7 Hurl, it X. 891. Query, would the publication havi
 
 882 DEFENSES. [Ch. IX. 
 
 But in another case, a report of the condition of town 
 schools, made and published as required by law, by the 
 superintending school committee, and charging the pru- 
 dential committee of the district with unlawfully employ- 
 ing a teacher, and putting her in charge of a school, taking 
 possession of the school-house, and forcibly excluding the 
 general committee and the teachers employed by them, 
 but not imputing corrupt motives, held privileged. 1 And 
 so it was held that the publication, by a member of the 
 Massachusetts Medical Society, of a true account of the 
 proceedings of that society in the expulsion of another 
 member for a cause within its jurisdiction, and of the 
 result of certain suits subsequently brought by him 
 against the society and its members, on account of such 
 expulsion, is privileged ; although it speaks of the expelled 
 member as " the offender," and remarks that " the society 
 has vindicated its action in this case, and its right to act 
 in all parallel cases." 2 
 
 § 237. Tlie right to seek redress is not limited to seek- 
 ing it in a court of justice. 8 Every one who is aggrieved, 
 
 privileged had it been made by the defendant after the report had been published by 
 the vestry, as required by the statute ? (Id.) 
 
 1 Shattuck v. Allen, 4 Gray, 540; and see Haight v. Cornell, 15 Conn. 74. "Where 
 the defendant made a speech at a public meeting, and afterwards handed a copy of it 
 to the reporters, who published it in a newspaper, held that such publication was not 
 privileged (Pierce v. Ellis, 6 Ir. C, L. 55.) 
 
 - Barrow v. Bell, 1 Gray, 301. 
 
 3 Padmore v. Lawrence, 11 Adol. & El. 380; 3 Per. & D. 209; Kine v. Sewell, 3 
 M. & W. 297; Robinson v. May, 2 J. P. Smith, 3. Semble, that words spoken to a 
 police officer engaged in an endeavor to detect a crime, are privileged. (Smith v. 
 Kerr, 1 Barb. 155. See, however, Dancaster v. Hewson, 2 M. <fc R. 176.) Plaintiff 
 assaulted the defendant on the highway ; defendant, meeting a constable, 
 requested him to take charge of the plaintiff, and the constable refusing to arrest 
 the plaintiff unless the defendant would charge him with felony, the defendant did 
 so; held, on demurrer to the defendant's plea setting up these circumstances, that 
 they did not render the charge of felony a privileged publication. (Smith v. Hodg- 
 kins, Cro. Car. 276; and see Allen v. Crofoot, 2 Wend. 515; Lathrop v. Hyde, 25 
 "Wend. 448.) In Johnson v. Evans, 3 Esp. 32, plaintiff, a female, had been in the 
 employ of defendant, and on discharging her, some difference arose, the defendant 
 charging the plaintiff with endeavoring to cheat him respecting her wages, and said,
 
 § 237.] EEDEESS OTHER-WISE THAX JUDICIALLY. 383 
 
 or who has reasonable arid probable cause to believe him- 
 self aggrieved, may, in good faith, seek redress frorn 
 any body, officer or individual, having jurisdiction, 
 power or authority to redress the wrong or supposed wrong 
 (§ 238«). Whatever is spoken or written in such a 
 pursuit for redress is privileged. For defamatory matter 
 published in seeking relief other than from a court of 
 justice, the action is said to be analagous to an action for 
 malicious prosecution, 1 with a distinction or supposed dis- 
 tinction which may be illustrated as thus : that redress for 
 malicious prosecution cannot be had in an action in form 
 for slander or libel (§ 220), while for defamatory matter 
 published in seeking redress from any source other than a 
 court of justice, redress may be had in the form of an 
 action for slander or libel. To an action in form of slan- 
 der or libel, it is a defense merely to show the publication 
 was made to a court of justice, but it is not a defense 
 merely to show that the publication was made upon an 
 application for redress other than to a court of justice, 
 
 " She is a thief, and tried to rob rae of part of her wages." Defendant sent for a 
 constable to give plaintiff in charge, and repeated these words to the constable, 
 but did not give plaintiff in charge; the only publication proved was to the consta- 
 ble, and plaintiff was nonsuited. In an action of slander against the defendant, for 
 charging the plaintiff with theft, where it appeared that the words spoken were onlv 
 expressions of suspicion, founded upon facts detailed by him at the time, made pru- 
 dently and in confidence to discreet persons, in good faith, with a view to their aid- 
 ing him to detect the offender and recover the property stolen, it was held that thev 
 were not slanderous, but justifiable and proper. (Grimes v. Coyle, 6 B. Jlour. 301.) 
 The defendant having some cause to suspect the plaintiff of dishonesty, went to plain- 
 tiff's relations and made to them a charge of theft against tin- plaintiff; and it appear- 
 ing that the object in making the communication was rather t<i compromise the felony 
 than to promote inquiry, or to enable the relations to redeem the plaintiff's character, 
 the publication was held not privileged. (Hooper v. Truscott, 2 Bing. \. R. 457.) 
 Tie- defendant, having I by theft, w< ;it t*. the plaintiff's bouse with a police 
 
 officer, and, in answer to questions as to the object of his visit, accused plaintiff of the 
 theft, and stated the grounds of his belief. In an action of slander, held, that this was 
 a privileged communication, if ma re found bv 
 
 the jury. Nor is the privilege defeated by the fact that the charges were made in 
 the presence of third parties and in an intemperate manner. (Brown v. Hathaway, 
 13 Allen (Mass.), 3need, Law Rep. A", Q. !;. cos.) 
 
 1 Howard v. Thompson, 21 Wend. 319; Cook v. Hill, 3 Sandf. 349.
 
 384 DEFENSES. [Cll. IX. 
 
 unless it be also shown that the forum addressed had 
 jurisdiction and the application was honestly made — i. e. 
 in good faith and with reasonable and probable cau^e. 
 To support malicious prosecution, besides showing that 
 the prosecution has terminated, it must be shown that the 
 publication was without probable cause and with malice, 
 i. e. bad motive ; bad motive alone will not support the 
 action, if there was probable cause ; while to support an 
 action for a publication in seeking redress extra-judicially, 
 it is sufficient to show either want of jurisdiction in the 
 forum addressed, or want of probable cause or bad motive ; 
 for the right to appeal to a court of justice is general and 
 without reference to the motive wherever probable cause 
 exists ; but the right to seek redress, extra-judicially, is 
 limited to seeking it with probable cause and with a good 
 motive from a body, officer or individual having jurisdic- 
 tion or power to afford relief. In a case where the defend- 
 ant had written defamatory matter to the superior of the 
 plaintiff, an ecclesiastic, it was alleged in the conrplaint 
 that the publication was made maliciously; the plea was 
 in effect merely that the publication was made in seeking 
 redress from an officer having jurisdiction to grant relief. 
 On demurrer, the plea was overruled, and it was held that 
 to constitute a defense, the plea should have gone on and 
 alleged reasonable and probable cause for making the 
 complaint, and that it was made with good motives. 1 It 
 has been held that within the foregoing privilege, are: 
 petitions to the sovereign, 2 or to parliament, 3 or to the 
 legislature, 4 or to the lieutenant-governor of a province 
 (Canada), 5 or to the governor of a state. 6 a memorial pre- 
 
 1 In O'Donaghue v. McGovern, 23 Wend. 26, and in Perkins v. Mitchell, 31 Barb. 
 461, a distinction is made between a complaint made to a court of justice and a com- 
 plaint made elsewhere. 
 
 2 Hare v. Mellor, 3 Lev. 133. s 1 Lev. 240, and ante, note 4, p. 346. 
 4 Reid v. Delorme, 2 Brevard, 76. 
 
 6 Stai.ton v. Andrews, 5 Up. Can. Q. B. Rep. 211, O. S. 
 
 6 Gray v. Pentland, 2 S. & R. 23 ; 4 Id. 420 ; and see Rogers v. Spaulding, 1 Up. 
 Can. Q. B. 258; Corbett v. Jackson, id. 128.
 
 § 237.] EEDKES3 OTHERWISE THAN JUDICIALLY. 385 
 
 sentecl to a board of excise, 1 a petition to a council of 
 appointment praying the removal of the plaintiff from 
 office ; 2 a memorial to the post-office department charging 
 fraud on the plaintiff, a successful bidder for post-office 
 patronage; 3 a letter to the Secretary of War, with the 
 intent to prevail on him to exert his authority to compel 
 the plaintiff (an officer in the army) to pay a debt due 
 from him to defendant ; 4 a letter to the superior officer of 
 the plaintiff, having power to remove him, and charging 
 him with fraud in his office ; 6 a letter written to a bishop 
 informing him that a report was current in a parish in his 
 diocese, that the plaintiff, the incumbent of a district in 
 that parish, had assaulted a schoolmaster ; 6 charges pre- 
 ferred to a lodge of Odd Fellows by one member of that 
 lodge against another, and for an offense which the lodge 
 under its rules had the right to investigate. 7 The trustees 
 
 1 Vanderzee v. McGregor, 12 Wend. 545. 
 
 2 Thome v. Blanchard, 5 Johns. 508. Where the complaint is to a person compe- 
 tent to redress the grievance, no action lies against the publisher, whether his state- 
 ment be true or false, or his motives innocent or malicious. {Id.) See Harrison v. 
 Bush, 5 El. & Bl. 344. 
 
 3 Cook v. Hill, 3 Sandf. 341. A letter of complaint written to the Postmaster-Gen- 
 eral, bona fide, of even imaginary grievances, would be privileged ; and the defendant, 
 under the general issue, may show that it was written under such circumstances as 
 would make it a protected communication. (Woodward v. Lander, G C. & P. 548.) 
 
 4 Fairman v. Ives, 5 B. & Aid. 643 ; 1 D. <t R. 252. 
 
 5 Howard v. Thompson, 21 Wend. 319; Blake v. Pilfold, 1 M. <fc Rob. 198. A 
 petition of parties interested, to the proper authorities, against the appointment of 
 one on the ground of his bad character, as disqualifying him fur the appointment, is 
 not actionable as a libel. (Harris v. Harrington, 2 Tyler, 129.) A letter from an 
 inhabitant of a school district, to the school committee, complaining of a school- 
 teacher, is conditionally privileged. (Bodwcll v. Osgood, 3 Pick. 379; and see Main- 
 land v. Bramwell, 2 Fost. & F. 623.) 
 
 6 James v. Boston, 2 C <fe K. 4. If written merely with the honest intention of 
 calling the attention of the bishop to a rumor in the parish, which was bringing scan- 
 dal on tin; church, and not from any malicious motive ; and it is not material that the 
 writer of the letter did not live in the district to the incumbent of which the letter 
 refers. (Id.) And see O'Donaghue v. McGovern, 23 Wend. 26. 
 
 " Streety v. Wood, 15 Barb. 105. Where A. accused B. of theft before certain 
 members of a lodge of Odd Fellows, of which both were members, and in an action for 
 slander by A., B. attempted to justify what lie said, by showing that it was the duty 
 of Odd Fellows to keep their lodge pure, the justification was held to he insufficient. 
 (Holmes v. Johnson, 11 Ired. 55). Defendant, who was a sergeant in a volunteer
 
 386 DEFENSES. [Ch. IX. 
 
 of the College of Pharmacy in New York appointed a com- 
 mittee to inquire and report upon the capacity of the plain- 
 tiff as drug ins]^ector of the port of New York, with a view 
 upon the facts reported to petition for the removal of the 
 plaintiff from his office. The committee made a written 
 report to the board of trustees, who forwarded it to the 
 Secretary of the Treasury, — held that the report was privi- 
 leged. 1 The defendant, the deputy-governor of Greenwich 
 Hospital, wrote and printed a large volume, containing an 
 account of the abuses of the hospital, and reflecting with 
 much asperity upon many of its officers; he distributed 
 copies of this book to governors of the hospital only ; an 
 application for a criminal information against the defend- 
 ant was denied, with the observation that the distribution 
 had been only to persons competent to redress the griev- 
 ances complained of. 2 The defendant was clerk to a board 
 of guardians, and plaintiff the medical officer under said 
 board. C. was the relieving officer under said board. A 
 pauper was to be removed to another district, but previ- 
 ous to his removal he was to be examined by plaintiff. 
 The defendant, under the direction of the board, called 
 twice upon plaintiff, each time requesting him to make 
 the examination of the pauper ; but plaintiff neglected to 
 
 corps, of which plaintiff also was a member, represented to the committee by whom 
 the general business of the corps was conducted, that plaintiff was an unfit person to 
 to be permitted to continue a member of the corps ; that he was the executioner of 
 the French king, cfec. Lord Ellenborough held the communication privileged. (Bar- 
 baud v. Hookham, 5 Esp. 109.) 
 
 1 Van Wyck v. Aspinwall, 17 N. V. 190, affirming S. C. sub. nam. Van Wyck v. 
 Guthrie, 4 Duer, 268; and see Haight v. Cornell, 15 Conn. 74. 
 
 3 Rex. v. Baillie, 21 State Trials, 1; Andr. 229. In another case, the plaintiff had 
 been a general commanding a corps of irregular troops during the war in the Crimea. 
 Complaint having been made of the insubordination of the troops, the corps com- 
 manded by the plaintiff was placed under the superior command of V. The plaintiff 
 then resigned his command, and V. directed S. to inquire and report on the state of 
 the corps, and referred S. to the defendant for information. Defendant, in a conver- 
 sation with S., made a defamatory statement in respect to the plaintiff on his giving 
 up the command of his corps : held that it was properly left to the jury to say whether 
 the communication was relevant to the inquiry. (Beatson v. Skene, 5 Hurl. & N. 83S.)
 
 § 238.] EEDRESS OTHERWISE THAN JUDICIALLY. 387 
 
 make such examination. The defendant afterwards went 
 to C. and complained of this neglect on plaintiff's part, and 
 stated that plaintiff was " not sober," or, as appeared on 
 the trial, "as drunk as a sow." Whereupon C. served 
 plaintiff with a formal order to make the examination, — 
 held that the statement by defendant to C. was condition- 
 ally privileged. 1 The defendant, a subscriber to a charity, 
 wrote a letter to the committee of manas;ement of the 
 society concerning the plaintiff, their secretary, — held 
 privileged, if made in an honest belief in the truth of the 
 statements. 2 And where the defendant was a life governor 
 and medical officer of a public school, to which school 
 plaintiff supplied butchers' meat, the defendant stated to 
 the steward of the school that defendant sold meat by the 
 yard, and had been hooted out of the market, innuendo 
 that he sold bad meat. It appearing that it was the 
 steward's duty to examine the meat supplied to the 
 school, held that if the defendant's statement was with- 
 out malice it was privileged. 3 The defendant, the com- 
 manding officer of a regiment, wrote letters to his imme- 
 diate superior, containing charges against the plaintiff, 
 the colonel in command ; defendant also had a conversa- 
 tion with a member of parliament as to a question to be 
 put in the House of Commons relative to the dismissal of 
 the plaintiff. It was hejd that both the letters and the 
 conversation were privileged, if made without malice. 4 
 
 § 238. The privilege referred to in the last preceding 
 section exists not only where the body officer, or in- 
 dividual appealed to has direct jurisdiction or power, but 
 also in the cases where there is an indirect jurisdiction or 
 power to afford redress: as thus where the plaintiff was 
 a justice of the peace for the county, and in the habit of 
 
 4 Suthm v. Plumridge, 16 Law Times, X. S. Til. 
 
 a Maitland v. Bramwell, 2 Fost. & F. 623. 
 
 '■' Humphreys v. Stillwell, -J Fosl & F. 590. 
 
 4 Dickson v. Wilton, 1 Fost. <k F. 419 ; see Bell v. Parker, 10 Ir. L. R. N. S. 279.
 
 388 DEFENSES. [Cll. IX. 
 
 acting- at petty sessions held in a "borough. The defendant, 
 an elector and inhabitant of the borough signed a 
 memorial addressed to the Secretary of State for the 
 Home Department, complaining of the conduct of plaintiff 
 as a justice during an election for a member to represent 
 the borough in parliament, and praying that he would 
 cause an inquiry to be made into the conduct of plaintiff, 
 and that on the allegations contained in the memorial 
 being substantiated, he would recommend to her Majesty 
 that plaintiff be removed from the commission of the 
 peace. The jury having found that the memorial was 
 Ijona fide, it was held that it was a privileged communica- 
 tion, inasmuch as plaintiff had both an interest and a 
 duty in the subject-matter of the communication; and the 
 Secretary of State had a corresponding duty, a justice of 
 the peace being appointed and removed by the sovereign. 1 
 And in the case where the plaintiff was an officer in the 
 army, and the defendant, a creditor of plaintiff's, wrote 
 concerning plaintiff to the Secretary of War, it was held 
 that although the Secretary had no direct power or 
 authority, yet as he might exercise some influence, the 
 communication was privileged. 2 
 
 An additional protection to persons seeking redress 
 extra judicially, from public officers, is found in the diffi- 
 culty, referred to hereafter, (§ 37 7 a) which the plaintiff 
 may experience in proving the publication of the defama- 
 tory matter. 
 
 1 Harrison v. Bush, 5 El. <fe Bl. 344. In Rex v. Bayley (3 Bac. Abr. tit. Libel, A 
 2, cited 5 B. & Aid. 647), the defendant had addressed a letter to General TVilles and 
 the four principal officers of the guards, to be by them presented to the King, stating 
 that the prosecutor had obtained from him (defendant | a warrant for the payment of 
 money due him (defendant) from the government under promise of paj-ing the 
 defendant such money, and that the prosecutor had received the money and not paid 
 it over to defendant. The court held this not a libel, but a representation of an 
 injury shown up in a proper way for redress ; yet neither the officers nor the King 
 coidd give the defendant direct assistance in obtaining payment of the money 
 wrongfully withheld. 
 
 2 Fairman v. Ives, 5 B. <fe Aid. 643 ; Perhaps Atkinson v. Congreve, 1 Ir. L. R. K 
 S. may be within the same rule.
 
 § 23Stf.] EEDEESS OTHERWISE TIIAX JUDICIALLY. 389 
 
 § 238a. That applications for redress extra judicially, 
 to a body officer or individual having power or jurisdic- 
 tion directly or indirectly, to afford redress are privileged 
 appears to be well settled, and the decisions, with only 
 two exceptions, either assume or expressly declare that 
 unless the power or authority to grant relief exists either 
 directly or indirectly, the publication is not privileged as 
 thus : where the defendant, a physician, gave a certificate 
 that the plaintiff was insane, on which to base proceedings 
 under a statute to have the plaintiff confined in an asylum ; 
 for the charge contained in this certificate the plaintiff 
 brought an action against the defendant, and it was held 
 that he could justify only by showing that the provisions 
 of the statute under which the certificate purported to 
 have been given had been strictly complied with. And 
 by the court, "Where one intervenes voluntarily in a 
 special proceeding not known to the common law, and 
 not resulting in a judgment according to its forms, he 
 must see that jurisdiction is acquired, and that there is in 
 reality a proceeding in court, before he can claim any 
 privilege." 1 A letter written to the Secretary of State, 
 complaining of the conduct of the plaintiff as clerk to a 
 board of magistrates, was held not to be privileged because 
 addressed to an officer not having power to redress the 
 wrong complained of. 2 The case lastly referred to was affir- 
 med in the Exchequer Chamber. So where the defendant at 
 a meeting of a county medical society, introduced a resolu- 
 
 1 Perkins v. Mitchell, 31 Barb. 461. 
 
 'Blaggv. Start, 10 Q. B. 899; 11 Jur. 181; 8 Law Times, 135; 16 Law Jour. 
 39, Q. B. In an action for libel it appeared that the defendant had lodged at the 
 plaintiff's house and on leaving missed a memorandum book and other articles, 
 whereupon he wrote a letter to the plaintiff's wife, in which he accused the plaintiff 
 of having taken the missing articles, and threatened to expose him if he did not 
 return them ; the jury found that there was no malice in fact, — Held, nevertheless, 
 the sending the letter to the wife was not a privileged publication — she had no 
 authority or power to redress the supposed wrong. (Wenman v. Ash, 13 C. B. 836 ; 
 22 Law J. Rep. (N. S.) C. P. 190; 17 Jur. 579; 1 Com. Law Rep. 51)2.) A letter 
 written merely confidentially is not thereby privileged. (Brooks v. iUancliard, 1 Cr. 
 &M. 779; 3 Tyrw. 844.)
 
 390 DEFENSES. [Cll. IX. 
 
 tion for tlie expulsion of plaintiff, a member of said society 
 which resolution — contained matter defamatory of the 
 plaintiff; in an action for libel for publishing said resolution, 
 it was held that inasmuch as the society had no power to 
 expel, a member, the publication could not be privileged, 
 as a means of seeking redress. 1 Again, 2 where the defama- 
 tory matter was contained in an affidavit made by the 
 defendant, at the request of one H. F. to be presented to 
 the Governor of the State of New York, to induce said 
 governor, to revoke a warrant issued by said governor, for 
 the arrest of said H. F. upon a requisition from the 
 Governor of California. After a finding by referees in 
 favor of the defendant, on the ground that the publication 
 was privileged, the Supreme Court at a General Tenn 
 ordered a new trial, and held there was no privilege 
 because the governor had no jurisdiction to revoke his 
 warrant, the court saying that in all cases of seeking 
 redress the " tribunal individual or body must be vested 
 with authority to render judgment, or make a decision in 
 the case, or to entertain the proceeding, in order to give 
 them the protection of privileged communications," One 
 of the two exceptions, above referred is the case where the 
 defendant a time keeper employed, on public works under 
 a public department, wrote a letter to the Secretary of the 
 Department, reflecting upon the contractor for the works. 
 The secretary had no authority over the contractor, but it 
 was held that if the letter was written in good faith, al- 
 though to the wrong person it was privileged. But that 
 the fact of the communication being made to a person 
 having no authority to afford redress, was a circumstance 
 from which want of good faith might be inferred. 3 This 
 was but a nisi prim decision, nevertheless we are of the 
 opinion, the contrary decisions, not with standing, that we 
 
 1 Fawcett v. Charles, 13 Wend. 473. 
 
 2 Hosmer v. Loveland, 19 Barb. 111. 
 
 3 Scarll v. Dixon, 4 Fost. & F. 250.
 
 § 2 3 9. J REDRESS OTHERWISE THAX JUDICIALLY. 391 
 
 have here the true rule of law. One who has reasonable 
 and probable cause to believe himself wronged, should be 
 privileged in applying to any source, which he has reason- 
 able and probable cause to believe can grant him redress. 
 In seeking redress judicially, a want of jurisdiction in the 
 court to which the complaint may be exhibited, does not 
 take away the privilege nor should it where the redress is 
 sought extra judicially. 1 The other of the two exceptions 
 above referred to is the case, 2 where the plaintiff was a 
 district school teacher, and the defendant a freeholder 
 within the school district. The alleged libel was a repre- 
 sentation signed by the defendants, charging the plaintiff 
 with not being " a man of strictly temperate habits, and 
 good moral character such as the law demands," etc. This 
 representation was delivered to the local superintendent 
 of schools, who not conceiving himself authorized to act 
 upon it, unless it came through the school trustees, handed 
 the document to them. On the trial the plaintiff had a 
 verdict. The court in banc granted a new trial and 
 observed that the publication was pr ima facie privileged 
 and not the less so because made by mistake to the wrong 
 quarter. 
 
 § 239. Where the privilege now under consideration 
 may be exercised by word of mouth, orally, it also may be 
 exercised by writing ; unless, perhaps, where it is shown 
 that it is exercised by writing rather than orally to serve 
 some unworthy purpose ; thus where an alleged libel con- 
 sisted of charges made by the defendant against the plain- 
 tiff, a constable, contained in a letter to a meeting of rate- 
 payers, it was held that inasmuch as the charge, if made 
 orally, would have been privileged, it was privileged when 
 made in writing, unless the plaintiff could establish that the 
 
 1 See note 1, p. 348, ante; 1 Wras. Saund. 138, Ed. of 1871. The creditor was mis- 
 taken in Fairman v. Ives, ante, note 2, p. 388 ; and the court held the defendant pro- 
 tected by "probable cause," in Howard v. Thompson, 21 Wend. 830. 
 
 2 McIntyre v. McBean, 13 Up. Can. Q. B. Rep. 534.
 
 392 DEFENSES. [Ch. IX. 
 
 defendant wilfully absented himself from the meeting as 
 a pretence for writing. 1 So where the defendant is pri- 
 vileged to present a petition or memorial for redress, he 
 does not forfeit his privilege by presenting the petition or 
 memorial to different individuals to obtain their signatures 
 thereto, nor, as it seems, by printing such petition or mem- 
 orial, provided the presenting for signatures or the printing 
 be done with a bona fide intent to cany out the purpose 
 of the petition or memorial, and not otherwise. 2 The 
 plaintiff was employed as manager of the factories of a 
 joint stock conrpany, and the auditors of the company, in 
 auditing the plaintiff's accounts, appended to their 
 report the following statement : — " The shareholders 
 will observe that there is a charge of 13061. for 
 deficiency of stock, which the manager is responsible for. 
 His accounts have been badly kept, and have been 
 rendered to us very irregularly." The directors submitted 
 their own report, together with that of the auditors, to the 
 ordinary general meeting of the shareholders of the com- 
 pany, according to the usual practice, and it was resolved 
 by the meeting that the reports should be printed and 
 sent to the shareholders. The reports, including the above 
 statement, were accordingly sent to a printer printed, and 
 circulated among the shareholders, and used at an ad- 
 
 1 Spencer v. Amerton, 1 M. & Rob. 470. 
 
 2 Vanderzee v. McGregor, 12 Wend. 455; Cook v. Hill, 3 Sandf. 341 ; Rex v. 
 Bailie, 21 State Trials, 1 ; Andr. 229; Van Wyck v. Aspinwall, 17 K T. 190. and 
 ante, note 2, p. 386. Where in an action of slander against the defendant, a surveyor, 
 employed by a committee to investigate the truth of reports against the plaintiff, as 
 having executed improperly contract work for them, which the defendant alleged on 
 such inquiry to be the case, held that such report was not a privileged communication, 
 it being found by the jury that the reports originated with the defendant and were 
 false. (Smith v. Matthews, 2 M. <fe Malk. 151.) An officer of the navy has no right 
 to make communications, except to the government, upon subjects with which he 
 becomes acquainted in his professional capacity ; and, therefore, a letter written to 
 Lloyd's Coffee-house, about the conduct of the captain of a transport-ship, by a 
 lieutenant who was superintendent on board, was held not to be a privileged communi- 
 cation. (Harwood v. Green, 2 Car. & P. 141 ; and see Robinson v. May, 2 J. P. 
 Smith, 3.)
 
 § 240.] GIVING INFORMATION OR ADVICE GENERALLY. 393 
 
 journed meeting of the shareholders. The plaintiff hav- 
 ing brought an action for libel against the company ; 
 held, that, as it was the duty of the directors to communi- 
 cate the report of the auditors to the shareholder, and it 
 was for the interest of all the shareholders to be informed 
 of the report, the printing and publication of the report 
 were prima facie privileged ; and there was no evidence 
 of express malice for the jury. 1 
 
 § 240. Every one has, also, and independently of the 
 privileges heretofore referred to, the right to publish all 
 that he has reasonable and probable cause to believe 
 necessary to protect his person, his property, or his repu- 
 tation from loss or injury. As where the defendant adver- 
 tised that his wife had eloped from him, and cautioned all 
 persons from trusting her, a motion for a criminal informa- 
 tion against him for making this publication was denied, 
 because the advertisement was the only means he could 
 adopt to protect himself. 2 So where A., who had dealt 
 with the defendant, a butcher, suddenly ceased to deal 
 with him, alleging as a reason that defendant had made 
 charges against him, A., for meat which had not been 
 delivered at A.'s house, the defendant wrote a letter to 
 A., protesting his innocence of the alleged overcharge, 
 and stating, in effect, that the meat had been improperly 
 disposed of by the defendant's servants. For writing this 
 letter, the plaintiff — whose wife was a servant in the family 
 of A. — brought an action for libel ; it was held that if by 
 the letter the defendant meant bona fide to defend himself, 
 it was a conditionally privileged publication. 3 The plain- 
 tiff, an attorney's clerk, made an affidavit in a suit in 
 
 1 Lawless v. Anglo Egyptian Cotton Co., Law Rep. IV. Q. B. 262. 
 
 1 Rex. v. Enes, Andr. 229, and sec ante, § 226. 
 
 3 Coward v Wellington, 9 C. & P. 531. The prosecutor published in a newspaper 
 matter reflecting upon tlie character of A. The defendant, an attorney, and the attor- 
 ney for A., publish e I a counter-.- tatement, held that if such statement was honestly 
 intended to vindicate A., it was privileged. (Reg. v. Vcley, 4 Fost. & F. 1117.) 
 26
 
 394 DEFENSES. [Cll. IX. 
 
 which the defendant appeared for an opposite party. The 
 affidavit reflected upon the defendant, whereupon defend- 
 ant wrote to plaintiff's employers complaining that the 
 affidavit of plaintiff suppressed the truth. The defend- 
 ant's letter held a conditionally privileged publication. 1 
 And where Q., having had no previous knowledge of B., a 
 trader, sold him goods to the amount of £62 10s., at two 
 months' credit, — upon going to B.'s shop at the expiration 
 of the credit, A. found that the whole stock in trade, 
 including a portion of the goods sold by him, had been 
 sold by auction the previous day, by B.'s desire, and at a 
 reduction of 30 per cent., and that the proceeds were in 
 the hands of S., the auctioneer. Upon inquiry, A. could 
 not learn where B. was to be found. He thereupon went 
 to his attorneys, and they, on his behalf, served on S. a 
 notice not to part with the proceeds of the sale, the said 
 B. having committed an act of bankruptcy. B. had, in 
 fact, committed no act of bankruptcy, the goods having 
 been sold for the purpose of his retiring from business. 
 Held, by Tindal, C. J., Coltman, J., and Erie, J. (Cresswell, 
 J., dissentiente), that A. had such an interest in serving the 
 notice as to render it a privileged communication, if it was 
 served with good faith and under the bona fide belief that 
 B. had committed an act of bankruptcy. 2 Where the 
 defendant published an advertisement as follows: "Ten 
 guineas reward. Whereas, by a letter received from the 
 West Indies, an event is stated to be announced by a 
 newspaper that can only be investigated by these means, — 
 this is to request that if any person can ascertain that J. D. 
 (the plaintiff, describing him) was married previous to 
 9 A. M. on, &c, and will give notice to J. (the defendant), 
 he shall receive the reward," — held that if the publication 
 was with the bona fide view of finding out the fact referred 
 
 1 Buckley v. Kiernan, 7 Ir. L. R. N. S. 75. 
 
 2 Blackham v. Pugh, 15 Law Jour. Rep. 290, C. P. ; 2 C. B. 611; approved, Davies 
 v. Sneed, Law Rep. V, Q. B. 511.
 
 § 240.] INFORMATION OR ADVICE GENERALLY. 395 
 
 to, it was privileged, and the jury found a verdict for the 
 defendant. 1 And where the libel was contained in an 
 advertisement stating the issue of process against the 
 plaintiff, and that he could not be found, and offering a 
 reward for such information as should enable him to be 
 taken ; plea, that a capias had been issued and delivered 
 to the sheriff, and that the plaintiff kept out of the way, 
 and that the advertisement had been inserted at the request 
 of the party suing out the writ, to enable the sheriff to 
 arrest ; held a sufficient defense. 2 The plaintiff had a liti- 
 gation with an insurance company of which the defendant 
 was the agent. The plaintiff published a pamphlet accus- 
 ing the directors of the company of fraud, &c. This was 
 met by a pamphlet published by the directors. After- 
 wards, a person desirous of effecting an insurance, inquired 
 of defendant as to the truth of the charges contained in 
 the plaintiff's pamphlet, and thereupon the defendant 
 handed to such person a copy of the pamphlet published 
 by the directors ; for this the plaintiff sued the defendant, 
 and it was held that the defendant's act was prima facie 
 privileged, and that if he acted without malice, no action 
 could be maintained. 3 An underwriter, in discussing with 
 the agent of the assured a claim for a total loss, made a 
 statement purporting to be founded upon a letter imply- 
 ing a design on the part of plaintiff to make a dis- 
 honest claim ; this was held to be privileged, unless made 
 with an intent improperly to reduce plaintiff's claim. 4 
 Plaintiff, a member of a church of which C. was curate, 
 was introduced by H., also a member of said church, to 
 the defendant, the incumbent of a parish in which plain- 
 
 1 Delany v. Jones, 4 Esp. 191. In Lay v. Lawson, 4 Adol. & El. 798, L'd Denman, 
 referring to Delany v. Jones, said, "I have great doubt whether, there, the interest 
 •which the wife had in the inquiry could justify the offering a reward in a newspaper." 
 See Finden v. Westlake, 1 Mo. & Malk. 4G1. 
 
 s Lay v. Lawson, 4 Ad. & El. 795. 
 
 3 Koenig v. Ritchie, 3 Fost. & F. 413. 
 
 1 nancock v. Case, 2 Fost. & F. 71 1.
 
 396 DEFENSES. [Ch. IX. 
 
 tiff was visiting, and where lie became acquainted with 
 F., one of defendant's parishioners. F. afterwards sued 
 plaintiff for the price of a horse and other matters, and 
 defendant was applied to by C. at plaintiff's instance, to 
 arbitrate between plaintiff and F. ; defendant at first 
 declined, and on being further pressed to act, wrote C, as 
 one reason for not acting, that plaintiff's conduct was so 
 bad that he should not like to have his name associated 
 with his affairs; and he enumerated certain charges 
 which he had heard made against the plaintiff, adding 
 that it grieved him much to make these statements 
 respecting a man who evidently wished to be considered 
 a religious man and a good church man, but that he 
 thought it was his duty to unmask him to C, and that 
 he would be thankful to be enabled to tell some of his 
 neighbors that plaintiff's position at C.'s church was not 
 quite what he (plaintiff) had led them to suppose it to 
 be. C. handed this letter to plaintiff, who brought an 
 action for libel against defendant. In an interview which 
 defendant afterwards had with said H., defendant com- 
 plained of the action which had been brought against 
 him, and spoke of what he had heard against plaintiff's 
 character. H. assured him he was mistaken, and that she 
 would question plaintiff about the truth of these charges. 
 She did so, and wrote defendant that she was confident he 
 had been misinformed about plaintiff, as he had assured 
 her there was not the slightest foundation for what was 
 reported of him, and stated the reasons plaintiff gave in 
 support of his character. Defendant wrote in reply, " Time 
 will show whether I have been misinformed or not respect- 
 ing Mr. W. (plaintiff). A writ has been served upon me, 
 and a public investigation must therefore take place. If 
 he states on oath, in the witness box, what he has stated 
 to you, especially as to the charge of assault, he will be 
 most certainly prosecuted for perjury, for there is not a 
 shadow of a doubt but that the complaint of the servant
 
 §241.] INFORMATION" OR ADVICE GENERALLY. 397 
 
 girl is correct." Plaintiff brought another action for libel 
 in respect of this last letter. The actions were consoli- 
 dated. The jury found there was no malice, and it was 
 held that both letters were privileged, and verdict entered 
 for defendant. 1 
 
 § 241. Every one who believes himself to be possessed 
 of knowledge which, if true, doee-or may affect the rights 
 and interests of another, has the right, in good faith, to 
 communicate ^ach his belief to that other (§§ 243, 244). 2 
 He may make the communication with or 'without any 
 previous request, and whether he has or has not personally 
 any interest in the subject-matter of the communication, 
 ('and although no reasonable or probable cause for the 
 belief may exist.J The right is founded on the belief. 
 " All we have to examine is whether the defendant stated 
 no more than what he believed, and what he might reason- 
 ably believe,-<¥ he stated no more th$n this, he is not 
 liable." 3 If A. believes that B. is intending to rob 
 C, he has the right to communicate his belief to C„ 
 without waiting for C. to inquire on the subject ; and if 
 in so doing he injures B., B. is without redress. The 
 exigencies of society require that such a right should exist. 
 A.'s duty to B. is simply not unnecessarily to injure him 
 (§ 48). This right must be exercised as every other right 
 is required to be exercised, in good faith (§ 40) ; and all 
 communications made in the exercise of this right are 
 conditionally privileged (§ 209). 4 The existence of this 
 
 1 Whitely v. Adams, 33 Law Jour. 89, C. P. 
 
 a Davis v. Ueeves, 5 Ir. L. Rep. N. S. 79; Owens v. Roberts, 6 id. 79. 
 
 3 Cockburn, Ch. J. Spill v. Maule, Law Rep. IV. Ex. 237. If a man act bona 
 fide on honest belief of the truth of statements., made to him by others whom ho 
 believes to be credible persons, he is justified in so acting upon such statements, if he 
 believes there is reasonable and probable cause for his so doing - . The question is 
 not whether they were right or wrong-, it is what they told the defendant. (Coctburn 
 Ch. J. Chatfield v. Comer ford, 4 Fost. & F. 1008.) Hearsay is probable ground for 
 belief. (Maitland v. Brarnwcll, 2 Fost. <fc F. 623; Lister v. Perryman, Law Rep, V. 
 Ho. of Lords, Add. Cas. 365; rev'sg Perryman v. Lister, Law Rep. in. Ex. 197.) 
 
 * For words " spoken in good faith, to those who have an interest in the com-
 
 398 DEFENSES. [Ch. IX. 
 
 right, as will presently be shown, in cases where the 
 communication is made by one having no personal interest 
 in the subject-matter of the communication, and without 
 
 »-" any previous request has been questioned, neverthelessA^e 
 feel justified in laying it down for law that the right exists 
 as well where there is not as where there is a previous 
 request, and whether the publisher has or has not any 
 such personal interest. The right, as we conceive, in no 
 wise depends either upon the fact of a previous request 
 or upon the interest of the publishers/although the fact 
 that the communication is made officiously, as it is termed, 
 i. e., unsolicited, or by one having no interests involved, 
 may in some cases have a tendency to disclose the motive 
 of the publisher in making the publication), The right, 
 wherefthe publisher is interested, or)where the communica- 
 tion is made upon the request of the party in interest, seems 
 
 x never to have been doubted f thus where the language 
 published imputed habits of intemperance to the plaintiff, 
 a dissenting minister, was held privileged because spoken 
 in answer to inquiries. 1 So a letter written to persons 
 
 munication, and a right to know and act upon the facts stated," no action can be 
 maintained without proof of express malice. (Shaw, C. J., Bradley v. Heath, 12 
 Pick. 163.) (If the words are spoken in good faith, no malice can be proved. To 
 prove malice would be to prove that the words were not spoken in good faith.) The 
 law respects communications made in confidence, notwithstanding they may be false 
 and erroneous, and prove injurious to the party. This rule applies equally to words 
 written and spoken. Note to Wyatt v. Gore, Holt's N. P. 299; and see ante, note 
 1, p. 392. And one part of a publication may be privileged, because made to a person 
 interested, and another part not privileged ; thus where the plaintiff and defendant 
 were jointly interested in property in Scotland of which C. was mnnager, defendant 
 wrote to C. a letter, principally about the property and the conduct of the plaintiff 
 with reference thereto, and containing a charge against the plaintiff with reference 
 to his conduct to his mother and his aunt ; held, that so much of the letter as related 
 to the property was privileged, but the remainder was not. ( Warren v, Warren, 1 
 Cr. M. & R. 250 ) And see Humphreys v. Stillwell, 2 Fost. «fc F. 590. 
 
 1 Warr v. Jolly, 6 C. & P. 497. A communication made bona fide upon any 
 subject matter in which the party communicating has an interest, or in reference to 
 which he has a duty, is privileged, if made to a person having a corresponding 
 interest or duty, although it contains criminatory matter which without this 
 privilege would be slanderous and actionable. (Harrison v. Bush, 5 El. & Bl. 344.) 
 Where a party has a mutual interest with another, he is justified in prevailing on him 
 to become party to a suit, and expressions of angry and strong animadversion on the
 
 § 241.] INFORMATION OR ADVICE GENERALLY. 399 
 
 who employed A. as their solicitor, conveying charges 
 injurious to his professional character in the management 
 of certain concerns which they had entrusted to him, and 
 in which B., the writer of the letter, was likewise inter- 
 ested, was held to he a privileged publication. 1 And 
 where A., being tenant of B., was desired by B. to inform 
 him if he saw or heard anything respecting the game. A. 
 wrote a letter to B., informing B. that his game-keeper 
 (the plaintiff) sold game, — held, that if A- had been so 
 informed, and believed the fact so to be, this was a 
 privileged communication, and that the game-keeper could 
 not maintain any action for libel. 2 So where the plaintiff 
 had requested his friend R. A. to open a correspondence 
 with the defendant in reference to certain charges made 
 by the defendant concerning the plaintiff, held that letters 
 written by the defendant to B. A. were privileged com- 
 munications. 3 Where in an action for libel it appeared 
 that the plaintiff was churchwarden and defendant clergy- 
 man of the same parish, and that differences having arisen 
 between them in that relation, the plaintiff requested that 
 the defendant's future communications should be by letter 
 to the plaintiff's clerk. The defendant afterwards applied 
 by letter to the clerk for rent which he conceived to be 
 due him from the plaintiff. The clerk answered that 
 defendant denied his liability, and in reply the defendant 
 wrote the clerk, " This attempt to defraud me of the 
 produce of the land is as mean as it is dishonest," — held 
 that the communication was not privileged in itself; that 
 it was a question for the jury whether the language was 
 
 conduct of the party impeached, unless malicious, are privileged; and, in the case 
 of words, the jury merely take into consideration the whole conversation, to see 
 whel ler particular words, which may be actiouable in themselves, are qualified so as 
 not to convey the primary meaning. (Shipley v. Todhunter, 7 C <fc P. 680.) 
 
 1 On the trial a juror was withdrawn. (McDougall v. Claridge, 1 Camp. 267.) 
 Representations as to stockholders. (Ilanna v. Dfi Blaguere, 11 Up. Can. Q. 13. 310), 
 as to school teacher. (Mclntyre v. McBean, 13 id. 584.) 
 
 a Cockayne v. nodgkisson, 5 C & P. 543. 
 
 3 Hopwood v. Thorn, 8 C B. 2!)3; Layer v. Begg, 15 Ir. L. Rep. N. S. 458.
 
 400 DEFENSES. [Ch. IX. 
 
 justified by the occasion, but that the judge was right in 
 directing the jury that the communication was actionable. 1 
 An attorney having at plaintiff's desire written the de- 
 fendant demanding payment of an alleged debt, the de- 
 fendant sent a letter to the attorney containing gross 
 imputations on the plaintiff's character, wholly uncon- 
 nected with the demand made upon him ; held not a 
 privileged communication, although the jury found that 
 the letter was written bona fide, and negatived malice in 
 fact. 2 A., the plaintiff, was party to a suit in chancery 
 by B., his next friend, who was answerable for the costs 
 of the suit. A. expressed a desire to change his solicitor 
 in that suit, which coming to the knowledge of the de- 
 fendant, he wrote a letter to B., in which, amongst other 
 things, he stated that A. had been apprenticed to a civil 
 engineer, and had had a present made him of his inden- 
 tures, because he was worse than useless in the office ; in 
 action of libel by A., held that the letter was a privileged 
 publication. 3 The owner of a building which has been 
 set on fire may caution the persons employed by him 
 therein against a particular person, suspected of being 
 the incendiary; and his statements to them, if made in 
 good faith for this purpose, are privileged communications, 
 although they contain an unfounded criminal charge 
 against the suspected person. 4 An insurance company, of 
 
 1 Tuson v. Evans, 3 Per. & D. 396. "Where, in an action for defamation, it appears 
 that a defendant, authorized by his relation to the party addressed to make a 
 "privileged communication," in professing to do so makes a falsa charge, the 
 nference of malice is against him, and the burden is put on him to show that he 
 
 acted bona fide. (Wakefield v. Smithwick, 4 Jones' Law (N. Car), 327; and see 
 Cole v. Wilson, 18 B. Monr. 212.) 
 
 2 Huntley v. "Ward, 6 C. B. N. S. 514 ; and see ante, note 2, p. 389. A claim having 
 been made against defendant's principal, he, defendant, wrote in reply and explaining 
 that plaintiff had no canse of action, held privileged. (Halloran v. Thompson, 14 
 Ir. L. It. N. S. 334.) A correspondence was had between plaintiff's attorney, and 
 defendant respecting a claim lor damages made by plaintiff against defendant, 
 defendant in justifying himself used defamatory language concerning the plaintiff* 
 held privileged. (Sayer v. Begg, 15 Ir. L. R. N. S. 468.) 
 
 8 Wright v. Woodgate, Tyr. & Gr. 12. 
 4 Lawler v. Earle, 5 Allen, 22.
 
 § 241.] INFOKMATION OR ADVICE GENERALLY. 401 
 
 which the defendant was president, made an insurance 
 against fire on the property of one Graves in the occupa- 
 tion of the plaintiff ; an application was made to the com- 
 pany to alter the policy ; the application was refused, and 
 notice given that the policy would be cancelled. Graves 
 inquired the reason for this, and was told by the defend- 
 ant that the company would not insure any building 
 occupied by plaintiff, as a building insured by the com- 
 pany and occupied by the plaintiff had been burned under 
 very suspicious circumstances, adding, " What would you 
 think of a man being; seen round the store at two or three 
 o'clock in the morning before the fire ? " this was held to 
 be a privileged communication. 1 The defendant had the 
 right to give to Graves a reason for the company refusing 
 to insure the building owned by him, and Graves was 
 interested to know the opinion the defendant entertained 
 concerning the plaintiff. So where the plaintiff was 
 secretary of the Brewers' Insurance Company, and he 
 being charged with misconduct was called upon to attend 
 a board of directors, for the purpose of explanation, but 
 declined to do so ; whereupon the directors, after hearing 
 the charges, passed a resolution that he had been guilty of 
 gross misconduct, and dismissed him. The defendant, a 
 director of that company and also of the London Necro- 
 polis Company, of which the plaintiff was auditor, com- 
 municated the fact of the plaintiff's dismissal "for gross 
 misconduct " at a board meeting of the latter company, 
 and proposed a resolution to dismiss him, and in answer 
 to an inquiry from the chairman, said that the misconduct 
 consisted in "obtaining money from the solicitors of the 
 company under false pretences, and paying a debt of his 
 own with it ; " in an action for slander it was held that the 
 publication was conditionally privileged. 2 The defendant 
 
 1 Liddlc v. Hodges, 2 Bosw. 537, affirmed 18 N. Y. 48. 
 
 2 Harris v. Thompson, 13 C. B. 329; see Parsons v. Surgey, 4 Fost. & F. 247.
 
 402 DEFENSES. [CL IX. 
 
 being a competitor with the plaintiffs for a contract with 
 the Navy Board for African timber, the plaintiffs obtained 
 the contract. Defendant then agreed to supply plaintiffs 
 with a portion of the timber, and made no objection to 
 taking their bills in payment. Afterwards this agreement 
 was rescinded, and defendant wrote to a merchant who 
 was to supply the timber to carry out the agrement, and 
 of whom the defendant was a creditor, and the sole 
 correspondent in London, reflecting on the plaintiffs' mer- 
 cantile character, and putting said merchant on his guard 
 against them. In an action for libel in making this com- 
 munication, a verdict having been found for the defendant 
 on the ground of privilege, the court granted a new trial. 1 
 The plaintiff was a dealer in beer, buying it of a brewer 
 and selling it to publicans. Plaintiff wishing to open an 
 account with the defendant, a brewer, one L., became his 
 (plaintiff's) surety for the price of such beer as defendant 
 should from time to time supply to plaintiff, he (defend- 
 ant) promising to inform L. of any default made by 
 plaintiff in his payments. After plaintiff and defendant 
 had dealt together for some time, defendant went to L. and 
 spoke in very abusive terms of plaintiff, saying he wished 
 to cheat him, and that he had returned as unmerchantable, 
 beer he (plaintiff) had adulterated, and that he was a 
 rogue, &c. At this time there was a balance due defend- 
 ant from plaintiff for beer, in respect of which L. was 
 liable on his guarantee. Lord Ellenborough inclined to 
 think the communication conditionally privileged; he 
 refused, however, to non-suit the plaintiff, and a juror was 
 withdrawn. 2 Plaintiff was engaged to superintend the 
 
 1 Ward v. Smith, 6 Bing. '749. In Van Spike v. Cleyson, Cro. Eliz. 541, it is said 
 not be actionable for one man to tell another confidentially not to trust another, if 
 done only by way of counsel. Words of a tradesman that he would soon be a 
 bankrupt, when spoken in confidence and friendship as a caution, held not to be 
 actionable unless the jury found there was malice. (Herver v. Dowson, Bull. N. P. 
 
 §•) 
 
 2 Dunman v. Bigg, 1 Camp. 268; and see Rex v. Jenneaur, 3 Bac. Abr. tit. Libel, 
 452; 2 Brownl. 151; 2 Burns' Eccles. Law, 179; Wilson v. Stephenson, 2 Price, 
 
 282.
 
 § 241^.] INFOKMATION- OE ADVICE GENEEALLY. 403 
 
 works of a railway company, and subsequently, at a 
 general meeting of the proprietors, the engagement was 
 not continued, but a former inspector was reinstated. 
 Afterwards a vacancy occurred in the situation of engineer 
 to the commissioners for improving the river Wear, and 
 the plaintiff became a candidate. The defendant wrote 
 to C. introducing D. as a candidate, and C. having written 
 defendant informing him that another person (the plaintiff) 
 had suceeded in obtaining the appointment, the defendant 
 wrote an answer to C. reflecting on the conduct of the 
 plaintiff whilst superintendent of the railway works. It 
 appeared that defendant and C. were both shareholders in 
 the railway company, and that defendant managed C.s' 
 affairs in the railway. Held, not a privileged publica- 
 tion. 1 
 
 § 241 a. A party is justified in giving his opinion bona 
 fide of the respectability of a tradesman in answer to an 
 inquiry concerning him / 2 thus it is said that the owner 
 of a public house cannot maintain an action against a 
 neighboring publican for giving a bad character of such 
 house to a person who, being in treaty for purchasing it, 
 applied to the defendant for information, provided (as is 
 stated) there is some evidence of the truth of the asser- 
 tion. 3 In an action for slander by the plaintiffs, bankers 
 at M., the charge was that in answer to a question from 
 one Watkins, whether he (defendant) had said that 
 plaintiffs' bank had stopped, defendant's answer was, " It 
 was true; he had been told so." The proof was that 
 Watkins met defendant and said, " I hear that you say the 
 
 1 Brooks v. Blanchnrd, 1 Cr. & M. 779. 
 
 3 Storey v. Challands, 8 C. <fe P. 234; otherwise when there is no inquiry. (Id.) 
 3 Humbert*. Ainge, Manning's Index, tit. Libel, pi. 13. Where aperson authorized 
 to make a privileged communication stated fal le matter, and the court left, it to the 
 jury to say whether "in communicating what he had lie ird and believed to be true," 
 he acted in good faith, and there was no evidence that he had heard anything, nor 
 none as to how he believed, it was held to be error. (Wakefield v. Smithwick, 4 
 Jones' Law(N. Car.), 827.)
 
 404 DEFENSES. [Ch. IX. 
 
 bank of B. <fc. S. (plaintiffs) has stopped. Is it true?" 
 Defendant answered, " Yes, it is ; I was told so," and added, 
 " It was so reported at C, and nobody will take their bills, 
 and I have come to town in consequence." Watkins said, 
 " You had better take care what you say ; you first brought 
 the news to town, and told Mr. John Thomas of it." Defend- 
 ant repeated, " I was told so." It further appeared that de- 
 fendant had in fact been told there was a run on plaintiffs' 
 bank, but not that it had stopped, or that nobody would 
 take the plaintiffs' bills. It was held on the trial that the 
 publication of the words alleged was proved, and the jury 
 were instructed that if they thought the words were not 
 spoken maliciously, the defendant ought to have a verdict. 
 The jury found for the defendant. On plaintiffs' motion a 
 new trial was ordered. On granting the new trial, the court 
 discussed at length the question of malice, and the supposed 
 distinction between malice in fact and malice in law, and 
 stating that there was no instance of a verdict for the de- 
 fendant on the ground of want of malice, held that instead 
 of instructing the jury that if the words were not spoken 
 maliciously they should find for the defendant, it should 
 have been left to the jury as a previous question whether 
 the defendant understood Watkins as asking for informa- 
 tion for his own guidance, and that defendant spoke what 
 he did merely out of honest advice to regulate the con- 
 duct of Watkins, then the question of malice in fact would 
 have been proper as a second question to the jury, if their 
 minds were in favor of the defendant upon the first. * * 
 In granting a new trial the court does not mean to say 
 that it may not be proper to put the question of malice as 
 a question of fact for the consideration of the jury ; for if 
 the jury should think that when Watkins asked his ques- 
 tion the defendant understood it as asked to obtain in- 
 formation to regulate his (Watkins') conduct, it will range 
 under the cases of privileged communication, and the 
 question of malice in fact will then be a necessary part of
 
 § 241«.] INFORMATION OE ADVICE GENERALLY. 405 
 
 the jury's inquiry ; but it was not left to the jury to con- 
 sider whether the question was understood by the defend- 
 ant as an application for advice, and if not so understood 
 the question of malice was improperly left to the jury. 1 
 Where a party interested in a build ing contract, on which 
 the plaintiff had been engaged, applied to the defendant 
 to recommend a surveyor to measure the work, when the 
 defendant stated that he had seen the plaintiff take away 
 some of the materials, upon which the plaintiff's employer 
 enquired of the defendant if he had seen plaintiff taking 
 them away, when he alleged that he had seen the plaintiff 
 taking them, and that he hallooed to him ; held, that the 
 judge properly directed the jury to say, first, whether the 
 words imputed felony ; and secondly, that even if they 
 did, the plaintiff was not entitled to recover, unless malice 
 were expressly shown, or the jury believed, from the cir- 
 cumstances, that the defendant was actuated by malicious 
 motives. 2 Where A. had sold goods to B., and afterwards, 
 and before the delivery of the goods, C, without being 
 asked or solicited in any way to do so, made representa- 
 tions to A. injurious to the credit of B. The representa- 
 tions were held not to be privileged, because made with- 
 out any previous request. 3 ' And where A., seeing that 
 apartments were to let at a house occupied by B., inquired 
 who was the landlord, of C. (a neighbor of B.'s) ; C. told 
 him, and added that B. had not paid his rent, and that if 
 A. moved in his goods they would be seized. B. having 
 sued C. for slander, the judge, at the trial, told the jury 
 " he thought it was a privileged communication by C, 
 unless they were of opinion it was made maliciously ; that 
 the question for them was, did the defendant honestly 
 believe, at the time he spoke the words, that the statement 
 contained in them was true, or was he actuated by malice 
 
 1 Bromage v. Pro33er, 4 B. & C. 247 ; 6 Dowl. & R. 29G. 
 
 s Kine v. Scwell, 3 M. & W. 297. 
 
 s King v. Watts, 8 C. & P. 614 ; and see Tattison v. Jones, 3 M. & R. 101.
 
 406 DEFENSES. [Ch. IX. 
 
 in making such statement ? — held that there was no mis- 
 direction. But the court granted a new trial, not being 
 satisfied of the fact whether C.'s statements were made 
 officiously or in answer to A.'s inquiries. 1 The plaintiff 
 was foreman to one Bryer, a bone merchant. In October, 
 
 1865, defendant gave Bryer an order for 100 quarters of 
 sheep's hoofs. Plaintiff by mistake delivered 120 quar- 
 ters. On the day following the delivery, plaintiff informed 
 a clerk of the defendant of the mistake, and made an ad- 
 ditional charge in defendant's account. In September, 
 
 1866, defendant called on Bryer, and said, " I lay 20 quar- 
 ters of sheep's hoofs to your foreman and my clerk. There 
 was an overture made by your foreman to divide the price 
 of the 20 quarters, and pocket the money between them. 
 It has been on my mind some time, and it is best to let 
 you know it. Your foreman made improper overtures to 
 my clerk to get the money for those 20 quarters and di- 
 vide whatever the amount was," this was held to be 
 privileged. 2 Whether a caution not to trust another, bona 
 fide given to a tradesman, without any inquiry on his part, 
 is a privileged communication, was discussed in Bennett v. 
 Deacon, 3 and it was held by Tindal, Ch. J., and Erie, J., 
 that it was, and by Coltman and Cresswell, JJ., that it 
 was not. The effect of a previous inquiry was very elabo- 
 rately discussed in a case where C, the mate of a ship, 
 wrote to the defendant, falsely charging his captain (the 
 plaintiff) with having endangered the vessel and lives of 
 the crew by continued drunkenness. The vessel was at 
 this time in port, and likely to continue there a few days. 
 The defendant, who was slightly acquainted with the 
 owner of the vessel, but was not interested in the vessel, 
 and had no inquiry made of him, believing in the truth of 
 the letter, showed it to the owner, who, in consequence, 
 
 1 Chapman v. Wright, 1 Am. 241. 
 
 2 Caulfield v. Whitworth, 18 Law Times, N, S. 527. 
 
 8 2 Com. B. 628; and see Lewis v. Chapman, 16 N. Y. 369.
 
 § 241.] INFORMATION OR ADVICE GENERALLY. 407 
 
 dismissed the captain. In an action for libel by the cap- 
 tain, upon these facts appearing on the trial, the chief 
 justice directed the jury that if the defendant acted hon- 
 estly and bona fide, the publication was justifiable, and 
 their verdict must be for the defendant ; if otherwise, for 
 the plaintiff. The jury found a verdict for the defendant. 
 On a motion for a new trial, after the case had been, at 
 the request of the court, twice argued, held, by Tindal, 
 C. J., and Erie, J., that the publication was justifiable, and 
 that the direction to the jury was right ; per Coltman, J., 
 and Cresswell, J., that the direction was wrong ; the court 
 being equally divided, the motion for a new trial was 
 denied, and the defendant had judgment. 1 Where W. went 
 to inquire of defendant the address of plaintiff, who had 
 previously been a tenant of the defendants, in the course 
 of a conversation which ensued, defendant spoke dispar- 
 
 3 Coxhead v. Richards, 15 Law Jour. R. 278, C. P. ; 10 Jur. 984 ; 2 C. B. 569. In 
 our opinion, the Chief Justice and Justice Erie were right, and Justices Cresswell 
 and Coltman wrong, and of the like opinion were the court in Davis v. Reeves, 5 Ir. 
 L. liep. N. S. 79. The importance of the principles involved justifies the reiteration 
 of our conclusion that the material question in such a case is, Wrs the communication 
 made bona fide to protect the interests of the person spoken to, without regard to its 
 effect upon the party spoken of", and without any ill-will towards or desire to injure 
 the person spoken of; if yea, it is privileged, and the absence or presence of a previ- 
 ous request is only material as evidence of the intent. This is conceded to be the 
 law in the case of an employer giving what is termed a character to an ex-employe, 
 and we shall show (§ 245) this latter act comes within the general rule of a communi- 
 cation made to prottct the interests of the person to whom the communication is 
 made. On the argument of Coxhead v Richards, 2 C. B. 591, Sir T. Wilde, for the 
 plaintiff, says: "The cases as to characters of servants are not in point. Judges may 
 have been wrong in supposing that a former master stands in a peculiar position. It 
 ma// be said that the servant authorizes the master to libel him" (note, p. 421, pod). But, 
 right or wrong, the cases proceed upon that distinction. (Erie, J. : In those cases it 
 is perfectly immaterial whether the party was a voluntees; the sole question is, 
 whether the information was given honestly and bona fide. Cresswell, J. : Mr. 
 Justice Bayley deals much more clearly with the principle upon which this class of 
 cases proceeds than Lord Tenterden does, in Pattison v. Jones.) And at pap;e 609, 
 Erie, J., denies that the relation of master and servant is the material one in cases of 
 privileged communication. The action of the defendant in the case now before us 
 seems to be as consistent with a natural and praiseworthy impulse to protect the 
 interest of the ship-owner, and to protect the lives of the persons committed to the 
 plaintiffs care, as with a desire to injure the pluiutiff, and should not be considered 
 as by itself evidence of malice.
 
 408 DEFENSES. [Ch. IX. 
 
 agingly of the plaintiff, and although W. told defendant 
 he did not come to inquire into plaintiff's character, but 
 only to obtain his address, defendant continued to speak 
 concerning the plaintiff, and used words imputing that he 
 was a swindler, but added that he spoke in confidence, in an 
 action for these words alleging special damage, it was held 
 proper to leave it to the jury to say whether defendant acted 
 with malice or bona fide for the purpose of putting W. on his 
 guard. 1 The defendant being tenant to A. of a house, B., the 
 agent of A., directed the plaintiff to do some repairs at the 
 house. The plaintiff did the repairs, but in a negligent man- 
 ner, and during the progress of the work got drunk ; cir- 
 cumstances occurred which induced the defendant to believe 
 that the plaintiff had entered his (defendant's) cellar, and 
 taken his cider deposited there. Two days afterwards, de- 
 fendant met the plaintiff in the presence of D., and charged 
 him with having got drunk and spoiled the work, and 
 broken into his (defendant's) cellar. The defendant after- 
 wards told D., in the absence of plaintiff, he was certain 
 plaintiff had broken open the door. On the same day, the 
 defendant complained to B. that plaintiff had been negligent 
 with the work, had got drunk, and, as he thought, had 
 broken open his cellar door. In an action of slander for 
 these three several publications, held, that the first and 
 third publications were conditionally privileged, and the 
 second was not privileged. 2 Where the defendant, a son- 
 in-law, addressed a letter to his mother-in-law, about to 
 marry the plaintiff, containing slanderous imputations 
 against him ; held, that the occasion justified the writing, 
 and that the j^iry were to say whether the defendant 
 acted bona fide, and under a belief of the truth, although 
 the imputations were false, and that such communications 
 were to be regarded liberally, unless a clearly malicious 
 
 1 Picton v. Jackman, 4 C. & P. 23*7. 
 
 1 Toogood v. Spyring, 1 Cr. M. & R. 181 ; 4 Tyrw. 582.
 
 § 241rt.] INFORMATION OR ADVICE GENERALLY. 409 
 
 intention was manifest in the act. 1 That the defendant 
 know of the falsity of the charge published, is a fact from 
 which malice may be inferred. 2 A letter to a woman 
 containing defamatory matter concerning her suitor, can- 
 not be justified on the ground that the w~riter was her 
 friend and former pastor, and that the letter was written 
 •at the request of her parents, who assented to all its con- 
 tents. 3 So if one not having been inquired of, write to 
 the family of a woman that the man she is about to marry 
 has been imprisoned for larceny, the communication is not 
 privileged. 4 But where the wife of A., prior to her de- 
 cease, made a request to B., after her (A.'s) decease, to 
 look to and advise her daughters. The wife of A. died, 
 and he remarried. B. told the daughters of A.'s deceased 
 wife that their step-mother was a loose woman, and that 
 they ought to leave their home ; this was held to be a 
 privileged publication. 5 The plaintiffs, printers at M., had 
 been employed by the defendant, the deputy clerk of the 
 
 1 Todd v. Hawkins, 8 C. & P. 88 ; 2 M. & Rob. 20. The court having instructed 
 the jury " that confidential communications, made in the usual course of business, 
 or of domestic or friendly intercourse, should be liberally viewed by juries," 
 held that the charge was right. (Stallings v. Newman, 26 Ala. 300.) A grand jury 
 had an indictment for theft of money before them, and a brother of the man who 
 had lost the money, returning from the court, stated that fact in answer to inquiries 
 made of him, and said that the general opinion was, that, if a certain person swore 
 what he had stated, the accused would be convicted. This brother was afterwards 
 sued for slandering the accused, by saying that " he believed he stole the money," 
 and it appeared that the words laid in the declaration, if spoken at all of the plaintiff, 
 were spoken in a private conversation with a brother of the defendant, both being 
 brothers of the man whose money had been stolen, and were overheard by one who 
 had been employed to listen. Held, that the occasion, and the relationship between 
 the parties, afforded a prima facie justification, sufficient to defeat the action, in the 
 absence of any other proof of malice than what arose from the mere speaking of the 
 ■words. (Faris v. Starke, 9 Dana, 128.) 
 
 8 Hartwell v. Vcsey, 3 Law Times, N. S. 275. See post, § 389. 
 
 8 Joannes v. Bennett, 5 Allen (Mass.), 169. 
 
 * Krebs v. Oliver, 12 Gray, 239. When A, a relative of defendant, was about to 
 marry one C, the defendant wrote a letter to B, a sister-in-law of A, containing de- 
 famatory matter concerning C, and requesting B to repeat such matter to A, held 
 privileged (Atkinson v. Congreve, 7 Ir. L. R. N. S. 109). 
 
 • Adcock v. Marsh, 8 Ired. 360. 
 
 27
 
 410 DEFENSES. [CL IX. 
 
 peace for the county of K., to print the register of electors 
 for the county, the expense of which was defrayed from 
 the county rate, and allowed by the justices at quarter 
 sessions; afterwards the defendant employed another 
 printer, who agreed to do the work at a lower rate than 
 that which the plaintiff required, and he wrote a letter to 
 the "finance committee" appointed to superintend such, 
 expenses, in the conclusion of which he imputed improper 
 motives to the plaintiffs in the demand which they made, 
 and characterized their demand as " an attempt to obtain 
 a considerable sum of money from the county by misre- 
 presentation." In an action for libel, it was held that the 
 occasion of writing the letter prima facie rebutted the 
 presumption of malice, but that it was a question for the 
 jury whether the sentence complained of as exceeding the 
 privilege was evidence of malice. 1 The defendant, bona 
 fide believing that the plaintiff, who was a clerk to one 
 M., a customer of the defendant's, and who had been sent 
 to the defendant's shop by M., had, while there, stolen a 
 box from an inner room, went to M., and, after telling him 
 of his loss, intimated his suspicion of the plaintiff, saying, 
 " There was no one else in the room, and he must have 
 taken it." Held, that the communication was privileged 
 by the occasion. 2 A letter written to B., concerning the 
 plaintiff, who was steward of B.'s estate, was held to be 
 privileged. 3 A communication made by one subscriber to 
 a charity to another subscriber to the same charity, respect- 
 ing the conduct of the plaintiff, the medical attendant in 
 the employ of such charity, held not to be privileged. 4 
 
 1 Cooke v. Wildes, 5 El. & Bl. 328 ; 24 Law Jour. Rep. N. S. 367, Q. B. ; 1 Jur. N. 
 S. 610. 
 
 5 Amann v. Damm, 8 C. B. N. S. 597. 
 
 3 Cleaver v. Senaude, 1 Camp. 268«. 
 
 4 Martin v. Strong, 5 Adol. <fe El. 535; 1 Nev. <fe P. 29. A letter written by the 
 defendant, a subscriber to a charity, to the managing committee, impugning the 
 moral character of the plaintiff, the secretary of said charity, in reference to a
 
 § 24 1&.] INFORMATION OR ADVICE GENERALLY. 411 
 
 Where the alleged libel was contained in a hand-bill 
 offering a reward for the recovery of bills, and stating 
 that the plaintiff was believed to have embezzled them ; 
 held, that if done with the view solely to protect persons 
 liable on the bills, or for the conviction of the offender, it 
 was a good defense, and that, in order to show the bona 
 Jides of the defendant, evidence of his having preferred a , 
 charge of the same nature against the plaintiff was admis- 
 sible. 1 A communication by a landlord to his tenant, 
 respecting the conduct of sub-tenants, or persons in the 
 employ of the tenant, is conditionally privileged ; as where 
 the defendant complained to E., his tenant, that her 
 lodgers, of whom the plaintiff was one, behaved improp- 
 erly at the windows, and he added that no moral person 
 would like to have such people in his house. 2 So com- 
 munications made by an employer to his employee, or by 
 an employee to his employer, are conditionally privileged 
 in certain cases. Thus, defamatory words spoken by an 
 employer to his overseer, intended to protect the employ- 
 er's private interests and property, spoken without malice 
 were held privileged. 3 So where the plaintiff was a wine 
 merchant, and the defendant the surgeon to a Poor Law 
 Union. The plaintiff made a proposal to supply wine for 
 idie use of the sick paupers, defendant advised the Board 
 of Guardians not to accept plaintiff's proposal, alleging 
 that the wine which plaintiff would supply would not be 
 
 person whom defendant had recommended as matron ; and a second letter by the 
 defendant to said commit! ec, in answer to inquiries made by them, and also oral 
 Btatemenis made by the defendant to said committee, were held to be i>rivile"-ed if 
 mnde with an honest and reasonab'.c belief of their truth. (Maitland v. Bramwell, 2 
 Fost. & F. 623 ; and see Lawles v. Anglo-Egyptian Cotton Co., Law Rep. IV, 262, 
 Q. B.) 
 
 1 Finden v. Westlake, 1 Mo. & Malt 461. 
 
 1 Knight v. Gibbs, 3 New <fe M. 467; 1 Adol. & El. 43. Besides that the tenant 
 was interested to know the character of her lodgers, the defendant was interested to 
 maintain the reputation of his house. 
 
 3 Easley v. Moss, 9 Ala. 266.
 
 412 DEFENSES. [Ch. IX. 
 
 of the kind represented. Defendant's language was held 
 privileged. 1 The communication of an agent to his prin- 
 cipal, touching the business of his agency, and not going 
 beyond it, is privileged, and is not actionable without 
 proof that the defendant did not act honestly and in good 
 faith, but intended to do a wanton injury to the plaintiff. 2 
 The defendants, bankers at L., received from C. &, Co., of 
 Y., for collection, a note drawn by plaintiffs, merchants at 
 L. ; the plaintiffs took up the note at maturity, the 19th 
 of April, by giving a draft on defendant's bank, in which 
 they kept their account. The draft overdrew the plaint- 
 iffs' account, but was accepted by a clerk of the defendant, 
 who, in reply to an offer of one of the plaintiffs to transfer 
 an amount standing to his individual credit sufficient to 
 meet the check, declared that to be unnecessary. The 
 plaintiffs' account was made good on the 25th of April, 
 and on 28th of April defendants remitted to C. & Co. the 
 amount of the note, and added a postscript : " Confidential. 
 Had to hold over a few days for the accommodation of L. 
 & H." — the plaintiffs. On the trial, there was no evidence 
 as to malice; the plaintiffs had a verdict on which judg- 
 ment was entered, and the case went to the Court of Ap- 
 peals, where the judgment was reversed, and a new trial 
 ordered ; and the court said, " Assuming that the defend- 
 ant made the communication in perfect good faith, as we 
 must on this question of privilege, his act was not to be 
 deemed officious, as it related to the very business with 
 which he was intrusted." 3 The sheriff levied upon certain 
 cattle of W., and they were wrongfully driven away, 
 whereby he was likely to be damnified ; he employed C. r 
 a law student, to ascertain the facts, and to advise what 
 course it was best to pursue ; held that C.'s letter to the 
 
 1 Murphy v. Kellet, 13 Ir. L. R. N. S. 488. 
 5 Washburn v. Cooke, 3 Denio, 110. 
 8 Lewis v. Chapman, 16 N. Y. 369; rev'g 19 Barb. 253.
 
 § 241 &.] DEFORMATION OR ADVICE GENERALLY. 413 
 
 sheriff, stating facts implicating W., and advising Lis ar- 
 rest for larceny of the cattle, was privileged. 1 
 
 § 24 1&. The communication of a pastor to his parish- 
 ioners, relating to matters not spiritual, is not necessarily 
 privileged; as where the plaintiff, who had been for 
 twenty years schoolmaster at the national school of the 
 adjoining parishes of C. and I., of which the defendant, 
 the rector of C, and another person, the vicar of I., were 
 trustees, was requested by the defendant to undertake the 
 Sunday-school of his parish ; he declining to do so, was re- 
 moved from the mastership of the national school; he 
 afterwards, intending to gain a livelihood by it, set up a 
 school in the defendant's parish, in a school-room used as 
 a dissenting chapel. In a letter addressed to his parish- 
 ioners, the defendant told them that the plaintiffs attempt 
 betrayed a spirit of opposition to authority, and justified 
 the managers of the national school in removing him ; that 
 " no rightly-disposed Christian, who received in simple 
 faith the teaching of inspiration, ' Obey them who have 
 the rule over you, and submit yourselves,' could expect 
 God's blessing to rest upon such an undertaking," and 
 warned them against countenancing it, either by subscrip- 
 tions or sending their children to it for instruction ; that 
 it ' would be a schismatical school, and those who aided 
 the plaintiff in any way would be partakers with him in 
 his evil deeds ; they were to mark them which cause divi- 
 sions and offenses, and avoid them, &c. On the trial, the 
 presiding judge held the communication a privileged one, 
 and in the absence of any evidence of malice, ordered a 
 verdict for the defendant ; on motion for a new trial, this 
 direction was held erroneous, and that the jury should 
 have determined whether the publication was not malici- 
 ous on its face. 2 
 
 J Washburn v. Cooke, 3 Denio, 110. 
 3 Gilpin v. Fowler, 9 Ex. 615; 23 Law Jour. Rep. N. S. 152, Ex.; 18 Jur. 292.
 
 414 DEFENSES. [Ch. IX. 
 
 § 24:1c. A customer may in good faith complain to a 
 tradesman with whom he deals of anything he may deem 
 irregular or dishonest in the conduct of such tradesman 
 towards him (the customer) ; as where the plaintiff, a 
 butcher, sold meat to the defendant, and defendant after- 
 wards called at plaintiff's shop, and, in the presence of 
 several of his customers, said : " I intended to have dealt 
 with you but shall not do so, for you changed the lamb 
 that I bought of you for a coarse piece of mutton." Held 
 that if the statement was made in good faith, it was priv- 
 ileged. 1 And where the defendant, a customer, of the 
 plaintiff, a corn-dealer, went to the place of business of the 
 plaintiff, and using abusive language to plaintiff in a 
 loud and angry tone of voice, said, among other things : 
 I know all about you and your family, and you have 
 robbed me ever since I have dealt with you. Held that 
 the jury were to determine from the language used and 
 from the tone and manner in which it was used, whether 
 the defendant was merely in good faith making a com- 
 plaint concerning a supposed wrong done him, and if so, it 
 was privileged ; that making the complaint in a loud voice, 
 and in abusive terms, outside of the plaintiff's shop or in 
 the presence of third parties, were circumstances from 
 which the jury might infer malice ; and if the statement 
 was made maliciously, it was not privileged. 2 
 
 § 242. When once a confidential relation is established 
 between two persons with regard to an inquiry of a pri- 
 vate nature, whatever takes place between them relative 
 to the same subject, though at a time and place different 
 from those at which the confidential relation began, may 
 be entitled to protection as well as what passed at the 
 
 See § 399, post. There are in Scotland many reported cases of the recovery of 
 damages against ministers of the Gospel, for words spoken in the pulpit. , See 2 
 Shaw's Digest, 1613, tit. Reparation. 
 
 1 Crisp v. Gill, 29 Law Times, 82. 
 
 1 Oddy v. Paulet, 4 Fost. & F. 1009.
 
 § 243.] ESTFORMATIOX OR ADVICE GENERALLY. 415 
 
 original interview; and it is a question for the jury 
 whether any future communication on the same subject, 
 though apparently casual and voluntary, did not take place 
 under the influence of the confidential relation already 
 established between the parties, and therefore entitled to 
 the same protection. 1 
 
 § 243. Where a publication would be privileged if 
 made, and because made to some certain person, the priv- 
 ilege may be forfeited by the publication being made to 
 some other person ; as where C. was employed, for com- 
 pensation, by certain merchants in New York, in obtaining 
 information cancernino; the business character and stand- 
 ing of their customers, and others in other -States, doing 
 business in New York. He wrote for their use, from the 
 residence of T. & Co., a letter unfavorably representing 
 them, and on his return had it and similar letters printed 
 in a panrphlet, which he gave privately to his employers 
 and others, some of whom had dealt with T. <fc Co. Held, 
 that although the publication might have been privileged 
 if made only to such of his employers as were interested 
 in the pecuniary standing of T. & Co., the privilege was 
 lost by the publication being made to other persons. 2 And 
 so held of a circular letter sent by the secretary of a soci- 
 ety for the protection of trade to the members of such so- 
 ciety. 3 With regard to the report by the officers of a cor- 
 
 1 Beatson v. Skene, 5 Hurl. & X. 838. See ante, note 2, p. 386. 
 
 2 Taylor v. Church, 1 E. D. Smith, 279 ; 8 N. Y. 452; Cook v. Hill, 3 Sandf. 341. 
 
 3 Getting v. Foss, 3 Car. & P. 160. Where the defendant kept a mercantile agency 
 whose business it was to obtain information respecting the credit and responsibility 
 of persons in business, and to furnish the same to subscribers to his agency, it was 
 held that a communication made in good faith to r* subscriber to such agency, was priv- 
 ileged. "The business in which the defendant was engaged is sanctioned by the 
 usages of commercial communities." (Ormsby v. Douglass, 37 N. Y. 4(7.) In Sher- 
 wood v. Gilbert (2 Albany Law Jour. 323) it was ruled at the circuit tliat the privilege 
 accorded to a mercantile agency, as laid down in Ormsby v. Douglass, does not ex- 
 tend to the country correspondents of the agency. In Beardslcy ". Tappan, 5 Blatch. 
 C. C. 497, it was held that a communication by the proprietor of a mercantile agency, 
 through his clerks, to his customers and their clerks, was not privileged. In that case
 
 416 DEFENSES. [Ch. IX. 
 
 poration to tlie stockholders, of the result of their investi- 
 gation into the conduct of their officers and agents, with 
 their conclusions upon the evidence collected by them, it 
 was held to be a privileged communication, but that the 
 privilege extended only to making the report, and not to 
 the preservation of it in the form of a book for distribu- 
 tion among the stockholders and in the community. 1 And 
 where the defendant published an advertisement calling a 
 meeting of the creditors of the plaintiff, and in addition 
 defamatory remarks concerning the plaintiff, the publica- 
 tion was held not to be privileged, because the meeting of 
 creditors might have been called in a less public manner. 2 
 Where the plaintiffs were contractors for the erection of a 
 borough jail, and the defendants were members of the town 
 council. The defendants, from their business, were com- 
 petent judges of the work, and they published, in a local 
 newspaper, a letter charging the plaintiff with omissions 
 and deviations from their contract. In an action for libel, 
 it was held that although the charges contained in the let- 
 ter would have been privileged if made by the defendants 
 to the town council, they were not privileged when pub- 
 lished in a newspaper. 3 And although a bank director 
 may be privileged at a meeting of the board to speak of 
 the credit of a merchant or customer of his bank, he is not 
 privileged so to speak, even to a co-director, in any other 
 
 the plaintiff had a verdict for $10,00Q. A motion for a new trial was made before 
 Justice Nelson, and denied. The defendant appealed to the United States Supreme 
 Court, where the judgment was, December, 1870, reversed on a collateral point. 
 
 In the defendant's brief in Tappan v. Beardsley, it was said that only thir- 
 teen suits and one prosecution against mercantile agencies for libel had been insti- 
 tuted up to that time, A. D. 1870, and of these, the prosecution and two suits were 
 then pending, and the residue of the suits were either abandoned or had resulted in 
 favor of the defendants. Billings v. Eussell, 8 Boston Law Rep. N. S. 699 (A. D. 
 1851), was the first reported case for libel against a mercantile agency. 
 
 J Phil. & R. R. Co. v. Quigley, 21 How. U. S. Rep. 202. See Koenig v. Ritchie, 3 
 Fost. & F. 413. 
 
 9 Brown v. Croome, 2 Stark Cas. 297. 
 
 8 Simpson v. Downs, 16 Law Times, N. S. 391.
 
 § 243.] INFORMATION OH ADVICE GEIN"ERALLY. 417 
 
 place or at any other time than at such meeting during its 
 session. 1 The publication, by the directors of an incorpo- 
 rated society for promoting female medical education, in 
 their annual report, of a " caution to the public " against 
 trusting a person who had formerly been employed to ob- 
 tain and collect subscriptions in their behalf, but had since 
 been dismissed, was held to be justified so far only as it 
 was made in good faith, and was required to protect the 
 corporation and the public against false representations of 
 that person ; and that the questions, whether the directors 
 had acted in good faith, and had not exceeded their priv- 
 ilege, were for the jury. 2 The plaintiff, having the defend- 
 ant's bond, advertised it for sale ; the defendant published 
 a statement of the* circumstances under which the bond 
 had. been given, with this conclusion: "His (plaintiff's) 
 object is either to extract money from the pockets of an 
 unwary purchaser, or, what is more likely, to extort money 
 from me;" held not privileged. 3 A. understanding that 
 B. imputed to C, a relative of A.'s, the passing to him of 
 a piece of forged paper, told B., untruly, that he was au- 
 thorized by C. to call upon him and investigate the mat- 
 ter, and B. thereupon repeatedly asserted C.'s guilt of the 
 crime; held, that these assertions were unnecessaiy and 
 useless, and were not privileged, and it seems they would 
 not have been privileged if A. had been C.'s agent to call 
 upon B. for information. 4 
 
 1 Sewell v. Catlin, 3 Wend. 291. 
 
 ' Gassett v. Gilbert, 6 Gray (Mas9.) 94. 
 
 3 Robertson v. McDougall, 4 Bing. 670 ; 1 Mo. & R 692 ; 3 Car. & P. 259. 
 
 4 Thorn v. Moser, 1 Denio, 488. The defendant had suspected, and declared his 
 suspicion, that a person's wife had committed larceny ; but upon being inquired of by 
 that person, whether his suspicions continued, replied that he was now satisfied that 
 A. B. (a hired maid) stole it. Held that if the communication was privileged at all, 
 the defamatory matter, going further than to satisfy the inquirer that there was rea- 
 son for the suspicion to cease, went beyond the exigency of the occasion. (Robinett 
 v. Ruby, 13 Md. 95.) A. on an occasion when no third person was present, accused
 
 418 DEFENSES. [Ch. IX 
 
 § 244. There are, however, some cases where the pub- 
 lication to others than those immediately interested or con- 
 cerned does not forfeit the privilege ; as where the plain- 
 tiff, a female, went to the store of the defendant to make 
 a purchase, and after she left, the shopman, missing a roll 
 of ribbon, supposed she had taken it, and so informed his 
 employer, the defendant ; the following day the plaintiff 
 was passing the defendant's store; the defendant seeing 
 her, called her in, and taxed her with the theft, which the 
 plaintiff denying, the defendant detained her and sent for 
 her father, and in his presence charged the plaintiff with 
 stealing the ribbon; after some altercation the plaintiff 
 was permitted to depart, and afterwards brought an action 
 for slander, in which action it was held at nisi prius that 
 the repetition of the charge to the plaintiff's father was r 
 under the circumstances, a privileged publication. 1 And 
 where, in an action for slander, it appeared that the defend- 
 ant, in the presence of a third person, not an officer of 
 
 B. of stealing; afterwards a friend of B.'s called on A. and asked him if he had made 
 such an accusation ? A. answered " Yes, and I believe it to be true." Held not 
 privileged (Fores v. "Warren, 15 Com. B. N. S. S06; and see Smith v. Matthews, 1 
 Moo. & Rob. 151 ; Griffith w. Lewis, 7 Q. B. 61 ; 14 Law Jour. 197 Q. B.) Where the 
 plaintiff, a carpenter, was employed by a builder, and defendant imputed that plain- 
 tiff had, while so employed at one Burton's house, carried away some quartering*, the 
 builder afterwards went to defendant and asked him did he say so ? to which defend- 
 ant replied, "Yes, I saw the man employed by you take from Burton's house two 
 iona; pieces of quartering." Held proper to instruct the jury that the words were 
 privileged unless spoken maliciously. (Kine v. Sewell, 3 M. & W. 297.) If one 
 merely acknowledges to having made a statement concerning the plaintiff, such 
 acknowledgment alone will not sustain an action, but it may be used as evidence of 
 such former statement. 
 
 1 Fowler v. Homer, 3 Camp. 294, and ante note 2, p. 392 ; also Toogood v. Spyring, 
 1 Cr. M. <fc R. 181 ; 4 Tyrw. 5S2; Manby v. With, 18 C. B. 544 ; Taylor v. Hawkins^ 
 16 Q. B. 308. Words spoken by the defendant, which relate to a subject-matter in 
 which he is immediately interested, and are said for the purpose of protecting his 
 own interest and in the full be'ief that they are true, are privileged communications, 
 though made in the presence of others than the parties immediately interested ; and 
 it is incumbent on the plaintiff to show malice, in fact, in order to recover. (Brow t>. 
 Hathaway, 13 Allen (Mass.) 239; see Sneed v. Davis, Law Rep. V, Q. B. 608.)
 
 § 244«.] INFORMATION OR ADVICE GENERALLY. 419 
 
 justice, charged the plaintiff with having stolen his prop- 
 erty, and afterward repeated the charge to another person, 
 also not an officer, who was, with the consent of the plain- 
 tiff, called in to search him, held the charge was privileged 
 if the defendant believed in its truth, acted bona fide, and 
 did not make the charge before more persons or in stronger 
 language than was necessary. 1 
 
 § 244$. "When words imputing misconduct of which 
 two persons are alleged to have been jointly guilty, are 
 spoken to one of them under circumstances which made 
 the communication privileged as to him, the statement is 
 privileged as to the other also, and the latter cannot main- 
 tain an action in respect of such statement ';" thus where it 
 appeared that one Sneed, the plaintiff, was an attorney and 
 the legal adviser of the Bev. H. H., who was trustee for 
 one widow D. and her children, and also rector of the par- 
 ish in which defendant resided. During a visit H. H. paid 
 to defendant, in the course of conversation and in the pres- 
 ence of other persons than H. H. and defendant, the de- 
 fendant stated to H. H., " Your name is pretty well up in 
 the town of Brecon. You and your scoundrel solicitor's 
 names are ringing through the shops and streets of Brecon. 
 You are spoken of as robbing the widow and orphans — 
 you to build your church and he to marry his daughter." 
 In an action by Snead, the court charged the jury that if 
 there was express malice the action would lie, otherwise 
 they might consider the communication privileged, pro- 
 vided that they were of opinion that the defendant was 
 bona fide telling H. H. facts important for him to know, in 
 
 1 Padmore v. Lawrence, 11 Ad. & El. 380; 3 Per. & D. 209. The plaintiff was 
 the matron of a charitable institution; a charge being made against her, the defend- 
 ant, the secretary of the institution, was appointed to investigate the truth of such 
 charges In the course of such investigation, the defendant, in the presence of third 
 parties, inmates of the institution, made defamatory statements concerning the plain- 
 tiff. Held to be conditionally privileged (Walluce v. Carroll, 11 Ir. L. R. N. S. 485).
 
 420 DEFENSES. [Ch. IX. 
 
 order to clear his character. The jury negatived malice- 
 A verdict was entered for plaintiff, with liberty to move 
 to enter it for defendant. The court in banc held that, as 
 the statement referred to both plaintiff and H. H. in such 
 a manner as to be indivisible, and the part relating to H. 
 H. could not be repeated to him without including the 
 part affecting the plaintiff, the jury having negatived 
 malice, the statement was privileged, and the verdict was 
 ordered for the defendant. 1 
 
 § 245. There is a well recognized right to what is 
 termed " give a character to a servant." This right may 
 be thus described: An ex employer may, without render- 
 ing himself liable in an action for slander or libel, in good 
 faith, state orally or in writing, and as well without as 
 with a previous request, all that he may believe to be true 
 concerning his ex-employee. It appearing that the publi- 
 cation was made in what is termed " giving a character," 
 the presumption is that it is made bona fide, and the bur- 
 den is upon the plaintiff to show malice in the publisher, 
 i. e., either that he had an intent to injure the person spoken 
 of, or that he did not believe in the truth of the statement 
 published. Where no intent to injure exists, a belief in 
 the truth of the language published is a legal excuse for 
 making the publication; but where an intent to injure 
 exists, a belief in the truth of the language published is 
 not a legal excuse for making the publication. | Malice, or ) 
 a want of good faith, is established when it is shown that 
 the matter published was false within the knowledge of 
 the publisher ; or malice may be established by showing 
 a bad motive in making the publication ; as that it was 
 made more publicly than was necessary to protect the 
 interests of the parties concerned, or that it contained 
 
 1 Davies v. Snead, Law Rep. V, Q. B. 608; and see Brow v. Hathaway, 13 Allen 
 (Mass.), 239.
 
 § 245.] MASTER AND SERVANT. 421 
 
 matter not relevant to the occasion, or that the publisher 
 entertained ill-will toward the person whom the publica- 
 tion concerned. Although the right now under considera- 
 tion is one exercised in connection with the relation of 
 master and servant, it does not, at least in the manner 
 generally supposed, arise out of that relation, nor is the 
 right restricted within the limits ordinarily assigned to it. 
 The relation of master and servant, or of employer and 
 employee, is one created by contract ; with the determi- 
 nation of the contract the relation expires, and at the 
 expiration of the relation ceases all the rights and duties 
 which, during its continuance, existed between the parties. 
 Thenceforth the parties occupy the same relative positions 
 as if no contract of hiring and serving had ever been 
 made. It cannot be that because A. has- been in B.'s 
 employ, B. thereby acquires a right to publish concerning 
 A. anything he would not have been permitted with im- 
 punity to publish had such relation never existed. Hence 
 the right now in review must rest on some other founda- 
 tion, or arise in some other way, than out of the mere fact 
 that the person spoken or written of has been in the em- 
 ploy of the publisher. 1 On examination, it will be per- 
 ceived that this right of an ex employer to give, as it ' is 
 termed, a character to his ex-employee, is nothing more 
 than a consequence of the right to communicate one's 
 belief, which is referred to and illustrated in a preceding 
 section (§ 241). An employer is charged with the duty 
 of exercising due care in the selection and retention of 
 properly qualified employees or agents, and is liable for 
 
 1 That seems a monstrous proposition of Sir T. Wilde's in the argument of Coxhcad 
 v. Richards (see ante, note, p. 407), that "the servant authorizes the master to libel him," 
 and jet perhaps it is warranted by the reasoning in many decisions, and it is the only 
 assumption for basing a distinction between the case of an ex-employer speaking of 
 his ex-employee and the case of any other person (one not an employer) makin"- a 
 communication to a party interested.
 
 422 DEFENSES. [Ch. IX. 
 
 all the acts of Iris employees done in his service. 1 In 
 addition, the employer has more or less to trust the safety 
 of his person and his property to the employee ; the em- 
 ployer, therefore, is peculiarly interested to know the 
 character and capacity of every person who either is 
 already in his employ, or is desirous of entering his em- 
 ploy. The employer can obtain this knowledge only from 
 the employee himself, or from information furnished by 
 those to whom the employee may be known. To limit 
 the source of this knowledge to the employee himself, 
 would manifestly, in the majority of cases, operate to pre- 
 vent the obtaining any information worth the having; 
 but because the employer is interested in knowing the 
 character and capacity of those in his employ, or who are 
 candidates for employment by him, not a former employer 
 only, but every one who honestly believes himself pos- 
 sessed of knowledge on the subject which the employer 
 is interested to know, may, with or without a previous 
 request, in good faith, communicate such his belief to the 
 employer. In such cases, the communication is made not 
 to promote the interest of the person making it, but either 
 to serve the interests of the employer, or to injure the 
 employee. No one is under any obligation to make such 
 a communication ; he does not owe it as a duty, either to 
 the employer or the employee, to make any communication 
 on the subject. Making the communication is the exercise 
 of a right, and is optional (§ 39). This right is exercised 
 under the double peril that by speaking disparagingly of 
 the employee, the speaker may be sued by the employee 
 for slander, and by speaking approvingly of the employee 
 he may be sued by the employer for misrepresentation. 2 
 
 1 This does not mean while in the employer's service, but done in the execution of 
 his proper duties as such employee. (See ante, note p. 156.) 
 
 a Defendant's letter of recommendation of the plaintiff, if untrue, would have ren-
 
 § 245.] MASTER AND SERVANT. 423 
 
 Hence usually this right is exercised with reluctance ; and 
 as, where the communication is made without request, less 
 evidence of ill-will may be required than in the case of a 
 communication made upon a request, 1 it seldom happens 
 that such communications are made without request ; and 
 because the character and capacity of an employee will be 
 by no one so well known as by the one in whose service 
 he has been, it happens the ex-employer is the person to 
 whom, in the majority of instances, application will be 
 made for information respecting the character and capacity 
 of a candidate for employment, not because the ex-employer 
 is the only person having the right to give information, 
 but because he is supposed to be better qualified than any 
 other to give information on the subject. 1 The exercise of 
 this right should be encouraged, not only for the benefit 
 of the employer, but of the employee; if the ex-employer 
 refuses, as he lawfully may, 2 to answer any inquiries 
 respecting his ex-employee, the probable inference is that 
 he can say nothing favorable, and will not incur the risk 
 of saying anything unfavorable — an inference which may 
 be unjust to the ex-employee. These views have been 
 expressed judicially, as thus: "But the rule is general, 
 and it seems to me to be quite a mistake to suppose that 
 it is the privilege only of persons giving characters. There 
 are two other classes of persons materially interested in 
 the maintenance of the privilege — the persons accepting 
 characters, and those of whom characters are given. It is 
 a most important privilege for the encouragement of all 
 
 dered him liable to any one injured thereby. (Fowles v. Bowen, 30 N. Y. 20; and 
 see Pasley v. Freeman, 3 Term R. 51.) 
 
 1 " At all events, when he volunteers to give the character, stronger evidence will 
 be required that he acted bona fide, than in the case where he has given the charac- 
 ter after being required so to do." (Littledale, J., Pattidon v. Jones, 8 Barn. & C. 
 578.) 
 
 3 No action lies for refusing to give information as to the character or capacity of 
 a former employee. (Carrol v. Bird, 3 Esp. 204.)
 
 424 DEFENSES. [Ch. IX. 
 
 honest servants. They are sufficiently protected against 
 the abuse of it by that limitation of it to which all 
 agree — that if a master, goiug beyond it, wantonly and 
 maliciously makes a false statement as to the character of 
 his servant, the express malice takes away all the privi- 
 lege." * 
 
 § 246. The subject of the preceding section (§ 245) is 
 illustrated by the decisions to which we proceed to refer. 
 Thus, it is said, 2 a bona fide character given of a servant 
 that she was saucy, &c, if there be no malice (which 
 must be directly proved), will not ground an action of 
 slander, though the servant was prevented from getting a 
 place thereby ; and, though a letter giving a false charac- 
 ter of a servant may be the ground of an action, yet, if 
 written as an answer to a letter sent, not with a view to 
 obtaining a character, but with an intention of obtaining 
 such an answer as should be the ground of an action, no 
 action can be sustained. 3 A servant cannot maintain an 
 action against his former master for words spoken or a 
 letter written by him in giving a character of the servant, 
 unless the latter prove the malice as well as falsehood of 
 the charge, even though the master make specific charges 
 of fraud. As where the plaintiff, who had been in the 
 employ of the defendant, afterwards applied to one R. for 
 employment. K. inquired of the defendant concerning 
 plaintiff, and in consequence of what was told him by 
 defendant, refused to employ plaintiff. Upon this, C, 
 plaintiff's brother-in-law, called upon the defendant for an 
 explanation, and then the defendant wrote C, " Two days 
 I gave him (plaintiff) money to go into the city and buy 
 
 1 Wightman, J., Gardner v. Slade, 13 Jurist, 828 ; 13 Adol. <fe El. N. S. 796; and 
 see in note, p. 427, post, and Swadling v. Tarpley, in Appendix, post. 
 8 Edmonson v. Stephenson, Bull. N. P. 8. 
 3 King v. Waring, 5 Esp. 14.
 
 § 246.] MASTER AND SERVANT. 425 
 
 books. When lie carne home I desired hiin to reckon up 
 his accounts ; he did so. But being one day more curious 
 than I sometimes was, I looked over his account, article 
 by article, and in one book I well knew the price of, I 
 found he had charged me one shilling more than it cost, 
 and that shilling he kept in his pocket," with statements 
 of other frauds ; on the trial the plaintiff had a verdict, 
 subject to the opinion of the court on a special case; upon 
 the argument of the case judgment was ordered for the 
 defendant. 1 Where, in an action of slander, it appeared 
 that the plaintiff had applied to the under-sheriff to be 
 appointed an officer, the latter applied to the defendant as 
 to the fitness of plaintiff, held that the answer of the de- 
 fendant was conditionally privileged. 2 Where A. intro- 
 duced the plaintiff to defendant, a ship's captain, who 
 employed plaintiff as his mate, defendant afterwards dis- 
 missed plaintiff from his service, and wrote A. that he 
 had done so on account of the intemperate habits of the 
 plaintiff, this was held a privileged communication. 3 The 
 defendant being about to dismiss the plaintiff from his 
 employ, called in a friend to hear what passed, and hav- 
 ing dismissed the plaintiff, refused to give him a character, 
 alleging to those who applied for information respecting 
 the plaintiff, that he, defendant, had discharged the plain- 
 tiff for dishonesty. The plaintiff's brother afterwards 
 inquired of the defendant why he had treated the plaintiff 
 in such a manner, and that he (defendant) was keeping 
 plaintiff out of employ. The defendant answered, "He 
 has robbed me ; and I believe for years past," adding that 
 
 1 Weatherstone v. Hawkins, 1 Term It. 110. 
 
 - Sims v. Kinder, 1 Carr. 279. 
 
 3 Tremaine v. Parker, 12 Law Times, 312. A letter addressed to a person on 
 whose recommendation the writer had taken the plaintiff into hie service, to the 
 effect that his (plaintiff's) conduct had not justified the character given of him, and 
 that he had left a balance unaccounted for, and that lie ought not to be recommend- 
 ed for morality or honesty; this was held to be privileged. (Dixon v. Parsons, 1 
 Fost. &, Fin. 24.) 
 
 28
 
 426 DEFENSES. [CL IX. 
 
 he concluded so from the circumstances under which he 
 had discharged the plaintiff. Erie, J., said, " The calling 
 in a witness was consistent with a wish to spread defama- 
 tion ; it was consistent also with the wish to do what a 
 prudent man would desire to do. But if the effect of the 
 evidence is equal both ways, the onus of proving malice 
 lies upon the plaintiff. As to the words spoken to the 
 plaintiff's brother, no malicious motive appears. The evi- 
 dence, indeed, related to only one robbery, whereas the 
 defendant spoke of having been robbed for years. But 
 the communication was made in answer to an inquiry by 
 the plaintiff's brother, and there are no circumstances to 
 show that the extent of the statement actually made pro- 
 ceeded from malice, or went beyond what might be said 
 by a person honestly wishing to tell the whole truth." 1 
 The plaintiff had been in the employ of the defendant 
 and dismissed on a charge of theft. Plaintiff afterwards 
 went to defendant's house to be paid his wages, and was 
 in conversation with the defendant's servants, when the 
 defendant, addressing his servants, said, "I discharged 
 that man (the plaintiff) for robbing me; do not speak 
 any more to him, in public or private, or I shall think 
 you as bad as him." Maule, J., said, " The evidence does 
 not raise any probability of malice, and is quite as consis- 
 tent with its absence as with its presence ; and consider- 
 ing that the mere possibility of malice which is found in 
 this case, and in all cases where it is not disproved would 
 not be sufficient to justify a finding for the plaintiff, and 
 it was right not to leave the question of malice to the 
 jury." 2 A defendant who had dismissed two servants, 
 told one in the absence* of the other, You have both been 
 robbing me; it was held conditionally privileged. 3 
 
 1 Taylor v. Hawkins, 16 Q. B. 308; 20 Law Jour. Rep. N. S. 313, Q. B. ; 15 Jurist, 
 'TOB; and ante, § 244. 
 
 2 SomerYille v. Hawkins, 10 C. B. 583; 15 Jurist, 450. 
 
 8 Manby v. Witt, and Eastmead v. Witt, 18 C. B. 544; 25 Law Jour. 294, C. P.
 
 § 240.] MASTER AND SERVANT. 427 
 
 The plaintiff being in the service of the defendant was 
 discharged without any previous notice, and the plaintiff 
 considering himself entitled to a month's wages, in lieu of 
 notice, refused to quit the defendant's house until those 
 wages were paid him, whereupon the defendant had the 
 plaintiff removed by a police officer. The defendant 
 called on one Holland, in whose employ the plaintiff had 
 previously been, and complained of plaintiff, requesting 
 Mr. Holland not to give plaintiff another character. Sub- 
 sequently, the plaintiff applied to Mr. Hand for employ- 
 ment, who inquired of defendant and received from him a 
 letter, the material portion of which was as thus : " Rogers 
 (the plaintiff) did not live with me six months, as he has 
 told you, and I wish I had never taken him into my house, 
 as he is a bad-tempered, lazy, impertinent fellow, and has 
 given me a great deal of trouble. I was obliged to send 
 for a police officer to put him and his things out of my 
 house ; as I look upon it he will take any advantage he 
 can." On the trial the court left it to the jury to say if 
 the defendant had acted maliciously ; the verdict was for 
 the plaintiff: leave was reserved to the defendant to move 
 to enter a non-suit. He moved, but his motion was re- 
 fused. 1 Where defendant, plaintiff's former mistress, in a 
 
 1 Rogers v. Clifton, 3 B. & P. 587, on the motion for a non-suit, Lord Alvauley, 
 Ch. J., said, " If it were to be understood that whenever a master gives a had charac- 
 ter to a servant who has quitted his service, he may be forced by the servant, in jus- 
 tification, to prove the truth of what he has stated, it would be impossible for any 
 master (so understanding the law, at least with any regard to his own safety) to give 
 any character but the most favorable to a servant, and consequently impossible for a 
 servant not entitled to the. most favorable character, to obtain any new place. Unques- 
 tionably the master is not bound to substantiate the truth of what he says in giving 
 a character to his late servant, but it is equally clear that the servant may, if he can 
 prove the character to be false, and the question between the master and servant will 
 always, in such a case, be, whether what the former has spoken concerning the latter 
 be malicious and defamatory;" and per Rooke, J., "a master may, at any time, 
 whether asked or not, speak of the character of his servant, provided that he speak in 
 the honesty of his heart, and an action cannot be maintained against him for so doing; 
 at the same time, masters are not warranted in speaking ill of their servants from 
 heat and passion." Where the plaintiff charged his servant with robbing him, and 
 the robbery charged consisted in giving away pieces of bread, the court charged the
 
 428 DEFEASES. [Ch. IX. 
 
 letter answering inquiries as to plaintiff's character, stated 
 acts of misconduct during the time of plaintiff's being 
 in her service, and also subsequently to her having left it, 
 and defendant had also stated the same to the persons 
 who originally recommended plaintiff to her ; held, that 
 the latter part of the letter was a privileged commu- 
 nication, and which the defendant was bound to make, 
 and that the oral statement having been made only to the 
 persons who recommended plaintiff, was not officious nor 
 evidence of malice, which in such an action is the gist, 
 and must be expressly proved. 1 In an action for slander 
 of the plaintiff, in her character of a domestic servant, the 
 plaintiff proved that, having lived some time with the de- 
 fendant, she changed service upon a character given to 
 her by the defendant; that, some time afterwards, the 
 defendant's wife, in a letter to her new mistress, alluded 
 to the plaintiff, and to the character first given of her as 
 being unmerited; that thereupon the new mistress re- 
 quested further information, and was told by the defend- 
 ant's wife that she had discovered, since the time of the 
 giving of the first character, that the plaintiff was dishon- 
 est. Held, that there was no evidence to be submitted to 
 the jury of malice in the defendant's wife, and that the 
 communication was privileged. If a servant obtain a 
 place upon the strength of a character given by his master, 
 and the master afterwards discover circumstances which 
 induce him to believe that the character was undeserved, 
 he is morally bound to inform the new master of those cir- 
 cumstances, and the communication made concerning them 
 is a privileged communication. 3 The plaintiff had been in 
 
 jury that if the pieces of bread given away were such pieces as the servant might 
 reason ablj- suppose the master would not object to his giving away, the master was 
 not justified in the charge of robbery, and the servant might recover. (Roberts v. 
 Richards, 3 Fost. & Fin. 507.) 
 
 1 Child v. Affleck, 9 B. & C. 403. 
 
 2 Gardner v. Slade, 13 Jurist, 826; 11 Law Jour. Rep. 334, Q. B.; 13 Law Times, 
 
 282.
 
 § 24G.] MASTER AND SERVANT. 429 
 
 the employ of defendant and his partners; on plaintiff 
 leaving their employ, defendant and his partners gave 
 him a written recommendation, and plaintiff afterwards 
 went into the employ of C. Subsequently, defendant saw 
 C, and said he desired to set him right in regard to a young 
 man (the plaintiff) in his employ, that he was a liar, and 
 he had doubts of his honesty; held a conditionally privi- 
 leged communication. 1 The letter of recommendation, if 
 untrue, would have rendered him liable to any one 
 injured thereby, and he was privileged to say what he 
 did for his own protection. Plaintiff was in the service 
 of the defendants (husband and wife) as governess for 
 fourteen months. After she left she sought an engage- 
 ment elsewhere, and on an inquiry being made to the 
 defendant (the wife) concerning the plaintiff, the defend- 
 ant answered in writing, " I parted with her (the plain- 
 tiff) on account of her incompetency and not being 
 lady-like nor good tempered," adding, "May I trouble 
 you to tell her (the plaintiff) that this being the third 
 time I have been referred to, I beg to decline any further 
 applications." Evidence was given of plaintiff's compe- 
 tency and of her being lady-like and good tempered. It 
 was left to the jury to say whether the letter was written 
 maliciously, and that stating what was untrue was evi- 
 dence of malice. The plaintiff had a verdict, and the 
 court above refused to disturb it. 2 Where the plaintiff's 
 master (the defendant) had, on his quitting his service, 
 and being about to enter on another, written of his own 
 accord a letter informing the party that he had dis- 
 charged the plaintiff for misconduct, and on receiving a 
 letter inquiring the particulars, had written the libellous 
 letters for which the action was brought; held, that al- 
 though a party might set himself in motion to induct 
 inquiries Ly a third party, and the answers, although slan- 1 
 
 1 Fowles v. Eowen, 30 N. Y. 20. 
 
 s Fountain v. Boodle, 3 Ad. & El. N. S. 5; 2 Gale & Dav. 455.
 
 430 DEFENSES. [CL IX. 
 
 derous, miglit come within the scope of a privileged com- 
 munication ; yet in such a case it would be a question for 
 the jury to say if the defendant acted bona fide, or mali- 
 ciously intending to do the servant an injury. 1 A. (plain- 
 tiff) having left B.'s (defendant's) service at her own 
 desire, in consequence of B.'s accusing her of dishonesty, 
 returned to B.'s house for her boxes and B. then charged 
 her with theft and told her that if she had not come back 
 he would have said nothing about it ; upon A.'s inform- 
 ing B. that C. intended coining to him for her (A.'s) char- 
 acter, defendant said he should give A. no character 
 unless she confessed to the alleged theft. C. went to 
 defendant for A.'s character; defendant told C. that A. 
 was dishonest. In an action for slander, held, that the 
 occasion was privileged, but that the statement of defend- 
 ant to plaintiff was evidence from which malice might be 
 inferred, and that the judge upon the trial did right to 
 leave the question of malice to the jury and in asking 
 them the question whether defendant believed his impu- 
 tation to be true. 2 The plaintiff was defendant's gar- 
 dener. The defendant having dismissed plaintiff from his 
 service, wrote E., on whose recommendation defendant 
 had originally engaged plaintiff, stating inter alia, "On 
 Saturday I had another scene with F. (plaintiff) in my 
 garden. He was extremely violent, came towards me 
 several times with an open clasp knife in his hand and 
 his eyes starting from their sockets with rage, a perfect 
 raving madman. I was fortunately accompanied by my 
 upper servant. He accused me of having opened a letter 
 of his. * * * I think it right you should be informed 
 of F.'s (plaintiff's) violent conduct as you might unwit- 
 tingly recommend him without being aware of his temper 
 and faults." E. who was the superintendent of the Royal 
 Horticultural Society, of which defendant was a member, 
 
 1 Pattison v. Jones, 8 B. & C. 5S7; 3 C. <fc P. 3S3; 3 M. & R. 101. 
 3 Jackson v. Hopperton, 10 Law Times, N. S. 529.
 
 § 247.] CANDIDATE FOR OFFICE. 431 
 
 was in the habit of recommending gardeners to the mem- 
 bers of the society, and plaintff had, as defendant knew at 
 the time he wrote the letter, applied to E. to procure him 
 another situation ; held, that the letter could not be con- 
 sidered as privileged, as there were expressions in it, such 
 as plaintiff's being a "raving madman," which went 
 beyond what was justifiable, although the jury found 
 the communication was made bona fide and without 
 malice. 1 
 
 § 247. As respects publications concerning candidates 
 for office, we take upon ourselves, with due deference to 
 the decisions, to say, that the same rule applies to them as 
 to communications made concerning candidates for em- 
 ployment generally (§ 245). The rule, as we suppose, 
 must be the same for every hind of employment, and office 
 is only another name for employment. The right which 
 one has to speak concerning a candidate for employment 
 as a mechanic or domestic, is neither more extensive nor 
 more limited than the right one has to speak of a candi- 
 date for the office of a legislator or a judge. As respects a 
 candidate for employment generally, so with respect to a 
 candidate for office; the publication, to be privileged, 
 must, with certain exceptions (§ 244), be limited to the 
 persons interested. A general publication, as well to 
 those interested as to those not interested, would not be 
 privileged. Again, the matter published must be such as 
 is relevant to the subject-matter, and necessary to be 
 known by the persons in interest for their own protection. 
 Thus the publication in a newspaper of defamatory matter 
 concerning a candidate for appointment, was held not 
 to be privileged, and that to have been privileged the 
 publication should have been limited to the appointing 
 
 1 Fryer v. Kinnersley, 15 C. B. X. 8. 429; 33 Law Jour. 90, C. P. In Cowles v. 
 Potts, 34 Law Jour. 248, Q. B. by counsel: It is difficult to understand the case of 
 Fryer v. Kinnersley, and by Blackburn, J.: I do not quite understand the ratio deci- 
 dendi of that case.
 
 432 DEFENSES. [Ch. IX. 
 
 power (§ 243) ;* so limited it would have been privileged; 
 as where defendant, at the request of a senator of the 
 United States, in order to give him information as to the 
 fitness of the plaintiff for the office to which he was nomi- 
 nated, spoke the words charged in the declaration, and 
 referred to the records of a court for their confirmation, it 
 was held that there w T as nothing from which to imply 
 malice, and that the plaintiff could not sustain his action. 2 
 "Where a candidate for the representation of a borough 
 circulated an address to the electors, asking for their 
 suffrages, and claiming to be a fit and proper person to 
 represent them in Parliament, and an elector in that bo- 
 rough published in a newspaper two letters addressed to 
 the candidate, the first in answer to the circular, and the 
 second in consequence of the treatment he had received 
 from the candidate on the day of nomination at the hust- 
 ings, and both letters contained imputations on the pri- 
 vate character of the candidate ; on the trial of an action 
 for libel, the judge charged the jury that the occasion did 
 not justify the publication, and the plaintiff had a verdict. 
 On a motion for a new trial, it was claimed that it was 
 justifiable for an elector bona fide to communicate to the 
 constituency any matter respecting a candidate which the 
 elector believed to be true and material to the election. 
 The principle was conceded by the court to be correct, but 
 was held inapplicable because the communication had not 
 been confined to the constituency of the plaintiff, but had 
 been published in a newspaper!' "Where the plaintiff was 
 a candidate at a general election for re-election as State 
 
 1 Hunt v. Bennett, 19 N. Y. 173, affirming 4 E. D. Smith, 647. 
 
 3 Law v. Scott, 5 Har. & J. 438. A statute in Pennsylvania provides: Kb person 
 shall be subject to prosecution by indictment for investigating official conduct of 
 public officers, <fcc. 
 
 3 Duncombe v. Daniell, S C. & P. 213; 1 TV. W. & H. 101, Denman, C. J. How- 
 ever large the privilege of electors may be, it is extravagant to suppose that it can 
 justify the publication to all the world of facts injurious to a person who happens to 
 stand in the situation of a candidate.
 
 § 247.] CATSTHDATE FOR OFFICE 433 
 
 Governor, the defendant published defamatory matter of 
 the plaintiff in " An address to the electors of the State of 
 New York ;" in an action of libel for this publication, it 
 was contended on the part of the defendant that the 
 plaintiff could not recover unless upon proof of " express 
 malice." The court denied this position, and held that 
 malice was to be implied from the falsity of the publica- 
 tion. 1 In an action of slander, laying special damage, it 
 appeared that plaintiff, a trustee of a charity, asked C, by 
 whom he was employed as bailiff, to obtain signatures to 
 a protest against his (plaintiff's) removal from his office 
 of trustee. C. asked defendant for his signature, defend- 
 ant refused, and on being pressed for his reasons for 
 refusing, said that he would not keep a big rogue like 
 plaintiff in the trust, and he explained the reasons for this 
 opinion, which were that plaintiff had left the parish 
 under discreditable circumstances and without settling 
 with his creditors, including the defendant. He also 
 added he was surprised C. employed such a man. In 
 consequence of this statement, C. dismissed plaintiff from 
 his employ. The jury found that defendant had not 
 acted with malice, held that the words were privileged, 
 
 1 Lewis v. Few, 5 Johns. 1. In Harwood v. Astley, 4 Bos. & Pul. 47 ; 1 N". R. 47, an 
 action for slander of a candidate for election to Parliament, the plaintiff succeeded and 
 had judgment, which the court, on writ of error, affirmed principally, if not solely, 
 on the ground that the jury must have found the publication to he malicious, and 
 therefore, not privileged. Officers and candidates for offices may be canvassed, but 
 not calumniated. (Seely v. Blair, Wright, 358, 683. See Brewer v. Weakley, 2 
 Overt. 99 ; Root v. King, 7 Cow. 613, affirmed 4 Wend. 113, note 1 Stark. Slan. 301.) 
 In Mayrant v. Richardson, 1 Xbtt. & McC. 327, an action of slander against a candi- 
 date for office, it was held by Nott, J., that when a man becomes a candidate for 
 public honors, he makes profert of himself for public investigation. No one has tin: 
 right to impute to him infamous crimes or misdemeanors, but talents and qualifica- 
 tions are mere matters of opinion, of which the electors are the only judges, and in 
 that case it was field that imputing weakness of understanding to a candidate for 
 Congress was not actionable. In Com'wealth v. Clapp, 4 Mass. 163, Parsons, C J., 
 says: " When a man shall consent to be a candidate for a public office, conferred by 
 the electors of the people, he must be considered as putting his character in issue, so 
 far as may respect his fitness and qualifications for office." But see Curtis v. Mussey, 
 6 Gray, 261; Aldrich v. Press Print. Co., 9 Min. 133.
 
 434 DEFENSES. [Ch. IX. 
 
 and verdict entered for defendant. 1 And where the 
 plaintiff was a candidate for re-election as overseer. At a 
 meeting to elect overseers, the defendant charged the 
 plaintiff with having, while in office as overseer, misappro- 
 priated the parish funds, held that unless this statement 
 was a malicious abuse of the occasion, it was privileged. 2 
 
 § 248. Insanity is a complete defense to an action for 
 slander or libel. 3 Fools and madmen are tacitly excepted 
 out of all laws. 4 And Coke said: A madman is only 
 punished by his madness. A judgment in an action for 
 slander was perpetually enjoined, upon the ground that 
 at the time of the speaking the words, and of the rendi- 
 tion of the judgment, the defendant was insane in refer- 
 ence to the subject of the slander. 5 
 
 1 Cowles v. Potts, 34 Law Jour. 247, Q. B. 
 8 George v. Goddard, 2 Fost. & F. 689. 
 
 3 Bryant v. Jackson, 6 Humpf. 199; Yeates v. Reed, 4 Blackf. 463 ; Dickinson v. 
 Barber, 9 Mass. 225. Perhaps delirium tremens is a defense; for it is a species of 
 insanity, and like insanity from other causes, affects the responsibility for crime. 
 (Maconnehey v. The State, 5 Ohio, N. S. 77; O'Brien v. The People, 48 Barb. 273.) 
 A lunatic is liable for a trespass. (Weavers. Ward, Hob. 134; Krom v. Schoon- 
 maker, 3 Barb. 647; Bullock v. Babcock, 3 Wend. 391; Rae's Medical Juri3. 110; 
 Mason v. Keeling, 12 Mod. 332; 2 Monthly Law Reporter, jS". S. 487.) In the chapter 
 in the Roman Law, entitled " SI quis Imperatori Maledixerit," is a passage, which 
 being interpreted, reads : " If the evil speaking proceed from levity, it is to be 
 despised ; if from madness, it is to be pitied ; if from a sense of wrong, it is to be 
 forgiven." 
 
 It is not a defense to an action of slander or libel, that the words were not spoken 
 in earnest, but as a jest, and that the defendant did not expect to be believed. (Hatch 
 v. Potter, 2 Gilman, 725; Holt on Libel, 290, 291 ; Long v. Eakle, 4 Md. 454; McKee 
 v. Ingalls, 4 Scam. 30; Wood's Civil Law, 247.; and see Pieter Tonueman o. Jan de 
 Witt, Valentine's Corporation Manual for 1849, p. 402; Addison on Contracts, 261.) 
 Among the Percy Anecdotes, Division, " The Bar," is an anecdote of a suit for 
 slander brought by Serjeant Maynard, entitled " Golden Pippins and Pig," and in 
 which it is stated the serjeant had a verdict in his favor, but judgment was arrested 
 jn consequence of the words complained against," being the burden of an old story 
 which had been applied to the serjeant in jest, and without any intention to slander." 
 In Campbell's Lives of the Lord Chancellors, V, ch. civ, p. 31, this anecdote is related 
 more circumstantially. See Donoghue v. Haj-es, Hayes' Ir. Ex. R. 2G5. 
 
 4 Holt, Ch. J., City of London v. Vanicker, Carthew, 483. " There is no slander 
 in an allowed fool." (Twelfth Night, act 1, sc. v.) 
 
 5 Horner v. Marshall, 5 Munf. 466.
 
 §§ 249-50.] DROTCEXXESS, APOLOGY. 435 
 
 § 249. Drunkenness is not a defense to an action for 
 slander or libel, 1 nor is infancy, 2 but drunkenness may, 
 perhaps, be a matter of mitigation. 3 
 
 § 250. It is a good defense to an action for libel, that 
 after the publication the plaintiff agreed with the defend- 
 ant to accept the publication of an apology in full for his 
 cause of action, and that such apology had been pub- 
 lished. 4 And it seems that an agreement that the slan- 
 derer should write a letter to a third party, exculpating 
 the person slandered from the charge, is satisfaction of the 
 injury, and his so doing is evidence of an accord and sat- 
 isfaction. 5 Formerly a defense of accord and satisfaction 
 
 1 McKee v. Ingalls, 4 Scam. 30; Reid v. Harper, 25 Iowa, 87. As to defense of 
 intoxication in an action on an express contract, see Gore v. Gibson, 13 M. & 
 W. 623. 
 
 8 Defries v. Davis, 1 Bing. N. C. 692 ; 1 Scott, 594. An infant two years old is 
 not liable crirninaliter for a nuisance erected on his lands. (The People v. Townsend, 
 3 Hill, 4*79.) And one aged only eleven years, seized of lands in the usual occupa- 
 tion of his guardian in socage, is not indictable for the non-repair of a bridge ratione 
 tenure. (Rex v. Sutton, 5 Nev. <fc Man. 353.) See cases collected in a note in 5 
 Monthly Law Reporter, N. S. 364, Boston, Nov. 1852. 
 
 ' Howell v. Howell, 10 Ired. 84. And see Isley v. Lovejoy, 8 Blackf. 402; Gates 
 v. Meredith, 7 Ind. 440. 
 
 4 Boosey v. Wood, 3 Hurl, it Colt. 484. An agreement not to bring any action in 
 consideration of the defendant's destroying certain documents relating to the charge 
 imputed to the plaintiff, which the defendant accordingly destroyed, held to be accord 
 and satisfaction. (Lane v. Applegate, 1 Starkie, 97.) Where, in an action of slander, 
 an agreement had been made, in consequence of which the defendant signed a paper 
 stating that " at his request the plaintiff had consented on his paying the costs of the 
 action as between attorney and client, and making an apology for his conduct, to stay 
 the proceedingss therein," the court held that it was an absolute and not a conditional 
 agreement, and in default of defendant paying the costs, made a rule absolute for 
 signing the judgment as for want of a plea. (Yardrew v. Brook, 2 Nev. <fe M. 835.) As 
 to the settlement of an action for slander as the consideration for a promise, see 
 O'Kesson v. Barclay, 2 Penn. St. R. 531; approved Morey v. Newfane Township, 8 
 Barb. 653; and see Shephard v. Watrous, 3 Caines R 166. B3^ statute 6 & 7 Vict, 
 ch. 96, it is provided that in any action for defamation, the defendant, after notice, 
 may give in evidence, in mitigation, the making or offer to make an apology. 
 
 • Smith v. Kerr, 1 Barb. 155. See Effie v. Jacob, 1 Jebb & Symes, 257. An accord 
 and satisfaction by one or some of several wrong-doers, is a satisfaction as to all. (Strang 
 v. Holmes, 7 Cow. 224; Knickerbacker v. Colver; 8 LI. 111.) It follows that a partial 
 satisfaction, by one of several wrong-doers, is a satisfaction pro ('into as to all. (Mer- 
 chants' B'k v. Curtis, 37 Barb. 320.) As to a plea of apology and payment into court
 
 43 G DEFENSES. [Ch. IX. 
 
 did not require to "be specially pleaded. 1 Kow it must be 
 pleaded specially. 
 
 § 251. A former recovery for the same cause is a bar 
 to au action for slander or libel. 2 A judgment in an 
 action of slander, for a particular charge, bars any other 
 action against the defendant in that action for the same 
 charge, though made on a different occasion, if made 
 before suit brought ; and, therefore, though there be but 
 one count for particular words, proof that they were 
 spoken by defendant on distinct occasions before suit 
 commenced is competent. 3 It is no bar to an action for 
 slander or libel that in a former action for the publication 
 of the same words, on an occasion different from that 
 alleged in the declaration, the defendant obtained a ver- 
 dict and judgment in his favor. It was not for the same 
 cause of action- 4 A recovery by the husband for slander- 
 ous words spoken of himself and wife, is not a bar to 
 another action by the wife for the same slanderous words, 
 in which the husband is joined as a nominal party 
 plaintiff. 5 A recoveiy in an action for calling plaintiff a 
 
 in England, see Stat. 6 & 7 Vict. ch. 96; 15 & 16 Vict. ch. 76 ; Chadwick v. Here- 
 path, 3 C. B. 885 ; O'Brien v. Clements, 3 Dowl. & L. 676 ; Lafone v. Smith, 3 Hurl. & 
 N. 735 ; 4 Id. 158; Ingram v. Ferguson, 1 New Pr. Cas. 486. 
 
 1 2 Greenl. Ev. 321 ; Lane v. Applegate, 1 Stark. 97; King v. Waring, 5 Esp. 13; 
 Eiffe v. Jacob, 1 Jebb. & S. 257. 
 
 2 Campbell v. Butts, 3 N. Y. 173. The plaintiff having once recovered, cannot 
 afterwards recover for any subsequent loss by the same words. (Bull. N. P. 7.) 
 Where the cause of action is the same, a judgment between the same parties is bind- 
 ing on each, and it is immaterial that the form of action is different, if the cause of 
 action be the same. (Hitchin v. Campbell, 2 W. Bl. R. 827.) 
 
 3 Root v. Lowndes, 6 Hill, 518. 
 
 4 Henson v. Veatch, 1 Blackf. 369. 
 
 5 Bash v. Sommer, 20 Penn. (8 Harris) 159 ; and see ante, note 3, p. 153. A recovery 
 against one of several parties to a joint tort frequently precludes the plaintiff from 
 proceedings against any other party not included in such action. (Cro. Jac. 74 ; 
 Yelv. 68.) But where the evidence and the damage in the two actions might be 
 different, as where two persons on different occasions have published the same libel, 
 separate actions may be supported against each. (2 B. <fe P. 69.) Where a verdict 
 with nominal damages (40s.) had been obtained against the publisher of a libel, that
 
 § 252.] FREEDOM OF THE PRESS. 437 
 
 thief, not in the way of his trade, held not to be a bar to 
 it subsequent action for words imputing to plaintiff in the 
 way of his trade that he was dishonest and a cheat." 1 A 
 recovery in an action for malicious prosecution is a bar to 
 a subsequent action for slander, for the accusation uttered 
 for the purpose of having the arrest made, and on the 
 occasion when it was made. 2 But where the defendant 
 published the accusation before or after making his com- 
 plaint to have the plaintiff arrested, an action for that 
 publication is not barred by the recovery in the action for 
 the malicious prosecution. 3 An application for a criminal 
 information against a party for the publication of a libel, 
 which application has been refused, is no bar to an action 
 on the case for the same ground of complaint. 4 At one 
 time the defense of a former recovery might be given in 
 evidence under the general issue ; 5 now, the defense of a 
 former recovery must be pleaded. 
 
 § 252. "Whatever else may be intended by the phrase 
 " freedom of the press," or " liberty of the press," it means 
 the freedom or liberty of those who conduct the press. 
 This freedom or liberty, properly understood, means only 
 that for which Milton put forth his eloquent plea : " unli- 
 censed printing." " The liberty of the Press consists in 
 printing without, any previous license, subject to the con- 
 sequences of law. The licentiousness of the Press is 
 
 was held not to be any justification in an action against tbe author of the libel, nor to 
 furnish any reason for not giving substantial damages, and the plaintiff had a verdict 
 for £450. (Frescoe v. May, 2 Fost. & F. 123.) The pendency of other actions against 
 other publishers of the same defamatory matter, not a mitigating circumstance. 
 (Harrison v. Pearce, 1 Fost. & F. 567.) 
 
 1 Wandsworth v. Bentley, 23 Law Jour. Q. B. 3 ; IV Jur. 1077. 
 
 5 Sheldon v. Carpenter, 4 N. V. 57'.). And semble, a recovery in an action for 
 slander will not bar an action for malicious prosecution. (Jarnigan v. Fleming, 43 
 MissL 911.) 
 
 8 Rockweller v. Brown, 36 N. Y. 207 ; and see Schoonover v. Rowe, 7 Blackf. 202. 
 MVakley v. Cooke, 16 Law Jour. Rep. 225, Ex. ; 9 Law Times, 513 ; 16 M. & 
 W. 822. 
 
 6 Campbell v. Butts, 3 N. T. 173.
 
 43S DEFENSES. [Cll. IX. 
 
 Pandora's box, the source of every evil." * " The liberty 
 of the Press is connected with natural liberty. The use 
 and liberty of speech were antecedent to Magna Charta, 
 and printing is only a more extensive and improved kind 
 of sj>eech." 2 " The liberty of the press, therefore, prop- 
 erly understood, is the personal liberty of the writer to 
 express his thoughts in the more improved way invented 
 by human ingenuity in the form of the Press." 3 " The 
 liberty of the Press consists in the right to publish with 
 impunity, truth with good motives and for justifiable ends, 
 whether it respects governments, magistracy, or individu- 
 als." 4 In the sense of unlicensed, the press has been free 
 since A. D. 1694. 5 And, except in respect to newspapers, 
 
 1 Attributed to Lord Mansfield, cited Root v. King, 7 Cow. 628, and commented 
 on 1 Mence on Libel, 158. 
 
 s Essay on the liberty of the Press, chiefly a3 it respects personal slander, by 
 Bishop Ilayter, p. 6. 
 
 3 Holt on Libel, B'k 1, ch. iv. 
 
 4 Hamilton arg. The People v. Croswell, 3 Johns. Cas. 360. And see The Federal- 
 ist, No. 81 ; The Fourth Estate; Areopagitica, a speech for the liberty of unlicensed 
 printing (Holt White's edition is the best); Story on the Constitution, $;§ 1880 to 
 1889 ; 1 Tiudal's continuation of Rapin's History of England, 350, Remarks on Pult- 
 ney's bill to prohibit the circulation of unlicensed newspapers. 
 
 5 On the introduction of the printing press into England, at the expense of the 
 Government, the press was regarded as a State right, and subject to the coercion of 
 the crown. (See Hills v. University of Oxford, 1 Vernon, 275; Basket v. University 
 of Cambridge, 2 Burr. 661.) It was regulated, therefore, by the king's proclamations, 
 prohibitions, charters of privileges, and licenses, and then by the decrees of the Court 
 of the Star Chamber, until the abolition of that court, in 1641. The Long Parliament, 
 in 1613, assumed the power of licensing, and this was continued by various statutes 
 till 169-i. The printing press was regarded as too dangerous a contrivance to be 
 suffered to be free. Governor Dongan was instructed (A. D. 1688) not to allow any 
 printing press in New York, although Massachusetts had at that time enjoyed a print- 
 in"- press for nearly thirty years. The judges were unanimously of opinion that 
 by the common law of England no man not authorized by the crown, had the right 
 to publish political news. (London Gazette, May 5 & 17, A. ~D. 1680.) " It was from 
 the press that originated what is in fact the main distinction of the ancient and 
 modern world, public opinion." (Holt en Libel, 61.) Whittier calls a newspaper an 
 " opinion mill," and speaks of an editor who 
 
 Ilad left the Muses' haunts to turn 
 The crank of an opinion mill. 
 
 The Constitution of the United States provides: Congress shall make no law 
 abridging the freedom of speech or of the press. (Am'dm't of 1789, art. i.) The
 
 § 252.] FREEDOM OF THE PRESS. 439 
 
 no greater degree of liberty for the press has ever been 
 claimed. Bnt as respects newspapers, it is argued that 
 the exigencies of the business of a newspaper editor de- 
 mand a larger amount of freedom. That circumstances do 
 not permit editors the opportunity to verify the truth, 
 prior to publication, of all they feel called upon to pub- 
 lish, and that they should not be responsible for the truth 
 of what they publish. Some concessions have already 
 been made to these arguments. At present the law takes 
 no judicial cognizance of newspapers, and independently 
 of certain statutory provisions, the law recognizes no dis- 
 tinction in principle between a publication by the propri- 
 etor of a newspaper and a publication by any other indi- 
 vidual. 1 A newspaper proprietor is not privileged as such 
 in the dissemination of news, but is liable for what he 
 publishes in the same manner as any other individual. 2 
 This being the case, after referring to the statutory pro- 
 visions affecting publications in newspapers, it will be 
 unnecessary separately to consider what a newspaper pro- 
 
 Cpnstitution of New York provides: Every citizen may freely speak, write, and pub- 
 lish his sentiments on all subjects, being responsible for the abuse of that right, and 
 no law shall be passed to restrain or abridge the liberty of speech or of the press. 
 (Constitution of 1846, art. 1, § 8.) This is repeated in the Bill of Rights of that State, 
 and similar provisions are, we believe, to be found in the Constitution of every State 
 of the Union. 
 
 1 Davidson v. Duncan, 1 El. <fe B. 231 ; Campbell v. Spottiswoode, 8 Law Times 
 Rep. H". S. 201 ; 3 Fost. & F. 421. 
 
 2 Sheckell v. Jackson, 10 Cush. 25. The right to criticise is general; it is not 
 the peculiar privilege of the press. (Kane v. Mulvany, 2 Ir. C. L. 402.) A writer in 
 a newspaper has no other or greater privilege than any other individual. (Campbell 
 v. Spottiswoode, 8 Law Times Rep. N". S. 201.) As to privilege, there is no differ- 
 ence between a publication by a newspaper or a private individual. (Davison v. 
 Duncan, 7 El. tfc B. 231.) Conductors of the public press are not privileged as such 
 in the dissemination of news, but are liable for libellous publications, like other per- 
 sons, without proof of express malice. (Sheckell v. Jackson, 10 Cush. (Mass.), 25.) 
 On March 14, 1859, in the New York Senate, Mr. Ely introduced a bill to amend 
 chapter 130 of the Laws of 1854 by providing that no publication in any newspaper, 
 respecting any person holding office shall be deemed a libel, and providing that any 
 assault upon the person of an editor who has made any such publication shall not be 
 illegal or punishable, unless resulting in the death or maiming of the person 
 assaulted.
 
 440 DEFENSES. [Ch. IX. 
 
 prietor may or may not publish with impunity ; we can 
 review his rights and duties under the general head of 
 criticism. 1 
 
 § 253. To criticise, in its widest signification, means 
 passing an opinion, commenting. In this sense every one 
 is continually criticising, 2 and every one is continually 
 furnishing occasion for criticism. Criticism may mean 
 praise or censure. The latter is the sense in which it 
 is more frequently employed, and is the only sense in 
 which it enters into our present inquiry. We use criticism 
 as a synonym for "fault-finding." Sometimes the term 
 criticism is limited so as only to indicate " fault-finding " 
 
 1 Among the statutory provisions relating to libels in newspapers are : 38 Geo. 
 
 III, ch. 78, entitled, An act to prevent the publication of newspapers by persons not 
 known, <fec, among other provisions, requires that before any newspaper is started, the 
 proprietor must file an affidavit by the printer, publisher, and proprietor, stating the 
 place where the paper is to be printed, and its title. This act was amended 5 Wm. 
 
 IV, ch. 2. 32 Geo. Ill, ch. 60, entitled, An act to remove doubts respecting functi ns 
 of juries in cases of libel. This is the statute enabling juries to give a general verdict 
 in actions of libel. The 18th section provides for a discovery in actions of libel. 60 
 Geo. Ill, ch. 8, amended, 1 Geo. IV, ch. 73; to prevent and punish blasphemous libels. 
 60 Geo. Ill, ch. 9 ; to restrain abuses arising from the publication of blasphemous libels. 
 This act requires newspaper proprietors to give security to pay the damages and costs 
 in actions for libels published in the papers owned by them. 6 <fe 7 Vict. ch. 96 ; an 
 act to amend the law respecting defamatory words and libel. (Amended 8 & 9 Vict.) 
 It provides, among other things, that in actions for libels in newspapers or period- 
 icals, the defendant may plead that the libel was inserted without actual malice, and 
 without gross negligence, and before the action, or at the earliest opportunity after- 
 wards, he published an apology; and gives liberty, with the plea of apology, to pay 
 money into court. This act, it has been held, does not apply to criminal prosecu- 
 tions. (Reg. v. Duffy, 2 Cox Cr. Cas. 45; 9 Ir. L. R. 329.) As to this statute, see 
 Chad wick v. Herepath, 3 C. B. 885 ; O'Brien v. Clements, 3 Dowl. <fe L. 676 ; Smith 
 v. Harrison, 1 Fosl. & F. 365 ; Jones v. Mackie, Law Rep. Ill, Ex. 1. As to the 
 statutes of 60 Geo. Ill, see Re Chaplin, 2 Hurl. & Colt. 270 ; lie Clements, 12 Law Times, 
 380; 18 Law Jour. 304, Ex. ; Re Gregory, 13 Law Times, 142; and see 32 & 33 Vict, 
 ch. 24, which repeals 6 tfc 7 W. IV, ch 76. A plea of payment into court and apol- 
 ogy not allowed with a traverse of the defamatory sense imputed (Barry v. McGrath, 
 3 Irish C L. 576). Where there is a plea of payment into court, the payment is to 
 be disregarded in assessing damages. (Jones v. Mackie, 37 Law Jour. 1, Ex. ; 18 
 Law Times, N". S. 151.) As to plea of apology, see Rish Allah Bey v. Johnstone, 18 
 Law Times, N. S. 620. See in notes 1, p. 364, and 5, p. 435, ante, and Laws of N. Y. 
 1852, ch. 165; Id. 1868, ch. 430; Sanford v. Bennett, 24 N. Y. 20. 
 
 2 "What distinguishes man from the other animals is, that he alone has the faculty 
 of meddling with what does not concern him. — The Abbe Galiani.
 
 § 254.] criticism. 441 
 
 in matters of literature and art, or in respect to persons 
 engaged in offices of public trust. We do not attempt to 
 define, with any degree of precision, what is the ordinary 
 sense of the term criticism, because we believe it has no 
 definite connotation, and because we do not recognize any 
 distinct or independent right, such as seems generally sup- 
 posed to be implied in or to exist under the designation 
 of criticism. In our opinion, one cannot, by styling de- 
 famatory matter criticism and the defanier a critic, escape 
 from those rules which apply to defamatory matter gen- 
 erally. 
 
 § 254. Criticism may be divided into criticism of per- 
 sons and criticism of things. What one does, one's actions, 
 are things, and as such have a separate existence distinct 
 from the person. Every action, every thing one does, is 
 naturally and necessarily the subject of comment. Every 
 action, every thing one does confers a privilege upon every 
 person to speak or write concerning such action or thing. 
 As to such action or thing every one may, in good faith, 
 speak or write whatever seems to him fit to be spoken or 
 written (§ 204). Save good faith, there is no limit to 
 criticism concerning a man's actions or his creations. 
 " God forbid (exclaimed Baron Alderson) 1 that you 
 should not be allowed to comment on the conduct of all 
 mankind, provided you do it justly and honorably." 
 " Public men, and above all public writers, must not com- 
 plain if they are sometimes rather roughly treated. Pub- 
 lic writers, who expose themselves to criticism, must not 
 complain that such criticism is sometimes hostile." 2 " No 
 criticism of a person holding a public office is libellous 
 unless malicious." 8 " No one can doubt the importance 
 in a free government of the right to canvass the acts of 
 
 1 Gathercole v. Miall, 15 M. <fe W. 319. 
 1 Campbell v. Spottiswoode, 3 Fost. «fc F. 421. 
 s Ilarle v. Cathcrall, 14 Law Times, N. S. 801. 
 29
 
 442 DEFENSES. [Ch. IX. 
 
 public men and the tendency of public measures — to cen- 
 sure boldly the conduct of rulers, and to scrutinize the 
 policy and plans of government. This is the great secu- 
 rity of a free government." * " An editor may comment 
 freely on the acts of government, officers or individuals, 
 and indulge in occasional mirth and wit, and it is only 
 when the character of the publication is malicious, and its 
 tendency to degrade and excite to revenge, that it is con- 
 demned by the law, and subjects the publisher to prosecu- 
 tion." 2 "Liberty of criticism must be allowed, or we 
 should have neither purity of taste or of morals. Fair 
 discussion is essentially necessary to the truth of history 
 and the advancement of science. That publication, there- 
 fore, I shall never consider as a libel which has for its object 
 not to injure the reputation of any individual, but to cor- 
 rect misrepresentations of fact, to refute sophistical reason- 
 ing, to expose a vicious taste in literature, or to censure 
 what is hostile to morality." 3 " Every man who pub- 
 lishes a book commits himself to the judgment of the 
 public." 4 It is of the last importance to literature, and 
 through literature to good taste and good feeling, to nior- 
 
 1 Story on the Constitution, § 1888. 
 
 2 Tappan v. Wilson, 1 Ohio, 193. 
 
 3 L'd Ellenborough, Tabart v. Tipper, 1 Camp. 350 ; and see Cooper v. Stone, 24 
 Wend. 442. An application for an information was refused against one for publish- 
 ing that Ward's pill and drop had done great mischief in twelve different cases, and 
 that they were a compound of poison and antimony, <fec. (Rex v. Roberts, 3 Bac. 
 Abr. tit. Libel, 492.) In Hibbs v. Wilkinson, 1 Fost. <fe F. 608, the action was for 
 libel, first of the plaintiff generally, secondly as a clergyman. It appeared that 
 defendant had published a pamphlet entitled " Truth Vindicated," and the alleged 
 libels were contained in a review of that pamphlet published in a newspaper. Ver- 
 dict for defendant; and by Erie, C. J.: Where the plaintiff and defendant have both 
 had recourse to the press, and the libel has been published in the course of a discus- 
 sion in which both parties have been before the public, and in which the plaintiff 
 first had recourse to the press, and made the matter public, it is important to see 
 if malice has been made out against the party sued, or if he has published only what 
 he believed was required for the interests of truth. 
 
 4 Carr v. Hood, 1 Camp. 358. See Reede v. Sweetzer, 6 Abb. Pr. R. N. S. 9, in a 
 note; a lengthy report of the trial of an action for libel on plaintiff as the author of 
 Griffith Gaunt.
 
 § 255.] criticism. 443 
 
 ality, and to religion, that works published for general 
 perusal should be such as are calculated to improve, and 
 not to demoralize, the public mind ; and therefore it is of 
 vast importance that criticism, so long as it is fair, reason- 
 able, and just, should be allowed the utmost latitude, and 
 that the most unsparing censure of works which are fairly 
 subject to it should not be held libellous. A man who 
 publishes a book challenges criticism ; he rejoices in it if 
 it tends to his praise, and if it be likely to lead to an 
 increase in the circulation of his work, and therefore he 
 must submit to it if it be adverse, so long as it is not 
 prompted by malice, or characterized by such reckless dis- 
 regard of fairness as indicates malice toward the author." * 
 
 § 255. But, as respects the person, except in the in- 
 stances and to the extent heretofore pointed out, there is 
 no privilege of criticism. Defamatory language concerning 
 a person can never be justified merely on the ground that 
 it was published as a criticism. Whenever defamatory 
 matter concerning a person is justifiable — i. e., not action- 
 able — it is on some other ground than that the language 
 was published as a criticism. " No man has a right to 
 render the person or abilities [inseparable incidents to 
 the person] of another ridiculous." 2 "I think no personal 
 ridicule of the author is justifiable." 3 If an author " has 
 made himself ridiculous by his writings, he may be ridi- 
 culed ; if his works show him to be vicious, his reviewer 
 may say so. But the latter has no right to violate the truth 
 in either respect." 4 " If the jury can discover anything 
 personally slanderous against the plaintiff (an author) un- 
 connected with the works he has given to the public, in 
 
 1 Cockburn, C. J., Strauss v. Francis, 4 Fost. & F. 1114. 
 a Holt, Ch. J., Rex v. Tutchin, 2 L'd Raym. 1061. 
 3 Best, Ch. J., Thompson v. Shackell, 1 Mo. & Malk. 187. 
 
 * Cooper v. Stone, 24 Wend. 412. Does not this mean the reviewer can only 
 justify ridiculing an author, or accusing him of being vicious, by a defense of truth.
 
 444 DEFEASES. [Cll. IX. 
 
 that case the plaintiff has a good cause of action." 1 "With- 
 out pretending to elicit the true source of the confusion of 
 thought so obvious in all the dicta and decisions upon the 
 subject of criticism, we venture to assert that the difficulty 
 is occasioned by, (1) overlooking the distinction between 
 language concerning the person and language concerning 
 a thing; and (2) in treating certain persons — authors, 
 artists, &c. — as if a rule applied to them and to their pro- 
 ductions different from the rules which apply to the man- 
 ufacturer and to the merchant. It seems not to have been 
 kept in view that an author is but a producer, and the 
 maker of a watch is an autlwr equally with the maker of 
 a book. There is nothing at this day in the vocations of 
 the author, the actor, the painter, or the sculptor which 
 makes the rights and duties of those who follow them less 
 or greater than the rights and duties of those engaged in 
 any other employment. We should construe language 
 concerning an author or an artist by the same rules as we 
 construe language concerning a* lawyer, or a physician, a 
 merchant, or a mechanic. " There is no doubt that a man 
 
 1 L'd Ellenborough, Carr v. Hood. 1 Camp. 358. But in the same case his Lord- 
 ship is reported to have said : " If the defendant only ridiculed the plaintiff as an 
 author, the action could not be maintained." 
 
 In the case of Stuart v. Lovell, 2 Stark. Cas. 73, the plaintiff being one of the pro- 
 prietors of the Courier newspaper, brought his action for libel against the defendant, 
 the editor of the Statesman newspaper. Lord Ellenborough, in charging the jury, 
 observed: " In the first place, the plaintiff was described as the prostituted Courier, 
 and his full-blown baseness and infamy were represented a3 holding him fast to his 
 present connections, and preventing him from forming new ones. It was certainly 
 competent in one public writer to criticise another, exerting his talents in all the lati- 
 tude of free communication belonging to a public writer; and so it appeared to Lord 
 Kenyon, in Heriot v. Stuart, 1 Esp. Cas. 337, that the opinions and principles of a 
 public writer were open to ridicule, in the same way as those of any other author, 
 but that the privilege did not extend to calumnious remarks on the private character 
 of the individual. In that respect, the editor of a newspaper enjoyed the rights of 
 protection in common with every other subject. Since, then, the defendant in this 
 case had stigmatized the defendant as the venerable apostle of tyranny and oppres- 
 sion, and as a man whose full-blown baseness and iufamy held him fast to his present 
 connection, because they left him without the power of forming new ones; in all this 
 he had undoubtedly overstepped the limits which had been drawn, and by which his 
 conduct ought to have been regulated."
 
 § 256.] ceiticism. 445 
 
 who is an author has a right to have his character pro- 
 tected the same as if he acted in any other capacity. 
 However, notwith standing that, whatever is fair and can 
 be reasonably said of the works of authors, or of tin m- 
 selves as connected with their works, is not actionable, un- 
 less it appear that under the pretext of criticising the 
 tvo?*lcs, the defendant takes the opportunity of attacking 
 the character of the author, and then it will be a libel." 1 
 " I will not stop to weigh the argument which would dis- 
 franchise him (the plaintiff) because he is an author." 2 
 The essential questions in every case of criticism are, (1) 
 Does the matter upon its face concern a thing? (2) and if 
 it does, was it composed and published in good faith ? 
 Whatever other questions may arise, they are but second- 
 ary, and are, as already noticed (§ 204), material only so 
 far as they serve to furnish answers to the two essential 
 questions here mentioned. 
 
 § 256. It was held to be within the limits of criticism 
 to publish of a newspaper : " It is the most vulgar, igno- 
 rant, and scurrilous journal ever published in Great 
 Britain." 3 This affected only the character of the news- 
 paper, and not (except remotely) the reputation of any 
 person. So it is within the limits of criticism to publish 
 of a painting, that it was a mere daub, with other strong 
 
 1 Tenterden, C. J., Macleod v. Wakely, 3 C. & P. 311. If the critic go out of his 
 way to attack the private character of the author, such an attack is a libel. (L'd 
 Abinger, Fraser v. Berkeley, V C. & P. 621.) It is important that a line should be drawn 
 between fair discussion for the promotion of the truth and publications for the asper- 
 sion of personal character. (Erie, C. J., Hibbs v. Wilkinson, 1 Fost. & F. 010.) 
 
 4 Cooper v. Stone, 24 Wend. 442. In all cases of criticism, " The question is one 
 of good faith." (/</.) "The only question is, whether there was any excess in the 
 comments ; that was matter entirely for the jury." (Cockburn, C. J., Kelly v. 
 Tinling, Law Rep. 1 Q. B. *701.) If it be shown that the comment is unjust, is 
 malevolent, and exceeding the bounds of fair opinion, it is actionable. (Dibdin v. 
 Swan, 1 Esp. 28.) 
 
 3 Ileriot v. Stuart, 1 Esp. Cas. 437 ; but it was in that case held actionable to pub- 
 lish of a newspaper, that it was low in circulation. And see Latimer v. West. Morning 
 News Asso., 25 L. T. N. S. 44.
 
 446 DEFENSES. [Cll. IX. 
 
 terms of censure; 1 or of an architect, that he acts on 
 absurd principles of art. 2 In both of the two last pre- 
 ceding cases, it was left to the jury, as a question of fact, 
 whether the censure was unfair and intemperate, and 
 intended to injure the persons of the plainthTs. It was 
 held not to be within the limits of criticism to publish of 
 the plaintiff, a floricultural exhibitor, " the name of Gr. is 
 to be rendered famous in all sorts of dirty work ; the 
 tricks by which he, and a few like him, used to secure 
 prizes, seem to have been broken in upon by some judges, 
 more honest than usual. If G. be the same man who wrote 
 an impudent letter to the Metropolitan Society, he is too 
 worthless to notice ; if he be not the same man, it is a 
 pity that two such beggarly souls could not be crammed 
 into the same carcass." 3 Nor is it within the limits of 
 criticism to write of the publisher of a magazine, that he 
 had inserted in his magazine a series of articles, the 
 greater part of which were false and of a gross charac- 
 ter ; 4 nor to write of a book publisher, that he published 
 books of an immoral character, and ascribing to him the 
 authorship of some silly rhymes. 5 Where the plaintiff, 
 a surgeon, had presented a petition to Parliament against 
 empirics and irregular practitioners, and defendant, in a 
 medical journal, had commented on the petition, reflecting 
 
 1 Thompson v. Shackell, 1 Mo. & Malk. 187. 
 
 2 Soane v. Knight, 1 Mo. & Malk. 74. 
 
 s Green v. Chapman, 4 Bing. X. C. 92 ; 5 Sc. 340. 
 
 4 Colburn v. Whiting, cited Cooke on Defam. 58, and see Cooper v. Stone, 24 Wend. 
 434. Where it is said not to be within the limits of criticism to impute to an author 
 falsehood and unworthy motives in the production of a book. 
 
 6 Tabart v. Tipper, 1 Camp. 350, the rhymes were : 
 
 There was a little maid, 
 And she was afraid 
 
 Her sweetheart would come to her, 
 She bound up her head, 
 When she went to bed, 
 
 And she fastened her door with a skewer. 
 
 And were followed by this line : 
 
 Dixin ego vobis Atticam quandam inessee elegantiam.
 
 § 256.] ceiticism. 447 
 
 on the plaintiff for ignorance generally, and particularly in 
 chemical knowledge ; and the judge had directed the jury, 
 that if they considered the libel a fair comment on the 
 petition, and not a malicious effusion against the plaintiff, 
 and also if they considered that it imputed to him igno- 
 rance in chemistry only, and not in his profession as a 
 surgeon, to find for the defendant, which they did ; the 
 court granted a new trial. 1 Where the plaintiff, a " marine 
 store dealer," had exhibited a placard in front of his store, 
 offering certain prices for kitchen stuff, candle ends, 
 pewter, plated goods, &c, and proposing to fetch them 
 from private houses. Some observations upon this 
 placard had been made by a magistrate officially ; npon 
 which the defendant published in a newspaper an article 
 headed, " Encouraging servants to rob their masters," and 
 imputing that the placard was calculated or intended to 
 encourage servants to rob their masters. The placard 
 was held to be a proper subject of criticism, and as the 
 article did not go beyond the placard, or attack the 
 plaintiff in anything not fairly arising out of that docu- 
 ment, it was held privileged. 2 
 
 1 Dunne v. Anderson, 3 Bing. 88. The reporter, erroneously as we think, puts 
 this decision on the ground that presenting a petition to Parliament is an act not 
 obnoxious to criticism. The error for which the new trial was granted was the 
 direction to find for the defendant, if the imputation was of ignorance in chemistry 
 only. 
 
 2 Paris v. Levy, 9 C. B. K S. 342 (in banc); 2 Fos. & F. 71 (nisi prius). It was 
 held not to be a libel upon a dealer in coal in L., who had advertised genuine Franklin 
 coal for sale, to publish the following advertisement : " Caution. — The subscribers, 
 the only shippers of the true and original Franklin coal, notice that other coal dealers 
 in L. than our agent, J. S., advertise Franklin coal. We take this method of caution- 
 ing the public against buying of other parties than J. S., if they hope to get the genuine 
 article, as we have neither sold nor shipped any Franklin coal to any party in L., except 
 our agent, J. S." (Boynton v. Remington, 3 Allen, 397.) 
 
 In a previous note (No. 4, p. 346) we directed attention to the views of Lord Chief 
 Justice Cockburn on criticism; we recur to the subject to give some extracts from 
 his charge in the case of Seymour v. Butter worth, reported at length in the " Law 
 Magazine and Law Review" (London), February, 1803, and given in an abridged 
 form in The Monthly Law Reporter (Boston), May, 1863 ; also reported 3 Fost. <fe F. 
 384. The plaintiff, a barrister, Recorder of Newcastle-upon-Tyne, and member of 
 Parliament, sued for an alleged libel upon him, published in the Law Magazine. We
 
 448 DEFENSES. [Cll. IX. 
 
 § 256a. The conduct of a party to .a suit, in giving Ms 
 testimony as a witness in a court of justice, is a fair subject 
 
 find in the charge: (1.) A man's jsublic political conduct is matter for the freest and 
 fullest discussion on the part of a writer in a public journal. (2.) To animadvert on 
 those who lend themselves to a system of buying and selling votes in Parliament, " is 
 within the legitimate province of a public writer," but if he goes beyond that, and 
 asserts that one " has bargained to sell his vote," it is a charge which no man, whether 
 writing in public or in private, ought to dare to make. (3.) All men who occupy 
 public positions must submit, now and then, to be a little roughly handled, and to be 
 uncourteously and even unjustly treated, and people must not be too thin-skinned in 
 reference to such matters. It has happened to everybody who has had anything to 
 do with public life, to have, at one time or other, observations made upon his conduct 
 and motives, which, in all probability, at the bottom of his heart, he has felt to be 
 unfounded and unjust ; but we submit to it, and why ? because we know that, upon 
 the whole, that bringing, by means of the public press, the conduct and motives of 
 public men to the bar of public opinion, is the best security for the discharge of public 
 duty. (4.) It is claimed that, although the conduct of a public man is open to public 
 discussion, his private conduct is not, and that it does not lie in the mouth of a man, 
 who has attacked another with reference to his private conduct, to say, I did it only 
 in the fair discharge of a public duty. But there is this distinction in this case, that, 
 however true that proposition may be with reference to the private conduct of a private 
 individual, the plaintiff does not occupy the position of a private individual. * * * 
 It is impossible to say the plaintiff was not a public man, and that his conduct, if it 
 had reference to his fitness to be & public man and to occupy a public position, was 
 not a matter fit for discussion. (5.) I must dissent from the proposition, that where 
 a man holds a public position in which integrity, honesty, and honor are essential and 
 indispensable qualifications, if in his private conduct he shows he is destitute and 
 devoid of those essential elements, that it is not a fair subject for public animadver- 
 sion and hostile criticism, so long as the writer confines himself within the boxinds of 
 truth and within the limits of fair and just observation. Elsewhere in the charge his 
 Lordship speaks of the rights and duties of a public writer, and generally speaks as 
 if a public writer was a person with peculiar rights and duties, whereas the law 
 recognizes no such office as that of a public writer, and gives him no privileges 
 except as mentioned ante, note 1, p. 364. "We do not con-ider sound the distinction 
 between public men and private men, and public acts and private acts. To say, as 
 is said in the fifth of the foregoing extracts, that one maj' criticise " so long as the 
 ■writer confines himself within the bounds of truth and within the limits of fair 
 and just observation" is merely saying one may publish the truth, and criticise 
 where it is fair and just to do so. To limit criticism to just criticism, is in effect 
 to toll the right of criticism, as it substitutes the judgment of the jmy for the 
 judgment of the critic. In another case, Strauss v. Francis (4 Fost. & F. 939), 
 also tried before Lord Cockburn, the plaintiff was the author of a novel called 
 " The Old Ledger," and the defendant the editor of the Athenaeum. The defend- 
 ant published a criticism of this novel, for which the plaintiff brought an action 
 for libel, and on the trial withdrew a juror. The defendant then published an article 
 under the heading "The Rights of Criticism," in which he republished the original 
 criticism, with comments on the trial at which the plaintiff withdrew a juror. In an 
 action for this second publication (4 Fost. <fc F. 1108), the judge charged the jury 
 " that the action related to two separate matters of complaint, which should be kept 
 distinct — first, the review on the work ; next, the comments on the trial. The repub-
 
 256«.] 
 
 criticism. 449 
 
 of comment. The administration of justice is a matter of 
 public interest, and therefore a proper subject of public 
 
 lication of the criticism on the work brought it under the notice of the jury, and it 
 would be for them to say whether the criticism was fair and reasonable, or whether 
 the writer of it was actuated by malice. That it was severe there could be no doubt, 
 but the question was, was the severity warranted by the nature of the book. It was 
 conceded that it was of vast importance to literature, and through literature, to the 
 morals, religion, good taste, and good feelings of the public, that works which were 
 laid before them for their perusal should be of such a character that they would im- 
 prove and not demoralize. It was, therefore, right and wholesome that criticism, so 
 long as it was fair and just, should be allowed the largest latitude. Authors courted 
 criticism, because, if it were favorable, it would secure popularity for, and extend 
 the circulation of, their works; but, as they challenged criticism, they should submit 
 to it when it was adverse, so long as it was not prompted by recklessness or malice. 
 It had been contended on behalf of the plaintiff that it was unfair to select isolated 
 passages from a work and fasten on them, disparaging the spirit and character and 
 object of the entire book; but that observation was open to this remark, that it was 
 not because a work might, as a whole, be good, that a critic, if he found many pass- 
 ages of an obnoxious character, must abstain from commenting on them. That some 
 of the passages read warranted the charge of indelicacy, some the charge of profan- 
 ity, and many of them the charge of gross vulgarity, was, he thought, a matter as to 
 which they could not fail to give an answer in the affirmative. The fair critic was a 
 prosecutor who brought to the bar of jrablic opinion offenders against good taste, 
 against delicacy and propriety. The work in question was denounced as being abom- 
 inable. That was no douht a strong expression. It was for the jury, having the 
 book before them, and having heard what had been said for and against it, to say 
 whether the criticism in question was a fair rejjresentation of the character of the 
 work. The jury found for the defendant. In another case, Campbell v. Spottiswoode, 
 (3 Fost. & F. 421), we quote from the London Quarterly Review of April, 1865, art. 
 Libel. The plaintiff, the editor of the British Standard, had published in that news- 
 paper a series of appeals on behalf of Missions to China. The alleged libel was an 
 article published in the Saturday Review, commenting on those appeals, and in which 
 the plaintiff was called an " impostor," and charged " wilh scandalous and flagitious 
 conduct." On a trial before Lord Cockburn, the plaintiff had a verdict, the judge 
 charging the jury that the defendant had exceeded the limits of criticism, and added, 
 " It cannot be said that because a man is a public man, a writer is entitled not only 
 to pass judgment upon his conduct, but to ascribe to him corrupt and dishonest 
 motives." A motion for a new trial was denied ; Lord Cockburn, in giving judgment 
 (8 Law Times Rep. N. S. 201 ; 3 B. & S. T69 ; 3 Fost. & Fin. 421, note), said: " But 
 it seems to me that a line must be drawn between hostile criticism upon a man's 
 public conduct, and the motives by which that conduct may be supposed to be influ- 
 enced, and that you have no right to impute to a man in his conduct as a citizen — 
 even though it be open to ridicule or disapprobation — base, sordid, dishonest, or 
 wicked motives, unless there is so much ground for the imputation that a jury shall be 
 of opinion, not only that you may have honestly maintained some mistakt n b< lief upon 
 the subject, but that your belief is well founded and not without cause." We do not under- 
 stand the part in italics. In our opinion his Lordship should have said that you must 
 not impute dishonest or wicked motives, unless you can establish the truth of the im- 
 putation, lie came very near to our views in Turnbull v. Bird (2 Fost. it F. 508),
 
 450 DEFENSES. [Ch. IX. 
 
 comment ; 1 where the libel was a comment upon a proceed- 
 ing before a magistrate, the court charged, that if the publi- 
 cation meant that the magistrate had acted hastily in dis- 
 missing the case, and that it would have been more 
 satisfactory if all the evidence had been heard that would 
 be legitimate comment ; but if, under the pretence of com- 
 menting upon the magistrate, the publication was intended 
 to charge the plaintiff with being guilty of the offense for 
 which he had been arraigned, it was not privileged. 2 
 
 § 257. As the right of criticism is confined to criticis- 
 ing actions or things, it necessarily follows that as a pre- 
 liminary to all right of criticism, it must appear that the 
 action or thing criticised had an existence ; therefore, a 
 justification on the ground of criticism can never prevail, 
 unless the existence of the action or thing, which the 
 criticism is alleged to concern, is either admitted or proved. 
 An alleged criticism consists in the statement or assump- 
 tion of certain facts, and of comments thereon. Where 
 
 (we still quote from the London Quarterly), in which he charged the jury, " if you 
 are of opinion that the defendant, in the comments that he made, was guilty of any 
 wilful mis-statement of fact, either by the exaggeration of what actually existed, or 
 by the partial suppression of what actually existed, so as to give it another color, or 
 if he makes his comments with any mis-statement of fact, which he must have known 
 to be a mis-statement, by the exercise of ordinary care, than he loses his privileges, and 
 the occasion does not justify the publication." We should indorse this if the words 
 in italic were omitted. See, however, Cooper v. Lawson, 8 Adol. & El. 746. 
 
 Publication, by Reform Commissioners, of a report imputing bribery to plaintiff, 
 giving his name as one who had been sued for bribery, was held not privileged. 
 (Wilson v. Reed, 2 Fost. & F. 149.) The plaintiff was the publisher of Zadkiel's 
 Almanac, an astrological publication ; the defendant charged that the plaintiff, being 
 the publisher of that silly work, had gulled by means of a magic ball of crystal in 
 which future events could be seen ; held that this could be justified only by proving 
 that plaintiff, knowing it to be an imposture, took money from the public for the 
 use of said ball. (Morrison v. Belcher, 3 Fost. & Fin. 614.) See Eastwood v. 
 Holmes, 1 Fost. & Fin. 347. A publication of a report of an inspector of char- 
 ities under the charitable trust act, containing a letter written several years pre- 
 viously, reflecting on plaintiff, held conditionally privileged. (Cox v. Feeney, 4 Fost. 
 & Fin. 13.) 
 
 1 Kane v. Mulvany, 2 Ir. C. L. 402 ; and see Hedley v. Barlow, 4 Fost. & F. 227. 
 
 s Ilibbins v. Lee, 4 Fost. & F. 245; and see "Woodgate v. Ridout, 4 Fost. <fe F. 
 202.
 
 § 258]. CELTICISM. 451 
 
 these facts are not admitted, to constitute a justification 
 their existence must be shown. Hence, to justify a criti- 
 cism, it is sometimes necessary to allege, that the facts 
 which warrant a criticism exist, and that the comment on 
 those facts is fair. 1 Where the defamatory matter was 
 that plaintiff, a tradesman in London, became surety for 
 the petitioners in the Berwick election petition, and falsely 
 stated on oath a sufficient property qualification, when, in 
 truth, he was not able to pay his debts. It then asked 
 why the plaintiff, being unconnected with Berwick, should 
 take so much trouble and incur such an exposure of em- 
 barrassments, and proceeded : " There can be but one 
 answer to these queries — he is hired for the occasion." 
 The defendant justified as true all the publication, except 
 the charge of being hired, as to which no mention was 
 made, and, as a further defense, that the publication was 
 i\ correct report of judicial proceedings, with a fair and 
 bona fide commentary thereon. Held, it was properly left 
 to the jury to say whether the imputation that the plain- 
 tiff was hired was a fair comment. 2 
 
 § 258. As criticism is opinion, it can never \>e primarily 
 material to inquire into its justness. The right to criticise 
 implies the right to judge for one's self of the justness of the 
 criticism. It would be but a delusion to say one has the 
 right to criticise provided the criticism be just. The 
 justness or unjustness can never be more than matter of 
 opinion. The test always is, was the criticism bona fide. 
 It is like the case of one writing concerning the sanity of 
 another ; the test of the justification is not, was the State- 
 ly v. Bennett, 1 Code Rep. N. S. 239; 5 Sandf. 54; Buddington v. Davis, 6 
 How. Pr. R. 401. " The occasion of the publication of libellous matter is never 
 irrelevant, and is for the jury, and the jury have to consider taking into view the 
 occasion on which matter is written which might injure another, is it a fair and 
 proper comment, or is it not more injurious than the circumstances warranted ? But 
 on the other hand it has never been held that the occasion being lawful can justify 
 any libel however gross." (Reg. v. Hicklin, Law Rep. III. Q. B. 37C, Blackburn, J.) 
 ' Cooper v. Lawson, 8 Adol. & El. 746.
 
 452 criticism. [Ch. IX. 
 
 raent such as a man of sound sense would have made, but 
 was it the honest conviction of the publisher (§ 206). 
 Although that was a case of comment or giving an 
 opinion or criticism, was in fact, a criticism concerning the 
 person, and found its justification, not in its being a critic- 
 ism, but because the publication was made to protect the 
 interest of another. When it is argued that the right to 
 criticise rests upon the interest which the community 
 generally inay have in the subject of the criticism, it is a 
 confusion of two different and distinct rights. The com- 
 munity are no more interested in the person or reputation 
 of any one individual than in the person or reputation 
 of any other member of society. Nor is there any foun- 
 dation for the distinction sometimes attempted to be drawn 
 between the public and \\±% private character or standing 
 of an individual; and although there are isolated dicta 
 that appear to favor the idea that a person occupying a 
 public situation is thereby rendered, personally, a subject 
 of criticism, yet, as we conceive, the context of these 
 dicta so far explains them as to limit the right of criticism 
 to the actions. Thus it has been said : " Every man has 
 a right to discuss matters of public interest. A clergyman 
 with his flock, an admiral with his fleet, a general with his 
 army, and a judge with his jury — we are all of us the 
 subjects for public discussion ; and provided a man 
 whether in a newspaper or not, publishes a comment on a 
 matter of public interest, fair in tone and temperate, 
 although he may express opinions that you may not agree 
 with, that is not a subject for an action for libel; because 
 whoever fills a public position, renders himself open to 
 public discussion ; and if any part of his public acts is 
 wrong he must accept the attack as a necessary though 
 unpleasant circumstance attaching to his position. In this 
 country everything, either by speech or writing, may be 
 discussed for the benefit of the public. No doubt, there- 
 fore, the defendant was at liberty to discuss the opinions
 
 §§ 259-60.] criticism. 453 
 
 or proceedings of the plaintiff. If he has clone it fairly, 
 temperately and calmly, then he is not a fit subject for an 
 action for libel." 1 " Every individual has a right to 
 comment on those acts of public men which concern him 
 as a subject of the realm, if he do not make his com- 
 mentary a cloak for malice and slander. There is indeed, 
 a material distinction between publications relating to 
 public and to private persons, as regards the question 
 whether they be libellous. That criticism may reasonably 
 be applied to a public man in a public capacity, which 
 might not be applied to a private individual." 2 The first 
 sentence in this last quotation refers to acts, and is correct ; 
 and although the remarks in the subsequent sentences 
 profess to apply to persons, yet they can be regarded as 
 stating the law correctly only by limiting them to the 
 acts of public men. Apart from the obsolete statutes of 
 scandalum magnatum there is no distinction of persons, 
 nor any division of persons into public and private (§181). 
 
 § 259. The supposed distinction between matters of 
 fact and matters of opinion, is sometimes referred to as 
 marking the difference between justifiable or unjustifiable 
 comment or criticism. Criticism, it is said, is matter of 
 opinion; and that while all expression of opinion is 
 justifiable, a statement of fact is not justifiable, unless on 
 the ground of truth. 3 This view is unsound. In one 
 sense it is merely the expression of an opinion to say of a 
 minister he entered the pulpit in a towering passion ; but 
 such an assertion cannot be justified as criticism. 4 
 
 § 260. Stress is sometimes laid upon the fact that the 
 criticism is upon a public act, implying that it is the 
 publicity of the act upon which the right of comment 
 
 2 Bramwell, B., Kelly v. Sherlock, Law Rep. I. 689, Q. B. 
 
 9 Parmiter v. Cropland, 6 M. & W. 108. 
 
 8 See Popham v. Pickburn, 1 Hurl. & Nor. 891 ; ante, §§ 163, 241 and note 1, p. 219. 
 
 * Walker v. Brogden, 19 C. B. N. S. 64.
 
 454 DEFEASES. 
 
 depends. We shall not attempt to distinguish between 
 public and private acts, because we are of the opinion that 
 it cannot directly make any difference in the right to 
 criticise, whether the act be done privately or publicly. 
 It was this supposed distinction between public and 
 private acts, which occasioned the dubiety on the question 
 whether a sermon, not otherwise published than by its 
 delivery from the pulpit, by a minister to his congregation, 
 was the subject of criticism. 1 A churchwarden having 
 written to the plaintiff, the incumbent, accusing him of 
 having desecrated the church, by allowing books to be 
 sold in it during the service, and by turning the vestry 
 room into a cooking apartment, the correspondence was 
 published without the permission of the plaintiff, in the 
 defendant's newspaper, with comments on the plaintiff's 
 conduct. Held, that the correspondence involved a sub- 
 ject of public interest, which might be made the subject 
 of public discussion, and the publication of the correspon- 
 dence was not actionable, unless the lan^ua^e used was 
 stronger than the limits of fair criticism allow. 2 Upon 
 principle, private acts are, equally with public acts, the 
 subjects of criticism. But whether the act be a public or 
 a private act, may make a difference in determining 
 whether the criticism was in good faith. 
 
 'Gathercole v. Miall, 15 M. & W. 319; 10 Jurist, 337; 7 Law Times, 89; 15 Law 
 Jour. Rep. 179, Ex. In the same case it was held that the conduct of the vicar of a 
 parish, in establishing a parochial institution for charitable purposes, by the rules of 
 which all persons not members of the Church of England are excluded from the 
 benefit of the charity, is not a public act or the act of a public functionary, so as to 
 entitle the public press or others to comment on it as such. A plea of fair comment, 
 that the plaintiff's dealings with his tenants was a matter of public notoriety, and 
 had formed the subject of a letter written to plaintiff on behalf of the tenantry by 
 the parish priest ; and that the whole subject of the law of landlord and tenant was 
 a matter of public interest and discussion, held that the plea stated no defense and 
 leave to plead it was denied. (Hogan v. Sutton, 16 Weekly Rep. 127.) 
 
 * Kelly v. Tiding, Law Rep. I. 699, Q. B.
 
 CHAPTER X. 
 
 COEPOEATIOXS. 
 
 Corporations are legal persons — Their rights and duties 
 assimilated to those of natural persons — Can act only 
 through agents — May carry on business, sue and he sued, 
 and are liable for injuries committed by agents — Corpor- 
 ations may have a reputation — Language concerning 
 corporations — Actions by corporations for libel — Corpor- 
 ations cannot be guilty of slander — May be guilty of 
 libel. 
 
 § 261. Corporations, whether aggregate or sole, are 
 legal persons. Hitherto, attention has been directed 
 exclusively to language published by or which concerned 
 natural persons or their affairs ; it will now be in order 
 to consider the rights and duties of legal persons or 
 corporations in respect to the publication of language. 
 The topic has been comparatively but little adjudicated, 
 and to the decisions upon it the remarks contained in a 
 former section (§15) appear peculiarly applicable. The 
 great and ever increasing number of corporations, assuming 
 all the functions of individuals, has created a tendency in 
 the modern decisions to assimilate, so far as possible, the 
 rights and duties of corporations to the rights and duties 
 of natural persons. 1 It is the distinctive feature of a 
 corporation that it can only act by or through its officers 
 or agents ; 2 for even in the case of a corporation sole, the 
 
 1 Conro v. Port Henry Iron Co., 12 Barb. 28. 
 
 2 First Baptist Church v. Brooklyn Fire Ins. Co., 18 Barb. 69; Story on Agency, 
 §10.
 
 456 CORPORATION'S. [Ch. X. 
 
 individual who represents that corporation, and the cor- 
 poration, are distinct entities. Ordinarily, a corporation 
 may acquire and possess property, and carry on business, 
 and it may sue and be sued in like manner as an indivi- 
 dual, 1 and is liable for an injury committed by its servants 
 or agents, in all cases where, under like circumstances, an 
 individual would be liable. 2 Accordingly, it has been held 
 that an action lies against a corporation for malicious 
 prosecution or for a trespass, 8 or for a libel. 4 
 
 § 262. A corporation, like an individual, may have a 
 reputation, and a good reputation is equally as valuable 
 to a corporation as to a natural person; 5 and as an in- 
 dividual may sustain injury by language affecting his 
 reputation, so in like manner may a corporation. As in 
 regard to language affecting individuals, we distinguish 
 between language concerning the person as such, and 
 
 1 The Constitution of the State of New York provides, (Art. 8 § 3.) All corpora- 
 tions shall have the right to sue, and shall be subject to be sued in all courts, in like 
 cases as natural persons. 
 
 2 First Baptist Church in Schen. ?/. Schen. & Troy R. R. Co., 5 Barb. 80, and see 
 Pritchard v. Corporation of Georgetown, 2 Cranch Cir. Ct. 191 ; Watson v. Bennett, 
 12 Barb. 196; New Haven R. R. Co. v. Schuyler, 34 N. Y. 30,208; Hunter v. 
 Hudson River R. R. Co., 20 Barb. 507 ; Sharp v. Mayor of New York, 40 Barb. 273 ; 
 Rochester White Lead Co. v. City of Rochester, 3 N. Y. 468 ; Green v. London 
 Omnibus Co., 6 Jurist, N. S. 228 ; see ante, § 123. 
 
 s Eastern Counties Railway v. Brown, 6 Ex. 314; Roe v. Birkenhead Railway 
 Co., 7 Ex. 36; Goodspeed v. East Haddam Bank, 22 Conn. 530; McFadzen v. Mayor 
 of Liverpool, Law Rep. III. Ex. 279. In Owsley v. Montgomery &c. R. R. Co., 
 in Alabama, it was held, but as we conceive erroneously, that a corporation, 
 although liable for false imprisonment, was not liable for malicious prosecution ; and 
 in Childs v. State B'k of Mo., 2 Ben. 213, it was held that neither an action for 
 malicious prosecution, for slander, nor for false imprisonment, could be maintained 
 against a corporation; and see Stevens v. Midland Counties R'way, 10 Ex. 355. 
 
 4 Phil. R. R. Co. v. Quigley, 21 How. U. S. R. 202 ; Aldrich v. Printing Press Co. 
 9 Min. 133 ; Lawless v. Anglo Egyptian Cotton Co., Law Rep. IV. Q. B. 262 ; 
 Maynard v. Firemans Ins. Co., 34 Cal. 48; Latimer v. West. Morn. News Co. 25 Law 
 Times, N. S. 44. In New York by statute (Laws 1860, ch. 90), a married woman 
 may maintain an action in her own name, against any "body corporate," for any 
 injury to her person or character, the same as if she were sole. 
 
 6 Trenton Ins. Co. v. Perrine, 3 Zab. 402.
 
 §§ 263-64.] corporations. 457 
 
 language concerning the person in a trade, and language 
 concerning a thing or the affairs of a person ; so in regard 
 to language affecting corporations, we must distinguish 
 between language concerning a corporation for different 
 objects, as those engaged in manufacturing, trading, 
 or banking, and those not so enowed, and lamma^e con- 
 cerning the things of a corporation. Of course language 
 concerning the corporators is not within the limits of our 
 present inquiry. Where the defendant published, with 
 other defamatory matter, that his hat had been stolen by 
 so?ne of the members of No. 12 Hose Company. The 
 Hose Company was a volunteer association, and the 
 members of the Association brought a joint action for 
 this publication ; held, that the action could not be 
 maintained. 1 
 
 § 263. Language concerning a corporation not engaged 
 in any business, can hardly occasion, and certainly does 
 not necessarily occasion it any pecuniary injury; therefore, 
 in regard to language concerning such a corporation, no 
 action can be maintained except upon j^roof of special 
 damage; but as regards a corporation engaged in manu- 
 facturing, trading or banking, or other occupation in 
 which credit may be material to its success, there language 
 concerning such a corporation calculated to injuriously affect 
 its credit, must necessarily occasion it pecuniary injury, 
 and in such a case an action may be maintained by the 
 corporation without proof of any special damage. Thus 
 as regards language concerning corporations, some is 
 actional )\q per se, and some is actionable only by reason of 
 special damage. 
 
 § 264. In the case of an action by a corporation, a 
 mutual life insurance company, against the editor of a 
 
 1 Giraud v. Beach, 3 E. D. Smith, 337. 
 30
 
 458 CORPORATIONS. [Cll. X. 
 
 newspaper, for libel in charging that the affairs of the 
 company were mismanaged, it was alleged that the words 
 were published of and concerning the company in their 
 business, and of and concerning the directors of the com- 
 pany, and of and concerning the president, vice-president 
 and secretary of the company, and of and concerning the 
 property and concerns of the company, and of and con- 
 cerning the conduct and management of the property and 
 concerns of the company by the aforesaid directors and 
 officers of the company ; and special damage was charged 
 to have resulted to the company in a loss of its business, 
 and a diminution of its profits. On demurrer to the com- 
 plaint, it was held that "a corporation aggregate may 
 maintain an action for a libel for words published of them 
 concerning their trade or business, by which they have 
 suffered special damage." And that, " in alleging special 
 damage, it is not always necessary to name the customers 
 whose business has been lost by the defamation ; but if 
 the nature of the business is such as to render that 
 impracticable, the loss of the business may be alleged 
 generally." 1 In another case it was held that a joint stock 
 company, incorporated under the statute 19 and 20 Vict., 
 ch. 47, might maintain an action for libel, and that, too, 
 against a shareholder in the company. 2 And in that case 
 it was said there may be particular kinds of libel which 
 do not effect a corporation, but if injury ensues an action 
 may be maintained. Where the defendant published in 
 a periodical, that the plaintiff", an incorporated bank, 
 " was liable at any time to be closed up by an injunction," 
 the plaintiff brought an action for libel, alleging that since 
 the publication divers persons had refused to receive the 
 notes of the plaintiff, and had refused to deal with it. 
 To this complaint there was a demurrer; the demurrer 
 
 2 Trenton Ins. Co. v. Perrine, 3 Zab. 402. 
 
 2 Metropolitan Saloon Omnibus Co. v. Hawkins, 4 Hur 1 . & Kbr. 87.
 
 § 265.] corporations. 459 
 
 was overruled, and it was held that a good cause of action 
 was alleged without any allegation of special damages 
 that the law recognized the rights of a corporation to its 
 property as effectually as in the case of an individual. 
 An appeal was taken to the general term, where the 
 decision was affirmed. 1 "Where an act of Parliament, after 
 reciting the difficulties experienced by joint-stock com- 
 panies in suits for recovering debts and enforcing obliga- 
 tions, and in the prosecution of offenders, enacted that 
 actions commenced by the Hope Company for recovering 
 debts, enforcing claims or demands then due, or which 
 thereafter might become due or arise to the company, 
 niicdit be commenced, and indictments for offenses be 
 preferred, in the name of the chairman. Held, that the 
 chairman might sue for a libel on the company, although 
 it was not a corporate body. 2 
 
 § 265. As a corporation can act only by or through 
 its officers or agents (§ 261), and as there can be no 
 agency to slander (§ 67), 3 it follows that a corporation 
 cannot be guilty of slander ; it has not the capacity for 
 committing that wrong. If an officer or an agent of a 
 corporation is guilty of slander, he is personally liable, 
 and no liabilty results to the corporation. But as all 
 concurring in the authorship or publications of a libel 
 are alike responsible as publishers (§§ 115, 117, and note 
 3, p. 148), there is nothing to prevent a corporation from 
 being, in law, the publisher of a libel, and from being held 
 liable as such publisher. A corporation may sanction the 
 publication of a libel, and, in such a case, the corporation 
 is the publisher of the libel, and liable in like manner as 
 
 1 Shoe and Leather B'k v. Thompson, 18 Abb. Pra. R. 413. 
 
 2 Williams v. Beaumont, 10 Bing. 200; 3 M. <fe Sc. 705; and see Woodward v. 
 Cotton, 1 Cr. M. <fc R. 44. 
 
 3 Moloney v. Bartley, 3 Camp. 210; Flecker v, DeGroot, 15 How. Pra. R. 314; 
 
 and note 1, p. Ill, ante.
 
 460 CORPORATIONS. 
 
 an individual; not because, as is sometimes said, a cor- 
 poration may act with malice, but because it has a capacity 
 for voluntary action, and is responsible for such action. 
 It is as possible for a corporation as for an individual to act 
 maliciously, *. e. with a bad intent. Accordingly it has 
 been held, that a corporation aggregate may well, in its 
 corporate capacity, cause the publication of a defamatory 
 statement under such circumstances as would imply malice, 
 in law, sufficient to support the action ; and there may be 
 circumstances by which express malice in fact might be 
 proved, such as to make a corporation aggregate liable 
 therefor in its corporate capacity. 1 
 
 1 Whitfield v. South-East. R. R. Co. 1 Ell. B. & E. 115 ; Aldrich v. Press Printing 
 Co., 9 Min. 133 ; Alexander v. K East. R. R. Co., 34 Law Jour. Rep. N. S. 152; Q. 
 B. ; 11 Jurist, N. S. 619. Exemplary damages against a corporation. (Jefferson 
 R. R. v. Rogers, 2S Ind. 1.)
 
 
 PAET II. 
 
 REMEDY BY ACTION 
 
 FOR THE WRONGS CALLED 
 
 SLANDER AND LIBEL.
 
 CHAPTER XL 
 
 PKOCEEDINGS IN AN ACTION. 
 
 Action, how commenced — Within what time — In what 
 court — Attachment — Holding defendant to bail — Exe- 
 cution against the person — Security for costs — Con- 
 solidating action — Place of trial — Inspection and dis- 
 covery — Assessment of damages xohere no ansiver inter- 
 posed — Mode of trial — Struck jury — Refusing to try — 
 Compromise — Right to begin — Address of counsel — 
 Reading libel to jury — Evidence for plaintiff — Aban- 
 donment of one of several causes of action or defense — 
 Province of the court and jury — Damages — Verdict — 
 New trial — Costs — Staying proceedings until costs of 
 former action paid. 
 
 § 266. The preceding chapters of this essay have been 
 devoted to a consideration of the law relating to the 
 wrongs called slander and libel. We have now to treat 
 of the remedy by action for these wrongs. The diversity 
 of the procedure in the courts of the several States, ren- 
 ders it impossible to compress within any convenient 
 space, or into any convenient form, the practice, pleadings, 
 and proceedings in actions in all the States. To trace in 
 detail the whole proceedings in an action in any one State, 
 would be to exceed the limits of our subject. We pur- 
 pose, therefore, to exhibit so much of the course of pro- 
 cedure in an action in the courts of the State of New 
 York, as applies either exclusively to the action of slander 
 or libel, or as may have been adjudicated upon. Our re- 
 marks, while they will more particularly refer to the State 
 of New York, will occasionally extend to other States and 
 to the practice in the courts of England. As the Code of
 
 4G4 PROCEEDINGS IX AN ACTION - . [Ch. XI. 
 
 Procedure of the State of New York lias been the model 
 for the Codes of Procedui'e of other States, references to 
 the Code of Xew York will have a wide field of. practical 
 utility. The topics of Parties, Pleading, and Evidence 
 will be considered in subsequent chapters. 
 
 § 267. The action for slander or libel is commenced 
 by summons, in the form known as a summons for relief. 
 The summons may be served by publication. 1 The action 
 must, with certain exceptions, be commenced within two 
 years of the time of the publication, and within the life- 
 time of the person affected by the defamatory matter ; 2 it 
 cannot be brought in a court of a justice of the peace. 8 It 
 may be brought in the Marine Court of the City of 
 New York, if the damages claimed do not exceed $500. 
 And in cases which might be brought in the Marine 
 Court, if the action is brought in any other court, the 
 plaintiff can recover only Marine Court costs. 4 The 
 plaintiff in an action for slander or libel cannot issue an 
 attachment against the property of the defendant, 5 but the 
 defendant, whether male or female, may be arrested and 
 held to bail at the commencement of the action, or at any 
 time before judgment therein ; 6 and- after the return un- 
 
 1 Code of Pro., § 135; see Waterhouse v. Hatfield, 9 Ir. L. R. 38. 
 
 a Code of Pro., § 93; see post. Parties. In some cases in England, the plaintiff 
 must give notice of action. (See Norris v. Smith, 10 A. <fc E. 190; BeecheyV. Sides, 
 9 B. & C. 80G ; Lidster v. Borrow, 9 A. & E. 654.) 
 
 3 Code of Pro., § 54. Actions for libel and slander are excepted from the juris- 
 diction of the County Courts in England, 9 and 10 Vict, ch. 95 ; 12 and 13 Vict., ch. 
 101 ; 13 and 14 Vict., ch. 61 ; 15 and 16 Vict., ch. 54. 
 
 4 Laws of X. Y. 1853, p. 1165; Murray v. De Gross, 3 Duer, 668. Any court of 
 record in the city of New York may send any action of libel or slander pending in 
 said court and at issue, to the Marine Court for trial. (See Laws 1871, p. 1817; Laws 
 1870, p. 1346.) 
 
 6 And so in So. Carolina, Sargent v. Helmbold, Harper, 219. 
 
 6 Code of Pro., §§ 179, 183. In England the holding to bail in an action for libel 
 is of very rare occurrence. (Folkard, Stark. Slan. 548.) In New York city, the 
 practice of holding to bail in actions for libel or slander is now discouraged by the 
 courts. (See Knickerbocker Ins. Co. v. Ecclesine, 6 Abb. Pra. Rep. X. S. 9 ; Butta 
 v. Burnett, id. 302.)
 
 § 2G8.] PROCEEDINGS EN - AN ACTION. 4i ; .J 
 
 satisfied of an execution against the property of the de- 
 fendant, an execution may issue against his person, even 
 in the case of an infant defendant. 2 A married woman 
 sued with her husband may be held to bail. 2 If the 
 plaintiff fails in the action, a judgment against him for the 
 costs may, after an execution against his property has 
 been returned unsatisfied, be enforced by an execution 
 against his person. 4 The plaintiff may be required to 
 give security for costs, as in other actions. 5 Actions for 
 slander or libel may be consolidated. 6 
 
 § 268. The actions of slander and libel are of the kind 
 known as transitory? The place of trial (the venue) 
 
 1 Code of Pro., §§ 179, 288; see Baker v. Swackhamer, 5 How. Pra. Rep. 251 ; 
 Straus v. Schwarzwaelden, 4 Bosw. 627; Brooks v. McLellan, 1 Barb. 627; Davis v. 
 Scot, 15 Abb. Pra. Rep. 127; Pearson v. Picket, 1 McCord, 472; Newton v. Rowe, S 
 Sc. X R. 26 ; Defries v. Davies, 3 Dowl. Pra. Cas. 629. A defendant in custody on 
 an execution for damages in slander or libel, is not discharged therefrom by the 
 English bankrupt law ; see 1 Doria & McCreas' Law of Bankruptcy, 349. Queiy as 
 to the United States Bankrupt Law. 
 
 8 Defines v. Davies, 3 Dowl. 629. The defendant in an action for slander, aged 15 
 years, was taken in execution for the damages and costs, and the court refused to re- 
 lease him. (/</.) 
 
 3 Schaus v. Putscher, 25 How. Pra. Rep. 436. 
 
 4 Kloppenburg v. Neefus, 4 Sandf. 655. 
 
 6 Court refused to increase amount of security to cover expenses of foreign wit- 
 nesses. (Pizani v. Lawson, 5 Sc. 418.) By statute 30 and 31 Vict. ch. 142, § 10, it 
 is enacted that in actions of malicious prosecution, * * * * slander, seduction, 
 or other action of tort brought in a superior court, the plaintiff may be required to 
 give security for costs, or satisfy a judge that he has a cause of action, otherwise the 
 action is to be remitted to the county court 
 
 See an instance, Whitely v. Adams, 15 C. B. N. S. 392 ; 10 Jurist, N. S. 47. The 
 court refused to consolidate actions for the same libel, one against the publisher and 
 the other against the editor of the newspaper in which the libel was published. 
 (Cooper v. Weed, 2 How. Pra. Rep. 40.) Where A and P. having recovered in 
 separate actions against different parties engaged in the publication of the newspaper 
 in which the libel was published, commenced other actions against the same parties, 
 each suing the party against whom the other had recovered, the court, on motion 
 refused to stay the proceedings in the second actions. (Martin >•. Kennedy; Banning 
 v. Perry, 2 Bos. & Pul. 69. See Jones v. Pritchard, 6 Dowl. & L. 529 ; 18 Law Jour. 
 101, Q. B.) 
 
 7 Hull v. Vrecland, 42 Barb. 543 ; Owen v. McKean, 14 111. 459 ; Teagle v. Deboy, 
 8 Blackf. 134 ; and see Wickham v. Baker, 4 Blackf. 517, ante, § 110, and note, p. 145.
 
 466 PROCEEDINGS IN AN ACTION. [Ch. XI. 
 
 should he the county in which the parties, or some of 
 them, reside ; or if none of the parties reside in the State, 
 then in any county the plaintiff may designate, 1 subject in 
 every case to the power of the court to change the place 
 of trial. 2 
 
 § 269. In certain cases, either party is entitled to the 
 production and inspection of documents in the possession 
 or control of his adversary. 3 Where, in an action for a 
 libel, the plaintiff moved for an order upon the defendant 
 to deliver to him a copy of a printed book in his, defend- 
 ant's, possession, in order to enable him, plaintiff, to pre- 
 pare his complaint in the action, per curiam : Without ex- 
 pressing any opinion as to the propriety of compelling a 
 defendant, in an action for a libel, to deliver to the 
 plaintiff a copy of the libel, I am clearly of the opinion 
 that this motion should not be granted, because : 1. The 
 
 1 Code of Pro., § 125. Formerly it was a ground for arresting or setting aside 
 the judgment if the venue was laid in the wrong county. This was altered by the 
 statutes 16 and 17 Car. 2, ch. 8; 4 Anne, ch. 16; Clerk v. James, Cro.Eliz. 870; Craft 
 v. Eoite, 1 Saund. 241. 
 
 5 Code of Pro., § 126. As to changing venue, see Phillips v. Chapman, 5 Dowl. 
 Pr. Cas. 250 ; Ryder v. Burke, 10 Ir. Law. Rep. 476 ; Robson v. Blackman, 2 Dowl. 
 645 ; Clements v. Newcombe, 1 Cr. M. & R. 776 ; 3 Dowl. Pr. Cas. 425 ; Pybus ». 
 Scudamore, 7 Sc. 124; Hobart v. Wilkins, 1 Dowl. 460; Wheatcroft v. Mouseley, 11 
 C. B. 677; Pinckney v. Collins, 1 T. R. 571 ; Clissold v. Clissold, 1 T. R. 647; Met- 
 calf v. Markham, 3 T. R. 652; Barnes v. Holloway, 8 T. R. 150; Hitchon v. Best, 1 B. 
 & P. 299; Lucan v. Cavendish, 10 Ir. Law Rep. 536; Callagher v. Cavendish, 3 Ir. 
 Law Rep. 375 ; Root v. King, 4 Cow. 403 ; Shaftsbury's case, 1 Vent. 364 ; Greenslade 
 v. Ross, 3 Dowl. Pra. Cas. 697 ; Tallent v. Morton, 1 M. & P. 188. 
 
 Where the application is on special grounds, it should not be made until after 
 issue joined. (Hodge v. Churchyard, 5 C. B. 495 ; Griffin v. Walker, 7 Sc. 846.) 
 The venue changed after a nonsuit (Price's note3, P. of Pr. 177). It was held 
 no ground for changing the venue in an action for libel published in a local news- 
 paper, that the defendant, the proprietor of the paper, possessed much influence 
 in the county in which the venue was laid, and had, since the commencement 
 of the action, evinced a disposition to use it to the prejudice of the plaintiff. But the 
 court intimated that they would interfere if the defendant should before the trial 
 publish anything in relation to the matter of the action reflecting upon the plaintiff. 
 (Walker v. Brodgen, 17 C. B. N. S. 571.) 
 
 3 Code of Pro., § 388 ; 2 Rev. Stat, of N. Y. 199 ; Court Rule 14. And under the 
 English Common Law Procedure Act. (Collins v. Yates, 27 Law Jour. 150, Ex.)
 
 § 270.] PROCEEDINGS LN AN ACTION. 467 
 
 affidavits do not show what is stated in the book of which 
 the plaintiff seeks a discovery, and therefore the court 
 cannot decide whether it is material or not. 2. Because 
 the affidavits do not specify any particular information 
 desired, so that the court could order a sworn copy to be 
 delivered. 3. Because plaintiff is not entitled to the whole 
 book, but only to the particular article on which his action 
 is founded. 1 Upon an application in an action for libel, 
 for leave to examine a defendant before service of any 
 complaint, the court much doubted the propriety of exer- 
 cising the power of the court to enable the plaintiff to ob- 
 tain facts upon which to frame his complaint. 2 And in 
 an action ag-ainst certain individuals named, and certain 
 others not named (except by fictitious names), for a libel 
 in a newspaper of which the defendants named, with the 
 others not named, were alleged to be the proprietors, the 
 plaintiff alleged that the names of the proprietors were 
 unknown to him, and that it was pretended that the 
 newspaper was the property of a corporation, and asked 
 for an inspection of the books of such corporation to en- 
 able him to ascertain the true names of the proprietors of 
 the newspaper. The application was denied. 3 
 
 § 270. In England a bill of discovery is allowed in 
 certain cases in an action for libel, 4 and interrogatories 
 may be exhibited to ascertain the precise words used, 5 but 
 
 1 Lynch v. Henderson, 10 Abb. Pra. R. 345, note. 
 3 Keeler v. Dusenbury, 1 Duer, 661. 
 
 3 Opdyke v. Marble, 44 Barb. 64. 
 
 4 By statute 6 4 7 W. IV, cb, 76, § 19, authority is given to file a bill of discov- 
 ery of the name of any person concerned as printer, publisher, or proprietor of any 
 newspaper, or of any matters relative to the printing or publishing of any newspaper 
 in order to bring or carry on any suit for libel. As to a bill of discovery in aid of an 
 action for libel, see Macauley v. Shackell, 1 Bli. N. S. 96; 2 Sim. & St. 79; Wilmot 
 v. McCabe, 4 Sim. 263; March v. Davison, 9 Paige, 580; Stat. 32 George III, ch. 60; 
 Stewart v. Nugent, 12 Legal Observer (London), 210. 
 
 6 Atkinson v. Fosbrook, Law Rep. 1, 628, Q. B. ; 14 Law Times, N. S. 553; 17 & 
 18 Vict. ch. 125 ; 32 & 33 Vict. ch. 24.
 
 468 PROCEEDINGS IN AN ACTION. [Cll. XL 
 
 the court refused to permit a plaintiff to exhibit interroga- 
 tories to the defendant, the answers to which, if in the 
 affirmative, would tend to show that he composed or pub- 
 lished the libel, and would therefore criminate him. 1 In 
 an action for imputing to the plaintiff that he was the 
 author of a scandalous letter, which the defendant in his 
 plea justified as true, the court allowed the plaintiff an 
 inspection of the letter by certain witnesses, in order that 
 he might be prepared to negative its being his hand- 
 writing. 2 
 
 § 271. In one case, 3 in an action for libel, the court 
 ordered the defendant "to produce certain documents in 
 his possession for the inspection of the plaintiff. This was 
 disapproved of in a subsequent case, 4 where an application 
 for an order to inspect the manuscript of articles that had 
 been published in a newspaper was denied. A motion to 
 compel the defendants to declare to whom the defamatory 
 matter was intended to apply was denied. 5 
 
 § 272. On the principle that before a party utters a 
 slander he should be prepared to justify, it has been said 
 that the courts will not give the defendant an inspection 
 of documents in the possession of the plaintiff to enable 
 the defendant to prepare a plea in justification ; thus 
 where A. charged B. with forging an I O TJ, and B sued 
 
 1 Tupling v. Ward, 6 Hurl. <fc Nor. "749 ; Edmunds v. Greenwood, Law Rep. IV, 
 C. P. 70; but see Baker v. Lane, 3 Hurl. & Colt. 544 ; 34 Law Jour. N. S. 57, Ex.; 
 10 Jurist, N. S. 117; 11 Law Times, N. S. 38, as explained in Beckford v. D'Arcy, 
 Law Rep. 1, 354, Ex.; 14 Law Times, N. S. 629; see also Stern v. Sevastopulo, 14 
 C. B. N. S. 737; Moor v. Roberts, 2 C. B. N. S. 671 ; Bartlett v. Lewis, 12 C. B. N. S. 
 249. Publisher may refuse to answer interrogatories (Bowden v. Allen, 22 Law Times, 
 N. S. 342; 39 Law Jour. 217, C. P.) When court will not review order allowing an 
 interrogatory (Inman v. Jenkins, 39 Law Jour. 258, C. P.); and as to interrogatories 
 see Osborne v. London Dock Co., 10 Ex. 698; Chester v. Wortley, 17 C B. 410. 
 
 3 Curtis v. Curtis, 3 M. & Sc. 819. 
 
 3 Perrott v. Morris, 8 Irish Jurist, 334. 
 
 4 Findlay v. Lindsay, 7 Irish Com. Law Rep. 1. 
 6 Giraud v. Beach, 3 E. D. Smith, 337.
 
 § 273.] PROCEEDINGS IN AN ACTION. 469 
 
 A. in slander for uttering such charge, the court refused 
 the application of the defendant for an inspection of the 
 I O U, although he alleged that the I O U was in the 
 possession of the plaintiff, that he (defendant) had reason 
 to believe it was in reality a forgery, and that he could 
 not safely plead without inspecting it. 1 Where an order 
 had been made in an action of libel, giving the defendant 
 leave, under 14 and 15 Yict. ch. 99, § 6, to inspect the 
 books of the plaintiff, a motion by the defendant to extend 
 the time to make the inspection, was denied on the ground 
 that the order for inspection ought never to have been 
 made, and per curiam. A man who publishes a libel 
 should be in a position to prove it, and it would be a 
 monstrous thing if a man could publish a libel, imputing 
 insolvency to a mercantile house, and then to come to this 
 court and ask for an order to inspect the plaintiff's books, 
 in the hoj3e of being able to get up a case. If the defend- 
 ant is a shareholder, he has other means of obtaining an 
 inspection, and we can only regard him as a defendant in 
 an action for libel. 2 
 
 § 273. In Massachusetts and in Maine, by statutes, a 
 bill of particulars of the language which the j)laintiff 
 intends to prove may be ordered. 3 These are cases where 
 the precise words alleged to have been published were not 
 set forth in the complaint. (§ 329.) In England an or- 
 der was made for a statement of the occasions upon which 
 the words were published, 4 and for a bill of particulars as 
 to the defense. 5 Where the declaration alleged as special 
 
 1 Day v. Tuckett, 1 Bail Court Rep. 203 ; but see Browning v . Aylwin, 7 B. <fc C. 
 204, where an inspection was allowed. 
 
 2 Metro. Saloon Co. v. Hawkins, 4 Hurl. & Nor. 14G ; 1 Fost. & F. 413 ; see Stead- 
 man v. Arden, 15 M. & W. 587. 
 
 3 Clark v. Munsell, C Mete. 373; True v. Humbey, 36 Maine (1 Heath), 466. 
 
 4 Slator v. Slator, 8 Law Times, N. S. 856; and see Wicks v. Macnamara, 36 Law 
 -Jour. 419, Ex.; Early v. Smith, 12 Irish Com. Law Rep. p. xxxv of Appendix. 
 
 '"Wren v. Weild, Law Rep. IV, Q. B. 213; Jones v. Bewicke, Law Rep. V, C. 
 P. 32.
 
 470 PROCEEDINGS EN" AN ACTION. [Ch. XL 
 
 damages, which was essential to the maintenance of the 
 action, that certain persons had, in consequence of the 
 alleged slander, refused her pecuniary assistance or their 
 votes for her admission into a benevolent institution, an 
 application by the defendant for particulars of the names of 
 the persons to whom the publication was made, was de- 
 nied, but interrogatories were allowed as to the names of 
 the parties whose patronage plaintiff alleged she had lost. 1 
 
 § 274. If the defendant does not answer, he admits the 
 allegations of the complaint and the truth of the innuen- 
 does. 2 The plaintiff must issue a writ of inquiry, and 
 have his damages assessed by a sheriff's jury, not by a 
 referee. 3 The court may order the writ of inquiry to be 
 executed before a judge. 4 On the execution of the writ, 
 the plaintiff is not required to give any evidence of publi- 
 cation. 5 The defendant, on the execution of the writ, will 
 not be allowed to read parts of the publication not set 
 forth in the complaint, in order to give a meaning to the 
 words set forth in the complaint different from that al- 
 leged by the plaintiff; 6 and semble, the defendant will 
 not be allowed to give evidence of the truth of the lan- 
 guage complained of. 7 
 
 1 Wood v. Jones, 1 Fost. & F. 301. 
 
 Q Code of Pro. §§ 168, 246; Tillotson v. Cheetham, 3 Johns. 56. After judgment 
 by default, it is too late to object to the venue. (Wickham v. Baker, 4 Blackf. 517.) 
 
 3 Voorhies' Code, p. 359, 10th ed.; and see Schewer v. Kleine, 15 La. Ann. 303. 
 
 4 Casneau v. Bryant, 6 Duer, 668; and see DillayeV Hart, 8 Abb. Pra. Rep. 394; 
 Hays v. Berryman, 6 Bosw. 679. 
 
 Tripp v. Thomas, 3 B. & Cr. 427; 5 D. <fc R. 276; 1 Carr. 477. In this case it 
 was also held, that although the plaintiff gives no evidence, the jury are not limited 
 to giving nominal damage, It has been held that after assessment of damages on a 
 writ of inquiry, the plaintiff cannot, without leave of the court, enter a nolle prosequi 
 as to one count, and take judgment for the others. (Backus v. Richardson, 5 Johns. 
 476.) 
 
 6 Tillotson v. Cheetham, 3 Johns. 56. 
 
 1 Lewis v. Few, Anthon, 75. Held not sufficient ground for staying a writ of 
 inquiry that the House of Commons had voted the publication privileged. (Stock- 
 dale v. Hansard, 8 Dowl. 148.) In Beatson v. Skene, 5 Hurl. <fe N. 839, an order was
 
 §§ 274(3-275.] PROCEEDINGS EST AN ACTION. 471 
 
 § 274 a. In Macaulay v. Shackell, 1 Lord Elden, on a 
 bill in chancery, granted a commission for an examination 
 of witnesses abroad for the purpose of proving a plea 
 justifying the truth of an alleged libel, with an injunction 
 till the return of the commission. It was considered an 
 extraordinary stretch of his authority, but subsequently 
 the common-law courts have adopted the practice, where 
 the facts warrant it, of issuing a commission with a stay 
 of proceedings. We remember one case, against the pro- 
 prietor of the London Times newspaper, where the court 
 stayed the proceedings for eighteen months, and gave the 
 defendant an open commission to take the depositions ot 
 all or any persons in any part of the world. 
 
 § 2 74 b. Where in an action for libel or slander a cause 
 is compromised by the defendant agreeing to apologize and 
 pay plaintiff's costs, as between attorney and client, the 
 court will by rule enforce performance of the agreement, 2 
 unless defendant shows that he is unable to perform the 
 stijmlation on his part. 8 
 
 § 275. The trial of the issues in an action for slander 
 or libel must be by jury, unless a jury trial is waived, or 
 the parties, by consent, try the issue before the court 
 
 made permitting the defendant to inspect and take copies, by photograph or other- 
 wise, of the alleged libels. The cost of taking copies, in such a case, is to be borne 
 by the party requiring them, but the costs of an order for inspection are in general 
 costs in the cause. (Davey v. Pemberton, 11 C. B. X. S. 629.) 
 
 1 1 Bligh, N. S. 96. That case was affirmed on appeal in the House of Lords, 
 when the chancellor said he had received an anonymous letter " assuring him that 
 all the men of eminence at the bar thought this decision wrong, and that it is pro- 
 duced by the affection which the chancellor is supposed to have had for some Mr. 
 Shackell." See Campbell's Lives of the Chancellors, X, ch. ccxiii, p. 246. In Brown 
 v. Murray, 4 D. «fc R. 830, the court put off a trial to enable defendant to procure the 
 attendance of witnesses from a foreign country to prove a justification, but imposed 
 the terms that upon the trial the defendant should admit the publication of the alle >-ed 
 libel. 
 
 a Riley v. Byrne, 2 B. & Ad. 779 ; Tardrew v. Brook, 5 B. & Ad. 880. 
 
 8 Clare v. Blakesley, 8 Dowl. 835.
 
 472 PROCEEDINGS IN AN ACTION. [Cll. XL 
 
 without a jury, or before a referee, or submit to au arbi- 
 tration. 1 In case of a trial by jury, the court may order a 
 struck jury, but will not do so in trials to be bad in the 
 city of ISew York. 2 The court may refuse to try the 
 cause if the trial will involve an attack upon the chastity 
 of a third person not a party to the action. 8 In case of a 
 new trial, the re-trial may be before the judge who pre- 
 sided on the first trial 4 
 
 § 276. It is supposed that in actions for slander or 
 libel, the plaintiff has, in every case, the right to begin. 5 
 The right to begin is so far within the discretion of the 
 court, that an erroneous ruling in respect to it will neither 
 entitle to a new trial nor render the judgment voidable 
 by appeal. 6 But in England it has been held that an 
 
 1 Code of Pro. § 253. Instances of actions for slander and libel being referred. 
 (Bonner v. McPhail, 31 Barb. 106; Roekweller v. Brown, 36 N. Y. 207; Perkins v. 
 Mitchell, 31 Barb. 461 ; Sanford v. Bennett, 24 X. Y. 20) arbitration, see Grosvenor 
 v. Hunt, 11 How. Pra. Rep. 355; Grayson v. Meredith, 17 Ind. 357; Shepperd v. 
 Watrous, 3 Car. 166.) An award about calling a butcher a bankrupt was referred to 
 a trial at law, because of the excessiveness of the damages given on the award. 
 (Cooper v. The Butcher of Croyden, 3 Ch. R. 76.) In 2 Vera. R. 251, it is said there 
 was another reason besides the excessive damages for setting aside the award. That 
 reason was the relationship of the arbitrator to one of the parties. See an award 
 that defendant should make submission and acknowledge himself sorry for all tres- 
 
 and words. (Cartwright v. Gilbert, 2 Browl. 4S.) As to amount of costs, 
 where an action of slander was referred, and plaintiff recovered less than forty shil- 
 lings damages. (Fream v. Sergeant, 8 Law Times, N. S. 467. 
 
 2 Genet v. Mitchell, 4 Johns. 186; Thomas v. Rumsey, 4 Johns. 482; Thomas v. 
 Crosswell, 4 Johns. 491 ; Nesniith v. Atlantic Mut. Ins. Co., 8 Abb. Pra. Rep. 423. 
 
 3 Loughead v. Bartholomew, Wright, 00. As to right of judge to refuse to try a 
 cause, see He Costa v. Jones, Cowp. 729; Squires v. Whisken, 3 Camp. 140; Ditcheu 
 v. Goldsmith, 4 Camp. 152 ; Brown v. Leeson, 2 H. Black. 43 ; Egerton v. Furzman, 1 
 C, it P. 613; Henken v. Guers, 2 Camp. 408. 
 
 4 Fry v. Bennett, 3 Bosw. 200; 28 N. Y. 329. 
 
 6 Littlejohn v. Greeley, 13 Abb. Pra. R. 41. See "Wood v. Pringle, 1 Mo. & Rob. 
 277 ; Sawyer v. Hopkins, 9 Shep. 268 ; Huntington v. Conkey, 33 Barb. 218 ; Ayrault 
 v. Chamberlain, 33 Barb. 233; Fountain v. West, 23 Iowa, 9; Carter v. Jones, 6 C. <t 
 P. 64; 1 M. & Rob. 281; Mercer v. Whall. 5 Q. B. 462; Hoare v. Dickson, 7 C. B. 
 164. 
 
 6 Fry v. Bennett, 3 Bosw. 200; 28 N. Y. 329.
 
 § 277.] EIGHT TO BEGIN. 473 
 
 erroneous ruling as to the right to begin entitles the ob- 
 jecting party to a new trial. 1 And so in Alabama, 2 
 
 § 277. Counsel, in opening, should not state facts 
 which they are not prepared to prove ; but a disregard of 
 this rule will not entitle the opposite party to disprove a 
 statement of counsel. 3 Nor is a party limited in his proof 
 to the opening of his counsel. 4 Counsel, in summing up, 
 should confine themselves to the facts proved ; but a dis- 
 regard of this rule is not a ground for a new trial. 5 The 
 summing up of counsel may, it seems, affect the damages. 
 Thus, in an action for libel brought by an attorney, the 
 defendant's counsel having ridiculed the profession, and 
 assailed the character of the plaintiff, Lord Chief Justice 
 Coekburn told the jury that if they thought it was a libel, 
 and directed against the plaintiff, " a defense of that de- 
 scription is ten-fold, if not an hundred-fold, an aggravation 
 of any libel which can be brought against a man for any 
 departure from the propriety of his profession, * * * 
 a most grievous aggravation, and one which it is your 
 bounden duty to take into your serious consideration." 6 
 
 1 Ashley v. Bates, 15 M. & W. 589; Booth v. Milnes, 15 M. & W. 669; 4 D. & L 
 52; 15 Law Jour. 354, Ex.; Doe v. Brayne, IV Law Jour. 127, C. P. ; 5 C. B. 655; 
 Hinkman v. Firnie, 3 M. & W. 505 ; but see Brandford v. Freeman, 5 Ex. 734; Bun-ell 
 v. Nicholson, 1 M. & Rob. 304; Bird v. Higginson, 2 A. & E. 160. 
 
 8 Chamberlain v. Gaillard, 26 Ala 504. 
 
 3 Duncombe v. Daniell, 8 C. & P. 223. 
 
 4 Nearing v. Bell, 5 Hill, 291. 
 
 6 Fry v. Bennett, 3 Bosw. 202; 28 N. Y. 331. 
 
 8 Note to Gfroever v. Hoffman, 16 U. C. Q. B. Rep. 445. Damages may be increased 
 by what passes in court. (Darby v. Ouseley, 25 Law Jour. 227, Ex.) Aggravating 
 damages by cross-examining the plaintiff as to the truth of the charge against him, 
 and failing to establish the truth of the charge. (Rish Allah Bey v. Whitehurst, 18 
 Law Times, N. S. 615.) And where, on the trial of an action for slander, the plaintiff 
 expressed his willingness to accept an apology and nominal damages, if the defend- 
 ant would withdraw his plea of justification, the defendant refused this offer, and 
 offered no evidence in support of his plea; the jury were directed to consider tin: 
 nature of the imputation, how it had been made and persisted in down to the time of 
 the verdict, and this direction was upheld. (Simpson v. Robinson, 12 Q. B. 513.) 
 
 31
 
 474 PROCEEDINGS * IX AX ACTION. [CL XI. 
 
 § 278. Where the publication is denied, the libel 
 should not be read to 'the jury until after the plaintiff's 
 counsel has called witnesses to prove the publication ; but 
 a disregard of this rule is not a ground for a new trial. 1 
 As a general rule, the defendant is entitled to have read 
 on the trial, as a part of the jxlaintiff's case, the whole 
 publication containing the alleged libellous matter, 2 or to 
 have in evidence the whole conversation in which the 
 alleged defamatory words were spoken, for he is entitled 
 to show by the context that the alleged defamatory lan- 
 guage was not used in a defamatory sense (§ 283). Where 
 a letter of the defendant's was read, which referred to an 
 account of the transaction in a newspaper, it was held 
 that the newspaper was evidence ; s and where the alleged 
 libels were contained in certain newspapers, the plaintiff 
 proposed to put in evidence and have read the alleged 
 libellous articles only. For the defendant it was claimed 
 that he was entitled to have the whole of the newspapers 
 put in evidence, as part of the plaintiffs case, and to enable 
 the defendant to call attention to certain matter published 
 in the same papers with the said articles, and to which they 
 referred. Cockburn, C. J., after consulting Blackburn, J., 
 allowed the defendant's claim. 4 But where a paragraph 
 
 1 Taylor v State of Georgia, 4 Geo. 14. 
 
 2 Thornton v. Stephen, 2 M. & Rob. 45; Cooke v. Hughes, Ry. &M. 112 ; 2 Greenl 
 Ev. § 423; Rex v. Lambert, 2 Camp. 398 ; Rutherford v. Evans, 6 Bing. 451 ; 4 C. & 
 P. 74. Papers referred to in a libel may be read in evidence in explanation, to give 
 a construction to it. (Nash v. Benedict, 25 Wend. 645.) But the defendant cannot 
 avail himself of previous publications to explain the libellous matter or mitigate the 
 damages, unless he shows the plaintiff to be the author of such previous publications. 
 (Haws v. Stanford, 4 Sneed (Tenn.) 520.) The whole libel must be considered in 
 determining whether it applies to the plaintiff. (Cook v. Tribune Asso., 5 Bl. C. C. 
 352.) In the case of the essays and reviews, the Privy Council held that whilst "it 
 is competent to the accused party to explain from the rest of his work the sense or 
 meaning of any passage or word that is challenged by the accuser, the accuser is, 
 for the purpose of the charge, confined to the passages which are included and set 
 out in the articles as the matter of the accusation." (London Quarterly Review, 
 April, 1864, Am. reprint, p. 284.) 
 
 3 Weaver v. Lloyd, 2 Car. & P. 296. 
 
 4 Hedley v. Barlow, 4 Fost. & F. 224.
 
 §§ 270-80.] WITHDRAWING PLEA. 475 
 
 in a subsequent number of a newspaper is given in evi- 
 dence by the plaintiff, to prove malice, the defendant is 
 not entitled to have read out of the same newspaper, as 
 part of the plaintiff's case, other paragraphs having no 
 reference to the one read by the plaintiff. 1 
 
 § 279. Where the defenses are a general denial and 
 justification, the plaintiff may, before resting his case, 
 either give all his evidence to defeat the justification, 2 or 
 content himself by proving the allegations of his complaint 
 only, in which case he will be restricted in his reply to 
 such evidence only as goes exactly to answer the facts 
 proved by the defense. 3 The evidence is usually closed 
 with the plaintiff 's rebutting testimony. 4 It is discretion- 
 ary with the court to allow additional testimony on the 
 part of either party after he has once closed ; 5 and where 
 there is a plea of justification, the plaintiff may, before 
 resting his case, give evidence of express malice. 6 (§§ 388, 
 390, 392.) 
 
 § 280. The plaintiff may, on the trial, abandon one or 
 more of the causes of action he has alleged in his com. 
 plaint, 7 or where the alleged defamatory matter is divisible, 
 may withdraw a portion of the matter set forth in the com- 
 plaint. 8 A defendant is not always allowed to withdraw 
 a plea of justification, 9 but a refusal to allow such a with- 
 
 1 Darby v. Ouseley, 1 Hurl. & JT. 1. 
 
 2 Brown v. Murray, Ry. <fcMo. 254; Ayrault v. Chamberlain, 33 Barb. 234; York 
 v. Pease, 2 Gray, 282. 
 
 3 Pierrepoint v. Sharpland, 1 Carr. 448. 
 
 4 Teagle v. Duboy, 8 Blackf. 134. 
 6 Wilborn v. Odell, 29 111. 456. 
 
 6 Fry v. Bennett, 3 Bosw. 202 ; but see Winter v. Donovan, 8 Gill, 370. 
 
 7 Kirkaldy v. Paige, 17 Verm. 256 ; Stow v. Converse, 4 Conn. 17; Gould v. V7eed, 
 12 Wend. 12. 
 
 8 Hesler v. Degant, 3 Ind. 501 ; Genet v. Mitchell, 7 Johns. 120. 
 
 9 Clinton v. Mitchell, 3 Johns. 144 ; Lent v. Butler, 3 Cow. 370 ; Lee v. Robertson, 
 1 Stew. 138. Where the defendant, during a trial, withdrew a plea of justification, 
 held that the plea could not be considered by the jury in aggravation. (Shirley v. 
 Keatley, 4 Cold. (Tenn.) 29.)
 
 476 PROCEEDINGS EST AN ACTION. [Ch. XI. 
 
 drawal was in one case held error. 1 Where the defendant 
 had pleaded the general issue and a plea of apology, leave 
 to withdraw the plea of apology was denied, the plaintiff 
 swearing he would be prejudiced. 2 It was held that a writ- 
 ten statement made by the defendant, in which he disclaimed 
 any evil intentions toward plaintiff, could not be given in 
 evidence on the trial, and if allowed by the plaintiff to be 
 given in evidence, could not be sent out with the jury. 3 
 Where the plaintiff, on the trial, abandons a part of the 
 defamatory matter, the part abandoned may be referred 
 to, to show the meaning of the part retained. 4 
 
 § 281. The jury are to determine, as a question of fact, 
 the customary meaning of a word, 5 and the meaning of 
 doubtful words, 6 and whether the language was or was 
 not ironical. 7 " Where words are capable of two construc- 
 tions, in what sense they were meant is a question of fact 
 
 1 Fitzgerald v. Ferguson, 25 111. 138. In Pennsylvania the withdrawal of the plea 
 is within the discretion of the court. (Rush v. Cavanagh, 2 Barr, 187.) 
 
 2 Sullivan v. Lenihan, 7 Irish Law Rep. 463. 
 
 3 Hamilton v. Glenn, 1 Penn. St. Rep. 340. 
 
 4 Genet v. Mitchell, 7 Johns. ] 20. 
 
 5 Law v. Cross, 1 Black U. S. Rep. 583. See Edsall v. Brooks, 3 Robertson, 284 ; 
 Barnett v. Allen, 1 Fost. & F. 125; Wachter v. Quenzer, 29 N. Y. 547. It is for the 
 court to construe words in the English language (Barnett v. Allen, 36 Law Jour. 412, 
 Ex.); and per Bramwell, J. : "Either the word is a known word in the language, in 
 which case we must construe it, or it is a cant slang phrase, the meaning of which is a 
 matter of fact. {Id. ; and see ante, note 2 p. 169, and post, § 286.) Where the words 
 are capable of only one meaning, their construction is a question for the court, but 
 where they are capable of two meanings, or are of doubtful signification, it is the 
 province of the jury to decide in what sense they were used. (Calkins v. Wheaton, 
 1 Edmonds' Rep. 229, citing Goodrich v. Woolcott, 3 Cow. 231; 5 Cow. 714.) The 
 quality of a libellous publication is a question for the court. (Pittock v. O'Neill, 63 
 Penns. 253.) 
 
 6 Hays v. Brierly, 4 Watts, 392. 
 
 7 Re°\ v. Browne, Holt, 425; 11 Mod. 86; Andrews v. Woodmansee, 15 Wend. 
 232; Boydell v. Joues, 4 M. & W. 446 ; 7 Dowl. Pra. Cas. 210. Where the court 
 charged the jury that if the words were spoken "jocularly," the defendant was enti- 
 tled to a verdict, and the jury having found for the defendant, the court granted a 
 new trial without costs, and on plaintiff stipulating to abandon the action. (Donoghue 
 v. Hayes, Hayes' Ir. Ex. Rep. 265.)
 
 § 282.] PROVINCE OF COUET AND JUEY. 477 
 
 to be decided by the jury." 1 Tims, if in one sense the 
 language imputes a crime, and in the other sense does not, 
 the jury are to say in which sense the language is to be 
 understood. 2 And where A. said to B., " You have killed 
 one negro and nearly killed another," held that the jury 
 were to say whether the words were used in a defama- 
 tory sense or not ; 3 so where the language was, " You are 
 a thief. You stole hoop-poles and saw-logs from D. and 
 M.'s land," held that it was properly left to the jury to 
 decide if the charge was taking timber or hoop-poles 
 already cut — which was a felony — or with cutting down 
 and carrying away timber to make hoop-poles, which was 
 a trespass. 4 Where words apparently charging a crime 
 are published, it is proper to instruct the jury that the 
 words are actionable if uttered with intent to charge the 
 crime. 5 
 
 § 282. Where the plaintiff, in an action for libel, had 
 set out in his declaration an article published by the de- 
 
 1 1 Stark. Slan. 60; Van Vechten v. Hopkins, 5 Johns. 221; Dexter v. Taber, 12 
 Id. 240; McKinley v. Rob, 20 Id. 356; Gorham v. Ives, 2 Wend. 534; Gibson v. 
 Williams, 4 Wend. 320; Blaisdell o. Raymond, 14 How. Pra. Rep. 265; Bennett v. 
 Williamson, 4 Sandf. 60. Where the words impute that the plaintiff, a reputed mar- 
 ried woman, is the wife of another man, it is for the jury to say whether the defend- 
 ant does or does not mean she has been guilty of bigamy. (Heming v. Power, 10 M. 
 
 6 W. 564. Where the words were, I have got a warrant for Tempest (the plaintiff) ; 
 I will advertise a reward to apprehend him, and shall transport hira for felony, 
 Lord Ellenborough left it to the jury to say whether defendant spoke with reference 
 to the warrant which had been improvidently issued, or meant to impute a charge of 
 felony. (Tempest v. Chambers, 1 Stark. Cas. 67.) Where the words were, A. & B. 
 have closed their accounts with you, and are going to shut you up — innuendo that 
 plaintiff was insolvent, or likely to be so — left to the jury to say if such was the 
 meaning. (Gostling v. Brooks, 2 Fost. & F. 76.) 
 
 8 Cregier v. Bunton, 2 Rich. 395; 11 Humph. 507; cx-pnrte Bailey, 2 Cow. 479- 
 and see 1 Amer. Lead. Ca3. 153; Davis v. Johnson, 2 Bailey, 579; Welsh v. Eakle, 
 
 7 J. J. Marsh. 424 , Lucas v. Nichols, 7 Jones' Law (N. Car.), 32 ; Snyder v. Andrews, 6 
 Barb. 47; Thompson v. Grimes, 5 Ind. (Porter) 385; Smith v. Miles, 15 Verm. 245- 
 Usher v. Severance, 2 App. 9; Turrill v. Dolloway, 26 Wend. 3S3; Jones v. Rivers 8 
 Brevard, 95. 
 
 3 Hay3 v. Hays, 1 Humph. 402; Chalmers v. Payne, 2 C. M. & R. 156. 
 
 4 Dexter v. Taber, 12 Johns. 239 ; and Stockdale v. Tarte, 4 Adol. & El. 1016; 
 Tu3on v. Evans, 3 Perr. & D. 396. 
 
 *St. Martin v. Desnoyer, 1 Min. 156.
 
 478 PEOCEEDINGS EN" AJST ACTION. [Ch. XI. 
 
 fendant in a newspaper, which the plaintiff claimed to be 
 libellous, and, on the trial, the defendant selected a cer- 
 tain portion of the words of snch article, which he claimed 
 were proved to be true, and if otherwise, were not libel- 
 lous, and so he prayed the court to instruct the jury ; the 
 court, after denning a libel, and pointing out what would 
 constitute one, instructed the jury that they might con- 
 sider the whole libellous matter in connection with the 
 circumstances proved or admitted, and say what was the 
 meaning of the writing — what it imputed to the plaintiff 
 as to motives, objects, principles, acts, and character ; and 
 if they were such as to make the writing libellous accord- 
 ing to the definition previously given, and it was false 
 and malicious, they w r ould find the matter libellous, and 
 sufficient to sustain the action ; it was held that this direc- 
 tion was unexceptionable. 1 A banker, remitting the pro- 
 ceeds of a note sent to him for collection, appended to his 
 letter the words, " Confidential. Had to hold over for a 
 few days for the accommodation of L. & H.," who were 
 the makers. Held that these words have not necessarily 
 an injurious meaning, and that their interpretation was a 
 matter for the jury. 2 Where the libel was copied by the 
 defendants from another paper, with the word " fudge " 
 added thereto, held that it was for the jury to say with 
 what motive the publication was made, and whether that 
 word was only to give a color at a future day. 3 
 
 § 283. Where, at the time of speaking defamatory 
 words, the defendant qualifies them by other words, the 
 jury are to determine from all that took place at the time, 
 whether a crime was or was not charged; but to justify 
 the application of this principle, the qualification or 
 
 1 Graves v. "Waller, 19 Conn. 90. 
 
 2 Lewis v. Chapman, 16 X. Y. 369; and see Simmons v. Morse, 6 Jones' Law 
 (N. Car.), 6. 
 
 3 Hunt v. Algar, 6 C. & P. 245.
 
 § 284.] PROVINCE OF COURT AND JURY. 479 
 
 explanation must not only accompany the words, but 
 must be sufficiently explicit to enable those who hear the 
 same, and who are presumed to acquire all their knowledge 
 of the transaction from what was said at the time, reasona- 
 bly to understand to what the words refer, and that the 
 meaning which the words standing alone would convey 
 was not the meaning intended. 1 
 
 § 284. It is for the judge to decide whether the language 
 is capable of the meaning ascribed to it by the innuendo, 
 and for the jury to decide whether such meaning is truly 
 ascribed. 2 . Thus where the defamatory matter was con- 
 cerning K., which it was alleged meant King George the 
 Third, held that the jury was to decide if such was its 
 meaning. 3 The judge may give his opinion that the pub- 
 lication complained of conveys a certain meaning, and that 
 therefore it is libelous, but still it is for the jury to say 
 whether or not the publication does convey the meaning 
 which the judge ascribes to it. 4 Where the words were 
 that the plaintiff " will lie, cheat, steal and swear," it was 
 held that the court might, in answer to a broad request of 
 the defendant's counsel to charge that the evidence did 
 not support the declaration, say to the jury that these 
 words might import that the plaintiff stole. 5 The plain- 
 tiff, D., who had worked for F. in making pill boxes by a 
 machine owned and kept secret by R, left R, and set up 
 a machine for making similar boxes on his own account. 
 R, when speaking of D.'s said machine, said, "D. stole my 
 
 1 Van Akin v. Caler, 48 Barb. 60. See § 134. 
 
 2 Blagg v. Sturt, 10 Q. B. 899; 16 Law Jour. 39, Q. B. ; 11 Jur. 101 ; Cooper v. 
 Greeley, 1 Denio, 361 ; VanJerlip v. Roe, 23 Penn. St. R. 82; Barger v. Barger, 18 
 Penn. St. R. 489; Hemrning3 v. Gasson, 1 Ell. B. <fc E. 346; Justice v. Kirlin, 17 
 Iud. 588 ; Wakelin v. Norris, 2 Fost. & F. 26 ; Pittock v. O'Neill, 63 Penns. 268; Gost- 
 ling v. Brooks, 2 Fost. & F. 1G. 
 
 3 Rex. v. Woodfall, 5 Burr. 2661. 
 
 4 Empson v. Fairford, W. W. & D. 10 ; 1 Jurist, 20. 
 6 Dottarer v. Bushey, 16 Penn. St. R. 204.
 
 480 PROCEEDING-S IN AN ACTION. [Ch. XI. 
 
 patterns to get up Ms castings by." Held, that it was for 
 the jury, and not for the court, to decide whether F. 
 intended, by these words, to charge D. with the crime of 
 larceny. 1 The alleged libel stated that plaintiff had, under 
 certain specified circumstances, been surety for another, 
 and then asked the question why he had become such 
 surety, and answered by saying : There could be but one 
 answer — he was hired for the occasion. It was left to the 
 jury to say if this was a fair comment, and if so to find 
 for defendant. The jury found for defendant; and on 
 motion for a new trial, the court, although of opinion that 
 the charge of being hired was not a just inference from 
 the facts stated, held that the question had been correctly 
 submitted to the jury, and refused to disturb the verdict. 2 
 Where the charge was " I have a suspicion that you have 
 robbed my house," innuendo that plaintiff had stolen cer- 
 tain goods of the defendant, held that it was properly left 
 to the jury to say whether the defendant meant to impute 
 an absolute charge of felony, or only a suspicion of felony. 3 
 In an action of slander, the words laid did not, in express 
 terms, charge the crime, which, by innuendo, it was stated 
 the defendant meant to impute to the plaintiff, and there 
 was no inducement showing of what the words were 
 spoken; the circuit judge charged, that the declaration 
 would suffice if the jury believed that the words would 
 well carry the meaning that had been ascribed to them. 
 Held, that such charge was proper, and a verdict for the 
 plaintiff was sustained. 4 
 
 § 285. Whether the facts charged in the publication 
 are true, is a question for the jury. 5 Where the charge 
 
 1 Dunnell v. Fiske, 11 Mete. 551. 
 
 2 Cooper v. Lawson, 8 Adol. & El. *746. 
 
 3 Tozer v. Mashford; 6 Ex. 539; 20 Law Jour. Rep. N. S. 224, Ex.; see §163, ante. 
 
 4 Marshall v. Gunter, 6 Rich. 419. 
 
 "Thomas v. Crosswell, 7 Johns. 264; Van Vechten v. Hopkins, 5 Johns. 211.
 
 § 286.] PROVINCE OF COURT AND JURY. 481 
 
 was that plaintiff had traitorously betrayed the secrets of 
 his government, it was held to be a question for the jury 
 to say if he had traitorously betrayed the secrets of his 
 government. 1 And where the charge was that the plain- 
 tiff was a great defaulter, and the proof was that he was 
 a defaulter, held that it was for the jury to say whether 
 he was a great defaulter. 2 And leaving it to the jury 
 whether or not the defendant had made a time statement 
 of a judicial proceeding, was held to be proper. 3 
 
 § 286. Where the language published is unambiguous 
 (§ 126) it is the exclusive province of the court to deter- 
 mine its construction, and to determine whether or not 
 upon its face it is actionable per sef or concerning the 
 plaintiff in his professional character. 5 But the court will 
 not withhold the case from the jury unless it can plainly 
 see upon the face of the record that the matter charged 
 cannot in any way be libellous. 6 On not guilty pleaded, 
 whether the defamatory matter was published concerning 
 the plaintiff, or whether by the person mentioned the 
 plaintiff was intended, is a question of fact for the jury. 7 
 Where the declaration alleged the publication of a certain 
 " libel concerning the plaintiff," but contained no innuendo, 
 colloquium, or inducement to connect the publication with 
 
 1 Genet v. Mitchell, 7 Johns. 90. 
 
 2 "Warman v. Hine, 1 Jurist, 820. 
 
 3 Huff v. Bennett, 4 Sandf. 120. 
 
 4 Reeves v. Templar, 2 Jurist, 137; Matthews v. Beach, 5 Sandf. 256; Green v. 
 Telfair, 20 Barb. 11; Fry v. Bennett, 5 Sandf. 54; Haight v. Cornell, 15 Conn. 74; 
 Mix v. Woodward, 12 Conn. 262; Thompson v. Grimes, 5 Ind. 385; MeKinley v. 
 Robb, 20 Johns. 351 ; Archbold v. Sweet, 5 C & P. 219; 1 Mo. & Rob. 162; see 
 ante, § 281. 
 
 6 Tomlinson v. Brittlebank, 1 Har. & "W. 573. 
 
 8 Fray v. Fray, 17 C. B. N. S. 603, and by the court in Teacy v. M'Kenna, 4 Ir. C 
 L. 374, in overruling a demurrer to the declaration, " It is enough that the court aro 
 not prepared to decide that this document is not capable of a construction in any 
 reasonable sense that would make it a libel." 
 
 7 Van Vechten v. Hopkins, 5 Johns. 211 ; Green v. Telfair, 20 Barb. 11 ; Godson 
 v. Home, 1 Brod. & Bing. 7.
 
 482 PROCEEDINGS IN AN ACTION. [Ch. XI. 
 
 the plaintiff, and no evidence but the publication itself was 
 offered to connect him therewith, it was held to be a ques- 
 tion for the court, as a question of construction, to deter- 
 mine whether or not the publication referred to the plain- 
 tiff. 1 Where no extrinsic facts are offered in evidence, or 
 if the language is ambiguous, the question of libel or no 
 libel is, in a civil action, a question of law, 2 and as neither 
 the statute of 32 George the Third, enabling the jury to 
 give a general verdict in an action for libel, nor the similar 
 provision in the Revised Statutes of New York, apply to 
 civil actions, 3 the judge may charge the jury whether or 
 not, as a question of law, a publication is libellous on its 
 face, 4 and it is the duty of the jury to follow the instruc- 
 tions of the judge. 5 It is the practice for the judge first 
 to give a legal definition of libel, and then to leave it to 
 the jury to say whether the facts necessary to constitute 
 that offense, have been proved to their satisfaction.* The 
 judge may state under what circumstances language in 
 itself actionable may be spoken with impunity, and by 
 way of illustration put a case differing in some respects 
 from that before the court. 7 He is bound, upon a proper 
 
 1 Barrows v. Bell, 7 Gray (Mass.) 301. 
 
 2 Snyder v. Andrews, 6 Barb. 43. 
 
 3 Hunt v. Bennett, 19 N. Y. 173 ; Levi v. Milne, 4 Bing. 195; Snyder v. Andrews 
 6 Barb. 55 ; Dollaway v. Turrell, 26 Wend. 399 ; Reeves v. Templar, 2 Jur. 137. 
 
 4 Darby v. Ouseley, 1 Hurl. & N. 1 ; Wagaman v. Byers, 17 Md. 183; Hunt v. 
 Bennett, 19 N. Y. 173. 
 
 6 Hakewell v. Ingram, 2 Com. Law Rep. 1397; The State v. Jeandell, 32 Penn. 
 St. Rep. 475 ; and see Duffy v. The People, 26 N. Y. 588 ; Rex v. Burdett, 4 B. & 
 Aid. 131 ; 2 Bennett & Hurd Lead. Cr. Cas. 388 ; The State v. Crotean, 23 Verm. 
 14 ; IT. S. v. Morris, 1 Curtis, 53 ; Baylis v. Lawrence, 11 Adol. & El. 925 ; Rex v. 
 Dean of St. Asaph, 21 How. St. Tr. 847 ; 3 T. R. 42S note ; Sixth Rep. of Crim. Law 
 Comm'rs, A. D. 1841 ; Forsyth's Hist, of Trial by Jury, 268 ; 2 Camp. Ch. Justices, 
 478 ; 3 Id. 56 ; Rex v. Miller, 20 How. St. Tr. 892 ; Rex v. Woodfall, 5 Burr. 2661 ; 
 Shattuck v. Allen, 4 Gray, 541 ; Com'wealth v. Anthes. 5 Gray, 185 ; Com'wealth v. 
 Porter, 10 Mete. 263; Goodrich v. Davis, 11 Mete. 473 ; Com'wealth v. Abbott, 13 
 Mete. 120 ; Pearce v. The State, 13 N. Hamp. 536 ; The People v. Crosswell, 3 Johns. 
 Cas. 337. 
 
 8 Parmiter v. Coupland, 6 M. & W. 105 ; Cox v. Lee, Law Rep. IV, Ex. 288. 
 
 7 Taylor v. Robinson, 29 Maine, 323.
 
 § 286.] PROVINCE OF COURT AND JURY. 483 
 
 motion, to rule whether or not the declaration sets forth a 
 cause of action. 1 But in charging the jury, the judge is 
 not bound to give his opinion as to the nature of the pub- 
 lication as a matter of law. 2 And where the judge charged, 
 " I find a difficulty in saying whether it (the publication) 
 is a libel or not. Gentlemen, can you assist me ? " a mo- 
 tion for a new trial on the ground of misdirection was 
 denied. 3 But it is no misdirection that the judge, in addi- 
 tion to leaving the proper questions to the jury, stated his 
 own opinion as to the libellous nature of the publication. 4 
 Although the judge is to leave it to the jury whether, 
 under the circumstances, the publication is a libel, on the 
 general issue guilty or not guilty, yet if they find a 
 verdict for the defendant on that issue, in a case in which 
 no question is made as to the tact of publication, nor as 
 to its application to the plaintiff, the court will set aside 
 the verdict. 5 And where the action was for calling; the 
 plaintiff a thief, and the defense was that the defendant 
 so explained the words that the charge did not amount to 
 an imputation of felony, the court being of opinion that 
 the defense failed, charged the jury that the plaintiff was 
 entitled to a verdict, and that the only question for them 
 to determine was the amount of damages. The defendant 
 excepted to this charge, and on appeal the charge was held 
 to be proper. 6 
 
 1 Shattuck v. Allen, 4 Gray (Mass.) 540; Matthews o. Beach, 5 Sandf. 256. 
 
 a Parmiter v. Coupland, 6 M. & W. 105 ; Snyder v. Andrews, 6 Barb. 43. But in 
 Pennsylvania the rule is otherwise; there the Court is bound to instruct the jury 
 whether the publication is or is not libellous. (Pittock v. O'Neill, 03 Penns. 253.) 
 
 ' Baylis v. Lawrence, 3 Perr. & D. 526. 
 
 4 Darby v. Ouseley, 1 Hurl. & N. 1 ; Snyder v. Andrews, 6 Barb. 55 ; and see 
 Empson v. Fairford, W. W. & D. 10 ; 1 Jurist, 20. 
 
 5 Hakewell v. Ingram, 2 Com. Law Rep. 1397; and see Levi v. Milne, 4 Bing. 195 ; 
 Long v. Eakle, 4 Md. 454; Usher v. Severance, 20 Maine, 9; Goodrich v. Davis, 11 
 Mete. 474. 
 
 8 Van Aikin v. Caler, 48 Barb. 58.
 
 484 PEOCEEDENGS EST AN ACTION. [Ch. XI. 
 
 § 287. Where the circumstances of the publication 
 are controverted or uncertain, a case is presented in which 
 the court is to instruct the jury what condition of circum- 
 stances would render the publication privileged, and then 
 leave it to the jury to determine the character of the 
 publication, and give a verdict accordingly. For the jury 
 cannot decide whether a libel was published on a justifiable 
 occasion, without being told by the court what facts 
 would constitute such an occasion. 1 The uncertainty as 
 to the facts may consist either in the happening or not 
 happening of certain events, or in the question whether 
 or not the language exceeded the privileged limits. 
 
 § 288. The facts being uncontro verted, the court is 
 to determine whether or not the publication is privi- 
 leged. 2 If the court decides that the publication is 
 absolutely privileged, that of course determines the action ; 
 if the court decides the publication is conditionally privi- 
 leged, then it is a matter of law for the court to determine 
 whether there is any intrinsic or extrinsic evidence of 
 malice. If the court decides this question in the negative 
 it directs a nonsuit or a verdict for the defendant, without 
 reference to the jury. 3 But if the court decides there is 
 any evidence, either in the language of the publication 
 itself (intrinsic evidence), or in the circumstances of its 
 publication, from which a want &f good faith or a bad 
 intent (malice) on the part of the publisher may be 
 inferred, it then becomes the duty of the court to submit to 
 the jury, with appropriate instructions, and as a question of 
 fact for their determination, whether in making the publica- 
 tion the publisher acted in good faith or otherwise ; 4 for the 
 
 1 Duncan v. Brown, 15 B. Monr. 186. 
 
 3 Darby v. Ouseley, 1 Hurl. <fe N. 1 ; Wenman v. Ash, 13 C. B. 836. 
 
 3 Cooke v. Wildes, 5 El. & Bl. 328; Somerville v. Hawkins, 10 C. B. 583; Taylor 
 v. Hawkins, 16 Q. B. 308; Harris v. Thompson, 13 C. B. 333; Wenman v. Ash, id. 
 836; Fry v. Bennett, 5 Sandf. 54 ; Jarvis v. Hathaway, 3 Johns. 180. 
 
 4 Lancey v. Bryant, 30 Maine (IT Shep.), 466 ; Powers v. Smith, 5 B. <fc A. 850; 
 Abrams v. Smith, 8 Blackf. 95.
 
 288.] PROVINCE OF COUET AND JURY. 485 
 
 question of malice in such a case is always a question of 
 fact to be determined by the jury. 1 Thus where defen- 
 dant had charged plaintiff with stealing and had her 
 searched for a brooch, missing but afterwards found in 
 defendant's possession, held to be a question for the jury 
 whether the charge was made bona fide, and that the 
 circumstances and occasion of making it should be left 
 to their consideration ; 2 and to entitle a plaintiff " to have 
 the question of malice submitted to the jury, it is not 
 necessary that the evidence should be such as necessarily 
 leads to the conclusion that malice existed, or that it 
 should be inconsistent with the non-existence of malice, 
 but it is necessary that the evidence should raise a pro- 
 bability of malice, and be more consistent with its ex- 
 istence than with its non-existence ; 3 and where the only 
 evidence of malice was claimed to be on the face of the 
 publication, held that it ought to have been left to the jury 
 to determine whether there was any malice. 4 But where 
 the libel purported to be the report of a proceeding in the 
 insolvent court, and imputed to the insolvent's landlord 
 (the plaintiff) that he colluded with the insolvent in 
 putting in a fictitious distress ; held that the judge ought 
 not to have left it as a question to the jury whether the 
 defendant intended to injure the plaintiff, but that if he 
 
 1 Whiter. Nicholls, 3 How. U. S. Rep. 266; Blackburn v. Blackburn, 4 Bing. 
 395; Robinson v. May, 2 J. P. Smith, 3; Bodwell v. Osgood, 3 Pick. 379; Toogood 
 v. Spyring, 1 Cr. M. <fe R. 181 ; Bromage v. Prosser, 6D.AR. 296 ; Haight v. Cornell, 
 15 Conn. 74; Gardner v. Slade, 13 Ad. <fe Ell. N. S. 796; Pattison v. Jones, 8 B. & 
 C. 578. See § 399, post. 
 
 2 Padmore v. Lawrence, 3 Perr. & D. 209. Court to leave bonafidcsto juiy, and then 
 to determine whether or not the publication is privileged. (Stace v. Griffith, Law 
 Rep. II, Pri. C. C. 420; little v. Clements, 1 Ir. C L. 194.) Whether or not the 
 occasion gives the privilege is a question of law. Whether or not the defendant has 
 fairly conducted himself in the execution of the privilege, is a question of fact for 
 the jury. (Dickson v. Earl Wilton, 1 Fost. & F. 419; and see George v. Goddard, 2 
 Fost. <fc F. 689.) 
 
 3 Somerville v. Hawkins. 10 C. B. 583 ; and see Taylor v. Hawkins, 16 Q. B. 308; 
 Harris v. Thompson, 13 C B. 333; Wenman v. Ash, 13 C. B. 836. 
 
 4 Gilpin v. Fowler, 9 Ex. 615; 18 Jur. 292.
 
 486 PROCEEDINGS IN AN ACTION. [Cll. XI, 
 
 thought the tendency of the publication injurious to the 
 plaintiff, he ought to have told them it was actionable, 
 and the plaintiff entitled to a verdict. 1 
 
 § 289. The amount of damages is to be determined 
 by the jury, but the court should instruct them as to the 
 rules by which they should be governed in fixing the 
 amount. 2 A general instruction to find such damages as 
 under all the circumstances they thought right, was held 
 to be improper. 3 It was held no ground for exception 
 that the judge advised the jury to give only nominal 
 damages. 4 A charge that compensatory damages are to 
 be given where the publication is without malice, and 
 that compensatory damages are such as will repay the 
 costs and trouble of the suit and of disproving the 
 defendant's allegations, was held right, 5 although it has 
 been held erroneous to charge the jury to take into con- 
 
 1 Haire v. Wilson, 9 B. & Cr. 643. 
 
 s True v. Plumley, 36 Maine, 466. Held that in directing the jury, as to damages, 
 it was not necessary for the judge to caution the jury, as to the amount of injury 
 sustained, by telling them to take into consideration the fact that one publication 
 only had been proved, and that a mere sale to the plaintiff's agent, of a copy of the 
 paper containing the libel. (Brunswick v. Harnier, 14 Q. B. 189.) If there was only 
 one witness to the speaking of words charging theft, and he testifies that his opinion 
 of the person slandered was not thereby affected, and that he still believed him to be 
 honest, yet, if the words were spoken maliciously, it is erroneous to limit the jury to 
 nominal damages. (Markham v. Russell, 12 Allen (Mass.), 573.) 
 
 3 Duncan v. Brown, 15 B. Monr. 186. 
 
 4 Matthews v. Beach, 5 Sandf. 256. Where the judge recommended the jury to 
 give nominal damages, but the jury gave £5 damages, the court refused to set the 
 verdict aside. (Chilvers v. Greaves, 5 M. & G. 578.) The right of the court to 
 direct a verdict for nominal damages doubted. (Strong v. Kean, 13 Irish Law Rep. 
 93.) Where the publication complained against was the publication, in the defendant's 
 newspaper, of a printed report of a committee of investigation distributed to the 
 shareholders in a company, the judge charged the jury that although the publica. 
 tion by the defendant was unauthorized, yet, as the publication to the shareholders 
 was authorized, they might give nominal damages. (Davis v. Cutbush, 1 Fost. <fe 
 F. 487.) In an action against a newspaper for publishing a libellous item of news, 
 the proprietors not having acted with express malice, and not having shown 
 negligence in their choice of reporters, held, that exemplary damages should not 
 have been allowed. (Detroit Daily Post Co. v. McArthur, 16 Mich. 447.) 
 
 6 Armstrong v. Pierson, 8 Clarke (Iowa), 29.
 
 § 289.] DAMAGES. 487 
 
 sideration the expense to which the plaintiff has been put 
 by being compelled to come into court to vindicate his 
 character. 1 It has been usual, in the English courts, to 
 tell the jury that they are not to consider the effect of 
 verdict upon the costs. 2 In New York it seems always 
 to have been the rule to inform the jury of the effect of the 
 the verdict upon the costs. 3 And at least some of the 
 judges in the courts of England are disposed to follow the 
 rule prevailing in the New York courts, where, on a motion 
 for a new trial, on the ground that the jury had given 
 a verdict for a small amount of damages, under the 
 erroneous impression that it was an amount sufficient to 
 carry costs, the rule was refused ; but by Pollock, Ch. B. 
 " There is no reason why the jury should not be informed, 
 if they ask it, (what amount of verdict will carry costs), 
 as it is a part of the law, but if they do not ask it, and 
 they have given their verdict, it cannot be disturbed 
 merely because they did not know it." 4 In a case tried 
 
 ] Hicks v. Foster, 13 Barb. 663. In Wakelin v. Morris, 2 Fost. & F. 27; the 
 defendant's counsel proposed to put a question to plaintiff's attorney, as to what 
 would be the probable cost to the defendant if the verdict was for nominal damages 
 only, and the question was admitted. 
 
 a The effect of the verdict upon the costs is to be laid entirely out of consideration, 
 and with which the jury have nothing to do. (Mears v. Griffin, 2 Sc. N. S. 15.) 
 And so recently as 1868, sittings, after Mich. Term, in an action of libel, (Bradlaugh 
 v. Brooks), the jury after retiring to consider their verdict, returned into court and 
 inquired of the judge (Blackburn J.), what amount of damages would carry costs, 
 he declined to inform them, saying that, according to law, the costs follow the verdict 
 and a verdict ought not be given which depended upon the law as to costs. And in 
 Wilson v. Reed, 2 Fost. & F. 149, the court refused ; to inform the jury what amount of 
 damages would carry costs. In California the same rule seems to prevail. See Shay 
 v. Toulumne Water Co., 6 Cal. 286. 
 
 3 Elliott v. Brown, 2 Wend. 500; Nolton v. Moses, 3 Barb. 31; Waffle v. 
 Dillenback, 38 N. Y. 53. 
 
 4 Kilmore v. Abdoolah, 27 Law Jour. 307 Ex. But on the same occasion Bram- 
 well, B. said, " The jury have no right to give a verdict with reference to any thing 
 else than the injury sustained by the plaintiff." Where, on the execution of a writ 
 of inquiry in an action for slander, the jury were incorrectly informed by the under- 
 sheriff as to the amount of damages which would carry costs, and they found a 
 a verdict for less than forty shillings, it was held no ground for a new writ of 
 inquiry, or for increasing the amount of damages. (Grater v. Collard, 6 Dowl. 503.)
 
 4S8 PBOCEEDINGS IN" AX ACTION. [Ch. XI. 
 
 before Erie, C. J., lie charged tlie jury. " If you believe 
 that the plaintiff really was required to bring this action 
 to vindicate his character, then you may think it proper to 
 give substantial damages which will carry costs. But if 
 you think that it was not so, and that the words did no 
 real injury, you can find nominal damages which will not 
 carry costs," and upon the jury asking what sum would car- 
 ry costs, the judge answered, " I am not aware that there is 
 any thing to preclude my telling you," and he told them. 1 
 In an action of slander for words imputing unchastity 
 to the plaintiff, the jury were instructed that the rule with 
 respect to damages was, to give such as were commensurate 
 with the injury sustained by the acts charged and proved 
 against the defendants ; that if the plaintiff was an in- 
 nocent and virtuous female, and her character had been 
 destroyed by the slanders of the defendant and others, 
 they might give liberal damages ; but if the plaintiff had 
 so destroyed her character, by her own lewd and dissolute 
 conduct, as to have sustained no injury from the words 
 spoken by the defendant, they might give only nominal 
 damages. This was held correct. 2 Where the defendant 
 suffers judgment to go by default, and the damages are 
 assessed by a sheriff's jury, although the plaintiff gives 
 no evidence of damage, the jury are not confined to nomi- 
 nal damages. 3 Where the language is actionable, per 86, 
 the mere fact that special damage is alleged will not prevent 
 the plaintiff, on failing to establish his special damages, 
 from recovering general damages. 4 
 
 § 290. In general, prospective damages are not to be 
 allowed, and damages arising after suit brought are not to 
 
 1 Wakelin v. Norris, 2 Fost. & F. 26 ; and see in a note to that case. 
 3 Flint v. Clarke, 13 Conn. 361. See, Mitigation. 
 
 3 Cottrell v. Jones, 11 C. B. 713; 3 B. <fe C. 427. 
 
 4 Smith o. Thomas, 2 Bing. N. C. 380; Browne Smith, 13 C. B. 569; Evans 
 v. Harris, 1 Hurl. & N. 254.
 
 § 290.] DAMAGES. 489 
 
 be taken into account, 1 although it has been held that the 
 jury are to consider the probable future as well as the 
 actual past ; 2 and in an action of libel upon copartners, 
 held the jury might consider the prospective injury to the 
 copartnership ; 3 and in a case of libel on the plaintiff in 
 connection with a steam vessel, he was allowed to show 
 diminished earnings of the vessel subsequent to the bring- 
 ing of the action. 4 Where, in consequence of the defama- 
 tion the plaintiff lost an office dependent on the will of 
 his superior, it was held the jury were to consider both 
 the nature and tenure of the office, and not give the value 
 of an annuity certain. 5 Where the damage proved was 
 the loss of a situation of fifty pounds a year, and the jury 
 gave a verdict for sixty jpounds, the court refused to dis- 
 turb it. 6 Mental suffering and sickness induced by the 
 publication are not such natural consequences of defama- 
 tion as to amount to special damage, 7 and in a joint 
 action by partners, it was held that no damages could be 
 given for any injury to the private feelings of the plaint- 
 iffs, but only for such injury as they had sustained in their 
 joint trade. 8 The jury must give some damages, 9 and 
 where actual ill-will is shown, they may give exemplary 
 
 • 1 Goslin v. Corry, 7 Mann. & G. 343 ; Keenliolts v. Becker, 3 Denio, 346 ; Phil. R. 
 R. Co. v. Quigley, 21 How. U. S. Rep. 202; Mayne on Damages, 217. 
 
 2 True v. Plumley, 36 Maine, 466 ; Harrison v. Pearce, 1 Fost. & F. 567. 
 
 3 Gregory v. Williams, 1 Carr. & K. 658. 
 
 4 Ingram v. Lawson, 6 Bing. X. C. 212. 
 6 Lever v. Torrey, 1 Murray, 350. 
 
 6 Jackson v. Hopperton, 16 C. B. N. S. 829. 
 
 7 Terwilliger v. Wands, 17 X. Y. 54; Wilson «. Goit, 17 X. Y. 442; overruling 
 Brandt v. Towsley, 13 Wend. 253 ; Fuller v. Fenner, 16 Barb. 333, and Swift «/. 
 Dickerman, 31 Conn. 285. 
 
 ' Haythorn v. Lawson, 3 Car. & P. 196. In an action of libel against two pi 
 one of them suffered judgment by default, the other pleaded " not guilty" questioned 
 if the damages could be jointly assessed. Note to Watts v. Fraser, 7 A. & E. 233. 
 
 9 Jewett v. Whitney, 43 Maine, 242 ; although it maybe shown that defendant 
 was benefited by the defamation. It will not be permitted the defendanl to atti mpl 
 to show that the plaintiff was benefited by the alleged libel, such an attempt was 
 made in Fry v. Bennett, 5 Sandf. 76; and sue Baylis v. Lawrence, 11 Ad. & El 
 See post, Mitigation. 
 32
 
 490 PROCEEDINGS IN AN ACTION. [Cll. XI. 
 
 or vindictive damages. 1 The damages cannot exceed the 
 amount claimed, and a direction to that effect is proper ; 2 
 and where the plaintiff had a verdict for more damages 
 than he claimed in his declaration, the court refused him 
 leave to amend the declaration so as to keep the verdict. 3 
 
 § 291. Where there are several counts, and a verdict 
 is entered generally on all the counts, and entire damages 
 are given, if one count is bad, the judgment will be ar- 
 rested, and a venire de novo awarded. 4 But if the judge 
 who tried the cause certifies that the evidence applied 
 only to the good counts, or it is otherwise apparent that 
 the defective count has not influenced the amount of the 
 verdict, the verdict will be amended by confining it to 
 the good counts. Where there is any doubt as to any 
 one count, it is prudent to have the damages assessed 
 severally, or to abandon the doubtful count, and take a 
 verdict on the other counts only. 5 By a defective count 
 
 1 Taylor v. Church, 8 N. T. 452; Hunt v. Bennett, 4 E. D. Smith, 647 ; 19 N. Y. 
 173; Fry v. Bennett, 4 Duer, 247; Kinney v. Hosea, 3 Hairing. 397; Gilbreath v. 
 Allen, 10 Ired. 67; Cramer v. Noonan, 4 Wis. 231; Hosley v. Brooks, 20 111. 115; 
 Knight v. Foster, 39 N. Hamp. 576. The right to give vindictive damages has been 
 questioned. See Austen v. Wilson, 4 Cush. 273 ; Taylor v. Carpenter, 2 Wood. <fc M. 
 1 ; 2 Greenl. Ev. tit. Damages ; Sedgwick on Damages, Appendix, 1st edit, and 4th 
 edit. p. 532. It was held in an action for assault that vindictive damages might be 
 given, although the defendant had previously been indicted for the same assault, and 
 fined $250. (Cook v. Ellis, 6 Hill, 407.) 
 
 2 Pool v. Devers, 30 Ala. 672. 
 
 3 Curtis v. Lawrence, 17 Johns. 111. The declaration may, it seems, be amended 
 on the terms of submitting to a new trial (Bowman v. Early, 3 Duer, 691), if the de- 
 fendant insists on a new trial. (Corning v. Corning, 6 X. Y. 98.) 
 
 4 Cox v. Lee, Law Rep. IV, Ex. 287, 38 Law Jour. 219, Ex. 
 
 * See 2 Stark. Sland. 107 ; Heard on Libel, §§ 303, 304; Fry v. Bennett, 28 N. Y. 
 326 ; Holt v. Scholefield, 6 T. R. 694 ; Lloyd v. Morris, Willes R. 443 ; Bennett v. 
 Wells, 12 Mod. 420 ; Grant v. Astle, 2 Doug. 730 ; Empson v. Griffin, 11 Adol. <fe El. 
 187 ; Leach v. Thomas, 2 M. & W. 427 ; Gould v. Oliver, 2 Scott, N. R. 630 ; 2 M. & 
 G. 208; Ayrey v. Fearnsides, 4 M. & W. 168; Lewin v. Edwards, 9 M. & W. 720; 
 Day v. Robinson, 1 Ad. <fc El. 558 ; 2 N. <fe M. 884; Angle v. Alexander, 7 Bing. 119 ; 
 Eddowes v. Hopkins, 1 Doug. 377; Reg. v. Verrier. 12 Adol. <fe El. 331, overruling 
 Williams v. Breedon, 1 Bos. & Pul. 329; Burnett v. Wells, 12 Mod. 420; see also 
 Union Turnpike Co. v. Jenkins, 1 Caines, 392 ; Hopkins v. Beadle, id. 347 ; Lyle v. 
 Clason, id. 583; Livingston v. Rogers, id. 587; Stafford v. Green, 1 Johns. 565;
 
 § 292.] VERDICT. 401 
 
 is meant a count which shows no cause of action ; a count 
 which contains actionable words, together with words not 
 actionable, would not be defective so as to affect a verdict 
 on such count. In such a case, it is intended that the 
 verdict applied only to the actionable words. 1 
 
 § 292. Where there is a misjoinder of several counts, 
 and general damages are assessed, judgment will be ar- 
 rested. In cases of misjoinder of counts, the verdict may 
 be taken for the plaintiff on the counts properly joined, 
 and for the defendant on the other count or counts, or the 
 plaintiff may enter a nolle prosequi as to the count or 
 counts improperly joined. 2 Where there were two counts 
 upon the same words, but published at different times, a 
 general verdict for the plaintiff was upheld. 3 A general 
 verdict on five counts held not responsive to either count. 4 
 A verdict that " the defendant spoke and published the 
 
 Cooper v. Bissell, 15 Johns. 318; Sayre v. Jewett, 12 Wend. 135; Addington v. Allen, 
 11 Wend. 374; Case v. Buckley, 15 Wend. 327; Trisarri v. Clements, 3 Bing. 432; 
 Neal v. Lewis, 2 Bay, 204; Hogg v. Wilson, 1 Nott & McC. 216; Kennedy v. Lowry, 
 1 Binney, 397 ; Shafer v. Kintzer, id. 537; Paul v. Harden, 9 S. & R. 23 ; Smith v. 
 Cleveland, 6 Mete. 332 ; Baker v. Sanderson, 3 Pick. 348 ; Cornwall v. Gould, 4 Pick. 
 444; Patten v. Greeley, 17 Mass. 182; Barnard v. Whiting, 7 Mass. 358; Barnes v. 
 Hurd, 11 Mass. 57; Sullivan v. Holker, 15 Mass. 374 ; Clark v. Lamb, 6 Pick. 512; 
 Kingsley v. Bill, 9 Mass. 198 ; Dryden v. Dryden, 9 Pick. 546; Hayter v. Moat, '2 M. 
 <fc W. 66 ; Gregory v. Duke of Brunswick, 7 Sc. K R. 972; Harker v. Orr, 10 Watts, 
 245 ; Ruth v. Kutz, 1 Watts, 489 ; Gosling v. Morgan, 32 Penns. 273 ; Stitzell v. Rey- 
 nolds, 59 Penns. 488; Pemberton v. Colls, 16 Law Jour. Rep. 403, Q. B. ; 11 Jurist, 
 1011; Cook v. Cox, 3 M. & S. 110 ; Clement v. Fisher, 7 B. & Cr. 459 ;1M.4 R. 281. 
 A verdict supported by one count held good. Marshall v. Gunter, 6 Rich. 419 ; 
 Graves v. Waller, 19 Conn. 90; Bloom v. Bloom, 5 S. & R. 391 ; Hoag v. Hatch, 8 , 
 Monthly Law Rep. N. S. 686. 
 
 1 Mayne on Damages, 237; Bridges v. Horner, Carthew, 230; Nicholls v. Reeve, 1 
 Freeman, 83; Cheetham v. Tillotson, 5 Johns. 430; Griffith v. Lewis, 8 Q. B. 814, 7 
 Adol. <fc El. N. S. 67; Alfred v. Farlow, 8 Q. B. 853 ; Lloyd v. Morris, Wffles, 443 ;. 
 Hughes v. Rees, 4 M. & W. 204; Campbell v. Lewis, 3 Barn. & Aid. 392; Edwards 
 v. Reynolds, Hill & Denio, Sup. 53 ; Sherry v. Freeking, 4 Duer, 452. 
 
 2 Corner v. Shew, 3 M. & W. 350; Kitchenman v. Skeel, 3 Ex. 19; .Kn'ghtley v. 
 Birch, 2 M. & S. 533. 
 
 3 Bradley v. Kennedy, 2 Greene, 231. 
 
 4 Cock v. Weatherby, 5 S. & M. 333.
 
 492 PROCEEDINGS IN AN ACTION. [Ch. XI. 
 
 words in the complaint specified," was upheld. 1 And so 
 of a verdict that found " the defendant guilty of wilful 
 and malicious slander." 2 In an action for libel there 
 were eight special pleas of justification, and issue thereon; 
 the jury found for the plaintiff on three issues, and for the 
 defendant on the residue of the pleas; the verdict was 
 held void because it did not assess the plaintiff's damages 
 on the issues found for him. 3 A plea of justification in an 
 action for a libel contained three material allegations, as 
 to one of which the jury expressed themselves of opinion 
 that the proof failed. The judge told them that, to war- 
 rant a finding in favor of the defendant, they must be 
 satisfied that all three of the allegations were substantially 
 made out. The jury, after two hours' deliberation, re- 
 turned a verdict for the defendant upon that plea. The 
 court refused to set it aside. 4 
 
 § 293. As the amount of damages in an action for 
 slander or libel is always a subject for the exercise of the 
 sound discretion of the jury, who may give more or less 
 according to their conclusions from the whole case respect- 
 ing the motives of the publisher, 5 a verdict in such an 
 action will not be set aside for excessive damages unless 
 there is some suspicion of unfair dealing, 6 or " unless the 
 case be such as to furnish evidence of prejudice, partiality 
 or corruption on the part of the jury." 7 The case must be 
 
 1 Carlock v. Spencer, 2 Eng. 12. 
 
 2 Benaway v. Congre, 3 Chand. 214; and see Harding v. Brooks, 5 Pick. 244; 
 Scott v. Cook, 1 Duvall, 314. 
 
 3 Clement v. Lewis, 3 B. <fc B. 297 ; 3 B. & A. 702. 
 
 4 Napier v. Daniell, 3 Sc. 417; 2 Hodges, 187; 3 Bing. N. C 77. "Where a plaint- 
 iff is entitled as against the defendant to be relieved from a verdict obtained against 
 him, the court will not abstain from interfering on the ground of the lien of the 
 plaintiff's attorney for bis costs. (Symons v. Blake, 2 C M. & R. 416.) 
 
 6 Davis v. Davis, 2 N. & M. 81 ; Trabue v. Mayo, 3 Dana, 138. 
 
 6 Mayson v. Sheppard, 12 Rich. Law, (S. Car.) 254. 
 
 7 Lawyer v. Smith, 1 Denio, 207 ; Hartin v. Hopkins, 9 Johns. 30 ; Jarvis v. 
 Hathaway, 3 Johns. 180; Rundell v. Butler, 10 Wend. 119 ; Bailey v. Dean, 5 Barb.
 
 § 293.] NEW TRIAL. 493 
 
 very gross, and the damages enormous, to justify ordering 
 a new trial on a question* of damages. 1 A new trial was 
 granted on payment of costs, and under peculiar circum- 
 stances, where the verdict was ,£150, 2 and so where the 
 damages were $5,000. 3 There is nothing to forbid the 
 granting a new trial, in a proper case, for insufficient 
 damages, but the granting a new trial for insufficient 
 damages is of rare occurrence. Where the plaintiff was a 
 minister of the gospel, and the damages only one farthing, 
 the court refused a new trial. 4 The court may order a 
 
 297; Spencer v. McMasters, 16 111. 405. Where the receivers in an administration 
 suit in conducting a gazette belonging to the testator published a libel, and the chief 
 clerk, acting under the direction of the vice-chancellor, certified the amount of 
 damages payable for the injury, an application to the vice-chancellor to increase the 
 amount of damages on account of their inadequacy was dismissed, but as the libel 
 ■was published through the carelessness of the receivers, they were saddled with the 
 costs of the application. (Stubbs v. Marsh, 15 Law Times, N. S. 312; see Martin v. 
 Van Schaick, 4 Paige, 4*79.) 
 
 1 Tillotson v. Cheetham, 2 Johns. 63 ; Coleman v. Southwick, 9 Johns. 45 ; South- 
 wick v. Stevens, 10 Johns. 443 ; Root v. King, 7 Cow. 613 ; Moody v. Baker, 5 Cow. 
 351 ; Cole v. Perry, 8 Cow. 214; Ostrom v. Calkins, 5 Wend. 263; Douglas v. Tousey, 
 
 2 Wend. 352 ; Cook v. Hill, 3 Sand. 341 ; Riley v. Nugent, 1 A. K. Marsh. 431 ; Ryck- 
 man v. Parkins, 9 Wend. 470. The court refused to grant a new trial for excessive 
 damages where the amount was severally $1,000 (Bell v. Howard, 4 Litt. 117) ; $300, 
 charge horse stealing (Faulkner v. Wilcox, 2 Litt. 369); $2,736, charge perjury - 
 (Sanders v. Johnson, 6 Blackf. 51) ; $500, charge horse stealing (Teagle v. Deboy, 8 
 Blackf. 134); £750, charge against a minister of the gospel (Highmore v. Harrington, 
 
 3 C B. N. S. 142); £350 (Wakley v. Cooke, 4 Ex. 511); $334 (Ross v. Ross, 5 B. 
 Monroe, 20); $212 (St. Martin v. Desnoyer, 1 Min. 156); $4,000 (Litton v. Young, 2 
 Mete. (Ky.), 558); $15,000 (Trumbull v. Gibbons, N. Y. Judicial Repository, 1) 
 $10,000 (Fry v. Bennett, 4 Duer, 247); £1,000 (Gfroever v. Hoffman, 16 Up. Can. Q, 
 B. R. 441); $707 (Shute v. Barrett, 7 Pick. 82); $591 (Oakes v. Barrett, 7 Pick. 82) 
 $3,500 (McDougall v. Sharp, 1 City Hall Recorder, 154); $1,400 (Bodwell v. Osgood 
 
 3 Pick. 379; and see Baker v. Briggs, 8 Pick. 122; Sargent v. , 5 Cow. 106 
 
 Mayne on Dam. 347; Chambers v. Caulfield, 6 East, 256; Hewlett v. Crutuhley, 5 
 Taunt. 277; Coffin v. Coffin, 4 Mass. 1 ; Neal v. Lewis, 2 Bay, 204; Edgar v. Newell, 
 24 Up. Can. Q. B. Rep. 215; Myers v. Curry, id. 470; Treanor v. Donahue, 9 Cush. 
 228 ; Wood v. Gunston, Style, 465 ; referred to Clapp v. Hudson River R. R. Co. 19 
 Barb. 465 ; Bruton v. Downes, 1 Fost. & F. 668. 
 
 a Swan v. Clelland, 13 Up. Can. Q. B. Rep. 335 ; and the plaintiff having died 
 since the verdict was rendered, defendant was put under terms not to assign death of 
 plaintiff as error, if on new trial the verdict was for the plaintiff. 
 
 8 Netle v. Harrison, 2 McCord, 230. New trial where damages $2,500 ^Freeman 
 v. Tinsley, 50 111. 497). 
 
 4 Kelly v. Sherlock, Law Rep. I, 686, Q. B. and see Mears v. Griffin, 2 Sc. N. S.
 
 494 PROCEEDINGS EST AN ACTION. [Ch. XI. 
 
 new trial unless the plaintiff consents to reduce the 
 damages. Thus where the damages were $600, the court 
 ordered a new trial, unless the plaintiff would consent to 
 reduce them to $2< 
 
 § 294. A new trial will not be granted because a 
 verdict for defendant should have been for plaintiff with 
 nominal damages. 2 A new trial will be granted to admit 
 newly discovered evidence to support a defense of not 
 guilty, but not to support a justification. 3 A new trial 
 was refused where since the verdict for the plaintiff he 
 had been convicted, partly on the evidence of the defend- 
 ant, of the offense charged. 4 A new trial was refused 
 where a witness for the plaintiff had since the trial been 
 convicted of perjury. 5 Where plaintiff obtained a verdict 
 for one shilling damages, in consequence, as he supposed, 
 
 15 ; Irwin v. Cook, 24 Texas, 244. " There appears to be no case in an action of slander 
 or libel in which a new trial has been granted on such a ground" — by counsel in Fors- 
 dike v. Stone, Law Rep. Ill, 607, C. P. In that case the charge was that the female 
 plaintiff had been guilty of adultery, and the damages were one shilling, a new trial 
 was refused, and it was said that no new trial would be granted for insufficient 
 damages unless there had been a mistake in point of law on the part of the presiding 
 judge, or a mistake in the calculation of figures, or misconduct by the jury. In 
 Ohio (Code § 298), it is provided : A new trial shall not be granted on account of 
 smallness of damages in an action for injury to the person or reputation. New trial 
 because damages too small refused (Rendall v. Hayward, 5 Bing. N. C 424 ; L'd 
 Gower v. Heath, Barnes' Notes, 445 ; Hayward v. Newton, 2 Str. 940). New trial 
 granted because damages too small, and because error in charge (Kenney v. Mc- 
 Laughlin, 71 Mass. 3). 
 
 1 Potter v. Thompson, 22 Barb. 87. Such a proceeding held improper. (Cassin 
 v. Delany, 6 Trans. App. 202; 6 Abb. Fr. R. N. S. 1 ; Moffat v. Sackett, 11 N. Y. 
 522.) The court refused a new trial, but reduced the amount of damages. (Gostling 
 v. Brooks, 2 Fost. & F. 76.) In the case of Attorney-general of Jersey v. Ennis, an 
 action of slander mentioned in a note to Warren's Law Studies, the plaintiff appealed 
 to the privy council from a verdict for the defendant given by the Royal Court at 
 Jersey, the privy council not only set aside the verdict, but ordered the verdict to be 
 entered for the plaintiff, with £50 damages. 
 
 2 Patton v. Hamilton, 12 Ind. 256; Rundell v. Butler, 10 Wend. 119. See, how- 
 ever, Levi v. Milne, 4 Bing. 195. 
 
 3 Beers v. Root, 9 Johns. 264. 
 
 4 Symons v. Blake, 2 C M. <fe R. 416 ; 4 Dowl. Pra. Cas. 263 ; 1 Gale, 182. 
 
 5 Eakins v. Evans, 3 Up. Can. Q. B. Rep. 383, 0. S.
 
 §§ 295-6.] costs. 495 
 
 of the admission of improper evidence, it was held that 
 having recovered a verdict, he could not insist on his ob- 
 jections to evidence, and a new trial was refused. 1 
 
 § 295. Actions for slander and libel are in the nature 
 of a penal action, and though the jury find for the defend- 
 ant against the weight of evidence, a new trial is never 
 [seldom] granted. 2 To warrant a new trial on the ground 
 that the verdict is against evidence, it must be a very 
 clear case. 3 A new trial was granted because the lano-ua^e 
 published did not warrant the innuendoes ; 4 and so where 
 the innuendo was disproved. 6 
 
 § 296. In New York, if the plaintiff recover less than 
 $50 damages, he can recover no more costs or disburse- 
 ments than damages. 6 The defendant may, at any time 
 before verdict, offer to allow judgment to be taken against 
 him for a certain sum with costs ; the non-acceptance by 
 plaintiff of such an offer will subject him to costs subse- 
 quent to its service, unless he recover a more favorable 
 judgment. 7 In England, if the damages in an action for 
 slanderous words are less than forty shillings, the plaintiff, 
 . by statute 21 James I, recovers no more costs than 
 damages ; the statute was held not to apply to actions 
 
 1 Rogers v. Munns, 25 Up. Can. Q. B. Rep. 153; and see Smith v. Kerr, 1 Barb. 
 155 ; Case v. Marks, 20 Conn. 248. Where plaintiff had a verdict for five shillings, a 
 new trial was granted, the court recommending a stet processus. (Shaver v. Linton, 
 22 Up. Can. Q. B. 17V.) 
 
 1 Ex-parte Bailey, 2 Cow. 479 ; Hartin v. Hopkins, 9 Johns. 36 ; and see Hurtert 
 v. Weines, 27 Iowa, 134. 
 
 3 Root v. King, 7 Cow. 013, affirmed 4 Wend. 113 ; Paddock v. Salisbury, 2 Cow. 
 811; Kelly v. Partington, 4 B. & Ad. 700; Fisher v. Clement, 10 B. & Cr. 472; 
 Blackburn v. Blackburn, 4 Bing. 395 ; 1 M. & P. 33 ; Broom v. Gosden, 1 C. B. 728; 
 Hunt v. Bennett, 4 E. I). Smith, 657. 
 
 4 Yrisarri v. Clement, 3 Bing. 432. 
 
 6 Johnston v. McDonald, 2 Up. Can. Q B. Rep. 200. There cannot be a new trial 
 upon one of several issues. (Morrison v. Harmer, 4 Sc. 530.) 
 
 6 Code of Pro. § 304. 
 
 7 Code of Pro. 8 385.
 
 490 PROCEEDINGS IN AN ACTION. 
 
 where the special damages are the gist of the action, nor 
 to slander of title nor to libel. 1 
 
 § 296a. Where a plaintiff in an action for slander or 
 libel has had an opportunity of trying the action upon its 
 merits, and has consented to a nonsuit, and afterwards 
 brings a second action for substantially the same cause, 
 leaving the costs of the former action unpaid, the court 
 may stay the proceedings in the second action until the 
 costs of the first action are paid, 2 and this, although the 
 second action is in a different court to that in which the 
 first action was brought. 3 
 
 1 As to costs in the courts of England, Skelton v. Seward, 1 Dowl. 411 ; Skinner v. 
 Shoppee, 6 Bing. N. C. 131 ; Simpson v. Hardie, 2 M. & W. 84; 5 Dowl. 304; Foster 
 v. Pointer, 8 M. & W. 395 ; 1 Dowl. 28 ; 9 C. & P. 718 ; Empson v. Fairfax, 3 Nev. & 
 P. 385 ; Dodd v. Crease, 2 Cr. & M. 223; 4 Tyrw. 74 ; 2 Dowl. 269; Lafone v. Smith, 
 4 Hurl. & Nor. 158; Saville v. Jardine, 2 H. Black. 531; Halford v. Smith, 4 East, 
 567 ; Richards v. Cohen, 1 DowL 533 ; Goodall v. Ensall, 3 Dowl. 743 ; Grenfel v. 
 PiersoD, 1 Dowl. 400 ; Turner v. Hortou, Willes, 438 ; Andrews v. Thompson, 8 Bing. 
 431 ; Forbes v. Gregory, 1 Cr. & M. 435 ; 1 Dowl. 679 ; Harrison v. Bush, 5 E. & B. 
 344; Biddulph v. Chamberlain, 17 Q. B. 351 ; Kelly v. Partington, 5 B. & Ad. 645; 
 2 Nev. & M. 460; Prynne v. Browne, 1 Dowl. N. S. 680; 2 Stark. Sland. 113 ; Stat. 
 58 Geo. Ill, ch. 30 ; and by statute 3 and 4 Vict. c. 24, § 2, on a certificate by the 
 judge that the injury was wilful and malicious, the plaintiff may recover costs, al- 
 though the verdict is for less than forty shillings ; as to this see Forsdike v. Stone, 
 Law Rep. Ill, 607, C P. ; and see 30 and 31 Vict. ch. 142 ; Ings v. London and So. 
 West. R. R.,Law Rep. IV, 17, C P. ; Gray v. West, Law Rep. IV, 175, Q. B. ; Sampson 
 v. Mackay, id. 643; Marshall v. Martin, Law Rep. V, 239, Q. B. As to costs in 
 Vermont, see Nichols v. Packard, 16 Verm. 147. In Indiana, see Skinner v. Bron- 
 nenburg, 18 Ind. 363. In Arkansas, Hill v. Patterson, Hemp. 173, 
 
 8 Hoare v. Dickson, 7 C B. 164. 
 
 3 Prowse v. Loxdale, 3 B. & S. 896.
 
 CHAPTER Xn. 
 
 PAETIES. 
 
 Question as to parties anticipated — Action; by alien — 
 Outlaw — Rebel — Executors or administrators — Married 
 woman — Husband and loife — Partners — General rule 
 as to joinder — Action against husband and wife — 
 Contribution. 
 
 § 297. The questions who may sue and who may be 
 sued, of course generally depend upon the prior questions 
 of rights and liabilities, and therefore, to some extent, the 
 question of parties has been anticipated. 1 Subject to any 
 exceptions which have been or may be mentioned, the 
 rules as to parties which prevail in actions for torts gen- 
 erally apply to the actions for slander and libel. 
 
 § 298. It was held that an alien friend, although 
 residing in a foreign country, might maintain an action 
 for a libel published in England. 2 Where the plaintiff 
 in an action for libel was at the commencement of the 
 action an outlaw, of which the defendant was ignorant 
 until after notice of trial, the court after the trial stayed 
 the proceedings, but removed the stay on the outlawry 
 being reversed. 3 In an unreported case in New York 
 (Cummings v. Bennett), it being shown that the plaintiff 
 in an action for libel was an unpardoned rebel, the court 
 
 1 Ante, §§ 115, 119, notes. "Where there were two actions for the same libel, one 
 against the editor and the other against the publisher of the newspaper in which 
 the publication was made, an application to consolidate was denied. (Cooper v. 
 "Weed, 2 How. Pra. R. 40; and sue post, note 4, p. 500.) 
 
 8 Pisani v. Lawson, 6 Bing. N. C. 90 ; 8 Dowl. 57 ; 8 Sc. 182. 
 
 8 Somers v. Holt, 3 Dowl. Pr. Cas. 500 ; see Reg. v. Lowe, 8 Ex. 697.
 
 498 parties. [Ch. XII. 
 
 at special term made an order dismissing the complaint, 
 but the general term reversed the order. In an action for 
 words imputing murder, the court allowed the defendant 
 until the next term to plead, upon the ground that the 
 plaintiff was to be tried for the alleged murder on an 
 indictment then pending. 1 
 
 § 299. By the common law, actions of tort die with 
 the person, and this rule applies to actions for slander 2 
 and libel, except in those States where a different rule is 
 prescribed by statute. In New York, actions of tort, 
 except slander and libel, survive. 3 But the death of a 
 plaintiff after a judgment in his favor, and pending an 
 appeal from the judgment, does not abate the appeal, and 
 the personal representatives of the deceased may be sub- 
 stituted as respondents. 4 By statute in Maine, actions 
 for slander and libel survive, and may be maintained in 
 the name of the executor or administrator. 5 A rio-ht 
 of action for slander or libel is not assignable, and does 
 not pass under a general assignment to a receiver by a 
 judgment creditor or to an assignee in bankruptcy. 6 
 
 1 Gibson v. Niven, Barnes' Notes, 224. 
 
 2 1 Wm. Saund. 316 a, 6th ed. ; Nettleton v. Dinehart, 5 Cush. 543 ; Walters v. 
 Nettleton, 5 Cush. 544; Walford on Parties, 1392, 1449. At common law, where 
 there is jud ^ment against the defendant, and he appeals, and after the appeal the defend- 
 ant dies, the judgment dies with him. (Faith v. Carpenter, 33 Geo. 79.) 
 
 3 2 Rev. Stat, of N. Y. 447, §§ 1, 2. By statutes in Ohio and Maryland, the right 
 of action for slander or libel does not survive. In Ireland v. Champneys, 4 Taunt. 
 884, an action for libel, after interlocutory judgment and writ of inquiry executed, 
 the plaintiff died, held that final judgment could not be entered, the suit having 
 abated by the plaintiff's death. See Kramer v. "Waymark, Law Rep. 1, Ex. 243. 
 
 4 This was done in Sanford v. Bennett, 24 X. Y. 20 ; and as to death of plaintiff, 
 see Miller v. Gunn, 7 How. Pr. R. 380. 
 
 6 Nutting v. Goodridge, 46 Maine, 82. In Iowa, by statute, an action of libel is 
 not abated by the death of the defendant. (Carson v. McFadden, 10 Iowa (2 With.), 
 91.) Death of a defendant after an appeal, held to abate the appeal. (Long v. Hitch- 
 cock, 3 Ham. 274.) 
 
 6 Hudson v. Plets, 11 Paige, 180 ; and see Dowling v. Brown, 4 Irish Law Rep. N. 
 S. 265 ; Benson v. Flowers, Sir W. Jones, 215; Howard v. Crowther, 8 M. ifc W. 601 ; 
 Drake v. Beekham, 11 M. <fe W. 315, overruling s. c. 8 M. <fc W. 846.
 
 §§ 300-1.] parties. 499 
 
 § 300. By statute in New York, a married woman may- 
 sue alone and without her husband, for slander or libel ; 1 
 and so, under certain conditions, in Pennsylvania, 2 and in 
 Scotland. 3 It has been held that the New York Statute 
 does not authorize a suit for slander by a wife against her 
 husband. 4 And it was held in Pennsylvania, that a mar- 
 ried woman could not maintain an action for slander pub- 
 lished at the instance of her husband. 5 
 
 § 301. Independently of any statutory provision for 
 language actionable per se, published concerning a mar- 
 ried woman, or concerning a woman who afterwards mar- 
 ries, the action should be brought in the name of the 
 husband and wife. 6 In such a case the damage is to both 
 plaintiffs, and the right of action in case of the death of 
 the husband survives to the wife; but if the wife dies 
 before verdict, the action abates. 7 For language concern- 
 ing a married woman, but actionable only because of 
 special damage to the husband, the husband must sue 
 alone. 8 These rules are not affected by the fact that the 
 
 1 Laws of N. Y. 1860, ch. 90; Id. 1862, ch. 172. 
 
 5 Rangier v. Hummell, 37 Perm. St. R. 130. 
 
 s Ewing v. Cullen, Boyd Kinnear's Dig. H. L. Cas. 188. 
 
 4 Freethy v. Freethy, 42 Barb. 641 ; as to the right of a wife to protection against 
 slander by her husband, see Deut. xxii. 13, 22. 
 
 6 Tibbs v. Brown, 2 Grant's Cas. (Penn.) 39. 
 
 6 1 Stark. Slan. 349 ; Ebersol v. Krug, 3 Binney, 555 ; Newton v. Rowe, 8 Sc. N. 
 R. 26 ; Dengate v. Gardiner, 4 M. & W. 5 ; Grove v. Hart, Sayre, 33 ; Baldwin v. 
 Flower, 3 Mod. 120; Long v. Long, 4 Barr, 29. 
 
 7 Stroop v. Swartz, 12 S. & R. 76; and see Smith v. Hixon, Str. 977, and 3 T. R. 
 627. Case for words by husband and wife against defendants, husband and wife; 
 pending the action the male defendant died, and his widow remarried. The court 
 inclined that the writ abated, but took time to advise. ^White v. Harwood, Style, 138 i 
 Viner's Abr. Earon and Feme, A. a.) 
 
 8 Williams v. Holdridge, 22 Barb. 396; Gazynski v. Colburn, 11 Cush. 10; Grove 
 v. Hart, Bull. N. P 7; Saville v. Sweeney, 1 Nov. & M. 254; 4 B. <fe Adol. 514; 
 Horton v. Byles, 1 Sid. 387 ; Long v. Long, 4 Barr, 29 ; 1 Stark. Slan. 350 ; Bash v. 
 Sommer, 20 Penn. St. R. 159; Coleman v. Harcourt, 1 Lev. 140; Klein v. Ileutz, 2 
 Liter, 633.
 
 500 PARTIES. [CL XII. 
 
 husband and wife live apart under a deed of separation. 1 
 Where an action was brought by a wife living apart from 
 her husband under articles of separation, in the names of 
 her husband and herself, for defamatory words spoken of 
 her, it was held that a release of the cause of action exe- 
 cuted by the husband was a bar to the suit, although in 
 the articles of separation the husband had covenanted 
 that suits might be brought in the joint names of him- 
 self and his wife, for any injury to the person or character 
 of the wife. 2 For a charge of a joint larceny by husband 
 and wife, semble the husband should sue alone, because 
 the wife is prima facie not liable criminally for a larceny 
 committed in the presence of her husband. 8 
 
 § 302. Where the language published concerns both 
 husband and wife, the husband may sue alone for the 
 injury to him, and the husband and wife may sue jointly 
 for the injury to the wife. 4 In an action by husband and 
 wife, a plea that the plaintiffs were not man and wife at 
 the time of the commencement of the action is a good 
 plea in bar. 3 But it is not a defense to an action by 
 husband and wife that the plaintiffs were not married at 
 the time of the publication complained of. 6 Where the 
 
 1 Beach v. Ranney, 2 Hill, 309. 
 
 2 Beach v. Beach, 2 Hill, 260. 
 
 3 Bash v. Sommer, 20 Penn. St. R. 159. And where the defendant charged plain- 
 tiff's wife with keeping a bawdy house, it was held the husband might sue alone, 
 as the words charged an indictable offense, for which, if true, the husband was liable to 
 be punished. (Coward v. Wellington, 7 C. & P. 531.) 
 
 4 Gazynski v. Colburn, 11 Cush. 10; Bash v. Sommer, 20 Penn. St. R. 159; 
 Eniington v. Gardiner, 1 Selw. N. P. 301; Smith v. Hobson, Style, 112: Ebersoll 
 v. Krug, 3 Binney, 555 ; Hart v. Crow, 7 Blackf. 351, ante, note 1 p. 153. The court 
 will not order such actions to be consolidated. Anon. Selwyn N. P. 301 ; Swithin 
 v. Vincent, 2 Wils. 227 ; Subley v. Mott, Bull. N. P. 5. Now by statute 15 and 16 Vict, 
 ch. 40, in an action by husband and wife for injury to the wife, in respect of which 
 she is necessarily joined as a co-plaintiff, the husband may add thereto claims in his 
 own right, and separate actions brought in respect of such claims may be consolidated. 
 In case of the death of either plaintiff, such suit, so far as relates to the causes of action, 
 if any, which do not survive, shall abate. 
 
 5 Chantler v. Lindsey, 16 M. <fe W. 82; 4 Dowl. & L. 339. 
 
 6 Spencer v. McMaster, 16 111. 405 ; and see Benaway v. Congre, 3 Chand. 214. But
 
 §§ 303-4.] paeties. 501 
 
 husband and wife are improperly united as plaintiffs, and 
 there is no demurrer, the error is cured by verdict, 1 or by 
 omitting to demur. 2 
 
 § 303. For language published concerning partners in 
 the way of their trade, all the partners may or should 
 join ; 3 but if the language concerns and injuriously affects 
 either partner individually, he may sue alone. 4 The 
 general rule is that where the injury is several, each person 
 injured must sue separately and alone ; as if one say, " A. 
 and B. murdered C," or " Either A. or B. murdered C," 
 A. and B. cannot maintain a joint action. 5 
 
 § 304. For a publication by a married woman of de- 
 famatory language, before or during coverture the action 
 must be against her and her husband. 6 A husband and 
 
 in an action by husband and wife, for words imputing adultery to the wife, it 
 was held necessary to aver that they were husband and wife at the time of the 
 publication. (Ryan v. Madden, 12 Verm. 51.) 
 
 1 Russell i'. Come, 1 Salk. 119; 2 L'd Raym. 1031; Todd v. Bedford, 11 Mod. 
 264; Lewis v. Babcock, 18 Johns. 443. 
 
 s Code of Pro. N. Y. § 145. This defect cannot be insisted upon under a 
 demurrer that the complaint does not state a cause of action. (Eldridge v. Bell, 12 
 How. Pra. R. 547.) No action can be maintained for the price of libellous pictures. 
 (Fores v. Johnes, 4 Esp. 97.) A printer cannot recover for printing a libel. (I'oplett 
 v. Stockdale, R. & M. 337; Bull v. Chapman, 8 Ex. 104.) If a printer undertake to 
 print a book, and as the work proceeds finds the matter is defamatory, he may 
 decline to continue the work, and can recover for the part of the work which is not 
 defamatory. (Clay v. Yates, 1 Hurl. & N. 73.) Nor could an action be maintained 
 for breach of a contract to furnish manuscript of defamatorv matter. (Gale v. 
 Leckie, 2 Stark. R. 107.) Or for pirating a libellous book. (Stockdale v, Onwhyn, 
 5 B. & C 173.) See Campbell's Lives of the Chancellors, X, 255, reviewing the deci- 
 sions of Lord Eldon, who refused to protect the copy -right of alleged lihellous works. 
 
 3 Cook v. Batchellor, 3 B. <fc P. 150; 2 East, 426; Le Fanu v. Malcolmson, 1 Ho. 
 of L'ds Cas. 637; 13 Law Times, 61; Foster v. Lawson, 3 Bing. 452; 11 Moore, 
 360; Browl. Rediv. 81; Ilaythorn v. Lawson, 3 Car. <fe P. 196; Pechell v. Watson, 
 8 M. & W. 691 ; 2 Wm. Saund. 117, 6th ed. see note to § 118, ante. 
 
 4 Taylor v. Church, 1 E. D. Smith, 279 ; Harrison v. Bevington, 8 Car. & P. 70S ; 
 Robinson v. Merchant, 7 Q. B. 918; Fidler v. Delavan, 20 Wend. 57; Longman v. 
 Pole, 1 M. A M. 223 ; Tait v. Culbertson, 57 Barb. 9. 
 
 6 Smith v. Cooker, Cro. Car. 513 ; 10 Mod. 198. As to one action against several 
 for one libel, see Harris v. Huntington, 2 Tyler, 147; Watts v. Fraser, 7 C. cfc P. 369 ; 
 Miller v. Butler, 6 Cush. 71; Glass v. Stewart, 10 S. & R. 222, ante, note 1 p. 497. 
 
 6 Head v. Briscoe, 5 Car. & P. 484; and see ante, note 1 p. 153 ; Swithin v. Vin-
 
 502 PARTIES. 
 
 wife may be jointly sued for a joint publication of written 
 defamatory matter. 5 
 
 § 305. In certain cases the plaintiff is entitled to elect 
 de melioribus damnis (§ 119), or as to which of several 
 parties he will sue, but neither in such cases nor in any 
 other case can there be any contribution between the 
 parties, it being a general rule of law that there is no 
 contribution between wrong-doers. 1 
 
 cent, 2 Wils. 22*7; Burcher v. Orchard, Style, 349; 2 Wm. Saund. 117 d. 6th ed. 
 Anderson v. Hill, 53 Barb. 238 ; Hawk v. Harman, 5 Binney, 43 ; Horton v. Payne, 
 27 How. Pr. R. 574. 
 
 2 Catterall v. Kenyon, 3 Q. B. 310; Keyworth v. Hill, 3 B. & Aid. 685. 
 
 4 See Merryweather v. Nixon, 8 T. R. 186 and notes thereto, 2 Smith's Lead. Cas. 
 and in addition Moseati v. Lawson, 7 C. <fc P. 32 ; Andrews v. Murray, 33 Barb. 
 354, citing Miller v. Fenton, 11 Paige, 18; Coventry v. Barton, 17 Johns. 142; 
 Peck v. Ellis, 2 Johns. Ch. 131; Pearson v. Skelton, 1 M. & W. 504: Hunt v. Lane, 
 9 Ind. 248; Minnes v. Johnson, 1 Duvall, (Ky.) 171; Silvers v. Nerdlinger, 30 Ind. 
 33. No contract will be implied to indemnify a party against the consequences of an 
 illegal act, e. g. the publication of a libel (Shackell v. Rosier, 3 Sc. 59 ; 2 Bing. N. 
 C. 634.) And semhle the proprietor of a newspaper convicted and fined for the 
 publication of a libel in his paper, which libel was inserted without his knowledge 
 or consent by the editor, has no right of action against the editor for the damages 
 sustained through such conviction. (Colburn v. Patmore, 1 C. M. & R. 83 ; 4 Tyr. 
 677.) One cannot take security to be indemnified against the consequences of an 
 illegal act. (Domat Civil Law, B'k iii. tit. 4, § 1, div. viii ; and same book and title, 
 § 5, div. 1; and see Howe d. Buffalo & Erie R. R. 38 Barb. 124; St. John v. 
 St. John's Church, 15 Barb. 346.) A promise to indemnify one for publishing a 
 libel, is void. (Arnold v. Clifford, 2 Summer, 238.) An indemnity against the 
 consequences of an illegal act already done is binding. (Griffiths v. Hardenburgh, 
 41 N. T. 469, citing Doty v . "Wilson, 14 Johns. 379; Kneeland v. Rogers, 2 Hall, 
 579.)
 
 CHAPTER XIII. 
 
 PLEADING. THE COMPLAINT. 
 
 General requisites of a complaint — Complaint for language 
 concerning a person only — Inducement — Colloquium — 
 Publication — Matter published — Innuendo — Special 
 damage — Several counts — Supplemental complaint. 
 
 § 306, The complaint corresponds to tlie declaration 
 in the common law system of pleading. Its general 
 requisites are that it must state (1) the name of the 
 court in which the action is pending ; (2) the names of 
 the parties; (3) the county in which it is desired the 
 issues shall be tried; (4) the facts which constitute the 
 cause of action ; (5) a demand of relief. It must be 
 subscribed by the plaintiff or his attorney, and may, at 
 the option of the plaintiff, be verified. Of these several 
 requisites we purpose to consider in detail only the fourth — 
 the statement of the facts which constitute a cause of 
 action. 
 
 § 307. The statement of a cause of action must neces- 
 sarily differ more or less according to the difference in the 
 state of facts of each particular case. But there are 
 certain allegations essential in every case to the sufficiency 
 of such a statement ; we will show what are these allega- 
 tions, and endeavor to explain the rules by which their 
 sufficiency may be tested. We premise by observing that 
 we address ourselves exclusively to the statement of a cause 
 of action for slander or libel concerning the person. Such a 
 statement may be conveniently considered under the follow- 
 ing heads : (1) The inducement ; (2) The colloquium ; 
 (3) The act of publication ; (4) The statement of the 
 defamatory matter published ; (5) The innuendoes ; (6) 
 The damages.
 
 504 PLEADING. [Ch. Xm. 
 
 § 308. We attempted in a previous chapter (Ch. vii) 
 to explain (1) that the actionable quality of language was 
 dependent upon its construction, and (2) how the con- 
 struction may be affected by a variety of extrinsic circum- 
 stances. It is the office of the inducement to narrate the 
 extrinsic circumstances which, coupled with the language 
 published, affects its construction and renders it action- 
 able ; where standing alone and not thus explained, the 
 language would appear either not to concern the plaintiff, 
 or if concerning him not to affect him injuriously. 1 This 
 being the office of the inducement, it follows that if the 
 language published does not naturally and per se refer to 
 the plaintiff nor convey the meaning the plaintiff contends 
 for ; or if it is ambiguous or equivocal, and requires expla- 
 nation by some extrinsic matter to show its relation to 
 the plaintiff, and make it actionable, the complaint must 
 allege by way of inducement the existence of such extrin- 
 sic matter; 2 but that where the language published is 
 
 1 " Inducement is the statement of the facts out of which the charge arises, or 
 which are necessary or useful to make the charge intelligible." (Tindal, Ch, J., Tav- 
 erner v. Little, 5 Bing. N. C. 678.) 
 
 2 Inducement is necessary where the language does not naturally and per se con- 
 vey the meaning which the plaintiff would attribute to it, and where a reference to 
 some extrinsic fact is necessary to explain it. (Dorsey v. Whipps, 8 Gill, 457; Fry 
 v. Bennett, 5 Sandf. 54 ; Hull v. Blandy, 1 Y. & J. 480 ; Gosling v. Morgan, 32 Penn. 
 St. E. 273; Galloway v. Courtney, 10 Rich. Law (S. Car.) 414; The State v. Neese, 2 
 TayL 270; Cannon v. Phillips, 2 Sneed (Tenn.) 185 ; Edgerly v. Swain. 32 N. Hamp. 
 478 ; Smith v. Gafford, 31 Ala. 35 ; Lumpkins v. Justice, 1 Smith (Ind.), 322.) Where 
 the language is claimed to be ironical, it must be so alleged in the inducement. 
 (Boydell v. Jones, 4 M. & W. 446; 7 Dowl. Pra. Cas. 210.) In slander the words 
 stated in the declaration were, " Thou set fire to those buildings, and thou wilt never 
 be easy till thou hast told it." There was no introductory averment that the houses 
 had been feloniously burned. A rule for arresting the judgment was made absolute. 
 (Rigby v. Heron, 1 Jur. 558.) A complaint on a charge that plaintiff had carried 
 away a deposition taken before a justice of the peace, must show that the deposition 
 was taken in a proceeding in which the justice had jurisdiction, otherwise the carry- 
 ing away the deposition would not be any crimiual offense. (Ayres v. Covell, 18 
 Barb. 260.) Where, in an action of slander brought by an unmarried female, the 
 plaintiff's petition alleged that the defendant had charged her with having given 
 birth to a child, without any averments showing that the hearers understood that 
 the language used conveyed a charge of bastardy, or imputed a want of chastity to 
 the plaintiff, to which petition the defendant demurred, it was held that the demurrer
 
 § 309.] THE COMPLAINT. 505 
 
 actionable per se, where there is no ambiguity, either in 
 respect to the person whom the language concerns or in 
 respect to the actionable quality of the language, that in 
 such cases no inducement is necessary. 1 Hence it will be 
 perceived that inducement is not, in every case, essential 
 to the sufficiency of a statement of a cause of action, 
 but in those cases only where, without the facts contained 
 in the inducement, the publication would not naturally 
 and per se refer to the plaintiff nor convey the meaning the 
 plaintiff contends for, nor be construed as actionable. 
 
 § 309. In England the Common Law procedure act 
 has abrogated the necessity of any matter of inducement 
 in order to show the defamatory meaning of the language 
 published, and enacts that the plaintiff may aver that the 
 matter complained of was used in a defamatory sense, 
 specifying such defamatoiy sense, without any prefatory 
 averment to show how such matter was used in that 
 sense, and such averment shall be put in issue by the 
 denial of the alleged libel or slander ; and where the mat- 
 ter set forth, with or without the alleged meaning, shows 
 a cause of action, the declaration shall be sufficient. 2 
 
 should be sustained. (Wilson v. Beighler, 4 Iowa, 42V.) A charge that plaintiff had 
 " trapped three foxes," was by the aid of inducement made actionable, (Foulger v. 
 Newcomb, Law Rep. II, Ex. 327.) 
 
 1 No inducement is necessary where (1) the language is prima facie actionable 
 per se. (Dorsey v. Whipps, 8 Gill, 457 ; McGough v. Rhodes, 7 Eng. 625.) (2) "Where 
 the language in its ordinary acceptation imports a charge of crime. (Robinson v 
 Keyser, 2 Foster (N. H.), 323; Bricker v. Potts, 12 Penn. St. R. 200.) And see 
 Smith v. Hamilton, 10 Rich. Law (S. Car.), 44; Goodrich v. Davis, 11 Mete. 473. 
 As if the words impute a charge that the plaintiff burnt his barn, with intent to 
 defraud the insurers, it is not necessary to aver that the barn was insured, nor to 
 prove that it was insured. (Case v. Buckley, 15 Wend. 327.) And generally it is 
 not necessary to aver facts implied by the alleged defamatory language. If one say 
 of J. S. " He hath killed his cook," it need not be averred that J. S. had any cook. 
 (Holt v. Taylor, Sty. 66 ; and see Billing v. Knight, 2 Bulst. 42.) " Thou hast forged 
 the will of R." — it need not be averred that R. was dead, it is implied. (Dorrel v. 
 Jay, Vent. 149.) "He hath robbed the Hockly Butcher," need not be averred there 
 is any Hockly Butcher, for if there is not, the fault is the greater. (Smith v. Wil- 
 liams, Comb. 247.) See post, % 315, and ante, note 2, p. 169. 
 
 a 15 and 16 Vict. ch. 76; Finlason's Com. Law 1'roc. Act, 137. See Hemmingsw. 
 33
 
 506 PLEADING. [Ch. Xm. 
 
 § 310. In New York, the Code of Procedure of that 
 State dispenses with the necessity of any inducement 
 to show that the plaintiff is the person referred to, by 
 providing that "In an action for libel or slander it 
 shall not be necessaiy to state in the complaint any ex- 
 trinsic facts for the purpose of showing the application to 
 the plaintiff of the defamatory matter out of which the 
 cause of action arose, but it shall be sufficient to state 
 generally that the same was published or spoken concern- 
 ing the plaintiff, and if such allegation be controverted the 
 plaintiff shall be bound to establish on trial, that it was so 
 published or spoken." 1 (§ 316.) This statute merely dis- 
 penses with the inducement to show the application of the 
 language to the plaintiff; it does not dispense with the 
 necessity of averments of extrinsic facts to show the mean- 
 ing of ambiguous language. And in New York, where 
 the language published is not defamatory on its face, and 
 becomes so only by reference to extrinsic facts, the exist- 
 ence of those facts must be alleged in the complaint. 2 
 
 § 311. The matter of inducement, when necessary, is 
 usually inserted prior to the statement of the matter pub- 
 lished ; but this, although the more orderly arrangement, 
 is not essential ; so that the necessary inducement is to be 
 found in the complaint, its location seems immaterial. 3 
 
 Gosson, 27 Law Jour. Q, B. 252; Cox v. Cooper, 9 Law Times, K S. 329; Brembridge 
 v. Latimer, 12 Weekly Rep. 818 ; Watkin v. Hall, Law Rep. IV, Q. B. 42. The effect 
 of the decisions appears to be that a declaration containing one count with an in- 
 nuendo, shall be taken as if there were two counts, one with the innuendo and one 
 without it. 
 
 1 Code of Pro. § 164. 
 
 ■ Pike v. Van Wormer, 5 How. Pra. Rep, 171 ; 6 Id. 99 ; Deas v. Short, 16 Id. 322 ; 
 Fry v. Bennett, 5 Sandf. 54 ; Blaisdell v. Raymond, 4 Abb. Pra. Rep. 446 ; Hallock v. 
 Miller, 2 Barb. 630; Carroll v. White, 33 Barb. 615; Bullocks Koon, 9 Cow. 30; 
 and in Massachusetts, the law of 1852, ch. 312, has not dispensed with the necessity 
 of averring the facts which render actionable, words not actionable per se. (Tebbetts 
 v. Goding, 9 Gray, 254.) 
 
 8 Brittain v. Allen, 2 Dev. 120; 3 Id. 16V; but see what is said Caldwell v. Ray- 
 mond, 2 Abb. Pra. Rep. 193.
 
 §§ 312-13.] THE COMPLAINT. 507 
 
 § 312. Where there are several counts in the com- 
 plaint, each count must be prefaced with appropriate 
 matter of inducement; but where the inducement to one 
 count is applicable to a subsequent count, it may be 
 applied to such subsequent count by reference thereto 
 and without repeating it. 1 In slander, the first count 
 charged a trial, that plaintiff gave evidence, and that the 
 words were spoken of and concerning the trial, &c. ; and 
 the third count charged that the words therein set forth, 
 were published of the plaintiff, and of and concerning the 
 action tried as aforesaid, and of and concerning the evi- 
 dence of the plaintiff given on the said trial as aforesaid. 
 Held, that the third count was sufficient. 2 
 
 § 312$. Where inducement is necessary, it should be 
 stated in a traversable form. 3 Thus, where it was alleged, 
 by way of inducement, that reports were in circulation 
 about the plaintiff, imputing something disgraceful, to 
 which the publication referred, it was held insufficient, 
 and that the reports themselves should have been set 
 forth. 4 And where the alleged libel was the publication 
 of a notice that the plaintiff had married E. E., and the 
 inducement relied upon as making the publication action- 
 able was that E. E. was a common prostitute, but the 
 complaint did not allege this fact otherwise than as fol- 
 lows : " Married, J. W. C." (plaintiff meaning) " to E. E." 
 (meaning a public prostitute known by that name), " that 
 E. E. is a public prostitute, and well known to be so," 
 the complaint was, on demurrer, held insufficient. 5 
 
 '§ 313. Where the inducement is essential to the suffi- 
 
 1 Loomis v. Levick, 3 Wend. 205 ; and see Tindall v. Moore, 2 Wilson, 114. 
 8 Crookshank v. Gray, 20 Johns. 344. See post, § 347. 
 
 3 Caldwell v. Raymond, 2 Abb. Pra. Rep. 193. And see Cass v Anderson, 33 Verm. 
 (4 Shaw), 182; Carter v. Andrews, 10 Tick. 1 ; post, § 350 a. 
 * Stone v. Cooper, 2 Denio, 293. 
 B Caldwell v. Raymond, 2 Abb. Pra. Rep. 193.
 
 508 PLEADING. [CL XIII. 
 
 ciency of the statement of the cause of action, and where, 
 without the facts stated as inducement, no cause of action 
 would be shown, there the existence or non-existence of 
 those facts is material, and of course may be controverted 
 by the defendant ; if not controverted they are admitted, 
 and need not be proved ; 1 if controverted, they must be 
 proved, as part of the plaintiff's case. But where the 
 inducement is not essential to the sufficiency of the state- 
 ment of the cause of action, and where, without the facts 
 stated as inducement, a cause of action can be shown, 
 then the inducement is mere surplusage, redundant mat- 
 ter; no material issue can be raised upon it; it should 
 not be controverted, and if controverted need not be 
 proved. 2 An example of superfluous inducement is the 
 preliminary panegyric upon the plaintiff's character, with 
 which it is so customaiy to preface all complaints for slander 
 or libel. As it is unnecessary to the statement of a cause 
 of action to aver the plaintiff's innocence, either by a 
 general averment of good character, or a general averment 
 of the falsity of the matter published, or by any particular 
 averment, no such averment can be made the subject of 
 an issue. 3 
 
 § 314. Where the charge was, " He (plaintiff) is a 
 pitiful fellow, and not able to pay his debts," it was held 
 not necessary to aver, by way of inducement, that the 
 plaintiff was no pitiful fellow, and was able to pay his 
 debts; 4 and where the charge was that plaintiff had 
 given money to the defendant as a bribe, it was held, on 
 motion in arrest of judgment, not necessary for the plaintiff 
 to allege that he did not give the money. Where fhe 
 
 1 Duke v. Jostling, 3 Dowl. 618; Chalmers v. Shackell, 6 C. & P. 475. 
 3 Cox v. Thomason, 2 Cr. & J. 361. 
 
 3 Strachey's Case, Sty. 118. 
 
 4 Hooker v. Tucker, Holt R. 39. 
 
 6 Bendish v. Lindsey, 11 Mod. 194.
 
 § 315.] THE COMPLAINT. 509 
 
 charge was of forging a note, the plaintiff averred, by 
 way of inducement, that the note was genuine, this was 
 held to be immaterial, equivalent only to the customary 
 allegation of innocence, and did not require to be proved ; 1 
 so, where the charge was being guilty of treason, and the 
 plaintiff alleged his innocence, it was held that he did not 
 thereby impose on himself the burden of proving the 
 allegation. 2 
 
 § 315. It will be convenient here to refer to the rule 
 of pleading and of evidence, that where the defamatory 
 matter states expressly or by necessary implication, the 
 existence of certain facts, the plaintiff may accept the 
 statement and rely upon it, without being obliged either 
 to allege it in his pleading or to establish its truth by 
 evidence; 3 the defendant is estopped from denying the 
 truth of his own charge. Thus, where the words of 
 a lawyer were, " He arresteth without taking out writs," 
 or " He is a knave in his practice," it was held that these 
 
 1 Harman v. Carrington, 8 Wend. 488. 
 
 8 Coleman v. Southwick, 9 Johns. 45. 
 
 8 Jones v. Stevens, 11 Price, 235; ante, note 1, p. 505, and post, Evidence. For the 
 words, " That is the man who killed my husband," no allegation of the death of the 
 husband is necessary. (Button v. Haywood, 8 Mod. 24.) " You hired J. S. to forge 
 a bond;" no allegation that any bond was forged is necessary. (Cro. Car. 33V.) In 
 an action by husband and his wife, B., for slander, the declaration reciting that they 
 were lawfully married, and that she was sister of C, and that the defendant falsely, tfcc, 
 spoke of and concerning the wife and C, that they were not only brother and sister, but 
 man and wife; held that the plaintiff was not bound to prove the introductory aver- 
 ment that the wife was the sister of C, and that the words importing a charge of 
 felony, viz., bigamy, were actionable. (Ileming v. Power, 10 Mees. & W. 564.) De- 
 fendant, on being reminded by plaintiff of a law suit which he (defendant) had 
 recently lost, said, " Yes, your false swearing at that trial." Being told that he had 
 better not again accuse plaintiff of swearing false, he said, " Any man who professed 
 to be a Christian, as you do, and went into the box and swore false, as you did at 
 that trial, had better join the church once more," <fcc. Defendant also said, "The 
 folks who belonged to (he church, and built tall steeples, thought they could swear 
 false, or do anything they had a mind to." Held that the Blander admitted that a 
 suit was pending, and it was to be intended that what plaintiff swore to was mate- 
 rial, and that the words were sufficient to warrant- a finding in favor of the plaintiff, 
 without proof that the suit was in a court of compete u1 jurisdiction, or that plaintiff 
 swore falsely with a corrupt intent. (Kern v. Towsley, 51 Barb. 386.)
 
 510 PLEADING. [Cll. XIII. 
 
 words implied that the plaintiff was an attorney, and dis- 
 pensed with any inducement of that fact. 1 And in slan- 
 der for charging the plaintiff with the crime of murder, it 
 is not necessary to allege, as inducement, the death of the 
 person said to he murdered ; 2 and generally it is unneces- 
 sary to show that the offense charged could have been 
 committed, 3 or that the plaintiff was physically capable of 
 committino* the crime alleged asrainst him. 4 
 
 § 316. As the plaintiff's right to redress depends en- 
 tirely upon the fact that the defamatory matter concerned 
 him (§ 131), in order to show a right of action, that fact 
 must appear on the face of the complaint. Where the 
 language published was unequivocal and directly referred 
 to the plaintiff, the colloquium, of which presently, was 
 alone sufficient to show this fact. But where the lan- 
 guage was ambiguous in respect to the person to whom it 
 applied, there, formerly, it was necessary ; and where the 
 common-law system of pleading prevails, it still is neces- 
 sary to state as inducement the circumstances which make 
 it apparent that the language does concern the plaintiff; 5 
 and it was not sufficient to aver generally that the lan- 
 guage was published concerning the plaintiff. 6 By statute 
 the rule is otherwise in New York. 7 
 
 1 Bell v. Thatcher, Freem. 277. And so, where the language was, "He is a paltry 
 lawyer, and plays with both hands." (2 Rolle Rep. 85.) 
 
 2 Tenney v. Clement, 10 N. Hamp. 52, and see Carter v. Andrews, 16 Pick. 1 ; 
 Stone v. Clark, 21 Pick. 51 ; Stallings v. Newman, 26 Ala. 300; Eckert v. Wilson, 10 
 S. & R. 44; contra, Chandler v. Holloway, 4 Porter, 17. See ante, note 9, p. 223. 
 
 3 Colbert v. Caldwell, 3 Grant (Penn), 181; but see Sawyer v. Hopkins, 9 Shep. 268. 
 
 4 Chambers v. White, 2 Jones' Law (N. Car.), 383. 
 
 6 Hale v. Blandy, 1 Y. & J. 480 ; and see Brown v. Lamberton, 2 Binney, 34 ; Van 
 Vechten v. Hopkins, 5 Johns. 211 ; Harper v. Delph, 3 Ind. 225 ; Parker v. Raymond> 
 3 Abb. Pra. R. N. S. 343. 
 
 6 The State v. Henderson, 1 Rich. 179. 
 
 7 Ante, § 310. And there is a like provision in the law of Missouri (Strieber i'- 
 Wensel, 19 Mis. (4 Bennett), 513); and "Wisconsin (Van Slyke v. Carpenter, 7 Wis. 
 173); and Iowa (Swearingen v. Stanley, 23 Iowa, 115). "A distinct averment in 
 regard to the person spoken of, and a clear reference of the calumnious words to that
 
 § 317.] THE COMPLAINT. 511 
 
 § 317. We have seen that the actionable quality of 
 language is sometimes affected by the circumstance that 
 it affects the plaintiff in some certain capacity (§§ 132, 
 179) ; when, therefore, the plaintiff claims that the lan- 
 guage is actionable, because it concerns him in some certain 
 capacity or occupation, and it does not upon its face imply 
 that he is in such capacity or occupation (§ 315), the com- 
 plaint should properly allege by way of inducement that 
 he filled such capacity, or was in, or carried on, or exercised 
 such occupation at the time of the publication complained 
 of. This may be shown by an averment that the plain- 
 tiff is of such a trade, or has carried on or exercised it 
 for divers years, without adding last part, 1 because a 
 person once in any certain occupation is presumed to 
 continue therein. (§ 189.) But where the language 
 affects the plaintiff in an office he holds during pleasure, 
 a different rule, it is said, prevails, and the plaintiff's 
 continuance in office must be alleged. 2 The complaint 
 need not allege that the plaintiff gains his livelihood by 
 his occupation (§ 182), nor that the plaintiff has qualified 
 himself for the office or employment in which he is 
 defamed. Thus, where the alleged libel concerned a 
 candidate to serve in Parliament, it was held that the 
 
 person, is all that is required." (Miller v. Parish, 8 Pick. 383.) See post, §§ 340, 
 341, and 1 Stark. Slan. 390. Of what is there stated the following is an abridgment: 
 Where the plaintiffs name is mentioned, though a further description be given, the 
 general averment is sufficient (Woodruff v. Vaughan, Cro. Eliz. 429) without alleging 
 that the further description applied to the plaintiff; as where the speaking was alleged 
 to be of the plaintiff, and the words were, " T." (meaning the plaintiff) " is thy brother." 
 And where the words were, " Captain Nelson is a thief," held not necessary to allege 
 that plaintiff was a captain or known by that name. Where the plaintiff can show 
 he was intended, he can maintain the action. {Ante, note p. 163.) Thus, for the 
 words, " The parson of Dale is a thief," he who was parson of Dale at the time 
 may sue. And where the defendant spoke of that murderous knave Stoughton, held 
 that one Thomas Stoughton might sue. (Sheppard, Action of Slander, 59.) 
 
 'Tuthill v. Milton, Yelv. 159; Cro. Jac. 222; and see 2 RolleR. 84; Dodd v. 
 Robinson, All. 63; Collis v. Malin, Cro. Car. 282; Beauinond v, Hastings, Cro. Jac. 
 240. 
 
 8 Tuthill v. Milton, Yelv. 159 ; Cro. Jac 222; and see Gallwey v. Marshall, 9 Ex. 
 300.
 
 512 PLEADING. ' [Cll. XIII. 
 
 declaration need not set out the writ to show the plaintiff 
 was such candidate. 1 But the occupation of the plaintiff 
 should be described in apt terms. Thus, in an action by 
 a barrister, it was held that he should allege he was homo 
 consiltarius et in jure peritus, and that it was not sufficient 
 to allege he was eruditus in lege. 2 " The declaration 
 ought not merely to state that such scandalous conduct 
 was imputed to the plaintiff in his profession, but also to 
 set forth in what manner it was connected by the speaker 
 with that profession." s 
 
 § 318. Where the language is actionable of the 
 plaintiff as an individual, then, although it may also 
 affect him in some occupation, it is not necessary to 
 allege as inducement that the plaintiff exercised such 
 occupation ; and even if alleged, it need not be proved, 
 because there is a cause of action without it. (§ 179.) 4 
 Thus, in an action for setting up near plaintiff's house an 
 inscription insinuating that it was a house of ill-fame, <fcc, 
 the declaration alleged that the plaintiff earned on the 
 business of a retailer of wines ; but the court held, that 
 as the inscription was not alleged to have been published 
 concerning the plaintiff as a retailer of wine, it might be 
 struck out of the declaration, and need not be proved. 5 
 and in like manner, if the plaintiff has two trades, and 
 both are alleged as inducement, and the language is 
 actionable as affecting the plaintiff in one of them, proof 
 of his exercising that one trade will suffice. 6 
 
 1 Harwood v. Astley, 1 New R. 47; and post, % 320. 
 
 2 1 Stark. Slan. 402. A complaint setting forth that the plaintiff was " engaged 
 in the wooden ware business," sufficiently describes his emplo3-ment as that of a buyer 
 and seller of wooden ware. (Carpenter v. Dennis, 3 Sandf. 305.) 
 
 3 Denman, C. J., Ayre v. Craven, 2 Adol. & El. 2 ; 4 Nev. & M. 220 ; and see 
 Alexander v. Angle, 1 Cromp. & J. 143. 
 
 4 Gage v. Robinson, 12 Ohio, 250. 
 
 5 Spall v. Massey, 2 Stark. R. 559. 
 
 6 Figgins v. Cogswell, cited Chalmers v. Shackell, 3 C. <fe P. 411 ; 3 M. A S. 369. 
 See post, note 2, p. 535. But where the plaintiff alleged that he was proprietor and
 
 § 319-20.] THE COMPLAINT. 513 
 
 § 319. Too great minuteness in matter of induce- 
 ment is to be avoided, because, in general, the proof must 
 be co-extensive with the allegation ; as where the plaint- 
 iff alleged that he was an attorney, that he conducted 
 a particular suit, and afterwards alleged that the defam- 
 atory matter was concerning his conduct in that suit, it 
 was held that he must prove the existence of that suit. 1 
 And in an action for a libel on a constable, respecting 
 his conduct in the apprehension of persons stealing a 
 dead body, and part of the conduct stated in the first 
 count was that of carrying the dead body to Surgeons' 
 Hall, and the second count spoke of " his conduct respect- 
 ing the said dead body," the court held that it was neces- 
 sary in both counts to prove the introductory allegation 
 that the body was carried to Surgeons' Hall ; for the 
 words, " the said body," in the second count, incorporated 
 all the descriptive circumstances introduced in the first ; 
 the plaintiff need not have burthen ed himself with the 
 proof of such a fact ; but the libel being stated to be of and 
 concerning his conduct as to the dead body, it became 
 most important to prove that part of his conduct. 2 But it 
 is said, 3 "The omission to prove facts unnecessarily alleged 
 will not be fatal unless by the form and mode of plead- 
 ing they have been made descriptive of that which is 
 material." 
 
 § 320. In need not be alleged that the plaintiff was 
 legally qualified or licensed to exercise the calling in 
 which the language affects him ; if he was not so quali- 
 fied or licensed, it is matter of defense to come from the 
 defendant. In an action for slander, the plaintiff alleged 
 
 editor of a newspaper, it was held insufficient for him to prove himself proprietor 
 onl}\ (Heriot v. Stewart, 4 Esp. 437.) 
 
 1 Parry v. Collis, 5 Esp. 339. 
 
 2 Teesdale v. Clement, 1 Chit. 603. 
 8 1 Stark. Sland. 407.
 
 514 PLEADING. [Cll. XIII. 
 
 tLat he was in medicinis doctor, and it was moved in 
 arrest of judgment that he did not show he was licensed, 
 but adjudged for the plaintiff. 1 And so in an action by 
 a physician for words of him in his profession, it is suffi- 
 cient for him to aver that he had used and exercised the 
 profession of a physician ; but where a plaintiff in such 
 a case went further, and averred that he was a physician, 
 and had duly taken the degree of a doctor of physic, it 
 was held that he must prove his degree as stated. 2 
 
 § 321. In a complaint founded upon a charge of fcdse 
 swearing as a witness, such a charge not being actionable 
 per se (§ 171), to show a cause of action there should be 
 an inducement of the pendency of a suit or judicial pro- 
 ceeding, in which the plaintiff was examined as a witness, 
 and a colloquium that the charge was concerning the 
 plaintiff as such witness. 3 If there were several suits be- 
 tween the same parties, tried on the same day, it is not 
 necessary, it seems, to distinguish in which suit the false 
 swearing occurred. 4 And where the suit or proceeding 
 was before a court or officer of limited jurisdiction, it 
 must be further shown that such court or officer had juris- 
 diction of the suit or proceeding; an averment that the 
 justice then and there had jurisdiction of the action was 
 held sufficient without setting forth the facts which gave 
 
 1 Dr. Brownlow's Case, Mar. 116, pi. 3 ; and ante, §§ 182, 183, 189. 
 
 2 Moises v. Thornton, 8 T. R. 303. 
 
 3 Stone v. Clark, 21 Pick. 51 ; Gale v. Hays, 3 Strobh. 452 ; Sharp v. Wilhite, 2 
 Humph. 434; Williams v. Spears, 11 Ala. 138 ; and semble it should be alleged that 
 defendant intended to impute a charge of perjury. (Wood v. Scott, 13 Verm. 42; 
 Sanderson v. Hubbard, 14 Id. 462.) It is not necessary to state what the witness 
 testified. (Whitaker v. Carter, 4 Ired. 461.) A complaint for slander set out that in 
 a suit before a justice, P. W. was a witness to material matter; that defendant, in a 
 conversation concerning said trial and concerning the plaintiff, being guilty of subor- 
 nation of perjury, published, <fec, the words, "P. F. swore to a lie, and you (plaintiff) 
 hired him." It was objected to the complaint that it did not allege that the conversa- 
 tion was of and concerning the testimony of P. F. on the trial. Held, after verdict, 
 the complaint was good. (Shinier v. Brounenburg, 18 Ind. 363.) 
 
 4 Harris v. Purdy, 1 Stew. 231.
 
 § 322.] THE COMPLAINT. 515 
 
 the jurisdiction. 1 The plaintiff need not show that the 
 justice was duly commissioned. 2 A declaration which al- 
 leged that the words were spoken " whilst the plaintiff 
 was giving testimony as a witness under the solemnities 
 of an oath, before an acting justice of the peace," 3 and a 
 declaration which alleged that the plaintiff was, at the 
 instance of the defendant, examined on oath administered 
 by a justice, according to law, as a witness for the defend- 
 ant, were held sufficiently to allege jurisdiction. 4 "Squire 
 H." was held a sufficient description of P. H., esquire, a 
 justice of the peace. 5 
 
 § 322. It should be alleged that the testimony was 
 material to the point in issue, but it is not necessary to 
 show to what particular degree, the point in respect to 
 which a party is charged with false swearing, was mate- 
 rial to the issue. If it goes to prove a material circum- 
 stance or link in the chain of evidence it is sufficient. 6 
 And it has been said that an averment of the materiality 
 
 1 Sanford v. Gaddis, 13 HI. 329. 
 
 s Pugh v. Neal, 4 Jones' Law (N. Car.), 367. It was held not necessary to allege 
 either that the justice had jurisdiction or that the testimony was material. (Dalryrn- 
 ple v. Lofton, 2 M'Mullan, 112.) But as to the necessity of alleging jurisdiction, see 
 Shellenbarger v. Norris, 2 Carter (Ind ), 285; Jones v. Marrs, 11 Humph. 214; Chap- 
 man v. Smith, 13 Johns. 78; Bonner v. McPhail, 31 Barb. 106; Cannon v. Phillips, 
 2 Sneed (Tenn.) 185. 
 
 "Where the charge is that the plaintiff committed perjury, that implies a false 
 swearing before a competent tribunal, and jurisdiction need not be alleged. (Green 
 v. Long, 2 Cai. 91.) Where the charge is perjury committed in a foreign state, it 
 must be averred that by the laws of such state perjury is an offense to which is an- 
 nexed an infamous punishment. (Sparrow v. Maynard, 8 Jones' Law (N. Car.), 195 ; 
 and see ante, note 6, p. 213.) 
 
 3 Lewis v. Black, 27 Miss. (5 Cush.) 425. 
 
 4 Shellenbarger v. Norris, 2 Carter (Ind.), 285. 
 
 * Call v. Foresman, 5 Watts, 331 ; and see ante, note 4, p. 193 ; " N. T., esquire, afore- 
 said," held sufficient description of a justice of the peace. (Canterbury v. Hill, 4 
 Stew. & Port. 224.) 
 
 6 nutchins v. Blood, 25 Wend. 413 ; and see Witcher v. Richmond, 8 Humph. 
 473; Shroyer v. Miller, 3 W. Vir. 158; Hogan v. Wilmarth, 16 Grat. 80; note to 
 § 171, ante.
 
 516 PLEADING. [Ch. XHI. 
 
 of the evidence may be altogether omitted; 1 at least the 
 absence of such an allegation will be cured by verdict. 2 
 It is not necessary to allege that the justice had authority 
 to administer the oath. 3 But it should be alleged that 
 the plaintiff was legally sworn. 4 The defendant cannot 
 show as a defense that the plaintiff was not a competent 
 witness. 5 The absence of allegations of jurisdiction in the 
 justice, or materiality of the testimony, may be cured by 
 a plea of justification, 6 or by a verdict. 7 
 
 § 323. Properly the colloquium or allegation of a dis- 
 course is the allegation that the language published was 
 concerning the plaintiff, or concerning the plaintiff and 
 his affairs, or concerning the plaintiff and the facts alleged 
 as inducement. But the term colloquium is frequently 
 employed as synonymous with inducement, or to signify 
 the inducement and the colloquium properly so called. 
 As heretofore stated (§§ 310, 316) it must be shown on 
 the face of the complaint that the language was published 
 concerning the plaintiff, and the proper mode of doing 
 this is by a direct averment that the publication was " of 
 and concerning the plaintiff." This averment may, how- 
 
 1 Wetsel v. Lennen, 13 Ind. 535; Cannon v. Phillips, 2 Sneed, 185; Wolbreiht v. 
 Baumgarten, 26 111. 291; Harbison v. Shook, 41 111. 142. 
 
 2 Niven v. Munn, 13 Johns. 48. In slander for the charge of perjury, the materi- 
 ality of the alleged false testimony is for the court to determine, and if left to the 
 jury it is error. (Steinman v. McWilliams, 6 Barr, 170; Power v. Price, 12 Wend. 
 500, affirmed 16 Wend. 450.) Or ground for a new trial. (Dalrymple v. Lofton, 2 
 M'Mullan, 112.) 
 
 s Sanford v. Gaddis, 13 111. 329; but see Jones v. Marrs, 11 Humph. 214. 
 4 Sanderson v. Hubbard, 14 Verm. 462. 
 
 6 Harris v. Purdy, 1 Stew. 231. A declaration in slander, charging the words 
 spoken as follows: "He (meaning plaintiff) has sworn falsely," &c, "against me 
 (meaning defendant), and he (meaning defendant' could prove it," was held bad after 
 verdict; by "he" in the latter clause, as pleaded, the defendant could not have meant 
 himself. (Bowdish v. Peckham, 1 Chip. 146.) But see post, note to § 343. 
 
 Witcher v. Richmond, 8 Humph. 473; Attebury v. Powell, 29 Miss. (8 Jones) 
 429 ; Sanderson v. Hubbard, 14 Verm. 462. 
 
 7 Palmer v. Hunter, 8 Mis. 512; Morgan v. Livingston, 2 Pdch. 573; Xrven v. 
 Munn, 13 Johns. 48; but see Wood v. Scott, 13 Verm. 42.
 
 § 323.] THE COMPLAINT. 517 
 
 ever, be supplied by any equivalent allegation, and may 
 be altogether dispensed with where it appears otherwise 
 with sufficient certainty on the face of the complaint that 
 the publication was in fact concerning the plaintiff. 1 
 And although, in actions for slander and libel, induce- 
 ment may be necessary to explain the matter alleged to 
 be libellous, it is enough to state in the declaration that 
 the publication was "of and concerning" the plaintiff, 
 without also stating that it was " of and concerning " such 
 matter, 2 or of and concerning the plaintiff in the occupa- 
 
 1 It is sufficient to aver substantially that the words were spoken of plaintiff; an 
 express averment of the fact is not necessary. (Brown v. Lamberton, 2 Binn. 34 ; 
 Brasben v. Sbepberd, Ky. Dec. 294 ; Nestle v. Van Slyke, 2 Hill, 282 ; but see Titus 
 v. Follett, 2 Hill, 318 ; Tyler v. Tillottson, 2 Hill, 508; Cave v. Shelor, 2 Munf. 193 ; 
 Harper v. Delp, 3 Ind. 225; Eex v. Marsden, 4 M. & S. 164; Baldwin v. Hildretb, 14 
 Gray (Mass.) 221.) On demurrer, wbere the words did not name the plaintiff, the 
 omission of a colloquium of and concerning the plaintiff was held fatal, and not aided 
 by the innuendoes. (Milligan v. Thorn, 6 Wend. 412; and see Church v. Bridgman, 
 6 Miss. 190.) Nor by the verdict, the language being in the third person. (Sayre 
 v. Jewett, 12 Wend. 135.) If there be a colloquium sufficient to point the application 
 of the words to the plaintiff, if spoken maliciously, he must have judgment. (Lind- 
 sey v. Smith, 7 Johns. 359.) Where actionable words are spoken to a plaintiff, it is 
 sufficient to allege a discourse with him, without an averment that the words were 
 concerning the plaintiff; but where the words are in the third person, as, " He is a 
 thief," there, although a discourse of the plaintiff is alleged, it must also be alleged 
 that the words were concerning the plaintiff. And it is not sufficient in such a case 
 to connect the words with the plaintiff by an innuendo. (1 Stark. Sland. 384.) But 
 where a discourse of the plaintiff is laid, and there is an innuendo of the plaintiff, it 
 seems that the want of a direct averment that the words were concerning the plain- 
 tiff must be pointed out by special demurrer [motion to make certain] ; but if no dis- 
 course concerning the plaintiff is alleged, then the want of an allegation that the 
 words concerned him would be a defect in substance. {Id. ; Skutt v. Hawkins, 1 
 Rolle R. 244.) If a plaintiff has omitted, in his declaration, to state that the libel was 
 spoken of himself, he may supply the same by parol evidence. (Newbraugh v. Curry, 
 Wright, 511.) Where A. says of B. & C, "you have committed such an offense," 
 though B. & C may have separate actions, the words must be alleged to have been 
 spoken of both. (Cro. Car. 512.) Where the declaration states a colloquium with 
 G., of and concerning the children of G., and of and concerning C, one of the chil- 
 dren of G., and the plaintiff in the suit, in particular, and that the defendant said, 
 " Your children are thieves, and I can prove it," the colloquium conclusively points 
 the words, and designates the plaintiff as one of the children intended. And a collo- 
 quium is sufficient to give application to words still more indefinite. (Gidney v. 
 Blake, 11 Johns. 54; but see what is said 1 Stark. Sland. 385; see also ante, g 129.) 
 
 ■ O'Brien v. Clement, 4 D. &. L. 563 ; Gutsole v . Mathers, 1 M. & W. 495 ; Shinier 
 v. Brounenburg, 18 Ind. 363.
 
 518 PLEADING. [Cll. XILT. 
 
 tion alleged in the inducement. 1 Where the declaration 
 alleged that the defendant published a libel of and con- 
 cerning the plaintiff, containing, &c, the false libellous 
 matters following (without saying of and concerning the 
 plaintiff); held, in error, that for want of an averment 
 that the particular matter was of and concerning the 
 plaintiff, and there being no innuendo that such matter 
 related to him, the declaration was bad, and a venire de 
 novo was awarded. 2 A declaration which alleged that 
 the plaintiffs were traders under the firm of T. & Co., and 
 averring that, in a discourse of and concerning them, their 
 circumstances and business, the defendant said, "T. & Co. 
 are down," &c, without repeating that this was said of 
 and concerning the plaintiffs, was held bad on special 
 demurrer, although good in substance.' 3 
 
 § 324. A publication by the defendant must be 
 alleged. The publication need not be set forth in any 
 technical form of words. 4 But it must be alleged posi- 
 tively, and not by way of recital ; 6 and, therefore, a 
 declaration which commenced, " For that whereas " the 
 defendant intending, &c, spoke, <fcc, was held bad on 
 special demurrer. 6 In slander for English words, it should 
 be alleged that the defendant spoke the words in the 
 presence and hearing of divers persons, 7 or of certain 
 
 1 Wakley v. Healey, 18 Law Jour. Rep. 241, C. P. ; contra, see Barnes v. Trundy, 
 31 Maine (1 Rid.), 321. 
 
 a Clement v. Fisher, 7 B. & Cr. 459; 1 M. & Ry. 281. 
 
 3 Titus v. Follett, 2 Hill, 318; and see Taylor v. The State, 4 Geo. 14. 
 
 4 Baldwin v. Elphinstone, 2 W. Black. 1037, ante, n. 2, p. 143. It was held suffi- 
 cient to allege that the defendant was the proprietor of the newspaper in which the 
 alleged libel was published. (Hunt v. Bennett, 19 KY, 173.) 
 
 6 Donage v. Rankin, 4 Munf. 261. 
 
 6 Brown v. Thurlow, 4 D. <fe L. 301 ; 16 M. & W. 36 ; Coffin v. Coffin, 2 Mass. 358 ; 
 Houghton v. Davenport, 23 Pick. 235. 
 
 7 To allege a speaking merely, is not sufficient. (Stj-le, 70; 1 Stark. Sland. 360.) 
 In Indiana, by statute it is sufficient merely to allege the speaking. (Girard v. Risk, 
 11 Ind. 156.) And so in Missouri (Atwinger v. Fellner, 46 Misso. 276 ; Steiber v. 
 Wensel, 19 Mid. 513), and held that an averment that the defendant " did, in certain
 
 § 325.] THE COMPLAINT. 519 
 
 persons, naming them, 1 or of certain persons named and 
 divers others, not naming the others. 2 Published ex vi 
 termini, imports a speaking in the presence and hearing 
 of a third party ; 3 and, therefore, to allege that the 
 defendant published the words is sufficient, without aver- 
 ring specially the presence of others. 4 And an allegation 
 that the words were spoken would be sufficient, without 
 stating the presence of any third person, if accompanied 
 by any averment which necessarily implies a publication 
 to a third person — as that the defendants palim et piiblice 
 promidgant de querente? In the case of English words, 
 it is not necessary to allege that the persons present 
 either heard or understood what was said ; for until the 
 contrary is made to appear, it will be intended that those 
 present both heard and understood the words ; but in the 
 case of a publication of foreign words, it must be alleged 
 that the persons present understood them. 6 
 
 § 325. Where the publication was made in writing, 
 published is the proper and technical term by which to 
 allege the publication, and this without reference to the 
 precise degree in which the defendant was instrumental 
 to the publication. 7 But any equivalent allegation will 
 
 conversations, utter, publish, and declare," sufficiently implies that the words were 
 spoken in the presence of other persons. (Hurd v. Moore, 2 Oregon, 85.) 
 
 1 Burbank v. Horn, 39 Maine (4 Heath), 233 ; ante, n. 4, p. 143. 
 
 a Bradshaw v. Perdue, 12 Geo. 510 ; Ware v. Cartledge, 24 Ala. 622. 
 
 3 Duel v. Agan, 1 Code Rep. 134 ; ante, n. 4, p. 143. 
 
 4 Barton v. Barton, 3 Iowa, 316. 
 
 6 Taylor v. How, Cro. Eliz. 861. Prior to the statute 2d Geo. II, ch. 14, pleadings 
 in the courts of England were in Latin, which will explain why the quotations from 
 the pleadings in the early decisions are in Latin. 
 
 9 Warmuth v. Cramer, 3 Wend. 394 ; 1 Stark. Slan. 360 ; Cro. Eliz. 396, 480, 865 ; 
 Cro. Jac. 39; Cro. Car. 199; Noy, 57; Golds. 119; Zerg v. Ort, 3 Chandler, 26; and 
 see ante, notes p. 139. After verdict, a declaration which alleges words spoken in a foi- 
 eign language, without alleging that the words were understood by the hearers, was 
 sustained (Kiene v. Ruff, 1 Clarke (Iowa), 482); and in Pennsylvania, held not neces- 
 sary to allege that foreign words were understood (Palmer v. Harris, 60 Penns. 156). 
 
 7 Lamb's Case, 9 Rep. 59 ; 1 Stark. Sland. 359.
 
 520 PLEADING. [Cll. XIII. 
 
 suffice. Where it was alleged that the defendant printed 
 and caused to be printed in the St. James' Chronicle, that 
 was held sufficient ; 1 and so was the allegation that the 
 defendant " did publish and cause and procure to be pub- 
 lished," a certain libel addressed to the plaintiff, 2 but 
 where the allegation was that the defendant scripsit fecit, 
 et publicavit sen scribi fecit et publicari causavit, it was 
 held to be insufficient, and judgment was arrested on 
 account of the uncertainty of the disjunctive charge. 3 To 
 allege that the defendant is proprietor of a certain news- 
 paper named, and that the libel was published in such 
 paper, was held a sufficient averment of a publication by 
 the defendant. 4 But to allege that defendant sent a 
 letter to plaintiff which was received and read by him, 
 does not show a sufficient publication. 5 If a defamatory 
 writing is shown to have been put in a situation in which 
 it might have been read, it is unnecessary to allege that 
 it was in fact seen or read. 6 
 
 § 326. The place of publication may be alleged with 
 a videlicet} It is not material, and need not be proved as 
 laid. 8 
 
 § 327. The time of speaking the words is not 
 material. 9 In one case, it was held that the words 
 might be laid with a continuando™ but this was denied 
 
 1 Baldwin v. Elphinstone, 2 W. Black. 1037. 
 
 a Waisted v. Holman, 2 Hall, 172. But to allege that defendant composed, 
 wrote, and delivered a certain libel addressed to the plaintiff, was held insufficient. 
 {Id.) 
 
 3 Rex v. Brereton, 8 Mod. 328. 
 
 4 Hunt v. Bennett, 4 E. D. Smith, 647, affirmed 19 S.Y. 193. 
 6 Lyle v. Clason, 1 Cai. 5S1. 
 
 6 Giles v. The State, 6 Geo. 276 ; ante, n. 2, p. 142. 
 
 7 Burbank v. Horn, 39 Maine (4 Heath), 233. 
 
 " Jeffries v. Duncombe, 11 East, 226; ante, § 110. 
 
 9 Potter v. Thompson, 22 Barb. 87; Hosley v. Brooks, 2D III 115; but 9ee ante 
 §109. 
 
 10 Burbank v. Horn, 39 1'aine ( 4 Heath), 233.
 
 § 328.] THE COMPLAINT. 521 
 
 on the ground that words spoken at one time constitute 
 one cause of action, and words spoken at another time 
 constitute another cause of action. 1 The continuando, 
 however, was held to be surplusage, and not ground for 
 special demurrer. 2 An allegation, "and further, that 
 defendant, on divers days and times, between that day 
 and the commencement of this action, spoke the same 
 words," was struck out as redundant. 3 
 
 § 328. It should appear on the face of the complaint, 
 by some appropriate averment, that the publication was 
 made without legal excuse. Ex rnalitia, in its legal sense, 
 imports a publication that is false, and made without legal 
 excuse ; 4 an averment that the publication was made with 
 malice or maliciously has ever been and still is the cus- 
 tomary averment ; but any form of words from which mal- 
 ice (absence of excuse) can be inferred, as that the pub- 
 lication was made falsely or wrongfully, will suffice. 5 
 Neither the tercn malice, 6 nor falsely, nor wrongfully, is 
 essential. 7 at least after verdict. 8 A declaration which 
 charged the publication to be " malicious, injurious, and 
 and unlawful," was held sufficient. 9 Where it appeared 
 on the face of the declaration that the defamatory matter 
 was published in an affidavit in a proceeding in an action, 
 and was pertinent to the matter in hand, held that the 
 declaration was demurrable, because, notwithstanding the 
 
 1 Swinney v. Nave, 22 Ind. 178 ; ante, § 113. 
 1 Cummins v. Butler, 3 Blackf. 190. 
 
 3 Gray v. Nellis, 6 How. Pra. Rep. 290. 
 
 4 Johnson v. Sutton, 1 T. It. 439 ; Cro. Car. 271 ; Rowe v. Roach, 1 M. & S. 304; 
 ante, %% 71, 73. 
 
 5 Jloor, 459; Owen, 451 ; Noy, 35 ; ante, note 3, p. 122. 
 
 6 Opdyket».Weed,18 Abb. Pra. Rep. 223; Viele v. Gray, \0ld. 6; ante, note 1, p. 131. 
 
 7 Style, 392. An allegation that the publication was a libel, held equivalent to 
 an allegation that it was false and malicious. (Hunt v. Bennett, 19 N. Y. 176.) 
 
 8 2 Saund. 242 ; White v. Nichols, 3 How. U. S. Rep. 206, 284; Taylor v. Kneeland, 
 1 Doug. 67. 
 
 9 Rowe v. Roach, 1 Mau. <fe Sel. 304. 
 
 34
 
 522 PLEADING. [Ch. XEI. 
 
 allegation that the publication was false and malicious, it 
 appeared on the face of the declaration that the publica- 
 tion was a privileged one. 1 
 
 § 329. The complaint should set out, and purport to 
 set out, the very words published. 2 The proper term by 
 which to indicate that the very words are set forth is 
 tenor? " Tenor and effect " is now held to be sufficient, 
 but there is a decision to the contrary. 4 It is not sufficient 
 to allege that words were published to the effect folio w- 
 
 1 Garr v. Selden, 4 K Y. 91. 
 
 2 Finnerty v. Barker, 7 N. Y. Legal Observer, 317 ; Sullivan v. White, 6 Irish Law 
 Rep. 40; Whitaker v. Freeman, 1 Dev. 271 ; Lee v. Kane, 6 Gray (Mass.), 495 ; Taylor 
 v. Moran, 4 Met. (Ky), 127; Commonwealth v. Wright, 1 Cush. 46. In Gutsole v. 
 Mathers, 1 M. & W. 495, the precise words were not set out, but merely the effect of 
 them, the declaration alleging that the defendant wrongfully, <fcc, represented in the 
 presence and hearing of divers persons (naming them) that said tulips were stolen 
 property. On motion in arrest of judgment, the declaration was held bad for not 
 setting out the words verbatim. In Pennsylvania, it has been held not necessarv to 
 set out the identical words complained against, and that to set forth their purport is 
 sufficient. (Lukehart v. Byerly, 53 Penns. 418.) See ante, note 3, p. 277. A new 
 trial was granted because the words published were not set forth in the complaint 
 literally. (Walsh v. The State, 2 McCord, 248.) Where the substance only of the 
 defamatory matter was charged in the declaration for libel, the court, on the trial 
 allowed the plaintiff to amend by setting out verbatim the letter containing the matter 
 complained against. (Saunders v. Bates, 1 Hurl. & N. 402.) Certain States, provide 
 by statute what words shall be actionable. (§ 153.) It is held that acts declaring 
 what words are actionable are public laws, of which courts are bound to take notice 
 and the complaint or declaration need not recite or refer to the statute (Sanford v. 
 Gaddis, 13 111. 329 ; Elam v. Badger, 23 111. 498), except by alleging that the words were 
 published against the form of the statute in such case provided (Terry v. Bright, 4 
 Md. 430); but the absence of this allegation will be cured by verdict. (Wilcox v. 
 Webb, 1 Blackf. 258.) As to declaring upon the statutes of Virginia and Georgia, 
 see Moseley v. Moss, 6 Gratt. 534; Holcombe v. Roberts, 19 Geo. 588; Hanks v. Pal- 
 ton, 18 Geo. 52. 
 
 3 Commonwealth v. Wright, 1 Cush. 46 ; Wright v. Clements, 3 B. & Aid. 503. 
 To allege " a certain receipt for money, as follows, that is to say," was held equiva- 
 lent to an allegation " according to the tenor following, or in the words and figures 
 following, that is to say." (Rex v. Powell, 1 Leach C. C 77, 4th ed. ; 2 East P. C. 
 976 ; 2 Wm. Black. R. 787.) In a declaration for slander of plaintiff in his trade, a 
 count alleging that the defendant, in a certain discourse in the presence and hearing 
 of divers subjects, falsely and maliciously charged the plaintiff of being in insolvent 
 circumstances, and stating special damage, but without setting out the words, was 
 held ill. (Cook v. Cox, 3 M. & S. 110.) 
 
 4 Newton v. Stubbs, 3 Mod. 71 ; 2 Show. 435.
 
 § 329.] THE COMPLAINT. 523 
 
 ing, 1 or in substance as follows, 2 or purporting, 8 or that 
 the words were in substance as follows, or according to 
 the purport and effect following, or in manner and form fol- 
 lowing, 4 or that the words were of a certain tenor, import 
 and effect. 5 Nor are quotation marks sufficient to indicate 
 that the exact words are set forth. 6 Where the defamation 
 consists in the adoption of words spoken "by another, the 
 declaration must set forth the words with the same par- 
 ticularity as though the action were against that other. 7 
 
 1 Ford v. Bennett, 1 Ld. Raym. 415; Rex v. Bear, 2 Salk. 41V. 
 
 a "Wright v. Clements, 3 B. & Aid. 503. Where a declaration for a libel sets out a 
 publication which refers to a previous publication, but, unless by reference to the 
 language of the previous publication, contains no libel, such previous publication 
 must be considered as incorporated in the ptiblication complained of, and must appear 
 in the declaration to be set out verbatim, and not merely in substance. Therefore 
 judgment was arrested as to the second count of a declaration, which, after reciting 
 that defendant published a statement "in substance as follows," setting out the publi- 
 cation charged in the first count, charged that defendant afterwards published of and 
 concerning plaintiff, and of and concerning the first publication, a statement that the 
 copper tank was fitted up in a schooner belonging to plaintiff. (Solomon v. Lawson, 
 8 Q. B. 823.) 
 
 3 Wood v. Brown, 6 Taunt. 169; and see Cook v. Cox, 1 M. & S. 110, alleging the 
 speaking of certain words, or words of the same import, was held good after verdict. 
 (Bell v. Bugg, 4 Mumf. 260.) 
 
 4 Bagley v. Johnson, 4 Rich. 22 ; Watson v. Music, 2 Mis. 29 ; Zeig v. Ort, 3 Chand. 
 (Wis.) 26; Bassett v. Spofford, 11 N. Hamp. 127; Churchill v. Kimball, 3 Ham. 409; 
 Rex v. May, 1 Doug. 193. A count in slander stating that defendant charged plaintiff 
 with the crime of forgery; held bad (Yunclt v. Yundt, 12 S. <fc R. 427); and so of 
 perjury (Ward v. Clark, 2 Johns. 10); and where a count alleged that defendant 
 charged plaintiff with the crime of theft, without setting out the exact words, it was 
 held bad after verdict. (Parsons v. Bellows, 6 N. Hamp. 289.) In Massachusetts, 
 even before the statute of 1852, it was held sufficient to allege that defendant accused 
 plaintiff of a certain crime, as stealing, without setting out the words spoken (Pond 
 v. Hartwell, 17 Pick. 269; Allen v. Perkins, Id. 369; Gardner v. Dyer, 5 Gray, 22; 
 Nye v. Otis, 8 Mass. 122 ; Whiting v. Smith, 13 Pick. 364; Gay v. Horner, 13 Pick. 
 535; and see Kennedy v. Lowry, 1 Binn. 393; Grubs v. Kcyser, 2 McCord, 305); but 
 in that State the defendant is entitled to a bill of particulars setting forth the exact 
 words. (See Payson v. Macomber, 3 Allen, 71.1 A count in Blander alleging that 
 defendant wrongfully and without reasonable cause "imposed the crime of felony" 
 upon the plaintiff was, after verdict, held good. (Davis v. Noakee, 1 Stark. 377 ; Hill 
 v. Miles, 9 N. Hamp. 9.) In actions for malicious prosecution, it is sufficient to declare 
 quod crimen felonice hn/io-oiit, without stating the word-. (Pippel v. Beam, 5 B. <fe 
 Aid. 634; Blizard, v. Kelly, 2 B. & C 283; Davis v. Noake, 6 M. A S. 83.) 
 
 6 Forsyth v. Edmiston, 5 Duer, 658. 
 
 6 Commonwealth v. Wright, 1 Cash. 46. 
 
 7 Blessing v. Davis, 24 Wend. 100.
 
 524 PLEADING. [Cll. XHL 
 
 § 330. Where the words were published in a foreign 
 language, the foreign words must be set forth, 1 together 
 with a translation into English. To set forth the foreign 
 words alone, or the translation alone, would not be sum. 
 cient. 2 The omission to set forth a translation may be 
 rectified by an amendment. 3 On a general denial, the 
 plaintiff must prove the correctness of the translation, 
 but its correctness is admitted by a demurrer. 4 To allege 
 a publication of English words, and prove a publication 
 of words in another tongue is a variance, 5 and cause for a 
 nonsuit. 6 
 
 § 331. The object, or one of the objects, of obliging a 
 plaintiff to set forth in his complaint the very words com- 
 plained against, is, that the defendant may, if he desires 
 it, by demurring, have the opinion of the court upon the 
 actionable quality of the words. 7 
 
 § 332. One exception to the rule now under consider- 
 ation is said to be, when the words published are so 
 obscene as to render it improper that they should appear 
 upon the record, and in such case the statement of the 
 words may be omitted altogether, and a description 
 substituted ; but the reason for not setting forth the exact 
 words must appear by proper averments on the face of 
 the complaint. 8 
 
 1 Zenobia v. Axtell, 6 T. R. 162. 
 
 2 Wormouth v. Cramer, 3 Wend. 394 ; Setterman v. Ritz, 3 Sandf. 734 ; Zeig r. 
 Ort, 3 Chand. 26 ; Kersehbaugher v. Slusser, ] 2 Ind. 453 ; Hickley v. Grosjean, 6 
 Blackf. 351 ; Rehauser v. Scbwerger, 3 Watts, 28. 
 
 3 Zenobia v. Axtell, 6 T. R. 162; Rebauser v. Scbwerger, 3 Watts, 28 ; Jenkins v. 
 Phillips, 9 C. & P. 7ti6. An amendment was allowed by inserting the foreign words. 
 (Deboux v. Lebind, 1 Code Rep. IT. S. 235.) See Variance. 
 
 4 Hickley v. Grosjean, 6 Blackf. 351. 
 
 5 Keenholts v. Becker, 3 Denio, 346 ; Kerschbaugber v. Slusser, 12 Ind. 453. 
 
 6 Zenobia v. Axtell, 6 T. R. 162; Zeig v. Ort, 3 Chand. 26. 
 
 7 "Wood v. Brown, 6 Taunt. 169. 
 
 " Com'wealtb v. Tarbox, 1 Cusb. 46; Cem'wealth v. Holmes, 11 Mass. 336. In-
 
 §§ 333-4.] THE COMPLAINT. 525 
 
 § 333. The omission to set forth in the declaration 
 the very words published is a variance, and in the practice 
 at common law the omission was not cured by verdict, 
 and might be taken advantage of by motion in arrest of 
 judgment. 1 The degree of certainty with which the 
 defamation must be set forth depends upon the subject- 
 matter. Where the defamation consists mainly in postures 
 and movements, the use of language somewhat general is 
 unavoidable; and where a declaration alleged, that the 
 defendant published of and concerning a certain court- 
 martial, and of and concerning the plaintiff as a member 
 thereof, a defamatory libel and caricature, consisting of a 
 picture representing and pointing out the court-martial, 
 and the plaintiff as a member thereof, by their position 
 and certain grotesque resemblances, <fcc, it was held, after 
 verdict, to be averred with sufficient certainty that the 
 plaintiff was specifically and individually libelled. 2 
 
 § 334. The rule now under consideration does not 
 render it necessary to set forth the whole of the matter 
 published; it is sufficient to set forth the particular 
 passages complained of, provided they are divisible from 
 and their meaning is not affected by the other and omitted 
 passages. 3 It is sufficient to set out the words which are 
 
 decent words tending only to aggravate the damages need not be repeated in the 
 declaration. (Stevens v. Handley, Wright (Ohio.), 121.) 
 
 1 Gutsole v. Mathers, 1 M. & W. 495 ; Wright v. Clements, 3 B. & A. 503. And 
 see Variance. 
 
 8 Ellis v. Kimball, 16 Pick. 132. Judgment was arrested in an action for slander 
 respecting a bribe, because the charge did not specify to whom the money was 
 given. (Purdy v. Stacey, 5 Burr. 2698.) A declaration in slander for charging the 
 plaintiff with larceny, held good after verdict, although it did not set forth the name 
 of the owner of the property alleged to have been stolen by plaintiff. (Thompson v. 
 Barkley, 27 Penn. St. R. 263.) It is not necessury to set forth the imputation of an 
 offense with the same particularity as in an indictment. (Id. ; Niven v. Munn, 13 
 Johns. 48.) 
 
 3 Culver v. Van Anden, 4 Abb. Tra. Pep. 874; Rex v. Brereton, 8 Mod. 329; 
 Sidman v. Mayo, 1 Roile R. 429. A document referred to in an alleged libel need 
 not be set out if it does not affect the meaning of the language complained against 
 (Walsh v. Henderson, 4 Ir. L. R. :;i.)
 
 526 PLEADIXG. [Cll. XIII. 
 
 material, and additional words, which do not diminish 
 nor alter the sense of the words truly alleged ; may be 
 omitted. 1 But enough must be set forth to show the 
 sense and connection in which words set forth were used ; 
 otherwise there will be a variance, even if the precise 
 words laid are proved to have been spoken. 2 Where 
 several passages are extracted from the same publication, 
 care should be taken to show that such is the case, as by 
 prefacing the first extract, with the allegation, in a certain 
 part of which said libel there was and is contained, <fec, 
 and by prefacing the subsequent extracts with the allega- 
 tion, and in a certain other part of which said libel there 
 was and is contained, &c. 3 But unless the insertion of 
 the whole matter published would be oppressive and 
 embarrassing, there is no objection to setting forth the 
 whole of the matter published. Thus, where in slander 
 the words set out were, " Your wife is a damned Irish 
 woman, and lias got the palsy, and your son is insane, 
 and you are a damned thief," the court, on motion, refused 
 to strike out as redundant the words in italic} In an un- 
 reported case in New York, in which the plaintiff set out, 
 without innuendoes, the whole of the publication (nearly 
 an entire column in a newspaper), on defendant's motion 
 an order was made requiring the plaintiff tospecify the 
 particular passages on which he relied as defamatory. 
 
 § 335. It is an elementary rule of pleading that what- 
 ever is alleged must be alleged with certainty ; and one 
 of the means of ensuring certainty in a complaint for 
 slander or libel is an vnnuendo. 5 Among the attempts to 
 define an innuendo and explain its function are the follow- 
 
 1 Spencer v. Mcilasters, 16 111. 405; Weir v. Hoss, 6 Ala. 881; Buckingham v. 
 Murray, 2 Car. & P. 46. 
 
 8 Edgerly v. Swain, 32 X. Eamp. 478. 
 
 s Tabertz>. Tipper, 1 Camp. 350; Cooke v. Hughes, 1 Ry. <fc M. 112. 
 
 * Deyo v. Brundage, 13 How. Pra. Rep. 221. 
 
 6 Rodeburgh v. Holliagsworth, 6 Ind. 339. Where the language directly and in
 
 § 335.] TIIE COMPLAINT. 527 
 
 ins; : Tlie office of an innuendo is to aver the meaning of 
 the language published. 1 An innuendo means nothing 
 more than the words "id est" "scilicet or "meaning" 
 or " aforesaid!'' as explanatory of a matter sufficiently 
 expressed before. 2 It is in the nature of a prcedict. It 
 may serve for an explanation, to point a meaning where 
 there is precedent matter, expressed or necessarily under- 
 stood or known, but never to establish a new charge. 
 It may apply what is already expressed, but cannot add 
 to nor enlarge nor change the sense of the previous 
 words. 8 If the words before the innuendo do not sound 
 in slander, no meaning produced by the innuendo will 
 make the action maintainable, for it is not the nature of 
 an innuendo to beget an action. 4 An innuendo helps 
 nothing unless the words precedent have a violent pre- 
 
 terms free from ambiguity is actionable, no innuendo is necessary. (Worth v. Butler, 
 7 Blackf. 251 ; Roella v. Follow, id. 377.) 
 
 I Watson v. Nicholas, 6 Humph. 174. The office of the innuendo is to explain 
 doubtful words or phrases, and annex to them their proper meaning. It cannot 
 extend their sense beyond their visual and natural import, unless something is put 
 upon the record by way of introductory matter with which they can be connected. 
 In such case, words which are equivocal or ambiguous, or fall short, in their natural 
 sense, of importing any libellous charge, may have fixed to them a meaning, certain 
 and defamatory, extending beyond their ordinal'}' import. (Beardley «/. Tappan, 1 
 Blatch. C. C. 588.) And to the like effect, see Dorsey v. Whipps, 8 Gill, 457 ; Nichols 
 v. Packard, 16 Verm. 83; Patterson v. Edwards, 2 Gilman, 720; Andrews v. Wood- 
 mansee, 15 Wend. 232; Taylor v. Kneeland, 1 Douglass, 67; Gosling v. Morgan, 32 
 Penn. St R. 273 ; The State v. Henderson, 1 Richardson, 179 ; Caverley v. Caverley 3 
 Up. Can. Rep. 338, 0. S. ; Van Vechten v. Hopkins, 5 Johns. 211; Caldwell v. kbbej, 
 Hardin, 529; McCuen v. Ludlam, 2 Harr. 12; Beswick v. Chappel, 8 B. Mon. 486; 
 Benaway v. Coyne, 3 Chand. (Wis.), 214; Vaughan v. Havens, 8 Johns. 109; 
 Gompertz v. Levy, 1 Perr. & Dav. 214; Dodge v. Lacey, 2 Carter (Ind.), 212; 
 Cramer v. Noonan, 4 Wis. 231; Stevens t/. Handley, Wright (Ohio.), 123. Where 
 the charge was that plaintiff was a " bunter," without any innuendo to explain the 
 meaning of that term, the court on the trial refused to receive evidence of the 
 meaning and plaintiff was nonsuited. (Rawlings v. Norbury, 1 Fost. <fe F. 341.) 
 See ante note 2 p. 169. 
 
 s Rex v. Home, 2 Cowper, 688 ; approved Reg. v. Virrier, 4 Per. tfc I). 161. 
 
 I I Stark. Sland. 418; Rex v. Greepe, 2 Salk. 618; 1 L'd Raym. 266; 12 Mod. 
 139; lSannd.248; Van Vechten v. Hopkins, 6 Johns. 220 ; McClaughry v. Wetmore, 
 6 Johns. 83 ; Thomas v. Croswell, 7 Johns. 271 ; Weed v. Bibbins, 82 Barb. 816. 
 
 4 Barham v. Nethersole, Yelv. 21.
 
 528 PLEADING. [CL XIII. 
 
 sumption of the innuendo." * The business of an innuendo 
 is by a reference to preceding matter to fix more precisely 
 the meaning. 2 The office of an innuendo is to explain 
 not to extend what has gone before, and it cannot enlarge 
 the meaning of words, unless it be connected with some 
 matter of fact expressly averred." 3 The innuendo " is 
 only a link to attach together facts already known to the 
 court." 4 
 
 § 336. An innuendo cannot perform the office of a col- 
 loquium ; 5 in other words, the want of a colloquium can- 
 not be supplied by an innuendo. 6 The absence of a col- 
 
 1 Castleman v. Hobbs, Cro. Eliz. 428. 
 
 2 Rex v. Aylett, 1 T. R. 63 ; Beardsley v. Tappan, 1 Blatch. C. C. 588 ; see ante, 
 § 309. 
 
 3 Patterson v. Edwards, 2 Gilman, 720; Van Vechten v. Hopkins, 5 Johns. 211. 
 The innuendo cannot introduce new matter. (Taft v. Howard, 1 Chip. 275; Nichols 
 v. Packard, 16 Verm. 83; Weir v. Hoss, 6 Ala. 881,) Or change the ordinary 
 meaning of language. (Hays v. Mitchell, 7 Blackf. 117. 
 
 4 Cooke on Defamation, 94. 
 
 6 Fitzsimmons v. Cutter, 1 Aik. 33; The State v. Henderson, 1 Richardson, 179; 
 Lindsey v. Smith, 7 Johns. 359; "Ward v. Colyhan, 30 Ind. 396; The State v. Atkins, 
 42 Verm. 352; Stitzell v. Reynolds, 59 Penns. 488; Emery v. Prescott, 54 Maine, 
 389 ; Patterson v. Wilkinson, 55 Maine, 42 ; Beardsley v. Tappan, 1 Blatch. C C. 
 588. 
 
 6 Church v. Bridgman, 6 Mis. 190; Milligan v. Thorn, 6 Wend. 412; Sayre v. 
 Jewett, 12 Wend. 135; Hawkes v. Hawkey, 8 East, 427; Joralemon v. Pomeroy, 2 
 New Jersey, 271. The words, " Thereby accusing the plaintiff of stealing," in a de- 
 claration, immediately following words alleged to have been spoken, which do not of 
 themselves amount to a charge of larceny, without any precise colloquium or averment 
 showing such to have been the intention, are not sufficient to make the declaration 
 good. (Brown v. Brown, 2 Shep. 317.) Where, in an action for slander, the declara- 
 tion alleged that the defendant h;id said of the plaintiff that he had set fire to his 
 own premises, innuendo that plaintiff had been guilty of wilfully setting fire to the 
 premises which, whilst in his occupation, had been destroyed by fire, it was held, on 
 motion in arrest of judgment, that the court could not after verdict presume that the 
 jury had found that defendant meant to impute to plaintiff that he had done it unlaw- 
 fully or feloniously, as well as wilfully. (Sweetapple v. Jesse, 2 Nev. <fc M. 36; 5 B. 
 & Adol. 27.) In slander, the declaration stated that the plaintiff was a justice of the 
 peace, and that the defendant, meaning to injure and expose him to prosecutiou for 
 corruption, &c, in a certain discourse, &c, said of the plaintiff, in his office of just- 
 ice: "L. (meaning the plaintiff) had been feed by A. W. (meaning A. W., who lately 
 had a cause pending and determined before the plaintiff), and that he (the defendant 
 meaning) could do nothing when the magistrate was in that way against him (the de-
 
 § 336.] THE COMPLAINT. 529 
 
 loquium, snowing by extrinsic matter that the words 
 charged are actionable, is not supplied by an innuendo at- 
 tributing to those words a meaning which renders them 
 actionable. 1 Words not in themselves actionable, cannot be 
 rendered so by an innuendo, without a prefatory averment 
 of extrinsic facts, which makes them slanderous. 2 If the 
 words charged do not imply a criminal charge, subject to 
 infamous punishment, an innuendo will not help them ; 
 but when they are used in a double sense, the plaintiff 
 may, by an innuendo, aver the meaning with which he 
 desires it to be understood they were spoken, and the jury 
 may find whether they were spoken with that meaning or 
 not. 3 Thus, where the charge was that the plaintiff lived 
 by swindling and robbing the public, here the language 
 might mean either fraud or felony. The plaintiff, in his 
 declaration, alleged that it meant to charge him with being 
 guilty of felony and robbery. On the trial it was held to 
 
 fendant meaning). After verdict, the declaration was held sufficient. (Burtch v. 
 Nickerson, 17 Johns. 217.) Where the words in themselves were such as were usually 
 applied to the keeper of a gambling house, and obviously imputed to the plaintiff 
 fraudulent and dishonorable conduct; held, that the declaration might be supported, 
 although the words might not be capable, by innuendo, of being referred to any jiar- 
 ticular malpractice. (Digby v. Thomson, 1 Nev. & M. 485.) An averment in a de- 
 claration that the defendant had spoken of and concerning the plaintiff these words: 
 " N. (meaning the plaintiff) burnt it (meaning the store), and he (meaning the plain- 
 tiff) knew it, and I (meaning the defendant) can prove it," preceded by a colloquium 
 that the words were spoken of and concerning the burning of a store owned by the 
 defendant, and followed by an averment that the words were intended to charge the 
 plaintiff with a felonious burning, dec, was held sufficient. (Nichols v. Packard, 16 
 Verm. 83.) 
 
 1 Holton v. Muzzy, 30 Verm. (1 Shaw), 365. 
 
 a Watts v. Greenleaf, 2 Dev. 115. See Brown v. Brown, 2 Shep. 317; Harris v. 
 Burley, 8 N. Hamp. 256 ; Beswick v. Chappel, 8 B. Monr. 486 ; Dottarer v. Bushey, 
 16 Penns. 204; Lukehart v. Byerly, 53 Penns. 418; Moseley v. Moss, 6 Gratt. 534; 
 Wateon v. Hampton, 2 Bibb, 319; Hale v. Blandy, 1 You. & Jar. 480. A declaration 
 containing words which, in common understanding, would import the crime against 
 nature, preceding them with an averment that they were intended to charge the plain- 
 tiff with that crime, and following them with an averment that they Were so under- 
 stood, is good. (Goodrich v. Woolcot, 3 Cow. 231 ; affirmed, 5 Cow. 714.) 
 
 8 Dottarer v. Bushey, 16 Penn. St. Rep. (4 Harris), 204.
 
 530 PLEADING. [Ch. XHT. 
 
 impute only a charge of fraud, and as a charge of fraud is 
 not actionable per se the plaintiff failed in his action. 1 
 
 8 337. An innuendo cannot extend the meaning of de 
 famatory matter, unless by reference to matter of induce 
 ment. The innuendo must be supported by the induce 
 ment. 2 Where there was no inducement, and the allega 
 tion was, "T. Barham (the plaintiff) hath burnt my barn' 
 (meaning my barn at that time full of corn) ; after verdict 
 for the plaintiff judgment was arrested, because to burn 
 the barn was only a trespass, and the innuendo meaning a 
 barn full of corn, extended the signification of the word 
 bwrn,) and was unwarranted. 3 It should have been averred 
 that the plaintiff had a barn full of corn, and that in a 
 conversation about that barn, the defendant had spoken 
 the words charged ; then the innuendo that barn meant 
 " my barn full of corn," would have been good. In libel, 
 an innuendo imputing to the plaintiff larceny of plants 
 and flowers of the defendant, and motion in arrest of judg- 
 ment, on the ground that larceny could not be committed 
 of flowers, and so the innuendo was too large ; it was held 
 sufficient after verdict, as the term flowers must be taken 
 to have meant such flowers as were capable of being the 
 subject of larceny, by being detached, or otherwise. 4 And 
 
 1 Smith v. Carey, 3 Camp. 461. See post, § 338. 
 
 2 Taylor v. Kneeland, 1 Doug. 67; The State v. Henderson, 1 Rich. 179 ; Stucker 
 v. Davis, 8 Blackf. 414. A judgment in slander will not be arrested because an innu- 
 endo enlarges the natural meaning of the words spoken. (Shultz v. Chambers, 8 
 "Watts, 300; Solomon v. Lawson, 8 Q. B. 823.) But if rejecting the innuendo as sur- 
 plusage, the words are not actionable per se, judgment must be arrested. (Barham v. 
 Nethersole, Yelv. 21; Gainsford v. Blatchford, 7 Price, 544; 6 Price, 36.) 
 
 3 Barham v. Nethersole, Yelv. 21. I saw Peter (plaintiff) with or at a heifer ; in- 
 nuendo committing sodomy ; after verdict for plaintiff, judgment arrested, because 
 innuendo not warranted. (Johnson v. Hedges, 6 Up. Can. Q. B. Rep. 337.) He (plain- 
 tiff ) sheared two of Zack Austin's sheep and kept the wool, with an innuendo but no 
 colloquium, held not sufficient to show a cause of action. (Brown v. Piner, 6 Ky- 
 (Bush) 518.)« 
 
 4 Gardiner v. Williams, 2 Cr. M. & R. 78 ; 3 Dowl. Pra. Cas. 796. In this case, 
 one of the counts set forth the following pass-.ige of a letter from the defendant to one 
 P. : "I have reason to suppose that many of the flowers of which I have been robbed
 
 § 337.] THE COMPLAINT. 531 
 
 where the language of the plaintiff, as clerk of a company, 
 was, " You have done many things with the company for 
 which you ought to he hanged, and I will have you hanged 
 before," &c. ; and there was an innuendo that the plaintiff 
 had been guilty of felonies punishable by law with death 
 by hanging, on motion in arrest of judgment, it was held 
 sufficient. 1 The word forsworn cannot by an innuendo 
 alone be interpreted perjury. Thus where the allegation 
 was, "John Holt (meaning the plaintiff) hath forsworn 
 himself (meaning that the plaintiff had committed wilful 
 and corrupt perjury) ; after verdict for the plaintiff judg- 
 ment was arrested, because the innuendo was unwarranted 
 by any inducement. 2 In slander, the plaintiff averred that 
 he had in due manner put in his answer on oath to a bill 
 filed against him by the defendant in the Court of Exche- 
 quer, but did not proceed to aver any colloquium respect- 
 ino; that answer, with reference to which the words were 
 spoken ; and then alleged that the defendant said of him 
 that he was -forsworn, innuendo that the plaintiff had per- 
 jured himself in what he had sworn, in his aforesaid an- 
 swer to the said bill ; held, that this innuendo could not, 
 without the aid of such a colloquium, enlarge the sense of 
 the words by referring them to the answer averred in the 
 prefatory part of the declaration to have been put in. 3 
 Where the declaration only alleged the intention to im- 
 pute misconduct, and that the defendant maliciously pub- 
 lished a notice, "That any person giving information where 
 
 are growing upon your premises" (thereby meaning that the plaintiff had been guilty 
 of larceny, and had stolen from the defendant certain plants, roots, and flowers of the 
 defendant, and had unlawfully disposed of them to P., and unlawfully placed them in 
 P.'s garden.) The previous part of the letter stated that the plaintiff, whom P. had 
 taken into his employ as a gardener, had been in the defendant's employ in 1 1 1 < - same 
 capacity, and had been discharged for dishonesty ; held, on error, that the innuendo 
 ■was not too large. (1 M. k, W. 245.) 
 
 1 Francis v. Roose, 3 M. & W. 191. 
 
 a Holt v. Scholcfield, 6 Term R. 691. 
 
 8 llawkes v. Hawkey, 8 East, 427.
 
 532 PLEADING. [Cll. XIII. 
 
 property belonging to the plaintiff, a prisoner in the King's 
 Bench prison, might be found, should receive five per cent, 
 on the goods recovered," an innuendo that thereby the 
 plaintiff had been guilty of concealing his property, with 
 a fraudulent and unlawful intention, was held bad, on de- 
 murrer, as enlarging the meaning of the terms used. 1 In 
 an action for a libel, the first count, after the usual prefa- 
 tory averments, proceeded thus: "What possessed Lord 
 H. (meaning thereby the said Lord Lieutenant of L*eland), 
 if he knew anything about the country, or was not under 
 the spell of vile and treacherous influence, to make his 
 first visit, and that carefully puffed, to Longs, the coach- 
 maker (meaning thereby the said plaintiff), the other day? 
 If mere trade was his (meaning thereby the said Lord 
 Lieutenant's) object, he had several respectable houses 
 open to him " (meaning thereby that the house and place 
 of business of the said plaintiff were not respectable, and 
 that the said visit was paid thereto for political objects). 
 Held, that the innuendo did not enlarge the sense of these 
 words, which were fully capable of the meaning given to 
 them. 2 And where the declaration stated that the plain- 
 tiff was a trader, and employed by the board of ordnance 
 to relay the entrance to their office with new asphalte, and 
 that the defendant falsely said of him in his said trade, 
 and in reference to the work : " The old materials have 
 been relaid by you in the asphalte work executed in front 
 of the ordnance office, and I have seen the work done." 
 Innuendo that the plaintiff had been guilty of dishonesty 
 in the conduct of his said trade, by laying down again the 
 old asphalte which had been before used at the entrance 
 of the ordnance office, instead of new asphalte, according 
 
 1 Gompertz v. Levy, 1 Perr. <fe Dav. 214. 
 
 2 Barrett v. Long, 3 Ho. of Lords Cas. 395. Where the declaration alleged that 
 plaintiffs, A. and B., were husband and wife, and that defendant alleged that the female 
 plaintiff was the wife of one C, innuendo that B. had been guilty of bigamy, held 
 that the innuendo was warranted. (Heming v. Power, 10 M. <fc W. 564.)
 
 § 337.] THE COMPLAINT. 533 
 
 to his contract. Held, on motion to arrest the judgment, 
 that the declaration was sufficient, and the innuendo was 
 not too large, as it put no new sense on the words, but 
 only imputed intention to the speaker. 1 Where the words 
 set forth were, that A was murdered, and the plaintiff was 
 concerned in it and had a hand in it, innuendo meaning 
 that the plaintiff aided and assisted in the commission of 
 the murder, it was held to be sufficient. 2 The first count 
 of a declaration charged the speaking these words of and 
 concerning the plaintiff: "You are a bloody thundering 
 thief, and all your family. I can prove you and them to 
 be thieves. I can prove you (meaning plaintiff) to go 
 down the river (meaning the river Thames) with ships of 
 eight feet water (meaning ships drawing eight feet water), 
 charging the owners for ten feet, &c. ; and you (meaning 
 plaintiff) are obliged to move from one parish to another" 
 (meaning thereby that the plaintiff was guilty of dis- 
 honesty, and of charging more for the pilotage of certain 
 ships than he was by law entitled to do). Held, that the 
 words were actionable without any innuendo, but that 
 those put were proper. 8 " I have heard that a maid of 
 Sir J. K.'s should report, that he being sick and she look- 
 ing through a hole of the door, saw a priest (innuendo a 
 popish priest) give the eucharist and extreme unction ; " 
 * * * and " saw a popish priest anoint (innuendo ex- 
 treme unction) him." Held, after verdict, that priest was 
 rightly construed popish priest, and anoint was rightly 
 construed extreme unction. 4 Where the words charged 
 as libellous were, " Who was deprived of a two-penny 
 justiceship, for malpractice in packing a jury," and they 
 were explained, by an innuendo, as meaning "that the 
 
 1 Baboneau v. Farrell, 15 C. B. 360 ; 24 Law J. Rep. (N T . S.) C. P. 9 ; 1 Jur. N. S. 
 114. 
 
 2 Tenney v. Clements, 10 N. Hamp. 52. 
 6 Sempsey v. Levy, 2 Jurist, 776. 
 
 4 Knightly v. Marrow, 3 Lev. 68.
 
 534 PLEADING. [Cll. XILT. 
 
 plaintiff had packed a jury, and had been guilty of mal- 
 practice in packing a jury," it was held that the innuendo 
 was warranted by the words charged. 1 
 
 § 338. Where language is ambiguous, and is as sus- 
 ceptible of a harmless, as of an injurious meaning, it is 
 the function of an innuendo to j)oint out the mea/ning 
 which the plaintiff claims to be the true meaning, and the 
 meaning upon which he relies to sustain his action. This 
 applies whether the ambiguity be patent or latent (§ 128), 2 
 and whether or not there are any facts alleged as induce- 
 ment. 3 By this means the defendant is informed of the 
 precise charge he has to meet, and to deny or justify ; but 
 the plaintiff is subjected to the risk that if he claims for 
 the language a meaning which is not the true one, or one 
 which he is unable to make out satisfactorily, he may be 
 defeated on the ground of variance or failure of proof 
 For when the plaintiff, by his innuendo, puts a meaning 
 on the language published, he is bound by it, although 
 that course may destroy his right to maintain the action ; 
 as where the alleged slander was that " Mrs. B.'s time 
 has come around (innuendo that the usual period of 
 parturition had arrived), and he (plaintiff) is down there 
 getting a child away from her. He is procuring an abor- 
 tion upon her." It was held that but for the interpre- 
 tation the plaintiff had, by the innuendo, put on the 
 
 1 Mix v. Woodward, 12 Conn. 262. In an action for slander, the innuendoes 
 "meaning to insinuate and falsely represent," "meaning to insinuate and be under- 
 stood," or " meaning and intending to represent," " that the plaintiff had stolen the 
 money aforesaid," indicate that the defendant's charge against the plaintiff was that 
 he had stolen the money, and therefore were sufficient. (Hoyt v. Smith, 32 Vt. (3 
 Shaw), 304.) 
 
 s Griffith v. Lewis, 8 Q. B. 841 ; 7 Adol. & El. N. S. 67 ; Joralemon v. Pomeroy, 
 2 New Jer. 271 ; Watson v. Nicholas, 6 Humph. 1*74. But "it is not allowable to 
 interpret what has no need of interpretation." (McCluskey v. Cromwell, 11 N. Y. 
 601 ; and ante, note p. 161.) 
 
 3 Clegg v. Laffer, 3 Moo. & Sc. 727; 10 Bing. 350 ; Williams v. Stott, 1 C. & M. 
 675; Smith v. Carey, 3 Camp. 461.
 
 § 339.] THE COMPLAINT. 535 
 
 words "her time lias come around" the words were 
 actionable, but with that meaning they were not action- 
 able, and plaintiff was bound by the interpretation he 
 had himself supplied. 1 And so where the plaintiff alleged 
 that he was treasurer and collector of certain tolls, and 
 that defendant published of him (plaintiff), as such 
 treasurer and collector, " You are gathering the toll for 
 your own pocket," innuendo that plaintiff, being such 
 treasurer and collector, was guilty of collecting tolls to 
 improperly apply them to his own use ; on the trial, the 
 plaintiff having proved that he was treasurer only, and 
 not collector, the variance was considered fatal, and the 
 plaintiff was nonsuited ; for the words were applicable to 
 the plaintiff rather in his character of collector than 
 treasurer, and the plaintiff was bound to prove the words 
 applicable to the plaintiff in the manner which he himself 
 had pointed out by innuendo. 2 
 
 § 339. If the innuendo consists of two distinct 
 allegations, which can be separated without destroying 
 the sense of either of them, and one of them is and the 
 other is not warranted by the alleged libellous matter, 
 the latter may be rejected, and the count will be valid. 3 
 Therefore, in an action of slander, where the words 
 alleged to have been spoken clearly charged the killing 
 of a horse, and the innuendo was that the defendant 
 intended to charge the plaintiff with arson, it was held 
 that the innuendo might be stricken out, and the declara- 
 tion sustained upon the charge of killing the horse. 4 
 
 1 Butler v. Wood, 10 How. Pra. R. 222. When, at the close of the trial, the 
 plaintiff claimed and obtained a verdict upon a meaning different from thai pointed 
 by his innuendo, a new trial was granted, on the ground of surprise upon the defend- 
 ant. (Hunters. Sharp, 4 Fost. <fe F. 983.) (See Gompertz v. Levy, 9 A. <fc E. 282; 
 and Smith v. Carey, '■) Camp. I'll, an'c, 3 336. 
 
 4 Sellars v. Tell, 3 B. & C. 655 ; see ante, note 6, p. 512. 
 
 ' Barrett v. Long, 8 Irish Law Rep. 331. 
 
 * Gage v. Shelton, 3 Rich. 212.
 
 536 pleading. [Ch. XIIL 
 
 § 340. Tlie following innuendoes were held to be 
 proper, without any inducement to support them: Bish- 
 ops, innuendo Bishops of England ; * Ministers, innuendo 
 the Ministers of the King of England; 2 The Navy, 
 innuendo the Royal Navy of this kingdom ; 8 Chevalier, 
 innuendo the Pretender ; 4 Little Gentleman on the other 
 side of the water, innuendo the Prince of Wales ; 5 Door, 
 innuendo The Outer Door ; 6 Death, innuendo Murder ; 7 
 His, innuendo the defendant ; 8 mere man of straw, innu- 
 endo he was insolvent. 9 M. G. (the plaintiff's son and 
 servant) uses two balls to his mother's steelyard, innuendo 
 that plaintiff, by M. G. as her servant, used fraudulent 
 weights, and cheated in her trade. 10 
 
 § 341. The following innuendoes were held to be 
 unwarranted, there being no inducement to support 
 them : Thomaston, innuendo the State Prison situate in 
 the town of Thomaston ; n He fired his house, innuendo 
 he voluntarily fired his house ; 12 She is sick, innuendo she 
 has had a child ; 13 Tan-money, innuendo money the 
 produce of the sale of Tan ; 14 She is a bad girl, innuendo 
 a prostitute ; 15 Public house, innuendo a bawdy house ; 16 
 
 I Baxter's Case, 3 Mod. 69. 
 * 2 Anon. 11 Mod. 99. 
 
 3 Tutchin's Case, 6 State Trials, 590. 
 
 4 Rex v. Matthews, 9 State Trials, 682. 
 
 6 Anon. 11 Mod. 99. 
 
 e Rex v. Aylett, 1 T. R. 63. 
 
 7 Oldham v. Peake, 2 W. Black. 959. 
 
 8 Muck's Case, 8 Mod. 30. Filly horse, innuendo the plaintiff's wife, his name being 
 Hoss. (Weir v. Hoss, 6 Ala. 881; and see ante, note p. 163.) 
 
 9 Eaton v. Johns, 1 Dowl. Pra. Cas. N. S. 602. 
 
 10 Griffiths v. Lewis, 1 Law Times, 111; 8 Q. B. 841. 
 
 II Emery v. Prescott, 54 Maine, 389. 
 u Anon. 11 Mod. 220. 
 
 13 Smith v. Gafford, 33 Ala. 108, 
 
 14 Day v. Robinson, 1 Ad. & Ell. 554. 
 16 Snell v. Snow, 13 Mete. 278. 
 
 19 Dodge v. Lacey, 2 Cart. 212 ; ante, note 3, p. 188.
 
 § 342.] THE COMPLAINT. 537 
 
 Thou hast stolen half an acre of my corn, innuendo the 
 corn growing upon half an acre of ground reaped and put 
 into shocks by the defendant ; 1 You are a regular prover 
 under bankruptcies, innuendo that plaintiff was accus- 
 tomed to prove fictitious debts under commissions of 
 bankruptcy ; 2 He had corn from B.'s barn, innuendo that 
 he had stolen corn from B. ; 3 My landlord, innuendo the 
 plaintiff; 4 Your father, innuendo the plaintiff; 5 Thy 
 son, innuendo the plaintiff; 6 He lost no time in transfer- 
 ring himself, together with £ of John Bull's money, 
 
 to Paris, where he now out-tops princes in his style of 
 living, innuendo that the plaintiff had thereby cheated 
 John Bull. 7 
 
 § 342. Evidence cannot be introduced to support or 
 explain an innuendo. s " I never knew an innuendo 
 offered to be proved." 9 Its truth must always appear 
 from precedent averments. 10 An issue cannot be raised 
 upon the truth of an innuendo. 11 Where an averment or 
 colloquium introduces extrinsic matter into a complaint, 
 
 1 Castleman v. Hobbs, Cro. Eliz. 428. 
 
 2 Alexander v. Angle, 1 Tyrw. 9 ; 1 C. & J. 143; 1 Bing. 119 . 4 M. & P. 870. 
 
 3 Wheeler v. Haines, 1 Perr. & Dav. 55 ; 9 Adol. <fc Ell. 286 n ; Harvey v. French, 
 2 Moo. & S. 591. 
 
 4 Cro. Car. 40 ; 1 Stark. Sland. 386. 
 
 6 Golds. 187; Cro. Eliz. 416, 439 ; Cro. Car. 92, 173; Mo. 365. 
 
 6 Shalmer v. Foster, Cro. Car. 177; but see Wiseman v. Wiseman, Cro. Jac. 107, 
 where it was alleged the defendant spoke the words de prafato querente existente 
 fratre .suo nalvrali, and adjudged for plaintiff. Where the description may apply to 
 one of a class, as brothers or sons, it is unnecessary for the plaintiff to aver that he 
 is the only brother or only son. (1 Stark. Sland. 388.) See ante, note 1, p. 517.) 
 
 1 Trisarri v. Clements, 3 Bing. 432. 
 
 B The State v. Henderson, 1 Richardson, 179 ; Van Vechtcn v. Hopkins, 5 Johns. 
 211 ; Gidney v. Blake, 11 Johns. 54; see Johnston v. McDonald, 2 Up. Can. Q. B. Rep. 
 209. 
 
 J Pi llexfen arg. Rosewell's Case, 3 State Trials, 1058, admitted by court and oppo- 
 site counsel, cited and approved Van Vechtcn v. Hopkins, 5 Johns. 226. 
 
 10 Taylor v. Kneeland, 1 Douglass, 67. 
 
 11 Fry v. Bennett, 5 Sandf. 54 ; Commonwealth v. Snelling, 15 Pick. 335. Justify- 
 ing an innuendo, see Biggs v. Gt. East. R. R., 16 Weekly Rep. 908. 
 
 35
 
 538 . PLEADING. [Ch. XIII. 
 
 that is proper subject of proof. 1 Whether the language 
 is capable of bearing the meaning assigned by the innu- 
 endo, is for the court ; whether the meaning is truly 
 assigned to the language, is for the jury. 2 
 
 § 343. Where the language is not in itself applicable 
 to the plaintiff, no innuendo can make it so. 3 But where 
 the matter published on its face appears to apply to a 
 class of individuals, the plaintiff may, by an innuendo, 
 show that the publication applied to him ; that, is not 
 extending the sense of the matter. Therefore, where the 
 declaration alleged that the plaintiff was owner of a 
 factoiy in Ireland, and charged that the defendant pub- 
 lished of him and of the said factoiy a libel, imputing 
 that, " in some of the Irish factories " (meaning thereby 
 the plaintiff's) " cruelties were practised," though there 
 was no allegation otherwise connecting the libel with the 
 plaintiff, was, after verdict, held good. 4 If the plaintiff 
 is designated by another name in the libel, his real name 
 may be designated by inducement and an innuendo? In 
 
 1 VanVechten v. Hopkins, 5 Joans. 24. 
 
 3 Blagg v. Start, 10 Q. B. 899 ; Broome v. Gosden, 1 C. B. 728 ; Barrett v. Long, 
 3 Ho. of Lords Cas. 395; Babonneau v. Farrell, 15 C. B. 360 ; Hemmings v. Gason, 5 
 Irish Law Rep. 498. 
 
 3 See in note to § 131 ante. 
 
 4 Le Fanu v. Malcomson, 1 House of Lords Cas. 637; 13 Law Times, 61 ; Parker 
 v. Raymond, 3 Abb. Pra. Rep N. S. 343 ; Marsden v. Henderson, 22 Up. Can Q. B. 
 Rep. 585. There needs no innuendo when the words are spoken to the plaintiff him- 
 self. (2 Rolle Rep. 243.) " You have bewitched my mare," innuendo the mare of 
 the plaintiff instead of the defendant, held good after verdict. (Smith v. Cooker, Cro. 
 Car. 512), but see ante, note 5, p. 516. 
 
 * Hays v. Brierly, 4 Watts, 392. " Mr. Deceiver " (meaning the plaintiff), held 
 good on writ of error. (Fleetwood ><. Curie, Cro. Jac. 557.) The following was held 
 sufficient to point out the plaintiff: " This diabolical character, like Polyphemus, the 
 man-eater, has but one eye, and is well known to all persons acquainted with the name 
 of a certain circumnavigator," meaning to allude to the plaintiffs name. (J'Anson 
 v. Stuart, 1 T. R. 748.) A declaration in slander, which, averring a colloquium con- 
 cerning the plaintiff and A., charged the defendant with saying that A. thinks it a 
 hard matter to commit fornication with " his niece " (meaning the plaintiff), was held 
 sufficient, without an averment that the plaintiff was A.'s niece. (Miller v. Parish, 8 
 Pick. 384.)
 
 § 343.] THE COMPLAINT. 539 
 
 libel the plaintiff averred that she was the mother of one 
 Edward J. Barker, and that defendant, knowing this, to 
 defame her, published " of the Barkers — that was the 
 name of his reputed father, what was his mother's I either 
 never knew or have forgot, but I know it was not Barker," 
 innuendo that plaintiff was the mother of an illegitimate 
 child, on demurrer held that the declaration was good. 1 A 
 count in libel, after averring that a sum of money was 
 standing in the Bank of England, at the time of the 
 death of one W. T., in his name, alleged that the defend- 
 ant published concerning the plaintiff, and concerning 
 such money, the following libel : " There is strong reason 
 for believing that a considerable sum of money was trans- 
 ferred from Mr. T.'s (meaning the said W. T.'s) name in 
 the books of the Bank of England, by power of attorney 
 obtained from him by undue influence, after he became 
 mentally incompetent to perform any act requiring reason 
 and understanding " (thereby meaning that the plaintiff 
 had transferred, or caused to be transferred, the said 
 money from the said W. T.'s name in the said books of 
 the said bank, by means of a power of attorney obtained 
 by him from the said W. T., by undue influence exercised 
 by him over the said W. T., at a time when the said W. T. 
 had become mentally incompetent to give a power of 
 attorney, and to perform any act requiring reason and 
 understanding). Held, after verdict for plaintiff, on 
 motion in arrest of judgment, that the libel was suffi- 
 ciently shown to point to the plaintiff. 3 Averments were 
 introduced into the declaration, of words spoken by the 
 defendant imputing dishonesty to L., the name of L. 
 being followed by the innuendo, " meaning the plaintiffs' 
 a^ent and clerk," but there was nothing else in the 
 declaration showing any connection between L. and the 
 
 1 Anderson v. Stewart, 8 Up. Can. Q. B. Rep. 243 ; and see ante, note 6, p. 537. 
 ■ Turner v. Merrywether, 13 Jut. 683; 18 Law Jour. C. P. 155; 12 Law Times, 
 474.
 
 540 PLEADING. [CL XIII. 
 
 plaintiffs. Held, that in the absence of a direct averment 
 connecting L. with the plaintiffs or their business, the 
 words alleged to have been spoken concerning them were 
 not actionable in favor of the plaintiffs. 1 Where the 
 alleged libel consisted of a passage in a newspaper warn- 
 ing certain persons to avoid the traps laid for them by 
 desperate adventurers, innuendo the plaintiff amongst 
 others, was after verdict held sufficiently to point out the 
 plaintiff. 2 Where there was no colloquium that the 
 defamatory matter was concerning the justices of Suffolk, 
 and it did not appear on the face of the alleged libel that 
 it applied to such justices, it was held that the defamatory 
 matter could not be connected with or applied to such 
 justices by means of an innuendo. 3 
 
 § 344. If a complaint is sufficient without the innuendo, 
 the innuendo may be rejected as surplusage ; 4 the innuendo 
 may always be rejected when it merely introduces matter 
 not necessary to support the action, 5 or when it is incon- 
 gruous, 6 or too broad ; 7 an innuendo that the attorney gen- 
 eral spoken of meant the attorney-general for the County 
 Palatine of Chester was so rejected. 8 
 
 1 Smith v. Hollister, 32 Verm. (3 Shaw), 695. 
 3 Wakley v. Healey, 18 Law Jour. 241, C. P. 
 
 3 Rex v. Alderton, Sayre, 280 ; and, to the like effect, Hawkes v. Hawkey, 8 East, 
 427 ; Savage v. Robery, Cowper, 680. 
 
 4 Commonwealth v. Snelling, 15 Pick. 335; Moseley v. Moss, 6 Gratton, 534; 
 Cooper v. Greeley, 1 Denio, 360 ; Harvey v. French, 1 Cr. & M. 1, affirmed 2 Mo. & 
 Sc. 591 ; Gage v. Shelton, 2 Rich. 242 ; Giles v. The State, 6 Geo. 276. 
 
 6 Thomas v. Crosswell, 7 Johns. 264; Crosswell v. "Weed, 25 Wend. 621 ; Carter v. 
 Andrews, 16 Pick. 1; Carroll v. White, 33 Barb. 621; Hudson ». Garner, 22 Miss. (1 
 Jones) 423; Rodebaugh v. Hollingsworth, 6 Ind. 339. 
 
 6 Gardiner v. Williams, 2 Cr. M. «fe R. 78 ; 3 Dowl. Pra. Cas. 796. 
 
 7 Benaway v. Coyne, 3 Chand. (Wis.) 214 ; Barrett v. Long, 3 Ho. of Lwds Cas. 395. 
 
 8 Roberts v. Camden, 9 East, 93 ; and see Day v. Robinson, 4 Nev. cfc M. S41 ; 
 West v. Smith, 4 Dowl. 703. Where the language is actionable per se, special dama- 
 ges, although alleged, need not be proved. (Cook v. Field, 3 Esp. Cas. 133 ; Kelly v. 
 Huffington, 3 Cr. C. C. 81.)
 
 § 345.] TILE COMPLAINT. 541 
 
 § 345. Special damages or those damages which are not 
 the necessary consequence of the language complained of 
 [§§ 197 to 202], must be specially alleged in the com- 
 plaint, or the plaintiff will not be allowed on the trial to 
 go into evidence to prove such damages. 1 Where the lan- 
 guage is actionable per se, special damage need not be al- 
 leged ; 2 but if the language is not actionable per se, special 
 damage must be alleged. Allegations of special damages 
 are not traversable. They are inserted in the com- 
 plaint to apprise the defendant of what he must be 
 prepared to rebut on the trial. 3 Where the declara- 
 tion set forth that the plaintiff was a ship-master, the 
 words defaming him as such, and that, by reason of 
 the same, " certain insurance companies in the city of 
 New York refused to insure any vessel commanded by him, 
 or any goods laden on board any vessel by him com- 
 manded ; " Held, that the allegation was too general, and 
 that proof could not be given under it of the refusal of a 
 particular company to insure the plaintiff's vessel. 4 Where 
 the allegation was, that certain persons, naming them, who 
 would otherwise have employed plaintiff, refused so to do ; 
 Held, that the allegation was not supported by evidence 
 that certain other persons would have recommended plain- 
 
 1 Squier v. Gould, 14 Wend. 159; Strang v. Whitehead, 12 Id. 64; Roberts v. 
 Roberts, 5 B. & S. 385 ; Kelly v. Huffington, 3 Cr. C. C. 81 ; Birch v. Benton, 26 
 Miss. (5 Jones) 155 ; Johnson v. Robertson, 8 Porter, 486 ; Barnes v. Trundy, 31 
 Maine, (1 Red.) 321 ; Bostwick v. Nicholson, Kirby, 65 ; Bostwick v. Hawlev, 76. 290 ; 
 Shipman v. Burrows, 1 Hall, 399 ; Harcourt v. Harrison, lb. 474 ; Geare v. Britton, 
 Bull. N. P. 7; Wilson v. Runyon, Wright, 651. Nor to give evidence of a general 
 loss of reputation. (Ilerrick v. Lapham, 10 Johns. 281.) A complaint for words in 
 writing charging insanity need not allege special damage. (Perkins v. Mitchell, 31 
 Barb. 461.) So in an action by one of several partners. (Robinson *\ Marchant, 7 Q. 
 B. 918.) In an action for defaming one in his trade no allegation of special damage 
 is necessary. (Ingram v. Lawson, 6 Bing. N. C. 212; Foulger v. Newcomb, 86 I. aw 
 Jour. Ex. 169; Butler v. Howes, 7 Cal. 87.) In such cases the occupation supplies 
 the place of special damage; ante, p. 256 n. 
 
 8 Hicks v. Walker, 2 Greene (Iowa), 440. 
 
 * Malony v. Dows, 15 How. Pra. R. 265. 
 
 * Shipman v. Burrows, 1 Hall, 399.
 
 542 PLEADING. [Ch. XIII. 
 
 tiff to the persons named in the declaration, and that if the 
 plaintiff had been so recommended, the persons named in 
 the declaration would have employed him; the not em- 
 ploying being not on account of the slander, but of the 
 non-recommendation. 1 In an action ot slander imputing 
 incontinence to the plaintiff, it was held enough to state, 
 that the plaintiff was occasionally employed to preach to a 
 dissenting congregation at a certain licensed chapel, from 
 which he derived considerable profit, and that, by reason 
 of the scandal, " persons frequenting the chapel had refused 
 to permit him to preach there, and had discontinued the 
 emoluments which they would otherwise have given him," 
 without saying who those persons were, or by what autho- 
 rity they had excluded him, or that he was a preacher duly 
 qualified according to statute (10 Anne, c. 2) ; 2 and in an 
 action for slander for words spoken of the plaintiff in his 
 trade or business, with a general allegation of loss 
 of business, it is competent to the plaintiff to prove, 
 and the jury to assess damages for a general loss or de- 
 crease of trade, although the declaration alleges the loss of 
 particular customers as special damage, which is not 
 proved. 8 As a general rule the customers should be 
 named, 4 but this is not always necessary. 5 The omission 
 
 a Strong v. Foreman, 2 C. <fc P. 592. 
 
 2 Hartley v. Herring, 8 T. R. 130. 
 
 3 Evans v. Harries, 1 Hurl, it Nor. 251 ; and per Martin B., "How is a public- 
 house keeper, whose only customers are passers-by, to show a damage resulting from 
 the slander, unless he is allowed to give general evidence of a loss of custom," (id.); 
 and see Rose v. Groves, 5 M. & G. 613. The plaiutiff may aver a general diminu" 
 tion of business, or particular instances of damage ; in the latter case the names of the 
 customers lost should be given. (Hamilton v. Walters, 4 Up. Can. Rep. 24, 0. S.) 
 
 4 Mayne on Damages, 278, 317; Feise v. Linder, 3 B. <fc P. 372 ; Browning v. Xew- 
 man, 1 Str. 666; Westwood v. Cowne, 1 Stark. 172; and see 8 T. R. 130; 1 Wms. 
 Saund. 243. In New York it was held that a general averment of loss of customers 
 is not a sufficient allegation of special damages, and that no proof of loss of customers 
 can be given under such an allegation. (Tobias v. Harland, 4 Wend. 537; and see 
 Halleck v. Miller, 2 Barb. 630.) The loss of a customer is special damage, although 
 if the dealing had taken place the plaintiff would have lost by it. (Storey v. Chal- 
 
 ands, 8 C. & P. 234.) 
 
 6 Trenton Ins. Co. v. Perrine, 3 Zab. 402.
 
 § 3-4G.] THE COMPLAINT. 543 
 
 of the names of the customers lost, amounts only to a want 
 of deiiniteness, and in New York is to be taken advantage 
 of by a motion to* make definite and certain, not by de- 
 murrer. * Where the supposed special damage consists 
 in loss of marriage, the name of the individual with whom 
 the marriage was contemplated should be stated. 2 
 
 8 346. Where loss of certain customers, namino; them, 
 is alleged, the best evidence in support of such allegation 
 is the testimony of the persons named ; 8 and so where it is 
 alleged that certain persons, naming them, refused to em- 
 ploy the plaintiff, the best evidence of such refusal is the 
 testimony of the persons named. 4 In an action for words 
 not actionable per se, the declaration alleged for special 
 damage, that, in consequence of the speaking of the words, 
 four of plaintiff's customers ceased to deal with him. 
 Three of those persons proved only that they ceased to 
 deal with plaintiff in consequence of reports they had heard 
 in the neighborhood ; but the fourth proved the speaking 
 by the defendant of words substantially as charged, and 
 stated that he did not deal with plaintiff afterwards. Held, 
 some evidence of special damage. 5 
 
 1 Hewitt v. Mason, 24 How. Pra. R. 366 ; and by 15 and 16 Vict. ch. 76, abolishing 
 special demurrers, the right to demur for want of certainty is abolished and a motion 
 to make definite substituted. It has been said that greater certainty is required 
 where the special damage is the gist of the action, than when it is merely laid by way 
 of aggravation. (Wetherell v. Clerkson, 12 Mod. 597 ; Clarke v. Periam, 2 Atk. 33.) 
 An allegation of special damage must be specific. (Cook v. Cook, 100 Mass. 194 ) 
 
 a 1 Sid. 396; ] Vent. 4; Cro. Jac. 499; 12 Mod. 597; and loss of marriage with 
 any other than the one mentioned cannot be proved (L'd. Rayin. 1007) as to alleging 
 special damage in action for slander of title. See ante note 5 p. 315, and Moore v. 
 Meagher, 1 Taunt. S I. 
 
 3 Tilk v. Parsons, 2 Car. & P. 201 ; Barnett v. Allen, 1 Fost. & F. 126 ; King v.. 
 Watts, 8 C. & P. 614. 
 
 4 Johnson v. Robertson, 8 Porter, 486. 
 
 6 Bnteman v. Lyall, 7 C B. (K S. | 688. Tn King v. Townsend, 2 Law Reporter, 
 126 (appendix, poet.) tbe special damage laid was that A. B. had by reason of the 
 libel wholly ceased to deal with Ihe plaintiff, the proof was thai A. B. had nol by 
 reason of the libel dealt with the plaintiff to so great an extent as theretofore, held 
 that this was sufficient evidence of special damage to sustain the declaration.
 
 544 PLEADING. [Ch. XIII. 
 
 § 347. A plaintiff may "unite in one complaint, a cause 
 of action for slander with a cause of action for libel, or for 
 malicious prosecution, 1 or slander of title. 2 Assault and 
 battery cannot be united with slander or libel. 3 A cause 
 of action in a plaintiff singly for slander of him in his part- 
 nership business, cannot be joined with a cause of action 
 in him and his partners jointly. 4 Several sets of words, 
 imputing the same charge, and laid as of the same time, 
 may be included in one count. 5 You may put into one 
 count all the words published at one time, but not words 
 published at different times. 6 A complaint which sets out 
 an entire conversation in which the slander was spoken, 
 contains only one cause of action although the conversation 
 consists of several parts, each of which is actionable. 7 The 
 second count of a declaration in slander charged that in an- 
 other discourse of and concerning plaintiff, &c, the defend- 
 ant spoke these words : " You, Mrs. Gr. (the plaintiff), have 
 used them for years," (innuendo that plaintiff had used 
 fraudulent weights, and cheated in her trade) ; and also in 
 the last-mentioned discourse, in answer to a question put 
 by the plaintiff, as to whether the defendant had said to one 
 J. G. that the plaintiff's son had used two balls to the 
 
 1 Martin v. Mattison, 8 Abb. Pra. Rep. 3; Sbore v. Smith, 15 Ohio, 173; King v. 
 "Waring, 5 Esp, 13 ; Manning v. Fitzherbert, Cro. Car. 271 ; Hull v. Vreeland, 42 Barb. 
 543; Delegal v. Highley, 3 Bing. JS T . C. 950. 
 
 8 Cousins v. Merrill, 16 Up. Can. C. P. Rep. 114. By statute in Ireland, in an 
 action for slander or libel, counts may be added for false representation of plaintiff's 
 goods. (McXally v. Oldham, 8 Law Times, N. S. 604.) 
 
 3 Anderson v. Hill, 53 Barb. 238, overruling Brewer v. Temple, 15 How. Pra. Rep. 
 286. 
 
 4 Robinson v. Marchant, 7 Q. B. 918. 
 
 6 Rathbun v. Emigh, 6 Wend. 407 ; Miligan v. Thorn, 6 "Wend. 412 ; Dioyt v. Tan- 
 ner, 20 "Wend. 190; Churchill v. Kimball, 3 Ohio, (Ham.) 409; Hoyt v. Smith, 32 
 Verm. (3 Shaw) 304. 
 
 6 Hughes v. Rees, 4 M. & W. 204. It is allowable to include in the same declara- 
 tion divers distinct words of slander of different import. (Hall v. Nees, 27 111. 411.) 
 It is sometimes a question whether a declaration consisted of one or more counts. 
 See Cheatham v. Tillotson, 5 Johns. 430; Griffith v. Lewis, 8 Q. B. 841. 
 
 7 Cracraft v. Cochran, 16 Iowa, 301.
 
 § 348.] THE COMPLAINT. 545 
 
 plaintiff's steelyard, these other words : " to be sure I did," 
 &c. ; and also these other words, <fcc. ; Held, that as there 
 was but one continued discourse at the same time, this 
 was but one count, although the words set out were di- 
 vided into several sentences. 1 In New York, where the 
 complaint contains several causes of action, each cause of 
 action must be separately stated and numbered, 2 and be 
 perfect in itself. 3 
 
 § 348. In New York a supplemental complaint is per- 
 mitted. A plaintiff in an action for libel may be allowed 
 to serve a supplemental complaint setting out matter ma- 
 terial to the action, occurring after the commencement of 
 the action. And in that case a supplemental complaint 
 was allowed, setting up alleged special damage occasioned 
 by the publication of the libel, and occurring after the 
 service of the original complaint. 4 
 
 1 Griffiths v.. Lewis, 8 Q. B. 841 ; 7 Law Times, 17Y. 
 
 ' Court Rules, 19 ; Pike v. Van Wormer, 5 How. Pra. Rep. 171. 
 
 3 Holt v. Muzzy, 30 Verm. (1 Shaw) 365 ; Sinclair v. Fitch, 3 E. D. Smith, 689. 
 
 4 Scott v. Hallock, MS. Gen. Term Superior Court New York, 19 Dec. 1857.
 
 CHAPTER XIV. 
 
 PLEADING. A15TSWEE. DEMEEEEE. 
 
 The answer corresponds to plea — What it must contain — 
 Plea to part of a count — Answer of justification must 
 give color, show a lawful occasion, and deny malice — 
 Several answers — Defense of truth must he pleaded — 
 How pleaded — Where the charge is general — Where the 
 charge is specific — Certainty in statement of facts — 
 Answer of justification bad in pxtrt, bad altogether — 
 Mitigating circumstances — Demurrer — Counter-claim. 
 
 § 3'49. The answer corresponds to the plea in the 
 common law system of pleading. In New York it is 
 provided as to an answer, that it "must contain (1) a 
 general or specific denial of each material allegation of 
 the complaint controverted by the defendant, or of any 
 knowledge or information thereof sufficient to form a 
 belief; (2) a statement of any new matter constituting a 
 defense or counter-claim, in ordinary and concise lan- 
 guage, without repetition." And with regard to an 
 answer in the action for slander or libel, it is also pro- 
 vided " the defendant may, in his answer, allege both the 
 truth of the matter charged as defamatory, and any miti- 
 gating circumstances to reduce the amount of damages ; 
 and whether he prove the justification or not, he may 
 in evidence the miti eating circumstances." 1 Mate- 
 
 1 Code of Pro., §§ 149, 165. An answer which merely states that the defendant 
 did not utter the words alleged at the place and time alleged, may be good as a gen- 
 eral denial. (Salenger v. Lusk, 7 How. Pra. Rep. 430.) As to a general denial in 
 Maryland. (Hagan v. Hendry, 18 Md. 177.) A plea that the letter containing the 
 defamatory matter was intended for the plaintiff himself, but by mistake was handed 
 to his employer, was held bad. (Fox v. Broderick, 14 Irish Law Rep. 453.) In an
 
 ANSWER. 547 
 
 rial allegations in the complaint not controverted by the 
 answer are " taken as true," 1 and this applies to allega- 
 tions of inducement. 2 Objections to the complaint not 
 taken by answer or demurrer, are deemed waived except 
 only the objection to the jurisdiction of the court and the 
 objection that the complaint does not state facts sufficient 
 to constitute a cause of action. 3 The defendant is not 
 compelled to verify his answer. 4 
 
 § 350. The general issue in an action for slander or 
 libel was " not guilty ;" and this had probably a larger 
 effect than has a " general denial " under the New York 
 Code, by which we intend that under the " general issue " 
 matters of defense were admitted which would not be 
 admitted under the "general denial." Under the New 
 York system of pleading, every defense not consisting of 
 a mere denial must be specially pleaded. Much relating 
 to the subject of the plea or answer has been anticipated 
 (§§ 211 to 216), and much more on the subject will be 
 found under the head of Evidence. (§§ 403-406.) 
 
 § 350a. As the inducement must be stated in a tra- 
 versable form (§ 312), so a denial of a material matter of 
 inducement constitutes a good defense, as where the dec- 
 laration alleged, by way of inducement, that is was dis- 
 
 action for libel the defendant at first pleaded not guilty, but afterwards pleaded, to 
 the further maintenance of the action, that the plaintiff had recovered damages 
 against another person for the same grievances. New assignment, that the present 
 action was brought for other and different grievances. Plea to new assignment, not 
 guilty. Held, that this did not admit the innuendoes, and that, by pleading not 
 guilty to the new assignment, the defendant had raised precisely the -tine issue as if 
 the libel had been set out in the declaration, and the defendant had pleaded not 
 guilty to it. (Brunswick, Duke of, v. Pepper, 2 Car. & K. G83.) 
 
 1 Code of Pro., § 108, and so in England, Ileming v. Power, 10 M. & W. 507; 
 G wyune v. Sharpe, 1 Car. & Mar. 532. 
 
 2 Fradley v. Fradley, 8 C. & P. 5Y2. 
 
 ' Code of Pro., § 148. Admissions in the answer cannot be retracted on the trial. 
 (Whittemore v. Ware, 101 Mass. 353.) 
 
 4 Laws of New York, 1854, p. 153; Scoville v. New, 12 How. I'ra. Rep. 319; 
 Blaisdell v. Raymond, 5 Abb. Pra. Rep. 144 ; 6 Id. 148.
 
 54S PLEADING. [Cll. XIY. 
 
 graceful for a duly qualified physician of the allopathic 
 school to meet one of the homeopathic school in con- 
 sultation, and then alleged that defendant had published 
 of plaintiff that he had met in consultation with a ho- 
 meopathist, the plea denied that it was disgraceful for a 
 duly qualified physician of the allopathic school to meet 
 one of the homeopathic school in consultation, and it was 
 held a good plea ; 1 and so where the declaration alleged 
 that the term black sheep was used in a defamatory 
 sense, and that the defendant had applied that term to 
 the plaintiff, a plea denying that black sheep was used in 
 a defamatory sense was held good. 2 
 
 § 351. It was held in New York that a plea in bar 
 must answer the whole count, but that one plea might 
 state several defenses, i. e., different defenses to different 
 parts of one count or statement of a cause of action. 3 
 Perhaps the rule is, that, if the matter is divisible, al- 
 though contained in one count, a defendant may plead to 
 part of the matter of one count. 4 If the part of the charge 
 not expressly covered by the plea does not amount to an 
 actionable charge, then the plea is in effect to the whole 
 count. 5 A plea to a part of a count, and that part not 
 amounting to an actionable charge, is bad ; as where the 
 
 1 Clay v. Roberts, 8 Law Times, N. S. 397. 
 
 * McGregor v. Gregory, 1 1 M. & W. 287. 
 
 3 Cooper v. Greeley, 1 Demo, 365 ; and see Ames *'. Hazard, 6 R. I. 335. That 
 a plea may apply to part of libel, see Spencer v. Southwick, 11 Johns. 573. 
 
 4 See Edwards v. Bell, 1 Bing. 403 ; Cooper v. Lawson, 1 Perr. & D. 15 ; O'Connell 
 v. Mansfield, 9 Ir. Law Rep. 179 ; and see ante, note 2 p. 201, and Torrey v. Fields, 10 
 Verm. 353. Where the first count in a declaration for a libel, alleged that plaintiff, 
 a proctor, had been three times suspended, and the second count alleged the having 
 been suspended three times for extortion ; the plea as to so much of the charge as 
 imputed one suspension, justified it as being true, held on demurrer that the plea 
 was good, and that it was sufficiently applicable to the charge in the first count, if 
 not to that in the second. (Clarkson v. Lawson, 6 Bing. 587.) 
 
 * Barrows v. Carpenter, 1 Cliff. 204 ; Clarke v. Taylor, 3 Scott, 95 ; if the part not 
 justified contains ambiguous statements, the court will not draw any libellous infer- 
 ence from them, if plaintiff has not done so in his declaration. {Id.)
 
 §§ 352-3.] answer. 549 
 
 charge was, "Mr. P. (plaintiff) told me he had given my 
 child too much mercury, and poisoned it" and the justifi- 
 cation was only of so much only as charged giving too 
 much mercury. 1 
 
 § 352. An answer of justification must give color to 
 the extent of admitting, for the purposes of the answer 
 only, the publication complained of. 2 But this admission 
 cannot be used to defeat a denial by a separate answer. 
 Because "one plea cannot be taken to help or destroy 
 another, but every plea must stand or fall by itself." 3 A 
 plea of privileged publication must show a lawful occasion, 
 and a denial of malice ; a plea which only alleged that the 
 defendant spoke the words on such occasion, firmly be- 
 lieving them to be true, was held bad for want of an 
 express or implied denial of malice. 4 
 
 § 353. The defendant may, in one answer, set up a 
 general denial, or not guilty, and a justification on the 
 ground of truth. 5 But he cannot, with not guilty as to 
 
 1 Edsall v. Russell, 4 M. & Gr. 1090; 5 Sc. K R. 801. 
 
 2 Fidler v. Delavan, 20 "Wend. 57 ; Wilson v. Beighler, 4 Iowa, 427; Vanderveer 
 v. Sutphin, 5 Ohio, N. S. 293; Edsall v. Russell, 2 Dowl. N. S. 641; 5 Sc. N. S. 801 ; 
 Davis v. Matthews, 2 Ham. 257 ; Folsom v. Brown, 5 Foster, (N. Hamp.) 1 14 ; Samuel 
 v. Bond, Litt, Sel. Cas. 158; Buddington v. Davis, 6 How. Pra. R. 402; Porter v. 
 McCreedy, 1 Code Rep. N. S. 88. A plea of justification held bad unless accompanied 
 with a traverse of the publication in a manner to insult. (Crawford v. Milton, 12 S. 
 & M. 328.) See Carlock v. Spencer, 2 Eng. 12. 
 
 a Grills v. Marwells, Willis, 380 ; Kirk v. Nowell, 1 T. R. 125; Montgomery v. 
 Richardson, 5 C. & P. 247 ; and see cases collected, Voorhies' Code, 296 c, 8th edit. ; 
 contra, see Jackson v. Stetson, 15 Mass. 4S; Alderman v. French, 1 Pick. 1 ; Cilley v. 
 Jenness, 2 N. Hamp. 89; Whittaker v. Freeman, 1 Dev. 280; Wheeler v. Robb. 1 
 Blackf. 330; Wright v. Lindsay, 20 Ala. 428; Doss v. Jones, 5 Howard (Miss.), 158 ; 
 Rev. Stat, of Mass. ch. 100, § 18; Hix v. Drury, 5 Pick. 260. 
 
 4 Smith v. Thomas, 2 Bing. N. S. 372 ; 2 Sc. 543 ; 4 Dowl. Pra. Cas. 333. Except 
 in defenses of privileged publication, the denial of malice forms an immaterial issue. 
 (Fry v. Bennett, 5 Sandf. 54.) 
 
 6 Buhler v. Wentworth, 17 Barb. 649; Hollenbeck v. Clow, 9 How. Pra. Rep. 
 289; Ormsby v. Brown, 5 Duer, 665; Parson v. McComber, 3 Allen (Mass.) 69; 
 Miller v. Graham, 1 Brevard, 283; Smith /•. Smith, 39 Penn. St. Rep. Ill; and see 
 Kelly v. Craig, 9 Humph. 215; contra, Attebury v. Powell, 29 Miss. (8 Jones) 429.
 
 550 PLEADING. [Cll. XIV. 
 
 tlie whole declaration, plead as to part of the declaration, 
 a special plea of apology and payment into court under 
 the statute 6 & 7 Vict. ch. 96. 1 Although a defendant 
 may be allowed with not guilty to plead the mere fact 
 that the words were a fair comment without malice, he 
 cannot with not guilty interpose a plea alleging the exist- 
 ence of certain facts, and that the alleged libel was a fair 
 comment on transactions of public notoriety. The fact of 
 fair comment is involved in not guilty. 2 
 
 § 354. A defendant, to avail himself of the defense of 
 truth, must set it up as a defense by plea or answer. 3 
 The defense of truth may be interposed, although the 
 power to punish for the offense has been tolled by lapse 
 of time, 4 or although the plaintiff has been tried upon the 
 charge and acquitted 5 or pardoned. 6 
 
 § 355. That the justification on the ground of truth 
 must be as broad as the charge, and must justify the pre- 
 
 To a declaration containing three counts for three distinct libels, the court refused to 
 allow the defendant to plead one general plea of justification. (Honess v. Stubbs, 
 7 C. B. N. S. 555.) Inconsistent defenses allowed. (Horton v. Banner, 6 Ky. 
 (Bush) 596; Weston v. Lumley, 33 Ind. 486.) 
 
 1 O'Brien v. Clement, 15 M. & W. 435; 3 D. & L. 676; 15 Law Jour. Rep. 
 285, Ex. 
 
 2 Lucan v. Smith, 1 Hurl. & N. 481 ; 20 Jur. 1107. The fact that the same matter 
 which is specially pleaded might be given in evidence under the general issue, is not 
 always a sufficient ground for rejecting the special plea. (Parker v. McQueen, 8 B. 
 Monroe, 16.) In an action for a libel contained in two letters published in a news- 
 paper, the defendant pleaded that the second letter (itself actionable) was a fair 
 comment upon the facts in the first letter; held bad. (Walker v. Brogden, 19 J. 
 Scott, N. S. 64.) See § 409, post. 
 
 3 Ante, § 211 to 216, note 4 p. 327, § 409, post ; Manning v. Clement. 7 Bing 367 ; 2 
 Greenl. Ev. 424 ; Hagan v. Hendy, 6 R. I. 335 ; Frederitz v. Odenwalder, 2 Yeates, 
 243 ; Barrow v. Carpenter, 1 Cliff. 204. The plea of truth is an issuable plea. (Wood- 
 ward v. Andrews, 1 Brev. 310.) 
 
 4 Ankin v. Westfall, 14 Johns. 234. Where the words were actionable per se, a 
 plea of not guilty within two years, held good. (Quinn v. Wilson, 13 Irish Law 
 Rep. 381.) 
 
 6 Cooke v. Field, 3 Esp. 133 ; England v. Burke, Id. 80. 
 6 Ante, note 4 p. 327, and § 158.
 
 § 355.] answer. 551 
 
 cise charge, has already been considered. 1 (§212.) We 
 have now but to point out some other requisites of a plea 
 or answer on the ground of truth. These depend upon 
 whether the charge is general or specific. Where the 
 charge is in general terms, the answer must state the facts 
 which show the charge to be true. It is not sufficient 
 merely to allege that the charge is true. 2 As if the 
 charge be that the plaintiif is a swindler, 3 or a thief, or a 
 perjurer, or a murderer, 4 or that he stole a watch, 5 or cer- 
 tified a lie, 6 or was of intemperate habits, 7 or received a 
 bribe, 8 or perverted the law. 9 The distinction seems to 
 
 1 Where the charge was, " I caution you against M. W. (plaintiff), she came here 
 an excommunicated prostitute, the outcast of a barrack, held that a plea that, 
 plaintiff was a prostitute, was not a justification. (Wright v. Sullivan, Hayes Ir. Ex- 
 Kep. 104.) 
 
 ' Fry v. Bennett, 5 Sandf. 69 ; Lawton w. Hunt, 4 Rich. 458 ; Atteberry v. Powell, 
 29 Mis. (8 Jones), 429 ; Billings v. Waller, 28 How. Pra. Rep. 97 ; Barrows v. Carpen- 
 ter, 1 Cliff. 204 ; Cook v. Tribune Asso., 5 Bl. C. C. 352 ; Bruton v. Downes, 1 Fost. & 
 F. 668 ; Holmes v. Catesby, 1 Taunt. 543. Where a particular meaning is alleged, it 
 is not sufficient to say the charge is true, with the addition of time, place, and cir- 
 cumstance. (Fidler v. Delavan, 20 Wend. 57.) A man cannot defame in one sense 
 and justify in another. (Id. ; Kerr v. Force, 3 Cr. C. C. 8.) But since the common 
 law procedure act in England, a general plea of justification is allowed there, but in 
 such case the plaintiff is entitled to particulars of the charges intended to be 
 justified. (Bebrens v. Allen, 8 Jur. IS". S. 118; Jones v. Bewick, Law Rep. V, 
 C. P. 32.) 
 
 3 J' Anson v. Stuart, 1 T. R. 748. It is not a justification of a charge of plaintiff 
 being a swindler to allege that defendant delivered to plaintiff goods to sell on com- 
 mission, that he failed to return them or to account for them, and that he made 
 an assignment for the benefit of his creditors. (Herr v. Bamberg, 10 How. Pra. 
 Rep 128.) 
 
 4 Anon. 3 How. Pra. Rep. 406; 4 Id. 98, 347; Sayles v. Wooden, 6 Id 84; Johnson 
 v. Stebbins, 5 Ind. 364. Where the words complained of were, " She is a thief, and 
 has stolen my gold pen and pencil," held that the answer might properly allege a 
 variety of thefts by the plaintiff of different articles, as going to justify the words 
 " She is a thief," (Jaycocks v. Ayres, 7 How. Pra. Rep. 215.) A charge of forgery 
 against a whole community was held to be justified by alleging a falsification of poll 
 books. (Fellows v. Hunter, 20 Up. Can. Q. B. Rep. 382.) 
 
 6 Anibal v. Hunter, 6 Plow. Pra. Rep. 255. 
 
 6 Jones v. Cecil, 5 Eng. 593. 
 
 7 Buddington v. Davis, 6 How. Pra. Rep. 401. 
 
 8 Van Xe39 v. Hamilton, 19 Johns. 349. 
 
 9 Riggs v. Denniston, 3 John3. Cas. 198. In an action of slander, when the charge
 
 552 PLEADING. [Ch. XIV. 
 
 be that where the charge is a conclusion or inference from 
 certain facts, there the plea must set up the facts which 
 warrant such an inference; "but where the charge is of 
 some specific act or acts, there it is sufficient if the plea 
 allege that the charge is true. Thus if it be said of a man, 
 that he is a swindler, this is an inference from his actions 
 and which can be proved only by showing acts of fraud 
 on the part of the plaintiff amounting to swindling ; and, 
 therefore, as we have seen, to justify a charge of being a 
 swindler, the plea must allege the facts upon which the 
 defendant relies to make out the charge. Where the de- 
 fendant attempted to justify a charge of fraud by setting 
 up in his plea that he and plaintiff had had dealings 
 together, and defendant believing that plaintiff had 
 cheated him, and in consequence of such belief, and be- 
 lieving said charge to be true, he published the same, the 
 plea was set aside as embarrassing and uncertain. 1 When 
 the charge is general, and the answer merely an averment 
 that the charge is true, the plaintiff may, under the New 
 York Code, apply to have the answer made " definite and 
 certain ;" but he is not obliged to do this, he may lie by, 
 and on the trial object to the reception of any evidence in 
 support of such a plea, either in bar or in mitigation. 2 
 
 is made directly, the plea of justification should aver the truth of the charge, as laid 
 in the declaration ; but when the charge is made by insinuation and circumlocution, 
 so as to render it necessary to use introductory matter to show the meaning of the 
 words, the plea should aver the truth of the charge which the declaration alleges 
 was meant to be made. (Snow v. Witcher, 9 Ired. 34G ; and see Behrens v. Allen, 3 
 Fost. & F. 135.) 
 
 1 Hennessey v. Morgan, 8 Ir. L. R. N". S. lxix, Appendix. 
 
 * Wachter v. Quenzer, 29 N. Y. 553; Tilson v. Clark, 45 Barb. 181; and see 
 Brickett v. Davis, 21 Pick. 404. Generally, upon the trial the plaintiff cannot object 
 to the insufficiency of a plea of justification. (Evans ». Franklin, 26 Mis. (5 Jones,) 
 252), as he might have demurred; but if the justification be proved, the defendant is 
 entitled to a verdict on that plea. (Edmonds v. Walter, 3 Stark. R. 7); and see 
 Churchill v. Hunt, 2 B. & A. 685 ; 1 Ch. 480 ; contra, as to a notice of justification. 
 (Thompson v. Bowers, 1 Doug. 321.) Held to be error for the court to charge of its 
 own motion that the plea is so defective as not to be available to the defendant. 
 (Bryan v. Gurr, 27 Geo. 378.)
 
 § 356.] answer. 553 
 
 § 356. As to specific charges. Where the charge is 
 specific, there the answer need only to allege that the 
 charge is true. Thus in an action for calling the plaintiff 
 thief, and saying he stole two sheep of J. S., the defend- 
 ant pleaded that the plaintiff stole the same sheep, by 
 reason of which he (defendant) called plaintiff thief, as 
 well he might, and the plea was held good. 1 And so 
 where the charges w T ere of theft of certain articles speci- 
 fied, and of practicing prostitution, specifying instances ; 2 
 and where the charge was that the plaintiff, as inspector 
 of drugs, had improperly passed an adulterated article, an 
 answer merely alleging the charge to be true was held to 
 be sufficient. 3 A plea that the defamatory matter "is 
 true in substance and effect " means that it is time in 
 every material particular. 4 To a charge of being a liar, a 
 plea that " sundry honest men, to wit, A. B.," &c, nam- 
 ing them, " and others, believed and considered the plain- 
 tiff not to be a man of truth, but addicted to falsehood," 
 would not be sufficient justification. 5 
 
 1 1 Rolle Abr. 87. Where the original charge is in itself specific, the defendant 
 need not further particularize it in his plea. (1 Stark. Slan. 478.) 
 8 Steinman v. Clark, 10 Abb. Pra. R. 132. 
 
 3 Van Wyck v. Guthrie, 4 Duer, 268. A general plea averring the plaintiff's resi- 
 dence in 0. county, his being known to divers citizens there, and having a bad repu- 
 tation among them, is good. (Cooper v. Greely, 1 Den. 347.) 
 
 4 Weaver v. Lloyd, 4 D. & R. 230. A plea to an action for libel purporting to be 
 the report of a trial " that the alleged libel was in substance a true report of the 
 trial," was held bad on demurrer. (Flint v. Pike, 6 D. & R. 528 ; 4 B. & C. 473.) 
 To a declaration for an alleged libel published in a newspaper, purporting to be an 
 account of the trial of an action, the plea stated that at the trial the counsel made the 
 speech set out in . the alleged libel, and that certain witnesses proved all that had 
 been so stated ; held bad, on demurrer, for that the plea ought to have detailed such 
 evidence, and shown the truth of the facts so stated, and not merely have stated the 
 conclusion which the party himself drew from the evidence. (Lewis v. Walter, 4 B. 
 & A. 605.) 
 
 8 Brooks v. Bemiss, 8 Johns. 455 ; see Wilson v. Fitch, to be reported, 40 or 41 Cal. 
 Under a plea of justification on the ground of truth, the defendant cannot show thai, he 
 believed the charge true. (Ilix v. Drury, 5 Pick. 296.) Justification of a libel, that 
 from what had been said there was a reason for thinking the imputation was true ; held 
 bad on demurrer, unless it is stated what had been said, and by whom. (Lane v. 
 Ilowman, 1 Price, 76.) To constitute a justification, the answer should aver the truth 
 
 36
 
 554 PLEADING. [Ch. XIV. 
 
 § 357. The facts which, show the charge to be true 
 must be stated with certainty, 1 so that the court may see 
 whether the defendant was justified in what he pub- 
 lished ; 2 and (when a reply was necessary) so that the 
 plaintiff might have an opportunity of denying and tak- 
 ing issue upon the facts alleged ; and it was no excuse for 
 general pleading that the subject comprehended a multi- 
 plicity of facts tending to prolixity, nor that the plea was 
 not more general than the charge. 3 Where a declara- 
 tion stated that plaintiff was lawfully possessed of mines 
 and of ore gotten from them, and was in treaty for the 
 sale of tha ore, and that the defendant published a mali- 
 cious, injurious, and unlawful advertisement, cautioning 
 persons against purchasing the ore, <fcc, per quod he was 
 prevented from selling; to which the defendant pleaded 
 in justification, that the shareholders in the mines thought 
 it their duty to caution persons against purchasing the ore, 
 &c, (pursuing the words of the advertisement) ; this plea 
 was held ill on special demurrer ; first, because it did not 
 disclose the names of the adventurers, or who they were ; 
 and secondly, because it did not show that the defendant 
 made the publication under the direction of the share- 
 holders. 4 And where the plaintiff, a justice of the peace, 
 
 of the defamatory matter charged. It is not sufficient to set up the facts which only 
 tend to establish the truth of such matter. (Thrall v. Smiley, 9 Cal. 529.) Where it 
 was alleged that the defendant spoke of the plaintiff, "I am told M. (plaintiff) was 
 the man who killed the pedler, and I believe it," a plea which averred that defendant 
 was told plaintiff was the the man who murdered the pedler, and that the defendant 
 did believe it, was held bad. (Muma v. Harmer, 17 Up. Can. Q B. Rep. 293.) Where 
 the charge was : " There is no doubt but that he (plaintiff ) abstracted the cable," in- 
 nuendo stole it. A plea that it had been rumored that a party of persons including 
 the plaintiff had taken said cable, held no justification. (Ede v. Scott, 7 Ir. L. R. N. 
 S. 607.) 
 
 1 Van Ness v. Hamilton, 19 Johns. 349; Riggs v. Denniston, 3 Johns. Cas. 198. 
 A plea of justification is taken most strongly against the pleader; everything must 
 be precisely alleged ; it must be "certain to a certain intent in general." (Kerr v. 
 Force, 3 Cr. C. C. 8.) 
 
 5 Torrey v. Field, 10 Verm. 353; Johnson v. Stebbins, 5 Ind. 364. 
 
 3 Van Ness v. Hamilton, 19 Johns. 349. 
 
 4 Rowe v. Roach, 1 M. & S. 304.
 
 § 357.] answee. 555 
 
 brought an action against the defendant for charging him 
 with pocketing all the fines and penalties forfeited by 
 delinquents whom he had convicted, without distributing 
 them to the poor, or in any manner accounting for a sum 
 of £50 then on hand, the defendant pleaded that the 
 plaintiff was a justice of the peace, and that during the 
 time he acted as such he convicted sundry persons in sun- 
 dry sums of money, for divers offenses against divers 
 statutes, which sum, amounting together to £50, he re- 
 ceived of the persons so convicted, and had not paid over 
 the same as required by law. On sj)ecial demurrer, the 
 plea was held bad (not sufficiently certain) for not stat- 
 ing the names of the persons who paid said sums of 
 money, and the amount which each person paid. 1 Where 
 the libel stated that the plaintiff, as manager of the opera, 
 employed his critics in attacking, in corrupt and pur- 
 chased newspapers, the females of his company, it was 
 held that the justification of such a charge must state the 
 names of the critics, of the females, and of the corrupted 
 newspapers, and the substance of the articles, and the 
 time and place of their publication. 2 But where the libel 
 charged that certain exhibitions of opera by the plaintiff 
 were an unfit resort for respectable people, and that they 
 were attended by persons of certain specified immoral and 
 illegal occupations or pursuits — held that an answer justi- 
 fying such charge need do no more than reaffirm the 
 statement contained therein, and need not specify the 
 names of the persons who attended such exhibitions ; and 
 certainly this will be the case where the defendant alleges 
 that the names of such persons are unknown to him. 3 
 Where the charge was that the plaintiff made himself 
 invisible on account of too much borrowing and not pay- 
 
 1 Newman v. Bailey, 2 Chit. R. 665. 
 
 4 Fry v. Bennett, 5 Sandf. 54. 
 
 8 Maretzek v. Cauldwell, 2 Robertson, 715.
 
 556 PLEADING. [Ch. XIV. 
 
 ing, innuendo that plaintiff ran away, held that an answer 
 which stated " it is true the plaintiff made himself invis- 
 ible on account of too much borrowing and not paying, 
 that is, ran away," was insufficient. 1 And in an action of 
 slander in charging the plaintiff, a pawnbroker, with the 
 practice of duffing, i. e. of doing up damaged goods and 
 pledging them again, a plea alleging that the plaintiff did 
 do up divers damaged goods and repledge to divers per- 
 sons, &c, was, on special demurrer, held bad, for not stat- 
 ing specific instances and persons. 2 And where the libel 
 charged an attorney with general misconduct, viz. gross 
 negligence, falsehood, prevarication, and excessive bills of 
 costs in the business he had conducted for the defendant, 
 a plea in justification repeating the same general charges, 
 without specifying the particular acts of misconduct, was, 
 upon demurrer, held insufficient. 3 A declaration alleged 
 that plaintiff was cashier to Q., and that defendant, in a 
 letter addressed to Q., wrote, " I conceive there is nothing 
 too base for him (plaintiff) to be guilty of." Plea, in jus- 
 tification, alleged that plaintiff signed and delivered to 
 defendant an I. O. U., and afterwards, on having sio-ht 
 thereof, falsely and fraudulently asserted that the signa- 
 ture was not his ; and the plea averred that the libel was 
 written and published solely in reference to this transac- 
 tion. Held a sufficient justification, as the libel must be 
 understood with reference to the subject-matter. 4 Where 
 the defendant, a railway corporation, published a placard 
 
 1 Wachter v. Quenzer, 29 N. Y. 552. A charge of moral obliquity must be proved 
 by some act done mala fide. (Kerr v. Force, 3 Cr. C. C. 8.) 
 
 5 Hickinbotham v. Leach, 2 Dowl. Pra. Cas. K S. 270; 10 M. & "W. 361. To an 
 action for slander in charging the plaintiff with stealing corn and fodder from various 
 persons, a plea of justification leaving blanks for the dates and amounts would be bad 
 on special exception, but cannot be attacked on a general exception. (George v. 
 Lemon, 19 Texas, 150.) 
 
 3 Holmes v. Catesby, 1 Taunt. 543. 
 
 4 Tighe v. Cooper, 7 El. <fc B. 639 ; 21 Jur. 716. A plea of justification need not 
 meet the exact words of the libel, but may adopt the sense put by the innuendo, and 
 justify that. (O'Connor v. Wallen, 6 Irish Law Rep. 378.)
 
 § 358.] answer. 557 
 
 headed "Caution," and containing the plaintiff's name 
 and address, and stated that he had been convicted of 
 travelling on its railway without having first paid his 
 fare. In an action for libel, the declaration contained an 
 innuendo that the defendant meant thereby that the 
 plaintiff had attempted to defraud the company ; the plea 
 was to the effect that the plaintiff was charged and con- 
 victed as alleged ; on demurrer, this plea was held good, 
 as containing a justification of the charge and of the 
 innuendo. 1 
 
 § 358. It is said that to justify a charge of crime, the 
 plea or answer must specify the crime with certainty, 2 and 
 show the commission of the crime with as much certainty 
 as in an indictment for such crime. 3 In an action of 
 slander for charging the plaintiff with having stolen the 
 defendant's shingles, a justification stating that the 
 plaintiff had sold the defendant shingles without author- 
 ity, and afterward denied that he knew anything respect- 
 ing them, without alleging that the plaintiff took them 
 privately or feloniously, was held not to amount to a 
 charge of larceny, and was bad as a justification. 4 To a 
 charge of procuring an abortion, it was held not a sufficient 
 plea that the plaintiff assisted in procuring an abortion, 
 without allegations showing the assistance criminal. 5 Where 
 the charge was that plaintiff " swore falsely," without re- 
 ference to any judicial or other proceeding in which an 
 oath could have been lawfully administered, a plea of 
 justification pointing the plaintiff to the time, place, and 
 occasion of his false swearing, and alleging the truth of 
 
 1 Biggs v. G't East. R. R., 18 Law Times, N. S. 482. 
 
 2 Kail v. Hill, Pick. 325. When any circumstance is stated which describes or 
 identifies the offense, it must be averred for the purpose of showing that it is the 
 same offense. (Sharpe v. Stephenson, 12 Ired. 348.) 
 
 8 Snyder v. Andrews, 6 Barb. 43 ; Steele V. Phillips, 10 Humph. 4G1. 
 4 Shepard v. Merrill, 13 Johns. 475. 
 6 Bissell v. Cornell, 24 "Wend. 354.
 
 '001 
 
 PLEADING. [Ch. XIY. 
 
 the words spoken, was held to be good. 1 Where the 
 charge is perjury, the plea must allege not only that the 
 defendant testified to what was untrue, but that he did so 
 knowingly, 2 and that the matter testified to was material. 3 
 If the charge be of having sworn falsely in a judicial pro* 
 ceeding, without the necessary averments to make the 
 slander amount to an imputation of perjury, then a plea 
 of justification, that the plaintiff did swear falsely in the 
 particular proceeding, would be sufficient. 4 Where the 
 charge is that the plaintiff perjured himself on a particular 
 occasion, the justification must be confined to that. 5 Thus 
 in slander for charging the plaintiff with committing per- 
 jury in making a certain statement, set out in the declara- 
 tion, as a witness in a certain case, the defendant pleaded 
 that the plaintiff did commit perjury by making that 
 statement, and that on the same trial he committed per- 
 jury by another statement made by him on the same trial, 
 
 1 Sanford v. Gaddis, 13 El. 329. To an action of slander for charging the plaintiff 
 ■with having forged a certain instrument of writing, the truth "was pleaded in justifica- 
 tion. Held, that such a plea could not be objected to because it avers the forged in- 
 strument to be in the plaintiffs possession or destroyed. Held, also, that in a plea 
 ■with such an averment, the instrument need not be so particularly described as would 
 be otherwise required. (Kent v. David, 3 Blackf. 301.) 
 
 4 Chandler v. Robison, 1 Ired. 480. 
 
 3 McGough v. Rhodes, T Eng. 625 ; Harris v. "Woody, 9 Mis. 113. It is no justi- 
 fication to an insinuation of perjury against the plaintiff (who had swore to an assault 
 by A. B. on him), that it did appear (which was the suggestion in the libel) from the 
 testimony of every person in the room, &c, except the plaintiff, that no violence had 
 been used by A. B., (fee. ; for non constat thereby that what the plaintiff swore was 
 false. Neither is it sufficient in a justification to such a libel, where the extraneous 
 matter was so mingled with the judicial account as to make it uncertain whether it 
 could be separated, to justify the publication by general reference to such parts of 
 the supposed libel as purport to contain an account of the trial, (fee, and that the 
 said parts contain a just and faithful account of the trial, (fee. (Stiles v. Notes, 7 E. 
 R. 493.) 
 
 4 Sanford v. Gaddis, 13 111. 329. "The answer should set forth the evidence, and 
 what was actually sworn to by the plaintiff at the time alleged" (3 Ch. PL 1039; 
 Yates' Plead. 430; Woodbeck v. Keller, 6 Cow. 122), and the Code of New York has 
 not altered the rule in this respect. (Tilson v. Clark, 45 Barb. 180; Wachter v. 
 Quenzer, 29 N Y. 553.) 
 
 'Palmer v. Haight, 2 Barb. 210.
 
 § 359.] answer. 559 
 
 and not set ont in the declaration. On demurrer to both 
 pleas, the first was held good, and the second bad. 1 In an 
 action for slander in charging the plaintiff with perjury, a 
 plea was that the words were spoken in reference to the 
 testimony of the plaintiff on the trial of a cause, and after 
 setting out the parties, the nature of the action, and the 
 questions litigated, it stated the evidence given on such 
 trial, and averred that the words were spoken in reference 
 to certain parts of the testimony {specifying iheiri) which 
 were not material to the issue, and that the defendant was 
 so understood by the hearers ; it was held that the words in 
 italic were irrelevant. 2 A plea in an action of slander for 
 charging the plaintiff with committing a felony, which ad- 
 mits the speaking of the words charged, but avers other 
 facts in order to show that the words were not actionable, 
 must show either that it appeared by the whole of defend- 
 ant's statements, in the same conversation and company, 
 that no felony had been committed, and therefore that 
 there was no charge of felony, or that the charge was 
 made known to the defendant by a third person, named 
 in the plea, before he uttered the words. 8 
 
 § 359. If a material part of a plea of justification fails, 
 the plea fails altogether. 4 Thus, in an action for libel, the 
 declaration set out the whole of a long letter, in which 
 the defendant imputed to the plaintiff improper conduct 
 in various transactions which had taken place in reference 
 to a ditch of the plaintiff's, alleged by the defendant to be 
 a nuisance. The defendant pleaded " as to so much of the 
 libel as related to, and charged the plaintiff with, the 
 
 1 Starr v. Harrington, 1 Smith, (Ind.) 350. 
 
 s Allen v. Crofoot, 1 Cow. 46. 
 
 * Parker v. McQueen, 8 B. Monr. 10. An averment that the plaintiff did falsely, 
 fraudulently, and unlawfully alter a note, so as materially to change the terms and 
 conditions thereof. i3 a good plea in justification of a charge of forgery. (Kerr?). 
 Force, 3 Cr. C. C. 8.) 
 
 1 Cory v. Bond, 2 Fost. & F. 241.
 
 560 PLEADING. [Ch. XIV. 
 
 keeping of the nuisance," a plea which attempted to 
 justify every sentence in the letter. The jury found that 
 the plaintiff kept the ditch as a nuisance, but negatived 
 the improper conduct imputed to the plaintiff in the 
 letter. Held that, upon this finding, the plaintiff was en- 
 titled to a verdict. 1 Where the charge was that plaintiff 
 had acted for spite and lucre, the defendant justified, but 
 his justification failed as to lucre, held that the charge 
 being entire, the plaintiff was entitled to a verdict, 2 and 
 where a part only of a divisible charge is justified, the 
 defendant is liable for the part not justified. 3 So where 
 the charge was, He (plaintiff') has robbed me to a serious 
 amount, the defendant in addition to the general issue, as 
 to the words he has robbed me, pleaded that plaintiff had 
 robbed him (defendant) of a loaf of the value of three 
 pence, the jury found the words as laid, and that the plea 
 was true, but were directed to assess the plaintiff's 
 damages for the words not justified, namely, "to a serious 
 amount," and the court in banc held the direction proper. 4 
 
 § 360. In some States, by statute, a notice or specifica- 
 tion of the defense is substituted for a plea or answer. 
 Such a notice must, it seems, contain all the material al- 
 legations of a plea or answer. 5 
 
 § 361. In New York, and in some other States, by 
 statute the defendant may, in connection with a general 
 
 1 Biddulph v. Chamberlayne, 17 Q. B. 351. Where in an action for a libel, in re- 
 ference to an advertisement by the plaintiff tending to injure the defendants, his 
 former partners, in their trade, the defendant justified, and relied on the construction 
 of such advertisement, as set out in the introductory part of the declaration ; held, 
 that that not supporting the inferences in the libel, the plaintiff was entitled to re- 
 cover. (Chubb v. Flannagan, 6 C. & P. 431.) 
 
 2 Cory v. Bond, 2 Fost. & F. 241. 
 
 3 Clarke v. Taylor, 3 Scott, 95. 
 
 4 Bayley & Holroyd, J. J., in the Lancaster C. P. 
 
 6 Van Derveer v. Sutphin, 5 Ohio, N. S. 293; Brickett v. Davis. 21 Pick. 404 ; 
 Shepard v. Merrill, 13 Johns. 475; Mitchell v. Borden, 8 "Wend. 570; Bissell v. 
 Cornell, 24 Wend. 354.
 
 § 301.] MITIGATING CIRCUMSTANCES. 561 
 
 denial, and with or without a defense of justification, set 
 up in his answer mitigating circumstances to reduce the 
 amount of damages. 1 But it would seem that a defeud- 
 ant cannot set up mitigating circumstances alone, without 
 any other answer constituting a defense, because an 
 answer merely setting up mitigating circumstances would 
 not raise an issue. 2 Mitigating circumstances are such 
 circumstances as the well-established rules of law allow 
 to be given in evidence in mitigation of damages, 3 and 
 what those circumstances are will be considered under the 
 head of Evidence. The question whether the facts set 
 up are or are not such as should be permitted to be given 
 in evidence in mitigation, is properly to be decided by 
 the judge on the trial of the issue of fact. 4 And, there- 
 fore, although a plaintiff may move, prior to the trial, to 
 strike out as irrelevant or redundant allegations of facts 
 which the defendant avers he will prove on the trial in 
 mitigation, 5 yet where there is any doubt as to whether 
 or not the facts alleged in the answer would be received 
 in evidence on the trial, the motion, prior to the trial, 
 should . be denied. "Where a defendant seeks to mitigate 
 damages by pleading facts and circumstances which in- 
 duced him, at the time of making the charge, to believe 
 it true, (1) the facts and circumstances must be such as 
 would reasonably induce, in the mind of a person pos- 
 sessed of ordinary intelligence and knowledge, a belief of 
 
 1 Code of Pro. § 165; Bush v. Prosser, 11 N. Y. 34 7 ; Bisbey v. Shaw, 12 N. Y. 
 67; TJolevin v. "Wilder, 34 How. Pra. R. 488; 7 Robertson, 319 ; Van Benschoten v. 
 Yapel, 13 How. Pra. R. 97 ; Heaton v. "Wright, 10 Id. 79 ; Ayres v. Covill, IS Barb. 260. 
 
 8 Newman v. Otto, 4 Sandf. 669 ; Maretzek v. Cauldwell, 19 Abb. Pra. R. 40; but 
 see Van Benschoten v. Yaple, 13 How. Pra. Rep. 97. 
 
 3 Graham v. Jones, 1 Code Rep. N. S. 181 ; 6 How. Pra. R. 15 ; Blickcnstaff v. Perrin, 
 27 Ind. 527. Anything tending to disprove actual malice, although it maj r tend to 
 establish the truth, is admissible in mitigation. (Bush v. Prosser, 11 N. Y. 347; 
 Bisbey v, Shaw, 12 Id. 67.) 
 
 4 Newman v. Harrison, 1 Code Rep. N. S. 184 ; Fry v. Bennett, 5 Sandf. 54. 
 * Van Benschoten v. Yaple, 13 How. Pra. R. 97.
 
 562 PLEADING. [Ch. XIV. 
 
 tlie trutlf of such charge ; (2) it must also appear that 
 the defendant, before and at the time of rnakino- the 
 charge, knew such facts and circumstances, and (3) that 
 he was, by reason of the facts and circumstances so set 
 forth, induced to believe in the truth of the charge. 
 Unless it contain all these allegations, it may be stricken 
 out on motion. Upon a motion to strike out, as redun- 
 dant or irrelevant, matter set up in mitigation, the court 
 is to see whether such matter can, by any possibility, be 
 received in evidence ; if it can, it should not be stricken 
 out. It should not be stricken out if the court has the 
 slightest doubt as to its inadmissibility. 1 It is supposed 
 that, in New York, the defendant on the trial can give in 
 evidence only such matter of mitigation as he has set up 
 in his answer, and that if the answer does not contain 
 any matter of mitigation, no evidence in mitigation can 
 be admitted on the trial. 2 On an assessment of damages, 
 where there is no answer, matter in mitigation may be 
 received. Although matter in mitigation of damages is 
 not a subject of demurrer, yet if set up in the answer, 
 without its being stated that they are set up in mitigation 
 merely, the plaintiff may infer they are set up in bar, and 
 may demur to them. 3 
 
 § 362. As in other actions, the defendant may demur 
 to the complaint ; but Lord Coke said it was " an excel- 
 lent point of learning in actions for slander" not to 
 demur, but to take advantage of the declaration not dis- 
 closing a cause of action, either on the trial, or by motion 
 in arrest of judgment. 4 It has been held that, though a 
 
 1 Dolevin v. Wilder, 34 How. Pra. Rep. 488 ; Gorton v. Keeler, 51 Barb. 475. 
 
 2 In Indiana, it is optional with the defendant whether he will set up mitigating 
 circumstances in his answer or not. See O'Conner v. O'Conner, 2*7 Ind. 69. 
 
 3 Newman v. Otto, 4 Sandf. 668 ; Fry v. Bennett, 5 Id. 54 ; Matthews v. Beach, Id. 
 256; Meyer v. Schultz, 4 Id, 664 ; Stanley v. Webb, Id, 21. 
 
 4 The great changes which, since Lord Coke's day, have taken place in the forms 
 and mode of procedure, have deprived this rule of much of its value. If the words
 
 § 362.] DEMURRER. 563 
 
 count in slander contain some words which are actionable, 
 and others which are not, the defendant cannot plead as 
 to the former, and demur as to the residue, but must 
 either plead or demur to the whole count. 1 But again it 
 has been held, that where a libel contains several distinct 
 charges, the defendant may plead or demur to particular 
 parts of it ; yet where several statements tend to one con- 
 clusion or imputation, it is not permissible to select and 
 deal separately with one, either by plea or demurrer. 2 A 
 defendant cannot single out some of the words in a 
 declaration and demur to them. 3 If a count by husband 
 and wife contains words actionable per se, as well as 
 others spoken of the wife, the defendant cannot demur, 
 but may, on the trial, object that the action for the latter 
 words cannot be maintained by both. 4 In an action for 
 libel, where the answer contained (1) a denial of the 
 publication, (2) a justification, the plaintiff demurring to 
 the answer, specifying only objections to the matter of 
 justification, judgment was given for the plaintiff on the 
 demurrer ; held that the denial remained on the record, 
 
 laid in the declaration are not actionable, the defendant must demur, or move in 
 arrest of judgment. (Dorsey v. Whipps, 8 Gill, 45*7.) He cannot avail himself of 
 the defect at the trial (Blunt v. Zunja, Anthon, 180; Boyd v. Brent, 3 Brevard, 241) 
 to nonsuit the plaintiff. (Lumby v. Allday, 1 Cr. <fe J. 301 ; 1 Tyrw. 21V.) It seems 
 to be otherwise in New York, where, on the trial, the defendant may insist that the 
 complaint does not disclose a cause i»f action. It must be remembered that in New 
 York the demurrer is general only, and that the special demurrer has been superseded 
 by a motion to make definite and certain. 
 
 1 Bronson, J., Root v. Woodruff, 6 Hill, 420, citing as to libel, Sterling v. Sher- 
 wood, 20 Johns. 204 ; Riggs v. Denniston, 3 Johns. Cas. 198, and saying the same 
 rule had been applied in actions for slander, though not reported ; and see Taylor v. 
 Carr, 3 Up. Can. Q. B. Rep. 306. It is conceded that the rule is otherwise in England, 
 and Clarkson v. Lawson, 6 Bing. 587, is cited. Held that a defendant may demur to 
 a part of the words laid in a count for slander. (Abrams v. Smith, 8 Blackf. 95 ; 
 Wyant v. Smith, 5 Id. 294.) 
 
 * Eaton v. Johns, 1 Dowl. Pra. Cas. N. S. 602 ; and see McGregor v. Gregory, 2 
 Id. 769; 11 M. & W. 289. 
 
 8 Taylor v. Carr, 3 Up. Can. Q. B. Rep. 306. 
 4 Beach v. Ranney, 2 Hill, 309.
 
 564 COUNTER-CLAIM, 
 
 and raised an issue of fact. 1 Upon demurrer to the com- 
 plaint, if any of the words be actionable, there must be 
 judgment for the plaintiff. 2 A demurrer to the complaint 
 does not admit the intent attributed by the innuendo. 3 
 
 § 362a. There can be no counter-claim in an action 
 of slander or libel. 4 One libel cannot be set off against 
 another, 5 nor can damages occasioned by a libel form a 
 counter-claim in an action for an assault. 6 
 
 1 Matthews v. Beach, 8N. Y. 173 ; but see Parrett Nav. Co. v. Stower, 8 Dowl. 
 Pra. Cas. 405. 
 
 2 Edde v. Waters, 4 Cr. C. C. 170. 
 
 3 Wheeler v. Hames, 1 Perr. <fe D. 55. 
 
 4 Jellerman v. Dolna, V Abb. Pra. E. 395 note. 
 
 6 Seely v. Cole, Wright (Ohio), 681. In the Scotch Reports are to be icurd 
 numerous instances of one set of words being set off against another. 
 6 Macdougall v. Maguire, 35 Cal. 2*74.
 
 CHAPTER XV. 
 
 VARIANCE. AMENDMENT. 
 
 Allegation of pleadings and proof should correspond^ Va- 
 riance in New York — General rules as to variance — 
 Immaterial variance — Material variance — Amendment. 
 
 § 363. The general rule as to variance is that the alle- 
 gations of the pleading and the proof must correspond, 
 otherwise there is a variance, and the plaintiff fails ; \ but 
 now in New York it is enacted by statute that " no vari- 
 ance between the allegation in a pleading and the proof 
 shall be deemed material unless it have actually misled 
 the adverse party to his prejudice," and when the variance 
 is shown to be material, the court may order an amend- 
 ment. 2 The following decisions upon variance are in cases 
 not within the Code of New York. 
 
 § 364. Ordinarily it is sufficient if the words proved 
 correspond substantially with those alleged. 3 But al- 
 though any mere variation of the form of expression is not 
 material, the words alleged cannot be proved by showing 
 that the defendant published the same meaning in differ- 
 
 1 In actions of slander and libel the language charged must be proved as laid. 
 (Birch v. Benton, 26 Mis. (5 Jones), 153; Ilorton v. Reavis, 2 Murph. 380.) A vari- 
 ance is fatal. (Stanfield v. Boyer, 6 Har. <fe J. 248 ; Winter v. Donovan, 8 Gill, 370 ; 
 Harris v. Lawrence, 1 Tyler, 156.) It is not sufficient to prove the substance of the 
 charge merely. (Rex v. Berry, 4 T. R. 217.) 
 
 * Code of Proc. § 169. As to amendment of variance in Indiana (Proctor v. Owens, 
 18 Ind. 21). 
 
 8 Coghill v. Chandler, 33 Mis. 115 ; Smith v. Hollister, 3 Shaw (Verm.) 695 ; Tay- 
 lor v. Moran, 4 Mete. (Ky.) 127; Williams v. Minor, 18 Conn. 464.
 
 566 PLEADING. [CL XV. 
 
 ent words, 1 even if equivalent and of similar import. 2 A 
 count for slanderous words spoken affirmatively is not 
 supported by proof that they were spoken by way of in- 
 terrogation. 8 Proof of words spoken in the second person 
 will not support counts for words spoken in the third per- 
 son, and vice versa} Proof of a positive assertion is not 
 admitted under an allegation of a hypothetical assertion ; 
 an allegation that the words were " he swore to a lie " is 
 not supported by proof that the words were " he swore to 
 a lie if he swore as Jones said he did." 5 
 
 § 365. The plaintiff need not prove all the words laid, 
 
 1 Smith v. Hollister, 3 Shaw (Verm.) 695. "Within six months before suit brought, 
 the defendant said concerning the words alleged to be actionable, but which were 
 barred by the statute, " I never denied what I have said, and I will stand up to it." 
 Held, that this was not a repetition of what he had previously said, and that an action 
 could not be sustained thereon. (Fox v. Wilson, 3 Jones Law (N. Car.) 485. 
 
 2 Wilbornw. Odell, 29 111. 456; Taylor v. Moran, 4 Mete. (Ky.) 127; Norton v. 
 Gordon, 16 111. 38. It is not sufficient to prove words equivalent to those alleged. 
 (Moore v. Bond, 4 Blackf. 458 ; Slocum v. Kuykendall, 1 Scam. 187 ; Olmstead v. 
 Miller, 1 Wend. 506 ; Watson v. Musie, 2 Mis. 29 ; Armitage v. Dunster, 4 Doug. 
 291 ; McConnell v. McVenna, 10 Ir. L. R. 511 ; Campagnon v. Martin, 2 W. Black, 
 790.) Words to the same effect are not the same words. (Fox v. Vanderbeck, 5 
 Cow. 513.) 
 
 3 Barnes v. Holloway, 8 T.R. 150; Sanford v. Gaddis, 15 HI. 228; King v. Whit- 
 ley, 7 Jones Law (N. Car.) 529. If in an action of slander the words be proved to be 
 spoken affirmatively as they are laid, the charge is supported, though it appear that 
 they were spoken in answer to a question put by a third person. (Jones v. Chapman, 
 
 5 Blackf. 88.) 
 
 4 Cock v. Weatherby, 5 Smedes & Marsh. 333 ; Miller v. Miller, 8 Johns. 74 ; 
 Stannard v. Harper, 5 M. <fc Ry. 295 ; M'Connell v. McCoy, 7 S. <fc R. 223 ; Culbert- 
 son v. Stanley, 6 Blackf. 67; Williams v. Harrison, 3 Mis. 411; Wolf v. Rodifer, Har. 
 
 6 J. 409 ; Avarillo v. Rogers, Bull. N. P. 5 ; Rex v. Berry, 4 T. R. 217 ; Phillips v. 
 Odell, 5 Up. Can. Q. B. Rep. O. S. 483 ; Sanford v. Gaddis, 15 HI. 228 ; Rutherford 
 v. Moore, 1 Cr. C. C. 388 ; Birch v. Simms, id. 550. Evidence of the words, " You are 
 a broken down justice," does not support an indictment for speaking of the magis- 
 trate the words, " He is a broken down justice." (4 T. R. 217; but see Cro. Eliz. 
 503.) Words proved to have been spoken in the second person, sustain a count for 
 slander in which the words are in the third person. (Daily v. Gaines, 1 Dana, 529 ; 
 Huffman v. Shumate, 4 Bibb, 515.) 
 
 6 Evarts v. Smith, 19 Mich. 55, § 369, post.
 
 § 365.] VARIANCE. 567 
 
 but lie must prove enough of them to sustain the action. 1 
 It is sufficient if the gravamen of the charge as laid is 
 proved, 2 and unless the additional words qualify the 
 meaning of those proved so as to render the words proved 
 not actionable, the proof is sufficient. 3 It is necessary for 
 the plaintiff to prove some of the words precisely as 
 charged, but not all of them, if those proved are in them- 
 selves slanderous ; but he will not be permitted to prove 
 the substance of them in lieu of the precise words. 4 Where 
 the whole of the words laid in any one count constitute 
 the slanderous charge, the whole must be proved. But, 
 where there are distinct slanderous allegations in any 
 count, proof of any of them is sufficient. 5 The plaintiff 
 may prove more words than are set forth in the complaint, 
 provided the additional words do not change the meaning 
 
 1 Fox v. Vanderbeck, 5 Cow. 513 ; Purple v. Horton, 13 Wend. 9; Nestle v. Van 
 Slyck, 2 Hill, 282 ; Skinner v. Grant, 12 Verm. 456 ; Scott v. McKinnish, 15 Ala. 662 ; 
 Hancock v. Stephens, 11 Humph. 507; Isley v. Lovejoy, 8 Blackf. 462; Sanford v. 
 Gaddis, 15 111. 228 ; Whiting v. Smith, 13 Pick. 364; Loomis v. Swick, 3 Wend. 205; 
 Wheeler v. Robb, 1 Blackf. 330; Chandler v. Holloway, 4 Port. 17 ; Berry v. Dryden, 
 7 Mis. 324; Coghill v. Chandler, 33 Mis. 115; Geary v. Connoss, Skin. 333. 
 
 2 Hersh v. Ringwalt, 3 Teates, 508 ; Wilson v. Natrous, 5 Yerg. 211 ; Cheadle v. 
 Buell, 6 Ham. 67 ; Pursell v. Archer, Peck, 317 ; Miller v. Miller, 8 Johns. 74 ; Cooper 
 v. Marlow, 3 Mis. 188; Barr v. Gaines, 3 Dana, 258; McCliutock v. Crick, 4 Iowa, 
 453; Baldwins. Soule, 6 Gray, 321; Scott v. McKinnish, 15 Ala. 662; Bassett *>. 
 Spofford, 11 N. Ilamp. 127; Merrill v. Peaslee, 17 N. Hamp. 540. 
 
 3 Sanford v. Gaddis, 15 I1L 228; Merrill v. Pei:slee, 17 N. Hamp. 540; Smart v. 
 Blanchard, 42 N. Hamp. 137. The plaintiff need not prove all the words set forth in 
 the declaration, provided he proves enough to sustain his cause of action, and the 
 words proved do not differ in sense from those alleged. (Nichols v. Hayes, 13 Conn 
 155 ; Nestle v. Van Slyck, 2 Hill, 282 ; McKee v. Ingalls, 4 Scam. 30; Scott v. Ren- 
 forth, Wright, 55.) 
 
 4 Easley v. Moss, 9 Ala. 266 ; Morgan v. Livingston, 2 Rich. 573 ; Creelman v. 
 Marks, 7 Blackf. 281; Patterson v. Edwards, 2 Gilman, 720. Although the libel read 
 in evidence contained matter in addition to that set out in the declaration, there is no 
 variance if the additional part do not alter the sense of that which is set out. 
 (M'Coombs »>. Tuttle, 5 Blackf. 431; Cooper v. Marlow, 3 Mis. 188; Rutherford v. 
 Evans, 6 Bing. 451 ; 4 Car. & P. 74.) Thus, in Tabart v. Tipper, 1 Camp. 850, the 
 rhymes (see ante, note 5, p. 446) were set out in the declaration without the line in Latin 
 which followed them ; it was held the omission was immaterial. 
 
 6 Flower v. Pedley, 2 Esp. 491.
 
 568 PLEADING. [Cll. XV. 
 
 of those set forth, 1 and words spoken at different times 
 may be given in evidence on one count. 2 
 
 § 366. An action for slanderous words imputing to the 
 plaintiff misconduct as a constable, is not sustained by 
 proving words imputing misconduct to him, as an agent 
 of the executive of one State, for the arrest, in another 
 State, of a fugitive from justice. 3 Where the words were 
 alleged to have been spoken of and concerning the plain- 
 tiff as treasurer and collector of certain tolls, and the in- 
 nuendo corresponding thereto, and the proof was only of 
 his being treasurer, and he failed in making out his ap- 
 pointment to be collector; held, that for want of such 
 proof he was properly nonsuited. 4 For words spoken of a 
 physician, alleging that he was not entitled to practice as 
 such ; held, first that the plaintiff was bound to prove not 
 only that he practised as a physician, but that he practised 
 lawfully? In an action for these words spoken by de- 
 fendant of the plaintiff in his profession of a physician : 
 " Dr. S. has upset all we have done, and die he (the 
 patient) must." It was proved that the plaintiff had 
 practised several years as a physician, and having been 
 called in during the absence of a physician who with the 
 defendant attended the patient, the defendant, as apothe- 
 cary, made up the medicines prescribed by the plaintiff 
 
 1 Wilborn v. Odell, 29 HI. 456. In Bourke v. Warren, 2 C. & P. 307, a letter was 
 set out as inducement alleged to contain "the words and matters following;" when 
 the letter was read it was found to contain all that was stated in the declaration and 
 something more, held, not a material variance — of course the something more did 
 not qualify what went before ; and see Morrow v. McGaven, 1 Ir. L. R. 579. In 
 Crotty v. Morrissey, 40 111. 477, held no variance between " he stole $200 from me" 
 and " he stole $200 from me, when I was drunk," but that there was a variance be- 
 tween " he stole part of the money he collected in the Catholic church" and "he 
 stole part of the money he collected in the Catholic church in Seneca." 
 
 * Churlter v. Barrett, Peake, 32. 
 3 Kinney v. Nash, 3 N. Y. 177. 
 
 * Sellers v. Killen, 4 B. & Cr. 655 ; 7 D. & Ry. 121. 
 
 6 Collins v. Carnegie, 3 Nev. & M. 703 ; 1 Ad. <fc El. 695.
 
 § 367.] VARIANCE. 569 
 
 for the patient in question. Queers, whether, on this 
 declaration, it was necessary for the plaintiff to produce a 
 diploma, or other direct evidence that he had taken a de- 
 gree in physic, in order to maintain the action. 1 Where 
 the declaration alleged the plaintiff to be an attorney, and 
 that the words were spoken of him in his professional 
 character, the words being actionable without any refer- 
 ence to such character ; held, that mere proof of his having 
 been admitted, without showing that he had practised or 
 had taken out his certificate, was not a fatal variance. 2 
 
 § 367. The following have been held to be immaterial 
 variances : the date of publication ; 3 a difference in the 
 tense of the words, as had for has; 4 the transposition of 
 the names of the parties to the suit, as a witness in which 
 the plaintiff was charged with having sworn falsely ; 5 al- 
 leging that the offense was committed on Saturday in- 
 stead of Sunday ; 6 a discrepancy in the title of a paper ; 7 
 where it was alleged that the publication was in the 
 presence of B., held not necessary to prove such alle- 
 gation. 8 On an allegation that the defendant charged 
 
 1 Smith v. Taylor, 1 N. R. 196. In an action by an apothecary, what is sufficient 
 proof of his qualifications as such. (Wogan v. Somerville, 1 Moore, 102 ; 1 Taunt 
 401.) 
 
 * Lewis v. "Walter, 3 B. <fe Cr. 138 ; 4 D. <fe R. 810. 
 
 s Thrall v. Smiley, 9 Cal. 529; Gates v. Bowker, 18 Verm. (3 Washb.) 23; Com- 
 monwealth v. Varney, 10 Cush. 402 ; Potter v. Thompson, 22 Barb. 89. 
 
 4 Wilborn v. Odell, 29 111. 456. 
 
 6 Teague v. Williams, 7 Ala. 844. In an action of slander, the plaintiff alleged 
 that the slanderous words were spoken relative to testimony of the plaintiff in a suit 
 in which S. was plaintiff and H. defendant. Held, that evidence aliunde was admis- 
 sible to show that the record of an action by S. and W. against II. was the action 
 referred to in the declaration, and that there was no variance. (Ilibler v. Servoss, 
 G Mis. 24.) 
 
 8 Sharpe v. Stephenson, 12 Ired. 348. 
 
 7 The State v. Jeandell, 5 liar ring. 475. 
 
 8 Goodrich v. Warner, 21 Conn. 432. But where the allegation was a speaking 
 in the hearing of " divers citizens," and the proof was of a speaking in the hearing of 
 one person, and he not a citizen, it was held a fatal variance. (Chapin v. White, 102 
 Mass. 139.) 
 
 37
 
 570 variance. . [Ch. XV. 
 
 the plaintiff with perjury in a suit of A. and B. v. C. 
 and D., the variance is not fatal if it be shown that the 
 charge was made in reference to the case of a cross-bill, by 
 one of the defendants in such case, against the complain- 
 ant and co-defendants. 1 And where the declaration on a 
 libel stated that certain prosecutions had been preferred 
 against M., and that, " in furtherance of such proceedings," 
 certain sums of the parish funds had been appropriated 
 to discharge the expenses; but the libel charged the 
 money to have been so applied after the proceedings had 
 terminated : held, that it being immaterial to the defama- 
 tory character of the libel when the money was so applied, 
 the variance was immaterial. 2 So a slight variance in the 
 names of the defendants in the indictment, as set forth in 
 the declaration and contained in the record, may be cured 
 by parol proof of the identity of the persons. 8 Where the 
 words charged in one count were " He is a thief," and in 
 another, " He is a thief, and stole the hay and hay-seed 
 from D.'s barn," and the proof was that the defendant 
 said, at one time, that he was " a thief, and stole the hay- 
 seed out of the barn," and at another that he had " stolen 
 hay and hay-seed that had belonged to H.," it was held 
 that the words charged were sufficiently proved. 4 
 
 § 368. The following are additional instances of imma- 
 terial variance : 
 
 1 Wiley v. Campbell, 5 Monr. 560. A charge of false swearing, in a proceeding 
 between A. and B., held sustained by proof of a proceeding between A. and B. and 
 wife. (Dowd v. Winters, 20 Mis. (5 Bennett), 361.) 
 
 8 May v. Brown, 3 B. & Cr. 113 ; 4 D. & R. 670. It is a general rule that the 
 variance between the allegation and the proof will defeat a party, unless it be in 
 respect of matter which, if pleaded, would be material. {Id.) Where the words are 
 actionable without the inducement, the insertion of what is not material and not 
 proved does not occasion a variance of which advantage can be taken. (Cox v. Thom- 
 ason, 2 Cr. & J. 361 ; 2 Tyrw. 411.) 
 
 s Hamilton v. Langley, 1 M'Mullan, 498. 
 
 4 Williams v. Miner, 18 Conn. 464.
 
 368.] 
 
 VARIANCE. 
 
 571 
 
 US. 
 
 ALLEGATION. 
 
 He stole hogs. 
 
 The girl that hired with 
 
 i. 
 
 A. committed forgery. 
 
 "We supposed that they 
 had become aware of the 
 fact. 
 
 He stole my staves and 
 nails. 
 
 She has had a bastard 
 child. 
 
 A. has had a baby. 
 
 He is a strong thief. 
 
 He has been working for 
 me some time, and has been 
 robbing me all the while. 
 
 PKOOF. 
 
 He stole a hog. 1 
 
 The girl that lived with 
 us. 2 
 
 A. and B. committed forg- 
 ery. 3 
 
 We supposed that they 
 had by this time become 
 aware of the fact. 4 
 
 He is a damned rogue, 
 for he stole my staves and 
 nails, and I can prove it. 5 
 
 If I have not been misin- 
 formed, she had a bastard 
 child. 6 
 
 We hear bad reports 
 about some of your girls; 
 A. has had a baby. 7 
 
 He is a thief. 8 
 
 He has worked for me 
 some time, and has been 
 continually robbing me. 9 
 
 1 Barr v. Gains, 3 Dana, 258. 
 s Robinett v. Ruby, 13 Md. 94. 
 
 3 Nichols v. Hayes, 13 Conn. 155. But words spoken of a husband or of a wife 
 will not support an allegation of words spoken of both of them. (Davis v. Sherron, 
 1 Cr. C. C. 287.) 
 
 4 Smiley v. McDougal, 10 Up. Can. Q. B. Rep. 113. 
 4 Pasley v. Kemp, 22 Mis. (1 Jones), 409. 
 
 8 Treat v. Browning, 4 Conn. 408. 
 
 7 Robbins v. Fletcher, 101 Mass. 115. 
 
 8 Burgis's Case, Dyer, 75. 
 
 • Doncaster v. Hewson, 2 Man. <fe Ry. 176.
 
 572 
 
 VARIANCE. 
 
 [Ch. XV. 
 
 ALLEGATION. 
 
 You are perjured. 
 
 Mr. K.'s wife is a whore. 
 
 You stole one of my 
 sheep. 
 
 Kiot. 
 
 Poppenheim is a very 
 bad man ; he is a calf-thief, 
 and the records of the court 
 will prove it. 
 
 Your (plaintiff's) house 
 is a bawdy house, and no 
 respectable person will live 
 in it. 
 
 Ware Hawk, you must 
 take care of yourself there, 
 mind what you are about. 
 
 PROOF. 
 
 Are you not afraid, as 
 you have perjured your- 
 self? 1 
 
 She (Mr. K.'s wife) is a 
 whorish bitch. 2 
 
 You stole my sheep and 
 killed it. 8 
 
 Riot and assault. 4 
 
 Poppenheim is a very 
 bad man ; he is a calf- thief ; 
 he has been indicted for 
 calf-stealing, and the rec- 
 ords of the court will prove 
 it. 5 
 
 You (plaintiff's wife) are 
 a nuisance to live beside of. 
 You are a bawd, and your 
 house no better than a 
 bawdy house. 6 
 
 Ware Hawk, you must 
 take care of yourself there. 7 
 
 § 369. It was held a material variance where the de- 
 claration alleged that the defendant charged the plaintiff 
 
 1 Commons v. Walters, 1 Port. 377. 
 
 a Scott v. McKinnish, 15 Ala. 662. 
 
 * Robinson v. Wallis, 2 Stark. Rep. 194; the word it showing that only one sheep 
 was meant. 
 
 4 Hamilton v. Langley, 1 M'Mullan, 498. 
 
 6 Poppenheim v. Wilkes, 1 Strob. 275. 
 
 6 Huckle v. Reynolds, 7 C. B. N. S. 114. 
 
 7 Orpwood v. Barkes, 4 Bing. 261 ; s. c. Orpwood v. Parkes, 12 Moore, 492.
 
 § 369.] VARIANCE. 573 
 
 with a crime, and the proof disclosed merely that defend- 
 ant said he supposed the plaintiff to be guilty of such 
 crime. 1 Where the declaration charged the defendant 
 with speaking slanderous words, and the proof was that 
 he procured another to speak them ; 2 where the declara- 
 tion charged the defendant with speaking defamatory 
 words, and the proof was that defendant signed a written 
 complaint charging the plaintiff with larceny ; 3 where the 
 declaration charged the defendant with saying that plain- 
 tiff, a single woman, had had a child, and the proof was 
 that defendant said, in his opinion plaintiff was pregnant 
 with child. 4 An allegation of slander as to the cleanliness 
 of the person of plaintiff (a cook), as of the defendant's 
 actual knowledge, held, not supported by proof of words 
 as to the defendant's belief or understanding only. 5 
 An allegation that words were spoken concerning three 
 plaintiffs (partners) in their joint trade, is not supported 
 by proof that the words were addressed to one of the 
 plaintiffs personally. 6 Where the words set forth, in their 
 ordinary sense, import a charge of crime, if they are proved 
 to have been so spoken in connection with other words as 
 to rebut the idea of criminality, there is a fatal variance ; 7 
 and where an innuendo gives a specific meaning to the 
 
 1 Dickey v. Andros, 32 Verm. (3 Shaw), 55. Where, in case for a malicious prose- 
 cution, the declaration alleged that an express charge of felony was made against 
 plaintiff, hut it appeared that the defendant had only deposed to a suspicion that he 
 had committed it, held no variance, it being the only meaning which could be impu- 
 ted to the accusation. (Davis v. Noake, 6 M. & S. 29.) 
 
 * Watts v. Greenlee, 1 Dev. 210. 
 
 s Hill v. Miles, 9 N. Hamp. 9. 
 
 4 Payson v. Macomber, 3 Allen (Mass.), 69. A count in slander, alleging that the 
 defendant charged upon the plaintiff an act of fornication, witnessed by a particular 
 person, is not sustained by proof of words charging an act of fornication witnessed 
 by another pejson, or by proof of words implying a charge of habitual fornication 
 and lewdness with the person named in the declaration. {Id.) 
 
 » Cook v. Stokes, 1 M. & Rob. 237. 
 
 8 Solomons v. Medex, 1 Stark. Cas. 191 ; and see Davis v. Sherron, 1 Cr. C. C. 
 281 
 
 7 Edgerly v. Swain, 32 N. Hamp. 478.
 
 574 variance. [Ch. XV. 
 
 language published, that meaning must be proved, or there 
 will be a variance. 1 Where the declaration in an action 
 of slander alleges that the words spoken were in reference 
 to an oath taken by the plaintiff before the register and 
 receiver of a land office, touching the entry of land, proof 
 of an oath taken before a notary public concerning the 
 same subject-matter, does not support the allegation; 2 and 
 where the declaration for maliciously charging the plain- 
 tiff with felony stated that the defendant went before R. 
 C. Baron Waterpark, of Waterfork, in the county of, <fcc, 
 and the proof was that his title was Baron Waterpark, of 
 Waterpark, &c. ; held a fatal variance. 8 Where the libel 
 given in evidence contained two references (showing it to 
 be the language of a third person respecting the plaintiff), 
 and which were omitted in the libel set forth in the decla- 
 ration; held, that the meaning of the paragraphs being 
 different, the variance was fatal. 4 An action upon a libel 
 charging in one count that the defendant published it as 
 purporting to be a letter from A. to B., and in another 
 charging generally that the defendant published the libel- 
 lous matter; held not to.be sustained by proof of a pub- 
 lication wherein the defendant stated that in a debate in 
 the Irish House of Commons several years before, the 
 attorney-general of Ireland had read such a letter, and 
 then stating the libellous matter as said by him in com- 
 menting upon that letter ; for it was said the characters of 
 the several libels were essentially different, though the 
 
 1 Williams v. Stott, 1 Cr. & M. 675 ; 3 Tyrw. 668 ; ante, § 338. In a declaration 
 for slander the words charged to have been published were, " You have murdered 
 your little girl;" innuendo the infant daughter of plaintiff. On the trial it appeared 
 that the child was illegitimate, but that the plaintiff was in fact the father. It was 
 objected that the innuendo implied a child born in wedlock, and that there was a 
 variance. The objection was sustained, and the plaintiff was non-suited. (Foote v. 
 Rowley, 2 Law Reporter, 138, in appendix, post.) 
 
 2 Phillips v. Beene, 16 Ala. 720. 
 
 3 Walters v. Mace, 2 B. & A. 756 ; 1 Chit. 507. 
 
 4 Tabart v. Tipper, 1 Camp. 353.
 
 § 370.] variance. 575 
 
 slander imputed might be the same. 1 Where the libel 
 given in evidence was contained in a book published by 
 the defendant respecting William Cobbett, entitled "The 
 Book of Wonders," and was as follows: "Many well 
 intentioned persons have expressed their surprise that 
 the erilightener should have been willing to accept of a 
 seat in corruptions' den purchased with the bank notes of 
 a man whose incapability and baseness he had so power- 
 fully exposed. To convince such persons that such line of 
 conduct was strictly patriotic, we have only to assure them 
 that in so doing, he was walking in the footsteps of that 
 venerable veteran whose creed is the criterion of excellence 
 (see No. 195), and who, in an article of that creed, has 
 laid it down as a maxim that we must, in fighting the 
 enemy, not reject the use of even despicable and detestible 
 men. Cobbett, v. 32, p. 82." The libel as set forth in 
 the declaration omitted the words and figures, " see No. 
 195," and " Cobbett, v. 32, p. 82." It was held a fatal 
 variance ; for upon reading the declaration the libel would 
 be understood to mean, that the defendant had himself 
 made the assertions respecting the plaintiff, but from the 
 libel itself it appears that the paragraph was written with 
 intent to expose the conduct, not of the plaintiff, but of 
 another person. 2 
 
 § 370. An indictment for a libel charged that the de- 
 fendant set up, in public, a board on which a painting or 
 picture of a human head, with a nail driven through the 
 ear, and a pair of shears hung on a nail, and the proof was 
 that a human head, showing a side face, with an ear, a 
 nail driven through the ear, and a pair of shears hung on 
 
 1 Bell v. Byrne. 13 East, 554. 
 
 * Cartwright v. Wright, 5 B. & Aid. CI 5. Where the words alleged were, "My 
 sarcastic friend by leaving out," <fec, and the proof was, " My sarcastic friend Moroi 
 by leaving out," <fcc., held a material variance, (Tabart v. Tipper, 1 Camp. 350); 
 leaving out the words "of" and " which," although fchey did not materially alter the 
 sense, held a variance. (Cooke v. Smith, McClcl. 250.)
 
 576 variance. [Ch. XV. 
 
 tlie nail, was inscribed or cut in the board by means of 
 some instrument, bat was not painted. Held, that there 
 was a fatal variance between the allegation and the proof, 
 and that the defendant must be acquitted. 1 In an action 
 of slander, one of the counts charged the defendant with 
 having made a voluntary affidavit, and caused certain false 
 statements to be written therein, to wit : " that there was 
 a certain quantity of American soap, which to his certain 
 knowledge was sold at Curac.oa (by the plaintiff) at six 
 dollars, current money." The affidavit, as offered in evi- 
 dence by the plaintiff, stated the same words, except that 
 the words " per box " were added after the words " six 
 dollars." Held, that the variance was fatal. 2 The aver- 
 ment was that A., before a magistrate, maliciously charged 
 B. with felony ; the information contained a mere charge 
 of tortious conversion, upon which a warrant for felony 
 was improperly founded. The variance was held fatal. 3 
 If a declaration count upon a charge of perjury upon a 
 particular occasion, proof of a general charge of perjury 
 is inadmissible to sustain it. 4 
 
 § 371. The following are additional instances of mate- 
 rial variance : 
 
 ALLEGATION. PROOF. 
 
 Whore. Strumpet. 5 
 
 1 The State v. Powers, 12 Ired. 5. 
 
 2 Wilson v. Mitchell, 3 Har. & J. 91. 
 
 3 Tempest v. Chambers, 1 Stark. Rep. 6*7. In slander the allegation was, He bnrnt 
 Knox's barn. The proof was that defendant added, Because one of the girls would 
 not marry him. It was doubted if a variance. Where the inducement was of a con- 
 versation of Mr. Knox's barn which had been burnt, and that defendant said of plain- 
 tiff and of said barn, He burnt Knox's barn ; proof that defendant spoke the words, 
 He burnt Knox's barn, without proof of the colloquium respecting the burning of Mr. 
 Knox's barn, was held insufficient. (Manly v. Cory, 3 U. C. Q. B. R. 380.) 
 
 4 Emery v. Miller, 1 Denio, 208. 
 
 6 "Williams v. Bryant, 4 Ala. 44 ; cwitra, see Cook v. Winfield, 1 Stra. 555 ; ante, 
 note 2, p. 233. A charge of being "a whore and a common prostitute" is not sup- 
 ported by proof of words amounting to a general charge of unchastity. (Doherty v. 
 Brown, 10 Gray (Mass.) 250.)
 
 371.] 
 
 VARIANCE. 
 
 577 
 
 ALLEGATION. 
 
 That the plaintiff, who 
 was postmaster at F., em- 
 bezzled certain papers. 
 
 L. is pregnant and gone 
 with child seven months. 
 
 Dr. F. is not a physician, 
 but a twopenny bleeder. 
 
 He burnt my barn, innu- 
 endo feloniously burnt. 
 
 He stole wheat last win- 
 ter. 
 
 That persons who would 
 otherwise have retained and 
 employed the plaintiff, whol- 
 ly declined and refused so 
 to do. 
 
 PROOF. 
 
 Defendant had no doubt 
 the papers were embezzled 
 at F., or he thought the 
 papers were embezzled at 
 F. 1 
 
 Have you heard anything 
 about L.'s being pregnant 
 by Dr. P. 2 
 
 If Dr. F. is a twopenny 
 physician, I am none. I am 
 a regular graduate and no 
 quack. 3 
 
 There is the man that 
 burnt my barn ; if he was 
 not guilty of it he would 
 not carry pistols. 4 
 
 He, defendant, said he, 
 plaintiff, stole away the 
 wheat in the night, and I 
 was well aware of it, and 
 would have put him in jail 
 for doing it. 5 
 
 That other persons would 
 have recommended the 
 plaintiff, and that the per- 
 sons named in the declara- 
 tion would have employed 
 plaintiff on such recommen- 
 dation. 6 
 
 I Taylor v. Kneeland, 1 Doug. 67. 
 
 II Long v. Fleming, 2 Miles, 104. 
 
 3 Foster v. Small, 3 Whart. 138. 
 
 4 Van Keurin v. Griffis, 2 Up. Can. Q. B. Rep. 423. 
 6 McNaught v. Allen, 8 Up. Can. Q. B. Rep. 304. 
 
 " Sterry v. Foreman, 2 Car. & P. 592.
 
 578 
 
 VARIANCE. 
 
 [CL XV. 
 
 ALLEGATION. 
 
 You swore false. 
 
 PROOF. 
 
 You have sworn false. 1 
 
 She is a great thief. 
 
 That plaintiff then had 
 three or four vessels in the 
 river. 
 
 She is a bad one. 2 
 
 That plaintiff had given 
 out that there were three 
 or four vessels in the river. 3 
 
 This is my umbrella. He 
 stole it from my back-door. 
 
 Stolen. 
 
 You robbed the mail. 
 
 It is my umbrella. He 
 stole it from my back-door. 4 
 
 Taken out of my yard. 5 
 
 I am not like you, run- 
 ning about the country with 
 forged deeds and robbing 
 the mail, as you did. 6 
 
 Plaintiff had sworn a lie, 
 and it is in him, for he had 
 sworn what he, defendant, 
 could prove to be a point- 
 blank lie. 
 
 Plaintiff had sworn off a 
 just account, and that he, 
 defendant, could or would 
 prove it. 7 
 
 You would steal, and you A man that would do 
 
 will steal. that would steal. 8 
 
 1 Sanford v. Gaddis, 15 111. 228. 
 
 a Hancock v. Winter, 2 Marsh. 502. 
 
 3 Wood v. Adams, 6 Bing. 481; 4 C. & P. 268. 
 
 4 Walters v. Mace, 2 B. & A. 756 ; 1 Chit. 507. The allegation concerned a thing 
 present, and the proof a thing not present. 
 
 6 Shepherd v. Bliss, 2 Stark. Rep. 510. 
 
 6 McBean v. Williams, 5 Up. Can. Q. B. Rep. 0. S. 689. 
 
 7 Berry v. Dryden, 7 Mis. 324. 
 
 8 Sties v. Kemble, 27 Penn. St. Rep. 112.
 
 372.] 
 
 VARIANCE. 
 
 579 
 
 ALLEGATION". 
 
 I, defendant, was sum- 
 moned as a grand juror at 
 last court, but I got the 
 court to excuse me from 
 serving, for if I had served 
 I would have been bound 
 to have indicted W. for 
 theft. 
 
 PEOOF. 
 
 If I, defendant, had served 
 on the grand jury, I would 
 have been bound to have 
 indicted Mr. Street, the 
 plaintiff. 1 
 
 Mismanagement or igno- 
 rance. 
 
 There was a collusion be- 
 tween A., B., and C. 
 
 You stole a dollar from 
 
 A. 
 
 Venereal disease. 
 
 Ignorance or inattention. 2 
 
 There was a collusion be- 
 tween A. and B. 3 
 
 You stole a dollar from 
 
 B. 4 
 
 Disgraceful disease. 5 
 
 § 372. In New York, under the Code of Procedure, 
 great latitude of amendment is allowed ; besides the right 
 to amend once of course, the court may order an amend- 
 ment before or upon the trial, or at any time thereafter. 6 
 
 1 Street v. Bushnell, 24 Miss. (3 Jones) 328. 
 
 * Brooks v. Blanchard, 1 Cr. & M. 779 ; 3 Tyrw. 844. 
 
 s Johnson v. Tait, 6 Binn. 121. 
 
 4 Self v. Gardner, 15 Mis. 480. 
 
 6 Wagaman v. Byers, 17 Md. 1S3. These following are adjudged material vari- 
 ances: If the declaration be for these words, "Thou procuredst eight or ten of thy 
 neighbors to perjure themselves," and the jury find that he said, Thou hast caused 
 eight or ten, &c, for it might be a'remote cause, scilicit, without procurement. Nar. 
 (the declaration), He is a bankrupt. Verdict, He will be a bankrupt within two 
 days. Nar. He is a thief. Verdict, He stole a horse. Nar. Thou art a murderer. 
 Verdict, He is, <fec. Nar. 1 know him to be a thief. Verdict, I think him to be a 
 thief. And at p. 330 : Nar. Strong thief. Verdict, Thief. Nar. I say, Ac, Verdict, 
 I affirm or I doubt not. Nar. The plaintiff will do such a thing. Verdict, I think in 
 my conscience he will do such a thing. (1 Trials per Pais, 329.) 
 
 6 Code of Procedure, §§ 169, 172, 173.
 
 580 AMENDMENT. [Cll. XV. 
 
 Prior to the Code of Procedure a plaintiff was allowed to 
 amend inducement after issue, where otherwise the right 
 of action would have been barred by the statute of limita- 
 tions. 1 Plaintiff allowed to insert additional words, but 
 not a new cause of action. 2 Plaintiff allowed to insert a 
 newly discovered cause of action. 8 Defendant permitted 
 to add an additional justification. 4 Amendments too, 
 seem to be allowed with great liberality in the courts in 
 England; thus another count was allowed to be added 
 after a rule for a new trial. 5 On the trial the words 
 charged were allowed to be amended, the substance of the 
 allegation remaining the same. 6 Plaintiff allowed to 
 amend by alleging that the words were spoken of him in 
 his character of auctioneer. 7 Leave to plead a justifica- 
 tion, after verdict, denied. 8 Where the declaration alleged 
 the publication of a libel contained in and being an article 
 in a certain weekly printed paper called The Paul Pry. 
 It was proved on the trial that the defendant gave to 
 
 1 Tobias v. Harland, 1 Wend. 93. Leave to add a new count granted (Conroe v. 
 Conroe, 47 Penn. St. R. 198), but denied after right of action had been barred by 
 statute of limitations. (Smith v. Smith, 45 Penn. St. Rep. 403.) An amendment is 
 as of the commencement of the action. (Horton v. Banner, 6 Ky. (Bush.) 596.) 
 
 a Weston v. Worden, 19 Wend. 647. Plaintiff permitted on the trial to add a new 
 cause of action. (Miles v. Van Horn, 17 Ind. 245.) 
 
 3 Williams v. Cooper, 1 Hill, 637. Leave to add a justification refused. (Waters 
 v. Guthrie, 2 Bailey, 106.) 
 
 * Graham v. Woodhull, 1 Car. 497. Defendant on trial allowed to strike out 
 general issue and plead a justification. (Anon. 1 Hill (So. Car.) 251.) 
 
 6 Wyatt v. Cocks, 10 Moore, 504. And see Clarke v. Albert, 1 Gale, 358. The 
 statutes as to amendments to be liberally construed. (Smith v. Knowelden, 9 Dowl. 
 40.) 
 
 6 Pater v. Baker, 3 C. B. 831 ; Foster v. Pointer, 9 Car. cfc P. 718 ; Saunders v. 
 Bates, 1 Hurl. & N. 402 ; and see Lister v. McXeal, 12 Ind. 302. 
 
 7 Ramsdale v. Greenacre, 1 Fost. & F. 61. 
 
 8 Kirby v. Simpson, 3 Dowl. Pra. Cas. 791. Leave to add a plea of the statute of 
 limitations refused. (Allensworth v. Coleman, 5 Dana, 315.) But granted. (Brickett 
 v. Davis, 21 Pick. 404.) Where the defense was that the words complained against 
 were parts of two articles, which articles were fair comments, on demurrer the court 
 held the plea defective, but permitted the defendant to amend by substituting words 
 for articles, so as to read, which words were fair comments. (Morrow v. McGovern, 
 1 Ir. C. L. 579.)
 
 § 372.] AMENDMENT. 581 
 
 several persons to read a printed slip of paper containing 
 the alleged libel, but it did not satisfactorily appear that 
 such slip had been cut from The Paul Pry, the plaintiff 
 was allowed to amend the record — without terms by 
 striking out the words in italics, and this course was ap- 
 proved by the court in banc. 1 Where the words charged 
 were " S. is to be tried at the Old Bailey for," &c, and 
 the proof was " I have heard that S. is to be tried at the 
 Old Bailey for," &c, the plaintiff had leave to amend on 
 payment of costs. 2 Where the words alleged were " there 
 have been many inquests held upon persons who have 
 died because he attended them," and the proof was 
 "Several have died that he (plaintiff) has attended, and 
 inquests have been held on them," an amendment was al- 
 lowed and approved in banc. 3 The court refused an 
 amendment where it was of opinion that the words as 
 proved did not impute an actionable charge, 4 and the 
 court refused, on the trial, at the instance of the plaintiff 
 to strike out superfluous averments and innuendoes, 
 which appeared to have been introduced to create a pre- 
 judice against the defendant, and the application was not 
 made until after the libel was read to the jury. 5 
 
 1 Foster v. Pointer, 9 C. & P. 718, 722. 
 
 s Smith v. Knowelden, 2 M. & Gr. 561. 
 
 s Southee v. Denny, 1 Ex. 196. 
 
 4 Camfield v. Bird, 3 C. <fe K. 66. An amendment will not be allowed, if the 
 effect of it be to afford reasonable ground for demurrer. (Martyn v. Williams, 1 
 Hurl. & N. 817; Caulfield v. Whitworth, 18 Law Times, N. S. 527.) 
 
 6 Prudhomme v. Eraser, 1 M. & Rob. 435. Amendment allowed (Pater v. Baker 
 3 C. B. 831 ; and see Huckle v. Reynolds, 7 C. B. N. S. 114; Saunders v. Bate, 1 
 Hurl. & N. 402; Ramsdale v. Greenacre, 1 Fost. <fc F. 61). Where the words alleged 
 were " he was not sober," and the words proved were he was "as drunk as a sow," 
 and the latter words were relied on as evidence of malice, and as taking away the 
 privilege of the occasion on which the words were spoken, the amendment was 
 denied. (Sutton v. Plumridge, 16 Law Times, N. S. 741.) And where the words as 
 laid in the declaration imputed a direct charge of felony, and the proof was that the 
 words were to the effect that a report was in circulation that plaintiff had committed 
 a felony, it was held to be a material variance, and leave to amend was refused. 
 (Pearse v. Rogers, 2 Fost. & F. 137.)
 
 CHAPTEE XVI. 
 
 EVIDENCE FOR PLAINTIFF. 
 
 Proof of publication ; of oral publication ; of publication 
 in writing ; of defendants liability — Opinion of wit- 
 nesses as to meaning — Proof of inducement ; of plaint- 
 iff s good reputation ; of malice; to aggravate damages 
 — Falsehood not evidence of malice — Other publications 
 by defendant; subsequent publications; publication 
 after commencement of action — Defendants ill-will to 
 plaintiff — Ill-will to plaintiff of persons other than the 
 defendant — The publication itself evidence of mcdice — 
 Attempted justification an aggravation — Evidence in 
 reply. 
 
 § 373. If the publication is denied, a publication must 
 be proved, and the publication proved must be one for 
 which the defendant is responsible. On this subject, 
 much has already been said in a previous chapter (Ch. 
 vi). Whether there has been any publication by the de- 
 fendant is a question of fact for the jury, but what 
 amounts to a publication for which the defendant is 
 responsible as publisher is a question of law for the court. 
 If the facts were, that the defendant has posted up a libel 
 in a public place, but had taken it down again before any 
 one had read it, there would in point of law be no pub- 
 lication, but if it were doubtful whether before it was 
 taken down some one had not read it, that would be a 
 question of fact for the jury. 1 
 
 1 Stark. Ev. tit. Law and Fact. In those States in which a party may be wit- 
 ness in his own behalf, the plaintiff may prove the speaking by the defendant of the
 
 PROOF OF PUBLICATION". 583 
 
 § 374. The post-mark on a letter has been held prima 
 facie evidence of the publication of the letter. 1 The pro- 
 duction by the plaintiff on the trial of a letter addressed 
 to a third person held evidence of the publication of the 
 letter, without the oath of the person to whom the letter 
 is addressed. 3 Where the letter produced was addressed 
 to a person in Scotland, with the seal broken and a post- 
 mark of a place in England, where it was proved to have 
 been received and forwarded, held prima facie evidence 
 that the letter was received by the party to whom it was 
 addressed, and of its publication. 8 Where the defamatory 
 matter was contained in a letter addressed by the defend- 
 ant to the plaintiff, and there was no evidence of its pub- 
 lication, other than the production of the letter by the 
 plaintiff, it was held not sufficient ; 4 but where, in addi- 
 tion, it was shown that the letter was in the handwriting 
 of the defendant, and that he had read it aloud in the 
 presence of several persons, it was held that the letter 
 might be read to the jury. 5 The defendant had been 
 chairman of a public meeting, at which the libel in 
 question had been signed by him, and ordered by the 
 
 words complained against, although other persons than the plaintiff and defendant 
 were present at the time. (Hess v. Fockley, 25 Iowa, 9.) Where the only witness 
 to prove an oral publication was a German, the court refused to disturb a verdict for 
 the plaintiff on the ground that it was not shown but that the words were spoken in 
 English, which language the witness did not understand. (Hurtert v. Weines, 27 
 Mich. 134.) 
 
 1 Shipley v. Todhunter, 7 G. & P. 680; Hitchon v. Best, 1 B. & B. 299 ; Rex v. 
 Watson, 1 Camp. 215; Rex v. Johnson, 7 East, 65; Fletcher v. Braddyll, 3 Stark. 
 Cas. 64; Rex v. Williams, 2 Camp. 505; Rex v. Girdwood, East P. C. 1116. 
 
 s Callan v. Gaylord, 3 Watts, 321. A post-mark does not prove itself; how 
 proved see Abbey v. Lill, 5 Bing. 299 ; Woodcock v. Ilouldsworth, 16 M. & W. 124. 
 
 ' Warren v. Warren, 1 Cr. M. & R. 250 ; 4 Tyrw. 850 ; Stocken v. Collen, 7M.& 
 W. 515. 
 
 4 Mcintosh v. Matherly, 9 B. Monr. 119. 
 
 6 McCombs v. Tuttle, 5 Blackf. 431. See note 1, p. 142, ante. Evidence of the read- 
 ing the libel in a public place, and of comments upon it in defendant's hearing, and that 
 it was put up on handbills by persons unknown, was permitted to be proved. (Rice 
 v. Withers, 9 Wend. 138.)
 
 584 EVIDENCE FOR PLAINTIFF. [Ch. XVI. 
 
 meeting to be published : on a demurrer to evidence, an 
 affidavit of the defendant, and one of A, which the defend- 
 ant in his own affidavit referred to as correct, stating that 
 the address was ordered to be published, and admitting 
 and justifying the publication, together with a copy of 
 the address annexed to the affidavits, and referred to in 
 them, were held sufficient evidence of publication. 1 
 
 § 375. Where a witness who heard the words spoken 
 immediately committed them to writing, he may, on 
 swearing that he wrote down the exact words, read 
 what he wrote in evidence. If the words were not 
 written down until some time after the witness heard 
 them, although he may not read his memorandum in 
 evidence, he may, to refresh his memory, refer to his 
 original memorandum, 2 but not to a copy of it. 3 In 
 actions of slander, witnesses cannot be allowed to 
 state the impression the words used made upon their 
 minds, but they must state positively, or as near as 
 memoiy will allow, the exact words. 4 
 
 § 376. In an action of libel against the proprietor of 
 a newspaper, a copy of the paper bought at the office, if 
 alleging on its face that it was the property of the 
 defendant, is sufficiently connected with defendant by 
 proof, and a paragraph in it is relevant to read to the jury 
 to show the circulation of the paper. 5 On a declaration 
 in slander, consisting of a single count, in which the 
 
 1 Lewis v. Few, 5 Johns. 1. 
 
 2 Sandwell v. Sandwell, Holt R. 295; Huff v. Bennett, 6 N. Y. 337. 
 s Burton v. Plummer, 2 Adol. & El. 343. 
 
 4 Teague v. Williams, 1 Ala. 844 ; Alley v. Neely, 5 Blackf. 200 ; contra, Hawks 
 v. Patton, 18 Geo. 52. Where, in an action for slander, it is important to show that 
 the charge proyed by a witness for the plaintiff had reference to a trial, it is not 
 indispensable for the witness to give the exact words of the defendant showing such 
 reference ; but if this is desired, they should he elicited on cross-examination. 
 (Douge v. Pearce, 13 Ala. 127.) 
 
 6 Fay v. Bennett, 4 Duer, 247.
 
 § 376.] PROOF OF PUBLICATION. 585 
 
 slanderous words were alleged to Lave been uttered by 
 the defendant " on the 1st day of November, 1856, and 
 on divers other days and times before the purchase of the 
 plaintiff's writ," it was held, that the plaintiff might, in 
 support of his action, prove a single uttering of the slander 
 by the defendant on any day prior to the date of the 
 writ. 1 A declaration alleged that the defendants published, 
 or caused to be published, in a certain pamphlet, a libel 
 concerning the plaintiff. From the evidence, it appeared 
 that the defendants were instrumental in procuring the 
 vote of a medical society expelling the plaintiff therefrom 
 for gross immorality. The vote was published among the 
 transactions of the society, by the regular committee of 
 publication, of which the defendants were not members. 
 Held, that the allegation in the declaration was not 
 supported. 2 That one had heard of a slanderous report 
 with regard to the plaintiff, is evidence to prove the 
 circulation of the report, but not to prove that the de- 
 fendant circulated the report. 3 
 
 Where a declaration for publishing a libel does not 
 purport to set it forth in liaec verba, and a libel correspon- 
 ing with the declaration is produced on the trial, if the 
 jury believe that the defendant published any part of the 
 libellous matter, they must find for the plaintiff. 4 It is 
 calculated to mislead the jury to refer it to them to de- 
 termine whether the defendant " in substance " spoke or 
 published the words charged, without explaining the 
 meaning that the law would attach to that expression in 
 connection with the proof of the slander charged. 5 
 
 1 Rice v. Cottrell, 5 Rhode Island, 340; Norris v. Elliott, 39 Cal. 72; and as to 
 proving time of publication, see Richardson v. Roberts, 23 Geo. 215; Wright v. 
 Britton, 1 Morris, 286. 
 
 2 Barrows v. Carpenter, 1 1 Cush. 456. 
 s Schwartz v. Thomas, 2 Wash. 107. 
 
 4 Metcalf v. Williams, 3 Litt. 387. 
 * Attebury v. Powell, 29 Mis. (8 Jones) 429. 
 38
 
 586 EVIDENCE FOR PLAINTIFF. [Ch. XVI. 
 
 § 377. The words of a defamatory writing cannot be 
 proved by parol, until it has been shown that the writing 
 itself cannot be produced. 1 But if after the publication 
 the defendant obtains possession of the writing and re- 
 fuses to produce it, in that case secondary evidence of its 
 contents may be given. 2 Where, to prove the defendant 
 the author of a libel which the defendant had notice to 
 produce, A. was called, who swore he received the manu- 
 script of the libel from the defendant and returned it to 
 him. But on cross-examination the witness stated that he 
 had not delivered the manuscript to the defendant himself, 
 but had delivered it to his (the witness') own servant to 
 deliver to the defendant. A.'s servant was called, who tes- 
 tified that he delivered the manuscript to the defendant's 
 servant ; held, not sufficient to enable the prosecutor to 
 give parol evidence of the existence of the paper, nor for 
 considering the defendant as the author of the libel. 3 
 
 8 377a. There are instances of the courts having re- 
 fused to compel the production of the writing, and at the 
 same time have excluded secondary evidence of its con- 
 tents ; as, where the communication was addressed to the 
 governor of a State respecting a State officer, the court 
 held that the governor to whom it was addressed might 
 exercise his own discretion as to its production, and ex- 
 cluded parol evidence of its contents. 4 
 
 1 Simpson v. Wiley, 4 Porter, 215 ; Aspinwall v. Whitmore, 1 Root, 408; and see 
 McGrath v. Cox, 3 Up. Can. Q. B. Rep. 332. 
 
 2 "Winter v. Donovan, 8 Gill, 370; Le Merchant's case, 2 T. R. 201 ; Layer's case, 
 6 State Tr. 229. 
 
 3 Rex v. Pearce, Peake's Cases, 75. There is a presumption that one to whom a 
 message has been entrusted for delivery has delivered it. (Middleton v. Earned, 4 
 Ex. 241 ; Wells v. Webber, 2 Fost. & F. 715.) 
 
 * Gray v. Pentland. 2 S. & R. 23; 4 S. <fe R. 420 ; and see Wyatt v. Gore, Holt's 
 Cases, 299; Oliver v. Bentick, 3 Taunt. 456; Howard v. Thompson, 21 Wend. 319; 
 Beatson v. Skene, 5 Hurl. & N. 838; M'Elveney v. Conellan, 17 Ir. Com. L. R. 55. 
 Earl v. Vass, Boyd Kinnear's Dig. H. L. Cas. 226 ; 1 Shaw's App. Cas. 229 ; Home v. 
 Bentinck, 2 Brod. & B. 130. In an action for libel, pending in the Circuit Court of 
 the District of Columbia, the Hon. Edwin M. Stanton, Secretary of War, was
 
 §§ 378-9.] PROOF OF PUBLICATION. 587 
 
 § 378. Where the defamatory writing has been lost, 
 secondary evidence of its contents may be given. 1 Where 
 the libel (a song) from which the publication took place 
 was lost, a printer was allowed to produce a similar one 
 printed at the same time and which he proved corresponded 
 with the one lost. 2 Where to sustain an action of libel, 
 the proof sought to be made was, that the publication 
 was by an affidavit, made by the defendant before a 
 magistrate, imputing to the plaintiff the offense of hog- 
 stealing, and the only evidence of the existence of the 
 affidavit was an imperfect memorandum of it, in the 
 handwriting of the magistrate, who was alive and out of 
 the State, and there was no sufficient proof of its being, 
 in whole or in part, a copy ; it was held, that the evidence 
 was not sufficient to sustain the action. 3 
 
 § 379. In an action against the proprietor of a news- 
 
 summoned as a witness to produce an original letter addressed to the former 
 Assistant Secretary of "War, Dana, which letter contained the matter alleged to be 
 libellous. Mr. Stanton put in au affidavit respectfully submitting his objections to 
 the production of the paper in question, and asking to be discharged from further 
 attendance. The affidavit bore the following indorsement: Sir: Letters on file with 
 the Heads of Departments are privileged communications. Unless their publication 
 has been authorized, no copies should be taken at private request, and the production 
 of the original cannot be compelled in a suit between individuals. It has been ruled 
 that such communications cannot be made the foundation of an action for libel. 
 Then I think the head of a department is bound not to produce a paper on file in his 
 office. Such a letter as you describe is a privileged communication. (Signed.) J. 
 Speed, Attorney -General." And in an action for libel, it was held that a member of 
 Parliament could not he examined as to what was said by the plaintiff in the course 
 of a debate in Parliament. (Plunkett v. Cobbett, 5 Esp. 136.) The plaintiff having 
 failed in his application to the Senate for the removal of the injunction of secrecy, the 
 testimony of a Senator was admitted to prove that plaintiff's nomination had been 
 rejected by the. Senate. (Law v. Scott, 5 liar. & J. 438.) It has been held to be 
 optional on the part of counsel whether he will disclose what passed in court on his 
 making a motion. (Curry v. Walter, 1 Esp. 456.) And held that a letter to the 
 Chief Secretary of the Post-Master-General, is not privileged from disclosure in court 
 on the ground that it is an official communication to a public officer. (Blake v. 
 Pilfold, 1 Moo. v. Rob. 198.) 
 
 1 Gates v. Bowker, 18 Verm. (3 Washb.) 23 ; Weir v. lloss, 6 Ala. 881. 
 
 2 Johnson v. Hudson, 7 Ad. & Ell. 233, n. 
 8 Sanders v. Rollinson, 2 Strobh. 447.
 
 588 EVIDENCE FOR PLAINTIFF. [Ch. XVI. 
 
 paper for a libel contained in it, proof that the paper 
 came from the defendant's office, and was one copy of an 
 edition of the same date, and alleging on its face that he 
 is the proprietor, is proof of a publication by him ; - 1 and 
 so in such an action, testimony by a subscriber for the 
 paper, upon beirig shown the number of the paper con- 
 taining the article in question, that it was in all respects 
 similar to the paper left at his office, and that he had read 
 the article contained in the paper produced in the one left 
 at his office, is sufficient proof of publication, without 
 producing the paper left at his office. 2 And where a 
 witness swore that he was a printer, and had been in the 
 office of the defendant when a certain paper was printed, 
 and he saw it printed there, and the paper produced by 
 the plaintiff was, he believed, printed with the types used 
 in the defendant's office ; held that this was prima facie 
 evidence of the publication by the defendant. 8 The wit- 
 ness in this case might have refused to testify on the 
 ground that he inculpated himself, 4 but as he did not 
 claim his privilege, his testimony was properly received ; 
 and so it was held in the case of a witness who had 
 written the defamatory matter at the request of the 
 defendant. 5 
 
 § 380. Proof that the defendant gave a bond to the 
 stamp-office for the duties on the advertisements in a 
 
 1 The State v. Jeandell, 5 Harring. 475 ; Fry v. Bennett, 4 Duer, 247. 
 4 Huff v. Bennett, 4 Sandf. 120; and see Commonwealth v. Blanding, 3 Pick. 
 304. 
 
 3 Southwick v. Stevens, 10 Johns. 442; McCorkle v. Burns, 5 Binney, 340. 
 
 4 Moloney v. Bartley, 3 Camp. 210; ante, § 270. Where a defendant is subpoenaed 
 as witness for the plaintiff, he cannot object to being sworn, on the ground that any 
 relevant questions put to him would tend to criminate himself, the plaintiff has a 
 right to have him sworn, and defendant must answer the questions put to him, or ob- 
 ject, as any other witness, to any question that would criminate him. (Boyle v. "Wise- 
 man, 10 Ex. 647.) As to interrogatory to defendant inquiring if he wrote the alleged 
 libel, see Inman v. Jenkins, Law Rep. V, 738, C. P. 
 
 6 Schenck v. Schenck, 1 Spencer, 208.
 
 § 381.] defendant's liability. 589 
 
 newspaper, under the statute 29 George III, ch. 50, and 
 that he had occasionally applied at the stamp-office 
 respecting the duties, was held to be sufficient evidence 
 of his being the publisher of such newspaper. 1 And the 
 production of a certified copy of the affidavit required by 
 the statute 38 George III, ch. 78, with a newspaper con- 
 taining the libel, corresponding with the paper described 
 in the affidavit ; held to be sufficient evidence of publica- 
 tion by the defendant. 2 Where, in an action for libel in 
 a newspaper, the one put in had the place of publication 
 " at the corner of Charles street and Hadfield street, in 
 the parish of M.," the certificate of the stamp-office 
 declaration was at " No. 23 Charles street," in the parish, 
 &c. ; held sufficiently to identify the newspaper as pub- 
 lished by the declarant, within the 6th and 7th William 
 IV, ch. 76. 3 
 
 § 381. The publication of a libel in a newspaper may 
 be proved by producing the copy of the newspaj)er filed 
 in the office of the commissioner of stamps, 4 or by pro- 
 ducing a copy filed in the office of publication of such 
 newspaper. 5 On the trial of an action for a libel in a 
 newspaper, a witness stated that he was president of a 
 literary institution having eighty members; that about 
 the date of the paper proved, one was brought (he could 
 
 1 Rex v. Topham, 4 T. R. 126. Distributing newspapers containing defamatory 
 matter and receiving pay for them through an agent, is sufficient evidence of publi- 
 cation by defendant. (The State v. Davis, 3 Yeates, 128.) 
 
 a Mayne v. Fletcher, 9 B. & Or. 382 ; Rex v. Hunt, 9 B. & Cr. 382n. ; Rex v. Hart, 
 10 East, 94. 
 
 3 Baker v. Wilkinson, 1 Carr. & M. 399 ; Rex v. Donnison, 4 B. & Ad. 698. 
 
 * Cook v. Ward, 6 Bing. 409. 
 
 5 Rex v. Pearce, Peake's Cas. 75. A witness may testify to the contents of a paper 
 not produced, it being a printed one, always issued in the same form. (Butler v. 
 Maples, 9 Wall. 766.) To prove the publication in a newspaper, it is not necessary 
 to produce a copy actually published ; it is sufficient to produce a copy, and prove 
 that papers of the same kind were published. (Simmons v. Holster, 13 Min. 249.) 
 Against a person not connected with the paper, mere proof of the publication of the 
 paper not sufficient. (Id.)
 
 590 EVIDENCE FOR PLAINTIFF. [Cll. XVI. 
 
 not say by whom) to the reading-room of the institution, 
 and left there gratuitously ; that, a fortnight after, it was 
 taken away without his authority, and never returned; 
 that he had searched for it and could not find it, and 
 believed it to be lost or destroyed ; that the title of it 
 was the same as that proved, and, as far as he could judge 
 from a glance at it, such paper contained the libel in ques- 
 tion, and he believed it was a copy of that paper. He 
 was not cross-examined. Held, first, that secondary evi- 
 dence of the contents of the copy was properly admitted ; 
 secondly, that there was evidence for the jury that the 
 paper so sent to the institution was a copy of that which 
 contained the libel ; thirdly, that, though sent by a person 
 unknown, it was evidence against the defendant, not to 
 show malice, but to affect the damages, by showing the 
 extent of circulation. 1 But where a defendant alleged, 
 in mitigation, that a libellous book was published 
 against him by plaintiff, and in support of such allegation 
 a bookseller produced, from his own possession, a printed 
 book, stating his belief that it is one of a number of copies 
 published at his shop ; held, that this was not evidence 
 for the jury that another book with the same contents was 
 actually published. 2 
 
 § 382. Where a person has admitted that he was the 
 author of a libel in a certain newspaper, any other news- 
 paper of the same impression may be read to the jury, 
 and is not secondary evidence. 3 A newspaper may be 
 read in evidence although not stamped. 4 To prove the 
 publication of a libellous pamphlet, a witness testified 
 that she received from the defendant a copy of a pamphlet, 
 
 1 Gathercole v. Miall, 15 M. & W. 319, 15 Law Jour. Rep. 179, Ex. ; 10 Jurist, 
 337; 7 Law Times, 89. 
 
 2 Watts v. Fraser, 7 Ad. & E. 223 ; 1 Mo. & Rob. 449 ; Moore v. Oastler, 1 Mo. <fe 
 Rob. 451, n. 
 
 8 McLaughlin v. Russell, 17 Ohio, 475 ; W.oodburn v. Miller, Cheves, 194. 
 4 Rex v. Pearce, Peake's Cas. 75; 1 Esp. 456.
 
 § 382.] defendant's liability. 591 
 
 of which she read some portions, and lent it to several 
 persons in succession, who returned it to her, and although 
 there was no mark by which she could identify it, she 
 believed the copy produced to be the same, but could not 
 swear that it was ; held, that this was evidence of publi- 
 cation proper to be left to the jury. 1 Where several 
 copies of a placard are printed, and a party adopts and 
 uses some of the copies, all the rest are duplicate originals, 
 and one of them may be read against such party, without 
 notice to produce. 2 But placards in the windows of third 
 persons, setting forth the forthcoming contents of the 
 newspaper in which the libel was contained ; held, inad- 
 missible against the author, unless he were connected 
 with the publication of them. 3 If the manuscript of a 
 libel be proved to be in the handwriting of the defendant, 
 and the libel be also proved to have been printed and 
 published, this is evidence to go to the jury that it was 
 published by the defendant, although there be no evi- 
 dence given to show that the printing and publication 
 were by his direction. 4 And as handwritings may be 
 compared, in an action for libel, if the testimony is cor- 
 roborated from other sources, 5 papers in the handwriting 
 of the defendant, found in the house of the editor of the 
 newspaper in which the libel was published, were held 
 admissible to prove the publication by the defendant. 6 
 
 'Fryer v. Gathercole, 18 Law Jour. 38*1, Ex.; 13 Jurist, 542 ; 13 Law Times, 
 285. 
 
 2 Rex v. Watson, 2 Stark. Rep. 190. See Reg. v. Boucher, 1 Fost. & F. 486. 
 
 3 Raikes v. Richards, 2 Car. & P. 562. 
 * Reg. v. Lovett, 9 Car. & P. 462. 
 
 'Cullan v. Gayiord, 3 "Watts, 321; Waddington v. Cousins, 7 Car. & P. 595; see 
 Rex v. Cator, 4 Esp. 117; Case of the Seven Bishops, 4 State Tr. 338. 
 
 6 Tarpley v. Blabey, 2 Bing. N. S. 437 ; 2 Sc. 642; 7 Car. & P. 395 ; May v. Brown, 
 3 B. tfe Or. 113; Finnerty v. Tipper, 2 Camp. 72; Wakley v. Johnson, 1 Ry. AM. 
 422; Stark. Sland. 429, 3 Ed. In an action for services in preparing reports for a 
 newspaper, the authorship being in question, it is not competent to ask the opinion of 
 a witness (founded merely on his haviwg read the articles and professing aknowlcdge 
 of the plaintiff's style of writing) as to whether the reports were written by the plain- 
 tiff. (Lee v. Bennett, How. Ct. of App. Cas. 202.)
 
 592 EVIDENCE FOR PLAINTIFF. [Cll. XVI. 
 
 § 383. The defendant's liability as publisher may be 
 proved by showing : a copy of the alleged libel in the 
 defendant's handwriting, 1 addressed to the editor of a 
 newspaper ; 2 or by showing that defendant paid the 
 printer or publisher of a newspaper for the insertion of 
 the defamatory matter in the newspaper of such printer 
 or publisher ; 3 or by showing the defendant's admission 
 of authorship. 4 "Where the defendant admitted that he 
 was the author of the alleged libel, errors excepted, held 
 that the burden was on him to show that the errors were 
 material. 5 The fact that the defendant made the publica- 
 tion to the witness under an injunction of secresy, is no 
 objection to the proof of the publication by such wit- 
 ness. 6 
 
 § 384. The court and jury, and not the witnesses, are 
 to construe the words. 7 And the opinion of witnesses as 
 to the meaning of the language published is not admissible, 8 
 
 ] IfcComhs v. Tuttle, 5 Blackf. 431. 
 
 a Bond v. Douglass, 1 C. & P. 626 ; and see Burdett v. Abbott, 5 Dowl. 201. 
 
 3 Sehenck v. Schenck, 1 Spencer, 208. 
 
 4 Commonwealth v. Guild, Thatcher's Crim. Cas. 329 ; Rex v. Burdett, 4 B. & A. 
 Ill ; The Seven Bishop's Case, 4 State Trials, 304. Where the letter containing the 
 defamatory matter was sent sealed, and the writer afterwards stated, in the presence 
 of several persons, that he had got W. to write the letter for him, and he had signed 
 his own name to it, and kept a copy, and stated the contents of the letter, but without 
 producing it, or a copy of it; held, that this was a publication of the libel (Adams v. 
 Lawson, 11 Gratt. (Ya.) 250.) 
 
 6 Rex v. Hall, Str. 416. 
 
 6 McGovern v. Manifee, 1 B. Monr. 314. 
 
 7 Olmstead v. Miller, 1 Wend. 510. Where the imputation was that the plaintiff 
 was a truck master, held that the term being composed of common English words, 
 no evidence was necessary to explain its meaning, and that it was for the jury to say 
 whether under all the circumstrnces the word was used in a defamatory sense. 
 (Homer v. Taunton, 5 Hurl. & N. 661.) In Weed v. Bibbins, 32 Barb. 315, held that 
 evidence of what was generally understood by " the Cunningham affair " was im- 
 properly admitted. And see Justice v. Kirlin, 17lnd. 588; Watcher v. Quenzer, 29 
 N Y. 552; Dedway v. Powell, 4 Ky. (Bush.) 11; and ante, ch. vii. and §§ 2S1, 286. 
 
 8 Smart v. Blanchard, 42 N. Hamp. 137. Unless the words are ambiguous, and 
 their application doubtful, in which case the testimony of hearers as to how they un- 
 derstood the words is admissible. {Id. ; and" see Barton v. Holmes, 16 Iowa, 252 ;
 
 § 384.] EVIDENCE OF MEANING. 593 
 
 and, therefore, a witness cannot be asked how he under- 
 stood the words published, 1 nor be permitted to state what 
 meaning he understood the defendant to convey by the 
 words, 2 nor the impression produced on his mind by the 
 whole of the conversation. 3 The words being unambigu- 
 ous, it is not competent for a witness to say that he under- 
 stood the publisher to mean differently from the common 
 import of the words. 4 Where the language is ambiguous 
 and it is doubtful in what sense the publisher intended 
 it, the question is in what sense the hearers under- 
 stood it, for "the slander and damage consist in the 
 apprehension of the hearers." 5 The ordinary sense of 
 the words is to be taken as the sense intended by the pub- 
 lisher unless the words are explained to import something 
 different by other matter, connected therewith. Where 
 it is first shown that something has occurred in conse- 
 quence of which the words would convey a meaning 
 different to their ordinary meaning, then the witness may 
 be asked : What did you understand with reference to 
 such an expression. 6 Where the charge was, " You 
 (plaintiff) are a thief, a rogue, and a swindler," on not 
 guilty pleaded, held, that the defendant could not prove 
 circumstances not referred to and not known to the hear- 
 
 Smith v. Miles, 15 Verm. 245.) In Leonard v. Allen, 11 Cush. 241, an action for 
 slander, not by direct words, but by expressions, gestures, and intonations of voice, 
 it was held competent for witnesses who heard the expressions to state what they 
 understood the defendant to mean by them, and to whom he intended to apply them. 
 In Nelson v. Borchenius, 52 111. 236, it held that in an action for slander the testi- 
 mony of the hearers as to the sense in which they understood the words is admissible. 
 But such testimony is not conclusive upon the jury. Such testimony is admissible 
 as tending to show what meaning hearers of common understanding would and did 
 ascribe to the words. 
 
 1 Wright v. Paige, 36 Barb. 438. 
 
 a Snell v. Snow, 13 Mete. 278. 
 
 3 Harrison v. Bevington, 8 Car. & P. 708. 
 
 * Potts v. Pace, 7 Jones' Law (N. Car.), 568. 
 
 •Fleetwood?;. Curley, Hob. 267, ante, note 1, p. 177. 
 
 8 Daines v. Hartley, 3 Ex. 200
 
 594 EVIDENCE FOE PLAINTIFF. [Ch. XVI. 
 
 eis at the time the charge was made in order to qualify 
 the meaning of the terms used. 1 The plaintiff and de- 
 fendant l>eing present at a tavern where there had been a 
 raffle, defendant said, "I am surprised at R. allowing a 
 blackleg in this room." On the trial, a witness being 
 asked what he understood by " blackleg," answered, " A 
 person in the habit of cheating at cards." Held, by Pol- 
 lock, C. B., and Watson, B., that the evidence was proper; 
 and by Martin and Bramwell, BB., that it was not proper. 2 
 Nor can a witness be asked to whom he understood the 
 defamatory matter to apply. 3 Where the libel consisted 
 of a statement in a circular letter published by the secre- 
 tary of a society for the protection of trade, that " a bill 
 drawn and accepted by the plaintiff was made payable at 
 a banker's where he had no account ; " held, that as the 
 letter stated a specific fact which required no explanation, 
 a witness could not be asked what he understood by find- 
 ing a person's name in such a paper ; but the judge per- 
 mitted the question whether such statement had any other 
 meaning beyond that which was expressed on its face. 4 
 
 § 385. Material matter of inducement, if put in issue, 
 must be proved. 5 Immaterial matter of inducement may 
 be rejected as surplusage and need not be proved. Ma- 
 terial matter of inducement if not put in issue is taken as 
 
 1 Martin v. Loei, 2 Fost. & F. 654. 
 
 2 Barnett v. Allen, 3 Hurl. <fe Nor. 376 ; 1 Fost. & Fin. 235. Jury told to con- 
 sider if words had conveyed meaning of a person who had gambled so as to be liable 
 to a criminal prosecution. (Id.) Slander for the words "you are a bunter," on 
 the trial plaintiff was asked what the word bunter meant, it was objected that as 
 there was no innuendo and the word was not actionable per se, nor indeed had any 
 meaning, the question of its acquired meaning could not be gone into, and by the 
 court, that is so, there being no innuendo. (Rawlings v. Norbury, 1 Fost. <fc F. 341.) 
 
 3 Rangier v. Himmell, 37 Penn. St. R. 130 ; Eastwood v. Holmes, 1 Fost. <fe F. 347. 
 Held that a witness may say who is meant by the libel. (Smalley v. Stark, 9 Ind. 
 386.) See ante, § 97, p. 165, n., aad n. 1, p. 177. 
 
 4 Humphreys v. Miller, 4 C. & P. 7. 
 
 6 " It is still necessary under the plea of not guilty to prove the colloquium." 
 Cook on Defam. 145.
 
 § 385.] PROOF OF INDUCEMENT. 595 
 
 admitted. 1 No proof of it is necessary, and no evidence 
 respecting it is admissible. Matter of inducement is not 
 put in issue by a plea of not guilty. 2 Matter of induce- 
 ment may be proved by parol. 3 When the words are 
 actionable only by reason of their relation to extrinsic 
 facts, such facts must be proved ; as where the words were 
 charged as spoken of a constable, imputing misconduct in 
 the execution of a bench warrant, the words not being 
 actionable in themselves, it was held that the warrant 
 must be proven. 4 Where the alleged libel was concerning 
 the sale by plaintiff of certain leaden figures called " Pil- 
 grims' signs," held, the plaintiff must prove the objects 
 referred to were " commonly called Pilgrims 1 signs." 5 And 
 in an action for a libel on a constable alleged to have been 
 published concerning his conduct in the apprehension of 
 persons engaged in stealing a dead body, it was averred 
 what that conduct had been, and it was alleged that 
 plaintiff had carried the body to Surgeons' Hall, held that 
 the plaintiff must prove the inducement. 6 In an action 
 against the editor of a newspaper for a libellous publica- 
 tion, it is admissible for the plaintiff to show articles in 
 subsequent numbers of the same paper, for the purpose of 
 proving that the plaintiff was the person intended to be 
 defamed. 7 
 
 1 Fradley v. Fradley, 8 Car. & P. 572; Hearing v. Power, 10 M. &. W. 567; 
 Gwynne v. Sharpe, 1 Car. <fe Mar. 532. 
 a Gwynne v. Sharpe, 1 Car. <fe M. 532. 
 
 3 Soutbwick v. Stevens, 10 Johns. 443. 
 
 4 Kinney v. Nash, 3 N. Y. 177. Under a declaration setting out the substance of 
 the words spoken as a charge of stealing the plaintiff may prove that the words 
 spoken, although not actionable in themselves, were rendered actionable by reason of 
 certain extrinsic facts, by their referring to these facts, and by the manner in which 
 they were ased, although the declaration contains no averment that I hey wore spoken 
 with reference to any fact whatever. (Allen v. Perkins, 1 1 Pick. 869; Pond v. Hart- 
 well, id. 209.) 
 
 6 Eastwood v. Holmes, 1 Fost. & F. 3 17. 
 
 8 Teesdale v. Clement, 1 Chit. R. 003 ; but this decision arose out of the peculiar 
 form of the declaration. 
 
 7 White v. Say ward, 33 Maine, 322.
 
 59G EVIDENCE FOE PLAINTIFF. [Cll. XVI. 
 
 § 386. Pursuant to a rule already referred to (§ 315), 
 the defamatory matter, so far as it goes, is evidence of the 
 introductory averments. 1 Thus for words -spoken respect- 
 ing the plaintiff's trade ; if the words assume that, at the 
 tune they were spoken, the plaintiff was engaged in such 
 trade, there is no need of proving that fact. 2 Where it 
 was to be plainly inferred, from the general tenor of the 
 libel, that it was the object of the writer to represent the 
 plaintiff as holding a situation of trust and confidence, and 
 that he had abused it, held that it was sufficient to sustain 
 the allegation in the declaration of plaintiff's holding such 
 situation. 8 A declaration in libel stated as inducement 
 that the plaintiff was a surgeon and member of the Col- 
 lege of Surgeons, which said college had the power of ex- 
 pelling persons guilty of unprofessional conduct, and of 
 unprofessionally advertising themselves and their cures. 
 The libel was alleged to be published of and concerning 
 the plaintiff as such surgeon, and of and concerning the 
 
 1 Rutherford v. Evans, 6 Bing. 451. In this case the plaintiff declared in respect 
 of a libel upon him as " Surveyor of the New England Company ; " held sufficient for 
 him to prove employment by a company generally known by that name. 
 
 2 Hesler v. Degant, 3 Ind. 501 ; Rodebaugh v. Hollingsworth, 6 Ind. 339 ; Berry- 
 man v. Wise, 4 T. R. 366. "Where, in an action for a libel against the plaintiff, a 
 medical practitioner, of and concerning him in his said practice, no evidence was 
 offered of the plaintiff being of any regular degree, the libel stating him to be a quack, 
 and that certain persons had the misfortune to come within his doctrinal prescrip- 
 tions ; held, that if the jury considered that the libel spoke of him as a medical prac. 
 titioner, the case was not withdrawn from their consideration, although they might 
 not give the same damages as to a person proved to be a regular practitioner. (Long 
 v. Chubb, 5 C. & P. 55.) Where the declaration alleged that there were such states as 
 C. and B., that the plaintiff and one H. had been appointed minister plenipotentiary 
 and Consul General respectively from those states to this country, the libel on the face 
 of it admitted that there were such states ; and it being proved at the trial that the 
 plaintiff had been appointed such officer for the one state, and H. for the other, held 
 that the allegations were sufficiently made out. (Yrissari v. Clements, 3 Bing. 432.) 
 
 3 Bagnall v. Underwood, 11 Price, 621. In an action for a libel the defendant 
 pleaded justification, and in his plea introduced certain passages from a pamphlet 
 written by plaintiff, upon •which plea issue was joined. Held, that this was not 
 so far an adoption of the whole pamphlet as true, as to enable the plaintiff to read 
 other passages from it, to show that the defendant was the aggressor in the contro- 
 versy which led to its publication. (Kearney v. Gough, 5 Gill & Johns. 457.)
 
 § 387.] plaintiff's reputation. 597 
 
 said college and its said power. One of the libels com- 
 plained of contained a statement that the college had the 
 power of expelling its members. The second plea was 
 that the plaintiff w T as not a surgeon and member of the 
 College of Surgeons having the power of expelling per- 
 sons guilty of unprofessional conduct, and of unprofession- 
 ally advertising themselves and their cures.. Held, that 
 the traverse put in issue the power of the college to 
 expel, and that the statement in the libel itself was not 
 sufficient evidence of such power. 1 
 
 § 387. It is a much vexed question whether in an 
 action for slander or libel the plaintiff may, in aggrava- 
 tion of the damage he has sustained, introduce evidence of 
 his good reputation prior to the publication complained 
 of; on this point, as upon all the others relating to the 
 proceedings in an action, we can do no more than call 
 attention to the decisions upon the subject. Although it 
 may be true that in an action for slander or libel the repu- 
 tation of the plaintiff is in issue, it is nevertheless true 
 that, as a general rule, the reputation of the plaintiff is 
 assumed to be good until the contrary is shown (§§ 313, 
 314) ; and that, unless some blot upon the plaintiff's repu- 
 tation is set up as a mitigating circumstance, or his repu- 
 tation is otherwise assailed, he is not permitted for any 
 purpose to introduce any evidence on the subject ; thus 
 it has been held that evidence cannot be given of the 
 fairness of the plaintiff's character (reputation), even 
 where a justification is pleaded, unless attacked by the 
 defendant. 2 But held, also, that where the general issue 
 
 1 Wakley v. Henley, 18 Law Jour. Rep. 426, Ex. ; 13 Law Times, 259; 4 Ex. 53. 
 
 2 Shipman v. Burrows, 1 Hall, 399 ; Ilarcourt v. Harrison, 1 Hall, 474 ; Cornwall 
 v. Richardson. 1 Ry. & M. 305; 1 C. & Y. 106; Severance v. Hilton, 4 Foster, 117; 
 McGee v. Sodusky, 5 J. J. Marsh. 185; Inman v. Foster, 8 Wend. 602; Dame v. 
 Kenney, 5 Fost. 318; Petriev. Rose, 5 Watts & Serg 364; Ilolley v. Burgess, 9 Ala. 
 728; Harbison v. Shoak, 41 111. 142; Wright v. Shroeder, 2 Curtis, C. C. 518 ; Mar- 
 tin v. Hooker, 7 Coldw. (Tcnn.) 130; Chubb v. Gsell, 34 Penn. St. R. Ill; Miles v. 
 Van Horn, 17 Ind. 215; Harris v. Wilson, 28 Ind. 296; and see Rhodes v. James, 7
 
 598 EVIDENCE FOR PLAINTIFF. [Cll. XVI. 
 
 only is pleaded, the plaintiff may give evidence of his 
 good character. 1 In slander for the charge of perjury, 
 where the plaintiff is permitted to give evidence of his 
 character to protect himself, it is error to confine him to 
 evidence of his general character for truth and veracity. 2 
 A witness called by the plaintiff in an action of slander, 
 in support of the plaintiff's general character, stated that 
 some persons spoke veiy ill and some very well of him. 
 Held, that the plaintiff might ask the witness in what 
 particulars some people spoke against him. 3 
 
 § 388. Where the language is actionable and the pub- 
 lication does not appear to be on any occasion which ren- 
 ders it privileged, there the language is presumed to be 
 false and malicious, i. e., published without lawful excuse. 4 
 
 Ala. 574; Rector v. Smith, 11 Iowa, 302; Tibbs v. Brown, 2 Grant's Cases (Penn.) 
 39; Fleetcraft v. Jenks, 3 Whart. 158; McCabe v. Platter, 6 Blackf. 405; contra, 
 Scott v. Pebbles, 2 Sm. & M. 546; Byrket v. Monohon, 7 Blackf. 83; Adams v. Law- 
 son, 17 Gratt. 250; Shroyer v. Miller, 3 W. Vir. 158; Romayne v. Duane, 3 Wash. 
 C. C. 246. It is not competent for the plaintiff to make proof of his good character, 
 in reply to evidence of the truth of the charge. (Houghtaling v. Kilderhouse, 1 N. 
 Y. 530 ; affirming 2 Barb. 149 ; Matthews v. Huntley, 9 N. Hamp. 146 ; Springstein 
 v. Field, Anthon, 185 ; Her v. Cromer, Wright, 441 ; Stow v. Converse, 3 Conn. 325.) 
 Where the charge is such that the defendant's evidence in justification, though in- 
 sufficient to prove it, has a tendency to affect the general character of plaintiff, on 
 the subject of the charge, he may reply by evidence of general good character in that 
 particular. (Wright v. Shroeder, 2 Curtis, C. C. 54S.) 
 
 1 Williams v. Greenwade, 3 Dana, 432 ; King v. Waring, 5 Esp. Cas. 14 ; Bennett 
 v. Hyde, 6 Conn. 24; Romayne 'v. Duane, 3 Wash. C. C. 246; Sample v. Wynn, 
 Busbee Law (X. Car.) 319; Howell v. Howell, lOlred. 82; Burton v. March, 6 Jones, 
 Law (N. Car.) 409. 
 
 2 Steinman v. McWilliams, 6 Barr, 170. 
 
 3 Leonard v. Allen, 11 Cush. 241. 
 
 4 Fry v. Bennett, 5 Sandf. 54; Estes v. Antrobus, 1 Miss. 197; McKee v. Ingalls 
 4 Scam. 30; Parke v. Blackiston, 3 Harring. 373 ; Kinney v. Hosea, Id. 397; Farley 
 v. Ranck, 3 Watts & Serg, 554 ; Erwin v. Sumrow, 1 Hawks, 472 ; Dexter v. Spear, 4 
 Mason, 115 : Bodwell v. Osgood, 3 Pick. 379; Weaver v. Hendrick, 30 Miss. (9 Jones) 
 502; Roberts v. Camden, 9 East, 93; Usher v. Severance, 2 App. 9; Yates v. Reed, 
 4 Blackf. 463 ; Gilmer v. Ewbank, 13 111. 271 ; Root v. King, 7 Cow. 613; affirmed, 
 4 Wend. 113; Trabue v. Mayo, 3 Dana, 138; Byrket v. Monohon, 7 Blackf. 83; Hud- 
 son v. Garner, 22 Miss. (1 Jones) 423 ; Curtis v. Masse}', 6 Gray, 261. The jury cannot 
 infer the want of malice from the fact that the words were spoken only once, and stated 
 as a common report. (Mason v. Mason, 4 N". Hamp. 110.)
 
 § 389.] PROOF OF MALICE. 599 
 
 But where the publication is prima facie privileged, the 
 onus of proving malice in fact, i. e., that the defendant 
 was actuated by motives of personal spite or ill-will, is 
 upon the plaintiff. The existence or non-existence of this 
 intent is a question for the jury. 1 " The want of proof on 
 the part of the defendant that the slander was true, is not 
 enough (to prove malice), and the plaintiff, to maintain his 
 action, must show that the charge was false, before he can 
 ask the jury to find the slander to be malicious." 2 
 
 § 389. It is said that falsehood may be evidence of 
 malice. 3 But the mere falsity of a publication, without 
 its being shown that the publisher knew it to be false, is 
 not per se evidence of malice. Thus, where the alleged 
 libel was a complaint made by the defendant of the 
 incompetency of the plaintiff, a surveyor, who had been 
 
 1 Pattison v. Jones, 8 B. & C. 578 ; 3M.A R. 101 ; Bromage v. Prosser, 4 B. & C. 
 247 ; 6 Dow. <fc R. 296 ; Child v. Affleck, 9 B. & C. 403 ; Kelly v. Partington, 4 B. & 
 Ad. 700; 3 X. <fcM. 116 ; Toogood v. Spyring, 4 Tyrw. 582 ; 1 C. M. & R. 573 ; Kine 
 v. Sewell, 3 M, <fc W. 297 ; Wright v. Woodgate, 2 C. M. <fc R. 573 ; Tyrw. <fe G. 12 ; 
 Liddle v. Hodges, 2 Bosw. 537; Somerville v. Hawkins, 10 C. B. 583; 15 Jurist, 450. 
 The question of malice is for the jury to determine, upon all the facts and conversa- 
 tions in connection with which the words were spoken. (McKee v. Ingalls, 4 Scam. 
 30 ; Erwin v. Sumrow, 1 Hawks, 472 ; Smith v. Youmans, Riley, 88 ; Robinson v. 
 May, 2 Smith, 3 ; Roberts v. Camden, 9 East, 93 ; Coleman v. Playstead, 36 Barb. 26.) 
 Where the charge was that the conduct of plaintiff was "most disgraceful snd dis- 
 honest." The conduct of plaintiff was of an equivocal nature, and might bona fide be 
 supposed by defendant to be such as he described it, held, not of itself, evidence of 
 malice, and the court did right to order a verdict for the defendant. (Spill v. Maule, 
 Law Rep. IV. 232, Ex.) Where there is evidence from which the jury may find that 
 the defendant knew the charge to be untrue, the defendant must disprove malice. The 
 knowledge of its untruth is some evidence of malice. (Ilartwell v. Vesey, 3 Law 
 Times, N. S. 275.) In judging of the malicious character of an alleged libel, the 
 jury may take into consideration the whole publication ; and if it contains state- 
 ments concerning other persons, which are malicious, the jury may infer therefrom, 
 that what is said of the plaintiff is also malicious. (Miller v. Butler, 6 Cush. 71, and 
 see Caddy v. Barlow, 1 M. & R. 275.) 
 
 * Fowles v. Bowen, 30 N. Y. 26 ; and see Edwards v. Chandler, 14 Mich. 471 ; 
 Rogers v. Clifton, 3 B. & P. 587. 
 
 3 Fairman v. Ives, 5 B. & Aid. 645. Where part of a defamatory publication is 
 shown to be true, the falsehood of the other part may be left to the jury as evidence 
 of malice. (Blagg. v. Sturt, 10 Q. B. 897 ; 8 Law Times, 135.)
 
 600 EVIDENCE FOR PLAINTIFF. [Cll. XVI. 
 
 sent to Irini for employment, and the innuendo charged 
 that the defendant meant that the plaintiff was not a 
 competent and skilful surveyor, held, that evidence of the 
 general competency and abilities of the plaintiff was inad- 
 missible to show malice. 1 Making a statement which is 
 untrue to the knowledge of the party making it, is evi- 
 dence of malice. 2 On the trial of an action for slander, 
 the plaintiff's witnesses proved that the slanderous state- 
 ments were untrue in fact, but also that they were the 
 natural and reasonable inferences from what took place, 
 and which they professed to describe, and that the defend- 
 ant was present at the occurrence which the slanderous 
 statements referred to. The judge ruled that the occa- 
 sion was privileged, but that the plaintiff must have a 
 verdict unless the defendant proved that the statements 
 were made without malice. Held, a right direction ; the 
 presence of the defendant being some evidence that the 
 statements were made with a knowledge that they were 
 untrue. 3 To show that the defendant knew of the falsity 
 of a charge of theft published by him, the plaintiff was 
 permitted to prove that after the time when the theft was 
 alleged to have been committed by plaintiff, the defendant 
 continued upon friendly terms with plaintiff. 4 
 
 § 390. The plaintiff may prove in aggravation of the 
 damages, his rank and condition in society, 5 malice (ill-will) 
 
 1 Brine v. Bazalgette, 18 Law Jour. Rep. 348, Ex. ; Caulfield v. Whitworth, 18 Law 
 Times, N. S. 527. 
 
 2 Fountain v. Boodle, 2 Gale & D. 455 ; 5 Q. B. 5 ; Harris v. Thompson, 13 C. P. 
 333 ; Sexton v. Brock, 15 Ark. 345 ; Farley v. Ranck, 3 Watts <fe Serg. 554. 
 
 3 Hartwell v. Vesey, 9 C. B., N. S. 882 ; 3 Law Times, ]S T . S. 275. In slander, with 
 general issue only pleaded, the plaintiff cannot, in the first instance, give evidence 
 tending to prove the defendant's knowledge of the falsity of the words spoken. (Hart- 
 rauft v. Hesser, 34 Penn. St. R. 117.) 
 
 4 Burton v. March, 6 Jones Law (N. Car.) 409. 
 
 6 Tillotson v. Cheetham, 3 Johns. 56; Hosley v. Brooks, 20 111. 115 ; Larned v. 
 Buffington, 3 Mass. 546 ; Bodwell v. Swan, 3 Pick. 376 ; Howe v. Perry, 15 Pick. 506 ; 
 Smith v. Lovelace, 1 Duvall (Ky.) 215; Justice v Kerlin, 17 Ind. 588; Peltier v. 
 Mict, 50 111. 511 ; contra, see Gandy v. Humphries, 35 Ala. 617.
 
 § 390.] TO AGGRAVATE DAMAGES. 601 
 
 in defendant (§ 392, post), that defendant knew the charge 
 to be false, 1 other publications of words not actionable, 2 or 
 which are actionable, 3 if, as is said, the right of action on 
 such words is barred by the statute of limitations. 4 Sub- 
 sequent defamatory remarks upon the plaintiff 5 and after 
 the commencement of the action. 6 In slander of a physi- 
 cian in his profession, the currency of the slanderous report 
 in the place of his practice, following the utterance of the ' 
 same by the defendant, may be given in evidence, as well 
 as the effect of such report upon the professional gains of 
 the plaintiff, in aggravation of damages, without strict 
 proof connecting the current report with the slander of 
 
 1 Bullock v. Cloyes, 4 Verm. 304; Stow v. Converse, 3 Conn. 325; ante, § 389. 
 
 2 Allenswortk v. Coleman, 5 Dana, 315. Slanderous words, not laid in the decla- 
 ration, cannot be proved in aggravation of damages. (Vincent v. Dixon, 5 Ind. (Por- 
 ter), 270; Schenck v. Schenck, 1 Spencer, 208 ; Botelar v. Bell, 1 Md. 173 ; Medaugk 
 v. Wright, 27 Ind. 137.) 
 
 3 Lee v. Huson, Peake, 166; Bond v. Douglass, 7 C. & P. 626; but see Cook v. 
 Field, 3 Esp. 133. 
 
 4 Titus v. Sumner, 44 X. Y. 266 ; Breckett v. Davis, 21 Pick. 404 ; Throgmorton v. 
 Davis, 4 Blackf. 174. But words not laid in the declaration cannot be proved to 
 make the words laid actionable. (Jones v. Jones, 1 Jones Law (N. Car.) 495.) And 
 where words actionable in themselves, and not set out in the declaration, are admitted 
 in evidence to prove malice, the court must caution the jury that they are not to 
 increase the damages on account of such words. (Letton v. Young, 2 Met. (Ky.) 558 ; 
 Barrett v. Long, 8 Ir. Law Rep. 331 ; Scott v. McKinnish, 15 Ala. 662; Burson v. 
 Edwards, 1 Carter (Ind.) 164.) 
 
 6 Chubb v. Westley, 6 C. & P. 436 ; post, § 394. Where the words complained of 
 are unambiguous, held, that proof of the publication subsequently of other words of 
 the same import, is inadmissible. (Pearce v. Ormsby, 1 M. <fe Rob. 455 ; Symmons v. 
 Blake, Id. 447.) 
 
 6 Post, § 395; Barwell v. Adkins, 2 Sc. N. S. 11 ; Hesler v. Degant, 3 Ind. 501 ; 
 Williams v. Harrison, 3 Miss. 411 ; Hutch v. Potter, 2 Gilman, 75; Kean v. McLaugh- 
 lin,, 2 S. & R. 469 ; contra, McGlenery v. Keller, 3 Blackf. 488. 
 
 In an action for a libel in a weekly periodical publication, a witness was allowed 
 to prove a purchase of a copy after the action brought. (Plunkett v. Cobbct, 2 Selw. 
 N. P. 1042; 2 Esp. 136.) If a defendant, after action brought, issues a new publica- 
 tion, mingling the matter for which he has been sued with new libellous matter, he 
 cannot call upon the court tja analyze the publication, and separate what refers to the 
 former libel from the new slanderous matters it may contain, but the whole may be 
 read in evidence. (Schenck v. Schenck, 1 Spencer, 208.) As to proof of repetition 
 of the slander not being admissible to aggravate the damages, see Burson v. Edwards, 
 1 Carter (Ind.) 164; Shortley v. Miller, 1 Smith, 395; Lanter v. McEwen, 8 Blackf. 
 495 ; Forbes v. Myers, Id. 74. 
 
 39
 
 602 EVIDENCE FOE PLAXNTIFF. [Ch. XVI. 
 
 the defendant ; the fact of such connection being for the 
 jury, and not for the court to pass upon. 1 A libel charged 
 M. with kidnapping a free colored man, and referred to 
 two numbers of a newspaper which showed the transac- 
 tion in full ; Held, an aggravation of the libeP If the 
 publication was in a newspaper, the plaintiff may, to ag- 
 gravate the damages, prove the extent of the circulation 
 of that paper at the time of the publication of the alleged 
 libellous matter, and to prove this, may give a copy of the 
 defendant's paper in evidence containing a statement of 
 the amount of circulation. 3 
 
 § 391. The plaintiff, to aggravate damages, cannot 
 prove the defendant's wealth, 4 nor that it was currently 
 reported that defendant had charged the plaintiff with the 
 crime mentioned in the declaration, 3 nor that the plaintiff 
 had suffered distress of mind. 6 
 
 § 392. The plaintiff may prove express malice — i. e. y 
 ill-will or hostility on the part of the defendant towards 
 the plaintiff — either to aggravate the damages 7 or to de- 
 
 1 Rice v. Cottrell, 5 R. I. 340. In Hotchkiss v. Lothrop, 1 Johns. 286; Dole v. 
 Lyon, 10 Johns. 447, doubted if defendant being indemnified was not admissible in 
 aggravation. Semble not, as indemnity void. Ante, § 305. 
 
 2 Nash v. Benedict, 25 Wend. 645. 
 
 3 Fry v. Bennett, 28 N. Y. 330. 
 
 4 Myers v. Malcolm, 6 Hill, 292 ; Ware v. Curtledge, 24 Ala. 622 ; Palmer v. Has- 
 kins, 28 Barb. 90 ; Morris v. Barker, 4 Harring. 520 ; but see Fry v. Bennett, 4 Duer, 
 247 ; Bennett v. Hyde, 6 Conn. 24 ; Case v. Marks, 20 Conn. 248 ; Adcock v. Marsh, 
 8 Ired. 360 ; Karney v. Paisley, 13 Iowa (5 With. ) 89 ; Humphries v. Parker, 52 Maine, 
 502; Hosley v. Brooks, 20 111. 115; Harbison v. Shook, 41 111. 142; Lewis v. Chap- 
 man, 19 Barb. 252; Kunkel v. Markell, 26 Md. 391. 
 
 6 Leonard v. Allen, 11 Cush. (Mass.) 241. 
 
 8 Terwilliger v. Wands, 17 N. Y. 54 ; Wilson v. Goit, Id. 442 ; contra, Swift v. 
 Dickerman, 31 Conn. 285 ; ante, note, p. 97. 
 
 7 Fry v. Bennett, 28 K Y. 330 ; True v. Plumley, 36 Maine (1 Heath), 466 ; Saw- 
 yer v. Hopkins, 9 Shep. 268; Jellison v. Goodwin, 43 Maine, 287; 2 Greenl. Ev. 
 § 418; Spilling v. Carson, 27 Md. 175. Proof of malice in Connecticut. (Moore v. 
 Stevenson, 27 Conn. 14.) Until some of the actionable words laid have been 
 proved, evidence of the quo animo of the defendant is inadmissible. (Abrams v. Smith,. 
 8 Blackf. 95.)
 
 § 392.] proof or malice. 603 
 
 feat a defense of privileged publication. 1 To establish 
 such malice, the plaintiff may, it is held, in some cases, 
 give in evidence other publications by the defendant of 
 defamatory language concerning the plaintiff, whether it 
 be the same as or other than the language declared upon 
 if of the like import.- But the better opinion appears to 
 be, that evidence of a charge of a different nature, and at 
 a different time from that alleg-ed in the declaration, is 
 inadmissible to prove malice or for any purpose. 3 This is 
 in effect only another form of the rule that actionable 
 words not counted upon cannot be given in evidence, 4 
 unless a suit upon them is barred by the statute of liin- 
 
 1 Baboneau v. Farrell, 1 5 C. B. 360 ; 24 Law Jour. Rep. N. S. 9, C. P. ; 1 Jur. N. 
 S. 14 ; Littlejohn v. Greeley, 13 Abb. Pra. Rep. 41 ; Suydam v. Moffat, 1 Sandf. 459 ; 
 Root v. King. 4 Wend. 113; Garrett v. Dickerson, 19 Md. 418; see Holt v. Parsons, 
 23 Texas, 9. It is no objection to a recovery for the slanderous words charged, that 
 the publication of the same words has been proved against the defendant in a former 
 action between the same parties, for the purpose of proving malice. (Swift v. Dick- 
 erman, 31 Conn. 285; Campbell v. Butts, 3 N. Y. 173.) 
 
 2 Burson v. Edwards, 1 Carter (Ind.) 164; Pearson v. Le Maitre, 6 Sc. N. S. 607 ; 
 5 Man. & G. 700; Delegal v. Highley, 8 C & P. 444 ; Elliott v. Boyles, 31 Penn. St. 
 R. 65; The State v. Jeandell, 5 Harring. 475; Price v. Wall, 2 Quart. Law Jour. 63 ; 
 Cavanagh v. Austin, 42 Verm. 576 ; Johnson v. Bi'own, 57 Barb. 118. Proof may be 
 given of the publication of other words of like import. (Thompson v. Bowers, 1 Doug. 
 321; Stearns v. Cox, 17 Ohio, 590; Taylor v. Moran, 4 Mete. (Ky.) 127.) Extracts 
 from a newspaper, being separate and independent libels not declared on, may be 
 offered in evidence to prove express malice, or as showing the quo ammo ; such words 
 cannot be made the foundation of a recovery of damages for an injury the plaintiff 
 may have suffered from them, but can only affect the damages by showing the degree 
 of malice. (Van Derveer v. Sutphin, 5 Ohio (N. S.) 293; Markham v. Russell, 12 
 Allen (Mass.) 573.) 
 
 3 Howard v. Sexton, 4 N. Y. 157. Although in slander, the plaintiff, to prove the 
 animus, may show' a repetition of the words, or of such as show the same train of 
 thought, yet he cannot give in evidence other words which may be the subject of another 
 action ; held, also, that it appearing that the plaintiff had recovered in another action 
 against the defendant's son, what passed after the verdict, by way of proposal to, 
 compromise the second action, was admissible to show that it was not vexatiously pros- 
 ecuted. (Deffries v. Davies, 7 C <fe P. 112.) 
 
 * Rundell v. Butler, 7 Barb. 260 ; Mead v. Daubigny, Peake, 125 ; and see Camp- 
 bell v. Butts, 3 N. Y. 173 ; Keenholts v. Becker, 3 Denio, 346 ; Thomas v. Croswell, 7 
 Johns. 264 ; contra, Duvall v. Griffith, 2 Har. & Gil. 30 ; Scott v. McKinniah, 15 Ala. 
 662; Long v. Chubb, 5 C. & P. 55 ; Barton v. Brand, 3 Green, 2 IS ; Brittain v. Allen, 
 2Dev. 120; 3 Dev. 167.
 
 604 EVIDENCE FOR PLAINTIFF. [CL XVI. 
 
 itations, 1 and their admission, where the statute has run, 
 is opposed to principle, as it in effect restores a cause of 
 action which has been taken away by the law. 2 It seems 
 clear that a repetition by the defendant of the defamatory 
 matter complained of is admissible to prove malice in fact ; 
 and it is said that within this rule any act or language of 
 the defendant tending to show malice beyond that implied 
 by the original publication, the subject of the action, may 
 be proved. 3 
 
 § 393. In an action for libel, the defendant pleaded 
 the general issue, and also a plea under the 6th and 7th 
 Vict. c. 96, denying actual malice, and stating an apology. 
 On the trial, the plaintiff, in order to prove malice, ten- 
 dered in evidence other publications of the defendant, 
 going back above six years before the publication com- 
 plained of, held, that these publications were admissible 
 in evidence ; 4 but the court should, in such a case call 
 attention to the distance of time elapsed before the subse- 
 quent statements, and that those statements might have 
 referred to some other and subsequent matter, so as not 
 to show malice at the time of the publication complained 
 of. 5 
 
 § 394. A plaintiff may, to prove malice, give evidence 
 
 1 Innian v. Foster, 8 Wend. 602 ; Throgmorton v. Davis, 4 Blackf. 174 ; Flaming- 
 ham v. Boucher, Wright, 746 ; see, also, Lincoln v. Chrisman, 10 Leigh, 338. In 
 an action of slander for words imputing perjury, an affidavit of the defendant, on 
 which an indictment had been preferred, and which had been made so long before as 
 to be barred by the statute of limitations, charging the plaintiff with the same per- 
 jury set out in the declaration, is admissible in evidence, as proof of the repetition of 
 the same words in a different form, and with more deliberation, and to show the quo 
 animo. (Randall v, Holsenbake, 3 Hill (S. Car.) 1T5.) 
 
 2 Root v. Lowndes, 6 Hill, 518. 
 
 3 Fry v. Bennett, 28 N. Y. 328 ; Johnson v. Brown, 57 Barb, 118. Damages recov- 
 ered for previous slander may be given in evidence to show mahce. (Symmons v. 
 Blake, 1 M. & Rob. 477.) 
 
 4 Barrett v. Long, 3 Ho. of Lords Cas. 395 ; 8 Ir. Law Rep. 331. 
 
 6 Hemmings v. Gasson, 36 Law Jour. Rep. 252, Q. B. ; 1 El. B. & E. 346.
 
 § 395.] PROOF OF MALICE. 605 
 
 of a publication by the defendant made subsequently to 
 the publication declared upon, when the subsequent pub- 
 lication is of a like import with that declared upon, or 
 relating thereto, or is not actionable of itself, or explains 
 any ambiguity in the matter declared upon. 1 And in an 
 action for words imputing perjury, the plaintiff was al- 
 lowed, for the purpose of showing the quo ani?no, to give 
 in evidence an indictment subsequently preferred by the 
 defendant against him, and which was ignored. 2 But in 
 an action of slander, for charging the plaintiff with stealing 
 two beds, it was held not competent for the plaintiff, for 
 the purpose of showing malice, to prove that the defend- 
 ant subsequently entered a complaint against him, before 
 a magistrate, for stealing a lot of wood and old iron ; first, 
 because the words used in the complaint did not relate to 
 the charge which was the subject of the action; and sec- 
 ondly, because such using of the words was a proceeding 
 in a course of justice, before a magistrate having jurisdic- 
 tion of the supposed offense. 3 
 
 § 395. The plaintiff may, it seems, to prove malice, 
 give evidence of defamatory publications by the defend- 
 ant concerning him after the commencement of the action ; 
 but the authorities are conflicting. 4 In general, what oc- 
 curs after the commencement of the action is inadmissible ; 
 
 1 Pearce v. Ormsby, 1 M. & Rob. 455 ; Mix v. Woodward, 12 Conn. 262; Williams 
 v. Miner, 18 Id. 464 ; Symmons v. Blake, 1 M. & Rob. 477; Baldwin v. Soule, 6 Gray, 
 321; Shock v. McChesney, 2 Yeates, 473; Smith v. Wyman, 4 Shep. 13; Howard v. 
 Sexton, 4 N. Y. 157; Kendall v. Stone, 2 Sandf. 269; Kennedy v. Gifford, 19 Wend. 
 296 ; Miller v. Kerr, 2 McCord, 285 ; Pearson v. LeMaitre, 6 Sc. N. S. 607 ; 5 Man. & 
 G. 700 ; Chubb v. Westley, 6 C. & P. 436 ; Shrimper v. Heilman, 24 Iowa, 505 ; Rob- 
 bins v. Fletcher, 101 Mass. 115. 
 
 3 Tate v. Humphrey, 2 Camp. 73, n. 
 
 8 Watson v. Moore, 2 Cush. 133. 
 
 * Ante, note 6, p. 601 ; nowell v. Cheatem, Cooke, 247 ; Scott v. Montsinger, 2 Blackf. 
 454; Teagle v. Deboy, 8 Blackf. 134; Warne v. Chadwell, 2 Stark. 457. Slanderous 
 words, spoken since the suit was commenced, are admissible in evidence to show the 
 sense in which the words laid were spoken. (Carter v. M'Dowell, "Wright, 100; and 
 M'Donald v. Murchison, 1 Dev. 7.)
 
 606 EVIDENCE FOR PLAINTIFF. [CL XVI. 
 
 but where the words published led to the arrest of the 
 plaintiff after the commencement of his action, it was held 
 that the defendant might have excluded all evidence of 
 what took place after the commencement of the action, 
 but having consented to its admission, the jury were at 
 liberty to take it into consideration. 1 
 
 § 396. Where evidence of another or other publica- 
 tions than that declared upon is or are admitted for the 
 purpose of showing malice only, the jury should be in- 
 structed that it is admitted for that purpose alone, and 
 that they are not to give damages for other than the words 
 charged in the declaration. 2 An instruction was given to 
 the jury to the effect that a letter written by defendant 
 and given in evidence by the plaintiff, was admissible 
 only to show malice, and for no other purpose, and that 
 they had a right to award such damages to plaintiffs as 
 they thought them entitled to under all the circumstances 
 proved in the case ; held, that the caution to the jury in 
 respect to the effect of the letter was not sufficient. 3 
 
 § 397. Evidence tending to make out an admission by 
 the defendant, subsequently to the speaking of the words, 
 of a dispute existing between him and the plaintiff before 
 the speaking of the words, about a sum of money claimed 
 to be due from the defendant to the plaintiff, is admissible 
 to show express malice. 4 So to prove malice plaintiff may 
 give evidence tending to show that defendant coveted the 
 possession of plaintiff's land, and hoped by defaming him 
 to compel him to remove ; 5 but he cannot show that 
 defendant had, by promises of reward and threats of 
 
 1 Goslin v. Corry, 8 Sc. N. S. 21 ; 7 Man. & G. 343. 
 
 2 Scott v, McKinnish, 15 Ala. 662; Barrett v. Long, 8 Ir. Law Rep. 331. 
 8 Letton v. Young, 2 Mete. (Ky.) 558. 
 
 4 Simpson v. Robinson, 18 Law Jour. Rep. 73, Q. B. ; 13 Jur. 187. 
 * Morgan v. Livingston, 2 Rich. 573,
 
 §§ 398-9.] proof or malice. 607 
 
 vengeance, endeavored to prevent the attendance of 
 witnesses for plaintiff. 1 
 
 § 398. In an action of slander for charging: an infant 
 with larceny, evidence of a previous quarrel between the 
 defendant and the plaintiff's father and next friend, is 
 inadmissible to prove malice in the defendant towards the 
 plaintiff.' 2 In an action against the publisher of the 
 magazine in which the libel was published, evidence of 
 personal malice of the editor against the plaintiff was 
 held inadmissible. 3 So the refusal of the editor of a 
 newspaper to publish a retraction of the libel was held 
 not to be evidence of malice against the publisher of such 
 newspaper. 4 On the trial of an action for a libel in a 
 newspaper, it appeared that the defendant employed F. to 
 print the newspaper in question, and that S., one of F.'s 
 workmen, had set ?qi the article in the absence of the 
 defendant and of the editor of the paper, held that the 
 plaintiff could not ask a witness if he heard S. express 
 any ill-will towards the plaintiff. 5 In the same case, it 
 was held that the plaintiff might give in evidence an 
 article published in a subsequent number of the same 
 newspaper, with the defendant's knowledge and consent, 
 justifying the publication of the article complained of as 
 libellous, though such article was not published until after 
 the action was commenced. 
 
 § 399. The language itself whether oral or written, 
 may be evidence of malice, and where the occasion renders 
 the publication prima facie privileged, the jury may take 
 the language into consideration to determine the intent 
 with which the publication was made. 6 
 
 1 Eirkaldie v. Paige, 1*7 Verm. 256. 
 
 2 York v. Pease, 2 Gray, 282. 
 
 3 Robertson v. Wylde, 2 M. & Rob. 101. 
 
 * Edsall v. Brooks, 2 Robertson, 414 ; 33 How. Pra. Rep. 191. 
 
 6 Goodrich v. Stone, 11 Mete. 486. 
 
 « Wright v. Woodgate, 2 C. M. & R. 573; Tyrw. <fe G. 12; Gilpin v. Fowler, 9
 
 608 EVIDENCE FOR PLAINTIFF [Ch. XVI. 
 
 § 400. Interposing a justification which the defendant 
 either abandons or fails to prove, may be regarded as an 
 aggravation of the original wrong, and may be taken into 
 consideration by the jury in estimating damages. 1 It is 
 evidence of malice, 2 and of continued malice. 3 A justifi- 
 cation on the ground of truth was held not be an asrgrava- 
 tion of the charge, where the defendant had reason to 
 believe the charge to be true, 4 or where the plea of truth 
 was so defective that no judgment could have been entered 
 
 Ex. 615 ; Cooke v. Wildes, 5 El. & El. 328 ; Jackson v. Hopperton, 16 Com. B. N. S. 
 829 ; Spill v. Maule, Law Rep. IV. Ex. 232 ; ante § 288, and last clause of § 241, also 
 Swadling v. Tarpley, in Appendix post. Expressions in excess of what the occasion 
 requires do not constitute malice, but are merely evidence of malice. (Buckley v. 
 Kiernan, 7 Ir. C. L. 75 ; Sutton v. Plumridge. 16 Law Times, N. S. 741; Liddle v. 
 Hodges, 3 Bosw. 537; 18 N. Y. 48; Howard v. Sexton, 4 N. Y. 161 ; Fero v. Ruscoe, 
 Id. 162; Garrett v. Dickerson, 19 Md. 418; Hotchkiss v. Porter, 30 Conn. 414; 
 White v. Nicholls, 3 How. U. S. Rep. 266; The case of Tuson v. Evans, 12 Adol. & 
 El. 733, said to be overruled.) 
 
 1 Fero v. Ruscoe, 4 N. Y. 162 ; Wilson v. Robinson, 14 Law Jour. Rep. 196, Q. 
 B. ; 9 Jurist, 726 ; Lee v. Robertson, 1 Stew. 138 ; Richardson v. Roberts, 23 Geo. 
 215; Pool v. Devers, 30 Ala. 672; Updegrove v. Zimmerman, 13 Penn. St. R. (1 
 Harris), 619; Gorman v. Sutton, 32 Id. 247; Doss v. Jones, 5 How. (Miss.), 158; 
 Robinson v. Drummond, 24 Ala. 74 ; Beasley v. Meigs, 16 111. 139 ; Spencer v. 
 McMaster, Id. 405 ; Smith v. Wyrnan, 4 Shep. 13 ; contra, Murphy v. Stout, 1 Smith, 
 256; Shortley v. Miller, Id. 395; Shank v. Case, 1 Carter (Ind.), 170: Millison v. 
 Sutton, Id. 508; Starr v. Harrington, Id. 515 ; and see Swails v. Butcher, 2 Carter, 
 84; Sloan v. Petrie, 15 111. 425; Thomas v. Dunaway, 30 111. 373; Rayner v. 
 Kjnney, 14 Obio, N. S. 283; Pallet v. Sargent. 36 N. Hamp. 496; Cavanagh v. 
 Austin, 42 Verm. 576. 
 
 The judge, in addressing the jury, commented upon the fact that the defendant 
 had refused, at the trial, to make an apology and withdraw his justification, though 
 he gave no evidence in support of it, as evidence of malice. Held no misdirection. 
 (Simpson v. Robinson, 11 Law Times, 266; 18 Law Jour. Rep. 73, Q. B. ; 13 Jur. 
 187.) That the defendant procured evidence to prove the truth of his charges, and 
 then declined to plead in justification, may be properly referred to the jury on the 
 question of malice, though not on that of damages. (Bodwell v. Osgood. 3 Pick. 
 379.) The defendant endeavoring to obtain testimony of the truth of the alleged 
 defamatory matter, is not of itself evidence of malice. (Ormsby v. Douglass, 37 
 If. Y. 482.) Nor is the fact of pleading a justification, of itself, evidence of malice. 
 (Caulfield v. Whitworth, 18 Law Times, N. S. 527.) Efforts of defendant to have 
 plaintiff indicted, may be shown to aggravate damages. (Harbison v. Shook, 41 111. 
 142.) 
 
 2 Jackson v. Stetson, 15 Mass. 48; Alderman v. French, 1 Pick. 1. 
 
 3 Wilson v. Nations, 5 Yerg. 211. 
 
 4 Byrket v. Monohon, 7 Blackf. 83 ; and see Shortley v. Miller, 1 Smith, 395.
 
 § 401.] m eeply. 609 
 
 upon it, 1 or where the plea was withdrawn before the trial. 2 
 Where in an action for libel defendant pleaded not guilty 
 and a justification ; he offered no proof of the justification, 
 but gave evidence to show that the publication was made 
 under circumstances rendering it a privileged communica- 
 tion ; held, that the jury, in forming their opinion (upon 
 the first issue, whether or not the communication was 
 privileged), ought not to take into consideration the fact 
 that the justification had been pleaded and abandoned.. 3 
 
 § 401. In an action for a libel, the defendant, to justify 
 a charge made by him against the plaintiff of unfairness 
 and partiality as collector of the United States taxes, 
 proved that the plaintiff had refused to receive bills of a 
 certain bank in payment of a tax. To rebut this evidence, 
 the plaintiff offered a letter of instructions to him from 
 the commissioner of the revenue, designating the descrip- 
 tion of the bills which the plaintiff should receive. It 
 was held that such evidence was admissible as negativing 
 the charge of unfairness and partiality in the plaintiff's 
 conduct. 4 It was in the same case held that the plaintiff 
 could not repel a charge of partial and unjust conduct, 
 in the exaction of commissions not authorized by law, by 
 showing that such commissions were taken honestly, 
 through a mistaken construction of the law. 
 
 1 Braden v. "Walker, 8 Humph. 34. 
 
 8 Gilmore v. Borders, 2 How. (Miss.), 824. 
 
 8 Wilson v. Robinson, 1 Q. B. 68; 9 Jurist, 726; 14 Law Jour. N. S. 196, Q. B. 
 
 4 Stow v. Converse, 3 Conn. 325.
 
 CHAPTER XVII. 
 
 EVIDENCE FOE DEFENDANT. 
 
 What evidence is admissible depends upon what plea or an- 
 swer is interposed — What may be proved under the gen- 
 eral issue — Evidence to support a justification — Plain- 
 tiff's reputation in issue — Inquiry limited to plaintiff" 1 s 
 general reputation — And to his imputation prior to the 
 publication complained of — Truth in mitigation — Con- 
 duct of plaintiff leading to belief in truth — Report or 
 suspicion of plaintiffs guilt in mitigation — Plaintiff's 
 standing and condition in society — Prior or subsequent 
 declarations of defendant — Heat and passion — Previous 
 publications by the plaintiff — Controversies between 
 plaintiff and defendant prior to the publication — Cir- 
 cumstances not admissible in mitigation. 
 
 § 402. What evidence the defendant may give depends 
 upon what plea or answer he has interposed. 1 His proof 
 
 1 "We have already (note p. 120, ante) referred to some decisions on the proof of 
 intent, we here add some others which have come to our knowledge since the 
 previous note was written. In Smith v. Higgins, 82 Mass. (16 Gray) 251, it is said : 
 In slander the good faith of the defendant and the feelings which prompted him to 
 speak the words alleged in the declaration, being properly in issue, he is competent 
 to testify concerning them. The testimony of the defendant concerning his motive in 
 speaking the words, his belief in their truth, and the absence of ill-will or malice 
 towards the plaintiff is admissible. In White v. Tyrrell, 5 Ir. L. R. N. S. 477. the 
 defendant having written a letter, was permitted to be asked the question whether in 
 writing the letter he had the intention of provoking a challenge. In Cortland Co. v. 
 Herkimer Co., 44 N. Y. 22, the defendant as a witness was allowed to answer the 
 question, " Did you send (the pauper) from the County of Herkimer, in good faith ?" 
 In Cowdrey v. Coit, 44 N. Y. 382, held not proper to ask a witness : What would you 
 have done with the proceeds if you had effected a sale ? In Dillon v. Anderson, 43 
 N. Y. 236, the action was on contract, defense, that contract was made jointly with H. 
 who was not made a party. The contract was in writing and signed by defendant. 
 II. was named in the body of the paper as a contracting party, but it was not signed
 
 § 403.] UNDER GENERAL ISSUE. 611 
 
 must correspond with his plea. Under the common law 
 system of pleading and procedure, many matters of 
 defense might be given in evidence under the general issue 
 which now require to be specially pleaded. So, too, 
 under the common law system, mitigating circumstances 
 could not be pleaded, but were admitted in evidence 
 under the general issue ; and this is still the rule where 
 there is not any statutory provision on the subject. In 
 New York and some other States, provision is made by 
 statute allowing the defendant, in actions for slander and 
 libel, to set forth in his answer the mitigating circumstances 
 he will prove upon the trial. Some of the effects of these 
 statutory provisions have already been referred to under 
 the head of Pleading ; other effects will he noticed here- 
 after. 
 
 § 403. Under the general issue the defendant was at 
 
 by him ; on the trial, the defendant was called as a witness on his own behalf and 
 asked by his counsel, " Did you intend to make an individual contract ? " The 
 question was disallowed, and held in the court of appeals. " The testimony called 
 for was not proper. There are authorities that a witness may be asked his motive 
 or intent in doing an act. * * We think that they hold no more than this ; that 
 where the doing the act is not disputed, but is affirmed, and whether the act shall be 
 valid or invalid, hangs upon the intent with which it was done, which intent from its 
 nature would be formed and held without avowal, then he upon whom the intent 
 is charged may testify whether he secretly held such intent when he did the act. 
 Thus an insolvent assignor in trust, charged with the fraudulent intent to hinder and 
 delay creditors, may be called in support of the deed of trust, and may say, whether, 
 when he made it, he had no fraudulent purpose ; and one sued for a malicious prosecu- 
 tion, may testify that in setting on foot the legal proceedings he believed that there 
 was cause for them. And as an extreme case which we are not willing to extend, 
 one against whom the defense of usury has been set up, has been permitted to testify 
 what was the intention in stipulating for a sum reserved out of the face of a note. 
 But that an act should he held to have or not to have effect, and one party to h to 
 be bound or not, as the other party to it should, by his undisclosed purpose, have 
 determined, is warranted by no sound principle." In Robbins v. Fletcher, (101 Mass.) 
 115. An action of slander for accusing plaintiff of fornication, defendant having 
 denied, in his testimony in chief, that he spoke the words alleged, or that he had any 
 ill-will toward the plaintiff, may be asked on cross-examination whether he did not> 
 before the time when it was contended that he uttered the words sued on, have a 
 hostile feeling toward a person whom there is evidence that he spoke of as the other 
 party to the offense.
 
 612 EVIDENCE FOR DEFEND ANT. [Ch. XVII. 
 
 liberty to prove anything which destroyed the plaintiff 's 
 cause of action ; i he might disprove the fact of publication, 
 or show that the matter published was not of an injurious 
 character, or that the publication was privileged ; 2 as being 
 a fair comment on a matter of public concern ; 3 any cir- 
 cumstances which tended to disprove malice ; 4 or that 
 plaintiff procured the publication with a view to an 
 action; 5 and where the libel consisted of a report of 
 proceedings the publication of which was not privileged, 
 
 3 Barber v. Dixon, 1 Wils. 45 ; and see O'Donoghue v. McGovern, 23 Wend. 26. 
 Where the words clearly impute a felony, if the defendant do not justify, he cannot 
 show that the words related to an act which might have been innocent. (Laine v. 
 Wells, 7 Wend. 175.) 
 
 2 O'Brien v. Clements, 15 Law Jour. Rep. 285, Ex. ; 3 D. <fc L. 676. Where the 
 defense is privileged communication, it need not be specially pleaded. (Lillia v. 
 Price, 1 Nev. & P. 16 ; 5 Dowl. 432 ; Richards v. Boulton, 4 Up. Can. Q. B. Rep. 0. 
 S. 95 ; Abrams v. Smith, 8 Blackf. 95.) But it may be specially pleaded, (Dunn v. 
 Winters, 2 Humph. 512) and it seems it must be pleaded in Massachusetts. (Goodwin 
 v. Daniels, 7 Allen (Mass.), 61.) In New York it must be pleaded. In England, in 
 actions of slander of the plaintiff in his office, profession, or trade, the plea of not 
 guilty will operate to the same extent precisely as at present in denial of speaking 
 the words, of speaking them maliciously and in the sense imputed, and with reference 
 to the plaintiff's office, profession, or trade ; but it will not operate as a denial of the 
 fact of the plaintiff holding the office, or being in the profession or trade alleged. 
 (Reg. Gen. H. T., 4 Will. 4 ; 2 C. <fe M. 23 ; 10 Bing. 477 ; 3 NeV. & M. 9 ; 5 B. & 
 Adol. ix.) All matters in confession and avoidance shall be specially pleaded. (iJ.) 
 
 8 Lucan v. Smith, 20 Jur. 1170. 
 
 4 Weaver v. Hendrick, 30 Mis. (9 Jones) 502 ; Smith v. Smith, 39 Penn. St. R. 
 441 ; Sims v. Kinder, 1 Carr. 279 ; Van Deusen v. Sutphin, 5 Ohio, N. S. 293 ; Swift 
 v. Dickerman, 31 Conn. 285 ; Williams v. Miner, 18 Conn. 464; Thomas v. Dunaway. 
 30 El. 373; Brunswick v. Pepper, 2 C. <fe K. 683; Remington v. Congdon, 2 Pick. 
 310 ; Gilman v. Lowell, 8 Wend. 573. And in New York under a general denial and 
 a proper statement in the answer, any circumstance to disprove malice may be shown, 
 although it tended to prove the truth of the charge. (Bush v. Prosser, 1 1 N. Y. 347 ; 
 Bisbey v. Shaw, 12 N. Y. 67; Dolevin v. Wilder, 34 How. Pra. Rep. 488.) Where 
 there is any, the slightest doubt in the mind of the judge as to whether the facts set 
 up in mitigation tend to disprove malice, he should permit them to be proved, and 
 submit the question of malice to the jury. (Id.) 
 
 6 See ante, note 3, p. 150. In an action for slander, plea the general issue. Held, proper 
 to refuse to charge " that if the defendant did no more than repeat a report which 
 originated from the plaintiff's levity and carelessness, the plaintiff could not recover." 
 (Fitzgerald v. Stewart, 53 Penns. 343 ; see apparently contra, Shirley v. Keatly, 4 
 Cold. (Tenn.) 29.) Plaintiff's motive in bringing the action is immaterial to the 
 issue on a plea of justification. (Bradley v. Kennedy, 2 Greene, (Iowa) 231.)
 
 § 404.] PROOF OF JUSTIFICATION. 613 
 
 it was held that it might be shown under the general 
 issue and in mitigation that the report, although not 
 correct, was an honest one, and intended to be a fair 
 account of the transaction referred to. 1 The general issue 
 put in issue, the malice in making the publication, 2 and 
 amounted to a denial of the special damage,' 3 and the 
 general good reputation of the plaintiff' (§ 406), but it 
 admitted the inducement 4 and the falsity of the charge. 5 
 The defenses of accord and satisfaction, former recovery, 
 truth and illegality of plaintiff's occupation, must be 
 specially pleaded (§§ 250, 251, 354, 183, 409), to enable 
 the defendant to give evidence of them on the trial. 
 
 § 404. As to the proof of a justification, it is held 
 that, in an action for slander or libel, the charge com- 
 plained of being the commission of a criminal offense, the 
 same degree of evidence is necessaiy to sustain a plea of 
 justification as would be necessary to convict the plaintiff 
 in a criminal prosecution for the same offense. 6 At least 
 the defendant must prove the crime charged to the satis- 
 faction of the jury, 7 and beyond a reasonable doubt. 8 
 
 1 Smith v. Scott, 2 Car. & K. 580 ; and see East v. Chapman, 1 Mo. & Malk. 46 ; 
 Charlton v. Watson, 6 C. <fc P. 385. 
 
 a Keegan v. Robson, 6 Up. Can, Q. B. 375. 
 
 8 ,Wilby v. Elston, 8 C. B. 142. A traverse of special damage held unnecessary 
 and improper. (Smith v. Thomas, 2 Bing. N. C. 372 ; see Perring v. Harris, 2 Moo. 
 <fc Rob. 5 ; Custis v. Sandford, 4 Ir. C. L. 197.) 
 
 4 Fradley v. Fradley, 8 C. & P. 572 ; Power v. Heming, 10 M. &W. 564 ; Gwynne 
 v. Sharpe, 1 C. & Mar. 533. 
 
 6 Sheahan v. Collins, 20 111. 325. 
 
 6 Landis v. Shanklin, 1 Carter (Ind.) 92; Shoulty v. Miller, lb. 554; Gants v. Vi- 
 nard, lb. 476; Newbit v. Statuck, 35 Maine (5 Red.) 315; Dwinell v. Aiken, 2 Tyler, 
 75; Seely v. Blair, Wright, 683; Steinman v. Mc Williams, 6 Barr, 170; Willett v. 
 Harmer, 8 C. & P. 695; Swails v. Butcher, 2 Carter (Ind.) 84; Woodbeck v. Keller, 
 6 Cowen, 118; Forshee v. Abrams, 2 Clarke (Iowa,) 571 ; contra, Barfield v. Britt, 2 
 Jones' L. (N. Car.) 41; Gorman v. Sutton, 32 Penns. 247; Sauter v. McEwen, 8 
 Blackf. 495 ; Wonderly v. Nokes, 8 BlaCkf. 589 ; Folsom v. Brawn, 5 Foster (N. 
 Hamp.) 114; Kincade v. Bradshaw. 3 Hawks, 63. 
 
 7 Offutt v. Earlywine, 4 Blackf. 460. Evidence of plaintiffs being suspected is not 
 sufficient. (Commons v. Walters, 1 Porter, 32o ; Knight v. Foster, 39 N. II. 576.) 
 
 " Shortly v. Miller, 1 Smith, 395.
 
 614 EVIDENCE FOR DEFENDANT. [Ch. XVII. 
 
 The plea must be substantially proved, 1 or the plaintiff is 
 entitled to recover. 2 Where the charge is crime, a con- 
 viction of the plaintiff of the crime is, in general, admis- 
 sible to sustain a justification, but it is only prima facie 
 evidence, and must be excluded if the defendant was a 
 witness in the criminal prosecution. 3 A plea of justifica- 
 tion of libel, that the plaintiff had been guilty of bigamy, 
 requires as strong proof as on an indictment for that 
 offense; but a plea justifying a charge of polygamy, held 
 sustained by proof of actual marriage in two instances, 
 and of cohabitation and reputation as to a third. 4 To 
 sustain a plea of justification of a charge of perjury, the 
 testimony of two witnesses at least, or of one witness and 
 strong corroborating circumstances, are necessary. 5 And 
 the defendant must prove not only that the plaintiff's tes- 
 timony was false, but that it was wilfully and corruptly 
 false. 6 The corrupt intent, however, is inferable from the 
 falsity of the testimony. 7 To establish the justification, 
 the testimony which the plaintiff gave on the trial when 
 the alleged perjury was committed, may be received as 
 evidence to be considered by the jury. 8 Under an allega- 
 
 1 Napier v. Daniell, 3 Sc. 417; 2 Hodges, 187; 3 Bing. N. C. 77; Forrest v. Han- 
 son, 1 Cr. C. C. 63. 
 
 2 Kincade v. Bradshaw, 3 Hawks, 63. 
 
 3 Maybee v. Avery, 18 Johns. 352. This was at the time when parties could not 
 be witnesses in their own behalf in civil actions. Where they can be such witnesses, 
 probably the exception stated in the text does not apply. 
 
 4 Willett v. Harmer. 8 C. & P. 695. 
 
 8 Bradley v. Kennedy, 2 Greene (Iowa) 231 ; Steinman v. McWilliams, 6 Barr, 
 170; Byrketv. Monohon, 7 Blackf. 83; Woodbeck v. Keller, 6 Cowen, 118; Newbit 
 v. Statuck, 35 Maine (5 Red.) 31 ; Dwinells v. Aiken, 2 Tyler, 75. This rule was 
 somewhat qualified in Kincade v. Bradshaw, 3 Hawks, 63; Spruil v. Cooper, 16 Ala. 
 791. See 3 Phillips' Ev., Cowen & Hill's and Edwards' notes, tit. in index Slander. 
 
 6 McKinly v. Robb, 20 Johns. 351. That is to say he must prove technical per- 
 jury. (Hicks v. Rising, 24 111. 566; McGlenary v. Keller, 3 Blackf. 488; Gorton v. 
 Keeler, 51 Barb. 475; contra, "Wood v. Southwick, 97 Mass. 354.) 
 
 7 Hopkins v. Smith, 3 Barb. 599. 
 
 8 Newbit v. Statuck, 35 Maine (5 Red.) 315; Arrington v. Jones, 9 Port. 139. In 
 an action of slander, for charging the plaintiff with perjury in a judicial proceeding,
 
 § 405.] PROOF OF JUSTIFICATION. 615 
 
 tion in the libel that the defendant had crashed the Hy- 
 geist system of wholesale poisoning, and that several 
 vendors had been convicted of manslaughter, held, that it 
 was not necessary for the defendant to prove that the sys- 
 tem had been entirely crashed, and that proof of the con- 
 viction of two vendors for manslaughter sufficiently 
 proved the plea, although the evidence as to the death 
 being occasioned by not complying with the printed regu- 
 lations in some respects varied from the allegation, there 
 being evidence for the jury as to the cause of death. 1 
 
 § 405. Where the words laid charge the plaintiff with 
 having committed a certain offense, evidence will not be 
 received that he committed a different offense, neither 
 with the same or with other persons. 2 As where the 
 plaintiff was charged with adultery with J. S., it was held 
 that proof of adultery with others than J. S. could not be 
 received. 3 Where the plaintiff was charged with keeping 
 a house of ill-fame, it was held that evidence of unchaste 
 and lascivious conduct of the plaintiff's family, not estab- 
 lishing the offense was inadmissible for any purpose. 4 
 And where the charge was of perjury on a certain occa- 
 sion, held that defendant could not justify by proof of 
 
 the defendant, on the plea of " not guilty," may prove what the words sworn by the 
 plaintiff were, in mitigation of damages. (Grant v. Hover, 6 Munf. 13.) 
 
 1 Morrison v. Harmer, 3 Bing. N. C. 755 ; 4 Scott, 524. 
 
 a Pallet v. Sargeant, 36 N. H. 496 ; Sharpe v. Stevenson, 12 Ired. 348 ; Barthelemy 
 v. The People, 2 Hill, 257. Under a plea of justification for charging plaintiff with 
 fornication with a certain man, evidence that her child is a bastard is not sufficient. 
 (Richardson v. Roberts, 23 Geo. 215.) Where the words charged the stealing of D.'s 
 hay, and the defendant offered evidence to prove that the hay, the subject of the theft 
 so charged, was the joint property of the plaintiff and D., so that in legal effect no 
 such crime was or could have been committed, it was held, that as the charge was 
 unequivocally a charge of theft, so intended and so received, the evidence offered by 
 the defendant was inadmissible. (Williams v. Miner, 18 Conn. 464.) 
 
 3 Matthews v. Davis, 4 Bibb, 173; and see Walters v. Smoot, 11 Ired. 315. 
 
 4 Bush v. Prosser, 13 Barb. 221. On trial for words imputing unchastity to plain- 
 tiff, it is not permissible, under a plea of not guilty, to prove that the house in which 
 the plaintiff resided was a house of ill-fame. (Hackett v. Brown, 2 Heiskell (Tenn. 
 264.)
 
 616 EVIDENCE FOR DEFENDANT. [Cil. XVII. 
 
 perjury on any other occasion than that alleged. 1 To a 
 charge that plaintiff had had connexion with a mare, 
 innuendo been guilty of the crime against nature with a 
 beast, defendant gave notice that he would prove on the 
 trial that plaintiff had had connexion with a cow, and on 
 the trial offered to prove the allegation in his notice, the 
 court refused to receive it, either in bar or in mitigation, 
 on the ground that it was not a justification of the spe- 
 cific charge laid, but of another charge distinct as to the 
 subject-matter. 2 A libel charging hardness towards the 
 poor, dissoluteness of morals, and habits of vice and calum- 
 ny, as conclusions deducible from particular instances 
 enumerated and arranged in it, cannot be supported by 
 proof of other instances of conduct, not detailed or al- 
 luded to in it. 8 
 
 § 406. The "plea of not guilty put in issue the general 
 character (reputation) 4 of the plaintiff, and therefore upon 
 a plea of not guilty only, the defendant might give in evi- 
 dence in mitigation the general bad character (reputa- 
 tion) of the plaintiff, before and at the time of the publi- 
 cation complained of. " Certainly a person of disparaged 
 fame is not entitled to the same measure of damages with 
 one whose character is unblemished, and it is competent 
 to show that by evidence." 5 This "principle so much 
 
 1 Aldrich v. Brown, 1 1 Wend. 596 ; Whitaker v. Carter, 4 Ired. 461. But where 
 the charge was larceny, held that defendant might offer evidence to prove a particu- 
 lar larceny of the same description as that charged. (Adams v. Ward, 1 Stew. 42.) 
 
 2 Andrews v. Vanduzer, 11 Johns. 38. 
 
 8 Barthelemy v. The People, 2 Hill, 248. 
 
 4 As to the difference between reputation and character see ante, note, p. 80. 
 Character is conduct, it is independent of reputation. Character must be true, while 
 reputation may be false. (Seely v. Blair, Wright (Ohio,) 683.) 
 
 6 L'd Ellenborough, in v. Moore, 1 M. & S. 284. In Bracegirdle v. Bailey, 1 
 
 Fost. & F. 536, there was no plea of justification, plaintiff was put on the witness 
 stand but not examined in chief, held that defendant could not, to mitigate damages, 
 put questions to plaintiff tending to discredit him nor which went to show his bad 
 character.
 
 § 406.] plaintiff's reputation. 617 
 
 discussed at an early day and for a time left unsettled, 
 has since been so well established by authority as not 
 now to be open for discussion ; 1 and such evidence was 
 also admissible where the defendant, in addition to not 
 guilty, put in a plea of justification, and gave evidence to 
 support it but failed to establish it. 2 Whether in New 
 York such evidence would be admissible under a general 
 denial and without any circumstances in mitigation set 
 up in the answer, does not appear to have been decided 
 in any reported case. In our opinion, to entitle a defend- 
 
 1 Jewett, J., Hamer v. McFarlin, 4 Denio, 509, citing Foot v. Tracy, 1 Johns. 46; 
 Springstein v. Field, Anthon's N. P. 185; Paddock v. Salisbury, 2 Cow. 811 ; Doug- 
 lass v. Tousey, 2 Wend. 352; Root v. King, 7 Cow. 613; S. C. in error, 4 Wend. 113; 
 Richardson v. Northrup, 56 Barb. 105; and see Gilman v. Lowell, 8 Wend. 573; Scott 
 v. McKinnish, 15 Ala. 662 ; Pope v. "Welsh, 18 Ala. 631 ; Fuller v. Dean, 31 Ala. 654; 
 Anthony v. Stephens, 1 Miss. 254 ; Bryan v. Gurr, 27 Geo. 378; Eastland v. Caldwell, 
 2 Bibb, 21 ; Bowditch v. Peckham, 1 Chip. 145; Bridgman v. Hopkins, 34 Verm. 532; 
 Lamos v. Snell, 6 N. Hamp. 413 ; Sawyer v. Eifert, 2 N. & M. 511 ; Seymour v. Mor- 
 rill, 1 Root, 459 ; Vick v. Whitfield, 2 Ham. 222 ; De Witt v. Greenfield, 5 Ham. 225 ; 
 Brunson v. Lynde, 1 Root, 354 ; Wolcott v. Hull, 6 Mass. 514 ; Alderman v. French, 
 1 Pick. 1 ; Parkhurst p. Ketchum, 6 Allen, 406 ; Buford v. McLuniff, 1 N. & M. 268 ; 
 Henry v. Norwood, 4 Watts, 347; Young v. Bennett, 4 Scam. 43; Sanders v. John- 
 eon, 6 Blackf. 50 ; McCabe v. Platter, 6 Blackf. 405; Burke v. Miller, 6 Blackf. 155 ; 
 Steinman v. McWilliams, 6 Barr, 170; McNutt v. Young, 8 Leigh, 542; Stone v. Var- 
 ney, 7 Mete. 86; Bowen v. Hall, 12 Mete. 232; Sheahan v. Collins, 20 111. 325; Bell 
 v. Parke, 11 Irish Law Rep. 485. As to the rule in England, see Jones v. Stevens, 11 
 Price, 235, where it is said, it is not competent to a defendant to plead a justifica- 
 tion, as of plaintiff's general bad character, in general and indefinite terms, but he is 
 bound to state facts specially to give the plaintiff an opportunity of denying them; 
 such pleas are demurrable; and it is an abuse of the court to put them on record; 
 neither can he any more be permitted to give particular or general evidence of that 
 nature in mitigation of damages, than to plead it in bar of the action. See Morris v. 
 Lang-dale, 2 B. & P. 284. Evidence of general bad reputation of plaintiff was reject- 
 ed, there being no plea of justification. Edgar v. Newell, 24 Up. Can. Q. B. Rep. 
 215 ; Myers v. Curry, 22 Id. 470 ) In an action for slander for charging the plaintiff, 
 a female, with want of chastity, the judge directed the jury "that if they should find 
 that plaintiff had so destroyed her character by her own lewd and dissolute conduct 
 as to have sustained no injury from the words spoken, they might give only nominal 
 damages." (Flint v. Clark, 13 Conn. 361 ; and see Conroe v. Conroe, 47 Penn. St. R. 
 198.) 
 
 s Hnmer v. McFarlin, 4 Denio, 509. It was held otherwise in Jackson v. Stetson, 
 15 Mass. 48, and that case was followed in Alderman v. French, 1 Pick. 1. But 
 Jackson v. Stetson was questioned in Cilley v. Jenness, 2 N. Hamp. 89; Whitaker v. 
 Freeman, 1 Dev. 280; and see Stone v. Varney, 1 Mete. 86; 2 Stark. Ev. 878; and 
 the cases cited in the last preceding note. 
 40
 
 618 EVIDENCE FOR DEFE1STDANT. [Ch. XVII. 
 
 ant in the courts of New York to question the general 
 character of the plaintiff, he should state in his answer his 
 intention to give such evidence on the trial. 1 
 
 § 407. When an inquiry into the reputation of the 
 plaintiff is permissible, it is his general reputation taken 
 as a whole, and not his reputation as to any particular 
 act or in any particular transaction, that is to be inquired 
 of ; 2 and, therefore, evidence cannot be given of his guilt 
 of any specific act of misconduct ; 3 as that he had been 
 guilty of false-swearing. 4 Where the charge was that the 
 plaintiff, a physician, had no professional knowledge or 
 skill, and lost almost all his patients, it was held that 
 proof of particular instances in which the plaintiff had 
 shown want of knowledge and skill, for the purpose of 
 mitigating damages, was inadmissible. 5 And although it 
 has been said that when a defendant may give evidence 
 of the general bad reputation of the plaintiff, he is not 
 confined to the subject-matter of the defamation com- 
 plained of, 6 yet in an action for charging the plaintiff with 
 perjury, it was held erroneous to admit evidence of his 
 
 1 Anon., 8 How. Pra. Rep. 434 ; and see Stiles v. Comstock, 9 Id. 48. 
 
 2 Steinman v. Mc Williams, 6 Barr, 1*70; Spilling v. Curson, 27 Md. 175 ; Wright 
 v. Shroeder, 2 Curt. 548 ; Fitzgerald v. Stewart, 53 Penns. 343 ; Lambert v. Pharis, 3 
 Head (Tenn.) 622 ; Fountain v. West, 23 Iowa, 9. 
 
 3 Andrews v. Van Deuser, 11 Johns. 38; Vick v. Whitfield, 2 Ham. 222 ; Dewitt 
 v. Greenfield, 5 Ham. 225; Lamos v. Snell, 6 N. Hamp. 413; Sawyer v. Eifert, 2 N. 
 <fe M. 511 ; Burke v. Miller, 6 Blackf. 155 ; Freeman v. Price, 2 Bailey, 115 ; Ridley v. 
 Perry, 4 Shep. 21 ; Matthews v. Davis, 4 Bibb, 173 ; Brown v. Hall, 12 Met. 232; 
 Parkhurst v. Ketchum, 6 Allen, 406. 
 
 4 Luther v. Skeen, 8 Jones' Law (N". Car.) 356. 
 
 6 Swift v. Dickerman, 31 Conn. 285. And such evidence would not be admissible 
 for the purpose of showing the professional reputation of the plaintiff, as reputation 
 can only be proved by the direct testimony of those who are acquainted with it, and 
 not by particular facts. [Id.) 
 
 6 Sayre i. Sayre, 1 Dutcher, 235; Lamo3 v. Snell, 6 N. Hamp. 413; Sawyer v. 
 Eifert, 2 N. & M. 511 ; see, however, Wright v. Shroeder, 2 Curtis, C C. 548. The 
 inquiry should be confined to the plaintiff's general character for integrity and moral 
 worth, or to conduct similar in character to that with which he was charged by the 
 defendant. (Leonard v. Allen, 11 Cusb. 241.)
 
 § 407.] plaintiff's reputation. 619 
 
 general bad character for truth. 1 And where the charge 
 as proven was of burning a jail and murdering a man in 
 it, but there was some evidence that it was only of aiding 
 an escape from the jail, held, that the evidence that the 
 defendant was reputed guilty of the latter offense, was 
 inadmissible for any purpose. 2 The defendant imputed 
 to the plaintiff, who was a clergyman, these words : " Mr. 
 S. said the blood of Christ had nothing to do with our 
 salvation, more than the blood of a hog." Held, that 
 testimony tending to prove that the plaintiff denied the 
 divinity of Christ and the doctrine of his atonement, and 
 said he was a created being, a good man and perfect, his 
 death that of a martyr, but that there was no more virtue 
 in his blood than that of any creature, was not admissible, 
 either in justification or mitigation. 3 In an action of 
 slander for having called the plaintiff a thief, and saying 
 that "he had stolen his (defendant's) spar," the defend- 
 ant, in mitigation of damages, offered in evidence the 
 record of a verdict and judgment in his favor against A., 
 for having taken maliciously, and converted to his own 
 use, the spar in question, it was held that such evidence 
 was inadmissible. 4 And where the charge was that the 
 plaintiff was a thief, and had stolen the defendant's corn, 
 and the defendant justified, held that evidence that the 
 parties were tenants in common of some corn, and that 
 the defendant had taken secretly, unfairly, and dishonestly, 
 
 1 Steinman v. McWilliams, 6 Barr, 170. In an action for charging the plaintiff 
 with perjury, the plaintiff proved the speaking of the words charged, and then asked 
 the witness what was the plaintiff's general character, when on oath and when not on 
 oath, as a man of truth. The witness answered the question favorably to the plain- 
 tiff. The defendant's counsel then, in cross-examining the witness, asked him what 
 was the plaintiffs general moral character, and the plaintiff objected to the question. 
 Held, that the question ought to be answered, because it was on cross-examination, 
 and because the answer might furnish evidence in mitigation of damages. (Lincoln v. 
 Chrisman, 10 Leigh, 338.) 
 
 2 Cole v. Perry, 8 Cow. 214. 
 
 3 Skinner v. Grant, 12 Verm. 456. 
 
 4 Watson v. Churchill, 5 Day, 256.
 
 620 EVIDENCE FOR DEFENDANT. [Ch. XVII. 
 
 more than his share, was not admissible either in justifica- 
 tion or mitigation. Mistake, to mitigate, must be mistake 
 of fact and not of law. 1 
 
 § 408. The rule in relation to proof of the character 
 of the plaintiff is, that the inquiry must be made as to 
 his general reputation where he is best known, and the 
 witness ought ordinarily to come from his neighborhood. 
 But what the extent of such neighborhood is, and what 
 credit is to be given to witnesses near and remote, are 
 questions for the jury in determining the general charac- 
 ter of the person in question. 2 One who went to the 
 place of the plaintiff's former residence to learn her 
 character while there, is not competent to prove it ; nor 
 if plaintiff kept boarders at the time of the slander, is 
 evidence of their opinion admissible ; nor can one testify 
 who knows nothing about the plaintiff's reputation but 
 what he heard from witnesses at a prior circuit. 3 A jury, 
 in estimating character, are to take the testimony of 
 witnesses who are supposed to be able or capable of re- 
 flecting, in general terms, the judgment of the public. 4 
 Proof of the bad reputation of the plaintiff, although of 
 a kind that could not have been caused by the slander, 
 must be of his reputation prior to or at the time of the 
 publication complained of. 5 His bad reputation subse- 
 
 1 Bisbey v. Shaw, 15 Barb. 578. 
 
 8 Powers v. Presgroves, 38 Miss. 22*7. The reputation of the plaintiff, among the 
 minority of his neighbors, is inadmissible. (Id. ; and see Swift v. Dickerman, 31 
 Conn, 285.) In an action for accusing the plaintiff of unchasteness, where a witness 
 deposes that the plaintiff's character for chastity is bad, it is not necessary that the 
 witness should first have been asked whether he knows the plaintiff's general charac- 
 ter for chastity. (Senter v. Carr, 15 N. Hamp. 351.) A witness who has stated that 
 the plaintiffs character for moral worth is bad, may be asked, on cross-examination, 
 what immorality is imputed to him. (Leonard v. Allen, 11 Cush. 241.) 
 
 3 Douglas v. Tousey, 2 Wend. 352. 
 
 4 Luther v. Skeen, 8 Jones' Law (N. Car.), 356. 
 
 8 Douglass v. Tousey, 2 Wend. 252. Where the charge was of general unchastity, 
 it was held that under the general issue the general bad reputation of the plaintiff 
 might be shown in mitigation. (Conroe v. Conroe, 47 Penns. 198.)
 
 ■§ 409.] PEOOF OF TRUTH. 621 
 
 quent to the publication complained of, may have been 
 the effect of such publication. 
 
 § 409. The defense of truth must be specially pleaded. 
 The defendant cannot, under the general issue, prove the 
 truth of the publication complained of. 1 But if the 
 plaintiff give in evidence parts of the publication not set 
 forth in the declaration, the defendant may, under the 
 general issue, justify such parts. 2 The proof of the repe- 
 tition by the defendant of the words complained of, after 
 the commencement of the action, will not confer upon the 
 defendant the right under the general issue to give, evi- 
 dence of the truth of the matter published. 3 And under 
 the general issue the defendant cannot, even in mitigation, 
 give evidence of any facts which conduce [to prove the 
 truth, or which form a link of evidence to that end. 4 The 
 rule was that evidence in mitigation must be such as ad- 
 mitted the charge to be false. 5 And if a defendant failed 
 to establish a plea of justification, he was not entitled to 
 any benefit from the evidence given in support of such 
 plea, and which tended to prove the truth of the charge. 6 
 Nor was a defendant allowed to prove in mitigation any 
 
 1 Beardsley v. Bridgeman, 17 Iowa, 290; Porter v. Botkins, 59 Penns. 484; Mc- 
 Campbell v. Thornburgh, 3 Head (Tenn.) 109 ; Shirley v. Keathy, 4 Cold. (Tenn.) 29 ; 
 Barrows v. Carpenter, 1 Cliff. 204. Semble, that in slander of title, the rule is other- 
 wise (Watson v. Reynolds, 1 M. & M. 1.) See § 354, ante. 
 
 a Henry v. Norwood, 4 Watts, 347; and see Woodburn v. Miller, Cheves, 194; 
 Burke v. Miller, C Blackf. 155 ; Stow v. Converse, 4 Conn. 18 ; Wagner v. Holbruuner, 
 
 7 Gill. 296. 
 
 8 Teagle v. Deboy, 8 Blackf. 134. 
 
 4 Purple v. Horton, 13 Wend. 9 ; Scott v. McKinnisli, 15 Ala. 662 ; Teagle v. Deboy, 
 
 8 Blackf. 134 ; Thompson v. Bowers, 1 Doug. 321 ; Swift v. Dickerman, 31 Conn. 285 ; 
 Wagstaff v. Ashton, 1 Harring. 503 ; Grant v. Hover, 6 Mumf. 13 ; Henson v. Veatch, 
 1 Blackf. 369 ; Else v. Ferris, Anthon, 23; Gilman v. Lowell, 8 Wend. 573 ; and see 
 Owen v. McKean, 14 111. 459 ; Williams v. Miner, 18 Conn. 464 ; McAlister v. Sibley, 
 26 .Maine (12 Shep.) 474. Particular facts, which might form links in the chain of 
 circumstantial evidence against the plaintiff, cannot be received under the general issue 
 in mitigation of damages. (Wormouth v. Cramer, 3 Wend. 395.) 
 
 6 Cooper v. Barber, 24 Wend. 105. 
 • Fero v. Ruscoe, 4 N. Y. 162.
 
 622 EVIDENCE FOR DEFENDANT. [Ch. XVIL 
 
 circumstance which tended to prove the truth of the 
 charge, although he expressly disavowed a justification, 
 and admitted the falsity of the charge. 1 But he might 
 prove in mitigation circumstances which induced him 
 erroneously to make the charge complained of, and there- 
 by rebut malice, -provided the evidence did not necessarily 
 imply the truth of the charge, or tend to prove it true. 2 
 A defendant justifying, and failing in his proof, may offer 
 evidence in mitigation of damages, 3 if they are set up in 
 his answer. 4 The Code of New York has so far modified 
 these rules as to admit, in mitigation, circumstances which 
 tend to prove the truth of the charge, and to give a de- 
 fendant (who has claimed the right by his answer) the 
 benefit of evidence in support of a plea or answer of 
 justification, when such evidence falls short of proof, but 
 nevertheless tends to prove the truth of the charge ; 5 and 
 to admit in mitigation anything which occasioned the 
 
 1 Petrie v. Rose, 5 Watts <fe Serg. 364 ; Watson v. Moore, 2 Cush. 133 ; Regnier v. 
 Cabot, 2 Gilman, 34 ; Vesey v. Pike, 3 C. & P. 512. 
 
 2 Minesinger v. Kerr, 9 Barr, 312; Spilling v. Carson, 27 Md. 175. Plaintiff was 
 arrested for beating his wife, and taken before an alderman, defendant published an 
 account of the arrest, held he might show the circumstances which induced the pub- 
 lication (Donnelly v. Swain, 2 Phila. Rep. 93.) Defendant may show in mitigation 
 that he copied the matter complained against from the journals of Congress (Romayne 
 v. Duane,3 W. C C 246 ; ante, note p. 342.) 
 
 Held, in action against the publishers of a newspaper, that the defendants could 
 not show that an article similar to that complained of had shortly before been pub- 
 lished in another newspaper (Sheahan v. Collins, 20 111. 325.) In slander for saying, 
 "Negro Jude said, &c, and it is reported everywhere," evidence that the negro did 
 use the actionable words, held admissible in mitigation as showing defendant's motive 
 (Williams v. Greenwade, 3 Dana, 432.) Where a defendant utters defamatory matter 
 as on his own knowledge, evidence will not be received on the trial that the matter 
 was communicated to him by another (Elliott v. Boyles, 31 Penns. 65.) The fact of 
 the articles being copied from another paper, held a ground for giving only nominal 
 damages (Davis v. Cutbush, 1 Fost. & F. 487.) 
 
 3 Morehead v. Jones, 2 B. Munroe, 210; Landlis v. Shanklin, 1 Smith (Ind.) 78 j 
 West v. Walker, 2 Swann (Tenn.) 32 ; Thomas v. Dunaway, 30 111. 373 ; Pallett v. 
 Sergent, 36 N. Hamp. 496; contra, Shelton v. Simmons, 12 Ala. 466. 
 
 4 Russ v. Brooks, 4 E. D. Smith, 644. 
 
 *Bush v. Prosser, 11 N. Y. 347; Bisbey v. Shaw, 12 N. Y. 67. And so held in. 
 Michigan (Huson v. Dale, 19 Mich. 17.)
 
 § 410-11.] IN MITIGATION. 623 
 
 defendant, at the time of making the publication, to be- 
 lieve it to be true. 1 
 
 § 410. Whether or not the defendant may, in mitiga- 
 tion of damages, give evidence of improper conduct of the 
 plaintiff calculated to invite the language complained 
 against, and affording just ground to believe them true, 
 seems doubtful. In one case, for words impugning the 
 chastity of the plaintiff's wife, the defendant was per- 
 mitted to prove, in mitigation of damages, that the plain- 
 tiff's wife and an unmarried man had lived together 
 alone in one house. 2 
 
 § 411. It has been held in some cases that the defend" 
 ant may, in mitigation of damages, prove that prior to the 
 publication complained of, a general report or suspicion 
 existed that the plaintiff had committed the act charged. 3 
 
 1 Dolevin v. Wilder, 34 How. Pra. Rep. 488; Stanley v. Webb, 21 Barb. 148. As 
 to the rule that the defendant might show in mitigation belief in the truth not amount- 
 ing to the actual truth, see Williams v. Miner, 18 Conn. 464 ; Stees v. Kemble, 27 
 Penn. St. R. 112 ; Hutchinson v. Wheeler, 35 Verm. (6 Shaw) 330 ; Gilman v. Lowell, 
 8 Wend. 573; Gorton v. Keeler, 51 Barb. 475; Byrket v. Monohon, 7 Blackf. 83; 
 Huson v. Dale, 19 Mich. 17.) Testimony offered by the defendant to show that the 
 words charged were spoken with reference to a bill in chancery which he supposed 
 was sworn to by the plaintiff, and did contain false allegations, but which he after- 
 wards ascertained was sworn to by another, is inadmissible in mitigation of damages. 
 (Owen v. McKean, 14 111. 459 ; but see Purple v. Horton, 13 Wend. 9 ; Van Derveer 
 v. Sutphin, 5 Ohio, N. S. 293.) For the purpose of proving that the owner of a 
 building which has been set on fire has reason to believe that a particular person was 
 the incendiary, and used good faith in making statements charging him with the 
 crime, evidence that he was informed of declarations and acts of the suspected 
 person, tending to show his guilt, is competent. (Lawler v. Earle, 5 Allen (Mass.), 
 22.) 
 
 2 Reynolds v. Tucker, 6 Ohio, N. S. 516 ; and see Bradley v. Heath, 12 Pick. 163 ; 
 Haywood v. Foster, 16 Ohio, 88 , Minesinger v. Kerr, 9 Barr, 312 ; Shoulty v. Miller, 
 1 Carter (Ind.), 544; but such evidence was rejected, although the defendant also 
 proposed to show that at the time the words were uttered a public investigation was 
 going on, involving an inquiry into the plaintiff's conduct, and was a subject of 
 public remark. (Knight v. Foster, 39 N. H. 576; and see RegnieY v. Cabot, 2 Gil- 
 man, 84.) Evidence of the defendant's suspicions on the subject is inadmissible. 
 (Henson v. Veatch, 1 Blackf. 369.) 
 
 3 Wetherbee v. Marsh, 'JO N. Hamp. 561 ; Case v. Marks, 20 Conn. 248; Bridgman 
 V.Hopkins, 34 Verm. (6 Shaw) 532; Van Derveer v. SutphiD, 5 Ohio, N. S. 393 ;
 
 624 EVIDENCE FOE DEFENDANT. [Cll. XVII. 
 
 The decisions to the contrary are quite numerous. 1 "What 
 two or three persons had said in relation to plaintiff's 
 character, was held inadmissible. 2 In case for slander, im- 
 puting gross ill-treatment by the plaintiff of a female; 
 under the plea not guilty, the evidence of the plaintiff 
 showing that the words were spoken in answer to an in- 
 quiry whether he had not imputed, &c, and inquiry by 
 the plaintiff who was the author of the slander, the 
 defendant replying that he had heard of the imputation, 
 and that the report was current, and that he had reason 
 to believe it true, but refused to give up the reporter, 
 held that the defendant might show, by cross-examination, 
 that such report had in fact prevailed, and was a topic of 
 conversation before the uttering of the words by the 
 defendant. 3 In an action for a libel, the defendant, to 
 support a charge against the plaintiff of having set up and 
 supported an infidel club, offered evidence that a club to 
 which the plaintiff belonged had the general character of 
 an infidel club. It was held that such evidence was not 
 admissible, either to justify or mitigate the charge. 4 
 
 Young v. Slemons, Wright, 124; Knobel v. Fuller, Peake Ad. Cas. 139; Cook v. 
 Barkley, 1 Penn. N. J. Rep. 163; Smith v. Richardson, Bull. N. P. 9 ; Fuller v. Dean, 
 31 Ala. 654; Morris v. Barker, 4 Harring. 520; Springstein v. Field, Anthon, 185; 
 Foot v. Tracy, 1 Johns. 45 ; Henson v. Veatch, 1 Blackf, 369 ; Commons v. Walters, 
 
 I Port. 323 ; Fletcher v. Burroughs, 10 Iowa (2 With.), 557 ; and see Moyer v. Pine, 
 4 Mich. 409 ; Bradley v. Gibson, 9 Ma. 406 ; Sheehan v. Collins, 20 HI. 325. 
 
 1 Young v. Bennett, 4 Scam. 43 ; Sanders v. Johnson, 6 Blackf. 50 ; Fisher v. Pat. 
 tison, 14 Ohio, 418; Scott v. M'Kinnish, 15 Ala. 662; Anthony v. Stephens, 10 Mis. 
 254; Haskins v. Lumsden, 10 Wis. 359; Beardsley v. Bridgman, 17 Iowa, 290; 
 Alderman v. French, 1 Pick. 1 ; Bowen v. Hall, 12 Met. 232 ; Hancock v. Stephens, 
 
 II Humph. 507 ; Skinner ads. Powers, 1 Wend. 451 ; Watkin v. Hall, 9 Best. & S. 279. 
 
 In v. Moor, 1 M. & S. 284, the defendant was permitted, on cross-examination 
 
 of a witness for the plaintiff, to ask whether he had not heard reports of plaintiff being 
 guilty of offenses similar to the offense charged. See Taylor on Evidence, 315, 2d 
 edit., where the English authorities are collected, and are by the author said to pre- 
 ponderate in favor of the reception of the evidence of general suspicion in mitigation. 
 And see Wolmer v. Latimer, 1 Jurist, 19. 
 
 2 Regnier v. Cabot, 2 Gilman, 34. 
 
 3 Richards v. Richards, 2 Mo. & Rob. 567. 
 1 Stow v. Converse, 4 Conn. 17.
 
 § 412-13.] IN MITIGATION. 625 
 
 § 412. The defendant may, in mitigation of damages, 
 show the plaintiff's standing and condition in society. 1 
 
 § 413. The declaration of a defendant, made prior to 
 the publication complained of, may be given in evidence 
 to mitigate the damages ; as where the defendant had em- 
 ployed a printer to print the libel complained of, it was 
 held that he might, to show the absence of ill-will, and to 
 mitigate damages, prove that at the time of the employ- 
 ment he instructed the printer to keep the matter as 
 private as possible. 2 But declarations or acts of a defend- 
 ant, made subsequently to the publication complained of, 
 cannot be received in mitigation. 3 A full and unqualified 
 retraction of the libel complained of, is admissible in 
 mitigation. 4 
 
 1 Lamed v. Buffington, 3 Mass. 546 ; Bodwell v. Swan, 3 Pick. 376 ; Howe v. Perry, 
 15 Pick. 506. The Supreme Court of Pennsylvania held in an action of slander for 
 charging perjury, evidence of plaintiff's general character for truth was admissible 
 in mitigation. (1 Up. Can. Law Jour. N. S. 248.) 
 
 • 2 Taylor v. Church, 8 N. Y. 452 ; and see Stallings v. Newman, 26 Ala. 300 ; Hagan 
 v. Hendry, 18 Md. 177 ; Bond v. Douglass, 7 C. & P. 629 ; Vinners v. Serell, Id. 163 ; 
 Inman v. Foster, 8 Wend. 602. An injunction of secrecy upon the person to whom 
 the publication was made held not to be a defense. (McGowen v. Monifee, 7 Monr. 
 314.) It was held proper, on the trial of an indictment against the editor of a news- 
 paper for libel, to ask a witness if at the time of the publication the defendant was 
 not absent and knew nothing of the transaction. (Commonwealth v. Buckingham , 
 Thacher's Crim. Cas. 29.) 
 
 * Scott v. McKinnish, 15 Ala. 662 ; Bradford v. Edwards, 32 Ala. 628. In Yeatea 
 v. Reed, 4 Blackf. 463, it was held that defendant's efforts to prevent the circulation 
 of the libel complained of, was not receivable in mitigation. The defendant cannot, 
 to support his plea of justification, give evidence of transactions or conversations be- 
 tween himself and others, to which the plaintiff was not privy. (Jenkins v. Cocker- 
 ham, 1 Iredell, 309 ; and see Barfield v. Britt, 2 Jones' Law (N. Car.) 41.) And where 
 defendant charged plaintiff with being a thief, a rogue and a swindler, and justified 
 on the ground that plaintiff had bought goods of him, defendant, and resold them but 
 had not paid defendant for them, held that defendant could not prove these facts, they 
 not being known to the persons present when the charge was made. (Martin v. Loci, 
 2 Fost. & F. 654; and see Wakelin v. Morris, Id. 27.) 
 
 4 Hotchkiss v. Oliphant, 2 Hill, 510. But hesitation, lurking insinuation, an at- 
 tempted perversion of the import of the language of the first libel, or a substitution 
 of one calumny for another, only aggravate the offense ; and if the publisher, when 
 advised of his error, hesitate to correct it, the case rises into a case of premeditated 
 wrong, and he becomes a fit subject for exemplary punishment. (Id.) A subsequent
 
 626 EVIDENCE FOR DEFENDANT. [Ch. XVII. 
 
 § 414. The defendant may set up, in mitigation of 
 damages, that he made the publication in a moment of 
 heat and passion, induced by the immediately preceding 
 acts of the plaintiff. 1 The defendant may, therefore, in 
 mitigation, prove prior publications by the plaintiff of a 
 provoking character. 2 Acts or publications of persons 
 other than the plaintiff are not receivable in mitigation ; 
 as where the plaintiff's father, shortly before the uttering 
 of the slander, used irritating language to the defendant, 
 
 explanation and qualification of the slander is not competent evidence under a plea of 
 justification. (Luthan v. Berry, 1 Port. 110; and see Alexander v. Harris, 6 Mumf. 
 465.) Defendant's subsequent assertions of the truth of the slander is not evidence of 
 its truth. (Rice v. Withers, 9 Wend. 138.) As to the effect of a withdrawal, or re- 
 cantation, see Lamed v. Buffington, 3 Mass. 546; Brown v. Brown, 3 Ind. 518 ; 
 Alderman v. French, 1 Pick. 19; Kent v. Bonzey, 38 Maine, (3 Heath), 435; Mapes 
 v. Weeks, 4 Wend. 663 ; 6 & 7 Vict. ch. 96 ; 8 & 9 Vict. ch. 95. In Linney v. Mat- 
 ton, 13 Texas, 449, it was held that an immediate retraction of a charge made orally, 
 and in the presence of all who heard the charge, was a defense to an action founded 
 on such charge; and see Winchell v. Strong, 17 111. 59V. Where one called another 
 a rogue, in the hearing of bystanders, in a moment of irritation, and in reference to 
 his unwillingness to settle a debt due him, and no injury resulted from the words, it 
 was held not actionable. (Artieta v. Artieta, 15 La. An. 48.) In Alabama, retrac- 
 tion before suit, is, by statute, made mitigation ; see Bradford v. Edwards, 32 Ala. 
 628. 
 
 1 Dolevin v. Wilder, 34 How. Pra. Rep. 448. Defendant cannot set up any act or 
 declaration of plaintiff's in mitigation unless such act or declaration formed part of 
 the res gesta. (Richardson v. Northrup, 56 Barb. 105.) A defendant who would 
 rely upon heat of passion in mitigation of damages, must set forth the acts and lan- 
 guage of the plaintiff which he claims caused his passion. It is not sufficient 
 to allege simply that he uttered the words in heat of passion caused by plaintiff. In 
 slander, if the words were spoken through the heat of passion, or under excitement 
 produced by the immediate provocation of the plaintiff, such excitement or passion 
 may be shown in mitigation of damages; and in Iowa, without alleging them 
 specifically in the answer. (McClintock v. Crick, 4 Iowa, 453 ; and see Steever 
 v. Beehler, 1 Miles, 146; Brown v. Brooks, 3 Ind. 518; Larned v. Buffington, 3 Mass. 
 546 ; Mousler v. Harding, 38 Ind. 176. 
 
 The fact that the slanderous words were spoken in a sudden heat of passion, or 
 under great provocation, should be considered by the jury in mitigation of damages. 
 (Powers v. Presgroves, 38 Miss. 227 ; Ranger v. Goodrich, 17 Wis. 78 ; Duncan v. 
 Brown, 5 B. Monr. 186; Traphagen v. Carpenter, 1 City Hall Reporter, 55; Else v. 
 Ferris, Anthon, 23.) 
 
 a Thomas v. Dunaway, 30 111. 373 ; Wakley v. Johnson, 1 Ry. & Mo. 422. The 
 defendant may, in mitigation, give evidence that the plaintiff has been in the practice 
 of vilifying him, and that he was influenced to use the language with which 
 he is charged by the abuse of the plaintiff, and that may be shown by the defendant's
 
 § 415.] IN MITIGATION. • 627 
 
 held that that fact was inadmissible in mitigation. 1 
 Where, in an action for libel, the defendant sought to 
 give in evidence libellous publications by the plaintiff of 
 the defendant in newspapers and periodical works ; held, 
 that to make such admissible, it must be shown that they 
 came to the knowledge of the party supposed to be pro- 
 voked thereby, and that the court could not infer from 
 the mere depositing newspapers in the defendant's name, 
 as editor, at the stamp-office, under 38 Geo. IH., c. 78, 
 § 17, that they were published by, or came to the knowl- 
 edge of, the defendant. 2 
 
 § 415. All the circumstances connected with the pub- 
 lication complained of should go to the jury ; 3 and there- 
 fore, in an action for a libel, the defendant may give in 
 evidence a fanner publication by the plaintiff, to which 
 the libel was an answer, to explain the subject-matter, 
 occasion and intent of the defendant's publication, and in 
 mitigation of damages. 4 And a previous publication by 
 the plaintiff, to which the alleged libel is an answer, is 
 
 declaration. The jury is to determine whether the language which the defendant 
 used was used because of such provocation received from the plaintiff. (Botelar v. 
 Bell, 1 Md. 173.) The effect of parties publishing defamatory matter one against the 
 other should be to give nominal damages only. (Pugh v. McCarty, 40 Geo. 444 ; 
 Hibbs v. Wilkinson, 1 Fost. & F. 608 ante, p. 422, n. 3. As to provocation in miti- 
 gation, see Hackett v. Brown, 2 Heiskell (Tenn.) 264. But see cases in note 4, infra. 
 
 1 Underhill v. Taylor, 2 Barb. 348. 
 
 a Watts v. Fraser, 2 Nev. & P. 157. Always, where mitigating circumstances are 
 offered in evidence for the purpose of repelling the presumption of malice, it should 
 be shown that the defendant knew of them at the time he made the charge. (Swift 
 v. Dickerman, 31 Conn. 285 ; Dolevin v. Wilder, 34 How. Pra. Rep. 488; Reynolds 
 v. Tucker, 6 Ohio, N. S. 516.) 
 
 ' Cook v. Barkley, 1 Penn. N. J. Rep. 169. 
 
 * Hotchkiss v. Lathrop, 1 Johns. 286. A prior publication by plaintiff not 
 admissible in justification. (Id. ; Southwick v. Stevens, 10 Johns. 443.) Other 
 libels alleged to have been published by the plaintiff of the defendant, not relating to 
 the same subject, are not admissible in evidence, either in bar of the action or in miti 
 gation of damages, both on the ground that the plaintiff had no notice of such, 
 defense, as well as of the inconvenience, by leading to a multiplicity of inquiries. 
 (May v. Brown, 3 B. & Cr. 113; 4 D. <fc R. 670.) See Watts v. Eraser, 7 C. & P 
 1 Mo. & Rob. 449 ; note 1, svpra.
 
 628 EVIDENCE FOE DEFENDANT. [Ch. XVII. 
 
 admissible. The judge, before admitting or excluding it, 
 may peruse it, in order to decide upon its character. 1 And 
 all papers referred to in a libel may be admitted for the 
 purpose of explanation and interpretation. 2 A postscript 
 is admissible. 3 Prefixing a previous publication as a text 
 to the libel complained of, does not per se make such pre- 
 vious publication admissible in evidence. 4 
 
 § 416. Controversies between the plaintiff and defend- 
 ant prior to -the publication complained of, and having no 
 connection with the subject-matter of the publication, can- 
 not be shown to mitigate the damages. 5 Nor are previous 
 publications by the plaintiff concerning the defendant ad- 
 missible in mitigation, unless so immediately preceding 
 the publication by the defendant as fairly to raise the pre- 
 sumption that the defendant made the publication under 
 the impulse of the provocation. 6 The defendant may 
 show, in mitigation, that he was provoked to the publica- 
 tion complained of by some contemporaneous or nearly 
 contemporaneous act or declaration of the plaintiff. Simply 
 to show provoking acts or declarations by the plaintiff 
 prior to the publication by the defendant, is not sufficient. 7 
 
 1 Maynard v. Beardsley, 7 Wend. 560 ; 4 Wend. 336. 
 
 8 Nash v. Benedict, 25 Wend. 645 ; Mullet v. Hulton, 4 Esp. 248. 
 
 8 Coleman's Case, 2 City Hall Recorder, 49. 
 
 4 Gould v. Weed, 12 Wend. 12. A subsequent publication cannot be given in 
 evidence to determine the character of a publication, whether it is Ubellous or not. 
 Two articles, to be so used, must appear simultaneously in the same paper or book. 
 (Usher v. Severance, 2 App. 9.) 
 
 * Lester v. Wright, 2 Hill, 320. In an action of slander for words actionable in 
 themselves, claiming general damages only ; held, that, under the plea of the general 
 issue, evidence that, during the six years prior to the trial, inveterate feelings of hos- 
 tility had existed between the plaintiff and defendant, and that the plaintiff had taken 
 every opportunity to irritate the defendant, was inadmissible. (Porter v. Henderson, 
 11 Mich. 20.) 
 
 6 Maynard v. Beardsley, 7 Wend. 560; 4 Id. 336; Gould v. Weed, 12 Id. 12; 
 Child v. Homer, 13 Pick. 503 ; Walker v. Winn, 8 Mass. 248. A question to a witness, 
 as to the state of feeling between the parties, must refer to the time of the slanderous 
 speaking. (Justice v. Kirlin, IV Ind. 588.) 
 
 7 Moore v. Clay, 24 Ala. 235 ; Watts v. Fraser, 2 Nev. & P. 157; 7 Ad. & El. 223 ; 
 1 Jurist, 671 ; 1 M. & Rob. 449; Moore v. Oastler, 1 M. <fc Rob. 451, n; Bourland 
 v . Eidson, 8 Gratt. 27.
 
 § 417.] IN MITIGATION. 629 
 
 In an action for a libel, in which the plaintiff was charged 
 with being " a degraded scoundrel, liar and blackguard," 
 it was held that the defendant might be allowed to prove, 
 under the general issue, in mitigation of damages, that the 
 plaintiff, shortly prior to the publication of said libel, 
 charged the defendant with false swearing in a cause in 
 which he was a witness. 1 In an action of slander against 
 husband and wife, for words spoken by the wife, it is not 
 competent for the defendants to prove that circumstances 
 relating to the plaintiff's conduct were communicated to 
 the husband before the slanderous words were uttered. 2 
 
 § 417. The defendant cannot, to mitigate damages, give 
 evidence of his poverty ; 3 of his apparent good humor at 
 the time of speaking the words; 4 that no one believed 
 anything he said ; 5 that the defendant was not the author 
 of the slander, and that he named the author at the time 
 of the publication ; 6 that the publication did not in- 
 
 1 Davis v. Griffith, 4 Gill. & Johns. 342. 
 
 2 Petrie v. Rose, 5 Watts & Serg. 364. 
 
 3 Myers v. Malcolm, 6 Hill, 292; Palmer v. Haskins, 28 Barb. 90; and see cases 
 cited, note p. 602, n. 4, ante. 
 
 * Weaver v. Hindreck, 30 Mis. (9 Jones), 502 ; see ante, p. 434, n. 3. Defend- 
 ant being intoxicated at the time of publication, said to be a matter of mitigation 
 (Howell v. Howell, 10 Ired. 84.) 
 
 6 Howe v. Perry, 15 Pick. 506; contra, Gates v. Meredith, 7 1nd. 440. An impu- 
 tation of theft, made in the presence of one witness only, who stated that he did not 
 believe the charge, held no reason far restricting the damages to a nominal amount. 
 (Markham v. Russell, 12 Allen, 573.) The fact that the words were spoken in the 
 presence of one witness only, was held to be receivable in mitigation in Traphagen v. 
 Carpenter, 1 City Hall Reporter, 55. 
 
 6 Treat i>. Browning, 4 Conn. 408; contra, Bennett v. Bennett, 6 C. & P. 588; 
 Easterwood v. Quinn, 2 Brev. 64. But see ante, § 210. Under some circumstances, 
 the defendant may prove, in mitigation, that he derived his information from others. 
 (Kennedy v. Gregory, 1 Binn. 85 ; Galloway v. Courtney, 10 Rich. Law (S. Car.) 414; 
 but see Thompson v. Bowers, 1 Doug. 321 ; Anthony v. Stephens, 1 Mis. 254.) And 
 from whom or how he derived his information. (Leister v. Smith, 2 Root, 24) ; as 
 that the charge was taken from the journals of Congress (Romayne v. Duane, 3 Wash. 
 C. C. 246); or copied from another paper. (Davis v. Cutbush, 1 Fost. & Fin. 487.) 
 That the defendant published the libel on the communication of a correspondent, held 
 not admissible in mitigation. (Talbutt v. Clarke, 2 M. <fe Rob. 312.) Where A. pub-
 
 630 EVIDENCE FOR DEFENDANT. [Cll. XVII. 
 
 jure, 1 or that it benefited the plaintiff; 2 or that others had 
 previously published the same words ; 3 a declaration of the 
 plaintiff that the publication did him no injury ; 4 or that 
 he believed the defendant was not the author but only the 
 repeater of the slander ; 5 that plaintiff was an enemy of 
 his (defendant's) ; 6 that plaintiff is a quarrelsome person ; 7 
 or a malicious person ; 8 that plaintiff had boasted of com- 
 mitting offenses of a like character with that charged ; 9 
 that plaintiff was in the habit of abusing the defend- 
 
 lished a libel taken from a paper published by B., as an extract from a paper pub- 
 lished by C, it was held, in an action brought by C. against A., that the testimony of 
 D. that he had heard A., before he published the libel, ask E. whether he had not 
 seen it in the paper of C, and that E. answered " that he had," was inadmissible in 
 mitigation of damages ; but that E. himself should be produced, if his declaration 
 were proper evidence. (Coleman v. Southwick, 9 Johns. 45.) In an action for the 
 publication of a libel, the defendant asked a news collector, who wrote a part of the 
 article complained of, " What inquiries and examinations he made, and what sources 
 of information he applied to, before making the communication" which tended to 
 charge the plaintiff with dishonesty and bad faith ? Held, that the question was in- 
 competent, and that the defendant, as a foundation for such question, could not prove 
 that there was a general anxiety in the community in regard to the facts stated in the 
 publication. (Sheckell v. Jackson, 10 Cush. (Mass.) 25.) And see Bond v. Kendall, 
 36 Verm. 741, where it was held that the defendant could not show the libel was a 
 letter to B. containing the result of inquiries made concerning the plaintiff at request 
 of B. 
 
 1 Titus v. Sumner, 44 N. Y. 266. On the trial of an action for slander it is not 
 error to exclude a general offer by defendant to prove that plaintiffs reputation was 
 not affected by the publication. The evidence would be a mere opinion of the wit- 
 ness, and is not directed to the plaintiffs want of previous good character as affecting 
 the amount of the recovery. (Id.) 
 
 3 Calhoun v. M'Means, 1 N. & M. 422 ; Rex v. Woodfall, Lofft, 776. No man shall 
 set up his own iniquity as a defense any more than as a cause of action. (Mansfield, 
 Ch. J., Montefiori v. Montefiori, 1 W. Black. 363 ; see Stewart v. Wilkinson, 1 Law 
 Times, 81 , Fry v. Bennett, 28 N. Y. 328. 
 
 3 Saunders v. Mills, 6 Bing. 213, ante. 
 
 4 Porter v. Henderson, 11 Mich. 20. In Quigley v. Phila. <fec. R. R. Co. (21 How. 
 U. S. Rep. 209), the defendants gave evidence of declarations by the plaintiff that 
 the matters out of which the libel arose had improved his business. See Ostrom v. 
 Calkins, 5 Wend. 263 ; and ante, note 9, p. 489. 
 
 6 Evans v. Smith, 5 Monr. 363. 
 
 6 Craig v. Catlet, 5 Dana, 325. 
 
 7 Hosley v. Brooks, 20 111. 115 ; M' Alexander v. Harris, 6 Mumf. 465. 
 
 8 Forshee v. Abrams, 2 Clarke (Iowa), 572. 
 
 9 Pallet v. Sargent, 36 N. Hamp. 496.
 
 § 417.] IN MITIGATION. 631 
 
 ant ; * that plaintiff was a common libeller ; 2 that plaintiff 
 has sometimes published slander of other persons not the 
 defendant; 3 or has threatened so to do; 4 a former recov- 
 ery ; 5 that defendant declared he could prove the truth of 
 the words ; 6 or in an action for slander of husband and 
 wife, that they lived unhappily together ; 7 or kept a dis- 
 ordely house. 8 
 
 1 Goodbread v. Leadbitter, 1 Dev. & Bat. 12; Wakley v. Johnson, 1 Ry. &, M. 
 422; May v. Brown, 3 B. <fc Cr. 113; M' Alexander v. Harri3, 6 Mumf. 465; contra, 
 see Botelar v. Bell, 1 Md. 173. In a suit for slander, for charging the plaintiff with 
 perjury, the defendant cannot show that, upon a wholly different occasion, the plain- 
 tiff called him a liar and a perjured wretch. (Porter v. Henderson, 11 Mich. 20.) 
 
 a Maynard v. Beardsley, 7 Wend. 560; 4 Id. 336; Gould v. Weed, 12 Id. 12. 
 
 3 Forshee v. Abrams, 2 Clarke (Iowa) 571. 
 
 4 Cochran v. Butterfield, 18 N. Hamp. 115. 
 
 6 The defendant is not allowed to give in evidence, in mitigation of damages, a 
 former recovery of damages against him, in favor of the same plaintiff, in another 
 action for a libel, which formed one of a series of numbers published in the same 
 gazette, and containing the libellous words charged in the declaration in the second 
 suit. (Tillotson v. Cheetham, 3 Johns. 56.) The damages are not to be lessened by 
 the fact that the plaintiff has an action against other persons for publishing the same 
 language. (Harrison v. Pearce, 1 Fost. & F. 567; Frescoe v. May, 2 Id. 123.) 
 
 6 James v. Clarke, 1 Iredell, 397. 
 
 7 Anon., 1 Hill (S. Car.) 251. 
 
 8 Watson v. Moore, 2 Cush. 133.
 
 APPENDIX.
 
 APPENDIX. 
 
 King's Bench, A. D., 1821. 
 SWADLING v. TARPLEY. 
 
 Where a servant brings an action for an alleged false character given of him 
 by his late master, the latter is in general privileged, and to sustain the 
 action, malice must be proved, but this may be inferred by the jury from 
 the language used and the circumstances under which the defamatory 
 character is given. 
 
 This was an action for a libel : the defendant pleaded, 1. The 
 general issue, not guilty ; and 2. A justification of the truth of 
 the alleged libel, on which issue was joined. At the trial before 
 Gakrow, B., at the last assizes for the county of Oxford, a verdict 
 was found for the plaintiff, damages £50. 
 
 The case was this : — The plaintiff had been a nursery maid for 
 four years in the family of the defendant, a magistrate and clergy- 
 man, residing in the county of Northampton ; three months after 
 she quitted the service, a lady, to whOm she had hired herself, 
 wrote to the defendant's wife for the plaintiff's character, wishing 
 to know whether she had been found honest, sober, and steady, 
 and equal to undertake plain cooking ? To this letter the defend- 
 ant sent an answer to the following effect : 
 
 Madam, — 
 
 Mrs. Tarpley being unwell, she has requested me to answer 
 your letter. Susan Swadling lived as nursery maid in my family 
 for more than four years ; and I think it my duty to inform you 
 that she is neither honest, sober, nor steady, and that she was 
 turned away for the most gross and improper misconduct. She 
 is a most wicked and profligate woman. It is impossible for me 
 to describe the gross insolence and ingratitude shown by her to 
 Mrs. Tarpley and myself. We have undoubted proof of her 
 going to the man-servant's bed many nights for months before she 
 left us. One servant who lived with us for many years has left 
 us on her account. I am glad of an opportunity of exposing this 
 woman's character. A more vile wretch does not exist ; I know 
 her to be a liar, a great thief, and insolent beyond bearing. She
 
 636 APPENDIX. 
 
 has been guilty of a criminal intrigue with the man-servant, 
 
 David S . I wish you to read this letter to her should you 
 
 see her, and I warn you upon no account to take her into your 
 service. I am, &c. 
 
 On the part of the plaintiff, the man-servant alluded to in the 
 letter, and mentioned as the person with whom she had had an 
 improper intercourse, was examined, and he positively denied 
 that any such intercourse had ever taken place between them ; 
 and he further said, that she was a modest, discreet, and well- 
 behaved young woman. He admitted that she had been dismissed 
 for insolence ; but, on his cross-examination, nothing came out to 
 shake his testimony. On the part of the defendant, evidence was 
 offered in support of the justification pleaded. It was proved by 
 other servants in the family, that during the six months previous 
 to her being turned away, after the family had gone to bed, she 
 had several times left her own bed-room and gone to that of the 
 man-servant ; that she was watched, and next morning seen to 
 come out of his room ; that on one occasion one of the servants 
 being disturbed by the crying of a child, she went in the plaintiff's 
 room and found her absent from her bed ; and the child contin- 
 uing to cry, she was seen to return to her own room from that of 
 the man-servant's, in her night-gown, and appeared to the witness 
 to be extremely confused. Upon this part of the case expressions 
 of strong affection for the man were proved to have been uttered 
 by her repeatedly, and going, to a certain extent, to an admission 
 of a criminal amour subsisting between them. In addition to this, 
 evidence was offered affecting her character for honesty. It was 
 proved that she had stolen coffee and sugar, the property of her 
 master ; and one witness deposed to her having stolen a pair of shoes. 
 Other evidence was offered tending to show that she was a person 
 of depraved habits. On the part of the defendant it was con- 
 tended, 1. That the letter in question was privileged; 2. That 
 there should have been evidence of express malice to render it 
 actionable; and 3. That the weight of evidence was in favor of 
 the defendant, and substantially justified him in writing such a 
 letter. The learned judge summed up the whole of the case for 
 the jury, and left it for them to say whether there was anything 
 upon the face of the libel to warrant the conclusion, that the de- 
 fendant was influenced by malicious motives. If they were satis- 
 fied that the defendant was actuated by malicious motives, the
 
 APPENDIX. 637 
 
 plaintiff was entitled to a verdict, notwithstanding the privilege 
 which the law threw around a master in giving the character of a 
 servant ; and notwithstanding there were some circumstances in 
 the case which, to a certain extent, would justify a strong expres- 
 sion of opinion concerning the plaintiff's character and conduct. 
 The jury found their verdict for the plaintiff, damages £50. 
 
 G. Cross now moved for a rule to show cause why the verdict 
 should not be set aside and a new trial granted. He made two 
 points ; 1. That to sustain this action there must be evidence of 
 express malice, for that such a letter is privileged when written 
 honestly, though with heat and intemperance ; and 2d. That the 
 verdict was against the weight of evidence. He insisted that 
 there was nothing in proof to show that the defendant was influ- 
 enced by malicious motives; on the contrary, all the evidence 
 went to show that he was justified in what he had written. 
 Undoubtedly the letter was a very strong one ; but in such cases- 
 as this the court would not too nicely scan the language of a 
 master in giving the character of a servant who certainly had 
 been guilty of such conduct as that proved in evidence. The in- 
 terests of society required that an unrestrained communication 
 should be allowed in such cases; and a little unguarded warmth, 
 proceeding from an improper motive, should not itself be a suffi- 
 cient foundation for an action, supposing the defendant had gone 
 a little too far, and had given the plaintiff a character which, 
 strictly speaking, was unmerited, still, considering the privilege 
 which the law gave a master, ought not to be broken in upon, 
 when, by so doing, the most mischievous consequences to society 
 must ensue. The jury were not at liberty from the mere libel 
 itself to infer that the defendant was influenced by malice, be- 
 cause upon that subject some express and positive evidence should 
 have been given. It must be admitted that the case had fairly 
 gone to the jury, including this proposition, that they were to 
 consider whether the defendant, at the time he wrote the letter, 
 had reason to believe that the facts which he stated were true. 
 He referred to Edmonson v. Stephenson, Bull. N. P. 8 ; it was 
 there said, that where words are spoken in confidence, and with- 
 out malice, no action lies ; therefore, where A, a servant, brought 
 an action against her former mistress, for saying to a lady, who 
 came to inquire for the plaintiff's character, that she was saucy 
 and impertinent, and often lay out of her own bed, but was a 
 clean girl, and could do her work well ; though the plaintiff
 
 638 APPENDIX. 
 
 proved that she was by this means prevented from getting a place, 
 yet Lord Mansfield held that this was not to be considered as an 
 action in the common way, for defamation by words, but that the 
 gist of it must be malice, which is not implied from the occasion 
 of speaking, but should be directly proved ; that it was a confi- 
 dential declaration, and ought not to have been disclosed. But if, 
 without ground, and purely to defame, a false character should 
 be given, it would be a proper ground for an action. In Weather- 
 stone v. Hawkins, 1 T. R. 110, it was also held that a servant can- 
 not maintain an action against his former master for words spoken, 
 or a letter written by him, in giving a character of the servant, 
 unless the latter prove the malice as well as the falsehood of the 
 charge, even though the master make specific charges of fraud ; 
 he also referred to Rogers v. Clifton, 3 Bos. & Pul. 587, and on 
 the authority of these cases, coupled with a review of all the 
 circumstances, he contended that the defendant was entitled to a 
 new trial. 
 
 Abbott, C. J. — I am of opinion that in this case there ought 
 to be no rule granted. I should be sorry that any decision in which 
 I took part, should have the effect of breaking down or lessening 
 that which I consider to be a very wholesome rule of law, namely, 
 that a character written by a former master to a person instituting 
 an inquiry, with a view to take a dismissed servant into his ser- 
 vice, is to be considered as a privileged communication, unless 
 it can be shown in some way that the statement of such char- 
 acter proceeds from a vindictive motive. The master in such 
 cases is privileged in what he does ; and, in my mind, it is of the 
 utmost importance to society that he should be so privileged. 
 The error is too often committed on the other side ; persons are 
 more apt to conceal the faults of servants, in order that they may 
 not be deprived of another service, than to enlarge and expatiate 
 upon their misconduct in a manner that might be justifiable. If, 
 upon reading this letter, a judge could take upon himself to say 
 that it bore nothing upon the face of it manifesting a vindictive 
 motive, I should think he would have been bound to tell the jury 
 that it was a privileged communication, and upon the general 
 issue they ought to have found a verdict for the defendant. But 
 I cannot say, upon reading this letter, that 1 do not see upon the 
 face of it something leading me to suppose there was an improper 
 motive in the mind of the defendant ; and if the contents of the
 
 APPENDIX. 639 
 
 letter were such as to make it a point in any reasonable degree 
 doubtful, then that doubt must be submitted as a question of fact 
 to the jury ; it must be for them to say, upon the view of the 
 whole case, whether this letter did proceed from vindictive mo- 
 tives, or was founded in that correct and proper motive which the 
 law permits. I think this letter does contain such expressions as 
 were fit for the consideration of the jury upon the question of 
 malice, and the question was so presented to the jury. It was 
 left to them to say, upon the whole of the case, whether or no 
 they thought the defendant was actuated by malicious motives at 
 the time. They have, upon the view of the whole of the evi- 
 dence, found that he was influenced by such motives ; and the 
 credit due to the witnesses was a matter peculiarly for their con- 
 sideration, and I cannot say that that they have come to a wrong 
 conclusion. "We are not to take it for granted that the question 
 was not fitly left to them as a question for their consideration. I 
 am of opinion, therefore, that we ought not to disturb this 
 verdict. 
 
 Baylet, J. — It appears to me that this question was most 
 properly left to the jury. The point upon the general issue was, 
 whether, at the time the letter was written, there was malice in 
 the mind of the defendant in writing it. He is fully warranted 
 in giving an answer to the questions which are put to him ; and, 
 in a temperate manner, stating everything which may have a fair 
 tendency to enable the person to whom the letter is written 
 to exercise a discreet judgment upon the subject. But looking 
 at this letter, it appears to me there is a degree of heat and 
 warmth and particularity in it, which was not called for by the 
 application made for the character of the plaintiff; and that being 
 left for the consideration of the jury, it appears to me to have 
 been the proper point for their determination on the general issue. 
 Upon the other question, whether the facts were true or not, that 
 would depend upon the credit given by the jury to the witnesses. 
 There was conflicting evidence on the one side and the other ; 
 there was the evidence of the man-servant, on the one hand ; and 
 they had the opportunity of hearing his testimony, and seeing 
 the manner in which it was delivered. There were several wit- 
 nesses certainly on the part of the defendant, and after hearing 
 their testimony, the jury had an opportunity of seeing on which 
 side the balance of truth lay. If it had been suggested to us that
 
 640 APPENDIX. 
 
 the learned judge had been dissatisfied with the conclusion to 
 which the jury came, it would have been right for us to have 
 made some application to him upon the subject ; but I do not 
 find that anything of that kind is suggested. Not knowing that 
 there is any dissatisfaction in the mind of the learned judge, we 
 cannot act upon the notion that there is any such dissatisfaction 
 existing. 
 
 Holeoyd, J. — In cases of this kind, the proof certainly lies 
 upon the party bringing the action, where the alleged slander, 
 whether by words or in a letter, proceeds in consequence of an 
 application to a master for the character of a dismissed servant, 
 to show that there was malice in the mind of the defendant, 
 either by direct evidence, or by some other circumstances from 
 which malice can be collected. In the absence of such proof, the 
 defendant would be either entitled to a verdict or the plaintiff must 
 be nonsuited. If that were the case in the present action the 
 defendant would be entitled to succeed, and the court would grant 
 a new trial. But the letter in this case contained such matter as 
 was sufficient to be left to the jury to say whether the defendant 
 was influenced by malicious motives ; and they having drawn a 
 conclusion which appears to me to have been perfectly right, I 
 think we aught not to disturb their verdict. 
 
 Best, J. — I am of the same opinion. This motion is made on 
 two grounds : first, that this letter is privileged ; and, second, that 
 the verdict is against the weight of the evidence in the cause. 
 There is no doubt that if a man gives a character of a servant, it 
 is ■prima facie privileged, and the party injured must go on to 
 show that the character was given from motives of malice. The 
 learned judge at the trial very fairly left it to the jury to consider 
 whether this letter was written with a malicious intention. He 
 also left the whole of the evidence for their consideration. The 
 letter itself imported sufficient matter to raise the question of 
 malice or no malice, in this respect the case of Bogers v. Clifton 
 is in point. No doubt the defendant, as a clergyman and a magis- 
 trate, might be very justly incensed at the proceedings of the 
 plaintiff in the bosom of his own family ; but if he exceeded the 
 bounds of discretion in the expression of his opinion, he must be 
 answerable for the consequences, 
 
 Rule re/used.
 
 APPENDIX. 641 
 
 King's Bench, A. D., 1822. 
 KING v. TOWNSEND. 
 
 A voluntary affidavit made before a justice of the peace, is not a judicial 
 proceeding, and therefore if such an affidavit contains libellous matter, it 
 is actionable. 
 
 To describe a man as an informer in such a publication is libellous. 
 
 Where special damages was laid, in that A. B. had wholly ceased to deal with 
 the plaintiff", by reason of the libel complained of, and it was proved only 
 that she had not dealt with him to so great an extent as before : Held, 
 that this was sufficient evidence of special damage to sustain the declara- 
 tion. 
 
 Action for a libel contained in an affidavit voluntarily made 
 by the defendant, before a magistrate, imputing to the plaintiff 
 that he had given information to the commissioners of customs, 
 that one Decima Barber, a milliner, was possessed of certain un- 
 customed goods, which were in fact seized, whereby the plaintiff', 
 who carried on the business of a silk mercer, sustained special 
 damage, by reason that the said Decima Barber wholly ceased to 
 deal with the said plaintiff in consequence of such slander. Plea, 
 not guilty, and issue joined. 
 
 After proof was given of the publication of the libel, Mrs. 
 Decima Barber was called to prove the special damage. She 
 deposed that previous to the publication of this libel she had 
 dealt almost entirely with the plaintiff, for such articles of silk as 
 she required in her business ; but that since the publication, be- 
 lieving that the plaintiff had been the person who caused informa- 
 tion to be given against her to the Customs, she had ceased to deal 
 with him to so large an extent as formerly. She still dealt with 
 him, but not so largely as before the publication. 
 
 Chitty, for the defendant, took three objections to the plain- 
 tiffs right to maintain this action : 1. This alleged libel, being in 
 the form of an affidavit sworn before a justice of the peace, it 
 must be considered as a judicial proceeding, and therefore not 
 the subject of an action for libel (4 Co. 14, and 1 Saunders, 132). 
 2. Supposing it not to be a judicial proceeding, still, as it only 
 imputed to the plaintiff that he was an informer, that is not 
 libellous ; for, however obnoxious the character of an informer 
 may be, yet it is the duty of every good subject to put the law in 
 force, by giving such information as may bring offenders to 
 punishment ; and therefore it is not libellous to call a man an 
 informer. And, 3. The allegation of special damage in this de-
 
 642 APPE1NTUX. 
 
 claration is not made out. The averment is, that by reason of 
 this libel, Mrs. Decima Barker wholly ceased to deal with the 
 plaintiff. Now, that is not so ; for she still continued to deal 
 with him, though not to the same extent as formerly ; and there- 
 fore this averment is not sustained if she dealt with him for any- 
 thing. 
 
 Abbott, C. J. — I am of opinion that this action is maintain- 
 able. First, I think this affidavit is not a judicial proceeding, 
 for it is the mere voluntary affidavit of the defendant ; and if such 
 an affidavit were to be considered as a judicial proceeding, and 
 therefore privileged, it would afford a very easy recipe for a libeller 
 to traduce the characters of the most innocent persons. Second, 
 I think that to designate a man as an informer, in a publication 
 like this, if done maliciously (which is for the jury), it is libellous 
 in a very offensive degree, and may be the subject of an action. 
 And, Third, I have no doubt that proof of Mrs. Decima Barber 
 having ceased to deal with the plaintiff to any extent, in conse- 
 quence of the publication of this libel, will be sufficient proof of 
 special damage to sustain this declaration ; and it is for the jury 
 to say what damages they will give under the circumstances of 
 the case. 
 
 The jury found for the plaintiff, damages £20. 
 
 Chiity, in Hilary term, moved to arrest the judgment on the 
 same ground, but the court refused the rule. 
 
 Sittings m Middlesex, A. D., 1822. 
 FOOTE v. ROWLEY. 
 
 Declaration for words imputing that the plaintiff had murdered his infant 
 daughter, means his legitimate daughter, and it appearing that the daughter 
 of and concerning whom the words were spoken was an illegitimate child 
 of the plaintiff: Held, that the declaration was ill. 
 
 Sed qu. As the words were spoken by an apothecary who had attended the 
 child in the small-pox, were they actionable, it not appearing that they 
 were meant in a criminal sense ? 
 
 This was an action for defamatory words, imputing to the 
 plaintiff that he had murdered his infant daughter. Plea, not
 
 APPENDIX. 643 
 
 guilty, and issue thereon. The words set out were, " You have 
 murdered your little girl." " This child is murdered." "He has 
 murdered his daughter." 
 
 The plaintiff had lost his child in the small-pox; the de- 
 fendant, a surgeon and apothecary, had attended the child during 
 her illness, and it was alleged that the defendant had said of the 
 plaintiff, of and concerning the child, that he had murdered his 
 daughter, &c. It appeared in evidence that the daughter was not 
 born in wedlock, although the plaintiff was a married man. The 
 declaration described the child generally as being " the infant 
 daughter of the said plaintiff P 
 
 Scarlett, for the defendant, objected that the plaintiff must be 
 nonsuited. The child was stated in the declaration to be the 
 infant daughter of the plaintiff; now the presumption of law was 
 that the child was born in wedlock ; but the fact was otherwise, 
 and that fact should have been stated in the declaration. Suppos- 
 ing the words themselves were actionable, the illegitimacy of the 
 daughter would have been no objection ; but the illegitimacy ought 
 to have been averred. 
 
 Gurney and Long, contra, endeavored to answer the objection, 
 sed per. 
 
 Abbott, C. J. — This is a fatal objection. The fact of the ille- 
 gitimacy ought to have been stated, in the declaration the child 
 is described as the plaintiff's infant daughter ; now that imports 
 his legitimate daughter, but the fact is not so. The words might 
 have been set out with a colloquium of and concerning " a certain 
 illegitimate child of the said plaintiff." There must therefore be 
 a nonsuit. But 1 do not intimate that the plaintiff may bring 
 another action, and avoid this objection; for then the question 
 would be, in what sense these words were used ? Unless they were 
 used by the defendant in a criminal sense, they would not be 
 actionable. 
 
 Nonsuited. 
 
 King's Bench, A. D., 1822. 
 MARTINERE v. MACK AY ET UX. 
 
 Saying of the plaintiff and one P. S., " I dare say they have got some of the 
 silver spoons in their pockets," is not actionable without an innuendo show- 
 ing that the words import a felonious stealing.
 
 644 APPENDIX. 
 
 Where some counts in a declaration are good and some bad in law, and 
 general damages are given, the court will arrest the judgment in toto. 
 Bed qiuere, whether a venire de novo may not be awarded on payment of 
 costs. 
 
 This was an action for words of slander, imputing to the 
 plaintiff that she had been guilty of theft. The declaration con- 
 tained a great many counts. At the trial before Holeoyd, J., at 
 the Westminster sittings after last Trinity term, A. D. 1 822, a 
 verdict was found for the plaintiff on the whole declaration, with 
 £50 damages. In Michaelmas term a rale nisi was obtained for 
 arresting the judgment, on the ground that the eleventh count 
 did not allege any actional words, and the damages found by the 
 jury being on the whole declaration, the judgment could not be 
 entered up. 
 
 Piatt now showed cause against the rule. The objection 
 arises upon the eleventh count, on the ground that there is no 
 innuendo to give the words there set out an actionable sense. 
 The plaintiff had been a servant in the family of the defendant, 
 and the defamatory words declared upon were used by the de- 
 fendant's wife, of and concerning the plaintiff, in giving her a 
 character to a new mistress. In order to support the eleventh 
 count, the plaintiff is at liberty to pray in aid the introductory 
 averment in the first count ; that averment is this : " The de- 
 fendant Jane, contriving and intending to injure the plaintiff in 
 her good name and credit, and to bring her into great scandal, 
 and to cause it to be suspected and believed that she was a thief, 
 and a person liable and subject to the pains and penalties inflicted 
 upon persons convicted of robbery and theft, falsely and maliciously 
 spoke of and concerning the plaintiff and one P. S. the following 
 false, malicious, and defamatory words : " The words set out in 
 the eleventh count are these : " I dare say they have got some of 
 the silver spoons in their pockets." Now the question is, whether 
 these words are actionable without an innuendo, giving them a 
 point and meaning, having a slanderous import. Standing by 
 themselves, perhaps, that cannot be contended, but when coupled 
 with the averment in the first count, they are sufficient to support 
 the judgment. By this means they are clearly actionable. He 
 referred to Collier v. Galliard, 2 W. Bl. 1062, and Peake v. Old- 
 ham, Cowp. 275. Supposing, however, that this count is bad, 
 and that the judgment ought to be arrested, the court will award 
 the plaintiff a venire facias de novo, to assess the damages upon
 
 APPENDIX. 645 
 
 the other counts of the declaration, which are clearly good ; or 
 the verdict may be amended by the judge's notes, and entered 
 up on the good counts. He referred to Auger v. "Wilkins, Barnes, 
 478 ; Smith v. Hayward, Id. 480 ; Eddowes v. Hopkins, Dougl. 
 377 ; and Grant v. Astle, Id. 722. 
 
 Tindal, contra. This count is clearly bad, and as the verdict 
 is taken on all the counts, the judgment must be arrested in toto. 
 The words set out are perfectly innocent, and cannot, by any con- 
 struction, have an actionable sense without an innuendo giving 
 them a mischievous meaning. The plaintiff might have the 
 spoons in her pocket for the most innocent purpose, and not with 
 a felonious design of stealing them. She might put them there 
 to take care of — to carry them to the silversmith — or for any 
 other purpose quite foreign from an intention of thieving ; and, 
 therefore, to give them an improper sense, there should have been 
 an innuendo. It is impossible to pray in aid the averment in the 
 first count, and couple it with the eleventh, in order to dispense 
 with the necessity of an innuendo. The eleventh count must be 
 perfect in itself, and cannot be helped by another count free from 
 objection. If, then, one count is bad, the judgment must be 
 arrested in toto, and the court cannot award a venire de novo. 
 The verdict here is taken on the whole declaration, and it is impos- 
 sible to say on which count the jury would assess the damages ; 
 for the damages may be compounded of all the counts, the good 
 and the bad. Suppose there should be a second jury, how can 
 they be compelled to give only £50 upon the good counts? They 
 may take it into their heads to give £500, and consequently the 
 defendant may sustain a prejudice to which he ought not to be 
 exposed. Besides, the plaintiff will derive no advantage from a 
 venire de novo, for as the proceedings must be on the record, there 
 will be manifest error, and therefore there must be a great deal of 
 unnecessary expense incurred. The case of Holt v. Scholefield, 6 
 T. R. 691, is an authority upon this case ; for there it was held 
 that where some counts in a declaration are good and some bad 
 in law, and general damages are given, the court will arrest the 
 judgment in toto, and will not award a venire de novo. 
 
 Abbott, C. J. — I am clearly of opinion that the eleventh count 
 of this declaration is bad, and that the judgment must be arrested. 
 It cannot be said, that because there is a general allegation in the 
 first count, " that the defendant maliciously intending to have it
 
 646 APPENDIX. 
 
 believed that the plaintiff was a thief" that will make words 
 afterwards introduced into other counts actionable, which are not 
 actionable of themselves ; or can be prayed in aid of other counts 
 which are clearly defective. The words themselves must reason- 
 ably import a charge concerning some matter or thing which will 
 subject the party accused to punishment. I cannot say that these 
 words convey an allegation that the spoons had been stolen by 
 the plaintiff. The allegation is that the defendant, speaking of 
 certain spoons belonging to her, said, " I dare say the plaintiff has 
 some of them in her pocket." Now, she might have them in her 
 pocket consistently with perfect innocence ; and it is impossible to 
 say that these words of themselves are actionable. Then as to 
 the venire de novo, I am not clear that we can grant such an 
 application as a matter of course. If it is granted, it must be on 
 payment of costs, and the plaintiff will consider whether she will 
 take a venire subject to such conditions, and liable to the conse- 
 quences which may possibly follow upon a writ of error. 
 
 Batlet, J. — I am of opinion that this judgment must be 
 arrested. My difficulty in awarding a venire de novo is, that it 
 may be error on the record, and that would be subjecting the 
 plaintiff to a great deal of unnecessary expense. Besides, I do 
 not see how a new jury are to be restrained in giving damages 
 upon the other counts beyond what the former jury have given, 
 and that would be exposing the defendant to consequences which 
 the justice of the case may not require. 
 
 The rest of the court concurred in the same opinion. 
 
 Rule absolute for arresting the judgment. 
 
 Additional Note to Page 137, ante. 
 A court of probate has, it seems, power to order the omission 
 from the registry of a will of any defamatory or offensive matter 
 contained in such will. {Re Honywood, Law Rep. II, Prob. & 
 Div. 251 ; Re Wartnaby, 1 Rob. Ecc. 423 ; Curtis v. Curtis, 3 
 Add. 33 ; Marsh v. Marsh, 1 Sw. & Tr. 528.) 
 
 Additional Note to Page 499, ante. 
 By 20 & 21 Yict., ch. 85, a woman judicially separated from 
 her husband, is considered a femme sole for the purposes of con- 
 tract, wrongs and injuries, and suing and being sued in civil pro- 
 ceedings ; and her husband is not liable for her contract or wrong- 
 ful act or omission.
 
 INDEX.
 
 INDEX. 
 
 [The references are to the numbers of the pages.] 
 
 A 
 
 ABATEMENT of action, in what cases, 498. 
 
 ABORTION, charge of taking medicines to produce, actionable, 235. 
 justification of charge of procuring, 557. 
 See Miscarriage. 
 ABSOLUTE RIGHT, no such thing as, 78, 88. 
 ACCORD and satisfaction, defense of, 435. 
 
 defense of, must be pleaded, 435. 
 ACCOUNT BOOKS, charge of falsifying, when actionable, 266. 
 ACCUSATION, what amounts to an, 199. 
 
 ACTION, how commenced, within what time, and in what court, 464. 
 right to institute, 348». 
 the ordinary remedy for a wrong, 91. 
 notice of, when required, 464?i. 
 for words, meaning of, 67n. 
 lies for words, written, which not actionable if only spoken, 
 
 67, 68w. 
 on the case, origin of, 93. 
 
 for words, gist of, 93-107. 
 not encouraged, 179/i. 
 compared with action for nuisance, 57». 
 right of not assignable, 498. 
 when it survives, 498. 
 among the most ancient in the law, 97/i. 
 number of formerly, 96m. 
 is a sordid action, ISOx. 
 removal of, 464??. 
 consolidation of, 465, 497n., 500/;. 
 no counter-claim allowed in, 564. 
 for a joint publication, 152, 153. 
 what requisite to give a right of, 163, 164. 
 who may maintain, 163n., 497. 
 proceedings in, are privileged, 352. 
 See Parties, Slander. 
 42
 
 650 INDEX. 
 
 ACTIONABLE LANGUAGE, concerning a class of persons, who may- 
 sue, 165«. 
 
 what is, 173rc., 174rc., 182, 183, 202, 204. 
 
 Avhen burden on defendant to show it is not, 171 n. 
 
 impossible to be true, 173n., 174n. 
 
 concerning a person, what is, 204. 
 
 published orally, is such as charges an indictable offense in- 
 volving moral turpitude, 208. 
 
 may be actionable for charging a statutable offense, although 
 after the publication the statute creating the offense is re- 
 pealed, 211. 
 
 peril of punishment is not the gist of action for, 211. 
 
 for offense in foreign state, 213. 
 
 charging offense, afterwards pardoned, 211. 
 
 must charge an offense, punishable in a temporal court of crim 
 inal jurisdiction, 213. 
 
 charging a purpose or intent to do an unlawful act, 215. 
 
 charging a consent to a crime, 227«. 
 
 imputing evil inclinations or principles, 216. 
 
 denoting opinion or suspicion, 217. 
 
 by interrogation, 219. 
 
 by adjectives, 220. 
 
 apparently innocent words may be shown to be, 160n., 161n. 
 
 per se and not per se, distinction between, 203. 
 
 statutory provisions as to, 205. 
 
 of the mind and of the body, distinction between, 243». 
 
 in the past tense, 243. 
 
 charging arson, 221. See Arson. 
 forgery, 222. See Forgery. 
 murder, 223. See Murder. 
 being a thief, 224. See Thief. 
 larceny, 225. See Larceny. 
 perjury, 227. See Perjury. 
 a woman with want of chastity, 233. See Female. 
 
 published orally, instances of, 235, 239. 
 
 charging disease, 242. 
 
 published in writing, 245, 246, 252. 
 
 in the past tense, 211. 
 
 concerning one in any trade or office, 254, 264, 269. 
 
 concerning one in trade, must be in a lawful trade, 257, 259. 
 
 concerning partners, 261. 
 
 charging disinherison, 263. 
 
 of a candidate for office, 264.
 
 INDEX. 651 
 
 ACTIONABLE LANGUAGE— continued. 
 of a minister of the Gospel, 284. 
 of one in office, 286. 
 
 by reason of special damage, 291. See Special Damage. 
 belief in charge, 296, 297». 
 repetition of, 301. 
 
 concerning things, 305. See Slander of Title. 
 See Words. 
 ACTRESS, charge of intermarriage with, is actionable, 249. 
 
 language concerning, 300. 
 ACTS, reputation may be effected by, 58?*. 
 must be lawful or unlawful, 85. 
 when malicious, 117. 
 must be voluntary or involuntary, 117. 
 words are, 58n. 
 ADJECTIVE WORDS, may confer a right of action, 220. 
 ADMINISTRATOR, words concerning, 288. 
 
 See Executor. 
 ADMISSION, by defendant, effect of, 592. 
 ADULTERER, charge of being, not actionable, 239, 272re. 
 ADULTERY, what words import, 180. 
 
 charge of, actionable in certain States, 205, 233n., 238. 
 charge of, not actionable, 215, 234, 272. 
 ADVERTISEMENT in newspaper, when privileged, 393, 417. 
 ADVICE, when privileged, 397. 
 ADVOCATE, privilege of, 357. 
 
 AFFIDAVIT, made in the course of a legal proceeding, cannot give a 
 right of action for libel, 351n., 352. 
 See Judicial Proceeding. 
 AGENCY, none in crime, 11 In. 
 
 See Commercial Agency. 
 AGENT, cannot do a wrong as such, 11 In. 
 
 liability of principal for 'acts of, 156. 
 See Principal and Agent. 
 
 AGGRAVATING CIRCUMSTANCE, must be justified, 337. 
 AGGRAVATION OF DAMAGES, by mode of conducting cause, 
 473, 608. 
 
 evidence for the purpose of, 597. 
 
 by pleading, 608. 
 ALABAMA, to call a woman whore is actionable in, 233n. 
 ALDERMAN, words concerning, 287. 
 ALIEN, action by, 497.
 
 652 index. 
 
 ALLEGATION, positive, what amounts to, 198. 
 
 divisible, what is, 199. 
 ALLEGORY, defaming by means of, 168n. 
 AMENDMENT, to retain verdict, 490. 
 
 of complaint, 524«., 490«. 
 when allowed, 579. 
 AMBO DEXTER, meaning of, 170ra. 
 AMBIGUOUS LANGUAGE, how construed, 160, 177, 179». 
 
 innuendo to point meaning of, 534. 
 ANCIENT LAWS against offenses by language, 95. 
 AND AND FOR, distinction between, 186. 
 ANGLO-SAXON, the term objected to, 99/i. 
 ANAGRAM, defaming by means of, 168«. 
 ANSWER, corresponds to plea, 546. 
 effect of not making, 470. 
 what amounts to a general denial, 546n. 
 of justification must give color, 549. 
 several defenses in, 549. 
 of truth, requisite of, 550. 
 of mitigating circumstances, 561. 
 demurrer to, 562. 
 to inquiry, when privileged, 403. 
 
 See Plea, Mitigating Circumstances. 
 APOLOGY, defense of, 435. 
 plea of, 435ra. 
 withdrawal of plea of, 476. 
 APOTHECARY. See Physician. 
 APPLES, charge of stealing, 195. 
 ARBITRATION, in actions of slander or libel, 472. 
 ARCHBISHOP, language concerning, 285. 
 ARKANSAS, what language is actionable in, 205, 229w. 
 ARRANT ROGUE, charge of being, not actionable, 239. 
 ARREST in action for slander or libel, 464. 
 
 of judgment, for unwarranted innuendo, 185, 536. 
 where damages given on a bad count, 491. 
 for declaration not stating a cause of action, 562, 644. 
 ARSON, what words import, 187, 21 3n., 222n. 
 
 charge of, not actionable, 221. 
 ASSAULT, charge of, not actionable, 209ft. 
 
 ASSESSMENT OF DAMAGES, where there is no plea or answer, 470. 
 ASTERISKS, putting them for plaintiff's name, 169?!. 
 ATTACHMENT cannot issue in actions for slander or libel, 464. 
 ATTEMPT to commit a crime, charge of, not actionable, 215».
 
 index. 653 
 
 ATTORNEY, when client not responsible for acts of, 157n. 
 words of, 221 n ., 254, 271,279. 
 who may appear by, 356». 
 evidence of being duly licensed, 268«. 
 not liable for objecting to title, 31 In. 
 bill of costs of, is not a judicial proceeding, and defama- 
 tory matter in, is not privileged, So2n. 
 report concerning headed "Shameful conduct of an attor- 
 ney," or " How lawyer Bishop treats his clients," held 
 not privileged, 369. 
 right of, to vindicate reputation of his client, 393/1. 
 lien of, not a ground for denying a new trial, 492n. 
 See Barrister, Counsel, Struck off the Roll. 
 AUCTIONEER, words concerning, 270/*., 276. 
 AUTHOR, words concerning, 28Sn. 
 rights and duties of, 442. 
 liable as publisher, 148, 149. 
 AVERMENT in pleading, what it is, lGln. 
 
 when necessary to point the language to plaint- 
 iff, 163?i., 528, 538. 
 
 B 
 
 BAD REPUTE, justifying charge that plaintiff is in, 339, 553/i. 
 BAIL. See Arrest. 
 BAILIFF, words concerning, 276. 
 BANK NOTES, charge of stealing, 213». 
 BANKER, action against for dishonoring a check, 58n. 
 BANKERS, words concerning, 275>i., 262. 
 
 BANKRUPT, charge of being, when not actionable, 239, 268, 274. 
 applied to a bishop, actionable, 285n. 
 commissioner, words concerning, 290. 
 See Insolvency. 
 BANKRUPT ROGUE, when actionable, 221. 
 BANKRUPTCY, report of proceedings in, are privileged, 374. 
 
 does not discharge from damages in action for slander 
 
 or libel, 465n. 
 right of action for libel does not pass by, 498. 
 BANKRUPTLY KNAVE, not actionable, 221. 
 BARN, charge of burning, 213n., 222. 
 BARRATOR, denned, 61n. 
 
 See Common Barrator, Maintainer of Suits. 
 BARRISTER, words of, 281, 282, 283. 
 
 See Divulging Secrets.
 
 654 INDEX. 
 
 BASE, justifying charge that there was "nothing too base" for plaintiff 
 
 to be guilty of, 340. 
 BASTARD, charge of having had, 173?*. 
 
 charge of having had, actionable with special damage, 294. 
 charge of being, when actionable, 240. 
 charge of begetting, 284. 
 justifying charge of begetting, 333. 
 BATTERY, charge of, not actionable, 209n. 
 BAWD, charge of being a, not actionable, 234, 239. 
 BAWDY HOUSE, what equivalent to charge of keeping, 188. 
 
 charge of keeping, involves moral turpitude, 208. 
 charge of keeping, is actionable, 237. 
 BEADLE. See Ward Beadle. 
 BEE-TREE, charge of stealing, 196. 
 BEGIN, right to, 472. 
 
 BELIEF in truth of charge, not necessary, 296, 297/*., 302. 
 of publisher, when material, 306. 
 in truth of charge, no defense, 342. 
 in truth, in mitigation, 328/i., 342n., 621. 
 how it differs from suspicion, 217?i. 
 hearsay is probable ground for, 397n. 
 BELL-ROPES, charge of stealing, 220. 
 BELT, charge of stealing, 225. 
 
 BENIGNIOR SENSU, specimens of constructions in, 180n. 
 BERSOGLISVISUR or free speaking song, 62*. 
 BIGAMY, what does not amount to a charge of, 188. 
 charge of, is actionable, 250n. 
 charge of, how justified, 614. 
 BILL of particulars, when ordered, 469. 
 BILLS, file of, charge of stealing, 226n. 
 BISHOP, words concerning, 28on. 
 
 petition to, is privileged, 385. 
 BLACK-LEG, meaning of, 170>*., 188, 594. 
 
 charge of being, not actionable, 183, 238. 
 BLACKMAILING, charge of, 369. 
 BLA.CK-SHEEP, meaning of, 170/z. 
 
 BLACKSMITH, charge against, of keeping false books, 266?*. 
 BLASPHEMY, charge of, is actionable, 248. 
 
 justifying charge of, 337. 
 BLOODSUCKER, charge of being, 241, 281, 287. 
 BOARD OF EXCISE, memorial to, is privileged, 385. 
 BOARDS, charge of stealing, 196, 225. 
 BOGUS BABY, charge of producing, held actionable, 237.
 
 INDEX. 655 
 
 BOGUS PEDLAR, judicial notice of meaning of, 169/*. 
 charge of being, actionable, 235. 
 See Pedlar. 
 BOLTED, a charge that plaintiff bolted is not justified by saying he 
 
 quitted, 333/?. 
 BOOKS. See Account Books, New Books, Text Books. 
 BOOKSELLER, liability of, 158. 
 BOTCH, charge of being is actionable, 283. 
 BOX-WOOD, charge of stealing, 196. 
 BRAWLING, 62w. 
 
 BREACH of the peace, words amounting to, actionable in Mississippi, 
 Virginia, and Georgia, 205. 
 
 See Disorderly Conduct. 
 of trust, what amounts to a charge of, 199. 
 charge of, not actionable, 215. 
 BREAKING into a store, charge of, 227. 
 BREAKING OPEN LETTERS, charge of, 199, 253». 
 And see Broken Up, 197a, 
 charge of, involves moral turpitude, 209. 
 
 contra, see 214/?., 253//. 
 charge of, is actionable, 237. 
 
 is not actionable, 214/?. 
 BREWER, words concerning, 173/?,, 270//., 277/?., 332. 
 BRIBERY, charge of, is actionable, 237, 247, 269/?,, 44S/?. 
 BRIBING JUSTICE, actionable, 269. 
 BRIBING KNAVE, actionable, 221??., 279. 
 BROKEN UP. See Breaking Open. 
 BROTHEL. See Goose-House. 
 BUGGERING ROGUE, actionable, 221. 
 BUGGERY, charge of, 168/?,, 198. 
 
 See Unnatural Offense. 
 BUNGLER, charge of being a, is actionable, 283/?, 
 BURNING. See Arson, Barn, Gin-House, School-house. 
 BUSINESS, meaning of the term, 257//, 
 
 See Trade. 
 BUTCHER, words concerning, 276, 295//,, 387/?,, 414. 
 BYSTANDER, how far publisher responsible for understanding and 
 hearing of, 177/?., 178, 592/?. 
 
 C 
 
 CALF-SKIN, charge of stealing, 226. 
 CALUMNY, meaning of, 347/i.
 
 656 lstdex. 
 
 CANADA, charge of stealing in, 213/i. 
 
 CANDIDATE for office or employment, words concerning, 264, 431. 
 CAPTAIN. See Master Mariner. 
 CARPENTER, words concerning, 274/i. 
 
 CARRYING AWAY CORN, a charge of, imputes a trespass, 192h. 
 CATERPILLAR, charging an inn-keeper with being a, 278ra. 
 CATTLE, marks on, altering, involves moral turpitude, 209. 
 is actionable, 236. 
 charge of mismarking, not actionable, 215. 
 CAUSE, import of the term, 193, 22Gn. 
 
 charge of being the cause of suicide, 241. 
 justifying a charge of causing an act to be done, 332. 
 CAUSES of action, joinder of, 544. 
 CAUTION not to trust another, when privileged, 406. 
 not to marry, 408. 
 not to purchase a bond, 249, 417. 
 CERTAINTY, how it may be ensured, 76ra. 
 excessive, 181. 
 
 in statement of words published, 525. 
 innuendo to ensure, 526. 
 CHAMPERTOR, actionable, 236. 
 
 meaning of the term, 172n. 
 CHARACTER, meaning of the term, 80»., 81»., QlQn. 
 necessity of protecting, 98. 
 to servant, -right to give, 420, 635. 
 See Master and Servant. 
 CHASTE CHARACTER, meaning of the term, 81». 
 CHASTITY, charge of want of, not actionable, 233. 
 
 actionable, if in writing, 249. 
 CHEAT, charge of being, not actionable, 239. 
 
 what is not a justification of a charge of being, 332n. 
 CHEATER, charge of being, actionable if applied to one in trade, 279. 
 
 charging an attorney with being, is actionable, 279. 
 CHEATING, charge of, not actionable, 215, 241. 
 when actionable, 289, 278. 
 at cards, charge of, is actionable, 218ft. 
 CHECK, action for dishonoring, 58». 
 CHILD, parent not answerable for wrongs by, 157. 
 charge of begetting, 238. 
 charge of starving, 277. 
 See Infant. 
 CHRISTIANITY, introduction of, into England, 99. 
 part of the common law, 99.
 
 ITTOEX. 657 
 
 CHURCH, charge of robbing, 226n. 
 
 discipline, proceedings in course of, are privileged, 376. 
 
 privilege of, only applies where both parties mem- 
 bers of the church, 378. 
 See Desecrating Church. 
 
 CHURCH MEETING, proceeding at, how far privileged, 359. 
 CHURCH- WARDEN, language concerning, 173«., 289. 
 CLASS of persons, language concerning, when actionable, 165«. 
 CLERGYMAN. See Minister of the Gospel. 
 CLERK in a gas company, words concerning, 271. 
 
 See Merchant's Clerk. 
 CLIENT, when not responsible for acts of attorney, 157n. 
 charge of divulging secrets of, justifying, 336. 
 attorney may vindicate reputation of, 393n. 
 CLIPPER and coiner, meaning of the terms, 188, 185/4. 
 COACH BUILDER, words of, 273. 
 COBBLER, charge of being actionable, 283. 
 COLLECTOR, U. S., language concerning, 290. 
 COLLOQUIUM, what it is, 161». 
 
 when necessary, 181w. 
 
 sometimes used as synonymous with inducement, 516. 
 innuendo cannot perform office of, 528. 
 COMMENT, right of, 296»., S74n. 
 
 See Criticism. 
 
 COMMERCIAL AGENCY, publications by, how far privileged, 415, 
 
 416>i. 
 COMMISSION to examine witnesses, 471. 
 COMMISSIONER, words concerning, 289, 290. 
 
 of police, report of, not privileged, 375». 
 to inquire into corporations, report of, not privileged, 375/1. 
 in bankruptcy, reports of proceedings before, privileged, 374. 
 COMMON BARRATOR, not actionable, 21 In. 
 
 actionable, 236, 280. 
 COMMON FILCHER, charge of being, not actionable, 239. 
 COMMON LAW, ecclesiastical law part of, 63/i. 
 
 Christianity part of, 99. 
 COMMON SENSE in construing language, lG9n. 
 COMMON WHORE, charge of being, actionable, 233n. 
 COMPANION of cut-throats, not actionable, 239. 
 
 COMPANY, unincorporated, when members of, cannot maintain action 
 for libel, 165?i. 
 
 See Corporation.
 
 658 index. 
 
 COMPLAINT, corresponds to declaration, 503. 
 general requisites of, 501 n., 503, 509. 
 inducement, 504. 
 
 in England, 505. 
 in New York, 506. 
 where there are several counts, 507. 
 to be stated in a traversable form, 507. 
 may be put in issue, 508. 
 superfluous, 508. 
 
 of plaintiff's occupation, 511, 513. 
 in action for charge of false swearing, 514. 
 should show that the language is concerning the plaintiff, 510, 516. 
 colloquium, sometimes used as synonymous with inducement, 516. 
 must allege a publication, 518. 
 publication, how alleged, 519. 
 alleging place of publication, 520. 
 alleging time of publication, 520. 
 to allege absence of legal excuse, 521. 
 to set out the language published. 522. 
 where words published in a foreign language, 524. 
 need not set out obscene words, 524. 
 degree of certainty required in setting forth the language published, 
 
 525. 
 need not set forth the whole of the matter published, 525. 
 allegations of, must be certain, 526. 
 innuendo, 161ra., 526. 
 
 cannot perform office of colloquium, 528. 
 cannot introduce new matter or change meaning, 528n. 
 cannot extend the meaning, 530. 
 to point meaning of ambiguous language, 534. 
 rejecting, 535. 
 when, to allege special damage, 541. 
 what causes of action may be united in, 500w., 544. 
 supplemental, when allowed, 54*5. 
 demurrer to, 562. 
 COMPROMISE, court will enforce, 435/*., 471. 
 CONCEALER of felony, charge of being, 21 In., 237. 
 CONDITION in life of parties, effect of, 176, 600, 602, 625, 629. 
 
 evidence of, on face of libel, 596. 
 CONDUCT unfit for publication, charge of being guilty of, not action- 
 able, 21 8n, 
 
 See Violent Conduct.
 
 INDEX. 659 
 
 CONFIDENCE, letters merely written in, not privileged, 389n. 
 
 law respects communications made in, 397»., 4Q2n., 409». 
 CONGRESS. See Legislative Proceedings. 
 CONJURING KNAVE, not actionable, 220. 
 CONNECTICUT, false swearing in ecclesiastical court of, 230>i. 
 
 calling a woman a whore is actionable in, 233/j. 
 CONSENTING to a crime, charge of, not actionable, 227n. 
 CONSOLIDATING actions for slander or libel, 465, 497/*., 500«. 
 CONSPIRACY, what does not amount to a charge of, 188. 
 
 members of the House of Lords, as such, cannot be 
 guilty of, 343/i. 
 CONSTABLE, words concerning, 268, 269, 288, 379«. 
 
 words spoken on giving in charge of, are privileged, 382rc. 
 See Police Officer. 
 CONSTRUCTION of language, 159. 
 
 written and oral, 165. 
 when not allowed, 161n. 
 in popular sense, 167w. 
 when ironical, 159/i., 1G9?i. 
 how affected by bad grammar, 169ra. 
 by judicial notice, lQ9n. 
 explanatory circumstances, effect on, I70n. 
 to be consistent with the whole of the matter pub- 
 lished, 175. 
 how affected by the condition in life of the person 
 
 spoken of, 176, 256. 
 on demurrer, 252. 
 of plea of justification, 554n. 
 what to gufde the jury in, lQ7n., 171»., 175». 
 effect of time, place, and usage upon, 171. 
 meaning of the publisher, how far material to, 176. 
 when ambiguous and when unambiguous, 177. 
 for court and jury, not witnesses, 592. 
 in mitiori sensu, 179. 
 according to the natural meaning, 182. 
 courts do not strain to find an innocent meaning, 182. 
 after verdict, 184. 
 See Language, Jury, Meaning. 
 CONTAGIOUS DISEASE, charge of having, 242. 
 CONTEMPT in publishing reports of proceedings of a court of justice, 
 370. 
 in writing private letter to a judge respecting a cause pend- 
 ing before him, 350n.
 
 660 INDEX. 
 
 CONTEMPT in publishing disparaging comments on courts or judges, 
 
 371/z. 
 CONTRIBUTION, none between wrong-doers, 502. 
 CONVICT, actionable, 212. 
 
 See Returned Convict. 
 CONVICTED FELON, meaning of the term, 189. 
 
 report of speech of, not privileged, 375n. 
 COOPER, words concerning, 270». 
 CORN, charge of carrying away, 192n., \97ti. 
 
 charge of stealing, 225ra., 227. 
 CORN-FACTOR, words concerning, 276, 414. 
 CORN-STEALER, charge of being, is actionable, 237. 
 CORONER, not liable for slander or libel, 361. 
 
 criminal information granted for publishing minutes of in 
 quest before, 370»., 375«.. 
 CORPORATIONS are legal persons, 455. 
 
 their rights and duties assimilated to natural persons, 455. 
 
 can act only through agents, 455. 
 
 may be sued for acts of agents, 456. 
 
 may have a reputation, 456. 
 
 language concerning, 457. 
 
 action by, for libel, 457. 
 
 cannot be guilty of slander, 459. 
 
 may be guilty of libel, 460. 
 
 See Fire Company. 
 CORRUPT, charging a judge with being, is actionable, 287. 
 CORRUPTION in office, charge of, 2&7n., 287 n. 
 COSTS, plaintiff may be taken in execution for, 465. 
 security for, 465. 
 what to be recovered, 464. 
 when action referred, 472n. 
 not allowed as damages, 487ra. 
 effect of amount of verdict upon, 486, 495. 
 staying proceedings until paid, 496. 
 COUNCIL of appointment, petition to, is privileged, 385. 
 COUNSEL, privilege of, 357. 
 
 attorney acting as, his privilege, 357«. 
 opening and summing up of, on trial, 473. 
 when he may refuse to testify, 587«. 
 See Attorney. 
 COUNSELLOR, language concerning, 281,282, 283. 
 
 See Divulging Secrets. 
 COUNTERCLAIM, none allowed in action for slander or libel, 564.
 
 INDEX. 661 
 
 COUNTERFEIT imports felony, 236n. 
 
 COUNTERFEITER, what amounts to a charge of being a, 199. 
 charge of being is actionable, 235, 236. 
 thought no more of than a counterfeiter, is actionable, 248. 
 COUNTERFEITING, charge of, involves moral turpitude, 209. 
 COUNTERFEIT MONEY, charge of being a dealer in, is actionable, 
 
 235. 
 COUNTY COURTS of England, no jurisdiction of actions for slander 
 
 or libel, 464n. 
 COURT and jury, province of, 476, 592. 
 
 COURT OF JUSTICE, to be held with open doors, 364. # 
 
 every one presumed to know proceedings of, 364. 
 publication of proceedings of, 364. 
 See Judicial Proceedings. 
 COURT MARTIAL, report of decision of, is privileged, 362. 
 COURTS. See Ecclesiastical Courts, Piepowder. 
 COWARD, charge of being, when actionable in Tennessee, 205. 
 COZENER, judicial notice of meaning of, 170m. 
 
 charge of being, not actionable, 240, 277, 278. 
 CREDIT, imputing want of, when actionable, 273. 
 CRIME, words imputing, must be precise, 168«. 
 CRIME against nature. See Unnatural Offense. 
 and tort, difference between, 86, 145?i. 
 no agency in, 1 1 In.. 
 intent the essense of, 127«. 
 malice an ingredient of, 130/i. 
 CRIMINAL OFFENSE, charge of committing, when actionable, 209, 
 
 210. 
 CRIMINAL PROSECUTION, for speech, 59». 
 CRITICISM, right of, 296n., S74n., 439/*., 440. 
 of persons and things, 441. 
 of public men, 441, 432/i. 
 is founded on the assumption that what is criticised exists, 
 
 450. 
 is opinion, 451. 
 test of its fairness, 451. 
 of matters of public interest, 453. 
 CRUELTY, language may amount to, 58n. 
 CUCKOLD, charge of being, is actionable, 247. 
 CUCKOLDY ROGUE, actionable, 221. 
 
 CUNNINGHAM AFFAIR, not proper to admit evidence of meaning 
 
 of, 592n.
 
 662 index. 
 
 CUSTOMERS, loss of, is special damage, 293. 
 
 how to be alleged in complaint, 542. 
 
 evidence of, 295n., 543, 641. 
 
 right of, to complain of tradesman with whom he deals, 
 414. 
 CUT HIM OUT OF DOORS, meaning of the phrase, 172n. 
 
 D 
 
 DAiajA-DOWN-DILLY, meaning of, 170w. 
 DAMAGES, power of court over, 98. 
 
 correspond to Anglo-Saxon were, 98?i. 
 
 what are, 109, 202. 
 
 effect of intent upon, 131n., 133. 
 
 circumstances to mitigate, 561. 
 
 when plaintiff to elect de melioribus, 153, 502. 
 
 particular and general, distinction between, 295w. 
 
 after recovery of judgment, 436». 
 
 how assessed on judgment for want of plea, 470. 
 
 aggravation of, 597. 
 
 aggravation of, by conduct of cause, 473. 
 
 mitigation of, 616. 
 
 jury to fix amount of, 486. 
 
 cost not to be allowed as, 487w. 
 
 cannot exceed the amount claimed, 490. 
 
 nominal, when proper, 486, 617». 
 
 vindictive, when allowed, 489, 490?*.. 
 
 prospective, not allowed, 488. 
 
 effect of costs upon, 487. 
 
 on several counts and one count bad, 490. 
 
 general damages, where there is a misjoinder of counts, 
 491. 
 
 reducing amount of on appeal, 494«. 
 See Special Damage, Nominal Damages, New Trial. 
 DAMNED ROGUE, charge of being, not actionable, 239. 
 DANGER of punishment, not the gist of an action for slander or libel, 
 
 211. 
 DEAD BODY, charge of stealing from, 225rc. 
 
 DEALER in counterfeit money, charge of being a, is actionable, 235. 
 DEATH, charge of being the cause of, does not amount fo murder, 192, 
 charge of being guilty of the death of D. is actionable, 237. 
 of party to action, effect of, 498.
 
 INDEX. 6G3 
 
 • 
 
 DEBATE, freedom of. See Legislative Proceedings. 
 
 DEBAUCHEE, charge of being, is actionable, 247n. 
 
 DECLARATION. See Complaint. 
 
 DEER STEALING, charge of, not actionable, 211. 
 
 DEFAMED, meaning of, 61w. 
 
 DEFAMER, who is, 61. 
 
 DEFAMATION, what it is, 63. 
 
 jurisdiction of ecclesiastical courts in matter of, 63. 
 jurisdiction of ecclesiastical courts in matter of, abol- 
 ished, 63?i. 
 evidence, 596. 
 DEFAMATORY, language must be, to constitute slander or libel, 115. 
 DEFAULT of plea or answer, effect of, 470. 
 DEFENSE, distinction between legal excuse and, 110. 
 of privileged communication, 319. 
 of repetition, 322. 
 of truth, 327, 621. 
 
 of legislative proceedings and report thereof, 342. 
 judicial proceedings, 347, 352. 
 parties to proceedings, 348, 354. 
 that language published by one as counsel, 356, 357. 
 
 as witness, 353. 
 as a judge, 360. 
 report of judicial proceedings, 364. 
 of quasi judicial proceedings, 370. 
 that publication made in the course of church discipline, 
 
 376. 
 that publication made at a public meeting, 378. 
 that publication made in seeking redress other than judi- 
 cially, 382. 
 that publication made in giving advice or information 
 
 generally, 387. 
 giving a character to a servant, 420. 
 
 that publication concerning a candidate for office or em- 
 ployment, 431. 
 insanity, 434. 
 drunkenness, 435. 
 
 infancy, 435. . 
 
 accord and satisfaction, 435. 
 previous recovery, 436. 
 apology, 435. 
 
 publication in newspaper, 437. 
 criticism, 443.
 
 664 INDEX 
 
 DEFENSE— continued. 
 
 what must be specially pleaded, 547. 
 wliat may be pleaded together, 544. 
 in mitigation, 616. See Mitigation. 
 copied from another paper, 322«. 
 communication by third person, 323, 325». 
 of previous rumors, 323». 
 notice or specification of, 560. 
 evidence for, 611. 
 
 See Answer, Plea. 
 DEFENDANT, examination of, to prepare complaint, 467. 
 may be arrested, 464. 
 examination of, 467, 588«. 
 no contribution between or indemnity to, 502. 
 interrogatories to, 468. 
 inspection by, 468. 
 effect of death of, 498. 
 evidence of liability of, 592. 
 evidence for, 610. 
 
 wealth of, cannot be shown to aggravate damages, 602. 
 poverty of, cannot be shown in mitigation, 629. 
 cannot set up his own iniquity in mitigation, 630w. 
 execution against his person, 465. 
 not obliged to declare to whom defamatory matter ap- 
 plied, 468. , 
 may offer to allow judgment, 495. 
 DEFINITION of writing, 59. 
 of effigy, 59. 
 of slander, 50, 59. 
 of defamed and defamer, 61. 
 of blackleg, 594». 
 of libeller, 60. 
 of satirist, 61n. 
 of barrator, 61w. 
 of scandal, 58m. 
 of lampooner, 6 In. 
 of libellus, G9n. 
 of reputation, 80m., 81m., 61 6n. 
 of character, 80«., 81n., 616n. 
 of honor, 82-n. 
 of rights, 83. 
 of duties, 83. 
 of malice, 122n., 123».
 
 index. 665 
 
 DEFINITION— continued. 
 
 of publish and published, 136». 
 
 of meaning, 177n. 
 
 of business and trade, 257rc. 
 
 of runagate, 258?i. 
 
 of lawsuit, 230w. 
 
 of judicial proceeding, 355/i. 
 
 of statutory, 7on. 
 
 of law of libel, 64. 
 
 none of libel, 71». 
 
 attempted, of libel, 71, 72. 
 
 of action for words, Hhi. 
 
 difficulty of, 72, 76»., S9n. 
 DEFRAUDED, not actionable, 240, 271. 
 DELIRIUM TREMENS, perhaps a defense to an action of slander or 
 
 libel, 432>i. 
 DEMURRER, for improper joinder of parties, 501. 
 
 to complaint, 562. 
 
 to complaint, does not admit the innuendo, 564. 
 
 language how construed on, 252. 
 
 to answer, 562. 
 
 not allowed to mitigating circumstances, set up in the 
 answer, 562. 
 
 Lord Coke's advice in relation to, 562. 
 DESECRATING CHURCH, charging a minister with, is actionable, 
 
 286. 
 DESERTER, charge of being, not actionable, 239. 
 DETECTED, meaning of the term, 193,248». 
 DIRECTOR of public company, words concerning, 288. 
 DISCOVERY, in aid of action for slander or libel, 467. 
 DISHONESTY, charge of, is actionable, 248. 
 DISORDERLY CONDUCT, when words amount to, 92n. 
 DISTILLER, words concerning, 274». 
 DIVISIBLE ALLEGATIONS, what are, 199. 
 
 justification of, 331. 
 DIVISIBLE INNUENDO, part of may be rejected, 535. 
 DIVULGING secrets of clients, charge of, against a counsellor, justify- 
 ing, 334. 
 DOCUMENTS, inspection and production of, when ordered, 466. 
 DOG, charge of stealing, 196. 
 
 charge of having intercourse with a, 235. 
 DOME BOOK of King Alfred, 100«. 
 
 43
 
 666 INDEX. 
 
 DOMESTIC SERVANT, words concerning, 281. 
 
 See Servant. 
 DROVER, words concerning, 274rc. 
 DRUGGIST, words of, 253. 
 
 DRUNKARD, charge of being, is actionable, 247. 
 DRUNKENNESS, charge of, not actionable, 242. 
 
 not a defense to an action for slander or libel, 435. 
 is mitigation, 435, 629n. 
 See Master Mariner. 
 DRUNKEN WHORE, held actionable, 233. 
 
 DUEL, calling one coward for refusing to fight, is actionable in Ten- 
 nessee, 205. 
 DUNCE actionable, spoken of a lawyer, 283. 
 DUTY, the opposite of a right, 83. 
 
 not a person or a thing, 83. 
 
 object of, 84. 
 
 and right reciprocal, 84. 
 
 pertains solely to persons, 84. 
 
 performance of, compulsory, 84. 
 
 how to be performed, 84. 
 
 in some sense the result of law, 85. 
 
 every act in performance of, &c, 85. 
 
 different under different laws, 86. 
 
 law prescribes, 89. 
 
 impossibility of defining, 90. 
 DYER, words concerning, 274. 
 
 E 
 
 EARTH, charge of stealing, 196. 
 ECCLESIASTICAL, courts, powers of, 63n., 101 n, 
 
 law, part of English common law, 63». 
 
 no status in New York, Q3n. 
 courts, establishment of, 97. 
 
 jurisdiction of, in cases of defamation, abol- 
 ished, 63». 
 EDITOR of newspaper, liability of, 157rc. 
 
 See Newspaper. 
 EFFIGY, is language expressed in signs, 58. 
 meaning of, 59. 
 publication of, 143. . 
 EMBEZZLEMENT, what amounts to a charge of, 195.
 
 index. 667 
 
 EMBRACERY, what amounts to a charge of, 189. 
 
 charge of, involves moral turpitude, 209. 
 EMPIRIC, judicial notice of meaning of, 169«. 
 charge of being, is actionable, 282. 
 EMPLOYER and employee. See Master and Servant. 
 EMPLOYMENT, loss of, is special damage, 293. 
 
 See Condition. 
 ENCHANTER, charge of being, not actionable, 239. 
 ETIQUETTE, charge of a breach of, not actionable, 252. 
 EVIDENCE of intention, 120»., 12ln. ? 610. 
 
 and pleading should correspond, 565. 
 
 of the language published, 565. 
 
 for plaintiff, 582. 
 
 of appointment to office, 268n. 
 
 of being duly licensed, 268w. 
 
 of publication of defamatory matter, 582. 
 
 as to innuendo, 537. 
 
 of witnesses as to meaning, 592. 
 
 of handwriting, 590. 
 
 of defendant's liability, 592. 
 
 of inducement, 594. 
 
 of inducement on the face of the libel, 596. 
 
 in aggravation of damages, 597. 
 
 of plaintiff's good reputation, 597. 
 
 of malice, 598, 600, 602. 
 
 falsehood may be, 599. 
 
 of plaintiff's rank and condition in society to aggravate 
 damages, 600. 
 
 of defendant's wealth, 602. 
 
 of current report that defendant had made charge against 
 plaintiff, 602. 
 
 of plaintiff's distress of mind, 602. 
 
 of malice to aggravate damages or to defeat defense of 
 privilege, 602. 
 
 of other publications by defendant to prove malice, 604. 
 
 of admissions by defendant, 606. 
 
 of personal ill-will, 607. 
 
 of malice on the face of the libel, 607. 
 
 of malice, from interposing a justification which is not 
 proved, 608. 
 
 by plaintiff to rebut defendant's evidence, 609. 
 
 for defendant, 610. 
 
 under general issue, 611.
 
 668 INDEX. 
 
 EVIDENCE— continued. 
 
 to sustain a plea of justification, 613, 615. 
 
 of plaintiff's reputation in mitigation, 616. 
 
 of plaintiff 's general reputation, 618, 620. 
 
 of truth under general issue, 621. 
 
 of truth, or tending to prove the truth of the matter pub- 
 lished, in mitigation, 622. 
 
 of acts of plaintiff, inducing a belief of the truth of the 
 charge complained of, 623. 
 
 of general reports or suspicion of plaintiff 's guilt, 623. 
 
 of plaintiff's standing and condition in society in mitiga- 
 tion, 625. 
 
 of defendant's declaration in mitigation, 625. 
 
 of heat and passion in mitigation, 626. 
 
 of prior publications of plaintiff in mitigation, 627. 
 
 of controversies between plaintiff and defendant in miti- 
 gation, 628. 
 
 of defendant's poverty not admissible in mitigation, 629. 
 
 what not receivable in mitigation, 629. 
 
 of loss of customers, 543. . 
 See Variance. 
 EXCISE. See Board of Excise. 
 
 EXCOMMUNICATED, charge of having been, is actionable, 238, 247. 
 EXCUSE. See Legal Excuse. 
 EXECUTOR, actions of slander or libel by, 498. 
 EXEMPLARY DAMAGES, when allowed, 489. 
 EX-PARTE AFFIDAVITS, publication of, not privileged, 373«., 641. 
 EX-PARTE PROCEEDINGS, report of, how far privileged, 370, 374w. 
 EXPOSURE of the person, charge of, 183. 
 
 See Indecent Exposure. 
 
 FACT and opinion, supposed distinction between, 219»., 453. 
 FAIR REPORT, what is meant by, 367. 
 
 question for jury, 368. 
 FALLING SICKNESS, charge of having, doubtful, if actionable, 242. 
 FALSE, charging a judge with being, is actionable, 287. 
 FALSE BOOKS, charge of keeping, 266. 
 
 mean false debt books, 267w. 
 
 charge of keeping, implies they were knowingly so 
 kept, 267?i.
 
 INDEX. 669 
 
 FALSE HEIR, charge of producing, held actionable, 237. 
 FALSEHOOD, charge of, is actionable, 248, 272. 
 
 justifying charge of, 337. 
 FALSE SWEARING, charge of, actionable in Arkansas and Illinois, 
 
 205, 229n. 
 charge of, not actionable, 193. 
 charge of, actionable, 228. 
 charge of, is actionable if in writing, 248. 
 justifying charge of, 341 n., 557. 
 See Forsworn, Perjury. 
 
 FALSE WEIGHT, charge of making, 277n. 
 
 FALSITY, how far necessary to constitute libel or slander, 115, ll&n. 
 
 must it be alleged, 116. 
 
 if alleged cannot be traversed, 116». 
 
 evidence of malice, 599, 433, 400n. 
 FARMER, charge of keeping false books, when actionable, 266. 
 
 words concerning, 214n., 267. 
 FEELINGS, law gives no remedy for outrage of, 97, 298. 
 FELON, charge of being, is actionable, 247n. 
 See Convicted Felon. 
 
 FELONY, what does not amount to a charge of, 217n. 
 
 charge of being guilty of, actionable, 236. 
 
 the word counterfeit imports, 236ra. 
 
 charge of concealing, actionable, 237. 
 FEMALE, charge against, of incontinency, when actionable, 206, 233, 294. 
 
 charge of drunkenness, actionable, 242n. 
 
 charging with having had a child, and made away with it, 
 234n. 
 
 with being a bad character, actionable, 2S4n. 
 
 charging with fornication, when actionable, 205, 233n., 234n. 
 
 charging with taking medicines to produce abortion, is ac- 
 tionable, 235. 
 
 charging sexual intercourse with a dog, 235. 
 
 charging with going to goose house, 235. 
 
 charging with drunkenness, actionable, 242». 
 
 may be arrested in action for slander or libel, 464. 
 See Hermaphrodite, Married Woman, Woman. 
 FEME SOLE, charge against chastity of, when actionable, 206, 233, 294. 
 
 See Special Damage. 
 FICTITIOUS NAMES, use of, to conceal defamation, 165?*., 168». 
 FIGURING in squatter riots, charge of, 183. 
 FILE OF BILLS, charge of stealing, 226n.
 
 670 INDEX. 
 
 FIRE COMPANY, unincorporated, cannot maintain an action for libel, 
 
 165». 
 
 See Corporation. 
 
 FLORIDA, what language is actionable in, 206. 
 
 FOOLS, tacitly exempted out of all law, 434. 
 
 FOR and AND, distinction between, 186. 
 
 FOREIGN STATE, charge of committing crime in, is actionable, 213. 
 
 action for publication in, 145. 
 FORFEITURE of recognizance, cannot be affected by words, 58». 
 FORGERY, meaning of the term, 189. 
 
 charge of, actionable, 183, 222. 
 justifying charge of, 559». 
 FORMER RECOVERY, defense of, 436. 
 
 defense of, must be specially pleaded, 437. 
 in mitigation, 631. 
 See Second Action. 
 FORNICATION, what amounts to a charge of, 189. 
 
 charge of, actionable in certain States, 206, 238, 234n. 
 charge of, not actionable, 234. 
 justifying charge of, 334, 339. 
 FORSWORN, charge of being, not actionable, 193, 214»., 229. 
 
 actionable in Arkansas and Illinois, 229ra. 
 FREEDOM of speech, in legislative bodies, 437^., 342. 
 
 of the press, 437. 
 FROZEN SNAKE, judicial notice of meaning of, 169rc., 185». 
 FUCK, an English word, and meaning known without an innuendo, 169n. 
 FUDGE, prefixed to a newspaper article, effect of, 369. 
 FUGITIVE from justice, requisition for arrest of, is privileged, 351w. 
 FURZE, charge of stealing, 196. 
 
 G 
 
 GAMBLING FRACAS, judicial notice x of meaning of, 169rc. 
 
 charge of being engaged in, not actionable, 253. 
 GOAL, charge of being in, actionable, 212. 
 GALLOWS, speech from the, not privileged, 375«.. 
 GENERAL DENIAL, effect of, 547. 
 
 and justification may be pleaded together, 549. 
 cannot justify on the ground of truth, under de- 
 fense of, 621. 
 GENERAL ISSUE, puts in issue, the correctness of a translation of 
 foreign words, 524. 
 evidence under, 611, 616.
 
 INDEX. 
 
 671 
 
 GEORGIA, what language is actionable in, 205. 
 
 GESTURES, included in effigy, 59. 
 
 GIN HOUSE, charge of burning, 222n. 
 
 GIST OF ACTION for slander and libel, 93, 107, 246m., 293m. 
 
 GOLDSMITH, words concerning, 277. 
 
 GONORRHOEA, charge of having, is actionable, 242. 
 
 GOOD BEHAVIOUR, binding to, 92m. 
 
 GOOD FAITH, meaning of the term, 306. 
 
 right to publish in, 397. 
 GOODS, reflections on, 307m. 
 
 See Things. 
 GOOSE HOUSE, no judicial knowledge that it means brothel, 170m. 
 
 charging female with visiting, not actionable, 235. 
 GOVERNOR, report by, is privileged, 362. 
 
 communication to, is privileged, 363m., 384. 
 GRAMMATICAL CONSTRUCTION not always followed, 169m. 
 GRAND JURY, report of, is privileged, 361m. 
 
 presentment to, is privileged, 362. 
 
 report of proceedings before, not privileged, 375. 
 GRAZIER, words concerning, 274m. 
 GUILTY, import of the term, 192. 
 
 H 
 
 HANDWRITING, evidence of, 591 n. 
 HEALER of felons, meaning of, 170m., 172m. 
 HEARSAY is probable ground for belief, 397m. 
 HEAT and passion, in mitigation, 626. 
 HEIR, presumptive words concerning, 263. 
 
 See False Heir. 
 HERETIC, not actionable, 240m. 
 
 HERMAPHRODITE, charge of being, not actionable, 241, 272. 
 HIEROGLYPHICS, defamation by means of, 168m. 
 HIGHWAYMAN, charge of being, not actionable by reason of context, 
 223m. 
 report of speech of, not privileged, 375m. 
 HOG STEALING, charge of, 196m. 
 
 justifying charge of, 337m. 
 HOG THIEF, charge of being, is actionable, 236. 
 HONEST LAWYER, actionable, 168m. 
 HONOR, injury to, 82m. 
 
 means reputation, 82n.
 
 672 INDEX. 
 
 HONORARY OFFICE, words of one in, 261. 
 
 HOOKED, court cannot take judicial notice of its meaning, 170/i- 
 
 HOPPOLES, charge of stealing, 195, 196. 
 
 HORSE, charge of killing, 236. 
 
 charge of cutting tail off, 240. 
 HORSE-STEALER, charge of being a, 331rc. 
 
 justification of charge of being, 331n., 332»., 334». 
 HORSE-THIEF, what amounts to a charge of being, 199. 
 
 charge of being thought no more of than a horse thief, 
 is actionable, 248. 
 HOTEL KEEPER. See Inn-Keeper. 
 HOUSE of ill-fame, meaning of the term, 188. 
 HOUSE of Lords. See Lords. 
 HUSBAND, loss of, is special damage, 293. 
 and wife, publication by, 152. 
 
 may sue, after recovery by husband, 436. 
 as parties, 499. 
 defense to action by, 500. 
 
 joinder of causes of action, in action by, 500n- 
 See Married Woman. 
 HYPOCRITE, charge of being, is actionable, 247. 
 
 ICELAND, actionable language in, 204rc. 
 ICELANDERS, their horror of libel, 68». 
 IDENTITY of plaintiff, how proved, 163w. 
 IGNORANCE, charge of, when actionable, 281, 283. 
 
 what amounts to a charge of, 199. 
 ILLEGALITY of occupation, when a defense, 259, 501 n. 
 ILL-FAME. See House of Ill-Fame. 
 ILLINOIS, what language is actionable in, 205. 
 
 child under ten years of age cannot be punished for larceny 
 
 in, 214«. 
 calling a woman whore is actionable in, 233». 
 statutory definition of libel in, 76n. 
 IMPOSTOR, charge of being, is actionable, 282n. 
 IMPOSTURE, charge of living by, not actionable, 215. 
 IMPRISONMENT, language cannot amount to, 58». 
 INCEST, imputation of, when actionable, 206, 215, 284. 
 charge of, not actionable, 215. 
 what is not a justification of a charge of, 333re.
 
 INDEX. 
 
 673 
 
 INCLINATION, charge of, not actionable, 217. 
 INCONTINENCE, charge of, when actionable, 205, 238, 261. 
 
 seldom made in coarse language, 191. 
 INDECENT exposure of person, charge of, involves moral turpitude, 
 209. 
 charge of, is actionable, 237. 
 INDEMNITY against, consequence of publishing a libel, not lawful, 
 502». 
 if an aggravating circumstance, 602». 
 INDIANA, what language is actionable in, 206, 233rc., 238w. 
 INDICTABLE OFFENSES, charge of committing, when actionable, 
 
 209. 
 INDICTMENT, for libel, 63. 
 
 does not lie for slander, 63. 
 INDUCEMENT, office of, and when necessary, 504. 
 of ironical language, 504«. 
 
 to show meaning, not necessary in England, 505. 
 to show application to plaintiff not necessary in New York, 
 
 506. 
 in what part of complaint to be inserted, 506. 
 where there are several counts, 507. 
 to be stated in a traversable form, 507. 
 matter of, may be put in issue, 508. 
 when superfluous, 508, 509. 
 of showing application to plaintiff, 510. 
 
 plaintiff's occupation, 511, 512. 
 too great minuteness in, to be avoided, 513. 
 of plaintiff being duly qualified, 513. 
 where the charge is of false swearing, 514, 515. 
 must be proved, 594. 
 how proved, 594, 596. 
 INFAMOUS PUNISHMENT, what is, 210. 
 INFANCY, not a defense to an action for slander or libel, 435. 
 INFANT, liable to arrest on execution in an action for slander or libel, 
 465ra. 
 not liable for nuisance, 435». 
 See Child. 
 INFORMATION, when privileged, 393. 
 INFORMER, charge of being, is actionable, 247, 641. 
 INGRATITUDE, charge of, actionable, 185»., 246. 
 INJUNCTION to restrain publication of libel not ordinarily allowed, 
 91».
 
 674 INDEX. 
 
 INJUNCTION— continued. 
 
 against rendition of jugdment in an action of slander, on 
 
 account of insanity of defendant, 434. 
 to secrecy, 592. 
 INITIALS of name, description of party by, lC5n., 169n. 
 INNKEEPER, words concerning, 273, 274n. 
 
 is a trader, 274ra. 
 INNUENDO, what it is, 161n., 526. 
 
 when it cannot apply language to the plaintiff, 164n., 528, 538. 
 when not necessary, 169n. 
 admitted, by not pleading, 470. 
 to point meaning, 526, 534, 643, I81n., 182n. 
 must be justified, 556«., 341. 
 unwarranted arrest of, judgment for, 530, 185. 
 new trial for, 495. 
 when it may be rejected, 535, 540. 
 effect of, after verdict, 186». 
 justifying, 341, 556w. 
 not admitted by demurrer, 564. 
 evidence to support, 537. 
 cannot extend meaning of words, 530, 244. 
 instance of use of, 277n. 
 plaintiff bound by, 534. 
 held proper, 536. 
 held unwarranted, 536. 
 INQUIRY, answer to, when privileged, 403. 
 writ of, to assess damages, 470. 
 INSANITY, charge of, is actionable, 248, 272. 
 
 is a defense to an action for slander or libel, 170?i., 434. 
 complaint for charge of, need not allege special damage, 
 541. 
 INSOLVENCY, charge of, when actionable, 273. 
 INSPECTION of documents, when ordered, 466, 468. 
 INSPECTOR OF CHARITIES, report of, not privileged, 375n. 
 INSULT, words amounting to, actionable in Mississippi, Virginia and 
 
 Georgia, 205. 
 INSULTING FEMALES, charge of, is actionable, 249. 
 INTENTION, presumption of, 111, U'2n. 
 how judged of, 121n. 
 what is, 118, 119, 120. 
 kinds of, 120. 
 
 is a mental conception, 120. 
 is a fact, 120
 
 675 
 
 INDEX. 
 
 INTENTION— continued. 
 
 bad, is malice, 121. 
 meaning of, 122. 
 evidence of, 120n., 121n., 610. 
 how far necessary to constitute a wrong, 110, 132. 
 justifying, 341 n. 
 
 charge of, when not actionable, 215. 
 question for jury, 599. 
 INTERPRETATION, when not allowed, 161n. 
 
 See Construction. 
 INTERROGATION, charge of offense by means of, 219. 
 INTERROGATORIES, to defendant when allowed, 467, 468. 
 INVOLUNTARY ACT, what is, 118. 
 
 no responsibility for, 110. 
 IOWA, calling a woman whore is actionable in, 233/1., 234n. 
 IRELAND, charge of murder in, 214rc. 
 IRONICAL WORDS, 159»., 168». 
 
 to be explained by inducement, 504/i. 
 ITCH, charge of having, not actionable, 242. 
 
 charge of having, is actionable, if in writing, 248. 
 
 JACOBITE, charge of being a, when actionable, 216. 
 JAIL, held to be a public court, 374. 
 
 charge of being in, 212. 
 JEOPARDY. See Danger of Punishment. 
 JEST, not a defense to an action of slander or libel, 434n., 476>i. 
 JESUITS, sanctioning killing, for slander, 98». 
 JEWELLER, words concerning, 277. 
 JEZEBEL, judical notice of meaning of, 169n. 
 JOINDER of causes of action, 544. 
 
 of parties. See Parties. 
 JOINT ACTION, when maintainable, 501, 262. 
 JOINT PUBLICATION of oral language, cannot be, 152. 
 of written language, 152. 
 action for, 153. 
 JOINT STOCK COMPANY, action by, in name of chairman, 458. 
 JUDGE, words concerning, 286. 
 
 not liable in slander or libel, 360. 
 
 private letter to, not privileged, 350n. 
 
 may refuse to try a cause, 472. 
 
 new trial before the judge who presided at the first trial, 472.
 
 676 ESTDEX. 
 
 J U D G E — co n tinned. 
 
 to say of unambiguous language if it is actionable, per se, 
 
 481,. 592. 
 charge to jury, 482. 
 
 on uncontroverted facts to decide if publication is privileged, 
 484. 
 JUDGMENT, arrest of, 563, 644. 
 
 JUDICIAL NOTICE of meanings of words, &c., I69n., 236n. 
 JUDICIAL PROCEEDING, privilege of, 348. 
 
 reports of, are privileged, 364. 
 
 to be conducted openly, 364. 
 
 law suit implies a, 230ra. 
 
 attorney's bill of costs is not, 352n. 
 
 include every proceeding before a competent 
 
 court or magistrate, 355w. 
 voluntary affidavit is not, 641. 
 JURY to decide questions of fact, 113. 
 power of court over, H3n. 
 to judge of meaning, 165. 
 province of, 478. 
 what to guide them in deciding on meaning of words, 167n., 
 
 171n., 175«. 
 charge of packing, 193, 241. 
 instructions to, as to damages, 486. 
 
 See Questions for Jury. 
 to determine the meaning of words, 476, 592. 
 to determine the meaning ascribed by the innuendo is the true 
 
 meaning, 479. 
 to determine truth of the facts charged, 480. 
 what the judge may charge, 482. 
 JURYMAN words concerning, 288. 
 
 not liable for words spoken in the jury room, 361 n. 
 JURY, trial by, origin of, 98?i. See Trial. 
 JUSTICE, meaning of, 193. 
 
 words concerning, 269, 286. 
 certificate by, is privileged, 361 n. 
 courts of, to be held with open doors, 364. 
 administration of a subject of criticism, 449. 
 JUSTICE. OF THE PEACE, no jurisdiction of action for slander or 
 
 libel, 464. 
 paying money to secure election of, involves moral tur- 
 pitude, 209. 
 words concerning, 270, 269, 286.
 
 index. 677 
 
 JUSTICE OF THE PEACE— continued. 
 
 not liable for defamatory matter in his official certificate, 
 
 SQln. 
 liable for defamation, 362n., 363. 
 JUSTIFICATION, must be as broad as the charge and must justify the 
 
 precise charge, 328, 342, 550. 
 no such thing as a half-way justification, 332». 
 must be of the meaning, 333«., 340/i., 341. 
 of innuendo^ 556ft., 341. 
 requisites of plea of, 341 n., 550, 557. 
 withdrawing on trial, 475. 
 failing in part, 559. 
 
 plea of, not sustained, when evidence of malice, 608. 
 plea of, construed against the pleader, 554w. 
 how proved, 613. 
 of divisible allegations, 331. 
 need not go further than the charge, 338. 
 must extend to every part of the matter which could form a 
 
 ground of action, SS9n. 
 of a charge of perjury, 333n., Soon., 340. 
 of the fact sufficient, without denying the innuendoes and epithets, 
 
 341n. 
 motive, manner and intention, immaterial to a, 341 n. 
 of intent necessary, where intent charged, 341 n. 
 must be of the sense imputed in the innuendo, 341. 
 of innuendo when unnecessary, 341, 556n. 
 plaintiff entitled to judgment for part not justified, 340«. 
 by the occasion, 318«. 
 some libels do not admit of, 318n. 
 
 See, Defense, Perjury, Truth, Plea. 
 
 K 
 
 KENTUCKY, calling a woman whore is actionable in, 233ft., 234ft. 
 
 charging a man with fornication in, is actionable, 238ft. 
 KEY, charge of stealing, 226ft. 
 KIDNAPPING, charge of, is actionable, 247. 
 KILL, KILLED, KILLING, meaning of the terms, 191. 
 KILLING, charge of, actionable, 223. 
 
 a horse, charge of actionable, 236. 
 
 and salting a hog, charge of, not actionable, 240. 
 
 charging a physician with killing a patient with physic not 
 actionable, 281ft.
 
 678 INDEX. 
 
 KNAVE, import of the term, 191, 236rc. 
 
 charge of being, is actionable, 236, 247n. 
 See, Rebellious Knave, Traitor Knave, Traitorous Knave, 
 Thievish Knave, Bankrupt Knave, Pocky Knave, Bribing 
 Knave, Bankruptcy Knave, Leprous Knave, 
 
 KNOWLEDGE of plaintiff, how it affects the meaning of language, 
 178. 
 of plaintiff, when to be alleged, 178n. 
 See Scienter. 
 KNOWN, import of the term, 191. 
 
 LACEMAN, words concerning, 274w. 
 
 LAMPOONER, defined, 61ra. 
 
 LANDLORD and tenant, communications between, how far privileged, 
 
 411. 
 LAND-MARKS, charge of removal, involves moral turpitude, 208. 
 
 charge of removing, is actionable, 237. 
 LAND SURVEYOR, words concerning, 278. 
 
 LANGUAGE, formerly no action for, unless the words if true, would 
 endanger life, lOln. 
 joint publication of, 152. 
 construction of, 159, 165. 
 ambiguous or unambiguous, 159. 
 kinds of ambiguity of, 160. 
 
 ambiguous, as to whether it concerns a person or a thing, 
 163. 
 how construed, 179». 
 may give a right of action when it concerns one in trade, 
 although not actionable as applied to an individual as 
 such, 164. 
 a means of effecting injury, 57. 
 ancient laws against offenses by, 95. 
 oral or written, 58. 
 effect of, 59, 78. 
 
 coarseness of, in former times, 98». 
 is not a trespass, 58». 
 can have no effect until published, 78. 
 must assume the form of propositions, 78. 
 must concern a person or a thing, 78.
 
 INDEX. 679 
 
 LANGUAGE — continued. 
 
 effect of its publication must be direct or indirect, or 
 
 both, 79. 
 direct effects of, 79. 
 
 effect of, the same whether oral or written, 79. 
 must produce some effect, 80. 
 
 impossible to anticipate all the indirect effects of, 80. 
 affects the reputation, 80. 
 actionable per se, and language actionable by reason of special 
 
 damage, distinction between, 203. 
 supposed origin of such distinction, 97. 
 effect of time on meaning of, 171. 
 
 effect of extraneous circumstances upon meaning of, 172. 
 what is actionable, 202. _ 
 actionable per se, 203. 
 jury to determine meaning of, 476, 592. 
 to be set forth in complaint, 522. 
 presumed to be false and malicious, 598. 
 evidence of facts alleged, 509, 596. 
 evidence of malice, 607. 
 
 See Actionable Language, Construction, 
 Libel, Slander, Words. 
 LARCENY, what will amount to a charge of, 183, 192, 226n. 
 
 in Illinois, child under ten years cannot be guilty of, 214». 
 charge of, actionable, 225. 
 
 See Robbery, Stealing, Thief. 
 LAW BUSINESS, arises from difficulty of definition, 76». 
 LAW MAXIMS, not to be received as axioms, 127w. 
 LAW of libel, what understood by, 64, 70. 
 denounced as vague, 65. 
 ecclesiastical, part of English common law, 63». 
 no status in New York, Q3n. 
 LAWSUIT, implies a judicial proceeding, 2S0n. 
 LEATHER GUN, shooting out of, courts take notice of meaning of, 109n. 
 
 See Shooting. 
 LEGAL EXCUSE, what is, 109. 
 
 distinction between, and defense, 110. 
 LEGISLATIVE PROCEEDINGS are privileged, 342, 346. 
 supposed to be secret, 343. 
 when to be with open doors, 344. 
 publication of, how far privileged, 345. 
 publication of, unlawful, 343.
 
 680 INDEX. 
 
 LEGISLATOR, privilege of, 342, 345, 345». 
 
 See Member of Parliament. 
 LEGISLATURE, petition to, is privileged, 344. 
 LEPROSY, charge of having, is actionable, 242. 
 LEPROUS KNAVE, actionable, 242. 
 LETTER CARRIER, words of, 258. 
 LETTERS, confidential, not privileged, 389?i. 
 post-marks on, 583». 
 
 See Breaking Open, Private Letters. 
 LEWD, charging a judge with being, is actionable, 287. 
 LIABILITY, extent of, 110. 
 
 of defendant, how proved, 592. 
 LIAR, what imports a charge of being, 192. 
 charge of being, not actionable, 239. 
 charge of being, actionable if in writing, 247. 
 charge of being, against a merchant's clerk, actionable, 278. 
 charge of being, against a minister, actionable, 284». 
 charge of being, against a judge, actionable, 287w. 
 charge of being, how justified, 553. 
 LIBEL, what it is, 60, 63, 77. 
 
 action not maintainable for cost of printing, 501n. 
 remedy for, 63. 
 
 dies with plaintiff, 498. 
 not assignable, 498. 
 not within actions for slanderous words, 20Sn. 
 kinds of, 69n. 
 
 and slander, distinction between, 67, 68n. 
 proposal to assimilate, 102ra. 
 no definition of, l\n. 
 attempts to define, 71, 77. 
 statutory definitions of, 75w. 
 
 uncertain when remedy by action for, was introduced, 93. 
 gist of action for, 93, 246. 
 consists of three acts, 115. 
 essential element of, 115. 
 
 to constitute, language must be defamatory, 115. 
 must language be false, 115. 
 must the publication be malicious, 117. 
 in newspaper, statutory provisions as to, 440/t. 
 enjoining publication of, by injunction, 91». 
 by corporation, 456. 
 
 See Slander of Title, Slander, Actionable Language, 
 Conspiracy, Action.
 
 INDEX. 681 
 
 LIBELLER, who is, 60. 
 
 and satirist, distinction between, 61. 
 
 charge of being, is actionable, 247. 
 
 could not take as devisee, nor make a will, 247w. 
 LIBELLI, cards of the races so called, 72 n. 
 
 LIBELLOUS JOURNALIST, charge of being, is actionable, 247. 
 LIBELLOUS, meaning of, 69?i. 
 LIBERTY of the press, 437. 
 LICENSE to trade, need not be alleged, 259. 
 
 want of, must be set up as a defense, 260. 
 LIEN of attorney, not a ground for denying a new trial, 492w. 
 LIEUTENANT-GOVERNOR, words concerning, 290. 
 
 petition to, is privileged, 384. 
 LIMAR, meaning of the term, 172/i. 
 LIME-BURNER, words concerning, 276. 
 LIMITATION, time of, 464. 
 LIVERY-STABLE KEEPER, words of, 257 n. 
 LODGE of Odd Fellows, charges preferred to, not privileged, 385. 
 LOOSE WOMAN, charge of being a, actionable, 234. 
 LORDS, lives of, not to be published, 344rc. 
 
 committee of House of, is a public court, 374. 
 See Member of Parliament. 
 LYING, justifying charge of, 334. 
 
 M 
 
 MADE AWAY WITH, does not impute larceny, 192. 
 MADMEN, tacitly exempted out of all law, 434. 
 MAGISTRATE, language concerning, 371ra., 287n. 
 
 report of proceedings before, privileged, 375. 
 See Justice, Judge. 
 MAIL, the U. S., charge of robbing, 225. 
 MAINE, statutory definition of libel in, Ion. 
 MAINTAINER of suits, not actionable, 236w. 
 what is meant by, 117. 
 See Barrator. 
 MALICE, is really bad intent, 121. 
 nonsense concerning, 117m. 
 meaning of, 117, 121, 122, 123, 156«. 
 
 division of, into malice in law, and malice in fact, 124, 404. 
 how far necessary to constitute a wrong, 126, 154, 156. 
 necessary to a cause of action concerning a thing, 307. 
 
 44
 
 682 LNDEX. 
 
 MALICE — continued. 
 
 need not be alleged in complaint, ISOn., 131»., 521. 
 
 falsehood is evidence of, 599, 433. 
 
 must be proved, 126/a. 
 
 an element of damage, lSln. 
 
 when evidence of, to be given, 129^., 131, 321, 467. 
 
 proof of, 598, 603. 
 
 on the face of the publication, 607. 
 See Intention. 
 MALICIOUS PROSECUTION, what it is, and how it differs from 
 slander and libel, 347. 
 no remedy for, in an action for slander or libel, 348. 
 when maintainable, 347. 
 effect of recovery in, 437. 
 MALICIOUS TRESPASS, charge of committing, not actionable, 215. 
 
 See Trespass. 
 MALICIOUSLY, meaning, 123. 
 
 wrongfully and injuriously not equivalent to, 131«. 
 sometimes equivalent to scienter, I23n. 
 MAN, how distinguished from other animals, 440/&. 
 
 See Woman. 
 MAN FRIDAY, judicial notice of the meaning of the term, lQ9n. 
 
 not actionable words, 172». 
 MANSLAUGHTER, what words impute, 2S2n. 
 
 MARINE COURT of New York, has jurisdiction of actions for slander 
 and libel, 464. 
 removal of actions into, 464». 
 MARINER. See Master Mariner. 
 MARKS on cattle, charge of altering, involves moral turpitude, 209. 
 
 charge of altering, actionable, 236. 
 MARL, charge of stealing, 196. 
 MARRIAGE, loss of, is special damage, 293, 300. 
 how alleged in the complaint, 543. 
 
 charging a married man with going through ceremony of, 
 with an actress, is actionable, 249. 
 MARRIED WOMAN, language concerning, 206. 
 
 charge of stealing goods of, when actionable, 185«., 214rc. 
 may be held to bail, 465. 
 may sue for slander or libel, 206, 499, 646. 
 cannot sue her husband for slander or libel, 499. 
 See Husband "and Wife, Wife. 
 MARYLAND, what language is actionable in, 206, 233rc. 
 MASON, words of, 283.
 
 INDEX. 683 
 
 MASS, charge of going to, actionable, 211n. 
 
 MASTER MARINER, charge of drunkenness against, is actionable, 242«. 
 charge of selling consignment and pocketing proceeds, 277. 
 MASTER, liable for acts of his servant, 156. 
 
 and servant, effect of relation of, 407/*., 410, 411, 421n. 
 
 right of master to give character to servant, 420, 
 424, 635. 
 See Servant. 
 MATHEMATICS, why certain, 76. 
 MAXIMS, not to be received as axioms, 127«.. 
 MAYOR, words concerning, 287. 
 
 language by, is privileged, 362re. 
 MEANING, the term, how used, 177w. 
 
 opinion of witness as to, not allowed, 592. 
 See Construction, Innuendo. 
 MEETINGS, when reports of proceedings at, are privileged, 381. 
 
 See Public Meeting. 
 MEMBER of Congress, words concerning, 290. 
 
 of Parliament, words concerning, 289. 
 
 when he may refuse to testify as a witness, 587w. 
 cannot as such be guilty of conspiracy to libel, 343». 
 privilege of speech of, 342, 345. 
 may publish to his constituents a speech delivered in 
 Parliament, 345». 
 See Legislator. 
 MEMORIAL. See Petition. 
 MENTAL DISTRESS is not special damage, 298. 
 MERCANTILE AGENCY, privilege of, 415. 
 
 number of suits against, 416?i. 
 MERCHANT, charge of keeping false account books, 266. 
 charge of being a swindler actionable, 276«. 
 words of, 268, 270». 
 See Trader. 
 MERCHANT'S CLERK, words concerning, 278. 
 METHODIST MINISTER, language concerning, 284n. 
 
 See Minister. 
 MICHIGAN, w r hat language actionable in, by statute, 206. 
 MIDWIFE, words concerning, 282. 
 MILK PURSE, judicial notice of meaning of, 169». 
 MILLER, words concerning, 173n. 
 MINISTER of the Gospel, words of, 227, 264, 272»., 284, 295, 453. 
 
 not privileged in communications with members of 
 his congregation, 413.
 
 684 index. 
 
 MINISTER of the Gospel — continued. 
 
 charge of drunkenness against, is actionable, 242«. 
 charge of incontinence against, 261m., 284. 
 justifying charge of blasphemy against, 336. 
 MISCARRIAGE, charge of attempting to procure or causing, not 
 actionable, 215. 
 See Abortion. 
 MISCHIEF, everything in nature may be instrument of, bin. 
 
 caused by words, bin. 
 MISCONDUCT in trade, charge of, is actionable, 276. 
 MISANTHROPIST, charge of being a, 290. 
 MISERABLE FELLOW, charge of being, is actionable, 247. 
 MISFEASANCE, charge of, against a justice of the peace is action- 
 able, 286. 
 MISSISSIPPI, what language is actionable in, 205. 
 MISSOURI, what language is actionable in, 206, 233m., 238ra. 
 MITIGATING CIRCUMSTANCES, what amount to, 561. 
 
 setting up, in answer, 561. 
 MITIGATION, rumors against plaintiff's character, 322m., 342m., 623. 
 naming previous publisher, 325m., 342m. 
 truth cannot be shown in, unless pleaded, 621. 
 facts showing suspicion of plaintiff's guilt, not amounting to 
 
 actual proof, 623. 
 facts tending to prove truth, but falling short of it, 327m. 
 plaintiff's general bad character, 630m. 
 copied from previous publication, 342m., 629m.. 
 
 with omissions, 342m. 
 drunkenness may be shown in, 435, 629m. 
 apology in, 435m. 
 
 pendency of other actions in, 631m. 
 plaintiff's standing and condition in society, 625. 
 defendant's acts and declarations, 625. 
 that plaintiff, defendant's enemy, 630. 
 boasts of plaintiff of having committed similar offenses to 
 
 those charged, 630. 
 plaintiff in the habit of abusing defendant, 630. 
 plaintiff a common libeller, 631. 
 former recovery against defendant, 631. 
 injunction to secrecy, 592. 
 retraction of the charge, 625, 626m. 
 heat and passion, 626. 
 former publications by plaintiff, 627m. 
 provocation by plaintiff, 627, 628.
 
 INDEX. 685 
 
 MITIGATION— continued. 
 
 controversies between plaintiff and defendant, 628. 
 defendant's poverty, 629. 
 defendant's apparent good humor, 629«. 
 previous publication by others, 630. 
 benefit to plaintiff, 489?*., 630. 
 
 declarations of plaintiff that he had not been injured, 630. 
 declaration by plaintiff that he believed the defendant was 
 not the author of the defamation, 630. 
 MITIORI SENSJJ, construction in, 179, 252. 
 MORAL OBLIQUITY, charge of, is actionable, 248. 
 
 how justified, 556». 
 MORAL TURPITUDE, what is meant by, 207. 
 what offenses involve, 208. 
 
 when charge must involve, in order to be actionable, 208. 
 MORTGAGEE of printing press not liable as publisher, \h!n. 
 MOTHER, charge of whipping not actionable, 241. 
 
 in law, charge of suing, not actionable, 252. 
 MOTIVE synonymous with intent, 119. 
 MOUNTEBANK, judicial notice of meaning of, 169n. 
 charge of being, is actionable, 282n. 
 MULATTO, charge of being a, when actionable, 172n., 241. 
 MURDER, charge of, when not actionable, 173, 223. 
 what amounts to charge of, 192. 
 charge of soliciting to commit, involves moral turpitude, 
 
 209. 
 charge of committing, in Ireland, 214». 
 MURDERER, charge of being a, actionable, 223. 
 
 charge of being, not actionable by reason of context, 
 
 160rc., 223n. 
 report of speech of, not privileged, 375. 
 MURDERING ROGUE, actionable, 220. 
 MURDEROUS QUEAN, not actionable, 220n. 
 MURDEROUS VILLAIN, not actionable, 221. 
 
 N 
 
 NAME, presumption from identity of, 163». 
 NATURAL RIGHT, no such thing as, 85, 87 
 NEGRO, harboring, charge of, 241. 
 
 giving a free pass to, 241. 
 
 charge of being akin to, 241. 
 
 charge of hiring, to kill cattle, 241.
 
 686 INDEX. 
 
 NEW BOOKS, how made, 66n. 
 
 NEW HAMPSHIRE, charge of fornication actionable in, 238rc. 
 NEW JERSEY, charge of fornication actionable in, 234rc. 
 NEWSPAPER, receiver to conduct, liability of, loin., 646. 
 proprietor, liability of, 157, 439. 
 
 words concerning, 445 n. 
 in New York, privilege of, 345, 346«. 
 editor, liability of, 157/z. 
 
 rights of, 439, 441, 296rc., 346^., 364»., 444h, 
 proposed law as to, 439?i. 
 reporter, rights of, 364/i., 370>i. 
 when it may be read in evidence, 590. 
 proof of publication of, 587, 589. 
 actionable language concerning, 308«. 
 advertisement in, when privileged, 394, 417. 
 law does not take judicial cognizance of, 439. 
 statutory provisions relating to libels in, 440/*. 
 called an opinion mill, 438?i. 
 NEW TRIAL, before what judge, 472. 
 
 for excessive damages, 492. 
 
 for insufficient damages, 493. 
 
 because verdict for defendant, instead of for plaintiff, 
 
 with nominal damages, 494. 
 because innuendoes unwarranted, 495. 
 on one of several issues, 495n. 
 for newly discovered evidence, 494. 
 because verdict against weight of evidence, 114»., 495. 
 reducing amount of damages on motion for, 494. 
 not denied because it may affect the attorney's lien, 492*. 
 on one of several issues not allowed, 495n. 
 NEW YORK, what language actionable in, by statute, 206. 
 NEW YORK CITY, when language in, amounts to a breach of the 
 
 peace, 92«. 
 NOISES, action for, 57rc. 
 NOMINAL DAMAGES, when proper, 486, 627». 
 
 where jury not limited to giving, 470?;., 488. 
 new trial not granted because verdict should have been 
 for, 494. 
 
 See Damages. 
 NONSUIT, action for same cause after, 496. 
 
 NORTH CAROLINA, what language is actionable in, 206, 233n., 234». 
 NOTARY, action against, for wrongly protesting a note, 58«. 
 NOTICE, as a substitute for a plea or answer, 560.
 
 INDEX. 687 
 
 NUISANCE, action for, compared to action for slander, 57m.. 
 NOT GUILTY. See General Denial. 
 NUMBER, allegations of, are divisible, 201. 
 
 o 
 
 OBLIGATION, duty is, 83. 
 
 OBLIQUITY. See Moral Obliquity. 
 
 OBITUARY NOTICE, publishing of one alive is actionable, 249. 
 
 OBSCENE WORDS need not be set forth in pleading, 524. 
 
 OCCASION upon which an act is enacted, 90. 
 
 justification implied from the, 31 8n. 
 materiality of the, 451 n. 
 
 whether it gives a privilege is a question of law, whether 
 the privilege has been used in good faith is a question 
 of fact, 485w. 
 OCCUPATION of plaintiff, how proved, 596. 
 
 See Trade. 
 ODD FELLOWS. See Lodge. 
 OFFER by defendant to allow judgment, 495. 
 OFFICE, words concerning one in, 254, 265, 286. 
 
 of profit and of honor, distinction between, 266n. 
 words concerning candidate for, 431. 
 proof of appointment to, 268n. 
 See Candidate, Trade. 
 OHIO, calling a woman whore is actionable in, 233w., 234/i. 
 
 charging a man with fornication not actionable in, 238ft. 
 new trial in, 494?i. 
 OPINION, words denoting, not actionable, 217. 
 
 of witnesses, when receivable, 166?i., 593. 
 when privileged, 403, 453. 
 criticism is, 451. 
 
 and fact, supposed distinction between, 21 9n., 453. 
 OPTICIAN, language concerning, 283. 
 ORAL language, what is, 58. 
 
 construed the same as written language, 165. 
 less capacity for injury than written language, 67. 
 what actionable, 206. 
 ORIGINAL WRITS abolished, 93n. 
 OUTLAW, action by, 497. 
 
 song of the, lSQn. 
 OUT-PUTTER, meaning of the term, 172». 
 OVERSEER, words of, 225/*., 289, 434. 
 OVERSEERS' MEETING, proceeding at, how far privileged, 379.
 
 688 index. 
 
 PACKING A JURY, charge of, 193, 241. 
 PAPIST, not actionable, 240n. 
 PARDON, effect of, on right of action, 211. 
 PARENT, not liable for acts of children, 157». 
 PARISH MEETING, proceedings at, how far privileged, 379. 
 PARLIAMENT, proceedings of, in theory, conducted with closed doors, 
 343. 
 petition to, is privileged, 344. 
 See Legislative Proceedings, Members of Parliament. 
 PARTIAL, charging a judge with being, is actionable, 287. 
 PARTICULARS. See Bill of Particulars. 
 PARTIES to action, for joint publication, 152, 153. 
 privilege of, 354, 356, 357«. 
 may appear by attorney, 356. 
 may conduct their suits in person, 356. 
 generally, 497. 
 PARTISAN, charge of being a, 290. 
 PARTY plaintiff, who may be, 163n. 
 PARTNERS, actions against, 153. 
 charge against, 224. 
 words concerning, 261. 
 parties to actions, by and against, 501. 
 PASSING counterfeit money, charge of, not actionable, 240. 
 PASSION. See Towering Passion. 
 PASTOR. See Minister of the Gospel. 
 PATRONAGE, meaning of, 182. 
 
 PAUPER, inducing him to bring an unfounded action, 349«. 
 PAWNBROKER, words concerning, 274«. 
 PAYMENT into court, defense of, 435«. 
 
 PECUNIARY LOSS, the gist of an action for slander or libel, 103, 
 107, 260. 
 is special damage, 107«., 293. 
 PEDLAR, a rogue by statute, 258«. 
 
 See Bogus Pedlar. 
 PENCIL MARK is writing, 59». 
 
 PENITENTIARY OFFENSE, charge of committing, is actionable, 237. 
 PENNSYLVANIA, false swearing in ecclesiastical court of, 230n. 
 
 charge of fornication actionable in, 233h., 238». 
 charge against public officer in, 432?;. 
 PERIL. See Danger of Punishment.
 
 INDEX. 689 
 
 PERJURED KNAVE, not actionable, by reason of the context, 176rc., 
 
 22 In., 227ra., 228». 
 PERJURED PRIEST, actionable, 284. 
 PERJURED ROGUE, actionable, 228rc. 
 PERJURY, what amounts to charge of, 193. 
 
 charge of, how justified, 333«., 335w., 340, 557, 614, 615. 
 charge of procuring one to commit, is actionable, 215. 
 charge of, actionable, 227. 
 in swearing to a promise void by the statute of frauds, 
 
 232/i. 
 complaint for charge of, 514«., 515ra. 
 PERSON, language concerning the, 161. 
 PERSONAL INVECTIVE, justifying charge of, 339. 
 PETITION to parliament, when privileged, 384. 
 for redress, when privileged, 383. 
 circulating, to obtain signatures is allowable, 392- 
 PETTYFOGGING, charge of, against attorney, actionable, 281n. 
 PHYSICIAN, words of, 252re., 272, 281w. 
 
 See Druggist. 
 PICKPOCKET, charge of being,. 197». 
 
 is actionable, 236. 
 PIEPOWDER, court of, 64?i. 
 PIGEONED, charge of having been, by plaintiff, a minister of the 
 
 gospel, not actionable, 285. 
 PILFERING, meaning of the term, 194. 
 
 charge of, when actionable, 225. 
 PIMP, meaning of, 172rc. 
 PLACARD, proof of, 591. 
 PLACE of publication, how far material, 520, 144. 
 
 of trial, 465. 
 PLAINTIFF, must be identified in the alleged defamatory matter, 
 163w., 516. 
 need not be directly named, 163, 168n. 
 if language not applicable to, innuendo cannot make it 
 
 so, 163/i., 528, 538. 
 what language does not sufficiently point to, 163n. 
 what he must show to sustain an action, lQ7n. 
 who may be, 497. 
 publication by, how alleged, 518. 
 effect of death of, 498. 
 
 evidence of good reputation of, to aggravate damages, 597. 
 evidence of his rank and condition to aggravate damages, 
 600.
 
 690 INDEX. 
 
 PLAINTIFF— continued. 
 
 evidence of occupation of, 596. 
 
 distress of mind not damage to, 602. 
 
 ill-will of defendant towards, to aggravate damages, 602. 
 
 evidence for, 582 el seq. See Evidence. 
 
 withdrawing a cause of action at the trial, 475. 
 
 general reputation of, is put in issue, 616. 
 
 inquiry into reputation of, 618. 
 
 evidence of standing and condition in society to mitigate 
 damages, 625. 
 
 evidence of acts of, in mitigation, 626, et seq. 
 
 benefits to, by libel, cannot be shown, 630»., 489n. 
 
 execution against person, for costs, 465. 
 
 conviction of for the imputed offense, 328n. 
 
 trial of for imputed offense, 498. 
 PLEA, formerly only one, allowed, 330. 
 
 to whole or part of complaint, 331. 
 effect of, not interposing, 470. 
 withdrawal of, on trial, 475. 
 answer corresponds to, 546. 
 that publication by mistake, 546w. 
 of general issue, 547. 
 in bar must answer the whole count, 548. 
 of truth, requisite of, 550. 
 justifying a charge of crime, 557. 
 of justification failing in part fails altogether, 559. 
 notice in lieu of, 560. See Answer. 
 of apology and payment into court, 435n., 440n. 
 of accord and satisfaction, 435. 
 of former recovery, 437. 
 of justification, inspection to prepare, 468. 
 withdrawing on the trial, 475. 
 PLEADING, how construed, 180»., 182». 
 
 defamatory matter in, will it give a right of action for 
 349. 
 
 defamatory matter in, may be struck out, 351. 
 
 certainty in, 526. 
 
 carried to excess, 181. 
 
 formerly in Latin, 51 9n. 
 
 defamatory matter in, when client not responsible for, 
 157». 
 
 mitigating circumstances, 561. 
 
 and proof to correspond, 565. 
 
 See Answer, Complaint.
 
 INDEX. 691 
 
 PLUNDERED, does not mean a felonious taking, 194. 
 
 not actionable, 240. 
 POCKY RASCAL, query if actionable, 220%. 
 POCKY WHORE, not actionable, 220. 
 POISON, meaning of the term, 194. 
 
 charge of administering, 223, 236%., 237, 271. 
 POLICE OFFICER, words concerning, 288, 369. 
 words published to, 382%. 
 See Constable. 
 
 POLTROON, charge of being, when actionable in Tennessee, 205. 
 
 PORK, charge of stealing, 226. 
 
 PORK BUTCHER, words concerning, 271. 
 
 See Butcher. 
 POSTMARK on letter, proof of, 583%. 
 POSTMASTER, words concerning, 217, 289. 
 
 complaint to, privileged, 385. 
 POTATOES, charge of stealing, 192%. 
 POVERTY of defendant, no mitigation, 629. 
 POX, charge of having, is actionable, 242. 
 
 See Small-Pox. 
 PRECEDENTS, value of, in actions for words, 171%. 
 PRESUMPTION of law, objections to, 112. 
 
 of knowledge of court proceedings, 364. 
 of identity, 163n. 
 of continuance in occupation, 268. 
 of delivery of message, 586%. 
 of illegality of plaintiff's trade, 258%. 
 none of what is not averred, 180%. 
 PRESS, freedom of, 437. See Newspaper. 
 PREVIOUS RECOVERY. See Former Recovert. 
 PRIEST, language concerning, 285, 381. 
 
 See Minister, Perjured Priest. 
 PRINCIPAL and agent, communications between, how far privileged, 
 
 410, 412. 
 liability of, 156%. 
 PRINTER, liability of, 158. 
 PRINTING, writing includes, 59%. 
 
 PRIVATE LETTERS, charge of publishing is actionable, 249. 
 PRIVILEGED COMMUNICATIONS, 319%. 
 kinds of, 319%. 
 not easily defined, 322. 
 
 See Privileged Publication.
 
 692 
 
 LNDEX. 
 
 PRIVILEGED PUBLICATION, what is, 154, 319, 321. 
 kinds of, S19n. 
 meaning of, 320. 
 suggested rule as to, 322. 
 repetition, 322. 
 
 court not inclined to extend doctrine of, 319n. 
 defense of, 318, 549. 
 divided into absolutely privileged and conditionally 
 
 privileged, 319. 
 in legislative proceedings, 342. 
 in judicial proceedings, 347. 
 in a pleading, 348. 
 in an affidavit, 352. 
 as. a witness, 353. 
 as a party to an action, 354. 
 as advocate, 357. 
 
 in the course of church discipline, 376. 
 at public meetings, 378. 
 on giving in charge to police officer, 382n. 
 in seeking redress, 382. 
 confidential is not, 402/*. 
 to .protect person, property, or reputation of pub. 
 
 lisher, 393, 418». 
 to protect rights of others, 397. 
 giving advice or information, 397. 
 when privileged ceases, 415, 418, 419. 
 See Truth, Publication". 
 
 PROCEEDINGS of courts, are privileged, 352. 
 PROCTOR, justifying charge against, 337. 
 
 liability of for defamatory statements, 358». 
 PRODUCTION of documents, when ordered, 363, 470, 586. 
 PROFESSION. See Trade. 
 PROFITS, loss of, is special damage, 293. 
 PROHIBITION in cases of defamation, 96m. 
 PROOF. See Evidence. 
 PROPERTY, reputation is, 104». 
 PROSPECTIVE DAMAGES, not allowed, 488. 
 PROSTITUTE, what amounts to a charge of being a, 194. 
 
 charge of being, not actionable, 233. 
 
 justifying charge of being a, 333m., 334m. 
 
 charge of having one under protection or patronage, 1S2. 
 See Whore.
 
 INDEX. 693 
 
 PROTECTION, meaning of, 182. 
 
 of person, property or reputation, publication for the 
 purpose of, are privileged, 393. 
 PROVER under bankruptcies, charge of being, 271. 
 PUBLICATION of language necessary, before language can have any 
 effect, 78. 
 
 is an indirect wrong, 86. 
 
 restraining by injunction, 91 n. 
 
 to be unlawful must be voluntary, 110». 
 
 at plaintiff's instance, 150n. 
 
 the essential element of slander or libel, 115. 
 
 meaning of the term, 137. 
 
 mode of formerly, 136n. 
 
 necessity for, 136. 
 
 actionable, what is, 137. 
 
 to husband or wife of party affected, 138. 
 
 understanding necessary to, 138, 139». 
 
 language of, 139. 
 
 may be of oral or written language, 140. 
 
 of summons, 464. 
 
 to be alleged in complaint, 518. 
 
 how alleged, 519. 
 
 place of, how alleged, 520. 
 
 time of, how alleged, 520. 
 
 proof of time of, 585/i. 
 
 what amounts to, 140, 141, 142. 
 
 oral, requisites of, 143. 
 
 in writing, requisites of, 144. 
 
 time of, 144. 
 
 place of, 144. 
 
 joint, cannot be of oral language, 152. 
 
 by husband and wife, 152, 499. 
 
 privileged, 153, 154. 
 
 proof of, 583. 
 
 secondary evidence of, 587. 
 
 part may be privileged and part not, 398w. 
 
 respecting one in trade, made on request, 403. 
 
 made without any request, 405, 407w. 
 
 by a pastor to his parishioners, 413. 
 
 by customer respecting tradesman with whom he deals, 414. 
 
 made to persons not interested, 415, 418, 425, 432. 
 
 by master respecting his late servant, 420. 
 
 concerning candidates for office, 431. 
 
 See Privileged Publication.
 
 694 LNDEX. 
 
 PUBLIC COURT, what is a, 374. 
 
 PUBLIC HOUSE, not equivalent to bawdy house, 188. 
 
 PUBLIC MEETING, when reports of proceedings at, are privileged, 381. 
 
 proceedings at, how far privileged, 378. 
 
 right of reporters to attend, 373«. 
 
 publishing speech made at, 382». 
 PUBLIC OFFICER, publications concerning in Pennsylvania, 432». 
 
 criticism of, 441. 
 
 immunities of, 361 n. 
 PUBLIC ROBBER, charge of being, 195. 
 PUBLIC TRUST, charge of breach of, actionable, 266ra. 
 PUBLISH, meaning of, 136rc. 
 PUBLISHED, meaning of, 136rc. 
 PUBLISHER, who is a, 146. 
 
 in what sense the term is used, 146. 
 
 and person liable as publisher not always one and the same, 
 147, \55n. 
 
 who liable as, 147, 148, 153, 303. 
 
 extent of liability, 147, 150. 
 
 belief of, when material, 306. 
 in mitigation, 621. 
 See Newspaper. 
 
 PULPIT, privilege of, 4Un. 
 
 See Sermon. 
 
 PUNISHMENT. See Danger of Punishment, Infamous Punishment. 
 PURCHASING stolen goods, charge of, is actionable, 236. 
 
 Q 
 
 QUACK, actionable of, a barrister, 282». 
 of a physician, 282. 
 of an optician, 283. 
 QUESTION, charge by means of a, 219. 
 of fact, who to decide, 113. 
 
 whether language is concerning a person or a thing, 317. 
 and of opinion, distinction between, 219/». 
 See Jury. 
 
 QUESTION of law, who to decide, 113. 
 
 if occasion privileged, 485«. 
 QUESTIONS for jury, whether ambiguous reference, or initials, or fic- 
 ticious name applies to plaintiff, 165ft.
 
 INDEX. 695 
 
 QUESTIONS for jury— continued. 
 
 whether the language concerns the plaintiff in any special capa- 
 city, 270ra. 
 whether a report is a fair one, 368, 370. 
 whether privilege exercised in good faith, 404, 485». 
 whether there is any excess in the comment, 445n. 
 amount of damages, 486. 
 intention of defendant, 599. 
 
 R 
 
 RAPE, charge of committing, 238. 
 
 RASCAL, charging a judge with being a, is actionable, 287w. 
 
 charging a merchant with being a, is actionable, 279. 
 
 charge of being, not actionable, 240. 
 
 charge of being, actionable if in writing, 247. 
 RAVISHING, charge of, 221. 
 
 READ, charge of being unable to, meaning of, 199. 
 REBEL, action by, 497. 
 REBELLIOUS KNAVE, not actionable, 220. 
 REBUS, defaming by means of, 168ra. 
 RECEIVER, liability of, 157n., 646. 
 
 right of action for slander or libel, does not pass by assignment 
 
 to, 498. 
 of stolen goods, charge of, actionable, 236. 
 RECOGNIZANCE, not forfeited by words, 58n. 
 RECOVERY, when a bar to a subsequent action, 261. 
 REDRESS, language published in seeking, is privileged, 382. 
 REFEREE, actions of slander or libel may be tried by, 472. 
 REGISTER of protests, publication of, is privileged, 375. 
 REGRATOR, charge of being a, not actionable, 21 On. 
 RELATIONS, confidential communications between, 409». 
 REMEDY for libel, 63. 
 
 for slander, 62. 
 
 for defamation, 63. 
 
 law provides, 90. 
 
 by action, 91. 
 
 for slander and libel, uncertainty as to introduction of, 95. 
 
 party taking in his own hands, 97». 
 
 referring to, to illustrate right, 8Qn. 
 REMOVAL of action, into Marine Court, 464w. 
 REMOVING land-marks, charge of involves moral turpitude, 208.
 
 696 
 
 INDEX. 
 
 EENTER of tolls, words of, 258. 
 REPEAL of statute, effect of on right of action, 213. 
 REPETITION, what is, 147. 
 none of speech, 147. 
 effect of, 301. 
 who liable for, 301. 
 not a ground of defense, 322. 
 as evidence of malice, 604, 605. 
 REPORT of judicial proceedings, is privileged, 364, 367. 
 what is a fair report, 367. 
 
 of ex-par te proceedings, how far privileged, 370, 373. 
 of proceedings of a court where a contempt, 370n. 
 of commissioner, not privileged, 375n., 374. 
 of inspector of charities, 375n. 
 of Committee of House of Lords, 374. 
 of proceedings before registrar in bankruptcy, 374. 
 of police commissioners, 375». 
 publication of, 392. 
 
 of speech of convict, not privileged, 375?i. 
 of speech at public meeting, not privileged, 378, 381. 
 REPORTER, privilege of, 373». 
 REPUBLICATION, what is, 147. 
 
 cannot be of oral language, 147. 
 REPUTATION, may be injured by acts, 5Sn. 
 what it is, 80. 
 action for injury to, 63». 
 language affects, 80. 
 
 injury to, differs from injury to person or property, 92. 
 not an absolute right, 88. 
 denned, S0n., 61 6». 
 is property, 104». 
 how the law protects it, 105. 
 value of, 105n. 
 of plaintiff, in aggravation, 597. 
 
 in mitigation, 328»., 625. 
 of plaintiff in issue, 616. 
 See Character. 
 
 RESPONDEAT SUPERIOR, principle of, 156. 
 RETRACTION of charge in mitigation, 625. 
 RE-TRIAL, before what judge, 472. 
 
 See New Trial. 
 RETURNED CONVICT, actionable, 212.
 
 INDEX. 
 
 697 
 
 RIGHT, the opposite to, is not a wrong but a duty, 83. 
 defined, 83. 
 object of, 84. 
 and duty reciprocal, 84. 
 pertains to persons, not to things, 84. 
 exercise of, is optional, 84. 
 how it must be exercised, 84. 
 in some sense the result of law, 84. 
 every act is exercise of, &c, 85. 
 different under different laws, 86. 
 cannot catalogue, 87. 
 wrong is an invasion of, 87. 
 not proper to say law prescribes, 89. 
 impossibility of defining, 90. 
 kinds of, 88w. 
 of action, not assignable, 498. 
 
 when it survives, 498. 
 ROBBED— ROBBING— meaning of these terms, 195, 278». 
 charge of having, 225, 240. 
 secreted not equivalent to robbed, 241. 
 ROBBERS, charge of being, not actionable by reason of context, 223/t. 
 ROBBERY,- charge of attempt to commit, not actionable, 215m., 240. 
 charge of, actionable, 225. 
 charge of, when not justified, 427n. 
 ROBBING, charge of, actionable, 221. 
 ROGUE, charge of being, is actionable, 236, 237, 247, 287w. 
 is not actionable, 239. 
 of record, held actionable, 2S9n. 
 See Arrant Rogue, Buggering Rogue, Bankrupt Rogue, 
 Murdering Rogue, Pedlar, Tinker, Cuckoldy Rogue, 
 Perjured Rogue, Damned Rogue. 
 ROMAN CATHOLIC PRIEST. See Priest. 
 ROMAN CIVIL LAW, administered in England, 97. 
 RUGGED RUSSIAN BEAR, justifying charge of being a, 340. 
 RULES relating to remedy differ from rules determining when a wrong. 
 
 done, 93. 
 RUMORS not a defense, 342rc. 
 
 in justification, 342«. 
 RUNAGATE, meaning of the term, 258ra. 
 RUSSIANS dread verbal insult more than a blow, 68n. 
 
 45
 
 698 ESTDEX. 
 
 S 
 
 SABLE, charge of stealing, 196. 
 
 SALE. See Unlawful Sale. 
 
 SATIRIST differs from libeller, 61. 
 
 SAXON LAWS in England, 97. 
 
 SCANDAL defined, 58n. 
 
 SCANDALOUS and familiar converse, meaning of the phrase, 189m. 
 
 SCANDALOUS MATTER in a plea may be struck out, 351. 
 
 in a "will may be suppressed, 646. 
 SCANDALUM MAGNATUM, not known in United States, 176. 
 SCHOOL COMMITTEE, communication to, how far privileged, 385«. 
 SCHOOL-HOUSE, charge of burning, 222rc. 
 SCHOOLMASTER, words concerning, 282, 332. 
 SCHOOLTEACHER, words of, 272, 385»., 399>i., 258. 
 SCIENTER, when to be alleged, 178n., 236n. 
 when implied, 267n. 
 
 See Knowledge. 
 SCOLDING, indictable, C,2n. 
 
 SCOUNDREL, charge of being, not actionable, 239. 
 SCREWED, meaning of, 172n. 
 SECOND ACTION, when barred, 263. 
 
 staying proceedings in, 465rc. 
 staying proceedings in until costs of first action 
 paid, 496. 
 See Former Recovery. 
 SECRESY, injunction of, 592. 
 
 SECRETARY of State, letters to, privileged, 388, 389. 
 of Treasury, report to, privileged, 386. 
 of War, letters to, privileged, 385, 388. 
 SECRETING, charge of, does not amount to a charge of robbery, 241. 
 SECURITY for costs, when required, 465. 
 
 SEDITIOUS SERMON, charge of preaching, is actionable, 284. 
 SEDUCER, charge of being, is actionable, 247n. 
 SELF-DEFENSE, language published in, is privileged, 359, 393. 
 SENATOR, words concerning, 269. 
 SENTIMENTS, no redress for outrage of, 97. 
 SEPARATE ACTIONS for same libel, 436». 
 SERIOUS AMOUNT, justifying charge of stealing to a, 337. 
 SERMON, how far privileged, 41Sn., 454. 
 
 See Seditious Sermon. 
 SERVANT, when liable as publisher, 1 54. 
 
 employer liable for acts of, 156, 421.
 
 INDEX. 699 
 
 SERVANT— continued. 
 
 charge against, when privileged, 382». 
 
 communication to employer concerning, when privileged, 
 
 406. 
 giving character to, 420, 424. 
 
 cannot maintain action against master for refusing to give a 
 character, 423ft. 
 
 See Domestic Servant, Master. 
 SHAREHOLDER. See Stockholder. 
 SHAVING PURPOSES, meaning of the term, 195. 
 
 charge of putting money in Wall street for not action- 
 able, 182/i., 252. 
 SHEARING. See Sheep. 
 SHEEP, charge of shearing, 227. 
 charge of stealing, 236. 
 SHEEPSTEALER, charge of being is actionable, 236. 
 SHERIFF, words concerning, 288. 
 SHIP, language concerning, 308?*. 
 
 justification of charge that ship unseavrorthy, 333«. 
 SHIPMASTER, words concerning, 277. 
 
 See Master Mariner. 
 SHIPOWNER, words concerning, 273. 
 SHOEMAKER, words concerning, 221, 274ft., 283. 
 SHOOTING out of leather gun, judicial notice of meaning of, 169ft. 
 
 charge of, is actionable, 247ft. 
 SHOP-KEEPER, charging with keeping rotten goods, actionable, 273. 
 
 See Tradesman. 
 SICKNESS, is not special damage, 298. 
 SIGNS, a means of injury, 57. 
 SLANDER defined, 59, 77. 
 
 not indictable, 62ft. 
 remedy for, 62. 
 
 and libel, distinction between, 67. 
 consists of two acts, 115,, 
 action for, not to be encouraged, 179ft. 
 corporation cannot be guilty of, 459. 
 a private wrong, 62. 
 
 member of the legislature not liable for, 342, 343ft. 
 See Libel, Words. 
 SLANDERER, who is, 59. 
 
 SLANDER OF TITLE, part of the law of language concerning a 
 thing, 162. 
 not properly an action for slander, 162ft.
 
 700 INDEX. 
 
 SLANDER OF TITLE— continued. 
 complaint for, 315n. 
 plea in action for, 317n. 
 a metaphorical expression, \Q2n. 
 what necessary to maintain action for, 307. 
 to personal property, 316. 
 to a slave, 31 6n. 
 SLANDEROUS RASCAL, justifying charge of being, 334. 
 SLANDEROUS WORDS, action for, 203n. 
 
 charge of being publisher of, is actionable, 247. 
 SLAVE, selling spirituous liquors to, involves moral turpitude, 208. 
 
 slander of title to, 316«. 
 SLUT, calling a school-mistress dirty slut actionable, 272. 
 SMALL POX, charge of having, not actionable, 242. 
 SMITH, words concerning, 277. 
 SMUGGLING, charge of, is actionable, 248. 
 
 justifying charge of, 335. 
 SOLDIER, actionable to charge a tradesman with being a, 175«. 
 SORCERER, charge of being, not actionable, 239. 
 SOUNDS and signs, a means of injury, 57. 
 SOVEREIGN, petition to the, is privileged, 384. 
 SOUGHT, the term implies more than intent, 21 6n. 
 SOUTH CAROLINA, charge of stealing in, 213«. 
 
 calling a woman whore is actionable in, 233/t. 
 SPACE, allegations of, are divisible, 201. 
 SPECIAL CHARACTER, language concerning one in, 254. 
 
 evidence of, 596. 
 SPECIAL DAMAGE, nature of 291, 202, 107n. 
 occupation supplies the place of, 541 n. 
 in what it consists, 291, 297. 
 language actionable by reason of, 291. 
 apprehension of loss is not, 297. 
 loss of services of wife, when it is not, 298/i. 
 occurring after a recovery in an action for the defamation, 299. 
 illegal act of third party, 299. 
 effect of repetition is not, 301. 
 must be alleged in complaint, 162, 541. 
 general issue is a denial of, 613. 
 traverse of, improper, 613». 
 
 See Damage, Customers. 
 SPECIAL DEMURRERS abolished in England, 543. 
 SPEECH, is oral language, 58. 
 
 distinction between sound and its signification, 140.
 
 INDEX. 701 
 
 SPEECH — continued. 
 
 no repetition of, 147. 
 criminal prosecution for, Q2n. 
 in Parliament, when privileged, 342. 
 of convict on scaffold, report of not privileged, 375«. 
 of counsel, effect of, 473, 608. 
 publication of, 359. 
 at public meeting not privileged, 3S2», 378. 
 See Freedom of Speech. 
 STAGE AGENT, words concerning, 277. 
 STAR CHAMBER, court of criminal equity, 91n. 
 STARVING A CHILD, charge of, 277. 
 STATUES included in effigy, 59. 
 
 STATUTE OF LIMITATIONS, charge of having pled, not actionable, 
 253. 
 
 See Limitation. 
 STATUTES, effect of repeal on right of action, 213. 
 
 defining libel, 75n., 76/i. 
 STAYING PROCEEDINGS in action, 465rc, 496. 
 STAYMAKER, words concerning, 272. 
 STEAL, meaning of the term, 195. 
 
 STEALING, what amounts to charge of, 168/*., 173?/., 192, 187w., 195. 
 charge of, 213ra. 
 
 justification of charge of, 333, 334. 
 goods of married woman, 185?i. 
 STEAMBOAT, words concerning, 307». 
 STEAMBOAT AGENT, language concerning, 278. 
 STINKING OF BRIMSTONE, charge of, is actionable, 248. 
 STOCKBROKER, words of, 258. ■ 
 STOCKHOLDERS, words concerning, 275rc., 399». 
 
 meeting, proceedings at, how far privileged, 379. 
 reports to privileged, 392. 
 STOLE, meaning of the term, 195. 
 
 as good as, not actionable, 227w. 
 STOLEN GOODS, charge of being receiver of, actionable, 236. 
 STORE, charge of breaking into, 227. 
 STRAINED, meaning of, 172n. 
 STRUCK JURY, when it may be ordered, 472. 
 
 STRUCK OFF THE ROLL, charge that an attorney was, how justi- 
 fied, 336. 
 STRUMPET, meaning of, 233». 
 
 actionable in Bristol, 234n. 
 SUBORNATION of perjury, charge of, 227n.
 
 702 INDEX. 
 
 SUBSCRIBER to a charity, publication by, respecting the charity, 410. 
 SUFFER, meaning of the term, 196. 
 SUMMONS, may be served by publication, 464. 
 SUMMING UP of counsel, on the trial, 473. 
 
 SUPERIOR OFFICER, reports to, how far privileged, 385, 386, 387. 
 SUPPLEMENTAL COMPLAINT, when allowed, 545. 
 SURPLUSAGE, rejecting the innuendo as, 540. 
 SURVEYOR, language concerning, 278. 
 SURVIVOR of right of action for slander or libel, 498. 
 SUSPENSION, justifying charge of, 337. 
 SUSPICION, words denoting, not actionable, 217. 
 * and belief, distinction between, 217/i. 
 
 not a justification, 331n., 342. 
 
 in mitigation, 623. 
 SWINDLER, charge of being, not actionable, 239. 
 
 charge of being, actionable if in writing, 247. 
 
 charging a merchant with being, is actionable, 276«. 
 
 what will not justify a charge of being, 332ra., 551??. 
 
 can court take judicial notice of its meaning, 170n. 
 
 T. 
 
 TAILOR, words concerning, 274n., 277. 
 TAKEN, meaning of the term, 196. See Took. 
 TAKING, meaning of the term, 197. 
 
 charge of, when actionable, 225, 226. 
 See Took. 
 TAN-MONEY, judicial notice of meaning of, 170n. 
 TANNER, words of, 221 w. 
 TEA, charge of stealing, 225. 
 
 TENNESSEE, what language is actionable in, 205. 
 TEXT-BOOKS, errors in the mode of composing, 66. 
 THEATRE, words concerning proprietor of, 295. 
 
 right to comment on, 296n. 
 THIEF, charge of being, when actionable, 184m., 197, 224. 
 
 See Larcent. 
 THIEVING person, puppy, or rogue, actionable, 197, 221. 
 THIEVISH KNAVE, not actionable, 220. 
 THIEVISH PIRATE, actionable, 221. 
 THINGS have no rights and owe no duties, 84. 
 
 language cannot affect, 79. 
 
 what is meant by, 305. 
 
 language concerning, 161, 305, 307.
 
 INDEX. 703 
 
 THREATENING LETTERS, charge of sending, 197. 
 THREATS, action for, 59«. 
 
 TIME, how it affects the meaning of language, 171. 
 allegations of, are divisible, 201. 
 of publication, how alleged, 520. 
 how proved, 585. 
 of limitation, 464, 
 TINKER, a rogue by statute, 258?*. 
 TITLE, slander of, included in language concerning things, 162. 
 
 See Slander of Title. 
 TONGUE, the iniquity of the, 58rc. 
 TOOK construed to mean stole, 225, 227n. 
 
 See Taken. 
 TORT and crime, difference between, 86, 145>j. 
 
 See Wrong. 
 TORY, charge of being, is actionable, 247. 
 TOWERING PASSION, charging a minister with entering a pulpit in 
 
 a, actionable, 286. 
 TOWN CLERK, words concerning, 288. 
 TOWN MEETING, proceedings at, are privileged, 379n., 380. 
 TRADE, language concerning one in trade may be actionable, which 
 not actionable if concerning an individual as such, 164, 254. 
 humility of, no obstacle to right of action, 258/*. 
 must be a lawful one, 259, 568. 
 words concerning one in, 267, 207. 
 presumption of continuance in, 268. 
 being in, stands in place of special damage, 256/i. 
 business includes, 257». 
 
 See Tradesman. 
 TRADESMAN, words of, 403, 175». 
 
 law is tender of the reputation of, 256n. 
 
 charge of keeping false books, 265. 
 
 charge of being bankrupt or insolvent, 273. 
 
 charge of fraud by, 276. 
 
 charge of ignorance, 281, 283. 
 
 saying that his checks were dishonored, actionable, 275. 
 
 can not have an action for words published concerning the 
 
 article in which he deals, 306. 
 right of customer to complain of, 414. 
 See Upholsterer. 
 TRAIL-BASTON, outlaws song of, 136n. 
 TRAITOR, actionable, 236. 
 TRAITOR KNAVE, actionable, 220.
 
 704 INDEX. 
 
 TRAITOROUS KNAVE, actionable, 220. 
 
 TRANSACTION, what is a, 84. 
 
 TRANSPORTABLE OFFENSE, charge of committing, actionable, 237. 
 
 TRANSPORTATION, what amounts to a charge of crime punishable 
 
 by, 199. 
 TREASON, overt act necessary to, 62. 
 TREASURY, charge of robbing the, 226, 240. 
 TREE, charge of stealing, 196. 
 TRESPASS, charge of, not actionable, 209k. 
 words do not amount to, 58k. 
 
 See Malicious Trespass. 
 TRIAL, place of, 465. 
 
 of issues in action for slander or libel, 471. 
 when judge may refuse to try, 472. 
 proceedings on, 472, 552k. 
 right to begin on, 472. 
 
 opening and summing up of counsel on, 473. 
 reading publication on, 474. 
 evidence on, 475. 
 abandoning defense on, 475, 608. 
 aggravating damages by proceedings on, 608, 473. 
 province of court and jury on, 4~i">. 
 aggravating damages by mode of conducting, 473. 
 abandoning one or more causes of action un, 475. 
 TRUCKMASTER, meaning of, 170»., 592n. 
 TRUST. See Breach of Trust, Public Trust. 
 TRUTH, is a justification of slander or libel, 327, 116. 
 
 not a justification for writing defamatory matter on plaintiff's 
 
 documents, 328, 329. 
 defense of, must be pleaded, 621. 
 pardon no answer to defense of, 328k. 
 effect of establishing defense of, 32?k. 
 justification on ground of, must be as broad as the charge, and 
 
 of the very charge, 331, 550. 
 justification on ground of, need go no further than the 
 
 charge, 338. 
 should extend to every part of the defamatory matter, which 
 
 can form a substantive ground of action, 339/i. 
 justification of charge of perjury, 333k., 335k., 340. 
 justification must be of the meaning assigned by the innu- 
 endo, 341, 333k., 340, 551. 
 belief in truth, no defense, 342. 
 requisites of plea of, 341k., 550.
 
 INDEX. 
 
 705 
 
 TRUTH— continued. 
 
 in mitigation, 621. 
 
 provisions of N. Y. Constitution as to defense of truth do not 
 apply to civil actions, ! 
 
 u 
 
 UNCHASTITY, charge of, when actionable, 206, 233, 249, 272. 
 UNDERSHERIFF, words concerning, 288. 
 
 UNLAWFUL SALE of intoxicating liquors, justifying a charge of, 334. 
 UNNATURAL OFFENSE, what amounts to a charge of, 168/*., 198. 
 
 charge of, when actionable, 206, 238. 
 
 charge of, not actionable, 215. 
 
 justifying charge of committing, 335. 
 UNSEA WORTHY. See Ship. 
 
 DNSKILLFULNESS, charge of, when actionable, 281, 283. 
 UNTRUTHFULNESS, charging a schoolmistress with, actionable, 272. 
 
 See Falsehood. 
 UPHOLSTERER, words of, Hon. 
 
 V 
 
 VAGABOND, charge of being a, not actionable, 239. 
 VAGRANT, charge of being, is actionable, 237. 
 
 is not actionable, 239. 
 VARIANCE, as to words published in a foreign tongue, 524. 
 in New York, when material, 565. 
 what will amount to, 565. 
 
 instances of immaterial variance, 569. . 
 
 instances of material variance, 572, 642. 
 VARLET, charge of being, not actionable, 240, 270». 
 VENEREAL DISEASE, charge of having, is actionable, 242. 
 VENUE, in actions for slander and libel, 465. 
 change of, 4(56. 
 
 cannot be objected to, after judgment by default, 470ra. 
 VERDICT, construction after, 184. 
 
 effect of, on the costs to be considered, 486. 
 on one of several counts, 491. 
 setting ^aside, for excessive damages, 492. . 
 setting aside, for insufficient damages, 493. 
 setting aside, as against evidence, 495, 114/1. 
 
 46
 
 706 INDEX. 
 
 VERMONT, no new trial in, because verdict against weight of evi- 
 dence, 114n. 
 VESTRY MEETING, report of proceedings at, not privileged, 381. 
 VILLAIN, charge of being, held actionable, 237. 279, 237w. 
 
 not actionable, 240. 
 actionable, if in writing, 247. 
 VINDICTIVE DAMAGES, when allowed, 489. 
 VIOLENT CONDUCT, what a justification of a charge of, 332. 
 
 See Conduct. 
 VIRGINIA, what language is actionable in, 205. 
 
 charge of stealing in, 213n. 
 VOLUNTARY act, what is, 118. 
 
 affidavit, not a judicial proceeding, 641. 
 statement, proof of good faith of, 423. 
 VOTE, charge of fraudulently destroying, is actionable. 238. 
 
 false declaration of right to, involves moral turpitude, 209. 
 VOTER, charge against, of false swearing at an election, 231. 
 charge of voting twice, is actionable, 248. 
 words which deter him from voting, are actionable, 264?i. 
 
 w 
 
 WAR. See Secretary of War. 
 WARD BEADLE, liable to action for slander, 361 n. 
 WATCHMAKER, words concerning, 283. 
 WEAVER, words of, 225, 276. 
 WEIGHT. See False Weight. 
 
 WHIPPING wife or mother, charge of, not actionable, 241. 
 WHORE, what amounts to a charge of being a, 198. 
 . charge of being when actionable, 205, 233. 
 of keeping company with, 2S4/<. 
 justifying charge of, 333m., 334>*. 
 
 See Common Whore, Prostitute. 
 WHOREDOM, what implies a charge of, 198w. 
 
 words imputing, when actionable, 206. 
 WHOREHOUSE, equivalent to bawdy house, 188. 
 
 charge of keeping, is actionable, 237. 
 WHOREMASTER, charge of being, not actionable, 240,284. 
 WHOREMONGER, charge of being, is actionable, 238. 
 WICKED MAN, applied to a bishop, actionable, 285?;. 
 WIDOWER, words concerning, 294.
 
 INDEX. 707 
 
 WIFE, when letters to, not privileged, 389/;. 
 
 charge of whipping, not actionable, 241. 
 loss of, is special damage, 293. 
 
 See Husband and Wife, Married Woman. 
 WILD BEES, charge of stealing, 196. 
 WILLFUL MISCONDUCT, justifying charge of, 338. 
 WILL, charge of destroying, not actionable, 215. 
 
 libeller could not make nor take under, 247?i. . 
 publication of defamatory matter in, 137>*. 
 suppression of defamatory matter in, 646. 
 WITCH, charge of being, not actionable, 240. 
 
 WITNESS, cannot be asked how he understood the language published, 
 140, 166n., 178«., 592. 
 action of slander, for words spoken as, 353. 
 opinion of, as to meaning, not allowed, 166n., 592. 
 when he may refuse to testify, 588. 
 commission to examine, 471. 
 defendant as a, 467, 588ft. 
 charging with false swearing, 232. 
 subject of criticism, 448. 
 WITTOLL, import of the term, 247ft. 
 WOMAN, charge of being a man, actionable, 294«. 
 See Female, Hermaphrodite. 
 WOOD, charge of stealing, 195. 
 WOOLCOMBER, judicial notice of meaning of, 170?i. 
 WOOLSTAPLERS, words of, 261. 
 WORDS, a cause of mischief, 57/*. 
 are acts, 58h. 
 action on the case for, 93. 
 the phrase, action for, 71 ft. 
 may be divided into three classes, 159?*. 
 imputing crime, must be precise, 168ft. 
 mean written or spoken words, 203. 
 action for, compared to action for nuisance, 57ft. 
 meaning of, how affected by circumstances, 160/i., 170ft. 
 if unambiguous cannot be treated as ambiguous, 161ft. 
 when no interpretation of allow r ed, 161ft. 
 how construed on demurrer, 252. 
 See Actionable Language, Adjective Words, Language, 
 Slanderous Words. 
 WORKMEN. Action for threatening, 59ft. 
 WRITTEN LANGUAGE, what it includes, 58. 
 
 greater capacity for injury, than has oral 
 language, 67.
 
 708 INDEX. 
 
 WRITTEN LANGUAGE— continued. 
 
 not construed differently from oral language, 165. 
 what actionable, 245. 
 WRITS, commencement of action by, 92. 
 
 See Original Writ, Inquiry. 
 WRITING, is written language, 58. 
 what it includes, 58, 59. 
 joint publication of, 152. 
 
 distinction between what is written, and the writing, 140. 
 150. 
 
 See Publication, 
 WRONG, is not the opposite to a right, 83. 
 what amounts to, 85, 203. 
 how to determine what is, 86. 
 kinds of, 86. 
 description of, 87. 
 
 not proper to say law prohibits, 89. 
 redress of, 90, 91. 
 
 only a wrongful act can amount to, 109. 
 what is the essential element of, 109. 
 cannot be done as agent, 11 Ira. 
 elements of, 126. 
 committed out of the State, 145. 
 actions for, die with the person, 498. 
 WRONGFUL ACT, what is, 108. 
 
 is prima facie a wrong, 109. 
 liability for, 110, 111.
 
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