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damage. So, where in consequence of a charge of incontinence, the plaintiff was prevented from preaching and receiving voluntary donations from his congregation; it was held to be a sufficient special damage to support an action ↳.

Where the plaintiff alleged special damage from the words spoken by the defendant; it was held, not to be supported by proof that the defendant had spoken the words to B., and that the damage ensued in consequence of B.'s repeating them as the words of the defendant c.

SECTION IV.

SLANDER OF TITLE.

Words

tending to disinhe

rison.

title must be attended

WORDS tending to the disinherison of a party, or to impeach his title to land, are actionable. As where the defendant said to the plaintiff, who was heir apparent to his father and uncle, "Thou art a bastard;" it was held to be actionable, since by reason of the words the plaintiff might be in disgrace with his father and uncle, and they conceiving a jealousy of him touching the same might possibly disinherit him; and the law gives an action for a possibility of damaged. But no action lies for Slander of words affecting the present title of a plaintiff to an estate, without shewing some special damage resulting from them, as that he was prevented from selling or making an advantageous disposition of it". If the defendant having probable cause, boná fide spoke the words, claiming title in himself, no action will lief. So, the attorney of a party claiming title is not liable to this action, if he bona fide, though without authority, makes such objections to the vendor's title as his principal would have been authorized in making 8. But where the plaintiff, having advertised for sale a bond executed to him by the defendant as

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with special damage to be actionable.

a surety, the payment of which had been resisted in a long course of litigation, in which the validity of the bond had been disputed; the defendant, pending a suit in error, published among the persons assembled to bid for the bond at an auction, a statement of all the circumstances under which the bond was given, and alluding to the plaintiff, concluded, "His object is either to extract money from the pocket of an unwary purchaser, or what is more likely by this threat of publication, to extort money from me;" held, that this exceeded the latitude allowed for privileged communications, or observations on titles by a party interested, and that it was a libel, although no express malice was proved a.

It is a good answer to an action for slander of title, that the defendant acted bona fide in the communication which he made, believing it to be true b.

Definition of a libel.

SECTION V.

LIBEL.

THE preceding pages have been devoted to the consideration of oral slander, or defamatory words actionable without special damage; it is now proposed to treat of a "libel." Though in ordinary acceptation a libel is not comprised in the term “slander," yet, in legal understanding, the latter term embraces written as well as oral defamation; and as actions for libels are governed by the same principle as actions for words, it is deemed expedient to consider them under the same head.

A libel is a malicious defamation expressed in printing or writing, or by pictures or other signs, tending to injure the character of an individual, or to diminish his reputation "." If any

Robertson r. M'Dougall, 4 Bing. instance, to issue his warrant to ap670. 1 M. & P. 692.

b Pitt v. Donavan, 1 M. & S. 639.

Bac. Ab. Tit. Libel, 3 Bl. Com. 125. Hawk. P. C. Libel. A justice of peace out of sessions, before information filed, or indictment found, has jurisdiction, in the first

prehend a party charged on oath with publishing a libel, and require him to find bail; and, in default of sureties, to commit him to prison to abide his trial. Butt r. Conant (Knt.), 4 Moore, 195. 1 B. & B. 548. 1 Gow. 84.

a

man deliberately or maliciously publish anything in writing concerning another which renders him ridiculous, or tends to hinder mankind from associating or having intercourse with him, an action will lie against such publisher." It follows, therefore, that an action may be maintained for defamatory words published in writing or print, which would not have been actionable if merely spoken. Thus we have seen that to call a man generally "a swindler," is not actionable 3. Yet it has been held, that if published in print it is actionable. So, to publish of a man in writing, that he was "an itchy old toad, and stunk of brimstone," has been held to be actionabled. So, that he was "a villain," e though, if spoken merely, an action would not lie. The grounds of the distinction. between written and oral slander are, that the former is presumed to have been effected with coolness and deliberation and to be more permanent, and propagate wider than words, which are frequently the effect of a sudden gust of passion, and may soon be buried in oblivion f.

Where the defendant posted up in a public room the following notice: "The Rev. John Robinson and Mr. James Robinson, inhabitants of this town, not being persons that the proprietors and annual subscribers think it proper to associate with, are excluded this room;" it was held not to be actionable; for the publication merely asserted the opinions of the defendants, that the plaintiff was not a proper person to be associated with them, not that he was an improper person for general society 8. A person who pursues an illegal avocation, such as a public

a

Per Wilmot, C. J., in Villers v. Mousley, 2 Wils. 403. Tuam (Archbishop of) v. Robeson, 6 Bing. 409. Thorley v. the Earl of Kerry, 4 Taunt. 355. "Scandalous matter is not necessary to make a libel, it is enough if the defendant induce an ill opinion to be had of the plaintiff, or make him contemptible and ridiculous." Per Holt, C. J., in Cropp v. Hilney, 3 Salk. 226. And see verba Lord Hardwicke, C. J., in Bradley v. Methwyn, S. N. P. 1040. "An action is maintainable for

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room for pugilistic exhibitions, cannot maintain an action for a libel regarding his conduct in such avocation. So, an action for a libel does not lie for anything written against a party, touching his conduct in an illegal transaction; but for misconduct imputed to him in any matter independent of the illegal transaction, though arising out of it, an action lies b. But it is actionable to publish of a man that he has been guilty of gross misconduct and insulted females in a barefaced manner. So, to publish of a Protestant bishop that he attempted to convert Catholic priests by offers of money and preferment d.

Suspending a lamp or exhibiting an inscription opposite to the plaintiff's house insinuating that it was a house of ill fame, is a libel for which an action will lie e.

SECTION VI.

SCANDALUM MAGNATUM.

DEFAMATORY words spoken of a peer, a judge, or other great officer of the state, are termed scandalum magnatum.

By stat. 2 R. II. c. 5, "none shall devise or speak false news, lies, or other such false things of the prelates, dukes, earls, barons, and other nobles and great men of the realm, and of the chancellor, treasurer, clerk of the privy seal, steward of the king's house, justices of the one bench or the other, and other great officers of the realm, and he that doth shall incur the pain of the stat. Westm. 1. c. 34," which is, "that he shall be taken and kept in prison until he hath brought him into court which was the first author of the tale;" and by 12 Ric. II. c. 11, "if such person cannot find him by whom the speech be moved, he may be punished by the advice of the council." Though a remedy by action is not expressly given by these

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statutes, yet upon the principle that whenever a party is prejudiced by an act which is prohibited by the statute, he is entitled to damages, it has been held, that an action on the case lies as well on behalf of the crown, to inflict the punishment of imprisonment upon the slanderer, as on behalf of the party aggrieved to recover damages a. Many words which are not actionable when spoken of a private individual are actionable when spoken of persons of high rank; thus, the following words spoken of a peer have been held to be actionable: "He is an unworthy man and acts against law and reason.' "There is no more value in him than a dog." C "He has no more conscience than a dog." d "He is an oppressor." e

"b

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2. Characters of servants.... 1366 4. Criticisms of literary works 1370 1. Of privileged communications in general.] WE have seen that malice is an essential ingredient in oral or written slander; it is observable, however, that when defamatory communications are published of another, the natural tendency of which is to defame and injure him, the law will infer that the defendant had acted maliciously, unless it appears that the communications were made on an occasion, and under circumstances, which the law regards as privileged. Whenever What comthe author of the alleged slander acted in the bona fide discharge tions are of any public or private duty, whether legal or moral, or in the privileged. prosecution of his own rights or interests, an action cannot

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be maintained against him without proof of malice in fact; every wilful unauthorized publication," said Parke, B., "injurious to the character of another, is a libel; but where the writer is acting on any duty, legal or moral, towards the person

a

2 Inst. 118. Kirl. 26.

b Lord Townsend v. Dr. Hughes,

2 Mod. 150.

Marquis of Dorchester's case,

Crom. Jur. 1 Stark. Sland. 182.

The Duke of Buckingham's

case, Roll. 1269.

e The Earl of Leicester's case.

munica

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