There, the actionable." And before this, in reply to the refusal to charge as mentioned, they say that for want of the whole evidence they were unable to say whether there was any thing to support the instruction asked; and that courts could not be required to charge mere abstract propositions of law upon points concerning which there was no evidence. Scam. 30, is in point. words were in themselves excessively defamatory; and the court below had refused to charge the jury that, if they were spoken in wantonness or jest, it was no excuse; and this refusal was sustained. "We are unanimously of opinion," say the court, "that merriment or jesting, without malice, is not actionable. It would be calculated to shake the well-settled doctrine that malice is the gist of this offence." The language of Hawkins on this point was quoted and doubted: "Also it hath been holden that he who repeats part of a libel in merriment, without malice, and with no purpose of defamation, is no way punishable. But it seemeth that the reasonableness of this opinion may be justly questioned; for jests of this kind are not to be endured, and the injury to the party grieved is no way lessened by the merriment of him who makes so light of it." Pleas of Crown, 356. c. 73, § 13. It is not to be supposed, however, that the doubt of Hawkins is to be taken sweepingly of all cases; for where the circumstances show that the words were called out by sport, and were plainly meant in joke, and so understood, it is the common sense of the matter to say that they should be taken accordingly. It is enough that they are to be considered prima facie as malicious; to hold that they are conclusively so would often be oppressively false. It is to be observed also that the court of Illinois did not say that it was always a good defence that the words were uttered in jest. "If such merriment and jesting be malicious," they add immediately after their abovequoted statement, "and with a purpose of defamation, it would certainly be There is an instructive case of Donoghue v. Hayes, Hayes (Irish), 265, on this point. That was an action of slander; the words spoken of the plaintiff being, "He was detected in taking dead bodies out of the church-yard. He was in confinement, and fined twenty pounds for stealing and sending dead bodies to England." The judge at nisi prius told the jury that if they believed the words to have been spoken jocularly, they should find for the defendant; but if they conceived that they had been spoken maliciously, that is, with intent to inflict injury, they should find for the plaintiff. A verdict having been given for the defendant, the same was set aside for misdirection. Joy, C. B., said: "The principle is clear that a person shall not be allowed to murder another's reputation in jest. But if words be so spoken that it is obvious to every by-stander that only a jest is meant, no injury is done, and consequently no action would lie. If these words were used as conveying a serious imputation, I know of none which would injure a man more. No character could be more disgraceful than that of a body-snatcher. I think that the case has not been properly presented to the jury." Smith, B. "If a man in jest conveys a serious imputation, he jests at his peril. And in this case we must take it as if a serious imputation had been intended, no evi dence to the contrary being reported to us." And he added, that if the jury had understood the judge to mean by the term "jocularly" the use of the words in a way not calculated to do mischief, the charge would have been correct; but it was probable that the jury did not so understand him. "The whole question is," said Foster, B., "whether the jocularity was in the mind of the defendant alone, or was shared by the by-standers." The effect of the decision was that the jury may have been misled by the term "jocularly," used as it had been, without explanation, and that they might have excused the defendant upon evidence that he merely was merry. This might be true while he was stabbing the plaintiff's character. The question should have been whether he was thus injuring the plaintiff; and this would be answered by the effect and impression produced upon the bystanders. If they understood him, however merry he might be, as imputing a crime to the plaintiff, he was liable. In Hankinson v. Bilby, 16 Mees. & W. 442, the defendant, it appeared, had charged the plaintiff with being a thief, and a bloody thief," and that he had "robbed Mr. Lake of 30l., and would have robbed him of more," if he had not been afraid; and the learned baron told the jury that it was immaterial whether the defendant intended to convey a charge of felony against the plaintiff. The question was, whether the by-standers would so understand the charge. And this direction was sustained. "Words uttered," said the court, "must be construed in the sense which hearers of common and reasonable understanding would ascribe to them, even though particular individ uals, better informed on the matter alluded to, might form a different judgment on the subject." See Perry v. Man, 1 R. I. 263; Smart v. Blanchard, 42 N. H. 137; Leonard v. Allen, 11 Cush. 241; Sasser v. Rouse, 13 Ired. 142; Hawks v. Patton, 18 Ga. 52; Phillips v. Barber, 7 Wend. 439; Smith v. Miles, 15 Vt. 245; Barton v. Holmes, 16 Iowa, 252; Smawley v. Stark, 9 Ind. 386; Nelson v. Borchenius, 52 Ill. 236; Curtis v. Mussey, 6 Gray, 261. The last-named case was an action for a libel; and the court held that the want of actual intent to vilify or libel the plaintiff rendered the publication no less a libel, if such was the natural effect of the words published. See also O'Brien v. Clement, 15 Mees. & W. 437; Hankinson v. Bilby, 16 Mees. & W. 442. That words are to be taken in their natural sense, and not necessarily mitiori sensu, see ante, p. 101. But see Snell v. Snow, 13 Met. 278; Gibson v. Williams, 4 Wend. 320; White v. Sayward, 33 Maine, 322, as to showing the sense in which the words were understood. The conclusion from these cases is, that if there be no justification in the attending circumstances under which the words were uttered, the defendant will not be permitted to give evidence that in point of fact he uttered them without malice towards the plaintiff. He must find his defence in the circumstances and not in the state of his mind. That the defendant's belief in the truth of the words is no defence, see Campbell v. Spottiswoode, 3 Best & S. 769; King v. Root, 4 Wend. 113. In those cases (to be noticed hereafter) where the defence offered is an absolute one, and not merely prima facie, as in absolutely privileged communications, it is of course immaterial that the language was maliciously used. Townshend, Slander, § 91 (2d ed.); note on Malice in Fact, post. In the following cases and notes the manner in which the presumption of malice may be rebutted will be considered. HASTINGS v. LUSK. (22 Wend. 410. Court of Errors, New York, December, 1839.) Privilege. Trials. Language of Counsel. There are two classes of privileged communications, and the privileges of counsel sometimes fall within the one class and sometimes within the other. In the one class the law protects the defendant so far as not to impute malice to him from the mere fact of having spoken words of the plaintiff which are in themselves actionable, though he may not be able to prove the truth of his allegations. But the plaintiff will be able to maintain his action for slander if he can satisfy the jury by other proof that there was actual malice in the defendant, and that he uttered the words for the mere purpose of defaming the plaintiff. In the other class of cases, the privilege is an absolute shield to the defendant. To the second class belongs the case of counsel in advocating the causes of their clients or their own causes, where they have confined themselves to what was relevant and pertinent to the question before the court. ACTION for slander, charging the plaintiff Lusk with perjury in an examination before a magistrate, where the defendant Hastings had been charged with threatening to shoot Lusk. The defence, inter alia, was that the words were spoken by the defendant while conducting his own defence in said case, and that they were relevant and pertinent to the examination. There was also a plea of no malice. Replication traversing the pleas; issues thereon; and verdict for the plaintiff, with nominal damages. The jury found specially that the words were spoken falsely and maliciously, and that they were not relevant, and were not uttered in the course of his defence before the magistrate, but elsewhere. Motion in arrest of judgment overruled; whereupon defendant took a writ of error from the Supreme Court. M. J. Bidwell, for plaintiff in error. W. C. Noyes, contra. THE CHANCELLOR. The principle involved in this case is of great importance to the community, inasmuch as it involves the rights and privileges of counsel and of parties in the investiga tion of suits and other proceedings before our judicial tribunals; and as I believe it is the first cause of the kind which has been brought before this court of dernier ressort, and has been very fully and most ably argued here by the counsel upon both sides, I have considered it my duty to examine the law on the subject more fully than would be necessary or proper in an ordinary case of mere verbal slander; for it is not only right and proper that parties and their counsel should know what their privileges are, but also that the law should be deliberately and correctly settled. In applying the principles of law to the case under consideration, we must, therefore, be careful on the one hand that we do not restrict counsel within such narrow limits that they will not dare to openly and fearlessly discharge their whole duty to their clients, or to themselves when they manage their own cases; and, on the other hand, we must not furnish them with the shield of Zeus, and thereby enable them with impunity to destroy the characters of whomsoever they please. There are two classes of privileged communications recognized in the law in reference to actions of slander, and the privileges of counsel may sometimes fall within the one class and sometimes within the other. In one class of cases the law protects the defendant so far as not to impute malice to him from the mere fact of his having spoken words of the plaintiff which are in themselves actionable, though he may not be able to prove the truth of his allegations. But the plaintiff will be able to sustain his action for slander, if he can satisfy the jury, by other proof, that there was actual malice on the part of the defendant, and that he uttered the words for the mere purpose of defaming the plaintiff. In the other class of cases the privilege is an effectual shield to the defendant; so that no action of slander can be sustained against him, whatever his motive may have been in using slanderous words. One of the earliest cases of the first class is Parson Prit's Case, reported by Rolle. 1 Roll. Abr. 87, pl. 5. Although the report of this case is very short, it will be perfectly understood by a reference to Fox's "Martyrology," where the author, in giving an account of the severe punishments inflicted by the vengeance of Heaven upon some of the persecutors of the Protestants during the reign of the Bloody Mary, states that Grimwood or Greenwood, as he is called by Rolle, one of the perjured witnesses who was hired to swear away the life of John Cooper, an innocent person, who was convicted and hanged, was soon after destroyed by the terrible judgment of God, being suddenly seized while in perfect health, so violently that his bowel gushed out. From the report it appears that the defendant, Parson Prit, having been recently settled in the parish, and not knowing all his parishioners, in preaching against the heinous sin of perjury cited this case from the "Book of Martyrs;" and no doubt commented severely upon Greenwood, and upon White, his forsworn companion, who by their perjury had caused an innocent man to be drawn in quarters and his wife and children to be left desolate. It turned out, however, that Greenwood was not dead, and that, being a resident of that parish, he was present in the church and heard the sermon, and afterwards brought a suit against the parson for charging him with perjury. But the court held that it was a privileged communication, and the circumstances under which the words were spoken showed there was no actual malice towards the plaintiff. See also Cro. Jac. 91. This case has been followed by a numerous class depending upon the same principle, in which the speaking of the words is held to be a privileged communication, the occasion of the speaking being such, that prima facie there could have been no malicious intent to defame the person of whom they were spoken, and the interests of society requiring that the defendant should be permitted to speak freely in the situation in which he is placed, provided he confine himself within the bounds of what he believes to be the truth. In cases of this kind the defendant may avail himself of his privilege under the plea of the general issue, even under the new rules of pleading adopted in England. This was so decided in the recent case of Lillie v. Price, 2 Harr. & Woll. R. 381, in the Court of King's Bench; where Lord Denman, C. J., after taking time to consult with the judges, and referring to the new rule which declares the defence under the general issue in slander shall be the same as before, says: "We are all of opinion that this defence does not require to be pleaded specially. It goes to the very root of the action. It shows the party not guilty of malice, and consequently it is open to him without having pleaded it." The presumption in these cases, that there was no malice, is not rebutted by the plaintiff's merely showing that the charge against him was untrue in point of fact; it must be fur |