sence 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 established; or, as the phrase is, such language is presumed to be malicious and false. But as to language concerning a thing, no such presumption is indulged; and upon those who allege language concerning a thing to be false and malicious is he burden of establishing those conclusions by other evidence than that afforded by a mere publication of the language. And besides, to give a cause of action for language concerning a thing, damage, general or special, must in all cases be alleged and proved.'

While a distinction has been actually maintained between language concerning a person and language concerning a thing, the essential grounds of the distinction seem 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 slander 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 language concerning things. The rules relat

1 See Swan v. Tappan, 5 Cush. 104; Ingram v. Lawson, 6 Bing. N. C. 212; 8 Scott, 571; Evans v. Harlow, 5 Q. B. 624; Kendall v. Stone, 5 N. Y. 14; rev'g 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, 670; Tobias v. Harland, 4 Wend. 537; McDaniel v. Baca, 2 Cal. 326; Hamilton v. Walters, 4 Up. Can. Q. B. Rep. O. S. 24.

Debated if slander of title within the statute (21 Jac. I, 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 plaintiff's 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

ing 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 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 determined 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 person: 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 language concerning things, and of defenses (§§ 203, 254).

§ 131. What person or what thing the language concerns 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 concerns either the person or the affairs of the person complaining, no wrong can have been done him of which he can rightfully complain' (§ 343).

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.)

In an action for scandalous words, it is requisite that "the person scandalized be certain." (James v. Rutlech, 4 Coke, 17.) "No writing whatever is to be esteemed a libel unless it reflects upon some particular person." (Hawk. P. C. ch. 79, $ 9.) After quoting the foregoing sentence, Holt (Holt on Libel, 246) adds : "This is unquestionably 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 described 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. Rep. N. S. 250 C. P.; 7 C. B. 860;

§ 132. When the language concerns a person, it is material further to inquire whether it concerns him as an

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 C. & M. 511; Jones v. Jones, 9 M. & W. 75; Greenshields v. Crawford, Id. 314; I Dowl. P. C. N. S. 439.) Where the language is not applicable to the plaintiff (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; Dottarer v. Bushey, 16 Penn. 208; Swan v. Tappan, 5 Cush. 104; Vin. Abr. Act. for Words, H, 6, 12, 13; Sanderson v. Caldwell, 45 N. Y. 398.) 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. Maxwell, 16 Wend. 9.) 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, I 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, I 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, 11 S. & R. 343; Hoar v. Ward, 47 Vt. 657.) 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 Blatch. 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. Creitzburgh, 4 McCord, 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. Clement, 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. Woodward, 12 Conn. 262); and see "One who edits the Times" (Tyler v. Tillotson, 2 Hill, 507); "Filly Horse" (Weir v. Hoss, 6 Ala. 881). Goody Two Shoes, meaning Nancy Irwin (The People v. Chace, I Miss. St. Cas. 30). 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 action

individual merely, or in some acquired capacity, as in an office, trade or profession, because language which would

acre v.

66

against A. (Briggs v. Byrd, 11 Ired. 353.) The words "I am a true subject, and thou servest no 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 Abr. 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 hath robbed me, the father or the husband may have an action. (Vin. Abr. Act. for Words, C, b, 6; H, b; K, b; and see Ralph v. Davye, Sty. 150; Brent v. Ingram, Cro. Eliz. 36.) Barker, that was the name of his reputed father, his mother's name was not Barker, gives a right of action to the mother. (Anderson v. Stewart, 8 Up. Can. Rep. Q. B. 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 HenKeb. 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 action. (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. Delavan, 25 Wend. 186; rev'g White v. Delavan, 17 Wend. 49; and see Ellis v. Kimball, 16 Pick. 132; Le Faun v. Malcolmson, I 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. (Sumner v. Buel, 12 Johns. 475.) An information may issue in such a case. (See Rex v. Baxter, 12 Mod. 139; 2 Ld. Raym. 879; Rex 7. Osborne, 2 Barnard. 138; Kel. 230, pl. 183; Rex v. Griffin, Rep. temp. Hardwicke, 39; Rex v. Horne, Cowper, 672; Holt on Libel, 249; Cooke on Defamation, 215.) In Scotland the rule is different. There a civil suit was sustained by a lieutenant colonel, in behalf of his regiment, for calling the regiment a regiment of cowards and blackguards. (Shearlock v. Beardsworth, I Murray's Rep. of Jury Cas. 196; and see Palmer v. City of Concord, 48 N. H. 211.) Where the defamatory matter is concerning a class, as an unincorporated fire company, the members of the class cannot maintain 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 published of three or four, or any one or two of them, is punishable at the complaint 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. Mon. 48; Strauss

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).

$133. The different effect which in certain cases is attributed to written as distinguished from oral language, does not extend to the construction of language with a

v. Meyer, 48 Ill. 385; 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 Kinnear's 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 antiquities, held that a dealer in antiquities could not maintain an action. (Eastwood v. Holmes, I 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 prosecutor 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 their knowledge of the parties and the circumstances, are able to form a conclusion as to the defendant's intention and application of the libel, is evidence for the information of the jury. (2 Starkie on Slander, 321). And he adds in a note: Lord Ellenborough 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.) Where the plaintiff proved that the defendant spoke certain words of her, by the name of Mrs. Edwards, the defendant was not allowed to show that, in other conversations, he had used similar words respecting another Mrs. Edwards. (Patterson v. Edwards, 2 Gilman, 720.) 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 Metc. 473; Goodrich v. Stone, II Metc. 486; Allensworth v. Coleman, 5 Dana, 315; White v. Sayward, 33 Maine, 322; Mix v. Woodward, 12 Conn. 262; Smart v. Blanchard, 42 N. H. 137; Smaley v. Stark, 9 Ind. 386; Tompkins v. Wisner, 1 Sneed, 458; Commonwealth v. Buckingham, Thatcher's Crim. Cas. 29.) But the rule adopted in New York appears have been followed in Snell v. Snow, 13 Metc. 278; Rangler v. Hummell, 37 Penn. St. Rep. 130; McCue v. Ferguson, 73 Id. 333; Briggs v. Byrd, 11 Ired. 353.) How the hearers understood the words is for the jury. (McLaughlin v. Bascom, 38 Iowa, 660.)

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