person to whom the publication is made, will be considered under the head of defenses. Where the language is actionable as concerning an individual as such, it is unimportant and unnecessary, 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."

180. The distinction maintained between oral and written language, as regards its actionable quality when published concerning an individual as such, is not recognized 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. 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

1 Lewis v. Walter, 4 D. & Ry. 810; Harwood v. Astley, 4 B. & P. 87.

* 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, ante, and note 1, p. 279, post, and see Weiss v. Whittemore, 28 Mich. 377.

heretofore 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 of another which shall occasion him damage (§§ 49, 70), 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 susceptibility 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 as such. It is not every special character the possession of which renders its possessor more than ordinarily susceptible 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 consequence 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. The rule which makes language concerning one in a special character sometimes actionable, when the same language concerning one as an individual 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 construed 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 occupations, 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-so humble or so exalted but that language which 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 or proximate consequence, prevent him deriving therefrom that pecuniary

"The

'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. 178.) 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 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. 603.) Can a married woman in England, carrying on a trade on her separate account, sustain an action for injury to her trade by reason of language? See dictum, Summers v. City Bank, Law Rep. 9 C. P. 583.

2 Business includes trade and more. "Trade has a more restricted meaning than business." (Harris v. Amery, Law Rep. 2 C. P. 154.) The word Business embraces everything about which a person can be employed. (Parker Mills v.

Com'rs of Taxes, 23 N. Y. 244.)

In

reward which probably he might otherwise have obtained.' We state 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 comprised within the terms business or profession, and what kind of office is intended. one case it was said obiter 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 profession. 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. It was said of a renter of tolls that he was not in a business or profession in which he could be slandered or libeled, and the like was held of a

1 Foulger v. Newcomb, Law Rep. 2 Ex. 327. See note 3, infra.

Wharton v. Brook, I Vent. 21. Where I. S. said to A., who kept a stable and received horses at livery (a livery-stable keeper), "Thou buyest nothing but rotten hay to poison men's horses," it was held that A. could not maintain an action therefor 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 libeled. See Southam v. Allen, T. Raym. 231; Alexander v. Angle, 1 Cr. & J. 143.

3 I Vent. 275. "The humility of the employment or occupation seems no objection to the action, either in law or in reason." (1 Starkie on Slander, 128; and see Cooke on Defam. 21; Terry v. Hooper, 1 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. Ld. 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, but 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 peddler, who is a rogue by statute. This presuming that plaintiff's trade is unlawful was done in Morris v. Langdale, 2 Bos. & Pul. 284; but at this day the presumption would be the other See post, note 1, p. 283.

way.

4 Bellamy v. Burch, 16 M. & W. 590; and see Sellars v. Killew, 7 Dowl. & R. 121; 4 B. & C. 55.

stock broker. 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, and that the same rule applies to a mere trader or retail dealer as to a merchant.3 It was supposed formerly that 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.4 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. 5

§ 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 occupation must be a lawful one (§ 302). 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; hence

1 Morris v. Langdale, 2 Bos. & Pul. 284.

2 Whitaker v. Bradley, 7 D. & R. 649; s. c. Whittington v. Gladwin, 5 B. & C. 180; 2 Car. & P. 146.

3 Gates v. Bowker, 8 Vt. (3 Wash.) 23; Ostrom v. Calkins, 5 Wend. 264; Carpenter v. Dennis, 3 Sandf. 305.

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.)

Dobson v. Thornistone, 3 Mod. 112.

• Timmerman v. Morrison, 14 Johns. 369; Allcott v. Barber, 1 Wend. 526; Smith v. Tracy, 2 Hall, 465; Bailey v. Mogg, 4 Denio, 60; Finch v. Gridley, 25 Wend. 469; Smith v. Wilcox, 24 N. Y. 353; s. c. 19 Barb. 581, and 25 Barb. 341;