concerning him in that character actionable per se, otherwise than as it would be actionable per se if it concerned him as an individual merely.' 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 presented 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; and where a lawyer was a candidate for the office of steward of a corporation, and the electors being assembled 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 concerning him as such candidate, for which publication there would be no legal excuse did he not occupy the position of such a candidate. The consideration of language concerning 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.

§188. As regards the kind of language 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

Powers v. Dubois, 17 Wend. 63; Prinn v. Howe, I Brown's Cas. Parl. 64; Littlejohn v. Greeley, 13 Abb. Prac. Rep. 41; Hunt v. Bennett, 4 E. D. Smith, 647; 19 N. Y. 173.

? Davis v. Gardiner, 4 Coke, 17 a.

* 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 actionable. (Brewer v. Weakley, 2 Overt. 99.)

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."- "If the words be of probable ill consequence to a person in a trade or profession or an office." Bayley, B., objected to this rule, that the words probably and probable were too indefinite, 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 misconduct in the office, it went beyond what the authorities warranted. But, "How is a natural stronger (more definite) than a probable tendency?" To maintain an action for words spoken, they must impute some matter in relation to the party's particular trade or vocation, and which, if true, would render him unworthy of employment. "Every authority which I have been able to find either shows the want of some general requisite, as honesty, capacity, fidelity, &c., or connects the imputation with the plaintiff's office, trade, or business; " or his office of trust and place of honor, provided they be of a temporal nature;" and "We ought not to extend

1 De Grey, Ch. J., Onslow 7. Horne, 2 Wils. 186. Same case, as reported 2 W. Bl. R. 753.

3 Lumby v. Allday, 1 Cr. & J. 301; I Tyrw. 217.

Williams, J., James v. Brook, 9 Q. B. 7; and see Sibley v. Tomlins, 4 Tyrw. 90.

5 Kinney v. Nash, 3 N. Y. 177; Fowles v. Bowen, 30 N. Y. 24.

6 Bayley, B., Lumby v. Allday, 1 Cr. & J. 301; 1 Tywr. 217; approved Ayre v. Craven, 2 Adol. & El. 2; 2 Nev. & M. 220; and see Jones v. Littler, 7 M. & W. 433; Southee v. Denny, 1 Ex. 196; James v. Brooke, 9 Q. B. 7.

'How v. Prinn, Holt, 652; s. c. Prinn v. Howe, I 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 a 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 libelous 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 except 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 libelous, without charging him with any act. Any imputations against a person who is in the enjoyment of an office, either public or private, of

I

the limits of actions of this nature beyond those laid down by our predecessors." 1 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 concerning 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 illustrations 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 business, and therefore to charge one who is a merchant with keeping false books has been held to be actionable, but the like charge concerning a farmer was held not actionable, because the keeping of books was not considered requisite to the conduct of his business, although in addition to his business of farmer he sawed logs for reward and dealt in lumber.3

honor, profit, or trust, which import a charge of unfitness to administer the duty of the office, are libelous. (Holt on Libel, 208.) Words which charge a breach of a public trust are actionable. (See Kinney v. Nash, 3 N. Y. 178; Taylor v. Carr, 3 Up. Can. Q. B. Rep. 306.)

1 Pollock, Ch. B., Gallwey v. Marshall, 9 Ex. 294.

* Backus v. Richardson, 5 Johns. 476. And the like charge against a blacksmith held actionable. (Burtch v. Nickerson, 17 Johns. 217; and see Crawfoot v. Dale, Vent. 263; and Viner's Abr. Act. for Words, U, a, 22.)

'Rathbun v. 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 plaintiff's 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

§ 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 concerns 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 concerning one in a special character, it must be shown that he maintained that special character at the time the language was published (§ 386). Where the plaintiff had been commissioner to make a treaty with the Indians, and after his commission had terminated, the defendant charged him orally with hiring and bribing the Indians to sign action could be maintained. constable, once in 1843 and

such treaty, held that no Where plaintiff was twice again in 1846, and during

"You keep false books," implied knowledge in plaintiff; and in Todd v. Hastings (Vent. 117), 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. Nickerson, 17 Johns. 217.) Mechanics "generally sell on credit, and their success and reputation depend upon their character for fair dealing." (Rathbun v. Emigh, 6 Wend. 407.) Another reason why a charge of keeping 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.)

1 Smayles v. Smith, Brownl. 1; Reignald's Case, Cro. Car. 563; Jordan v. Lyster, Cro. Eliz. 273; Dotter v. Ford, Id. 794; Bellamy v. Burch, 16 M. & W. 590; Allen v. Hillman, 12 Pick. 101; Forward v. Adams, 7 Wend. 204; Windsor v. Oliver, 41 Ga. 538; Dicken v. Shepard, 22 Md. 399; Oram v. Franklin, 5 Blackf. 42; Harris v. Bailey, 8 N. Hamp. 216. See 2 Vent. 366, where it is said, "Where a man had been in an office of trust, to say he behaved himself corruptly in it, as it imported great scandal, so it might prevent his coming into that or the like office again.” (See $ 290, post.)

2 Forward v. Adams, 7 Wend. 204.

2

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. 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; 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.3 Whether or not the plaintiff occupied the special character alleged, and whether or not he continued in such special character until the time of the publication complained against, are questions of fact. A person shown once to have been in any certain office, profession, or trade, is presumed to continue therein. The decisions which 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

1 Edwards v. Howell, 10 Ired. 211. But it was said plaintiff might have recovered on proof of special damage.

2

Gardyner v. Hopwood, cited 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 maintain an action for language concerning him as an attorney. (Jones v. Stevens, II Price, 235; Pearce v. Whale, 5 B. & C. 38; Morris v. Langdale, 2 Bos. & P. 284 ; see § 183, ante.)

3 Collis v. Malin, Cro. Car. 282; Gray v. Metcalfe, Yelv. 21.

* Tuthil v. Milton, Yelv. 158; Collis v. Malin, Cro. Car. 282; Jordan v. Lyster, Cro. Eliz. 273; Moore v. Synne, 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, 28 N. V. 324; but see McLeod 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 they acted in those characters, without proving their appointments. (Berryman v. Wise, 4 T. R. 366; Gordon's Case, Leach, 581; Rex v. Shelly, Leach, 581, n.)