Chapter VI: Defamation (2)

I see no objection in law to that passage. The damages are certainly heavy, but I think your Lordships ought to remember two things. The first is that the jury were entitled to think, in the absence of proof satisfactory to them (and they were the judges of it), that some ingredient of recklessness, or more than recklessness, entered into the writing and the publication of this article, especially as Mr. Jones, the plaintiff, had been employed on this very newspaper, and his name was well known in the paper and also well known in the district in which the paper circulated. In the second place the jury were entitled to say this kind of article is to be condemned. There is no tribunal more fitted to decide in regard to publication, especially publications in the newspaper Press, whether they bear a stamp and character which ought to enlist sympathy and to secure protection. If they think that the license is not fairly used and that the tone and style of the libel is reprehensible and ought to be checked, it is for the jury to say so; and for my part, although I think the damages are certainly high, I am not prepared to advise your Lordships to interfere, especially as the Court of Appeal have not thought it right to interfere, with the verdict.

Lords Atkinson, Gorell, and Shaw of Dunfermline concurred.

_Appeal dismissed._[431]

McPHERSON _v._ DANIELS
IN THE KING’S BENCH, MICHAELMAS TERM, 1829.
_Reported in 10 Barnewall & Cresswell, 263._

Slander for an imputation of insolvency. The defendant pleaded that at the time of uttering the said words he declared that he had heard and been told the same from and by one T. W. Woor. General demurrer.[432]

LITTLEDALE, J. For the reasons already given by my Brother Bayley, I think that the plea is bad; but with reference to the resolution in Lord Northampton’s case, I will say a few words. That resolution has been frequently referred to within the last thirty years, and though not expressly overruled has been generally disapproved of. The latter part of that resolution is extrajudicial, for it was not necessary to come to any resolution respecting private slander in the Star Chamber. It is somewhat inconsistent with the third resolution, where it is laid down, “that if one hear false and horrible rumors, either of the king or of any of the grandees, it is not lawful for him to relate to others that he heard J. S. say such false and horrible words, for if it should be lawful, by this means _they may be published generally._” It was resolved then, that in the case of _scandalum magnatum_ it was not lawful to repeat slander, because, if it was, it might circulate generally. Now the same inconvenience, viz. the general publication of slander, though differing in degree, would follow from the repetition of slander in either case. The fourth resolution, however, in terms, perhaps does not go the length of saying that a defendant may justify the repetition of slander generally, but only that he may justify under certain circumstances. Assuming that it imports that a defendant may justify the repetition of slander generally, by showing that he named his original author, I think that it is not law.

The declaration, which contains a technical statement of the facts necessary to support the action, alleges that the defendant falsely and maliciously published the slander to the plaintiff’s damage. In order to maintain such an action, there must be malice in the defendant and a damage to the plaintiff, and the words must be untrue. Where words, falsely and maliciously spoken, as in this case, are actionable in themselves, the law _prima facie_ presumes a consequent damage without proof. In other cases actual damage must be proved. To constitute a good defence, therefore, to such an action, where the publication of the slander is not intended to be denied, the defendant must negative the charge of malice (which in its legal sense denotes a wrongful act done intentionally without just cause or excuse), or show that the plaintiff is not entitled to recover damages. It is competent to a defendant, upon the general issue, to show that the words were not spoken maliciously; by proving that they were spoken on an occasion, or under circumstances which the law, on grounds of public policy, allows, as in the course of a parliamentary or judicial proceeding, or in giving the character of a servant. But if the defendant relies upon the truth as an answer to the action, he must plead that matter specially; because the truth is an answer to the action, not because it negatives the charge of malice (for a person may wrongfully or maliciously utter slanderous matter though true, and thereby subject himself to an indictment), but because it shows that the plaintiff is not entitled to recover damages. For the law will not permit a man to recover damages in respect of an injury to a character which he either does not, or ought not, to possess. Now, a defendant, by showing that he stated at the time when he published slanderous matter of a plaintiff, that he heard it from a third person does not negative the charge of malice, for a man may wrongfully and maliciously repeat that which another person may have uttered upon a justifiable occasion. Such a plea does not show that the slander was published on an occasion, or under circumstances which the law, on grounds of public policy, allows. Nor does it show that the plaintiff has not sustained, or is not entitled in a court of law to recover, damages. As great an injury may accrue from the wrongful repetition, as from the first publication of slander, the first utterer may have been a person insane, or of bad character. The person who repeats it gives greater weight to the slander. A party is not the less entitled to recover damages in a court of law for injurious matter published concerning him, because another person previously published it. That shows not that the plaintiff has been guilty of any misconduct which renders it unfit that he should recover damages in a court of law, but that he has been wronged by another person as well as the defendant; and may, consequently if the slander was not published by the first utterer on a lawful occasion, have an action for damages against that person as well as the defendant. It seems to me, therefore, that such a plea is not an answer to an action for slander, because it does not negative the charge of malice, nor does it show that the plaintiff is not entitled to recover damages.

_Judgment for plaintiff._[433]

THORLEY _v._ LORD KERRY
IN THE EXCHEQUER CHAMBER, MAY 9, 1812.
_Reported in 4 Taunton, 355._

This was a writ of error brought to reverse a judgment of the Court of King’s Bench. “This was an action for a libel contained in a letter addressed to Lord Kerry, and sent open by one of his servants, who became acquainted with its contents. The libel charged his Lordship with being a hypocrite, and using the cloak of religion for unworthy purposes.”[434] Upon not guilty pleaded, the cause was tried at the Surrey spring assizes, 1809, when the writing of the letter by the defendant was proved, and that he delivered it unsealed to a servant to carry, who opened and read it; a verdict was found for the plaintiff with £20 damages, and judgment passed for the plaintiff without argument in the court below. The plaintiff in error assigned the general errors.

MANSFIELD, C. J., delivered the opinion of the court.

This is a writ of error, brought to reverse a judgment of the Court of King’s Bench, in which there was no argument. It was an action on a libel published in a letter which the bearer of the letter happened to open. The declaration has certainly some very curious recitals. It recites that the plaintiff was tenant to Archibald Lord Douglas of a messuage in Petersham; that, being desirous to become a parishioner and to attend the vestry, he agreed to pay the taxes of the said house, that the plaintiff in error was churchwarden, and that the defendant in error gave him notice of his agreement with Lord Douglas; and that the plaintiff in error, intending to have it believed that the said earl was guilty of the offences and misconducts thereinafter mentioned (offences there are none, misconduct there may be), wrote the letter to the said earl which is set forth in the pleadings. There is no doubt that this was a libel, for which the plaintiff in error might have been indicted and punished; because, though the words impute no punishable crimes, they contain that sort of imputation which is calculated to vilify a man, and bring him, as the books say, into hatred, contempt, and ridicule; for all words of that description an indictment lies; and I should have thought that the peace and good name of individuals was sufficiently guarded by the terror of this criminal proceeding in such cases. The words, if merely spoken, would not be of themselves sufficient to support an action. But the question now is, whether an action will lie for these words so written, notwithstanding such an action would not lie for them if spoken; and I am very sorry it was not discussed in the Court of King’s Bench, that we might have had the opinion of all the twelve judges on the point, whether there be any distinction as to the right of action between written and parol scandal; for myself, after having heard it extremely well argued, and especially, in this case, by Mr. Barnewall, I cannot, upon principle, make any difference between words written and words spoken, as to the right which arises on them of bringing an action. For the plaintiff in error it has been truly urged, that in the old books and abridgments no distinction is taken between words written and spoken. But the distinction has been made between written and spoken slander as far back as Charles the Second’s time, and the difference has been recognized by the courts for at least a century back. It does not appear to me that the rights of parties to a good character are insufficiently defended by the criminal remedies which the law gives, and the law gives a very ample field for retribution by action for words spoken in the cases of special damage, of words spoken of a man in his trade or profession, of a man in office, of a magistrate or officer; for all these an action lies. But for mere general abuse spoken, no action lies. In the arguments both of the judges and counsel, in almost all the cases in which the question has been, whether what is contained in a writing is the subject of an action or not, it has been considered whether the words, if spoken, would maintain an action. It is curious that they have also adverted to the question, whether it tends to produce a breach of the peace; but that is wholly irrelevant, and is no ground for recovering damages. So it has been argued that writing shows more deliberate malignity; but the same answer suffices, that the action is not maintainable upon the ground of the malignity, but for the damage sustained. So it is argued that written scandal is more generally diffused than words spoken, and is, therefore, actionable; but an assertion made in a public place, as upon the Royal Exchange, concerning a merchant in London, may be much more extensively diffused than a few printed papers dispersed, or a private letter; it is true that a newspaper may be very generally read, but that is all casual. These are the arguments which prevail on my mind to repudiate the distinction between written and spoken scandal; but that distinction has been established by some of the greatest names known to the law, Lord Hardwicke, Hale, I believe Holt, C. J., and others. Lord Hardwicke, C. J., especially has laid it down that an action for a libel may be brought on words written, when the words, if spoken, would not sustain it. Com. Dig. tit. Libel, referring to the case in Fitzg. 122, 253, says there is a distinction between written and spoken scandal; by his putting it down there as he does, as being the law, without making any query or doubt upon it, we are led to suppose that he was of the same opinion. I do not now recapitulate the cases, but we cannot, in opposition to them, venture to lay down at this day that no action can be maintained for any words written, for which an action could not be maintained if they were spoken; upon these grounds we think the judgment of the Court of King’s Bench must be affirmed. The purpose of this action is to recover a compensation for some damage supposed to be sustained by the plaintiff by reason of the libel. The tendency of the libel to provoke a breach of the peace, or the degree of malignity which actuates the writer, has nothing to do with the question. If the matter were for the first time to be decided at this day, I should have no hesitation in saying that no action could be maintained for written scandal which could not be maintained for the words if they had been spoken.

_Judgment affirmed._[435]

WEBB _v._ BEAVAN
IN THE QUEEN’S BENCH DIVISION, MAY 10, 1883.
_Reported in 11 Queen’s Bench Division, 609._

Demurrer to a statement of claim which alleged that the defendant falsely and maliciously spoke and published of the plaintiff the words following: “I will lock you” (meaning the plaintiff) “up in Gloucester Gaol next week. I know enough to put you” (meaning the plaintiff) “there,” meaning thereby that the plaintiff had been and was guilty of having committed some criminal offence or offences. The plaintiff claimed £500 damages.

Demurrer, on the ground that the statement of claim did not allege circumstances showing that the defendant had spoken or published of the plaintiff any actionable language, and that no cause of action was disclosed. Joinder in demurrer.

_W. H. Nash_, in support of the demurrer, contended that, in order to make the words actionable, the innuendo should have alleged that they imputed an offence for which the plaintiff could have been indicted, and that it was not sufficient to allege that they imputed a criminal offence merely. He referred to Odgers on Libel and Slander, p. 54.

_Hammond Chambers_, contra, contended that, according to the earlier authorities, the test, in ascertaining whether words were actionable _per se_, was whether the offence imputed was punishable corporally or by fine, and that it was not necessary to allege that the words imputed an indictable offence. He cited Com. Dig. tit. Action on the Case for Defamation, D. 5 and 9; Curtis _v._ Curtis, 10 Bing. 477.

POLLOCK, B. I am of opinion that the demurrer should be overruled. The expression “indictable offence” seems to have crept into the text-books, but I think the passages in Comyns’ Digest are conclusive to show that words which impute any criminal offence are actionable _per se_. The distinction seems a natural one, that words imputing that the plaintiff has rendered himself liable to the mere infliction of a fine are not slanderous, but that it is slanderous to say that he has done something for which he can be made to suffer corporally.

LOPES, J. I am of the same opinion. I think it is enough to allege that the words complained of impute a criminal offence. A great number of offences which were dealt with by indictment twenty years ago are now disposed of summarily, but the effect cannot be to alter the law with respect to actions for slander.

_Demurrer overruled._[436]

BROOKER _v._ COFFIN
SUPREME COURT, NEW YORK, NOVEMBER, 1809.
_Reported in 5 Johnson, 188._

SPENCER, J., delivered the opinion of the court.[437] The first count is for these words, “She is a common prostitute, and I can prove it;” and the question arises, whether speaking these words gives an action without alleging special damage.[438] By the statute (1 R. L. 124), common prostitutes are adjudged disorderly persons, and are liable to commitment by any justice of the peace, upon conviction, to the bridewell or house of correction, to be kept at hard labor for a period not exceeding sixty days, or until the next general sessions of the peace. It has been supposed that, therefore, to charge a woman with being a common prostitute, was charging her with such an offence as would give an action for the slander. The same statute which authorizes the infliction of imprisonment on common prostitutes, as disorderly persons, inflicts the same punishment for a great variety of acts, the commission of which renders persons liable to be considered disorderly; and to sustain this action would be going the whole length of saying, that every one charged with any of the acts prohibited by that statute, would be entitled to maintain an action for defamation. Among others, to charge a person with pretending to have skill in physiognomy, palmistry, or pretending to tell fortunes, would, if this action is sustained, be actionable. Upon the fullest consideration, we are inclined to adopt this as the safest rule, and one which, as we think, is warranted by the cases. In case the charge, if true, will subject the party charged to an indictment for a crime involving moral turpitude, or subject him to an infamous punishment, then the words will be in themselves actionable;[439] and Baron Comyns considers the test to be, whether the crime is indictable or not. 1 Com. tit. Action on the Case for Defamation, F, 20. There is not, perhaps, so much uncertainty in the law upon any subject as when words shall be in themselves actionable. From the contradiction of cases, and the uncertainty prevailing on this head, the court think they may, without overleaping the bounds of their duty, lay down a rule which will conduce to certainty, and they therefore adopt the rule I have mentioned as the criterion. In our opinion, therefore, the first count in the declaration is defective.

_The defendant must, therefore, have judgment._[440]

COOPER _v._ SEAVERNS
SUPREME COURT, KANSAS, DECEMBER 11, 1909.
_Reported in 81 Kansas Reports, 267._

BURCH, J.[441] The common law of England was that verbal imputations
of unchaste conduct on the part of a female were not actionable, in
the absence of special damages, unless they related to a person in
some office or employment for which morality and virtue were
qualifications (Folkhard, Law Slan. & Lib. 7th ed., p. 43), and except
in the local courts of the city of London, the borough of Southwark
and the city of Bristol, where it was the custom to whip strumpets at
cart’s tail, tingling a basin before them (Odgers, Lib. & Slan., p.
*84). This rule has been accounted for on the supposition that in the
early, formative days of the common law social relations were rude,
manners were unrefined, and the people were accustomed to hearing
gross and vulgar epithets freely tossed about without regarding them
seriously. (Odgers, Lib. & Slan., p. *86.) The case of Oxford & ux.
_v._ Cross, in the king’s bench, Trinity term, 41 Elizabeth (1599),
Coke’s Reports (vol. 2, p. 307; part 4, p. 18a), is cited in support
of this view, wherein it was said that a custom “to maintain actions
for such brabling words is against law.” Pollock and Maitland discover
a better state of civilization from the early records than the view
indicated takes for granted:

“We should be much mistaken, however, if we believed that the temporal
law of the middle ages gave no action to the defamed. Nothing could be
less true than that our ancestors in the days of their barbarism could
only feel blows and treated hard words as of no account. Even the rude
_lex Salica_ decrees that if one calls a man ‘wolf’ or ‘hare’ one must
pay him three shillings, while if one calls a woman ‘harlot’ and
cannot prove the truth of the charge, one must pay her forty-five
shillings. The oldest English laws exact _bot_ and _wite_ if one gives
another bad names....”

This being true, a reason for the rule must be found elsewhere than in
any essential brutality of the early Englishman. The doctrine appears
to be fully accounted for through the partition of authority in
England between the spiritual and the temporal courts. (Odgers, Lib. &
Slan., p. *86.) It is familiar history that in the middle ages, for
reasons and by means which need not be sketched here, the all-powerful
ecclesiastics acquired jurisdiction over a large portion of the most
important concerns of life—testaments, matrimony, and among
innumerable others, defamation. This breach of the social order was
regarded as a sin and was punishable in the spiritual courts as
such....

The struggle to limit and define the authority of the ecclesiastical
courts was long and bitter, and frequently exhibited some striking
features. In the progress of the duel the common-law courts used as
their principal weapon the king’s writ of prohibition to restrain the
exercise of jurisdiction over causes which they desired to adjudicate.
The ecclesiastics returned the fire by excommunicating those who sued
out such writs. By and by an increasing number of pecuniary matters
came to be regarded as pertaining to things of this world, and the
civil courts finally succeeded in maintaining their right to
administer relief in an action on the case where specific damages were
occasioned by slanderous words.

[After discussing the jurisdiction of the ecclesiastical courts, the
opinion proceeds:]

Although the English judges felt constrained to follow the common-law
rule until it was superseded by act of parliament, it did not satisfy
their consciences. In 1759, in the case of Jones _v._ Herne, in the
Court of King’s Bench (2 Wil. 87, 95 Eng. Rep., Full Reprint, 701),
Chief Justice Willes, after holding it actionable to say a man is a
forger, added that if it were _res integra_ he would hold that calling
a man a rogue or a woman a whore in public company is actionable.

Very near the time when this state entered upon its separate
constitutional existence the common-law rule fell under the censure of
some of the ablest exponents of English justice.

[The opinion then sets forth a number of judicial criticisms of the
common-law doctrine and proceeds:]

From the foregoing it appears that the rule under consideration
resulted solely from the early seizure of jurisdiction over slander by
the ecclesiastical courts, which could not award damages at all, and
the inability of the temporal courts to strip that jurisdiction from
their rivals except in cases involving special damages. It never did
rest upon any principle of right or justice or any decent regard for
character. It was unsuited to the true genius and real needs of the
people over whom it tyrannized, even from the earliest times. It
created anomalies in the law of defamation which rendered that law
absurd and grotesque. For example, words “touching” some disreputable
good-for-nothing in his work or trade were actionable. The most
sensitive, cultivated, high-bred woman could be foully slandered with
impunity. Written ridicule of the style of her hat gave ground for
exemplary damages. She had no redress for spoken words inflicting one
of the deepest wounds her sex can suffer. The rule was not merely
insufferably wrong; it was wrong in a matter of so precious a nature
that it was shocking. It was suppressed because it had long been
reprobated as odious and was universally detested. The question now to
be decided is, Does that rule obtain in this state?...

This is not the case of a principle which commands considerable
approval, is founded upon fair reason, is merely of questionable
wisdom, and which therefore ought to be followed until abrogated by
the legislature. It is the case of an outlawed rule of negation whose
sole function has always been to thwart natural justice in one of the
dearest and tenderest of human interests. Therefore its rejection is
justified by Duncan _v._ Baker (21 Kan. 99) and Whitaker _v._ Hawley
(25 Kan. 674), _supra_.

The world is censorious, and a woman’s or a maiden’s reputation for
modesty and chastity is an asset of inestimable value. Its loss
renders her poor indeed. Injury in fact is the necessary result of
such a deprivation, whether or not the sufferer can point to specific
damage in a few paltry dollars or to liability to a trifling fine if
the charge were true. Therefore the pleading of special damages as a
basis for relief ought to be treated as a useless fiction, like the
one condemned in Anthony _v._ Norton (60 Kan. 341), _supra_.

Taking into consideration the origin and history of the rule, the
reason supporting it, its character, its consequences, and the degree
of its appositeness to our constitution and system of laws, it does
not apply to the conditions or meet the needs of the people of this
state, and consequently it is not a part of the law of this state.

This problem has been met and solved by different states of the
American Union in different ways. In some the rule is obediently
observed. In some it is followed under protest—is characterized as a
disgrace to the state—but still is followed. In some statutes have
relieved from its iniquity in whole or in part. In some it is frankly
repudiated by the courts because it lacks the sanction of reason and
justice. This court has no legislative functions. As Lord Campbell
said, it is here only to declare the law. Under the statute of 1868 it
must determine whether a rule of the common law invoked in a judicial
proceeding contravenes the constitution or statutes of the state, or
has been modified by judicial decision, and whether it is adapted to
the conditions and is suitable to the needs of the people of the
state. This duty has been discharged in the present case.[442]

LUMBY _v._ ALLDAY
IN THE EXCHEQUER, HILARY TERM, 1831.
_Reported in 1 Crompton & Jervis, 301._

Action for words.

The judgment of the court was now delivered by

BAYLEY, B.[443] This case came before the court upon a rule _nisi_ to enter a nonsuit. The ground of motion was that the words (in slander) proved upon the trial were not actionable.

Two points were discussed upon the motion: one, whether the words were actionable or not; and the other, whether this was properly a ground of nonsuit.

The declaration stated that the plaintiff was clerk to an incorporated company, called the Birmingham and Staffordshire Gas Light Company, and had behaved himself as such with great propriety, and thereby acquired, and was daily acquiring, great gains; but that the defendant, to cause it to be believed that he was unfit to hold his situation, and an improper person to be employed by the company, and to cause him to be deprived of his situation, spoke the words complained of in the declaration, viz.: “You are a fellow, a disgrace to the town, unfit to hold your situation, for your conduct with whores. I will have you in the ‘Argus.’ You have bought up all the copies of the ‘Argus,’ knowing you have been exposed. You may drown yourself, for you are not fit to live, and are a disgrace to the situation you hold.”

The objection to maintaining an action upon these words is, that it is only on the ground of the plaintiff being clerk to the company that they can be actionable; that it is not alleged that they are spoken of him in reference to his character or conduct as clerk; that they do not, from their tenor, import that they were spoken with any such reference; that they do not impute to him the want of any qualification such as a clerk ought to have, or any misconduct which would make him unfit to discharge faithfully and correctly all the duties of such a clerk.

The plaintiff relied on the rule laid down by De Grey, C. J., in Onslow _v._ Horne, 3 Wils. 177, “that words are actionable when spoken of one in an office of profit, which may probably occasion the loss of his office; or when spoken of persons touching their respective professions, trades, and business, and do or may probably tend to their damage.” The same case occurs in Sir Wm. Bl. Rep. 753, and there the rule is expressed to be, “if the words be of probable ill consequence to a person in a trade or profession, or an office.”[444]

The objection to the rule, as expressed in both reports, appears to me to be, that the words “probably” and “probable” are too indefinite and loose, and unless they are considered as equivalent to “having a natural tendency to,” and are confined within the limits, I have expressed in stating the defendant’s objections, of showing the want of some necessary qualification, or some misconduct in the office, it goes beyond what the authorities warrant.

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. As at present advised, therefore, I am of opinion that the charge proved in this case is not actionable, because the imputation it contains does not imply the want of any of those qualities which a clerk ought to possess, and because the imputation has no reference to his conduct as clerk. I say as at present advised, for the reason which I am about to state.

The next question is, whether this is properly a ground of nonsuit; and I am of opinion that, under the circumstances of this case, it is not. The words proved are nearly all the words which the first count contains; and if the words proved are not actionable, none of the other words contained in that count are. When the general issue is pleaded to a count, it puts in issue to be tried by the jury the question, whether the facts stated in that count exist. The legal effect of those facts, whether they constitute a cause of action or not, is not properly in question. The proper mode to bring that legal effect into consideration is, before trial, to demur; after trial, to move in arrest of judgment. The duty of the judge, under whose direction the jury try questions of fact, is not to consider whether the facts charged give a ground of action, but to assist the jury in matters of law, which may arise upon the trial of those facts.

As the defendant, therefore, in this case puts in issue the allegations in the declaration, and those allegations were proved upon the trial, we are of opinion that the rule for a nonsuit ought to be discharged; and, notwithstanding the lapse of time, that there ought to be a rule _nisi_ to arrest the judgment, if the defendant be advised to take such rule.

_Rule discharged._[445]

JONES _v._ LITTLER
IN THE EXCHEQUER, JANUARY 16, 1841.
_Reported in 7 Meeson & Welsby, 423._

Slander. The declaration stated that the plaintiff was a brewer, and that the defendant falsely and maliciously spoke and published of and concerning him in the way of his trade as a brewer the false, scandalous, malicious, and defamatory words following: “I’ll” (meaning that he, the defendant, would) “bet £5 to £1, that Mr. Jones” (meaning the plaintiff) “was in a sponging-house for debt within the last fortnight, and I can produce the man who locked him up; the man told me so himself.” Whereupon the said Henry Pye then asked the defendant, “Do you mean to say that Mr. Jones, brewer, of Rose Hill” (meaning and describing the plaintiff), “has been in a sponging-house within this last fortnight for debt?” and thereupon the defendant then replied to the said Henry Pye, and the said other persons then present, “Yes, I do.”

The jury having returned a verdict for the plaintiff, the court granted a rule to show cause why there should not be a new trial, on a suggestion that the learned judge ought to have left it as a question to the jury whether the words were spoken of the plaintiff in the way of his trade, and did not.

PARKE, B. It is quite clear that this rule ought to be discharged, for the only ground on which it was granted has failed, inasmuch as the learned judge did leave the question to the jury, whether the words were spoken of the plaintiff in his trade; and, indeed, it is plain that the words were so used, from the fact that in the conversation in question the plaintiff was spoken of as a brewer. Independently of that, however, and even if they were spoken of him in his private character, I think the case of Stanton _v._ Smith, 2 Ld. Raym. 1480, is an authority to show that the words would have been actionable, because they must necessarily affect him in his trade. It is there said, “We were all of opinion that such words spoken of a tradesman must greatly lessen the credit of a tradesman, and be very prejudicial to him, and therefore that they were actionable.” That case is distinguishable from Ayre _v._ Craven, 2 A. & E. 2, and Doyley _v._ Roberts, 1 Bing. N. C. 135. In the latter of those cases the words were not spoken of the plaintiff in his business of an attorney; and in the former it did not appear in what manner the immorality was connected with the plaintiff’s profession of a physician; and it was possible that such imputations of incorrect conduct, out of the line of their respective professions, might not injure their professional characters. But this case is distinguishable, because here the imputation is that of insolvency, which must be injurious; for if a tradesman be incapable of paying all his debts, whether in or out of trade, his credit as a tradesman, which depends on his general solvency, must be injured. The case of Stanton _v._ Smith, as it appears to me, is good law, notwithstanding the observations of Coltman, J., in Doyley _v._ Roberts.

ALDERSON and ROLFE, BB., concurred.

_Rule discharged._[446]

SECOR _v._ HARRIS
SUPREME COURT, NEW YORK, SEPTEMBER, 1854.
_Reported in 18 Barbour, 425._

Motion by the plaintiff for a new trial, upon a bill of exceptions.

MASON, J. This is an action for slander. Upon the trial of the cause
the plaintiff proved the following words, which were also alleged in
the complaint: “Doctor Secor killed my children.” “He gave them
teaspoonful doses of calomel, and they died.” “Dr. Secor gave them
teaspoonful doses of calomel, and it killed them; they did not live
long after they took it. They died right off,—the same day.” The
plaintiff was proved to be a practising physician, and the evidence
shows that he had practised in the defendant’s family, and had
prescribed for the defendant’s children, and that the words were
spoken of him in his character of a physician. The plaintiff claimed
that the words were actionable, and that he was entitled to have this
branch of the case, upon the words, submitted to the jury. The judge
at the circuit held that the words were not actionable, and took them
from the consideration of the jury. These words, spoken of the
plaintiff as a physician, are actionable _per se_, whatever may be
said upon the question, whether they impute a criminal offence. They
do not impute a criminal offence, unless there is evidence, arising
from the quantity of the calomel which the defendant alleged that the
plaintiff gave these children, from which a jury would be justified in
finding an intention to kill them. One of them was three years of age,
and the other one year and a half. If the natural result, which should
reasonably be expected from feeding children of such tender years full
teaspoon doses of calomel, would be certain death, then it is not a
forced construction of the words to say that the defendant intended to
charge the plaintiff with an intention to kill these children, in
giving them such doses. It is not necessary, however, to say that the
judge should have submitted this case to the jury upon the question,
whether the defendant did not intend to impute to the plaintiff, by
these words, a criminal offence. I am quite inclined to think,
however, that had the judge submitted the case to the jury upon the
imputation of a criminal intent in these words, and had the jury found
that such intent was imputed, we should not be justified in setting
aside their verdict. It is not necessary, however, to place the case
upon this ground; for it is certainly slanderous to say of a physician
that he killed these children of such tender years, by giving them
teaspoonful doses of calomel. The charge, to say the least, imports
such a total ignorance of his profession as to destroy all confidence
in the physician. It is a disgrace to a physician to have it believed
that he is so ignorant of this most familiar and common medicine, as
to give such quantities thereof to such young children. The law is
well settled that words published of a physician, falsely imputing to
him general ignorance or want of skill in his profession, are
actionable, in themselves, on the ground of presumed damage. Starkie
on Slander, 100, 110, 115, 10, 12; Martyn _v._ Burlings, Cro. Eliz.
589; Bacon’s Abr. title Slander, B; Watson _v._ Van Derlash, Hetl. 69;
Tutler _v._ Alwin, 11 Mod. R. 221; Smith _v._ Taylor, 1 New R. 196;
Sumner _v._ Utley, 7 Conn. R. 257. I am aware that it was held, in the
case of Poe _v._ Mondford, Cro. El. 620, that it is not actionable to
say of a physician, “He hath killed a patient with physic;” and that,
upon the strength of the authority of that case, it was decided in
this court in Foot _v._ Brown, 8 Johns. 64, that it was not actionable
to say of an attorney or counsellor, when speaking of a particular
suit. “He knows nothing about the suit; he will lead you on until he
has undone you.” These cases are not sound. The case of Poe _v._
Mondford is repudiated in Bacon’s Abr. as authority, and cases are
referred to as holding a contrary doctrine (vol. ix. pages 49, 50).
The cases of Poe _v._ Mondford, and of Foot _v._ Brown, were reviewed
by the Supreme Court of Connecticut, in the case of Sumner _v._ Utley,
7 Conn. R. 257, with most distinguished ability, and the doctrine of
those cases repudiated. In the latter case it is distinctly held, that
words are actionable in themselves, which charge a physician with
ignorance or want of skill in his treatment of a particular patient,
if the charge be such as imports gross ignorance or unskilfulness. To
the same effect is the case of Johnson _v._ Robertson, 8 Porter’s R.
486, where it was held that the following words spoken of a physician
in regard to his treatment of a particular case, “He killed the child
by giving it too much calomel,” are actionable in themselves; and such
is the case of Tutler _v._ Alwin, 11 Mod. R. 221, where it was held to
be actionable to say of an apothecary, that “he killed a patient with
physic.” See also 3 Wilson’s R. 186; Bacon’s Abr. title Slander,
letter B, 2, vol. ix. page 49 (Bouv. ed.). The cases of Poe _v._
Mondford and Foot _v._ Brown have been repudiated by the highest
judicial tribunal in two of the American States, while the case of Poe
_v._ Mondford seems to have been repudiated in England; and I agree
with Clinch, J., that the reason upon which that case is decided is
not apparent. I do not go the length to say that falsehood may not be
spoken of a physician’s practice, in a particular case, without
subjecting the party to this action. A physician may mistake the
symptoms of a patient, or may misjudge as to the nature of his
disease, and even as to the powers of medicine, and yet his error may
be of that pardonable kind that will do him no essential prejudice,
because it is rather a proof of human imperfection than of culpable
ignorance or unskilfulness; and where charges are made against a
physician that fall within this class of cases, they are not
actionable, without proof of special damages.[447] 7 Conn. R. 257. It
is equally true, that a single act of a physician may evince gross
ignorance, and such a total want of skill, as will not fail to injure
his reputation, and deprive him of general confidence. When such a
charge is made against a physician, the words are actionable _per se_.
7 Conn. R. 257. The rule may be laid down as a general one that, when
the charge implies gross ignorance and unskilfulness in his
profession, the words are actionable _per se_. This is upon the ground
that the law presumes damage to result, from the very nature of the
charge. The law in such a case lays aside its usual strictness; for
when the presumption of damage is violent, and the difficulty of
proving it is considerable, the law supplies the defect, and, by
converting presumption into proof secures the character of the
sufferer from the misery of delay, and enables him at once to face the
calumny in open court. Starkie on Slander, 581. It was well said by
the learned Chief Justice Hosmer, in Sumner _v._ Utley, 7 Conn. 257,
that, “As a general principle, it can never be admitted that the
practice of a physician or surgeon in a particular case may be
calumniated with impunity, unless special damage is shown. By
confining the slander to particulars, a man may thus be ruined in
detail. A calumniator might follow the track of the plaintiff, and
begin by falsely ascribing to a physician the killing of three persons
by mismanagement, and then, the mistaking of an artery for a vein, and
thus might proceed to misrepresent every single case of his practice,
until his reputation should be blasted beyond remedy. Instead of
murdering character by one stroke, the victim would be cut
successively in pieces, and the only difference would consist in the
manner of effecting the same result.” It is true, as was said by the
learned Chief Justice Hosmer in that case, the redress proposed, on
the proof of special damage, is inadequate to such a case. Much time
may elapse before the fact of damage admits of any evidence; and then
the proof will always fall short of the mischief. In the mean time the
reputation of the calumniated person languishes and dies; and hence,
as we have before said, the presumption of damage being violent, and
the difficulty of proving it considerable, the law supplies the defect
by converting presumption of damage into proof: Starkie on Slander,
581; in other words, the law presumes that damages result from the
speaking of the words. In the case under consideration, the words
proved impute to the plaintiff such gross ignorance of his profession,
if nothing more, as would be calculated to destroy his character
wherever the charge should be credited. It would be calculated to make
all men speak out and say, as did the witness Richard Morris, “that it
was outrageous, and the plaintiff ought not to be permitted to
practise.” The law will therefore presume damages to result from the
speaking of the words, and consequently hold the words actionable in
themselves. The judge at the circuit erred in taking this branch of
the case from the consideration of the jury, and a new trial must be
granted; costs to abide the event of the action.

CRIPPEN, J., concurred. SHANKLAND, J., dissented.

_New trial granted._[448]

SMITH _v._ HOBSON
IN THE KING’S BENCH, TRINITY TERM, 1647.
_Reported in Style, 112._

Smith, an innkeeper in Warwick, brought an action upon the case against Hobson for speaking these words: “Colonel Egerton had the French pox, and hath set it in the house” (meaning the plaintiff’s house), “and William Smith and his wife” (meaning the plaintiff and his wife) “have it, and all you.” The plaintiff hath a verdict. The defendant moves in arrest of judgment, and for cause shows, that the words are not actionable; for the words are, that Colonel Egerton hath set the French pox in the house, which is impossible; for the house could not have the pox, and the words, “William Smith and his wife have it,” shall not be meant that they have the pox, but the house, for that is the next antecedent to the words, to which they shall refer. ROLL, J., held the words here actionable, and bid the plaintiff take his judgment, if cause were not shown to the contrary Saturday following. Judgment was afterwards given accordingly.[449]

JOANNES _v._ BURT
SUPREME JUDICIAL COURT, MASSACHUSETTS, JANUARY TERM, 1863.
_Reported in 6 Allen, 336._

HOAR, J.[450] The declaration is in tort for slander, by orally imputing insanity to the plaintiff. We are aware of no authority for maintaining such an action, without the averment of special damage. The authorities upon which the plaintiff relies are both cases of libel. The King _v._ Harvey, 2 B. & C. 257; Southwick _v._ Stevens, 10 Johns. 443. An action for oral slander, in charging the plaintiff with disease, has been confined to the imputation of such loathsome and infectious maladies as would make him an object of disgust and aversion, and banish him from human society. We believe the only examples which adjudged cases furnish are of the plague, leprosy, and venereal disorders.

In addition to this vital objection in matter of substance, the declaration fails to set forth the supposed cause of action in substantial conformity with the requirements of the statute; and contains many superfluous allegations, which are manifestly irrelevant, impertinent, and scandalous.

_Appeal dismissed._[451]

FOSS _v._ HILDRETH
SUPREME JUDICIAL COURT, MASSACHUSETTS, JANUARY, 1865
_Reported in 10 Allen, 76._

CHAPMAN, J. The defendant’s counsel requested the court to give certain instructions to the jury, as stated in the bill of exceptions. One of the instructions prayed for was, that the truth is not a defence to an action of slander, if the words were spoken maliciously or without any reason on the part of the defendant to believe they were true.[452] But in respect to verbal slander the law has always been otherwise. A special plea in justification sets forth the truth of the words merely. 3 Chit. Pl. 1031.

_Exceptions overruled._[453]

SCOTT _v._ STANSFIELD
IN THE EXCHEQUER, JUNE 3, 1868.
_Reported in Law Reports, 3 Exchequer, 220._

Declaration that the defendant published of the plaintiff in relation to his business as a scrivener these words: “You are a harpy, preying on the vitals of the poor.”

Plea: That the defendant uttered the said words while acting as a judge in the trial of a cause wherein the now plaintiff was defendant.

Replication: That the words were spoken falsely and without reasonable cause, and were wholly irrelevant and impertinent to the cause before the defendant as the latter then well knew.

Demurrer.[454]

KELLY, C. B. I am of opinion that our judgment must be for the defendant. The question raised upon this record is whether an action is maintainable against the judge of a county court, which is a court of record, for words spoken by him in his judicial character and in the exercise of his functions as judge in the court over which he presides, where such words would as against an ordinary individual constitute a cause of action, and where they are alleged to have been spoken maliciously and without probable cause, and to have been irrelevant to the matter before him. The question arises, perhaps, for the first time with reference to a county court judge, but a series of decisions uniformly to the same effect, extending from the time of Lord Coke to the present time, establish the general proposition that no action will lie against a judge for any acts done or words spoken in his judicial capacity in a court of justice. This doctrine has been applied not only to the Superior Courts, but to the court of a coroner and to a court martial, which is not a court of record. It is essential in all courts that the judges who are appointed to administer the law should be permitted to administer it under the protection of the law independently and freely, without favor and without fear. This provision of the law is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences. How could a judge so exercise his office if he were in daily and hourly fear of an action being brought against him, and of having the question submitted to a jury whether a matter on which he had commented judicially was or was not relevant to the case before him? Again, if a question arose as to the _bona fides_ of the judge it would have, if the analogy of similar cases is to be followed, to be submitted to the jury. Thus, if we were to hold that an action is maintainable against a judge for words spoken by him in his judicial capacity, under such circumstances as those appearing on these pleadings, we should expose him to constant danger of having questions such as that of good faith or relevancy raised against him before a jury, and of having the mode in which he might administer justice in his court submitted to their determination. It is impossible to overestimate the inconvenience of such a result. For these reasons I am most strongly of opinion that no such action as this can, under any circumstances, be maintainable.

_Judgment for the defendant._[455]

MUNSTER _v._ LAMB
IN THE COURT OF APPEAL, JULY 5, 1883.
_Reported in 11 Queen’s Bench Division, 588._

BRETT, M. R.[456] This action is brought against a solicitor for words spoken by him before a court of justice, whilst he was acting as the advocate for a person charged in that court with an offence against the law. For the purposes of my judgment, I shall assume that the words complained of were uttered by the solicitor maliciously, that is to say, not with the object of doing something useful towards the defence of his client: I shall assume that the words were uttered without any justification or even excuse, and from the indirect motive of personal ill-will or anger towards the prosecutor arising out of some previously existing cause; and I shall assume that the words were irrelevant to every issue of fact which was contested in the court where they were uttered; nevertheless, inasmuch as the words were uttered with reference to, and in the course of, the judicial inquiry which was going on, no action will lie against the defendant, however improper his behavior may have been.

It has been contended that as a person defamed has, _prima facie_, a cause of action, the person defaming must produce either some statute or some previous decision directly in point which will justify his conduct. I cannot agree with that argument. The common law does not consist of particular cases decided upon particular facts: it consists of a number of principles, which are recognized as having existed during the whole time and course of the common law. The judges cannot make new law by new decisions; they do not assume a power of that kind: they only endeavor to declare what the common law is and has been from the time when it first existed. But inasmuch as new circumstances, and new complications of fact, and even new facts, are constantly arising, the judges are obliged to apply to them what they consider to have been the common law during the whole course of its existence, and therefore they seem to be laying down a new law, whereas they are merely applying old principles to a new state of facts. Therefore, with regard to the present case, we have to find out whether there is a principle of the common law, which although it has existed from the beginning, is now to be applied for the first time. I cannot find that there has been a decision of a court of law with reference to such facts as are now before us, that is, with regard to a person acting in the capacity of counsel: but there have been decisions upon analogous facts; and if we can find out what principle was applied in these decisions upon the analogous facts, we must consider how far it governs the case before us.