inal, though lawfully begun, if it is made use of for a purpose not justified by law. For example, a judgment may be lawfully recovered, but if after payment of the same, the creditor maliciously cause execution to be issued thereon and property to be seized, this is an abuse of process. Or, an execution may be lawfully issued, yet if an excessive levy be made thereon it is an abuse of process. It is generally necessary in order to sustain an action for abuse of process to prove both malice and want of probable cause, though if it be shown that the abuse was for the purpose of accomplishing some collateral wrongful purpose malice and want of probable cause may be inferred.

§ 304. Remedy.-The remedy for malicious prosecution is an action for damages, which may be brought against any one who commences or procures another to commence such prosecution. Public officers, however, who are charged with the duty of bringing such prosecutions, will be held liable only upon very clear proof of malice.

The damages recoverable may be for all expenses, including attorney's fees in the proceeding complained of, suffering mental and physical, loss of time and business, injury to property, injury to reputation and honor, and the loss of social position. Where the prosecution was with great malice or other aggravated circumstances, exemplary or punitive damages may be allowed in addition to the compensatory damages. By way of mitigation of the damages it may be shown that the plaintiff had a bad character, that his conduct was such as to arouse suspicion, that any

reasons for probable cause existed though insufficient to establish it; also anything that goes to rebut malice. But exemplary damages can not be recovered where the acts complained of are punishable criminally,

CHAPTER XXVII.

DEFAMATION.

§ 305. The right to reputation.-The theory upon which an action is given for defamation is that the person was entitled to a good reputation, that a false statement was maliciously made affecting the reputation, and that damages resulted therefrom. Although upon general principles the plaintiff is bound to affirmatively establish all of the elements constituting his cause of action, it would, in nearly all cases of defamation, be found highly inconvenient to enforce such principles strictly. For, the nature of the charge may be such that no evidence is attainable as to its truth or falsity; or, it may be impossible to expressly show the damage done; or, a stranger in the community, having acquired no reputation as yet, could prove no actual damage, and might be wholly unable to show how he would be actually damaged in the future. Taking into consideration these difficulties, and to the end that justice may not miscarry, the law aids the person defamed by making certain presumptions in his favor and throwing the burden upon the wrong-doer to produce evidence to justify or excuse himself. Therefore, in the absence of evidence, the law presumes:

1st. That every one has a good reputation.

2d. That every charge against reputation is false.

3d. That every false charge is maliciously made. 4th. Where injury would naturally result, that it has actually resulted.

§ 306. Libel and slander. The law divides defamations into two classes. False defamatory words, if written and published, constitute libel; if published orally, slander. Libel is communicated through the medium of eyesight; slander through the medium of hearing. By reason of the permanent and deliberate character of libel, it is regarded as of a more aggravated nature than a mere slander, which may be spoken in heat and excitement, and may be more easily effaced from the memory of the hearers.

While there is much that is common to both libel and slander, there are some points in which they radically differ. It will be convenient to consider each separately, in so far as they are variant, and afterwards to note the principles common to both.

§ 307. Slander.-False defamatory words spoken of a person are actionable:

1st. Where they charge an indictable offense, which involves moral turpitude or would subject the person to an ignominious punishment.

2d. Where they charge a person with having a contagious or infectious disease, tending to exclude him from society.

3d. Where they are spoken of a person in the way of his office, trade or profession.

In these three classes, and no others, the law presumes without proof that the reputation has been injured. They are said to be actionable per se.

4th. This leaves a fourth class, in which the charge is such that damages can not be said to be

the usual and natural result, and therefore the law does not presume them, but requires the person injured to allege and prove the special damages suffered.

§ 308. Slander imputing crime. It is necessary that the acts charged be such as are indictable. If not indictable, the charge is not actionable per se under this class, unless so declared to be by statute.

By ignominious punishment is meant any corporeal punishment; as death, whipping, or imprisonment. Punishment by fine only is not deemed ignominious. But if the penalty be in the alternative, by fine or imprisonment, the offense is punishable ignominiously.

What does and what does not involve moral turpitude, it is not easy to define. When the case arises, it is usually clear. It may be stated to be whatever is shocking to the moral sense of the community. Slander imputing such offense is actionable per se, even though the offense be punishable by fine only.

Where crime is charged, it is immaterial whether it be stated that the party has been punished for such crime, or that he is guilty and liable to be punished. If false, the charge is equally actionable per se.

Proper to be included in this class are certain charges which are declared by statute to be actionable per se, in the same manner as charges of crime. These are usually charges affecting the chastity of a woman, and charges of certain disgraceful acts by either a man or a woman. In some states the charge of unchastity against a man is also made actionable per se. The imputation of crime need not be in language that technically describes the crime. It is sufficient