witness is not allowed to state his impression or construction of the words that were used.(1) It is a general rule, also, that the words must be proved in form as they are laid; words laid in the second person will not be supported by proof of words spoken in the third person, nor vice versa; (2) though the contrary has been held in Kentucky;(3) nor will words laid affirmatively be supported by evidence of words spoken interrogatively;(4) but if the words are proved to have been spoken affirmatively as laid, it makes no difference that they were spoken in answer to a question.(5) In Walters v. Mace, 2 Barnewall & Alderson, 756, the words, "This is my umbrella, and he stole it from by back door," were decided not to be sustained by proof of saying, in a house where the umbrella was not, "It is my umbrella," &c. With regard to a variation in the positiveness of the assertion, the English cases are more strict than the American: the former hold that, if a positive affirmation is laid, and the affirmation as proved is *qualified by the expression, "I have heard," or "I understand," it is a fatal [*148 variance ;(6) but some American cases have held that it is not a variance, if a positive assertion in the declaration, is qualified in the proof by such language, as, "I believe that," &c. ;(7) or, "If report be true;"(8) or, "If I am not misinformed;"(9) for other cases where differences have been held fatal, see cases cited below;(10) and the same way for those where they have not been so held;(11) where the libel was by signs, see State v. Powers, 13 Iredell's Law, 10. If words have been used, which in themselves import a charge of perjury, it is not necessary to prove that they referred to any suit, nor even that any suit was pending; but if there be a charge of false swearing, which the colloquium refers to

(1) Williams v. Miner, 18 Connecticut, 464, 467; Harrison v. Bevington, 8 Carrington & Payne, 708, 710; White v. Sayward, 33 Maine, 322.

(2) Buller's Nisi Prius, 5; Stannard v. Harper, 5 Manning & Ryland, 295; McConnell v. McCoy, 7 Sergeant & Rawle, 223, overruling Tracy v. Harkins, 1 Binney, 395, note; Foster v. Small, 3 Wharton, 138, 142; Cock v. Weatherby, 5 Smedes & Marshall, 333; Culbertson v. Stanley, 6 Blackford, 67, 68; Wolf v. Rodifer, 1 Harris & Johnson, 409; Williams v. Harrison, 3 Missouri, 412.

(3) Huffman v. Shumate, 4 Bibb, 515; Dailey v. Gaines, 1 Dana, 529.

(4) Barnes v. Holloway, 8 Term, 150; Yeates v. Reed, 4 Blackford, 463, 465; Long v. Fleming, 2 Miles, 104; see, however, Commons v. Walters, 1 Porter, 377.

(5) Jones v. Chapman, 5 Blackford, 88.

(6) Smith v. Knowelden, 2 Scott's New Reports, 657; Cook v. Stokes, 1 Moody & Robinson, 237.

(7) Beehler v. Steever, 2 Wharton, 314, 329.

(8) Smith v. Stewart, 5 Barr, 372.

(9) Treat v. Browning, 4 Connecticut, 409, 414.

(10) Brooks v. Blanshard, 1 Crompton & Meeson, 779; Shepherd v. Bliss and Wife, 2 Starkie, 448; Tempest v. Chambers, 1 Id. 55; Hancock v. Winter, 7 Taunton, 205.

(11) Robinson v. Willis, 2 Starkie, 71; Dancaster v. Hewson, 2 Manning & Ryland, 176; Nichols v. Hayes, 13 Connecticut, 156, 163.

a particular suit, that suit and false swearing in it must be proved as laid.(1)

66

The rules are quite the same in regard to libel. The libel may either be set out entire, according to its tenor, or only those parts which are relied on as actionable may be stated in the declaration;(2) but either way, the words themselves must be set out.(3) It must be alleged that the matter complained of was "to the tenor following," or "in these words," or as follows;" and if it be "in substance as follows," it is bad on demurrer, or in arrest of judgment ;(4) and the words must be proved precisely as they are laid in the declaration.(5) Where only extracts from the libel have been set out, the defendant has a right to read the whole publication in evidence ;(6) it will not be a variance though the libel in evidence contains matter not set out in the declaration, provided the meaning be not varied;(7) but if the omitted parts make a material alteration in the sense, and explain and render innocuous what is in the declaration, the variance will be fatal ;(8) and when a libel is set out, not in hæc verba, but as containing the following matter, proof of the publication of part of the actionable or libellous matter charged would be sufficient:(9) it is also competent for the plaintiff to abandon prosecution, or enter a nalle prosequi as to *part of the libel.(10) If the libel in evidence contain different *149] words, there is a variance; but if the verbal or literal deviations do not make different words, there is no variance.(11) The allegation of any fact in the slander or libel dispenses with proof of that fact on the part of the plaintiff should it become necessary to him.(12) In actions of slander and libel, a new trial is never granted on account of the magnitude of the damages given by the jury, unless the excess is so outrageous as to evince passion, prejudice, partiality or corruption;(13) but

(1) Emery v. Miller, 1 Denio, 208.

(2) As to the form of doing this, see Tabart v. Tipper, 1 Campbell, 350, 353, and Wier v. Hoss and Wife, 6 Alabama, 882.

(3) Wood v. Brown, 6 Taunton, 169.

(4) Wright v. Clements, 3 Barnewall & Alderson, 503; Solomon v. Lawson; 8 Adolphus & El., N. S. [55 E. C. L.] 823, 829; The State v. Brownlow et al., 7 Humphreys, 63; Commonwealth v. Wright, 1 Cushing, 46, 64; Bagley v. Johnston, 4 Richardson, 23. (5) Whitaker v. Freeman, 1 Devereux, 271, 255; Walsh v. The State, 2 McCord, 248; Harris v. Lawrence et al., 1 Tyler, 156.

(6) Cooke v. Hughes, Ryan & Moody, 112; Morehead v. Jones, 2 B. Monroe, 210. (7) McCooms v. Tuttle, 5 Blackford, 431, 432.

(8) Rutherford v. Evans, 6 Bingham, 451, 458; Weir v. Hoss and Wife, 6 Alabama, 882.

(9) Metcalfe v. Williams, 3 Littell, 387, 390.

(10) Stow v. Converse, 4 Connecticut, 18, 27. (11) Wier v. Hoss and Wife, 6 Alabama, 882.

(12) Bagnall v. Underwood, 11 Price, 621, 632; Yrisarri v. Clement, 3 Bingham, 432; Gould v. Hulme, 3 Carrington & Payne, 625, 627.

(13) Tillotson v. Cheetham, 2 Johnson, 63; Jarvis v. Hatheway, 3 Id. 180, 183; Cole

when the verdict can be referred to no rational principle, but there must have been on the part of the jury, if not corruption, at least some entire misapprehension of the facts of the case, or of the law upon which the damages were to depend, it is not only the right, but the duty of the court to grant a new trial.(1)

How far a corporation can be the subject or author of an action for libel, or slander, see supra, 116.

*OF THE DEFENCES TO AN ACTION FOR SLANDER OR LIBEL. [*151

HOWARD v. THOMPSON.

In the Supreme Court of New York.

UTICA, JULY, 1839.

[REPORTED, 21 WENDELL, 320-336.]

Of the circumstances which will excuse a citizen in making a communication to the government in which a subordinate officer of the department is charged with peculation and fraud.

THIS was an action in which the plaintiff, Howard, complained, that while he held the office of inspector of the customs and keeper of the public stores of the United States, the defendant. falsely libelled him by addressing certain letters to the secretary of the treasury, charging and offering to prove that the plaintiff' *had been guilty of fraud in the execution of his trust as [*152 such keeper; specifying particularly the conversion of timber belonging to the United States in 1832. The secretary of the treasury was the officer who had legal cognizance of the complaint, and the power of removing the plaintiff on its being substantiated. For some reason, however, the investigation, which was duly made, proved so unsatisfactory to the secretary, that he thought it his duty to deliver up the letters to the plaintiff; and they were used by him as evidence to the jury. The defendant had given notice with his plea, that he would prove the truth of

man v. Southwick, 9 Id. 45, 51 ; Ex parte Baily, 2 Cowen, 479; Paddock v. Salisbury, Id. 811; Neal v. Lewis, 2 Bay, 204; Neilson v. Emerson, Id. 439; Simpson v. Pitman, 13 Ohio, 365.

(1) Steever v. Beehler, 1 Miles, 146, 152; Nettles v. Harrison, 2 McCord, 230; Swearingen v. Birch, 4 Yeates, 322, 325. See the subject at large in Coffin v. Coffin, 4 Massachusetts, 1, 41, &c.

his charge in bar; and seemed to have entertained the confidence of being able to do it, till, on the trial, he became so doubtful of success in convincing the jury, that on the plaintiff's resting, he avowedly abandoned the attempt, and staked his defence: 1, upon the unwarrantable nature of the prosecution, and 2, on evidence that, though he might have been mistaken, yet the circumstances were such as to have afforded at least probable cause for the representations he had made. The first ground was presented in the form of a motion for a non-suit, insisting that the plaintiff must, as in the ordinary case of a malicious prosecution, show a want of probable cause. The judge thought otherwise, holding that the proof given of the defendant's ill-will towards the plaintiff was enough to carry the cause to the jury. This presented the first question which the court was called upon to examine. "Does a complaint addressed by a citizen to the proper tribunal against another, from motives of ill-will towards the latter, subject the complainant to an action of slander, as for a libel, unless it be apparent that it was without probable cause?" It may be put still more shortly: "Is it subject to be prosecuted as a libel? Must it not be pursued as a malicious prosecution or complaint?"

BY THE COURT, Cowen, J.

This case is not precisely like the case of a written communication between private persons, concerning their own affairs, nor was the complaint addressed to a man, or a set of men, chosen by a voluntary society, as a bishop or presbytery, and having, by common consent among the members, a power to redress grievance. It is, therefore, not necessary to inquire whether, in such instances, an action for a libel may not be brought in the common form. It has generally been so brought; and, though the communication has been deemed primâ facie privileged, yet I believe where ill-will towards the plaintiff has appeared, or motives of interest, and the defendant has failed in proving at least probable cause, the action has generally been sustained. The rule in respect to such mere private communications seems to have been laid down very sensibly by Mr. Justice J. Parke, in Cockayne v. Hodgkisson, 5 Carr. & *Payne, 543. The defendant had *153] made representations by letter to Lord Anglesey against his gamekeeper. In an action by the latter, the defendant failed. to prove the truth, relying on the good faith with which he made the communication. The judge left it to the jury, mainly on the

letter itself, whether it was such as a man would write merely wishing to put Lord Anglesey on his guard, and cause him to institute an inquiry; or whether the defendant was actuated by malice, and wished to supplant the plaintiff. In the former case, he said the defendant was entitled to a verdict; in the latter, the plaintiff. This, too, was after very clear proof that the defendant had been told the stories which he had written to Lord Anglesey, and seems to have had probable cause. He had also been requested by Lord Anglesey to give him information of anything wrong. The letter was put on the naked footing of a libel; for it was said the defendant could not prove its truth without a plea of justification; which is clearly otherwise where an action is brought for a malicious prosecution.

The principle of the case cited, and a number of others which preceded it, is very obvious. The private business of society could not be conducted without the liberty of speaking and writing in the honest pursuit of its purposes, even though, under other circumstances, the words would be slanderous; and though all that is said be a mistake, yet the words shall not, for that reason alone, be actionable. The distinction was a good deal considered in Bromage v. Prosser, 4 Barn. & Cress. 247, where it was allowed in a case of oral slander. And see Holt on Libels, 197, also Delany v. Jones, 4 Esp. 191. But actual ill-will towards the plaintiff may raise a presumption in the mind of the jury, that the appearance of a lawful purpose was assumed in order to injure him. When they are brought to believe this, it is their duty to find that the defendant acted in fraud of the law, which gives the privilege, and award damages against him. Whenever the communication is, for this or any other cause, taken out of the protective rule, the law acts upon it directly as a slander.

The rule is known to be different where the communication made or caused, is in itself the institution of a judicial inquiry. There, if it be apparently pertinent, it is absolutely exempt from the legal imputation of slander; and the party injured is turned round to a different remedy, an action for malicious prosecution; wherein he is bound to prove in the first instance, not merely that the communication was made in bad faith; but that it was not countenanced by probable cause. Such is the familiar instance of a criminal complaint addressed to a judicial magistrate or a grand jury, which results in a warrant or an indictment. 1 Curzon's

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