actionable

position of it. If the defendant having probable cause, bona ed with fide spoke the words, claiming title in himself, no action will special dalie. So, the attorney of a party claiming title is not liable to mage to be this action, if he bona fide, though without authority, makes such objections to the vendor's title as his principal would have been authorised in making. But where the plaintiff, having advertised for sale a bond executed to him by the defendant as *a surety, the payment of which had been resisted in a long *1360 course of litigation in which the validity of the bond had been disputed; the defendant, pending a suit in error, published among the persons assembled to bid for the bond at an auction a statement of all the circumstances under which the bond was given, and alluding to the plaintiff, concluded, "His object is either to extract money from the pocket of an unwary purchaser, or what is more likely, by this threat of publication, to extort money from me;" held, that this exceeded the latitude allowed for privileged communications, or observations on titles by a party interested, and that it was a libel although no express malice was proved.d

It is a good answer to an action for slander of title, that the defendant acted bona fide in the communication which he made, believing it to be true.

SECTION V.

LIBEL.

THE preceding pages have been devoted to the consideration of oral slander or defamatory words actionable without special damage; it is now proposed to treat of a "libel." Though in ordinary acceptation a libel is not comprised in the term "slander," yet, in legal understanding the latter term embraces written as well as oral defamation; and as actions for libel are governed by the same principles as actions for words, it is deemed expedient to consider them under the same head.

A libel is a malicious defamation expressed in printing or Definition writing, or by pictures or other signs, tending to injure the cha- of a libel. racter of an individual or to diminish his reputation. "If any

Snede v. Badley, 3 Bulstr. 74. 1 Vin. Ab. 553. Gerrard v. Dickenson, Cro. Elz. 196.

Smith v. Spooner, 3 Taunt. 246.

Watson v. Reynolds, M. & M. 1. (22 Eng. C. L. 231.)

Robertson v. M'Dougall, 4 Bing. 670. (15 Eng. C. L. 106.) 1 M. & P. 692. Pitt v. Donovan, 1 M. & S. 639.

Bac. Ab. tit. Libel, 3 Bl. Com. 125. Hawk. P. C. Libel. A justice of peace out of sessions, before information filed, or indictment found, has jurisdiction, in the first instance, to issue his warrant to apprehend a party charged on oath with publishing a

*man deliberately or maliciously publish anything in writing concerning another which renders him ridiculous, or tends to hinder mankind from associating or having intercourse with him, an action will lie against such publisher." It follows therefore, that an action may be maintained for defamatory words published in writing or print, which would not have been actionable if merely spoken. Thus we have seen that to call a man generally "a swindler," is not actionable. Yet it has been held, that if published in print it is actionable. So, to publish of a man in writing, that he was "an itchy old toad, and stunk of brimstone," has been held to be actionable. So that he was "a villain," though if spoken merely, an action would not lie. The grounds of the distinction between written and oral slander are, that the former is presumed to have been effected with coolness and deliberation and to be more permanent and propagate wider than words, which are frequently the effect of a sudden gust of passion, and may soon be buried in oblivion.f

Where the defendant posted up in a public room the following notice: "The Rev. John Robinson and Mr. James Robinson, inhabitants of this town, not being persons that the proprietors and annual subscribers think it proper to associate with, are excluded this room;" it was held not to be actionable; for the publication merely asserted the opinions of the defendants, that the plaintiff was not a proper person to be associated with them, not that he was an improper person for general society.s

A person who pursues an illegal avocation, such as a public *1362 *room for pugilistic exhibitions, cannot maintain an action for a libel regarding his conduct in such avocation. So, an action for a libel does not lie for anything written against a party, touching his conduct in an illegal transaction; but for misconduct imputed to him in any matter independent of the illegal transaction, though arising out of it, an action lies. But it is

libel, and require him to find bail; and, in default of sureties, to commit him to prison to abide his trial. Butt v. Conant, (Knt.) 4 Moore, 195. 1 B. & B. 548. (5 Eng. C. L. 186.) 1 Gow. 84.

a

Per Wilmot, C. J., in Villers v. Mousley, 2 Wils. 403. Tuam (Archbishop of) v. Robeson, 6 Bing. 409. Thorley v. The Earl of Kerry, 4 Taunt. 355. "Scandalous matter is not necessary to make a libel, it is enough if the defendant induce an ill opinion to be had of the plaintiff, or make him contemptible and ridiculous." Per Holt, C. J., in Cropp v. Hilney, 3 Salk. 226. And see verba Lord Hardwicke, C. J., in Bradley v. Methwyn, S. N. P. 1010. "An action is maintainable for slander, either written or printed, provided the tendency of it be to bring a man into hatred, contempt, or ridicule." Per Bailey, J., in Macgregor v. Thwaites, 3 B. & C. 33. (10 Eng. C. L. 6.)

Ante, 1352.

Villers v. Mousley, 2 Wils. 403. 4 Bac. Ab. 449. 6 id. 203.

J'Anson v. Stuart, 1 T. R. 748.
Bell v. Stone, 1 B. & P. 331.

Rex v. Beare, 1 Lord Raym. 414.

Robinson v. Jermyn, 1 Price, 11. Hunt v. Bell, 7 Moore, 212. 1 Bing. 1. (8 Eng. C. L. 219.) i Yrisarri v. Clement, 3 Bing. 432. (13 Eng. C. L. 36.)

actionable to publish of a man that he has been guilty of gross misconduct and insulted females in a barefaced manner. So, to publish of a Protestant bishop that he attempted to convert Catholic priests by offers of money and preferment.b

Suspending a lamp or exhibiting an inscription opposite to the plaintiff's house insinuating that it was a house of ill fame, is a libel for which an action will lie.

SECTION VI.

SCANDALUM MAGNATUM.

DEFAMATORY Words spoken of a peer, a judge, or other great officer of the state, are termed scandalum magnatum.

By stat. 2 R. II, c. 5, " none shall devise or speak false news, lies, or other such false things of the prelates, dukes, earls, barons, and other nobles and great men of the realm, and of the chancellor, treasurer, clerk of the privy seal, steward of the king's house, justices of the one bench or the other, and other great officers of the realm, and he that doth shall incur the pain of the stat. Westm. I, c. 34," which is, "that he shall be taken and kept in prison until he hath brought him into court which was the first author of the tale;" and by 12 Ric. II, c. 11, "if such person cannot find him by whom the speech be moved, he may be punished by the advice of the council."

Though a remedy by action is not expressly given by these statutes, yet upon the principle that whenever a party is pre- *1363 judiced by an act which is prohibited by the statute, he is entitled to damages, it has been held, that an action on the case lies as well on behalf of the crown, to inflict the punishment of imprisonment upon the slanderer, as on behalf of the party aggrieved to recover damages. Many words which are not actionable when spoken of a private individual are actionable when spoken of persons of high rank; thus, the following words spoken of a peer have been held to be actionable: "He is an unworthy man and acts against law and reason."e "There is no more value in him than a dog."f "He has no more conscience than a dog." "He is an oppressor."

a Clement v. Chivis, 9 B. & C. 172. (17 Eng. C. L. 553.) b Tuam (Archbishop of) v. Robeson, 5 Bing. 17. (15 Eng. C. L. 350.) Jefferies v. Duncombe, 2 Camp. 3. Spall v. Massey, 2 Stark. 559. (3 Eng. C.

L. 474.)

d 2 Inst. 118. Kirl. 26.

• Lord Townsend v. Dr. Hughes, 2 Mod. 150.

'Marquis of Dorchester's case, Crom. Jur. 1 Stark. Sland. 182. 8 The Duke of Buckingham's case, Roll. 1269.

h The Earl of Leicester's case.

1. Of privileged communications in general.] We have seen that malice is an essential ingredient in oral or written slander; it is observable, however, that when defamatory communications are published of another, the natural tendency of which is to defame and injure him, the law will infer that the defendant had acted maliciously, unless it appears that the communications were made on an occasion, and under circumstances, which the law regards as privileged. Whenever communi- the author of the alleged slander acted in the bona fide discations are charge of any public or private duty, whether legal or moral, privileged. or in the prosecution of his own rights or interests, an action

What

cannot be maintained against him without proof of malice in fact; "every wilful unauthorised publication," said Parke, B., "injurious to the character of another, is a libel; but where the writer is acting on any duty, legal or moral, towards the per*1364 son to whom he writes, or where he has, by his situation, to protect the interests of that person, that which he writes under such circumstances is a privileged communication, and no action will lie for what is thus written, unless the writer be actuated by malice." A privileged communication means nothing more than, that the occasion of making it rebuts the prima facie inference of malice arising from the publication of matter prejudicial to the character of the plaintiff, and throws upon him the onus of proving malice in fact, but not of proving it by extrinsic evidence only; he has still a right to require that the alleged libel itself shall be submitted to the jury, that they may judge whether there is any evidence of malice on the face of it.b

Instances

of privileged

communications.

A

The following are instances of communications which have been held to be privileged and not actionable without proof of malice: Words spoken in confidence and friendship, as a caution; of a tradesman, that he would soon be a bankrupt. letter written confidently to persons who employed A. as their solicitor, conveying charges injurious to his professional character in the management of certain concerns, which they had intrusted to him, and in which B., the writer of the letter, was

* Per Parke, B., in Cockayne v. Hodgkisson, 5 C. & P. 543. (24 Eng. C. L. 448.) b Wright v. Woodgate, 2 C. M. & R. 573. 1 Tyr. & G. 12. 1 Gale, 333. Herver v. Dowson, B. N. P. 8. See Cleaver v. Sarraude, cited in 1 Camp. 268.

likewise interested.a Communications made to a member of a dissenting congregation, respecting an individual about to be appointed a minister of that congregation. Communications made by a landlord to a tenant respecting the character of the inmates of the house occupied by the tenant. A letter written by a private individual to a public officer complaining of the misconduct of a person under him. A letter written to the secretary of the general post office complaining of misconduct in a postmaster, as a bona fide complaint. A letter written by a tenant to his landlord, (in consequence of a request by the landlord to be informed respecting his game,) stating that his *1365 gamekeeper sold game. So, information given by the serjeant of a volunteer corps to the committee of management, that the plaintiff was an improper person to remain a member their corps. The memorial of a tradesman addressed to the secretary at war, complaining of the conduct of a half-pay officer in the army, for not having paid a debt due to him, and stating the facts of his case fairly and honestly, according to his opinion and understanding of such facts, is a privileged communication."(1)

But a letter written by an opposing creditor to a commissioner of the Insolvent Debtors' Court previously to the hearing of the insolvent's case, is not a privileged communication;i nor is a letter written by a navy officer to Lloyd's coffee-house about the conduct of the captain of a transport ship of which the officer was superintendent; for he has no right to make communications upon subjects with which he becomes acquainted in his professional capacity, except to the government. Where a person originated false reports prejudicial to a tradesman, and on being called upon to examine into the grounds of such reports, repeated them, it was held not to be a privileged communication k

A public communication made by a voter to the electors, respecting the private character of a candidate, is not a privileged publication.

Words spoken by one member of a charitable association to another respecting the conduct of a medical man employed by

e

• Woodward v. Lander, 6 C. & P. 548.

(28

(15 Eng. C. L. 14.) 1 M. & P. 33. Eng. C. L. 30.)

(25 Eng. C. L. 537.) Cockayne v. Hodgkisson, 5 C. & P. 543. (24 Eng. C. L. 448.)

Barbaud v. Hookham, 5 Esp. 109.
Fairman v. Ives, 1 D. & R. 252.

1

5 B. & A. 642. (7 Eng. C. L. 220.)

i Gould v. Hulme, 3 C. & P. 625. (14 Eng. C. L. 491.) Harwood v. Green, Id. 141. (14 Eng. C. L. 245.) Smith v. Mathews, 1 M. & Rob. 151.

(1) (A remonstrance against a tavern license. Flitcraft v. Jenks, 3 Wharton, 158.)

VOL. II.-35

1 Duncombe v. Daniell, 8 C. & P. 222.

Vanderzee v. M'Gregor, 12 Wend. 545.