charging a trader with insolvency, and the like; or if any injurious charge holding a party up to public contempt, scorn, or ridicule was propagated by printing, writing, signs, burlesques, &c.,2- the law presumed injury, and the charge was said to be actionable per And although it was formerly held that to charge a female verbally with want of chastity was not actionable without proof of special damage,3 yet of late a disposition has been exhibited

se.

to break away from this rule in favor of one more just [* 424] and sensible, and the statutes of several of the States

have either made adultery and incontinence punishable as crimes, whereby to charge them becomes actionable per se under the common-law rule, or else in express terms have declared such a charge actionable without proof of special damage.5

Lindsey v. Smith, 7 Johns. 360; Thomas v. Croswell, 7 Johns. 264; Riggs v. Denniston, 3 Johns. Cas. 198; Fonvard v. Adams, 7 Wend. 204; Sanderson v. Caldwell, 45 N. Y. 398; s. c. 6 Am. Rep. 105.

2 Janson v. Stuart, 1 T. R. 748; Van Ness v. Hamilton, 19 Johns. 367; Clegg v. Laffer, 10 Bing. 250; Steele v. Southwick, 9 Johns. 214.

3 Gascoign v. Ambler, 2 Ld. Raym. 1004; Graves v. Blanchet, 2 Salk. 696; Wilby v. Elston, 8 C. B. 142; Buys v. Gillespie, 2 Johns. 115; Brooker v. Coffin, 5 Johns. 188; Bradt v. Towsley, 13 Wend. 253; Dyer v. Morris, 4 Mo. 214; Stanfield v. Boyer, 6 H. & J. 248; Woodbury v. Thompson, 3 N. H. 194; Berry v. Carter, 4 Stew. & Port. 387; Elliot v. Ailsbury, 2 Bibb, 473; Linney v. Malton, 13 Texas, 449; Underhill v. Welton, 32 Vt. 40.

See the cases of Sexton v. Todd, Wright, 317; Wilson v. Runyan, ib. 671; Malone v. Stewart, 15 Ohio, 319; Moberly v. Preston, 8 Mo. 462; Sidgreaves v. Myatt, 22 Ala. 617; Terry v. Bright, 4 Md. 430; Spencer v. McMasters, 16 Ill. 405.

See Frisbie v. Fowler, 2 Conn. 707; Miller v. Parish, 8 Pick. 384; Robbins v. Fletcher, 101 Mass. 115; Pledger v. Hitchcock, 1 Kelley, 550; Smally v. Anderson, 2 T. B. Monr. 56; Williams v. Bryant, 4 Ala. 44; Dailey v. Reynolds, 4 Greene (Iowa), 354; Symonds v. Carter, 32. N. H. 458; McBrayer v. Hill, 4 Ired. 136; Morris v. Barkley, 1 Lit. 64; Phillips v. Wiley, 2 Lit. 153; Watts v. Greenlee, 2 Dev. 115; Drummond v. Leslie, 5 Blackf. 453; Worth v. Butler, 7 Blackf. 251; Richardson v. Roberts, 23 Geo. 215; Buford v. Wible, 32 Penn. St. 95; Freeman v. Price, 2 Bailey, 115; Regnier v. Cabot, 2 Gil. 34; Ranger v. Goodrich, 17 Wis. 78; Adams v. Rankin, 1 Duvall, 58; Downing v. Wilson, 36 Ala. 717; Cox v. Bunker, Morris, 269; Smith v. Silence, 4 Iowa, 321; Truman v. Taylor, ib. 424; Beardsley v. Bridgeman, 17 Iowa, 242; Patterson v. Wilkinson, 55 Me. 45. The injustice of the common-law rule is made prominent in those cases where it has been held that an allegation that, in consequence of the charge, the plaintiff had fallen into disgrace, contempt, and infamy, and lost her credit, reputation, and peace of mind (Woodbury v. Thompson, 3 N. H. 194), and that she is shunned by her neighbors (Beach v. Ranney, 2 Hill, 310), was not a sufficient allegation of special damage to support the action.

But in any other case a party complaining of a false, malicious, and disparaging communication might maintain an action therefor, on averment and proof of special damage; 1 though the truth of the charge, if pleaded and established, was generally a complete defence.2

In those cases in which the injurious charge was propagated by printing, writing, signs, burlesques, &c., there might also be a criminal prosecution, as well as a suit for private damages. The criminal prosecution was based upon the idea that the tendency of such publications was to excite to a breach of the public peace; 3 and it might be supported in cases where the injurious publication related to whole classes or communities of people, without singling out any single individual so as to entitle him to a private remedy.*

1 Kelley v. Partington, 3 Nev. & M. 116; Steele v. Southwick, 9 Johns. 214; Hallock v. Miller, 2 Barb. 630; Powers v. Dubois, 17 Wend. 63; Weed v. Foster, 11 Barb. 203; Cooper v. Greeley, 1 Denio, 347; Stone v. Cooper, 2 Denio, 293. The damage, however, must be of a pecuniary character. Beach v. Ranney, 2 Hill, 309. But very slight damage has been held sufficient to support considerable recoveries. Williams v. Hill, 19 Wend. 305; Bradt v. Towsley, 13 Wend. 253; Olmsted v. Miller, 1 Wend. 506; Moore v. Meagher, 1 Taunt. 39; Knight v. Gibbs, 1 Ad. & El. 43.

2 See 1 Hilliard on Torts, 410; Heard on Libel and Slander, § 151; Towns: end on Libel and Slander, § 73.

3 Commonwealth v. Clap, 4 Mass. 168.

In Palmer v. Concord, 48 N. H. 214, suit was brought against a town for the destruction of a printing press by a mob. The defence was, that plaintiff had caused the mob by libellous articles published in his paper reflecting upon the army. Smith, J., says: "The first of these articles charges the United States' forces in Virginia with cowardice, and holds them up as objects of ridicule therefor. The fourth article calls the army a mob;' and although the charges of murder and robbery may perhaps be considered as limited in their application, the charge of cowardice against the whole army is repeated. The fifth article in effect charges those bodies of soldiers who passed through, or occupied, Hampton, Martinsburg, Fairfax, or Germantown, with improper treatment of persons of all ages and sexes, in each of those places. If such charges had been made against a single soldier named in the articles, they would prima facie have constituted a libel. The tendency to expose him to contempt or ridicule could not be doubted, and the tendency to injure his professional reputation would be equally apparent. A soldier's character for courage or discipline is as essential to his good standing as a merchant's reputation for honesty, or a physician's reputation as to professional learning or skill, would be in their respective callings. And by military law, to which the soldier is amenable, we suppose cowardice would be regarded a crime punishable by severe penalties. As these charges were made against a body of men, without specifying individuals, it may be that no individual soldier

On similar grounds to publish injurious charges against a foreign prince or ruler was also held punishable as a pub- [* 425]

*

could have maintained a private action therefor. But the question whether the publication might not afford ground for a public prosecution is entirely different. Civil suits for libel are maintainable only on the ground that the plaintiff has individually suffered damage. Indictments for libel are sustained principally because the publication of a libel tends to a breach of the peace, and thus to the disturbance of society at large. It is obvious that a libellous attack on a body of men, though no individuals be pointed out, may tend as much, or more, to create public disturbances as an attack on one individual; and a doubt has been suggested whether the fact of numbers defamed does not add to the enormity of the act.' See 2 Bishop on Criminal Law, 3d ed. § 922; Holt on Libel, 246-47; Russell on Crimes, 1st Am. ed. 305–332. In Sumner v. Buel, 12 Johns. 475, where a majority of the court held that a civil action could not be maintained by an officer of a regiment, for a publication reflecting on the officers generally, unless there was an averment of special damage, Thompson, Ch. J., said, p. 478: The offender, in such case, does not go without punishment. The law has provided a fit and proper remedy, by indictment; and the generality and extent of such libels make them more peculiarly public offences.' In Ryckman v. Delavan, 25 Wend. 186, Walworth, Chancellor, — who held, in opposition to the majority of the Court of Errors, that the plaintiff could not maintain a civil suit, because the publication reflected upon a class of individuals, and not upon the plaintiff personally, — said, pp. 195–96: There are many cases in the books where the writers and publishers of defamatory charges, reflecting upon the conduct of particular classes or bodies of individuals, have been proceeded against by indictment or information, although no particular one was named or designated therein to whom the charge had a personal application. All those causes, however, whether the libel is upon an organized body of men, a legislature, a court of justice, a church, or a company of soldiers, or upon a particular class of individuals, proceed upon the ground that the charge is a misdemeanor, although it has no particular personal application to the individual of the body or class libelled; because it tends to excite the angry passions of the community either in favor of or against the body or class in reference to the conduct of which the charge is made, or because it tends to impair the confidence of the people in their government or in the administration of its laws.' In the course of his opinion, the Chancellor mentions a Scotch case (Shearlock v. Beardsworth, 1 Murray's Report of Jury Cases) where a civil suit was maintained, which was brought by a lieutenant-colonel, in behalf of his whole regiment, for defamation, in calling them a regiment of cowards and blackguards.' In Rex v. Hector Campbell, King's Bench, Hil. Term, 1808 (cited in Holt on Libel, 249, 250), an information was granted for a libel on the college of physicians; and the respondent was convicted and sentenced. Cases may be supposed where publications, though of a defamatory nature, have such a wide and general application that, in all probability, a breach of the peace would not be caused thereby; but it does not seem to us that the present publication belongs to that class.

.

"Our conclusion is that the jury should have been instructed that the first,

lic offence, because tending to embroil the two nations, and to disturb the peace of the world. These common-law rules are wholesome, and are still in force.

it

We are not so much concerned, however, with the general rules pertaining to the punishment of injurious publications, as with those special cases where, for some reason of general public policy, the publication is claimed to be privileged, and where, consequently, may be supposed to be within the constitutional protection. It has alway been held, notwithstanding the general rule that malice is to be inferred from a false and injurious publication, that there were some cases to which the presumption would not apply, and where a private action could not be maintained without proof of express malice. These are the cases which are said to be privileged. The term "privileged," as applied to a communication alleged to be libellous, means generally that the circumstances under which it was made were such as to rebut the legal inference of malice, and to throw upon the plaintiff the burden of offering some evidence of its existence beyond the mere falsity of the charge. The cases falling within this classification are those in which a party has a duty to discharge which requires that he should be allowed to speak freely and fully that which he believes; where he is himself directly interested in the subject-matter of the communication, and makes it with a view to the protection or advancement of his own interest, or where he is communicating confidentially with a person interested in the communication, and by way of advice or admonition. Many such cases suggest them

fourth, and fifth, articles were prima facie libellous; and that the publication of those articles must be regarded as 'illegal conduct,' unless justified or excused by facts sufficient to constitute a defence to an indictment for libel."

127 State Trials, 627; 2 May, Const. History of England, c. 9.

Lewis v. Chapman, 16 N. Y. 373, per Selden, J.; Townsend on Libel and Slander, § 209.

3 66

When a communication is made in confidence, either by or to a person interested in the communication, supposing it to be true, or by way of admonition or advice, it seems to be a general rule that malice (i. e., express malice) is essential to the maintenance of an action." 1 Starkie on Slander, 321. See Harrison v. Bush, 5 El. & Bl. 344; Somerville v. Hawkins, 10 C. B. 589; Wright v. Woodgate, 2 Cr. M. & R. 573; Whiteley v. Adams, 15 C. B. N. s. 392. A paper signed by a number of parties agreeing to join in the expense of prosecuting others, who were stated therein to have " robbed and swindled " them, is privileged. Klinck v. Colby, 46 N. Y. 427; s. c. 7 Am. Rep. 360.

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selves which are purely of private concern: such as answers to inquiries into the character or conduct of one formerly employed by the person to whom the inquiry is addressed, and of whom the information is sought with a view to guiding the inquirer in his own action in determining upon employing the same person;1 answers to inquiries by one tradesman of another *as [* 426] to the solvency of a person whom the inquirer has been desired to trust; 2 answers by a creditor to inquiries regarding the conduct and dealings of his debtor, made by one who had become surety for the debt; communications from an agent to his principal, reflecting injuriously upon the conduct of a third person in a matter connected with the agency; communications to a near relative respecting the character of a person with whom the relative is in negotiation for marriage; 5 and as many more like cases as would fall within the same reasons. The rules of law applicable

4

1 Pattison v. Jones, 8 B. & C. 578; Elam v. Badger, 23 Ill. 498; Bradley v. Heath, 12 Pick. 163. Compare Fryer v. Kinnersley, 15 C. B. N. s. 422.

2 Smith v. Thomas, 2 Bing. (N. C.) 372; Story v. Challands, 8 C. & P. 234. But the reports of a mercantile agency to its customers are not privileged. Taylor v. Church, 8 N. Y. 452; Sunderlin v. Bradstreet, 46 N. Y. 188; s. c. 7 Am. Rep. 322. Compare Beardsley v. Tappan, 5 Blatch. 497.

3 Dunman v. Bigg, 1 Campb. 269, note.

Washburn v. Cooke, 3 Denio, 110. See Easley v. Moss, 9 Ala. 266.

Todd v. Hawkins, 8 C. & P. 88. But there is no protection to such a communication from a stranger. Joannes v. Bennett, 5 Allen, 170.

As to whether a stranger volunteering to give information injurious to another, to one interested in the knowledge, is privileged in so doing, see Coxhead v. Richards, 2 M., G. & S. 569; and Bennett v. Deacon, ib. 628. Where a confidential relation of any description exists between the parties, the communication is privileged; as where the tenant of a nobleman had written to inform him of his gamekeeper's neglect of duty. Cockagne v. Hodgkisson, 5 C. & P. 543. Where a son-in-law wrote to warn his mother-in-law of the bad character of a man she was about to marry. Todd v. Hawkins, 8 C. & P. 88. Where a banker communicated with his correspondent concerning a note sent to him for collection; the court saying that "all that is necessary to entitle such communication to be privileged is, that the relation of the parties should be such as to afford reasonable ground for supposing an innocent motive for giving the information, and to deprive the act of the appearance of officious intermeddling with the affairs of others." Lewis v. Chapman, 16 N. Y. 375. Where one communicated to an employer his suspicions of dishonest conduct in a servant towards himself. Amann v. Damm, 8 C. B. N. s. 597. Where a tradesman published in a newspaper that his servant had left his employ, and taken upon himself to collect the tradesman's bills. Hatch v. Lane, 105 Mass. 394.