apply to the plaintiff's character or conduct in office, and must impute some official incapacity or misconduct. To say of a sheriff, in relation to his office of sheriff," that moneys which he had collected on execution he had taken and converted to his own use, and that they could not be got out of his hands," is actionable, because it is a charge of malpractice in his office ;(1) on the other hand, to say of a justice of the peace, "Squire O. is a damned rogue;" or "There is a combined company to cheat strangers, and Squire Van T. has a hand in it; K. A., J. G., and Squire Van T. are a set of d- -d blacklegs," &c., is not actionable, because such remarks do not relate to official character or conduct, or impute any neglect of official duty ;(2) and so far has this limitation been carried, that it has been held that if words charging a justice of the peace with corrupt conduct, are spoken in relation to a cause in which he had no jurisdiction, they are not actionable;(3) and for a similar reason, words relating to official conduct are not actionable if the office has ceased at the time the words are spoken ;(4) [and so words spoken of a person, though reflecting upon him in a professional character, if spoken as of a time before that when such character begins or is assumed, are not actionable; as for example to say of a clergyman, that he was in trade and cheated, &c., and is, therefore, not fit to be a clergyman.(5)] In regard to words of a member of the Legislature, the case of Hogg v. Dorrah, 2 Porter, 212, is directly in point with Onslow v. Horne, and is *decided upon it; and upon the ground taken in it, *103] that words to be actionable in such a relation must refer to past conduct, and charge an actual breach of duty, or the commission of some wrong, and that an expression of opinion respecting another's inclinations or intentions is not actionable, it was decided that saying of a member elect of the Legislature, "he is a corrupt old tory," is not actionable. In Mayrant v. Richardson, 1 Nott & McCord, 348, 350, it was decided that words imputing to one who was a candidate for Congress, that his understanding was impaired or his mind weakened by disease were not actionable; and it seemed in that case to be thought, that words imputing defect of ability only, in relation to offices either of profit or credit, were not actionable. [In special communities the liability for words may become accidentally greater than by the principles of the common law. Before the late rebellion, for to call a man "a mulatto" was in South Carolina actionable per se. Smith v. Hamilton, 10 S. C. Law, 48; and see Castlebury v. Kelly, 26 Georgia, 609. Since the 15th Amendment, in virtue of which (1) Dole v. Van Rensselaer, 1 Johnson's Cases, 330. (2) Oakley v. Farrington, 1 Johnson's Cases, 129; Van Tassel v. Capron, 1 Denio, 250. (3) Oram v. Franklin, 5 Blackford, 42. (4) Forward v. Adams, 7 Wendell, 204. (5) Hopwood v. Thorn, 8 Man., Gran. & Scot [65 E. C. L.], 293. most of the bench and a large part of the Legislature there is composed of gentlemen of color, it would perhaps be as actionable to call one "a white man."] When the words are spoken or written, not of the trader or manufacturer, but of the quality of the articles he makes or deals in, they will not be actionable in themselves, unless they import that the plaintiff is guilty of deceit or malpractice in the making or vending of them.(1) To say what is disparaging of a tradesman's goods but does not reflect upon his character, is not actionable, without special damage.(2) Uttering slanderous words in the presence of the person only of whom they are spoken, is not actionable, even though spoken in a public place; no third person hearing.(3) IV. Words producing special damage. Where words are not actionable in themselves, or as necessarily tending to produce damage, the plaintiff must allege and prove that by reason of the speaking, he has sustained some damage; and the damage must be of a pecuniary nature. Mental distress, or physical illness and inability to labor, occasioned by the aspersion, are of themselves insufficient ;(4) though if proved to be the sole cause of a mental or physical inability which prevented the plaintiff from attending to business and so caused pecuniary damage it would doubtless be enough.(5) As to the precision with which, according to the circumstances, the damage must be laid in the declaration, see Hartley v. Herring, 8 Term, 130, 133. An allegation that "divers of his neighbors have refused to have any transaction, acquaintance, or discourse with him," or, that the plaintiff was thereby greatly injured in his trade and business, and divers citizens, since the speaking and publishing of the words, have refused to purchase, &c., from him, and so the plaintiff is deprived of great gain and profit:(6) is not a sufficient allegation of special damage, but is merely a general allegation of damages;(7) but the allegation that a particular person would not deal with the plaintiff, a commission merchant, was held sufficient special damage, in Storey v. Challands, 8 Carrington & Payne, 234 and that certain creditors, naming them, were induced, by a slanderous report that the plaintiff had run away, to proceed against him and break him up. Prettyman v. Shockley, 4 Harrington, 112. It certainly, however, is not all words occasioning damage that are actionable; there must be something wrongful in them; at least they must be such as a man has not a clear right to utter. What class of (1) Jackson v. Russell, 4 Wendell, 543. (2) Evans v. Harlow, 5 Queen's Bench, 624. (4) Beach v. Ranney, 2 Hill's N. Y. 310, 314. (5) Terwilliger v. Wands, 17 New York, 54; Wilson v. Goit, Id. 442. (6) Tobias v. Harland, 4 Wendell, 537, 540. (7) Hall v. Montgomery, 8 Alabama, 510, 515. remarks are, in their nature, so far not lawful that they are actionable when occasioning damage, the cases have not defined: such as reflect upon the moral character or conduct of the person, probably, always fall within the range. In a case where the question related to the imputation of an impaired mind to one who was a candidate for Congress, the court said, "the words must be of an opprobrious nature, and such as are calculated to lessen the person of whom they are spoken, in the opinion of the community; but where they are perfectly justifiable or innocent, no action will lie, although some injury may have resulted from them; "(1) and it seems to have been considered there, that the expressions *1047 of opinion about a man's ability or accomplishments, though occasioning damage, could not be actionable. In Hallock v. Miller, 2 Barbour, 630, where the plaintiff had been charged with being engaged in serving writs upon anti-renters, whereby special damage was occasioned to his business, the court said, that as such a charge did not import either an illegal or an immoral act, it was not actionable though accompanied by special damage; and that an action of slander would not lie for words imputing an act both legal and praiseworthy, though a loss or injury might be the consequence of the words. The damage which is the cause of the action, must have arisen before suit brought; (2) and it was held in that case, that words spoken after suit brought, were not admissible for any purpose, because if they were not followed by special damage they were irrelevant, and if they were, a new action was the proper course. The damage must be such as naturally and immediately, or legally, results from speaking of the words by the defendant;(3) the existence of reports of the same matters imputed by the defendant, whereby loss is occasioned, will not be sufficient, unless the report be traced to the defendant, and the jury be shown to have arisen from his speaking.(4) Damages occasioned by the wrongful acts of others, which are themselves actionable, will not sustain a suit for slander; Vicars v. Wilcocks, 8 East, 1; and though in Moody v. Baker, 5 Cowen, 351, a majority of the court (Savage, Chief Justice, dissenting,) denied this principle and case, and held that the violation of a contract of marriage by a third person in consequence of the slander was legal damage; yet the principle is again fully recognized in Beach v. Ranney, 2 Hill's N. Y., 310, which seems to destroy the authority of Moody v. Baker. So, the unauthorized repetition of the words by another, which would itself be an actionable offence, will not be special damage to sustain an action; (5) but were the words were repeated by the request (1) Mayrant . Richardson, 1 Nott & McCord, 348, 353. (2) Keenholts v. Becker, 3 Denio, 346, 359. (3) Beach . Ranney, 2 Hill's N. Y. 310, 314; see Knight v. Gibbs, 1 Adolphus & Ellis, 43. (4) Sewall v. Catlin, 3 Wendell, 291, 295; Hastings v. Palmer, 20 Id. 225. (5) Ward v. Weeks, 7 Bingham, 211, 215; Stevens v. Hartwell, 11 Metcalf, 542, 549. and authority of the defendant, and thereby occasioned damages, or were repeated innocently and without intent to defame, as under some circumstances might be the case, so that the repetition would not be a substantive cause of action, it was thought in Keenholts v. Becker, 3 Denio, 346, 352, that they might be. No evidence can be received of any loss or injury which the plaintiff has received by the speaking of the words unless it be specially stated in the declaration.(1) The most usual instances in which the principle of special damage has been applied, are cases of imputing incontinence to an unmarried woman. Such an imputation has long been decided not to be actionable in itself, but courts, regretting this strictness, have shown an inclination to give redress by holding that slight damage would sustain an action. Accordingly, although the allegation that the plaintiff has fallen into disgrace, contempt, and infamy, and lost her credit, reputation, and peace of mind, will not be sufficient ;(2) nor that she is shunned by her neighbors, &c.,(3) as being the loss of nothing of measurable pecuniary value; yet an allegation of the loss of valuable hospitality *and of a support or income derived from the bounty of others, will be [*105 sufficient (4) or of the loss of health, and the consequent incapacity of transacting business.(5) To this department, also, belong cases of what is called slander of title. An action for this is not properly an action for words spoken or written, but an action on the case for special damage sustained by reason of the speaking or publishing of the slander of the plaintiff's title;(6) and the special damage must be alleged, circumstantially, in the declaration.(7) This action is in some respects, like an action of slander; and in others, like an action for malicious prosecution. On the one hand, as in an action for slander, the words which constitute the offence, must be set out exactly in the declaration.(8) And on the other, the action cannot be maintained without showing malice and want of probable cause; and in regard to this, it rests on very nearly the same ground as an action for malicious prosecution. If what the defendant said or did was in pursuance of a bona fide claim or color of title, which he was asserting honestly, and especially, if he was acting under the advice of counsel, (1) Hallock v. Miller, 2 Barbour, 630. (2) Woodbury v. Thompson, 3 New Hampshire, 194. (3) Beach . Ranney, 2 Hill's N. Y. 310, 314. (4) Moore v. Meagher, 1 Taunton, 40; Olmsted v. Miller, 1 Wendell, 506; Williams #. Hill, 19 Id. 305. 14. (5) Bradt v. Towsley, 13 Wendell, 253; Fuller v. Fenner, 16 Barbour, 334. (6) Malachy v. Soper, 3 Bingham's N. C. 371. (7) Bailey v. Dean, 5 Barbour's S. Ct. 297, 300; Dicta in Kendall v. Stone, 1 Selden, (8) Gutsole v. Mathers, 1 Mecson & Welsby, 495; Hill v. Ward, 13 Alabama, 311. though his title proves not to have been perfect, he will not be liable.(1) See instances of this action in the cases cited below,(2) [and instances of actions denominated actions for slander, but which are in truth special actions on the case for the recovery of damages actually sustained by the plaintiff, in consequence of the false and malicious representations of the defendant affecting the plaintiff's property. "They do not," say the court, in Trenton Insurance Co. v. Perrine,(3) "fall within any recognized definition of slander or libel; they contain no personal'imputation; they do not affect the character of other individuals or magistrates, but like any other tort they occasion damage to the propety of the plaintiff and therefore they are actionable." Illustrations are given in the case last named, as of a publication by one newspaper of another newspaper that it is low in circulation, inasmuch as it affects the sale and profits made by advertising; Hernolt v. Stewart, 1 Espinasse; or to throw discredit on a particular commodity in which a party deals; or to say of a ship "that she is broken and unfit to proceed to sea;" or to publish of a stage coach that "it is dangerous to travel in," &c. And see Swan v. Tappan, 5 Cushing, 110, where the action failed on pleadings rather than on principle. But special damages must be laid in these cases. Swan v. Tappan. But in many cases these expressions are published of the persons in the way of their business and tend so to injure them, and if not within the definition of slander or libel, are at least treated as part of those titles. Whether a corporation can sue or be sued for slander, see the note to the next case, where the matter is considered under the head of libel.] (1) Hill ». Ward, 13 Alabama, 311; Bailey v. Dean, 5 Barbour, 297. (2) Hargrave v. Le Breton, 4 Burrow, 2422; Smith v. Spooner, 3 Taunton, 246; Pitt v. Donovan, 1 Maule & Selwyn, 439; Kendall v. Stone, 2 Sandford S. Ct. 270, 283; and S. C., (overruling) 1 Selden, 18. (3) 3 Zabriskie, 412. |