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spoken of the plaintiff in the presence of a few persons, or had been published only in a letter or other private communication, the damages might be excessive enough to justify the interposition of the court, a very different rule obtains where the publicity given to the charge is so great. While there was no evidence of express malice, there is certainly testimony tending to show that the steamer Bostonia, on which the crime was charged to have taken place, made frequent trips to Cincinnati, and that very slight diligence on the part of the defendant in sending a messenger to the steamer would have shown the falsity of the charge.

The disagreeable feature of the case was the fact that the plaintiff and defendant were publishers of newspapers of opposite politics, but as the instructions to the jury were characterized by great fairness and temperateness of language, as they were strictly cautioned against political influence, and as the amount of the verdict was entirely consistent with the absence of such influence, I see no reason for taking this into consideration. While juries are very apt to be biased, more or less, by their political or religious opinions, it would be very unsafe for courts to assume that a verdict was dictated by those considerations, without clear proof of the fact. The charge made against the plaintiff was one very likely to injure him severely in his social relations, and to impair his reputation among his neighbors as a good citizen. The publicity given to it in defendant's paper was very great. The amount of the verdict suggests a compromise of conflicting opinions, and I think it quite within the discretionary limits of the jury. The motion for a new trial must be denied.

$ 521, Libelons publication; what constitutes.— Any malicious publication tending to render another ridiculous or to expose him to public contempt and hatred is a libel; and in the case of a foreign public minister the municipal law is strengthened by the law of nations, which secures the minister a peculiar protection, not only from violence, but also from insult. Libelous Publications, * 1 Op. Att'y Gen'l, 52.

$ 522. To represent in the public prints a minister of a foreign nation as a contemptible person, to style him an incendiary jack-in-office, to charge him with deceiving the nation which sends him, and with inspiring another foreign minister with fears of being killed by certain citizens of the United States, is a publication that may be made the subject of legal prosecution. Ibid.

$ 523. A newspaper may lawfully discuss the character of a railway builder and contractor. Crane v. Boston Advertiser, * 13 Rep'r, 650.

$ 524. Words actionable per se. — Words charging a man with having fraudulently deceived and induced a third person to sign a note for a larger sum than he intended are actionable. Kerr v. Force, 3 Cr. C. C., 27.

$ 525. The effect of the words used is the test of whether they are actionable or not, for the injury caused by the slander depends upon the meaning which any reasonable man would give to the words on reading them. If the import the words, as they may be fairly understood by those who read them, is directly calculated to degrade the man in the estimation of his acquaintances, and to injure his business character, they are in themselves actionable, and do not require proof of malice, or that any special damage has resulted from their publication. To say of a person that he is a professional swindler, or to accuse him of bringing another to financial ruin, is libelous and actionable. Whitney v. Janesville Gazette, * 5 Biss., 330.

$ 526. use of innuendo Recovery of special damages — Action for libel. The plaintiff was a book-seller and stationer, and defendant the publisher of a German newspaper in Milwaukee. The charge was that defendant, in August, 1873, published in his newspaper a communication from Freeport, where plaintiff resided, which stated that suits were pending against him for putting himself in “unlawful relations with the wives of other men.” The second count was like the first, with the additional allegation that by reason of the publication of the alleged) libel plaintiff had suffered damages in bis vocation and business. Defendant demurred to the complaint, contending that the alleged publication was not libelous per se, and that the necessary innuendo was wanting. Held, however, that the words alleged to have been published were clearly libelous per se, and under the code system of pleading noinnuendo was necessary to connect them with any extrinsic facts. It was also claimed that as the publication did not touch the plaintiff in his trade or business as a merchant he could not demand damages for loss of business or credit. But held that, where the words are actionable per se, special as well as general damage may be shown, and it is not necessary in such a case that the names of customers, who it is alleged ceased to do business with the plaintiff in consequence of the publication, should be given. Broad v. Deuster,* 8 Biss., 265.

$ 527. Justification.— It is no defense in an action for libel that in the article in which the libelous matter occurred there was also a statement that the publishers had been so informed, but that they could not vouch for the truth of the assertions therein contained. Territory v. Taylor, * 1 Dak. T'y, 471.

$ 528. It is no defense to an action for libel to plead counter-accusations against the plaintiff to the effect that as postmaster he had falsified his books and coerced his employees into supporting his newspaper. Cook v. Tribune Ass'n, 5 Blatch., 352.

$ 529. It is no defense to an action for libel to plead that plaintiff's clerks were criminals, Ibid.

$ 530. “He is a lying, slanderous rascal” is a libel, and a plea of justification that plaintiff had stated an untruth is not good unless it be alleged that it was maliciously stated. Snowdon v. Lindo,* 1 Cr. C. C., 569.

$ 531. In an action for libel the justification, to be complete, must extend to every part of the defamatory matter which could by itself form a substantive ground of action. The justification must be co-extensive with the slander. Whitney v. Janesville Gazette, * 5 Biss., 330. $ 532.

truth as a defense.- Where a libel consisted of a charge of conspiracy to commit murder, and the truth of such charge was pleaded in justification, held, that the evidence must be strong enough to satisfy the jury of the truth of the charge, though it was not necessary to make out the truth of the charge beyond a reasonable doubt, as in a case of indictment for murder. Baker v. Kansas City Times, * 18 Am. L. Reg. (N. S.), 101.

$ 533. Truth of a libelous charge, when proved, is a complete justification therefor. Ibid.

$ 534. No man is at liberty to trifle with the repose of another by publishing to the world charges against his character which are calculated to bring him into general contempt, and then justify himself by stating his authority and proving the statement. Evidence may be given, however, in mitigation of damages, showing that the publishers were not the original authors of the scandal. Romayne v. Duane,* 3 Wash., 246.

$ 535. Under the Dakota code, which declares on the subject of libel that an “injurious publication is presumed to have been malicious if no justifiable motive for making it is shown,” the accused may justify by giving the truth in evidence to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends Territory of Dakota v. Taylor, * 1 Dak. T'y, 471. $ 536.

good motives. It is not a good defense to an action for libel that plaintiff was a speaker, lecturer and public man, who professed to be an educator of the public, and that the newspaper defendant published the libel with good intent, believing it to be true. Smith v. Tribune Co., 4 Biss., 477.

$ 537. libel copied as a news item. - Action for libel in publishing an article copied from another newspaper. The article was libelous in its nature, calling plaintiff " a self-conricted liar,” “a stupid ass,” and reflecting unfavorably upon his official character as an officer of the internal revenue. Held, that the plea that the article was copied as an item of news was demurrable. McDonald v. Woodruff, 2 Dill., 244. $ 538.

mitigation of damages.— In an indictment for libel, charging plaintiff with being a conspirator and recorded as such by the journals of congress, not guilty and justification were pleaded. Held, that the fact of the publication in the journals of congress was no justification, although the journals might be shown in mitigation of damages. Romayne v. Duane,* 3 Wash., 246.

$ 539. By the law of Wisconsin, in an action for libel, the defendant may prove, in mitigation of damages, such facts as tend to prove the truth of the charge and yet fall short of it. If, in an action for charging another with being a professional swindler and with bringing other men to financial ruin, the jury are of the opinion that there is nothing to impeach the fair dealing of the party against whom the charge is made, then the libel in that particular is false, and the offense of the publication of it is in no respect mitigated. On the contrary, if the jury believe that the person accused was guilty of dishonest practices, this will be weighed and considered by them in mitigation of damages. Mitigating circumstances are offered in evidence to repel the presumption of malice. Where this is the case, it should be shown that the defendants knew of them at the time they made the charge. Whitney v. Janesville Gazette, * 5 Biss., 330.

S 540. fact that a person has committed an assault does not justify a libel.- An article was printed in the Janesville Gazette, giving an account of a serious affray, in which

the plaintiff and one Tompkins were concerned. The writer then says that this man Whitney (the plaintiff) bas figured rather conspicuously for some time past, to the disadvantage of the business interests of Janesville, and then proceeds to give an account of Whitney's dealings with S. C. Spaulding, Mr. Dennell, W. L. Gookins and Tompkins, upon whom the assault was made; and after stating that Tompkins, while Whitney was absent, locked his store door to prevent Whitney from packing up certain goods until some sort of a settlenient was effected, says: “This was the occasion of the assault, which produced great excitement for a time, as the sympathies of the public are with the victims of this professional swindler.” The article then winds up as follows: “Mr. Whitney is a resident of New York city and has his hea:lquarters on Broadway. We understand that his ways are not as light as are those of good and honest men." The plaintiff brought action for libel. Held, that, although Whitney may have been the aggressor in the assault and may have violated the law and behaved badly, this did not authorize the writer of the article to go outside of this transaction and compose an article reflecting injuriously upon Whituey's personal and business character, unless the statements were true. Held, also, that it was for the jury to say whether the charge was meant and would be understood as being restricted to Whitney's dealings with Spaulding, Dennell, Gookins and Tompkivs. And it is for the jury to say whether or not the injury to Whitney was greater or less, according to the enlarged or restricted sense of these words, as they inay find them to have been used. In connection with this point, the closing part of the article should be considered by the jury. Ibid.

$ 541. malice.- Absence of actual malice is no bar to an action for libel where the action is not privileged; but absence of malice may be shown in mitigation of damages. Baker v. Kansas City Times * 18 Am. Law Reg. (N. S.), 101.

8542. A party accused of crime is presumed to be innocent, and the law presumes that the accusation was made maliciously; but if the defendant proves the truth of the charge he stands justified. Ibid.

$ 543. Evidence.- In an action for libel matter published after the commencement of the suit is not admissible. Phila., W. & B. R. Co. v. Quigley, 21 How., 211.

$544, — to prove publication.- Publication of pamphlets in New York is not evidence of their publication in Washington, so as to fix upon defendant in Washington such a knowl. edge of their publication as to make bis possession alone of other copies of the same, even with the words “read and circulate” written upon them, evidence of the publication of them by him in Washington. United States v. Crandall, 4 Cr. C. C., 634.

$ 515. Other copies of the same libel may be given in evidence as being found in possession of defendant, but not copies of other papers than the one containing the libel, unless such other papers relate to the libel. Ibid.

$ 546. to show intent.-- Upon the trial of an indictment for seditious libel the government cannot, in order to show the intent of defendant, give in evidence papers subsequently published by the defendant, or found his possession unpublished by him, which would be libels if published. Ibid. $ 547.

10 show recklessness in the pnblisher.-In an action for libel published in a certain newspaper other libelous articles published in the same paper against other parties may be given in evidence to show a recklessness and want of care in guarding the columns of the paper against such articles. Gibson v. The Cincinnati Enquirer, 5 Cent. L. J., 380; 2 Flip., 121 (S$ 518-20).

8 548. Privileged communications.- An official letter from an appraiser of merchandise to the secretary of the treasury, recommending a person for appointment as clerk in the appraiser's office in place of one whose removal is recommended for inefficiency and bad conduct, is a privileged communication, and cannot be made the basis of an action for libel by the person removed against the appraiser. Gardner v. Anderson, * 22 Int. Rev. Rec. 41.

$ 549. An article discussing a proposed consolidation of several railways, the effect of which was to prevent the scheme of consolidation from being consummated, is privileged, and cannot be made the subject of a prosecution for libel. Crane v. Waters, * 26 Alb. Law Jour., 212.

$ 550. The report of a committee of corporate directors, made to the corporation, as to the ability and conduct of one of its superior employees, is a privileged communication, although it may become the subject of an action of libel if printed in book form and distributed among the stockholders or given to the public. Phila., W. & B. R. Co. v. Quigley, 21 How., 202 ($$ 495-99).

$ 551. rights and duties of mercantile agencies.— The defendant resided in New York and had established in that city a mercantile agency, the object of which was to procure information of the pecuniary ability and standing of merchants in the city, to be communicated to the latter in a confidential manner. The defendant had some twenty clerks, who participated in the business of the establishment, and were of course privy to the in

formation obtained, whether favorable or unfavorable to the character and credit of the country merchant, and who participated in the communication of the information to their customers' clerks. The defendant communicated through his clerks to several customers and to their clerks facts seriously affecting the credit of the plaintiff's house. The court charged the jury that, if the defendant himself had communicated the information to a person applying to him for the purpose in good faith, the communication might have been a privileged one; but that the publicity given to it by recording the libelous words in a book to which others had access, and to whom they were communicated, though standing in the relation of clerks, deprived the communication of its otherwise privileged character. On the one hand, to legalize these establishments in the manner and to the extent used by the defendant is placing one portion of the mercantile community under an organized system of espionage and inquisition for the benefit of the other, exposed, from the very nature of the organization, to perversion and abuse; and on the other to refuse to legalize them may be restricting injuriously the right of inquiring into the character and standing of the customer asking for credit in his business transactions. If the establishments are to be upheld at all it must be an individual transaction, and not an establishment conducted by an unlimited number of partners and clerks. The principle upon which privileged communications rest, which of themselves would otherwise be libelous, imports confidence and secrecy between individuals, and is inconsistent with the idea of a communication made by a society or by a private company or corporate body. Beardsley v. Tappan,* 5 Blatch., 497.

$ 552. Miscellaneous.- In an action for libel it is for the jury to decide if the article complained of is libelous, it being the duty of the court to define to them what is in law a libel In such case the jury is not to select certain parts of the article, but to consider if, as a whole, the publication falls within the court's definition. McDonald v. Woodruff, 2 Dill., 244.

$ 553. For a libel composed and published in the District of Columbia the offender may be there indicted and punished as for an offense against the laws of the United States. In re Buell, 3 Dill., 119.

$ 554. One proprietor of a newspaper is responsible for the acts of his co-proprietor in publisting a libelous article. McDonald v. Woodruff, 2 Dill., 244.

$ 556. In an action for a libel published in a newspaper in which were used the terms “crim. con." and " flagrante delicto," it is not error for the court to explain the meaning of such terms to the jury. Gibson v. The Cincinnati Enquirer, 5 Cent. L. J., 380; 2 Flip., 121 (88 518-20).


SUMMARY Charging fornication, $ 556. — Words not actionable per se, 8 557.

$ 556. It is not actionable in the District of Columbia to say of a single woman, “I saw her in bed with Captain Denty,” fornication not being an indictable offense there. Pollard v. Lyon, SS 558-562.

$ 557. Special loss or damage must be particularly described in a declaration for slanderous words not per se actionable. Ibid.

[NOTES. - See SS 563–582.]


(1 Otto, 225-238. 1875.)

ERROR to the Supreme Court of the District of Columbia.

STATEMENT OF Facts.— Words both false and slanderous, it is alleged, were spoken by the defendant of the plaintiff; and she sues in an action on the case for slander to recover damages for the injury to her name and fame.

Controversies of the kind, in their legal aspect, require pretty careful examination; and, in view of that consideration, it is deemed proper to give the entire declaration exhibited in the transcript, which is as follows:

“ That the defendant, on a day named, speaking of the plaintiff, falsely and maliciously said, spoke, and published of the plaintiff the words following: 'I saw her in bed with Captain Denty.' That at another time, to wit, on the same day, the defendant falsely and maliciously spoke and published of the



plaintiff the words following: 'I looked over the transom light and saw Mrs. Pollard,' meaning the plaintiff, ‘in bed with Captain Denty;' whereby the plaintiff has been damaged and injured in her name and fame, and she claims damages therefor in the sum of $10,000."

Whether the plaintiff and defendant are married or single persons does not appear; nor is it alleged that they are not husband and wife, nor in what respect the plaintiff has suffered loss beyond what may be inferred from the general averment that she had been damaged and injured in her name and fame.

Service was made, and the defendant appeared and pleaded the general issue; which being joined, the parties went to trial; and the jury, under the instructions of the court, found a verdict in favor of the plaintiff for the whole amount claimed in the declaration. None of the other proceedings in the case, at the special term, require any notice, except to say that the defendant filed a motion in arrest of judgment, on the ground that the words set forth in the declaration are not actionable, and because the declaration does not state a cause of action which entitles the plaintiff to recover; and the record shows that the court ordered that the motion be heard at general term in the first instance. Both parties appeared at the general term, and were fully heard; and the court sustained the motion in arrest of judgment, and decided that the declaration was bad in substance. Judgment was subsequently rendered for the defendant, and the plaintiff sued out the present writ of error.

$ 558. Slander defined.

Definitions of slander will afford very little aid in disposing of any question involved in this record, or in any other ordinarily arising in such a controversy, unless where it becomes necessary to define the difference between oral and written defamation, or to prescribe a criterion to determine, in cases where special damage is claimed, whether the pecuniary injury alleged naturally flows from the speaking of the words set forth in the declaration. Different definitions of slander are given by different commentators upon the subject; but it will be sufficient to say that oral slander, as a cause of action, may be divided into five classes, as follows: (1) Words falsely spoken of a person which impute to the party the commission of some criminal offense involving moral turpitude, for which the party, if the charge is true, may be indicted and punished. (2) Words falsely spoken of a person which impute that the party is infected with some contagious disease, where, if the charge is true, it would exclude the party from society; or (3) Defamatory words falsely spoken of a person, which impute to the party unfitness to perform the duties of an office or employment of profit, or the want of integrity in the discharge of the duties of such an office or employment. (4) Defamatory words falsely spoken of a party which prejudice such party in his or her profession or trade. (5) Defamatory words falsely spoken of a person, which, though not in themselves actionable, occasion the party special damage.

Two propositions are submitted by the plaintiff to show that the court below erred in sustaining the motion in arrest of judgment and in deciding that the declaration is bad in substance: (1) That the words set forth in the declaration are in themselves actionable, and consequently that the plaintiff is entitled to recover without averring or proving special damage. (2) That, if the words set forth are not actionable per se, still the plaintiff is entitled to recover under the second paragraph of the declaration, which, as she insists, contains a sufficient allegation that the words spoken of her by the defendant

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