very dubious rule, the terms scandalous and infamous being of themselves words of very indefinite import. It would be a very difficult task to ascertain the precise point in the scale of offences where infamy and scandal cease to attach. From the authorities, perhaps, it may be inferred generally that to impute any crime or misdemeanor for which corporal punishment may be inflicted is actionable without proof of special damage. But where the penalty for an offence is merely pecuniary, it does not appear that an action will lie for charging it; even though in default of payment imprisonment should be prescribed by the statute, imprisonment not being the primary and immediate punishment for the offence. Ogden v. Turner, 6 Mod. 104; 2 Salk. 696; Holt, 40." Starkie, Slander, 111 (3d Eng. ed.).

(d.) Where a Contagious or Infectious disorder is imputed.— By the early common law, as we have already seen, the rule that the imputation of having a contagious or infectious disease was actionable without proof of special damage embraced three kinds of disease, leprosy, the plague, and the syphilis. The two first named having nearly or quite disappeared in England, and having never prevailed to any extent in America, it may be doubtful whether an imputation of having either would have any effect upon a person; and therefore, quære, whether an action for such a charge could at the . present time be maintained. To impute to one, however, the having a venereal disease is still actionable per se. And though the term usually employed to designate such disease is syphilis or pox (lues venerea), the law holds equally offensive the charge of having the gonorrhoea. Watson v. McCarthy, 2

Kelly, 57; Williams v. Holdridge, 22 Barb. 398.

The doctrine that the charge, to be actionable, must be made in the present tense is well settled. Bloodworth v. Gray, 7 Man. & G. 334; Starkie, Slander, 143 (3d Eng. ed.).

(e.) Where an Injurious Imputation is made of the Plaintiff in his Office, Profession, or Business. This class comprises a large number of cases. It is said that words uttered of a person in his office are actionable as well when the office is merely confidential and honorary as when it is productive of emolument. Starkie, Slander, 146 (3d Eng. ed.). The ground of action, as the writer referred to suggests, must be somewhat different in these cases. Where the office is one of profit, the ground of action is the pecuniary loss sustained; but where the office is merely one of honor, the ground would seem to be mainly the danger of exclusion which the charge, if true, would involve. Whether the degradation and the improbability of the party's being afterwards placed in offices of trust or profit might also be a ground for such cases, quære. See Walden v. Mitchell, 2 Ventr. 265, 266; Onslow v. Horne, 3 Wils. 188; Pridham-v. Tucker, Yelv. 153; Tuthil v. Milton, ib. 158; Kerle v. Osgood, 1 Ventr. 50.

In England this case of words concerning a person in an office of mere honor or confidence includes words spoken of justices of the peace, physicians, and barristers. Starkie, ut supra. In these cases a distinction was formerly maintained between a charge of incompetency and one of corruption. See the judgment of Lord Holt in Howe v. Prinn, Holt, 653; s. c. 3 Salk. 694. But this distinction was denied by De Grey, C. J., in Onslow v. Horne,

The fact that the occupation is menial is of no importance. Thus, in Seaman v. Bigg, Croke Car. 480, the words, "Thou art a cozening knave, and hast cozened thy master of a bushel of barley," spoken of a servant in husbandry, to injure him with his master, were held actionable. See also Terry v. Hooper, 1 Lev. 115, where Kelynge, Wyndham, and Twysden, JJ., held that an action lies for speaking scandalous words of a lime-burner, or of any man of any trade or profession, be it never so base, if they are spoken of him with reference to his profession.

There seem to be some cases in which it is not necessary to allege that the words were spoken of the plaintiff in his occupation. It is said that this is true of words spoken of a servant, like the following: "He is a lazy, idle, and impertinent fellow;" for these words, though without reference to the person's service, cannot but affect his character as a servant, since no one would be willing to employ a person of idle and impertinent habits. Starkie, Slander, 157 (3d Eng. ed.).

So, too, it seems that, in some cases where the office, profession, or employment of the plaintiff requires great skill and talent, general words imputing want of ability are actionable; as in the case of words spoken of a barrister or a physician. Peard v. Jones, Croke Car. 382; Gallwey v. Marshall, 9 Ex. 294, 301; Starkie, ut supra. But even in these cases, if the words clearly show that they could not have injured the plaintiff in his profession, they will not be actionable without special damage. See Doyley v. Roberts, 3 Bing. N. C. 835, where the words, "He has de

With the exceptions above mentioned, it must appear that the words complained of were clearly spoken of the plaintiff in his profession or business. See Irwin v. Brandwood, 2 Hurl. & C. 960; Ayre v. Craven, 2 Ad. & E. 2; Pemberton v. Colls, 10 Q. B. 461; Gallwey v. Marshall, 9 Ex. 294; Southee v. Denny, 1 Ex. 196; Edsall v. Russell, 4 Man. & G. 1090.

Where it is alleged that the slanderous words were spoken of the plaintiff in his occupation, and there is no apparent connection between the words and the occupation, it may be necessary to allege how the speaker connected the words with it. In Ayre v. Craven, 2 Ad. & E. 7, a physician sued for words imputing adultery to him, the declaration alleging the words to have been spoken of him in his profession. After verdict for the plaintiff, judgment was arrested on the ground that such words, though alleged to have been spoken of the plaintiff in his profession, were not actionable without special damage; and the court said that if the words were so spoken as to convey an imputation upon the plaintiff's conduct in his profession, the declaration ought to show how the speaker connected the imputation with the professional conduct. To the same effect are James v. Brook, 9 Q. B. 7; Doyley v. Roberts, 3 Bing. N. C. 835.

(f.) Where the Words tend to the Disherison of the Plaintiff. — If the words tend to impeach a present title of the plaintiff, the action, though often called an action for slander of title, is not properly speaking an action of slander: it is simply an action for a false

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representation, like that in Pasley v. Freeman, ante, p. 1, in which the plaintiff must show that the defendant made the statement falsely and fraudulently, and must prove special damages. Malachy v. Soper, ante, p. 42, and note. Cases of actions for words tending to defeat an expected title are rare, and seem to have been confined to words impeaching the legitimacy of the birth of an heir apparent. Starkie, Slander, 164 (3d Eng. ed.). In Humphreys v. Stanfield, Croke Car. 469, the words were, Thou art a bastard." And it was held by all the court that the action lay without proof of special damage. For, said the court, by reason of these words the plaintiff may be in disgrace with his father and uncle, and they, conceiving a jealousy of him touching the same, may disinherit him; and though they do not, yet the action lies for the damages which may ensue. Jones, J., cited two other cases in which the same decision had been made, — Vaughan v. Ellis, Croke Jac. 213; Banister v. Banister, Jones, 388. See also Turner v. Sterling, 2 Ventr. 26; Matthew v. Crasse, 2 Bulstr. 89.

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(g.) Where the Defamation is propagated by Printing, Writing, Pictures, or Effigy; that is, in the Case of Libel.— The distinction between slander and libel, as laid down in the principal case, Thorley v. Kerry, is well established. Stone v. Cooper, 2 Denio, 299; Townshend, Slander, §§ 176, 177 (2d ed.). And all written words which

tend to bring the plaintiff into ridicule, hatred, or disgrace are actionable, though if spoken they may not have incurred liability without special damage. Ib.; Cooper v. Greeley, 1 Denio, 347; Woodward v. Dowsing, 2 Man. & R. 74; Parmiter v. Coupland, 6 Mees. & W. 105; Bennett v. Williamson, 4 Sandf. 65; Cox v. Lee, Law R. 4 Ex. 284.

1

The ground of this distinction is probably that already stated. Libel had been indictable from the earliest times; and when the courts obtained a criminal jurisdiction of the subject, they drew after it a civil remedy in damages. Libels were, however, at first directed against the officers of government only; and their publication was considered a very grave offence. How the jurisdiction came in fact to be extended, as libels came to be directed against private citizens, is not clear. Libels were probably held to be indictable within the definition, taken literally, of the crime as sanctioned by precedent, as is suggested, ante, p. 101. Various reasons have since been suggested to account for extending the jurisdiction, as that libels tend to a breach of the peace, and that they indicate great malice; but it may be questioned if the real reason, or rather motive, for thus enlarging the jurisdiction of the courts was not a desire to add to the king's revenue by the fines imposed upon the offenders. But whatever may have been the ground of the

distinction between slander and libel, it now probably rests, though firmly, upon authority alone.

A few cases will serve to show the difference between slander and libel, cases of actions for written words which could not be maintained for oral defamation, without special damage. In Steele v. Southwick, 9 Johns. 214, the plaintiff, it appeared, had been a witness in a certain action against the defendant; and the latter afterwards printed the following, directed at the plaintiff: "Our army swore terribly in Flanders, said Uncle Toby; and if Toby was here now, he might say the same of some modern swearers. The man at the sign of the Bible [the plaintiff] is no slouch at swearing to an old story." The language was held libellous. Though the words may not have imported perjury in the legal sense, the court observed, they held up the plaintiff to contempt and ridicule, as being so thoughtless or immoral as to be regardless of the obligations of a witThe definition of libel given by Mr. Hamilton in People v. Croswell, 3 Johns. Cas. 354, was referred, to as drawn with precision, a censorious or ridiculing writing, picture, or sign, made with a mischievous and malicious intent towards government, magistrates, or individuals."

ness.

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In a later case in New York it was held that the words, "Mr. Cooper [the plaintiff] will have to bring his action to trial somewhere. He will not like to bring it in New York, for we are known here, nor in Otsego, for he is known there," published in the defendant's newspaper, were libellous. There was an innuendo averring the meaning of the words to be that the plaintiff was in bad repute in Otsego County; and the imputation was held to come within

the definition of libel adopted in Steele v. Southwick, supra. Cooper v. Greeley, 1 Denio, 347.

In Lindley v. Horton, 27 Conn. 58, the alleged libel charged the plaintiff as a school-mistress in having made a wilful, false statement to the school visitors in a matter in which it was her duty to give correct information, and with general untruthfulness; and it was held actionable in both particulars. The publication, it was said, had charged the plaintiff with being a liar; and this, according to J'Anson v. Stuart, 1 T. R. 748, was actionable. See also Adams v. Lawson, 17 Gratt. 250, to the same effect.

In Woodard v. Dowsing, 2 Man. & R. 74, the action was for an imputation upon the plaintiff, an overseer of the poor, of oppressive conduct towards the paupers, in compelling them to receive payment of their weekly parish allowance in orders for flour upon a particular tradesman; and the action was sustained, though the charge was not of a criminal offence.

Under the practice in England, however, since the case of Parmiter v. Coupland, 6 Mees. & W. 105, it seems to be a question of fact whether the words alleged are libellous. In the case referred to Mr. Baron Parke said it had long been the practice of the judges in civil as well as in criminal cases to define a libel before the jury, and leave to them the question whether the language complained of came within the definition. See also Fray v. Fray, 17 Com. B. N. s. 603; Cox v. Lee, Law R. 4 Ex. 284, 290; Darby v. Ouseley, 1 Hurl. & N. 1; Baylis v. Lawrence, 3 Per. & D. 526; Chalmers v. Payne, post, p. 113.

This practice grew out of the statute of 32 Geo. 3, c. 60, called Fox's

Act, which, however, relates in terms only to criminal cases of libel. And its operation is sometimes prevented by a demurrer to the declaration. In Reeves v. Templar, 2 Jur. 137, decided in 1838, a few years before Parmiter v. Coupland, in which the same learned baron gave an opinion, the court held on demurrer that the language charged was not libellous, Parke, B., inclining to the contrary. See also Shattuck v. Allen, 4 Gray, 540. If, however, the decision were against the demurrer, the case would go to the jury. Fray v. Fray, supra; Shattuck v. Allen, supra. So, too, there are cases where verdicts for the defendant are set aside upon the ground that the matter was a libel, though the jury found it was not. Parmiter v. Coupland; Hearne v. Stowell, 4 Per. & D. 697.

The English practice, though approved in some American cases, as in Shattuck v. Allen, 4 Gray, 540, has been criticised in others. Snyder v. Andrews, 6 Barb. 43; Matthews v. Beach, 5 Sandf. 256; Green v. Telfair, 20 Barb. 11; Hunt v. Bennett, 19 N. Y. 173; Pittock v. O'Niell, 63 Penn. 253.

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Referring to Parmiter v. Coupland, the court in Snyder v. Andrews, supra, say: "We cannot but remark . . . how readily one anomaly in practice leads to another. The judges refuse to instruct the jury whether a publication, clear and unambiguous in its terms, and confessedly a libel, falls within the definition of a libel, but leave it for the jury to decide, who find for the defendants; and then the court set aside the verdict as against law. If the question was properly for the jury, and fairly submitted, their decision should on principle be conclusive. If the court have the power to set aside the verdict when for the defendant, because

the jury have found against law, it seems to us the better remedy is to pursue the old practice of declaring the law before verdict, as in other civil cases, and thus preserve consistency in the system."

It is admitted, however, in Matthews v. Beach, supra, that there are cases in which the meaning and application of a libel ought to be determined by the jury; but this was said to be only where the meaning and application depended upon extrinsic facts, or where the terms of the publication were so ambiguous that they were as capable of being understood in an innocent sense as in one which would make them actionable. But where no extrinsic facts were necessary to be proved, and the words of the publication were not susceptible of being understood in any other than a libellous sense, the question was purely one of law. Dilloway v. Turrill, 26 Wend. 383, was explained on the ground that the words there in question were capable of being understood in an innocent sense. See also the language of Abinger, C. B., in Reeves v. Temple, 2 Jur. 137, 138. And this seems to be the principle upon which the American cases generally have proceeded.

At common law no immunity is conferred upon the proprietors, publishers, or editors, as such, of books, newspapers, or other public prints. They are responsible for libellous matter in their columns, though the publication may have been made without their knowledge or against their orders. Huff v. Bennett, 4 Sandf. 120; Dunn v. Hall, 1 Ind. 344; Andres v. Wells, 7 Johns. 260; Curtis v. Mussey, 6 Gray, 261; Sheckell v. Jackson, 10 Cush. 25; Davison v. Duncan, 7 El. & B. 229.