not appear in what manner the immorality was connected with the plaintiff's profession of a physician, and it was possible that such imputations of incorrect conduct out of the line of their respective professions might not injure their professional characters; whereas in Stanton v. Smith, the words were actionable because they must necessarily affect the plaintiff in his trade; and in Jones v. Littler the judge at the trial put to the jury the question whether the words were spoken of the plaintiff in his trade, and they found that they were. It was plain in this case that the words were so used from the fact that in the conversation in question the plaintiff was spoken of as a brewer. And the imputation was that of insolvency which must be injurious; for if a tradesman be incapable of paying all his debts, whether in or out of trade, his credit as a tradesman, which depends on his general solvency, must be injured. 7 M. & W. 426. An action has been sustained for saying of a tradesman "if he does not come and make terms with me, I will make a bankrupt of him and ruin him." Brown v. Smith, 13 Com. Bench (4 J. Scott) 596, 76 Eng. Com. Law Rep., 20 Eng. Law & Eq. 243. 11. Action may lie for written words which without writing would not be actionable. In the action for words, a distinction between words spoken and words written was made in the reign of Charles the second and has since been repeatedly recognized. According to that distinction, an action may lie for writing and publishing many words, which without writing or publishing would not be actionable; the writing and publishing being supposed to evince more malice than if they were only spoken. King v. Lake, Hardr. 470; Austin v. Culpeper, Skinn. 123. The rule is, that if a man deliberately or maliciously publishes any thing in writing concerning another which throws contumely on him or renders him ridiculous or tends to hinder persons from associating with him, an action will lie against such publisher. Villers v. Monsley, 2 Wils. 403; Bell v. Stone, 1 Bos. & Pul. 331; Levi v. Milne, 4 Bingh. 195, 13 Eng. Com. Law Rep. 396. Sir James Mansfield thought that on principle there could be no difference between words written and words spoken as to the right which arises upon them of bringing an action. He stated arguments to repudiate the distinction, but considering that it had been established by some of the greatest names known to the law, he and the judges sitting with him, on a writ of error to a judgment of the king's bench, were of opinion that they could not disregard it; therefore there was an affirmance of the judgment given for the plaintiff in an action for a libel in a letter, though the words if merely spoken would not have been sufficient to support an action. Thorley v. Kerry, 4 Taunt. 555. The plaintiff cannot maintain the action by merely charging malicious motives and a calumnious tendency; he must shew that there is a libel. Robinson v. Germyn &c. 1 Price 11; Hearne v. Stowell, 12 Adol. & El. 719, 40 Eng. Com. Law Rep. 168; Mayrant v. Richardson, 1 Nott & M. 347. This may be shewn without proof of a malicious intention. "Everything written or printed which reflects on the character of another, and is published without lawful justification or excuse, is a libel, whatever the intention may have been." 15 M. & W. 437; Hoare v. Silverlock, 12 Adol. & El. N. S. 624, 64 Eng. Com. Law Rep.; Hakewell v. Ingram, 28 Eng. Law & Eq. 413. There was no doubt but that the charges in Riggs v. Denniston, 3 Johns. Cas. 202, were libellous and actionable. They were published of the plaintiff in relation to his profession and office, and tended to injure and disgrace him; they charged him with a want of fidelity in his profession, and with partial and oppressive conduct as a commissioner. A defendant who on the application of one person delivers to him a paper which libels another, publishes the libellous matter to him to whom it is delivered, though the person libelled may have sent him to procure the paper. Duke of Brunswick v. Harmer, 14 Adol. & El. N. S. 185, 68 Eng. Com. Law Rep. Addressing a libel of the plaintiff to his wife is a publication. When it was argued that sending a letter to the plaintiff's wife was like sending it to the plaintiff himself, Maule, J. said: "No doubt man and wife are for many purposes one; but that is a strong figurative expression, and cannot be so dealt with as that all the consequences must follow which would result from its being literally true. For many purposes, they are essentially distinct and different persons—and amongst others, for the purpose of having the honour and the feelings of the husband assailed and injured by acts done or communications made to the wife." Wenman v. Ash, 13 Com. Bench (4 J. Scott) 844, 5, 76 Eng. Com. Law Rep. 844, 5, 22 Eng. Law & Eq. 509. 12. Change made in Virginia at the time of passing the act to suppress duelling. What words are actionable in this state. In Virginia, at the time of passing the act of January 26, 1810, to suppress duelling, it was provided as follows: That all words which, from their usual construction and common acceptation, are considered as insults, and lead to violence and breach of the peace, shall hereafter be actionable, and no plea, exception or demurrer shall be sustained in any court within this Commonwealth, to preclude a jury from passing thereon, who are hereby declared to be the sole judges of the damages sustained: Provided, That nothing herein contained shall be construed to deprive the several courts of this Commonwealth from granting new trials as heretofore. 1 R. C. 1819, p. 584, c. 157, § 8; 1830, 31, p. 105, § 8. "The common law remedy by action of slander," it is observed by Allen, J., "had been found totally inadequate. Persons who might be accused of offences with any shew of probability, rarely thought of appealing to the (so called) code of honour. But personal insults, imputations upon the indivi dual or those having claims to his protection; to such indignities all might be exposed. The man of fair character might smile at the charge of theft or perjury; but stand ready at the peril of his life, to resent a personal insult or indignity to himself or his wife or other relative. The insulting character of the words does not depend on their truth or falsehood. They may be true, and their very truth give venom to the sting of insult. For such insults the legislature intended to provide a remedy, and by doing so to deprive the offender against the duelling law of the plea he offered in extenuation of his course that the laws of his country afforded no adequate redress for insults and injuries to the wounded feelings of an honourable man.”—“Looking to the policy of the statute, what constitutes the gravamen of the action given by it? Clearly," says the judge, "the insult to the feelings of the offended party. The court cannot say whether the words are or are not insulting; that depends on the place, the manner and circumstances in which they are uttered. The literal meaning of the words may import praise; but if spoken ironically, and with intent to wound, they may amount to the keenest insult. A man in that society where insults are most sensibly felt, may be told he is unfit for such company, that he is not a man of veracity; or his intellect may be disparaged in insulting terms; for such injuries the law intended to provide redress." 6 Grat. 534. Brooks v. Calloway, 12 Leigh 471, 2; No change of this principle was proposed by the revisors of the Code. (See their reports, p. 871, note.) The committee on revision concurred with them in reporting as part of chapter 148 the following section: All words which, from their usual construction and common acceptation, are considered as insults, and lead to violence and breach of the peace, shall be actionable. No plea, exception or demurrer, shall preclude a jury from passing thereon. The legislature struck out the words in italics: hence in the Code, (at p. 589,) § 2 of ch. 148 will be found without those words. 13. What will sustain an action for slander of plaintiff's title. No action will lie against the defendant for merely saying that he had, when he had not, a lease of the plaintiff's land, but if the defendant knew that the plaintiff was bargaining with a third person for disposing of the land to him, and falsely affirmed to that person that he had such lease, whereby the plaintiff was defeated of his bargain, this will sustain an action. Girard v. Dickenson, 4 Rep. 18, a. b. On the authority of this case and of Lovett v. Weller, 1 Roll. Rep. 309, the court of exchequer held an action for a false and malicious representation maintainable though the defendant makes a claim of right, if it be made maliciously and without reasonable or probable cause, and special damage accrues from the claim so made. Green v. Button, 2 C. M. & R. 707, Tyrwh. & Gr. 118. That special damage is required to sustain an action for slander of title, appears from the cases of Lowe v. Hanwood, Sir W. Jones 196; Tarborough v. Day, Cro. Jac. 484; Manning v. Avery, Keb. 153, and Kane v. Goulding, Styles 169, 176. On the authority of these cases. the court of common pleas has held that an action for slander of the plaintiff's title is not properly an action for words spoken, or for libel written and published, but an action on the case for special damage sustained by reason of the speaking or publication of the slander. Malachy v. Soper, 3 Bingh. N. C. 371, 32 Eng. Com. Law Rep. 167. To sustain the action, it must be shewn not only that a false statement was made, but that it was made mala fide, and that the special damage ensues from it. Brook v. Rawl, 4 W. H. & G. 521. CHAPTER LXV. ACTION FOR A FRAUDULENT REPRESENTATION. 1. Of letters of recommendation where they do not constitute a contract. Merchants are in the habit of giving letters recommending correspondents to each other, without meaning to become sureties for the person recommended; and these letters, generally speaking, are deemed advantageous to the person to whom the party is introduced as well as to him who obtains the recommendation. A court is not apt to consider such letters as constituting a contract rendering the writers liable for the engagements of the person recommended, to those to whom the letters are addressed. Russell v. Clark's ex'ors, 7 Cranch 91. And when such a letter is insufficient to establish a contract, the party writing it will not be considered responsible for its actual verity, if he has no interest in the transaction, and made the communication honestly. Haycraft v. Creasy, 2 East 92; Russell v. Clark's ex'ors, 7 Cranch 93. 2. General rules as to effect of fraudulent representation, when made by defendant himself, or by his agent; or made to plaintiff through another. It is one thing to write a letter with an honest conviction of the truth of what is contained in it, and another and very different thing to make thereby an affirmation, knowing it to be false, or to be guilty of a fraudulent concealment. Corbett &c. v. Brown, 8 Bingh. 33, 21 Eng. Com. Law Rep. 211; Tryon &c. v. Whitmarsh, 1 Metcalf 1; Kidney &c. v. Stod dard, 7 Id. 252. It is considered clear law that if A fraudulently makes a representation which is false, and which he knows to be false, to B, meaning that B shall act upon it, and B believing it to be true does act upon it, and thereby suffers a damage, B may maintain an action on the case against A for the deceit. Croke, J., in Baily v. Murrell, 3 Bulstr. 95; Com. Dig. tit. Action upon the case for a deceit, A. 9, 10; Gerhard v. Bates, 20 Eng. Law & Eq. 136; Fenimore v. U. S. 1 Dal. 357, 1 Curtis 256; Barney v. Dewey, 13 Johns. 224; Wardell v. Fosdick &c. Id. 325; Morrell &c. v. Colden, |