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ticular system established or favored by law, and no system is prohibited. Hence, in an action for malpractice, evidence to prove that the defendant's treatment of the case was according to the botanic system of practice and medicine, which he professed and was known to follow, is admissible.1

Bowman v. Woods, 1 Iowa, 441.

CHAPTER VII.

INJURIES TO CHARACTER OR REPUTATION; LIBEL AND SLANDER.

1. Injuries to character; libel and slander.

3. Definition of slander; distinction between slander and libel; criminal liability, &c.

4. Intent, whether and how far material; jest, anger, insanity, retraction, confidential communication, &c.

7. An indirect charge, whether actionable.

9. Words in a foreign language. 10. Obscene words.

11. Libel and slander-distinctiondefinition and examples of a libel.

15. Slander; accusation of crime. 16. Action for special damage; for what words; nature, allegation, and proof of damage, &c.

20. Place in reference to slander and libel.

22. Actions for various crimes; the charges of what crimes are actionable; whether the crime could be committed. 25. Perjury.

39. Larceny. 43. Fraud, &c. 45. Forgery. 50. Disease.

51. Construction of libel and slander; questions of law and fact; in mitiori sensu; understanding of hearers, &c. 59. Slander, &c., relating to office, employment, &c.

62. Illegal occupation.

63. Declaration and proof as to office or employment.

69. Public officers and candidates. 76. Attorneys, &c.

79. Physicians.

81. Business or trade.
85. Publication.

91. Parties; innuendo and colloquium; joint parties; corporations; husband and wife; principal and agent.

105. Malice, necessity of, and evidence to prove; repetition of slander, &c. 116. Privileged communications. 118. Proceedings in court.

122. Reports of such proceedings. 125. Communications by one member of an association in relation to another. 130. Petitions for redress, &c.

133. Public officers and candidates for office.

134. Transmission of official reports. 135. Publication of public documents. 136. Public criticism.

138. Charge of crime.

140. Confidential communications as to matters of business or the character of a servant.

146. Questions of law and fact as to privilege.

149. Pleading in actions for libel and slander.

153. Several counts. 164. Innuendo.

172. Colloquium.

176. Justification-plea of truth. 192. Repetition of slander.

196. Evidence.

209. Damages, verdict, and judgment.

1. THE next class of torts or wrongs, is that of injuries to character or reputation; which naturally occupies an intermediate place between injuries to the person, already treated of, and to property, which will occupy a subsequent portion of this work. Character is to some extent a mere personal

right, like the right to life or limb; and is also, somewhat more appropriately than the rights last named, a subject of ownership or property. The arrangement of subjects which we have adopted seems therefore the most natural and intelligible one.

2. The first and principal injury to character or reputation, is slander or libel. (a) Although, as will be seen, in some respects governed by different rules, these two wrongs are for the most part considered as substantially one and the same; slander being an unwritten or unprinted libel, and libel a written or printed slander. They are so far identical, as to be most properly considered together, with the required references to the points of distinction between them. (b)

(a) Chancellor Kent says, (2 Comm. 15): "The laws of the ancients, no less than those of modern nations, made private reputation one of the objects of their protection. The Roman law took a just distinction between slander spoken and written." He further remarks: "The law of England, even under the Anglo-Saxon line of princes, took severe and exemplary notice of defamation, as an offence against the public peace; and, in the time of Henry III., Bracton adopted the language of the Institutes of Justinian, and held slander and libellous writings to be actionable injuries. But the first private suit for slanderous words to be met with in the English law, was in the reign of Edward III., for the high offence of charging another with a crime which endangered his life. Several Acts of Parliament, known as the statutes de scandalis magnatum, were passed to suppress and punish the propagation of false and malicious slander. They are said to have been declaratory of the common law." Ibid. 17.

(b) Although slander is not, like libel, an indictable offence, yet, it is said, an action for slander is in the nature of a penal action, and comes within the general rule, (it seems,) that a tenant is not bound to discover anything which might render him liable to a penalty or forfeiture, or to anything in the nature of a penalty or forfeiture. Per Pratt, J., Baily v. Dean, 5 Barb. 297.

It is remarked by a late elementary writer: "The question whether mere words uttered, but not written, are ever indictable, seems not clear on the authorities. Oral blasphemy is a crime; also, an oral challenge to fight a duel; and the public utterance of obscene words has been held, in Tennessee, to be such. There are many cases which recognize the doctrine, that verbal slander, especially against magistrates, corporations, and the like,

3. Slander is defined, as the imputation, 1, of some temporal offence for which the party might be indicted and punished in the temporal courts; (a) 2, of an existing contagious disorder tending to exclude the party from society; 3, an unfitness or inability to perform an office or employment of profit, or want of integrity in an office of honor; 4, words prejudicing a person in his lucrative possession or trade; 5, any untrue words, occasioning actual damage.1 (b)

4. It is held that words are not slanderous, unless spoken with an intent to slander, and so understood by the hearers. 2 (c)

11 Chit. Gen. Prac. 43, 44; Brooker v. Coffin, 5 Johns. 188; Van Ness v.

Hamilton, 19 Ib. 367; McEwen v. Ludlow, 2 Harr. 12.

2 Studdard v. Linville, 3 Hawks, 474.

is indictable. For instance, the words, merely spoken, that 'the last grand jury that presented me are perjured rogues,' have been held sufficient. And an information has been maintained for singing in the streets, songs reflecting on the prosecutor's children, with intent to destroy his domestic happiness. On the other hand, there are cases which decide, that, under the circumstances, the particular words complained of could not lay the foundation of a criminal proceeding; and some of these cases go far to indicate, that no words are indictable as mere slander, but that they must have other foundation on which the crime may rest." 2 Bishop on Cr. L. § 813.

(a) In the ecclesiastical courts, it has been held that a suit may be entertained, not only for specified defamatory words, but even for general words of detraction or opprobrious language, coupled with or without the charge of defamation, because the latter denote malice and anger, and tend to destroy brotherly charity. Halford v. Smith, 4 E. 567; Bartlett v. Robins, 1 Wils. 258.

(b) "As far as I can recollect, from determinations in actions for words, there seem to be two general rules whereby courts of justice have governed themselves, in order to determine words spoken of another to be actionable. The first rule is, that the words must contain an express imputation of some crime liable to punishment, some capital offence, or other infamous crime or misdemeanor; and the charge upon the person spoken of must be precise. The second general rule is, that words are actionable when spoken of one in an office of profit, which may probably occasion the loss of his office, or when spoken of persons touching their respective professions, trades, and business, and which do or may probably tend to their damage." Per De Grey, C. J., Onslow v. Horne, 3 Wils. 186.

(c) See Malice, § 105; also, § 51 et seq.

Thus words spoken in merriment or jest, (see p. 247,) without malice, or through mere heat and passion. Though, where the speaking of the words, which were actionable per se, was fully proved; but the court charged, that, if the jury believed the defendant spoke them in jest and without malice, (of which there was no proof,) they might find for him, which they did; the charge was held erroneous. So, in an old and familiar case, a clergyman, in his sermon, recited as a story out of Fox's Martyrology, that one Greenwood, being a perjured person and a great persecutor, had great plagues inflicted on him, and died by the hand of God; whereas in truth he never was so plagued, and was himself present at that sermon. In an action brought by Greenwood, Wray, J., delivered the law to the jury, that it being delivered but as a story, and not with any malice or intention to slander, the defendant was not guilty.2 So, under the general issue in slander, the defendant may prove either in excuse or mitigation, according to circumstances, that he was insane when the words were spoken. But the insanity must be established by direct proof, and not by reputation. And evidence was admitted to prove such insanity, existing at the time of speaking the words, and for several months before and after, but no further. (a) So drunkenness may be shown in mitigation of damages, but, if the slander be often repeated, when the slanderer is sober and drunk, it is no mitigation. So the defendant may show, to disprove malice and mitigate the damages, that his mind was so besotted by a long course of dissipation, and his character so depraved, that no one

1 Long v. Eakle, 4 Md. 454; McKee v. Ingalls, 4 Scam. 30.

2 Cro. Jac. 90.

8 Yeates v. Reed, 4 Blackf. 463.

4 Dickinson v. Barber, 9 Mass. 225. 5 Howell v. Howell, 10 Ired. 84. But sec McKee v. Ingalls, 4 Scam. 30; Iseley v. Lovejoy, 6 Blackf. 412.

(a) A judgment in an action for slander was perpetually enjoined, upon the ground, that, at the time of speaking the words and of rendering the judgment, the defendant was insane or deranged in reference to the subject of the slander. Horner v. Marshall, 5 Munf. 466.

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