and whether by such publication he has traitorously betrayed the secrets of his government, is a mixed question, on which a jury, in this action, under the advice of the Court, are to decide. So, to publish of a member of congress, "he is a fawning sycophant, a mis-representative in congress, and a grovelling office-seeker; he has abandoned his post in congress in pursuit of an office;" is libellous. But whether the party did leave his post for the purpose imputed to him, or had violated his duty as a representative in congress, are questions for the jury. And, although it is for the Judge to rule whether the occasion creates a privilege, yet, if it does, but there is evidence of express malice, either from extrinsic circumstances or from the language of the libel itself, the question of malice should be left to the jury.3 Thus, in an action for slander, it appeared that the defendant, in the presence of a third person, not an officer, charged the plaintiff with having stolen his property, and afterwards repeated the charge to another person, also not an officer, who was called in to search the plaintiff with the consent of the latter. Held, that the charge was privileged, if the defendant believed in its truth, acted bonâ fide, and did not make the charge before more persons, or in stronger language, than was necessary; and that it was a question for the jury, and not for the Judge, whether the facts brought the case within this rule. 4 148. It will be seen hereafter, (a) that a plea of the truth to an action for slander or libel, if not maintained, is treated as a repetition of the charge, and may enhance the damages.5 But where, to an action for libel, the defendant pleaded not guilty and a justification, and offered no proof of the justification, but gave evidence that the document was a privileged 1 Genet v. Mitchell, 7 Johns. 120. 4 Padmore v. Lawrence, 11 Ad. & Ell. 380; 3 Per. & Dav. 209. 5 Gilpin v. Fowler, 26 Eng. L. & Eq. 386. (a) See Justification. and private communication with a third party; held, the jury, in forming their opinion (upon the first issue) whether the communication was privileged, ought not to take into consideration the fact, that the justification had been pleaded and abandoned.1 But, where a plea to an action for libel justifies that the facts charged are true, and the comments bona fide, it is properly left to the jury to consider, not only whether the facts are proved, but whether the comments also are bona fide, if they are of themselves actionable, and are not necessary inferences from the facts. Thus, under such a justification of a libel, imputing to the plaintiff, that he had become surety for £500 on an election petition, although he was at the time in insolvent and insufficient circumstances, and adding that he was hired for the occasion; the observation that he was hired, whether taken as a statement of a distinct fact or a mere cổmment, is itself actionable, and the jury are to decide whether it is covered by evidence justifying the rest of the libel.2 149. With regard to the rules of pleading, in actions for libel and slander; the general rule is, that the very words themselves must be given in the declaration, and not merely their import, substance, tenor, or effect. (a) For the reason, as 1 Wilson v. Robinson, 7 Ad. & Ell. N. S. 68. 2 Cooper v. Lawson, 1 P. & Dav. 15. Attwood v. Taylor, 1 M. & Gr. 282 (n); Newton v. Stubbs, 3 Mod. 71; Forsyth v. Edmiston, 5 Duer, 653; Bayley v. Johnston, 4 Rich. 22; Zeig v. Ort, 3 Chand. 26; Whitaker v. Freeman, 1 Dev. 271. (a) Declaration, that the defendant falsely, wickedly, and deceitfully represented and affirmed to one P. that the plaintiff was a person of a bad character, and had been guilty of immoral conduct, and was not fit to be associated with; and so depraved, and of such a character, that the said P. ought not to permit, or suffer him to reside, or dwell in the house with the said P.'s wife; and that the plaintiff was in other respects disreputable and disgraceful in his conduct. Held, a count for slander; and bad on general demurrer, for not setting out the words verbatim. Sullivan v. White, 6 Irish L. R. 40. It has been held in Massachusetts, that, in an action of slander, the plain is said, that this is not an express allegation that they were spoken.1 And where a declaration for libel sets out a publication which is libellous only by referring to a previous one, such previous publication must appear, in the declaration, to be set out verbatim, and not merely in substance, nor by reference to a previous count in the declaration. (See § 153.) Therefore judgment was arrested as to the second count of a declaration, which, after reciting that the defendant published a statement "in substance as follows," setting out the publication charged in the first count, charged that the defendant afterwards published, of and concerning the plaintiff, &c., and of and concerning the first publication, a certain statement not in itself libellous.2 So a declaration for libel stated, by way of inducement, that there were vague reports in circulation, that the plaintiff had done something disrepu table and disgraceful in connection with breaking, or causing to be broken, a lock or locks, for the purpose of taking on execution money in the possession of one A. M. B., and then set forth a publication by the defendant in relation to money which he owed the plaintiff, in which it was said, "there will be no locksmith necessary to get at the ready," which, the 1 3 Mod. 71. N. S. 823. But see Nestle v. Van Slyck, 2 Solomon v. Lawson, 8 Ad. & Ell. 2 Hill, 282. tiff may set forth in his declaration either the words spoken or the substance of them. Whiting v. Smith, 13 Pick. 364. See Lee v. Kane, 6 Gray, 495; Baldwin v. Soule, Ib. 321. So a count, setting forth, generally, that the defendant charged the plaintiff with a crime, (naming it,) is good. Allen v. Perkins, 17 Pick. 369; Nye v. Otis, 8 Mass. 122. And under such a count the plaintiff may prove, that the words spoken, though not actionable in themselves, were rendered so by the existence of certain extrinsic facts; a reference to those facts; and the mode in which the words were used; without any averment that they were spoken with reference to any fact whatever. Ibid. But the Court may order a specification or bill of particulars. Clark v. Munsell, 6 Met. 373. As to forms of declaration provided for by statute, see Hawks v. Patton, 18 Geo. 52; Holcombe v. Roberts, 19 Geo. 588. declaration averred, referred to the reports, and intended to charge the plaintiff with having done something disgraceful. Held, insufficient, and that the substance of the reports should have been stated.1 150. But, in an action for libel, the entire article alleged to be libellous need not be set out; if omitted parts explain those set out, the defendant may avail himself of them on the general issue.2 Thus a libel charged the plaintiff with being the most artful scoundrel that ever existed, and with being insolvent; but the writer added, that he had never disclosed the matter, nor ever would, except to the person whom he addressed, and his friend. This latter assertion was omitted in the declaration. Held, that the omission was not material. And, in general, it is sufficient to set out the words which are material, and additional words which do not diminish nor alter their sense may be omitted.1 151. In case of words actionable per se, special damages need not be averred.5 Nor the name of the person to whom or in whose presence they were spoken. (a) So, although malice is the gist of the action, and must be alleged, the word "maliciously" need not be used; it is sufficient if words of equivalent import are used. (See p. 333.) 152. But where words are actionable only in respect of the special damage, that must be set forth with certainty; for it is issuable. Thus, in an action for saying "you are a whore," by which the plaintiff lost her marriage, the name of the person who refused to marry her must be set forth.3 (b) 1 Stone v. Cooper, 2 Denio, 293. Weir . Hoss, 6 Ala. 881. 3 Rutherford v. Evans, 6 Bing. 451. Spencer v. McMasters, 16 Ill. 405; Whiting v. Smith, 13 Pick. 364. (a) See Publication, p. 318. 5 Hicks v. Walker, 2 Greene, 440. 597. (b) See p. 258. In an action for slander, although the words spoken must be set out, a substantial proof of them, as alleged, is sufficient. Bassett v. Spofford, 11 N. Hamp. 127. So, though all the actionable words laid in any one count are not proved, yet, if some are, the plaintiff shall have a verdict. Compagnon v. Martin, 2 W. Black. 790. 153. A declaration for libel or slander may contain several counts, either setting forth different words or the same words in different forms. (a) Actions for the charge of perjury have perhaps more frequently than any others given rise to questions of pleading. Thus, in a declaration for slander, the plaintiff averred, that the defamatory words were spoken "whilst the plaintiff was giving testimony as a witness under the solemnities of an oath before an acting justice of the peace." Held, the averment was sufficient. Lewis v. Black, 27 Miss. (5 Cush.) 425. So a declaration in slander, for charging the plaintiff with swearing to a lie as a witness in a proceeding before a justice of the peace, in which it is not stated that the justice had jurisdiction or power to administer the oath, or that the testimony was material, although bad on demurrer, is good after verdict. Palmer v. Hunter, 8 Mis. 512. So, in an action of slander, where the charge was, that the plaintiff had sworn to a lie at a certain trial, it was held, that the plaintiff need not set forth in his declaration the whole of his evidence at the trial, unless the defendant had specified the language in which the plaintiff had sworn falsely. Smith v. Smith, 8 Ired. 29. A count in slander, alleging that the defendant maliciously, and without proper cause, made a charge of felony against the plaintiff before a magistrate, is good after verdict. But, if such count sets out the proceedings, it should set forth facts sufficient to show that a complaint or charge of felony was made before a magistrate in his official capacity. Hill v. Miles, 9 N. Hamp. 9. A declaration alleged, that the plaintiff had been appointed as surveyor of a company or society, called "The New England Company," and had been employed by them as such; and that the defendant libelled him in his employment. Held, that it was not necessary to allege with extreme precision the description of the company; or to prove the plaintiff's appointment, the libel being alleged of the plaintiff in his employment. Rutherford v. Evans, 6 Bing. 451. A statute, declaring what words are actionable, is a public law, of which the Court is bound to take notice, and, in declaring for the slander, the statute need not be recited or referred to. Sanford v. Gaddis, 13 Ill. 329. (a) It has been held in New York not to be a misjoinder of causes of action, to charge in the same count words imputing to the plaintiff that he had counterfeit bills in his possession, with intent to pass the same, and that he had in his possession plates in the similitude of bank bills, with, &c. Dioyt v. Tanner, 20 Wend. 190. |