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the plaintiff and one Tompkins were concerned. The writer then says that this man Whitney (the plaintiff) has 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 settlement 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 headquarters 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 Tompkins. 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 may 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.

§ 542. 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 knowledge of their publication as to make his 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., 654.

§ 545. 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 in his possession unpublished by him, which would be libels if published. Ibid.

§ 547. to show recklessness in the publisher.-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 ( 518-20).

§ 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 prɔcure 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 publishing a libelous article. McDonald v. Woodruff, 2 Dill., 244.

con.

§ 555. In an action for a libel published in a newspaper in which were used the terms "crim. 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 (S$ 518-20).

VII. SLANDER.

SUMMARY-Charging fornication, § 556.- Words not actionable per se, § 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, $ 558-562.

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

[NOTES. See §§ 563-582.]

POLLARD v. LYON.

(1 Otto, 225-238. 1875.)

ERROR to the Supreme Court of the District of Columbia.
Opinion by MR. JUSTICE CLIFFORD.

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

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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

were, in a pecuniary sense, injurious to her, and that they did operate to her special damage.

$559. Slanderous words are actionable per se.

Certain words, all admit, are in themselves actionable because the natural consequence of what they impute to the party is damage; as, if they import a charge that the party has been guilty of a criminal offense involving moral turpitude, or that the party is infected with a contagious distemper, or if they are prejudicial in a pecuniary sense to a person in office or to a person engaged as a livelihood in a profession or trade; but in all other cases the party who brings an action for words must show the damage he or she has suffered by the false speaking of the other party.

Where the words are intrinsically actionable the inference or presumption of law is that the false speaking occasions loss to the plaintiff; and it is not necessary for the plaintiff to aver that the words alleged amount to the charging of the described offense, for their actionable quality is a question of law, and not of fact, and will be collected by the court from the words alleged and proved, if they warrant such a conclusion.

Unless the words alleged impute the offense of adultery it can hardly be contended that they impute any criminal offense for which the party may be indicted and punished in this District; and the court is of the opinion that the words do not impute such an offense, for the reason that the declaration does not allege that either the plaintiff or the defendant was married at the time the words were spoken. Support to that view is derived from what was shown at the argument that fornication, as well as adultery, was defined as an offense by the provincial statute of the 3d of June, 1715, by which it was enacted that persons guilty of those offenses, if convicted, should be fined and punished as therein provided. Kilty's Laws, ch. xxvii, secs. 2, 3.

Beyond all doubt offenses of the kind involve moral turpitude; but the second section of that act, which defined the offense of fornication, was, on the 8th of March, 1785, repealed by the legislature of the state. 2 Kilty, ch. xlvii, sec. 4.

$560. Fornication is not indictable in the District of Columbia.

Sufficient is remarked to show that the old law of the province defining such an offense was repealed by the law of the state years before the territory included within the limits of the city was ceded by the state to the United States, and, inasmuch as the court is not referred to any later law passed by the state, defining such an offense, nor to any act of congress passed since the cession, our opinion is that the plaintiff fails to show that the words alleged impute any criminal offense to the plaintiff for which she can be indicted and punished.

Suppose that is so, still the plaintiff contends that the words alleged, even though they do not impute any criminal offense to the plaintiff, are nevertheless actionable in themselves, because the misconduct which they do impute is derogatory to her character and highly injurious to her social standing.

Actionable words are doubtless such as naturally imply damage to the party; but it must be borne in mind that there is a marked distinction between slander and libel, and that many things are actionable when written or printed and published which would not be actionable if merely spoken, without averring and proving special damage. Clement v. Chivis, 9 Barn. & Cress., 174; McClurg v. Ross, 5 Binn., 219.

561. When slander is actionable considered, and authorities reviewed. Unwritten words, by all, or nearly all, the modern authorities, even if they impute immoral conduct to the party, are not actionable in themselves unless the misconduct imputed amounts to a criminal offense for which the party may be indicted and punished. Judges as well as commentators, in early times, experienced much difficulty in extracting any uniform definite rule from the old decisions in the courts of the parent country to guide the inquirer in such an investigation; nor is it strange that such attempts have been attended with so little success, as it is manifest that the incongruities are quite material, and, in some respects, irreconcilable. Nor are the decisions of the courts of that country, even of a later period, entirely free from that difficulty.

Examples both numerous and striking are found in the reported decisions. of the period last referred to, of which only a few will be mentioned. Words which of themselves are actionable, said Lord Holt, must either endanger the party's life or subject him to infamous punishment; that it is not enough that the party may be fined and imprisoned; for a party may be fined and imprisoned for a common trespass, and none will hold that to say one has committed a trespass will bear an action; and he added at least the thing charged must "in itself be scandalous." Ogden v. Turner, 6 Mod., 104.

Viewed in any proper light it is plain that the judge who gave the opinion in that case meant to decide that words, in order that they may be actionable in themselves, must impute to the party a criminal offense affecting the social standing of the party, for which the party may be indicted and punished.

Somewhat different phraseology is employed by the court in the next case to which reference will be made. Onslow v. Horne, 3 Wil., 186. In that case De Grey, C. J., said the first rule to determine whether words spoken are actionable is that the words must contain an express imputation of some crime liable to punishment, some capital offense or other infamous crime or misdemeanor, and that the charge must be precise. Either the words themselves, said Lord Kenyon, must be such as can only be understood in a criminal sense, or it must be shown by a colloquium in the introductory part that they have that meaning; otherwise they are not actionable. Holt v. Scholefield, 6 Term, 694.

Separate opinions were given by the members of the court in that case; and Mr. Justice Lawrence said that the words must contain an express imputation of some crime liable to punishment, some capital offense or other infamous crime or misdemeanor; and he denied that the meaning of words not actionable in themselves can be extended by an innuendo. 4 Co., 176.

Prior to that, Lord Mansfield and his associates held that words imputing a crime are actionable, although the words describe the crime in vulgar language and not in technical terms; but the case does not contain an intimation that words which do not impute a crime, however expressed, can ever be made actionable by a colloquium or innuendo. Colman v. Godwin, 3 Doug., 90; Woolnoth v. Meadows, 5 East, 463.

Incongruities, at least in the forms of expression, are observable in the cases referred to when compared with each other; and when those cases, with others not cited, came to be discussed and applied in the courts of the states, the uncertainty as to the correct rule of decision was greatly augmented. Suffice it to say that it was during the period of such uncertainty as to the rule of decision when a controversy bearing a strong analogy to the case be

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