OBS. way of advice to persons asking it, or who have a right to expect it; Toogood v. Spyring, 1 Cr., M. & R. 181; Warren v. Warren, 1 Cr., M. & R. 250; as in answer to an inquiry; but not officious gossip, Rumsey v. Webb, 1 Car. & M. 104, respecting the character of a servant, &c. Fountain v. Boodle, 3 Q. B. 5; Child v. Affleck, 9 B. & C. 403; and see Kelly v. Partington, supra. Where A. was trustee of a charity, and also a bailiff to B., B. communicated with C. in reference to the trusteeship, when C. said A. was a rogue and had been guilty of discreditable conduct, &c. all that was said having reference to A.'s trustworthiness as a trustee, and B. in consequence of this dismissed A. from his employment; the court held this to be a privileged communication. Cowles v. Potts, 34 L. J. Q. B. 247. Where words are used by a person having an interest in the transaction to which they relate (Tuson v. Evans, 12 Ad. & E. 736), to another person interested in conducting it; Padmore v. Lawrence, 11 Ad. & E. 380; or by a person having sustained a supposed grievance to a person believed capable of redressing it (per Cresswell J. Blackham v. Pugh, 15 L. J. C. P. 293; 2 C. B. 611), they are privileged; but according to a decision of the queen's bench such application, to be privileged, must be to a competent tribunal, having jurisdiction in the subject-matter; Blagg v. Sturt, 16 L. J. Q. B. 39; 10 Q. B. 905; Affidavit in exchequer chamber, June 1847. ["The decisions, ancient and modern, are uniform, that no proceeding in a regular course of justice is to be deemed an actionable libel." Metcalf J. in Kidder v. Parkhurst, 3 Allen, 393; Cutler v. Dixon, 4 Co. 14 b; Lake v. King, 1 Saund. 131; Watson v. Moore, 2 Cush. 138; Hill v. Miles, 9 N. H. 14.] To say of a clergyman that he came to perform divine service in a towering passion, &c. is libellous. Walker v. Brogden, 19 C. B. N. S. 65. A plain account of the proceedings of a court of justice is not a libel; Curry v. Walker, 1 B. & P. 525; Smith v. Scott, 2 C. & K. 580; Hoare v. Silverlock, 9 C. B. 20; Woodgate v. Ridout, 4 F. & F. N. P. R. 202; [Scott J. in Cincinnati &c. Co. v. Timberlake, 10 Ohio N. S. 548; Lewis v. Levy, 1 El., Bl. & El. 537; Cosgrave v. Trade Auxiliary Co. 8 Irish R. C. L. 349.] Nor is fair newspaper comment on a place of public entertainment. Bignell v. Buzzard, 3 H. & N. 217; Dibdin v. Swan, i Esp. N. P. C. 28. Fair literary criticism is also privileged. Carr v. Hood, 1 Camp. 355; [Tabart v. Tipper, 1 Camp. 350.] Criticism on handbills and placards. Paris v. Levy, 9 C. B. N. S. 342. But it is said the sermons of a clergyman publicly preached are not the subject of comment; Gathercole v. Myall, 15 M. & W. 319, sed quare; and as to comments on sermons published in newspapers, and provocation by plaintiff, see Kelly v. Sherlock, L. R. 1 Q. B. 686; Kelly v. Tinling, L. R. 1 Q. B. 699. Every subject has a right to comment on those acts of public men which concern him as a subject of the realm, if he does not make his commentary a cloak for malice. Parmiter v. Coupland, 6 M. & W. 108; Gathercole v. Myall, 15 M. & W. 319; [Cooper v. Lawson, 8 Ad. & E. 746; Lucan v. Smith, 1 H. & N. 481; Kelly . Tinling, L. R. 1 Q. B. 699; Commonwealth v. Odell, 3 Pitts. (Pa.) 449; Wilson v. Fitch, 41 Cal. 363; Davis v. Duncan, L. R. 9 C. P. 396] and see, also, Seymour v. Butterworth, 3 F. & F. N. P. R. 372. And a writer in a public periodical has no other right than that of any other person of freely discussing the public acts of another. Campbell v. Spottiswoode, [3 B. & S. 769; Aldrich v. Press Printing Co. 9 Minn. 133. privilege of criticising and discussing the words and acts of public men has in modern times been very widely extended." Erle C. J. in Whitely v. Adams, 15 C. B. N. S. 418. The Public meetings, Hearne v. Stowell, 12 Ad. & E. 720, and reports of public meetings are not privileged. Davidson v. Duncan, 7 El. & Bl. 229.] Payment into court and an apology may now be made in certain cases, and must be specially pleaded, see post, form 5, and note. Where the speaking or publication of the words or libel is admitted, and the defendant intends to rely on their truth as a justification, he must plead this specially. Smith v. Richardson, Willes, 20; 1 Saund. 130 (n.); Reg v. Newman, 1 El. & Bl. 577; Rumsey v. Webb, Car. & M. 104; Prior v. Wilson, 1 C. B. N. S. 95. See, also, Helsham v. Blackwood, 11 C. B. 111. [A special plea in justification of oral slander sets forth the truth of the words merely; and in respect to words spoken, the truth is a defence although they were OBS. spoken maliciously and without reason on the part of the defendant to think them true. Foss v. Hildreth, 10 Allen, 76; Fry v. Bennett, 3 Bosw. (N. Y.) 200. The defence that the words used were privileged by the occasion is not open in Massachusetts, unless it is distinctly set forth in the answer. Goodwin v. Daniels, 7 Allen, 61. See, however, under the common law, Hagan v. Hendry, 18 Md. 177.] If the plea of justification is pleaded, and no evidence is adduced in support of it, the damages may thereby be enhanced, and this may afford evidence of express malice. Wilson v. Robinson, 7 Q. B. 68; Simpson v. Robinson, 12 Q. B. 511. See, also, post, 662, note (q). A plea that through mistake the defendant's letter was addressed to the plaintiff's employer instead of to the plaintiff himself was held bad; the letter, even had it been addressed to the plaintiff, not being a privileged communication. Fox v. Brodrick, 14 Ir. Com. Law, 453. [A telegram has not the privilege of a sealed letter. Williamson v. Freer, L. R. 9 C. P. 393.] In action by the plaintiff and his wife, a plea that the female plaintiff was not the wife of the male plaintiff was held a good plea in bar. Chantler v. Lindsay, 16 L. J. Ex. 16. A plea of accord and satisfaction was held good. Boosey v. Wood, [3 H. & C. 484.] Generally, as to what amounts to defamatory matter, see Fray v. Fray, 34 L. J. C. P. 45. As to interrogatories in an action for libel and slander, see Stern v. Sevastopulo, 32 L. J. C. P. 268; Baker v. Lane, 34 L. J. Ex. 57; Bickford v. D'Arcy, L. R. 1 Ex. 354; Atkinson v. Fosbroke, L. R. 1 Q. B. 628; 35 L. J. Q. B. 182; [Tupling v. Ward, 6 H. & N. 749.] Ante, 538, "Not Guilty," ante, 635, "Limitations," post, 666. 1. Plea to an Action for Slander of the Plaintiff in his Trade, &c.; Denial that he exercised such Trade. (0) That the plaintiff did not use, exercise, or carry on the trade or business of [following the words in the declaration], nor was he a [linendraper], as alleged. [1a. Denial that Defendant made the Accusation charged. And the defendant comes and upon his personal knowledge denies that he accused the plaintiff of the crime of perjury, as set forth in the plaintiff's writ.] 2. Plea denying that Defendant used the Words in the Sense imputed. (p) That he did not use the words [black sheep] for the purpose of expressing or meaning, nor were they by the said persons in the declaration mentioned, or any of them, understood as expressing or meaning [&c. following the words in the declaration], as alleged. 3. Plea that the Matter published is true. (q) That the plaintiff, before the publication of the alleged libel [or "before the (0) See another form, Cannell v. Curtis, 2 Bing. N. C. 228. (p) See form, &c. M'Gregor v. Gregory, 11 M. & W. 287. The defendant cannot avail himself of this plea when the words complained of are actionable in themselves, because the plaintiff in such a case need not prove in what sense they were used. Common Law Procedure Act, 1852, s. 61. (9) Truth must be specially pleaded. ! Saund. 130; and see Rumsey v. Webb, 1 Car. & M. 104. But it should not be pleaded without good ground for believing that it will be proved, as the pleading it unsuccessfully would enhance the damages. Wilson v. Robinson, 14 L. J. Q. B. 196; [7 Q. B. 68.] Where libellous matter can be divided into two parts, each actionable, the defend said words were spoken "] feloniously did steal, take, and carry away certain goods and chattels of one E. F. [following as nearly as possible the words of the declaration]. (r) ant may plead separate pleas to each part; Clarkson v. Lawson, 5 Bing. 587; and if the rest of the libel be not actionable (see Ingram v. Lawson, 5 Bing. N. S. 66), the defendant will succeed thereon on not guilty. Clarke v. Taylor, 2 Bing. N. C. 664; [Mountney v. Watton, 2 B. & Ad. 673; M'Gregor v. Gregory, 11 M. & W. 287; Walker v. Brogden, 19 C. B. N. S. 65.] But defamation is not divisible where many statements tend to one conclusion and imputation, and a single sentence, or portion of a sentence, cannot in such case be selected and separately dealt with by plea or demurrer. Per Lord Abinger, Eaton v. Jones, 1 Dowl. N. S. 602; and Gregory v. Duke of Brunswick, 1 D. & L. 518; 6 M. & G. 205; Smith v. Parker, 2 D. & L. 394. In general it suffices that the gist and substance of the libellous matter charged are justified and covered by the matters of facts stated in the plea, and constituting the offence charged. In Morrison v. Harmer, 3 Bing. N. C. 759, the main charge against the plaintiffs was, that they compounded and sold poisonous and deleterious pills, and that defendant had crushed the system of poisoning pursued by the scamps and rascals; and the plea (which was pleaded to the whole declaration) chiefly charged that the pills were dangerous, &c. and the terms of general invective and reproach, as "scamp," rascal," were not expressly noticed in the plea; it was held that the plea was sufficient, the court saying, that they could not understand those words, however offensive, as containing any charge different and distinct from that of which the truth had been justified in the first plea, and that they were not aware of any authority by which it is determined that the justification of the truth of the substantial imputation contained in a libel is not sufficient unless it extend also to every epithet or term of general abuse which may be found in the description or statement of such imputation. Where the charge against the plaintiff is in itself, on the face of the libel, of a certain and specific nature, and states the facts imputed in so perspicuous a shape, that the plaintiff must know at the trial what evidence he has to adduce to rebut the accusation, and the plea of justification can afford no further information, it is sufficient to allege generally in the plea that the plaintiff committed the offence, or was guilty of the misconduct, using the words of the charge; as if the words be, that plaintiff stole a sheep of E. F., the plea may be, that he did on, &c. steal the said sheep,' &c. But where the charge is general, as that plaintiff is a "scoundrel," or "swin (r) Clarke v. Taylor, 2 Bing. N. C. 664. When a comment, following previous libellous matter, should be separately justified, Cooper v. Lawson, 8 Ad. & E. 746. The dler," or had defrauded various persons, or was guilty of neglect, extortion, &c. as attorney, a general plea merely reiterating the charge, and not showing the particular occasion or instance of misconduct, the time, persons, &c. is bad. See 1 Saund. 244 a, 244 b, note (m); 1 Chit. Pl. 7th ed. 563; 1 Har. Ind. Defamation. See J'Anson v. Stuart, 1 T. R. 748; 2 Sm. L. C. 6th ed. 57; Jones v. Stevens, 11 Price, 235; Hickinbotham v. Leach, 10 M. & W. 361; 2 Dowl. N. S. 270. The plea should not repeat general charges made in the libel, but should state particular acts of misconduct. Holmer v. Catesby, 1 Taunt. 543; Hickinbotham v. Leach, 10 M. & W. 361; [Vanwyck v. Guthrie, 4 Duer, 268; S. C. 17 N. Y. 190; Ormsby v. Douglass, 5 Duer, 665; Fry v. Bennett, 5 Sandf. 54; Anibal v. Hunter, 6 How. Pr. 255; Buddington v. Davis, 6 How. Pr. 401; Honess v. Stubbs, 7 C. B. N. S. 555. The New York Code has not changed the rule of law which requires certainty and particularity in stating the offence charged against the plaintiff in a plea of justification in an action of slander. The answer must state specifically the offence of which the plaintiff is alleged to have been guilty, giving time, place, and circumstances. Billings v. Walker, 28 How. Pr. 97; Wachter v. Quenzer, 29 N. Y. 547; Tilson v. Clark, 45 Barb. 178. But the form in which the plea will be allowed seems to depend in great measure on the nature of the charge in the declaration. See Behrens v. Allen, 8 Jur. N. S. C. P. 118.] A plea, which professes to justify the whole, but justifies only a part, is bad. Johns v. Gittings, Cro. Eliz. 239; Clarkson v. Lawson, 6 Bing. 260; M'Gregor v. Gregory, 11 M. & W. 287; Walker v. Brogden, 19 C. B. N. S. 65. [The answer should cover the whole charge. Fero v. Ruscoe, 4 N. Y. 162; McKinby v. Rob, 20 John. 351; Bissell v. Cornell, 24 Wend. 354; Loveland v. Hosmer, 8 How. Pr. 215; Herr v. Bamberg, 10 How. Pr. 128.] If the justification substantially meets and answers the charge against the plaintiff, it is sufficient. Helsham v. Blackwood, 11 C. B. 111; Tighe v. Cooper, 7 El. & Bl. 639. Proof upon and effect of a plea that the libel is true "in substance and effect." Weaver v. Lloyd, 2 B. & C. 678; 1 C. & P. 295. A plea in this general form is frequently allowed, and it is often convenient to adopt it. See Behrens v. Allen, 8 Jur. N. S. 118; but see Honess v. Stubbs, 7 C. B. N. S 555. See, also, J'Anson v. Stuart, 2 Sm. L. C. 6th ed. 67, upon this mode of pleading. Such a plea is good after verdict. Edmonds v. Walter, 3 Stark. 7; 2 Chit. 291. Mr. Starkie, plea should of course be pleaded only to so much as the defendant can justify. Clarkson v. Lawson, 6 Bing. 266; Mountney v. Watton, 2 B. & Ad. 673. [3a. Another Form for Same. And the defendant says the plaintiff did feloniously steal, take, and carry away ten dollars, the property of one S. T., in the possession of said S. T. being found, and converted the same to his own use, and so the plaintiff was guilty of the crime of theft, and the defendant's accusation was true.] 4. Plea justifying a Charge of Insolvency on the Ground that it is true. (8) That before the publication of the said libel divers persons had given credit to and were then creditors of the plaintiffs in their said trade and business, and the plaintiffs were then indebted to and liable to pay in that behalf their said several creditors divers large sums of money, and the plaintiffs were then under divers pecuniary engagements and liabilities in and relating to their said trade and business, and were unable to meet their said several pecuniary engagements and liabilities in their said trade and business, and were then in bad, embarrassed, and insolvent circumstances, and unable to pay or satisfy their said several creditors their debts in full, and were then about and likely to fail in and be forced and obliged to break up and cease their said trade and busi ness. [5. Plea to a Libel imputing a General Charge of Baseness, that the Libel was published in reference to a Particular Transaction, and justifying it. Tighe v. Cooper, 7 El. & Bl. 639. Special pleas that the matter was a fair and bonâ fide comment in a newspaper article upon the conduct of the plaintiff in a public capacity. Lucan v. Smith, 1 H. & N. 481; Cooper v. Lawson, 8 Ad. & E. 746; Kelly v. Tinling, L. R. 1 Q. B. 699. Plea that the libel was a correct report of a preliminary inquiry before a justice of the peace in which the plaintiff was summoned to answer a charge of perjury and was discharged. Lewis v. Levy, El., Bl. & El. 537.] 6. Plea that Plaintiff was a Swindler, as charged in a Libel. Clarke v. Taylor, 2 Bing. N. C. 654. 7. Plea to a Declaration for a Libel on a Vendor of Quack Medicines, that the Matters are true. Morrison v. Harmer, 3 Bing. N. C. 759. 8. Plea to a Libel on a Proctor, that he had been suspended. Clarkson v. Lawson, 6 Bing. 587. 3d ed. Ev. 643, observes, in regard to the evidence in support of a plea of justification in slander, that " there seems to be little if any difference between the evidence in proof of a specific charge thus involved in a civil proceeding, and the evidence which is essential to support an indictment for a similar charge." Cook v. Field, 3 Esp. C. 133; Chalmers v. Shackle, 6 C. & P. 475; Willmott v. Harmer, 8 C. & P. 695. [Privilege: When a publication, libellous on its face, can only be excused or privileged on the ground that certain events happened, the answer must allege that these events did happen, in order to lay the foundation of the defence of privilege. Fry v. Bennett, 5 Sandf. 54; Buddington v. Davis, 6 How. Pr. 401.] (s) [See Watkin v. Hill, L. R. 3 Q. B. 396; Foss v. Hildreth, 10 Allen, 76, 79.] 9. Plea to a Libel on an Attorney. 10. The Like on a Medical Man. Edsall v. Russell, 4 M. & G. 1090. 11. Plea that Plaintiff did keep out of the Way to evade Process. Lay v. Lawson, 4 Ad. & E. 795. 12. That Plaintiff broke into Defendant's Cellar, and got drunk. Toogood v. Spyring, 1 C., M. & R. 184. 13. Plea justifying a Libel imputing Polygamy. 14. Plea of Justification in an Action by a Clergyman on the ground of the Truth of the Facts contained in the alleged Libel. Walker v. Brogden, 19 C. B. N. S. 65. (t) 15. Plea of Accord and Satisfaction. SLANDER OF TITLE. OBS. If the defendant make the statement contained in the declaration in relation to matters in which he is interested bonâ fide, and on reasonable grounds, he is not liable in an action for slander of title. Pitt v. Donovan, 1 M. & S. 639; Watson v. Reynolds, M. & M. 1. As to the truth of the libel being given in evidence under the general issue, see Watson v. Reynolds, ubi supra. Where the defendant stated that oil made by the plaintiff was inferior in quality to oil made by the defendant, and gave a feeble light, it was held that no action was maintainable. Young v. Macrae, 3 B. & S. 264; and see, ante, (t) In the same case a plea that a second letter was a fair comment upon facts set forth in a former letter was held bad. |