cution is an action for damages, which may be brought against any one who commences or procures another to commence such prosecution. Public officers, however, who are charged with the duty of bringing such prosecutions, will be held liable only upon very clear proof of malice.

The damages recoverable may be for all expenses, including attorney's fees in the proceeding complained. of, suffering mental and physical, loss of time and business, injury to property, injury to reputation and honor, and the loss of social position. Where the prosecution was with great malice or other aggravated circumstances, exemplary or punitive damages may be allowed in addition to the compensatory damages. By way of mitigation of the damages it may be shown that the plaintiff had a bad character, that his conduct was such as to arouse suspicion, that any reasons for probable cause existed though insufficient to establish it; also anything that goes to rebut malice. But exemplary damages can not be recovered where the acts complained of are punishable criminally.

§ 78. Definition of defamation.-Defamation is a false statement or communication to the mind of a third party which either subjects a person to public ridicule, contempt, hatred or disgrace, or which tends to injure him in his office, calling, business, trade or profession.

§ 79. The right to reputation. The theory upon which an action is given for defamation is that the person was entitled to a good reputation, that a false statement was maliciously made affecting the reputation, and that damages resulted therefrom. Although upon general principles the plaintiff is bound to affirmatively establish all of the elements constituting his cause of action, it

would, in nearly all cases of defamation, be found highly inconvenient to enforce such principles strictly. For, the nature of the charge may be such that no evidence is attainable as to its truth or falsity; or, it may be impossible to expressly show the damage done; or, a stranger in the community, having acquired no reputation as yet, could prove no actual damage, and might be wholly unable to show how he would be actually damaged in the future. Taking into consideration these difficulties, and to the end that justice may not miscarry, the law aids the person defamed by making certain presumptions in his favor and throwing the burden upon the wrongdoer to produce evidence to justify or excuse himself. Therefore, in the absence of evidence, the law presumes: (1) That every one has a good reputation. (2) That every charge against reputation is false. (3) That every false charge is maliciously made. (4) Where injury would naturally result, that it has actually resulted.

§ 80. Libel and slander. The law divides defamations into two classes. False defamatory words, if written and published, constitute libel; if published orally, slander. Libel is communicated through the medium of eyesight; slander through the medium of hearing. By reason of the permanent and deliberate character of libel, it is regarded as of a more aggravated nature than a mere slander, which may be spoken in heat and excitement, and may be more easily effaced from the memory of the hearers.

While there is much that is common to both libel and slander, there are some points in which they radically differ. It will be convenient to consider each separately, in so far as they are variant, and afterwards to note the principles common to both.

§ 81. Slander.-False defamatory words spoken of a person are actionable: (1) Where they charge an indictable offense, which involves moral turpitude or would subject the person to an ignominious punishment. (2) Where they charge a person with having a contagious or infectious disease, tending to exclude him from society. (3) Where they are spoken of a person in the way of his office, trade or profession. In these three classes, and no others, the law presumes without proof that the reputation has been injured. They are said to be actionable per se. (4) This leaves a fourth class, in which the charge is such that damages can not be said to be the usual and natural result, and therefore the law does not presume them, but requires the person injured to allege and prove the special damages suffered.

§ 82. Slander imputing crime.-It is necessary that the acts charged be such as are indictable. If not indictable, the charge is not actionable per se under this class, unless so declared to be by statute.

By ignominious punishment is meant any corporeal punishment, as death, whipping or imprisonment. Punishment by fine only is not deemed ignominious. But if the penalty be in the alternative, by fine or imprisonment, the offense is punishable ignominiously.

What does and what does not involve moral turpitude, it is not easy to define. When the case arises, it is usually clear. It may be stated to be whatever is shocking to the moral sense of the community. Slander imputing such offense is actionable per se, even though the offense be punishable by fine only.

Where crime is charged, it is immaterial whether it be stated that the party has been punished for such crime, or that he is guilty and liable to be punished. If false, the charge is equally actionable per se.

Proper to be included in this class are certain charges which are declared by statute to be actionable per se, in the same manner as charges of crime. These are usually charges affecting the chastity of a woman, and charges of certain disgraceful acts by either a man or a woman. In some states the charge of unchastity against a man is also made actionable per se.

The imputation of crime need not be in language that technically describes the crime. It is sufficient if the words were meant and understood to convey such imputation.

§ 83. Slander imputing disease. The diseases intended by this class are such as are loathesome or involve moral disgrace. A charge that one has the small-pox is, however, not deemed to be actionable per se. It is essential that the disease be charged as existing at the time. If the statement be made in the past tense, it is not actionable per se under this class.

§ 84. Slander affecting one in his office, profession or trade. It is essential that the occupation be one that is recognized by the law as legitimate, and that the slander touch one in the capacity of his occupation. Hence it is not actionable per se to say of a gambler that he cheats in cards. But it is actionable per se to say of an attorney that he disclosed professional communications; of a clergyman that he is a drunkard; of a physician that he is guilty of malpractice; of a judge that he takes bribes; of a mechanic that he is incompetent. It is also essential that the charge be made while the person is holding or pursuing the occupation. If made after

ward it is not actionable per se.

§ 85. Slanders actionable only by reason of spe