The authorities are not in harmony in regard to the question whether it is necessary that the charge, if true, would subject the accused to the danger of punishment, or Danger of punishment. whether the test in this particular (assuming that the imputation is otherwise actionable per se) is the degradation involved; but the weight of authority favours the latter as the test. Although, then, the charge imputes that the punishment has already been suffered, and hence cannot expose the plaintiff to the danger of punishment, the degradation involved in the (false) accusation renders the defendant liable. For example: The defendant says of the plaintiff, Robert Carpenter [the plaintiff] was in Winchester jail, and tried for his life, and would have been hanged had it not been for L, for breaking open the granary of farmer A, and stealing his bacon.' The defendant is liable1. Again: The defendant says of the plaintiff, 'He was arraigned at Warwick for stealing of twelve hogs, and, if he had not made good friends, it had gone hard with him.' The defendant is liable. Again: The defendant says of the plaintiff, 'He is a convict, and has been in the Ohio penitentiary.' The plaintiff is entitled to maintain an action, the words being false3.

Indeed it could not be right in any case to make it the test, that the imputation subjects the accused to danger of punishment, for an 'imputation' merely would not be likely to bring on punishment even if the accused were guilty'; and when the accused is innocent, as he must be to maintain an action c. 51 (1891), Slander of Women Act. But a charge of unchastity merely, not being indictable, is not actionable without proof of special damage. See Odgers, Slander and Libel, 90, 3rd ed. Among American cases--the English rule prevails in some States, and not in others, in regard to imputations against women-see Pollard v. Lyon, 91 U. S. 225; Loranger v. Loranger, 115 Michigan, 681; Robertson v. Edelstein, 104 Wisconsin, 440; Brown v. Nickerson, 5 Gray (Mass.) 1; Davis v. Carey, 141 Penn. St. 314; Brooker v. Coffin, 5 Johnson (New York), 188.

1 Carpenter v. Tarrant, Cas. Temp. Hardw. 339. The words were false.

2 Halley v. Stanton, Croke Car. 268. The words were false.

3 Smith v. Stewart, 5 Barr (Pennsylvania), 372. It would be otherwise if the words were true. Baum v. Clause, 5 Hill (New York), 199. A person is no longer a felon after suffering the punishment of felony; so that the fact that he was once a felon would not sustain a plea of the truth of a charge of felony. Leyman v. Latimer, 3 Ex. Div. 352.

4 See the rule in Lumby v. Allday, 1 Cr. & J. 301; s. c. 1 Tyrwh. 217 and 35 R. R. 715; Capital and Counties Bank, 7 App. Cas. 771, 772, Lord Blackburn.

for defamation, it is legally speaking impossible that the imputation should lead to punishment. The most that could be said is, that the imputation might perchance lead to an arrest and then possibly to a trial of the accused. It is enough then that the offence charged (being scandalous if a misdemeanor) is punishable, in the first instance, by imprisonment.

§ 5. IMPUTATION OF HAVING A CONTAGIOUS OR INFECTIOUS DISEASE OF A DISGRACEFUL KIND

Extension of common-law rule: ground of rule.

By the early common law a charge to come under this head must have been of the having the leprosy, or the plague, or the syphilis. At the present time the rule has come to be so far enlarged as to require the forbearance from publishing false accusations concerning another of the having any disease of a contagious or infectious nature involving disgrace. For example: The defendant falsely charges the plaintiff with having the gonorrhoea. This is actionable per se1.

This doctrine of law proceeds upon the ground that charges of such a kind tend to exclude a person from society; and the rule requires the charge to be made in the present tense. To accuse another of the having had a disgraceful disease is deemed not actionable without proof of special damage. For example: The defendant says of the plaintiff, 'She has had the pox.' The defendant is not liable though the charge be false, unless the plaintiff prove some actual damage2.

§ 6.

IMPUTATION AFFECTING THE PLAINTIFF IN HIS OFFICE,
BUSINESS, OR OCCUPATION

In order that an imputation may in law be said to affect a man injuriously under this head, and be actionable per se, it should have a natural tendency to harm him in his occupation. It is not enough that it may possibly so injure him. If it has not a natural

Natural tendency to

harm the test.

1 Watson v. McCarthy, 2 Kelly (Georgia), 57.

7 Man. & G. 334.

2 See Carslake v. Mapledoram, 2 T. R. 473.

See Bloodworth v. Gray,

tendency to injure him, that is, if it would not be the usual effect of the charge to injure the plaintiff in his occupation, as by causing discharge, the plaintiff cannot recover without proving special damage. For example: The defendant publishes of the plaintiff, a clerk to a gas-light company, the words, 'You are a disgrace to the town, unfit to hold your situation for your conduct with harlots. You are a disgrace to the situation you hold.' The plaintiff cannot recover without proof of actual damage, the language not having a natural tendency to cause the plaintiff's discharge from his employment1.

Defamation has a natural tendency to injure the plaintiff in his office, business, or occupation, within the meaning of the rule, in different ways, as when for instance it strikes at his qualification for the performance of the duties of the place, or alleges some misconduct or negligence in the course of transacting these duties, or business embarrassment or want of credit in the case of a merchant3. For example: The defendant charges the plaintiff, a clergyman, holding the office of vicar of a church, with incontinence. This is ground of an action. Again: The defendant says of the plaintiff, a lawyer, the words having relation to the plaintiff's professional qualifications, ' He is a dunce.' This may perhaps be treated as a breach of the defendant's legal duty to the plaintiff 5.

When the defamation complained of does not show on its face that it was published of the plaintiff in relation to his occupation, this must be made to appear; though even then, as has just been stated, the defamation will not be actionable unless it

1 Lumby v. Allday, 1 Cr. & J. 301; s. c. 1 Tyrwh. 217, and 35 R. R. 715. If the imputation had been of adultery, it would have been actionable per se, under the head of imputations of crime. And the law has been extended by statute in favour of married women. Slander of Women Act, 1891, 54 & 55 Vict. c. 51. Indeed the rule laid down in Lumby v. Allday-the natural tendency of the charge, a sound rule in itself-might well have been held enough, and as a new question perhaps now would be, to enable the plaintiff to recover. Capital and Counties Bank v. Henty, 7 App. Cas. 771, 772, Lord Blackburn. See Morasse v. Brocher, 151 Mass. 567, 576.

2 Lumby v. Allday, supra.

4 Gallwey v. Marshall, 9 Ex. 294. It is doubtful whether a court would now To call a lawyer a 'cheat' has been held Barr (Pennsylvania), 187. Further see Goodenow v. Tappan, 1 Ohio, 60.

3 McIntyre v. Weinert, 195 Penn. St. 52. 5 Peard v. Jones, Croke Car. 382. treat such a statement as actionable. actionable. Rush v. Cavenaugh, 2 Doyley v. Roberts, 3 Bing. N. C. 835; 6 Ayre v. Craven, 2 Ad. & E. 2.

B. T.

10

had a natural tendency to injure the plaintiff in his occupation, in the sense already explained. In cases however in which the imputation is alleged to have been made of the plaintiff in his occupation, when the same does not have the natural tendency mentioned, it may be shown by the plaintiff that the defamation was published under circumstances which bring the case within the rule of liability. But without such evidence the plaintiff must fail. For example: The defendant charges the plaintiff, as a physician, with incontinence. This does not imply disqualification, or necessarily professional misconduct; and, without evidence connecting the imputation with the plaintiff's professional conduct, he cannot recover1.

Servants.

If the imputation in itself come within the rule of liability under this head, it matters not that it was published of a servant, even one acting in a menial capacity. For example: The defendant falsely speaks the following of the plaintiff, a menial servant, before the latter's master, ‘Thou art a cozening knave, and hast cozened thy master of a bushel of barley.' The defendant is liable to the plaintiff2.

It is probably actionable to impute disqualification of a person holding a merely honorary or confidential office, not of

Honorary office.

emoluments. It certainly is so to impute to such

a person misconduct in the office. For example : The defendant says of the plaintiff, who holds a public office of mere honour, touching his office, 'You are a rascal, a villain, and a liar.' This is a breach of the duty under consideration3.

Exercise of vocation.

In all cases included under the present section, it is necessary that the plaintiff should have been in the exercise of the duties of the particular vocation at the time of the alleged publication of the defamation. For example: The defendant says of the plaintiff, who had been a lessee of tolls at the time referred to by the defendant,' He was wanted at T; he was a defaulter there.' The words are not actionable per se'.

1 Ayre v. Craven, 2 Ad. & E. 2. But see Morasse v. Brocher, 151 Mass. 567, 576. 2 Seaman v. Bigg, Croke Car. 480.

4 Id.

3 Onslow v. Horne, 3 Wils. 186.

5 Aston v. Blagrave, Strange, 617.

6 Bellamy v. Burch, 16 M. & W. 590; Gallwey v. Marshall, 9 Ex. 294. See Ritchie v. Widdemer, 59 New Jersey, 290.

7 Bellamy v. Burch, supra. Some of the old cases are contra, but they were

overruled.

§ 7. IMPUTATION TENDING TO DISINHERIT THE PLAINTIFF

If the words tend to impeach a present title of the plaintiff, the action, though commonly called an action for slander of title, is not properly speaking an action of slander; as has already been stated, such a case is ground for a special action, governed by rules of law distinct from those of defamation1.

Doubt in regard to such

cases.

Cases of actions for defamation tending to defeat an expected title are rare, and appear to have been confined to charges impeaching the legitimacy of birth of an heir-apparent. Such an imputation has been deemed actionable, as being likely to cause the plaintiff's disherison. But that is unsound doctrine, and has met with no favour in modern times. The reason is plain; the act complained of is no violation of any legal right, since the heir-apparent can have no legal right to the inheritance. The ancestor owns the estate, and may do as he will with it. Damage must be proved.

§ 8. IMPUTATION CONVEYED BY WRITING, PRINTING, OR THE LIKE; THAT IS, LIBEL

Definition of libel.

The preceding sections exhaust the possible heads of oral defamation, actionable per se; that is, of slander. Libellous defamation may also be conveyed in any of the four ways above considered; but it may also be conveyed in other ways. A libel is a writing, print, picture, or effigy, calculated to bring one into hatred, ridicule, or disgrace*. The wrong is a crime as well as a tort5.

The definition shows that the law of libel is of wider extent than that of slander. Many words when written or printed become actionable per se which, if they had been than slander. orally published, would not have been actionable

Libel wider

1 See ante, pp. 78-81.

2 Humphrys v. Stanfeild, Croke Car. 469.

3 Onslow v. Horne, 3 Wils. 188; Hoar v. Ward, 47 Vermont, 657.

4 On the vagueness of this definition a remark has been made, ante, p. 138, note.

5 See Kenny, Outlines of Criminal Law, 307.