broader principle that he that hinders another in his trade or livelihood is liable to an action for so hindering him" (i), subject, of course, to the exception that no wrong is done by pursuing one's own trade or livelihood in the accustomed manner though loss to another may be the result (k) and even the intended result (1). Historically both this principle and that of Lumley v. Gye (m) are developments of the old "per quod servitium amisit;" but in the modern law they depend on different and much wider reasons, and raise questions which are not technical but fundamental. We shall therefore deal with them not

here but under another head.

(i) Keeble v. Hickeringill (1705), 11 East, 574 n. Cp. Select Civil Pleas, vol. 1, pl. 106.

(k) 11 East, 576; supra, p. 174.

(1) Mogul Steamship Co. v. McGregor

(1889), 23 Q. B. Div. 598, 58 L. J. Q. B. 465, H. L. Dec. 1891.

(m) 2 E. & B. 216, 22 L. J. Q. B. 463 \(1853).

286

CHAPTER VII.

DEFAMATION.

Civil and criminal jurisdiction distinguished. Reputation and honour are no less precious to good men than bodily safety and freedom. In some cases they may be dearer than life itself. Thus it is needful for the peace and well-being of a civilized commonwealth that the law should protect the reputation as well as the person of the citizen. In our law some kinds of defamation are the subject of criminal proceedings, as endangering public order, or being offensive to public decency or morality. We are not here concerned with libel as a criminal offence, but only with the civil wrong and the right to redress in a civil action; and we may therefore leave aside all questions exclusively proper to the criminal law and procedure, some of which are of great difficulty (a).

Slander and libel distinguished. The wrong of defamation may be committed either by way of speech, or

(a) Such as the definition of blasphemous libel, and the grounds on which it is punishable.

Slander. Slander is "oral defamation, the speaking of false and malicious words concerning another, whereby injury results to his reputation." Black's Law Dic., p. 1101. See Achorn v. Piper, 66 Ia. 694; McKee v. Wilson, 87 N. C. 300. Kedrolivansky v. Niebaum, 70 Cal. 216; Williams v. Karnes, 4 Humph. 11; Dawson v. Holt, 11 Lea, 583; 47 Am. Rep. 312; Widrig v. Oyer, 13 Johns. 124; Goodrich v. Hooper, 97 Mass. 1; Wonson v. Sayward, 13 Pick. 402; Georgia v. Kifford, 45 Ia. 48; and authorities cited post.

Libel. Several American cases define libel concisely and in substantial conformity to the text. The following are examples:

46 Any publication is a libel which tends to degrade, injure or bring

by way of writing or its equivalent. For this purpose it may be taken that significant gestures (as the finger-language of the deaf and dumb) are in the same case with audible words; and there is no doubt that drawing, printing, engraving, and every other use of permanent visible symbols to convey distinct idea, are in the same 'case with writing. The term slander is appropriated to the former kind of utterances, libel to the latter. Using the terms" written " and "spoken" in an extended sense, to include the analogous cases just mentioned, we may say that slander is a spoken and libel is a written defamation.

a person into contempt and ridicule; or accuse him of a crime or other act odious and disgraceful." Smart v. Blanchard, 42 N. H. 151.

"A malicious defamation of any person, made by either printing, writing, signs or pictures, in order to provoke wrath, or expose him to public hatred, contempt or ridicule." Root v. King, 7 Cow. 620.

"Any malicious publication, written, printed or painted, which by words or signs, tends to expose a person to contempt, ridicule, hatred or degradation of character is a libel." Neeb v. Hope, 111 Pa. St. 145. See Huse v. Inter-Ocean Co., 12 Ill. App. 627; Bergman v. Jones, 94 N. Y. 51; Dexter v. Spear, 4 Mass. 115; Torrance v. Hurst, 1 Miss. 403; Armentrout v. Moranda, 8 Blackf. 426; Obaugh v. Finn, 4 Ark. 110; Fonville. McNease, Dudley (S. C.), 303; 31 Am. Dec. 556; Wiel v. Israel, 42 La. An. 955; 8 So. Rep. 826; Republican Pub. Co. v. Miner (Colo. App.), 34 Pac. Rep. 485; Buckstaff v. Viall (Wis.), 54 N. W. Rep. 111; Winchell v. Argus Co., 69 Hun, 354; 23 N. X. S. Rep. 650; Hart v. Evening News Assoc., 94 Mich. 114; 53 N. W. Rep. 952; Id. 94 Mich. 119; 54 N. W. Rep. 266; Keemle v. Sass, 54 Mo. 99; Legg v. Dunleavy, 80 Id. 563; Nelson v. Musgroove, 10 Id. 648; Hillhouse v. Dunning, 6 Conn. 407; Adams v. Lawson, 17 Gratt. 250; 94 Am. Dec. 456; Tillson v. Robbins, 68 Me. 295. See also, the authorities cited under the special divisions of the subject in the American notes to this chapter.

Slander and libel, distinguished. False defamatory words, if written and published, constitute a libel; if spoken a slander. Steele v. Southwick, 9 Johns. 214; 1 Am. Lead. Cas. 106; Lansing v. Carpenter, 9 Wis. 540; 76 Am. Dec. 281; Layton v. Harris, 3 Harr. (Del.) 406.

The American authorities concur with the English in holding that the distinction between verbal and written slander is well defined and estab lished. In the case of Hillhouse v. Dunning (6 Conn. 408), the court said, "the law of libel makes a material difference between words spoken and words written. To be actionable the former must tend to

The law has made a great difference between the two. Libel is an offence as well as a wrong, but slander is a civil wrong only (b). Written utterances are, in the absence of special ground of justification or excuse, wrongful as against any person whom they tend to bring into hatred, contempt, or ridicule. Spoken words are actionable only when special damage can be proved to have been their proximate consequence, or when they convey imputations of certain kinds.

No branch of the law has been more fertile of litigation than this (whether plaintiffs be more moved by a keen sense of honour, or by the delight of carrying on personal controversies under the protection and with the solemnities

(b) Scandalum magnatum was, and in strictness of law still might be, an exception to this: Blake Odgers, Digest of

the Law of Libel and Slander, 134 - 137. Mr. Odgers has not found any case after 1710.

bring a man into danger of punishment, exclude him from society, or injure him in his reputation; but it is enough, if the latter induce an ill opinion to be had of the party; or make him contemptible and ridiculous."

In the case of Colby v. Reynolds (6 Vt. 493; 27 Am. Dec. 576), the doctrine was announced as follows: "A distinction has long been known and recognized between verbal and written slander. Words, when committed to writing and published, are considered as libelous, which if only spoken, would not subject the person speaking to any action. Perhaps it is to be regretted that a distinction was ever made between oral and written slander; and if it was a new question, no distinction would now be made. The reasons which have been given for the distinction, have been questioned both by writers and judges of eminence. It has been made, however, and become a part of the law, and as such we must receive it. There can be no question, but that a slander written and published, evinces a more deliberate intention to injure, is calculated more extensively to circulate the accusation, and to provoke the person accused, to take the means of redress in his own hands, and thus commit a breach of the peace, than mere oral slander which is spoken and soon forgotten." See Tillson v. Robbins, 68 Me. 299; Stow v. Converse, 3 Conn. 325; Hake v. Brames, 95 Ind. 162; Cary v. Allen, 39 Wis. 487; Armentrout v. Moranda, 8 Blackf. 426; Allen v. News. Pub. Co., 81 Wis. 120; 50 N. W. Rep. 1093; Manner v. Simpson, 13 Daly, 156; Shelton v. Nance, 7 B. Mon. 128; White v. Nichols, 3 How. 266; Dexter v. Spear, 4 Mason, 115.

of civil justice), nor has any been more perplexed with minute and barren distinctions. This latter remark applies especially to the law of slander; for the law of libel, as a civil cause of action, is indeed overgrown with a great mass of detail, but is in the main sufficiently rational. In a work like the present it is not possible to give more than an outline of the subject. Those who desire full information will find it in Mr. Blake Odgers' excellent and exhaustive monogroph (c). We shall, as a rule, confine our authorities and illustrations to recent cases.

1.- Slander.

When slander is actionable. Slander is an actionable wrong when special damage can be shown to have followed from the utterance of the words complained of, and also in the following cases :

Where the words impute a criminal offence.

Where they impute having a contagious disease which would cause the person having it to be excluded from society.

Where they convey a charge of unfitness, dishonesty, or incompetence in an office of profit, profession, or trade, in short, where they manifestly tend to prejudice a man in his calling.

Spoken words which afford a cause of action without proof of special damage are said to be actionable per se; the theory being that their tendency to injure the plain

(c) A Digest of the Law of Libel and Slander, etc. By W. Blake Odgers, London, 2nd ed. 1887. Part IV. of Mr. Shortt's "Law relating to Works of

What slander is actionable.

Literature and Art" (2nd ed. London, 1884), may also be usefully consulted: but this does not cover the whole ground.

In the case of Pollard v. Lyon (91 U. S. 226), the court makes substantially the same classification of actionable slander as that of the text.