50. Not only will the common law restrain the dissemination of such libellous matter by injunction, and allow to the party injured his action for damages sustained by reason thereof, but it may, and often does, also proceed criminally against the offender, for his offense against the state.'

1

Sampson was careful to inquire the law, before he committed himself:

"Abram.-Do you bite your thumb at us, sir? Sampson. Is the law on our side if I say—ay? Gregory.—No.

'Sampson.-No, sir; I do not bite my thumb at you, sir, but I bite my thumb.""

And it is well that the writer should clearly comprehend the law and the definition of slander, before he sends his manuscript to his publisher. For libel is slander written or printed; and while the law sometimes hesitates to find premeditation and malice in the spoken word, it cannot forbear to recognize deliberation in the work printed and published and given to the world.

3

1 The action for slander was one of the inferior actions of which the early English courts of Piepoudre had jurisdiction (Jacobs' Law Dict., tit. Court of Piepoudres). Slander is not, like libel, an indictable offense (Bailey v. Dean, 5 Barb. 297). Nor is a single precedent of any criminal proceeding for unwritten imputations upon the characters of individuals, to be found, except in cases of high treason, . . . . and it must have been as constituting rather an offense against the government, than an injury to the individual, and being, therefore, seditious, that words reflecting on a magistrate in the immediate execution of his office were for the first time in the reign of Queen Anne held to be indictable (Reg. v. Langley, 2 Ld. Raym. 1060; Holt R. 654). But I am not aware that Mr. Starkie has adverted to this case, or to the doctrine which is laid down in it (1 Mence on Libel, 90).

2 Romeo & Juliet, i. 1.

3

It seems to have generally been-though perhaps questioned in later cases (see remarks of Mansfield, Ch. J., in

51. "There is nothing in nature," said a learned judge, “but may be an instrument of mischief," and any vehicle in which thought may be expressed, if that thought be defamatory of an individual, may become a means of injury, and, therefore, libelous. Thus, words. spoken, written, printed, marked, or formed with pen or pencil, graver, stylus, or set up in type, or formed in or with any material or pigment, as lead, chalk, ink, paint, or on any surface or substance such as parchment, paper, cloth, wood, or any metal, such as copper or steel, or on stone, or on a wall, or post, or tree, may become libelous. And so, too, may be any picture, statue, or any gesture, sound, such as ringing bells, firing guns, beating drums, clapping hands, hooting," or sign, which it is possible for human ingenuity to conceive of or express.

6

The conceiving of a thought injurious to one's neighbor, the law cannot reach. The act of commu

Thorley v. Lord Kerry, 4 Taunt. 364, and of Best, Ch. J., in Tuam v. Robinson, 5 Bing. 51; Holt's Law of Libel, p. 75; Penal Code of N. Y., § 309; Fisher v. Clement, 10 B. & C. 472)-the policy of the law to regard with much greater leniency slanderous and defamatory words spoken in the heat of passion, than slanderous and defamatory words which are written down in black and white; for the writing of such words implies deliberation and malice in the writer.

1

1 Pratt, Ch. J., in Chapman v. Pickersgill; 2 Wils. 145. "Sanderson v. Jackson, 2 Bos. & Pul. 238; Henshaw v. Foster, Pick. 318.

3

4

Geary v. Physic, 5 B. & C.238; Classon v. Bailey, 2 Johns. 484. Austin v. Culpepper, Skin. 123; Show. 314.

5 Martin v. Nutkin, 2 P. Wms. 266; Soltan v. De Held, 2 Sim. N. S. 133; 16 Jur. 326; First Bap. Ch. v. Sch. R. R. Co., 5 Barb. 79; Tarleton v. McGawley, Peake's Cas. 205; Moshier v. Utica & Sch. R. R. Co., 8 Barb. 427; Cole v. Fisher, 11 Mass. 137; Loubz v. Hafner, 1 Dev. 185; Gregory v. Brunswick, 6 M. & G. 953; Trustees, &c., v. Utica, &c., 6 Barb. 313; Davidson v. Isham, 1 Stock. 186.

nicating that thought, however, by any of the above means, the law can reach, and will punish.

2

On the trial of Algernon Sidney, the prisoner inquired, "And is writing an act ?" to which Lord Jeffries replied: "Yes, it is agere."" So any representation, even if that representation be conveyed in the exercise of one's legitimate duty and calling, if its effect be to raise a presumption or create an impression injurious to another's reputation in his business or social relation, if the impression be erroneous in fact, will be defamatory and actionable. So where a banker, having sufficient funds in hand belonging to his customer, dishonors that customer's check, he is liable to an action for damages." And where a notary protested a note for non-payment, without having previously presented the note to and demanded payment of the maker, he was held liable in an action for the damage thereby occasioned to the reputation of the maker.3 Or any act otherwise legitimate or permissible under the circumstances, which happens to convey an erroneous impression as to the business or social standing of another. So where defendants, by causing plaintiff's goods to be seized on an unfounded claim for debt, occasioned his customers to think him insolvent,* and in trespass for breaking and entering plaintiff's. dwelling, upon false charge of having stolen property concealed therein, per quod she was injured in her credit, it was held that the jury might give damages as aggravated by the false charge."

i Townshend on Slander and Libel, p. 58; Scribere est agere. People v. Rathbun, I Wend. 509, 540; Robinson v. Marchant, 7 Q. B. 918; and see Marzetti v. Williams, 1 B. & A. 415. 2 Robinson v. Merchant, 7 Q. B. 918; and see Marzetti v. Williams, I B. & A. 415.

3

3 Townshend on Slander and Libel, p. 58.

Bracegirdle v. Oxford, 2 Maule & Selw. 77. (See Jeffries

These are all acts which tend to raise scandal . . by which one is affronted in public' as to his business standing. The law will also protect social standing. So where a woman, "maliciously intending to marry the plaintiff, did often affirm that she was sole and unmarried, and importuned et strenue inquisivit the plaintiff to marry her; to which affirmation he gave credit, and married her, when in acto she was wife of the defendant, so that the plaintiff was much troubled in mind, and put to great charges, and damnified in his reputation," an action against the woman and her real husband was held to lie.2

Words occasioning any particular loss by prefer

v. Duncombe, 11 East, 226; Spall v. Massey, 2 Stark. Cas. 559.) Perhaps the most ingenious method by which a legitimate and ordinary transaction was ever employed to communicate a libel, is that mentioned by Hazlitt, in his "Essay on Wills" (see "London Quarterly Review," October, 1860): "A wealthy nobleman hit upon a still more culpable device for securing posthumous ignominy. He gave one lady of rank a legacy, 'by way of compensation for injury he feared he had done her fair fame'; a large sum to the daughter of another, a married woman, 'from a strong conviction that he was the father'; and so on, through half a dozen more items of the sort, each leveled at the reputation of some one from whom he had suffered a repulse-the whole being nullified (without being erased) by a codicil." A court of probate, however, would probably order the omission of such offensive matter from the record (Re Honywood, Law Rep. II., Prob. & Div. 251; Re Wartnaby, 1 Rob. Ecc. 423; Curtis v. Curtis, 3 Add. 33; Marsh v. Marsh, 1 Sw. & Tr. 528). And an attorney's bill may be so worded as to be libelous: Where defendant delivered a bill headed, "Relative to your defalcations," which phrase was repeated in several parts of the bill; in an action for libel thereby, it was claimed that the bill, having been delivered under a judge's order, was a legal proceeding, and privileged, but it was ruled otherwise, and plaintiff had a verdict (Bruton v. Downes, 1 Fost. & F. 668).

1

Jacob's Law Dict., tit. Scandal.

2 Beaumont v. Reeve, 8 Adol. & Ell. 483; 1 Siderfin, 375.

3

ment in marriage,' or service, or by disinheritance, will be especially actionable." Formerly the condition in life of the person spoken of, materially affected the construction, and words concerning "great men of the realm" were actionable, which would not have been, if published concerning private persons. Such words constituted scandalum magnatum. In the United States no such distinction of persons exists."

5

1 But where the plaintiff alleged that in consequence of the words he (the plaintiff) refused to marry his betrothed, and so he lost his marriage-it was held that, under the circumstances, no special damage was shown (Carter v. Smith, Vin. abr. Act. for Words, D. a. 12; Reston v. Pomfreicht, Cro. Eliz. 639; Shepherd v. Wakeman, Sid. 79; Anon., Mar. 2, Wicks v. Shepherd, Cro. Car. 155; Nelson v. Stapz, Cro. Jac. 422; Southold v. Johnston, Cro. Car. 269; Moody v. Baker, 5 Cow. 351.

2 Swadling v. Tarpley, app. to Townshend on Slander and Libel, 2d ed.; Knight v. Gibbs, 3 Nev. & M. 461; 1 Adol. & L. 43.

3

See, however, a case where the plaintiff alleged that, by reason of the publication, he had incurred the ill-will of his mother-in-law, who had previously promised him £100, and it was held that no cause of action was shown (Harris v. Porter, Curt. 1).

Where plaintiff alleged that she was a single woman, and chaste, and that her mother meant to give her £150, and her brother £100, and that, by reason of the defendant's charging her with incontinence, they did not give her these sums, it was doubted if the action was maintainable (Bracebridge v. Watson, Lily. Ent. 61; and see Townshend on Slander and Libel, §§ 198-205).

* Or which occasion any particular damage (Introduction to the Law Relative to Trials at Nisi Prius. By a Learned Judge [Lord Bathurst]. Vol. I., p. 3).

5 Townshend on Slander and Libel, § 138; Barrington on Penal Statutes; 3 Reeve's Hist. of the Common Law. (See note to § 182). Secundem gradum dignitatis, &c., was the rule of the Roman law, and is the rule in Scotland and France (Borthwick on Libel, 176, 177 n., Inst. Lib. IV., tit. 4; Code Criminel, tit. 111, art. 1; Black. Com., bk. iii. ch. 7, §5; Selwy's N. P. 1155.