jury to say with what motive the paragraph was copied, and what was meant by the addition of the word fudge;" if that word were added only for the purpose of making an argument at a future day, it would not take away the effect of the libel.' And, accordingly, courts will take judicial cognizance of the meaning of words and idioms in the vernacular language, and no innuendo will be necessary to point out their meaning. But otherwise as to expressions which have not become idiomatic, such as "milk your purse," "bogus peddler," "shooting out of a leather gun."5

79. But absurd and ridiculous and preposterous charges that are impossible, and in the truth of which no rational person will believe, will not be held libelous. As, for instance, to charge that a woman had a litter of pups by a dog. Though the court will undoubtedly take into consideration the discrimination or common sense of the persons to whom the scandalous matter was communicated, or their peculiar relations to or dealings with the person slandered; as, for in

2

1 Hunt v. Algar, 6 C. & P. 245.

8

1 Greenl. Ev. § 5; 6 Vin. Ab. 491, Pl. 6, 7, 8; Tit. Court C.; Hoyle v. Cornwallis, 1 Stra. 387; Page v. Faucet, Cro. El. 227; Harvey v. Brand., 2 Salk. 626; Elam v. Badger, 23 Ill. 498; Forbes v. King, 1 Dowl. P. C. 672; Hoare v. Silverlock, 12 Adol. & Ell. N. S. 624; Homer v. Taunton, 5 Hurl. & Nor. 661; Edgar v. McCutchen, 9 Missouri, 768; Ashley v. Billington, Carth. 231; Vin. Abr. Act. for Words, S. a. 12.

* Pike v. Van Wormer, 6 How. Pr. 101; 5 Id. 175; and see Forbes v. King, I Dowl. 672.

6

" Harman v. Delaney, 2 Stra. 898.

Kennedy v. Gifford, 19 Wend. 296. This statement, however, was held to be libelous, upon other grounds. And see Fen. v. Dixe, Jo. 444, pl. 5; Harper v. Delph., 3 Ind. 225.

7 • Id.

8

Wyatt v. Gore, Holt, 299; Ward v. Smith, 6 Bing. 749; Keene v. Ruff 1 Clarke (Iowa), 482; Schenck v. Schenck, 1

stance, if they be spoken in a foreign tongue, it must be shown that the audience understood the foreign tongue.1

3

80. Not only the living but the dead can be subjects of libel. Although the person defamed be dead, the libel is, nevertheless, punishable; for it stirs up others of the same family, blood, or society, to revenge and to break the peace. The chief cause for which the law so severely punishes all libels is, says Hawkins, the direct tendency of them to a breach of public peace, by provoking the parties injured, and their friends and families to acts of revenge, which it would be impossible to restrain by the severest laws, were there no redress from public justice for injuries of this kind, which of all others are most sensibly felt. And so histories, biographies, or memoirs, published at long intervals after the death of their subjects, might be so scandalous and prurient as to be actionable; but, in such cases, the intent to libel must be proved.

4

5

It was held libelous to publish an obituary notice, as follows: "On Saturday evening died of the small-pox at his house in Grosvenor Square, Sir Charles Gaunter Nicoll, Knight of the Most Honorable Order of the Spencer, 208; Wenman v. Ash, 13 Com. B. 836; and see Mills v. Monday, Lev. 112; De La Croix v. Thevenot, 2 Stark. C. 63.

1 Amann v. Damm, 8 Com. B. N. S. 597. But where words are spoken in German, in a German county, it will be presumed they were understood (Bechtell v. Shaler, Wright, 107; and see 1 W. Saund. 242, n. 1; Keene v. Ruff, 1 Clarke [Iowa], 482; Danvers Abr. 146, pl. 1, 2; 2 Starkie on Slander, 52; Fleetwood v. Curley, Hob. 267; Viner's Abr., tit. Actions for Words, A. b.; 2 Stark. Ev. 844; Holt on Libel, 245; Cro. Eliz. 496, pl. 16).

4

2 P. C. Book 1, c. 28.

Co. 5, 124, C.

* See a query as to the somewhat celebrated Greville Memoirs, Albany Law Journal, March 13, 1875.

"Rex v. Topham, 4 T. R. 126.

Bath, and representative in Parliament for the town of Peterborough. He was blessed with an ample fortune, which he enjoyed in a manner that rendered him, in early years of life, a truly valuable husband and friend. He could not be called a friend to his country, for he changed his principles for a red ribbon, and voted for that pernicious project, the excise."1

In the case, however, of libels on the dead, the intention of the person, publishing must be shown to have been malevolent; for, to say that the conduct of a dead person can at no time be canvassed-to hold that, even after ages are passed, the conduct of bad men cannot be contrasted with the good-would, in the words of Lord Kenyon,2 be to exclude the most useful part of history; "and, therefore," said that learned judge, "it must be allowed that such publications may be made fairly and honestly. But let this be done whenever it may, whether soon or late after the death of the party, if it be done with a malevolent purpose, to vilify the memory of the deceased, and with a view to injure his posterity, as in Rex v. Critchley, then it comes within the rule stated by Hawkins; then it is done with a design to break the peace, and then it becomes illegal."

1 Rex v. Critchley, cited 4 T. R. 129.

2 Rex v Topham, 4 T. R. 129.

And so, again, it

Id. For the reasons thus stated by Lord Kenyon, the court of king's bench, in 1791, held bad, after a verdict of guilty, an indictment charging the defendant that he, "wickedly and maliciously contriving and intending to injure, defame, disgrace, and vilify the memory, reputation, and character of George Nassau Clavering, Earl Cowper, then deceased, and to cause it to be believed that the said earl in his lifetime was a person of a vicious and depraved mind and disposition, and destitute of filial duty and affection, and of all honorable and virtuous sentiments and inclinations, and that the said earl had

would be libelous to publish an obituary notice of one whom the author knew to be alive.1

81. Not only persons, but things, fall under the protection of the law of words. Properly speaking, perhaps, a thing has no rights to be invaded, and no claims to any particular duties from persons. But for all that, it may be quite possible to injure a person, by speaking disrespectfully of a thing.

"I am far from saying," said Chief Justice Cockburn,2 2 "if a man falsely and maliciously makes a statement disparaging an article which another manufactures or vends (although in so doing he casts no imputation on his personal or professional character), and led a wicked and profligate course of life, and had addicted himself to the practice and use of the most criminal and unmanly vices and debaucheries, &c., wickedly, maliciously, and unlawfully did print and publish, and cause to be printed and published, in a certain newspaper called 'The World,' a certain false, scandalous, and malicious libel of and concerning the said Earl Cowper, &c., to the great disgrace and scandal of the memory, reputation, and character of the said Earl Cowper; in contempt, &c.; to the evil example, &c., and against the peace, &c." The court made absolute a rule to arrest the judgment, because the indictment did not allege that the libel had been published with an intent to create any ill blood, or to throw any scandal on the family and posterity of Lord Cowper, or to induce them to break the peace in vindicating the honor of the family (4 T. R. 129).—Shortt.

2

1 McBride v. Ellis, 9 Rich. Law (S. C.), 313.

Young v. McCrae, 3 Best & Sur. 264; though the chief justice suggests, further on in the same case, that such an action, however, might be more in the class of actions for false representations than actions of libel (Snow v. Judson, 38 Barb. 212; Benton v. Pratt, 2 Wend. 385; White v. Merrit, 7 N. Y. 352; Gallager v. Brunel, 6 Cowen, 346; Swan v. Tappan, 5 Cush. 105; Ingram v. Lawson, 6 Bing. N. C. 212; 8 Scott, 471; Hamilton v. Walters, 4 Up. Can. Q. B. Rep. O. S. 24). In Yates' Pleadings & Forms, 436, is the form of a plea to a declaration for slander of the plaintiff's ship (Evans v. Harlow, 5 Q. B. 624; Malachy v. Roper, 3 Bing. N. C. 371; 3 Scott, 723; Kerr v. Sheddon, 4 C. & P. 528).

thereby causes an injury and special damage is averred, an action might not be maintained."

A man may very naturally be injured by slandering his wares; as if, for instance, he be a manufacturer of those wares (possibly not if he merely sold them— since he could easily keep others not open to the disparagement). But if a book be unfairly criticised it may be libelous of its author, as we shall see presently in this chapter, and as will be further illustrated in the chapter on newspapers.

The rule will be, that whenever disparaging words spoken of an article become injurious to the owner or producer of the article, the ordinary rules of libel may be invoked by the person injured. But in all such cases, undoubtedly, a special damage must be shown.

One form in which a slander of things is of frequent occurrence and well known to the law, is what is technically spoken of as "slander of title." Slandering of title consists in publishing language not of a person or of a thing, but of a person's right to a thing, whether the publication be written or spoken,1 there being no such thing as a libel of title; and such slander, to be actionable, must be malicious, false, and be productive of special damage.

Malachy v. Roper, 3 Bing. N. C. 371; 3 Scott, 723

2 Like v. McKinstry, 41 Barb. 186; aff'd, 4 Keyes, 397; Kendall v. Stone, 5 N. Y. 14, rev'g S. C., 2 Sandf. 269. There must be malice which the plaintiff must prove (Smith v. Spooner, 3 Taunt. 246; Hill v. Ward, 13 Ala. 310; Stark v Chetwood, 5 Kansas, 141; McDaniel v. Baca, 2 Cal. 326; Hargrave v. Le Breton, 4 Burr. 2422; § 87, ante; Linden v. Graham, 1 Duer, 670; Bailey v. Dean, 5 Barb. 297; Watson v. Reynolds, 1 Mo. and Malk. 1; Paull v. Halferty, 63 Penn. 46, and note 2, p. 315, post; re, Madison Ave. Bapt. Church, 26 How. Pr. 72).

Kendall v. Stone, 5 N. Y. 14; Paull v. Halferty, 63 Penn. 46.