"have it on authority." This is a usual excuse given in society newspapers, and by the propagators of social slander, but it is an illusory protection, and the only case where the mention of the informant or authority is available in justification is in mitigation of damages

in slander actions.

The remarks of Coleridge, C.J., in R. v. The World Newspaper (13 Cox's C. C. 307) may aptly be quoted in this connection: "A man who chooses to pick up every malignant bit of scandal which floats upon the surface of the scandal-loving part of society is responsible for it. It may be done without any desire to injure any one in particular, that is, without a desire to injure one more than another, but if he chooses to minister to the morbid taste of a certain portion of the public for scandal and slander, it is not enough to say that he hates no one in particular and has no design to injure anyone more than another. The purpose is to pick up anything by which to assail personal character merely because it is the taste of a certain portion of society."

An action may often be maintainable for words when written which might not lie if they were spoken (Thorley v. Lord Kerry, 4 Taunt. 385; Leicester v. Walter, 3 Camp.; De Crespigny v. Wellesley, supra; Cook v. Ward, 6 B.). Where writings are actionable and libellous see Digby v. Thompson (4 B. & Ad. 821), Fray v. Fray (34 L. J. Ch. 45), Haire v. Wilson (9 B. & C. 646).

As regards the privilege extended to and the protection afforded certain slanderous communications, the same principle rules as in libellous communications. All statements bonâ fide made in the performance of a duty, or with a fair reasonable purpose of protecting the interests of the person making them, or to whom

CASES OF ORAL SLANDER.

17

they are made, are protected (Somerville v. Hawkins, 10 C. B. 63).

Save these broad distinctions in the actions the principles are the same in libel and slander, and will be best understood when the two are considered together.

Calling a man a villain in a letter to a third party was held actionable, while it was not so if spoken (Bell v. Stone, 1 B. & P. 331). It is not so to call a person a gambler unless illegal gaming is meant (Forbes v. King, 2 L. J. Ex. 109); or a blackleg, without special damage (Barnett v. Allen, 3 H. & N. 370); or "a welcher" (Blackman v. Bryant, 27 L. T. 491); or a swindler, unless in reference to his trade (Black v. Hunt, 2 Ir. L. R. 10), but it is to call one a "convicted felon" (Leyman v. Latimer, 3 Ex. D. 352). A charge of immoral conduct, though not punishable by law, is actionable (Archbishop of Tuam v. Robeson, 5 Bing. 17). Here the prelate was charged with trying to procure the perversion, by preferment, of the Rev. Tom Maguire (a famous Irish Catholic priest), by the Morning Post. Best, C.J., in this case said that to support an oral slander something criminal must be imputed, but in a libel any tendency to bring a party into contempt or ridicule is actionable. Imputing unchastity to a woman without special damage is not actionable (Robertson v. Powell, 2 Selw. N. P. 1224; Roberts v. Roberts, 5 B. & S. 384). These typical cases, and others referred to incidentally, must suffice to illustrate the general principles guiding decisions as to what constitutes the offence of slander.

A distinction to be observed, however, between libel and slander is that in libel damage is always implied by law, whereas all descriptions of slander are actionable, with the exceptions mentioned, only on proof of special damage. In the averment the special

C

damage should be stated with sufficient particularity; thus, where it is alleged that the defendant falsely and maliciously spoke and published of the plaintiff the words following, that is to say (mentioning the particular words) the special damage should then be averred "whereby plaintiff lost his situation" as the case may be, &c. Where this need not be averred it is necessary to prove that (1) the plaintiff was charged with an offence punishable by law; or (2) that he suffered from some contagious disease or disorder excluding him from society; or (3) that the words were spoken in connection with his trade, office, calling, profession or avocation (Huckle v. Reynolds, 7 C. B. N. S. 114; Heming v. Power, 10 M. & W. 564; Edsall v. Russell, 4 M. & Gr. 1090; Curtis v. Curtis, 10 Bing. 447; Slowman v. Dutton, ib. 402; Tozier v. Mashford, 6 Ex. 539; Wadsworth v. Bentley, 23 L. J. Q. B. 3; Helsham v. Blackwood, 11 C. B. 111; Bloodworthy v. Gray, 7 M. & Gr. 334); all these refer to the first and second class. As to slander in connection with a man's calling (3) (Southee v. Denny, 1 M. 196; Barnett v. Allen, 3 H. & N. 376; Homer v. Taunton, 29 L. J. Ex. 318; Brown v. Smith, 13 C. B. 596; Rolin v. Steward, 14 C. B. 603; Bellamy v. Burch, 16 M. & W. 590; Griffiths v. Lewis, 7 Q. B. 61; Robinson v. Marchant, 7 Q. B. 918; Gallwey v. Marshall, 9 Ex. 294; Wilby v. Elston, 8 C. B. 142; Dixon v. Smith, 29 L. J. Ex. 125 ; Evans v. Harris, 1 H. & N. 251; Evans v. Harlow, 5 Q. B. 624; Ingram v. Lawson, 5 Bing. N. C. 66; Allsopp v. Allsopp, 29 L. J. Ex. 315; Tunnicliffe v. Moss, 3 Car. & K. 83; James v. Brook, 16 L. J. Q. B. 17). These last-mentioned cases refer to slanderous words spoken of tradesmen, clergymen, &c., and where special damage naturally flows from the slander. Where words are spoken or written depreciating the value of

DOCTRINE OF MAN AND WIFE IN LIBEL. 19

property and special damage ensues, they are also the subject of an action.

In Lemon v. Simmons (57 L. J. Q. B. 260) a curious point arose. The plaintiff was accused of robbing his own wife, and the question was if that charge were actionable. It was admitted that, if the parties were living apart since the Married Women's Property Act, such could take place, or if the husband took the money when about to leave or desert. The defence really was that the words did not therefore impute an indictable offence, and the jury found for plaintiff. Huddleston, B., on a motion for a new trial held for those reasons that the words were not actionable (4 T. L. R. 306). In Wenman v. Ash (13 C. B. 836), Maule, J., held that for the purpose of having the honour and feelings of a husband assailed and injured by acts done or communications made the old doctrine of man and wife being considered one did not hold, and that they were separate entities. In Wennhak v. Morgan and Wife (20 Q. B. D. 635), in an action for libel, the fact that the defendant disclosed the libel to his wife was held not to be evidence of publication, and in this case it was further ruled that maliciously defacing the written character of a servant by writing upon it disparaging statements is a case where plaintiff may recover substantial damages. Trumbull v. Gibbon (3 City Hall Recorder, 97) (an American case) was referred to by Huddleston, B., in Lemon v. Simmons. There the delivery of a libel to the wife was held not to be a publication. In Chamberlain v. Boyd (11 Q. B. D. 407) certain defamatory but not slanderous allegations were made by the defendant, in consequence of which it was stated that plaintiff was rejected from the club to which he sought membership, but there the Court held that the statement of claim did not show sufficient grounds for an

action, for the "words complained of were not actionable in themselves and disclosed no cause of action, and must be supported by special damage, and the damage sustained was not pecuniary, was incapable of being measured in money, and was not the natural and probable consequence of the words." As before explained, words imputing a criminal offence are actionable without special damage, and it is not necessary to allege in the statement of claim that they impute an indictable offence (Webb v. Beavan, 11 Q. B. D. 609). In Vicars v. Willcox (2 S. L. C. 563) it was ruled that the words for which an action is maintainable must have in common sense and reason some connection with the damage said to have ensued from them, and it is not enough that the unwarrantable caprice of some person has caused a damage to result from them which the speaker had no reason to apprehend. In Lynch v. Knight (9 H. L. C.) an important principle was ruled. There the action was not maintainable, because the loss or special damage relied upon was not "the natural and probable consequence of the injury complained of," that is, the speaking of the slanderous words. Yet in the case of the Société Française des Asphaltes v. Farrell (1 C. E. 563) the wrongful refusal of a third party to fulfil a contract was held to give a right to special damage for slander if such refusal were the probable consequence of the utterance of the words. Where a woman living apart from her husband brought an action for slander for words not actionable per se, and pleaded as special damage the loss of friends, credit and reputation, annoyance and an irreparable breach between herself and her husband, the deprivation of income and of a home, the Court of Appeal held that these results were not matters of special damage to give a cause of action (Weldon v. De Bathe, 54 L. J.