404. Malicious arrest on civil process. Stribler v. Jones, 1 Lev. 276; Daw v. Swain, 1 Sid. 424; Parker v. Langley, Gilb. 163, 10 Mod. 209, S. C.; Goslin v. Wilcock, 2 Wils. 302; Sinclair v. Eldred, 4 Taunt. 7; Pierce v. Street, 3 B. & Ad. 397; Cozer v. Pilling, 4 B. & C. 26; Saxon v. Castle, 6 A. & E. 652; Roret v. Lewis, 5 D. & L. 371; Medina v. Grove, 10 Q. B. 152; Daniels v. Fielding, 16 M. & W. 200 (semble, see Clerk & Lindsell, Torts, 5 ed. 683); Moore v. Guardner, 16 M. & W. 595 (semble); Ross v. Norman, 5 Ex. 359; Ventress v. Rosser, 73 Ga. 534; Joiner v. Ocean Co., 86 Ga. 238; Cardival v. Smith, 109 Mass. 158; Hamilburgh v. Shepard, 119 Mass. 30; Cotter v. Nathan & Hurst Co., 218 Mass. 315; Stanfield v. Phillips, 78 Pa. St. 73; Emerson v. Cochran, 111 Pa. St. 619; Ward v. Sutor, 70 Tex. 343.

Malicious holding to bail. Steer v. Scoble, Cro. Jac. 667; Berry v. Adamson, 6 B. & C. 528; Small v. Gray, 2 Car. & P. 605.

Malicious seizure of property on civil process. Sanders v. Powell, 1 Lev. 129, 1 Sid. 183, 1 Keb. 603, S. C.; Craig v. Hasell, 4 Q. B. 481; Medina v. Grove, 10 Q. B. 152; Redway v. McAndrew, L. R. 9 Q. B. 74; Kirksey v. Jones, 7 Ala. 622; Vesper v. Crane Co., 165 Cal. 36; Juchter v. Boehm, 67 Ga. 534; Wilcox v. McKenzie, 75 Ga. 73; Lawrence v. Hagerman, 56 Ill. 68; Spaids v. Barrett, 57 Ill. 289; Western Co. v. Wilmarth, 33 Kan. 510; Wills v. Noyes, 12 Pick. 324; Savage v. Brewer, 16 Pick. 453; O’Brien v. Barry, 106 Mass. 300; Bobsin v. Kingsbury, 138 Mass. 538; Grant v. Reinhart, 33 Mo. App. 74; Smith v. Smith, 56 How. Pr. 316; Jaksich v. Guisti, 36 Nev. 104; Tyler v. Mahoney, 166 N. C. 509; Fortman v. Rottier, 8 Ohio St. 548; Sommer v. Wilt, 4 S. & R. 19; Mayer v. Walter, 64 Pa. St. 283.

Malicious replevin. O’Brien v. Barry, 106 Mass. 300; McPherson v. Runyon, 41 Minn. 524; Martin v. Rexford, 170 N. C. 540.

Malicious issue of an injunction. Munce v. Black, 7 Ir. C. L. R. 475; McFarlane v. Garrett, 3 Pennewill, 36; Landis v. Wolf, 206 Ill. 392; Krzyszke v. Kamin, 163 Mich. 290; Manlove v. Vick, 55 Miss. 567; Burt v. Smith, 84 App. Div. 47; Coal Co. v. Upson, 40 Ohio St. 17; Hess v. German Co., 37 Or. 297; Batson v. Paris Co., 73 S. C. 368; Powell v. Woodbury, 85 Vt. 504; Williams v. Ainsworth, 121 Wis. 600 (semble).

Malicious procurement of the execution of a search warrant. Cooper v. Booth, 3 Esp. 135, S. C. 1 T. R. 535 (cited); Elsee v. Smith, 2 Chit. R. 304, 1 D. & R. 97, S. C.; Wyatt v. White, 29 L. J. Ex. 193; Carey v. Sheets, 60 Ind. 17, 67 Ind. 375; Whitson v. May, 71 Ind. 269; Olson v. Tvete, 46 Minn. 225; Miller v. Brown, 3 Mo. 94; Boeger v. Langenberg, 97 Mo. 390.

Malicious garnishment. King v. Yarbray, 136 Ga. 212; Lopes v. Connolly, 210 Mass. 487.

Levy of execution under fraudulent judgment. Atlanta Ice Co. v. Reeves, 136 Ga. 294.

See also Hope v. Evered, 17 Q. B. Div. 338; Lea v. Charrington, 23 Q. B. Div. 45; Utting v. Berney, 5 T. L. Rep. 39.

405. Only the opinion of the court on this point is given.

406. Savile v. Roberts, 1 Ld. Ray. 374; Purton v. Honnor, 1 B. & P. 205; Cotterell v. Jones, 11 C. B. 713; Quartz Co. v. Eyre, 11 Q. B. Div. 674; Ray v. Law, Pet. C. C. 207; Tamblyn v. Johnston, 126 Fed. 267, 270; Mitchell v. South Western Co., 75 Ga. 398 (but see Slater v. Kimbro, 91 Ga. 217); Smith v. Mich. Co., 175 Ill. 619; Bonney v. King, 201 Ill. 47; McCormick v. Weber, 187 Ill. App. 290; Smith v. Hintrager, 67 Ia. 109; Cattle Co. v. Nat. Bank, 127 Ia. 153, 158; White v. International Text Book Co., 156 Ia. 310; Cade v. Yocum, 8 La. Ann. 477; McNamee v. Mink, 49 Md. 122; Sup. Lodge v. Unverzagt, 76 Md. 104 (see Clements v. Odorless Co., 67 Md. 461); Woodmansie v. Logan, 1 Penningt. 93; Potts v. Imlay, 1 South. 330; State v. Meyer, 40 N. J. Law, 252; Ely v. Davis, 111 N. C. 24 (semble); Terry v. Davis, 114 N. C. 31; Carpenter v. Hanes, 167 N. C. 551; Cincinnati Co. v. Bruck, 61 Ohio St. 489 (explaining Pope v. Pollock, 46 Ohio St. 367); Kramer v. Stock, 10 Watts, 115; Mayer v. Walter, 64 Pa. St. 283; Muldoon v. Rickey, 103 Pa. St. 110; Emerson v. Cochran, 111 Pa. St. 619, 622; Michell v. Donanski, 28 R. I. 94, 97 (semble); Smith v. Adams, 27 Tex. 28; Johnson v. King, 64 Tex. 226; Nowotny v. Grona, 44 Tex. Civ. App. 325; J. Calisher Co. v. Bloch, (Tex. Civ. App.) 147 S. W. 683; Abbott v. Thorne, 34 Wash. 692; Luby v. Bennett, 111 Wis. 613 (semble); Cross v. Comm. Agency, 18 N. Zeal. L. R. 153 Accord.

Burnap v. Albert, Taney, 244; Cooper v. Armour, 42 Fed 215, 217; Wade v. Nat. Bank, 114 Fed. 377; Eastin v. Stockton Bank, 66 Cal. 123; Berson v. Ewing, 84 Cal. 89; Hoyt v. Macon, 2 Col. 113 (semble); Whipple v. Fuller, 11 Conn. 582; Wall v. Toomey, 52 Conn. 35; Payne v. Donegan, 9 Ill. App. 566 (semble); Lockenour v. Sides, 57 Ind. 360; McCardle v. McGinley, 86 Ind. 538; Whitesell v. Study, 37 Ind. App. 429; Marbourg v. Smith, 11 Kan. 554; Cox v. Taylor, 10 B. Mon. 17; Woods v. Finnell, 13 Bush. 628; Johnson v. Meyer, 36 La. Ann. 333 (semble); Allen v. Codman, 139 Mass. 136 (semble); Wilson v. Hale, 178 Mass. 111; Brand v. Hinchman, 68 Mich. 590; Antcliff v. June, 81 Mich. 477; McPherson v. Runyon, 41 Minn. 524; O’Neill v. Johnson, 53 Minn. 439; Eickhoff v. Fidelity Co., 74 Minn. 139; Virtue v. Creamery Mfg. Co., 123 Minn. 17; Brown v. City, 90 Mo. 377 (semble); Smith v. Burrus, 106 Mo. 94; McCormick Co. v. Willan, 63 Neb. 391; Pangburn v. Bull, 1 Wend. 345; Dempsey v. Lepp, 52 How. Pr. 11; Smith v. Smith, 20 Hun, 555 (semble); Willard v. Holmes, 21 N. Y. Supp. 998 (semble); (but see Willard v. Holmes, 142 N. Y. 492; Paul v. Fargo, 84 App. Div. 9); Kolka v. Jones, 6 N. D. 461; Sawyer v. Shick, 30 Okl. 353; Lipscomb v. Shofner, 96 Tenn. 112; Swepson v. Davis, 109 Tenn. 99; Closson v. Staples, 42 Vt. 209 Contra.

In Eastin v. Stockton Bank, supra, the court said: “The English cases which deny the right to maintain the action, stand upon the ground that the successful defendant is adequately compensated for the damages he sustains by the costs allowed him by the statute. Those costs, it seems, include the attorney’s charges for preparing the case for trial in all its parts, the fees of the witnesses and the court officials, and even the honorarium of the barrister who conducted the case in court. The reason upon which the English rule rests would not, therefore, seem to apply here, where the costs recoverable under the statute are confined to much narrower limits....

“Two other objections made to the maintenance of the action,—first, the claim that if such suits are allowed, litigation will become interminable, because every successful action will be followed by another, alleging malice in the prosecution of the former; and second, that if the defendant may sue for damages sustained by an unfounded prosecution, the plaintiff may equally bring an action when the defendant makes a groundless defence,—are well answered in the article already alluded to [Mr. Lawson’s note, 21 A. L. Reg. N. S. 281, 353]: ‘To the first objection, it is enough to say that the action will never lie for an unsuccessful prosecution, unless begun and carried on with malice and without probable cause. With the burden of this difficult proof upon him, the litigant will need a very clear case before he will be willing to begin a suit of this character. The second argument fails to distinguish between the position of the parties, plaintiff and defendant, in an action at law. The plaintiff sets the law in motion; if he does so groundlessly and maliciously he is the cause of the defendant’s damage. But the defendant stands only on his legal rights—the plaintiff having taken his case to court, the defendant has the privilege of calling upon him to prove it to the satisfaction of the judge or jury, and he is guilty of no wrong in exercising this privilege.’”

In Doane v. Hescock, 155 N. Y. Supp. 210, the court (Appellate Term, First Department) says: “It clearly appears that the complaint does not state facts sufficient to constitute a cause of action for abuse of process, nor are the allegations sufficient to support an action for malicious prosecution of a civil action in this state. There is no allegation that the action resulted in damages to the business or reputation of the defendant or that in any way his personal or property rights were interfered with. The sole allegation as to damage is the trouble, inconvenience, and expense of defending the action. This is not sufficient. Paul v. Fargo, 84 App. Div. 9, 11, 13 (dissenting opinion, 21), 82 N. Y. Supp. 369; Fulton v. Ingalls, 165 App. Div. 323, 326, 151 N. Y. Supp. 130.”

Malicious excessive attachment. Tamblyn v. Johnston, (C. C. A.) 126 Fed. 267; Mills v. Larrance, 217 Ill. 446; Savage v. Brewer, 16 Pick. 453; Paul v. Fargo, 84 App. Div. 9; Sommer v. Wilt, 4 S. & R. 19.

407. The averments of the count are abridged and the arguments of counsel are omitted.

408. Fivaz v. Nicholls, 2 C. B. 501, 514 (semble); Grove v. Brandenburg, 7 Blackf. 234 Accord.

“Pechell v. Watson came to be considered in Flight v. Leman. Its authority was recognized, but the latter case was decided against the plaintiff, who sued for maintenance, on the ground, I own I should have thought the narrow ground, that to instigate a suit was not maintenance, though to support one already instituted was.” Per Coleridge, C. J., in Bradlaugh v. Newdegate, 11 Q. B. Div. 1, 8.

See also Alabaster v. Harness, [1894] 2 Q. B. 897, [1895] 1 Q. B. 339; Grieg v. National Union, 22 T. L. Rep. 274; Goodyear Co. v. White, 2 N. J. Law Journ. 150, 10 Fed. Cas. 752, no. 5602; Breeden v. Frankford Ins. Co., 220 Mo. 327, 373, 378–420, 424–443. Compare Metropolitan Bank v. Pooley, 10 App. Cas. 210, 217–218.

409. Only the opinion of the Chief Justice upon the point of abuse of legal process is given.

410. Heywood v. Collinge, 9 A. & E. 268; King v. Yarbray, 136 Ga. 212; Wicker v. Hotchkiss, 62 Ill. 107 (semble); Emery v. Ginnan, 24 Ill. App. 65 (semble); Whitesell v. Study, 37 Ind. App. 429 (semble); Page v. Cushing, 38 Me. 523; Wood v. Graves, 144 Mass. 365; White v. Apsley Co., 181 Mass. 339; White v. Apsley Co., 194 Mass. 97; Malone v. Belcher, 216 Mass. 209; Pixley v. Reed, 26 Minn. 80 (semble); Rossiter v. Minn. Co., 37 Minn. 296; Bebinger v. Sweet, 6 Hun, 478; Buffalo Co. v. Everest, 30 Hun, 586 (semble); Hazard v. Harding, 63 How. Pr. 326; Prough v. Entriken, 11 Pa. St. 81; Mayer v. Walter, 64 Pa. St. 283; Lauzon v. Charroux, 18 R. I. 467 Accord.

As to the distinction between malicious prosecution and abuse of process, see Waters v. Winn, 142 Ga. 138; Wright v. Harris, 160 N. C. 542; Cooper v. Southern R. Co., 165 N. C. 578.

In Wood v. Graves, 144 Mass. 365, Allen, J., said, p. 366: “There is no doubt that an action lies for the malicious abuse of lawful process, civil or criminal. It is to be assumed, in such a case, that the process was lawfully issued for a just cause, and is valid in form, and that the arrest or other proceeding upon the process was justifiable and proper in its inception. Perhaps the most frequent form of such abuse is by working upon the fears of the person under arrest for the purpose of extorting money or other property, or of compelling him to sign some paper, to give up some claim, or to do some other act, in accordance with the wishes of those who have control of the prosecution. The leading case upon this subject is Grainger v. Hill, 4 Bing. N. C. 212, where the owner of a vessel was arrested on civil process, and the officer, acting under the directions of the plaintiffs in the suit, used the process to compel the defendant therein to give up his ship’s register, to which they had no right. He was held entitled to recover damages, not for maliciously putting the process in force, but for maliciously abusing it, to effect an object not within its proper scope.”

In Mayer v. Walter, 64 Pa. St. 283, Sharswood, J., said: “There is a distinction between a malicious use and a malicious abuse of legal process. An abuse is where the party employs it for some unlawful object, not the purpose which it is intended by the law to effect; in other words, a perversion of it. Thus, if a man is arrested, or his goods seized in order to extort money from him, even though it be to pay a just claim other than that in suit, or to compel him to give up possession of a deed or other thing of value, not the legal object of the process, it is settled that in an action for such malicious abuse it is not necessary to prove that the action in which the process issued has been determined, or to aver that it was sued out without reasonable or probable cause: Grainger v. Hill, 4 Bing. N. C. 212. It is evident that when such a wrong has been perpetrated, it is entirely immaterial whether the proceeding itself was baseless or otherwise. We know that the law is good, but only if a man use it lawfully.

“On the other hand, legal process, civil or criminal, may be maliciously used so as to give rise to a cause of action where no object is contemplated to be gained by it other than its proper effect and execution. As every man has a legal power to prosecute his claims in a court of law and justice, no matter by what motives of malice he may be actuated in doing so, it is necessary in this class of cases to aver and prove that he has acted not only maliciously, but without reasonable or probable cause. It is clearly settled also, that the proceeding must be determined finally before any action lies for the injury; because, as it is said in Arundell v. Tregono, Yelv. 117, the plaintiff will clear himself too soon, viz., before the fact tried, which will be inconvenient; besides, the two determinations might be contrary and inconsistent.”

To proceed unfairly and oppressively but without seeking to compel another to do what he is not obliged to do, e. g., to enter up judgment on a note after 10 P. M. and to bring immediate execution, is not a ground of action according to Docter v. Riedel, 96 Wis. 158. But see dissenting opinion of Marshall, J.

411. Only the opinion of the court is given.

412. Y. B. 7 Hen. VI. 43; 1 Roll. Ab. 101, pl. 1, S. C.; Holliday v. Sterling, 62 Mo. 321 Accord.

413. Edwards v. Wooton, 12 Rep. 35; Peacock v. Raynell, 2 Brownl. 151; Barrow v. Lewellin, Hob. 152; Hick’s Case, Hob. 375; Rex v. Burdett, 4 B. & Ald. 95 Accord.

414. Phillips v. Jansen, 2 Esp. 624; Ward v. Smith, 4 Car. & P. 302; Sharp v. Skues, (C. A.) 25 T. L. Rep. 336; Warnock v. Mitchell, 43 Fed. 428; Western Co. v. Cashman, 149 Fed. 367; Spaits v. Poundstone, 87 Ind. 522; Yousling v. Dare, 122 Ia. 539; Lyon v. Lash, 74 Kan. 745; Buckwalter v. Gossow, 75 Kan. 147; McIntosh v. Matherly, 9 B. Mon. 119; Roberts v. English Co., 155 Ala. 414; Dickinson v. Hathaway, 122 La. 644; Gambrill v. Schooley, 93 Md. 48; Rumney v. Worthley, 186 Mass. 144, 145; Youmans v. Smith, 153 N. Y. 214, 218; Lyle v. Clason, 1 Caines, 581; Waistel v. Holman, 2 Hall, 172; Prescott v. Tousey, 50 N. Y. Super. Ct. 12; Shepard v. Lamphier, 84 Misc. 498; Fonville v. McNease, Dudley, 303; State v. Syphrett, 27 S. C. 29; Fry v. McCord, 95 Tenn. 678; Sylvis v. Miller, 96 Tenn. 94; Wilcox v. Moon, 63 Vt. 481; Wilcox v. Moon, 64 Vt. 450 Accord.

See Ahern v. Maguire, A. M. & O. 39.

If two persons combine in sending a libel to the plaintiff, each is guilty of a publication to the other. Spaits v. Poundstone, 87 Ind. 522, 524, 525.

In Virginia, by statute, an action lies for insulting words written or spoken, although not read or heard by a third person. Rolland v. Batchelder, 84 Va. 664; Strode v. Clement, 90 Va. 553.

415. Part of the case, not relating to publication, is omitted.

416. Wenman v. Ash, 13 C. B. 836; Jones v. Williams, 1 T. L. Rep. 572; Sesler v. Montgomery, 78 Cal. 486, 489 (semble); Luick v. Driscoll, 13 Ind. App. 279; Wilcox v. Moon, 63 Vt. 481; Wilcox v. Moon, 64 Vt. 450 Accord.

But a communication by the libeller to his own wife is said not to be a publication. Wennhak v. Morgan, 20 Q. B. D. 635; Sesler v. Montgomery, 78 Cal. 486; Trumbull v. Gibbons, 3 City H. Rec. 97. But see State v. Shoemaker, 101 N. C. 690. See also Central R. Co. v. Jones, 18 Ga. App. 414 (dictation by officer of corporation to co-employee); Kirschenbaum v. Kaufman (N. Y. City Ct.), 50 N. Y. Law Journ. 406 (defamatory matter uttered to business partner in course of business). It would be more accurate to say that the communication in such cases is privileged. In Powell v. Gelston, [1916] 2 K. B. 615, a libellous letter, privileged as a communication to A, was sent to B, who asked for the information in his own name at A’s request. The letter was opened and read by A only.

417. M’Coombs v. Tuttle, 5 Blackf. 431; Van Cleef v. Lawrence, 2 City H. Rec. 41 Accord.

418. Wyatt v. Gore, Holt, 299; Wenman v. Ash, 13 C. B. 836; Kiene v. Ruff, 1 Ia. 482; Allen v. Wortham, 89 Ky. 485; Rumney v. Worthley, 186 Mass. 144; Schenck v. Schenck, Spencer, 208; State v. McIntire, 115 N. C. 769; Wilcox v. Moon, 64 Vt. 540; Adams v. Lawson, 17 Gratt. 250 Accord.

See Fox v. Broderick, 14 Ir. C. L. R. 453; Callan v. Gaylord, 3 Watts, 321.

Slanderous statements to plaintiff in presence of his counsel, Massee v. Williams, 207 Fed. 222.

Sending libellous letter to plaintiff’s attorney, Brown v. Elm City Lumber Co., 167 N. C. 9.

419. Only the opinion of the court is given.

420. Jones v. Davers, Cro. Eliz. 496; Price v. Jenkings, Cro. Eliz. 865; Amann v. Damm, 8 C. B. N. S. 597; Kiene v. Ruff, 1 Ia. 42; Hurtert v. Weines, 27 Ia. 134; Mielenz v. Quasdorf, 68 Ia. 726; Economopoulos v. A. G. Pollard Co., 218 Mass. 294; Wormouth v. Cramer, 3 Wend. 394 Accord.

See Bechtell v. Shatter, Wright, (Ohio) 107. Conf. Anon., Moore, 182; Gibs v. Jenkins, Hob. 335; Zenobio v. Axtell, 6 T. R. 162; Jenkins v. Phillips, 9 Car. & P. 766; Hickley v. Grosjean, 6 Blackf. 351; Keenholts v. Becker, 3 Den. 346; Rahauser v. Barth, 3 Watts, 28; Zeig v. Ort, 3 Chandl. 26; K. v. H., 20 Wis. 239; Filber v. Dautermann, 26 Wis. 518; Simonsen v. Herald Co., 61 Wis. 626; Pelzer v. Benishy, 67 Wis. 291.

421. Anon., Sty. 70; Force v. Warren, 15 C. B. N. S. 806; Desmond v. Brown, 33 Ia. 13; Marble v. Chapin, 132 Mass. 225, 226; Cameron v. Cameron, 162 Mo. App. 110; Traylor v. White, 185 Mo. App. 325; Broderick v. James, 3 Daly, 481 Accord.

Mailing of post card. Three views have been expressed as to whether the mailing of a post card is a publication.

(1) The mailing is a publication. Sadgrove v. Hole, [1901] 2 K. B. 1, 4, 5 (semble); Logan v. Hodges, 146 N. C. 38; Spence v. Burt, 18 Lanc. L. Rev. 251; Robinson v. Jones, L. R. 4 Ir. 391 (semble); McCann v. Edinburgh Co., L. R. 28 Ir. 24, 28 per Palles, C. B.

(2) The mailing is prima facie a publication. Odgers, Libel and Slander (4 ed.), 153, 281.

(3) The mailing is prima facie not a publication, i. e., is not a publication unless evidence is given that the post card was read in transitu. Steele v. Edwards, 15 Ohio Cir. Ct. 52, 58.

Publication in ignorance of the libel. The dissemination of a libel by a carrier or newsvender or a public library, who neither knew nor ought to have known of the libel and who had no reason to suppose that the newspaper was likely to contain libellous matters, gives no cause of action. Emmens v. Pottle, 16 Q. B. D. 354; Martin v. Trustees of British Museum, 10 T. L. Rep. 338. But the proprietor of a circulating library was held liable for giving out a book containing defamatory statements, because his freedom from negligence did not appear. Vizetelly v. Mudie’s Library, [1900] 2 Q. B. 170. See also Morris v. Ritchie, Court of Sess., March 12, 1902, 4 F. 645.

422. The case has been much abridged.

423. Phillips v. Bradshaw, 167 Ala. 199; Allen v. Fincher, 187 Ala. 599; Pouchan v. Godeau, 167 Cal. 692; United Mine Workers v. Cromer, 159 Ky. 605; Tawney v. Simonson, 109 Minn. 341; Sweaas v. Evenson, 110 Minn. 304; Vanloon v. Vanloon, 159 Mo. App. 255; Jones v. Banner, 172 Mo. App. 132; Bigley v. National Fidelity Co., 94 Neb. 813; Phillips v. Barber, 7 Wend. 439; Church v. New York Tribune Ass’n, 135 App. Div. 30; Rossiter v. New York Press Co., 141 App. Div. 339; Spencer v. Minnick, 41 Okl. 613; McGeary v. Leader Pub. Co., 52 Pa. Super. Ct. 35; Lehmann v. Medack, (Tex. Civ. App.) 152 S. W. 438 Accord. Compare Marshall v. Chicago Herald Co., 185 Ill. App. 224; Willfred Coal Co. v. Sapp, 193 Ill. App. 400; Sweet v. Post Pub. Co., 215 Mass. 450; Corr v. Sun Printing & Pub. Ass’n, 177 N. Y. 131. But see M. v. J., 164 Wis. 39.

A lunatic is liable for torts generally and also for a libel. Mordaunt v. Mordaunt, 39 L. J. Pr. & M. 57, 59. But it is another illustration of the rule of the principal case that defamatory words spoken by a lunatic whose insanity was obvious or known to all the hearers, are not actionable. Yeates v. Reed, 4 Blackf. 463; Irvine v. Gibson, 117 Ky. 306; Dickinson v. Barber, 9 Mass. 225, 227; Bryant v. Jackson, 6 Humph. 199. So also of words spoken and understood as a jest. Donoghue v. Hayes, Hayes, 265. Drunkenness is no defence. Kendrick v. Hopkins, Cary, 133; Gates v. Meredith, 7 Ind. 440.

The old rule of construing defamatory statements in mitiori sensu was long ago exploded. See Odgers, Libel & Slander (5 ed.), 111–113.

Explanation of words by context, see Deitchman v. Bowles, 166 Ky. 285; McCurda v. Lewiston Journal Co., 109 Me. 53; Wing v. Wing, 66 Me. 62; Larsen v. Brooklyn Eagle, 165 App. Div. 4; Guenther v. Ridgway Co., 170 App. Div. 725; Eddy v. Cunningham, 69 Wash. 544; Leuch v. Berger, 161 Wis. 564.

424. Only the opinion of the court is given.

425. Massee v. Williams, (C. C. A.) 207 Fed. 222; Ivie v. King, 167 N. C. 174; Olympia Waterworks v. Mottman, 88 Wash. 694 Accord. See Ex parte Nelson, 251 Mo. 63.

426. A portion of the opinion is omitted.

427. The article was as follows: “He Waxed Eloquent. H. P. Hanson fined ten dollars for refusing payment of car fare.... H. P. Hanson, a real estate and insurance broker of South Boston, emerged from the seething mass of humanity that filled the dock and indulged in a wordy bout with policeman Hogan, who claimed to have arrested Hanson on the charge of evading car fare and being drunk at the same time. The judge agreed that the prisoner was sober, but on the charge of evasion of car fare the evidence warranted the fining of the eloquent occupant of the dock ten dollars without costs, which he paid.”

428. The opinion of the dissenting judges is supported by the decisions and dicta in other jurisdictions. Butler v. Barret, 130 Fed. 944 (semble); Every Evening Co. v. Butler, 144 Fed. 916; Taylor v. Hearst, 107 Cal. 262; Hulbert v. New Co., 111 Ia. 490; Davis v. Marxhausen, 86 Mich. 281, 103 Mich. 315 (semble); Clark v. North American Co., 203 Pa. St. 346 (semble); Hutchinson v. Robinson, 21 N. S. W. L. R. (Law) 130 (semble). Compare Newton v. Grubbs, 155 Ky. 479; Ellis v. Brockton Pub. Co., 198 Mass. 538; Dunlop v. Sundberg, 55 Wash. 609.

429. Compare Gandia v. Pettingill, 222 U. S. 452; Van Wiginton v. Pulitzer Pub. Co., (C. C. A.) 218 Fed. 795; Jones v. R. L. Polk & Co., 190 Ala. 243 (publishing of white woman that she is colored); Ball v. Evening American Co., 237 Ill. 592; MacIntyre v. Fruchter, 148 N. Y. Suppl. 786 (“fit only for negroes to associate with”); Spencer v. Looney, 116 Va. 767 (assertion of white person that he was colored); Galveston Tribune v. Guisti, (Tex. Civ. App.) 134 S. W. 239.

430. This abridged statement has been substituted. The arguments and all but one of the opinions have been omitted.

431. Compare Northrop v. Tibbles, (C. C. A.) 215 Fed. 99. See Smith, Jones v. Hulton, Three Conflicting Views as to a Question of Defamation, 60 University of Pennsylvania Law Rev. 365, 461.

432. The statement of the pleadings is abridged, and only the opinion of Littledale, J., is given. Bayley and Parke, JJ., concurred.

433. That the defendant repeated a defamation, giving the name of the author, seems originally to have been a justification. Northampton’s Case, 12 Rep. 134 (Fourth Resolution). But the name of the author was to be given at the time of repetition, and not for the first time in the plea. Davis v. Lewis, 7 T. R. 17. The words, furthermore, had to be given with sufficient exactness to ground an action against the author. Maitland v. Goldney, 2 East, 426. Doubts were thrown upon the validity of this justification in Lewis v. Walter, 4 B. & Al. 605. The whole doctrine was repudiated, as to libel, in De Crespigny v. Wellesley, 5 Bing. 392, and Tidman v. Ainslie, 10 Ex. 63; and as to slander, in McPherson v. Daniels; Watkin v. Hall, L. R. 3 Q. B. 396.

See to same effect Age-Herald Pub. Co. v. Waterman, 188 Ala. 272; Washington Herald Co. v. Berry, 41 App. D. C. 322; Brewer v. Chase, 121 Mich. 526; Hagener v. Pulitzer Pub. Co., 172 Mo. App. 436; Vallery v. State, 42 Neb. 123; Walling v. Commercial Advertiser, 165 App. Div. 26; Galveston Tribune v. Johnson, (Tex. Civ. App.) 141 S. W. 302. See also Whitney v. Moignard, 24 Q. B. D. 630.

In Speight v. Gosnay, 60 L. J. Q. B. 231, the words were not actionable without special damage and the special damage resulted only from unauthorized repetition by a third person.

434. This short statement of the case, taken from 3 Camp. 214, has been substituted for the declaration which is set out at considerable length in the original report.

435. “When our ancestors years ago drew the distinction between libel and slander, they exercised that kind of wise discretion which they always exercised over the whole field of the common law. It would to my mind be very dangerous for us nowadays to relax in any way the rule of law which confines actions for spoken words, in the absence of proof of special damage, to a very limited number of cases.” Vaughan Williams, L. J., in Dauncey v. Holloway, [1901] 2 K. B. 441, 448. See also A. L. Smith, L. J., Id. 447. But compare Colby v. Reynolds, 6 Vt. 489, 493; Tillson v. Robbins, 68 Me. 295.

The distinction sanctioned in the principal case between oral and written scandal still obtains in England and the United States. The definition of a libel as a written publication calculated to bring another into hatred, ridicule, or contempt, is also universally recognized in English-speaking countries. As it is a pure question of fact for the jury whether the publication in a given case comes within this definition, it has not seemed advisable to bring together in this book the multitudinous instances which have been passed upon. A full collection of the cases may be found in Odgers, Libel and Slander, (5 ed.) 18–38; Townshend, Slander and Libel; (4 ed.) 203–221; 25 Cyc. 255–264.

An action for a libel made in the course of judicial proceedings cannot be maintained until the proceedings have terminated in favor of the person defamed, Masterson v. Brown, 72 Fed. 136.

436. There is great diversity of opinion as to what words, imputing the commission of a crime, are actionable per se. The authorities may be classified as follows:—

I. Words imputing a criminal offence punishable corporally.

In Hawes’s Case, March, 113 (speaking against common prayer); Heake v. Moulton, Yelv. 90; Walden v. Mitchell, 2 Ventr. 265; Scoble v. Lee, 2 Show. 32 (regrating); McCabe v. Foot, 15 L. T. Rep. 115; Elliott v. Ailsberry, 2 Bibb, 473 (fornication); M’Gee v. Wilson, Litt. S. C. 187 (unchastity); Mills v. Wimp, 10 B. Mon. 417 (semble); Buck v. Hersey, 31 Me. 558 (drunkenness); Wagaman v. Byers, 17 Md. 183 (adultery); Birch v. Benton, 26 Mo. 153 (whipping one’s wife); Speaker v. McKenzie, 26 Mo. 255 (whipping one’s mother); Billings v. Wing, 7 Vt. 439 (“he snaked his mother out of doors by the hair of her head; it was the day before she died”), the words uttered were held not to give a right of action, since they imputed crimes punishable only by fine, or by imprisonment merely as a consequence of the non-payment of the fine.

II. Words imputing a criminal offence and involving moral turpitude. Sipp v. Coleman, 179 Fed. 997; Taylor v. Gumpert, 96 Ark. 354; Frisbie v. Fowler, 2 Conn. 707; Hoag v. Hatch, 23 Conn. 585; Page v. Merwin, 54 Conn. 426; Kennenberg v. Neff, 74 Conn. 62; Yakavicze v. Valentukevicious, 84 Conn. 350; Reitan v. Goebel, 33 Minn. 151.

III. Words imputing a criminal offence, involving moral turpitude and punishable corporally. Redway v. Gray, 31 Vt. 292 (qualifying Billings v. Wing, 7 Vt. 439); Murray v. McAllister, 38 Vt. 167.

IV. Words imputing a criminal offence involving disgrace. Miller v. Parish, 8 Pick. 384; Brown v. Nickerson, 5 Gray, 1; Kenney v. McLaughlin, 5 Gray, 3; Ranger v. Goodrich, 17 Wis. 78; Mayer v. Schleichter, 29 Wis. 646; Gibson v. Gibson, 43 Wis. 23; Geary v. Bennett, 53 Wis. 444.

V. Words imputing a criminal offence subjecting the offender to infamous punishment. Shipp v. McCraw, 3 Murph. 463; Brady v. Wilson, 4 Hawks. 93; Skinner v. White, 1 Dev. & Bat. 471; Wall v. Hoskins, 5 Ired. 177; Wilson v. Tatum, 8 Jones, (N. C.) 300; McKee v. Wilson, 87 N. C. 300; Harris v. Terry, 98 N. C. 131.

VI. Words imputing an indictable offence involving moral turpitude, or subjecting the offender to an infamous punishment. See Brooker v. Coffin, infra, and cases cited.

VII. Words imputing an indictable offence punishable corporally. Griffin v. Moore, 43 Md. 246; Shafer v. Ahalt, 48 Md. 171; Birch v. Benton, 26 Mo. 153; Curry v. Collins, 37 Mo. 324; Bundy v. Hart, 46 Mo. 460; Lewis v. McDaniel, 82 Mo. 577; Houston v. Woolley, 37 Mo. App. 15, 24; Parsons v. Henry, 177 Mo. App. 329.

As to defamation of a corporation, see Oram v. Hutt, [1913] 1 Ch. 259; Axton Tobacco Co. v. Evening Post Co., 169 Ky. 64; Stone v. Textile Employers Ass’n, 137 App. Div. 655.

437. Only the opinion of the court is given.

438. By 54 & 55 Vict. c. 51, words which impute unchastity or adultery to any woman or girl are actionable, without special damage.

439. This rule has been approved in the following cases: Pollard v. Lyon, 91 U. S. 225; Perdue v. Burnett, Minor, 138; Dudley v. Horn, 21 Ala. 379; Hillhouse v. Peck, 2 St. & P. 395; Heath v. Devaughn, 37 Ala. 677; Kinney v. Hosea, 3 Harring, 77; Pleasanton v. Kronemeier, 29 Del. 81; Pledger v. Hathcock, 1 Ga. 550; Giddens v. Mirk, 4 Ga. 364; Richardson v. Roberts, 23 Ga. 215; Burton v. Burton, 3 Greene, 316; Halley v. Gregg, 74 Ia. 563; Wooten v. Martin, 140 Ky. 781; St. Martin v. Desnoyer, 1 Minn. 156; West v. Hanrahan, 28 Minn. 385; Chaplin v. Lee, 18 Neb. 440; Hendrickson v. Sullivan, 28 Neb. 329; McCuen v. Ludlum, 2 Harr. 12; Johnson v. Shields, 25 N. J. Law, 116; Widrig v. Oyer, 13 Johns. 124; Martin v. Stilwell, 13 Johns. 275; Alexander v. Alexander, 9 Wend. 141; Case v. Buckley, 15 Wend. 327; Bissell v. Cornell, 24 Wend. 354; Demarest v. Haring, 6 Cow. 76; Young v. Miller, 3 Hill, 21; Wright v. Paige, 3 Keyes, 581, 3 Trans. App. 134, S. C.; Crawford v. Wilson, 4 Barb. 504; Johnson v. Brown, 57 Barb. 118; Quinn v. O’Gara, 2 E. D. Sm. 388; Torres v. Huner, 150 App. Div. 798; Dial v. Holter, 6 Ohio St. 228; Alfele v. Wright, 17 Ohio St. 238; Hollingsworth v. Shaw, 19 Ohio St. 430; Davis v. Brown, 27 Ohio St. 326; Davis v. Sladden, 17 Or. 259; Andres v. Koppenheafer, 3 S. & R. 255; Davis v. Carey, 141 Pa. St. 314; Lodge v. O’Toole, 20 R. I. 405; Gage v. Shelton, 3 Rich. 242; Smith v. Brown, 97 S. C. 239; Smith v. Smith, 2 Sneed, 473; McAnally v. Williams, 3 Sneed, 26; Poe v. Grever, 3 Sneed, 664; Payne v. Tancil, 98 Va. 262. See Moore v. Francis, 121 N. Y. 199.

440. Hence it is not actionable (without special damage) to call a man a “bastard,” Paysse v. Paysse, 86 Wash. 349, or a “blackleg and swindler,” McIntyre v. Fruchter, 148 N. Y. Supp. 786; or a “rascal,” Massee v. Williams, 207 Mass. 222, or to call a woman a “bitch.” Craver v. Norton, 114 Ia. 46; Sturdivant v. Duke, 155 Ky. 100; Kerone v. Block, 144 Mo. App. 575; Blake v. Smith, 19 R. I. 476.

But in Fowler v. Dowdney, 2 Moody & R. 119, the words “he is a returned convict” were held actionable, Lord Denman, C. J., saving that though the punishment had been suffered, “still the obloquy remains.” Gainford v. Tuke, Cro. Jac. 536; Boston v. Tatam, Cro. Jac. 623; Beavor v. Hides, 2 Wils. 300; Stewart v. Howe, 17 Ill. 71; Wiley v. Campbell, 5 T. B. Monr. 396; Krebs v. Oliver, 12 Gray, 239; Johnson v. Dicken, 25 Mo. 580; Van Ankin v. Westfall, 14 Johns. 233; Ship v. McCraw, 3 Murphy, 463; Smith v. Stewart, 5 Pa. St. 372; Beck v. Stitzel, 21 Pa. St. 522; Poe v. Grever, 3 Sneed, (Tenn.) 664 Accord.

Compare Carpenter v. Tarrant, C. t. Hardw. 339; French v. Creath, Breese, 12; Barclay v. Thompson, 2 Pen. & W. 148.

441. Only portions of the opinion are given.

442. See also Keck v. Shepard, (Ark.) 180 S. W. 501 (statutory); Craver v. Norton, 114 Ia. 46; Hahn v. Lumpa, 158 Ia. 560; Traylor v. White, 185 Mo. App. 325 (statutory); Culver v. Marx, 157 Wis. 320. On the whole subject, see Veeder, History and Theory of the Law of Defamation, 4 Columbia Law Rev. 33, 52.

443. Only the opinion of the court is given.

444. “We think that the rule as to words spoken of a man in his office or trade is not necessarily confined to offices and trades of the nature and duties of which the court can take judicial notice. The only limitation of which we are aware is, that it does not apply to illegal callings.” Channel, B., in Foulger v. Newcomb, L. R. 2 Ex. 327, 330.

445. Alexander v. Angle, 1 Cr. & J. 143; Sibley v. Tomlins, 4 Tyrwh. 90; Doyley v. Roberts, 3 B. N. C. 835; Brayne v. Cooper, 5 M. & W. 249; James v. Brook, 9 Q. B. 7; Dauncey v. Holloway, [1901] 2 K. B. 441; Hogg v. Dorrah, 2 Porter, (Ala.) 212; Oram v. Franklin, 5 Blackf. 42; Buck v. Hersey, 31 Me. 558; Oakley v. Farrington, 1 Johns. Cas. 129; Van Tassel v. Capron, 1 Den. 250; Ireland v. McGarvish, 1 Sandf. 155; Chomley v. Watson, [1907] Vict. L. R. 502 Accord.

Compare Ware v. Clowney, 24 Ala. 707; Butler v. Howes, 7 Cal. 87; Fowles v. Bowen, 30 N. Y. 20.

“Some of the cases have proceeded to a length which can hardly fail to excite surprise: a clergyman having failed to obtain redress for the imputation of adultery; and a school-mistress having been declared incompetent to maintain an action for a charge of prostitution. Such words were undeniably calculated to injure the success of the plaintiffs in their several professions, but, not being applicable to their conduct therein, no action lay.” Lord Denman, C. J., in Ayre v. Craven, 2 A. & E. 2. See Morasse v. Brooks, 151 Mass. 567, 568.

Imputation of misconduct to a clergyman, see Bishop of Norwich v. Pricket, Cro. Eliz. 1 (heterodoxy in religion); Payne v. Bewmorris, 1 Lev. 248 (incontinence); Pope v. Ramsey, 1 Keb. 542 (knave, &c.); Chaddock v. Briggs, 13 Mass. 248 (drunkenness); Ritchie v. Widdemer, 59 N. J. Law, 290; Demarest v. Haring, 6 Cow. 76 (incontinence); Potter v. N. Y. Journal, 68 App. Div. 95; Hayner v. Cowden, 27 Ohio St. 292 (drunkenness); McMillan v. Birch, 1 Binney, 178 (drunkenness); Starr v. Gardner, 6 Up. Can. Q. B. O. S. 512 (incontinence; but see, contra, Breeze v. Sails, 23 Up. Can. Q. B. 94, incontinence), holding the words actionable.

Parrat v. Carpenter, Cro. El. 502; Nicholson v. Lyne, Cro. El. 94; Anon., Sty. 49 Contra. Compare Gallwey v. Marshall, 9 Ex. 294, 568.

Imputation to teacher of discreditable conduct with pupils. Spears v. McCoy, 155 Ky. 1. Compare Nicholson v. Dillard, 137 Ga. 225.

Imputation to an officer of drunkenness while on duty. Reilly v. Curtis, 83 N. J. Law, 77.