Page:The American Cyclopædia (1879) Volume XV.djvu/92

 SLANDER The words must therefore suggest an offence which siil.jt-.-ts the party to a criminal prose- rutiun ami to infamous punishment, penalty for an offence is merely pecuniary, It does not appear that an action will he for charging it, even though in default of payment imprisonment should be prescribed by the stat- ute the imprisonment not being the prima- ry and immediate punishment of the offence. But the words will be actionable in themselves in case the charge, if true, will make the party charged liable to an indictment for a crime in- volving moral turpitude or subjecting him to an infamous punishment. Thus, to charge for- gery or counterfeiting, keeping a bawdy house, bribery at an election, and the soliciting one to commit murder, are all actionable slanders per M, for they suggest both moral turpitude and an indictable offence. For the same rea- son it is actionable per se not only to say that one has done enough to send him to the peni- tentiary, but to say that he has already been there. But to allege that one lives by impos- ture imputes indeed moral turpitude, but not an indictable offence, and is consequently not slanderous per se, or without proof of actual damage. Words alleging perjury are action- able of themselves. The language must of course either express or imply all that is essen- tial to constitute the crime, to wit, a judicial proceeding, material testimony, and the other essential elements of perjury. A charge of false swearing which does not expressly or im- pliedly comprehend all these points is not slan- derous. Theft is an indictable and infamous offence, and the false and malicious imputation of it is actionable without proof of damage. One may sometimes call another a thief, just as he calls him scoundrel, liar, or cheat, by way of general abuse, and without any intention of charging the crime of larceny to him. If the defendant can show this clearly, he may de- feat the presumption which the law always makes of a slanderous quality and intent in the word. Where fornication is made punish- able by statute, as in most of the states, it is slanderous per e to charge unchastity. It was not so at the common law, but the hardship, and indeed the absurdity of this rule, when the consequences to a woman are considered, are so inanifVst that it has quite generally been changed by statutes in the several states. Vords charging disease are actionable only when they imply that the disease now exists. The third class of slanderous words includes those imputations which affect one's official, professional, or business character. To be actionable of themselves, the words must im- mediately contemplate and touch these rela- for it is invariably held that where the words com plained of, though calculated in every respect to cause the forfeiture of an "tli. ,. or the loss of the income of a profession or business, are nevertheless not in fact applied conduct of the plaintiff in his office or business, the action for slander fails. Bu1 words which necessarily, even if not in terms, refer to and affect one's business relations, may JQ held slanderous ; as to say, for example, in reply to an inquiry about failures, " I under- stand there is trouble with the Smiths," or " owes more money than he is worth, and is broken." So it is slanderous per e to say that a trader is insolvent, that X keeps none but rotten goods, that Y uses filthy water in making his beer, or that Z keeps false books, where keeping books is a necessary incident to the business. It is slander to charge an attor- ney or physician with general ignorance or un- skilf ulness in his profession ; and words which of themselves allege ignorance or unskilf ulness in a particular case may be actionable if they fairly imply general disqualification in these re- spects. The fourth class includes those words for which an action lies if special damage be proved. Thus, to say of another that he is a knave, a blackleg, a liar, a cheat, or a scoun- drel, is generally not actionable. If, however, the speaking of these or the like defamatory words has wrought the plaintiff particular pe- cuniary loss, he can recover damages. In all cases in which an action for slander lies, an essential principle on which the action rests is that the speaking of words false in fact and in- jurious to the reputation of another is malicious. By malice in this place is to be understood, not that disposition of ill will, spite, or revenge which in common parlance the word implies, but that legal malice which is the presumption and conclusion of the law from the fact of the deliberate and unqualified statement of false and defamatory matter, without cause or justi- fication. Where these elements coincide, the law implies the malice, and the slander is com- plete. It is the corollary of this conception of slander that a defendant cannot justify the speaking of the slanderous words by the plea that he merely repeated the language of another. Formerly, indeed, it was held, on the authority of an old case in Coke, that if the defendant, at the time of uttering the words complained of, named his informant and gave his precise language, so as to furnish the plaintiff with a good cause of action against him, these facts might be pleaded as presumptive proof that the defendant did not utter the slanderous words maliciously. But the latest English cases hold that the defendant's plea must go further, and must show in addition to the facts just men- tioned that he believed the charge to be true, and repeated it with a justifiable intent and on a justifiable occasion. The American rule is at least equally strict, and until the legal presumption of malice is rebutted by showing a justifiable intent and justifiable occasion, the uttering or repeating of slanderous words is actionable. To refrain altogether from the repetition of such words is the only way to be entirely safe. The presumption of legal malice is defeated when the otherwise slanderous lan- guage is employed upon a just occasion, in the discharge of a duty or in the protection of an