hinder virtuous men from associating with him. "The nature of the charge," it is said in one case "must be such the court can legally presume [the plaintiff] has been degraded in the estimation of his acquaintances, or of the public, or has suffered some other loss, either in his property, character, or business, or in his domestic or social relations in consequence of the publication.” ' A published charge that the plaintiff, being a member of a certain political party, at one of its nominating conventions, offered a certain resolution, under the influence of a bribe, is a charge of this character. "When a citizen undertakes to exercise any of his political privileges, it is certainly his duty to act upon public considerations; to be influenced in such a matter by pecuniary motives, though it may not be punishable in some cases as a crime, is always disgraceful. Every one who, for a bribe, gives his vote or his influence to a candidate for nomination to a public position, does such act in secret, thus showing, by his avoidance. of the public gaze, his conciousness of the unworthy part he is playing. Therefore, to print and publish that a man has been guilty of such an act must necessarily be to hold him up to the derision and contempt of the community." So, to publish of one, "His slanderous reports nearly ruined some of our best merchants" is libellous. So it is to publish, "He did a good thing in his sober moments, in the way of collecting soldiers' *claims against the government, for a fearful per- [*207] centage. The blood money he got from the boys in blue

Lindley . Horton, 27 Conn. 58, 61; Thomas v. Croswell, 7 Johns. 264; Clark. Binney, 2 Pick. 115; McCorkle v. Burriss, 5 Binn. 349; Price . Whitely, 50 Mo. 439; Hand v. Winton, 38 N. J. 122; Donaghue v. Gaffy, 54 Conn. 257; Crocker v. Hadley, 102 Ind. 416; Tillson v. Robbins, 68 Me. 295; Foster v. Scripps, 39 Mich. 376; Bradley c. Cramer, 59 Wis. 309,

2 Stone v. Cooper, 2 Denio, 299. * BEASLEY, Ch. J., in Hand v. Winton 38 N. J. 122. See Fitch v. De Young, 66 Cal. 339; Barr v. Moore, 87 Penn. St. 385. So it is libellous to charge a man with being a drunkard, a cuckold, a tory. LUMPKIN, J. “I never yet saw the man who liked to be

considered a sot or drunkard. Noah, the first drunken man, became thereby an object of ridicule to his own son. It was the third part of the then male world that manifested this mockery for this habit, and the other twothirds did but conceal it. * But this paper did not stop with imputing excessive debauchery to old man Thompson; it alleges further that he was decoyed into his cups for the purpose of being made a cuckold. If this charge would not expose him to universal scorn and contempt, I know not what would," Giles v. State, 6 Geo. 276-283.

Cramer v. Noonan, 4 Wis. 231.

in this way is supposed to be a big thing," etc.' So it is to pub lish, "He appears to have been in collusion with ruffians." So, since the belief that one is not in his right mind has a natural tendency to withdraw from him the association of his fellows, to publish of one that he is insane, and a fit person to be sent to the lunatic asylum, is libellous. But it is not libellous to say of a merchant, he has refused to contribute his mite with his fellow merchants to water the street in front of his store: this may possibly have some tendency to induce an ill opinion of him; but as it implies neither moral nor legal wrong, but at most only a want of liberality, it is not libellous. Acts which neither the moral code nor the law of the land requires, it cannot be libellous to charge him with not performing.

Besides the publications mentioned, any untrue and malicious charge which is published in writing or print is libellous when damage is shown to have resulted as a natural and proximate

consequence.

'Sanderson v. Caldwell, 45 N. Y.

398.

2 Snyder . Fulton, 34 Md. 128; and see Woodard v. Eastman. 118 Mass. 403; Day v. Backus, 31 Mich. 241; Stilwell v. Barter, 19 Wend. 487; Hart v. Reed, 1 B. Mon. 166.

Perkins v. Mitchell, 31 Barb. 461. It is libellous per se to publish of a. man that he is "a skunk." Massuere v. Dickens, 35 N. W. Rep. 349 (Wis.) A "swine." Solverson v. Peterson, 64 Wis. 198. Of a brick maker that "he is in the hands of a sheriff." Hermann v. Bradstreet Co., 19 Mo. App. 227. Of a merchant that "he is financially embarrassed." Newell v. How, 31 Miun. 235. That one's house has been searched under legal process for stolen goods without suc

cess.

State v. Smily, 37 Ohio St. 30. For other illustrations see, Shattuc v. McArthur, 25 Fed. Rep. 133; Shelby

. Sun Printing Co., 38 Hun, 474; Broad v. Deuster, 8 Biss. 265; State . Mayberry, 33 Kan. 441.

People v. Jerome, 1 Mich. 142. It is not libellous per se to call one a

"crank." Walker o. Tribune Co, 29 Fed. Rep. 827. To publish of a merchant that he has made a chattel mortgage. Newbold. Bradstreet, 57 Md. 38. Of grain dealers that they have combined to reduce the price of grain. Achorn v. Piper, 66 Ia. 694. Of a supervising architect that he took a commission from contractors to whom he gave work. Legg v. Dunleavy, 80 Mo. 558. So it is not a libel that a company issued an order that "any employee who trades with P. will be discharged." Payne . R. R. Co., 13 Lea. 507, Nor to charge a merchant with ejecting a tenant for ceasing to deal with him. Donaghue v. Gaffy, 53 Conn. 43. Nor for a bank cashier to return paper indorsed "we return unpaid draft. He pays no attention to notices." Platto v. Gielfuss, 47 Wis. 491. Nor for a firm to notify their customers "we will not hereafter take in payment checks" on a certain bank. Capital &c. Bank v. Henty L. R. 7 App. Cas. 741.

When the words published are actionable per se, it is the duty of the court so to instruct the jury.1

Truth as a Defense. The truth of the injurious charge is a defense to a civil action, though it is not always a defense to a criminal prosecution. But even in a civil suit it is necessary to plead it specially. The law implies the falsehood of a damaging charge, and will not suffer it to be brought in [*208] question unless the plaintiff by the pleadings is apprised of the purpose to do so.'

Where the charge complained of imputes to the plaintiff criminal conduct, and the truth is relied upon as a justification, it is sufficient to support the plea by a preponderence of evidence; it is not necessary that the crime be made out beyond a reasonable doubt. This is a general rule where the question of criminality

1 Gottbehuet. Hubachek, 36 Wis. 515. So in slander. Filber v. Dautermann, 28 Wis. 134.

1 Updegrove. Zimmerman, 13 Penn. St. 619; Porter v. Botkins, 59 Penn. St. 484; Barns . Webb, 1 Tyler, 17; Hutchinson . Wheeler, 35 Vt. 330; Sheahan v. Collins, 20 Ill. 325; Thomas v. Dunaway, 30 Ill. 373; Van Ankin v. Westfall, 14 Johns. 233; Wormouth. Cramer, 3 Wend. 395; Beardsley, Bridgman, 17 Iowa, 290; Thompson . Bowers, 1 Doug. Mich. 321; Huson v. Dale, 19 Mich. 17; Treat o. Browning, 4 Conn. 408; Kelley v. Dillon, 5 Ind. 426; Knight v. Foster, 39 N. H. 576; Jarnigan v. Fleming, 43 Miss. 710; Bourland v. Eidson, 8 Gratt. 27; Scott v. McKinnish, 15 Ala. 662; Donaghue v. Gaffy, 53 Conn. 43. If, however, the communication was privileged, so as not to be actionable, in the absence of malice, the truth may be shown without being pleaded. Chapman v. Calder, 14 Penn. St. 365; Edwards v. Chandler, 14 Mich. 471. The truth of the charge cannot be proved in mitigation of damages when not pleaded. Thompson v. Bowers, 1 Doug. Mich. 321, and cases cited. Donaghue o. Gaffy, 53 Conn. 43.

It is questionable whether the law ought not to hold truthful publications libellous' in some cases, where they relate to matters that no one has any business to bring before the public at all, and are made with no other purpose than to annoy and subject to ridicule. Thus it is conceivable that the most innocent acts in a man's private life, or personal peculiarities, for which he is in no way responsible, may be so made use of by a mischievous person as to destroy the comfort of life; and it seems unreasonable that no personal redress can be had. The criminal law sometimes punishes truthful publications where they are made without justifiable occasion; and if the fact stated, conceding its truth, is not of a character that should affect one injuriously, and the damaging consequence results from the artful and persistent manner in which the publisher places it before the public, it would seem that there ought to be some remedy besides such as the public authorities may see fit to pur

sue.

• Ellis v. Buzzell, 60 Me. 209; S. C. 11 Am. Rep. 204; Matthews v. Huntley, 9 N. H. 146; Kincade v. Bradshaw, 3 Hawks, 63; McBee v. Fulton,

is made an issue in a civil suit; it is sufficient to establish it by such evidence as would support any other fact involved in a civil controversy. Some cases, however, dissent from this doctrine, and require the same strict proof of the charge that would be required if the party were on trial for the alleged crime; that is, of guilt beyond a reasonable doubt."

Words alleged to be libellous will receive an innocent construction if they are fairly susceptible of it, and when it is uncertain whether they convey a defamatory imputation the question is one for the jury.'

*When the truth is relied upon as a defense, it must be proved substantially as laid. The rule of the common law is, that an unsuccessful attempt to justify may be taken into account in aggravation of damages; but this rule is abolished by statute in some States.

Malice. The definitions of slander and libel usually include malice as one of the necessary ingredients. From what has already appeared, however, it is manifest that they must employ this word in some other than the ordinary sense. In many cases of aggravated injury, there is really no malice at all, and no intent to injure; at most, there is only thoughtlessness or negligence; as where one thoughtlessly repeats a rumor, or a newspaper publisher copies from some other paper an article concerning a stranger, which he supposes to be true, but which is not so in fact. Sometimes there is not even negligence; as where a publisher has taken all reasonable precautions to prevent untrue and injurious publications, and one nevertheless creeps in as the result of accidental circumstances. In all such cases the absence of malice may be important to protect one against exemplary damages; but it cannot bar the action. It seems misleading, therefore, to employ the terms malice, and malicious, in defining these wrongs; and, in a legal sense, as used they can only mean that the false and injurious publication has been made without legal excuse. One may be excused in morals and yet not in law; it is the protection of the party injured the law aims at, not the punishment of bad motive instigating bad action in the party injuring him.'

malice upon, the justification must be more than colorable. Proctor v. Houghtaling, 37 Mich. 41. But in a late Georgia case it is held that proof which tends to support, but is insufficient to prove, a justification may be considered in mitigation of damages. Henderson v. Fox, 6 S. E. Rep. 164.

1 "Malice, in common acceptation, means ill will against a person, but in its legal sense it means a wrongful act done intentionally without just cause or excuse." BAYLEY, J., in Bromage v. Prosser, 4 B. & C. 255. Malice is alleged in the declaration, "rather to exclude the supposition that the publication may have been made on some innocent occasion than for any other purpose." ABBOTT Ch. J., in Duncan . Thwaites, 3 B. &

C. 556, 585. See Moore v. Stevenson, 27 Conn. 14; Barr v. Moore, 87 Penn. St. 385; Maclean v. Scripps, 52 Mich. 214. Belief in the truth of the charge, and the absence of ill will toward the defendant, cannot be proved as a defense to an action for defamation. Smart v. Blanchard, 42 N. H. 137; Lick v. Owen, 47 Cal. 252; Wilson v. Noonan, 35 Wis. 321;Wozelka v. Hettrick, 93 N. C. 10. That malice is implied from the falsity of the charge, see Hatch v. Potter, 7 Ill. 725; Rearick v. Wilcox, 81 Ill. 77; Pennington v. Meeks, 46 Mo. 217; Mousler v. Harding, 33 Ind. 176; Indianapolis Sun v. Horrell, 53 Ind. 527; Moore v. Butler, 48 N. H. 161; Dillard v. Collins, 25 Grat. 343; King v. Root, 4 Wend. 113; Lick v. Owen, 47 Cal. 252; Parker v. Lewis, 2 Green (Iowa)