there might be a libel in every line. Every unauthorized publication to the detriment of another was, in point of law, to be considered malicious. whether the occasion and circumstances if it were to be printed and published, supply an absolute or merely qualified justification, dependent on the question of actual malice, they do not extend to justify publication not warranted by the occasion and circumstances. Starkie Slander, 287. Indeed, it is a general principle that communications otherwise privileged lose their protection if they be made in a manner unnecessarily injurious to the plaintiff, or with undue exaggeration and excess of defamatory language. See Brown v. Croome, 2 Stark. 297; Toogood v. Spyring, ante; Fryer v. Kinnersley, 15 C. B. N. s. 422; Cooke v. Wildes, 5 El. & B. 328. In Brown v. Croome, supra, the defendant had published in a newspaper an advertisement strongly reflecting upon the plaintiff, who had been adjudged a bankrupt; and Lord Ellenborough held the same libellous, though the advertisement had been published with the avowed purpose of convening a meeting of the creditors for the purpose of consulting upon the measures proper to be adopted for their own security. Counsel for the defence then proposed to show that this was the only mode that could have been adopted, since the creditors were numerous and scattered. To this Lord Ellenborough said that if it could be shown that an advertisement in the newspaper was the only possible means of communicating notice of the circumstances, that might be sufficient to vindicate the mode; but a communication sufficient for the purpose might have been made in measured language. The mode, he further observed, made an essential distinction which applied to all the cases; as in the case of a brief to counsel, the publication between the attorney and the counsel might not be libellous, and yet, (h.) The principle in all these cases seems to be, that defamatory words are prima facie malicious. Some occasions rebut the presumption of malice; and those are called cases of privileged communication. And if the words be more defamatory than the occasion requires, that again raises the presumption of malice. Cooke v. Wildes, 5 El. & B. 328, 335, Erle, J.; Wright v. Woodgate, 2 Cromp., M. & R. 573. Whether the occasion for writing or speaking the defamatory language, which would otherwise be actionable, repels the inference of malice and constitutes it a privileged communication, is a question of law; but whether the defendant was prompted by external malice must, in these as in other cases, be decided by the jury. Cooke v. Wildes, 5 El. & B. 328; Somerville v. Hawkins, 10 Com. B. 583; Taylor v. Hawkins, 16 Q. B. 308. Thus, in Fryer v. Kinnersley, 15 Com. B. N. s. 422, the jury had negatived (external?) malice; but it was held that, as the communication complained of (which would otherwise have been privileged) contained excessive language, its protection was gone, and that malice, therefore, must be inferred from the words. (i.) Northampton's Case. Repeating Defamation.-The doctrine of the fourth resolution in Northampton's Case, 12 Coke, concerning the repetition of defamation, has been generally overruled both in England and in America; and the rule of law now is that, whether the words be written or spoken, it is neither a justification for the defendant to say that he heard or received them from another person, naming him, nor does this make the words privileged so as to cast the burden upon the plaintiff of proving them to have been repeated maliciously. They are still, if defamatory, prima facie malicious, justifying a verdict for the plaintiff; and if he would rebut the presumption, he must show that he repeated the words on a justifiable occasion, believing them to be true, or that the rumor was in fact true. In other words, he must either rebut the presumption of malice, or prove the truth of the report. McPherson v. Daniels, 10 Barn. & C. 270; Ward v. Weeks, 7 Bing. 211; Tidman v. Ainslie, 10 Ex. 63; Watkin v. Hall, Law R. 3 Q. B. 396; Maitland v. Bramwell, 2 Fost. & F. 623; Dole v. Lyon, 10 Johns. 447; Inman v. Foster, 8 Wend. 602; Stevens v. Hartwell, 11 Met. 542; Sans v. Joerris, 14 Wis. 663. Contra, Haynes v. Leland, 29 Maine, 233. 44 The point is well illustrated in the recent case of Watkin v. Hall, above cited. The declaration in that case stated that the defendant had spoken of the plaintiff (who was chairman of the South-eastern Railway Company) the words, You have heard what has caused the fall [in the stocks of the said railway company], I mean the rumor about the South-eastern chairman having failed;" meaning thereby that the plaintiff had become embarrassed in his pecuniary affairs and insolvent. The defendant pleaded that he meant, and was understood by the by-standers to mean, that there had been and was then a rumor current on the Stock Exchange about the chairman of the South-eastern Railway Company having failed, and not that the plaintiff had become embarrassed and insolvent; and that it was true there had been and then was a rumor on the Stock Exchange that the chairman of the said railway company had failed. The court held, on demurrer, that the plea was not an answer to the declaration, since the existence of the rumor did not justify the repetition of the slander contained in it, without proof that the defendant believed it to be true, and that he spoke the words on a justifiable occasion. Mr. Justice Blackburn quoted with special approbation the following language of Littledale, J., in McPherson v. Daniels, 10 Barn. & C. 263, 272: “It is competent to a defendant, upon the general issue, to show that the words were not spoken maliciously, by proving that they were spoken on an occasion or under circumstances which the law, on grounds of public policy, allows, as in the course of a parliamentary or judicial proceeding, or in giving the character of a servant. But if the defendant relies upon the truth as an answer to the action, not because it negatives the charge of malice (for a person may wrongfully or maliciously utter slanderous matter, though true, and thereby subject himself to an indictment), but because it shows that the plaintiff is not entitled to recover damages. For the law will not permit a man to recover damages in respect of an injury to a character which he either does not or ought not to possess. Now, a defendant by showing that he stated, at the time when he published slanderous matter of a plaintiff, that he heard it from a third person, does not negative the charge of malice, for a man may wrongfully and maliciously repeat that which another person may have uttered upon a justifiable occasion. Such a plea does not show that the slander was published on an occasion or under circumstances which the law, on grounds of public policy, allows. Nor does it show that the plaintiff has not sustained, or is not entitled in a court of law to recover, damages. As great an injury may accrue from the wrongful repetition as from the first publication of slander. The first utterer may have been a person insane or of bad character. The person who repeats it gives greater weight to the slander. A party is not the less entitled to recover damages in a court of law for injurious matter pub lished concerning him, because another person previously published it. That shows, not that the plaintiff has been guilty of any misconduct which renders it unfit that he should recover damages in a court of law, but that he has been wronged by another person as well as the defendant, and may consequently, if the slander was not published by the first utterer on a lawful occasion, have an action for damages against that person as well as the defendant." 12 MALICIOUS PROSECUTION. VANDERBILT v. MATHIS, leading case. Note on Malicious Prosecution. Damage. Malicious abuse of process. VANDERBILT v. MATHIS. (5 Duer, 304. Superior Court, New York City, February, 1856.) To maintain an action for malicious prosecution, three facts, if controverted, must be established: 1. That such prosecution was determined in favor of the plaintiff before the action was commenced. 2. The want of probable cause. 3. Malice. Consideration of these three elements. An acquittal of the plaintiff held, not prima facie evidence of want of probable cause. THE plaintiff complained that the defendant had falsely, maliciously, and without any reasonable or probable cause, charged him with committing perjury in a certain case before R. E. Stilwell, a commissioner of the United States for the Southern District of New York, whereupon the plaintiff was arrested and brought before said commissioner, and upon examination acquitted. The errors of law alleged are stated in the opinion. L. B. Shephard, for plaintiff. J. S. Williams, for defendant. BOSWORTH, J. To maintain an action for malicious prosecution, three facts, if controverted, must be established: 1. That the prosecution is at an end, and was determined in favor of the plaintiff. 2. The want of probable cause. 3. Malice. In such an action it is necessary to give some evidence of the want of probable cause. It is insufficient to prove a mere acquittal; that, alone, is not prima facie evidence of the want of probable cause. Gorton v. De Angelis, 6 Wend. 418. It is equally essential that the former prosecution should appear to have been maliciously instituted. Malice may be inferred from the want of probable cause, but such an inference is one which a jury is not required to make, at all events, merely because they may find the absence of probable cause. Unless the evidence, in relation to the circumstances under which the prosecution was ended, and that given to establish the want of probable cause, justify the inference of malice, other evidence, in support of it, must be given. Evidence as to the conduct of the defendant, in the course of the transaction, his declarations on the subject, and any forwardness and activity in exposing the plaintiff by a publication, are properly admitted to prove malice. Such evidence must be given as will justify a jury in finding the existence of malice. The rule is uniformly stated, that, to maintain an action for a former prosecution, it must be shown to have been without probable cause, and malicious. Vanduzer v. Linderman, 10 Johns. R. 106; Murray v. Long, 1 Wend. 140; 2 Stark. Ev. 494; Willans v. Taylor, 6 Bing. 183. The judge, at the trial, charged that the fact that the plaintiff was discharged before the magistrate showed, prima facie, that there was no probable cause for the arrest, and shifted the burden of proof from the plaintiff to the defendant, who was bound to show affirmatively that there was probable cause. He was requested to charge "that the discharge of Vanderbilt was not prima facie evidence of the want of probable cause." This he refused to do. To this refusal to charge, and to the charge as made, the defendant excepted. He also charged "that, if probable cause is made out, the question of malice becomes immaterial, except as bearing on the question of damages." "This question of malice in fact, supposing that probable cause did not exist, is material only as. affecting the question of damages." He was requested to charge "that the jury could not find a verdict for the plaintiff, unless he has proved that there was no probable cause for the complaint, and not even then, unless they believe, from the evidence, that, in making the complaint, the defendant acted from malicious motives." This the judge declined to do, and to his refusal so to charge the defendant excepted. |