In other States probably, as in England, it would be enough that the crime was punishable in the first instance by imprisonment. In still other States it is not necessary that the offence should be punishable by imprisonment at all, if the offence is punishable and disgraceful; this rule being laid down: Whenever an offence has been charged conviction of which subjects the offender to a punishment which, though not ignominious, would bring disgrace, the accusation, if false, is actionable per se.2 The offence, accordingly, need not be indictable.

3

It is not necessary anywhere that the accusation should be of the commission of a crime in the strict sense; enough, even where the first rule above stated prevails, that the imputation is of the commission of a misdemeanor if the offence involves moral turpitude. For example: The defendant falsely publishes of the plaintiff the words 'You have removed my landmarks, and cursed is he that removeth his neighbor's landmark.' The words are actionable per se.1

The authorities, further, are not altogether in harmony in regard to the question whether it is necessary that the charge, if true, would subject the object of it to punishment, or whether the test in this particular is the degradation involved; but the weight of authority favors the latter as the test, assuming that the offence charged is in law a crime. Although, then, the charge show that the

1 Ante, p. 113, note.

2 Miller v. Parish, 8 Pick. 384; Brown v. Nickerson, 5 Gray, 1 (imputing drunkenness to a woman in a single instance). See Meyer v. Schleichler, 29 Wis. 646; Frisbie v. Fowler, 2 Conn. 707; Zeliff v. Jennings, 61 Texas, 458, 466.

3 Young v. Miller, 3 Hill, 21; Smith v. Smith, 2 Sneed, 473; Beck v. Stitzel, 21 Penn. St. 522. See Andres v. Koppenheaver, Serg. & R. 255.

4 Young v. Miller, supra. But the meaning of 'moral turpitude'

is not fixed.

punishment has already been suffered, and do not render the plaintiff liable to indictment, the degradation involved in the (false) accusation renders the defendant liable. For example: The defendant falsely says of the plaintiff, 'Robert Carpenter [the plaintiff] was in Winchester jail, and tried for his life, and would have been hanged had it not been for L, for breaking open the granary of farmer A, and stealing his bacon.' The defendant is liable.1 Again The defendant falsely says of the plaintiff, He was arraigned at Warwick for stealing of twelve hogs, and, if he had not made good friends, it had gone hard with him.' The defendant is liable. Again: The defendant falsely says of the plaintiff, 'He is a convict, and has been in the Ohio penitentiary.' The plaintiff is entitled to maintain an action.3

:

§ 5. OF THE IMPUTATION OF HAVING A CONTAGIOUS OR INFECTIOUS DISEASE OF A DISGRACEFUL Kind.

By the early common law a charge to come under this head must have been of having the leprosy, or the plague, or the syphilis. At the present time the duty has come to be so far enlarged as to require the forbearance from publishing false accusations concerning another of the having any disease of a contagious or infectious nature involving disgrace. For example: The defendant falsely

1 Carpenter v. Tarrant, Cas. Temp. Hardw. 339. The plaintiff always alleges falsity of the charge, but need not prove it. 2 Halley v. Stanton, Croke Car. 268.

3 Smith v. Stewart, 5 Barr, 372. It would be otherwise if the words were true. Baum v. Clause, 5 Hill, 199. A person is no longer a felon after suffering the punishment of felony; so that the fact that he was once a felon would not sustain a plea of the truth of a charge of felony. Leyman v. Latimer, 3 Ex. Div. 352.

charges the plaintiff with having the gonorrhoea. This is actionable per se.1

This doctrine of law proceeds upon the ground that charges of such a kind tend to exclude a person from society; and the rule requires the charge to be made in the present tense. To accuse another falsely of having had a disgraceful disease is not actionable without proof of special damage. For example: The defendant says of the plaintiff, She has had the pox.' The defendant is not liable though the charge be false, unless the plaintiff prove special damage.2

§ 6. OF AN IMPUTATION AFFECTING THE PLAINTIFF IN HIS OFFICE, BUSINESS, OR OCCUPATION.

In order that an imputation may in law be said to affect a man injuriously under this head, and be actionable per se, it should have a natural tendency to injure him in his occupation. It is not enough that it may possibly so injure him. If it has not a natural tendency to injure him, that is, if it would not be the usual effect of the charge to injure the plaintiff in his occupation, as by causing discharge, the plaintiff cannot recover without proving special damage. For example: The defendant publishes of the plaintiff, a clerk to a gas-light company, the words, 'You are a disgrace to the town, unfit to hold your situation for your conduct with harlots. You are a disgrace to the situation you hold.' The plaintiff cannot recover without proof of actual damage, the language not having a natural tendency to cause the plaintiff's discharge from his employment.8

1 Watson v. McCarthy, 2 Kelly, 57. See Bloodworth v. Gray, 7 Man. & G. 334.

2 See Carslake v. Mapledoram, 2 T. R. 473; s. c. L. C. Torts, 84.

8 Lumby v. Allday, 1 Tyrwh. 217; Cases, 131. See Morasse v. Brochu, 151 Mass. 567, 576.

Defamation has a natural tendency to injure the plaintiff in his office, business, or occupation, within the meaning of the rule, when it strikes at his qualification for the performance of the duties of his situation, or when it alleges some misconduct or negligence in the course of transacting these duties. For example: The defendant charges the plaintiff, a clergyman, holding the office of pastor of a church, with incontinence. This is ground of an action. Again: The defendant says of the plaintiff, a lawyer, the words having relation to the plaintiff's professional qualifications,' He is a dunce.' This may perhaps be treated as a breach of the defendant's legal duty to the plaintiff.3

When the defamation complained of does not show on its face that it was published of the plaintiff in relation to his occupation, this must be made to appear; * though even then, as has been stated, the defamation will not be actionable unless it had a natural tendency to injure the plaintiff in his occupation, in the sense already explained. In cases, however, in which the imputation is alleged to have been made of the plaintiff in his occupation, when the same does not have the natural tendency mentioned, it may be shown by the plaintiff that the defamation was published under circumstances which bring the case within the rule of liability. But without such evidence, the plaintiff must fail. For example: The defendant charges the plaintiff, as a physician, with incontinence. This does not imply disqualification, or necessarily pro1 Id.; Camp v. Martin, 23 Conn. 86.

2 Gallwey v. Marshall, 9 Ex. 294.

8 Peard v. Jones, Croke Car. 382. It is doubtful whether a court would now treat such a statement as actionable. To call a lawyer a 'cheat' is held actionable. Rush v. Cavenaugh, 2 Barr, 187. Further see Goodenow v. Tappan, 1 Ohio, 60; Doyley v. Roberts, 3 Bing. N. C. 835.

4 Ayre v. Craven, 2 Ad. & E. 2.

fessional misconduct; and, without evidence connecting the imputation with the plaintiff's professional conduct, he cannot recover.1

If the imputation in itself come within the rule of liability under this head, it matters not that it was published of a servant, even one acting in a menial capacity. For example: The defendant falsely speaks the following of the plaintiff, a menial servant, before the latter's master, 'Thou art a cozening knave, and hast cozened thy master of a bushel of barley.' The defendant is liable to the plaintiff."

4

It is probably actionable to impute disqualification of a person holding a merely honorary or confidential office, not of emolument.3 It certainly is so to impute to such a person misconduct in the office. For example: The de fendant says of the plaintiff, who holds a public office of mere honor, touching his office, You are a rascal, a villain, and a liar.' This is a breach of the duty under consideration."

In all cases included under the present section, it is necessary that the plaintiff should have been in the exercise of the duties of the particular vocation at the time of the alleged publication of the defamation. For example: The defendant says of the plaintiff, who had been a lessee of tolls at the time referred to by the defendant, He was wanted at T; he was a defaulter there.' The words are not actionable per se."

1 Ayre v. Craven, 2 Ad. & E. 2.

2 Seaman v. Bigg, Croke Car. 480. 8 Onslow v. Horne, 3 Wils. 186.

4 Id.

5 Aston v. Blagrave, Strange, 617.

6 Bellamy v. Burch, 16 M. & W. 590; Gallwey v. Marshall, 9 Ex. 294.

7 Bellamy v. Burch, supra. Some of the old cases are contra, but they were overruled.