if the words were meant and understood to convey such imputation.

§ 309. Slander imputing disease. The diseases intended by this class are such as are loathsome or involve moral disgrace. A charge that one has the small-pox is, however, not deemed to be actionable per se. It is essential that the disease be charged as existing at the time. If the statement be made in the past tense, it is not actionable per se under this class.

§ 310. Slander affecting one in his office, profession or trade.-It is essential that the occupation be one that is recognized by the law as legitimate, and that the slander touch one in the capacity of his occupation. Hence it is not actionable per se to say of a gambler that he cheats in cards. But it is actionable per se to say of an attorney that he disclosed professional communications; of a clergyman that he is a drunkard; of a physician that he is guilty of malpractice; of a judge that he takes bribes; of a mechanic that he is incompetent. It is also essential that the charge be made while the person is holding or pursuing the occupation. If made afterwards it is not actionable per se.

§ 311. Slanders actionable only by reason of special damages.—A satisfactory enumeration of such cases can not be made. Any defamatory words that produce actual damage may give a cause of action. The damages must, however, be such as are deemed to be the proximate result of the slander. If the damages are remote there is no cause of action. It is essential that the damages be pecuniary or material, such as the loss of a marriage, loss of employ

ment, loss of profits, or injury to business. Mere mental anxiety and distress are not such damages as will support the action.

§ 312. Slander of title.-Analogous to slander of the person whereby special damages are suffered, is what is called slander of title, i. e., false statements, either oral or written, with reference to a man's property or business whereby its value is diminished. If the language involves the reputation of the owner it may be actionable as slander of the person. But there are many cases in which only the property or business is affected. Such language is not in the strict sense slander or defamation at all, for these are concerned with reputation only. Inasmuch as in slander of title reputation is not involved, there is no aid given by the presumptions heretofore mentioned in plaintiff's favor. The plaintiff must establish by his evidence, 1st, that the words were false; 2d, that they caused injury to the title or property; 3d, that they were uttered maliciously; 4th, that plaintiff had the title or interest; 5th, that there was an absence of probable cause for using the words.

§ 313. Libel.-A libel need not necessarily be in writing or print. Any caricature, scandalous painting, drawing or effigy may constitute a libel. Any spoken charge that is actionable per se will if published in writing be a libel. Hence, it is libelous to charge in writing, crimes, diseases, or scandals affecting occupations. But libel goes further, its wider range being based upon the deliberate nature of the act, its permanent form, and the greater damage caused.

§ 314. Definition.-Any false and defamatory

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printing, writing, sign, picture, representation or effigy, tending to expose any person to public hatred or ridicule, deprive him of the benefits of public confidence or social intercourse, or designed to blacken and vilify the memory of a deceased person and tending to scandalize and disgrace his relations and friends, is a libel.

It is not necessary to prove special damages in any action for libel. If there is a libel at all, it is a libel per se.

It is not necessary that the libelous language impute crime or even disgraceful conduct; it is sufficient if the person is rendered contemptible or ridiculous.

As to charges affecting one's occupation, or imputing diseases, it is not essential in libel that they be made in the present tense, as is the case in slander. To impute by libel past misconduct or past diseases may also be actionable.

§ 315. Newspapers.-The constitutional guaranty of freedom of the press is often misconstrued, and it is popularly supposed that newspapers by virtue of their public nature are not held to so strict accountability for libel as mere private individuals. The law recognizes no such distinction. Freedom of the press means that there shall be no censorship by those in authority. Any man is free to write or publish whatever he chooses of another, but subject to the legal consequences if the publication be defamatory. Newspaper and individual must defend upon the same legal grounds.

We pass now to the principles common to both libel and slander.

§ 316. Publication. It is essential, in order to give an action for libel or slander, that the defamatory words shall have been published. By publication is meant communication to a third person. of the words be heard or read only by the person against whom they are directed, there is no liability; for his reputation, i. e., the estimation in which he is held by others, is not thereby injured. And if such person repeat the words, or show the letter to others, he has no cause of action, for the publication was his own act. But it is not material that the author of a libel or slander shall have intended a publication; he is liable if in fact there was communication to third persons otherwise than by the act of the person defamed. So, if one shout a slan

der, he is not liable if no one hears or understands, but he is if there be a listener known or unknown to him. And so it is publication of a libel if, after the author has parted with possession of it, it is read by one whom he did not intend to read it. Where two persons composed a libel together and sent it to the plaintiff, it was held to be a publication, the part that each took being a publication in the hearing and knowledge of the other. Every repetition of a slander or libel is a fresh publication, and gives a cause of action.

The law regards communications between husband and wife as privileged, therefore communication by either to the other of defamatory matter against others is not deemed to be a publication. But if such communication be in the hearing or to the knowledge of a third person, there is a publication.

A slander or libel against either a husband or wife, if heard or read by the other, is a publication.

§ 317. Construction. The general rule is that words are to be understood according to their plain and natural import, and when the language is clear and unambiguous the court will not, ordinarily, allow the meaning to be varied by testimony that the author intended or the hearers understood them in a different sense. For, ordinarily, the presence or absence of an intention to injure can not change the effect of the language; and, on the other hand, the fact that some persons misunderstood the language, ought not to determine its quality, good or bad. In the large majority of cases, however, there is room for question whether the language is to a greater or less degree injurious in its meaning. Wherever by reason of any local or provincial usage words have an unusual meaning, or wherever by reason of any special circumstances the language has a peculiar effect, the plaintiff may declare what such meaning or innuendo is, and such facts may be given in evidence and the language construed in the light of them. Such facts may be shown whether the result be to establish either an innocent or a harmful meaning. In cases where the language is ambiguous in any respect, the law has undergone some modifications. In the earlier actions the rule was that the words were to be construed in the most favorable sense, the theory being that such construction would suppress litigation. Later, it was held that words should be taken in an unfavorable sense, it being supposed that, by affording legal remedy, resort to personal violence for redress would be prevented. Still later