62. Nor is it a justification of a libel that it is only a repetition of one already and previously published.

In the Earl of Northampton case, in the star chamber,1 A. D. 1613, it was laid down that it would be a defense to an action for words, to show that the defendant repeated them, and that they were not original with him. The rule was allowed to stand in this condition until in 1769. Lord Kenyon, in a case before him, added the qualification that,(to justify the publication, the defendant must, at the time thereof, have mentioned the name of the previous publisher, and that it would not be sufficient to mention it for the first time in his plea. In 1805, this was further qualified by asserting that, if the prior publisher had retracted the slander to the knowledge of the defendant, the latter would not be excused by mentioning his authority.

3

In this country, in certain States, the mention of the authority was never considered a defense, but only is injurious to the plaintiff. If the libel charges the commission of several crimes, or the commission of a crime in a particular manner, the plea must justify the charge as to the number of crimes, or the manner of committing the crime. If the crime is charged with circumstances of aggravation as here, the plea is clearly bad if it omit to justify that. . . . If the libel had imputed murder simpliciter, it would have been enough to show in the plea that the plaintiff had committed murder. But if the libel goes further, and states something besides, which is injurious to the plaintiff's character, it is clear upon every principle of the law of libel, that that must be justified as well as the rest, or the defense fails." Helsham v. Blackwood, 11 C. B. 128, 20 L. J. 187 C. P. Vide also. Clarkson v. Lawson, 6 Bing. 266; Clark v. Taylor, 2 Bing. N. C. 654; 3 Scott, 95.

12 Rep. 132; Moore, 821. See Crawford v. Middleton, I Lev. 82.

2 Davis v. Lewis, 7 T. R. 17.

In Woodnoth v. Meadows, 5 East, 463.

as going in mitigation1 or as rebutting an inference of malice; while in others it has been held to be a justification.3

But giving the name of an authority appears never to have been considered a justification of a libel,* even though the first publisher were the plaintiff himself."

1 As in Connecticut, Leister v. Smith, 2 Root, 24. But see Austin v. Hanchett, Id. 148; Treat v. Browning, 4 Conn. 408. In Pennsylvania, Kennedy v. Gregory, 1 Ben. 90, (n). New Jersey, Cook v. Barkley, 1 Penn. N. J. R. 169. Mississippi, Jarnigan v. Fleming, 43 Mis. 711.

2

Benns v. McCorcle, 2 P. A. Brown, 79; Hirsh v. Ringwalt, 3 Yeates, 508.

* Abrams v. Smith, 8 Blackf. 95; Haynes v. Leland, 29 Me. 233; Jones v. Chapman, 5 Blackf. 88; Crane v. Douglass, 2 Id. 85. See generally, Mapes v. Weeks, 4 Wend. 659; Austin v. Hanchett, 2 Root, 148; Skinner v. Grant, 12 Vt. 456; Scott v. Peebles, 2 Sme. & M. 546; Gilman v. Lowell, I Amer. Mead. Cas. 202, n.; 2 Greenl. Ev. § 424, n.; Cummerford v. McAvoy, 15 Ill. 311; Johnston v. Lance, 7 Iredell, 448; Kelly v. Dillon, 5 Ind. (Porter), 426; Trabue v. Mayo, 3 Dana, 138; Robinson v. Harvey, 5 Monr. 519; Parker v. McQueen, 8 B. Monr. 16. Miller v. Kerr, 2 McCord, 285; Church v. Bridgeman, 6 Miss. 190. And see Easterwood v. Quin, 2 Brevard, 64; Smith v. Stewart, 5 Barr. 372; Sexton v. Todd, Wright (Ohio), 317; Haine v. Welling, 7 Ham. 253; Farr v. Roscoe, 9 Mich. 353; Brooks v. Bryan, Wright, 760.

Runkle v. Meyers, 3 Yeates, 518; Dole v. Lyon, 10 Johns. 447; Larkins v. Tarter, 3 Sneed, 681; Miles v. Spencer, 1 Holt, N. P. 533; Lewis v. Walter, 4 B. & Ald. 605; Chevalier v. Brush, Anthon's Law Student, 186; Mapes v. Weeks, 4 Wend. 659; Inman v. Foster, 8 Id. 602; Hotchkiss v. Oliphant, 2 Hill, 510. And see Johnston v. Laud, 7 Iredell, 448; Dole v. Lyon, 10 Johns. 447; Clarkson v. McCarty, 5 Blackf. 574; Moberly v. Preston, 8 Mis. 462; Romayne v. Duane, 3 Wash. C. C. 246; State v. Butman, 15 La. An. 166; McGregor v. Thwaites, 3 B. & C. 24; 4 D. & R. 695; De Crespigny v. Wellesly, 5 Bing. 392; Bennett v. Bennett, 6 C. & P. 588; Fidman v. Linslie, 10 Exch. 63; Saus v. Joerris, 14 Wis. 663; Cook v. Ward, 6 Bing. 409; Abshire v. Cline, 3 Ind. 115.

Abshire v. Cline, 3 Ind. 115; Cook v. Ward, 6 Bing.

63. A defamatory publication, true in part and false in part, will be held libelous as to the part which is false.1

So where the libel alleged that the plaintiff, a proctor, had been suspended from practice three times for extortion, a plea in justification which alleged only one suspension, was held bad. It was urged on behalf of the defendant in this case, that it was sufficient if the sting and substance of the libel were answered by the plea, and that the discredit attaching to a single suspension from office, was not substantially aggravated by a repetion of similar reproof; but the court did not agree that a man's character would not fall into lower discredit by the imputation of repeated offenses, than by the imputation of one only; and held that the plea fell within that class which, professing to justify the whole of the libel, in effect justifying only a part, are therefore bad.2

1 Mountney v. Walton, 2 B. & Ad. 673. Vid. also Chalmers v. Shackell, 6 C. & P. 475.

2 Shortt, L. Lit., p. 393; Campbell v. Spottiswoode, 3 B. & S. 769.

And where the libel consisted of a paragraph published in a newspaper, stating, in substance, that the plaintiff was a confederate of blacklegs; that he had sought admission into a yacht club; that he gave an entertainment in the expectation of being elected, but was blackballed, and the next morning bolted, and some of the tradesmen of the town had to lament the fashionable character of his entertainment—a plea of justification, which, after alleging facts to show that the plaintiff was the confederate of persons who had been guilty of cheating at cards, and the facts of his giving an entertainment, and being blackballed, &c., stated "that on the following morning he quitted the town and neighborhood, leaving divers of the tradesmen, to whom he owed money, unpaid," was held bad, because the quitting might be innocent and without any intention to defraud. "The libel, as stated in the declaration,” said Parke, B., "imputes to the plaintiff a fraudulent evasion of his creditors, he being unable to pay them. The plea does

64. But on the other hand, if the truth of the substantial imputation contained in the libel be proved, the justification need not extend also to every epithet or term of general abuse which may be found in the description or statement of the imputation, and which contains no ground of charge substantially distinct in its nature or character, from that which forms the main charge or gist of the libel."

not meet that; for the plaintiff might be unable to pay without being guilty of fraud, as imputed by the word 'bolting,' used in the libel. That expression charged the plaintiff with going away suddenly from Plymouth, leaving debts unpaid, and under such circumstances that the creditors could not find him, and therefore means more than the mere 'quitting,' which is stated in the plea. That would be an innocent departure, and consistent with proof that he went out of town for a day, but afterwards returned and paid his debts" (O'Brien v. Bryant, 16 M. & W. 168).

See also Wadsworth v. Bentley (23 L. J. 3 Q. B.), where the declaration in an action of slander alleged that the defendant spoke of the plaintiff, in the way of his trade, the words, "He cheated me"; "He is a thief, and robbed me of £100"; and contained an averment of special damage, and the defendant pleaded a former judgment recovered for the same grievances. The record of the previous action showed the slanderous words to have been: "That thief is a villain, a scoundrel, and a rascal, and I can prove him a thief at any moment"; and it neither alleged that the words were spokenof the plaintiff in the way of his trade, nor contained an averment of special damage. This was held to be no bar to the action. "I cannot think," said Crompton, J., "that the cause of action in that record, which contains words charging the plaintiff with felony, is the same cause of action as that in the present declaration, which imputes a charge against the plaintiff as a trader."

1 Morrison v. Harmer, 3 Bing. N. C. 76; 4 Scott, 933. So, in an action for libeling the plaintiffs in their business of sellers of medicine, by publishing that the defendants claimed. "the merit of having crushed the self-styled hygeist system of wholesale poisoning, since they commenced exposing the homicidal tricks of those impudent and ignorant scamps who had the audacity to pretend to cure all diseases with one kind

65. "Our laws," said the court in a late case,1 "allow a man to speak the truth, even if it be done maof pill;" and that "several of the rot-gut rascals had been convicted of manslaughter, and fined and imprisoned for killing people with enormous doses of their universal vegetable boluses," &c.; the defendants pleaded a justification of the libel on the ground of truth, but did not justify the expressions. scamps" and "rascals;" and they proved at the trial that two persons had died in consequence of taking large quantities of the plaintiff's pills, and that the parties who had administered the pills were tried, convicted, and imprisoned for manslaughter. The defense, after verdict, was held sufficient, though the plea contained no justification of the expressions "scamps" and "rascals," and though it had not been proved that the defendants had "completely crushed the self-styled hygeist system of wholesale poisoning."

As to the objection grounded on the non-justification of the words "scamps" and "rascals," the court said: "It must. be admitted that if these terms of invective and reproach contain any ground of charge or imputation against the plaintiffs, substantially distinct in its nature or character from that which forms the main charge or gist of the libel, and the truth of which has been justified by the plea, the consequence contended for on the part of the plaintiffs would justly follow, for the plea upon that supposition would not contain an answer to so much of the declaration as by the commencement of the plea it expressly undertakes to justify. The main charge against the plaintiffs in the libel is, that they were the compounders and sellers of pills of a poisonous and deleterious nature; and the main and principal allegation in the plea of justification is, 'that the pills sold by the plaintiffs, when administered and taken in the doses and quantities suggested and recommended by them, were of a highly dangerous, deadly, and poisonous nature, and in the highest degree injurious to the stomachs and bowels of persons using and taking the same.' The question therefore

Baum v. Clause, 5 Hill, 199, and see Foss v. Hildreth, 9 Allen, 76.

By the Code Napoleon, in cases of libel, the defendant was not allowed to adduce proof of his asseverations. This law was repeated by the National Assembly in 1781, but only so far as libels against Government functionaries are concerned. A writer libeling a private person is still denied the privilege of proving that his libel is truth.