The rule appears to be, that the damage must be the mere, natural, and immediate consequence of the wrongful act.

The defendant asserted, that the plaintiff had cut his master's cordage ;* upon which the master discharged him, though under an engagement to employ him for a term. It was held by the court, that the discharge was not a ground of action; that the special damage must be the natural and legal consequence of the words spoken; and that the defendant was no more answerable for the discharge, than if, in consequence of the words, other persons had assaulted and thrown the plaintiff into a horse-pond.

The damage must be attributable wholly to the words; so that where the reason of a person's refusing to employ the plaintiff was founded, partly on the defendant's words, and partly on the circumstance of his having been previously discharged by another master, it was held that no action was maintainable.†

And it seems, that in general, where, in consequence of the words, a third person has refused to perform a contract previously made with the plaintiff, and which he was in law bound to perform, no action is maintainable; for the plaintiff, in such case, is entitled to a compensation for the non-performance of the contract; and, were he allowed to maintain his action for the slander, he would receive a double compensation for the same injury: first, against the author of the slander; and se

*Picars v. Wilcocks, 8 East, 1. 18 East, 1.

12 Bos. and Pull, 284. 8 East, 1.

condly, against the person who had refused to perform his agreement.

This legal difficulty may, in some instances, be productive of hardship to the plaintiff: he may resort, it is true, to his legal remedy against the person refusing to perform his contract; but this can scarcely be considered as a full and real compensation to the party, who, by the defendant's wrongful act, has had a benefit in possession wrested from him, and converted into a bare legal right.

The defendant* having libelled a performer at a place of public entertainment she refused to sing, and the proprietor brought his action on the ground of special damage, alleging that his oratorios had, in consequence of her absence, been more thinly attended. But it was held, by the learned judge who presided at the trial, that the injury was too remote; that if the performer was really injured, an action lay at her suit; and that it did not appear but that her refusal to perform arose from caprice or indolence.

The plaintiff having once recovered damages in an action for words, cannot afterward recover an ulterior compensation for any loss subsequently resulting from the same words. Where the plaintiff,+ knowing the defendant's sentiments, procures the publication of that from which damage results, he will not afterward be at liberty to ascribe his loss to the defendant's act, but be considered as the voluntary author of the mischief which follows.

* 1 Esp. R. 48.

13 B. and P. 592, 5 Esp. R. 15.

Bull. N. P. 7.

CHAPTER VIII.

Of the Defendant's Wrong.

HAVING thus considered the nature and quantity of the damage which the plaintiff must have sustained to entitle him to a legal compensation, the next question for inquiry is, When shall the act of communication be deemed a wrong? Since, as has already been seen, it is the connexion of the plaintiff's loss with the defendant's wrong,† which renders the title to a remedy by action complete. The wrongful act of the defendant is compounded,

1. Of the mere mechanical means by which the communication is effected.

2. Of the malicious intention with which it is made.

In order to support an action, it is, of course, essential that the slanderous matter should be conveyed to the mind of a third person, or, in technical language, should be published, for otherwise no detriment can have accrued from the plaintiff's act; but, with the exception of the case of libel, the means of publication are indifferent, and do not affect the relevancy of the action.

In the case of libel, it is sufficient if the defendant be the partial instrument of communication, either by assisting in its original construction or subsequent promulgation; since, if one party were to

*P. 8.

t1 Com. Dig. tit. Action on the Case. B. 1. 4 T. R. 141

dictate, a second to write, and a third to distribute written or printed slander, the plaintiff would be left without remedy, unless each of these parties were to be considered as responsible for the whole effect produced.

The subject of publication will hereafter be discussed as a matter of evidence; assuming therefore for the present, that some publication has been made to a third person, with the defendant's knowledge, and through his procurement,* the next point for consideration is

The malicious intention with which he published. The characteristic of wrong, in these cases, is, the wilful design and intention of the defendant to injure the object of his publication.(1)

Every definition of the subject matter of an action for slander, to be found in the books of reports, or elementary writers, includes malice as an essential ingredient; whence it may be laid down as a general position, that whenever a damage of the nature described in the preceding chapters, results from a malicious intention on the part of the publisher, an action is maintainable.

There is, however, a distinction between malice, when used in the strict legal sense of the word, as the characteristic of the defendant's wrong, and as understood in its moral and more popular acceptation.

In the latter sense, malicious slander consists in

* See Baldwin v. Elphinstone, Bl. Rep. 1037.

(1) The insanity of the defendant, the refore, at the time of speaking the Dick words, would be matter of defence, provided it was great and notorious. inson v. Barber, 9 Mass. Rep. 225. Horner v. Marshall's Adm. 5 Munf. 466.

"The relating either truth or falsehood for the purpose of creating misery."

But the law, from reasons of policy, in many instances, presumes conclusively that the intention of the party was innocent, or at least will not suffer his motives to be questioned in an action for slander.

And this happens where he is acting under the immediate sanction of the law, in the performance of some public or private duty; in such cases, he may publish that which is detrimental to another, either from a sense of duty, or, as is very possible, may take advantage of his situation for the purpose of mischief and vexation.(1) Now, though the moral offence, which depends merely upon the malicious intention, cannot be extenuated, but is rather aggravated by the selection of such an opportunity for effecting mischief, yet the law, on account of the inconveniences and perplexities which would arise from inquiring in such cases, into the real motives by which the party was influenced, prohibits such investigation, and will not permit the act to be attributed to any other origin than the proper and conscientious one suggested by the situation of the defendant.

Were every malicious and oppressive act to be considered illegal, the law would be very agreeable to the theorist, but utterly unfit for the practical purposes of society, on account of the infinite perplexity and uncertainty which would occur in distinguishing between bad and good motives, where

* Paley's Philosophy, Vol. I. p. 286.

(1) See Schock v. M'Chesney, 2 P. A. Browne's Rep. 65. Opinion of Brackenridge J.