Isaac Colby vs. Elisha Reynolds, 6 Vt. 489

The opinion of the court was delivered by Williams, Ch. J. — This is an action for a libel. It is stated that the defendant published in one of the papers printed in this town, a communication which the plaintiff contends is libellous. The jury have returned a verdict for the plaintiff: they must have found that the publication was made by the defendant — that the innuendoes were true — that it was made with- an intent to injure the plaintiff, or in other words, that it was malicious, and that it was false.

This also may have involved the truth or falsity of the report in relation to the defendant, which was the subject of the publication. Inasmuch as the defendant in the publication, stated that a false report about him was in circulation, and put in circulation by the plaintiff, it was competent for him on the trial, to show that the report was false, as well as that the defendant was the author; and in that case, his justification would be complete.— On the other hand, the plaintiff might prove that the report in circulation was true, or that he was not the author.

The defendant, after a verdict against him, has moved in arrest for the insufficiency of the declaration; and the question, and the only question, which has now been made is, whether the publication is libellous. It is to be observed, that the declaration charges the defendant with having published a libel or written slander. A distinction has long been known and recognized between verbal and written slander. Words, when committed to writing and published, are considered as libellous, which if only spoken, would not subject the person speaking to any action.

Perhaps it is to be regretted that a distinction was ever made between oral and written slander; and if it was a new question, no distinction would now be made. The reasons which have been given for the distinction, have been questioned both by writers and judges of eminence. Ithasbeenmadehowever,andhasbeccme a part of the law, and as such we must receive it.

There can be no question, but that a slander written and published, evinces a more deliberate intention to injure, is calculated more extensively to circulate the accusation, and to provoke the person accused, to take the means of redress into his own hands, and thus to commit a breach of the peace, than mere oral slander which is spoken and soon forgotten. The report in circulation in relation to the defendant, while it was a mere report, was confined to the neighborhood, and could not have been very extensively known.

Whereas, had it been published, as was the slander of which the plaintiff complains, it would have been known to every reader of the paper, and have circulated as extensively as the paper circulated, and have excited the curiosity of many who never had heard of the parties before. Words spoken must impute some crime so as to endanger the person to whom they relate, or they must impute to him 'something which would tend to exclude him from society, and lead one to avoid him.

But a publication which renders the person ridiculous merely, and exposes him to contempt, which tends to render his situation in society uncomfortable and irksome, which reflects a moral turpitude on the party and holds him up as a dishonest'and mischievous member of society, and describes him in a scurrilous and ignominious point of view— which tends to impair his standing in society, as a man of rectitude and principle, or unfit for the society and intercourse of honorable and honest men, is considered as a libel.

The rule has been laid down by an eminent writer, and one who has endeavored to draw his principles from decided cases — “ That • any writings, pictures, or signs, which derogate from the character of an individual, by imputing to him either bad actions or vicious principles, or which diminish his respectability and abridge his comforts by- exposing him to disgrace or ridicule, are actionable without proof of special damage.

In short, that an action lies for any false, malicious, and personal imputation, effected by such means, ajad tending to alter the situation of the party in society for the worse.” — Starkie on Slander, 140. This rule is probably not more extensive than a due regard to justice requires.

It remains to be considered, whether the publication here complained of comes within the definition ; and without malting any comparison between this and the numerous casus which have been decided, we can learn its true nature and tendency from the publication itself; and we can, by reading it, discern whether or no the tendency of it was to impute to the plaintiff either' a want of moral rectitude, or to accuse him of a bad action and vicious principle, to hold him up as a dishonest, dishonorable and mischievous member of society, and one who ought to be avoided by honest and honorable men.

The publication in the first place charges that a report was in circulation highly injurious to the character and standing of the defendant as a member of society, and particularly as a member of the religious community with whom he was connected, and which, if not true, was a gross, scurrilous and indecent slander on the defendant. Second, that the report was false, and not only false, but done with a yiew to injure the defendant, implying that the report was fabricated and put in circulation with a malignant design. The defendant, no doubt, intended that it should be so understood.

No one could possibly have supposed by this, that the writer intended that the false report was fabricated by some one, and another had put it in circulation innocently; but it was undoubtedly intended to express or cause it to be believed that the author of the false report had given i.t circulation with an intent to injure; and that there might be no mistake as to the individual who thus put this false report in circulation, the plaintiff is directly charged with having put this false report in circulation, and by inference as the author and fabricator of the false and scurrilous charge.

If the defendant had contented himself with stating the report and then denying it, and by imputing improper motives to the person who put the report in circulation, without charging the plaintiff as the author, he would have been justified and would have come within the principle laid down by the court in Steele against Southivick, in their remarks upon the second count in the declaration. — 9 Johnson, 214.

But when he published that a false report was put in circulation, and put in circulation with a design to injure him, and that the plaintiff put the report in circulation, what other conclusion can wfe draw, than that he meant to charge the plaintiff with having with a mischievous intent, and with the malice of the common slanderer, published and put in circulation a false' and slanderous report of and concerning defendant ?

And can any one say that the tendency of this charge was not to impute most vile and dishonorable conduct to the plaintiff — to impute to him both a bad action and vicious principle — to impute to him a want of moral principle and cause him to be shunned by every honest and honorable man, as a common calumniator ? Surely, no one would be disposed to associate with a man who could thus calumniate his neighbors and put in circulation a report so scurrilous and so defamatory.

The necessary tendency of such an accusation, was to injure the situation and station of plaintiff in societyand according to the principles laid down in the adjudged cases, it must be considered as a libel, and even the ingenuity which in former times was. exercised, to give to words the mildest

interpretation, could npt by any - forced and unnatural construction of the'publication, -treat this publication as wholly innocent, and not imputing any thing to the plaintiff injurious or scandalous. The judgment of the county court must therefore be affirmed.