What is a publication of a libel.

The sale or distribution of copies by the defendant, or by his shopboy, if done openly and not clandestinely, in the course of his employment, or maliciously reading or singing the contents of the libel to others, is a sufficient publication. See 2 Bur. 2666.

If one procure another to publish a libel, such a person is a libeler, and the actual publisher is a competent witness to prove it. 7 East, 65. Where a libelous letter is sent by post, it is a publication in any county to which the letter is sent. 1 Camp. 215.

To write down libelous matter, dictated by another is stated to be a publication. 5 Mod. 163. To transcribe a libel merely, is not.

To set up an effigy, or ridiculous or scandalous figure, emblem, picture, or sign, before a man's door, is a publication of a libel; but the application of it to the plaintiff, must be ascertained by sufficient inuendos and averments, and generally must be followed by a statement of special damage. 5 Co. 125.

If a libel is inserted at A's request in a paper published in an adjoining state, which usually circulates in the town of B, within the county of C, in this state, it is competent and conclusive evidence of a publication in the county of C. Commonwealth v. Blanding, 3 Pick. 304.

See 7 East, 65.

For more on the subject of publication, see 3 B. & A. 714, 717.

Under the Revised Statutes of Massachusetts, actions for slander must be brought within two years from the time of speaking or publishing. ch. 120, sec. 20.

3. Slander of title.

This action may be maintained where a person is in treaty for the sale of an estate, or where it is set up at auction, and another, by false affirmations respecting his title, i. e. either, that he has no title to it, if he holds it by purchase, or that he is a bastard, if he claims by descent, or that the land is incumbered, under attachment, &c. so as to be of little value, prevents a sale of the land. Special damage must be averred by the plaintiff, as that he could not sell, or lease the land, &c. Cro. Car. 140; 2 Cro. 484.

This action, however, cannot be maintained, unless the words are spoken maliciously and are false. For if the defendant claims the land himself, and the words complained of, are the mere assertion of this claim, no action can be maintained, though his claim is unfounded. 1 Sal. 14; Cro. Eliz. 197, 427. Neither can it be maintained against counsel, for any opinion respecting the title, given to one who consults him. R. M. 187. This action, however, rarely occurs, and it seems that any person thus injured, in this country, must rely rather upon general principles to maintain his action, than upon the authority of judicial decisions, settled by our tribunals.

DECLARATIONS IN CASE FOR SLANDER.

For words containing a charge of forgery, &c.

For that whereas the plaintiff is a good, true, honest and

day

just citizen of this commonwealth, and from the time of his birth, hath hitherto always behaved and governed himself as such; and during all that time, hath been held, esteemed, and reputed to be of a good name, character and reputation, as well among a great number of his fellow-citizens as among all his neighbors and acquaintance; and, during all that time, hath never been guilty, nor justly suspected of having been guilty of any kind of forgery, cheating, deceit, or fraud, or any other such hurtful or disgraceful crime; and whereas the plaintiff, on &c., and long before was, and still is, a captain of a company of foot, in the first regiment, second brigade, and second division of the militia of the commonwealth aforesaid; and, during all that time, hath governed and conducted himself in his said office with uprightness, integrity, and honor; and whereas the said D, on the said of &c., and long before was, and still is, a person liable to do duty in said militia, and was one of the soldiers and members, of and in the said company of foot; yet the said D, well knowing all and singular the premises aforesaid, but contriving and maliciously intending to hurt, injure, and degrade the plaintiff in his aforesaid good name, character, and reputation, and in his said office, and to cause it to be believed, that he had acted unjustly, deceitfully, and dishonorably in his said office, and to subject him to the pains and penalties by the laws of this commonwealth provided against those, who commit any kind of cheating, forgery, or fraud, did, on the said day of &c., in a certain discourse, which the said D then and there had with the plaintiff, in the presence and hearing of divers good and worthy citizens of this commonwealth, of and concerning the plaintiff in his said office and otherwise, falsely and maliciously say, speak, and publish these following false, scandalous, and defamatory words to, of and concerning the plaintiff, so being captain as aforesaid, in the presence and hearing of those citizens, to wit, "How came you (meaning the plaintiff) to send me (meaning himself the said D) such an account (meaning and intending thereby a certain memorandum or account, then before presented and delivered to the said D, by one of the sergeants of said company of foot, of and for sundry articles of arms and equipments wherein the said D as such soldier as aforesaid, and one of the members of said company, had been deficient at an examination or review of arms, then before had of and for said company.) You (meaning the plaintiff) forged it (meaning the said last

mentioned memorandum or account;) you (again meaning the plaintiff) might as well have forged an account or note of hand against me," (again meaning himself, the said D;) and further meaning and insinuating by the several words aforesaid, that the plaintiff had been guilty of forgery, and had otherwise acted unjustly, deceitfully, and dishonorably in his said office.

2d COUNT.

Setting out the words differently.

And the plaintiff in fact further says, that, afterwards, to wit, on &c., at &c., in a certain other discourse which the said D, then and there had with divers other good and worthy citizens of this commonwealth, of and concerning the plaintiff in his said office, and otherwise, the said D with the malicious contrivance and intention aforesaid, and for the several purposes aforesaid, did falsely and maliciously say, speak, and publish of and concerning the plaintiff, so being such captain, as aforesaid, in the presence and hearing of those last mentioned citizens, these other false, scandalous, and defamatory words following, to wit; "He (meaning the plaintiff) has forged his muster-roll (meaning thereby the roll of the said company, which the plaintiff, as such captain and commanding officer of said company, was obliged by law to keep,) by interlining it, (again meaning the said roll,) I (meaning the said D) don't know what you call it; I (again meaning himself) call it forgery; further meaning and insinuating by the several words last aforesaid, that the plaintiff had been guilty of forgery, and had likewise acted unjustly, deceitfully, and dishonorably in his said

office.

3d COUNT.Setting out the words differently.

And the plaintiff further says, that afterwards, to wit, on &c., at &c., in a certain other discourse, which the said D then and there had with divers other good and worthy citizens of this commonwealth, of and concerning the plaintiff, in his said office and otherwise, the said D with the malicious contrivance and intention aforesaid, and for the several purposes aforesaid, did falsely and maliciously say, speak, and publish of and concerning the plaintiff, so being such captain as aforesaid, in the presence and hearing of those last mentioned citizens, these other false, scandalous and defamatory words following, to wit; "He (meaning the plain

tiff) has been guilty of forgery; and I (meaning himself the said D) can prove it and mean to; (meaning thereby, that he intended to prosecute the plaintiff, and procure him to be indicted for the said crime of forgery ;) and mean to break him, (meaning the plaintiff, and further meaning, that he intended to procure the plaintiff to be tried, as such captain as aforesaid, by a court-martial, and to be thereby removed from his said office,) and take away his commission (meaning the plaintiff's commission as such captain as aforesaid ;) for he (meaning the plaintiff) is not fit to command a company;" further meaning and insinuating by the several words last aforesaid, that the plaintiff had been guilty of forgery, and had otherwise acted unworthily, unjustly, deceitfully, and dishonorably in his said office.

And the plaintiff in fact further says, that afterwards, to wit, on &c., at &c., in a certain other discourse, which the said D then and there had with divers other good and worthy citizens of this commonwealth, of and concerning the plaintiff in his said office, and otherwise, the said D, with the malicious contrivance and intention aforesaid, and for the several purposes aforesaid, did falsely and maliciously say, speak, and publish of and concerning the plaintiff, so being such captain as aforesaid, in the presence and hearing of those last mentioned citizens, these other false, scandalous, and malicious words following, to wit, "Captain B (meaning the plaintiff) was guilty of forgery."

5th COUNT. In general terms for charging the plaintiff with forgery. And the plaintiff in fact further says, that afterwards, to wit, on &c., at &c., in a certain other discourse, which the said D then and there had with divers other good and worthy citizens of this commonwealth, of and concerning the plaintiff, the said D, with the malicious contrivance and intention aforesaid, and for the several purposes aforesaid, did falsely and maliciously, openly and publicly charge the plaintiff with the crime of forgery, in the presence and hearing of those last mentioned citizens.

General Conclusion.

By means of the speaking and publishing of which said several false, scandalous, and defamatory words, and of the said false and malicious charge, the plaintiff is further great

ly injured and prejudiced in his good name, character and reputation aforesaid, and has been suspected and believed to have acted unworthily, unjustly, deceitfully, and dishonorably in his said office, and has been rendered liable to be presented and indicted for the crime of forgery, and has likewise further undergone great pain, distress and trouble, both of body and mind, and has been otherwise greatly injured and prejudiced. Essex Nov. Term, Bartlett v. Haskell, S. J. C. 1801. T. PARSONS & C. JACKSON.

NOTE. The declaration in slander may either lay the words spoken, or set out the substance of the words. If the substance only (as in the fifth count of this declaration) be set out, as that the said D charged the plaintiff with such a crime, then it is sufficient to prove the substance. Nelson v. Dixit, Cas. Temp. Hard. 305. But if the very words are laid, they must be proved as laid; though a slight variation, if agreeable in substance, would not vitiate. Ibid. So if immaterial words are proved to be spoken, more than laid in the declaration. Ibid. So if the words are laid, you are so and so; and the words proved are, he is so and so; such variance is immaterial. Ibid. But quære as to this last; for Ld. Mansfield, in the case of Avarillo v. Rogers, ruled the contrary. Bull. N. P. 5; Esp. N. P. 521; so, on indictment, where the words were alleged to be spoken of the prosecutor, and proof of words spoken to him, it was adjudged a fatal variance. 4 T. R. 217. So proof of words spoken interrogatively, will not support a count for words spoken affirmatively. 8 T. R. 150. So if the words laid are, I will hang him; and the words proved are, I will hang them; it is a material variance. Cas. Temp. Hard. 305. On the whole, therefore, the last seem the better opinions. (MSS.)

Against two for conspiring together to charge the plaintiff, a single woman, with incontinence, with special damage.

For that the plaintiff is a modest and chaste virgin, and, at the time of the conspiracy and accusation, hereinafter mentioned, was a menial servant of A B, and a person of good character and reputation; nevertheless, the said D and E, well knowing the premises, of their own mere malice, conspiring together to defame and injure the plaintiff, and to deprive her of her said place and service, while she was a menial servant of the said A B, as aforesaid, viz. on &c., at &c., in pursuance of their said conspiracy, did falsely and maliciously, in the presence and hearing of divers good citizens of this commonwealth, falsely, maliciously, and without any probable cause whatever, accuse the plaintiff of committing fornication with the said D; by reason of which said false and malicious accusation, the plaintiff was put and turned out of the service of the said A B, and is thereby deprived of the means of getting her living, &c. (Allered from English MSS.)