A clerk of the plaintiff proved that he had received the letter; that it was in the handwriting of the defendant; and that in the absence of the plaintiff he was in the habit of opening letters directed to him which were not marked “private.” He further stated that defendant, who was well acquainted with the plaintiff, was aware of the nature of his (the clerk’s) employment, and that he believed defendant knew that witness was in the habit of opening plaintiff’s letters.
Lord Ellenborough said that there was sufficient evidence for the jury to consider whether defendant did not intend the letter to come to the hands of a third person, which would be a publication.
Verdict for plaintiff. Damages, £100.[[418]]
SHEFFILL v. VAN DEUSEN
Supreme Judicial Court, Massachusetts, September Term, 1859.
Reported in 13 Gray, 304.
Action of tort for slander.
Bigelow, J.[[419]] Proof of the publication of the defamatory words alleged in the declaration was essential to the maintenance of this action. Slander consists in uttering words to the injury of a person’s reputation. No such injury is done when the words are uttered only to the person concerning whom they are spoken, no one else being present or within hearing. It is damage done to character in the opinion of other men, and not in a party’s self-estimation, which constitutes the material element in an action for verbal slander. Even in a civil action for libel, evidence that the defendant wrote and sent a sealed letter to the plaintiff, containing defamatory matter, was held insufficient proof of publication; although it would be otherwise in an indictment for libel, because such writings tend directly to a breach of the peace. So, too, it must be shown that the words were spoken in the presence of some one who understood them. If spoken in a foreign language, which no one present understood, no action will lie therefor.[[420]] Edwards v. Wooton, 12 Co. 35; Hick’s Case, Pop. 139, Hob. 215; Wheeler & Appleton’s Case, Godb. 340; Phillips v. Jansen, 2 Esp. 624; Lyle v. Clason, 1 Caines, 581; Hammond N. P. 287.
It is quite immaterial in the present case that the words were spoken in a public place. The real question for the jury was, were they so spoken as to have been heard by third persons? The defendants were therefore entitled to the instructions for which they asked.
Exceptions sustained.[[421]]
HANKINSON v. BILBY
In the Exchequer, January 28, 1847.
Reported in 16 Meeson & Welsby, 442.
Case. The declaration stated that the defendant, in the presence and hearing of divers subjects, falsely and maliciously charged the plaintiff, a gardener, with being a thief. Plea: Not guilty. At the trial, before Rolfe, B., it appeared that the words were uttered by the defendant, a toll collector, to the plaintiff, as he passed the Kingsland turnpike-gate, in the presence of several persons as well as the witness. The nature of the previous conversation between the plaintiff and defendant did not appear. The learned Baron told the jury that it was immaterial whether the defendant intended to convey a charge of felony against the plaintiff by the words used, the question being, whether the by-standers would understand that charge to be conveyed by them. Verdict for the plaintiff for £5.