[430]. This abridged statement has been substituted. The arguments and all but one of the opinions have been omitted.
[431]. Compare Northrop v. Tibbles, (C. C. A.) 215 Fed. 99. See Smith, Jones v. Hulton, Three Conflicting Views as to a Question of Defamation, 60 University of Pennsylvania Law Rev. 365, 461.
[432]. The statement of the pleadings is abridged, and only the opinion of Littledale, J., is given. Bayley and Parke, JJ., concurred.
[433]. That the defendant repeated a defamation, giving the name of the author, seems originally to have been a justification. Northampton’s Case, 12 Rep. 134 (Fourth Resolution). But the name of the author was to be given at the time of repetition, and not for the first time in the plea. Davis v. Lewis, 7 T. R. 17. The words, furthermore, had to be given with sufficient exactness to ground an action against the author. Maitland v. Goldney, 2 East, 426. Doubts were thrown upon the validity of this justification in Lewis v. Walter, 4 B. & Al. 605. The whole doctrine was repudiated, as to libel, in De Crespigny v. Wellesley, 5 Bing. 392, and Tidman v. Ainslie, 10 Ex. 63; and as to slander, in McPherson v. Daniels; Watkin v. Hall, L. R. 3 Q. B. 396.
See to same effect Age-Herald Pub. Co. v. Waterman, 188 Ala. 272; Washington Herald Co. v. Berry, 41 App. D. C. 322; Brewer v. Chase, 121 Mich. 526; Hagener v. Pulitzer Pub. Co., 172 Mo. App. 436; Vallery v. State, 42 Neb. 123; Walling v. Commercial Advertiser, 165 App. Div. 26; Galveston Tribune v. Johnson, (Tex. Civ. App.) 141 S. W. 302. See also Whitney v. Moignard, 24 Q. B. D. 630.
In Speight v. Gosnay, 60 L. J. Q. B. 231, the words were not actionable without special damage and the special damage resulted only from unauthorized repetition by a third person.
[434]. This short statement of the case, taken from 3 Camp. 214, has been substituted for the declaration which is set out at considerable length in the original report.
[435]. “When our ancestors years ago drew the distinction between libel and slander, they exercised that kind of wise discretion which they always exercised over the whole field of the common law. It would to my mind be very dangerous for us nowadays to relax in any way the rule of law which confines actions for spoken words, in the absence of proof of special damage, to a very limited number of cases.” Vaughan Williams, L. J., in Dauncey v. Holloway, [1901] 2 K. B. 441, 448. See also A. L. Smith, L. J., Id. 447. But compare Colby v. Reynolds, 6 Vt. 489, 493; Tillson v. Robbins, 68 Me. 295.
The distinction sanctioned in the principal case between oral and written scandal still obtains in England and the United States. The definition of a libel as a written publication calculated to bring another into hatred, ridicule, or contempt, is also universally recognized in English-speaking countries. As it is a pure question of fact for the jury whether the publication in a given case comes within this definition, it has not seemed advisable to bring together in this book the multitudinous instances which have been passed upon. A full collection of the cases may be found in Odgers, Libel and Slander, (5 ed.) 18–38; Townshend, Slander and Libel; (4 ed.) 203–221; 25 Cyc. 255–264.
An action for a libel made in the course of judicial proceedings cannot be maintained until the proceedings have terminated in favor of the person defamed, Masterson v. Brown, 72 Fed. 136.