
    John A. Fonville vs. John M’Nease.
    Words written and published, may be-actionable, which, if spoken, would not be so, without special damage. But they must be such, as in the common estimation of mankind, are calculated to reflect shame and disgrace upon the person concerning whom they are written, or hold him up as an object of hatred, ridicule, or contempt.
    Throwing a sealed letter, addressed to the plaintiff or a third person, into the enclosure of another, who delivers it to the plaintiff himself, is not such a publication as would render the defendant responsible in an action for damages. It would be otherwise had such third person read the letter, or on hearing of it required the plaintiff to do so.
    Nor-would it amount to a publication though the plaintiff afterwards repeated the contents of it publicly, and the defendant avowed himself the .author.
    BEFORE EARLE, J.? AT DARLINGTON, SPRING TERM, Í.83S.
    This was an action on the case for a libel; the words which constituted the cause of action, were contained in a sealed letter directed to the plaintiff, or “ Miss Susan Sloan,” but delivered to, and opened by the plaintiff himself. It contained nothing which if spoken would have been actionable as a criminal charge, and there was no special damage laid in the declaration.
    A witness testified, that she picked up a sealed letter within her enclosure, which she believed to be the same as that on which this action was brought. Not being able to read the superscription herself, her son informed her that it was directed to the plaintiff. She carried it to him, and he broke it open, and read it aloud in her presence.
    Several other witnesses testified, that afterwards, at Dar-lington Court ITouse, in a public company, the plaintiff said “ some one has written me a ridiculous letter and signed no name to it.” The defendant being present and in hearing-said, “ I am the man who wrote it.” The plaintiff then said to him, “ you put it in a certain person’s yard where you knew I would get hold of it” — “ you said in that letter that you would like to see me, but that it was such a distance we might never meet” — “ you said you respected my wife and Susan, that they came of good parentage; and that I also came of good parentage, but that I disgraced it” — to all of which, the defendant replied “ I did.” It was also proved by a witness that the defendant had given him a letter, and had requested him to deliver it to the plaintiff, or to drop it near his residence; but the witness refused to do so, and returned it to the defendant. He did not read the letter, nor were its contents shown to him.
    A motion was made for a nonsuit, 1st. Because there was no proof of publication by the defendant; and 2d. Because the expressions contained in the letter were not actionable by themselves, without special damage. '
    The presiding Judge granted* the motion, and the plaintiff appealed, and moved to set aside the nonsuit ordered, on the following grounds:
    1st. That the written words proved, are actionable per se.
    
    2d. That there was sufficient proof of publication by the defendant.
    
      Dargan, for the motion, argued:
    1st. The first ground for setting aside the nonsuit is, that the words charged and proved are actionable per se.
    
    It is contended for the plaintiff^ that the words if spoken only, would have been actionable.
    
      It is actionable to charge, by words spoken, an individual with a crime of great moral turpitude, or with a crime, the punishment of which would be infamous. Brookes vs. Coffin, 5 Johnson, 188.
    The crime charged on the plaintiff in the libel proved, was that of swindling; and it will scarcely be denied that it is one of great moral turpitude.
    In 6 Bacon Abr. title slander, in treating of words that.are actionable per se, it is said that “ words that are disgraceful to a person of a profession or trade are actionable.”
    The profession first' treated of in connection with this subject, is that of a clergyman : and it is there said an action lies for publishing these words of a clergyman — “ he is a drunkard.” r'"3S!
    So.it does for these words: “he preaches nothing but lies and malice in his pulpit’ — see Cranden vs. Walden, 3 Levinz 17; 1 Roll. Abr. 58.
    So it does for these words: “he is a rogue and a dog; and never will be good until he is three feet under ground. I would rather my son should make hay on a Sunday, than to hear him preach.”
    So it does for these words: “ he is.an old rogue and a contemptible fellow, and hated by everybody.”
    But if the words charged and proved are not actionable per se, as words spoken, they are a libel actionable per se.
    
    See Janson vs. Stuart, 1 Term Rep. 784, where it was held, to print of a person that he is a swindler, is a libel and is actionable.
    A libel is defined to be “ a malicious defamation expressed either in printing or writing, or by signs and pictures, tending either to blacken the memory of one who is dead, or the reputation of one who is alive, and thereby exposing him to public hatred, contempt and ridicule.” 3 Bac. Abr. 490; Hawk. PI. Or. 193; 5 Modern R. 165;. 12 Mod. 221; Lord Raymond, 418, 5 Ooke, 125, b. 3 Bl. Com.
    In Villan vs. Mosely, 2 Wils. 403, which.is a leading case on this subject, Wilmot, J., says, if a man deliberately and maliciously publish anything of another which renders him ridiculous, or tends to hinder others from, associating with him, an action lies.
    
      Accordingly it was beld in that case, to charge another with having the itch, and to describe him as “ an itchy old toad” was actionable per se.
    
    Starkie on Slander, Appendix, page 58.
    A definition of a libel given by Counsellor Hamilton, in the People vs. Crosswell, 3 Johns. 334, and recognised by the Supreme Court of New York, in Steele vs. Southwick, 9 Johns. 215, is this; that “ a libel is a censorious or ridiculing writing, picture, or sign, made with a malicious and mischievious intent towards government, magistrates, or individuals.”
    This definition has been recognised and adopted by this Court in the case of The State vs. Farley, 4 McCord’s Rep. 316.
    2d. Theuecond ground for setting aside the nonsuit is, that there wassufiicient evidence of a publication by the defendant. A
    
    The old writers on the common law lay it down as a rule, that sending an abusive private letter to a man is as much a libel as if it was openly .printed: 2 Browne, 151; Hob. 216; Poph. 139; 1 Hawk. P. 0. c. 73, Sec. 11; 4 Comyn, Title Libel, c. 11, p. 150; Dr. Lamb’s case, 9 Rep. 59, 12 Coke, 35, Comyn’s Digest; Libel, Letter B. Sec. 2.
    But it is said that sending an abusive letter under seal, to the person who is the subject of the libel, is not actionable; and authorities exist to this effect — whether they are sufficient to reverse the ancient and clearly recognised doctrine of the common law, is submitted to this Court.
    The cases relied on, are cases iu which the letter was sent under seal to the party injured. But there is no case in which a letter sealed and thus addressed and thrown on the highway, or into the premises of another, and subject to all the hazards of its contents being exposed to the first finder, is not a publication. There is a just and obvious distinction between sending such a letter, through a special and confidential agent, or through the general agency even of the Post Office Department, which is bound to fidelity by high and solemn sanctions and responsibilities, and abandoning the libel to every curious eye, whieh might choose to pry into its contents.
    The contents of the letter thus abandoned, might be to a certain extent pryed into without violating the seal. The dews or the rains might dissolve the seal; and the seal removed without human agency; or the letter might fall into hands that would be little scrupulous about the sanctity of a seal.
    It must be recollected, (as the authorities already quoted, and those that will be hereafter quoted, abundantly show,) that the gist of this action is not the fact that the plaintiff has actually sustained damages, but it*is the tendency of the libel to injure his reputation, &c. It is so, in all actions for words that are actionable per.se,
    
    Now, what is the tendency of such an exposure of a letter, though under seal. It is manifest- that the defendant was reckless of the consequences of his act, and whether the contents of the letter met other eyes than those of the plaintiff, or not, is immaterial.
    This libel, therefore, even when considered as addressed to the pláintiff alone, was under the circumstances. sufficiently published, and comes clearly within the rule of its tending to injure the plaintiff.
    But the libel in question was addressed to two persons; to the plaintiff, and “ to Miss Susan Sloan” — either, therefore, had the right to open the letter.
    Considering this letter as addressed “ to Miss Susan Sloan,” as well as to plaintiff, it falls precisely within the principle established in all those cases where the sending a libellous letter to a third person, has been held actionable.
    Phillips on Ev. 2 vol. 98, says, that the publication of a libel may be by distributing it, repeating its contents in the presence of others, or sending it to a third person.
    It has been held that sending a libellous letter to a third person, calling the plaintiff a villain, is actionable, and that without proving a special damage. Bell vs. Stone, Bos. & Pul. 330. See Lord Raymond, 341, 417, 486.
    Let it be borne in mind, that as in the case of an indictment for a libel, it is the tendency to provoke a breach of the peace which constitutes the gist of the prosecution, and not an actual breach of the peace: so in a civil action for libel, it is the tendency to mjure the plaintiff’s reputation, and not any actual injury, which constitutes the gist of the action.
    Thus, in accordance with this principle and directly parallel to the case under consideration, it has been held that where the libel is contained in a letter sent by the-defendant to the plaintiff, and it appears that the defendant knew that the letters sent to the plaintiff were usually opened by bis clerk, it will amount to a publication. Delacroix vs. Thevcmot, 2 Starkie, 63. Suppose it sent to a third person, dropped in the street and picked up by the plaintiff — or suppose it addressed to the plaintiff and a hundred others.
    This case was decided in view of, and in contradistinction to those cases where it has been held, that sending a sealed letter to the plaintiff is not a publication.
    Here we have a much stronger case against the defendant, than in that of Delacroix vs. Thevanot. There the publication was sufficient, because the defendant knew that the plaintiff’s clerk was in the practice of opening bis letters. This scienter fixed bis liability; because the tendency of bis act was to injure the plaintiff. Here then was an express authority, given by the plaintiff’s own superscription of the letter to a third person, to open the letter. In addition to which, he cast it forth to all the hazards of its being read by any person who might chance to find it.
    . But it is objected by tbe defendant that tbe letter was sealed. Tbe answer is obvious and ready. Tbe seal is but little protection to a paper addressed to several persons, either one of whom might with propriety open it, and exposed to all tbe vicissitudes of tbe weather, and tbe chances of its being violated by tbe finder.
    Besides, there can no case be produced in which the seal has been regarded as of any importance, where the libel has been addressed to a third person. It is the tendency of the act to injure, and not an actual injury, that is actionable.
    In a very able work, Sanders PL & Ev. 809, it is said on the authority of Sir Erancis Burdett’s case, “ the mere parting with a libel, with the intent to publish, whereby the defendant loses all power of future control over it, is an uttering, without any actual communication of the contents of the paper.”
    If this be the true doctrine, (as it unquestionably is,) then the defendant, McNease, “ lost all power of future control over” bis libel of the plaintiff, when he threw it into the witness’s yard: or at all events, when it fell into the witness’s bands.
    
      The case of tbe King vs. Sir Francis Burdett, 3 B. & A. 717 ; 4 B. & A. 95; 5 Eng. Com. L. Rep. 429; 6 Eng. Com. L. Rep. 358, was one wbicb from the. conspicuous station and reputation of the dfeendant, excited deep discussion, and elicited a profound consideration.
    The libel was addressed to his constituency of Westminster, which city he represented iñ the British Parliament. The proof was, that it was published in London; but it was written at the defendant’s country residence in the county of Leicestershire: and it was sent out of that county to the defendant’s agent in the city of London, to be printed and distributed. The defendant was indicted in 'the county of Leicestershire, and the question was, whether there was a publication in that county.
    The defendant was convicted. Best, J., was of opinion, that there was presumptive evidence of a publication in Lei-cestershire, and that, sending the libel by the post from that county amounted to a publication there.
    Holroyd, J., was of opinion, that the delivery of the libel within the county, although it was sealed, is a publication in law.
    Abbott, Ch. J., was of opinion, that the delivery of the libel in the county, under the circumstances, constituted publication.
    The case in hand is strictly analogous. The defendant, as in the case of Sir Francis‘Burdett, “lost all power of future control over” a letter addressed to a third person, and it was0 “ an uttering without any positive communication of the contents of the paper.”
    It may be said that this was the case of a public prosecution, differing from that under consideration, which, is an action for damages.
    The rules of law in application to the two cases cannot, in this respect, be different.
    The gist of the indictment, as before remarked, is the tendency of the act to provoke a breach of the peace; and the gist of the civil action, is the tendency of the act to injure the plaintiff’s character and standing.
    Now if in the case of Sir Francis Burdett this tendency was sufficiently manifest, and although the libel went out of the county under seal, there was sufficient publication to constitute the tendency to a breach of the peace in that county, without any actual communication of its contents; so under the same circumstances, there would have been a sufficient tendency to injure private character, if private character had been the subject of the libel.
    If under such circumstances there can be no tendency to injure private character, there can certainly be none to stir up to a breach of the peace. For in neither case can the actual injury take place, until some further publication, yet the law will equally protect society and individuals against the probable and natural consequences of such acts; in other words, against the tendency of such acts to injure society, and to injure individuals.
    On the 12th August, the defendant acknowledged the authorship of the letter, and some portion of its libellous contents.
    He that repeats a libel or any part of its libellous contents is a publisher, 15 Yin. Abr. 89 ; Lamb’s case, 9 Bo. Eep. 59.
    Phillips on Ev. 2 vol. 98, says, that the publication of a libel may be by distributing it, repeating its contents in the presence of others, or sending it .to a third person.
    
      Sims, contra.
   O’Neall, J.,

delivered the opinion -of the Court.

Upon the first ground of appeal, the whole court differ in opinion with the Judge below. Starkie, in his Treatise on Slander and Libel, at page 161, thus sums up the doctrine— “an action lies for any false, malicious and personal imputation effected by writings, pictures or signs, and tending to alter the party’s situation in society for the worse.” Bell vs. Stone, 1 B. & P. 331. This is the settled English doctrine, and although it has been assailed by Mr. Starkie and others, as being a distinction between written and verbal slander without any real difference, yet I confess I cannot take that view of it. Words are evanescent; they are as fleeting as the perishing flowers of spring ; they are often the results of mere passion; but written, slander is to remain; it is to be treasured up by every other malicious man for his day of vengeance; it is the effect of deliberate design, and, therefore, is the evidence of malice, without which, actual or implied, no action, of slander could be maintained. But the distinction prevails in this State as well as in England. In the case of Mayrant vs. Richardson, 1 N. & McC. 348, the second count in the declaration was on a letter imputing to the plaintiff an “ affected mind.” It was not denied that the words written would be actionable, which, if spoken would not be. Judge Nott, in delivering the opinion, said — “ It has been held that words written and published are actionable, which if spoken would furnish no ground. But then they must be such, as in the common estimation of mankind, are calculated to reflect shame and disgrace upon the person they are spoken of, and bold him up as an object of hatred, ridicule, or contempt.” The case of Leckie ads. Couty, was decided by the Court of Appeals upon the same distinction — 3 vol. MS. Decisions, 494. These cases conclude the matter. It is not denied that the letter of the defendant to the plaintiff, is calculated to reflect shame and disgrace upon the plaintiff’ and to bold him up as an object of hatred, ridicule and contempt. There can therefore be no doubt that it is a slander for which an action lies without stating or proving special damage.

Upon the second ground, a majority of the Court agree with the Judge below, that there was no publication. There is a great distinction in this respect between an indictment, and an action of slander, for a libel. In the first, the end is to prevent a breach of the peace; and hence a publication to the party of whom is written, will be enough. In slander, the object is to redress the party for an injury done to his character, which is nothing more than the good opinion of his neighbors and acquaintances. If the knowledge of the slander be altogether confined to himself, he has sustained no damage. If the defendant only communicated the slander to the plaintiff, then he has committed no wrong for which he is liable civilly. If the plaintiff afterwards make public the charge, the defendant is not answerable for the consequences— for the act of publication is not his.

These principles seem to me so plain, as only to require to be stated to receive the assent of every one. It is, however, contended that in three ways the defendant has published the slander — 1st, by throwing the letter sealed into the enclosure of the witness; 2d, by addressing it to the plaintiff or Susan Sloan; and 3d, by admitting its contents when interrogated concerning the same by the plaintiff, in a public company at Darlington Court House.

Upon the first, it may be remarked, that since Lake vs. King, (a. d. 1670,) 1 Mod. R. 58, it has been held, that if a man write a scandalous letter and deliver it to the party himself, it is no slander. Sending a letter to a party under seal, is the same as delivering to the party himself. For in such a case the party shows his intention that it should correct him alone, and be unknown to others. The case of exception to this rule is, where a letter was addressed to a man whose clerk was in the habit of opening and reading his letters, and this fact was known to the defendant, and the clerk- did open and read the letter; there it was held to be the publication of the defendant, for a third person had come to the knowledge of the charge, by the act of the defendant. Here the fact of throwing the letter, sealed, into an open enclosure, might have led the impertinent curiosity of a finder to pry into its contents; and if this had happened, I should have held the defendant answerable for the publication, which would have then resulted from..'his act: But the letter reached its address unopened., and so far .there was no publication in fact.

2d. The address of the letter to the plaintiff or Susan Sloan, does not of necessity, I think, make the defendant answerable for a publication of the slander of, and concerning the plaintiff. The address would have authorized-either to open and read the letter; and if the proof had been, that Susan Sloan had read the letter, or hearing of it, had required the plaintiff to read it to her, and he had so done, I should have thought the fact of publication proved. / But the letter reached him — he opened and read it of his own head to the witness and his family. Whether Susan Sloan was or was not present, does „not appear. His act on his part cannot be visited on the ^defendant. He himself published 'the defendant’s slander, pand must bear the consequences of his folly.

8d. The defendant’s answers to the questions put by the plaintiff, as to the contents of the libel, cannot, I think, be regarded as his (the defendant’s) publication. The plaintiff stated the contents, and the defendant merely assented that they were contained in the letter, the authorship of which, he had avowed. This was no fresh publication. If there had been a previous one, it would bave been evidence enough to charge him with it. The facts as to which he was questioned, was merely to fix the identity of the letter, the authorship of which he had admitted. Writing it, if a publication in fact, without the agency of the plaintiff had taken place, would have made the defendant answerable.

The motion to set aside the nonsuit is dismissed.

Evans, J., and Butler, J., concurred; the latter, however, not without entertaining some doubts as to the correctness of the opinion.

Richardson, J.

The nonsuit was probably ordered upon the ground that, as the plaintiff proved no special damage, the action could not be supported. But’ such., dbctrine is deemed erroneous, by the Court: ko that the nonpuit must be set aside, unless the evidence of j¡he'publication of the libel, was too weak to carry the case to:the jury.

Upon this point, the Court is divided. The facts are plain. The defendant wrote the libel — sealed it — directed it, in the form of a letter to the plaintiff, or Miss Susan Sloan — requested a witness to carry it to the plaintiff, or drop it near his residence. The witness refused; and the letter was after-wards picked up by a stranger, and delivered to the plaintiff, who opened and read it aloud. The defendant afterwards avowed that he wrote it.

Is this such evidence of a publication by the defendant, as to save the plaintiff from a nonsuit ? is the question.

In the case of Rex vs. Besse, 1 Lord Raymond, 417, it is laid down that the libel being written by the defendant, is prima, facie proof of publication, and throws on him the bur-then of disproving such presumption; 2 Saunders, 809. So also, in Baldwin vs. Ephinstone, 2 W. Blac. 1038, printing is prima facie proof of publication. In Rex vs. Burdette, 4 B. & A. 135, the mere parting with the libel — whereby the defend- and gave up his control over it, with the intent to print, was held to be prima facie proof of publication.

It was decided in the case of Phillips vs. Jansen, 2 Esp. R. 624, that a written libel may be published in a letter to a third person. And although the publication of a libellous letter to the plaintiff alone, will not support a civil action, yet it will an indictment. But this was a mere nisi prius decision of Lord Kenyon. And Williams, in Ms note to the case of Lake vs. King, says, if a letter containing a libel is sent to another, or the party himself, it is a publication; and quotes 2 Blac. Rep. 1039; 1 Term, 110 — and the jury must decide whether the publication be sufficient, of not.

But in case of a letter to the party himself, where the defendant knew that the plaintiff’s clerk usually opened his letters, it was held in Delacroix vs. Thevanot, 2 Starkie, 63, to amount to publication, and to support a civil action.

Now, how much stronger would that case have been, if the libellous letter had been directed to the plaintiff, or his clerk, which is the fact in the case before us, i. e. to “John A. Fon-ville,” or “Miss Susan Sloan.” On the other hand, if the letter had been directed to Miss Sloan only, it would not have been better directed to a third person, than when to the plaintiff, or Miss Sloanor if a duplicate had been directed to her separately, it would have been the same, and no more, than the letter to the plaintiff, “ or Miss Sloan.”

In either, it is precisely the case of Phillips vs. Jansen, that is, a libel published in a letter to a third person.' I do not take the meaning to be, that the mere sealing up the libel and sending it to a third person, is publication ipso facto. But that if the libel should in consequence become known to the third person, or should, in any way, become notorious, then the writer becomes responsible for the publication, which his conduct in sealing and sending the letter, gave rise to. This is the principle in Burdett’s case, and all that class, with the single exception of the letter to the plaintiff alone. It is in such sense that Lord Holt says, that when a libel is produced in the handwriting of a man, he is taken in the manor: Lord Ray. 417; 4 Esp. 248; that is to say, the writer is prima facie liable, if the libel has been practically published, no matter how; unless he disprove the publication .being his act. He stands like the man'who threw a lighted cracker into a crowd, which being thrown from hand to hand, at length put out the eye of a bystander. The first aggressor was held liable for the whole injury. Many are the analogous instances, of attaching the consequences to him who begins mischief. It is a principle; and such a rule applies with much, force, to a libeller wbo commences in malice, not in sport merely. There is a fact which should make this rule strong against the defendant. After the libel had been published, he deliberately avowed it to be his act in all its details — gave it the sanction of his .name, and did not disavow the publication. May it not then be inferred, that he had propagated, as well as originated, the defamation ? In such cases, malice is the important ingredient; and if publication has practically followed, we are not to infer the negative, nor to be astute in order to shield the slanderer; but leave the jury to refer the publication to the malicious author, from slight circumstances, and the character of the case. If men may differ upon the evidence, or the judicial mind vacillates, it is enough, the case must go to the jury. And, I repeat, that it is improbable, that this was the ground upon which the nonsuit was ordered on the circuit.

Gantt, J,, concurred.  