in consequence of the slanderous words; not that his general reputation and standing in the community are affected by them. It will he recollected that the words spoken, in this class of cases, are not actionable of them selves, but that they become so in conse quence of the special character of the party of whom they were spoken. The fact of his maintaining that special character, therefore, lies at the very foundation of the action. Heard, Libel & S. 41, 45.
4. Of the second class are words which are actionable only in respect of special dam ages sustained by the party slandered. Though the law will not perniit in these cases the inference of damage, yet when the damage has actually been sustained the party aggrieved may support an action for the publication of an untruth, I Lev. 53 ; 1 Sid. 79, 80; 3 Wood, 210; 2 Leon. 111 ; un less the assertion be made for the assertion of a supposed claim, Colnyns, Dig. Action upon the Case for Defamation (D 30); Bacon, Abr. Slander (B); but it lies if maliciously spoken. In this case special damage is the gist of the action, and must be particularly ipecified in the declaration. For it is an established rule that no evidence shall be re ceived of any loss or injury which the 'plain tiff had sustained by the speaking of the words, unless it be specially stated in the de claration. And this rule applies equally where the special damage is the gist of the action and where the words are in themselves actionable. Heard, Libel & S. 51. See 1 Rolle, Abr. 36 ; 1 Saund. 243 ; Bacon, Abr. Slander (C); 8 Term, 130; 8 East, 1; Starkie, Slander, 157.
5. The charge must be false. 5 Coke, 125, 126; Hob. 253. The falsity of the accusation is to be implied till the contrary is shown. 2 East, 436; 1 Saund. 242. The instance of a master making an unfavorable representation of his servant, upon an application for his character, seems to be an exception, in that case there being a presumption, from the oc casion of the speaking, that the words were true. 1 Term, 111; 3 Bos. & P. 587; Starkie, Sland. 44, 175, 223.
The slander must, of course, be published, —that is, communicated to a third person,— and, if verbal, then in a language which lie un derstands; otherwise the plaintiff's reputation is not impaired. 1 Rolle, Abr. 74; Croke Eliz. 857: 1 Saund. 242, n. 3 ; Bacon, Abr. Slander (D 3). A letter addressed to tbe party, containing libellous matter, is not suffi cient to maintain a, civil action, though it may subject the libeller to an indictment, as tend ing tda breach of the peace. 2Blackst. Comm.
1038 ; 1 'rerm, 110 ; 1 Saund. 132, n. 2 ; 2 Esp. 623 ; 4 id. 117; 2 East, 361. The slander must be published respecting the plaintiff. A mother cannot maintain an action for calling her daughter a bastard. 11 Berg. & R. Penn. 343. Iu an action for slander, whether oral or written, will afford no justification that the defamatory matter has been previously published by a third person, that the de fendant at the time of his publication dis. closed the name of that third person and believed all the statements to be true. Heard, Libel & S. 148, 149. And a repetition of oral slander already in circulation, witbout expressing any disbelief of it or any purpose of inquiring as to its truth, though without any design to extend its circulation or credit, or to cause the person to whom it is addressed to believe or suspect it to be true, is action able. 5 Gray, Mass. 3.
6. To render words actionable, they must be uttered without legal occasion. On some occasions it is justifiable to utter slander of another ; in others it is excusable, provided it be uttered without express malice. Bacon, Abr. Slander (D 4) ; Rolle, Abr. 87 ; 1 Viner, Abr. 540. It is justifiable for an attorney to use scandalous expressions in support of his client's cause and pertinent thereto. 1 Mamie & S. 280 ; 1 Holt, 531 ; 1 Barnew. & Ald. 232. See 2 Serg. & R. Penn. 469 ; 1 Binn. Penn. 178 ; 11 Vt. 536 ; Starkie, Slan der, 182. Members of congress and other legislative assemblies cannot be called to account for any thing said in debate. See PRIVILEGED COMMUNICATIONS.
Malice is essential to the support of an action for slanderous words. But malice is, in general, to be presumed until the contrary be proved, 4 Barnew. & C. 247 ; 1 Saund. 242, n. 2 ; 1 Term, Ill, 544 ; 1 East, 563; 2 id. 436 ; 5 Bos. & P. 335 ; Buller, Nisi P. 8, except in those cases where the occasion prima facie excuses the publication. 4 Barnew. & C. 247. See 14 Serg. & R. Penn. 359 ; Starkie, Slander, 201.
See, generally, Comyns, Dig. Action upon the Casefor Defamation ; Bacon, Abr. Slander; 1 Viner, Abr. 187 ; 1 Phillipps, Ev c. 8 ; Yelv. 28, n.; Doctrine Plac. 53 ; Starkie, Slander ; Heard, Libel & Slander.