In the absence of special damage, words al leging that a solicitor had lost "thousands in stead of hundreds" are not actionable ; [1901] 2 K. B. 441; and to make actionable a verbal charge that a merchant is not worth a dol lar, it must he shown that it was spoken of him in relation to his business ; Dallavo v. Snider, 143 Mich. 542, 107 N. W. 271, 4 L. R. A. (N. S.) 973, 114 Am. St. Rep. 684, 8 Ann. Cas. 212.
Fifth. Bigelow (Torts 48) gives as a fifth class words tending to defeat an expected title : as to call an heir apparent to estates a bastard. See Cro. Car. 469.
Of the second class are words which are actionable only in respect of special dam ages sustained by the slandered. Though the law will not permit in these cases the inference of damage, yet when the damage has actually been sustained the party aggrieved may support an action for the pub lication of an untruth ; 1 Lev. 53; unless the assertion be made for the assertion of a sup posed claim ; Com. Dig. Action upon the Case for Defamation (D 30) ; Bac. Abr. Slander (B) ; but it lies if maliciously spoken. In this case special damage is the gist of the action, and must be particularly specified in the declaration. For it is an established rule that no evidence shall be received of any loss or injury which the plaintiff had sustained by the speaking of the words unless it be specially stated in the declaration. 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.
The charge must be false ; 5 Co. 125. 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 un favorable representation of his servant, upon an application for his character, seems to be an exception, in that case there being a pre sumption, from the occasion of speaking, that the words were true ; 3 B. & P. 587.
The slander must, of course, be publish ed,—that is, must be communicated to a third person,—and in a language which he understands ; otherwise the plaintiff's repu tation is not impaired ; 1 Rolle, Abr. 74; Cro. Eliz. 857 ; 1 Saund. 242, n. 3 ; Bac. Abr. Slander (D, 3). There is no publication if the words were not understood by the persons present, nor repeated by them; Sullivan v. Sullivan, 48 Ill. App. 435. The slander must be publisljed respecting the plaintiff. A statement by defendant accusing plaintiff of theft made in the presence of a policeman is not a publication where plaintiff solicited the statement and sent for the officer for the ex press purpose of having defendant repeat it in his presence ; Shinglemeyer v. Wright,
124 Mich. 230, 82 N. W. 887, 50 L. R. A. 129.
It is not enough to say that by some per son or other the words used might be under stood in a defamatory sense ; [1897] A. C. 68. Because some persons may choose, not by reason of the language itself, but by reason of some fact to 'Vhich it refers, to draw an unfavorable inference, it does not follow that such matter is libellous ; 5 C. P. D. 541. Wit nesses to publication are allowed to give their understanding of the words spoken, as an ex ception to the general rule that witnesses must state facts and not their inferences; Booker & Prince v. Bass, 127 Ga. 134, 56 S. E. 283.
It will afford no justification that the de famatory matter has- been previously pub lished by a third person, that the defendant at the time of his publication disclosed the name of that third person and believed all the statements to be true ; Heard, Libel & S. § 148. And a repetition of oral slan der already In circulation, without expressing any disbelief of it or any purpose of inquir ing 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 actionable ; Ken ney v. McLaughlin, 5 Gray (Mass.) 3, 66 Am. Dec. 345. It `Ys no defence in an action of slander that the words were used to and not of plaintiff, when others were present and heard the words spoken; Pavlovski v. Thorn ton, 89 Ga. 829, 15 S. E. 822.
To render the 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, pro vided it be uttered without express malice ; Bac. Abr. Slander (D, 4) ; Rolle, Abr. 87; 1 Viner, Abr. 540. It is justifiable for an at torney to use scandalous expressions in sup port of his client's cause and pertinent there to ; 1 Maule & S. 280 ; 1 B. & Ald. 232. See Kean v. McLaughlin, 2 S. & R. (Pa.) 469; Mower v. Watson, 11 Vt. 536, 34 Am. Dec. 704. The bona fide statements of one church mem ber, on the trial of another before a church tribunal, that such other had committed adultery with plaintiff, not a member of the church, are privileged communications ; Etchison v. Pergerson, 88 Ga. 620, 15 S. E. 680. Members of congress and other legis lative assemblies cannot be called to account for anything said in debate.