A libel is a malicious defamation, expressed in print or writing, or by signs or pictures, tending to blacken the memory of the dead, with an intent to provoke the living, or to injure the reputation of one who is alive, and thereby expose him to public hatred, contempt or ridicule. A vein of irony runs throughout this publication ; but understanding it, as the rest of mankind do, (Rex. v Horne, Cowp. 688.) the whole turn of expression insinuates, that the plaintiff has been guilty of perjury, and renders him ridiculous and contemptible.
The declaration contains ten specifications of libellous matter, with the explanatory innuendoes, which the jury have found to have been made and published, by the defendant, falsely and maliciously, of and concerning the plaintiff with the meaning and intent alleged in the declaration. If either of these specifications is sufficient, the judgment below must be affirmed.
I lay out of the case the seventh specification, because there is no introductory averment or colloquium, to which it refers ; and the words do not, in themselves, naturally convey the meaning imputed to them, by the innuendoes. The averment is, that the libel was made and published of and concerning the plaintiff and his testimony in Beers v. Broome, and not in Beers & al. v. Hawley & al. Rex v. Horne, Cowp. 672. Hawkes v, Hawley, 8 East, 427. Cheetham v. Tillotson, 5 Johns. Rep. 430.
The rest of the publication, when stripped of its technical dress, describes the plaintiff as a low Indian-like fellow; contrasts him with Sergeant Dunning, a distinguished member of the English Bar ; nick-names him “ Counsellor Dunning of Weewalker, Sergeant at law represents his testimony on said trial, as wrapped in concealment-a fictitious tale, too absurd to be endured-a contrived story-a mere pretence, designed, by its falsehood, to blast the truth, and render infamous the fairest characters in society, and more dangerous than a concealed serpent; stigmatizes the plaintiff as a base villain, and a slavish dependent of the person, for whom he testified,-a mere stupid puppet in his hands, suborned, trained and instructed *408how to testify ; represents the plaintiff as prevaricating in his testimony, and wilfully refusing to testify to facts within his knowledge and recollection, under the pretence of forgetfulness
The law of libel makes a material difference between words spoken and words written. To be actionable, the former must tend to bring a man into danger of punishment, exclude him from society, or injure him in his occupation ; but it is enough, if the latter induce an ill opinion to be had of the party ; or make him contemptible and ridiculous. Cropp v. Tilney, 3 Salk. 226. Thorley v. Lord Kerry , 4 Taun. 355. And it is sufficient, if the matter be reflecting ; as to paint a man playing at cudgels with his wife. Anon. 11 Mod. 99. So an action has been sustained for maliciously writing and publishing of another, doggerel verses, describing him as stinking of brimstone, and having the itch. Fillers v. Monsley, 2 Wils. 403. In that case, Gould, J. inter alia, said, “ for speaking the words rogue and rascal of any one, an action will not lie ; but if those words were written and published of any one, I doubt not an action would lie. So, the calling of a man a villain, in a letter to a third person, has been holden to be a libel; and the court were clearly of opinion, that any words written and published, throwing contumely on the party, were actionable. Bell v. Stone, 1 Bos. & Pull. 331.
But these cases are “ trifles light as air,” compared with the publication before us ; which, read with the eyes of common sense, exhibited a gross and infamous libel. What crime is more odious than perjury ? What words can convey a clearer charge af this detestable crime, than to say to a witness sworn to testify the whole truth, your testimony is wrapped in concealment; your tale is absurd; you are a mere puppet in the hands of your employer, trained up by him to testify as he directs ; and when cross-examined, you have no answer to give but prevarication and non mi ricordo.
The case of Steele v. Southwick, 9 Johns. Rep. 214. is so much like this, that it may be said, muttato nomine, de te fabula narratur. The defendant printed and published of the plaintiff a witness in a cause, then lately tried in the supreme court, these words: “ Affidavits. Our army swore terribly in Flanders, said Uncle Toby; and if Toby was here now, he might say the same of some modern swearers. The man at the sign of the Bible, (the plaintiff) is no slouch at swearing to an old sto*409ry.” These words, said the court, import that the plaintiff swore with levity, rashly and inconsiderately, without due regard to the solemnity of the oath, or to the truth or accuracy of what he said. If the words do not impute perjury, in the legal sense, they hold the plaintiff up to contempt and ridicule, as thoughtless, or so immoral as to be regardless of the obligations becoming a witness, and therefore, to be utterly unworthy of credit. In this view, the words are actionable ; for a writing published maliciously, with a view to expose a person to contempt and ridicule, is undoubtedly actionable ; and what was said to this effect, by the judges of the English court of Common Pleas, in Fillers v. Monsley, is founded in law, justice and sound policy. In this opinion I entirely concur. The case before us is ad idem, but much stronger ; for in this we trace the marks of the libeller in every line : Quia tria sequuntur defamatorem famosum ; 1. pravilatis incrementum ; 2. bursæ decrementum ; 3. conscientiæ detrimentum. The case de libellis famosis, 5 Rep. 126.
There is no error in the judgment complained of.
Hosmer, Ch. J.* and Brainard, J. were of the same opinion. Lanman, J. dissented ; and Daggett, J. gave no opinion, having been of counsel in the cause.Judgment affirmed.