ous to the tenant's business and destructive to the comfort of his family, may be sufficient. Dyett v. Pendleton, 8 Cow. 727; Cohen v. Dupont, 1 Sandf. (N. Y.) 260; Watts v. Coffin, 11 Johns. 495. But it is held that repeated entries by the lessor, and carrying away of crops, cutting down a fruit tree, and removing a cooking stove from the house, though acts of trespass, do not amount in law to an eviction of the tenant. Bartlett v. Farrington, 120 Mass. 284.

An actual wrongful eviction of a tenant, or withholding of possession from him, by the landlord, relieves him from the payment of rent while out of possession; and a constructive eviction will have the same effect, if the tenant abandons the possession in consequence of it. Hunt v. Cope, Cowp. 242; Christopher v. Austin, 11 N. Y. (1 Kern.) 216; Kessler v. McConachy, 1 Rawle, 435; Edgerton v. Page, 20 N. Y. (6 Smith) 281; Briggs v. Hall, 4 Leigh (Va.), 484; Mirick v. Hoppin, 118 Mass. 582; Jackson v. Eddy, 12 Mo. 209.

An eviction by title paramount does not have that effect, but the rent may be apportioned. Lansing v. Van Alstyne, 2 Wend. 561; Folts v. Huntley, 7 id. 210.. Nor does a constructive eviction by the superior landlord relieve undertenants from liability to their immediate landlord. Luckey v. Frantzkee, 1 E. D. Smith (N. Y.), 47. See Camarillo v. Fenlon, 49 Cal. 202.

The law also gives a tenant who is wrongfully dispossessed before the expiration of his term a positive remedy, in an action for a breach of the covenant of quiet enjoyment, or one for the recovery of damages. He may recover as damages the difference between the stipulated rent and the value of the unexpired term, and any extra damages arising from the season of the year when it occurs. Chatterton v. Fox, 5 Duer (N. Y.), 64. In a case of eviction from a livery and boarding stable, loss of profits was given as a part of the damages. Shaw v. Hoffman, 25 Mich. 162. But the enhanced value of premises will not be given unless it was caused by improvements made by the tenant himself. Ricketts v. Lostetter, 19 Ind. 125.

Where the landlord leases premises to a tenant by a parol lease, and afterward, and before the tenant gets possession, leases the same premises to another and puts him in possession, the first tenant may either bring an action of ejectment and recover the possession, or he may sue in assumpsit for the breach of the implied covenant for possession and quiet enjoyment. Berrington v. Casey, 78 Ill. 317.

A tenant who was induced to build on the premises by false and fraudulent representations on the part of the landlord, and was evicted by title paramount, has been held entitled to recover the necessary costs of removing his building and of renting another lot of equal

:

rental value for the remainder of the term. Wilson v. Raybould, 56 Ill. 417. A tenant who has paid rent in advance, if dispossessed by the lawful removal of his building, may recover back a proportionate share of the rent so paid. Noyes v. Anderson, 1 Duer (N. Y.),

342.

§ 7. Illegality. The rule that illegality in a contract renders it void applies as well to leases as to other contracts. The illegality of a lease may consist in its being against public policy, as where it is in total or unreasonable restraint of trade, in its being founded upon an illegal or immoral consideration, such as usury, marriage brokage, and the like, or in the premises being let to be used for an illegal or immoral purpose, as for purposes of prostitution, or for a prohibited trade.

The remedy given to the tenant in such cases is chiefly of a negative character. The law considers such leases so tainted that it will not permit an action to be sustained thereon, and hence allows the tenant to set up the illegality as a defense. Jennings v. Throgmorton, R. & M. 251; Girardy v. Richardson, 1 Esp. 13; Smith v. White, L. R., 1 Eq. 626; S. C., 36 L. J. Ch. 454.

Leases have, however, been set aside in equity, because forced upon tenants in connection with a usurious loan. Molloy v. Irwin, 1 Sch. & Lef. 310.

CHAPTER LXXXIX.

LIBEL.

TITLE I.

OF LIBELS IN GENERAL.

ARTICLE I

WHAT CONSTITUTES A LIBEL.

Section 1. Definition. Libel in admiralty practice is a pleading addressed to the judge of the court setting forth the party's claim clearly and concisely, closing with a prayer for process and relief, signed and sworn to by the party, and presented to the clerk of the court with security when required. Benedict's Admr. Pr., § 366; Пutson v. Jordan, 1 Ware, 393. In ecclesiastical law it is the plaintiff's petition or allegation, containing a statement of the complainant's ground of complaint, corresponding with a declaration at common law, and a bill in equity. Bouv. L. Dict., tit. Libel; 3 Bl. 100.

The term "libel" is most generally applied to defamatory and illegal representations, and it is in this sense that it will be treated in what follows.

A libel may be defined as malicious defamation, either written or printed, charging or imputing to another that which renders him liable to punishment, or tends to injure his reputation in the common estimation of mankind, or to hold him up as an object of hatred, scorn, ridicule or contempt. Cary v. Allen, 39 Wis. 481. But it has also a broader signification and may consist of defamation expressed by signs, as by erecting a gallows at a man's door, or by drawing or painting him in a shameful and ignominious manner. Where the scandal tends to lessen a person in the estimation of the community, it is not necessary that this result should actually follow the publication, but it must be calculated from its language and tenor to do so. Com. v. Odell, 3 Pittsb. (Penn.) 449. To constitute the offense, the calumnious matter must have been communicated to some third person. Woodard v. Dowsing, 2 VOL. IV.-36

Mann. & Ryl. 74; Com. v. Clap, 4 Mass. 163; Layton v. Harris, 3 Harr. (Del.) 406; Miller v. Butler, 6 Cush. 71; Johnson v. Stebbins, 5 Ind. 364; Cary v. Allen, 39 Wis. 482; Lick v. Owen, 47 Cal. 252. Personal ill-will to the party libeled is not essential. Com. v. Odell, 3 Pittsb. 449. Libel is deemed aggravated scandal from the fact that it is presumed to have been entered upon with coolness and deliberation, and to last longer and spread further than spoken scandal. Du Bost v. Beresford, 2 Camp. 511.

Although to constitute a libel there must have been a corrupt or malicious intention in the libeler, yet in the absence of an excuse for the publication which the law recognizes, such an intention will be presumed, and the offender is liable to an action for damages at the suit of the party injured. Dexter v. Spear, 4 Mason (C. C.), 115; Armentrout v. Moranda, 8 Blackf. (Ind.) 426; Curtis v. Mussey, 6 Gray, 261. Words which on their face appear to be harmless may, under certain circumstances, convey a covert meaning wholly different from the ordinary and natural interpretation usually put upon them. To render such words actionable it is necessary for the plaintiff to aver and prove that the author of the libel intended them to be understood, and that they were in fact understood by those who read them, in their covert sense. Rice v. Simmons, 2 Harr. (Del.) 417; State v. Neese, 2 Tayl. (N. C.) 270; Croswell v. Weed, 25 Wend. 621. And see Brennan v. Tracy, 2 Mo. App. R. 540.

Abusive words, which, if spoken only, would not be actionable, may become so when written or printed and published. printed and published. Thus: merely to say of another that he is a rogue and rascal, or a swindler, would not render the offender liable to prosecution, unless spoken of the person in his trade or business. But such words, when published and circulated in writing or print, are actionable per se. Villers v. Monsley,

2 Wils. 403; Ford v. Johnson, 21 Ga. 399; Savile v. Jardine, 2 H. Bl. 532; Chase v. Whitlock, 3 Hill, 139; Neil v. Altenhofen, 26 Wis. 708. And it is no defense to an action for a libel that it was published as hearsay, or that the plaintiff first stated the same thing; for there is a great difference between a man's telling a ludicrous story of himself to his acquaintance, and a publication of it to the world. Cook v. Ward, 6 Bing. 415; Schenck v. Schenck, 1 Spencer (N. J.),

208.

§ 2. What publications are libelous. Every publication, either by writing, printing or pictures, which charges upon or imputes to another disgraceful or dishonest conduct, or which is injurious to his private character or credit, or which tends to render him ridiculous or contemptible, or to make him feared, or his society shunned, is prima

facie a libel. White v. Nicholls, 3 How. (U. S.) 266; Atwill v. Mackintosh, 120 Mass. 177.

The following are a few of the numerous examples of libel to be found in the reported cases: Charging an attorney with offering himself as a witness in order to divulge the secrets of his clients (Riggs v. Denniston, 3 Johns. Cas. 198); or a commissioner of bankruptcy with being a misanthrope, a partisan, stripping the unfortunate debtors of every cent, and then depriving them of the benefit of the act (id.); imputing to a landlord that he colluded with an insolvent tenant (Haire v. Wilson, 9 B. & C. 645); writing of another that he smuggled goods into the country (Stilwell v. Barter, 19 Wend. 487); imputing to a physician of character and eminence that he was concerned in vending quack medicines (Clark v. Freeman, 11 Beav. 117); charging a brewer with using filthy and disgusting water in the malting of grain for brewing (Turrill v. Dolloway, 17 Wend. 426); writing of a publisher of a newspaper that he was a libelous journalist, of a tradesman that he knowingly sold bad commodities, or of a manufacturer that he was a poor workman and unable to turn out good articles (Wakley v. Cooke, 4 Exch. 518; Harman v. Delany, 2 Str. 898); charging that a member of congress was a fawning sycophant, a misrepresentative in congress, and a groveling office-seeker, and that he had abandoned his post in congress in pursuit of office (Thomas v. Croswell, 7 Johns. 264); describing a man as an infernal villain or an itchy old toad, or as being in insolvent circumstances and unable to pay his debts, or as a mere man of straw, unfit to be trusted with money, or guilty of ingratitude to his friends and benefactors, or of misconduct in office, or of general misconduct, corruption, or neglect of duty in the management of business intrusted to him (Bell v. Stone, 1 Bos. & Pull. 331; Villers v. Monsley, 2 Wils. 403; Metrop. Saloon Omnibus Co. v. Hawkins, 4 H. & N. 87; Eaton v. Johns, 1 Dowl. [N. S.] 62; Cheese v. Scales, 10 M. & W. 488; Cox v. Lee, L. R., 4 Exch. 284); publishing of another that he has been guilty of gross misconduct, and has insulted two females and a gentleman in the most bare-faced manner (Clement v. Chivis, 9 B. & C. 176); writing of another that he is a drunkard (Giles v. State, 6 Ga. 276; Sanderson v. Caldwell, 45 N. Y. [6 Hand] 398; S. C., 6 Am. Rep. 105); or insane (Southwick v. Stevens, 10 Johns. 443; Perkins v. Mitchell, 31 Barb. 461; Morgan v. Lingen, 8 L. T. [N. S.] 800); charging another with being deprived of a participation in the chief ordinance of the church to which he belongs by reason of his infamous groundless assertions (McCorkle v. Binns, 5 Binn. [Penn.] 340); publishing of a judge that he lacks capacity, that he has abandoned the common principles of truth,