The elements of deceit which throw the risk of his conduct upon a
party are these. First, making a statement of facts purporting to
be serious. Second, the known presence of another within hearing.
Third, known facts sufficient to warrant the expectation or
suggest the probability that the other party will act on the
statement. (What facts are sufficient has been specifically
determined by the courts in some instances; in others, no doubt,
the question would go to the jury on the principles heretofore
explained.) Fourth, the [138] falsehood of the statement. This
must be known, or else the known evidence concerning the matter
of the statement must be such as would not warrant belief
according to the ordinary course of human experience. (On this
point also the court may be found to lay down specific rules in
some cases. /1/)
I next take up the law of slander. It has often been said that
malice is one of the elements of liability, and the doctrine is
commonly stated in this way: that malice must exist, but that it
is presumed by law from the mere speaking of the words; that
again you may rebut this presumption of malice by showing that
the words were spoken under circumstances which made the
communication privileged,-- as, for instance, by a lawyer in the
necessary course of his argument, or by a person answering in
good faith to inquiries as to the character of a former servant,--
and then, it is said, the plaintiff may meet this defence in some
cases by showing that the words were spoken with actual malice.
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