72 A. 689 | N.H. | 1909
However the law may be elsewhere, it is well settled in this state that the truth is not always a defence to an action on the case to recover damages for the publication of a libel. State v. Burnham,
Under this rule the plaintiff states a case. While it was the defendant's duty to publish the fact that the plaintiff had failed to pay the taxes assessed against him, "by posting advertisements thereof in two or more public places in the town" (P.S., c. 60, s. 14), it was not his duty to otherwise publish the fact unless he thought such publication was essential to the success of the tax-sale. If he did not so believe, but on the contrary used this occasion *217 to maliciously proclaim in a public manner that the plaintiff had not paid his taxes, there is neither legal nor ethical reason why an action should not lie for the damage caused by the malicious and unwarranted act.
The claim that the defendant is exonerated by the provision that he shall not be liable "for any cause whatever except his own official misconduct" (P.S., c. 60, s. 16) cannot be sustained. The misconduct here charged is "his own." He can no more use the statutory power to advertise as a cloak for a malicious assault upon the plaintiff's character, than he could make the power to arrest a commission for the infliction of bodily chastisement.
Exception sustained.
All concurred.