It has been held, by the Court of Queen's Bench in Ireland, CHAPTER II. that words imputing an offence against the Fishery Acts are offence against not actionable per se, the offence not being punishable by the Fishery corporal punishment, but only by fine and forfeiture of the nets or instruments used (m).

Acts.

things feræ naturæ.

In an action for the words, "Thou hast stole our bees of stealing (innuendo a stock of bees), and thou art a thief," after verdict for the plaintiff, it was moved in arrest of judgment that felony cannot be committed of bees, because they are feræ naturæ. But the court held, that the subsequent words, "Thou art a thief," showed that the stealing was of such bees of which felony might be committed, and therefore actionable (n).

and result of

It may be inferred generally from the authorities that, General rule, where the words contain an express imputation of any crime authorities. or misdemeanour for which corporal punishment may be inflicted, they are actionable without proof of special damage. But where the penalty for an offence is merely pecuniary, it does not appear that an action will lie for charging it: even though in default of payment, imprisonment should be prescribed by the statute; imprisonment not being the primary and immediate punishment for the offence (o).

actionable

Where the imputation contains a direct charge of crime in Slander, precise terms, little difficulty can occur in the application of imputations. the rule. In most instances, however, an unpremeditated use of words of doubtful meaning, or an intentional selection of them, for the purpose of impunity, have occasioned much perplexity and litigation. In a great proportion of cases, the question has been, not whether a charge of a specific offence is actionable? but whether, in fact, any offence has been charged by the words? The rule of law requires, that, to ground an action, "words imputing crime must be precise"; but it is by no means essential, that they shall carry on the face of them an open and direct imputation. Such a rule, it is clear, would afford no security against calumny, which may be as effectually conveyed in artful allusions to collateral matter, and oblique insinuations, as by the most explicit assertions. It is, however, incumbent upon the party who complains that he has suffered from an imputation of crime, show with certainty, the injurious nature of the

to

(m) M'Cabe v. Foot, 11 Ir. Jur. (N.S.) 287; 15 L. T. (N. S.) 115.

(n) 3 Salk. 325.

(0) Ogden v. Turner, 6 Mod. 104; 2 Salk. 696; Holt, 40.

CHAPTER II. communication. In order to establish this point, two circumstances are necessary:-1st. That the words used should either of themselves, or by reference to circumstances, be capable of the offensive meaning attributed to them. 2ndly. That the defendant did, in fact, use them in that sense.

Ambiguous imputations.

Rule of law

ambiguous

The capability of the words to bear a particular construction, must, it is evident, appear upon the plaintiff's Statement of claim; for otherwise it would not be judicially shown that he was entitled to recover. That the defendant did, in fact, use them in that sense, is a matter of evidence to be decided

upon the trial. If it appear from the words themselves, or from circumstances, that they are capable of conveying the particular meaning attributed to them by the plaintiff, it will, after verdict for the plaintiff, be taken for granted, that the words were, in fact, used to convey such meaning; for that is a matter upon which the jury alone can decide, and which they must be convinced of before they can give their verdict for the plaintiff. Any objection, therefore, to the words as stated upon the record, is grounded upon the supposition that it does not sufficiently appear that they are capable of an actionable meaning.

It will be proper, therefore, next to consider the different kinds of ambiguities which may arise, not only in the particular case where some crime has been charged, and where doubt most frequently occurs, but with relation to cases of slander and libel in general, which are governed by the same rules of construction. Words may be divided into three classes :

1st. Those which bear an obvious and precise meaning on the face of them; as if A. said to B., "You murdered C."

2ndly. Those which on the face of them are of dubious import, and are capable either of a criminal or innocent meaning; as if A. say to B., "You were the death of C."

3rdly. Those which are prima facie and abstractedly innocent, and which derive their offensive quality from some collateral or extrinsic circumstance; as if A. say to B., "You did not murder C.!" which words, from the ironical manner of speaking them, may convey to the hearers as unequivocal a charge of murder as the most direct imputation.

With respect to ambiguities arising out of the second and as to words of third classes, it is now the settled rule of law, that both judges and juries shall understand words in that sense which the author intended to convey to the minds of the hearers, as evidenced by the whole circumstances of the case. That it is

meaning.

the province of the jury, where such doubts arise, to decide, CHAPTER II. whether the words were used maliciously, and with a view to defame; such being matter of fact to be collected from all concomitant circumstances; and for the court to determine, whether such words, taken in the malicious sense imputed to them, can alone, or by the aid of the circumstances stated upon the record, form the legal basis of an action.

It was long, however, before this rule, rational as it is, and supported by every legal analogy, prevailed in actions for words; and before the favourite doctrine of construing words in their mildest sense, in direct opposition to the finding of the jury, was finally abandoned by the courts.

illustration

The following may be adduced in support of the more Cases in rational doctrine which now prevails:-In Ceely v. Hoskins, in of words of error (p), the words were, "Thou art fors worn in a court of ambiguous meaning. record, and that I will prove!" It was contended, after verdict for the plaintiff, that the action would not lie, because the defendant did not say in what court of record the plaintiff was forsworn, nor that he was forsworn in giving any evidence to the jury; that it might be intended only that he was forsworn, not judicially, but in ordinary discourse in some court of record: But (per Croke) "Jones, Berkeley, and myself, held clearly that the action well lay, and that such foreign intendment shall not be conceived, and it shall be taken that he spake these words maliciously, accusing him of perjury; and for a false oath taken judicially, upon judicial proceedings in a court of record." In Baal v. Baggerley, the words were, "Thou hast forged a privy seal, and a commission! Why dost thou not break open thy commission ?" (q). After verdict for the plaintiff it was contended for the defendant, that the words were not actionable; for it did not say the king's privy seal, nor any writ under the privy seal; also he said not what commission; and the words subsequent, "thy commission," showed that he meant a commission made by the plaintiff himself: but the judges, having taken time to consider (Berkeley doubting) afterwards delivered their opinions-"That the action well lies; for the words were spoken maliciously; and being alleged in the declaration, that he spake them to scandalize him, for forging of the privy seal and commission; and being found guilty, it shall be intended according to the vulgar interpretation, to mean the king's privy seal, the counterfeiting whereof is treason; and a commission shall be (P) Cro. Car. 509. (1) Cro. Car. 326

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CHAPTER II. intended the king's commission, under the privy seal;" and Berkeley agreed with the others. In Somers v. House, the words were, You are a rogue, and broke open a house at Oxford: and your grandfather was forced to bring over £30 to make up the breach!" (r). After verdict for the plaintiff, it was moved in arrest of judgment; because, rogue is not actionable; and breaking open the house but a trespass; and making up the breach might be repairing; but the court seemed contrary for, upon all the words together, a man who heard them could not intend other than a felonious breaking of the house; and though in the old books the rule was, to take the words in mitiori sensu, yet per Holt, C.J., they would take the words in a common sense, according to the vulgar intendment of the bystanders. In Baker v. Pierce, the words were, "Baker stole my box-wood, and I will prove it!" (s). After verdict for the plaintiff, it was moved, in arrest of judgment, that these words are not actionable; for they shall be taken to mean wood growing, or the like, whereof only a trespass can be committed. That to say, you are a thief, and have stolen my timber, or my apples, or my hops, is not actionable; for where words import either a felony or a trespass, they shall be taken in the mildest sense, unless there be other words to determine them in the worst sense: as to say, he stole my timber out of my yard, or my hops in a bag; and Mason v. Thompson (t) was cited. But Holt, C.J., and the court denied that case to be law, and gave judgment for the plaintiff.

Rule, as to words of double

meaning.

Where words are capable of a double meaning, the court, after verdict, will always construe them in that sense which may support the verdict. In Button v. In Button v. Heyward and wife (u), the words spoken by the wife were, "George Button (the plaintiff) is the man who killed my husband!" her first husband being dead. After verdict for the plaintiff, it was moved in arrest of judgment, that these words are not actionable for the uncertainty of the word killing; for it might be justifiable, or in his own defence, or per infortunium, and shall not be presumed felonious, and so made actionable by intendment for it is a maxim, that words shall be taken in mitiori sensu. But it was said by Pratt, C.J., There can be no question but at this day these words are actionable. In former

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(t) Hutt. 38.

(u) 8 Mod. 24.

times, words were construed in mitiori sensu, to avoid vexatious CHAPTER II. actions, which were then too frequent; but now, distinguenda sunt tempora and we ought to expound words according to their general signification, to prevent scandals, which are at present too frequent. We are to understand words in the same sense as the hearers understood them; but when words stand indifferent, and are equally liable to two distinct interpretations, we ought to construe them in mitiori sensu; but we will never make any exposition against the plain natural import of the words. The word killing signifies a voluntary and unlawful killing, and is actionable. There are a great number of odd cases in the books." And by Eyre, J., "the words are to be taken in their worst sense, for a malicious and felonious killing." And by Fortescue, J., "The maxim for expounding words in mitiori sensu, has for a great while been exploded, near fifty or sixty years” (x).

of words, and

prevail.

It was observed by Lord Mansfield, C.J., in Rex v. Horne, The natural "It is the duty of the jury to construe plain words and clear interpretation allusions to matters of universal notoriety, according to their their obvious obvious meaning, and as everybody else who reads must meaning must understand them; but the defendant may give evidence to show they were used on the occasion in question in a different or qualified sense. If no such evidence be given, the natural interpretation of the words, and the obvious meaning to every man's understanding, must prevail (y). It would be strange to say, and more so to give out as the law of the land, that a man may be allowed to defame in one sense, and defend himself in another; such a doctrine would indeed be pregnant with the nimia subtilitas which my Lord Coke so justly reprobates." In the case of Peake and Oldham (z), Lord Mansfield said, "After verdict, shall the court be guessing and inventing a mode in which it might be barely possible for these words to have been spoken by the defendant, without meaning to charge the plaintiff with being guilty of murder? Certainly not! Where it is clear that words are defectively laid, a verdict will not cure them; but where, from their general import, they appear to have been spoken with a view to defame the party, the court ought not to be industrious in putting a construction upon them different from what they bear in the common acceptation and meaning of them. I am furnished with a case, founded in strong sense and reason, in support of this (a) This was said in H. T. 8 Geo. I. (*) Cowp. 277. (y) 2 Cowp. 672.