36

CHAPTER III D ; it was held to be a question of fact for the jury, whether or not the words complained of were spoken of the plaintiff in his professional character: and the jury having found that the words were not spoken with reference to the plaintiff's profession, but that they had a "tendency to injure him morally and professionally;" and the jury having also negatived the allegation of special damage; it was held, that upon such findings, the words were not actionable (h). Unless the words complained of are reasonably capable of an imputation impugning the capacity or conduct of the plaintiff in his profession of a solicitor, they are not actionable, in the absence of proof of special damage (i).

Of Tradesmen

The degree of

dence some

times an important element.

Words imputing dishonesty to a tradesman are not actionable, unless they be spoken with reference to his trade (k). So that to call a tradesman a cheat, generally, has been held not to be actionable (1). But otherwise to say, "He keeps false books" (m); for the words evidently relate to his course of trading. So to call a tradesman a rogue (n), or a cheat, with reference to his trade, is actionable. But to say generally of such a person, "Thou hast no more than what thou hast got by cozening and cheating," has been held not actionable (6). It may, however, be doubted, whether there is any solid distinction between these cases, since every tradesman's livelihood depends in some measure upon his general character for honesty and integrity; and it is difficult to suppose, that a general imputation of dishonesty, if believed, would not operate to his prejudice.

It seems that some degree of trust and confidence must trust or confi- be reposed in the plaintiff, in order to render words reflecting upon his character for integrity actionable. Thus the words of a carpenter, "He has charged Mr. Andrews for forty days' work, and received the money for the work, that might have been done in ten days, and he is a great rogue for his pains," were, after verdict, held, not actionable (p). The distinction seems to be this: Where great confidence must necessarily be reposed, as in a solicitor, or a superintendent, words reflecting generally upon his character are actionable; but where mere ordinary confidence is reposed, in the common course of honest

(h) Doyley v. Roberts, 3 Bing, N. C. 835, 840; 5 Scott, 40.

(i) Dauncey v. Holloway, C. A. (1901), 2 K. B. 441.

(k) Sibley v. Tomlins, 4 Tyrw. 90.

(1) 3 Salk, 326,

(m) Holt, R. 39.
(n) Burr. 1688.
(0) 12 Mod. 307.

(p) Lancaster v. French, Str. 797.

dealing, as that a tradesman shall charge a fair price for his CHAPTER III. goods, or an artificer, surveyor, or mechanic for his labour, the law holds that the words are not so injurious as to bear an action unless they are applied to the plaintiff's trade or business with certainty and precision.

to offices of

those of mere

Where the office, profession, or employment of the plaintiff Distinction as requires great talent and high mental attainments, general talent and words imputing want of ability, are actionable without express high attainreference to his particular character, for it necessarily includes ments and an ability to discharge the duties of such a situation; but mechanical where the employment is of a mere mechanical nature, the employment. words to be actionable must be applied to it clearly and unequivocally. Thus, to say of a barrister generally, that he is of a Barrister. a "dunce," has been held to be actionable; the word dunce being commonly taken to mean a person of dull capacity who

is not fit to be a lawyer (q).

So, to say of a physician, that he is "no scholar," is action- of a Physician. able; a learned education being considered to be an essential qualification in the medical profession (r). But it is no slander to say of a person who is unlawfully practising in England as a physician, that he is a quack, or an impostor, or an unqualified person (s).

accoucheur.

The words must, however, in general, be spoken with reference to the particular situation of the plaintiff; in which case they are actionable if they impute any want of knowledge, skill, or diligence, in the exercise of his profession: as to say of a surgeon and accoucheur, "I wonder you had him to attend Surgeon and you several have died that he (the plaintiff) had attended, and there have been inquests held on them;" the words were held actionable without the aid of an innuendo; for their plain and obvious meaning imputed to the plaintiff a want of proper qualification for his profession of surgeon and accoucheur; and, that he was so deficient in skill or care, as that he had either caused his patients to die, or at least that coroner's inquests had been held, in which the inquiry was, whether he had not been the cause of the death of many persons (t). So also, it appears, the words, "He is a bad character. None of the medical men here will meet him," are actionable as imputing the want of a necessary qualification for a surgeon in the ordinary discharge of his professional

(1) Peard v. Johnes, Cro. Car. 382; and see 2 Vent. 28.

(r) 7 Bac. Ab. 269; 1 Roll. Ab. 54 ;

Cro. Car. 720.

(8) Collins v. Carnegie, 1 A. & E. 695.
(t) Southee v. Denny, 1 Ex. 196.

Apothecary.

CHAPTER III. duties (u). And the action extends to all medical practitioners (x) as to say of an apothecary, "It is a world of blood he has to answer for in this town: through his ignorance he did kill a woman and two children at Southampton; he did kill J. P. at Petersfield; he was the death of J. P.; he has killed his patient with physic" (y). So also to impute to an apothecary that, by administering improper medicines, he killed a child (z). So where the defendant said of a midwife (a), 'Many have perished for her want of skill."

Midwife.

Words affecting the credit

of Merchants and Traders.

66

The law has shown great tenderness in protecting merchants and traders against imputations upon their credit; which, if believed, must necessarily operate to their serious prejudice. Formerly (b), indeed, it was held that the words, to support an action, must import bankruptcy (c): this doctrine has, however, long been abandoned., The law now is, that, whatever words have a tendency to hurt, or are calculated to prejudice, a man in any trade or business by which he seeks his livelihood, are actionable (d). And so where the plaintiff, being a laceman, declared in case for these words-"You are a rascal, you are a pitiful, sorry rascal; you are next door to breaking;" and, being laid to have been spoken of the plaintiff in his trade, they were held actionable, without any averment of special damage (e). Saying of an innkeeper, "He is a bankrupt; he will be in the Gazette in a twelvemonth; he is a pauper," was held actionable, though, at that time, an innkeeper was not liable to the bankrupt laws (f). For a man may be as much prejudiced by such words as if he were actually subject to the bankrupt laws. Any words which in common acceptation, imply want of credit are sufficient; as to say of a tailor (g), “I heard you were run away." But it was held, that to say of a tradesman, "You are a regular prover under bankruptcy, you are a regular bankrupt-maker, if it was not for some of your neighbours your shop would look queer," was no slander, as the words contained no imputation on the plaintiff in the way of his trade (h).

cumstances to

To impute indigent circumstances to a banker is also CHAPTER III. actionable either with or without proof of special damage (i). Imputing An imputation of bad financial circumstances may be conveyed indigent cirby the refusal of a banker to honour a cheque; and if a a Banker. banker, having sufficient funds in hand belonging to a customer, dishonour his cheque, the banker will be liable to an action for damages (k).

chant.

An alien, residing and carrying on business in England, Bankruptcy to may maintain an action of slander or libel: as in a case where an alien merthe defendant said of a merchant alien, that he was bankrupt; for by law an alien may have personal actions; and the imputation tends to impair the plaintiff's credit in his trade (l). And though resident abroad, he may sue here for defamation published of him in England (m).

To say of a trader, "You are a sorry pitiful fellow and a Various impurogue, and compounded your debts for 5s. in the pound," is tations of insolvency upon actionable (n). So of a tradesmen, "He is indebted to me in Traders. a considerable amount, and if he does not come and make terms with me, I will make a bankrupt of him and ruin him" (0). So also where defendant said, "I will bet £5 to £1 that Mr. J. (the plaintiff) was in a sponging house for debt within the last fortnight, and I can produce the man who locked him up; the man told me so himself." Whereupon, in reply to a bystander, "Do you mean to say that J. the Brewer, of R., has been in a sponging house within the last fortnight for debt?" the defendant said-" Yes, I do." The words were held a slander spoken of the plaintiff in the way of his trade; as it was plain, from the conversation, that they were spoken of him in his character of a brewer (p).

trade.

If words imputing insolvency in trade, are spoken of one of Partners in the Partners in a Firm, such individual partner may maintain an action for Slander and recover damages for the injury done to him; and it is not necessarily to be considered as an injury to the partnership, for which a joint action only can be maintained (q).

To publish of a trader, without lawful justification or excuse, Words of a any statement the natural consequence of which would be to Trader, general

(i) Robinson v. Marchant, 7 Q. B. 918.

(k) Rolin and another v. Steward, 14 C. B. 595.

(1) Tuerlcote v. Morison, Yelv. 198; Bulst. 134.

(m) Pisani v. Lawson, 6 Bing. N. C.

90; 8 Scott, 180.

(n) 2 Ld. Raym. 1480; Str. 762.
(0) Brown v. Smith, 13 C. B. 596;
22 L. J. C. P. 151.

(p) Jones v. Littler, 7 M. & W. 423.
(q) Harrison v. Berington, 8 Car.
& P. 708, per Lord Abinger, C.B.

rule as to.

CHAPTER III prevent customers dealing with him, is actionable, if followed by a general loss of custom in consequence of such publication (r).

Verbal imputations of immorality on persons in office, &c.

Distinction between such imputations upon males, and females.

Imputation of immorality to a Physician;

In actions of slander in which no indictable offence is imputed, but merely an immoral one, until recently (1891) (s) such actions were not maintainable except on proof of special damage; or unless the words were actually spoken of the plaintiff with reference to his or her office, profession, or employment, and even in those cases it was necessary to show how, and in what manner, the imputation was connected by the speaker with such office or employment.

It has, however, always been considered that there is a wide distinction between imputations of immorality upon a man, and in such upon a woman. In the former, immorality, unless very gross, would seldom be a disqualification either for office or business; except perhaps in such as clergymen, and ministers of religion, and in some cases of medical practitioners, and officers of charitable and other institutions. But in the case of the other sex, there are few occupations in which immorality would not be an absolute disqualification and cause of dismissal; as, for instance, in the case of a domestic servant, a governess, and such like. Chastity being usually an essential qualification in such occupations, a mistress on discovering that her servant, or governess, is unchaste, would be justified in dismissing her; and therefore, in those cases in which chastity is an essential qualification for the service or employment, imputations of the kind have been held actionable (even prior to the statute of 1891) (t) on the ground of their tendency to dismissal from employment (u). The reason formerly given, why a verbal imputation of unchastity was not actionable except on proof of special damage, was, because it was "a spiritual defamation punishable in the spiritual courts" (x). But as the jurisdiction of the ecclesiastical courts in suits for defamation has been abolished (y), the reasons upon which the older decisions rested for refusing relief no longer exist.

In an action by a Physician for words imputing adultery to him, the words were alleged to have been spoken of him "in

(r) Riding v. Smith, 1 Ex. D. 91; 45 L. J. 281.

($) Vide 54 & 55 Vic. c. 51.

(t) "The Slander of Women Act," infra, p. 44.

(u) See Connors v. Justice and wife,

infra, 135.

(a) See per Holt, C.J., in Ogden v. Turner, Holt, R. 40; Byron v. Emes, 12 Mod. 106; 8 Will. 3; Greaves v. Blanchet, Salk. 695; 6 Mod. 148. (y) See 18 & 19 Vic. c. 41.