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Yet perhaps many words would be holden to be actionable in the case of a peer, that would not be deemed so in the case of a private person; as in the Marquis of Dorchester's case, “ He is no more to be valued than that dog that lies there.” Probee v. Dorchester, M. 24 Car. 2. B. R. 1 Sid. 233. So in the case of the Earl of Peterborough and Stanton. “The Earl of Peterborough is of no esteem in this country; no man of reputation has any esteem for him; no man will trust him for two-pence; no man values him in the country; I value bim no more than the dirt under my feet.”_Vide etiam Winton, Bp. v. Markham, Hetl. 55. S. P.
In offices of profit, words that impute either defect of understanding,
ability or integrity, are actionable;(a) but in those of credit, words that [ *5 ] impute only want of ability, are not actionable, * because a man cannot
help his want of ability as he can bis want of honesty: in either case charging him with inclinations and principles, which shew him unfit, is sufficient without charging him with any act; as to say of a justice of peace, or member of parliament, " he is a Jacobite, and for bringing in the Pretender.”—How v. Prinn, M. 1703. Salk. 695. 7 Mod. 113. 1 Bro. P. C. 97.(b)
The charging of another with a crime of which he cannot by any possibility be guilty (as killing a man who is then living) is not actionable, because the plaintiff can be in no jeopardy from such a charge, but such matter must be pleaded specially, and cannot be given in evidence on the general issue, otherwise than in mitigation of damages.Snagg y. Gee, H. 39 Eliz. 4 Co. 16.(c)
An action lies not for the saying-" Thou art a thief, for thou hast stolen such a thing," (ex. gr. a tree) the stealing whereof appears to be no felony, for the subsequent words shew the reason of calling him
(a) To charge a man with having 50. Aston v. Blagrave, i Sțra. 617. given money to a person in a public 2 Ray. 1369. Štuckley v. Bulhead, trust, is actionable, as well by the 4 Co. 16. S. P. But to impute mere person said to have given, as by the ignorance to a justice of peace is person charged with having received. not actionable. Onslow y. Horne, 3 Per Lord Mansfield, in Purdy v. Wils. 186. Stacey, 5 Bur. 2700; because the (c) Quære as to the authority of words would haye imported a cri this case, for the man may be put in minal charge; but in this case it jeopardy on account of it: suppose was not charged that he gave the the party, although alive, is out of money to the commissioners, and no the kingdom, or has been missing, &c. one was mentioned to whom he was Sed vide Wilner v. Hold, Cro. Car. said to have given it, and the words 489, where it is said, the words shall are not made out to be actionable, be taken according to the usual speaks and the court cannot intend it. ing. (6) Vide Stawell v. Caume, 2 Lev.
thief;(a) but when he says, “ Thou art a thief, and hast stolen such a thing," the action lies for calling him a thief; and the addition, “ Thou hast stolen," is another distinct sentence by itself, and not the reason of the former speech, nor any diminution thereof.-Minors v. Leeford, H. 1605. Cro. Jac. 114. (b)
Though two persons say the same words, you cannot have a joint action; but where an action was brought against two for charging the plaintiff with felony, and procuring her to be indicted, it was holden good: for crimen imponere supposes an act, and is a tort; and, like every other tort, may be proved against two, and one only be found guilty.--Subly v. Mott, 20 Geo. 2.(c)
It was formerly holden that the plaintiff must prove the words precisely as laid, (2 Rol. Abr. 718.); but that strictness is now laid aside, and it is sufficient for the plaintiff to prove the substance of them.(d)
(a) A. calls B.“ a thief,” but ex- import of the language used in l’Anpressly alludes to a breach of trust son v. Stuart, 1 T. R. 752, where only. No action will lie. Thompson it is held a libel, and not so held bev. Bernard, i Camp. 48. Vide etiam cause reduced to writing, which canChristie v. Cowell, Peake N. P. 4. not alter the nature of the words, Robbins v. Hildredon, and Minors v. though it may aggravate the offence; Leeford, Cro. Jac. 66. Tibbs v. Smith, but, in a justification to a declaraT. Raym. 33. So in Morgan v. Iil- tion of this kind, particular instances liams, 1 Stra. 142, defendant said, must be specified in the plea, that “ Thou art a thief.” “ Of what ?" plaintiff may come prepared to an" Of every thing.” After verdict for swer them. plaintiff, defendant moved in arrest (c) If words be spoken of partof judgment, for that stealing fruit ners, whereby they are both injured from trees was not felony. Per Cur. in their trade, they may bring a joint It must be intended of any thing he action, and aver special damage. can be a thief of. Et vide Harrison Cook v. Batchellor, 3 Bos. and Pull. v. Thornborough, Gilb. Rep. B. R. 150. But two persons cannot join 114, that in actions of slander in an action for words spoken of words are not to be taken mitiori them, for the defamation of one is sensú.
not the defamation of the other. (b) In Sarille v. Jardin, 2 H. Bla. Anon. Dy. 19 (a). pl. 112. 532, Eyre, C. J. said, he could not (d) In an action of slander, eviwell account for the decisions; that dence may be given of other slander, calling a man a thief is actionable, by defendant, than that laid in the but the calling him a cheat is not so, declaration to shew, quo animo, he unless it be that. thief always im- spoke those words, which are the plies felony, but cheat not always. subject of the action. Rustellv. Cheat has been always held not ac. Macquider, Middlesex Sittings after tionable, and swindler means no more. Hil. 1807. i Camp. (n). 49. So Per Buller, S. C.
may other papers in a libel. Ibid. Common cheat, or common swindler, Mead v. Daubigny, Peake N. P. 128. it seems, are actionable words, be- contra, Sed vide Lee v. Hudson, ibid. cause they are indictable offences, 166, and Rex v. l'earce, ibid. 75, as and put the person charged in jeo to original part. But in Finnerty pardy; and common swindler is the v. Tippers, 2 Camp. 72, Sir James
However, if the words be laid in the third person, e. g. He deserves to be hanged for a note he forged on 4. proof of words spoken in the second person, e. g. You deserve, &c. will not support the declaration : for there is a great difference between words spoken in a passion to a man's face, and words spoken deliberately behind his back. (Avarillo v. Rogers, Guildhall Sittings, Trinity Term, 1773, before Lord Mansfield.) (a) If the colloquium alledged be necessary to maintain the action it must be proved; as where words are laid to be spoken of one with respect to his office or trade. (Savage and Roberts, Salk. 604. Per Denton, at Stafford, 1729.) So if it be laid that the defendant in clausa ecclesia Litchfield spoke the words, it has been holden that the place
not being laid as a tenue, but as a description of the offence, it is a cir[ *6] cumstance that must be proved; but * if the words are laid to be
spoken before A. and others, it is sufficient to prove them spoken in the presence of others only.- Tr. per pais, S62. (b)
Mansfield, C. J. héld, that such in Todd v. Hastings, 2 Saund. 307, other libels and slanders must be that to say to a draper,
you are a relative, in some measure, to the cheating fellow, and keep false books, subject of the indictment or action : and I will prove it,” is noi actionand defendant may, for the purpose able, unless there be some commuof reducing the damages, give in evi- nation respecting the plaintiff's trade: dence libellous matters used against and there seems no doubt but that him by the plaintiff. So for a libel. words not actionable in themselves, T'abart v. Tipper, i Camp. 350. but only so when spoken of a man
(a) Defendant was indicted for in trade, &c. must be 'alledged to saying of a justice of peace, in the have been spoken in relation to such execution of his office, “ he is a trade, &c. otherwise judgment will broken-down justice, a perjured jus- be arrested. Harvey v. Martin, T. tice:" the evidence was, that defende Raym. 75. Walmsley v. Russell, 6 ant said, “ you are, &c.” (speaking Mod. 202. 2 Salk. 696. And plainto the justice, and not of him :) and tiff must prove according to such plaintiff was nonsuited on argument, allegation, or he will be non-suited, in K. B. Rer v. Berry, 4 T. R. 217. Vide i Saund. 242 (a). continuation
(b) It should seem from the pre- of n. (3). But if he aver that he cedents in Lilly, as well as the rea- sustained special damage, the deson of the thing, that no colloquium claration would be good on account is necessary where the words are ob- of such special damage, and entitle viously injurious to the trader, as to him to full costs. So where plaincall bim a fellow who cannot pay tiff said to a trader, “
you are a his debts,” but to say “ lie is an igo cieat, and have been a cheat for norant idle fellow,” is not actionable, many years." Upon the first motion, without some reference to his trade, Lord Holt said, the words must be and in such case the colloquium is understood of his way of living, and necessary, as where defendant said
there needed no colloquium, but atyou starved D. lo death," in arrest terwards he changed his opinion, of judgment, no colloquium was held and judgment was arrested princigood. Harrison v. Eldrington, 1 Rol. pally on the authority of Todd vi Abr. 632
Hastings, sup. Sarage v. Robery, 2 As to the colloquiun. It was held Salk, 694. And in Daris v. Miller, In an information for a libel in setting forth a sentence, the word (nor) was inserted for (not), but the sense was not thereby altered; upon not guilty and a special verdict, the court said Cujus quidem tenor imports a true copy. 2. This was not a tenor by reason of the variance. 3. There is a difference between words spoken and written; of the former there could not be a tenor, for want of an original to compare them with; and therefore where one declares for words spoken, variance in the omission or addition of a word is not material, if so many of the words be proved and found as are in themselves actionable : and per Holt, there are two ways of describing a libel or other writing in pleading; by the words, or the sense; by the words, as if you declare Cujus tenor sequitur, and there if you vary it is fatal: by the sense, that the defendant made a writing, and therein said so and so; in which case, exactness of words is not so material.- Queen v. Drake, M. 5 Ann. Salk. 660. Johnson v. Browning, T. 3 Ann. 6 Mod. 216.(a)
And note, that it has been holden, that a proof of a libel being sold in a shop by a servant, though the owner know nothing of the contents, or of its coming in or going out, iş sufficient to convict the owner of the shop. In Lake and King, (which was an action for printing a libel) it was holden that an action would not lie for printing a petition to parliament, and delivering it to the members, it being agreeable to the course and proceedings in parliament. (Rex v. Nutt, 2 G. II. per Raymond, Guildhall. 1 Saund. 132.) and Cutler and Diron, M. 27 & 28 Eliz. 4 Co. 14. is to the S. P. But where Owood exhibited a bill in the Star-chamber against Sir R. Buckley, and charged him with divers matters examinable in the said court, and further that he was a maintainer of pirates and murderers, and a procurer of piracies and murders, it was holden that an action lay for the words not examinable in the said court.
N. B. If A. send a libel to London to be printed and published, it is his act in London, if the publication be there.--Rex v. Middleton. (6)
2 Stra. 1169, and Saville v. Jardin, word does not make any other word. 2 H. Blac. 531, which are siinilar R. v. May, Dougl. 193, and R. v. cases, à colloquium was held neces- Beech, Cowp. 229. Turrill v..Aynssary. See also 2 Saund. 117 (a). n. worth, 2 Ray. 1515. 2 Stra. 787, and 307 (a). n. (1). upon the sub- there referred to, but the last case ject of a colloquium.
seems to be doubted by Dougl. (a) Where the misrecited word is (b) Where the libel was pubin itself a word, though not intel- lished in different counties, the court ligible with the contest, the vari- will not change the venue, as where ance is fatal, but not if the mutilated it is published in a newspaper, which
If an action be brought for words that are not in themselves actionable, if the plaintiff do not prove the special damage laid in the declaration, he must be nonsuited, because the special damage is the gist of the action;(a) but where the words are of themselves actionable, if the words be proved the jury must find for the plaintiff, though no special damage be proved.—Guest v. Loyd.(b)
But though the words be in themselves actionable, yet the plaintiff is not at liberty to give evidence of any loss or injury he has sustained by the speaking of them, unless it be specially laid in the declaration.Per Lee, C. J. in Geare v. Brition, M. 1746.(c)
And where he has once recovered damages, he cannot after bring an action for any other special damage, whether the words be ip themselves actionable or not: (Fitter v. Deal, T. 13 W. 3. 12 Mod. 542.) But though he cannot give evidence of any loss or injury not laid in the declaration, yet after he has proved the words as laid, he may give evi
circulates every where; besides de vered to the person to whom it was fendant cannot swear that the cause addressed. R. v. Watson, i Camp. of action arose in Dale, and not else
215. where. Pinkney v. Collins, 1 T. Rep. (a) Vide Browne v. Gibbons, i 571. Clissold v. Clissold, ib. 647. But Salk. 206,—and the special damage where the libel was in a letter written must be the legal and natural confrom a place in the county to which sequence of the words spoken, otherit was moved to change the venue to wise it does not sustain the declaraanother place in the same county,
tion. Vicars v. Wilcocks, 8 East, 1. the court changed the venue, for the (b) If the words are, in their own cause of action arose in that county nature, actionable, the jury ought only. Freeman v. Norris, 3 T. Rep. to consider the damage which the 306. So where a libel was in a let- party may sustain; but if a partiter written, and sent from Yorkshire cular averment of special damage to a person in Germany, the court makes them actionable, then the changed the venue into Yorkshire, jury are only to consider such dathough the actual publication was
mages as are already sustained, and in Germany. Metcalfe v. Markhum, not such as may happen in future ; 3 T. Rep. 652.
as for such, plaintiff may have a Indictment for a libel. Evidence: new action. Per North, C. J. in that the letter in question was re- Ld. Townshend y. Dr. Hughes, C. B. ceived at Windsor with the Islington H. 28 & 29 Car. 2. 2 Mod. 150. two-penny post mark; this was held Where the words spoken are acinsufficient proof of publication, as tionable in themselves, the law will the mark might have been forged. imply an injury. Harwood v. Astley, Then another letter had been given i Bos. and Pull. 47. in evidence, which had been sent to (c) Because the defendant, not Il’indsor, but was received by the being apprised, cannot come preprosecutor, at the News in West
pared to answer them; but then deminster; and Lord Ellenborough held fendant may prove the truth of these that this was evidence of a publica- words, for he had no opportunity of rion in Middleser, as the defendant, pleading it, and whatever cannot be having once put it in circulation, pleaded may be given in evidence, must be taken to have published it on the general issue. Collinsor v. in that place in which it was deli. Loder, post 10.