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 him 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 his 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 v. 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 given money to a person in a public trust, is actionable, as well by the person said to have given, as by the person charged with having received. Per Lord Mansfield, in Purdy v. Stacey, 5 Bur. 2700; because the words would have imported a criminal charge; but in this case it was not charged that he gave the money to the commissioners, and no one was mentioned to whom he was said to have given it, and the words are not made out to be actionable, and the court cannot intend it. (b) Vide Stawell v. Caume, 2 Lev. 50. Aston v. Blagrave, 1 Stra. 617. 2 Ray. 1369. Stuckley v. Bulhead, 4 Co. 16. S. P. But to impute mere ignorance to a justice of peace is not actionable. Onslow v. Horne, 3 Wils. 186. (c) Quare as to the authority of this case, for the man may be put in jeopardy on account of it: suppose the party, although alive, is out of the kingdom, or has been missing, &c. Sed vide Wilner v. Hold, Cro. Car. 489, where it is said, the words shall be taken according to the usual speaking. 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) However, (a) A. calls B. " a thief," but expressly alludes to a breach of trust only. No action will lie. Thompson v. Bernard, 1 Camp. 48. Vide etiam Christie v. Cowell, Peake N. P. 4. Robbins v. Hildredon, and Minors v. Leeford, Cro. Jac. 66. Tibbs v. Smith, T. Raym. 33. So in Morgan v. Williams, 1 Stra. 142, defendant said, "Thou art a thief." Of what?" "Of every thing." After verdict for plaintiff, defendant moved in arrest of judgment, for that stealing fruit from trees was not felony. Per Cur. It must be intended of any thing he can be a thief of. Et vide Harrison v. Thornborough, Gilb. Rep. B. R. 114, that in actions of slander words are not to be taken mitiori sensú. (b) In Saville v. Jardin, 2 H. Bla. 532, Eyre, C. J. said, he could not well account for the decisions; that calling a man a thief is actionable, but the calling him a cheat is not so, unless it be that thief always implies felony, but cheat not always. Cheat has been always held not actionable, and swindler means no more. Per Buller, S. C. Common cheat, or common swindler, it seems, are actionable words, because they are indictable offences, and put the person charged in jeopardy; and common swindler is the import of the language used in Ï'Anson v. Stuart, 1 T. R. 752, where it is held a libel, and not so held because reduced to writing, which cannot alter the nature of the words, though it may aggravate the offence; but, in a justification to a declaration of this kind, particular instances must be specified in the plea, that plaintiff may come prepared to answer them. (c) If words be spoken of partners, whereby they are both injured in their trade, they may bring a joint action, and aver special damage. Cook v. Batchellor, 3 Bos. and Pull. 150. But two persons cannot join in an action for words spoken of them, for the defamation of one is not the defamation of the other. Anon. Dy. 19 (a). pl. 112. (d) In an action of slander, evidence may be given of other slander, by defendant, than that laid in the declaration to shew, quo animo, he spoke those words, which are the subject of the action. Rustell v. Macquider, Middlesex Sittings after Hil. 1807. 1 Camp. (n). 49. So may other papers in a libel. Ibid. Mead v. Daubigny, Peake N. P. 128. contra. Sed vide Lee v. Hudson, ibid. 166, and Rex v. Pearce, ibid. 75, as to original part. But in Finnerty v. Tippers, 2 Camp. 72, Sir James Mansfield, 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 venue, 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, $62. (b) Mansfield, C. J. held, that such (a) Defendant was indicted for (b) It should seem from the precedents in Lilly, as well as the reason of the thing, that no colloquium is necessary where the words are obviously injurious to the trader, as to call him " a fellow who cannot pay his debts," but to say "he is an ig norant idle fellow," is not actionable, without some reference to his trade, and in such case the colloquium is necessary, as where defendant said 46 you starved D. to death," in arrest of judgment, no colloquium was held good. Harrison v. Eldrington, 1 Rol. Abr. 63 As to the colloquium. It was held 66 In in Todd v. Hastings, 2 Saund. 307, that to say to a draper, you are a cheating fellow, and keep false books, and I will prove it," is not actionable, unless there be some communation respecting the plaintiff's trade: and there seems no doubt but that words not actionable in themselves, but only so when spoken of a man in trade, &c. must be alledged to have been spoken in relation to such trade, &c. otherwise judgment will be arrested. Harvey v. Martin, T. Raym. 75. Walmsley v. Russell, 6 Mod. 202. 2 Salk. 696. And plaintiff must prove according to such allegation, or he will be non-suited. Vide 1 Saund. 242 (a). continuation of n. (3). But if he aver that he sustained special damage, the declaration would be good on account of such special damage, and entitle him to full costs. So where plaintiff said to a trader, "you are a cheat, and have been a cheat for many years." Upon the first motion, Lord Holt said, the words must be understood of his way of living, and there needed no colloquium, but afterwards he changed his opinion, and judgment was arrested principally on the authority of Todd v. Hastings, sup. Savage v. Robery, 2 Salk. 694. And in Davis v. Miller, 2 Stra. 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 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) so; 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, is 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 Dixon, 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. (b) 2 Stra. 1169, and Saville v. Jardin, 2 H. Blac. 531, which are similar cases, à colloquium was held necessary. See also 2 Saund. 117 (a). n. and 307 (a). n. (1). upon the subject of a colloquium. (a) Where the misrecited word is in itself a word, though not intelligible with the context, the variance is fatal, but not if the mutilated If [7] 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. Britton, 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 in themselves actionable or not: (Fitter v. Veal, 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- Indictment for a libel. Evidence: vered to the person to whom it was addressed. R. v. Watson, 1 Camp. 215. (a) Vide Browne v. Gibbons, 1 Salk. 206,-and the special damage must be the legal and natural consequence of the words spoken, otherwise it does not sustain the declaration. Vicars v. Wilcocks, 8 East, 1. (b) If the words are, in their own nature, actionable, the jury ought to consider the damage which the party may sustain; but if a particular averment of special damage makes them actionable, then the jury are only to consider such damages as are already sustained, and not such as may happen in future; as for such, plaintiff may have a new action. Per North, C. J. in Ld. Townshend v. Dr. Hughes, C. B. H. 28 & 29 Car. 2. 2 Mod. 150. Where the words spoken are actionable in themselves, the law will imply an injury. Harwood v. Astley, 1 Bos. and Pull. 47. (c) Because the defendant, not being apprised, cannot come prepared to answer them; but then defendant may prove the truth of these words, for he had no opportunity of pleading it, and whatever cannot be pleaded may be given in evidence, on the general issue. Collinson v. Loder, post 10. dence |