dence of other expressions made use of by the defendant, as a proof of his ill will towards him.-Geare v. Britton. (a)

In an action for words per quod matrimonium amisit with J. S. for the defendant it was proved that J. S. was the plaintiff's aunt, and therefore could not marry him; but per Raymond and Withens, the right of the marriage shall not now be tried; it is sufficient that they intended to marry, and that the woman for that cause refused: (The Case of Sir Ch. Gerard's Bailiff, at Nisi Prius, Trin. 36 Car. 2.) Tamen Q. Whether such determination can be supported by any principle of law?

If an action be brought for calling the plaintiff's wife a bawd, per quod J. S. has left off coming to the house, the special damage being the gist of the action, it ought not to be laid ad damnum ipsorum, (Coleman v. Harcourt, M. 1665. 1 Lev. 140.) (b) but where the action is brought for words in themselves actionable, and no special damage laid, there such conclusion is right, for the action survives: (Grove and Ux v. Hart, T. 25 G. 2.) And note, That saying generally, per quod several persons left his house, without naming any, is not laying a special damage. (c)

In an action for these words, "You are a thief, and I will prove you so:" the plaintiff declared, that by reason of these words, one John Merry, and divers other persons, who were his customers, left off deal

(a) Vide etiam Charlter v. Barrett, Peake, 221. S. P. In an action for words, in themselves actionable, with special damage laid, the defendant justified, but no special damage was proved. Lord Kenyon observed, that every count had a per quod," and seemed to doubt whether, as the plaintiff had proved no special damage, evidence of the words only would support the declaration so framed; but upon its being suggested to him at the bar, that if the words themselves were actionable, it was not necessary to prove special damage, and that proof or not proving the per quod made no difference as to costs, he assented. Erskine, for plaintiff, offered evidence as to conversation subsequent to the time of the commitment, when Lord Kenyon said, that, with the exception of such words as might themselves be the object of separate "actions," the words stated were for charging the

plaintiff with being accessary to a felony; and Bearcroft laid it down. as a principle, that, though the principal thief had been acquitted of the felony, it would be competent for defendant to go into evidence of his guilt, because, what had passed between other persons, could not affect him; and Lord Kenyon assented. Cook v. Field, M. 1788. 3 Esp. N. P. 133.

(b) Qu. tamen for calling a woman a bawd is actionable, and wherever the words are actionable, although special damage be laid, it is held an action for the words, and not for the special damage; and in this case it was rightly held ad damnum ipsorum.

(c) But this mode of laying may be justified by the necessity of the case, as where divers persons ceased bidding at an auction in consequence of slander of title. Hargrave v. Le Breton, 4 Bur. 2424.

[ 8 ]

ing with him. Upon the trial the plaintiff proved the words, and the special damage as to Merry, and would have gone on as to the others; but per Raymond, C. J. Where the words are not actionable, but the special damage is the gist of the action, this sort of evidence is allowed, though the particular instances of such damages are not specified in the declaration; but where the words are actionable, particular instances of such damages shall not be given in evidence, unless particularized in the declaration. However, he admitted the plaintiff to give general evidence of the loss of customers: but modern practice does not seem to warrant this distinction.-Browning v. Newman, M. 12 Geo. 1. Stra, 666. (a)

Where words are spoken in confidence and without malice, no action lies; therefore where A. a servant, brought an action against her former mistress for saying to a lady who came to inquire for the plaintiff's character, that she was saucy and impertinent, and often lay out of her own bed; but was a clean girl, and could do her work well; though the plaintiff proved that she was by this means prevented from getting a place; yet per Lord Mansfield, this is not to be considered as an action in the common way for defamation by words; but that the gist of it must be malice, which is not implied from the occasion of speaking, but should be directly proved. That it was a confidential declaration, and ought not to have been disclosed. (Edmondson v. Stevenson and Ux', Sittings at Westminster after Easter, 6 G. 3. K. B.) But if without ground, and purely to defame, a false character should be given, it would be a proper ground for an action.-Vanspike v. Cleyson, H. 1591. Cro. Eliz. 541. (b)

(a) No particular instances will now be allowed to be given in evidence, except those mentioned in the declaration; for how can defendant contest them by opposite evidence; the plaintiff must know these instances, and ought to disclose them on the record: this seems to be the reasoning in l'Anson v. Stuart, 1 T. R. 752. and, agreeable to this practice, in a case where the words charged the plaintiff, a horse-dealer, with being privy to stealing certain horses sold by him, (and consequently they were actionable:) after proving the words, the plaintiff's counsel applied for permission to give general evidence of loss of cus

So

tomers, Sed non alloc. Waterhouse v. Gill, Lanc. Lent Assizes, 1796. cor. Buller, C. J. MSS. Ca.

(b) So a servant cannot maintain an action against his former master for words spoken, or a letter written, in giving a character of the servant, unless the servant prove the malice as well as the falsehood of the charge, even though the master make specific charges of the fraud. Weatherston v. Hawkins, H. 1786. 1 T. Rep. 110.

Where a person intending to hire a servant applies to the former master for his character, the master (except express malice is proved) shall not be obliged to prove the

truth

So in an action for saying of the plaintiff, who was a tradesman, " He cannot stand it long, he will be a bankrupt soon," where special damage was laid in the declaration, viz. That one Lane refused to trust the plaintiff for a horse: (a) Lane, the person named in the declaration, was the only witness called for the plaintiff; and it appearing on his evidence, that the words were not spoken maliciously, but in confidence and friendship to Lane, and by way of warning to him, and that in consequence of that advice he did not trust the plaintiff with the horse. Pratt, C.J. directed the jury, that though the words were otherwise actionable; yet if they should be of opinion, that the words were not spoken out of malice, but in the manner before mentioned, they ought to find the defendant not guilty, and they did so accordingly.-Herver v. Dowson, C. B. Sittings after T. 5 Geo. 3. (b)

After verdict for the plaintiff, and damages entire, where some of the words are not actionable, the court on motion will grant a venire facias

truth of the character he gives, for in such case the disclosure is not made officially but in confidence, and the facts may happen to rest only in the knowledge of the master and servant. But where the master voluntarily, and without being applied to, speaks defamatory words of his servant, it will be incumbent on him to plead and prove the truth of the words; and Lord Mansfield said it was so settled, and that he had frequently ruled it so at N. P. Lowry v. Akenhead, 8 Geo. 3. K. B. (From a MS. note of Sir Alan Chambre.)

No action lies for giving the true character of a servant, upon application made to his former master to inquire into his former character with a view of hiring him, unless there be proof of extraordinary circumstances of malice. Per Lord Mansfield, in Hargrave v. Le Breton, 4 Bur. 2424.

So where a letter is written ostensibly to inquire into a servant's character, but in reality to entrap the master into a libellous answer, no action lies. King v. Waring, 5 Esp. N. P. Ca. 13.

(a) No man, however, can maintain this action for words affecting him as a trader, unless he be so within the meaning of the bankrupt

laws. Clark v. Wisdom, 5 Esp. N. P. Ca. 147. Contra Dobson v. Thornistone, 3 Mod. 112. Chapman v. Lamphire, ib. 155. 3 Salk. 326, 327. But if upon the face of this declaration it is doubtful whether the trade is within the statutes or not, it may be shewn to have been so carried on as to make the party liable to a commission. Clark v. Wisdom, sup.

(b) In an action for a libel on the plaintiff in his professional character as a solicitor, held, that a letter written confidentially, and under an impression that its statement was well founded, could not be the subject of an action. M Dontgall, one, &c. v. Claridge, one, &c. 1 Camp. 267.

For any man may lawfully state in an unreserved manner, by a confidential verbal communication, his opinion of another's conduct and character, whatever the charges may be which he thus imputes to him. Dunman v. Bigg, 1 Camp. 269 (n). But openly to say of an attorney, "he deserves to be struck off the roll," is actionable, though not so, to say "I have taken out a judge's order to tax his bill; I will bring him to book, and have him struck off the roll." Philips v. Janson, 2 Esp. N. P. Ca. 624.

de

de novo on payment of costs, that the plaintiff may sever his damages.— Anger v. Wilkins, M. 6 Geo. 2. 1 Barnes, 337.

But if the words be in one count, the court will intend that such as are not actionable were added only to shew the malice of the party, and that the damages were given for what were actionable.-Osborn's Case, M. 11 Jac. 1. 10 Co. 130. S. P.

The defendant may justify in an action of Scandalum Magnatum, or for a libel, the same as in a common action of slander; (Lord Cromwell v. Denny, 20 Eliz. 4 Co. 13. Lord Townsend v. Hughes, H. 28 & 29 Car. 2. 2 Mod. 166. Luke v. King, H. 19 & 20 Car. 2. 1 Saund. 120 (c).) and therefore it is not necessary in either case for the

plaintiff to aver, that the words or charge are not true, for that is sup[ 9 ] plied by the allegation that the defendant spake or published * them falsely and maliciously, and it lies upon the defendant to plead that the fact was true by way of justification; and he cannot properly give the truth of the fact in evidence upon not guilty in an action for words, otherwise than in mitigation of damages, and that too under many restrictions, (Carpenter v. Farrant, M. 10 Geo. 2. B. R.); as where the words amount to a charge of felony or treason, for this brings no inconvenience on the defendant who may plead it in bar, and then the time must be ascertained, which might enable the plaintiff to give contrary proof, or to reply several things, of which he would lose the benefit on the general issue; but in such case the defendant may give in evidence the manner and occasion of speaking the words in mitigation, (Smith v. Richardson, M. 12 Geo. 2.); (a) and if the words were spoken through sorrow and concern, and not maliciously, the plaintiff shall be nonsuited, (Crawford v. Middleton, M. 14 Car. 2. 1 Lev. 82.); so he may give in evidence a confession of the plaintiff of his being an accessary, for he could not plead that in bar; (b) besides a confession in the case of a witness may be given in evidence; though you cannot give in evidence any particular crime that he has committed, but only general character. (Cited in Smith and Richardson, as determined by Holt, C.J.) So where the words import a general charge of a crime not capital, the defendant will not be permitted to give the truth in evi

(a) Barnes, 195. Comyn. 551. Prac. Reg. 383. S. C. Et vide Dennis v. Pawling, cor. Price, B. at Bodmin, T. 1716. S. P.

(b) i. e. A confession of plaintiff or defendant, because they cannot be called themselves. But if there was no other evidence, the whole of

what he says must be taken, and not that part only which would convict him, as if it be sworn he confessed the debt, but added, at the same time, that he had paid it; this confession is valid, as to the payment as well as to his having owed it.

dence;

dence; (a) as where the words were "Thou preachest nothing but lies from the pulpit;" (Bishop of Sarum v. Nash, Per Parker, C. J.) but if the words charge a particular crime upon the plaintiff, which is not capital, ex. gr. adultery with J. S. it has been holden that the defendant may give that in evidence in mitigation of damages; though he cannot give in evidence the commission of a like crime with any other. (Smithies v. Harrison, 13 W. 3. Per Holt, 1 Raym. 727. 12 Vin. 139.) However, in Underwood and Parks, M. 17 Geo. 2. Str. 1200. Lee, C. J. said, it was now a general rule not to suffer the truth of the words to be given in evidence on not guilty in any case. (b)

In the case of The King and Baker, (T. 13 & 14 G. 2.) which was an information against the defendant, for publishing a libel against Mr. Swinton, of Wadham college, Oron, accusing him of sodomitical practices, Lee, C. J. refused to let the defendant give evidence of his reasons for doing it, viz. That the supposed pathic told him so; for he said the only question was, Whether the defendant were guilty of printing and publishing the libel; and though it be offered by way of mitigation only, yet in fact it amounts to a justification; and it has always

(a) If a declaration be upon any slanderous words, charging generally any crime, &c. it is not sufficient for the plea to avow the words, and justify, by generally alledging their truth, but the plea must state some particular ground of justification. Newman v. Bailey, cited in I'Anson v. Stuart, 1 T. Rep. 750.

In an action for a libel, any thing may be given in evidence to mitigate the damages, though not to prove the crime, which is charged in the libel. And evidence may therefore be admitted to prove the previous bad character of the plaintiff. Earl of Leicester v. Walter, 2 Camp. 251. Action for a libel; plea not guilty; declaration for certain words written by defendant of plaintiff, referring to a certain newspaper, as containing certain charges: "Mr. H. (the defendant) cannot for a moment suppose that Mr. S. is acquainted with the newspaper particulars, relating to the party alluded to (meaning the plaintiff), otherwise it is not probable that Mr. S. would introduce an acknowledged felon, debauchee, and seducer, into the neighbourhood of Angel-Row;" Lord Ellenborough

held, that as the words referred to a newspaper, and were so written as a quotation from such, if the newspaper could be produced, he would admit it as evidence, as having caused the defendant to adopt what he had written in the letter, he having so referred to it. Mullett v. Healton, 4 Esp. 248.

In an action for words, defendant pleaded not guilty, and offered to prove the words to be true, in mitigation of damages, which the C. J. refused to permit, saying, that at a meeting of all the judges upon a case in the C. P. a large majority of them had determined not to allow it for the future, but that it could be pleaded, whereby the plaintiff might be prepared to defend himself, as well as to prove the speaking of the words. That this was a general rule amongst them all, which no judge would think himself at liberty to depart from, and that it extended to all sorts of words. Underwood v. Parks, Str. 1200.

(b) So held per Mansfield, C. J. at Westminster, 1767, as appears from a MS. note of Sir 4. Chambre.

been