ought to be, convicted. Many think that such statements should be actionable, even when true, if they are maliciously or unnecessarily volunteered. See post, p. 179. Illustrations. It is actionable without proof of special damage to say of the plaintiff that— He had been in Launceston gaol and was burnt in the hand for coining. Gainford v. Tuke, Cro. Jac. 536. He "was in Winchester gaol, and tried for his life, and would have been hanged, had it not been for Leggatt, for breaking open the granary of farmer A. and stealing his bacon." [Note that here the speaker appears to admit that the plaintiff was acquitted, but still asserts that he was in fact guilty.] Carpenter v. Tarrant, Cas. temp. Hardwicke, 339. "He was a thief and stole my gold." It was argued here that "was' denotes time past; so that it may have been when he was a child, and therefore no larceny; or in the time of Queen Elizabeth, since when there had been divers general pardons: Sed per cur.: "It is a great scandal to be once a thief; for pana potest redimi, culpa perennis erit." Boston v. Tatam, Cro. Jac. 623. It is actionable to call a man "thief" or "felon," even though he once committed larceny, if after conviction he was pardoned either under the Great Seal or by some general statute of pardon. Cuddington v. Wilkins, Hobart, 67, 81; 2 Hawk. P. C. c. 37, s. 48. Leyman v. Latimer and others, 3 Ex. D. 15, 352; 46 L. J. Ex. 765; 47 L. J. Ex. 470; 25 W. R. 751; 26 W. R. 305; 37 L. T. 360, 819. It is actionable to call a man falsely "" a returned convict." Fowler v. Dowdney, 2 M. & Rob. 119. And see Bell v. Byrne, 13 East, 554. In dealing with old cases on this point, care must be taken to remember the state of the criminal law as it existed at the date of publication. Illustrations. So long as the 18 Eliz. c. 3 was in force, it was actionable to charge a woman with being the mother, a man with being the putative father, of a bastard child, chargeable to the parish. Anne Davis's Case, 4 Rep. 17; 2 Salk. 694; 1 Roll. Abr. 38. Salter v. Browne, Cro. Car. 436; 1 Roll. Abr. 37. So long as the penal statutes against Roman Catholics were in force it was actionable to say "He goes to mass," or "He harboured his son, knowing him to be a Romish priest." Walden v. Mitchell, 2 Ventr. 265. Smith v. Flynt, Cro. Jac. 300. Secus, before such statutes were passed. 9 So in many old cases such words as "She is a witch" were held actionable, the statute 1 Jac. I. c. 11, being then in force. But that statute is now repealed by the 9 Geo. II. c. 5, s. 3, which also expressly provides that no action shall lie for charging another with witchcraft, sorcery, or any such offence. Rogers v. Gravat, Cro. Eliz. 571. Dacy v. Clinch, Sid. 53. It was formerly the custom of the City of London, of the borough of Southwark, and also, it is said, of the City of Bristol, to cart whores. Hence, to call a woman a "whore" or "strumpet" in one of those cities is actionable, if the action be brought in the City Courts, which take notice of their own customs without proof. But no action will lie in the Superior Courts at Westminster for such words, because such custom has never been certified by the Recorder, and would now be difficult to prove. Oxford et ux. v. Cross (1599), 4 Rep. 18. Hassell v. Capcot (1639), 1 Vin. Abr. 395; 1 Roll. Abr. 36. Cook v. Wingfield, 1 Str. 555. Roberts v. Herbert, Sid. 97; 1 Keble, 418. Stainton et ux. v. Jones, 2 Selw. N. P. 1205 (13th edn.); 1 Dougl. 380, n. Theyer v. Eastwick, 4 Burr. 2032. Brand and wife v. Roberts and wife, 4 Burr. 2418. Vicars v. Worth, 1 Str. 471. So, in Queen Elizabeth's days, it was held that no action lay for saying, "He keeps a bawdy-house;" for, by the common law, he is not punishable, but by the custom of London; and therefore this action ought to have been sued in the spiritual court" (dissentiente Glanvile). Anon. (1598), Cro. Eliz. 643; Noy, 73. But by 1606 the opinion of Glanvile prevailed; and such words were held actionable; "the keeping of a brothel-house is inquirable in the leet, and so a temporal offence." Thorne v. Alice Durham (1606), Noy, 117. Grove and wife v. Hart (1752), Sayer, 33; B. N. P. 7. It was not apparently clear law till the present century (R. v. Higgins (1801), 2 East, 5; R. v. Philipps (1805), 6 East, 464), that it was a misdemeanour to solicit another to commit a crime, although the person solicited did nothing in consequence. Hence, in the following cases words were held not to be actionable, because no overt act was alleged to have followed the solicitation. They would be held actionable now. Sir Edward Bray v. Andrews (1564), Moore, 63. Eaton v. Allen (1599), 4 Rep. 16; Cro. Eliz. 684. It was held in 1602 that no action lay for saying "Master Barham did burn my barn with his own hands;" for at that date it was not felony to burn a barn unless it were either full of corn or parcel of a mansion-house; and defendant had not stated that his barn was either. Barham's Case, 4 Rep. 20; Yelv. 21. -- So it was in 1602 held not actionable to say :- "Thou hast received stolen swine, and thou knowest they were stolen;" for receiving is not a common law offence, unless it amounts to comforting and assisting the felon as an accessory after the fact. But ever since 3 Wm. & Mary, c. 9, s. 4, and 4 Geo. I. c. 11, such words would be clearly actionable. Dawes v. Bolton or Boughton, Cro. Eliz. 888; 1 Roll. Abr. 68. Cox v. Humphrey, Cro. Eliz. 889. A charge of deer stealing would be actionable now, though in 1705 it was held not actionable, because it was subject only to a penalty of 301. Ogden v. Turner, Salk. 696; Holt, 40; 6 Mod. 104. So now it would of course be actionable to accuse a man of secreting a will; though such an accusation was held not actionable in Godfrey v. Owen, Palm. 21; 3 Salk. 327. And is still apparently not actionable in America. O'Hanlon v. Myers, 10 Rich. 128. Where a vicar of a parish falsely declared that the plaintiff, a parishioner, was excommunicated, it was held an action lay; possibly because the person excommunicated was at that date liable to imprisonment under the writ de excommunicato capiendo; but there seems to have been some allegation of special damage in the declaration. Barnabas v. Traunter, 1 Vin. Abr. 396. But an accusation of adultery, fornication, &c., was never ground for an action in the civil courts. The person accused had a remedy in the spiritual courts till the 18 & 19 Vict. c. 41; now he has none. In South Carolina it was formerly actionable to call a white or his wife a mulatto. Eden v. Legare, 1 Bay, 171. Atkinson v. Hartley, 8 McCord, 203. King v. Wood, 1 Nott & M. 184. The words must clearly impute a crime punishable with imprisonment, although they need not state the charge with all the precision of an indictment. If merely fraud, dishonesty, immorality, or vice, be imputed, no action lies without proof of special damage. And even where words of specific import are employed (such as "thief" or "traitor"), still no action lies if the defendant can satisfy the jury that they were not intended to impute crime, but merely as general terms of abuse, and meant no more than "rogue" or "scoundrel," and were so understood by all who heard the conversation. But if the bystanders reasonably understand the words as definitely charging the plaintiff with the commission of a crime, an action lies. Illustrations. "You forged my name:" these words are actionable, although it is not stated to what deed or instrument. Jones v. Herne, 2 Wils. 87. Overruling Anon., 3 Leon. 231; 1 Roll. Abr. 65. To say that a man is "forsworn" or "has taken a false oath" is not a sufficiently definite charge of perjury; for there is no reference to any judicial proceeding. But to say "Thou art forsworn in a Court of record" is a sufficient charge of perjury; for this will be taken to mean that he was forsworn while giving evidence in a Court of record before the lawfully appointed judge thereof on some point material to the issue before him. Stanhope v. Blith (1585), 4 Rep. 15. Holt v. Scholefield, 6 T. R. 691. Ceely v. Hoskins, Cro. Car. 509. To say "I have been robbed of three dozen winches; you bought two, one at 38., one at 28.; you knew well when you bought them that they cost me three times as much making as you gave for them, and that they could not have been honestly come by," is a sufficient charge of receiving stolen goods, knowing them to have been stolen. [An indictment which merely alleged that the prisoner knew the goods were not honestly come by would be bad. R. v. Wilson, 2 Mood. C. C. 52.] Alfred v. Farlow, 8 Q. B. 854; 15 L. J. Q. B. 258; 10 Jur. 714. "He is a pick-pocket; he picked my pocket of my money," was once held an insufficient charge of larceny. Walls or Watts v. Rymes, 2 Lev. 51; 1 Ventr. 213; 3 Salk. 325. But now this would clearly be held sufficient. Baker v. Pierce, 2 Ld. Raym. 959; Holt, 654; 6 Mod. 23; 2 Salk. 695. Stebbing v. Warner, 11 Mod. 255. "He has defrauded a mealman of a roan horse" held not to imply a criminal act of fraud; as it is not stated that the mealman was induced to part with his property by means of any false pretence. Richardson v. Allen, 2 Chit. 657. Needham v. Dowling, 15 L. J. C. P. 9. So none of the following words are actionable without proof of special damage: "Cheat": Savage v. Robery, 2 Salk. 694; 5 Mod. 398. Davis v. Miller et ux., 2 Str. 1169. "Swindler":— Savile v. Jardine, 2 H. Bl. 531. Black v. Hunt, 2 L. R. Ir. 10. Ward v. Weeks, 7 Bing. 211; 4 M. & P. 796. "Rogue," "rascal," "villain," &c. :- Stanhope v. Blith, 4 Rep. 15. "Runagate": Cockaine v. Hopkins, 2 Lev. 214. "Cozener": Brunkard v. Segar, Cro. Jac. 427; Hutt. 13; 1 Vin. Abr. 427. "Common-filcher ": Goodale v. Castle, Cro. Eliz. 554. "Welcher":— Blackman v. Bryant, 27 L. T. 491. But "welcher" is actionable, if the jury are satisfied the word means who takes money from those who make bets with him, intending to keep such money for himself and never to part with it again." Williams v. Magyer, Times for March 1st, 1883. 99 66 The words "gambler," black-leg," "black-sheep," are not actionable unless it can be shown that the bystanders understood them to mean "a cheating gambler punishable by the criminal law." Barnett v. Allen, 3 H. & N. 376; 27 L. J. Ex. 412; 1 F. & F. 125; 4 Jur. N. S. 488. If the crime imputed be one of which the plaintiff could not by any possibility be guilty, and all who heard the imputation knew that he could not by any possibility be guilty thereof, no action lies, for the plaintiff is never in jeopardy, nor is his reputation in any way impaired. (Buller's N. P. 5.) In America this doctrine was carried to great lengths. If one joint-owner accused his partner of stealing the joint property no action lay, because a joint-owner cannot steal the joint property. But now the more sensible rule prevails, that if the words would convey an imputation of felony to the minds of ordinary hearers unversed in legal technicalities, an action lies, e.g., where an infant is accused of a crime, and nothing said about special malice. (Stewart v. Howe, 17 Ill. 71; and see Chambers v. White, 2 Jones, 383, as to physical inability to commit the crime alleged.) The words are actionable if they are calculated to induce the hearers to suspect that the plaintiff had committed a crime. (Drummond v. Leslie, 5 Blackf. (Indiana) 453.) Illustrations. Words complained of ::-"Thou hast killed my wife." Everyone who heard the words knew at the time that defendant's wife was still alive: they could not therefore understand the word "kill" to mean "murder." Snag v. Gee, 4 Rep. 16, as explained by Parke, B., in Heming v. Power, 10 M. & W. 569. And see Web v. Poor, Cro. Eliz. 569. Talbot v. Case, Cro. Eliz. 823. Dacy v. Clinch, Sid. 53. Jacob v. Mills, 1 Ventr. 117; Cro. Jac. 343. It is no slander to say of a churchwarden that he stole the bell-ropes of his parish church; for they are officially his property; and a man cannot steal his own goods. [But such words might be actionable as a charge on him in his office.] Jackson v. Adams, 2 Bing. N. C. 402; 2 Scott, 599; 1 Hodges, 339. |