Words imputing unchastity or adultery to a woman, married or unmarried, however gross and injurious they may be, are not actionable, unless she can prove that they have directly caused her special damage. As to what constitutes special damage, see the stringent rules laid down in c. X., post, pp. 297-306. The only exception is in the case of actions brought in the local Courts of the city of London, the borough of Southwark (Sid. 97), and, it is said, of the city of Bristol (Power v. Shaw, 1 Wils. 62), for words spoken within the jurisdiction of those Courts. It was formerly the custom in those localities to cart and whip whores, tingling a basin before them. Hence to call a woman "whore" or " strumpet (Cook v. Wingfield, 1 Str. 555) or "bawd" (1 Vin. Abr. 396), or her husband a "cuckold" (Vicars v. Worth, 1 Str. 471), was supposed to be an imputation of a criminal offence to the female plaintiff and therefore actionable. But no action will lie in the High Court of Justice for such words, since the custom has never been certified by the Recorder and must therefore be strictly proved. The plaintiffs failed to prove such a custom in 1782 in Stainton et ux. v. Jones, 2 Selw. N. P. 1205 (13th ed.); and it would be still more difficult to do so in the present day. The City Courts used formerly to take judicial notice of their own custom; but I doubt if they would do so now, the custom being entirely extinct. (See 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; Watson v. Clerke, Comb. 138, 139; notes [14] and [96] to 1 Dougl. by Frere, p. 380; Theyer v. Eastwick, 4 Burr. 2032; Brand and wife v. Roberts and wife, 4 Burr. 2418; Rily v. Lewis, 1 Vin. Abr. 396; Vicars v. Worth, 1 Str. 471; Hodgkins et ux. v. Corbet et ux., 1 Str. 545; Roberts v. Herbert, Sid. 97; S. C. nom. Caus v. Roberts, 1 Keble, 418.) То Illustrations. say of a young woman that she had a bastard is not actionable without proof of special damage; "because it is a spiritual defamation, punishable in the spiritual court." Per Holt, C. J., in Ogden v. Turner, Holt, 40; 6 Mod. 104; 2 Salk. 696. To call a woman 66 a whore" or "a strumpet" is not actionable, except by special custom, if the action be tried in the cities of London and Bristol. "To maintain actions for such brabling words is against law." Oxford et ux. v. Cross (1599), 4 Rep. 18. Gascoigne et ux. v. Ambler, 2 Ld. Raym. 1004, It is not actionable to call a woman a "bawd," unless it be in the City of London. Rily v. Lewis (1640), 1 Vin. Abr. 396. The words "You are living by imposture; you used to walk St. Paul's Churchyard for a living,”-spoken of a woman with the intention of imputing that she was a swindler and a prostitute,-are not actionable without special damage. Wilby v. Elston, 8 C. B. 142; 18 L. J. C. P. 320; 13 Jur. 706; 7 D. & L. 143. So to say of a married man that he has "had two bastards and should have kept them," is not actionable, though it is averred that by reason of such words "discord arose between him and his wife, and they were likely to have been divorced." Barmund's Case, Cro. Jac. 473. Salter v. Browne, Cro. Car. 436; 1 Roll. Abr. 37. The defendant told a married man that his wife was 66 a notorious liar" and an infamous wretch," and had been all but seduced by Dr. C. of Roscommon before her marriage. The husband consequently refused to live with her any longer. Held, no action lay. Lynch v. Knight and wife, 9 H. L. C. 577; 8 Jur. N. S. 724; 5 L. T. 291. Where the defendant asserted that a married woman was guilty of adultery, and she was consequently expelled from the congregation and bible society of her religious sect, and was thus prevented from obtaining a certificate, without which she could not become a member of any similar society, held, no action lay. Roberts and wife v. Roberts, 5 B. & S. 384; 33 L. J. Q. B. 249; 10 Shafer v. Ahalt, 48 Maryland, 171; 30 Amer. R. 456. [It does not appear that the case as to excommunication, Barnabas v. Traunter, 1 Vin. Abr. 396, ante, p. 61, was cited to the Court.] The defendant falsely imputed incontinence to a married woman. In consequence of his words she lost the society and friendship of her neighbours, and became seriously ill and unable to attend to her affairs and business, and her husband incurred expense in curing her, and lost the society and assistance of his wife in his domestic affairs. Held, that neither husband nor wife had any cause of action. Allsop and wife v. Allsop, 5 H. & N. 534; 29 L. J. Ex. 315; 8 W. R. But see Davies v. Solomon, L. R. 7 Q. B. 112; 41 L. J. Q. B. 10; 20 Riding v. Smith, 1 Ex. D. 91; 45 L. J. Ex. 281; 24 W. R. 487; 34 Our law on this point has often been denounced by learned judges. "I may lament the unsatisfactory state of our law according to which the imputation by words however gross, on an occasion however public, upon the chastity of a modest matron or a pure virgin, is not actionable without proof that it has actually produced special temporal damage to her," says Lord Campbell, L. C., in Lynch v. Knight and wife, 9 H. L. C. 593; 5 L. T. 291. "Instead of the word 'unsatisfactory' I should substitute the word 'barbarous," says Lord Brougham, p. 594. See also the remarks of Willes, C. J., in Jones v. Herne, 2 Wils. 87; and of Cockburn, C. J., Crompton and Blackburn, JJ., in Roberts and wife v. Roberts, 5 B. & S. 384; 33 L. J. Q. B. 249; 10 Jur. N. S. 1027; 12 W. R. 909; 10 L. T. 602. Two explanations may be assigned for the undesirable state of our law on this point. (1) In the days when our common law was formed, every one was much more accustomed than they are at present to such gross language, and epithets such as "whore" were freely used as general terms of abuse without seriously imputing any specific act of unchastity. (2) The spiritual Courts had jurisdiction over such charges, and though they could not award damages to the plaintiff, they could punish the defendant for the benefit of his soul; but all actions in the Ecclesiastical Courts for defamatory words were abolished by the 18 & 19 Vict. c. 41, and no attempt was made to substitute any remedy in the ordinary Courts of law. In Scotland a verbal imputation of unchastity is actionable without proof of special damage. Throughout the United States an imputation of unchastity to an unmarried female is actionable per se by statute: and so is an imputation of adultery to a married woman in all the States, except Maryland. (See ante, p. 57.) Even to charge a woman with being drunk is actionable in Massachusetts. (Brown v. Nickerson, 1 Gray, 1.) The hardship is increased by the rules relating to special damage, which are peculiarly stringent in the case of a married woman. That her husband has sustained special damage in consequence of the words will not avail for her. And unless she carry on a separate trade or business of her own under the Married Women's Property Acts, it is almost impossible for her to sustain any special damage to herself, for all her property is either in law her husband's, or is safely vested in trustees for her, and cannot possibly be affected by defamatory words. That she loses the society of her friends is no special damage; and in Lynch v. Knight and wife, 9 H. L. C. 577, Lord Wensleydale denied that the loss of the consortium of her husband could constitute special damage. The only object of insisting on proof of special damage is to secure that the plaintiff's reputation has in fact been seriously impaired. And in many of these cases it is clear that this was so. What more convincing proof of loss of reputation could be adduced than the fact proved by Mrs. Roberts that she was expelled from the congregation, and not allowed to continue a member of her religious sect. Yet in that case it was held no action lay. Surely it is high time that some alteration should be made in our law on this point. All words, if published without lawful occasion, are actionable, if they have in fact produced special damage to the plaintiff, such as the law does not deem too remote. "Any words by which a party has a special damage" are actionable. (Comyn's Digest, Action upon the Case for Defamation, D. 30.) "Undoubtedly all words are actionable, if a special damage follows." (Per Heath, J., in Moore v. Meagher, 1 Taunt. 44.) It is usual to qualify the generality of the above rule by adding a proviso, "provided the words themselves be in their nature defamatory." But I think the rule as expressed above is a correct proposition of law. And there are objections to the phrase "words in their nature defamatory." It is not defamatory to say of a pork butcher "he knows no law: he cannot draw a lease;" it is defamatory so to speak of a solicitor. You cannot therefore lay down a priori any hard and fast rule as to what words are in their nature defamatory, and what are not so. Each case must depend on its own circumstances. (See 6 Mod. 24.) And that is why "defamatory words" have at the commencement of this chapter been defined as "words which in any given case have appreciably injured the plaintiff's reputation." In an action of libel or slander, the words must of course be defamatory; that is, the plaintiff's reputation must have been appreciably impaired. And so, if we confine ourselves, strictly to actions of defamation and to words not actionable per se, no doubt it is correct to state the rule thus:-"All words, if published without lawful occasion, are actionable, if it be proved, by evidence of special damage not too remote, that they have in fact injured the plaintiff's reputation; and in such cases the action is called an action of defamation." And the converse of this rule will be equally correct:-"No words can be the subject of an action of defamation, however maliciously published, and although they have caused actual damage to the plaintiff, unless it is also proved that the plaintiff's reputation has in fact been thereby injured." But though an action of defamation will not lie, it by no means follows that some other action will not lie. Wherever a defendant speaks words of whatever nature, maliciously intending to do some injury to the plaintiff thereby, and the words have their desired effect and do actually produce damage to the plaintiff, here there is that actionable "concurrence of loss and injury," spoken of by Lord Campbell, L. C., in Lynch v. Knight and wife, 9 H. L. C. 589; and an ordinary action on the case will lie, if not an action of libel or slander. This no doubt is running counter to the head-note in Kelly v. Partington, 5 B. & Ad. 645: "Held that the words were not defamatory in their nature, and therefore not actionable, even though followed by special damage." But Kelly v. Partington is, if I may say so, a silly case. It turned on a slip in the pleadings. The defendant said of the plaintiff, "She secreted 1s. 6d. under the till," and then added significantly, "These are not times to be robbed." This was clearly an insinuation of felony. Verdict for the plaintiff, damages 1s. On taxation the master declined to allow the plaintiff more costs than damages, in accordance with the statute of James I., then in force. The plaintiff's counsel, Sir John Campbell, S. G., thereupon argued that the second count was not actionable without proof of special damage, and so that statute would not apply; and succeeded in getting a rule for his costs. For it turned out that the pleader had run the words together so that it appeared on the record that the charge against the plaintiff was this: "She secreted 1s. 6d. under the till; stating, these are not times to be robbed." There was no innuendo stating whose money it was, but there was an allegation of special damage that in consequence one Stenning had refused to take the plaintiff into his service. The Court was therefore pleased to take the words as-spoken in praise of the plaintiff, i. e., as importing merely that the plaintiff exercised great caution, and was very careful of her own money, even of small amounts of it, for fear of being robbed. Sir James Scarlett took advantage of this flaw and succeeded in arresting judgment. For it followed, of course, that Stenning's refusal to take the plaintiff into his service, because the defendant had praised her, was unreasonable, and not the natural or necessary consequence of the defendant's words. And the only decision in the case was that the special damage was too remote; and a very harsh decision this seems to be, in these days when pleadings are so easily amended. The Solicitor General could not now go back and argue that the words amounted to a charge of felony and were actionable per se; for on the argument of the previous rule he had been only too successful in proving that the words were not actionable without proof of special damage. He was driven therefore to contend that, if praise produced special damage, praise was actionable; an argu |