that this action is not an action on the case within the meaning of the stat. 27 Eliz. c. 8. which gives the writ of error in Exchequer Chamber in certain actions.

There is a dictum in 2 Show. 506. that in a scand. mag. the plaintiff obtaining a verdict will not be entitled to

costs.

It has been holden, that certain words are actionable in the case of a peer, which would not have been deemed so in the case of a common person; as in Ld. Townshend v. Hughes", where the defendant said of the plaintiff," he is an unworthy man, and acts against law and reason."

Of the Action for Slander, and in what Cases it may be maintained.

t

IN former times, the action for slander was very rare; the first action for words to be found in the books was in the 30th year of Edw. 3. Lib. Ass. fo. 177. pl. 19. and from that time to the reign of Queen Elizabeth, these actions were few in number, and not brought on frivolous causes. During the reign of Queen Elizabeth and King James, they be gan to increase, and in modern times the action has been more frequent.

Actions for words should not be brought upon slight and trivial occasions; and where the words are merely words of heat, anger, or passion, spoken suddenly or without deliberation, such actions should be discountenanced; at the same time, it has been truly said (by Wray, C. J.) that unless the party injured by false and malicious scandal had a remedy at law, it would be a verbis ad verbera, and the consequences might be fatal.

It would exceed the limits prescribed to this work to enumerate with particularity all the cases which have been adjudged, as to what words are actionable, and what are not so. It may be sufficient for the present purpose to observe, that,

An action on the case lies against any person for falsely and maliciously speaking and publishing of another, words

1 Mod. 232. Med. 130. S. C.

which directly (4) charge him with any crime, for the commis sion of which the offender is punishable by law" (5), as treason, murder, larceny, perjury', keeping a bawdy-house', or with having (6) any contagious disorder, the imputation of which may exclude him from society, as leprosy', plague, French pox", &c.

In order to sustain this action, it is essentially necessary that the words should contain an express imputation of some crime liable to punishment, some capital offence, or other infamous crime or misdemeanor. An imputation of the mere defect or want of moral virtue, moral duties, or obligations, is not sufficient. To call a man a swindler, is not actionable'; so to call a man a thief is not actionable, unless it be intended to impute felony to him. Hence, where that expression is accompanied with other words, which clearly denote that the speaker did not intend to impute felony to the party charged, no action can be maintained.

In an action for words, the words proved were, "He is a thief, for he has stolen my beer." It appeared in evidence, that the defendant was a brewer, and that the plain

n Finch, B 3. C. 2.

o Lewis v. Roberts, Hard. 293. p 1 Roll. Abr. 72. pl. 4.

q Aleyn, 31.

r1 Roll. Abr. 39. 1. 23.

s1 Roll. Abr. 44. 1. 15.

Taylor v. Perkins. Cro. Jac. 144.

n 1 Roll. Abr. 66. 1. 38.

x. Per de Grey, C. J. delivering judg
ment in Onslow v. Horne, 3 Wils.
177. recognized by Lawrence, J. in
Holt v. Scholefield, 6 T. R 694.

y Savile v. Jardine, 2 H. Bl. 531.
z Cristie v. Cowell, Peake, N. P. C. 4.

Im

(4) "Words to be actionable must be unequivocally so. puting to a person an evil inclination, which is not carried into effect, is not actionable." Per Ellenborough, C. J. in Harrison v. Stratton, M. T. 1803. 4 Esp. N. P. C. 218.

The charging another with a crime of which he cannot by any possibility be guilty, as killing a person who is then living, is not actionable, because the plaintiff cannot be in any jeopardy from such a charge. Snag v. Gee, 4 Rep. 16. a.

(5) That is, by common law or statute; for charging a man with an offence examinable only in the spiritual court, unless special damage ensues, is not actionable. Parrat v. Carpenter, Cro. Eliz. 502. Graves v. Blanchet, Salk. 696,

(6) But charging a person with having had a contagious disor der, is not actionable; for unless the words spoken impute a continuance of the disorder at the time of speaking them, the ground of the action fails; for such a charge cannot produce the effect which makes it the subject of an action, namely, his being avoided by society. Per Ashhurst, J. in Carstake v. Mapledoram, 2 T. R. 475. 2 Str. 1189. S. P.

tiff had lived with him as servant; in the course of which service he had sold beer to different customers of the defendant, and received money for the same, which he had not duly accounted for. Ld. Kenyon, C. J. directed the jury to consider whether these words were spoken in reference to the money received, and unaccounted for, by the plaintiff, or whether the defendant meant that the plaintiff had actually stolen beer; for if they referred to the money not accounted for, that being a mere breach of contract, so far explained the word "thief" as to make it not actionable. Thus if a man says to another you are a thief, for you stole my tree," it is not actionable, for it shews he had a trespass and not a felony in his contemplation. V. for defendant. See also Thompson v. Bernard, 1 Camp. N. P. C. 48. to the same effect.

66

The rule which at one time prevailed, that words are to be understood in mitiori sensu, has been long ago superseded, and words are now construed by courts, as they always ought to have been, in the plain and popular sense in which the rest of the world naturally understand them.

In an action for words, it was stated in the declaration, that the plaintiff had lived among his neighbours with credit and reputation, and without being suspected of felony, and that the defendant, in order to charge him with the crime of felony, falsely and maliciously spoke of the plaintiff these false, malicious, and scandalous words, viz. "that the plaintiff was in Winchester gaol, and was tried for his life, and would have been hanged, if it had not been for Abraham Legat, for breaking farmer Atkin's granary and stealing his sacks." Plea N.G. After verdict for plaintiff, it was moved in arrest of judgment, that the words did not import any guilt in the plaintiff, being only a narrative of what passed on the trial, and rather tended to shew the plaintiff was cleared by the evidence of Legat, than that he was guilty of any crimes for which he deserved to be hanged. But per Lord Hardwicke, C. J. "The construction now made upon actions for words is very different from what it was formerly. Judges, anciently, to discourage little frivolous actions, used their utmost endeavour to explain away the most opprobrious words: but this was certainly wrong, and as the character and reputation of mankind is under the protection of the law, as well as their estates, we ought to do equal justice to both, and take care

a Cro. Jac. 114. Bull N. P. 5. b 9 East, 96.

e Carpenter v. Tarrant, M. T. 10 G. 2. B. B. MSS. Ca. Temp. Hardw. 839.

S. C. cited by Ld. Ellenborough, €. J. delivering the opinion of the court in Roberts v. Camden, 9 East, 97.

that neither the one or the other are injured. The question then is, whether the words spoken do import any slander or reproach, for which an action lies. To say a man has been in gaol and tried for his life, is certainly scandalous; and that he would have been hanged but for such a one, does naturally import, that he was saved by some indirect means. And he cited the case of Hally v. Stanton, Cro. Car. 268. as a very strong authority in point. As to the 2d question, whether the plaintiff ought not to have averred, that he was not in gaol, &c. it was anciently held, that such averments were necessary; but in later times, it has been holden, that the alleg ing the words to have been spoken falsely amounted to such an averment; and if so, the court must now take it, that all the imputation cast on the plaintiff was false. If the words had been true, the defendant should have pleaded that specially."

So where the defendant said of the plaintiff, that " he was under a charge of a prosecution for perjury, and that G. W., an attorney, had the attorney-general's directions to prosecute the plaintiff for perjury:" the defendant pleaded N. G. After verdict for plaintiff, it was objected, in arrest of judgment, that the words were not actionable, as not conveying any opinion of the speaker upon the truth of the charge. But the court overruled the objection; Ld. Ellenborough, C. J. (who delivered judgment) observing, that the words must mean, that the plaintiff was ordered by the attorney-general to be prosecuted, either for a perjury which he had committed, or which he had not committed, or which he was supposed only to have committed. In the first sense they were clearly actionable. In the second, they could not possibly be understood consistently with the context. And if the defendant had used the words in the last sense, the jury might have acquitted him, according to the doctrine in the case of Oldham v. Peake, both in the Court of Common Pleas and in this court. And certainly, if the sense of the defendant, in speaking these words, had varied from that ascribed to them by the plaintiff, he might by specially pleading have shewn them not actionable, had he not chosen to have rested the defence merely on the general issue. It appeared, therefore, that these words must fairly be understood in the first of these three senses, namely, that he was ordered to be prosecuted for a perjury which he had committed; and, so understood, they were unquestionably actionable.

d Roberts v. Camden, 9 East, 93. e 2 B 61, 2.

f Cowp. 278.

In addition to the preceding instances, it may be observed, that it is actionable, falsely and maliciously to speak and publish of another words which tend to disinherit him, or to deprive him of his estate, or which slander him in his office, profession, or trade'; e. g. in speaking of a justice of the peace in the execution of his office, to say that "he is a rascal, a villain, and a liar," is actionable; for the words import a charge of acting corruptly and partially".

For slander of this kind, an action may be brought before any injury has been sustained; in consequence of the words having been spoken. From the nature of the words, the law implies the injury; hence such words are said to be actionable in themselves.

To maintain an action for slander of title there must be malice either express or implied". Hence where a person thinking he had a right to recover possession of a term for some misconduct of his tenant, and hearing that the term was to be sold, went to the auction and said, the vendor could not make a title; it was holden that an action could not be maintained, there being no proof of malice.

In Harwood v. Sir J. Astley, in error, 1 Bos. and Pul N. R.. 47. it was contended, that an action could not be main tained, because the words were alleged to have been spoken of the plaintiff, (below) as a candidate to serve in Parliament; but it was holden, that the words being actionable in themselves (7), it was quite immaterial whether they were spoken of the plaintiff as a candidate or not.

If the plaintiff has sustained any special damage in consequence of words actionable in themselves having been spoken", and seeks to recover a compensation for it, such special damage must be stated in the declaration, with as much certainty as the subject matter is capable of, in order that the defendant may be sufficiently apprised of the nature of the

g1 Rol. Abr. 37. 1. 27.

h Bois v. Bois, 1 Lev. 134.

i How v. Priun, Salk. 694. Lord Raym. 812. S. C.

k Hardwick v. Chandler, Str. 1138. Upsheer v. Betts, Cro. Jac. 578, 9. m Aston v. Blagrave, Str. 617. Lord Raym. 1369. S. C.

u Hargrave v. Le Breton, 4 Burr. 2424 o Smith v. Spooner, 3 Taunt. 246. See also Pitt v. Donovan, 1 M. & S. 639.

p Geare v. Britton, Bull. N P. 7. Hatheway v. Newman, B. R. Michix. Sittings, Feb. 17, 1804. S. P. per Lord Ellenborough, C. J.

1

(7) The words charged the plaintiff (below) with having mur dered his father.