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land held in common by several persons: Shepherd v. Jernigan, 51 Ark. 275; 14 Am. St. Rep. 50, and note; Peterson v. Fowler, 73 Tex. 524. But one tenant in common cannot, as against his co-tenants, convey part of the common property in severalty by metes and bounds, or even an undivided share of such part: Whitton ▼. Whitton, 38 N. H. 127; 75 Am. Dec. 163, and note 171, 172; Ballou v. Hale, 47 N. H. 347; 93 Am. Dec. 438. Such a conveyance is absolutely void: Duncan v. Sylvester, 24 Me. 482; 41 Am. Dec. 400. PARTITION-WHAT PREMISES MAY BE PARTITIONED. — A tenant in common cannot enforce partition of a part only of the common estate: Bigelow ▼. Littlefield, 52 Me. 24; 83 Am. Dea. 484, and note 485, 486; Freeman on Cotenancy and Partition, sec. 508.

MORASSE V. BROCHU.

[151 MASSACHUSETTS, 567.]

SLANDER-PLEADING. THE NAMES OF PERSONS WHO HAVE CEASED TO EM

PLOY PLAINTIFF need not, it has been held, be stated in a complaint in an action to recover special damages for slander, whereby plaintiff was injured in his trade or profession. The rule upon this subject in Massachusetts discussed, but not decided.

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SLANDER. WORDS NOT DEFAMATORY WILL SUPPORT AN ACTION FOR SLANDER, if they are falsely and deliberately uttered to work injury, and accomplish their intended purpose.

SLANDER.

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WORDS ARE ACTIONABLE PER SE which convey an imputation upon one in the way of his profession or occupation, and in such case there need be no averment of special damages. SLANDER. A PRIEST IS LIABLE TO AN ACTION FOR SLANDER, if, referring to a physician who has contracted a second marriage before the death of his divorced wife, he informs his congregation, in effect, that the fact of such marriage is to excommunicate the person referred to, and that if any of them should be sick, and in want of the priest's assistance, they need not send for him if such physician was there, because he, the priest, would not be in the same room with him. These words were a virtual instruction that the person referred to was an unsuitable and improper person to be employed as a physician, and a direction not to employ him, on pain of losing caste in the church and the ministrations of its priest. SLANDER - EVIDENCE IN AGGRAVATION OF DAMAGES. — Where a physician has sued a priest for slander, it is proper to prove, in aggravation of damages, that after the action was brought the defendant referred to it in the presence of his congregation, and said, "We shall see if the church shall destroy the vermin or the vermin the church."

J. Hopkins, for the defendant.

W. S. B. Hopkins and A. J. Bartholomew, for the plaintiff.

C. ALLEN, J. 1. The defendant contends that there is no sufficient averment of special damages. The averment in respect to the plaintiff's loss of practice as a physician is,

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that members of the church, and other persons, have refused to have transactions with him, or to employ him in his profession, whereby he has been deprived of the profits, income, and emoluments thereof. The only omission of any needful averment which is suggested is, that the names of the persons who have ceased or refused to employ the plaintiff should have been set out.

Where there is merely an accusation of immorality, in words which might be spoken of any one, whether having any particular occupation or not, it has often been held that a charge of special damages, from loss of custom or society must include the names of those who have cut off from the plaintiff in consequence of the imputation. This rule has not been so strictly held in cases where the accusation has been made for the express purpose of injuring the plaintiff in his trade or profession, and has had that effect; and in various cases, and for differing reasons, the rule in such cases has been relaxed, and a general averment of loss of customers has been held sufficient: Evans v. Harries, 1 Hurl. & N. 251; Riding v. Smith, 1 Ex. D. 91; Clarke v. Morgan, 38 L. T., N. S., 354; Hopwood v. Thorn, 8 Com. B. 293, 308, 309, per V. Williams, J., interloc.; Weiss v. Whittemore, 28 Mich. 366; Trenton Ins. Co. v. Perrine, 23 N. J. L. 402, 415; 57 Am. Dec. 400. See also Hargrave v. Le Breton, 4 Burr. 2422; Hartley v. Herring, 8 Term Rep. 130.

In this commonwealth this question has not been decided. In Cook v. Cook, 100 Mass. 194, the charge was general, and had no relation to any particular occupation of the plaintiff, and there was no question of loss of custom or of society. In Fitzgerald v. Robinson, 112 Mass. 371, the averments were full, and no question arose.

In the present case there was a demurrer to the declaration. The practice act requires that in case of a demurrer the particulars in which the alleged defect consists shall be specially pointed out: Pub. Stats., c. 167, sec. 12. In view of this requirement, the defendant specially, and at length, assigned five different grounds of demurrer, but there was no intimation of an objection on the ground that the names of the persons who would not employ the plaintiff were omitted. If the demurrer had contained this ground of objection, the plaintiff might have applied for leave to amend. Moreover, the practice act provides that no averment need be made

which the law does not require to be proved, and that the substantial facts may be stated without unnecessary verbiage: Pub. Stats., c. 167, sec. 2; and the court may in all cases order either party to file a statement of such particulars as may be necessary to give the other party and the court reasonable knowledge of the nature and grounds of the action or defense: Pub. Stats., c. 167, sec. 61. The demurrer having been overruled, no motion was made by the defendant for an order that the plaintiff be required to specify the names of persons referred to in the declaration. So far as the matter of pleading, therefore, is concerned, it must be considered that the defend. ant was content to go to trial without an averment of the names of these persons; and his request, at the close of the evidence, for an instruction to the jury that there was no sufficient allegation of special damage to make the words actionable, came too late, even if otherwise it could be considered as the proper way to raise the objection.

It must now be taken, therefore, that there was a sufficient averment of special damages.

2. If there was a sufficient averment of special damages, then the question is, whether an imputation of the kind made by the defendant upon the plaintiff, when false, and when made for the express purpose of injuring the plaintiff in his profession, and when such injury is the probable and natural result of the speaking of the words, and when such injury actually follows, just as was intended by the defendant, will support an action by the plaintiff against the defendant.

It is sometimes said that it will not, unless the words are defamatory. But the better rule is, that such an imputation, whether defamatory of the plaintiff or not, will support an action under the circumstances above mentioned. There are all the elements of a wrongful act deliberately done for the purpose of working an injury, and actually working one, even though the words have no meaning which, strictly speaking, could be called defamatory: Riding v. Smith, 1 Ex. D. 91; Lynch v. Knight, 9 H. L. Cas. 577, 600, per Lord Wensleydale; Barley v. Walford, 9 Q. B. 197; Green v. Button, 2 Cromp. M. & R. 707; Trenton Ins. Co. v. Perrine, 23 N. J. L. 402; 57 Am. Dec. 400. See also Odgers on Libel and Slander, 89, and at bottom of page 91, where the question is fully discussed. It may not be technically an action for slander, if the words are not defamatory; but the name of the action is of no consequence.

In Kelly v. Partington, 5 Barn. & Ad. 645, 648, Littledale, J., suggested the following illustration: "Suppose a man had a relation of a penurious disposition, and a third person, knowing that it would injure him in the opinion of that relation, tells the latter a generous act which the first has done, by which he induces the relation not to leave him money. Would that be actionable?" And Sir John Campbell answers: "If the words were spoken falsely, with intent to injure, they would be actionable." In Odgers on Libel and Slander, 90, the following illustration is given: "If in a small country town, where political or religious feeling runs very high, I maliciously disseminate a report, false to my knowledge, that a certain tradesman is a radical or a dissenter, knowing that the result will be to drive away his customers, and intending and desiring that result; then, if such result follows, surely I am liable for damages in an action on the case, if not in an action of slander." In such a case there is an intentional causing of temporal loss or damage to another, without justifiable cause, and with the malicious purpose to inflict it, which will sustain an action of tort: Walker v. Cronin, 107 Mass. 555. And under this doctrine, in the opinion of a majority of the court, the present action may well stand.

3. But even if the averment of special damages is to be regarded as insufficient for want of naming the persons who would not employ the plaintiff as a physician, the question remains, whether the words are actionable per se, as containing a defamatory imputation upon the plaintiff; or, rather, whether there was enough in them to warrant the judge in submitting them to the jury.

Words are held to be actionable per se which convey an imputation upon one in the way of his profession or occupation, and in such case there need be no averment of special damages. The old phraseology of Comyn's Digest, which has often been followed or repeated, is, that "words not actionable in themselves are not actionable when spoken of one in an office, profession, or trade, unless they touch him in his office": Com. Dig., Action on the Case for Defamation, D, 27; and many cases turn upon the question whether words spoken of one who has a particular profession or trade touch him in it; that is, whether they have such a close reference to such profession or trade that it can be said that they are defamatory by means of an imputation upon him in that character, as,

e. g., an imputation upon him as a clergyman, a physician, or a tradesman, distinctly from and independently of being an imputation upon him as an individual. Some of the cases have gone very far to negative such a construction. Thus, for example, it was said by Bayley, B., in Lumby v. Allday, 1 Cromp. & J. 301, that it was his opinion (for the time being) that the words must go to the length "of showing the want of some necessary qualification, or some misconduct in the office." And in Ayre v. Craven, 2 Ad. & E. 2, words imputing adultery to a physician were held not actionable per se, and without special damage, there being nothing to show that the adultery was committed by him while acting as a physician, or in connection with his medical practice. These two cases are perhaps the most striking of any in that direction. But see also Pemberton v. Colle, 10 Q. B. 461, and Gallwey v. Marshall, 9 Ex. 294, for instances where imputations upon clergymen were held not to reflect upon them in their profession. The case of Ayre v. Craven, has not escaped criticism and comment, both from the bar and the bench, though perhaps it has never been overruled. In Hopwood v. Thorn, 8 Com. B. 293, Cockburn and E. James said in argument: "Ayre v. Craven has confessedly gone to the very verge of absurdity." In Gallwey v. Marshall, 9 Ex. 294, Willes said, in argument, "The case of Ayre v. Craven is an extreme case"; to which Alderson, B., replied from the bench: "There are certain professions the proper exercise of which depends on morality; and except for the case of Ayre v. Craven, I should have thought that that of a physician was one of them": Page 297. It may well be suggested that the doctrine of that and kindred cases has a distinct tendency to lower the estimation in which clergymen and physicians are naturally and properly held. At any rate, they do not correctly represent the law of Massachusetts. In Chaddock v. Briggs, 13 Mass. 248, 7 Am. Dec. 137, which was decided when drunkenness was not a crime in Massachusetts, and when the habits in respect to drinking intoxicating liquors were freer than at present, it was held that to charge a clergyman with a single act of drunkenness was actionable per se. The decision of course rested on the ground that it injured him in his profession; the court saying, "A pure and even unsuspected moral character being necessary to their use. fulness in the community." That case has never since been questioned in this state, and it is inconsistent with the general

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