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 alleging 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 (g), 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; Lord 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 (h), and in this court (i). 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 shown 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. There are in the books various authorities to show, that the understanding of the hearers is the rule to go by. In a MS. case, 1 Viner, 507, it is laid down that the question is only what is understood by the hearers. In Fleetwood v. Curly, Hob. 268, Lord Hobart says, the slander and damage consist in the apprehension of the hearers; and in Gilbert's Cases in Law and Equity, 117, the rule laid down is, that the words shall be taken in the sense in which the hearers understood them (k).

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 (7), or to deprive him

(g) Roberts v. Camden, 9 East, 93. (h) 2 Bl. 961, 2.

Cowp. 278.

(k) See also Read v. Ambridge, 6 C. & P. 308.

() 1 Rol. Abr. 37, 1. 27.

of his estate (m), or which slander him in his office (n), profession (o), or trade (p); 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 (9). Saying of a churchwarden, "He is a cheat (r), and cheated the parish of £4, and notwithstanding I have given him a receipt upon his bill of £9 1s. expended, it was a false thing, and I never received more than £5 of the £9 ls." But words imputing to a churchwarden that he stole the parish bell ropes (s), are not actionable; the possession of the bell ropes being in him. Words of an innkeeper, imputing insolvency, were holden to be actionable; although, at the time they were spoken (t), an innkeeper was not subject to the bankrupt laws. 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 (u). 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 (x). So the attorney (y) of a party claiming title to premises put up for sale, is not liable to an action for slander of title, if he, bona fide, though without authority, makes such objections to the seller's title, as his principal would have been authorized in making. Malice and special damage must be alleged and proved. See post, p. 1249, Malachy v. Soper.

In Harwood v. Sir J. Astley, in error, 1 Bos. & Pul. N. R. 47, it was contended, that an action could not be maintained, 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 is quite immaterial

(m) Bois v. Bois, 1 Lev. 134.

(n) How v. Prinn, Salk. 694; Lord Raym. 812, S. C.

(0) Hardwick v. Chandler, Str. 1138. (p) Upsheer v. Betts, Cro. Jac. 578,9; Jones v. Littler, 7 M. & W. 423.

(9) Aston v. Blagrave, Str. 617; Lord Raym. 1369, S. C.

(r) Philips v. Harrison, C. B. Hil. Geo. II., on motion in arrest of judg

ment, Lord King's MSS. p. 44.

(s) Jackson v. Adams, 2 Bingh. N. C. 402; 2 Sc. 599.

(t) Whittington v. Gladwin, 5 B. & C.

180.

(u) Hargrave v. Le Breton, 4 Burr.

2422.

(x) Smith v. Spooner, 3 Taunt. 246. See also Pitt v. Donovan, 1 M. & S. 639. (y) Watson v. Reynolds, M. & Malk. 1.

(7) The words charged the plaintiff (below) with having murdered his father. "Words are actionable when spoken of one in an office of profit,

whether they were spoken of the plaintiff as candidate or not. If the plaintiff has sustained any special damage in consequence of words actionable in themselves having been spoken (2), 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 apprized of the nature of the case which is intended to be proved against him, and consequently be prepared to meet it. Where the words charged the plaintiff, a horse-dealer, "with privately stealing certain horses sold by him," and consequently were actionable; after proving the words, the plaintiff's counsel applied to be admitted to give general evidence of loss of customers, but was denied (a).

By the stat. 21 Jac. I. c. 16, s. 3, "Actions on the case for words must be commenced and sued within two years next after the words spoken." But by sect. 7, " Infant, feme covert, non compos mentis, person imprisoned or beyond sea, may sue within two years after the removal of their respective disabilities."

"You are a

Of Words not actionable in themselves.-Words not actionable in themselves may become so, by reason of some special damage arising from them, e. g., if a person say to a woman, whore, whereby she loses her marriage (b), or a substantial benefit arising from the hospitality of friends (c) (8). So if a person slander

(z) Geare v. Britton, Bull. N. P. 7; Hatheway v. Newman, B. R. Middlesex Sittings, Feb. 17, 1804, S. P., per Lord Ellenborough, C. J.

(a) Waterhouse v. Gill, coram Buller,

J., Lancaster Lent Ass. 1790, Holroyd,
MSS.

(b) 1 Rol. Abr. 35, 1. 15.

(c) Moore v. Meagher, in error, Exch. Chr., 1 Taunt. 39.

which may probably occasion the loss of his office, or when spoken of persons touching their respective professions, trades, and business, and do or may probably lead to their damage." Per De Grey, C. J., in Onslow v. Horne, 3 Wils. 186.

(8) Calling a married woman or a single one a whore is not actionable, because fornication and adultery are subjects of spiritual not temporal censures. Lord Raym. 1004; except in the city of London, by reason of the custom there to cart whores, 1 Viner, S. 13. But there the words must charge that she was a whore in London; it is not sufficient if the declaration merely allege that she resided in London. Robertson v. Powell, B. R. Sittings at Serjeant's Inn, before M. T. 57 Geo. III. Action for calling plaintiff's wife a whore in London, suggesting the custom of London to cart whores, plaintiffs were nonsuited for want of proving the custom. Lord Mansfield said, he could not take notice of such custom, unless proved. No proof of it could be got from the town clerk's office; and it was then said that no proof of it had ever been given so as to maintain such actions out of the city courts, but that in the city courts they would take notice of their own custom. Stainton et Ux. v. Jones, Sittings after Mich. Term, at Guildhall, coram Lord Mansfield, 1782, MS.

the title of another, whereby he is prevented from selling his estate (d): but in these cases, it is incumbent on the party injured, not only to state and prove the speaking of the words, but also the particular injury which he has sustained; because, the words not being actionable in themselves, the special damage is considered as the gist of the action (e). It must also appear (f), that the special damage was the legal and natural consequence of the words spoken; for an illegal consequence, viz. a tortious act, will not be sufficient. In slander for words uttered of the plaintiff to her employer, who stated that she dismissed the plaintiff from her service, not because she believed the words, but because she was afraid she should offend her landlord, by keeping her; it was holden (g), being the consequence of the words used, the action was maintainable; the court could not speculate on the motives of witnesses. And per Patteson, J., it is not like Vicars v. Wilcocks, because here the whole cause of the special damage proceeds from the defendant himself; nothing is done by any other person. Two persons cannot join in an action for slanderous words spoken of them (h), for the injury which the one sustains by the slander is not an injury done to the other. But if defamatory words be spoken of partners in trade (i), whereby they are injured in their trade, a joint action will lie at the suit of the partners, although the words be actionable of themselves. It is actionable to republish any slander invented by another (k), unless the republication be accompanied by a disclosure of the author's name, and a precise statement of the author's words, so as to enable the party injured to maintain an action against the author. This disclosure and statement must be made at the time of republishing the slander; for it will not avail the defendant to make it for the first time in pleading to an action brought by the party injured; and according to Holroyd, J., in Lewis v. Walter, 4 B. & A. 914, the republication must be on a fair and justifiable occasion; and, according to Bayley, J., in MPherson v. Daniels (1), the defendant must show also, that he believed it to be true. In that case, which was an action for words spoken by the plaintiff in his trade, importing a direct assertion made by defendant, that the plaintiff was insolvent; the defendant pleaded that one T. W. spoke and published to the defendant the same words, and that the defendant, at

(d) Lowe v. Harewood, Sir W. Jones, 196; Cro. Car. 140, recognized in Malachy v. Soper, 3 Bingh. N. C. 383; 3 Scott, 736.

(e) Browne v. Gibbons, Salk. 206.

(f) Vicars v. Wilcocks, 8 East, 1. See Kelly v. Partington, 5 B. & Ad. 645; 3 Nev. & M. 117.

(g) Caroline Knight v. Gibbs, 1 A. & E. 43; 3 Nev. & M. 467.

(h) Dyer, 19, a, pl. 112.

(i) Cook and another v. Batchellor, 3 Bos. & Pul. 150.

(k) Davis v. Lewis, 7 T. R. 17; Maitland v. Goldney, 2 East, 426. These cases were recognized in Woolnoth v. Meadows, 5 East, 463. Semble that this defence is not applicable to written slander. See Lewis v. Walter, 4 B. & A. 605.

(7) 10 B. & C. 271; 5 M. & R. 251. See also Ward v. Weeks, 7 Bingh. 211, and Bennett v. Bennett, 6 C. & P. 588, Alderson, B. And the remarks of Best, C. J., in De Crespigny v. Wellesley, 5 Bingh. 401.

the time of speaking and publishing them, declared that he had heard and been told the same from and by the said T. W.; it was holden, upon demurrer, that the plea was bad; first, because it did not confess and avoid the charge made in the declaration, the words in the declaration importing an unqualified assertion made by defendant, and the words in the plea importing that the defendant mentioned the fact on the authority of T. W. Secondly, because the plea did not give the plaintiff any cause of action against T. W.; inasmuch as it did not allege that T. W. spoke the words falsely and maliciously. Thirdly, because it is no answer to an action for oral slander, for a defendant merely to show that he heard it from another, and named the person at the time, without showing also that he believed it to be true, and that he spoke the words on a justifiable occasion.

From the preceding remarks it appears, that the falsehood and malice, either express or implied, are of the essence of the action for slander and special damage, where the words are not actionable in themselves. Where words, falsely and maliciously spoken, are actionable in themselves, the law primâ facie presumes a consequent damage, without proof.

III. Of the Declaration, and herein of the Nature and Office of the Innuendo.

In the declaration, after such prefatory averments as the circumstances of the case may render necessary (9), it must be alleged expressly what words were spoken (10), and that they were spoken and published of the plaintiff (m) falsely and maliciously. If the

(m) Johnson v. Aylmer, Cro. Jac. 126.

(9) By rule of court, B. R. M. 1654, it is ordered, "That in actions of slander, long preambles be forborne and no more inducement than what is necessary for the maintenance of the action, except where it requires a special inducement or colloquium."

(10)"That the defendant spake of the plaintiff, quædam falsa et scandalosa verba, quorum tenor sequitur in hæc verba," &c., was holden insufficient, because it was not an express allegation, that the defendant spake the same identical words. Garford v. Clerk, Cro. Eliz. 857. This rule, that the words spoken should be set forth precisely, is not confined to those cases only in which the action is, properly speaking, for slander, but extends also to cases where special damage is the ground of the action. Gutsole v. Mathers, 1 M. & W. 495, recognizing Cook v. Cox, 3 M. & S. 110, and post, p. 1253.