4

Evidence.

The words must be proved as laid in the declaration (d); that is, such of them as will support the action; for it is not necessary for the plaintiff to prove all the words stated in the declaration; only what is (e) material. Formerly, indeed, it was holden, that the plaintiff must prove the words precisely as laid (f); but now it is sufficient to prove the substance of them. However, if the words be laid in the third person, e. g., he is a thief, proof of words spoken in the second person, e. g., you are a thief, will not support the declaration (g); for there is a great difference between words spoken in a passion to a man's face, and words spoken deliberately behind his back (h). Nor will proof of words spoken to a person support an indictment (i) charging that the defendant spoke them of such person. So an averment that slanderous words spoken concerning the (three) plaintiffs in their joint trade, was holden (k) not to be supported by evidence of words addressed by the defendant personally to one only of the partners. In like manner a count for slanderous words spoken affirmatively, cannot be supported by proof that they were spoken by way of interrogatory: as where the declaration stated (1), that the defendant spoke these words, "he, the plaintiff, cannot pay his labourers," and the evidence was, that the defendant had asked a witness "if he had heard that plaintiff could not pay his labourers." Where the declaration alleged that the plaintiff was of two trades, although the plaintiff failed to prove that he was of both; it was holden (m), that he might recover upon proof that he was of that trade concerning which the defendant was charged to have spoken the words; for the allegation was partible. The plaintiff, after proving the words as laid in the declaration, may prove that the defendant spoke other (n) words on the same subject or referring to it, either before

or afterwards, although such words may be actionable; for this evidence is admissible, not in aggravation of damages, but for the purpose of proving the malice of the defendant in deliberately speaking the words which are the subject of the action.

In an action for words of perjury, the plaintiff offered in evidence a bill of indictment, which had been preferred against him by the defendant, and which the grand jury returned ignoramus. This was holden to be admissible evidence to show the malicious intent with which the words were spoken (o). If the declaration contain several actionable words, it is sufficient for plaintiff to prove some of them (p). Express malice need not be proved; if the charge be false, malice will be implied. The existence of express malice is only a matter of inquiry (9), where the injurious expressions, which are the subject of complaint, are uttered upon a lawful occasion. In an action for slander of title, it must appear that the words were spoken maliciously it is not necessary for the defendant to plead specially; but the plaintiff must prove malice, which is the gist of the action (r). Where in the declaration it was alleged, that the plaintiff was a physician, and exercised that profession in England, and on that account was called doctor, meaning doctor of medicine, and that defendant slandered plaintiff in his character of a physician, and denied his right to be called a doctor of medicine; it was holden (s), that the plaintiff must prove that he was entitled to practise as a physician in England; it was not sufficient to show that he had in fact so practised; nor that he had received the degree of doctor of medicine at the University of St. Andrew's in Scotland. It is not competent for the defendant, under the general issue, to offer, in mitigation of damages, evidence that the specific facts in which the slander consists, and for which the action is brought, were communicated to him by a third person (t). In an action for words imputing felony, with a count for maliciously charging the plaintiff with theft before a justice, to which the defendant pleaded the general issue, and also pleas of justification, evidence of general good character (u) is not admissible for the plaintiff. Where words are given in evidence in order to prove malice, which are not stated in the declaration, the defendant may prove (x) the truth of such words; as, not being on the record, the defendant has had no opportunity of justifying them. Where the words are not actionable

n.

(0) Tate v. Humphrey, 2 Campb. 73,

See also Rustell v. M'Quister, ante, p. 1047, n.

(p) Compagnon and Wife v. Martin, Bl. R. 790.

(9) Per Tindal, C. J., Hooper v. Truscott, 2 Bingh. N. C. 464. See Padmore v. Lawrence, and the other cases cited, ante, p. 1244.

Smith v. Spooner, 3 Taunt. 246. (s) Collins v. Carnegie, 1 A. & E. 695, 3 Nev. & M. 703.

(t) Mills v. Spencer, Holt's N. P. C. 533.

(u) Cornwall v. Richardson, Ry. & M. 305, Abbott, C. J.

(x) Warne v. Chadwell, 2 Stark. N. P. C. 457.

in themselves, and the only ground of action is the special damage, such special damage must be proved (y) as alleged. Where the words are actionable without the inducement, the insertion of what is not material and not proved, does not occasion a variance (z) of which advantage can be taken.

Costs.

By stat. 21 Jac. I. c. 16, s. 6, "In all actions upon the case for slanderous words, if the jury upon the trial of the issue, or the jury that shall inquire of the damages, assess the damages under forty shillings, then the plaintiff shall recover only so much costs as the damages so assessed amount unto." This statute does not extend to actions founded on special damage only, because, properly speaking, they are not actions for words, but for the special damage (a). But where words are actionable in themselves (b), and special damage is laid in the declaration only by way of aggravation, although the special damage be proved, yet if the damages recovered are under 40s. there shall be no more costs than damages. In Baker v. Hearne (c), B. R. H. 1767, argued by Dunning for plaintiff, and Ashhurst for defendant, the distinction was not controverted by plaintiff's counsel; the court being of opinion that the words were actionable as relating to plaintiff in his way of trade, they allowed no more costs than damages, the damages being under 40s., notwithstanding the special damages laid in the declaration. If some of the counts in the declaration be for words that are actionable (d), and others for words not actionable, and special damage be laid referring to all the counts, and there be a general verdict for plaintiff, he is entitled to full costs, though he recover less than 40s. damages. In a case where the declaration embraced two distinct objects (e), viz. a charge for speaking words actionable in themselves, and a charge that defendant procured plaintiff to be indicted, without probable cause, for felony; it was holden, that such an action, not being merely an action for words, but also an action on the case for a malicious prosecution, was not within the statute; and, therefore, although plaintiff recovered damages under 40s. yet he should be entitled to full costs. In cases within the statute, if damages are under 40s. plaintiff cannot have more costs taxed than

(y) Ward v. Weeks, 7 Bingh. 211. (z) Cox v. Thomason, 2 Cr. & J. 361; 2 Tyrw. 411.

(a) Lowe v. Harewood, Sir William Jones, 196; Collier v. Gaillard, 2 Bl. Rep. 1062.

(b) Lord Raym. 1583; Burry v.

Perry,

2 Str. 936, S. C.; Turner v. Horton, Willes, 438, S. P.

(c) MSS., Chambre, J.

(d) Savile v. Jardine, 2 H. Bl. 531. (e) Topsall v. Edwards, Cro. Car. 163; Blizard v. Barnes, Cro. Car. 307, S. P.

the damages, notwithstanding defendant has justified (f). By stat. 58 Geo. III. c. 30, s. 2, in actions or suits for slanderous words, in courts not holding plea to the amount of 40s., if the jury assess the damages under 30s., the plaintiff shall recover costs only to the amount of the damages.

See the new statute relating to costs, 3 & 4 Vict. c. 24, ante, p. 37.

(f) Halford v. Smith, 4 East, 567, S. P. said, per Clive, J., in Bartlett v.

Robbins, to have been determined in the court of B. R. 2 Wils. 258, E. 5 Geo. I.

2 P

VOL. II.

CHAPTER XXXVII.

STOPPAGE IN TRANSITU.

Nature of this Right, p. 1260; Who shall be considered as capable of exercising it, p. 1261; Where the Transitus may be said to be continuing, p. 1263; Where determined, p. 1272; How far the Negociation of the Bill of Lading may tend to defeat the Right, p. 1278.

NATURE of the Right of Stopping in Transitu.—When goods are consigned upon credit by one merchant to another, it frequently happens that the consignee becomes a bankrupt or insolvent, before the goods are delivered. In such case the law, deeming it unreasonable that the goods of one person should be applied to the payment of the debts of another, permits the consignor to resume the possession of his goods. This right which the consignor has of resuming the possession of his goods, if the full price has not been paid, in the event of the insolvency of the consignee, is technically termed the right of stopping in transitu. The doctrine of stopping in transitu owes its origin to courts of equity (a), but it has since been adopted and established by a variety of decisions in courts of law, and is now regarded with favour as a right which those courts are always disposed to assist. This right is paramount to any lien against the purchaser (b). The following cases will illustrate the nature of this right. B. at London, gave an order to A. at Liverpool, to send him a quantity of goods (c). A. accordingly shipped the goods on board a ship there, whereof the defendant was master, who signed a bill of lading to deliver them in good condition to B. in London. The ship arrived in the Thames, but B. having become a bankrupt, the defendant was ordered, on behalf of A., not to deliver the goods, and accordingly refused, though the freight was tendered. It appeared, by the plaintiffs' witnesses, that no particular ship was mentioned, whereby the goods should be sent, in

(a) See D'Aguila v. Lambert, 9th June, 1761; 2 Eden, 75, and Amb. 399, S. C., where the doctrine was first recognized.

(b) Morley v. Hay, 3 Man. & Ry. 396.

(c) Assignees of Burghall, Bankrupt, v. Howard, London Sittings after Hil. T. 32 Geo. II., coram Lord Mansfield, C. J., 1 H. Bl. 366, n.