and various other circumstances, might explain the mean-A ing of the word; and if the jury had thought, that the word was only used by the defendant as a word of general abuse, they ought to have found a verdict for the defendant. Supposing that the general words which accompany the word" thief" might have warranted the jury in finding for the defendant, yet, as they have not done so, the court cannot say, that the word did not impute theft to the plaintiff.

IV. Of the Pleadings-Evidence-Costs.

Of the Pleadings.

THE general issue in this action is, not guilty.

On the general issue, the defendant will not be allowed to give the truth of the fact imputed to the plaintiff in evidence in mitigation of damages; and this rule holds in all cases, whether the words do or do not import a charge of felony, or whether a charge of felony be particular*, or general". If, however, the charge be true, the defendant may plead it in justification.

The defendant may either plead or (what is more usually done under the general issue) give in evidence the manner and occasion of speaking the words, to shew that they were not spoken maliciously.

As if the words were spoken by the defendant as counsel, and were pertinent to the matter in question.

Or in confidence; as when a master, upon being applied to for the character of a servant, honestly and fairly gives the true character of such servant (11). In these, and similar

u Underwood v. Parkes, Str. 1200,

x Smith v. Richardson, Willes, 24. Per 8 judges.

y Per 12 judges, S. C.

z Admitted in Smith v. Richardson, Willes, 24.

a Brook v. Montague, Cro, Jac. 91. b S. C.

c Edmonson v. Stephenson & another, Bull. N. P. 8. Weatherston v. Hawkins, 1 T. R 110.

(11) "I take the law to be well settled, that where a master is applied to for the character of a servant, the former is not called upon in an action to prove the truth of any aspersions thrown out

cases, an action will not lie, because malice (one of the essetttial grounds in actions for slander) is wanting.

Evidence.

If the nature of the case requires one or more introductory averments in the declaration, such averments must of course be proved.

So if the colloquium alleged be necessary to maintain the action, it must be proved, as where words are laid to be spoken of a person with respect to his office or trade.

The words must be proved as laid in the declaration"; 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.

Formerly, indeed, it was holden, that the plaintiff must prove the words precisely as laid; 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 persóu, e. g. you are a thief, will not support the declaration; for there is a great difference between words spoken in a passion to a man's face, and words spoken deliberately behind his back. 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 that the defendant spoke these words, "he, the plaintiff, cannot pay his

d Bull. N. P. 5. cites Savage v. Robery, Salk. 694.

e Barnes v. Holloway, 8 T. R. 150. Per Lawrence, J. in Maitland v. Goldney, 2 East, 438.

f Bull. N. P. 5. cites 2 Rol. Abr. 718. g Avarillo v. Rogers, London Sittings, Trin. 1773. B. R. Ld. Mausfield,C. J. cited by Buller in R. v. Berry, 4 T. R.

217. where the same doctrine was applied, aud Buller, J., said, he had known a variety of nonsuits on the same objection; although there was a case in Strange e contra and also a dictum of Lord Hardwicke, C. J., in Nelson v. Dixie, Ca. Temp. H. 306.

h Barnes v. Holloway, 8 T. R. 150.

by him against the latter, but that it lies upon the servant to prove the falsehood of such aspersions. In such case the master is justified, unless the servant prove express malice." Per Chambre, J., in Rogers v. Clifton, M. 44 Geo. 3. C. B. 3 Bos. & Pul. 594: The case itself is well worthy of attention on this subject, but the circumstances of it are too special for insertion in this work.—N. A servant cannot bring an action against his master for not giving him a character. Per Kenyon, C. J., in Carrol v. Bird, 3 Esp N. P. C. 201.

labourers," and the evidence was, that the defendant had. asked a witness" if he had heard that plaintiff could not pay his labourers."

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 shew the malicious intent with which the words were spoken'.

If the declaration contain several actionable words, it is sufficient for plaintiff to prove some of them*.

Express malice need not be proved; if the charge be false, malice will be implied.

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'.

Action for words imputing a crime; an agreement on the part of the plaintiff, to waive his action for words spoken, in consideration that the defendant will destroy certain documents in his possession, or which might afterwards come into his possession, imputing the same crime to the plaintiff, is (when executed by the burning of the papers in his possession,) a bar to the action, and may be given in evidence under the general issue".

Costs.

By stat. 21 Jac. 1. c. 16. s. 6. " 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."

It is to be observed, that 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". But where words are actionable in themselves", and special damage is laid in the declaration only by way of

Tate v. Humphrey, B. R. E. 48 Geo. 3. 2 Camp. N. P. C. 73. n. See also Rusteil v. M'Quister, ante, p. 998. n.

* Compagnon and Wife v. Martin, 2 B). R. 790.

Smith v. Spooner, 3 Taunt. 845.

m Lane v. Applegate, 1 Stark, N. P. C,

97.

n Lowe v. Harewood, Sir Wm. Jones, 196.

o Lord Raym. 1588.

Burry v. Perry, 2 Str. 936. S. C. Turne (v. Horton, Willes, 429. S P,

aggravation, although the special damage be proved, yet if the damages recovered are under 40s. there shall be no more costs than damages. If some of the counts in the declaration be for words that are actionable", 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, 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 the damages, notwithstanding defendant has justified'.

p Savile v. Jardine, 2 H. Bl. 531.

Topsall v. Edwards, Cro. Car. 163.
Blizard v. Barnes, Cro. Car. 307.
S. P.

r Halford v Smith, 4 East, 567. S. P.

said, per Clive, J., in Bartlet v. Rob bins, to have been determined in the court of B. R. 2 Wils. 258. E. 5 G. 3.

CHAP. XXXVII.

STOPPAGE IN TRANSITU.

Nature of this Right-Who shall be considered as capable of exercising it-Where the Transitus may be said to be continuing-Where determined-How far the Negociation of the Bill of Lading may tend to defeat the Right.

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, 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. 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. 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

a Assignees of Burghall, bankrupt, v. Howard, London Sittings after Hil. T, 32 G. 2. coram Lord Mansfield, C. J., 1 H. Bl. 366 n.