4

7

of bigamy;1 of sending a threatening letter; 2 of receiving stolen goods knowingly; 3 of swindling. * To the same effect also are such imputations as that he murdered his first wife by giving her wrong drugs; 5 he had done an act for which defendant could transport him; if he had his deserts he had been hanged before now; he was a returned convict (though the term of punishment was over); 8 the Attorney-General had ordered him to be indicted for perjury. The words "I am convinced you are guilty of the death of Daniel Dolly, and rather than you should go without a hangman I will hang you," were held to mean the crime of murder. 10 And to the like effect are the words, that the defendant would not trust the plaintiff with 57. of his property;11 that the plaintiff fraudulently took his horse out of the race list; 12 that one is sure to pay for it, if one dines and plays at cards with him; 13 that the plaintiff is a libellous journalist. 14

9

On the other hand the words sometimes do not amount to more than scurrility, and so are not actionable as imputing a definite crime; as that his house is as bad as a bawdy house; 15 that the defendant (a physician) “made up the medicines wrong for the child through jealousy," a child having died, and the words not being spoken of an apothecary in his trade; 16 that the plaintiff was foresworn, for this does not necessarily mean perjury; 17 that the plaintiff was a thief, and his father before him; 18 that "I have a suspicion that you and A robbed my house, and therefore I take you into custody." 19 The word "thief" is often used as the climax of other opprobrious terms without seriously implying a charge of felony, but a jury should be called on to say how this is.20 Twysden, J., said,

2 Harvey French, 1 4 Janson v Stuart,

1 Heming v Power, 10 M. & W. 570. Cr. & M. 11. 3 Alfred v Farlow, 8 Q. B. 854. 1 T. R. 748. 5 Ford v Primrose, 5 D. & R. 287. 6 Curtis v Curtis, 10 Bing. 477. 7 Donne's case, Cro. Eliz. 62. 8 Fowler v Dowdney, 2 M. & Rob. 119. 9 Roberts v Camden, 9 East, 93. 10 Peake v Oldham, Cowp. 275. 11 Cheese v Scales, 10 M. & W. 488. 12 Greville Chapman, 5 Q. B. 731. 13 Digby v Thomson, 4 B. & Ad. 821. 14 Wakley v Cooke, 4 Ex. 518. 15 Brayne v Cooper, 5 M. & W. 249; see Huckle v Reynolds, 7 C. B., N. S. 114. 16 Edsall v Russell, 5 Scott, N. R. 801. 17 Holt v Scholefield, 6 T. R. 691. 18 Thompson v Bernard, 1 Camp. 47. Mashford, 6 Exch. 539, 20 Penfold v Westcote, 2 N. R. 335.

19 Tozer v

there was once an action for defendant saying, that he heard A was hanged for stealing a horse, whereas it appeared the words were only spoken in sorrow for the news.1

If the offence imputed is past and punished.-It has been usually said, that the reason why words imputing an indictable offence are actionable is, because, if true, they would render the person libelled liable to indictment, and that somebody hearing them might make a charge on them." But this is a narrow view, and the better reason is, that it is the scandal and turpitude of mind that it implies, and which has the effect of depreciating the present character of the party. And hence it is equally actionable if the words impute an offence that is past and has been punished. All who have been convicted of felony and have suffered the punishment are now put by statute in the same position as if they had received a pardon from the Crown. And, as was well said, to call one a thief after a pardon is "neither necessary nor advanceth nor tends to justice." ."5 Therefore in all such cases a slanderer must take care at all events to be within the truth. If he calls one who has been convicted of felony, and has suffered the punishment, a "convicted felon," this may merely mean that he was once convicted, and if so, the defendant may, on proving the conviction, justify and escape a verdict in an action for damages against him. But if he call one "a felon editor," this plainly implies, that the latter is a felon still, and at least is or was actually guilty of felony. And hence, in a plea to an action, justifying the truth of such an epithet, the defendant will be bound to prove not merely that the plaintiff was convicted and punished, but that he was actually guilty, and the record of conviction will be no evidence of the fact of guilt. And where a somewhat ambiguous name, such as "felon editor," is used, it is for a jury to say, whether it means merely to impute, that the plaintiff was once convicted, or that he is still

1 Crauford v Middleton, 1 Lev. 82. 2 Parke, B., Heming v Power, 10 M. & W. 569. 3 Gainford v Tuke, Cro. Jas. 536; Carpenter v Tarrant, Cas. Hardw. 339; Beaver v Hides, 2 Wils. 300; Showell v Haman, Cro. Jas. 153; Boston v Tatham, Cro. Jas. 622. 49 Geo. IV. c. 32, § 3. 5 Cuddington v Wilkins, Hob. 82.

(7 ed.) 1416.

6 Leyman v Latimer, 3 Ex. D. 356; 2 Taylor, Evid.

a felon, and if the latter, the justification must be proved accordingly.1

Imputation of what was once an offence, but not now one. As any criminal offence may be the subject matter of such libellous imputations, some regard is to be had in judging of the reported cases to those acts which were once crimes, but are no longer so, and vice versa. Thus it was once held, that to impute to a spinster that she had had a bastard, when there was a statute called the Act of Fornication, was actionable per se: but no such statute now makes it any offence.2 And the same may be said as to being a witch or sorcerer, for Gawdey, J., said "if he witcheth men so as they die, it is felony; and if he use witchcraft in any other manner, he shall stand upon the pillory; so in every respect it is a slander and a good cause of action." 3 All those fine distinctions are at an end. And so when one man said to another "The devil appears to thee every night in the likeness of a black horse, and thou conferrest with him," this was clearly actionable in the time of Coke.1 But now these imputations are no longer actionable, and to call one a witch is only a flourish of humour. The words about bastardy, it is true, may sometimes be actionable still, in connection with the special circumstances of one's profession or duty, as will be afterwards noticed.

Libel imputing impossible crime.—It was once treated as a nice question, whether an action lay for saying that A murdered B, when it was the fact that B was alive, and therefore the offence was impossible. But the court held, that no action lay for such an imputation, as where the defendant had said, "Thou hast murdered my wife," she being alive.5 And at one time it was held not enough to sue for a libel such as, "Thou hast poisoned Smith," unless it was also alleged, that Smith had died; yet, as Twisden, J.,

1 Ibid. It is not unusual for railway companies to publish handbills, setting forth that a person was convicted for violating some bye-law, and generally overstating the offence, and they usually set up the defence, that the handbill was true, that is, that the party had been convicted of such offence. This has been held a good defence in an action, where the libel was substantially though not literally true.-Alexander v N. E. R. Co., 6 B. & S., 340; Biggs v G. E. R. Co., 18 L. T., N. S., 482; Gwyn v S. E. R. Co., Ibid. 738. 4 Hob.

2 Anon. 2 Sid. 21. 3 Rogers Gravat, Cro. Eliz. 571. 159, 172. 5 Snag v Gee, 4 Rep. 16.

said, the later opinions had been, that it was not necessary to allege the death, for that would be understood.1

Imputation of an attempt to commit crime.--But where the imputation was, not that a crime had been committed, but that an attempt had been made to commit one, this was held actionable, as to say, "He lay in wait to rob Smith the goldsmith;" 2 or that he sent a letter wishing A to poison A's wife; or that he persuaded A to rob his master; 4 or that he persuaded a woman to kill her child because it was somebody's bastard. And this is only in accordance with the general rule, for an attempt to commit a crime is indictable as much as the actual commission of the crime itself.

Words not clearly imputing definite crime.—There is thus no difficulty in applying this rule where the words defamatory are precise, and definitely point out the crime imputed. But when the words are somewhat ambiguous, or are accompanied with some comment or context which qualify their generality, it then becomes important to ascertain, whether the effect of the whole language is to impute a crime or only some conduct approaching but not reaching a definite crime. It is here that the distinction between words and writing or print comes into play, for in these somewhat loose imputations of things nearly approaching crime the words, if written or printed, will be actionable, though if only spoken they will not be so, unless accompanied with special damage. And the reason why writing made all the difference in such cases was, as already explained, nothing but this, that written words endure, and are capable of reaching great numbers of readers; while spoken words have but a transient and limited audience. The only clue to a test as to actionable words given by Holt, C. J., was, what he said was also Hale and Twisden's test, namely, that the words "sound to the disreputation of the person of whom they were spoken." 6 And this is but

a vague description, and indeed is only a use of one word for another. The distinction can only be learned from a variety of examples. Thus it is libellous to publish in writing, though not so in spoken words, that the plaintiff

1 Phillips v Kingston, 1 Vent. 117. Eliz. 747. 4 Ibid. 710. 5 Cro. Eliz. 49.

8 Mod. 24.

3 Cro.

2 Cro. Ch. 140.
6 Button v Heywood,

under the cloak of religious reform, hypocritically and with grossest impurity dealt out his malice and falsehoods; 1 that he had preferred unworthy claims upon a charitable society and squandered its money; 2 that the defendant, claiming a debt from A, who denied it, wrote that A attempted to defraud him.3 In one case where words were written of a man, that he had grossly misconducted himself and insulted two females, this was held actionable because it was said to be calculated to bring the defendant into contempt by some and hatred by others. Where F was a candidate for Parliament and published that C was most ungrateful in what he had said of F, for F had once advanced to C money when he was in great straits, this was held actionable as regards the publisher, for it imputed all but insolvency.5

Libel in calling scurrilous names.-Sometimes, the words being ambiguous, no clear imputation of a crime can be fairly inferred, as by the use of such epithets as scoundrel, rascal, rogue, cheat, swindler, or blackleg; nevertheless if special damage result, this will make a good cause of action for slander, and if they are written or in print no special damage need be alleged to support the action. Thus the following words (when not uttered with special reference to trades or business) have been held to be not per se actionable; rogue who cheated and robbed his brother-inlaw; young woman who gets her living by prostitution; s woman who was all but seduced by a notorious libertine ; 9 he or she has committed adultery. 10 Where words of this vague kind are used, an attempt is often made to give a construction imputing crime, owing to some special circumstances in the plaintiff's case, or some peculiar profession or business. In such ambiguous cases evidence is admissible to enable a jury to decide, what was the precise meaning of the words used.11 Thus to call a lawyer a daffidowndilly

1 Thorley Kerry, 4 Taunt. 355. 2 Hoare v Silverlock, 12 Q. B. 624. 3 Tuson v Evans, 12 A. & E. 733. 4 Clement v Chivis, 9 B. & C. 172. 5 Cox v Lee, L. R. 4 Exch. 284. 6 Barnett v Allen 3 H. & N. 376; Saville v Jardine, 2 H. Bl. 531. 7 Hopwood Thorn, 8 C. B. 313. 8 Wilby v Elston, 8 C. B. 142. 9 Lynch Knight, 9 H. L. C. 593. 10 Wilby v Elston, 8 C. B. 142; Ayre v Craven, 2 A & E. 7. 11 Daines v Hartley, 3 Exch. 200; Hawkinson v Bilby, 16 M. & W. 442.