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have been very satisfactorily collated by a very able text-writer. Addison on Torts (3d ed.), 765. Slander, in writing or in print, says the commentator, has always been considered in our law a graver and more serious wrong and injury than slander by word of the mouth, inasmuch as it is accompanied by greater coolness and deliberation, indicates greater malice, and is in general propagated wider and farther than oral slander. Written slander is punishable in certain cases, both criminally and by action, when the mere speaking of the words would not be punishable in either way. Villiers v. Mousely, 2 Wils., 403; Saville v. Jardine, 2 H. Bl., 532; Bac. Abr., Slander, B; Keiler v. Sessford, 2 Cr. C. C., 190.

Examples of the kind are given by the learned commentator; and he states that verbal reflections upon the chastity of an unmarried female are not actionable, unless they have prevented her from marrying, or have been accompanied by special damage; but, if they are published in a newspaper, they are at once actionable, and substantial damages are recoverable. 2 Bl. Com., 125, n. 6; Janson v. Stuart, 1 Term, 784.

Comments are made in respect to verbal slander under several heads, one of which is entitled defamatory words not actionable without special damage; and the commentator proceeds to remark that mere vituperation and abuse by word of mouth, however gross, is not actionable unless it is spoken of a professional man or tradesman in the conduct of his profession or busi

Instances of a very striking character are given, every one of which is supported by the authority of an adjudged case. Lumby v. Allday, 1 Crompt. & Jer., 301; Barnet v. Allen, 3 H. & N., 376.

Even the judges holding the highest judicial stations in that country have felt constrained to decide that to say of a married female that she was a liar, an infamous wretch, and that she had been all but seduced by a notorious libertine, was not actionable without averring and proving special damage. Lynch v. Knight, 9 H. & L. Cas., 594.

Finally, the same commentator states that words imputing to a single woman that she gets her living by imposture and prostitution, and that she is a swindler, are not actionable, even when special damage is alleged, unless it is proved; and the proposition is fully sustained by the cases cited in its support. Welby v. Elston, 8 M., G. & S., 142; Addison on Torts (3d ed.), 788; Townshend on Slander, sec. 172 and note, 516-518.

Words actionable in themselves, without proof of special damage, are next considered by the same commentator. His principal proposition under that head is that words imputing an indictable offense are actionable per se withont proof of any special damage, giving as a reason for the rule that they render the accused person liable to the pains and penalties of the criminal law. Beyond question the authorities cited by the author support the proposition, and show that such is the rule of decision in all the courts of that country having jurisdiction in such cases. Ileming v. Power, 10 Mees. & Wels., 570; Alfred v. Farlow, 8 Q. B., 854; Edsall v. Russell, 5 Scott, N. R., 801; Brayne v. Cooper, 5 Mees. & Wels., 250; Barnet v. Allen, 3 H. & N., 378; Davies v. Solomon, 41 Law Jour., Q. B., 11; Roberts v. Roberts, 5 B. & S., 359; Perkins v. Scott, 1 Hurlst. & Colt., 158.

Examined in the light of these suggestions and the authorities cited in their support, it is clear that the proposition of the plaintiff, that the words alleged are in themselves actionable, cannot be sustained.

$ 562. Special damage by slander must be pleaded with particularity as to nature of damages.

Concede all that, and still the plaintiff suggests that she alleges in the second paragraph of her declaration that she “has been damaged and injured in her name and fame;" and she contends that that averment is sufficient, in connection with the words charged, to entitle her to recover as in an action of slander for defamatory words with averment of special damage.

Special damage is a term which denotes a claim for the natural and proximate consequences of a wrongful act; and it is undoubtedly true that the plaintiff in such a case may recover for defamatory words spoken of him or. her by the defendant, even though the words are not in themselves actionable, if the declaration sets forth such a claim in due form, and the allegation is sustained by sufficient evidence; but the claim must be specifically set forth in order that the defendant may be duly notified of its nature, and that the court may have the means to determine whether the alleged special damage is the natural and proximate consequence of the defamatory words alleged to have been spoken by the defendant. Haddan v. Scott, 15 C. B., 429.

Whenever proof of special damage is necessary to maintain an action of slander, the claim for the same must be set forth in the declaration, and it must appear that the special damage is the natural and proximate consequence of the words spoken, else the allegation will not entitle the plaintiff to recover. Vicars v. Wilcox, 8 East, 3; Knight v. Gibbs, 1 Ad. & Ell., 46; Ayre v. Craven, 2 id., 8; Roberts v. Roberts, 5 B. & S., 389.

When special damage is claimed, the nature of the special loss or injury must be particularly set forth, to support such an action for words not in themselves actionable; and, if it is not, the defendant may demur. He did demur in the case last cited; and Cockburn, C. J., remarked that such an action is not maintainable unless it be shown that the loss of some substantial or material advantage has resulted from the speaking of the words. Addison on Torts (3d ed.), 805; Wilby v. Elston, 8 C. B., 148.

Where the words are not in themselves actionable, because the offense imputed involves neither moral turpitude nor subjects the offender to an infamous punishment, special damage must be alleged and proved in order to maintain the action. Hoag v. Hatch, 23 Conn., 590; Andres v. Koppenheafer, 3 S. & R., 256; Buys v. Gillespie, 2 Johns., 117. In such a case it is necessary that the declaration should set forth precisely in what way the special damage resulted from the speaking of the words. It is not sufficient to allege generally that the plaintiff has suffered special damages, or that the party has been put to great costs and expenses. Cook v. Cook, 100 Mass., 194.

By special damage in such a case is meant pecuniary loss; but it is well settled that the term may also include the loss of substantial hospitality of friends. Moore v. Meagher, 1 Taunt., 42; Williams v. Hill, 19 Wend., 306. Illustrative examples are given by the text-writers in great numbers, among which are loss of marriage, loss of profitable employment, or of emoluments, profits or customers; and it was very early settled that a charge of incontinence against an unmarried female, whereby she lost her marriage, was actionable by reason of the special damage alleged and proved. Davis v. Gardiner, 4 Co., 166, pl. 11; Reston v. Pomfreicht, Cro. Eliz., 639.

Doubt upon that subject cannot be entertained; but the special damage must be alleged in the declaration and proved; and it is not sufficient to allege that the plaintiff “has been damaged and injured in her name and fame,”


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which is all that is alleged in that regard in the case before the court. Hartley v. Herring, 8 Term, 133; Addison on Torts, 805; Hilliard on Remedies (2d ed.), 622; Beach v. Ranney, 2 Hill, 309.

Tested by these considerations, it is clear that the decision of the court below, that the declaration is bad in substance, is correct.

Judgment affirmed. $ 563. Words actionable per se. - Where the declaration stated that the defendant falsely and maliciously said of the plaintiff that he “saw her in bed with Captain D.," held, that the words were not actionable per se. Pollard v. Lyon, 13 Alb. L. J., 94; 1 Otto, 225 (S$ 553-62).

$ 564. Words falsely spoken of another which import a charge that the party has been guilty of a criminal offense involving moral turpitude, or that the party is infected with a contagious distemper, or if they are prejudicial, in a pecuniary sense, to a person in office, or to a person engaged for a livelihood in a profession or trade, are actionable; but in all other cases the party who brings an action for words must show the damage he has suffered by the false speaking of the other party. Ibid.

$ 565. Action for slander in calling plaintiff, who was a bank director, "a liar and a swindler.” Held, that the words, by reason of their being spoken of the plaintiff in his official character, are actionable. That a breach of trust proven, accompanied by falsehood, does not prove a "swindling," unless an inteut to defraud be shown. Forrest v. Hansop, 1 Cr. C. C., 63.

$ 506. It is not actionable to say of a white man that he is “a yellow negro," "a villain and a liar," although his marriage with a white woman, had he been a negro, would have been a criminal offense. Neither the constitution of Maryland, nor any statute of that state or of the United States, deprives a colored person, merely as such, of any civil rights of a citizen. And held, that mere words of disgrace, unless written and published, are not actionable. Johnson v. Brown,* 4 Cr. C. C., 235.

$ 567. The words “ He gets his living by thieving” are actionable; also, held, that actionable words spoken in the second person will not support an averment of words spoken in the third person. Rutherford v. Moore,* 1 Cr. C. C., 388.

S 568. In the District of Columbia to charge a person orally with having committed fornication is not actionable per se, there being no acts in force for the punishment of fornication. At common law, words to be actionable per se must be such as, if true, would subject the accused to infamous punishment, or to an indictment for a crime involving moral turpitude. Pollard v. Lyon, * 1 MacArth., 296. See 88 558–62.

$ 569. When special damage must be alleged.- Charging a single woman with incontinence not actionable without an averment of special damages. Keiler v. Lessford, * 2 Cr. C. C., 190.

$ 570. Slander - When a ground of action.- The plaintiff was a shareholder with others in building a boat. He brought suit for slanderous words alleged to have been spoken by the defendant to the detriment of his credit as well as his personal character, whereby he was excluded from a further share of the boat adventure and deprived of the profits accruing therefrom. The court charged the jury that words spoken in relation to the credit of a holder of shares in the joint stock of a boat are actionable if special damage thereby be alleged in the declaration; but the averment of such special damage is not sufficient to support the action without the averment of a colloquium respecting the plaintiff as a shareholder in the boat, and that it was a business requiring credit. Turper v. Foxall, * 2 Cr. C. C., 324.

$ 571. In mitigation of damages the defendant may give evidence of the general reputation of the plaintiff's want of punctuality in payment of his debts. Ibid.

$ 572. Defendant may show the grounds of his belief in mitigation of damages. Cooke v. O'Brien,* 2 Cr. C. C., 17.

$ 573. Justification.— It is no justification in slander that the defendant stated at the time he spoke the words that he had received information from his slave. Atkinson v. Patten, 1 Cr. C. C., 46.

$ 574. In an action for slander where it was proved that defendant said he had heard a third party say that a fourth party had told said third party that plaintiff had killed a man in Ireland and had fled for it, the court refused to instruct the jury that the words proved were in substance the same as those charged in the declaration, which were, “ You stuck a pitchfork into a man in Ireland, and murdered him, and fled;" and held, that in an action for slander if it appears from the plaintiff's testimony that at the time of speaking the words the defendant named his author, who was a responsible man, the defendant may avail himself of that testimony without pleading the matter as a special justification. Hogan 1. Brown,* 1 Cr. C. C., 75.

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$ 575. Evidence of good character, when admissible.- Where no direct evidence in proof of the charge has been offered, but evidence merely tending to prove the general character of the plaintiff bad in the particular in question, the plaintiff may encounter it by proof of good general character. Wright v. Schroder, * 2 Curt., 548.

$ 576. Plaintiff was the manager of defendant's calico works. It was alleged that he had always enjoyed a good reputation and had never been guilty or suspected of the vice of drunkenness. While employed in defendant's calico works, defendant charged him with drunkenness. Defendant offered evidence showing that the plaintiff had been frequently drunk at the works, and that he kept spirits at his boarding-house, where he drank them. This evidence was admitted by the court as tending to prove the charge circumstantially. The plaintiff offered evidence showing his general reputation for sobriety, which was objected to, but admitted by the court as having an effect upon the damages. Held, that the evidence given by the defendant must have a legitimate tendency to affect the general character of the plaintiff in reference to the subject-matter of the charge for which damages are demanded. Ibid.

$ 577. Extension of innuendo beyond the sense of the words. — The declaration alleged that the plaintiffs were merchants, etc., and the defendants, to injure their good name, etc., published falsely, etc., that the plaintiffs had been sued; that Beardsley's wife was about to sue for divorce and alimony; that he had put his property out of his hands; if so, their store would be closed soon, meaning thereby to have it suspected and believed that the plaintiffs were not worthy of credit and would not pay their debts. A demurrer to this alleged that the innuendo subjoined materially varied, enlarged and extended the sense of the words. Held, that the office of the innuendo is to explain the words contained in the libel and annex to them their proper meaning. It cannot enlarge or extend the sense of the expressions beyond their usual and natural import, unless something is put upon the record by way of introductory matter, with which they can be connected. Then words which are equivocal or ambiguous, or fall short in their natural sense of importing any libelous charge, may have fixed to them a meaning certain and defamatory, extended beyond their ordinary import (Rex v. Horne, Cowp., 682; Hall v. Blandley, 1 Youn. & Jerv., 486; Van Vechten v. Hopkins, 5 Johns., 211; Miller v. Maxwell, 16 Wend., 9.) In order to ascertain whether an innuendo has been improperly extended, the whole and every part of the libel must be looked at. The court cannot say, as matter of law, that the words declared upon do not convey or could not have been intended to convey to those in whose presence they were published the meaning imputed to them. On the contrary, they have been published in a way that would naturally convey to the hearer that meaning, especially if published with an intent to affect the credit of the plaintiffs as merchants, as charged in the declaration. Beardsley v. Tappin, 1 Blatch., 588.

$ 578. Joint slander. - Where it is alleged that defendants jointly slandered the plaintiffs, words spoken of one of the plaintiffs only cannot be proved, and words spoken by one defendant, not in the presence of the other, cannot be proved. Davis v. Sherron,* 1 Cr. C. C., 287.

$ 579. Miscellaneous.—Where plaintiff, a milliner, was charged with being a swindler and a cheat, and brought an action for slander, and made an affidavit that the words were maliciously uttered, and that defendant is a transitory person about to leave the jurisdiction, bail will be required of him. Doyne v. Barker, 4 Cr. C. C., 475.

$ 580. Judgment for plaintiff must be rendered on demurrer to a declaration for slander, averring actionable words. Edds v. Waters, 4 Cr.'C. C., 170.

$ 581. In an action for slander the plaintiff cannot give evidence of special damage not stated in his declaration. Kelly v. Hutington,* 3 Cr. C. C., 81.

$ 582. He may recover although he has not proved the special damage laid in the declaration. Ibid.



SUMMARY - Arrest for non-payment of illegal tax, § 583. — Proceedings before a United

Stutes commissioner, $ 584. — Court or magistrate without jurisdiction, $ 585.— When an action on the case is the proper remedy, $ 595.- Where the proceedings are void for want of jurisdiction, $ 587. - Mitigation of damages, $ 589.

$ 583. Trespass lies where a person is illegally assessed and arrested for non-payment of a tax. Five hundred and five dollars damages in favor of such person against the tax officer who arrested him are not so excessive as to warrant the court in setting the verdict aside and ordering a new trial. Thurston v. Martin, SS 589, 590.

$ 584. The defendant appeared before a commissioner of the circuit court of the United States for the southern district of New York, and charged the plaintiff with forgery at Havana. He thereupon procured the commissioner's warrant for the arrest of the plaintiff, upon which he was taken before the commissioner, and for several days restrained of his liberty. The plaintiff brought suit on two causes of action; the first cause being for false imprisonment, and the second for malicious prosecution. Held, on demurrer, that an action would lie against the defendant, as the subject-matter, the offeuse and the person were within the magistrate's jurisdiction. Castro v. De Uriarte, $$ 591-595.

8 585. Where the court or magistrate has issued a warrant wholly without jurisdiction of the subject-matter or of offense charged, an action of malicious prosecution will lie against the prosecutor who set on foot such illegal proceedings. Ibid.

$ 586. Where the arrest complained of arose in the course of legal proceedings and there was no doubt of malice and the want of probable cause, and no question existed concerning the jurisdiction or legal validity of the proceedings themselves, the pleader is necessarily confined to an action on the case for malicious prosecution. Ibid.

$ 587. Where the proceedings are void for want of jurisdiction, trespass for false imprisonment is the ordinary remedy, since no other proof is requisite than the proof of the arrest or detention and of the illegality of the proceedings. Upon this proof the plaintiff is entitled to compensatory damages. Ibid.

$ 588. A. sued B. and C. for falsely imprisoning him on the ground of attempting to obtain bounty-money from the United States, and to induce desertion from the federal army. Held, that B. and C. could give in evidence, in mitigation of damages, depositions of deserters and others to whom A. had developed his plan of desertion and bounty swindling. Beckwith v. Bean, SS 596-602.

[NOTES.-See 603-638.]


(Circuit Court for Rhode Island: 5 Mason, 497–504. 1830.)

STATEMENT OF Facts.-- This was an action of trespass for false imprisonment, brought against the defendant, who was collector of taxes for the town of Newport, R. I. The defendant pleaded not guilty, with leave to give special matter in evidence.

At the trial it was proved that the defendant had arrested and imprisoned the plaintiff for the non-payment of a town tax, assessed on him for the year 1827, and that he was discharged upon payment of the tax. The real controversy at the trial turned upon the point whether the plaintiff was an inhabitant of Newport, and so liable to be assessed for taxes there. It appeared in evidence that the plaintiff was born in Newport and had lived there until the year 1815 or 1816, and that his mother still resides there. In 1815 or 1816, being then of age, he went to reside as a trader at Georgetown, South Carolina, and from that time to the time of the suit he had continued his occupation there. He usually went to Georgetown every autumn, in October, and remained there until June, and kept a store or shop of goods there, and performed such patrol and other duty as was required of him there and paid taxes there. The sickly season coming on in June he came north ward every year at that time, and usually passed his summers and autumn until October at Newport, making purchases at the northward, principally for sale at Georgetown. It is usual for the inhabitants, during the sickly season, to leave Georgetown for the north and return back in the manner the plaintiff did. The plaintiff is a single man and has no family. Several of the inhabitants of Newport are in the habit of keeping shops of goods in Georgetown and going there in the autumn and returning in June, at the time when the sickly season comes on, and of paying taxes at Georgetown. Some of these have families at Newport and consider it as their home. The plaintiff was first taxed in Newport after his removal in 1816. For one or two years the tax, being

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