for they are but an attack on a thing, not on a person. But often an attack on a commodity may be also an indirect attack upon its vendor; e.g. if it be insinuated that there was fraud or dishonesty in offering it for sale. In such case, if the words touch a man in his trade, they are actionable per se. Illustrations. Thus, it is actionable without proof of special damage : 66 To say of a trader, He is a cheating knave, and keeps a false debtbook." Crawfoot v. Dale, 1 Vent. 263; 3 Salk. 327. Or that he uses false weights or measures. Griffiths v. Lewis, 7 Q. B. 61; 14 L. J. Q. B. 197; 9 Jur. 370; 8 Bray v. Ham, 1 Brownlow & Golds. 4. Stober v. Green, Ib. 5. Prior v. Wilson, 1 C. B. N. S. 95. To say to a corn factor," You are a rogue and a swindling rascal, you delivered me 100 bushels of oats, worse by 68. a bushel than I bargained for." Thomas v. Jackson, 3 Bing. 104; 10 Moore, 425. To say of a tradesman that he adulterates the goods he sells. Jesson v. Hayes, (1636) 1 Roll. Abr. 63. To say of a contractor, "He used the old materials," when his contract was for new, is actionable, with proper innuendoes. Baboneau v. Farrell, 15 C. B. 360; 24 L. J. C. P. 9; 1 Jur. N. S. 114; 3 C. L. R. 42. Sir R. Greenfield's Case, Mar. 92; 1 Viner's Abr. 465. See Smith v. Mathews, 1 Moo. & Rob. 151. To say of a butcher that he changed the lamb bought of him for a coarse piece of mutton. Το say Crisp v. Gill, 29 L. T. (Old S.) 82. Rice v. Pidgeon, Comb. 161. of a keeper of a restaurant, "You are an infernal rogue and swindler," was held not to be actionable without proof of special damage, as not of itself necessarily injurious to a restaurant keeper; for, as the Supreme Court of Victoria remarked, "in fact there might be very successful restaurant keepers, were both rogues and swindlers." who Brady v. Youlden, Kerferd & Box's Digest of Victoria Cases, 709; But to call a tradesman "a rogue,' 66 or "a cheat," or a cozener," is not actionable, unless it can be shown that the words refer to his trade. To impute distinctly that he cheats or cozens in his trade is actionable. Johns v. Gittings, Cro. Eliz. 239. Cotes v. Ketle, Cro. Jac. 204. Terry v. Hooper, 1 Lev. 115. O.L.S. F Savage v. Robery, 5 Mod. 398; 2 Salk. 694. Fellowes v. Hunter, 20 Up. Can. Q. B. 382. Brady v. Youlden, Melbourne Argus R., ante, p. 65. [N.B.-Lancaster v. French appears to go a little further than the other cases cited but if so, it must be taken to be so far overruled by them.] So to say to a pork butcher, "Who stole Fraser's pigs? You did, you bloody thief, and I can prove it—you poisoned them with mustard and brimstone," was held not actionable (the jury having found that the words were not intended to impute felony); for there was nothing to show that they were spoken of the plaintiff in relation to his trade. Sibley v. Tomlins, 4 Tyrw. 90. So to say of a grocer, "His shop is in the market," is not actionable, in the primary sense of the words at all events. Ruel v. Tatnell, 29 W. R. 172; 43 L. T. 307. It must be averred and proved that the plaintiff carried on his trade at the time the words were spoken; else the words cannot be spoken of him in the way of such trade. (Bellamy v. Burch, 16 M. & W. 590.) Moreover the trade or employment must be one. recognised by the law as a legitimate means of earning one's living. Illustrations. A stock-jobber could not sue for words spoken of him in the way of his trade, so long as that trade was illegal within the 7 Geo. II. c. 8, s. 1 (Sir John Barnard's Act; now repealed by 23 & 24 Vict. c. 28). Morris v. Langdale, 2 Bos. & Pul. 284. Collins v. Carnegie, 1 A. & E. 695; 3 N. & M. 703. If the plaintiff avers that he carries on two trades, it will be sufficient to prove that he carries on one, if the words can affect him in that one. Figgins v. Cogswell, 3 M. & S. 369. Hall v. Smith, 1 M. & S. 287. Where insolvency is imputed to one member of a firm, either he or the firm may sue, for it is a reflection on the credit of both. Harrison v. Bevington, 8 C. & P. 708. Cook and another v. Batchellor, 3 Bos. & Pul. 150. Forster and others v. Lawson, 3 Bing. 452; 11 Moore, 360. A married woman, carrying on a separate trade, may sue without joining her husband for any tort affecting such separate trade or her credit therein. Summers v. City Bank, L. R. 9 C. P. 580; 43 L. J. C. P. 261. And see 45 & 46 Vict. c. 75, ss. 1, 12, post, pp. 530–539. And see cases collected under Chapter V., post, p. 104. IV. Words which impute Unchastity or Adultery to any Woman or Girl. By the Slander of Women Act, 1891 (54 & 55 Vict. c. 51), it is enacted that "words spoken and published after the passing of this Act (August 5, 1891) which impute unchastity or adultery to any woman or girl shall not require special damage to render them actionable. Provided always that in any action for words spoken and made actionable by this Act, a plaintiff shall not recover more costs than damages, unless the judge shall certify that there was reasonable ground for bringing the action.' The Act does not apply to Scotland, as a verbal imputation of unchastity was already actionable there without proof of special damage. And it is submitted that it does. not apply to any case in which gross epithets are used merely as general terms of abuse; the words must be such as to convey to the hearers a definite imputation that the plaintiff has in fact been guilty of adultery or unchastity. Prior to 1891, it was the law in England and Ireland-though it was otherwise in Scotland and America-that words imputing unchastity or adultery to a woman, married or unmarried, however gross and injurious they might be, were not actionable, unless the plaintiff could prove that they had directly caused her special damage, which it was generally impossible for her to do. It was true that up to 1855 she had a nominal remedy in the ecclesiastical Courts, which had jurisdiction over such charges, and could inflict penance on the defendant for the good of his soul, though they could not award damages to the plaintiff. But by the statute 18 & 19 Vict. c. 41, the power of the ecclesiastical Courts "to entertain or adjudicate upon any suit for or cause of defamation" was abolished; and no attempt was made to substitute any remedy in the secular Courts. Again, there was in theory a remedy if such words were spoken in the city of London, or in the borough of Southwark (Sid. 97), or, it was said, in the city of Bristol (Power v. Shaw, 1 Wils. 62), and an action was brought in the local Courts. For it was formerly the custom in those localities to cart and whip whores, tingling a basin before them. Hence to call a woman "whore" or "strumpet" (Cook v. Wingfield, 1 Str. 555) or "bawd" (1 Vin. Abr. 396), or her husband a "cuckold" (Vicars v. Worth, 1 Str. 471), was supposed to be an imputation of a criminal offence to the female plaintiff, and therefore actionable. But such custom has been entirely extinct for more than a century. The plaintiffs in the case of Stainton et ux. v. Jones (2 Selwyn, N. P. 13th ed. 1205), tried to prove its existence in 1782, and failed. Hence a woman who had been slandered in her most precious possession was practically without remedy. The state of our law on this point was frequen ly denounced by learned judges. (See the remarks of Willes, C.J., in Jones v. Herne, 2 Wils. 87; of Lord Campbell, C.J., and Lord Brougham, in Lynch v. Knight and wife, 9 H. L. C. 593, 594; and of Cockburn, C.J., Crompton, and Blackburn, JJ., in Roberts and wife v. Roberts, 5 B. & S. 384; 33 L. J. Q. B. 249.) And now happily it has at last been altered. Illustrations of the former law. To say of a young woman that "she had a bastard" was not actionable without proof of special damage; "because it is a spiritual defamation, punishable in the spiritual Court." Per Holt, C.J., in Ogden v. Turner, Holt, 40; 6 Mod. 104; 2 Salk. 696. To call a woman 66 a whore or "a strumpet" was not actionable, except by special custom, if the action were tried in the cities of London and Bristol. “To maintain actions for such brabling words is against law." Oxford et ux. v. Cross, (1599) 4 Rep. 18. Hassell v. Capcot, (1639) 1 Vin. Abr. 395; 1 Roll. Abr. 36. Roberts v. Herbert, (1662) Sid. 97; S. C. Caus v. Roberts, 1 Keble, 418 (Southwark). Watson v. Clerke, (1688) Comberbach, 138. Gascoigne et ux. v. Ambler, (1703) 2 Ld. Raym. 1004. Vicars v. Worth, (1722) 1 Str. 471. Hodgkins et ux. v. Corbet et ux., (1723) 1 Str. 545. Cook v. Wingfield, (1723) 1 Str. 555. Power v. Shaw, (1744) 1 Wils. 62 (Bristol). Theyer v. Eastwick, (1767) 4 Burr. 2032. Brand and wife v. Roberts and wife, (1769) 4 Burr. 2418. Stainton et ux. v. Jones, (1782) 2 Selw. N. P. 1205 (13th ed.). It was not actionable to call a woman a "bawd," Hollingshead's Case, (1632) Cro. Car. 229; Hixe v. Hollingshed, (1632) Cro. Car. 261; unless the words were spoken in the city of London. Rily v. Lewis, (1640) 1 Vin. Abr. 396. The words You are living by imposture; you used to walk St. Paul's Churchyard for a living,"-spoken of a woman with the intention of imputing that she was a swindler and a prostitute,-were not actionable without special damage. Wilby v. Elston, 8 C. B. 142; 18 L. J. C. P. 320; 13 Jur. 706; 7 The defendant told a married man that his wife was "a notorious liar" and "an infamous wretch," and had been all but seduced by Dr. C. of Roscommon before her marriage. The husband consequently refused to live with her any longer. Held, no action lay. Lynch v. Knight and wife, 9 H. L. C. 577; 8 Jur. N. S. 724; 5 L. T. 291. Where the defendant asserted that a married woman was guilty of adultery, and she was consequently expelled from the congregation and Bible society of her religious sect, and was thus prevented from obtaining a certificate, without which she could not become a member of any similar society, held, no action lay. Roberts and wife v. Roberts, 5 B. & S. 384; 33 L. J. Q. B. 249; 10 Shafer v. Ahalt, 48 Maryland, 171; 30 Amer. R. 456. Dwyer v. Meehan, 18 L. R. Ir. 138. In conse The defendant falsely imputed incontinence to a married woman. quence of his words she lost the society and friendship of her neighbours, and became seriously ill and unable to attend to her affairs and business, and her husband incurred expense in curing her, and lost the society and assistance of his wife in his domestic affairs. Held, that neither husband nor wife had any cause of action. Allsop and wife v. Allsop, 5 H. & N. 534; 29 L. J. Ex. 315; 8 W. R. But see Davies v. Solomon, L. R. 7 Q. B. 112; 41 L. J. Q. B. 10; 20 V. Words Actionable only by Reason of Special Damage. No other words are actionable without proof of special damage. Thus, to accuse a man of fraud, dishonesty, immorality, or any vicious and dishonourable (but not criminal) conduct, is not actionable, unless it has produced as its natural and necessary consequence some pecuniary loss to him. Words imputing adultery, profligacy, immoral conduct, &c., even when spoken of a man holding an office or carrying on a profession or business, will not be actionable, unless they relate to his conduct in that office, profession, or business, or otherwise injure him therein. |