present at a public house called The Edinburgh Castle, kept by one Reynolds, where there had been a raffle in which both the plaintiff and the defendant had taken part. At supper, after the raffle, the defendant, referring to the plaintiff, said:—“I am surprised at Mr. Reynolds allowing a blackleg in this room." A witness named Rice was asked what he understood by "blackleg." The question was objected to by the defendant's counsel, but allowed by the learned Judge. The witness said, "I understood blackleg to mean a person in the habit of cheating at a particular game at cards." The learned Judge told the jury that if the words used were meant to imply that the defendant was a gambler, and nothing more, the action was not maintainable; but that if they imputed to the plaintiff that he was a cheating gambler they would find for the plaintiff. The jury having found a verdict for the plaintiff, leave was reserved to the defendant to move to enter a nonsuit. Shee, Serjt., in Easter Term, obtained a rule nisi accordingly, or for a new trial, on the ground that the words were not actionable, and that the evidence of the meaning of the word "blackleg," which was admitted by the learned Judge, was not admissible, and did not support the inuendo; against which Edwin James and Doyle now shewed cause.-By the 8 & 9 Vict. c. 109, s. 17, persons cheating at play are to be deemed guilty of obtaining money by false pretences. Looking at the circumstances under which the words were spoken, and the fact that the parties had just been gambling, it cannot be supposed that the word was used in the sense that the plaintiff was a gambler simply. There can be no doubt that the intention was to charge him with being a cheating gambler. In 1 Hawk. P. C., bk. I., c. 71, s. 1, it is said that playing with false dice is indictable as a cheat at common law (a). There (a) On this point they cited also 2 Roll. Ab. 78 (H.). 1858. BARNETT v. ALLEN. 1858. BARNETT v. ALLEN. was evidence that the word was understood as charging fraudulent gaming, and such evidence was properly admitted. [Martin, B.-Suppose the plaintiff was called by some slang term, such as "cracksman," it could hardly be said that evidence of the sense in which the word was used would not be admissible.]—They also referred to O'Brien v. Bryant (a). Joyce, in support of the rule.-The first question is, whether the inuendo was proved. The words not being actionable in themselves an inuendo was necessary. The Court cannot infer that an indictable offence was intended, because the expression is ambiguous: Day v. Robinson (b). In such a case, section 61 of the Common Law Procedure Act, 1852, does not render an inuendo unnecessary. Now, assuming the inuendo to be proved, no indictable offence is charged by it. It is consistent with it that the plaintiff may have obtained a living by cheating as a gambler abroad. It is therefore not actionable: Sweetapple v. Jesse (c). [Martin, B.-That case depends upon the old rules of pleading.] There may be dishonourable gaming, in respect of which a man may be called a blackleg, which is not fraudulent gaming, or punishable otherwise than by public opinion, as if an experienced and skilled gambler, "a rook," persuades an inexperienced youth, "a pigeon," to play with him, and then plucks him. POLLOCK, C. B.-I am of opinion that this rule must be absolute. The question turns on whether it is actionable to call a man a "blackleg," without proving special damage, I think it is not. No evidence was given at the trial in proof of the meaning of the word as alleged in the declaration, even if such evidence was admissible, which I (b) 1 A. & E. 554. (a) 16 M. & W. 168. (c) 5 B. & Ad. 27. think it was not. The word "blackleg" has been used long enough to be understood, not only by experts in slang, but by the public at large, and therefore it was for the Judge to expound its meaning. I have always understood the word "blackleg" to mean a person who gets his living by frequenting racecourses and places where games of chance are played; getting the best odds and giving the least he can; but not necessarily cheating. That is not indictable either by statute or at common law. It is, therefore, not more actionable to call a man a “blackleg" than it is to call him a "villain,” a "cheat," a "swindler," or any other opprobrious term not necessarily imputing the commission of a particular crime. There are many expressions which, if applied to a man, would place him in a most odious light; but the law has judged that such words of heat ought not to be the subject of an action, unless they have a tendency to expose the person of whom they are spoken to peril; or unless they amount to slander of title, or slander in respect of his trade or profession. Except in these three cases, with respect to ordinary persons, words of this kind are not actionable without special damage. According to the definition in Webster's Dictionary, the word "blackleg” may be applied to a notorious gambler or cheat. To support the declaration, the meaning must be shewn to be a "gambling cheat" or "cheating gambler." Here there was no evidence that the word was used in a sense different from that in which it was ordinarily understood; though I doubt whether any evidence ought to change the meaning of a word so as to give it a worse sense than it has in its ordinary acceptation, unless it refers to a particular transaction. Here the evidence was that the defendant simply called the plaintiff a "blackleg," without reference to any other matter. The witness Rice was asked what he understood by the word "blackleg." That was not the proper question. If an expert is called 1858. BARNETT v. ALLEN. 1858. BARNETT v. ALLEN. EXCHEQUER REPORTS. in to explain a slang term, the proper question is, what is the general meaning of the term amongst those who are in the habit of employing it? Upon the general principle that a mere term of reproach is not actionable, I think that this action was not maintainable. MARTIN, B.-I regret that any difference should exist in the Court on so trifling a matter. I always understood the rule to be, that words are actionable if they impute to the person of whom they are spoken an indictable offence, either on a particular occasion or habitually. By the statute 8 & 9 Vict. c. 109, cheating at cards is indictable; and the question is, did or did not the defendant use the word with intent to convey to the minds of the persons present the imputation that the plaintiff had habitually by fraud and malpractice won money? I should have so understood them, and that such was the defendant's meaning was proved by the evidence. The witness who was called said he considered the word "blackleg" to mean a person who plays at cards and cheats; it was therefore a question for the jury whether the defendant meant to impute to the plaintiff that he had been guilty of an offence for which he was liable to be indicted under the statute. I BRAMWELL, B.-I agree with my brother Martin. construe the word "blackleg" in the same sense in which he does. In considering questions of this kind we have to ascertain, not exactly the sense in which words are understood by the hearers, but in what sense they would be reasonably understood. A person is responsible for the natural meaning of words uttered by him. If a word is properly an English word the Judge must interpret it. If it be slang, witnesses may be called to shew in what sense it is understood. I doubt whether the word "blackleg" is English, or whether it is slang. If it is English, then I understand it as my brother Martin does; if it is slang, an interpretation has been put upon it by the evidence. I do not agree with the Lord Chief Baron in thinking that there was no evidence of its meaning. If it is English, the inuendo was unnecessary; if it is slang, the inuendo was proved; that is, the defendant uttered language charging the plaintiff with being a fraudulent gamester. I entertained some little doubt whether to constitute a cause of action it was not necessary that the charge should be specific; but on referring to Comyns's Digest, Action on the case for Defamation, (D. 4), I find that it is actionable if the defendant charge the plaintiff "with felony generally, as, he is a thief." WATSON, B.-I think that the rule ought to be absolute. This is an action for slander, not of a person in his trade, but simply imputing to the plaintiff that he was a "blackleg," and no special damage was proved. Under these circumstances it must be shewn that the slander imputes a charge upon which criminal proceedings might be taken. The word by itself cannot impute that the person to whom it is applied is liable to punishment. It imputes no crime. The word is a modern one, and does not convey any precise notion to my mind, and it is clear that it did not convey any definite idea to the mind of the pleader who drew the declaration. It may be actionable to say of a person that he is a "fraudulent gamester," but the inuendo was not proved here. The witness was asked "what do you understand by the word blackleg?" but that was not a proper question. In an action for slander in a foreign language a witness might be asked what he understood by the foreign word used. But suppose a person called another "a cheat," a witness could not be asked what 1858. BARNETT บ. ALLEN. |