he may give evidence in mitigation of damages, that he heard the slander from that person a.

In an action for words, where special damage is the sole cause of action, the defendant may, under the general issue, give the truth of the words in evidence to disprove malice b.

a

The defendant is entitled to have the whole of the libel read, or the whole of the conversation, in which the words complained of were spoken, detailed in evidence, for he is entitled to have the publication submitted to the jury, that they may judge whether there is evidence of malice on the face of it, and to shew that the publication, taken altogether, was not calculated to injure the character of the plaintiff. Where the alleged libel purported to be a report of a former action for libel, by the same plaintiff, and the report, after stating the libel and the proceedings at the trial, stated that the jury found a verdict for the plaintiff, with 30l. damages; held, that the judge had properly left it to the jury to consider whether the report, though containing some allegations defamatory of the plaintiff, was, if taken altogether, with the statement of the verdict being in his favour, injurious to the character of the plaintiff, or likely to put him in worse estimation than he had been before". If the meaning of the publication admits of any doubt, it is for the jury to decide whether it amounts to a libel or not. The judge may tell them what is the legal result of a particular construction, but the construction is for them. Where the judge expressed his decided opinion that the publication was libellous, and the jury, notwithstanding, found a verdict for the defendant; the court refused to disturb the verdict. And so on the trial of an indictment or information for a libel; the jury may, by the provisions of the statute, give a general verdict of guilty or not guilty upon the whole matter put in issue, pro

vided the judge shall give his opinion or direction to them on the matter in issue a.

SECTION XIII.

COSTS.

By 21 Jac. I. c. 16, "in all actions on the case for slanderous words, if the jury upon the trial of the issue in such action, or the jury that shall enquire of the damages, do assess the damages under 40s., the plaintiff shall recover only so much costs as the damages so assessed amount to."

This statute has been held not to extend to actions for libel", nor to actions where special damage is the gist of the action ©; but where the words are in themselves actionable, the case is within the statute, though special damage be averred and proved d. Where there are different counts in the same declaration, some containing words not actionable, and others containing actionable words, and special damage be laid referring to all the counts; the plaintiff will, under a general verdict, be entitled to full costs, though the damages be under 40s.; for some part of the damages must have been given in respect of the special damage. So, where the words are actionable and other matter likewise actionable, is stated as a distinct injury and not as a mere consequence of the words; as where the declaration, after stating words imputing a felony, averred that the defendant proved the plaintiff to be imprisoned; the case is not within the statute, and the plaintiff will be entitled to full costs. A justification does not entitle the plaintiff to full

WHEN TRESPASS LIES IN GENERAL.

AN action of trespass, vi et armis, lies to recover damages for any injuries committed with force to the person, or to his real or personal property. Thus it lies for an assault, battery, false imprisonment, or even a menace, if accompanied with a consequent inconvenience. So it lies for an injury to the relative rights occasioned by force, as for menacing tenants, servants, &c., and beating, wounding, and imprisoning a wife or servant, whereby the landlord, master, or servant hath sustained a loss; though the injury be consequential and not imme

a 3 Bl. Com. 120. "A menace but to complete the wrong there alone without consequent incon- must be both of them together." venience, makes not the injury; Id.

The injury must be immediate.

When the party in

jured may waive the tort.

diate. It lies for criminal conversation with the plaintiff's wife, or for seducing his servant or daughter, per quod servitium amisit, force being implied, as the wife and servant have no power to consent b.

To sustain trespass, the injury must in general be immediate, and not consequential, and committed with force, either actual or implied; an injury may be considered immediate when the act complained of itself, and not a mere consequence of that act, occasions the injury; but the degree of force is immaterial," as if a log be thrown into the highway, and at the time of its being thrown it hit any person, or even if it were put down in the most quiet way upon a man's foot, it is trespass; but if after it be thrown, any person going along the road receives an injury by falling over it as it lies there, it is case." c "If," said Lord Ellenborough, "the injurious act be the immediate result of the force originally applied by the defendant, and the plaintiff be injured by it, it is the subject of an action of trespass vi et armis, by all the cases both ancient and modern, and it is immaterial whether the injury be wilful or not." d

It may, however, be observed that, though the intention of the wrong doer is immaterial as to the question whether the form of action should be trespass, yet the party injured may waive the trespass and proceed for the tort, where the injury is caused not by the wilful act but by the negligence of the defendant. As where in an action on the case against three defendants, proprietors of a stage-coach, the declaration stated, that the defendants so carelessly managed their coach and horses, that the coach ran against the plaintiff and broke his leg. It appeared in evidence, that one of the defendants was driving at the time when the accident happened, and the

Ditcham v. Bond, 2 M. & S. 436. 1 Ch. Pl. 167.

bld: Woodward v. Watton, 2 N. R. 476. Guy v. Livesey, Cro. Jac. 501. Fitz. N. B. 89. Macfadzen v. Olivant, 6 East, 387.

с

Per Le Blanc, J., in Leame v. Bray, 3 East, 602.

Scott v.

Shepherd, 2 Bl. 892. 3 Wils. 403. Reynolds v. Clarke, 2 Lord Raym. 1402. 1 Stra. 633. Per Lord Kenyon, in Day v. Edwards, 5 T. R. 649.

& Per Lord Ellenborough, in Leame v. Bray, 3 East, 599.

jury found that it happened through his negligent driving; the court held, that the plaintiff might maintain case against all the proprietors, though perhaps trespass would lie against the proprietor who drove the coach. Bayley, J., "No doubt trespass lies when the injury is inflicted by the wilful act of the defendant, but it is also clear that case will lie where the act is negligent and not wilful." a

So where the declaration stated, that the defendant was driving a cart, and took such bad care of the cart and horse, that it ran with great force against the plaintiff's horse, whereby he was much hurt, &c.; on demurrer, the court were clearly of opinion that case would lie, as the injury was alleged to have arisen from the carelessness and negligence of the defendant. And whenever the injury is occasioned by the negligence of the defendant, the plaintiff is at liberty to bring an action on the case, notwithstanding the act be immediate, so long as it is not a wilful act c. Where one driving on the wrong side of the road, on a dark night, accidentally drove his carriage against another's, it was held, that trespass would lied. Where the declaration stated, that A., the defendant, had so carelessly and negligently managed and steered his ship, that it ran foul of the plaintiff's ship, whereby it was greatly damaged; the court held, that case would lie, observing, that if the injury had been occasioned by the wilful act of the defendant, trespass would be the only remedye. Where the defendant drove his gig against another chaise, whereby the plaintiff's wife was injured; held, that trespass would lie; though the chaise was not the property of the plaintiff.