Slander-Special Damages. refused to deliver the same, or any part thereof, to him the said plaintiff, unless he the said plaintiff, would, before such delivery, pay the price thereof, and thereupon, afterwards, and before the time appointed by the said contract for payment of the said price of the said cheese, to wit, on [&c.] aforesaid, at [&c.] aforesaid, he, the said plaintiff, in order to procure the delivery thereof, was forced and obliged to pay, and did then and there pay to the said R. M., a large sum of money, to wit, the sum of dollars; and the said plaintiff, by means of the premises, hath been, and is otherwise greatly injured and damnified, to wit, at [&c.] aforesaid. 24. For Words actionable only in respect of Special Damage. (k) [The declaration will be in the common form, as ante, 556, Form 1, to the end of the statement of general damage, and then proceed to state the special damage according to the fact, which may be thus:] And also, by reason of (k) Although words be not actionable as imputing to the plaintiff an offence punishable at law, or relating to or affecting him in his office, profession or business, yet they may be in themselves of a disparaging nature, (as " swindler," " rogue," ❝ adulterer ;") and if they be so, and be false and malicious, and occasion special damage, or a particular injury to the party accused, he may maintain an action in respect of such damage; see 1 Stark. Sl. 2d ed. 190. An action does not lie for slander of title though conveyed by writing, unless there be special damage. Where particular damage is the gist of the action, it must be specially laid, and proved as charged, in the declaration, and no evidence of it will be received unless it be stated with particularity and certainty. And where this is not done, the declaration will be substantially bad, and the plaintiff will not be permitted to rely upon the general or common statement of injury to his reputation; 1 Saund. 243, note 5; 2 Stark. Ev. 7 ed. 636, 637. Thus, if the injury be that certain persons declined to deal with the plaintiff, the names of such persons must be stated in the declaration; and the loss of customers not named cannot be proved at the trial; id; 8 T. R. 130. But where the statement of special damage with great particularity would, from the nature of the case, be attended with great difficulty and prolixity, and cannot reasonably be required, a more general allegation is allowed. Thus, where the declaration in an action for slander, imputing incontinence to the plaintiff, stated that he was preacher to a dissenting congregation in a certain chapel, and derived considerable profit from his preaching, and by reason of the slander" the said persons frequenting his chapel had refused to permit him to preach there, and had discontinued giving him the gains which they usually had and otherwise would have given,” it was held sufficient without saying who those persons were; 8 T. R. 130. Where the declaration stated that in consequence of the libel, the plaintiff lost the profits of certain performances at the theatre, it was held that the box-keeper might be asked whether the receipts of the house had not diminished, but not whether particular persons had not in consequence given up their boxes; 1 Esp. 48. Special damage cannot be traversed by the plea where it is not the gravamen of the action; 29 Eng. C. L. Rep. 362. It must be the direct or immediate consequence of the defendant's act, and, it seems, arises wholly therefrom. Where the plaintiff's master discharg ed him, partly in consequence of the defendant's scandal, and partly on account of his having been dismissed by a former master, it seems the action does not lie; 2 Stark Ev. 7 ed. 637. An allegation that by reason of the words one D. refused to trust the plaintiff, is not supported by evidence that defendant spoke the words to E., who repeated them to D. as the defendant's words; 20 Eng. C. L. Rep. 104. An averment that "by reason of the premises persons who would otherwise have retained and employed the plaintiff, declined to do so," is not proved by showing that other persons would have recommended the plaintiff, and that the persons named in the declaration would have employed plaintiff on such recommendation ; 12 Eng. C. L. Rep. 278. The declaration should have laid the loss of the recommendation also. It is not essential in these cases that the party refusing to deal with or trust the plaintiff, or dis Slander-Title. the committing of the said grievances by the defendant, certain persons, to wit, E. F., G. H., [&c., who had theretofore dealt and had transactions with the plaintiff, in his trade or business of a, by him then and there, and thence hitherto carried on]; afterwards, to wit, on the day and year aforesaid, at said county, respectively declined and refused, and have thence hitherto respectively declined and refused to have any dealings or transactions with the plaintiff in his [said] trade and business, [add of [&c.], if not mentioned before,] as they otherwise might and would have had; whereby the plaintiff hath lost and been deprived of divers gains and profits which would otherwise have arisen. and accrued to him in that behalf; or, and also, by reason of the committing [&c.], one- who would otherwise have sold to the said certain goods, to wit, [&c.], on credit, afterwards, to wit, on [&c.], at [&c.], declined and refused so to do; whereby, [&c.]; or, and also, by reason [&c.], one who otherwise might and would have retained the plaintiff in the capacity of to him, the said in his business of ——, as and for wages and reward to the plantiff, afterwards, to wit, on [&c.], at the county aforesaid, declined and hath thence hitherto declined so to do; whereby the plaintiff lost, and hath been deprived of the wages, reward, and advantages which would otherwise have accrued to him; or, and also, by reason [&c.], one who had theretofore retained plaintiff in the capacity [&c.], at and for [&c.], afterwards, to wit, on [&c.], at said county, discharged the plaintiff from his employ, and hath thence hitherto declined to retain or employ him therein; whereby, [&c.] [How to state special damage in regard to the loss of recommendation, ante, 580, note (k). Form of statement in respect of the loss of the benefits arising from the hospitality of friends, 1. Taunt. 40. Other Forms. 8 T. R. 130; and in cases cited, ante, 580, note (k).] 25. For Procuring a Third Person to attend at a Public Auction Room and Slander the Title of an Estate that the Plaintiff was about to Sell. For that, whereas, the plaintiff, before and at the time of the committing of the grievances by the defendant as hereinafter mentioned, was seised as of fee, of and in the reversion of and in certain land with the appurtenances, situate, lying and being in the county of, immediately expectant upon the death of one E. F., who was then seised of the same premises in her demesne missing him, in consequence of the slander, should believe that it is true; 28 Eng. C. L. Rep. 30. It is necessary to call such party, and not sufficient to prove merely his declarations as to the cause of his declining to deal, &c.; 1 Saund. 213 d, n.; 12 Eng. C. L. Rep. 89. It has been decided that if the damage arising from the slander be the wrongful act of a third person, as his dismissal of the plaintiff before the expiration of the term for which he was engaged, or other wrongful breach of contract, &c., such act is not a sufficient ground of action against the utterer of the slander; not being the natural and legal consequence of the words; 8 East, 1; 2 B. & P. 284; But this doctrine seems doubtful; see 2 Stark. Ev. 7 Am. ed. 636, n. (i). Slander-Title. as of freehold, for the term of her natural life, to wit, at [&c.] And whereas, the said plaintiff, before and at the time of the committing the grievances hereinafter mentioned, was desirous of selling his said estate and interest by public auction, and for that purpose, he the said plaintiff, before and at the time of the committing of the said grievances, to wit, on [&c.] at [&c.], caused his said estate and interest to be, and the same then and there were put up and exposed to sale by public auction, by one G. H. as the said auctioneer and agent of the said plaintiff, in order that the same might be then and there sold for the said plaintiff, yet the said defendant, well knowing the premises, but contriving, and falsely, and fraudulently intending to injure him, the said plaintiff, and to cause it to be suspected and believed that he the said plaintiff had no title, estate or interest of, in, or to the said land with the appurtenances, and to hinder and prevent the said plaintiff from selling or disposing of his said estate or interest in the same, and to cause and procure the said plaintiff to sustain and be put to divers great expenses, attending the said exposure to sale, and to vex, harass, oppress, impoverish and wholly ruin him, the said plaintiff, heretofore, to wit, on [&c.] aforesaid, at the county aforesaid, wrongfully and injuriously, falsely and maliciously, caused and procured a certain person, to wit, one W. M., to attend and be present at and upon the said exposure to sale of his the said plaintiff's estate and interest, and then and there, upon such exposure to sale, and before the said estate and interest had been sold, falsely and maliciously caused and procured the said W. M. to assert and represent, and the said W. M. did accordingly, in the presence and hearing of divers persons, then and there assert and represent, at and upon such exposure to sale as aforesaid, of and concerning the said plaintiff, and of and concerning the said G. H., so being such auctioneer as aforesaid, and of and concerning the said land with the appurtenances, and the said plaintiff's estate and interest therein, that [&c., here set out the words.] And whereas, also, the said defendant, afterwards, to wit, on [&c.] aforesaid, at the county aforesaid, further intending and contriv ing as aforesaid, then and there falsely and maliciously caused and procured a certain person, to wit, the said W. M., to attend and be present at and upon the said exposure to sale, of his the said plaintiff's estate and interest, and then and there, at and upon such exposure to sale, and before the said estate and interest had been sold, falsely and maliciously caused and procured the said W. M. to assert and represent, and the said W. M. did assert and represent, then and there in the presence and hearing of divers other persons, then and there present upon and at such exposure to sale as aforesaid, of and concerning the said plaintiff and the said G. H., and of and concerning the said land and the estate and interest of the said plaintiff therein, that [&c., state the words with appropriate innuendoes.] By means of the committing of which said several grievances by the said defendant as aforesaid, divers of the said persons who were so present at and upon the said exposure to sale as aforesaid, and who were then and there about to be and become purchasers of the said estate and interest of the said plaintiff, and who might and would otherwise have bid Slander in Foreign Language. for and purchased the same, and especially I. K., who was then and there about to bid for, and would otherwise have purchased the same, were then and there deterred and prevented from bidding for, and becoming the purchasers of the said estate and interest of the said plaintiff, and then and there, and from thence hitherto have respectively wholly declined to purchase the same, and thereby he, the said plaintiff, was then and there hindered and prevented from selling and disposing of his said estate and interest, and hath thereby not only lost and been deprived of all the advantages and emoluments which he might and would have derived and acquired from the sale thereof, but hath been forced and obliged to pay, lay out and expend divers large sums of money, amounting in the whole to a large sum of money, to wit, the sum of dollars, in and about the said exposure to sale, and expenses incidental thereto, to wit, at [&c.] aforesaid. 26. Form when the Words are Spoken in other Language than the English. (1) The declaration is in the usual form to the colloquium. The colloquium words and innuendoes should be alleged as follows: Heretofore, to wit, on [&c.], at [&c.], in a certain discourse which the defendant then and there had, of and concerning the plaintiff, in the presence and hearing of divers persons, then and there in the presence and hearing of those persons, who then and there understood the [German] language, falsely and maliciously, spoke and published of and concerning the plaintiff, the false, scandalous, malicious and defamatory words, following, in the said [German] language, that is to say: [here set forth the words in the German or foreign language:] and which said words signified, and meant, and were understood to mean as follows, in the English language, that is to say: He, (meaning the plaintiff,) [&c., setting forth a correct translation of the words in English, with innuendoes in the usual manner,] and the same [German] words were so understood, by the said persons, in whose presence and hearing the same were spoken, as aforesaid. (2) If the words were spoken in a foreign language and are alleged in English only in the de claration, the variance will be fatal. 3 Wend. 394. CHAPTER XVIII. DECLARATIONS IN TROVER. 1. 2. Common form. Form of describing goods and chattels, choses in action, &c., in a declaration in trover. 3. By the Commissioner of Insolvents for a conversion before the assignment. 4. By the Commissioner of Insolvents for a conversion after the assignment. 5. By an executor for a conversion in the testator's lifetime. 6. By an executor for a conversion after the testator's death. 7. By an administrator. 1. Common Form. Commencement as ante, 181 to 188.] For that, whereas, the plaintiff, heretofore, to wit, on [&c., any day before writ,] was lawfully possessed as of his own property, (b) of certain [goods and chattels, or deeds and writings, or bill of exchange, as the case may be], to wit: [* here describe the property as in the next form,] of great value, to wit of the value of dollars; and being so possessed thereof, he, the plaintiff, afterwards, to wit, on the day and year, and at the county aforesaid, casually lost the said [goods and chattels, or deeds and writings, or bill of exchange, as the case may be,] out of his possession, and the same then and there came to the possession of the defendant, by finding; yet the defendant, well knowing the same to be the property of the plaintiff, but contriving and intending to injure the plaintiff in this behalf, hath not as yet delivered the same, [or either of them, or any part thereof,] to the plaintiff, although often requested so to do; and afterwards, to wit, on the day and year aforesaid, at the the county aforesaid, converted and disposed of the same, to his, the defendant's, own use; to the plaintiff's damage of dollars, and therefore he brings his suit, &c. (b) In general, the words, "goods of the plain tiff," are a sufficient allegation of title to personality; Steph. 3d ed. 317; ante, 413, n.; but in trover the above form is usual, and (it seems) necessary; and it is said to have been decided that the omission of the words, "as of his proper goods," or "of his own property," though cured by verdict, is fatal after a judgment by default; Selw. N. P. 1349, n. tit. "Trover, III.;" 1 Chit. Pl. 8 Am. ed. 161, n. (r). |