BARNETT

7.

ALLEN.

[ *379 ]

of the sense in which the word was used would not be admissible.)

*

Joyce, in support of the rule:

*Assuming the innuendo 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 (1).

(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 *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 (1) 39 R. R. 374 (5 B. & Ad. 27).

declaration, the meaning must be shown 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 *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.

BRAMWELL, B.:

66

I agree with my brother MARTIN. I 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 show 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 interpreta

BARNETT

v.

ALLEN.

[382]

tion 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 innuendo was unnecessary; if it is slang, the innuendo 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.:

66

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 shown 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 innuendo 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 *was meant by the word "cheat" on a particular occasion. Certain slang terms, such as "lame duck,” have obtained distinct and precise meanings as connected with a man's trade, and such meaning might be proved. In the case of Daines v. Hartley (1), it was held, that unless a foundation is laid by showing that something had previously passed which gave a peculiar character and meaning to some word, the question cannot be put to a witness "what did you understand by it?" It is necessary to show that there was something to prevent the word from conveying the meaning which it ordinarily would convey. Here I think that no such foundation was laid for the question.

The Court being equally divided, the rule was discharged in order that the defendant might appeal.

(1) 77 R. R. 600 (3 Ex. 200).

SUTTON v. BATH (1).

(3 H. & N. 382–384; S. C. 27 L. J. Ex. 388; 1 F. & F. 152.) Under the 17 & 18 Vict. c. 36, s. 1 (2), where the occupation of a party to, or the witness of, a bill of sale, is not stated, the onus of proving that the party or witness has an occupation, lies on the party seeking to impeach the bill of sale on that ground (3). INTERPLEADER. At the trial before Erle, J., at the Spring Assizes for the county of Surrey, it appeared that the plaintiff claimed the goods in dispute under a bill of sale from one John Sutton, as against the defendant who was the execution creditor in an action of Bath v. John Sutton. In the bill of sale, and affidavit filed under the 17 & 18 Vict. c. 36, s. 1(2), John Sutton was described as "gentleman." The attestation was by two witnesses, one of whom was properly described, but neither on the face of the bill of sale nor in the affidavit did anything appear as to the occupation of the other, though his residence was stated. On cross-examination of the plaintiff's witnesses, it appeared that John Sutton had acted as assistant *to a surgeon; but that he had had no employment in that capacity for many months before executing the bill of sale. He had written prefaces to some medical books, and had described himself in certain advertisements as "Dr. Sutton," and as а member of the College of Surgeons; but it was denied that he had practised as a surgeon or was a member of the College of Surgeons or Apothecaries' Company. He had hired a house and purchased some furniture with the view to let lodgings, but it did not appear that he had had any lodgers.

Upon this evidence it was objected by the defendant's counsel that the bill of sale was void under the 17 & 18 Vict. c. 36, s. 1 (2), the occupation of the assignor not being stated either in the bill of sale or the affidavit. The learned Judge overruled the objection, reserving leave to the defendant to move to enter the verdict for him, if the Court should be of opinion that the objection was well founded. The jury having found a verdict for the plaintiff,

Hawkins, in Easter Term, obtained a rule nisi accordingly or for a new trial, on the grounds; first, that the bill of sale was not duly registered pursuant to the 17 & 18 Vict. c. 36, s. 1(2) with such an affidavit as is required by that statute. Secondly, that the assignor was not properly described in the

(1) Smith v. Cheese (1875) 1 C. P. D. 60, 62, 45 L. J. C. P. 156, 33 L. T. 670.

(2) Repealed, 41 & 42 Vict. c. 31, s. 23. See now s. 10 of the repealing Act.

(3) In Castle v. Downton (1879) 5 C. P. D. 56, 49 L. J. C. P. 6, 41 L. T. 528, the COURT questioned whether this head-note is supported by the judgment.

1858. May 29.

[ 382]

[ *383 ]

SUTTON

v. ВАТН.

[ *384 ]

bill of sale or in the affidavit filed therewith, as required by that statute. He cited Allen v. Thompson (1).

Edwin James and Raymond now showed cause:

The first point is, whether the defendant was properly described. There was evidence that he had been acting as assistant to a surgeon, and had been employed about editing medical books; but it did not appear that he had any occupation at the date of the bill of sale by which he could have been more properly described than as "gentleman." Then as to the witness: he may have had no occupation.

(POLLOCK, C. B.: What is required is not the addition of the party, but his occupation.)

If the defendant wished to avail himself of the objection, he should have asked the Judge to leave the question to the jury, what was the occupation of the assignor.

Watkin Williams, in support of the rule:

The word "gentleman is not any description of the occupation of the assignor. He was doing something to endeavour to gain a livelihood, and should have been described as "author" or "lodging-house keeper."

(BRAMWELL, B.: The evidence was that he was a doubtful gentleman," not that he had any occupation.)

Per CURIAM:

The rule must be discharged.

1858. June 1.

[ 384 ]

Rule discharged.

NICHOLSON v. COOPER.

(3 H. & N. 384-386; S. C. 27 L. J. Ex. 393.)

A. conveyed goods by bill of sale to B. By a second bill of sale A. conveyed the same goods to C. A. having become bankrupt, and the first bill of sale not having been duly registered pursuant to 17 & 18 Vict. c. 36, s. 1 (2), A.'s assignees brought an action of trover for the goods: Held, that B. could not set up the bill of sale to C. against the assignees.

TROVER for household furniture. Pleas: First, Not guilty. Secondly, that the plaintiffs were not possessed. Whereupon issues were joined.

At the trial before Bramwell, B., at the London sittings in Easter Term, it appeared that the action was brought to recover the value of certain furniture seized and sold by the defendant, and which the plaintiffs claimed as assignees of one Bowman, a (1) 108 R. R. 429 (1 H. & N. 15). s. 23. See now s. 10 of the repealing Act.

(2) Repealed, 41 & 42 Vict. c. 31,