CASE S

ARGUED AND DETERMINED

IN THE

Court of KING'S BENCH,

AND

UPON WRITS OF ERROR FROM THAT COURT

TO THE

EXCHEQUER CHAMBER,

IN

Michaelmas Term,

In the Fifth Year of the Reign of WILLIAM IV.

The Judges who usually sat in Banc this term were,

SIR John Leach, Master of the Rolls, died in Trinity
vacation. He was succeeded by Sir Charles Christopher
Pepys, Knight, his Majesty's Solicitor-General; and
Robert Mounsey Rolfe, Esquire, one of his Majesty's
Counsel, was appointed Solicitor-General in lieu of Sir
C. C. Pepys.

In the same vacation, William Erle, Esquire, and Frederick Thesiger, Esquire, both of the Inner Temple, VOL. II.

B

were

1834.

1834.

were appointed King's Counsel, and Matthew Davenport Hill, of Lincoln's Inn, Esquire, received a patent of precedence, to rank next to F. Thesiger, Esquire.

Subsequently, in the same vacation, Cresswell Cresswell, of the Inner Temple, Esquire, and, early in Michaelmas term, Richard Preston, of the same Inn, Esquire, were appointed King's Counsel.

AYRE against Craven.

Declaration for ACTION for slander. The declaration contained four

slander alleged,

that defendant used words im

puting adultery
to plaintiff, a
physician; and
the words were

laid to have
been spoken
"of him in his
profession."
No special da-
mage was laid.

After verdict for plaintiff, judgment was arrested, because such

counts, of which the third only was proved at the trial.

The inducement to the first count stated, that the Plaintiff exercised and carried on the profession of a physician at H., and that before, and at the time, &c. there was a rumour and report in and about H., and the neighbourhood thereof, that a physician residing at H. had been criminally connected with a married woman, and had been and was guilty of adultery. The third count charged, that in a discourse had in the hearing of divers, &c., and particularly J. B. and C. H. P., of and concerning the said Plaintiff, so carrying on the said profession as aforesaid, and of and concerning the said rumour and report, the Defendant, falsely and maliciously contriving and intending to have it believed, that the Plaintiff had been guilty of a criminal connexion with a married woman, in the presence, &c., spoke and published the several false, &c. words followought to shew ing, of and concerning the said Plaintiff, so carrying on how the speaker

words, merely laid to be spoken of a physician, are not actionable

without special damage: and

if they were so spoken as to convey an imputation upon his conduct in

his profession,

the declaration

connected the

imputation with the professional conduct.

such

such profession as aforesaid, and of and concerning
him in his said profession, and of and concerning the
said rumour and report, that is to say,
"Have you
heard that it is out who are the parties in the crim.
con. affair that has been so long talked about?" (mean-
ing the said rumour and report that a physician at H.
had been criminally connected with a married woman).
And the said C. H. P. demanded who it was; and the
said Defendant falsely, &c. answered, "Dr. Ayre,"
(meaning that the said Plaintiff had been guilty of a
criminal connexion with a married woman, and that he
was the person alluded to in such rumour and report).
By means of the committing, &c., the said Plaintiff has
been greatly injured, &c. Here followed a statement
that divers persons, not named, had refused to have
acquaintance with the Plaintiff, or to have any trans-
actions with him in the way of his said profession, as
they were before accustomed to have, and otherwise
would have had. On the trial before Taunton J. at the
York Spring assizes, in this year, a verdict was found
for the plaintiff on the above count.

In Easter term last, Alexander obtained a rule calling on the plaintiff to shew cause why the judgment should not be arrested. In Trinity term last (June 10th),

F. Pollock, Wightman, and Raines shewed cause. (a) An action lies for imputing adultery to a medical man, such imputation being made concerning him in his profession. It directly injures him in his profession, which is the only safe criterion that can be suggested, and which will be found to agree with the decisions. Thus,

(a) Before Lord Denman C. J., Littledale, Taunton, and Williams Js.

1834.

AYRE against CRAVEN.

1834.

AYRE against CRAVEN.

it is not actionable to say of a counsellor, "he has no more wit than a jackanapes," but it is actionable to say of him," he has no more law than a jackanapes:" (a) the reason of which distinction evidently is, that wit is not, but that knowledge of law is, essential to the profession of a counsellor. The cases are collected in Comyns's Digest, Action upon the Case for Defamation, D. 13. to D. 27., and F. 8. to F. 10., and the same principle will be found to prevail in them. It cannot be contended that an imputation of unchastity may not be so applied to a physician, as to render it highly improbable that he should be treated with that confidence which is essential to his practice. The words may be supposed to have been spoken of him so as to convey an imputation that, by taking advantage of the access allowed him to a female patient, he had intrigued with her and after verdict, the charge set forth in the declaration may be interpreted in any way not inconsistent with the words.

Alexander and Follett (with whom was R. Hildyard), contrà. In the introductory part of the complaint, the discourse is not said to have been of and concerning the plaintiff in his profession, but simply of and concerning the said plaintiff so carrying on the said profession, which are mere words of description. It may be doubtful whether this do not limit the effect of the whole allegation, so as to prevent the plaintiff from calling in aid the averment which occurs afterwards, applying the words spoken to the plaintiff, of and concerning him in his profession. But, independently of this difficulty, a charge of incontinence is not actionable

(a) Per Cur. in Cawdrey and Tetley's case, Godb. 441. citing Palmer's case (Palmer v. Boyer), Cro. Eliz. 342.

without

without special damage. This was held after verdict in Parrat v. Carpenter (a), although there the plaintiff was alleged to be parson of D.; and there is as much ground for saying that a clergyman would be deprived of his cure for incontinence, as that a physician would lose his practice. The cases upon this subject are collected in Selwyn's Nisi Prius, Slander, II. (b), in Comyns's Digest (as cited on the other side), and in Viner's Abridgment, Actions [for Words], D. a., and S. a. to U. a. On reference to those authorities there will be found an universal rule, that, where words have been held to be slanderous as spoken of a physician, they have imputed want of sufficient professional acquirements or skill (c). In Lumby v. Allday (d), the declaration stated that the plaintiff was clerk to a gas light company, and that the defendant, intending to cause it to be believed that the plaintiff was of a bad character, unfit for his situation, and an improper person to be employed by the Company, and to cause him to be deprived of his situation, used words which charged him with incontinence; and the judgment was arrested after verdict. In giving judgment, Bayley J. said, "Every authority which I have been able to find, either shows the want of some general requisite, as honesty, capacity, fidelity, &c., or

(a) Cro. Eliz. 502. S. C. Noy. 64.; and see Gascoigne v. Ambler, 2 Ld. Raym. 1004.

(b) Page 1260. to page 1267. (8th ed. 1831.)

(c) As, "thou art a quack salver,” Vin. Abr. Actions [for Words], (S. a), pl. 10. Allen v. Eaton. "Thou art a drunken fool and an ass; thou never wast a scholar, thou art not worthy to speak to a scholar; this I will prove and justify," Ibid. pl. 11. Cawdry v. Chickley, S. C. Cro. Car. 270.; and Godb. 441. pl. 509. "He is an emperic and mountebank, and a base fellow," Viner ut sup. pl. 12. Goddart v. Haselfoot.

1834.

AYRE

against CRAVEN.

(d) 1 Cr. & J. 301.

S. C. 1 Tyrwh. 217.

B 3

connects