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yet he has fuftained no prefent, nor is likely to fuftain any "future damage, nor has he fuffered, or is likely to fuffer any damage or injury, in his high character of member for Surry;" the jury have by their verdict found the contrary and 400/. damages.

Serjeant Glynn for Mr. Horne the defendant-Words of dif paragement or want of ability to ferve you, are not actionable when spoken of a man in an office of credit; to make words actionable, there must be an apparent lofs and damage; they must be fuch words as may draw the cenfure and animadverfion of the law upon the perfon of whom they are fpoken; if the perfon be in office, the words must be fuch as may fubject him to the lofs of his office; if the perfon be of any trade or profeffion, the words must be fuch, as tend to his apparent lofs and damage in fuch his trade or profeffion, or they will not be actionable; there is not the leaft word or allegation in either count, that Mr. Onflow loft his feat in parliament by reafon of the fpeaking of the words; or that Mr. Horne folicited votes at Epfom against him, whereby he might be likely to lofe any future election; the words are laid to be spoken at a meeting of the freeholders of Surry to confider of measures to be taken in fupport of the right of election, and to instruct their members to take measures as reprefentatives of Surry, in that behalf, which was a lawful meeting of the freeholders, affembled together at Epfom, upon a lawful and moft laudable occafion.

Serjeant Jephfon for the defendant-An action of flander is to recover damages, for words fpoken of a perfon who is thereby injured in his reputation, and for words fpoken of a perfon which affect his life, office, profeffion or trade, or which tend to his lofs, or occafion any particular or fpecial damage to him: the prefent action is brought for a fuppofed general damage, which the plaintiff has fuflained by the defendant's fpeaking these words; for there is not the leaft pretence to fay, that the plaintiff has had any fpecial damage thereby, nor is any fpecial damage laid in the declaration, Thefe words are fuppofed to be spoken of the defendant in regard to his office, as being a member of parliament; but whether a feat in parliament is an office or not, mult be fubmitted to the court: with great deference, I think it is not; it is not grantable by the crown, or any other perfon; it is not for life, or during pleafure; a member is a legiflator, or a part of the legiflature; but I think, he cannot properly be filed an officer for the execution of juftice, or any other officer what foever, The cafe in 2 Talk, 694. How. v. Prinn is rather for me than against me.

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If a man fays of a juftice of peace and judge of the court of Marches of Wales, He is a blood-fucker, and feeks after blood, if a man will give him a couple of capons, or half a fcore of weathers, he will take them; yet no action lies, for the words can have no ill fenfe. Mic. 37 & 38 Eliz. B. R. between Sir Chri. Hilliard and Conftable, adjudged. 1 Roll. Abr. 56. pl. 29. Moor 418. pl. 574. S. C. adjudged. Cro. Eliz. 306. S. C. adjudged. Cro. Eliz. 433. judgment in S. C. by the major part of all the judges for the defendant.

So alfo, if a man fays of a juftice of peace, Thou art a bloodJucker, and art not worthy to live in a common wealth, the child not born will curfe thee; no action lies for these words, Mich. 38 &39 Eliz. Pinchbank v. Warwick.

The cafe of Palmer v. Sir James Edward's, Sir Geo. Cooke's Reports 160. was an action for words fpoken of a justice of peace, viz. 1. You robbed the poor, and are worfe than a highwayman. 2 Sett. You villain, you robbed the poor, and are worfe than a highwayman. 3d Sett. You villain, you robbed the poor. 4th Sett. You are worfe than a highwayman. A general verdict was given for the plaintiff, and 57, damages. And upon motion in arreft of judgment, the court held the words, You villain, you robbed the poor, not actionable; and they said the words, You are worfe than a highwayman, are very uncertain, for a papist will fay fo of any proteftant; and the judgment was arrefted. See the cafe at length, for it seems well reported by that very able chief prothonotary of the C. B.

If a feat in parliament is an office, it is an office of credit, and not of profit, so he can fuffer no damage by lofing fuch office: but fuppofing it was an office of profit, fhall Mr. Onflow be liable to lofe it, because Mr. Horne is of opinion, that if he fhould promife, he would not keep his word? Certainly not. This is the first action of the kind, for I cannot find one cafe in the books for words fpoken of a perfon, merely as a member of parliament; as if fuch action would lie, furely we should find many fuch cafes, for there are no perfons in the commonwealth, upon whofe conduct mankind fo freely speak their opi pions, as of members of parliament: and as this is the first, I hope it will be the last cafe of the kind, and that freeholders fhall have free liberty of fpeaking their thoughts and opinions, with refpect to the conduct of their reprefentatives in parliament, upon which every thing that is dear and valuable to the fubject depends, and that this court will arreft the judgment, if either of the counts be not actionable.

This cafe was ordered to stand over until Hilary term last, on the first day whereof Lord Chief Justice Wilmot fat, but refigned his patent that day; and Lord Chief Justice De Grey being that day appointed to fucceed him, the cafe was fpoken to again by the fame ferjeants, who repeated their arguments to the like effect as above, when the cafe was ordered to ftand over till this term, for the opinion of the court.

Lord Chief Justice De Grey-It is moved that judgment in this Judgment of cafe ought to be arrested upon two grounds. 1ft, That no cause the court. of action for words appears upon this record, in either of the counts. 2dly, That the words in the laft count are clearly not actionable, and that intire damages being given upon both the counts jointly, the court cannot pronounce judgment for the plaintiff, upon this record.

As we are all of opinion, that the words in the laft count are not actionable, it is not neceffary for us now to determine, whether the words in the other count are, or are not actionable, so that the judgment must be arrested; for we cannot feparate or divide the intire damages of 400l. (which the jury have given upon both the counts jointly) and say how much thereof they intended to give upon each count.

A declaration may confift of as many counts as a cafe requires, and the jury may affefs intire or diftinct damages on all the counts; in this cafe they have found intire damages on both counts; if the damages had been diftinct, we might have given judgment upon either of the counts (fuppofing that count to be actionable) Dier 369. b. 5 Rep. 108. 1 Roll. Abr. F. pl. 2, 3. And words infufficient may be rejected, where they are laid to be fpoken at one time with other words that are actionable, and judgment may be given on the words which are actionable; for the infufficient words, coupled with the actionable words, are only aggravation; but if at one time the defendant call the plaintiff traitor, and at another time he call him arrant knave and cozener, and the plaintiff brings his action upon the cafe, and alledgeth the faid feveral words to be spoken at feveral times, as feveral caufes of action; there, if not upon guilty pleaded, the jurors affefs damages intirely, judgment fhall be arrested for the whole; for he grounded his action upon two several scandals, where one of them is not actionable. 10 Rep. 131. a. This is, undoubtedly, good law.

These are the words in the laft count, viz. "As to inftructing "our members to obtain redrefs, I am totally against that plan: far as to inftructing Mr. Onflow, we might as well inftruct the

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"winds;

"winds; and fhould he even promife his affiftance, I should not expect him to give it us." This is a civil fuit for a reparation or fatisfaction in damages for a fuppofed private injury; but if every imputation like this, fpoken upon fo public and popular an occafion, was to be deemed actionable, public business would be impracticable.

As far as I can collect for determinations in actions for words, there feems to be two general rules whereby courts of juftice have governed themfelves, in order to determine words fpoken of another to be actionable,

The firft rule is, That the words muft contain an express imputation of fome crime liable to punishment, fome capital offence, or other infamous crime or mifdemeanor; and the charge upon the perfon fpoken of, muft be precife. In the case of Turner v. Ogden. 2 Salk. 696. the words are, "Thou art one of "thofe that ftole my lord Shaftfbury's deer," held not actionable; for though imprisonment be the punishment in those cafes, yet per Holt Chief Juftice, it is not a fcandalous punishment; a man may be fined and imprisoned in trefpafs, for (fays he) there must not only be imprisonment, but an infamous punishment. I think Holt there carries it too far, as to precifion; for it is laid down in Finch's Law 185, if a man maliciously utters any false flander, to the indangering one in law, as to fay, He hath "reported that money is fallen; for he shall be punished for fuck

report." Here is the cafe of a crime and the punishment not infamous; and yet Finch feems to fay an action lies for these words.

The fecond general rule is, That words are actionable when fpoken of one in an office of profit, which may probably occafion the lofs of his office, or when fpoken of perfons touching their refpective profeffions, trades and business, and do or may probably tend to their damage,

It was objected at the bar, on the fide of the defendant, that words fpoken of an officer or magiftrate are not actionable, unless they carry an imputation of a criminal breach of duty: I will not give this my fanction; because I think, for imputation of ignarance to one in a profeffion, or an office of profit, an action will certainly lie, though per Holt, 2 Salk. 694. for imputation of ignorance to a juftice of peace, being only an office of credit, an action will not lie: Holt carried it no farther, than ignorance as to a juftice of peace,

There

There are a great variety of cafes in the books very contradictory, touching words fpoken of juftices of peace, and other perfons in offices of credit, and therefore I fhall not give any opinion concerning words fpoken of fuch perfons, nor concerning calling a man a papist.

These are the two general rules, which I have mentioned, and which have generally governed cafes for fcandalous words. There must be fome certain or probable temporal lofs, or da mage, to make the words actionable; as, to fay, a woman is a whore in London, where she is fubject to be whipt for whoredom; or to impute to a woman want of chastity, who holds an eftate dum fola & cafta fuerit, 1 Lev. 134. But to impute to any man, the mere defect or want of moral virtue, moral du ties or obligations, which render a man obnoxious to mankind, is not actionable.

To apply what has been faid to the laft count in the declaration, which we hold not to be actionable, there doth not appear to the court the leaft prefent damage, or probability of damage likely to happen to the plaintiff, by fpeaking the words in the laft count," as to inftructing our members to obtain redress. "I am totally against that plan;" the defendant doth not point out any mode of inftruction for redrefs, or what kind of redrefs he wishes or defires; whether he defires an application to the King, the parliament, or to a court of justice for redress, doth not appear: whether it was intended to be endeavoured to be obtained by vote, petition, motion, or bill in parliament, doth not appear; fo we think these words injure no body; the next words, other part of the last count are, "For as to inftructing Mr. Onflow, we might as well inftruct the "winds;" the defendant was of opinion, that the plaintiff was wavering as the winds, whereby he meant, that inftructions to him would be ineffectual, or that he would have no good will to ferve the cause of that public meeting of the freeholders of Surry; this is mere opinion, not imputing any thing to Mr. Onflow, whereby he fuftains any prefent damage, nor can we fee any probability of his fuffering any future damage thereby; the remaining part of the words in the laft count are, "And Should ke (meaning Mr. Onflow) even promife his affiftance, I fhould "not expect him to give it us" Mr. Horne's declaring his opinion of Mr. Onflow's promises, cannot be any poffible damage to Mr. Onflow; to be fure, the words cannot be understood to be fpoken in honour of Mr. Onflow; but I will fuppofe them to be spoken moft maliciously, yet we are all of opinion, they are not actionable, let the malice of the defendant have been ever fo great on that occafion. In the cafe of a malicious profecution,

let