that he was ordered to be prosecuted for a perjury which he had committed; and, so understood, they were unquestionably actionable.

There are in the books various authorities to shew, that the understanding of the hearers is the rule to go by. In a MS. case 1 Viner. 507. it is laid down that the question is only what is understood by the hearers. In Fleetwood v. Curly, Hob. 268. Ld. Hobart says, the slander and damage consist in the apprehension of the hearers; and in Gilbert's cases in law and equity, 117. the rule laid down is, that the words shall be taken in the sense in which the hearers understood them.

In addition to the preceding instances, it may be observed, that it is actionable, falsely and maliciously to speak and publish of another words which tend to disinherit him, or to deprive him of his estateh, or which slander him in his office1, professionk, or trade'; e. g. in speaking of a justice of the peace in the execution of his office, to say that "he is a rascal, a villain, and a liar," is actionable; for the words import a charge of acting corruptly and partiallyTM.

For slander of this kind, an action may be brought before any injury has been sustained; in consequence of the words having been spoken. From the nature of the words, the law implies the injury; hence such words are said to be actionable in themselves.

To maintain an action for slander of title there must be malice either express or implied". Hence where a person thinking he had a right to recover possession of a term for some misconduct of his tenant, and hearing that the term was to be sold, went to the auction and said, the vendor could not make a title; it was holden that an action could not be maintained, there being no proof of malice°.

In Harwood v. Sir J. Astley, in error, 1 Bos. and Pul. N. R., 47. it was contended, that an action could not be maintained, because the words were alleged to have been spoken of the plaintiff, (below) as a candidate to serve in Parlia ment; but it was holden, that the words being actionable in

g 1 Rol. Abr. 37.1. 27.

h Bois v. Bois, 1 Lev. 134.

i How v. Prinn, Salk. 694. Lord Raym. 812. S. C.

k Hardwicke v. Chandler, Str. 1138. 1 Upsheer v. Betts, Cro, Jac. 578, 9.

m Aston v. Blagrave, Str. 617. Lord Raym. 1369. S. C.

n Hargrave v. Le Breton, 4 Burr. 2422. o Smith v. Spooner, 3 Taunt. 246. See also Pitt v. Donovan, 1 M. & S. 639.

themselves (7), it was quite immaterial whether they were spoken of the plaintiff as a candidate or not,

If the plaintiff has sustained any special damage in consequence of words actionable in themselves having been spoken, and seeks to recover a compensation for it, such special damage must be stated in the declaration, with as much certainty as the subject matter is capable of, in order that the defendant may be sufficiently apprised of the nature of the case which is intended to be proved against him, and consequently be prepared to meet it.

By the stat. 21 Jac. 1. c. 16. s. 3. "Actions on the case for words must be commenced and sued within two years next after the words spoken." But by s. 7. "Infant, feme covert, non compos mentis, person imprisoned or beyond sea, may sue within two years after the removal of their respective disabilities."

Of words not actionable in themselves.-Words not actionable in themselves may become so, by reason of some special damage arising from them, e. g. if a person say to a woman, you are a whore," whereby she loses her marriage, or a substantial benefit arising from the hospitality of friends' (8), So if a person slander the title of another,

66

p Geare v. Britton, Bull. N. P. 7. Hatheway v. Newman, B. R. Middx. Sittings, Feb. 17. 1804. S. P. per Lord Ellenborough, C. J.

q 1 Rol. Abr. 35. 1. 15.

r Moore v. Meagher, in error, Exch. Ch. 1 Taunton's R. 39.

(7) The words charged the plaintiff (below) with having murdered his father.

"Words are actionable when spoken of one in an office of profit, which may probably occasion the loss of his office, or when spoken of persons touching their respective professions, trades, or businesses, do or may probably lead to their damage." Per De Grey, C. J. in Onslow v. Horn, 3 Wils. 187.

(8) Calling a married woman or a single one a whore is not actionable, because fornication and adultery are subjects of spiritual not temporal censures: Lord Raym. 1004, except in the city of London, by reason of the custom there to cart whores. 1 Viner, S. 13. But there the words must charge that she was a whore in London; it is not sufficient if the declaration merely allege that she resided in London. Robertson v. Powell, B. R. Sittings at Serjeant's Inn before M. T. 57 Geo. 3. Action for calling plaintiff's wife a whore in London, suggesting the custom of London to cart whores, plaintiffs were nonsuited for want of proving the cus

whereby he is prevented from selling his estate; but in these cases, it is incumbent on the party injured, not only to state and prove the speaking of the words, but also the particular injury which he has sustained; because the words not being actionable in themselves, the special damage is considered as the gist of the action'.

It must also appear", that the special damage was the legal and natural consequence of the words spoken; for an illegal consequence, viz. a tortious act, will not be sufficient.

Two persons cannot join in an action for slanderous words spoken of them, for the injury which the one sustains by the slander is not an injury done to the other. But if defamatory words be spoken of partners in trade', whereby they are injured in their trade, a joint action will lie at the suit of the partners, although the words be actionable of themselves.

It is actionable to republish any slander invented by another, unless the republication be accompanied by a disclosure of the author's name, and a precise statement of the author's words, so as to enable the party injured to maintain an action against the author. This disclosure and statement must be made at the time of republishing the slander; for it will not avail the defendant to make it for the first time in pleading to an action brought by the party injured.

From the preceding remarks it appears, that falsehood and malice, either express or implied, are of the essence of the action for slander and special damage, where the words are not actionable in themselves.

8 Lowe v. Harewood, Sir W. Jones, 196. Cro. Car. 140.

t Browne v. Gibbons, Salk. 206. u Vicars v. Wilcocks, 8 East, 1. x Dyer, 19. a. pl. 112.

y Cook and another v. Batchellor, 3 Bos. & Pul. 150.

z Davis v. Lewis, 7 T. R. 17. Maitland v. Goldney, 2 East, 426. These cases were recognised in Woolnoth v. Meadows, 5 East, 463.

tom. Lord Mansfield said, he could not take notice of such custom unless proved. No proof of it could be got from the town clerk's office, and it was then said that no proof of it had been ever given so as to maintain such actions out of the city courts, but that in the city courts they would take notice of their own custom. Stainton & ux. v. Jones. Sittings after Mich. Term, at Guildhall, coram Lord Mansfield, 1782. MS.

III. Of the Declaration, and herein of the Nature and Office of the Innuendo.

In the declaration, after such prefatory averments as the circumstances of the case may render necessary (9), it must be alleged expressly what words were spoken (10), and that they were spoken and published of the plaintiff falsely and maliciously.

If the words were spoken in a foreign language, it must be averred in the declaration, that the hearers understood such language.

Where the charge alleged against the plaintiff relates to his office, profession, or trade, there it ought to appear on the face of the declaration, that plaintiff was in office, or exercising his profession or traded at the time when the words were spoken, and that they were spoken in relation to his office, profession, or trade.

In an action for words spoken of a person who was a candidate to serve in parliament, it is not necessary to set forth the writ in the declaration. It is sufficient for the plaintiff to state that he was a candidate to serve in the (present) parliament, which cannot exist without a writ to call the parliament together.

In that part of the declaration which states the slander, the words ought to be explained in such manner as they may require. Whilst the pleadings were in Latin, this explanation was introduced by the word " innuendo:" e. g.

a Johnson v. Aylmer, Cro. Jac. 126.
b Price v. Jenkings, Cro. Eliz. 865.
c Yelv. 158.
d Collis v.

Malin, Cro. Car. 282.

e Todd v. Hastings, 2 Saund. 307. Savage v. Robery, Salk. 694.

f Harwood v. Sir J. Astley, 1 Bos. & Pul. N. R. 47. on error, in Exch. Chr.

(9) By rule of court, B. R. M. 1654, it is ordered, "that in actions of slander long preambles be forborn; and no more inducement than what is necessary for the maintenance of the action, except where it requires a special inducement, or colloquium."

(10) "That the defendant spake of the plaintiff, quædam falsa et scandalosa verba, quorum tenor sequitur in hæc verba, &c." was holden insufficient, because it was not an express allegation, that the defendant spake the same identical words. Garford v. Clerk, Cro. Eliz. 857.

"Thou (eundem quer' innuendo) art a thief;" which in a modern declaration would stand thus: "Thou (meaning the said plaintiff) art a thief." The term innuendo is still retained, wherever this part of the declaration is mentioned. In the foregoing instance, it may be observed, that the innuendo is the same in effect as "that is to say." Its office is merely to explain and designate, that the person intended by the word "thou" is the plaintiff. But that the plaintiff was the person intended, must appear from the manner in which the words were spoken, which must be stated in the declaration, namely, that they were spoken of the plaintiff, or to the plaintiff, or in a conversation with the plaintiff, and not from the innuendo only; for if the person of whom the words were spoken be uncertain, an action will not lie; and a plaintiff cannot merely, by the force of an innuendo, apply the words to himself.

When the innuendo is annexed to the charge preferred against the plaintiff, then its office is to give to the words spoken their proper signification, but not to extend the sense of them beyond their natural import. Therefore, where a declaration stated that defendant said of the plaintiff," he has forsworn himself, (meaning that the plaintiff had committed wilful and corrupt perjury,)" it was holden that the words not being actionable in themselves, because they did not necessarily imply that the plaintiff had forsworn himself, in a judicial proceeding, their meaning could not be extended by the innuendo'. But if the defendant had spoken the words concerning some judicial proceeding that had before taken place, in which the plaintiff had given testimony, and these facts had been averred in the declaration, then such an innuendo would have been good; because the words, coupled with the preceding facts, would have shewn, that the defendant meant to charge the plaintiff with perjury punishable by law.

So where the slander was, " he has burnt my barn," the plaintiff cannot sayk, by way of innuendo," my barn full of corn;" because that is not an explanation of the words, but an addition to them. But if, in the introductory part of the declaration, it is averred, that the defendant had a barn full of corn, and also, that in a discourse about that barn, the defendant had spoken the words, an innuendo, that he meant by those words the barn full of corn, would have been good.

g 4 Rep. 17 b. 3 Bulstr. 227.

h Johnson v. Aylmer, Cro. Jac. 126.

i Holt v. Scholefield, 6 T. R. 691. See also Core v. Moreton, Yelv. 27.

k Per de Grey, C. J. in R. v. Horne, Cowp. 684.