dortwll Saw ^rJyool IGibrarg CORNELL UNIVERSITY LIBRARY 3 1924 057 641 908 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31 924057641 908 SELECT , CASES ON TORTS. PART II. TABLE OF CASES. Page Agars ». Lisle 393 Alexander v. Southey 434 Anonymous 399, 400, 630, 647, 706, 730 Aston v. Blagrave 723 Attersol v. Briant 419 Austin v. Culpepper 589 v. White 776 Ayre v. Craven 742 Baker v. Bolton 354 v. Alorfue 717 v. Pierce 649 Baldwin v. Cole 399 v. Elphinston 579 Ball v. Bridges 634 Barham v. Nethersall 636 Barker v. Ringrose 713 Barnett v. Allen 680 Bayly v. Maynard 641 Beavor v. Hides 653 Beckwith v. Elsey 394 Bell v. Stone 593 Bellamy v. Burch 749 Bill v. Neal 714 Birchley's Case 7,07 Bittridge's Case 637 Bloodworth v. Gray 781 Boardman v. Sill 421 Bristol v. Burt 537 Brooker v. Coffin • 689 Brough v. Dennison 634 Burditt v. Hunt 558 Burroughes v. Bayne 477 Bury v. Chappell 776 Bushel v. Miller 401 Canot v. Hughes 451 Carey v. Berkshire R.R. 369 Carr v. Clough 564 Carslake v. Mapledoram 778 Castleman v. Hobbs 632 Caunce v. Spanton 464 Cawdry v. Highley 714 Ci'ely v. Hoskins 646 Chapman v. Lamphire 722 Cheese v. Scales 610 Christie v. Cowell 658 Clement v. Chives Clutterbuck v. Chaffers Coleman v. Godwin Core v. Morton Cornelius v. Van Slyck Cox v. Lee Croford v. Blisse Crook v. Avery Cropp v. Tilney Cross v. Guthery Crossier v. Ogleby Davies v. Nicholas Davis v. Buffum v. Gardner v. Miller Dawson's Case Day v. Bream v. Buller Delacroix v. Thevenot Devereux v. Barclay Dexter v. Taber Dobson v. Thornistone Dod v. Robinson Donne's Case Drake v. Shorter Draper v. Fulkes Dufresne v. Hutchinson Duke of Brunswick v. Harmer Page 604 581 657 636 701 619. 642 70ft 590 365 400 451 567 785 652 635 583 727 582 431 692 722 716 630 415 392 421 584 391 Eason v. Newman Eden v. Lexington & Frankfort R.R. 373 England v. Cowley 524 Ering v. Streete 647 Farrar v. Rollins 569 Featherstonhaugh v. Johnston 429 Fermor v. Dorrington 631 Fleetwood v. Curley 710 Forbes v. King 606 Ford v. Monroe 368 v. Primrose 673 Forsdick » Collins 428 Foster v. Browning 645 Fothergill v. Lovegrove 487 FouLles v. Willoughby 456 Foulger v. Newcouib 765 IV TABLE OP CASES. Fowler v. Dowdney v. Hollins Fox v. Lapthorne Fray v. Fray Gallwey v. Marshall Garr v. Sclden George v. Wiburn Goldstein v. Foss Green v. Dunn v. Hudson River R.R. Greenway v. Fisher Griffith's Case Gurneth v. Derry Hall v. Hennesly Hankinson v. Bilby Harman v. Delany Harrison v. Stratton v. Thornborough Hanley v. Sidenham Hawley v. Barber Ilavward v. Seaward Heald v. Carey Hough v. London & N. W. R.R. Hext v. Yeomans Higgins if. Butcher 353 Hilliard v. Constable Hiort v. Bott Iloare v. Silverloek Hoffman v. Carow Holland v. Stoner Holsworth's Case Holt v. Astgrigg v. Scholefield Hopkins v. Beedle Hunt v. Algar v. Bell Plurst !>. Gwennap Irwin v. Brandwood Jacobs ». Fyler Jacoby v. L:iussatt Joannes v. Burt Jones v. Fort v. Heme ■ v. Littler v. M'Dowell Kelly v. Partington Kempe's Case Lancaster v. French Leonard v. Tidd Loring v. Mulcahy Lovell v. Martin Lumby v. Allday Lymbe v. Hockley Page Page 67G Mallalieu v. Laugher 43/ 503 Mason v. Jennings 588 721 M'Cabe v. Foot 684 617 M'Combie v. Davies 416 McCormick v. Pa. C. R.R. 571 758 Miller v. David 789 770 Minors v. Leeford 639 394 Mires v. Solebay 395 C01 Morse v. Crawford 556 424 Mulgrave v. Ogden 391 3S2 Musgrave v. Bovey 727 436 6:S4 Nash v. Primm 367 648 , Newm.in v. Kingerby 720 Newton v. Masters 647 629 Nichols v. Newsoin 540 677 Nixon v. Jenkins 411 726 732 Oldham v. Peake 655 651 Onslow v. Home 728 629 Osborn v. Gillett 355 628 441 Parker v. Godin 402 470 Parrat v. Carpenter 708 498 Passie v. Mandford 633 629 Peacock v. Leach 721 354 Pemberton v. Coles 753 707 Perkins v. Smith 402 529 Petre v. Heneage 398 611 Pliilpott v. Kelley 44:^ 550 Pillot v. Wilkinson 488 641 Poe v. Mondford 708 393 Powell v. Sadler 419 640 Price v. Jenkings 678 660 687 Redman v. Pyne 718 607 Richardson v. Atkinson 401 733 Riley v. Boston Water Power Co. 561 428 Roberts v. Camden 670 v. Charaplin 699 763 Rookeby, his Case 395 Ross v. Johnson 405 702 Russell's Case 628 544 782 Savile v. Jardine 659 439 Saxeby v. Wynne 437 652 Seaman v. Bigg 715 746 Secor v Harris 771 695 Serle v. Mander 644 Severin v. Keppel 414 787 Sheffill v. Van Deusen 587 706 Sheppard v. Wakeman 786 Sherwood v. Chace 696 726 Shields v. Yonge 376 553 Shipwick v. Blanchard 412 566 Simmons v. Lillystone 475 424 Skelton v. Earth 640 738 Skinner v. Housatonic R.R. 369 778 Smith v. Hobson 777 TABLE OP CASES. Page Page Smith v. Young 420 Thurston v. Blanchard 551 v. Wood 580 Tinkler v. Poole 403 Snag v. Gee 633 Todd v. Hastings 719 Snyder v. Andrews 586 Tomlinson v. Brittlebank 674 Solomons v. Dawes 411 Towne v. Lewis 467 Somers v. House 648 Traylor v. Horrall 548 Southam v. Allen 720 Turner v. Campion 644' Squire v. Johns 712 v. Ogden 651 Stafford v. Green 688 Stanton v. Smith 725 Van Rensselaer v. Dole 686 Steele v. Southwick 625 Vaughan v. Watt 452 Stephens v. Elwall 426 Villers v. Monsley 591 Stevens v. Curtis 547 Steward v. Bishop 613 Ward v. Pool 641 Stich v. Wisdome 632 Watkins v. Woolley 431 Summersett v. Jarvis 433 Watts v. Fraser 582 Syeds v. Hay 407 Wellington v. Wentworth 555 Wetherhead v. Armitage 720 Talbot v. Case 635 Wharton v. Brook 718 Taylor v. Hall 778 Wheelock v. Wheelwright 535 v. How 578 Whittington v. Gladwin 737 v. Perkins 776 Williams v. Bickerton 645 Terry v. Hooper 717 v. Gesse 452 Thomas v. Jackson 736 v. Merle 546 Thompson v. Bernard 673 Woolnotte v. Meadows , 663 Thorley v. Kerry 594 Thorogood v. Kobinson 465 Youl v. Harbottle 410 SECT. V.} HIGGINS V. BUTCHER. . 353 Lord Alvanley, in summing up to the jury, said, that what the defendant's counsel had stated went to the damages only; that he was aware the late Lord Kenyon had laid down a different doctrine, and had held that such evidence went to the ground of the action itself: he thought differently. Be was of opinion that the infidelity or misconduct of the husband could never be set up as a legal defence to the adultery of the wife ; that alone which struck him as furnishing any defence was, where the husband was accessory to his own dis- honor ; he could not then complain of an injury which he had brought on himself and had consented to ; but that the wife had been injured by the husband's misconduct, could not warrant her in injuring him in that way, which was the keenest of all injuries. He therefore directed the jury to consider the evidence as going in mitiga- tion of the damages only, and not as furnishing an answer to the action, or as entitling the defendant to a verdict. Verdict, £200 damages? HIGGINS v. BUTCHER. In the King's Bench, Trinity Teem, 1606. [Reported in Yeherton, 89.] The plaintiff declared that the defendant assaulted and beat, &laintiff's right to the action must be denied, as it has to be determined by common-law principles. 1. At common law, a party injured by an act which is felonious can- not seek civil redress for it until the matter has been investigated and disposed of before the appropriate Dribunal. The avowed object of the rule is to prevent the criminal justice of the country from being de- feated, and consequently, after a verdict and judgment either of acquit- tal or conviction, this rule, which is founded upon the general policy of the law, has no further operation. The existence of this rule has not been recognized in this State. In the case of Williams v. Hedricks, 1 it was expressly repudiated as having been based on a mistaken policy, and the court held that reason and justice alike dictate that for every civil injury compensation should be made ; and that when a person committed a criminal offence, he was not only liable to a prosecution for the public wrong, but also to an action for the civil injury. This rule has also been changed by express legislation. By the Revised Statutes it is enacted (chap. 28, § 4) that "the commission of a felony shall not stay or merge any civil remedy of the party aggrieved against the felon." This statutory provision, it is true, does not have any effect upon the decision of the questions arising in this case, because the suit was commenced before the Revised Statutes took effect; but we regard this enactment as merely declaratory of the law as it had been settled and expounded by this court, and not as changing an existing rule of law, which the leg- islature deemed it proper to alter. 2. But according to the principles of the common law, injuries affect- ing life cannot, in general, be the subject of a civil action. In other inferior felonies the civil remedy is merely suspended until after the conviction or acquittal of the supposed felon ; but for injuries to life, the civil remedy is considered as being entirely merged in the public offence. This was said to be the established common-law doctrine in the case of Baker v. Bolton. There the husband and wife were riding on the top of the stage which overset, and the wife was so injured that she died ; the action was brought by the husband for the loss of society, &c, and Lord Ellenborough held that there could be no recovery for 1 Printed Decisions, 203. SECT. V.] EDEN V. LEXINGTON, ETC., RAILROAD COMPANY. 375 distress of feeling and loss of society, &c, except from the moment of the injury to the wife up to the time of her death. The cause of action for injuries to the person dies with the person injured, and it follows as a necessary consequence that, the cause of action having itself abated, no separate action can be maintained for such damages as are exclusively consequential. But for aggravated injuries to the person of the wife or child the husband or parent has an independent and separate cause of action for the loss of the society of the wife, or the services of the child, as the case may be. This cause of action does not abate by the subsequent death of the wife or child, but the death of either affects^the extent of the recovery, as by that event all further claim to the society of the one, or the services of the other, ceases and determines. And the rule still prevails, although the death that produces this effect results from the same injury which gives rise to the action. The reason of this seems to be, that all inju- ries affecting life, caused by the misconduct of another person, involve the commission of a public wrong, which merges the remedy for all private loss, arising after death has occurred, and occasioned by it. Con- sequently the death of the person injured has precisely the same effect on the civil remedy, whether it results from the injury inflicted or from natural causes. In either case the estimate of damages stops at the moment of death. It was decided in New York that where a childhas been killed by the wilful or negligent conduct of a third party, the parent has a right to recover not only for the lost services of the child, but also for the ex- penses attending the sickness of the wife, produced by the shock which the death occasioned to her feelings. 20 Wend. 210. But in a later case it has been decided, in the same State, that such third party is only liable to the amount of the medical charges and the funeral expenses of the child. 3 Comst. 489. A similar decision has been given iu Massachusetts. 1 Cush. 475. And in the latter State it has been held that an action cannot be maintained by a father to recover damages for the loss of his child, in consequence of the death of the child, occasioned by the carelessness or fault of the agents or servants of a railroad corporation. The law on this subject has been lately changed in England by stat- ute, and now, in that country, the person who would have been liable, if death had not ensued, is liable to an action for damages notwithstand- ing the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony. An act has been passed by the legislature of Massachusetts on the same subject, and also, we believe, by the States of New Hampshire and Connecticut. In this State the common-law doctrine has not been altered. 376 SHIELDS V. TONGB. [CHAP. VII. The injury complained of in this case is the loss of the society of the ■wife, and of her assistance in the management of the husband's domes- tic affairs. According to the existing law there can be no recovery for this injury, inasmuch as the death of the wife was instantaneous, and it is only for the loss that is sustained by the husband in this respect, from the moment of the injury up to time of the death of the wife, for which any recovery can be had. Wherefore the judgment is affirmed. SHIELDS v. YONGE. Supreme Court, Georgia, April Term, 1854. [Reported in 15 Georgia Reports, 349.] This was a suit by George Shields, against George Yonge, as super- intendent of the Western & Atlantic Railroad, for the death of a minor son of the plaintiff, caused by the negligence of employes of the Western & A. R. R. One count in the declaration alleged that the son was upon the train as a passenger, by contract for safe-carry- ing, with the father. Another count alleged that he was employed on the train as a fireman, by contract with the father. The damages alleged were, loss of service until the son arrived at the age of twenty- one years; loss of service during the one hour during which the boy survived after the accident occurred ; and a special damage, by reason of the grief to the mother, causing an attack of sickness, and conse- quent loss of service to the plaintiff. On motion, the presiding judge nonsuited the plaintiff, on the ground that there was no good cause of action set forth in the dec- laration. This decision is assigned as error. Wright and Johnson, for plaintiff in error. Akin and Underwood, for defendant in error. By the court, Benning, J., delivering the opinion. Is either count in the declaration good? In Baker v. Boiton and Others, Lord Ellen- borough is reported to have used these words : "In a civil court the death of a human being could not be complained of as an injury." No authority is cited for this opinion. In Comyns's Digest, Trespass, B, 5, it is said, " So it (trespass) lies by a master, for the battery of a servant, per quod, &c, after the death of the servant ; " and 2 Roll. 568, L, 42, is cited. On the contrary, in Bacon's Abridgment, Master and Ser- vant, O, it is laid down that "if a man beats another's servant to SECT. V.] SHIELDS V. YONGE. 377 that degree that he dies thereof, the master loses his action, and must proceed by indictment, for the private injury to him is drowned in the general injury to the public ; " and for this is cited, among other authorities, the same, 2 Roll. Abr. 568. Rolle's Abridgment itself is not within my reach ; and, therefore, I cannot find out which position it supports, — that of Bacon or that of Comyns. Let it be admitted, however, that Rolle's Abridgment supports the position of Bacon, and that that position is right, what, then, does that position amount to? Blackstone, it is conceived, answers this question. Blackstone says, "In all cases, the crime includes an injury, — every public offence is also a private wrong, and somewhat more, — it affects the individual, and it likewise affects the community." " Mur- der is an injury to the life of an individual; but the law of society considers, principally, the loss which the State sustains, by being deprived of a member, and the pernicious example thereby set for others to do the like. Robbery may be considered in the same view, — it is an injury to private property; but were that all, a civil satis- faction, in damages, might atone for it. The public mischief is the thing, for the prevention of which our laws have made it a capital offence. In these gross and atrocious injuries the private wrong is swallowed up in the public. We seldom hear any mention made of satisfaction to the individual, the satisfaction to the community being so very great. And, indeed, as the public crime is not other- wise avenged than by forfeiture of life and property, it is impossible ' afterwards to make any reparation for the private wrong, which can only be had from the body or goods of the aggressor. But there are crimes of an inferior nature, in which the public punishment is not so 6evere; but it affords room for a private compensation also. And herein the distinction of crimes from civil injuries is very apparent. For instance, in the case of battery or beating another, the aggressor may be indicted for this, at the suit of the king, for disturbing the public peace, and be punished criminally, by fine and imprisonment; and the party beaten may also have his private remedy, by action of trespass, for the injury which he in particular sustains, and recover a civil satisfaction in damages." 4 Black. Comin. 6. According to this, in "gross and atrocious injuries the private wrong is swallowed up in the public," but is not "in crimes of an inferior na'ure.'' What is meant by gross and atrocious injuries? Those which are " avenged by forfeiture of life and property, " or, perhaps, by forfeiture of property only. Those certainly are meant which are avenged by such a forfeiture as renders it "impossible afterwards to make any reparation for the private wrong ; " and a forfeiture of property only is such a forfeiture as does this. 378 SHIELDS V. YONGE. [CHAP. VII. What "injuries" are those which are so avenged? All of the degree of felony. " Felony, in the general acceptation of our English law, comprises every species of crime which occasioned, at common law, the forfeiture of lands and goods." 4 Black. Comm. 94. And, as to felonies, Blackstone also says : " Not only all offences now capital are in some degree or other felony, but that this is likewise the case with some other offences, which are not punished with death : as suicide, where the party is already dead; homicide, by chance-medley or in self- defence ; and petit lareeny or pilfering, — all which are (strictly speak- ing) felonies, as they subject the committer of them to forfeitures.'' Speaking, again, of homicide, " by misadventure and self-defence," he says, " The penalty inflicted by our laws is said, by Sir Edward Coke, to have been, anciently, no less than death; which, however, is, with reason, denied by later and more accurate writers. It seems rather to have consisted in a forfeiture, some say, of all the goods and chattels " (i. e., of all that, at common law, could be reached for satisfaction of a debt) ; " others of only a part of them, by way of fine or weregild. But the delinquent has now, and has had, as early as our records will reach, a pardon and writ of restitution of his goods, as a matter of course and right. And, indeed, to prevent this expense, in cases where the death has notoriously happened by misadventure or in self-defence, the judges will usually permit (if not direct) a general verdict of acquittal." lb. 188. The amount of this is, that anciently homicide, even by misadventure or in self-defence, was a felony ; and that " now " it is no crime at all, — now it is " excusable." And this is the same as saying that by the English law all homicide is, and has always been, either felonious or innocent ; as saying that there neither is, nor has been, any intermediate kind, that may rank as a misdemeanor. Indeed, his division of homicide is into three kinds, — justifiable, excusable, and felonious ; and in making this division he places homicide by misadventure and in self-defence under the head of " excusable." By the ancient law, it would have been to be placed under the head of felonious ; since it has got to be excusable, it may, without impropriety, be said to have become in- nocent ; that is to say, to have become a sort of homicide that is not an injury of any kind, either public or private. When, therefore, Blackstone says, that in "gross and atrocious in- juries the private wrong is swallowed up in the public," he in effect says that the private wrong is so swallowed up in all homicides that are injuries, — for" all homicides that are injuries at all are injuries which amount to felonies ; and in all felonies the private wrong is so swallowed up. But how " swallowed up " ? What does he mean by these words ? SECT. V.J SHIELDS V. TONGB. 379 Does he mean that the private injury is merged in the public, so as to be for ever gone ; or does lie mean that it is merely merged for a time, — that it is only suspended until the public injury shall have been avenged? Manifestly he means the latter; for he puts the proposi- tion, that after reparation has been made for the public wrong, no reparation is to be made for the private wrong ; not upon the ground that no reparation is then due for that private wrong, but upon the ground that it is practically impossible that reparation for it should be made, — all out of which reparation could be made having "already been used up in making reparation for the public wrong ; all having gone in forfeiture to the public. This is the same as saying, that if, after reparation is made to the public, there is any thing left, out of which reparation may be made to the private man, he will be entitled to reparation, — that is, that the private man has a right to reparation, after reparation to the public; but that, practically, this right is nugatory, as reparation to the public consumes all that he who is to make reparation has. Now, that this swallowing up of the private injury in the public, means, with respect to all injuries other than homicides, this sort of suspension merely of the private injury, is well established. Hale says, " By course of common law, A. steals the goods of B., viz., fifty pounds in money ; A. is convicted and hath his clergy, upon the pros- ecution of B. B. brings a trover and conversion for this fifty pounds, and upon not guilty pleaded, this special matter is found and adjudged for the plaintiff, because now the party hath prosecuted the law against him, and no mischief to the Commonwealth; but it was held that, if a man feloniously steal goods, and before prosecution by indictment the party robbed brings trover, it lies not, for so felonies should be healed." 1 Hale, P. C. 546. To the same effect are Crosby v. Leng ; 2 1 Chitty, Cr. Law, 5. Be the reasons for allowing a suit for the private injury, after the accomplishment of a suit for the public injury, what they may, they are plainly as applicable to injuries by homicide as to any other felo- nious injuries; that is to say, in all cases in which the maxim of, actio personalis moritur cum persona does not govern. This maxim cuts off the right of suit by the party killed and his representatives, but not that of his master, if he has one. But in the case of the man- slaughter of a man's servant, why should not the man, after he has prosecuted the offender to conviction, and done his whole duty to the public, be allowed to sue for his private redress, in the same manner as those who have been robbed are, after they prosecute the robber to conviction, allowed to sue for their private redress ? There seems to 1 12 East, 409 ; 17 Ves. 327. SECT. V.] SHIELDS v. YONGE. 381 This is the English rule with respect to misdemeanors ; and this Georgia has adopted. This, therefore, is the rule applicable to homi- cides of the degree of misdemeanors ; that is to say, to homicides which are involuntary manslaughters, in the performance of a lawful act, " where there has not been observed necessary discretion and caution." And of this degree of homicide is the homicide described in the dec- laration. That homicide is alleged to have been occasioned by the negligence of the superintendent of the railroad, Wadley, whilst con- veying the son of the plaintiff over the railroad ; that is, whilst in the performance of a lawful act. If this allegation is true, Wadley was guilty of involuntary manslaughter, in the performance of a lawful act ; that is to say, was guilty of a misdemeanor, and not of a felony. 1. It follows, therefore, that the private injury which resulted from the homicide, was not merged in the public injury, or suspended until after that had been avenged. This being so, did this plaintiff, the father of the minor son killed, sustain that private injury, or any part of it ? Is the right in him to prosecute this suit? The first count in the declaration alleges that Wadley, the super- intendent, received into the cars, &c, " William Shields, the son and servant of the plaintiff, an infant of the age of eighteen years, as a passenger, &c, to be carried," &o. ; and that by the negligence of Wadley, the cars, &c, ran off the track, whereby William Shields was so greatly injured as to die of his injuries within an hour. 2. May a father treat his minor son as his servant, and sue for an injury to the son, as for an injury to a servant? If the son be old enough to render service, the father may. Flemington v. Smithers ; x Hall v. Hollander ; Smith, Master and Servant, 83, 84. In this case, the son, being eighteen, was old enough to render service. It follows that the father, in this case, had the right to sue in the manner in which he has sued, in the count aforesaid, the first count in the declaration ; and, therefore, that the decision of the court below, sustaining the demurrer to that count, was wrong. The ques- tion as to what is the measure of damages, in such a case as that dis- closed in that count, is not made, and could not be made, on this demurrer. We may be allowed, however, to refer to Smith's Master and Servant, 83-86, and to the citations for those pages, as con- taining what may be useful in investigating that question. The second count differs from the first in this, that it alleges the said son and servant of the plaintiff to have been received by the superintendent Wadley as a hireling, to perform certain services 1 2 Carr. & P. 292. 882 GREEN V. HUDSON RIVER RAILROAD COMPANY. [CHAP. VII. about the cars, &c, for which the plaintiff was to be paid. It alleges that the injury, resulting in the death of the son, was brought about by the negligence of Wadley and his servants. Now, Wadley, in hiring the minor son, acted simply as agent for the State. He was the State's superintendent of the State's road. Wadley and his servants, and this minor son, after his hiring, were, therefore, all fellow-servants of a common principal, — the State. And this suit is, in effect, against that principal. Now, the question is, does an action lie against the principal for an injury done to a servant, by a fellow-servant, at a time when both servants are acting in the course of their common employ- ment? 3. The answer to this question seems to us to be well given in a late case in the English Exchequer of Pleas. In that case the court said : " The principle is, that a servant, when he engages to serve a master, undertakes, as between him and his master, to run all the ordi- nary risks of the service, and this includes the risk of negligence on the part of a fellow-servant, whenever he is acting in discharge of his duty, as servant of him who is the common master of both." Huchinson v. Railway Co. 1 To the same effect is Priestly v. Fowler. 2 The t princi- ple, as thus laid down, is recognized by this court in Scudder v. Woodbridge. 8 It follows that, in this second count, the plaintiff sets forth no sufficient cause of action ; and that, therefore, the demurrer was properly sustained. But, as the demurrer to the first count was improperly allowed, the judgment allowing that demurrer ought to be reversed, and the case ought to be reinstated. 4 GREEN" v. THE HUDSON RIVER RAILROAD COMPANY. Court of Appeals, New York, January, 1866. [Reported in 2 Keyes, 294.] Leonard, J. This case involves but a single proposition. It is, whether an action can be maintained by a husband for damages aris- ing from the instantaneous killing of his wife by the negligence of the defendants. The case comes up on demurrer to the complaint for not stating facts sufficient to constitute a cause of action. The complaint ' states that the wife became a passenger on the de- fendants' cars ; the legal obligation to carry her safely ; that she was i 6 Exoh. R. 351, 352. 2 3 M. & W. 1. '1 Kelly, 198. * James v. Christy, 18 Mo. 162, aco. — Ed. SECT. T.J GEEEN V. HUDSON ETVEE EAILEOAD COMPANY. 383 killed, while a passenger, by the carelessness of the agents of the com- pany, whereby the plaintiff lost the comfort and assistance of his wife in his domestic affairs, which he would otherwise have had, to his dam- age of fifteen thousand dollars. The rule at common law is well settled that no damages can be re- covered by action for injuries resulting in immediate death. Actions for injuries to the person abate, by the common law, by death, and cannot be revived or maintained by the executor, administrator, or heir of the deceased. The plaintiff claims a distinction, that his action is not brought for the injuries sustained by his wife, but for his own loss, by being de- prived of her society and assistance : something in the nature of the injury sustained by the husband in actions for crim. con. The rule is different, however. It may be remarked, also, that in the latter case, the wife being alive, there is a certainty that the hus- band might, but for the act of the seducer, have continued to enjoy her society. It is of no practical utility to search for the reason of the rule. It remains somewhat obscure. "Whether it arose from the senti- mental reason, that the destruction of life by negligence was an injury that could not be compensated in damages, as suggested by a learned judge, Baron Parker, in an English case, or from the policy of the law to secure a greater safety to life and limbs by merging or drowning the right to damages by a civil action in the felony resulting from the killing of a human being by the negligent act of another, thus insuring the co- operation of the next of kin, as may be supposed, in a vigorous prosecu- tion of the criminal, and preventing the composition or settlement of such offences, as I am inclined to believe, it is now of little consequence to inquire. It is sufficient that the rule is settled so firmly that courts would travel beyond their province into the boundaries of legislation by any attempt to alter it, or to create, by their decision, causes of action not before known. The parent cannot, at common law, recover for the loss of the ser- vices of his child, nor the wife or child for the loss of the care, support, and nurture of the husband or father, where his death has been brought about by the act of another, whether negligent or wilful. The loss in each of these cases is of the same character as that sustained by the plaintiff. These are injuries for which the law formerly afforded no re- dress in damages. Recently the legislature have intervened by enact- ment in this State, and in several other States of the Union, and also in Great Britain, and the common-law rule has been modified so as to give a right of action for the benefit of the wife and next of kin of the deceased by the personal representatives where the party in- jured might have recovered damages in respect thereof, if death had 384 GREEN V. HUDSON EIVEH KAILROAD COMPANY. [CHAP. VII. not ensued. Session Laws, 1847, c. 450, amended in 1849, c. 256 ; R. S., vol. iv. pp. 526, 527 (Edmond's ed.). This modification does not extend to giving a right of action to the husband, where his deceased wife could have maintained an action in conjunction with her husband, for an injury to her, if death had not ensued. The husband must wait till legislative wisdom has modified the rule of law in his favor, too, before he can maintain such an action as the present one. But two cases can be found in the reports of decisions in this State, giving the slightest authority for bringing this action, and those, as re- ported, will not be found, on a critical examination, at variance with the former current of authority, or will be found to be remarks not called for by the case then befbre the court. The first is the case of Ford v. Monroe. It appears from the facts, as reported, that the plain- tiff recovered for the loss of the services of his son, a child often years, killed by the negligence of the defendant's servant in driving a gig. There appears to have been no question raised or considered in respect to the cause of action, except only as to the proof of the relation of master and servant existing at the time, and the allegation of special damage in the declaration, and the proof of the direct consequential relation of the damage to the act complained of. The small amount of the recovery, only $200, might lead to the inference that the recovery was for the expenses of interment, or that some care and expense were bestowed in an attempt to recover the child. The charge of the judge, that the plaintiff would be entitled to recover for the services of the child till he became twenty-one years of age, if the act was caused by the negligence of the servant, leads to the inference that the recovery was upon a ground analogous to that urged in the case at bar. It does not appear that any exception was taken to the charge, or that it was made the ground of the application for a new trial, and the subject is not referred to in the opinion of the court in the most distant manner. Bronson, J., who was one of the judges in the case of Ford v. Mon- roe, says, in the subsequent case of Pack v. The Mayor, &C., 1 where the court below had charged that the plaintiff could recover for the prob- able pecuniary profit of his child's services, until he became of age, the child having survived the injury an hour and a half, that he has " a strong impression that the father could recover nothing on account of the injury to the child, beyond the physician's bill and funeral ex- penses," citing Reeve's Dom. Rel., and the case of Ford v. Monroe, as authority for the position. Unless the memory of Judge Bronson served him for something not to be found in the report of the case of Ford v. Monroe, he would hardly have referred to it as authority for 1 3 N. Y. 493. SECT. V.] GREEN V. IIUDSON RIVER RAILROAD COMPANY. 385 the position stated in Pack v. The Mayor. The other case cited by the plaintiff's counsel, from the reports of this State, is that of Lynch v. Davis, a decision of the special terra of the Supreme Court, reported in 12 How. 323. That action was brought by the plaintiff, as the administrator of his wife, against the defendant, for causing her death by malpractice as a physician. The defendant demurred to the complaint, and the court very properly sustained it. The action appears to have been brought under the act of 1847, which gives an action to the personal represent- atives of the person injured and dying, when the injured person, if living, might have maintained an action. The judge says that the action would have been the husband's had she lived, though she, being the meritorious cause, must have been joined. The whole authority of the case is that the statute does not give an action to the personal representatives of a married woman against any person for wrongfully causing her death. The judge also states, as a fact within his own knowledge outside of the case before him, that the plaintiff had brought an action in his own behalf, founded on the breach of the defendant's obligation under his employment as a physician, for the damages sustained by reason of the loss of the society and aid of his wife, and had recovered such damages as a jury thought fit to award him. The particulars of that other action are not stated. It is highly probable that the death of the wife was not instantaneous, and that the husband had bestowed his care and incurred expense, as well as sustained the loss of her society and aid, during the time she survived after the commission of the acts of malpractice which caused her death, so that a technical right of action existed for the recovery of damages by the husband in his own right. It would then have been in the power of the jury to have measured the damages very liberally in such a case, without violating any rule of law. The dicta of the judge can be explained only upon the theory suggested : — " The judge says in that case, obiter, that the common law gave the husband and the father a right to recover of the wrong-doer the pecu- niary injury he had sustained by reason of the killing of his wife or child. The husband had availed himself of this fight of action, in this very case, to recover damages for the loss of his wife. The object of the act of 1847 was to extend the same rule to the wife and child, so that they also might recover the pecuniary damages they had sustained by the wrongful killing of the husband or father." The learned judge cites no authority for the rule of the common law as stated by him, and I think he would be unable to find it laid down to that extent. He is, I think, also under some error in respect to 25 886 GREEN V. HUDSON RIVER RAILROAD COMPANT. [CHAP. VII. the object of the act of 1847. -The purpose of that act was to give a right of action where none existed before on account of the death of the person injured. It was to remove the disability arising from the common-law rule that personal actions died with the person. The English act giving the same remedy as that contained in our act of 1847, enacted in the Parliament of Great Britain, August 26, 1846, a few months only prior to the adoption of the act by the legisla- ture of this State, recites the rule of the common law thereby modified in these words, viz. : " Whereas no action at law is now maintainable against a person who, by his wrongful act, neglect, or default, may have caused the death of another person, and it is sometimes right and ex- pedient tha.t the wrong-doer in such case should be answerable in damages for the injury so caused by him ; " thus stating the mischief and the remedy intended. The two cases referred to are not authority for the principles invoked by the plaintiff, which are necessary to sustain his action, except in a very inferential and doubtful manner. At all events, they cannot overthrow the rule of the common law before stated, and which may be found more fully in the following authorities : Toller's Executors, 436 ; Whitford v. Panama Railroad Co. ; x Oldfield v. The New York & Harlem Railroad Co. ; z Sedgwick on Damages, 551 (marginal). The subject was very fully and learnedly considered by Justice Bacon, when this case was before him at special term, in an opinion afterward adopted at the general term on appeal, and now reported in 28 Barb. 9. The case required no further discussion than is so well and carefully given in 28 Barbour, and I am conscious of having added very little to the subject, although I have examined it at some length. The judgment should be affirmed with costs. Hunt, J. The complaint alleges that the plaintiff was the husband of Eliza Green ; that, on the ninth day of January, 1856, the said Eliza was a passenger on the train of the defendants' cars, proceeding from Albany to New York; that, by the gross carelessness and unskil- fulness of the agents of the defendants, a collision occurred, by means of which the said Eliza was then and there killed, " whereby the plain- tiff has lost and been deprived of all the comfort, benefit, and assistance of his said wife in his domestic affairs, which he might and otherwise would have had, to his damage," &c. The defendants demurred to this complaint, as not containing facts sufficient to constitute a cause of action. The general term of the fifth district rendered a judgment for the defendants upon this demurrer. i 23 N. r. 470. » 14 N. Y. 416. SECT. V.] GREEN V. HUDSON RIVER RAILROAD COMPANY. 387 The plaintiff bases his claim upon the legal idea that he was entitled to the services of his wife during her life, and that the defendants, by carelessly and illegally shortening her life, destroyed the value of such services, and that he thereby suffered a pecuniary damage. The hus- band is, by the common law, entitled to the services of his wife for his own pecuniary benefit. He may sue for and recover the value of her labor, as a debt due to him, in the same manner that a father is entitled to the services of his minor child, and may demand, and is entitled to re- ceive, her wages or the value of her labor, in whatever form it may be presented. That this is the rule, unless such demand is limited to the life of the wife, and is destroyed by her death, is not denied. The plaintiff cites in his favor Cross v. Guthery, decided in the Su- perior Court of Connecticut in 1794. The plaintiff alleged in that case that he had employed the defendant to perform a surgical operation upon his wife, the defendant being a surgeon, and declaring himself competent well and skilfully to perform the operation ; that the opera- tion was performed so ignorantly, negligently, and unskilfully, that the wife died in a few hours thereafter. He further alleged that he had thereby been put to great cost and expense, and deprived of the ser- vice, company, and counselship of his wife, and claimed damages to £100. The jury found for the plaintiff £40 ; and, on appeal, the court sustained the verdict, saying that the rule urged by the defendant, that the private injury was merged by the death of the wife in the public offence, was applicable only to capital crimes, where, from necessity, the offender must go unpunished or the inj ured individual go unre- dressed. The plaintiff also cites Plummer v. Webb, 1 in which the plaintiff sought to recover damages for the death of his minor son, caused by the cruel and illegal treatment of the defendant. This case was de- cided against the plaintiff, on the ground that at the time of the death of the son the defendant, as captain of the ship, and not the father, was entitled to his services. The learned judge discusses the principle under consideration, and argues at length in favor of the right to re- cover in such cases. As it was expressly decided, however, on the ground mentioned, this can hardly be considered an authority in favor of the plaintiff. Ford v. Monroe was an action brought by a father to recover dam- ages arising from the killing of his child by the negligence of the defendant's servant. The judge at the circuit charged the jury that the plaintiff was entitled to recover such sum by way of damages as they should be of opinion the services of the child would have been 1 Ware, 75. 388 GEEEN V. HUDSON RIVER RAILROAD COMPANY. [CHAP. VII. worth to him until he became twenty-one years of age. The case was carried to the Supreme Court, and a verdict of $200 in favor of the plaintiff was sustained. This case has been much criticised in the New England authorities, and it is certainly quite remarkable that neither the counsel nor the court allude to the question now before us. The only point discussed was the authority of the servant. Lynch v. Davis was a special term decision, 1 in which the plaintiff brought an action as administrator, under the law of 1847 (Sess. Laws, 1847, p. 575), to recover damages for the death of his wife. On de- murrer to the complaint, the court held the demurrer well taken, and dismissed the complaint. In his general discussion of the case, the judge states that the action could 1 be maintained by the husband in his individual character. As the case was, however, decided on another point, and the question now before us did not there necessarily come up, it cannot be considered as an authority in favor of the plaintiff. The plaintiff's case rests therefore on the authority of Cross v. Guthery, with such aid as it may derive from Ford v. Monroe. The plaintiff's position cannot be maintained against the array of authorities and dicta which the defendants have massed against it. ] will refer to a portion of them only. In Higgins v. Butcher, the court held that, "if one beat the servant of J. S., so that he die of the beating, the master shall not have an ac- tion against the other for the battery and loss of service; because, the servant dying of the beating, it is a felony, and this has drowned the particular offence, and prevails over the wrong done to the master, and his action by that is gone." The decision is in point, although the reason given is not now a sound one. Baker v. Bolton, decided in 1808. The plaintiff's wife was thrown from the top of a stage-coach, by the negligence of the defendant, and so badly injured that she died in about a month. The action was to recover damages for being " deprived of the comfort, fellowship, and assistance of his wife." It appeared in the case that the plaintiff was a publican, and that the wife was of good use to him in his business. Lord Ellenborough held that he could only recover damages for the loss from the time of the injury till the death ; that " in a civil court the death of a human being could not be complained of as an injury, and in this case, the damages as to the plaintiff's wife must stop with the period of her existence.'' In Carey v. Berkshire Railroad Co., the plaintiff's child was instantly killed by the carelessness of the defendant's servant, and the father brought his action to recover damages for his loss of service. The • 12 How. Pr. 322. SECT. V.J GREEN V. HUDSON RIVER RAILROAD COMPANY. 389 court declared the common law to be decisive against the action. In relation to Ford v. Monroe, the court say " that no question was there raised concerning the legal right of the plaintiff to recover damages caused by the killing of his son. For aught that appears in the report, that point was assumed, and passed sub silentio, both at the trial and in banc." In Lucas v. The New York Central Railroad, 1 the general term of the sixth district held distinctly " that the instant killing of the plain- tiff's wife by the careless act of the defendant cannot give the plaintiff an action for the loss of her services. Death following instantly upon the act complained of, there was no time during her life when it could be said that the husband had lost the services of his wife in consequence of the injury complained of." The question is discussed and the same principle laid down in Nick- erson v. Harriman, 2 and in Connecticut Mutual Life Insurance Co. v. New York & New Haven Railroad Co., 8 but the cases were in part at least decided on other points. The principle in opposition to the plaintiff's right of recovery is laid down in Smith's Master and Servant, 85 (75 Law Library), citing older .cases. The same view of the question has been repeatedly announced by the different judges of this court, although the question has never been distinctly presented or formally decided until the present case. It was so stated by Davies, J., in Whitford v. Panama Railroad Co., 4 and by Comstoek, J., in the same case; 5 and again by the latter judge in Quin v. Moore. 6 The same rule was laid down by Wright, J., in Old- field v. New York & New Haven Railroad Co.,' and by Bronson, J., in Pack v. The Mayor of New York. 8 The same rule has also been laid down by Bosworth, Hogeboom, Sutherland, Woodruff, Ingraham, and Hoffman, JJ. ; but it is scarcely necessary to multiply this class of references, where the case was not decided upon the precise proposi- tion now in question. In many elementary authorities cited by the defendant, the principle of actio personalis moritur cum persona is laid down, and in 1 Wil- liams on Executors, p. 668, the principle is broadly stated thus : " If an injury was done either to the person or property of another, for which damages only could be recovered in satisfaction, the action died with the person to whom or by whom the wrong was inflicted." That principle, in my judgment, does not touch the present class of cases. l 21 N. Y. 245. 2 38 Maine, 277. ' 3 25 Conn. 265. ■> 23 N. Y. 475, 476. 5 23 N. Y. 484, 485. 6 15 n. Y. 436. 1 14 JST. Y. 316. 8 3 N. Y. 493. 390 GREEN V. HUDSON RIVER RAILROAD COMPANY. [CHAP. VII. In its legal aspect, the injury here complained of was done to the plaintiff, and not to his deceased wife. The claim is for compensation for injury to his rights, and not to hers. Should her executors bring their action to recover damages for the pain and anguish suffered by her from the cause alleged, the principle of actio personalis would find its proper application. It is not applicable to the action of the present plaintiff, in which the party alleged to be injured, and the party inflict- ing the injury, are still in existence. It is the subject-matter of the injury, merely, which has ceased to exist. If the rule of the common law is harsh or narrow, it is fbr the legis- lature to alleviate the evil, and enlarge the remedy. This has been done in some degree in this State, and in Great Britain much more extensively by the act 9 & 10 Vict. c. 93. However strong may be our sympathy with the plaintiff, we are compelled to content ourselves with expounding the law as we find it. The right to correct or im- prove it belongs to another department of the government. Judgment affirmed. 1 » Worley v. C. H. & D. E. E., 1 Handy (Ohio), 481, ace. —Ed. In the following cases the judges extrajudicially indicate opinions expressly or impliedly in accordance with the decision here given : Conn. Mut. Ins. Co. v. N. Y. & N. H. R. E. Co., 25 Conn. 271 ; Hubgh v. N. 0. & C. R. R. Co., 6 La. An. 496 ; Kearney v. B. & W. R. R. Co., 9 Cush. 109 ; Hollenbeck v. Berkshire R. R. Co., 9 Cush. 480 ; Palfrey v. P. S. & P. R. R. Co., 4 All. 56 ; Wyatt v. Williams, 43 N. H. 105 ; Pack v. The Mayor, 3 N. Y. 489 ; Quin v. Moore, 15 N. Y. 436 ; Whitford v. Panama R. R. Co., 23 N. Y. 475; Campbell v. Rogers, 2 Handy (Ohio), 110. In the following cases the judges extra judicially indicate opinions expressly oi impliedly at variance with the decision here given : Plummer v. Webb, Ware, 78 ; Mercer v. Jackson, 54 111. 397; Lynch v. Davis, 12 How. Pr. 324; Whitford v. Pan- ama R. R. Co., 23 N. Y. 489-491. In the latter case, Comstock, C. J., reversed his dictum given in Quin v. Moore, 15 N. Y. 435, and added : " On principle, I should say that the' action of the parent for the consequential loss of the child's service is not affected by the death of his child or servant." — Ed. CHAP. VIII.] EASON V. NEWMAN. CHAPTER VIII. CONVERSION. 391 MULGRAVE v. OGDEN. In the Queen's Bench, Hilary Teem, 1591. [Reported in Croke's Elizabeth, 219.] Action sub tkovee of twenty barrels of butter ; and counts tbat he tarn negligenter custodivit that they became of little value. Upon this it was demurred, and held by all the justices, that no action upon the case lieth in this case ; for no law compelleth him that finds a thing to keep it safely ; as if a man finds a garment, and suffers it to be moth- eaten ; or if one find a horse and giveth it no sustenance ; but if a man find a thing and useth it, he is answerable, for it is conversion ; so if he of purpose misuseth it, as if one finds paper and puts it into the water, &c. ; but for negligent keeping no law punisheth him. JEt adjournatur. 1 EASON v. NEWMAN. In the Queen's Bench, Hilaet Teem, 1595. [Reported in Croke's Elizabeth, 495. ] Action on the case upon trover. A special verdict was found that one Pepper was possessed of those goods, and the defendant found them, and Pepper made the plaintiff his executor ; and that the defend- ant, knowing them to appertain to the plaintiff, denied to deliver them to him upon his request ; and whether that were a conversion without any other act done, was the question. And all the justices, Popham absente, held that it was a conversion by the sole denial. But, being afterwards moved again, Popham held it to be no conversion ; but it l Bromley v. Coxwell, 2 B. & P. 438 ; Conner v. Allen, 83 Ala. 515 ; Railroad Co. v. Kidd, 7 Dana, 252 ; Ragsdale v. Williams, 8 Ired. 498 ; Emory v. Jenkinson, Tapp. 219; Ankimu. Woodward, 6 Whart. 577; Jones u. Allen, 1 Head, 626;, Abbott v. Kimball, 19 Vt. 558 ; Nutt v. Wheeler, 30 Vt. 436 ; Tinker a. Morrill, 39 Vt. 477, ace. — Ed. 392 DRAPER v. PtJLKES. [CHAP. VIII. was cited at the bar that, 23 Eliz. in this court, it was ruled to the contrary. Et adjournatur. 1 DRAPER v. FULKES. In the King's Bench, Michaelmas Term, 1609. [Reported in Yelverton, 165.] A man brought an action on the case on trover against husband and wife, and declared that he was possessed of several goods in specie, till such a day he lost them, which came to the possession of both the defendants, and they converted them, to his damage, &o. ; and on non cul. pleaded, it was found for the plain tiff, and judgment given in the Common Pleas, and affirmed in the King's Bench on a writ of error. Yet an exception was taken to the declaration, because the conversion is laid to the charge of the wife as well as to the charge of the hus- band, and a feme covert cannot convert goods, but it shall be said the conversion of the husband only, for in regard she can have no prop- erty, but the whole is in the husband, therefore the conversion shall be said the act of the husband only. To which Yelteeton answered, that this action is not grounded on any property supposed to be in the defendants, but on the possession only, and the point of the action is the conversion, which is a tort with which a feme covert may be well charged, as well as she may be charged with a trespass or disseisin committed. And if a feme covert takes my sheep and eats them, or other goods and converts them, I may well have this action against husband and wife, and suppose the conversion in the wife only ; viz., the tort. But husband and wife cannot have an action on trover, and suppose the possession in them both, for the law will transfer in point of ownership the whole interest to the husband, as 21 Edw. IV. 4, is. Quodfuit concessum per totam curiam. 2 1 Case of the Chancellor of Oxford, 10 Rep. 56 b; Isaac v. Clark, 2 Bulst. 808; Morris v. Pugh, 3 Burr. 1243 ; Cutter v. Fanning, 2 Iowa, 580 ; Hfll v. Covell, 1 N. T. 522, contra. — Ed. 2 Marshe's Case, 1 Leon. 312 ; Baldwin v. Mortin, Ow. 48 ; Coxe v. Cropwell, Cro. Jac. 5 ; Hodges v. Sampson, W. Jones, 443 ; Newman v. Cheyney, Latch, 126 ; Key- worth v. Hill, 3 B. & Aid. 685 ; Catterall v. Kenyon, 3 Q. B. 310 ; Heckle u. Lurvey, 101 Mass. 344, ace. ; Berry v. Nevys, Cro. Jac. 661 ; Rhemes v. Humphreys, Cro. Car. 254 ; Perry v. LMggs, Cro. Car. 494 ; Bullen's Case, W. Jones, 264 ; Gallop u. Sym- son, Style,, 115 ; Note 1 Brownl. 3 ; Reames v. Humphries, 1 Roll. Abr. 348, contra. See also Clark v. Pew, Style, 18; Rowell v. Keefe, 6 Rich. 521. — Ed. chap. viii.J hols-worth's CASE. 393 AGARS v. LISLE. In tub Common Pleas, Michaelmas Teem, 1613. [Reported in Hutton, 10.] Thomas Aoajr brought an action upon the case against Lisle, for finding and converting of a cow at the castle of York. The defend- ant pleaded in bar that the Bishop of Durham was seised of the town of Darton, in the county of Durham, and prescribe to have a fair there and toll, and for not payment thereof, &c, the cow was taken by the defendant, as servant to the Bishop of Durham, absque hoc, that he was guilty at the castle of York, or anywhere else, &c. And this case was long depending, and the first point was, if the defendant had confessed any conversion, for that is the ground of the action, and ought to be traversed, or else confessed and avoided. It was agreed that the conversion is the ground of the action. Brook 1 Mar. Trespass, 121, and the inducement ought to be such as contain sufficient matter with the trespass. Vide 9 Edw. IV. 5 ; 19 Hen. VI. 30 ; 22 Hen. VI. 35, 8. Then it was agreed, that when one takes a distress, and such an action is brought, that is no plea, for that is not any conversion. Vide 27 Hen. VIII. 22 ; Coke, lib. x. fol. 46, 47. Request and refusal to deliver is good evidence to prove conversion ; but if it be found specially it shall not be adjudged conversion ; and judgment was given for the plaintiflF, because the defendant did not claim any property, and did not answer to the point of the action, for a distress is no conversion. 1 HOLSWORTH'S CASE. At the Yoke Assizes, cokam Baekxet, J., July, 1638. [Reported in Clayton, 57.] An action of trover and conversion was brought for oats, &c. ; and the case upon proof was, that certain trespassers had taken these oats from the plaintiff and brought them to the mill to make into oatmeal, 1 Ascue v. Sanderson, Cro. Eliz. 433 ; Dee v. Bacon, Cro. Eliz. 435 ; Johnes v. Williams, Cro. Jac. 165; Salter v. Butler, Noy, 46 ; Hartfort v. Jones, Raym. 393; Wingfield v. Stratford, Sayer, 15 ; Wilkinson v. Whalley, 5 M. & Gr. 590 ; Whitraire v. Greene, 13 M. & W. 104 ; Kynaston v. Crouch, 14 M. & W. 266 ; Higgins v. Thomas, 8 Q. B. 908 ; Ringham v. Clements, 12 Q. B. 260 ; Young v. Cooper, 6 Ex. 259, ace. ; Staneliff v. Hardwicke, 2 C, M. & R. 1 ; Vernon v. Shipton, 2 M. & W. 9; Weeding v. Aldrich, 9 A. & E. 861, contra may be considered to be overruled. — Ed. 394 BECKWITH V. ELSEY. [CHAP. VHI. as the use is, and the plaintiff came to the miller before any thing done, and demanded the oats as his, and forbade him to procetd to make them into shilling' or oatmeal ; but the miller did proceed for all that, and made it into oatmeal : and the judge directed this to be a conversion in the miller, and directed the jury accordingly, although it was urged by the counsel of the defendant that a miller was a public officer, and he did but his duty in this case. And in this case it was holden further, that if A. take goods from me, and these afterwards come to the hands of B., by buying or otherwise, and he converteth them to his use, B. shall not be charged to me without a new demand made of them unto him, and a ..detention afterward ; and where such goods are delivered at first by the owner and after detained upon de- manding them, detinue lieth and not trover in that case. See Edw. IV. 23 ; 21 Edw. IV. 74 ; 16 Hen. VII. 23. GEORGE v. WIBURN. In the King's Bench, Michaelmas Teem, 1638. [Exported in 1 Rolle's Abridgment, 6, placitum 4.] If I bail goods to a common carrier to carry to a place, and then the goods are taken from the carrier, this is no conversion in the carrier to charge him in a trover and conversion. But an action on the case lies against him as carrier on the custom of the realm to carry goods safely and to deliver them as is appointed. In arrest of judgment. 1 BECKWITH v. ELSET. At the Yoek Assizes, coeam Titeneb, Seejeant Jttdge, Mabch 24, 1641. [Reported in Clayton, 112.] In an action of trover and conversion, and nothing proved but a tortious taking .of the cattle by way of trespass, and driving them away, and it was ruled a good ground for this present action, and a conversion shall be intended, otherwise when he comes to them by trover, there an actual conversion shall be proved. 3 1 Lownsdel's Case, Clayt. 104; Owen v. Lewyn, 1 Vent. 223, ace. — Ed. 2 See Metcalfe's Case, Clayt. 113 ; Bruen v. Roe, 1 Sid. 264 ; Norman o. Bell, 2 B. & Ad. 190; Tear v. Freebody, 4 C. B. n. s. 228 ; Moody v. Whitney, 34 Me. 663} CHAP. VIII.] MIKES V. SOLEBAT. 896 ROOKEBY, his Case. At the Yoek Assizes, coram Geemine, J., Maech, 1647. [Reported in Clayton, 122.] Lsr action of trover, &c. And to prove the conversion it was of- fered that the plaintiff did demand satisfaction for the corn, and it was ruled good evidence, the demand being to the party himself who took this corn, though the corn itself was not demanded, but satisfaction, quod nota. 1 MIRES v. SOLEBAY. Ik the Common Pleas, Teinity Teem, 1677. f Reported in 2 Modern Reports, 242.] Teoveb and conversion. On a special verdict the case was this, viz., H., being possessed of several sheep, sells them in a market to Alston, but did not deliver them to the vendee. Afterwards, in that very market, they discharge each other of this contract, and a new agreement was made between them, which was, that Alston should drive the sheep home and depasture them till such a time, and that during that time H. would pay him so much every week for their pasture ; and if at the end of that time (then agreed between them) Alston would pay H. so much for his sheep (being a price then also agreed on), that then Alston should have them. Before the time was expired, H. sells the sheep to the plaintiff, Mires, and afterwards Alston sells them to one Marwood, who brought a replevin against the plain- tiff for taking of the sheep ; and the officers, together with Solebay, the defendant (who was servant to Marwood), did by his order, and in assistance of the officers, drive the sheep to Marwood's grounds, where they left them. The plaintiff demands the sheep of Solebay, and, upon his refusal to deliver them, brings this action against the servant. The question was, whether it would lie or not. It was urged at the bar that the action would not lie against the Nelson v. Burt, 15 Mass. 204 ; Cummings v. Perham, 1 Mete. 555 ; Phillips v. Bow- ers, 7 Gray, 21 ; Coughlin v. Ball, 4 All. 334 ; Johnson v. G. T. R. R. Co., 44 N. H. 626 ; Davis v. Flemming, 1 McCord, 213 ; Childress v. Ford, 1 Heisk. 463 ; Wey- mouth v. R. R. Co., 17 Wis. 550. — Ed. 1 Thompson v. Shirley, 1 Esp. 31 ; Le Place v. Aupoix, 1 Johns. Cas. 406, ace. — Ed. 396 MIRES V. SOLEBAT. [CHAP. Till. defendant, because he had not the possession of the goods at the time of the action brought ; for he presently put them into his master's ground ; and it was said, if A. find goods, and S. takes them away before the action brought, trover will not lie against A.; but it is otherwise if he sell them. 1 In this case it would have been a breach of trust in the servant to have delivered the goods belonging to his master to another. It is true, if there be a conversion, though the possession be removed before the action brought, yet the action will lie, but that is because of the conversion. Many cases were put where the servant is not liable to an action for a thing done by the command of his master ; and where a bailiff, who is but a servant to the sheriff, shall not be charged in a false return made by his master. Cro. Eliz. 181. So if a smith's man prick a horse, the action lies against the master, and not against the servant. The court, before they delivered any judgment in this case, premised these two things : — First, That it is necessary in trover to prove a property in the plain- tiff, and a trover and conversion in the defendant ; and it was said by Atkins, J., but denied by the Chief Justice, that though goods are sold in a market, yet the property is not changed till the delivery, for which he cited Keilway, 59, 77. But the court held clearly in this case that the first sale to Alston was defeated by the agreement of the parties afterwards ; for when a bargain is made, and all the parties consent to dissolve it, and other conditions are proposed, the new agreement destroys the former bargain. And the Chief Justice said, that if a horse was bought in a market, for which the vendee is to pay ten pounds, if the ready money be not paid, the property is not altered, but the party may sell him to another. Secondly, This new agreement, to have the sheep if Alston would pay such a sum of money at a future day, will not amount to a sale, and the new property is changed, and consequently the sale by H. to the plaintiff before the day is good, and so the property of the sheep is in him. But the whole court were of opinion that the action would not lie against the defendant. First, The defendant could be guilty of no conversion, unless the driving of the cattle by virtue of the replevin would make him guilty; but at that time the sheep were in custodia legis, and the law did then preserve them so that no property can be changed ; and if so, then there could be no conversion. Secondly, The action will not lie against the servant ; for it being i 1 Roll. Abr. 6. See also 1 Com. Dig. 221, F. CHAP. VIII.] MIRES V. SOLEBAY. 397 in obedience to his master's command, though he had no title, yet he shall be excused. And this rule Justice Scroggs said would extend to all cases where the master's command was not to do an apparent wrong ; for if the master's case depended upon a title, be it true or not, it is enough to excuse the servant; for otherwise it would be a mischievous thing, if the servant upon all occasions must be satisfied with his master's title and right before he obey his commands; and it is very requisite that he should be satisfied, if an action should lie against him for what he doth in obedience to his master. But it was said, the 1 servant cannot plead the command of his master in bar of a trespass. And it was likewise said, that in this case, the driving of the cattle by the servant to the grounds of his master, or a stranger's helping to drive them without being requested, is justifiable. Thirdly, Because what was done by the defendant was done in execution of the process of the law, and he might as well justify as the officer; for if he forbid the defendant to have assisted him, yet his assisting him afterwards would not have made him guilty, because done in execution of the law. i Fourthly, Because it is not found that the servant did convert the sheep to his own use ; for the special verdict only finds the demand and the refusal, which is no conversion ; and though it is an evidence of it to a jury, yet it is not matter upon which the court can give judgment of a conversion: 10 Co. 57; and therefore the jury should have found the conversion as well as the demand and refusal, like the case in 2 Roll. Abr. 693. In an assise of rent-seek, upon nul tort pleaded, the jury found a demand and refusal, et sic disseisivit ; it was held to be no good verdict, for the demand ought to have been found on the land, and shall not be so intended unless found. The plaintiff here hath set forth in his declaration a request to deliver ; then a refusal and conversion, too, which shows that they ought to be found, because distinct things ; and the finding of the demand and refusal was only a presumptive, not a conclusive proof of the conver- sion; and if the jury themselves know that there was no conversion, yet the plaintiff hath failed in his action ; as if a trover be brought for cutting trees and carrying of them away, and the jury know that though the defendant cut them down, yet they still lay in the plain- tiff's close, this is no conversion. And though it has been strongly insisted at the bar that the court shall intend a conversion, unless the contrary appeared, and are to direct a jury to find the demand and refusal to be a conversion, and the opinion of Doddridge and Croke, in 1 Roll. Rep. 60, was much relied on, where Adams recovered against ' Wyne and Eider, 2 Mod. 67; 4 Bao. Abr. 258. 898 LORD PETRE V. HENEAGE. [CHAP. VIII. Lewis forty pounds in the court of Exon, and three butts of sack were taken in execution, and the plaintiff deposited twenty-two pounds in the hands of the defendant to prevent the sale of the sack, which was to be a pledge to return it upon request, if the defendant was not paid before the next court day; the jury found the debt was not paid, and that no request was made to return the sack, but that the plaintiff requested the defendant to return the money; yet it was held by those two justices, that the law would supply the proof of a conver- sion though it was not found, for it shall be presumed that the money was denied to the plaintiff, and that the defendant might use it him- self ; and because no other proof could be made, that very denial shall be a conversion in law. So a denial of a rent-seek after demand is a disseisin, much more in personal actions where the substance is found, it is well enough. 1 Inst. 282 a. But the court said that, notwithstanding this authority, they would not intend a conversion,, unless the jury had found it, especially in this case, because they ought to have found it to make the servant liable ; for if the conversion was to the use of his master, there is no color for this action to be brought against the defendant, but it ought to be brought against the master. Whereupon a venire facias de novo was prayed to help the insuffi- ciency of the verdict, the conversion not being found. But the court said it was to no purpose to grant a new trial, unless the plaintiff had a new case. And so judgment was given for the defendant} LORD PETRE v. HENEAGE. At Nisi Peitjs, coeam Loed Holt, C. J., Easter Teem, 1699. [Reported in 12 Modern Reports, 519.] Tbovee 2 by the plaintiff, as administrator cum testamento annexo of the late Lord Petre, against the wife of the first executor, for a neck- lace of pearl, said to have been in the family for many generations, and worn as a personal ornament by Lady Petre for the time being, or for default of such by the lady dowager, pro tempore. And here, by Holt, C. J., the wearing of a pearl is a conversion. 8 1 See Lee v. Bayes, 18 C. B. 606, per Williams, J. ; Berry v. Vantries, 12 Serg. & E. 92, per Gibson, J. ; Mount v. Derick, 5 Hill, 455. — Ed. 2 Only so much of the case is given as relates to the question of conversion. ' See Poulton v. "Wilson, 1 F. & F. 403 ; Gray v. Crocheron, 8 Port. 191 ; Gentry v. Madden, 3 Ark. 127 ; Clark e. Whitaker, 19 Conn. 319 ; Adams v. Mizell, 11 Ga. 106; Barton v. White, 1 Har. & J. 579; Dickey v. Franklin Bank, 32 Me. 572j CHAP. Till.]' BALDWIN V. COLE. 399 ANONYMOUS. At Nisi Peius, coram Lord Holt, C. J., 1699. [Reported in 12 Modern Reports, 344.] The case was : A captain contracted with seamen to go on a voy- age ; and after he had got them on board he would not pay them, ac- cording to agreement ; upon which they demanded their goods, which he refused, if they did not stay till he had searched for them, which he refused to do then ; and this was held good evidence of a conversion. Holt, C. J. In trover, the plaintiff ought to prove property of goods in him, and at least a demand and refusal; and if there be several parcels, the orderly way to give evidence is to make an in- ventory of them, and prove the property of goods mentioned in it, and demand and refusal of them. BALDWIN v. COLE. At Nisi Peius, coeam Loed Holt, C. J., 1704 [Reported in 6 Modern Reports, 212.] Teovee. The case, upon evidence, was this : — A carpenter sent his servant to work for hire to the queen's yard ; and having been there some time, when he would go no more, the sur- veyor of the work would not let him have his tools, pretending a usage to detain tools to enforce workmen to continue until the queen's work was done. A demand and refusal was proved at one time, and a ten- der and refusal after. Holt, C. J. The very denial of goods to him that has a right to de- mand them is an actual conversion, and not only evidence of it, as has been holden ; for what is a conversion but an assuming upon one's self the property and right of disposing another's goods, and he that takes upon himself to detain another man's goods from him without cause takes upon himself the right of disposing of them ; so the taking and carrying away another man's goods is a conversion ; so if one come into my close, and take my horse and ride him, there it is conversion ; and here if the plaintiff had received them upon the tender, notwithstanding Lathrop v. Blake, 23 N. H. 46 ; Chesh. R. R. Co. v. Foster, 51 N. H. 490 ; Spencer v. Blackmail, 9 Wend. 167 ; Nauman v, Caldwell, 2 Sweeny, 212 ; Collins v. Bennett, 46 N. Y. 490; Scruggs n. Davis, 5 Sneed (Tenn.), 261 ; Arnold v. Kelly, 4 W. Va. 642. Conf. Chandler v. Partin, 2 Mill, C. R. 72; Quay v. M'Ninch, 2 Mill, C. R. 78.— Ed. 400 CROSSIER V. OGLEBT. [CHAP. VIII. the action would have lain upon the former conversion, and the having of the goods after would go only in mitigation of the damages ; and he made no account of the pretended usage, but compared it to the doc- trine among the army, that if a man came into the service and brought his own horse, that the property thereof was immediately altered and vested in the queen ; which he had already condemned. And here one of the particulars in the declaration being ill laid, the defendant was found not guilty as to that, and guilty as to the rest. ANONYMOUS. At Nisi Prius, coeam Trevob, C. J., 1705. [Reported in 2 Salkeld, 655.] Teovee lies not against a carrier for negligence, as for losing a box ; but it does for an actual wrong, as if he break it to take out goods, or' sell it. Per Cur. Pasch. 7 W. 3, B. R. And therefore denial is no evidence of a conversion, if the thing appears to have been really lost by negligence ; but if that does not appear, or if the carrier had it in custody when he denied to deliver it, it is good evidence of a conver- sion. Per Teevoe, C. J. CROSSIER v. OGLEBT. In the King's Bench, Trinity Teem, 1716. [Reported in 1 Strange, 60.] Teovee by an administrator for rum taken and converted in the intestate's life. Upon evidence it appeared that the rum was taken in the intestate's life, but not used till after his death. And the question was, whether this evidence of not using it till the administrator's time would not overthrow the declaration of a conversion in the intestate's life. Sed per Curiam : The time of using the rum lay in the breast of the defendant, who ought to have disclosed that matter by his plea ; and the taking in the life of the intestate, and keeping it till his death, is a trover and conversion sufficient to maintain this declaration. Where- fore the plaintiff had judgment, this being a point reserved at Nisi Prius. CHAP. Till.] RICHARDSON V. ATKINSON. 401 BUSHEL v. MILLER. At Nisi Pbius, coeam Peatt, C. J., November 21, 1718. [Reported In 1 Strange, 128.] Upon the Custom-house Quay there is a hut where particular por- ters put in small parcels of goods if the ship is not ready to receive them when they are brought upon the quay. The porters, who have a right in this hut, have each particular boxes or cupboards, and, as such, the defendant had one. The plaintiff, being one of the porters, put in goods belonging to A., and lays them so that the defendant could not get to his chest without removing them. He accordingly does remove them about a yard from the place where they lay, towards the door, and without returning them into their place goes away, and the goods are lost. The plaintiff satisfies A of the value of the goods, and brings trover against the defendant. And upon the trial two points were ruled by the Chief Justice : — 1. That the plaintiff having made satisfaction to A. for the goods, had thereby acquired a sufficient property in them to maintain trover. 2. That there was no conversion in the defendant. The plaintiff by laying his goods where they obstructed the defendant from going to his chest was, in that respect, a wrong-doer. The defendant had a right to remove the goods, so that thus far he was in no fault. Then, as to the not returning the goods to the place where he found them ; if this were an action of trespass, perhaps it might be a doubt ; but he was clear it could not amount to a conversion. RICHARDSON v. ATKINSON. At Nisi Peius, coeam Etee et Foetescue, 1723. [Reported in 1 Strange, 576.] They held that the drawing out part of the vessel, and filling it up with water, was a conversion of all the liquor, and the jury gave dam- ages as to the whole. 1 i Dench v. Walker, 14 Mass. 600, ace. — Ed. 26 402 PERKINS V. SMITH. [CHAP. VIII. PARKER and Another v. GODIN. In the Kin&'s Bench, Michaelmas Teem, 1728. [Reported in 2 Strange, 813.] Satue, a bankrupt, at the time of his going off left some plate with his wife, who, in order to raise money upon it, delivered it to her ser- vant, who went along with the defendant to the door of Mr. Wood- ward the banker, and there the defendant took the plate into his hands and went into the shop and pawned it in his own name, gave his own note to repay the money, and immediately upon receipt of it went back to the bankrupt's wife and delivered the money to her. And in trover for the plate the jury (considering the defendant acted only as a friend, and that it would be hard to punish him) found a verdict for the de- fendant. But upon application to the court a new trial was granted, upon the foot of its being an actual conversion in the defendant, not- withstanding he did not apply the money to his own use. And upon a second trial the plaintiff obtained a verdict for the value of the plate, PERKINS v. SMITH. In the King's Bench, Teinitt Teem, 1752. [Reported in 1 Wilson, 828.] In trover, the jury find a special verdict, which, in substance, is shortly this: that upon the 22d of September, 1749, Hughes was possessed of the goods in the declaration as his own property, and became a bankrupt that day ; that the plaintiff is assignee under the commission; that upon the 23d of September, 1749, the defendant Smith, who is servant and riding-clerk to Mr. Garraway, to whom the bankrupt was considerably indebted, went to the bankrupt's shop (to try to get his master's money), and found it shut up; and that the bankrupt delivered to Smith the goods in the declaration, who gave a receipt for the same in the name of his master, and sold the same for his master's use. It was objected that the action was improperly brought against the servant Smith, who acted wholly in this matter for his master, and that the conversion is found to be to the use of his master, which is the gist of an action of trover. After two arguments at the bar, the court gave judgment for the plaintiff. Lee, C. J. The point is, whether the defendant is not a tortfeasor; CHAP. VIII.] TINKLER V. POOLE. 403 for if he is so, no autnority that he can derive from his master can ex- cuse him from being liable in this action. Hughes, the bankrupt, had no right to deliver these goods to Smith ; the gist of trover is the detainer or disposal of goods (which are the property of another) wrongfully ; and it is found that the defendant himself disposed of them to his master's use, which his master could give him no authority to do ; and this is a conversion in Smith, this disposal being his own tortious act ; the act of selling the goods is the conversion, and whether to the use of himself or another it makes no difference. I am very well satisfied that this servant has done wrong, and that no authority that could be derived from his master before or after the fact can excuse him. The finding that the defendant disposed of the goods for his master's use is only the conclusion of the jury, and does not bind the court, the taking upon him to dispose of another's property is the tortious act, and the gist of this action. Judgment for the plaintiff per totam curiam. TINKLER v. POOLE. In the King's Bench, Novembeb 11, 1770. [Reported in 5 Burrow, 2657.] This was an action of trover for goods seized by a custom-house officer. It was a parcel of herrings seized by him for not having satis- fied the salt duty, and carried by him to the king's warehouse. It was agreed that they were not seizable ; and the only question was, " whether this species of action lay against the officer for seizing them and carry- ing them away." Glynn, Serjt., for the plaintiff, argued that it did. The conversion, he said, was the substantial part of the action ; the trover is fictitious. The defendant had no authority to take them ; he took them wrong- fully; he was a wrong-doer; he acquired a tortious property of them in himself. Trover lies in similar causes. It lies against a sheriff, for the unlaw- ful conversion of the goods of a bankrupt. Cooper v. Chitty 1 and Blackiston, sheriffs of London. A tortious taking is, in itself, a con- version. There is indeed a single nisi prius case reported in Bunbury, 67, Mich. 1720, at Guildhall sittings after that term, before Ld. Ch. Baron 1 1 Burrow, 20-37. 404 TINKLER V. POOLE. [CHAP. Till. Bury : Etrick v. An Officer of the Revenue. Upon an information of seizure of goods, there had been a verdict for the defendant, who afterwards brought trover against the officer for the goods. The Attorney-General objected that trover did not lie for these goods (for that the seizure of them, and putting them into the custom-house ware- house, could not be said to be any conversion to his own use), but trespass, or trespass upon the case ; and Mr. Attorney insisting upon a special verdict, and the Chief Baron inclining to be of that opinion, " that trover would not lie," the plaintiff chose to be nonsuited. But this is no solemn determination. Lokd Mansfield said, Mr. Bunbury never meant that those cases should have been published ; thej' are very loose notes. Mr. Justice Willes mentioned another case in Bunbury, p. 80, Trin. 1721 (Israel v. Etheridge et al'.), where Baron Price said that it was now allowed and taken for law " that trover did not lie against an officer for seizing absque probabili causa, but trespass would." Baron Mon- tague was of opinion "that neither trover nor trespass would lie, because the seizure is not contra pacem ; but that trespass upon the case, setting forth that the seizure was absque probabili causa would lie." Baron Page was of opinion "that trespass, or case for the con- sequential damages, will lie." Mr. Dunning, for the defendants, remarked upon the case last cited, that it appeared by it that the three barons, Price, Montague, and Page, all concurred in the opinion " that trover would not lie." Lord Mansfield. It is a very loose note. It makes Baron Mon- tague say " that trespass would not lie." Mr. Justice Willes mentioned the case of Kenicot v. Bogan, 1 which was trover and conversion of two tuns of wine, taken for pri- sage. Lobd Mansfield, who tried the present cause, said he saved this point upon the cases cited out of Bunbury by the counsel for the de- fendants; but nothing is clearer than "that trover lies." It is a wrongful conversion, let the property be in whom it will. The case of Chapman v. Lamb z was mentioned by Mr. Wallace ; which was subsequent to the others, being in Michaelmas term, 6 Geo. II. It was trover against a custom-house officer for fourteen shirts, a night gown and cap, seized for non-payment of duty, which were stated negatively " not to be imported as merchandise." The plaintiff had judgment, without any objection to its being an action of trover. The court ordered the postea be delivered to the plaintiff. * i Yelverton, 198. 2 2 Strange, 943. 8 Bishop u. Montague, Cro. Eliz. 824; Gomersall v. Medgate, Yelv. 194; Smith CHAP. Till.] BOSS V. JOHNSON. 405 BOSS v. JOHNSON. In the King's Bench, February 4, 1772. • [Reported in 5 Burrow, 2825.] An action of trover was brought by Hugh Ross, Esq., against John Johnson and William Dowson, for certain goods mentioned in the declaration. Not guilty was pleaded, and issue joined. The cause came on to be tried at Guildhall, before Lord Mansfield, at the sittings after Michaelmas term, 1771, when the plaintiff was nonsuited, subject to the opinion of the court on the following case : — The goods in question, being the property of the plaintiff were delivered by the captain of a vessel to the defendants as wharfingers, for the use and upon the account of the plaintiff, to whom they were directed, but were stolen or lost out of their possession ; and after- wards, before the commencement of this action, were demanded by the plaintiff of the defendants, to whom he tendered the wharfage for the same ; but the goods were not delivered to him. The question for the opinion of the court was, " whether this action will lie." If the court shall be of opinion " that this action will lie," then the nonsuit to be set aside, and a verdict entered for the plaintiff, for £92 damages and 40s. costs. Mr. Mansfield, for the plaintiff, argued that trover would lie. In trover nothing more is necessary to be proved than the property being in the plaintiff, and that the defendant has converted them. It is not necessary to prove actual conversion. A demand and non-delivery are evidence of a conversion, and are sufficient, unless the defendant can give some legal excuse for the non- delivery. The goods being stolen or lost is no excuse to a wharfinger, who takes them for hire. Isaack v. Clerk. 1 A pawnee is bound to deliver the goods pawned. Mr. Walker, contra, for the defendants, argued that this action of trover could not be maintained. Trover cannot be maintained unless v. Plomer, 15 East, 607 ; Goode v. Langley, 7 B. & C. 26 j,Glasspoole v. Young, 9 B. & C. 696 ; Meade v. Smith, 16 Conn. 346 ; Hardy v. Keeler, 56 111. 152; Hall *. Amos, 5 Monr. 89; Prescott v. Wright, 6 Mass. 20; Woodbury v. Long, 8 Pick. 543; Blanchard v. Coolidge, 22 Pick. 151 ; Bowen v. Sanborn, 1 All. 389 ; McPartland v. Bead, 11 All. 231 ; Woods v. Keyes, 14 All. 236 ; Dow v. Cheney, 103 Mass. 181 ; Matherny v. Johnson, 9 Mo. 232 ; Howard v. Cooper, 45 N. H. 339 ; Parrington v. Payne, 15 Johns. 431 ; Woodward v. Murray, 18 Johns. 400 ; Case v. Hart, 11 Ohio, 364 ; Taxier v. Sweet, 2 Dall. 81 ; Dargan v. Eichardson, Dudley, 62, ace. Con£ Slack v. Littlefield, Harper, 298 ; Pettigru v. Sanders, 2 Bail. 549. — Ed. • Moore, 841. 406 BOSS V. JOHNSON. [CHAP. VIII. the defendant uses the plaintiff's property as his own. Goods may be withholden by a person who has a lien upon them; and he in- stanced in pawns, distresses, and carriers detaining till paid for the carriage* Bare withholding is not making use of them as his own, and without that trover will not lie. He was not obliged, he said, to maintain " that no other action would lie ; " it was enough for his purpose "that the present action will not lie." A demand and refusal is only evidence of a conversion. And trover will not lie for mere negligence, for losing the goods without any actual wrong. And so is 2 Salk. 655, on trover against a carrier for losing a box. Mr. Mansfield agreed that where a lawful reason is shown for not delivering the goods, the defendant is not to be considered as guilty of a conversion. But here is no lawful reason shown why they are not delivered ; and therefore the mere non-delivery does amount to a con- version. If they are, in fact, lost or stolen, what is that to the owner? It does not alter the obligation which the defendants are under to de- liver them to the owner ; nor can the owner know what is become of them. Lord Mansfield declared his disapprobation of nonsuits founded upon objections which had no relation to the merits of a cause. But he looked upon it as established upon principles and authorities, that trover would not lie in the present case ; but that it must be an action upon the case. It is impossible, he said, to make a distinction between a wharfinger and a common carrier. They both receive the goods upon a contract. Every case against a carrier is like the same case against a wharfinger; but in order to maintain trover there must be an injurious conversion. This is not to be esteemed a refusal to deliver the goods. They cannot deliver them ; it is not in their power to do it. It is a bare omission. Mr Justice Aston agreed, that this being a bare omission, and no evidence of a conversion, trover would not lie ; but the clear remedy was by action upon the case ; and he cited Owen v. Lewyn, 1 where Hale said, " that if a carrier loseth goods committed to him, a general action of trover doth not lie against him. Mr. Justice Willes and Mr. Justice Ashhukst concurring in opin- ion with his Lordship and Mr. Justice Aston, The court ordered that the nonsuit should stand. 1 i 1 Ventris, 223. 2 Dearbourn v. Un. Nat. Bank, 58 Me. 273 ; Dwight v. Brewster, 1 Pick. 50 ; Bow- lin v. Nye, 10 Cush. 416 ; Dorman v. Kane, 5 All. 38 ; Smith v. Nat. Bank, 99 Mass. 605 ; Johnson v. Strader, 3 Mo. 359 ; Packard v. Getman, 4 Wend. 613 ; Hawkins v. Hoffman, 6 Hill, 586 ; Nat. Bank v. Wheeler, 48 N. Y. 492, ace. Conf. La Place v. Aupoix, 1 Johns. Ca. 406. — Ed. CHAP. VIII.] SYEDS V. HAY. 407 SYEDS v. HAY. In the King's Bench, Mat 26, 1791. [Reported in 4 Term Reports, 260.] Teovee for certain goods. The action was brought by the owner against the captain of the vessel in which they had been shipped ; and the only question was, whether there was evidence of a conversion to maintain this action. The goods were left by the defendant in the hands of one Hawley, a wharfinger, for the plaintiff's use; and he might have had them at any time by sending there and paying the wharfage. But, previous to their being landed on the wharf, the plain- tiff, intending to convey them from the vessel himself, expressly directed the defendant not to land them there, which the latter promised not to do, but nevertheless he did so. The defendant, by way of justification for this breach of orders and promise, attempted to set up a usage that every wharfinger, against whose wharf a vessel was moored for the purpose of unloading, as in the present case, was entitled to the wharfage fees for all goods unloaded therefrom, whether landed on the wharf or not ; and that therefore the wharfinger had a lien thereon, of which it was not lawful to divest him. It appeared from several witnesses, who were examined as to this usage, that a claim of this kind had been made by the wharfingers in the port of London, which had sometimes been paid and sometimes not ; but in their opinion it was well founded. And at all events there was a reasonable ground from the evidence to suppose that the captain in this instance had acted from an impression that the wharfinger had such a right. Lord Kenyon was of opinion, on an objection taken at the trial, that there was no evidence of a conversion ; for, without laying stress on the sup- posed usage, the goods had been delivered to the wharfinger for the use of the defendant ; and that the proper remedy against a carrier for not delivering goods pursuant to orders was by action on the case ; but he nevertheless permitted the cause to proceed, reserving this point for the consideration of the court. The verdict was given for the plaintiff. And a rule having been obtained to show cause why the verdict should not be set aside, and a nonsuit entered, Bower and Kidd now showed cause, contending, first, that the evi- dence of usage offered did not support the right of the wharfinger. The mere opinion of the witnesses is of no weight. Usage must be established either by reputation, or by the actual exaction of the de- mand. Of the former kind there was none ; and of the latter there were (for aught appears) as many instances of denial to, as of compli- ance with, the demand ; and the learned judge himself thought at the 408 STEDS V. HAY. [CHAP. Till. trial that the usage was not satisfactorily established in point of fact. But even if it were, it could not be supported in point of law ; as was held in Stephen v. Coster, 1 where the very question arose as to tha wharfinger's right to wharfage, when the goods had not been landed on his wharf. And it is no answer to say that that case turned upon the construction of the 22 Car. II. c. 11, which enables the king by an order in council to regulate the rates of wharfage ; for the question was also argued on the ground of the common law, and upon that ground as well as on the construction of the statute was the judgment given. It appears, too, on inquiry made since the trial of this case, that the demand for anchorage and moorage, which is different from wharfage, is paid by the captain of the vessel ; and that it is customary when wharfage is paid for the goods not to charge for anchorage or moorage ; and therefore the captain was plainly interested in putting these goods into the hands of the wharfinger, in which case it would be a clear conversion. But, secondly, even supposing the captain to have acted as he did merely on the supposition that the wharfinger had such a right, and without any intention of exonerating himself from a charge, yet it has been held that not only claiming property as one's own, but asserting the right of another over it, is, upon demand and refusal, evidence of a conversion. As in Perkins, assignee of Hughes, a bankrupt, against Smith, where it was found that the defendant sold the goods for the use of his master, the court held that trover would lie, because the taking upon him to dispose of another's property, though not for his own use, was a tortious act, and the gist of such an action. The same is the case of every sheriff against whom trover lies for refusing to deliver the goods of one person to another. Cooper v. Chitty. 2 And yet there is no pretence to say in any of those cases that the party intended to convert them to his own use. And it is said expressly in Salk. 655, pi. 4, that though trover does not lie against a carrier if the goods appear to have been really lost by negli- gence ; yet if that do not appear, or if the carrier had them in custody when he denied to deliver them, it is good evidence of a conversion. Now this cannot be imputed to negligence, for it was a wilful disobe- dience of orders, and is therefore as strong evidence of a conversion as can be stated. Ershine, Mingay, and Xawes, contra, admitted that demand and refusal were prima facie evidence of a conversion, till explained, but no more ; for if conversion be not actually found on a special verdict in trover, judgment must be for the defendant. Now here the refusal was satisfactorily explained ; for the goods were delivered to the wharf- i 1 BL Eep. 413, 423. 2 1 Burr. 20. CHAP. VIII.] SYEDS V. HAY. 409 inger expressly for the use of the plaintiff; and therefore his right to them, so far from being denied, was recognized. The delivery to the ■wharfinger was in the usual course of trade. There was no evidence of its being done collusively ; and if done bona fide under an idea, whether well or ill founded, of a right in the wharfinger, trover, which is founded on a tort, will not lie ; but the plaintiff has his remedy by an action on the case against the carrier for a misdelivery. The wharf- inger may even be considered as the agent for the plaintiff; and all the cases of this kind, where trover has been maintained, such as Perkins v. Smith and Cooper v. Chitty, 1 have been either where the property has been altered by an actual sale, or the denial has been grounded on an assertion of property in some other person. But they are not ap- plicable to the present case. If the plaintiff had intended to dispute the claim of wharfage, he might have done it by bringing his action against the wharfinger. But supposing it necessary for the defendant to justify his denial under the right of the wharfinger, all the evidence given was in support of such a right ; and, however slight, it must be taken to be true, as none was opposed to it. The case of Stephen v. Coster appears to have turned altogether on the construction of the act of Car. II., for there was no evidence of a usage in that case. And with respect to what is said relative to the anchorage and moorage, it rests merely on assertion, of which the court can take no notice. Loed Kenyon, C. J. It is clear that the plaintiff is entitled to re- cover either against the defendant or the wharfinger ; and if no wharf- age be due, of which there was no satisfactory evidence, I think that this action may be maintained against the defendant. Ashhuest, J. If the wharfage duty be not due, it is clear that trover wil lie against the defendant. Or even if the defendant landed the goods on the wharf with the view of sheltering himself from the pay- ment of the moorage duty, that also would subject him to this action. Buxleb, J. I am of opinion that the objection to the form of the action is not well founded. For the plaintiff gave express orders to the defendant not to land the goods on the wharf, to which the latter agreed at the time, but afterwards disobeyed those orders and deliv- ered the goods into the possession of the wharfinger; now on these facts I think that trover will lie. I cannot go on the ground that the wharfinger was the plaintiff's agent ; for, so far from it, the plaintiff expressly dissented to the goods being sent there. And if one man, who is intrusted with the goods of another, put them into the hands of a third person contrary to orders, it is a conversion. If a person take my horse to ride, and leave him at an inn, that is a conversion ; for though I may have the horse on sending for him and paying for » 1 Burr. 20. 410 YOUL. V. HABBOTTLE. [CHAP. VIII.' the keeping of him, yet it brings a charge on me. So here the defend- ant, by putting these goods into the custody of the wharfinger, brought a charge on the plaintiff! And this is a deliberate act, it being done contrary to the orders of the owner, and therefore distinguishable from the case put at the bar of a misdelivery of goods, merely owing to a mistake. So stands the case independently of the evidence respecting the wharfage ; but that is very material to be considered, because, if the wharfage duty be due, that will be an answer to the present action. The usage set up at the trial does not appear to be uniform ; for, though several of the witnesses said that in their opinion it was due, yet opin- ion is no evidence, and in poin£ of fact the duty has not always been paid in cases where the goods were not landed. The case in Bl. Rep. goes a great way to prove that no such payment can be exacted. Grose, J., of the same opinion. On a subsequent day Loed Kenton said that the court had fully considered this case, and were of opinion that no new trial ought to be granted, and that the rule should be discharged. Per Curiam. Rule discharged. YOUL v. HARBOTTLE. At Nisi Peius, coeam Lokd Kenton, C. J., June 7, 1791. [Reported in 1 Peake, 49.] Teovee for goods. The plaintiff had put the goods in question on board the defendant's packet-boat, to be carried from London tc Gravesend. Another person coming to the defendant's house, and saying that these goods belonged to him, the defendant, under a mis- take, delivered them to him. Mingay, for the defendant, objected that upon this evidence the plaintiff must be nonsuited. Here was no evidence of a conversion; and though the defendant was liable to a special action on the case, yet trover could not be supported. JErshine relied on the case of Syeds and Another v. Hay, determined last term, which, he said, showed this act of the defendant to be a conversion. Loed Kenton. That case was determined on such peculiar circum- stances, that it is hardly possible it should ever apply as an authority in a case not exactly parallel with it. I agree that when a carrier loses goods by accident, trover will not he against him ; but when he delivers them to a third person, and is an actor, though under a mistake, this species of action may be maintained. Verdict for plaintiff . CHAP. VIII.J SOLOMONS V. DAWES. 411 NIXON and Others, Assignees of WHITESETT, a Bankrupt, v. JENKINS. In the Common Pleas, Mat 10, 1793. [Reported in 2 H. Blackstone, 135.] Whitesett, in contemplation of insolvency, and with a view to de- feat the claims of his creditors, sold a large quantity of goods to the defendant Jenkins. Soon after the sale he committed an act of bank- ruptcy, and his assignees brought this action of trover to recover the value of the goods. But having failed to prove at the trial a demand and refusal to deliver, the Lord Chief Justice was of opinion that they cOuld not recover, there being no evidence of a conversion. But it was agreed that the opinion of the court should be taken, and a rule was accordingly obtained to show cause why a nonsuit should not be entered ; against which Lawrence, Serjt., now showed cause. He contended that a demand and refusal were necessary to support an action of trover only in cases where the possession was originally lawful ; here it was a wrongful possession, inasmuch as the bankrupt had no right to make a fraudulent sale of his effects in order to cheat his creditors. And he cited 1 Sid. 264 ; 1 Leon. 223 ; 4 Burr. 2477 ; Hob. 187. But the court held that a demand and refusal were necessary to maintain the action. When the sale was made the parties were com- petent to contract ; there was no unlawful taking of the goods, though the transaction was liable to be impeached by the assignees. They might either affirm or disaffirm the contract ; and if they thought proper to disaffirm it, they ought to have demanded the goods, a refusal to deliver which would have been evidence of a conversion. Mule absolute for entering a nonsuit. SOLOMONS v. DAWES. At Nisi Prius, coeam Lord Kenyon, C. J., February 11, 1794. [Reported in 1 Espinasse, 83.] Teoter for a box and jewels. The demand had been made by the plaintiff's wife. The defendant had detained them till paid a demand he set up against the plaintiff for lodging. Per Lord Kenton. In an action of trover, where the demand of the things for which the action is brought is not made by the plaintiff 412 SHIPWICK V. BLANCHAED. [CHAP. VIII. himself, who is the owner, hut hy another person on his account, and the defendant refuses to deliver them, on the ground that he does not know to whom the things belong, and therefore keeps them till that is ascertained ; or that the person who applies is not properly empowered to receive them; or until he is satisfied by what authority he applies,— that shall not be deemed such a refusal as shall be evidence of a con- version sufficient to support this action. 1 SHIPWICK v. BLANCHARD. In the King's Bench, May 15, 1795. [Reported in 6 Term Reports, 298.] An action of trover for certain goods was brought in order to try the bankruptcy of o"ne Grunden, who was the landlord of the plaintiff for the house she inhabited. The defendant was his assignee under the commission. Heath, J., before whom this was tried at the last assizes at York, reported that on the 8th November, 1794, one Whit- ley, by order of the defendant as assignee, entered the plaintiff 's house, and seized and distrained her goods for rent in arrear to the bankrupt He declared this to the plaintiff at the time of the seizure, and gave her a written notice to that effect. The plaintiff, to redeem her goods, paid him £5 for rent and 40s. for the expenses. It appeared, further, that the debt of the petitioning creditor accrued and became due after the reputed acts of bankruptcy of Grunden. It was objected by the counsel for the defendant at the trial that this did not amount to a conversion ; but the learned judge, being of opinion that it was equiva- lent to a sale to a stranger, which had been deemed to be a conver- sion, and that trover was the proper action for trying questions of bankruptcy, overruled the objection, and the plaintiff obtained a ver- dict. Chambre on a former day obtained a rule to show cause why the verdict should not be set aside, on the ground that no actual conver- sion was proved ; that it was not in evidence that the defendant had laid his hands on any of the goods in question, but had merely given a notice in writing to the plaintiff that he seized such and such goods, enumerating them, as a distress for rent in arrear. Secondly, that there was no conversion in point of law. Law showed cause. The fact of obliging the plaintiff to advance money in order to redeem her goods from a wrongful distress amounts 1 See Connah v. Hale, 23 Wend. 471. — E». CHAP. VIII.] SHIPWICK V. BLANCHARD. 413 in law to a sale, which is a conversion. It is immaterial whether the goods were purchased by a stranger or bought in again by the owner. But even if that were otherwise, yet the extorting of 40s. by virtue of having possessed himself tortiously of the goods under a pretended legal right is of itself a conversion. There is no occasion for a party to take possession of goods by laying his hands upon them ; if he claim and assert a dominion over them, especially by turning the possession of them to his own profit, that is a clear possession in law to subject the wrong-doer to an action of trover. Chambre and Holroyd, in support of the rule. In order to maintain trover, the goods must be taken or detained with intent to convert them to the taker's own use, or the use of those for whom he is acting. Now here the goods were not taken at all, or if they were, they were taken under a special authority, and certainly not for the use of the party. There must be a taking in fact, and an exclusive possession in order to maintain trover, though there need not be a manual taking of the whole property. Taking the key of the warehouse, in which goods are deposited, or taking a part of the goods in the name of the whole, is sufficient. 6 Mod. 215. But here there was no taking in fact, but only a notice to the plaintiff that the things were taken without any removal of them or actual laying of hands on any part of them. There was no act amounting to a trespass, without which in this case trover could not be maintained. But at any rate the goods were not taken for the use of the party, but as a distress for rent ; he did not claim the disposition of them at the time : they were in custodia legis. If the distress were wrongful, the party might have replevied ; or if the money were wrongfully paid, it might be recovered back again in another form of action : but this was no sale of the goods, or in the nature of one. It was a payment, not for the goods, but for the rent, eo nomine, and the costs of the distress. The plaintiff acquiesced in the distress at the time, and the payment was made voluntarily in order to get rid of the distress, and not as a price for the goods. The court took time to consider of this case ; and now their opinion was delivered by Loed Kenton, C. J. This case stood over on account of some doubts in my mind whether an action of trover could be supported under these circumstances ; I have looked into the cases, and I have removed those doubts; though I must observe that similar doubts have been before entertained in cases of this kind. In Bunbury, 67, it was objected by the Attorney-General that trover would not lie against a custom-house officer for seizing goods not liable to seizure, because it could not be said that the officer had converted them to his own use ; and the Chief Baron Bury, inclining to be of that opinion, the plaintiff chose to be non- 414 SEVERIN V. KEPPEL. [CHAP. Tin. suited. The same case (as I suppose) is to be found in page 80 of the same book, though the form of the action appears to have been changed, and there the opinion of the court seems to have accorded with that of the Chief Baron. However, both those cases were fully considered in Tinkler v. Poole, when this court were of opinion that trover would lie against a custom-house officer for seizing the plain- tiff's goods, as it turned out that the seizure was not founded in law though Lord Mansfield, who tried the cause, had paused at Nisi Priua on account of the cases cited from Bunbury. So here, inasmuch as it appears that the distress made by the defendant under the assignee of the bankrupt was illegally made, because he was not the legal assignee, the petitioning creditor's debt not having accrued until after the act of bankruptcy, this action of trover may be maintained against the defendant who illegally made the distress. My doubts are re- moved by the case in Burrow. Mule discharged. 1 ' SEVERE* v. KEPPEL. At Nisi Pbius, coram Loed Ellenborotjgh, C. J., June 3, 1803. [Reported in 4 Espinasse, 156.] This was an action of trover for several articles of plate and plated goods, stated in the declaration. The defendant was a silversmith ; and they had been delivered to him for the purpose of putting glasses into them. He had been applied to on many occasions for the articles so delivered to him ; lie made excuses, and said the glass was not come from the glass- blower's ; there was no denial at any time to deliver the goods, but rather excuses for not delivering them : however, in one instance, the defendant admitted that the glass was come home ; but he then said, his wife was out, and he could not deliver them. He afterwards delivered the plated goods, and said he had sent the silver ones home ; which was not true. It was objected by the defendant's counsel that on the evidence given ■ there was no conversion sufficient to support the action of trover. Erslcine, for the plaintiffi contended that the defendant having, in the last instance, admitted his possession of the goods, and having made a frivolous and false pretence for not delivering the articles, 1 Abercrombie v. Bradford, 16 Ala. 660; Reynolds v. Shuler, 5 Cow. 323; Phillips v. Hall, 8 Wend. 610 ; Connah v. Hale, 23 Wend. 462, ace. —Ed. CHAP. VIII.] DRAKE V. SHORTER. 415 after his repeated excuses before made, that it was evidence of con- version sufficient to go to the jury; particularly from the circumstance of his having returned the plated goods, and pretended to have sent home the other ; which was not the case. Loed Ellenborough said, he thought the plaintiff should be non- suited, as there was no evidence to sustain the action in its present form ; that what begins in contract, a non-performance of what the party so undertakes to do, or a bare non-delivery of what he under- takes to deliver, is not to be considered as of itself amounting to a tortious conversion. There was a case in the Court of King's Bench some time ago, in which that principle was recognized. It was an action of trover against a carrier for not delivering goods. If a carrier says he has the goods in the warehouse, and refuses to deliver them, that will be evidence of conversion, and trover may be maintained; but not for a bare non-delivery, without any such refusal. So in this case, the goods were delivered to the defendant to work upon. There was no evidence of any refusal by him to deliver them ; but, on the contrary, he makes excuses for not doing it. The plaintiff must be called. 1 DRAKE v. SHORTER. At Nisi Peius, coram Loed Ellenboeough, C. J., Jttjste 9, 1803. [Reported in 4 Espinasse, 165.] Teovee for a boat. Plea of general issue. The case stated on the part of the plaintiff was, that the defendant, who was employed in an invention for making a vessel sail against wind and tide, had employed the plaintiff to work on her ; that while the vessel was so working on, she took fire; that the. defendant took a boat belonging to the plaintiff to endeavor to extinguish it, but that she sunk, and was lost. Garrow, for the defendant, stated his defence to be, that while the plaintiff was working on the vessel, it was his duty to have taken care of her, and that the interference, in this case, was to prevent the fire spreading, by means of which the accident happened ; which he con- tended was lawful. Loed Ellenborough said, that if the fact was so, he thought it amounted to a defence; that what might be a tort under one circum- stance, might, if done under others, assume a different appearance; as, for example, if the thing for which the action was brought, and 1 See Holbrook v. Wight, 24 Wend. 177. — Ed. 416 m'combie v. daties. [chap. vni. which had been lost, was taken to do a work of charity, or to do a kindness to the party who owned it, and without any intention of injury to it, or of converting it to his own use ; if, under any of these circumstances, any misfortune happened to the thing, it could not be deemed an illegal conversion ; but as it would be a justification in an action of trespass, it would be a good answer to an action of trover. The defendant failed in proving the circumstances as to the ship being in the plaintiff's care ; so that the accident of the fire proceeded from the defendant himself ; and the plaintiff had a verdict. 1 M'COMBIE v. DAVIES. In the King's Bench, June 21, 180. [Reported in 6 East, 638.] In trover for a certain quantity of tobacco, tried at the sittings after Michaelmas term, 1804, at Guildhall, before Lord Ellenborough, C. J., the plaintiff was nonsuited, on the ground that there was no conversion by the defendant. A motion was made in Hilary term last to set aside the nonsuit and for a new trial, and the opinion of the court was re- served on the following facts : The plaintiff, a merchant in Aberdeen, had employed one Coddan, an accredited broker in the tobacco trade, and a dealer in tobacco on his own account, to purchase for him some tobacco, which Coddan accordingly did ; and the tobacco in question 1 Coke, C. J. " There was a case resolved in the C. B. when I was there, concern- ing Gravesend barge, in which were a great number of passengers ; one there had a pack of great value and of great weight in the barge. There suddenly happened a very great storm, and they were all in great danger, and were, for their own safety, enforced to throw out a great part of the goods for the safeguard of their lives which were then in the barge ; amongst which goods, for the lightening of the barge, this pack of goods was thrown over ; afterwards, he which was the owner of this pack, brought his action upon the case against the bargeman, for these his goods thus cast over ; and we all there did resolve it clearly that this being the act of God, this sudden storm, which occasioned the throwing over of the goods, and could not be avoided, and for this cause he recovered nothing ; upon this reason is the case in 6 Eliz. in Dalison's Reports, where one was bound to keep and maintain the sea-walls from overflowing ; if this happen by his negligence, this shall be waste, otherwise if it so happen by the act of God suddenly, and so-unavoidable. The whole court agreed with him herein." Bird v. Astock, 2 Bulst. 280. See also 1 Roll. Abr. 6, pi. 5; Kennet v. Robinson, 2 J. J. Marsh. 84; Nelson v. Merriam, 4 Pick. 249 ; Wilson v. McLaughlin, 107 Mass. 687 ; Payne v. Robinson, Harp. 279 ; Nelson v. Whetmore, 1 Rich. 323 ; Sharp v. Nesmith, 6 Rich. 31 ; Waller v. Parker, 5 Coldw. 476. Conf. McCarroll v. Stafford, 24 Ark. 224; R. R. Co. v. HoU 8Ga. 161.— Ed. CHAP. Till.] M'COMBIE V. DATIES. 417 was part of it. But the defendant had no knowledge of the transaction between the plaintiff and Coddan. Coddan, the broker, bought the tobacco in his own name whilst it was in the king's warehouse, and had it transferred to himself in his own name in the king's warehouse, where it remained subject to the payment of the duties, as is usual, till the tobacco is actually delivered out of the warehouse. Coddan being in want of money, pledged the tobacco in his own name with the defend- ant for a sum of money, and transferred it into the defendant's name in the king's warehouse. Afterwards an application was made to the defendant, on the part of the plaintiff, for a delivery of the tobacco in question. The defendant answered that he had advanced money to Coddan thereon ; that he did not know M'Combie, and could not trans- fer it but to Coddan's order, and not till his advances were paid. On the 6th and 7th of November the following orders were addressed to the defendant. " B. A. — L 237, 649, 597, 659, 508. "Mr. Davies, please to deliver to the order of Mr. Thomas M'Combie the above five hogsheads of tobacco, his property. " Yours dec " Nov. 6, 1804. J. R. Coddan." " Mr. Davies, I have to request you will immediately deliver to me five hogsheads of tobacco, marked and numbered, &c. (as before) ; the same being my property, placed in your hands by my broker, J. R. Coddan, whose order for their delivery I now hand you ; and have to observe that if you do not deliver them over to me I shall be under the necessity of entering an action against you to enforce their delivery. " Yours, &c, " London, 7th November. T. M'Combie.'' The defendant received the said orders, but said that he should not deliver the tobacco until he was paid the money he had advanced on them to Coddan. The tobacco still remains in the king's warehouse, the duties not yet being paid thereon, entered in the books at the king's warehouse in the name of the defendant. W. Harrison, for the plaintiff. The tobacco having been purchased by the broker for the plaintiff, his principal, the plaintiff had the com- plete legal property and the right of possession of it, and the broker had no right afterwards to pledge it to the defendant; for this was a pledge, and not a sale. The king had only a lien upon it for the duty while it remained in his warehouse, and on payment of the duty the person in whose name it is entered may at any time remove it. It was as much in the defendant's possession while it remained in the king's. 27 CHAP. VIII.] ATTERSOL V. BRIANT. 419 POWELL v. SADLER. At Nisi Peius, coeam Loed Ellenboeough, C. J., Sittings aftek Eastee Teem, 1806. [Reported in Paley's Principal and Agent (3d edition), 80.] Teovbe for three horses. Plaintiff had sent the horses to defendant to be sold the next day ; defendant's clerk told him the next day would not be so good a time to sell them as the following sale day ; in consequence of which the plaintiff said he would send for them back again, which he did the next evening, but they had been sold. In a con- versation concerning the sale, the defendant said, "it was a mistake of his clerk, for which he was not answerable." Garrow, for the defend- ant, insisted that there was no evidence of a conversion. Loed Ellkn- BOEOUtffl, C. J. I am of opinion that a conversion has been proved ; the horses were intrusted to the defendant for a qualified purpose, which he has admitted was not conformed to. Where goods are com- mitted to one for a qualified purpose, any deviation from it in the disposition of them is a conversion ; " as if a man borrow a horse to ride, and leave him at an inn, it has been held to be a conversion." l ATTERSOL v. BRIANT. At Nisi Peius, coeam Loed Ellenboeough, C. J., July 22, 1808. [Reported in 1 Campbell, 409-1 Teovee for five thousand bricks. The case opened on the part of the plaintiff was, that the bricks in question had been sent to the de- 1 Loeschman v. Machin, 2 Stark. 311 ; Samuel v. Morris, 6 C. & P. 620-; Cooper v. "Willomatt, 1 C. B. 672; Van Amringe v. Peabody, 1 Mason, 440; Blakeley v. Bud- dell, Hempst. 18 ; St. John v. O'Connell, 7 Port. 466 ; Eobinson v. Hartridge, 13 Fla. 601 ; Yeldell v. Shinholster, 15 Ga. 189 ; Seago v. Pomeroy, 46 Ga. 227 ; Haas v. Da- mon, 9 Iowa, 689 ; White v. Wall, 40 Me. 574 ; Webber v. Davis, 44 Me. 147 ; Car- penter v. Hale, 8 Gray, 157 ; Simpson v. Carleton, 1 All. 109 ; Carroll v. McCleary, 19 Mich. 93; Johnston v. Whittemore, 27 Mich. 463; White v. Phelps, 12 N. H. 382 ; Murray v. Burling, 10 Johns. 172 ; Kennedy v. Strong, 14 Johns. 128 ; Chandler v. Belden, 18 Johns. 157 ; Bates p. Conkling, 10 Wend. 389 ; Vincent v. Conklin, 1 E. D. Smith, 203 ; Campbell v. Parker, 9 Bosw. 322 ; Jaroslauski v. Saunderson,'l Dalyj 232 ; Covell i: Hill, 6 N. Y. 374 ; Boyce v. Brockway, 31 N. Y. 490; Strong o. Nat! Mec. Bank Assoc, 45 N. Y. 718 ; Ogden v. Lathrop, 35 N. Y. Superior Ct. R. 73 ; Hope 420 SMITH V. YOUNG. [CHAP. Tin. fendant, to be carried by him as a common earner, and delivered to one Stiles; that he had asserted to the plaintiff he had delivered them to Stiles accordingly ; but that, in truth, he had not done so, and they had never reached Stiles's hands. Under these circumstances, it was contended, the defendant must be taken to have converted the bricks to his own use. Loed Ellenbobough, however, said that the facts stated were not sufficient evidence of a conversion to support an action of trover. Al- though the defendant might have been guilty of a tort respecting the bricks, it did not appear that he was guilty of the specific tort men- tioned in the declaration. The action was, therefore, misconceived. Plaintiff nonsuited} SMITH, Assignee oe TENANT, a Bankrupt v. YOUNG. At Nisi Peius, coeam Loed Ellenborough, C. J., Novembeb 1, 1808. [Reported in 1 Campbell, 439.] Tbovee for a lease assigned by the bankrupt to the defendant after an act of bankruptcy. The witness, to prove the demand, stated that he had verbally re- quired the defendant to deliver up the lease, and at the same time served upon him a notice in writing to the like effect. When the lease was demanded, the defendant said, "he would not deliver it up ; but it was then in the hands of his attorney, who had a lien upon it for a small sum of money due to him." Garrow, for the plaintiff, contended that the attorney's possession of the lease was in law the possession of the defendant, who must be con- sidered as having a complete control over it, and that the lien did not, under these circumstances, prevent the refusal to deliver up the deed from amounting to a conversion. Loed Eixenbobottgh. The defendant would have been guilty of a conversion if it had been in his power; but the intention is not enough. There must be an actual tort. To make a demand and re- v. Lawrence, 1 Hun, 317 ; Carraway v. Burbank, 1 Dev. 306 ; Etter v. Bailey, 8 Penn. 442; Harris v. Saunders, 2 Strobh. Eq. 370; Garvin v. Luttrell, 10 Humph. 16; Ainsworth v. Bowen, 9 Wis. 348; Couillard u. Johnson, 24 Wis. 533, ace. Conf. Downer v. Rowell, 24 Vt. 343, ace. —Ed. 1 Eobinson v. Austin, 2 Gray, 564 ; Seovill v. Griffith, 12 N. T. 609 ; Briggs v. N. Y. C. R. B. Co., 28 Barb. 515, ace. — Ed. CHAP. VIII.] DUPRESNB V. HUTCHINSON. 421 fusal sufficient evidence of a conversion, the party, when he refuses, must have it in his power to deliver up or to detain the article de- manded. Plaintiff nonsuited} BOARDMAN v. SILL. At Nisi Peius, coram Loed Ellenborough, C. J., Sittings aftee Michaelmas Teem, 1809. [Reported in 1 Campbell, 410.] Teovee for some brandy, which lay in the defendant's cellars, and which when demanded he had refused to deliver up, saying it was bis own property. At this time certain warehouse rent was due to the defendant on account of the brandy, of which no tender had been made to him. The Attorney- General contended that the defendant had a lien on the brandy for the warehouse rent, and that till this was tendered trover would not lie. But Loed Ellenboeough considered that, as the brandy had been detained on a different ground, and as no demand of warehouse rent had been made, the defendant must be taken to have waived his lien, if he had one, which would admit of some doubt. The plaintiff had a verdict? DTJFRESNE v. HUTCHINSON". In the Common Pleas, July 7, 1810. [Reported in 3 Taunton, 117.] This was an action of trover brought by the plaintiff, who was a manufacturer at Leeds, against the defendant, who was a broker in London, to recover the value of certain cloths which had been con- 1 See Edwards v. Hooper, 11 M. & W. 363. —Ed. 2 Knight ». Harrison, Saunders's PI. & Ev. 641 ; Thompson v. Trail, 6 B. & C. 36 ; Jones v. Tarleton, 9 M. & W. 675 ; Weeks v. Goode, 6 C. B. n. s. 367 ; Dirks r. Richards, 4 M. & Gr. 574 ; Clark v. Rideout, 39 N. H 238 ; Judah v. Kemp, 2 Johns. Cas. 411; Everett v. Saltus, 15 Wend. 474; Saltus v. Everett, 20 Wend. 267; Hol- brook v. Wight, 24 Wend. 169; Buckley v. Handy, 2 Miles, 449; West v. Tup'per, 1 Bail. 193, ace. Conf. Scarfe v. Morgan, 4 M. & W. 270; White v. Gainer, 1 C. & P. 324 ; s. c. 2 Bing. 23 ; Spence v. McMillan, 10 Ala. 583 ; Thompson v. Rose, 16 Conn. 85; Dows y.Morewood, 10 Barb. 183; Hanna v. Phelps, 7 Ind. 21. — Ed. 422 DUFRESNE V. HUTCHINSON. [CHAP. VIII. signed by the plaintiff to the defendant for sale upon commission. Upon the trial of this cause at Guildhall, at the sittings after last Hilary term, before Mansfield, C. J., it appeared that the plaintiff had delivered the goods to the defendant, valued at the invoice price of £972 Is. 2d., with positive instructions not to sell even at one quarter per cent below that price. The defendant having advanced money to the plaintiff on the credit of these goods, and finding himself unable to dispose of them at the price prescribed, became impatient, and placed the goods in the hands of certain other factors, named Bowdler and Morley, to be sold at all events for what they would produce, on the sole account of himself the defendant, he having a lien on the goods for the advances he had made. Morley, being called as a wit- ness, declared that he would not have paid over the proceeds to any person except the defendant. It appeared, however, that the plaintiff ultimately knew of the delivery of the goods to Bowdler and Morley, and consented that they should sell them at a price seven and a half per cent below the invoice price fixed ; to which they answered, that so small a reduction was merely nugatory ; but it did not appear that the plaintiff consented to any further diminution of the price. Bowd- ler and Morley sold the goods for somewhat more than £600, being the best price they could obtain. The plaintiff had sued out a writ in a joint action against Bowdler and Morley and the defendant, which he dropped upon receiving from Bowdler and Morley alone the sum of £200, and then commenced the present action against the defend- ant. The jury found a verdict for the plaintiff for the amount of the original invoice price, deducting therefrom the sums which the defend- ant had advanced to the plaintiff, and the seven and a half per cent which the plaintiff had consented to abate. CocJcell, Serjt., had, in the last term, obtained a rule nisi for entering either a nonsuit or a verdict for nominal damages only, upon two grounds : first, that as the goods lawfully came into the hands of the defendant to be sold on commission, if he, either in person or by his agents, improperly and improvidently sold them, the plaintiff's rem- edy was by an action upon the case, not by an action of trover; and, secondly, that supposing trover would lie, the sale actually made had furnished the true criterion of the real value of the goods, which was the proper measure of damages ; and since the plaintiff had consented that Bowdler and Morley should sell, and repay the defendant the advances he had made, the plaintiff was entitled to recover only the residue of the actual produce that remained after making that pay- ment. Best, Serjt., now showed cause. He contended, upon the author- CHAP. VIII.] DUFRESNE V. HUTCHINSON. 423 ity of Syeds v. Hay, that where a bailee disposes of goods in a manner contrary to the directions of the bailor, as here, trover lies, and that the parting with the goods at a less price than the plaintiff had fixed on them was a conversion by the defendant. He also cited the case of Youle v. Harbottle, where Lord Kenyon, C. J., held, that if a car- rier delivers goods to a stranger, he thereby becomes an actor, and is guilty of a conversion, for which trover lies. The defendant in the present case was an actor, for Bowdler and Morley held themselves responsible to him only ; and the money which they paid to the plain- tiff was not received by him in affirmance of their act, but was paid by way of buying off the action commenced against them for their misfeasance. CocJcell, contra, was stopped by the court. Mansfield, C. J., observed, that it clearly appeared that the plain- tiff had authorized Bowdler and Morley to sell at a price not more than seven and a half per cent below the invoice price. He could not therefore maintain trover against the defendant for the goods sold by them, whom the plaintiff had constituted his own brokers. The plaintiff had also brought an action against them, and received £200 in compensation for the injury of which he complained. Lawrence, J. Since the plaintiff sued out a writ against Bowdler and Morley jointly with the defendant, it must be taken that he meant to declare in such a form of action in which he could recover ; it must be presumed, therefore, that he would declare for money had and received, not in trover ; for the plaintiff had given to Bowdler and Morley an authority to sell, and therefore could not recover against them in trover. But by declaring for money had and received, the plaintiff would affirm the sale ; besides, if trover had been the right form of action, it would be a question whether the discharge made to one tortfeasor would not be a release to all ; if it were otherwise, the plaintiff might get paid by each defendant to the whole amount of the injury sustained. Rule absolute to enter a nonsuit. 1 1 Marr v. Barrett, 41 Me. 403 ; Bissell „. Huntington, 2 N. H. 142 ; Sarjeant v. Blunt, 16 Johns. 74, ace. Conf. Libley v. Story, 8 Vt. 15; Palmer v. Jar- main, 2M.&W. 282 ; Stierneld i>. Holden, 4 B. & C. 6 ; Harris v. Schultz, 40 Barb. • 815. — E». 424 LOVELL V. MARTIN. [CHAP. VIII. GREEN v. DUNN. At Nisi Prius, coram Lord Ellenborough, C. J., Sittings after Michaelmas Term, 1811. [Reported in 3 Campbell, 215.] Trover for timber, which defendant found on his premises, and which had been deposited there by the permission of the servant of the former occupier. The plaintiff, to whom the timber belonged, having demanded it of the defendant, the latter said„If you will bring any one to prove it is your property, I will give it you, and not else. Lord Ellenborotjgh. This is a qualified refusal, and no evidence of conversion. Plaintiff nonsuited,} LOVELL v.- MARTIN. Ik the Common Pleas, Mat 12, 1813. [Reported in 4 Taunton, 799.] The plaintiff being possessed of a bill drawn by T. White, at Ports- mouth, on the 7th of July, 1810, at six months after date, on Smith, Atkins, & Co., in favor of the plaintiff or his order, and accepted with this direction, " with Messrs. Martin, Stone, & Martin," indicating that the bill would be paid at their house in London, indorsed it, and casu- ally lost it. On the 4th of August he wrote to Smith, Atkins, & Co., stating the circumstance ; and Smith, Atkins, & Co., in consequence, applied to the defendants, requesting that they would not pay or discount the bill if offered : on the 7th, the defendants wrote back to the plaintiff that there was little chance of the bill being offered for discount, but if not recovered, care should be taken that it should not be paid when due, of which they requested that he would remind them. On the 2d of January, 1811, the plaintiff wrote to remind the defendants that the bill would soon fall due, viz., on the 10th of January ; to which they answered that they had long since discounted it for Powell, a bill broker, who was their cus- tomer. The bill had in fact been picked up by a child, from whom Powell had it ; the defendants discounted it for him, and at maturity charged the account of Smith & Atkins with the payment of the bill, noted it, wrote a discharge on the back of the bill, and delivered it up to Smith, Atkins, & Co., as a voucher of their account. The plaintifij 1 Gunton v. Nurse, 2 B. & B. 447, ace — Ed. CHAP. VIII.] LOVELL V. MARTIN. 425 without further communication, brought this action. His declaration contained two special counts in tort, alleging that the bill was stolen by persons unknown, and charging the defendants with having pre- vented the plaintiff from recovering it, and a count in trover. Upon the trial of the cause at the sittings after Trinity term, 1812, before Mans- field, C. J., it appearing that the first two counts incorrectly described the transaction, the plaintiff resorted to the last. Lens, Serjt., for the defendants, objected that a previous demand of the bill, and refusal to deliver it, was necessary as evidence of a conversion ; but the plaintiff on that count obtained a verdict. Lens, in Michaelmas term, 1812, obtained a rule nisi to set aside the verdict and enter a nonsuit. Shepherd and J3est, Serjts., in this term, showed cause against the rule. They urged that the defendants had been guilty of a complete conversion of the bill, having appropriated it to their own use by debit- ing Smith, Atkins, & Co. with the amount, after they had discounted it, and delivering up the bill to Smith, Atkins, & Co. The case was the same as if the defendants had carried the bill to Smith, Atkins, & Co., and received the amount from them. They took a bill belonging to the plaintiff, and gave it up to another, under such circumstances that they could not possibly get it back again. This was a conver- sion. Lens and Vaughan, Serjts., contra. If the plaintiff was entitled to the bill, he should have demanded it. There was neither demand nor refusal. The plaintiff neither shows an absolute destruction of the subject-matter, nor such an alteration of it as to prevent his having it in the same plight as before. If the plaintiff has a right to the bill, he may, upon obtaining possession thereof, still sue on it. But it was in- cumbent on the plaintiff to show that Powell, who was apparently the indorsee, had not a good title to the proceeds of the bill by affecting him with notice of the loss or theft ; for it is possible that Powell took it without that notice ; the noting was a perfectly nugatory act. Heath, J. Under the circumstances of this case, the count in trover may be maintained. The defendants have improperly discounted the bill ; they have sent it to Smith & Atkins as their voucher. Chambkb, J. I am of the same opinion. I think there is complete evidence of a conversion. The doctrine of the defendants' counsel ap- plies to detinue, not to trover; where the circumstances amount to a complete conversion, there is no need of a demand. The discounting the bill, and applying it to the defendant's own use, is a purchase of the bill by the defendants, after notice of the plaintiff's title ; but not only that : they have made use of it as a discounted bill. The writing a receipt on it was a further act of conversion. CHAP. VIII.] STEPHENS V. ELWALL. 427 direction in point of law, Perkins v. Smith was cited, and it was con- tended that the defendant being a tortfeasor, no authority that he could derive from his master would excuse him from being liable in this action. Park, who now showed cause, referred to the report of Perkins v. Smith, in Sayer, 40, and said, that the decision went too far, and that it had not been approved of by Lawrence, J., when cited to him on the western circuit. And he took this difference, that there the defendant received the goods with knowledge that the bankrupt had absconded and shut up shop. But in this case no demand was made until two years after the purchase ; therefore it would be a great hardship if the defendant were to be liable in respect of a demand, which from the lapse of time it is impossible to comply with. Topping and Richardson, contra, argued that the very assuming to dispose of another man's property was a conversion, and cited M'Combie v. Davies in support of that position; and in Potter, As- signee v. Starkie, 1 the court held the sheriff liable in trover, though he seized, sold, and paid over the money before commission issued, and before any notice, saying this necessarily followed from Cooper v. Chitty, 2 for it was an unlawful interference with another's goods. Loed Ellenboeough, C. J. The only question is, whether this is a conversion in the clerk, which undoubtedly was so in the master. The clerk acted under an unavoidable ignorance and for his master's bene- fit when he sent the goods to his master ; but nevertheless his acts may amount to a conversion ; for a person is guilty of a conversion who intermeddles with my property and disposes of it, and it is no an- swer that he acted under authority from another, who had himself no authority to dispose of it. And the court is governed by the principle of law, and not by the hardship of any particular case. For what can be more hard than the common case in trespass, where a servant has done some act in assertion of his master's right, that he shall be liable, not only jointly with his master, but if his master cannot satisfy it, for every penny of the whole damage ; and his person also shall be liable for it ; and what is still more, that he shall not recover contribution ? Le Blanc, J. I think the rule of law is very different from what I considered it at the trial. The great struggle made at the trial was, whether the goods were for Heathcote or not ; but that makes no dif- ference if the defendant converted them. And here was a conversion by him long before the demand. Per Curiam. Rule absolute? l Exch. M. T. 1807. 2 1 Burr. 20. 8 Craneh v. White, 1 B. N. C. 414 ; Davies v. Vernon, 6 Q. B. 443 ; Edgerly 0. Whalan, 106 Mass. 307; Flanders v. Colby, 28 N. H. 34; Thorp v. Burling, 11 Johns, 285, ace. —Ed. 428 HUEST V. GWENNAP. [CHAP. VIII. FORSDICK v. COLLINS. At Nisi Peius, coeam Loed Ellenboeough, C. J., Febeuaby 13, 1816. [Reported in 1 Starkie, 173.] Teovee for the value of a block of Portland stone. The stone had been placed by the plaintiff on the land adjoining some shells'of houses, which he had purchased in Hunter Street. The defendant afterwards coming into possession of the land, refused to permit the plaintiff to carry the stone away, and afterwards removed it himself to Burton Crescent Mews. Puller, for the defendant, contended that he had a right to remove it from his own premises. Loed Ellenboeough. But he is not justified in removing it to a distance. In an action of trespass at the suit of the owner, he must in his justification have alleged that he removed it to some adjacent place for the use of the owner ; he could not have justified this re- moval. JPuUer insisted that no sufficient demand had been proved. Loed Ellenboeough. A demand is unnecessary where the party has been guilty of a conversion, and he is guilty of a conversion where he oversteps the authority of law; here the defendant overstepped that authority by removing the property to a distance. Verdict for the plaintiff. HURST v. GWENNAP. At Nisi Peius, coeam Loed Ellenboeough, C. J., Sittings afteb Trinity Teem, 1817. [Reported in 2 Starkie, 306.] This was an action of trover, brought by the plaintiffs as the as- signees of Foster, a bankrupt, to recover the value of certain books. Foster was a bookseller, and on the 14th of June the defendant called at his shop and purchased two books of the value of £35 and £25, on sale and return. An act of bankruptcy had then been committed, but it did not appear that the defendant had any knowledge of the bank- ruptcy. Four days after the sale a commission of bankrupt was sued out against Foster. The assignees under the commission afterwards applied to the defendant to know whether he intended to keep the books or to return them, and he informed them that he should keep CHAP. VIII.] FEATHERSTONHAUGH V. JOHNSTON. 429 them. The assignees afterwards applied for payment of the amount, and sent in a bill of parcels, making the defendant debtor to Foster, and requesting payment to themselves as assignees. The defendant answered that Foster was indebted to him, and that he was ready to set off the price of the books. No subsequent demand of the books had been made before the action was brought, and the books still remained in the possession of the defendant. Ourney, for the defendant, contended that the assignees were not entitled to maintain an action of trover against the defendant, who had bought the goods in the usual course of trade, and knew nothing of the bankruptcy. That the assignees having applied to the defendant to know whether he would keep the books, and on his determination so to do, having demanded payment, had thereby affirmed the sale, and could not afterwards consider him as guilty of a conversion, and that at all events a subsequent demand was necessary. But Lord Ellenborough was of opinion that the action was maintain- able, since the very act of taking the goods from one who had no right to dispose of them was in itself a conversion. Verdict for the plaintiff. In the ensuing term Gurney moved for a rule to show cause why there should not be a new trial on the grounds which he had urged before, but the court refused a rule nisi} FEATHERSTONHAUGH v. JOHNSTON. In the Common Pleas, April 13, 1818. [Reported in 8 Taunton, 237.] Trover. At the trial of the cause before Park, X, at the sittings at Guildhall after the last term, it appeared that the plaintiff agreed to send a cargo of bottles by a ship of one Humble, from Sunderland to London. A dispute afterwards arose respecting the payment of freight and demurrage, whereupon the ship was ordered by Humble to sail, and the bottles were consigned by him to the defendant, who, without notice^f any adverse claim, sold a part. Afterwards the plain- tiff informed the defendant that the bottles were his property, and demanded to have them delivered up to his disposal ; to which the defendant answered that the greater part had been already sold. It was contended at the trial that the defendant was liable in this action only for the value of the part remaining unsold in his possession. The l Tatea v. Carnsew, 3 C. & P. 99 ; HUbery v. Hatton, 2 H. & C. 822, ace. — Eo. 430 FEATHERSTONHAUGH V. JOHNSTON. [CHAP. VIII. jury found a verdict for £717, being the value of the whole ; but leave was given to move to reduce it to £347, the value of the part remain- ing unsold. Sullock, Serjt., now moved accordingly, and insisted that, in order to make a demand and refusal evidence of a conversion, the party, when he refuses, must have it in his power to deliver up or to detain the article demanded ; and he cited Smith v. Young, where, when a deed was demanded of a defendant, he refused to deliver it up because it was in the hands of his attorney, who had a lien upon it ; and Lord Ellenborough held that that refusal was no evidence of a conversion, because the party, at the time he refused, had it not in his power to deliver up or detain the deed in question. Wherefore he contended that the defendant, in this case, was not liable beyond the value of the goods in his possession. Gibbs, C. J. I agree to the proposition that the demand and refusal in the case cited did not amount to a conversion. But it sometimes hap- pens that two points might be made in a case, and only one is made; and I cannot take the decision on that point as an authority to decide the other. In the present case, the defendant has been proved to have actually sold the goods in dispute, and a sale alone has been held, in many cases, to amount to a conversion. The principle of law is against the defendant, who has applied the goods to his own use. In the case of Horwood v. Smith, 1 an action of trover was brought by the owner of goods against the defendant, who had sold them, and it appeared that the goods had been stolen, and sold in market overt to the defendant ; and afterwards, and before the conviction, notice was given to the defend- ant by the plaintiff that the goods were his property, and, neverthe- less, the defendant sold them. After conviction the action was brought; and it was held that the plaintiff could not recover, because the sale in market overt protected the goods until conviction, and therefore the defendant was not liable for a sale during the protection ; but, unques- tionably, if the defendant there had sold after protection had ceased, the action would have lain. Therefore, I think there is no ground for the present motion. Dallas, J., Bueeough, J., and Paek, J., concurred. Rule refused. After the decision of the case, Hullock, Serjt., admitted that the case of Jackson v. Anderson 2 was also very strong against the defendant. M'Combie v. Davies was also mentioned. 8 i 2 Term Rep. 750. = 4 Taunton, 24. 3 Vandrink v. Archer, 1 Leon. 221 ; Bloxam v. Hubbard, 5 East, 407 ; Kyle v. Gray, 11 Ala. 233 ; Tomkins v. Haile, 3 Wend. 406 ; Morrill v. Moulton, 40 Vt. 242 ; New- gum v. Newsum, 1 Leigh, 86, ace. — Ed. CHAP. VIII.] DEVEREUX V. BARCLAY. 431 WATKINS v. WOOLLEY. At Nisi Pruts, coeam Richaedson, J., January 29, 1819. [Reported in Gow, 69.] Trover for a landau. It appeared that, some time after the act of bankruptcy was committed, the bankrupt sold to the defendant the lan- dau in question, for the sum of £25, and which sale the plaintiff by this action sought to rescind. Before the commencement of the action, a written demand of the landau, addressed to the defendant, was left at the defendant's house, but it did not appear that he had expressly refused to deliver it up. Vaughan, Serjt., for the defendant, contended that there was not sufficient evidence of a conversion. The landau came lawfully into his possession ; and, therefore, not only a demand of it, but a refusal on his part to comply with that demand, must be proved. Mere non-compli- ance with a demand cannot be such a tortious act as to establish a conversion. Richardson, J., ruled that the demand of the landau, and the non- delivery of it in pursuance of that demand, was evidence of a con- version. The plaintiff had a verdict. DEVEREUX v. BARCLAY. In the King's Bench, June 16, 1819. [Reported in 2 Barnewatt Sp Alderson, 702.] Trover for oil. Plea : Not guilty. At the trial at the adjourned sittings before last Hilary term at Guildhall, before Abbott, C. J., the plaintiffs proved a purchase of four tuns of sperm oil, then lyino- at the defendants' warehouses, from a person of the name of Collinson. The following delivery order was given, dated 13th February, 1818 : " To Messrs. A. & W. Baeclay, Leicester Square. — Please to deliver to the order of Messrs. Devereux and Lambert, the undermentioned goods (enumerating them). Charges from 27th February to be paid by Messrs. Devereux & Co. Edwaed Collinson." Soon after this transaction, Collinson, who had in the mean time purchased from Mr. Gamon, a broker, without the defendants' knowl- edge some dark sperm oil of inferior value, then also lying at the defendants' warehouse, sold this latter quantity, about three tuns, to a third person, and gave the following delivery order, dated 3d March, 432 DEVEREUX V. BARCLAY. [CHAP. Tin. 1818: — "To Messrs. A. & H. Barclay. Please to deliver to Mr. Dale's carts my dark sperm oil." The defendants, not being aware that the two parcels of oil both belonged to Collinson, by mistake delivered the first parcel of oil to the second delivery order, the first delivery order not having been at that time presented to them by the plaintiffs. The plaintiffs, on the 28th March, presented their deliv- ery order and demanded the oil. Abbott, C. J., being of opinion that this misdelivery, by mistake, did not amount to a conversion so as to entitle the plaintiffs to maintain trover, directed a nonsuit. A rule nisi for a new trial having been obtained, Scarlett and Manning now showed cause. The mistake which has occurred is solely imputable to the negligence of the plaintiffs in not sooner sending their delivery order to the defendants. The conversion must be an injurious act. A mere misdelivery by mistake will not do. That was so considered by Buller, J., in Syeds v. Hay. The case of a warehouseman and a carrier stand on the same ground. Now for a misdelivery by a carrier trover will not lie, although he may be liable for negligence. Ross v. Johnson; Townsend v. Inglis. 1 Here, too, the property, even supposing a conversion, was not changed as be- tween Barclay and Devereux at the time of the conversion ; for although by the sale it was changed as between Devereux and Collinson, yet, till the defendants were made acquainted with that sale, the goods, as far as they were concerned, remained the property of Collinson. Gurney and Jones, contra, were stopped by the court. Abbott, C. J. What effect the production of further evidence may have, the court cannot anticipate at present ; it is quite sufficient to say that this cause having been stopped too soon, the plaintiffs are entitled to a new trial. This is not the case of an innocent delivery, for it is one contrary to the knowledge which, in point of law, the de- fendants ought to have had. There is a great distinction between an omission and an act done. In the case cited from Burrow no act was done, and Lord Mansfield expressly said that it was a mere omission. But here there is an act done by the defendants, which, in its con- sequences, is injurious to the plaintiff. Upon this evidence, therefore, I am now of opinion that trover may be maintained. Batlet, J. The case of Youl v. Harbottle shows that a carrier is liable in trover for a misdelivery. Holeotd and Best, JJ., concurred. Mule absolute.' i HoltN. P. 278. 2 Mills v. Ball, 2B. & P. 457; Lubbock v. Inglis, 1 Stark. 104; Stephenson v. Hart, 4 Bing. 476 ; Bullard v. Young, 3 Stew. 46 ; Ala. & T. R. R. R. Co. v. Kidil, 85 Ala. 209 ; Adams v. Blakenstein, 2 Cal. 413 ; Hanna v. Flint, 14 Cal. 73; HI. C. R. R. Co. v. Parks, 54 111. 294 ; Claflin v. B. & L. R. R. Co., 7 All. 341 ; Smith B.Bell, CHAP. VIII.] SUMMERSETT V. JARVIS. 433 STJMMERSETT v. JARVIS and Others. In the Common Pleas, June 29, 1821. [Reported in 3 Broderip Sf Bingham, 2.] Trover for sundry account-books, and other property. At the trial, before Dallas, C. J., Guildhall sittings after Hilary term last, the de- fendants, who were assignees under a commission of bankrupt, which had been issued against the plaintiff (a farmer, who kept hounds), proved that he, having purchased for his hounds a number of dead horses, had been accustomed to sell the skins and bones ; and, upon one occasion, said he should make a good thing of them. The plain- tiff's witnesses said the dead horses were purchased expressly for the dogs, and never with any view of ulterior profit. They also proved that the defendant, Jarvis, in the character of assignee, had insisted on the plaintiff's delivering up his books, and that he thereupon delivered them; but it was not proved that the plaintiff had demanded the books of the defendants previously to the commencement of this action. The jury having found a verdict for the plaintiff, and that he was not a trader when the petitioning creditor's debt accrued, Taddy, Serjt., on a former day, obtained a rule nisi to set aside this verdict, and enter a nonsuit instead, or for a new trial, on the ground, first, that the verdict was against evidence ; secondly, that the plain- tiff, having delivered his books for a legal purpose to the assignees, when called on to do so, had not parted with them on compulsion, so that, until a formal demand was made by the plaintiff, the defendants were guilty of no conversion ; and such demand having never been made, the plaintiff could not maintain his action. Nixon v. Jenkins. . Lens, Serjt., for the plaintiff, contended that the delivery above stated was a delivery on compulsion ; that, therefore, a demand on the part of the plaintiff was unnecessary ; and that the supposition of the plaintiff's having been a trader was completely disproved, because, if a man bought a thing for his own use, and happened to have more than he wanted, his selling the surplus would not make him a trader. Taddy and Peake, Serjts., having been heard in support of the rule, and having referred to Jarrett v. Leonard, 1 9 Mo. 873 ; Bufour v. Mepham, 31 Mo. 577 ; Ostrander v. Brown, 15 Johns. 89 ; Powell v. Myers, 26 Wend. 591 ; Willard v. Bridge, 4 Barb. 361 ; Esmay v. Fanning, 9 Barb. 176 ; Guillaume v. H. & A. Packet Co., 42 N. Y. 212 ; Viner v. N. Y. St. Co., 60 N. Y. 28 ; Bush v. Roraer, 2 N. Y. Supreme Ct. 597 ; Compton v. Shaw, 3 N. Y. Supreme Ct. 761 ; Graves v. Smith, 14 Wis. 5, ace. Conf. Crouch v. Gr. N. R. R. Co., 11 Ex. 756 ; M'Kean v. M'lyor, L. R. 6 Ex. 36. — Ed. i 2 M. & S. 266. 28 434 ALEXANDER V. SOUTHET. [CHAP. Vm. The Cottrt expressed a clear opinion that the facts of this case did not constitute a trading, within the intent of the bankrupt laws ; that the defendants having taken the books when they were armed with the authority of assignees, the plaintiff must be deemed to have delivered them up on compulsion ; that the defendants were thereby guilty of a conversion; and that, consequently, the plaintiff's action was main- tainable, without any formal demand on his part. Mule discharged. 1 ALEXANDER v. SOUTHEY. In the King's Bench, .November 14, 1821. [Reported in 5 Barnewall $• Alderson, 247.] Tkovek for printing-types and other goods. Plea : General issue. At the trial, at the last Guildhall sittings, before Best, J., it appeared that the defendant, who was the servant of the Albion Insurance Com- pany, had in his custody in a warehouse, of which he kept the key, cer- tain goads belonging to the plaintiff, saved from a fire at the plaintiff's house, and which had been carried to the warehouse by the servants of the company. The only evidence of a conversion was that, when the plaintiff demanded the goods from the defendant, the latter said that he could not deliver them up without an order from the Albion office. The learned judge left it to the jury to say whether this quali- fication of the defendant's refusal was a reasonable one, telling them that, if so, he was of opinion that there was not sufficient evidence of a conversion. The jury, accordingly, found a verdict for the defendant. And now Denman moved for a new trial, on the ground of a misdirection. Here there was a tortious intermeddling with the plaintiff's goods by the defendant's refusal to deliver them up. This was, therefore, a conversion ; and Perkins v. Smith and Stephens v. Elwall were both instances where servants were held liable for a conversion, although it was done for the benefit of their masters. These authorities are in favor of the plaintiff in this case. Abbott, C. J. I am of opinion that in this case there should be no rule. Perkins v. Smith and Stephens v. Elwall were both cases of actual conversion by servants, in disposing of goods the property of others, to their master's use ; but here the question is whether the re- fusal of the servant to deliver the goods in question amounts to a con- * See Grainger v. Hill, 4 B. N. C. 212, ace. ; Conf. Powell r. Hoyland, 6 Ex. 67. — Ed. CHAP. TIH.] ALEXANDER V. SOUTHET. 435 version of the property. This, therefore, is the case of a conversion arising by construction of law. I think the refusal in this case, not being 3 an absolute refusal, was not sufficient evidence of a conversion, and that the learned judge was right in so considering it, and in direct- ing the jury to find a verdict for the defendant. Batlbt, J. If the plaintiff in this case had informed the defendant that he had previously made application to the insurance company, and that they had refused permission for the delivery of the property, or had told the defendant that he expected him to go and get an order authorizing the delivery of the property, and after that the defendant had refused either to deliver the goods or to go and get such order, I think it would have amounted to a conversion on his part ; but here the defendant had the goods in his possession as the agent of the in- surance company, and he would not have done his duty if he had given them up without an application to his employers. He only gave, as it seems to me, a qualified, reasonable, and justifiable refusal. Holroyd, J. I think the verdict in this case was right. In point of law, the goods were only in the custody of the defendant, and in the possession of his employers, the insurance company. If we were to hold this refusal to be a conversion, it would go this length, that if a person were to call at a gentleman's house, and to ask his servant to deliver goods to him, and the servant were to refuse to do so, unless a previous application was made to his master, it would amount to a con- version on the part of the servant. In this case the goods came into the defendant's possession lawfully; and the refusal is only till an order is obtained from the defendant's employers. In Perkins v. Smith, the defendant received the goods wrongfully at first, and the conversion was by an actual sale of them. Now, it is clear that the authority of the master would not amount to a defence of that which was altogether a tortious act of the servant. The case of Mires v. Solebay is an au- thority in point. There the servant refused to deliver back some sheep which were on his master's land, and it was held to be no conversion on his part. I am, therefore, of opinion that the rule should be refused. Best, J. I thought at the trial that I might properly have non- suited the plaintiff, but that the safer course was to leave the question to the jury. An unqualified refusal is almost always conclusive evi- dence of a conversion; but if there be a qualification annexed to it, the question then is, whether it be a reasonable one. Here the jury thought the qualification a reasonable one, and that the refusal did not amount to a conversion of the property, and I think they were right in that conclusion. Rule refused. 1 i Ingalls v. Bulkley, 15 111. 224 ; Mount v. Derick, 5 Hill, 455 ; Blankenship v. Berry, 28 Tex. 448, ace. See also Clark v. Chamberlain, 2 M. & W. 78. — En. CHAP. VIII.] MALLALIEU V. LAUGHER. 437 SAXEBY v. WYNNE. In the King's Bench, Hilaet Teem, 1825. [Reported in 3 Starkie's Law of Evidence {Zd edition), 1169.] A. deposits goods with B., and then sells them to C, and afterwards directs B. to deliver the goods to D. ; B. is not guilty of a conversion in delivering them to D. 1 MALLALIEU v. LAUGHER and Anotheb. At Nisi Pruts, coram Best, C. J., Decembeb 15, 1828. [Reported m 3 Carrington fy Payne, 551.] Teovee for two trunks, containing wearing apparel, &c. Plea : Not guilty. The plaintiff, who lived at Manchester, deposited the trunks in question at the warehouse of a Mr. Smith, in Cheapside. The defendant Laugher, who was a merchant in London, and agent to Messrs. Knight & Fossett, of Birmingham, instituted proceedings in the sheriff's court ; in consequence of which, on the 31st of March, 1828, the other defendant, who was named Page, and was an officer of the sheriff's court, accompanied hy other persons, went to the ware- house of Smith, and delivered to him a paper containing a notice of attachment at the suit of Laugher ; and having done this, he laid his hand on the trunks, and said, " I attach these as the property of Knight & Fossett." He afterwards put his seal upon them. On the 7th of April, Mallalieu's attorney gave a notice to the defendant Laugher, requiring him forthwith to withdraw the attachment, and pay the expenses which had been incurred, and threatening an action in the event of a refusal. On the 15th of April, the attorney in the presence of Page opened the trunks, when it appeared that they did not contain any Birmingham goods. He immediately went to the defendant Laugher, and told him what had been done, and whose the goods were. He said he was satisfied with the information, and should act as he was advised. The attachment was withdrawn on the 28th of April. Wilde, Serjt., for the defendant. The plaintiff must be called. The attachment does not take the goods out of the hands of the gar- nishee ; it does not alter the possession ; and therefore it is no conver- ' See Cranch v. White, 1 B. N. C. 420, per Vaughan, J. — Ed 438 MALLALIEtX V. LAUGHER. [CHAP. Till. sion. The garnishee is under no obligation to hold any goods but those of the debtor. He may plead that he has no goods of the debt- or's in his hands. "What the officer said was only a declaration that the particular articles are the goods of the debtor. It is no more than a notice. This is not an action on the case for preventing the takinc by the plaintiff; the garnishee might deliver at his discretion. There can be no conversion without the party has possession or control. The plaintiff did not demand the goods of Smith, and there is no evidence that he wanted them. Best, C. J. I have great difficulty in saying that trover is main- tainable here. Taddy, Serjt., for the plaintiff. It is quite sufficient cause of action in trover, that there has been a seizure in consequence of process from a court of local jurisdiction, as the owner could not take the goods without subjecting himself to the powers of that court. In the case of M'Combie v. Davies, there is a dictum of Lord Ellenborough, where he refers to a case of Baldwin v. Cole, in which it was held that the taking an assignment of property is a conversion, although the assign- ment was not valid to pass the property. It is the meddling or inter- fering with the property which constitutes the conversion. This is not an attachment generally of any property of Knight & Fossett's which Smith might have, but of the specific articles. Any intermed- dling is sufficient. Lord Ellenborough says, " Certainly a man is guilty of a conversion who takes my property by assignment from another, who has no authority to dispose of it ; for what is that but assisting that other in carrying his wrongful act into effect." The act of seizure . in its natural effect produces a detention which is an inconvenience to the owner. Best, C. J. I am no great friend to the action of trover, nor to any action which keeps parties so much in the dark as those forms which are founded upon fiction. I cannot find any instance similar to the present, and I am unwilling to extend the operation of such actions. I think my Lord Ellenborough went to the extreme verge of the law in M'Combie v. Davies. As far as that I should go myself, and agree with the decision of my Lord Holt. In the case decided by my Lord Ellenborough, the state of the property was changed, be- cause there was a transfer in the dock books, which, it is well known, is as much a transfer for the purposes of trade as an actual removal from one warehouse to another. There was in that case the exercise of dominion over the goods. But, in the present case, the man does not remove the goods, he leaves them still where they were, in the possession of Smith ; and I do not think that is enough to support an action of trover. I think it better, in all these cases, that we should CHAP. Till.] JONES V. POET. 439 not allow this nonsensical form of losing and finding to be extended any farther than it has at present gone. Where the law has been settled we ought not to unsettle it ; but, where it has not, we should take care that this absurd jargon is not carried any farther, particularly when there are forms of action which give the party the advantage of knowing the nature of the case against him. I think it right that the plaintiff should be called ; but I will give my brother Taddy leave to move the court to enter a verdict for nominal damages. JVbnsuit. 1 JONES and Othees, Assignees op SYKES and BURT, Bank- rupts v. FORT. In the King's Bench, July 8, 1829. [Eepmied in 9 Barnewatt $• Cresswett, 764.] The first count of the declaration charged that the defendant de- ceitfully obtained possession of five bills of exchange under the pre- tence of discounting them. The remaining counts were in trover, alleging a conversion after the bankruptcy. Plea: Not guilty. At the trial before Lord Tenterden, C. J., at the London sittings after Trinity term, 1828, it appeared that the action was brought to recover five bills of exchange delivered by the bankrupts to the defendant on the 23d of July, 1825, as the plaintiffs alleged, in contemplation of bankruptcy. One was drawn on James Hunter & Co., due the 23d July, 1826, for £3,000; another on M'Lachlan & Co., due the 21st October, 1826, for £1,500 ; and three others, each £500, on Thomas Ferguson, two of which were due 29th November, 1826, the other the 5th November, 1826. Sykes & Bury committed an act of bankruptcy on the 28th November, 1825, and on the 30th a commission issued against them, under which they were duly declared bankrupts, and the plaintiffs were appointed assignees. It appeared that Fort had received the amount of some of the bills when they became due. It was proved, on the part of -the plaintiffs, that after the bills became due, on the 23d October, 1827, a person employed by the assignees as accountant to the estate demanded the bills from the defendant on account of the assignees. The defendant referred the accountant to his attorney, but the accountant did not apply to the attorney. And it was thereupon contended, on the part of the defendant, that the demand having been made after the bills became due was not sufficient, and that the an- l Herron v. Hughes, 25 Cal. 555 ; Rand v. Sargent, 23 Me. 326 ; Fernald v Chase 37 Me. 289 ; Bailey v. Adams, 14 Wend. 201. — Ed. ' 440 JONES V. PORT. [chap, viii. swer of the defendant did not amount to a refusal. The plaintifls con- tended that the receipt of the money due on the bills by the defendant was an actual conversion, and, therefore, that it was unnecessary to prove a demand and refusal. Lord Tenterden thought there was no evidence of a demand made before the bills became due, or of any re- fusal by the defendant to deliver up the bills, and that the receipt of the money as it became due on the bills was not an actual conversion, but said he would reserve liberty to the defendant to move to enter a nonsuit in case a verdict should be found for the plaintiffs. The cause then proceeded ; and Lord Tenterden directed the jury to find for the plaintiffs, if, upon the evidence, they thought the bills had been deliv- ered by the bankrupts, in contemplation of bankruptcy, to the defend- ant with a view of giving him a preference. The jury found for the defendant on the first count, and for the plaintiffs on the counts in trover ; and a verdict was ultimately entered for the plaintiffs for £3,500, the defendant undertaking to deliver to the plaintiff such of the bills as remained in his hands unpaid. A rule nisi had been ob- tained for entering a nonsuit, on the ground that there was no evidence of a conversion ; and Nixon v. Jenkins was cited, where there was a collusive sale of goods by a trader on the eve of bankruptcy ; and it was contended that a demand and refusal were necessary only in cases where the possession was originally lawful ; that in the case then be- fore the court there was a wrongful possession, inasmuch as the bank- rupt had no right to make a fraudulent sale of his effects in order to cheat his creditors ; but the court held, that when the sale was made the parties were competent to contract ; there was no unlawful taking of the goods, though the transaction was liable to be impeached by the assignees : they might either affirm or disaffirm the contract ; and if they thought proper to disaffirm it, they ought to have demanded their goods, — a refusal to deliver which would have been evidence of a con- version. The Attorney- General, Piatt, and J. Evans, on a former day in this term showed cause. The receiving the money by the defendant was an actual conversion of the bills. It was not necessary, therefore, to prove any demand and refusal. That is only evidence from which a jury may presume a conversion. All the bills became due, and the money was received after the act of bankruptcy ; therefore the conver- sion was after the act of bankruptcy. In Nixon v. Jenkins no conver- sion whatever was proved ; and in the absence of such proof it was necessary to show a demand and refusal. F. Pollock, contra. In order to recover in trover the plaintiffs were bound to prove either an actual conversion of the bills by the defend- ant, or a demand and refusal (which are evidence of a conversion) CHAP. VIII.]". HAYWARD V. SEAWARD. 441 during the time the bills remained in his possession. There was no proof of any demand and refusal before the bills became due, and the defendant had received the money. Nor was there any refusal to de- liver up the bills in answer to the demand proved, for the defendant only referred to his attorney : that was not a refusal. The receipt of the money, and the delivery of the bills to the person who paid it, was not a wrongful conversion of the bills. The delivery of the bills to the defendant was lawful at the time it was made ; his possession was, therefore, lawful. Nbn constat that the assignees would disaffirm the act of the bankrupt ; and until they did, the defendant, as the holder of the bills, was not only entitled to obtain and receive payment, but would have been guilty of a breach of duty if he had not done so. The receipt of the money when the bills became due, and the delivery of them to the persons who paid them, was an act done by the defendant, not in the exercise of any right, but in the discharge of a duty. It clearly, therefore, was not a wrongful conversion. Nixon v. Jenkins is in point. The assignees, if entitled to the produce of the bills, should have brought money had and received. Cur. adv. vult. Loed Tenterden, C. J., now delivered the judgment of the court. In this case a rule was obtained for entering a nonsuit on the ground that there had not been before the action, and within such time as was necessary, a demand of the bills and a refusal. No demand had been made till after the bills became payable, and the money due on them had been received by the defendant. It was contended, in support of the action, that the receipt of the money by Fort, when the bills be- came due, was in itself a conversion. But we are of opinion that it was not, because the bills being in the hands of Port, it was his duty to receive the money when due, to whomsoever it might belong; and it would, according to the finding of the jury, have belonged to the assignees. But in this form of action they cannot recover without proving an actual conversion or a demand (made within proper time) and a refusal, which are evidence of a conversion. The rule for enter- ing a nonsuit must, therefore, be made absolute. Rule absolute. 1 HAYWARD and Others v. SEAWARD and Another. In the Common Pleas, April 19, 1832. [Reported in 1 Moore $• Scott, 459.] This was an action of trover to recover the value of a steam-boiler and apparatus detained by the defendants under the following circum- stances : — i Conf. Tennant u. Strachan, M. & M. 377 ; Kobson u . Rolls, 1 M. & Rob. 239. — Ed. 442 HAYWARD V. SEAWARD. [CHAP. VIII. The plaintiffs were owners of the " Royal George " steam vessel. The defendants were engineers at Limehouse. In the month of October 1830, the boiler in question being out of repair, the vessel was brought alongside the defendants' wharf, and the boiler unshipped for the pur- pose of repair. The owners of the " Royal George," however, having determined to substitute a new boiler, no repairs were done. Shortly afterwards the plaintiffs sent a barge to the defendants' wharf for the old boiler, which the latter refused to redeliver unless paid a sum of £55 5s., for landing, cleaning, and reshipping it on board the barge. The plaintiffs tendered £23 2s., and demanded the boiler. The defendants refused to accept the sum tendered, or to restore the boiler. On the 12th November, 1830, the following letter was sent by the plaintiffs' coun- sel to the defendants : — "Gentlemen, — On behalf of the owners of the "Royal George" steam vessel, I am instructed to commence an action against you for your illegal detention of the boiler and other things belonging to that vessel. The sum of £23 2s. has been offered to you, and is still ready to be paid you on your reshipping the boiler, <&c. ; which is more than you can justly claim. This you have refused, and you refuse to deliver up the boiler, &c, unless a demand of £55 5s. is paid. This sum is considered exorbitant. Most of the things are necessary for the vessel, and must be immediately supplied. I request to be favored with the name of your attorney, to whom I shall send process in the event of this matter not being immediately settled." This letter was on the following day answered by the defendants' attorney as follows : — " Sir, — I am directed by Messrs. Seaward to inform you that they consider the demand made by them on the owners of the "Koyal George " steam vessel fair and reasonable, and such as ought, under all circumstances, to be paid on reshipping the boiler. To avoid any in- convenience to your clients by not having the boiler, Messrs. Seaward & Co. request me to inform you that you may at any time take away the boiler, and any other articles belonging to your clients, and they •will resort to an action to recover what is due to them. If after this notice the boiler remains on the premises, they will require rent for the same." On the same day a writ was issued against the defendants, and on the 15th the plaintiffs' attorney wrote to the defendants' attorney as follows : — " Your letter of the 13th instant is unsatisfactory ; and if a compro- mise is to take place, it must not be on the terms you mention. My CHAP. VIII.] PHILPOTT V. KELLEY. 443 clients expect that the defendants will pay for the boiler and apparatus 6t> unjustly detained, or that a more equitable offer shall be made." The cause was tried before Lord Chief Justice Tindal, at the sittings at Guildhall after last Hilary term. Witnesses were called on the part of the plaintiff to prove the foregoing facts, and also to prove that the sum of £23 2s. was more than an adequate compensation for what had been done by the defendants. His Lordship, however, told the jury that the plaintiffs were not entitled to recover after the offer of the defendants, by their letter of the 13th November, to give up the boiler. The jury accordingly returned a verdict for the defendants. Mr. Serjt. Jones, on the part of the plaintiffs, now moved for a rule nisi that this verdict might be set aside, and a new trial had, on the ground of misdirection. He submitted that the refusal of the defendants to restore the boiler upon the demand made by the plaintiffs amounted to a conversion, which could not be purged by any subsequent act of the parties ; and that the letter subsequently written by the plaintiffs' attor- ney did not amount to a waiver of the right of action vested in him by the act of conversion. Lord Chief Justice Tindal. A demand and refusal are evidence only, not conclusive, of the fact of conversion. The question here is, whether the plaintiffs ought to have brought their action after the let- ter of the defendants' attorney, dated the 13th November. In that letter their attorney says : " To avoid any inconvenience to your clients by not having the boiler, Messrs. Seaward & Co. request me to inform you that you may at any time take away the boiler, and any other arti- cles belonging to your clients ; and they will resort to an action to recover what is due to them." After that, it seems to me impossible to say that there has been any conversion. The jury could not have found any other verdict. I therefore think no rule should be granted. Mr. Justice Park and Mr. Justice Gaselee concurred. Mr. Justice Alderson. A demand and refusal are only evidence of a conversion. The refusal in this case was cured by the offer subse- quently made, but before the issuing of the writ, to restore the boiler. Mule refused} — . — — • PHILPOTT v. KELLEY. In the King's Bench, April 28, 1835. [Reported in 3 Adolphus fr Ellis, 106.] Trover for port wine, bottles, casks, &c. Pleas : Not guilty, and the Statute of Limitations. Issues thereon. At the trial before Lord 1 Wells v. Kelsey, 15 Abb. Pr. 53; Savage v. Perkins, 11 How. Pr. 17, ace. — Ed. 444 PHILPOTT V. KELLET. [CHAP. VIII. Lyndhurst, C. B., at the spring assizes for Kent, 1834, one Croasdill, son-in-law of the defendant, was called on behalf of the plaintiff, and stated that in 1825 he took charge of a pipe of port wine for the plain- tiff! to whom it belonged, and placed it in the defendant's cellar by her leave. Some proof was given that he at that time asked her to take part of it on her own account. It appeared further that, in November, 1826, a commission of bankrupt issued against Croasdill, founded on acts of bankruptcy committed during that year, and an assignment was executed on the 6th of December, 1826. Before Christmas the wine was claimed of the defendant by the assignees, but she refused to deliver it. Messrs. Brocks & Co., solicitors for the plaintiff, wrote the following letter to the defendant, dated the 26th December, 1826: " Madam, — We are informed by Mr. Philpott that a pipe of port wine, purchased and paid for by him, and in your custody, has been applied for under the pretence that it belongs to the assignees of Croasdill, who has been declared a bankrupt. We, therefore, as solic- itors for Mr. Philpott, give you notice not to part with the same to any one but such person as shall be duly authorized to receive the same by Mr. Philpott, or by us as his solicitors." The defendant did not give up the wine, and in December, 1826, or January, 1827 (more than six years before this action was commenced), she bottled part of it, which she afterwards used, but at what time did not appear. The wine was then becoming deteriorated by remaining in the wood. On the 22d of November, 1827, Messrs. Brooks & Co. wrote to the defendant as follows : — " Madam, — Mr. Philpott of Canterbury has instructed us to com- mence the necessary proceedings for the recovery of the pipe of port wine, which for his convenience was placed in your cellar, and was demanded of you so long ago as the 12th of March last ; but as Mr. Philpott has no wish to put you to any unnecessary inconvenience or expense, we have to propose to you, that in case you will deliver up the same to him within a week from the present time, he will indem- nify you against any claim that might hereafter be set up by any other person to the' same; and as the matter cannot be allowed to remain any longer unsettled, we shall commence proceedings against you without further notice, unless the same is delivered within the time above stated." This application was not attended to. In April, 1833, the plaintiff formally demanded the wine of the defendant, with the consent of the assignees, but it was not given up. The present action was com- menced on the 18th of October, 1833. The letters, and the bottling CHAP. VIII.] PHILPOTT V. KELLET. 445 and consumption of the wine, were proved at the trial by the defend- ant, who contended that a cause of action had accrued more than six years before the commencement of the suit ; for that, in the first place, the bottling of the wine was a conversion ; and, secondly, the letters showed a demand and refusal more than six years before October, 1833. The Lord Chief Baron left the case to the jury, reserving leave to the defendant to move to enter a nonsuit, if the court should think that the facts proved entitled her to it; and the plaintiff had a verdict. A rule nisi was obtained, in the next term, for entering a nonsuit, against which Spankie, Serjt., and Channell now showed cause. There was a clear demand and refusal in April, 1833, but the answer attempted is, first, that there had already been a demand and refusal, and that more than six years before the commencement of the action. But in Decem- ber, 1826, when Messrs. Brooks & Co. wrote their first letter, the assignees had at least a probable claim to the wine, and the letter then written was not a demand, but only a notice not to part with the property to any person not authorized by the plaintiff. Non-delivery of the wine, upon such a letter, could not be evidence of a conversion. The letter of November, 1827, was within the six years : but it is> relied upon as showing a previous demand and refusal. Supposing, however, that the letter did show some previous demand, there is no evidence what its nature was, nor of the circumstances which fol- lowed. It does not appear that the wine was ever sent for, and the defendant was not bound to send it. She may never have refused to deliver it ; but may have kept it merely in order to make the neces- sary inquiries. To show a conversion, there must be such a refusal as implies an independent assertion of property in the person refusing ; not that qualified denial which merely operates in delay of the claim. Instances of the latter kind are given in 2 Starkie on Evidence, p. 843 (2d eel). Then, secondly, it is said that there was an actual conversion by the bottling, followed by consumption of the wine. But it does not appear when the wine was drunk; and there is no ground to assume that the bottling was done as an act of ownership. It may have been necessary for the preservation of the wine. And it was an act done without the knowledge of the plaintiff. It is true that the plaintiff's want of knowledge has been held to make no difference in an action of trover, to which the statute was pleaded : Granger v. George ; 1 but that has been in the absence of fraud. It was admitted by Lord Mansfield, in Bree v. Holbech, 2 that there may be cases which fraud will take out of the Statute of Limitations; and the courts, in ' 5 B. & C. 149. 2 2 Doug. 654. 446 PHILPOTT V. KBLLET. [CHAP. VIII. deciding subsequent cases, have not interfered •with that position, [Patteson, J. Although there may have been fraud in the act done by a defendant, is that sufficient unless there was fraud used to pre- vent the plaintiff's earlier knowledge of the act ? Howell v. Young, 1 Coleridge, J. In Brown v. Howard, 2 Dallas, C. J., seems to consider that fraud in the act itself would be sufficient.] Thesiger and Piatt, contra. The letter of November, 1827, and the defendant's omission to answer it, joined to the fact of her having previously bottled off a part of the wine, were evidence of a conver- sion by her more than six years before action brought. Any claim on the part of the assignees to> which she might have paid attention was disposed of by the letter of December, 1826 ; and then the letter of November, 1827, shows that there had been a previous demand of the ■wine on the plaintiff's behalf, and that, at the time of that demand, the defendant was refusing to give it up. It is not necessary to a case of conversion that there should be direct proof of a demand and refusal ; circumstances may raise a presumption of them. Tophanf v. Braddick ; 8 Watkins v. Woolley. [Patteson, J. Are we to presume a refusal in favor of a person who sets up her own wrongful act ? The offer of indemnity shows that the refusal, if there had been one, had been qualified by reference to the supposed right of the assignees ; and if there were conflicting claims, such a refusal to deliver to either party was not proof of a conversion. 4 Was it to be presumed that, between the letter of 1826, and the letter containing the offer to indem- nify, there has been a p&sitive refusal ?] The threat of legal proceed- ings in the last letter implies such a refusal. But, further, the bottling of part of the wine was a conversion. It is said that that was done to preserve it. But if a perishable article is deposited for safe custody, it is not clear that the bailee has a right, for the sake of any supposed benefit to the commodity, to exercise such an act of ownership as this, which even affects the evidence of title. And it is a reasonable ques- tion here, whether or not the intent was preservation. The drinking of the wine afterwards is strong evidence that the intention in bottling was to convert it. [Lord Denman, C. J. That was for the jury, and they have found otherwise. As to the bottling, it was the treatment to which the wine was entitled, in whosesoever hands it was. Little- bale, J. I should not have concluded that the bottling showed an intention to convert, considering the perishable nature of the com- modity. Patteson, J. It is consistent with the evidence, that it may have been done by consent of all the parties claiming.] In Kichard- i 6 B. & C. 259. 2 2 B. & B. 75. M Taunt. 672. 4 As to the case of an unqualified refusal by a bailee to one of such conflicting parties, see Wilson v. Anderton, 1 B. & Ad. 450. CHAP. VIII.] PHILPOTT V. KELLEY. 447 son v. Atkinson it was held that drawing off part of the liquor was a conversion of the whole. [Patteson, J. There the defendant rilled up the vessel with water. It cannot be contended, that if a bailee draws off part of a butt of wine, a perfect cause of action arises in respect of the whole. Such a constructive conversion is monstrous. And at all events the wrong-doer cannot set it up. Colebidge, J., referred to Swayn v. Stephens. 1 ] To hold that a defendant in trover could not set up his own wrongful act under a plea of the Statute of Limitations, would repeal the statute as to this form of action. In Clendon v. Dinneford, 2 where the defendant had obtained letters and two books belonging to the plaintiff, and, upon demand, gave up the letters and one book, but kept the other, it was held that the plaintiff might recover for a conversion of the whole. [Littledale, J. There the question arose on a demand and refusal. Patteson, J. A con- version of part may, as against the wrong-doer, be a conversion of the whole, but it does not follow that he may set it up as such. And in that case it would have been different if the defendant had merely destroyed one of the books.] The question in such cases is, whether a defendant's treatment of part of the property has been such as amounts to a conversion of all. If a bailee has a butt of wine, and offers to deliver all of it to the owner, except five gallons, he may be sued for a conversion of the whole butt. Loed Denman - , C. J. I think it was not proved in this case that -there had been a conversion more than six years before the action was brought. There was, indeed, some evidence of facts upon which an action might have been commenced earlier; whether a jury would have found for the plaintiff upon that evidence or not, I cannot say but it would not have been satisfactory to me. It appears that, on the bankruptcy of the person who deposited this wine, there were two parties who claimed it. The first evidence which the defendant gives of her own wrongful conversion is a letter of the 22d of November, 1827, speaking of a refusal given by her to a demand made in the preceding March. If that demand was by letter, the letter may be supposed to have been in the defendant's possession ; but she did not produce it. And there was no evidence when the refusal, if there was one, was sent; it may have been the very day before the letter of the 22d of November was written. In the early part of the proceedings it is evident that the defendant considered herself as balancing between two claims adverse to each other. The circumstance of the wine having been bottled was one upon which the jury were to put their own construction ; they have done so, and I think rightly. The question was merely one of fact. 1 Cro. Car. 245, 333. 2 5 C ar. & P. 13. 448 PHILPOTT V. KELLET. [CHAP. Till. Littledale, J. I think there was no evidence of a conversion at the distance of time alleged by the defendant. When the first demand is supposed to have been made, she appears to have been ignorant who was the party entitled ; and it is not shown that she gave any refusal as against the plaintiff. As to the bottling, there is no evidence who directed that to be done ; but it appears that the wine was deteriorated by being kept in the wood ; and the most obvious inference from the facts would be, that the plaintiff, for whom it was deposited, himself desired that it should be bottled. This, however, being done, some of the wine was afterwards consumed ; but at what time that happened does not appear ; and the fact, I think, is not available to show that the bottling was in itself an act of ownership amounting to a conver- sion. It was not such an act, if done by the direction of the party depositing, or if done for the best, with a view to preservation. The demand in November, 1827, refers to a previous one in March in the same year ; but at that time two parties were alleging a title to the wine; if there was a refusal then, it does not show that the defendant herself claimed to keep it. All that passed at that time may have been, that she may have said, " I will take care that the wine does not go out of my cellar," without, however, giving any absolute refusal to either party. But, in fact, we are in the dark as to this part of the case. I think the rule ought to be discharged. Patteson, J. The plaintiff makes a prima facie case by the demand in 1833 ; but the Statute of Limitations being pleaded, the defendant has to prove a conversion more than six years before the commencement of his action. A case of Swayn v. Stephens 1 was cited by my brother Coleridge, in which, although the defendant had actually sold the ship for which the action was brought, more than six years before, the court presumed in favor of the plaintiff (who had been unable to sue the defendant by reason of his remaining abroad), that the ship had come to the defendant's hands a second time, and been converted anew. That decision was against the opinion of one of the judges, and savors of subtlety ; if such a question arose now, I should doubt if it would be decided in the same manner. The attempt here is to establish a conversion in two ways. First, by a demand and refusal ; but in that, I think, the plaintiff fails. It is said that, from the construction to be put upon the letter of November, 1827, a previous refusal is to be inferred. That was for the jury; and if the point was not distinctly put to them, and we are to place our- selves in the situation of a jury, I should say that a different construc- tion was the more reasonable one. The assignees at first claimed the 1 Cro. Car. 245, 333. CHAP. VIII.] PHILPOTT V. KELLEY. 449 wine. The defendant was ordered by the plaintiff not to deliver it to theril. The fair presumption, then, is, that she retained it only till the rights of parties should be established. What the demand was, which is said to have been made in March, or how it was answered, is not- shown by the evidence. The threat in the letter of November, 1827, that proceedings will be taken against the defendant, may prove that the attorney thought there had been a demand and refusal ; but the offer of an indemnity shows that the assignees were supposed still to keep up a claim, and supports the inference that the defendant was at that time holding the property only till the rights of the claimants should be ascertained. I do not say, under these circumstances, that there may not have been a demand and refusal before the commencement of the six years ; but it was not proved, and the proof of it lay on the defendant. Then, secondly, it is contended that the bottling of the wine was a conversion; and I do not say that it would not have been so, if the defendant had clearly done it on her own account, and adversely to the proprietor. But it appears to have taken place just when the assignees and the plaintiff were demanding the wine; and it is much more like an act done to preserve it until the right could be ascer- tained, than an exercise of ownership. It is urged, however, that the wine was afterwards consumed by the defendant. But, in the first place, there is no proof when that happened, and we are not to make a presumption in favor of a party setting up his own wrong. And, secondly, even if a part of the wine was drunk more than six years before the commencement of the action, I think that the mere taking away or 'destroying a part of property which remains in the hands of a bailee is not such a conversion that the owner may sue in trover for the whole. In Richardson v. Atkinson, where part of the liquor wa8 drawn off, it was held to be a conversion, but the defendant had filled the vessel up with water. I am not prepared to say that, if a person draws off part of the contents of a cask, and is ready to deliver the rest, his taking away such part is necessarily a conversion of the whole. No case has gone that length yet. If it were so held, a person with whom a cask of liquor was deposited, and who wished to convert all of it, might draw off a part of the contents, and, if the vessel remained with him for six years afterwards, refuse to deliver up the rest, and set tip his conversion of a part so many years ago in answer to an action of trover. In Clendon v. Dinneford, 1 which has been cited, the defendant had the books and letters, which were the subject of the action, in his possession when they were demanded on behalf of the plaintiff; and 1 5 Car. & P. 18. 29 450 PHILPOTT V. KELLET. [CHAP. VIII. he refused them to the party making the demand, but offered to give them up to another person connected with the plaintiff. That person afterwards applied, but could only obtain the letters and one of the books, which the plaintiff, for the sake of the letters, consented to take. This was not a destruction of part, but a delivery of part only, after a promise to deliver the whole. And if a person, having in his pOsses- sion several things belonging to another, all of which it is in his power to deliver up, refuses to let the owner have more than a part of them, that may be a conversion ; but the present is a different case. Coleridge, J. The statement of the question almost disposes of this case. The burden of proof, upon the plea of the statute, lay on the defendant ; and the question is, not whether, upon the acts done, a jury, or this court putting itself in the place of a jury, would have been warranted in finding a conversion, but whether the facts are so clear that the judge should have put it to them almost as a conclusion of law, that a conversion was proved ; or so clear, at all events, that they ought to have found a conversion. As to the acts themselves, the bottling, particularly when coupled with the consumption of the wine afterwards, might, if it had been ascertained when and by whose direction the bottling took place, have been evidence of a conversion of the whole. But this must depend upon the circumstances, and some of those, we know, lead to a contrary conclusion ; as, for instance, the state of the wine while remaining in the wood. The drinking may have been intended when the wine was bottled, or may have been thought of afterwards ; that was for the jury. As to the legal effect of the consumption of part of the wine, I agree with my brother Patteson ; I should be sorry if it could ever be held that taking a part of the property under such circumstances amounted to a conver- sion of the whole ; that the fraud so committed, and the ignorance of the party against whom it was practised, could protect the wrong- doer from an action; and that a person who had been for a long time the bailee of a quantity of wine, and who had drunk six dozen, or one dozen, of it six years ago, might set that up as a defence against the claim of the owner. I say this as to the law, but it lay on the defend- ant to make it clear in fact, which it is not, that the wine had been drunk six years before the action was brought. With respect to the alleged demand and refusal, that would only be evidence of a conver- sion ; and as to the fact of demand and refusal, we do not know enough from the case before us to say that the conclusion insisted upon for the defendant is the only proper one. There is no ground, therefore, to disturb the verdict. Mule discharged. CHAP. Till.] ' DAVIES V. NICHOLAS. 451 CANOT, Assignee of HUGHES, an Insolvent, v. HUGHES, Widow, Administratrix. In the Common Pleas, January 14, 1836. [Reported in 2 Bingham's New Cases, 448.] Trover. The plaintiff, as assignee of Hughes, an insolvent, sued his administratrix for the conversion of certain wine warrants in the pos- session of the insolvent at the time of his death. The only evidence of conversion was an application for the warrants, made on the part of the plaintiff, to the administratrix, when she said they were in the hands of her attorney. Upon which the plaintiff was nonsuited, on the ground that this did not amount to a conversion, or a refusal to deliver. Hompas, Seijt., moved to set aside the nonsuit, on the ground that, as the defendant must have known of her husband's insolvency, and that, therefore, the warrants belonged to his assignees, the delivering them to the attorney instead of the assignees was an actual conver- sion. Sed per Curiam. There is no evidence that it was communicated to the defendant who was the owner of the warrants ; the placing them in the hands of her attorney was no more than placing them in a strong box for the purpose of safety. Mule refused. • • DAVIES v. NICHOLAS. At Nisi Pruts, coram Coleridge, J., March 11, 1836. . [Reported in 7 Carrington Sf Payne, 339.] Trover for chairs. Pleas : first, not guilty ; second, a denial of the plaintiff's property in the chairs. \ It appeared that the chairs belonged to the plaintiff, and that they were lent by him to a person who had died, and that the defendant had come into the possession of the deceased's furniture. It further appeared that, when the chairs were demanded of the defendant, he said that he should do nothing but what the law required, and that he had not since delivered up the chairs. John Evans, for the defendant, submitted that this was not a con- version. Coleridge, J. I think it is quite sufficient evidence of a conver- sion Verdict for the plaintiff . 452 VAUGHAN V. WATT. [CHAP. Till. WILLIAMS v. GESSE. In the Common Pleas, June 6, 1837. [Reported in 3 Bingham's New Cases, 849.] Teovee for a coat and pantaloons. Plea : Not guilty. The defendant kept a public-house at Oxford, frequented by fanners. The plaintiff's clothes, packed up in a box, were deposited in the defendant's kitchen, behind the settle, by a person who said the box was to stay till called for. The box was never seen again by the plain- tiff, but when he inquired for it, the defendant said, " I suppose it's behind the settle." Verdict for the plaintiff, with leave for the defendant to move to enter a nonsuit instead, on the ground that there was no evidence of any conversion. Jsudlow, Serjt., having obtained a rule nisi accordingly, V. Lee appeared for the plaintiff; but, upon reading the learned judge's report as above, The rule was made Absolute. In a similar action by a sister of the plaintiff against the same de- fendant, it was prove/:! that the defendant received parcels for carriers ; that the parcels were accustomed to be placed behind the settle ; and that when application was made for the parcel in question, the defendant's wife said, "My husband has sent it, no doubt, by Croft, the carrier; he has a bad memory ; it's a pity you did not speak to me." Verdict for the defendant. V. Lee, in Easter term, moved for a new trial, on the ground that the language of the wife showed that the defendant had interfered by giving directions which would amount to a conversion. Sed per Curiam. What was there to go to the jury ? Was there any thing but negligence ? That will not support the action. Rule refused. VAUGHAN v. WATT. In the Exchequer, Easter Term, 1840. [Reported in 6 Meeson #■ Welsby, 492.] Trover for different articles of wearing apparel, &c. Pleas : first, not guilty; secondly, that the goods were not the property of the plaintiff; on which issues were joined. At the trial before Rolfe, B., at the Middlesex sittings in Hilary term, the following appeared to be the facts of the case : On the 24th July, 1839, the goods in ques- CHAP. VIII.] VATJGHAN V. WATT. 453 tion were pledged with the defendant, a pawnbroker, by a female of the name of Hubbard, in the name (as the defendant under- stood it) of Mary Warne, and the duplicate was so made out. On the next day he was sent to by that person (whom he did not then know, but who afterwards proved to be the plaintiff's wife), to say that she had lost the duplicate, and she demanded and obtained from hini a copy thereof, and also a form of a declaration of the loss of it, pursuant to the Stat. 39 & 40 Geo. III. c. 99, § 16, and 5 & 6 Will. IV. c. 62, § 12. Some days afterwards, upon an allegation that this docu- ment also was lost, she obtained from the defendant another similar form. On the 6th of August, the plaintiff Vaughan produced the duplicate to the defendant, and demanded the goods, tendering the amount of the pledge and the interest. The defendant refused to give them up, on the ground of the declarations having been obtained from him. On the 7th, the plaintiff made an application to the police mag- istrate at Hatton Garden, for the purpose of compelling the restoration of the goods, and a summons was granted for the defendant's appear- ance on the following day, when he attended accordingly, but was compelled to go away before the case was called on. On the 9th, however, the parties again attended before the magistrate ; and the plaintiff then stated that it was his wife by whom the goods had been pledged. The magistrate, however, after hearing the circumstances, declined to interfere. The plaintiff then brought this action, the writ being sued out on the 21st August. It was contended for the defend- ant that there was no evidence of such an absolute refusal by him to deliver up the goods to the plaintiff, as constituted a conversion ; and that he was justified in refusing to do so, by the circumstance of the declarations having been obtained by another party claiming to be the owner. : The learned judge thought that the mere fact of these docu- ments having been obtained was no defence as against the real owner of the goods, who might in that case never have it in his power to recover possession of them ; and, under his Lordship's direction, a ver- dict was found for the plaintiff, damages £10, leave being reserved to the defendant to move to enter a nonsuit. The jury were discharged as to the second issue. G. T. White having accordingly obtained a rule for a nonsuit, or for a new trial (citing Isaac v. Clark 1 and Green v. Dunn), Pike now showed cause. It is admitted that the plaintiff is the real owner of the goods. The 15th section of the 39 & 40 Geo. III. c. 99, declares that the person producing the original note or memo- randum of the goods pledged, as the owner thereof, to the pawnbroker, shall be deemed and taken to be, as against him, the real owner of the i 2 Bulst. 312. 454 VAUGHAN V. WATT. |_CHAP. Till. goods, and the pawnbroker is thereby required, on satisfaction of the principal sum advanced and the profit, to deliver them to such person. The plaintiff complied in all respects with the directions of this section. And the 16th section of the same act, upon which reliance is placed for the defendant, does not entitle the pawnbroker to retain the goods against the real owner, unless where the party obtaining the form of affidavit therein mentioned, shall have proved his right to them to the satisfaction of a justice. Even assuming, therefore, that the defendant was ignorant that the party who pledged the goods was the wife of the plaintiff, he is not entitled to withhold them. White and Cochbum, contra. There was no such refusal to deliver up the goods proved in this case, as amounted to a conversion. [Parke, B. All that the pawnbroker can be entitled to do is, to keep the goods for a reasonable time, until the party shall have gone before a magistrate to verify the declaration. You did not ask the learned judge to leave it to the jury whether such reasonable time had elapsed. This declaration in London ought to be acted on immedi- ately. If the question had been left to the jury, there was abundant evidence for them to find that more than a reasonable time had elapsed.] If a party, at the time when he refuses to deliver goods on demand, has a reasonable doubt whose property they are, even if he obtain a knowledge of the fact the next day, that refusal cannot be treated as a conversion, without a subsequent demand. Green v. Dunn ; Alexander v. Southey. If the defendant was justified in the refusal at that moment, it is a sufficient defence. The learned judge ought therefore to have left it to the jury, as was done in the latter case, whether the qualification of the defendant's refusal was a reasonable one. In Green v. Dunn, the plaintiff was clearly the real owner of the goods ; yet because the defendant's refusal to deliver them was a qualified one, it was held that there was no conversion. This was a refusal, not absolute, but qualified, and bona fide, not with the view of withholding the property from the real owner, but for the purpose of protecting it for the real owner, whoever he might be. It is the duty of the pawnbroker to take precautions that by the loss of the dupli- cate the loss of the goods does not result to the owner. Suppose this were a case of a simple bailment at common law, independently of the statute, — a deposit of goods, with a written engagement to redeliver them on demand ; and they were surreptitiously obtained from the bailee by another party, and notice thereof given to the bailor, a re- fusal to redeliver them on that ground clearly would not be a conver- sion, according to the cases already cited ; and this is in effect the same case. Whether the defendant had the bona fide intention of retaining the goods for the real owner was at all events a question for the jury, and ought to have been left to them. CHAP. VIII. J VAUGHAN V. WATT. 455 Lord Abinger, C. B. It is with great regret that I bring myself to concur in making this rule absolute for a new trial. The verdict is only for £10, and the event must necessarily be the same on a new trial, the same facts being proved. If the question had been brought before the jury, whether a reasonable time had elapsed for the defendant to ascertain the title to the goods, nobody can doubt that they would have come to the same conclusion. It must be admitted, however, that this being a question for the jury, ought to be left to them. The mere de- tention of the goods, abstractedly, was not a conversion, if the delay was only for a reasonable time : here, I think, the time was unreasonable. Parke, B. The learned judge was incorrect in telling the jury that the mere refusal to deliver the goods to the real owner was a conver- sion. It was a question for the jury, whether the defendant meant to apply them to his own use, or assert the title of a third party to them, or whether he only meant to keep them in order to ascertain the title to them, and clear up the doubts he then entertained on the subject, and whether a reasonable time for doing so had not elapsed, without which it would not be a conversion. It ought therefore to have been left to the jury, whether the defendant had a bona fide doubt as to the title to the goods, and if so, whether a reasonable time for clearing up that doubt had elapsed. The party obtaining the declaration is bound to go before a magistrate, and satisfy him by evidence that ho is the real owner of the goods ; and if a reasonable time had elapsed in this case for doing so, the defendant had no longer any reasonable ground for detaining them on the 6th of July, for a supposed defect of title. That was a question for the jury. The statute supposes that the party will go before the magistrate immediately ; and if three or four days elapse without his doing so, the jury would be well war- ranted in finding that the reasonable time had elapsed. But it is all for the jury ; however strong the facts, the judge cannot take it upon himself to refuse to leave the question to them. Therefore, although the result will clearly be the same, in strict law the defendant is entitled to have the facts submitted to the jury. There must there- fore be a new trial. Rolfe, B. 1 concur m the decision of the court, and very much also in the regret that there should be a new trial, where the matter in question is so small, and the result must be the same. According to the act of Parliament, the party obtaining the form of declaration " shall thereupon prove his property in or right to the goods, to the satisfaction of some justice of the peace," and then the document, authenticated by the signature of the justice, is to be an indemnity to the pawnbroker. Here the goods were pawned on the 24th of July ; on the 6th of August they were demanded by the plaintiff; at some 456 POULDES V. WILLOUGHBT. [CHAP. VIII. undefined time between those dates the application was made for the form of declaration, but no proceedings were taken thereupon ; and there was what was equivalent to a repetition of the refusal to deliver the goods, on the 7th, 8th, and 9th of August. I certainly did not leave it to the jury to say whether a reasonable time had elapsed, — nor for him to inquire into the title, but for the party to do that which he was bound to do thereupon, on obtaining the declaration ; because it appeared preposterous to leave to the jury the question, whether a reasonable time had elapsed for doing that which ought to be done immediately, when a period had elapsed which was indeed undefined, but might be any time from ten to fifteen days. However, the matter was strictly for the jury, and I agree, as it was not left to them, that there must be a new trial. Rule absolute for a new trial. 1 FOULDES v. WILLOUGHBY. In the Exchequer, June 1, 1841. [Reported in 8 Meeson $• Welsby, 540.] Tkovee for divers, to wit, two horses. Plea: Not guilty. The cause was tried before Maule, J., at the last spring assizes for Liver- pool, when it appeared that the defendant was the occupier or man- ager of a ferry by means of steamboats over the river Mersey, from Birkenhead to Liverpool, and that on the 15th of October, 1840, the plaintiff had embarked on board the defendant's ferry-boat at Birken- head, having with him two horses, for the carriage of which he had paid the usual fare. It was alleged that the plaintiff misconducted himself and behaved improperly after he came on board the steam- boat, and when the defendant came on board he told the plaintiff that he would not carry the horses over, and that he must take them on shore. The plaintiff refused to do so, and the defendant took the horses from the plaintiff, who was holding one of them by the bridle, and put them on shore on the landing-slip. They were driven to the top of the slip, which was separated by gates from the high road, and turned loose on the road. They were shortly afterwards seen in the Btables of a hotel at Birkenhead, kept by the defendant's brother. The plaintiff remained on board the steamboat, and was conveyed over i Watt v. Potter, 2 Mason, 77 ; Zachary v. Pace, 9 Ark. 212 ; "Witherspoon v. Elewett, 47 Miss. 670 ; Robinson v. Burleigh, 5 N. H. 225 ; Fletcher v. Fletcher, 7 N. H. 452 ; Cushing v. Breek, 10 N. H. 116; Thomson v. Sixpenny Sav. Bank, 6 Bosw. 293; Rogers v. Weir, 34 N. Y. 463; McEntee v. N. J. St. Co., 45 N. Y. 34; Ball v. Liney, 48 N. Y. 6; Carroll v. Mix, 51 Barb. 212, ace — Ed. CHAP. VIII.] POULDES V. WILLOUGHBY. 457 the river to Liverpool. On the following day the plaintiff sent to the hotel for the horses, but the parties in whose possession they were re- fused to deliver them up. A message, however, was afterwards sent to him by the hotel-keeper, to the effect that he might have the horses on sending for them and paying for their keep ; and that if he did not send for them and pay for their keep, they would be sold to pay the expense of it. The plaintiff then brought the present action. The horses were subsequently sold by auction. The defence set up at the trial was, that the plaintiff had misconducted himself and behaved im- properly on board, and that the horses were sent on shore in order to get rid of the plaintiff, by inducing him to follow them. The learned judge told the jury, that the defendant, by taking the horses from the plaintiff and turning them out of the vessel, had been guilty of a con- version, unless they thought the plaintiff's conduct had justified his re- moval from the steamboat, and he had refused to go without his horses ; and that if they thought the conversion was proved, they might give the plaintiff damages for the full value of the horses. The jury found a verdict for the plaintiff with £40 damages, the value of the horses. In Easter term last, a rule was obtained calling upon the plaintiff to show cause why the verdict should not be set aside on the ground of misdirection, both as to the proof of a conversion, and also as to the amount of the damages: against which rule W. H. Watson and Atherton now showed cause. The evidence showed that which clearly amounted to a conversion, and it was not affected by the circumstance that the plaintiff had the means after- wards, if he had chosen, of obtaining the horses again. A wrongful removal of a chattel, even for a few yards, amounts in law to a conver- sion. [Lord Abingeb, C. B. According to that argument every tres- pass is a conversion.] If a man takes and rides another person's horse without his consent, however short a distance, it is in law a conversion. [Aldersost, B. In that case there is a user of the horse. Lord Abingee, C. B. In this case the horses were turned out of the boat by the defendant because the owner refused to take them out, and not with any view to appropriate them to his own use, but to get rid of their owner. Aldeeson, B. If a man were to remove my carriage a few yards, and then leave it, would he be guilty of a conversion ?] In the notes to Wilbraham v. Snow, 1 it is said, " Whenever trespass for taking goods will lie, that is, where they are taken wrongfully, trover will also lie, for one may qualify but not increase a tort ; " citing Bishop v. Montague. 2 [Loed Abingee, C. B. I cannot agree to that position, at least to the extent for which it is now used. 3 ] In Bac. l 2 Saund. 470. 2 Cro. Eliz. 824. 3 In tbe case cited, the beasts were taken absolutely by the defendant's bailiff as 458 POULDES V. WILLOUGHBY. [CHAP. VIIT. Abr. Trover, A, it is said, " If the goods of J. S. have been taken by J. N. in such a tortious manner that an action of trespass would lie, an action of trover will likewise lie." So in Rolle's Abr. 4, Action sur Case, L : " If a man take my horse and ride him, and then re- deliver him to me, still I may have an action against him, for it is a conversion, and the redelivery is no bar to the action, and only goes in mitigation of damages ; " citing the Countess of Rutland's Case. The mere exercise of dominion over a thing is, in law, a conversion of it. What is said by Buller, J., in Syeds v. Hay, is applicable to the present case : " If a person take my horse to ride, and leave him at an inn, that is a conversion ; for though I may have the horse on sending for him, and paying for the keeping of him, yet it brings a charge on me." In Mulgrave v. Ogden, which was an action of trover for twenty barrels of butter, with counts that the defendant tarn neglig£nter custodivit, that they became of little value, it was held upon demurrer, by all the justices, "that no action on the case lieth in this case, for no law compelleth him that finds a thing to keep it safely ; as if a man finds a garment and suffers it to be moth-eaten; or if one finds a horse and giveth it no sustenance ; but if a man finds a thing and useth it, he is answerable, for it is a conversion : so if he of purpose misuseth it, as if one finds paper and puts it into the water, &c. ; but for negli- gent keeping no law punisheth him." And in Buller's Nisi Prius, 44, it is said : "To determine what evidence will be sufficient to prove a conversion in the defendant, it must be known how the goods came to his hands ; for if they came to his hands by delivery, finding, or bail- ment, an actual demand and refusal ought to be proved; but it is not necessary to prove an actual demand if an actual taking be proved, for the taking, being unlawful, is itself a conversion." They also referred to the cases collected in Roscoe on Ev. (5th ed.) 526. As to the amount of damages, that was a question for the jury, and if they were satisfied that the defendant was guilty of the conversion, they were fully warranted in giving the full value of the horses, which were, in fact, wholly lost to the plaintiff. Crompton, in support of the rule. The jury were not warranted in awarding the full value of the horses, because the loss to the plaintiff was the consequence of his own act in not following them, and not the consequence of the defendant's act. He cited Moon v. Raphael. 1 As to the other point, the case of Bushel v. Miller is in point. There it was stated that particular porters had a right to put small parcels of for a heriot due, the defendant afterwards agreeing to the taking and converting them. The court differed in opinion whether trover was maintainable, or whether the action should not have been trespass. « 2 Bing. N. C. 310. CHAP. VIII.] FOULDES V. WILLOUGHBT. 459 goods in a hut on the Custom-house Quay, each porter having a box or cupboard within the hut for that purpose. The plaintiff, being one of the porters, put in goods belonging to A., and laid them so that the defendant, who was another of the porters, could not get to his chest without removing them. He accordingly did remove them about a yard from the place where they lay towards the door, and, without return- ing them into their place, went away, and the goods were lost. The plaintiff having satisfied A. for the value of the goods, brought trover against the defendant; and it was held by Pratt, C. J., "that there ■was no conversion in the defendant; the plaintiff, by laying his goods ■where they obstructed the defendant from going to his chest, was a "wrong-doer, and the defendant had a right to remove the goods ; that, as to the not returning the goods to the place where he found them, if this were an action of trespass, perhaps it might be a doubt ; but he was clear it could not amount to a conversion." It is not every wrong- ful interference with the chattel of another that will constitute a con- version. There must be an intention to deprive the owner of his general right of dominion over it. Here there was no such intention; the object merely was, to get rid of the owner as well as the horses. He referred to Cooper v. Chitty 1 and Garland v. Carlisle. 2 Loed Abingee, C. B. This is a motion to set aside the verdict on the ground of an alleged misdirection; and I cannot help thinking that if the learned judge who tried the cause had referred to the long and frequent distinctions which have been taken between such a simple as- portation as will support an action of tres])ass, and those circumstances which are requisite to establish a conversion, he would not have so directed the jury. It is a proposition familiar to all lawyers, that a simple asportation of a chattel, without any intention of making any further use of it, although it may be a sufficient foundation for an action of trespass, is not sufficient to establish a conversion. I had thought that the matter had been fully discussed, and this distinction established, by the numerous cases which have occurred on this subject; but, according to the argument put forward by the plaintiff's counsel to-day, a bare asportavit is a sufficient foundation to support an action of trover. I entirely dissent from this argument ; and therefore I think that the learned judge was wrong in telling the jury that the simple fact of putting these horses on shore by the defendant amounted to a conversion of them to his own use. In my opinion, he should have added to his direction, that it was for them to consider what was the intention of the defendant in so doing. If the object, and whether ri'htly or wrongfully entertained is immaterial, simply was to induce 2 1 W. Bla. 65. > 2 C. & M. 31. 460 FOULDES V. WILLOUGHBT. [CHAP. VIII. the plaintiff to go on shore himself, and the defendant, in furtherance of that object, did the act in question, it was not exercising over the horses any right inconsistent with, or adverse to, the rights which the plaintiff had in them. Suppose, instead of the horses, the defendant had put the plaintiff himself on shore, and on being put on shore the plaintiff had refused to take his horses with him, and the defendant had said he would take them to the other side of the water, and had done so, would that be a conversion? That would be a much more color- able case of a conversion than the present, because, by separating the man from his property, it might, with some appearance of fairness, be said the party was carrying away the horses without any justifiable reason for so doing. Then, having conveyed them across the water, and finding neither the owner or any one else to receive them, what is he to do with them? Suppose, under those circumstances, the defend- ant lands them, and leaves them on shore, would that amount to a conversion ? The argument of the plaintiff's counsel in this case must go the length of saying that it would. Then, suppose the reply to be that those circumstances would amount to a conversion, I ask, at what period of time did the conversion take place ? Suppose the plaintiff had immediately followed his horses when they were put on shore, and resumed possession of them, would there be a conversion of them in that case? I apprehend, clearly not. It has been argued that the mere touching and taking them by the bridle would constitute a con- version, but surely that cannot be : if the plaintiff had immediately gone on shore and taken possession of them, there could be no conver- sion. Then the question, whether this were a conversion or not, can- not depend on the subsequent conduct of the plaintiff in following the horses on shore. Would any man say, that if the facts of this case were, that the plaintiff and defendant had had a controversy as to whether the horses should remain in the boat, and the defendant had said, " If you will not put them on shore, I will do it for you," and, in pursuance of that threat, he had taken hold of one of the horses to go ashore with it, an action of trover could be sustained against him? There might, perhaps, in such a case, be ground for maintaining an action of trespass, because the defendant may have had no right to meddle with the horses at all ; but it is clear that he did not do so for the purpose of taking them away from the plaintiff, or of exercising any right over them, either for himself or for any other person. The case which has been cited from Strange's Reports, of Bushel v. Miller, seems fully in point. There the plaintiff and defendant, who were porters, had each a stand on the Custom-house Quay. The plaintiff placed goods belonging to a third party in such a manner that the defendant could not get to his chest without removing them, which he CHAP. VIII.] FOULDES V. WILLOUGHBT. 461 accordingly did, and forgot to replace them, and the goods were sub- sequently lost. Now suppose trespass to have been brought for that asportation, the defendant, in order to justify the trespass, would plead that he removed the parcels, as he lawfully might, for the purpose of coming at his 'own goods; and the court there said that whatever ground there might be for an action of trespass in not putting the package back in its original place, there was none for trover, inasmuch as the object of the party in removing it was one wholly collateral to any use of the property, and not at all to disturb the plaintiff's rights in or dominion over it. Again, suppose a man puts goods on board of a boat, which the master thinks are too heavy for it, and refuses to carry them, on the ground that it might be dangerous to his vessel to do so, and the owner of the goods says, " If you put my goods on shore, I will go with them," and he does so ; would that amount to a conversion in the master of the vessel, even assuming his judgment as to the weight of the goods to be quite erroneous, and that there really would be no danger whatever in taking them ? In order to constitute a conversion, it is necessary either that the party taking the goods should intend some use to be made of them, by himself or by those for whom he acts, or that, owing to his act, the goods are destroyed or consumed, to the prejudice of the lawful owner. As an instance of the latter branch of this definition, suppose, in the present case, the defend- ant had thrown the horses into the water, whereby they were drowned, that would have amounted to an actual conversion ; or as in the case cited in the course of the argument, of a person throwing a piece of paper into the water ; for, in these cases, the chattel is changed in quality, or destroyed altogether. But it has never yet been held that the single act of removal of a chattel, independent of any claim over it, either in favor of the party himself or any one else, amounts to a con- version of the chattel. In the present case, therefore, the simple removal of these horses by the defendant, for a purpose wholly uncon- nected with any the least denial of the right of the plaintiff to the possession and enjoyment of them, is no conversion of the horses, and consequently the rule for a new trial ought to be made absolute. With respect to the amount of damages, it was altogether a question for the jury. I am not at all prepared to say, that if the jury were satisfied that there had been a conversion in this case, they would be doing wrong in giving damages to the full value of the horses. I do not at all rest my judgment on that point, but put it aside entirely. If the judge had told the jury that there was evidence in the case from whence they might infer that a conversion of these horses had taken place at some time, it would have been different ; but his telling them that the simple act of putting them on shore amounted to a conversion, 462 FOULDES V. WILLOUGHBT. [CHAP. VIII. I think was a misdirection, on which the defendant is entitled to a new trial. Aldeesok, B. I am of the same opinion. As to the last point, it would be a stran'ge thing to disturb the verdict on the ground that the jury had given as damages the full value of these horses; for it appears that they were ultimately sold, and the plaintiff never regained posses- sion of them. If, therefore, the original act of taking the horses really amounted to a conversion of them, it would be a strong proposition for us to say that the plaintiff was not entitled to recover their full value, as damages for the wrongful act done. But the mere circumstance which the learned judge in this case put to the jury, as constituting the conversion, does not necessarily amount to one. Any aspor- tation of a chattel for the use of the defendant, or a third person, amounts to a conversion ; for this simple reason, that it is an act incon- sistent with the general right of dominion which the owner of the chattel has in it, who is entitled to the use of it at all times and in all places. When, therefore, a man takes that chattel, either for the use of himself or of another, it is a conversion. So, if a man has posses- sion of my chattel, and refuses to deliver it up, this is an assertion of a right inconsistent with my general dominion over it, and the use which at all times, and in all places,. I am entitled to make of it, and conse- quently amounts to an act of conversion. So the destruction of the chattel is an act of conversion, for its effect is to deprive me of it al- together. But the question here is where a man does an act the effect of which is not for a moment to interfere with my dominion over the chattel, but, on the contrary, recognizing throughout my title to it, can such an act as that be said to amount to a conversion ? I think it cannot. Why did this defendant turn the horses out of his boat ? Because he recognized them as the property of the plaintiff. He may have been a wrong-doer in putting them ashore ; but how is that in- consistent with the general right which the plaintiff has to the use of the horses ? It clearly is not ; it is a wrongful act done, but only like any common act of trespass to goods with which the party has no right to meddle. Scratching the panel of a carriage would be a trespass; but it would be a monstrous thing to say that it would be a ground for an action of trover ; and yet to that extent must the plaintiff's counsel go if their argument in this case be sound. But such is not the law ; and the true principle is that stated by Chambre and IIol- royd, JJ., when at the bar, in their argument in the case of Shipwick v. Blanchard, that "in order to maintain trover the goods must be taken or detained with intent to convert them to the taker's own use, or to the use of those for whom he is acting." This definition, indeed, re- quires an addition to be made to it ; namely, that the destruction of the CHAP. VIII.] FOULDES V. WILLOUGHBY. 4(33 goods will also amount to a conversion. For these reasons I think, in the case before us, the question ought to have been left to the jury to say whether the act done by the defendant of seizing these horses and putting them on shore, was done with the intention of converting them to his own use, i. e., with the intention of impugning, even for a moment, the plaintiff's general right of dominion over them. If so, it would be a conversion ; otherwise not. Gueney, B. If it had been left to the jury, on the whole of the evidence in this case, to say whether a conversion had taken place or not, I think there was abundant evidence from which they might have drawn an affirmative conclusion. But the judge only left that question to them on one part of the evidence, namely, that of the defendant's taking these horses out of the boat, and putting them ashore ; and I cannot agree to the position that that act, standing alone, amounts to a conversion. Rolpe, B. I quite concur with the rest of the court. During the argument I had some little doubt, owing to the difficulty which 1 felt in defining what is a sufficient exercise of an act of ownership over chattels to amount to a conversion, so as to support an action of trover, as distinguished from such an interference with it as will only afford ground for an action of trespass. But that such a distinction does exist in law between these actions, in this respect, appears from the long list of cases to be found in the books on the subject ; so that what- ever difficulties may be experienced in applying that distinction, its existence must be recognized. In all the cases on this subject, there has been proof of a trespass having been committed ; but there was a further question, namely, whether there was not a conversion also. In every case of trover there must be a taking with the intent of exercis- ing over the chattel an ownership inconsistent with the real owner's right of possession. Now suppose, instead of actually removing the horses from the boat, the defendant had waved his hand, or cracked a whip, and so made the animals jump out of the boat, would that amount to a conversion? I do not see how, on the hypothesis of Mr. Watson, any other answer could be given than in the affirmative ; for if the principle be that any thing which controls the position of the chattel while in my possession, will amount to a change of ownership, I do not see how the effecting of that change by frightening the animal which constitutes my property, is distinguishable from any other means adopted for the same purpose. Again, suppose I, seeing a horse in a ploughed field, thought it had strayed, and under that impression led it back to pasture, it is clear that an action of trespass would lie against me; but would any man say that this amounted to a conversion of the horse to my own use ? Or suppose a man drives his carriage up into 464 CAUNCE V. SP ANTON. [CHAP. VIII. an inn yard, and the innkeeper refuses to take it and his horses in, but turns them out into the road, could it be said that he thereby converted them to his own use ? Surely not. The same principle applies to the case which has been cited, of Bushel v. Miller, where a party was held to have a right to move certain goods of another person, provided he put them back again ; his not putting them back may give the other a right to bring trespass against him, on the ground that his subsequent neglect made him a trespasser ab initio ; but it is clear that there was no conversion of the chattel. So that we find the distinction to which I have alluded, between trespass and trover, continually recognized in law. I quite agree with my brother Gurney, that if the learned judge in the present case had not put the conversion to the jury as founded on the single fact of taking the horses on shore, but had left it for their consideration on the whole case as it stood, not only was there evidence of a conversion, but there was such as would have fully warranted the jury in coming to the conclusion at which they arrived. The question, however, was not so left to the jury, and this rule to set aside the ver- dict for misdirection must therefore be made absolute. Rule absolute. 1 CAUNCE o. SPANTON. In the Common Pleas, Novembek 6, 1844. [Reported in 7 Manning fr Granger, 903.] Teovee for a cart. Plea : Not vguilty. Under which it had been agreed, under a judge's order, that the defence of lien might be set up. A summons had been taken out by the defendant to add a plea of "not possessed," 2 which summons had been dismissed by an order of Tindal, C J., upon the terms above stated. 8 At the trial before Cresswell, J., at the sittings for London after last term, the evidence of the conversion was that the plaintiff demanded the cart of the defendant (upon whose premises it had been standing), and at the same time offered to pay whatever might be due for the standing; but that the defendant refused to deliver it up, upon the ground that one 1 Sparks v. Purdy, 11 Mo. 219 ; Eldridge v. Adams 64 Barb. 417 ; Jordan v. Greer, 5 Sneed (Tenn.), 165, ace. — Ed. 2 Supposing " not possessed " had been pleaded, qua.re, whether upon proof of a joint possession in the plaintiff and Bartlett, the defendant would not have been en- titled to a verdict, on the ground that an allegation of seisin or of possession, gen- erally, must be taken tr import an assertion of sole seisin or sole possession. See Edwards v. Bishop of Exeter, 5 New Cases, 660 ; 7 M. & Gr. 173, u. * See White v. Teal, la A. & E. 106. CHAP. VIII.J THOROGOOD V. EOBINSON. 465 Bartlett was a part-owner of it, 1 and that he had given the defendant an indemnity. The learned judge ruled that this was sufficient evi- dence of a conversion ; and the plaintiff obtained a verdict, damages £16. Byles, Serjt., now moved for a new trial, upon the ground of misdi- rection. He submitted that demand and refusal is not evidence of a conversion where the party has a lien upon the chattel. Stancliffe v. Hard wick. 8 Maule, J. Here the ground of refusal is a claim of right on the part of Bartlett. Per Curiam. Rule refused.* THOROGOOD v. ROBINSON. In the Queen's Bench, January 15, 1845. [Reported in 6 Queen's Bench Reports, 769.] Case for an excessive distress, with a count in trover, for lime, flints, and breeze. Pleas : To the count in trover 1, Not guilty ; 2, Not pos- sessed. Issues thereon. No question arose on the counts for an exces- sive distress. On the trial, before Lord Denman, C. J., at the Middlesex sittings after last Michaelmas term, it was proved for the plaintiff that he was a lime-burner, and, in January, 1844, was in possession of some land, and of the lime, breeze, &c, in the declaration mentioned, which were lying on the land. The lime had been burnt in kilns on the premises from chalk dug there by the plaintiff. The defendant had recovered judg- ment in ejectment for the land, and, on the day mentioned in the dec- laration, he entered under the writ of possession, and turned two of plaintiff's servants off the premises, who at the time were loading a barge there with part of the lime. He refused to let them do any thing to the kiln fires, or put any more of the lime on the barge. The de- fendant's evidence showed that he was entitled to the land as landlord of a person in whose absence the plaintiff had entered without title. The Lord Chief Justice told the jury that it was not every dealing wi th another person's goods that amounted to a conversion, but only such as deprived the real owner of them ; that under the circumstances 1 The refusal being accompanied by a statement of the ground of that refusal, qu(ere, whether the allegation of part-ownership would not have been evidence under a plea of " not possessed," to negative the sole possession ; vide supra, 464. 2 2 C, M. & R. 1 ; 5 Tyrwh. 551 ; 3 Dowl. P. C. 762. > Wilson v. Anderton, 1 B. & Ad. 450; Catterall v. Kenyon, 3 Q. B. 310; Lee v. Bayes, 18 C. B. 599; Doty v. Hawkins, 6 N. H. 247; Rogers v. Weir, 34 N. Y. 463;. Ball v. Liney, 48 N. Y. 6; Dowd v. Wadsworth, 2 Dev. 1?0, ace — Ed. 30 466 THOROGOOD V. ROBINSON. [CHAP. VIII. it was reasonable that the plaintiff should have applied to the defend- ant to have the articles which belonged to plaintiff delivered to him again ; but that it was a question for the jury whether the conduct of the defendant was a conversion of the lime and breeze. Verdict for defendant on both issues. Knowles now moved for a new trial, on the ground that the verdict on both issues was against the evidence. The Lord Chief Justice ought to have told the jury that the facts amounted to a conversion. Any act taking from a party even the temporary possession of his goods is a conversion. Key worth v. Hill. 1 "A conversion seems to consist in any tortious act by which the defendant deprives the plaintiff of his goods, either wholly or but for a time." 3 Stark. Ev. 1156 (3d ed. 1842). In Baldwin v. Cole, " a carpenter sent his servant to work for hire to the queen's yard ; and, having been there some time, when he would go no more, the surveyor of the work would not let him have his tools, pretending a usage to detain tools to enforce workmen to continue until the queen's work was done. A demand and refusal was proved at one time, and a tender and refusal after. Holt, C. J. The very denial of goods to him that has a right to demand them is an actual conversion, and not only evidence of it, as has been holden ; for what is a conversion but an assuming upon one's self the property and right of disposing another's goods ; and he that takes upon himself to detain another man's goods from him without cause, takes upon himself the right of disposing of them." As to the second plea, the defendant must be regarded as a mere wrong-doer ; he had never any title to the lime and breeze. The lime was, indeed, made from chalk dug on the premises; but it had been converted into an article of a different species; and, when a person makes wine, oil, or bread, out of another's grapes, olives, or wheat, it belongs to the new operator, who is only to make satisfaction to the former proprietor for the materials which he has so converted. 2 Black. Comm. 404. Lord Dbnman', C. J. In leaving this case to the jury, I endeavored to act in conformity with the decision of this court in the case of Need- ham v. Ravvbone, 2 and I said that it was a question for the jury whether i 3 B. & Aid. 685. 2 Needham v. Eawbone, Mich. T. 1844 (not reported). The action was trover for wearing apparel, books, and other goods. Plea : Not guilty. On the trial before Lord Denman, C. J., at the sittings in Middlesex after Michaelmas term, 1843, it ap- peared that the plaintiff had left his house, and in it the goods above mentioned, in the care of his servant. The defendant entered the premises, alleging an authority from the Court of Chancery, placed a man in charge of the house, took an inventory of the goods, locked up the rooms containing them, prevented the plaintiff's servant from having access to the rooms, and finally obliged him to quit the premises, leav- ing the property under the defendant's control. The Lord Chief Justice thought CHAP. VIII.] TOWNE V. LEWIS. 467 the conduct of the defendant in turning the plaintiff's servants off the premises, and not letting them take away the lime and breeze, amounted to a conversion or not, I think, the jury might fairly find that it did not. The defendant entered the premises with right, and had a right to turn off the plaintiff's servants. The plaintiff certainly had a right to the goods; but he should have sent some one with a proper authority to demand and receive them. If the defendant had then re- fused to deliver them, or to permit the plaintiff or his servants to remove them, there would have been a clear conversion ; but it does not necessarily result from the facts proved in this case that the de- fendant was guilty of a conversion. I am inclined to think that the plaintiff is entitled to a verdict on the issue on the plea of not pos- sessed, which will probably be given up, as it only affects the costs of that issue. 1 Patteson, J. The mere turning the plaintiff's servants off the premises could not amount to a conversion of the goods ; for the de- fendant had a right to turn the servants off. Coleridge, J. Neither the plaintiff nor his servants had any right to be upon the land ; nor was the defendant bound to let them remain there for the purpose of removing the plaintiff's goods; what he was bound to do was, on demand, to let the plaintiff remove the goods, or to remove them himself to some convenient place for the plaintiff. Wightman, J., concurred. Rule refused? TOWNE v. LEWIS. In the Common Pleas, April 16, 1849. [Reported in 7 Common Bench Reports, 608.] Trover for a bill of exchange. Pleas : Not guilty, and not pos- sessed. The cause was tried before Wilde, C. J., at the sittings at Westmin- ster after the last term. The facts were as follows : The plaintiff, as there was no evidence of a conversion, and directed a nonsuit. Cockburn, in Hilary term, 1844, obtained » rule nisi for a new trial. In Michaelmas term, November 11, 1844, before Lord Denman, C. J., Williams, Coleridge, and Wightman, JJ., Whitehurst showed cause, and Cockburn and Petersdorff supported the rule, citing the usual authorities. Lord Denman, C. J., said it did not appear by the evidence that the plaintiff had not acquiesced in the taking, or that he might not have had the use of the goods if he had desired it. Cur. adv. vult. Lord Denman, C. J., in the same term (November 25th), stated, without further observation, that the court ordered the rule to be. made absolute. Rule absolute. 1 This was agreed to on the defendant's part. 2 See Town v. Hazen, 51 N. H. 596. — Ej>. 468 TOWNE V. LEWIS. [CHAP. VIIX. indorser of a bill of exchange, had been sued by the defendant in the Lord Mayor's Court, and had paid the amount under an order of that court. He afterwards sent a person to the defendant to demand the bill, when the defendant told him it was not in his posses- sion, and referred him to his attorney, to whom he had handed it for the purpose of suing upon it. The plaintiif 's messenger declining to go to the attorney, the defendant said : " Then, call on Saturday, and in the mean time I will get it for you." The messenger accordingly called again on the following Saturday, but did not obtain the bill : whereupon the plaintiff immediately brought this action. His Lordship left it to the jury to say whether, when the demand was made, the defendant meant to dispute the plaintiff's right to the bill, or whether he really meant to send it to him when he could obtain it, at the same time intimating a pretty strong opinion that there was no conversion. A verdict having been found for the defendant, Humfrey now moved for a new trial, on the ground of misdirection, and that the verdict was against evidence. The plaintiff was unques- tionably entitled to the possession of the bill, and the defendant's neglect to restore it amounted to a conversion. [Cbesswell, J. Did the defendant convert the bill, by putting it into the hands of his at- torney ?] Certainly not : he had at that time dominion over it, and a right to sue upon it. [Cbesswell, J. Then, was he guilty of a con- version, by not immediately taking it out of his attorney's hands when his claim was satisfied ?] Having fixed his own time for the redelivery of the bill, his neglect to do so was evidence of a conversion. The question which ought to have been left to the jury, is, whether the de- fendant prevented or delayed the plaintiff in obtaining possession of his property, without any justifiable excuse. [Wilde, C. J. Can that be said to amount to a conversion by the defendant, which is neither an assertion of title in himself, nor a denial of the title of the plaintiff, nor evidences an intention on the defendant's part to withhold the chattel from him ?] In M'Combie v. Davies, it was held, that, taking the property of another by assignment from one who had no authority to dispose of it, as taking an assignment of tobacco in the king's warehouse, by way of pledge, from a broker who had purchased it there in his own name for his principal, and refusing to deliver it to the prin- cipal, after notice and demand by him, — none other than the person in whose name it is warehoused being able to take it out, . — is a conver- sion. [Wilde, C. J. That was, in effect, a denial of title.] In Cat- terall v. Kenyon, 1 goods of the plaintiff had been taken iii execution upon process against the goods of B., and placed upon the premises of i 6 Jurist, 507, CHAP. VIII.] TOWNE V. LEWIS. 469 the defendant, who was an innkeeper; upon a demand of them by the plaintiff, in the absence of the defendant, the wife of the defendant said that she would consult the attorney who had issued the execution, and, after having done so, refused, saying that she was not to deliver them up, and that he would save her harmless ; and it was held that this was sufficient evidence of conversion. Lord Denman there said : " The case of Verrall v. Robinson 1 induced us to grant the rule ; but I think that case does not apply : in that case, Lord Abinger and Alderson, B., considered that the chaise was in the custody of the law, and that the party with whom it was placed at livery was not at lib- erty to deliver it up after it had been attached by process out of the sheriff's court; after the attachment, the holder was passive, and no more than, as it were, an officer of the court, and was not justified in parting with it. Here, the goods of one party are by mistake taken by virtue of process against another, and, being placed on the premises of the defendant, the wife takes upon herself to inquire into the own- ership of them, and, after inquiry, refuses to give them up. I think that the party's so depriving the owner of the possession of his goods is sufficient evidence of a conversion." At all events, the plaintiff is entitled to a verdict on the issue upon not possessed. Wilde, C. J. As to the issue last adverted to, the plaintiff is of course entitled to a verdict on that. Indeed, the whole strength of the defendant's case upon not guilty depends upon the plaintiff's right to a verdict upon not possessed. The verdict may be so entered from my notes. As to the rest, the case appears to me to be quite free from dif- ficulty. No doubt the conduct of the defendant was evidence whence the jury might infer whether or not he had been guilty of a conver- sion. But here there was no evidence that the defendant had any intention to deny the plaintiff's title to the bill, or to withhold the possession of it from him ; nor was there any such unreasonable delay on the defendant's part as would warrant the jury in inferring a con- version; on the contrary, the whole conduct of the defendant was con- sistent only with a bona fide intention on his part to deliver up the bill as soon as he could conveniently obtain it. Authorities are not wanV inc to show that a party is not guilty of a conversion because he does not at once restore the chattel, where it is not at the moment in his possession and under his own immediate control. It seems to me that the evidence was properly submitted to the jury, and that their conclusion was the correct one. Coltman, J. The authorities cited by Mr. Humphrey seem to me i 2 C, 31. & E. 495. 470 HEALD V. CARET. [CHAP. Till. conclusively to dispose of his argument. Here there was a full and complete admission of the plaintiff's title to the bill, and a promise to deliver it to him. There was nothing more than evidence from which the jury might, if they pleased, have found a conversion, if they had been satisfied that there had been wilful and unreasonable delay on the defendant's part in complying with the plaintiff's demand. I think the matter was properly left to the jury, and properly disposed of by them. Ceesswell, J. I am entirely of the same opinion. V. Williams, J. I also think there is no ground for finding fault with the summing up in this case, or with the conclusion the jury came to Sule refused. HEALD v. CAREY. In the Common Pleas, Januaet 14, 1852. [Reported in 21 Law Journal Reports, Common Pleas, 97.] Trover for the conversion of a case containing pictures, frames, &c. Pleas : first, not guilty ; second, not possessed. At the trial before Williams, J., at the sittings in Trinity term, 1851, the following facts were proved; The defendant was the London broker for a line of steamboats plying between London and Dunkirk, in communication with the Northern Railway of France. In August, 1850, the plaintiff was residing in Paris, and by his direction his valet, Nisbett, took seven cases of pictures, addressed " Nisbett, Custom House, London Bridge, per steamer," to the railway station, and got a receipt. On the arrival of the cases at Dunkirk, one of them appeared to have suffered damage. In conformity with a regulation of the French law, Richard, who was the agent of the railway company and of the steamboats at Dunkirk, detained the damaged case for official inspection by an officer of the " Tribunal de Commerce," and forwarded the others, with a bill of sale, deliverable to N., at the " Custom House, London Bridge, or order," &c. After the necessary official examina- tion, Richard paid the charges and the export duty on the seventh case, and shipped it, and not knowing Nisbett's address, made out a bill of lading, making it deliverable to "Mr. Carey (the defendant), to hold at the disposal of Mr. G. Nisbett, Custom House, London Bridge, or order.' - The case arrived in the Thames on the 14th of August, but as neither the plaintiff nor Nisbett, nor any one for them, claimed the case within twenty-four hours after the ship's report, according to a provision on the margin of the bill of lading, the defendant, in order CHAP. VlII.] HEALD V. CAEET. 471 to protect the owner and other parties, landed the case, paid the import duty for it, and placed it in the warehouse of Mr. Barber, on Brewer's Quay, with whom he was in the habit of warehousing goods arriving by the Dunkirk steamers. Barber afterwards removed the case in question, with other goods, to another warehouse of his, in Seething Lane, without the knowledge of the defendant, and there it was burned in an accidental fire. There were free and bonded parts in both ware- houses. The learned judge left three questions to the jury, all of which were answered in the negative : first, whether the plaintiff authorized the defendant to act as he did ; secondly, whether the object of the de- fendant was to do the best he could for the consignee ; thirdly, whether he acted as a prudent man would have acted, intending to do the best for the consignee. Upon these facts, and upon the answers of the jury, the learned judge directed a verdict for the plaintiff for £150, with leave to the defendant to move to enter a verdict for him, if there was no evidence of conversion, or a nonsuit, or to reduce the verdict to one for nominal damages, if the court should think it ought to be so reduced. A rule having been obtained accordingly, in Michaelmas term, 1851, Byles, Serjt., and G. JR. Clarke (January 12) showed cause. There was in this case evidence of a conversion. The conduct of the defend- ant throughout the whole transaction fully warranted a verdict for the plaintiff upon the issue of not guilty. In the first place, he was not bound to warehouse the package upon its arrival at all. By 8 & 9 Vict. c. 86, § 16, the law provides for small packages of goods such as this was, and if he had done nothing, it would have gone into the queen's warehouse. Nor was the defendant or his agent authorized to pay the duty, and thus incur a liability ; and if so, then he was not authorized in warehousing the goods as he did. [Maule, J. It is difficult, perhaps, to say that they had authority to pay the duty, so that they could have maintained an action against the plaintiff for money had and received to his use. J In Fouldes v. Willoughby it was held that a mere unauthorized act does not amount to a conversion, but in this case there is more. The jury find that the object was not to do the best for the consignee. There was, therefore, in this case some indirect motive for the un- authorized act. The judgment in Fouldes v. Willoughby shows that there need not actually be a conversion to the defendant's own use. Lord Abinger there says: "To constitute a conversion it is neces- sary that the party taking the goods should intend some use to be made of them, either by himself or by those for whom he acts, or that, owing to his act, the goods are destroyed, to the prejudice of the law- 472 HEALD V. CAREY. [CHAP. Till; ful owner." The motive, therefore, is to be taken into account. But, further, it appears from the passage just cited that, even if the motive were a fair one, still, if one does something to a man's goods without authority, that is a trespass; and if, owing to that act of his, the goods are lost, it is a conversion. The jury in this case also found that the act to which the loss was owing was not the act of a prudent man wishing to do the best for the owner of the goods. This, again, shows that the motive was indirect, and is an important element in consider- ing whether there was evidence of a conversion. Drake v. Shorter also shows that the motive is important. Upon the point of conver- sion they also cited Garside v. The Trent and Mersey Navigation Co., 1 Bushel v. Miller, Alexander v. Southey, Evans v. Martell, 2 and Syeds v. Hay. They then contended that, if there was evidence of a con- version, the plaintiff was entitled to more than nominal damages. Finch v. Blount; 3 Mercer v. Jones; 4 M'Leod v. M'Ghie. 8 [Williams, J., referred to Alsager v. Close, 6 and to The Countess of Rutland's Case.' 1 ] Watson, Bramwell, and Manisty, in support of the rule. In the first place, Carey, the defendant, was justified in all he did, and there- fore there was no conversion ; and, in the next place, even if he was not justified, still there was no conversion for which he is liable in this action. The goods came rightfully into the defendant's possession. He was the consignee, and was agent either for the company or for the plaintiff, or for the two parties to hold for freight. By the plaintiff's act, the defendant had a positive duty cast upon him ; namely, to take reasonable care of the goods. If he did not take that reasonable care of them, and they were lost in consequence, even that would not have been a conversion. But the question left to the jury on that point was, whether the plaintiff in fact gave any authority to the defendant to take care of the goods and warehouse them. ' If Carey, having accepted the bill of lading, had allowed the goods to be treated as derelict, and they had been sold to pay the duty, surely he would have been responsible to the plaintiff for the loss by that sale. Per- haps there was no positive obligation on Carey to pay the duty, but there was nothing wrong or incautious in his doing so. If the defend- ant was the agent of the steamboat company, the goods were lawfully in his possession, and a loss afterwards could not constitute a trespass or a conversion. In order to make an act a conversion, the person doing it must be repudiating the iitle of the true owner. Jbevis, C. J. I am of opinion that the rule should be made abso- i 4 Term Rep. 581. 2 12 Mod. 156. 3 7 Car. & P. 478. « 3 Camp. 477. 5 2 Sc. N. R. 604. 6 10 Mee. & "W. 676 ; s. c. 12 Law J. Rep. n. s. Exch. GO. 7 1 Roll. Abr. 5. CHAP. Till.] HEALD V. CAREY. 473 lute to enter a nonsuit. The question is, whether there was any evi- dence to prove that the defendant was guilty of a conversion. It was admitted that the question was one of law. The facts were that seven cases of pictures were despatched by the plaintiff to London, via Dun- kirk, that one was broken, and after having been inspected at Dunkirk, was consigned by Richard, the agent of the railway company and the steamboats at Dunkirk, to Carey, the defendant, to the order of Nis- bett, at the custom-house. It is said that Richard had no authority to do this ; but the defendant acted innocently and accejDted the bill of lading; and even if Richard had no express authority, Carey was guilty of no conversion. Carey received authority by the bill of lading to unload the goods, and was bound to do so within a given time. It is said he ought to have taken one of three courses, — either to leave the goods in the ship, or to allow them to go to the queen's warehouse, or he ought to have put them into a bonded warehouse, or with a bill of sight into a free warehouse. But even if he ought to have taken the first course, and even although he paid the duty without authority, that will not make him liable in the present action. His duty, as con- signee, was to clear the goods and hold them safely for the plaintiff, and he discharged that duty, even if he had wrongfully paid the cus- tom-house officers. The goods were lost through an accidental fire, for which neither he nor the shipping company was liable. He acted in the matter according to the best of his judgment. It is first said that he was not authorized in fact by the plaintiff to do what he did ; but if the goods were consigned to him, whether he had in fact authority to pay the duty or not, he was authorized to put them in safe custody. Next, it is said that the defendant did not act as a prudent man would have done. But it is not necessary to consider that point, as that would not make him guilty of a conversion. Further, it is said that the de- fendant acted from indirect motives. But if a man acts not wrong- fully, though from improper motives, that does not make him guilty of a conversion. Maule, J. The result of the evidence and the argument in this case is, that the goods were destroyed by an accidental fire under cir- cumstances which make the owner bear the loss. The question is, whether the evidence showed that Carey had been guilty of a conver- sion. There is no doubt that a negligent dealing with goods by a bailee is not a conversion ; there is no doubt that an act consequent upon negligence of the bailee in which he did not participate would not amount to a conversion by him. Pie is not liable for what takes place, unless it happen when a dominion is asserted by him over the chattel which is the subject of the action. If the thing be destroyed, and'the act not participated in by the bailee, but the thing be wrong- 474 HBALD V. CAKEY. [CHAP. VIII. fully in his possession, there may be a conversion, and an action may lie, although the defendant did not participate in the act. But where there is no unlawful possession, and where the destruction is not par- ticipated in by the bailee, there is no conversion. The goods in this case were in the hands of the defendant, under condition to be held by him for the plaintiff. He had something to do in respect of them ; for it was admitted by the plaintiff, as well as the defendant, that he was not altogether a stranger, but was to do what was needful in the mat- ter. He paid the duty, and it may be that he could not charge the plaintiff with the amount. I am inclined to think that he could ; but if he could not, the only penalty was the loss of the money paid. It was his duty to put the goods into a fit place ; and it is not said that the place into which they were put was not a fit one. I do not think that there was any negligence, and there certainly was no conversion. There is no conversion unless where the act is done in the assertion of dominion over the goods. I also think that there was no negligence, and that the defendant, if liable at all, would have been liable in trover. But that is not the point in the case. I am of opinion, therefore, that the verdict on the evidence ought to have been for the defendant on the plea of not guilty. The jury have found that the defendant did not intend to do what was best, and what a prudent man ought to have done ; but as it appears in the evidence that he did nothing which he might not properly do, I think he was not guilty at all, and at all events, that he was not guilty of a conversion. Ceesswell, J. I think it is very plain that the plaintiff is not entitled to recover. The result is the same as to Carey, whether he be identified with the shipping company or not. It would indeed be very singular if any thing which took place in this case could be taken as amounting to a conversion. The defendant received the goods to take care of for Nisbett or Heald. How can it be said that he has been a conversioner? He has never repudiated their right, or done any thing inconsistent with his receiving the goods to take care of them. It is not said that he put them into a wrong place. He put them into a proper place for Nisbett to get them from. That was no conversion, or only a conver- sion for the real owner. But it is said that he paid duty upon the goods, which he ought not to have done. He paid that duty in order to put the goods into a free warehouse ; and it may be said that he need not have paid the duty, but could have put them into another warehouse. He may not perhaps be able to recover back the money paid for the duty if it was spent uselessly. But that was no conversion, as he was. still acting for the owner of the goods. It is, therefore, perfectly clear that there was no conversion of the plaintiff's goods, and that the rule for a nonsuit should be made absolute. CHAP. VIII.] SIMMONS V. LILLTSTONE. 475 Williams, J. I am of the same opinion. It appears that Richard was agent for the shipping company, and the seventh package having met with an accident, it was his duty to forward it to London. He, therefore, consigned it to Carey, who, on its arrival, put it into a place of usual and proper custody, wherr it was accidentally burned. I am of opinion that there is nothing in the case which, in point of law, is equal to a conversion, nor any thing for which the defendant is liable. Mule absolute to enter a nonsuit} SIMMONS v. LILLTSTONE. Iir the Exchequer, February 12, 1853. [Reported in 8 Exchequer Reports, 431.] The second count 2 was in trover for the conversion of goods and chattels, to wit, five hundred pieces of timber. Pleas (inter alia) to the whole declaration, not guilty. The plaintiff joined issue on the first plea. At the trial, before Pollock, C. B., at the London sittings after last Michaelmas term, it appeared that the plaintiff earned on the business of a mast, oar, and block maker at Milton next Gravesend. The evi- dence in support of the second count was, that certain pieces of timber or spars used for making bowsprits, and belonging to the plaintiff being on the defendant's land, he caused them to be removed ; and upon the timber being again placed there, and having become im- bedded in the soil, the defendant directed his workmen to dig a saw-pit in his land, and in so doing they cut through the timber, leaving the pieces there, and part of them was afterwards carried away by the tide of the river, which at high water flowed over the land, the other part remaining imbedded in the soil. It was objected, on the part of the defendant, that there was no evi- dence of a conversion. His Lordship was of opinion that there was prima facie evidence of a conversion. The jury found a verdict for the plaintiff; damages £60. Jiramwell, in last Michaelmas term, having obtained a rule nisi, Shee, Serjt., and Hose showed cause in Hilary term (January 27). There was evidence of a conversion. In order to constitute a conversion, it is not necessary that there should be an acquisition of property by the defendant : it is sufficient if there be a deprivation of property to the plaintiff. Kcyworth v. Hill. [Parke, B. Here the defendant never intended to take to himself any property in the tim- i See Gr. W. R. E. Co. v. Crouch, 3 H. & N. 183. — Ed. 2 Only so much of the case is given as relates to this count. — Ed. 476 SIMMONS V. LILLTSTONE. [CHAP. VIII. ber.j If a person purposely left the gate of a field open, so that a horse escaped, that would amount to a conversion. [Paeke, B. The form of a count in trover, prescribed by the Common-law Procedure Act, 15 & 16 Vict. c. 76, Sched. (B.), is, " that the defendant converted to his own use, or wrongfully deprived the plaintiff of the use and posses- sion of, the plaintiff's goods." Suppose a person threw a stone into a room through an open window, and broke a looking-glass, would that be a conversion of it ?] It is submitted that any wilful damage to a chattel, whereby the owner is deprived of the use of it in its original state, is a conversion. [Platt, B. Taking wine from a cask and filling it up with water is a conversion of the whole liquor. Richardson v. Atkinson.] The principle laid down in Fouldes v. Willoughby is, that a mere wrongful asportation does not amount to a conversion, unless the taking or detention of the chattel is with intent to convert it to the taker's own use or that of some third person, or unless the act done has the effect either of destroying or changing the quality of the chattel. Here the cutting of the timber destroyed it as timber. In the case of two tenants in common, each has an interest in the chattel, so that noth- ing short of an absolute destruction of it will amount to a conversion; but, in ordinary cases, any injury which alters the nature or quality of the chattel is a conversion of it. Willes, in support of the rule. The cutting of the timber was a mere act of trespass, and not a conversion. In Richardson v. Atkinson, the conversion consisted in adding water to the remainder of the wine. If a bailee of a cask of wine consumes part of it, that is not a conversion of the whole. Philpott v. Kelley. In Kent's Commentaries, vol. ii. p. 360 (4th ed.), in treating of " original acquisition by succession," vari- ous instances are adduced of one person's property becoming that of another, in consequence of the nature of the article being changed by reason of the latter having expended upon it his skill, labor, or materi- als ; but there is no case to the effect that an injury to a chattel vests the property in it in the wrong-doer. The question is, whether the act done was an assertion of property on the part of the defendant, or a mere act of violence. Heald v. Carey decided that there is no conver- sion of goods for which trover will lie, unless there be a repudiation of the right of the owner, or the exercise of a dominion over them incon- sistent with that right. Paeke, B. The question which relates to the count in trover is, whether there was any evidence of a conversion. Now the evidence was that the pieces of timber were cut in two by the defendant; that they were left imbedded in the soil, — not applied to the defendant's own use, — and that part of them was carried away by the tide. With- out adverting to the plea of justification, we are all of opinion that there CHAP. Vni.] BUREOUGHES V. BATNE. 477 was no sufficient evidence of a conversion to entitle the plaintiff to a verdict on the plea of not guilty. In order to constitute a conversion there must be an intention of the defendant to take to himself the prop« erty in the goods, or to deprive the plaintiff of it. If the entire article is destroyed, as, for instance, by burning it, that would be a taking of the property from the plaintiff and depriving him of it, although the defendant might not be considered as appropriating it to his own use. In this case nothing is done but cutting the timber, and, by accident, it is washed away by the river, — not purposely thrown by the defendant to be washed away ; consequently, we think that does not amount to a conversion. Assuming that it was prima facie a conversion, then the question would arise whether that conversion was not excused by the right which the defendant had to make the saw-pit, and to cut the tim- ber in making it, if he was not able to do it in any other way. But, "without deciding that, we think that there was no evidence to warrant the jury in finding that this timber was converted by the defendant to his own use ; that is, either by taking the whole property to himself, or asserting title in another, or depriving the plaintiff of the property. None of those alternatives are made out by the evidence, and conse.- quently there ought to be a verdict for the defendant on the plea of not guilty to the count in trover. Rule accordingly} BURROUGHES v. BAYNE. In the Excheqitee, February 10, 1860. [Reported in 5 Hurlstone <$- Norman, 296.] Trover for a billiard table with the appurtenances. Pleas: first, not guilty ; secondly, that the goods were not the plaintiff's. Where- upon issue was joined. At the trial before Bramwell, B., at the sittings in London after Trinity term, it appeared that, in July, 1857, the billiard table in ques- tion had been hired of the plaintiff by one Filmer, who kept a hotel in Harley Street, Cavendish Square, under the following agreement: — "Messrs. Burrottghes : " 18 Harley Street. " Gentlemen, — In consideration of you having supplied me (on hire) with a full-sized slate billiard table, and the following appendages, viz., twelve cues, &c, I agree to hire the said table and appendages for twenty weeks, at the rent of 14s. per week, to be paid every four weeks. I also agree to pay £5 down as a collateral security. Should l See Byrne v. Stout, 15 111. 180 ; Sanderson u . Haverstick, 8 Pa. 294. —Ed. 478 BURROUGHES V. BATNE. [CHAP. VIIL I at the expiration of twenty weeks wish to purchase the said table, &c., I agree to pay down the balance between the money paid as rent and collateral security and the amount in full of the said table, &c, namely, £91. " Hire of table and appendages to commence from May 26, 1857. And the table and appendages to remain your property till paid for in full. " I also hold myself responsible for any damage done to the same by fire or otherwise, excepting ordinary wear and tear. " Thomas Filmee." The table remained in Filmer's possession till the 7th of March, 1859, when the following further agreement was drawn up, indorsed on the first agreement, and executed by Filmer : — "Memorandum. — That there is now due to Messrs. Burroughes from T. Filmore the sum of £80, being the balance of the purchase-money for the billiard table; and that T. Filmer hereby agrees to pay the said sum of £80 by instalments of £5 per week, the first instalment to be paid on the 9th of March, 1859 ; and in default of payment of any one instalment, the whole sum remaining unpaid to become due and to be paid forthwith ; and J. F. Penton hereby agrees, in consideration, &c, to guaranty the due payment of the said instalments, and in default of one instalment, then the due payment of the full amount remaining due. "Thomas Filmer." This agreement was never completed, Penton having declined to be- come security. At the beginning of April the plaintiff demanded the billiard table of Filmer, when he found that a bill of sale had been exe- cuted by Filmer to the defendant, under which the defendant's man was in possession of the goods in Filmer's house. The billiard table was included in the bill of sale. On the 13th of April a clerk of the plaintiff's attorney served on the defendant, at his house in Brook Street, a formal demand of the billiard table. The defendant asked to see the agreement, which the plaintiff's son accordingly produced to him on the next day. The defendant then asked for a copy, that he might consult his attorney, but the plaintiff would not allow a copy to be taken. The plaintiff's son deposed that the defendant seemed at first willing to give up the table, but afterwards, on reading the two agree- ments, said, " If it was a hiring only, he would give up the table, but it appeared to be a purchase. The table was in the inventory, and, unless the plaintiff could prove that it was his, he would stick to it." The plaintiff then caused notices to be served on the defendant and the man in possession that on the following morning, the 15th of April, at twelve o'clock, he would call to fetch away the table. The plaintiff and CHAP. VIII.] BTTRROUGHES V. BATNE. 479 his men called on the next day at Filmer's house in Harley Street at the time appointed and saw the man in possession, but could not ob- tain the billiard table, the door of the billiard-room being locked. The plaintiff never got the billiard table, which was ultimately seized and sold by the landlord under a distress for rent. The defendant swore that on the morning of the day last mentioned he had given instruc- tions to the man in possession not to detain the table. The man in possession said that he told the plaintiff that he might have the table, but he could not find the key of the room in which it was. The jury found a verdict for the plaintiff. Petersdorff, Serjt., in Michaelmas term, obtained a rule for a new trial, on the ground that there was no evidence of a conversion, and that the verdict was against the evidence. C. E. Pollock showed cause (February 9). There were two occasions on which the conduct of the defendant was such as to be evidence of a conversion. After the agreement had been produced to the defendant, he had no right to detain the billiard table, but was bound at his peril to give it up at once. Secondly, when the plaintiff's men called by appointment on the 15th of April, the. defendant should have been ready to give up the table. Though it may be true that, if this was the first communication which had taken place between the parties respecting the table, it would be very slight evidence of a con- version, yet, when taken in connection with the defendant's threat to " stick to " the table, it was evidence on which the jury were fully war- ranted in acting. In fact, the mere taking an assignment of the plain- tiff's property from one who had no right to dispose of it was a conversion. M'Combie v. Davies. Petersdorff, Serjt., in support of the rule. There was no evidence of any intention on the part of the defendant to detain the table when the plaintiff and his men called for it. When asked on the former occasion to deliver it up, the defendant doubted as to the right of the plaintiff, and desired to be satisfied on the point ; but he never said that the plaintiff should not have the table. Expressing a desire to inquire of his attorney what was the effect of the agreement is no evidence of a wrongful conversion. [Martin, B. A man is entitled to his chattel property at all times. If another obstructs his enjoy- ment of it, by exercising an act of ownership over it to his prejudice, that is a conversion.] What the defendant said was not a refusal to give up the property, but merely an evasive answer. The defendant was not in the actual possession of the billiard table at the moment when the demand was then made upon him. He subsequently told the man in possession to give it up when the plaintiff should apply for it. TChannell, B. That was not communicated to the plaintiff. Mae- 480 BURROTJGHES V. BATNE. [CHAP. Till. tin, B. If a man finds a watch in the street, and another goes to him and demands it, if the former says, " I am very desirous of giving it up to the real owner, but I wish to ascertain who he is," that is not a conver- sion. Channell, B. If the defendant took so much time to consider whether he would give up the table, and after that did not choose to take care that it should be given up when the plaintiff called for it, surely that was a matter which the jury were entitled to consider.] The judge is dissatisfied with the verdict. [Martin, B. That might be conclusive, if the learned judge reported that he believed that the plaintiff or his witnesses had spoken falsely. Bramwell, B. I do not think that any untruth was told on either side.] There was no refusal to deliver up the table. [Pollock, C. B. The word "refusal" is am- biguous. If by refusal permanent refusal is meant, that is a conversion, and not merely evidence of a conversion. Mere delay in complying with a demand hardly amounts to a refusal, if it is a reasonable delay for the purpose of ascertaining the justice of the demand.] Cur. adv. vult. The following judgments were now pronounced : — Martin, B. The question in this case was, whether there was evi- dence to go to the jury of a conversion; and we are all of opinion that there was. The case, as it seems to me, is of considerable importance. There is no more common cause of action than where an owner of goods complains that another has wrongfully taken possession of them. The law has provided four forms of action applicable to such a state of things. First, the action of trespass, which appears more immediately directed to the taking of a man's property out of the possession of the owner ; secondly, the action of replevin in respect of goods taken but re- stored to the owner by process of law. But at common law the more direct remedy for the recovery of possession, or damages, where a chattel was detained from the owner, was the action of detinue. There existed, however, an objection to that action, which was that the defendant was entitled to wage his law ; and the consequence was that the defendant in an action of detinue, by himself swearing to the non-existence of the cause of action, could at once defeat the plaintiff. In consequence of this, the courts of law in very early times invented the action of trover. They permitted the plaintiff to state that he lost goods which he never lost, and that the defendant found goods which he never found, and that the defendant converted the goods so found to his own use. The courts took upon themselves to prohibit the de- fendant from denying either the averment of the losing or the finding by the defendant ; and thus they gave an action (a species of action on the case) in which the defendant could not wage his law. That, I believe, was the origin of the action of trover, — an action devised for CHAP. VIII.] BURRO (JGHES V. BATNB. 481 the purpose of preventing the plaintiffs from being defeated by the wager of law. The origin of the action of indebitatus assumpsit was the same. For the purpose of preventing the wager of law in an action to recover a debt, the courts devised the action of indebitatus assump- sit, wherein it was alleged that the defendant was indebted to the plaintiff, and, being so indebted, he promised to pay the debt, but broke his promise. This was an action on the case, and wager of law could not be made. This, I believe, was the true origin of the action of trover, and, in my judgment, we ought to extend its operation to all cases where a light of action in detinue properly exists, and not throw difficulties in the way of a man's recovering where his goods are wrong- fully detained. I myself have always understood that trover was the action whereby a person entitled to the possession of goods wrongfully detained from him was entitled by law to recover damages for their detention. I do not think there is any necessity to discuss the original meaning of the words " trover " or " conversion ; " they are technical expressions used in an action given by the law to enable a man to re- cover damages for the unlawful detention of his property. I freely admit that the word " conversion " is an unfortunate expression. Un- doubtedly, in the great majority of cases where an action of trover is brought, no conversion in one sense has taken place ; the goods are in the same state in which they always were ; there is no actual conver- sion in the sense in which a person, not a lawyer, might possibly under- stand the term. In ordinary cases, the pontiff's proof is much the same as would be required in an action of detinue. But the word " conversion," by a long course of practice, has acquired a technical meaning. It means detaining goods so as to deprive the person en- titled to the possession of them of his dominion over them. In Wil- braham v. Snow 1 there is a note of Serjeant Williams, which, I appre- hend, is as good an authority on this subject as exists. He says : " So where a carpenter, who worked in the king's yard, refused to go there any more, upon which the surveyor would not let him have his tools until the king's work was done, under a pretended usage to do so, a demand and refusal being proved, it was held, by Holt, C. J., that the denial of goods to him who has a right to demand them is an actual conversion, and not evidence of it only ; for what is a conversion but an assuming upon one's self the property in and right of disposing of another's goods ? And whoever detains another man's goods from him without cause takes upon himself the right of disposing of them." Now I adopt that as the true meaning of the word " conversion," in refer- ence to this action, and the same rule has been laid down in modem i 2 Wras. Saund. 47 g. 31 482 BURROUGHES V. BATNE. [CHAP. Till. times. There is a case, Fouldes v. Willoughby, which I have long considered, and often heard cited as laying down the true rule upon this subject. In that case a ferryman at Birkenhead had had some horses put on board his boat to bring to Liverpool ; he turned them out, and the horses were left upon the road. An action of trover was brought, and the question was, whether or not trover lay for their value. The court were of opinion that it did not ; and the distinction between the action of trespass and trover was much discussed. Alder- son, B., in delivering his judgment, says : " Any asportation of a chattel for the use of the defendant or a third person amounts to a conversion, for this simple reason : that it is an act inconsistent with the general right of dominion which the owner of the chattel has in it, who is entitled to the use of it at all times, and in all places. When, therefore, a man takes that chattel, either for the use of himself or of another, it is a conversion." I entirely accede to this view of the law, which is simple and of easy application. Apply it to this case. The facts were these : A person had hived a billiard table of the plaintiff, and then had executed a bill of sale to the defendant ; and I own that I am not prepared to state that the taking possession under that bill of sale was not an act of conversion, for it seems to me it falls within what is stated by Alderson, B., that it is an act by which the defendant took possession of the chattel for the use of himself from a person who had no right to give it. 1 am by no means inclined to say that the simple taking possession by the defend- ant under the bill of sale was not a conversion of those goods. What further took place, however, is this : The plaintiff went to the defend- ant and showed him the document under which the billiard table was hired. Thereupon the defendant said he would give it up ; but, on turning over the paper, he found something which was an incomplete contract for sale, and he then alleged that there was a sale, or that, he supposed there was, and refused to give it up. He said, in effect, "You are not entitled to it," and he did not deliver it up. In the evening the plaintiff told the defendant that at twelve o'clock on the following day he should send for the table for the purpose of carrying it away. Accordingly the plaintiff did send, and could not get it, it being locked up. In the mean time the defendant had found that he was in error, and had directed the man in possession to give up the billiard table. If the key could have been obtained, it is suggested that it would have been given up. The plaintiff, however, went to get the billiard table in pursuance of his notice ; and I think it was the duty of the defendant to be ready to give it to him when he came for it. The consequence was that the billiard table was distrained by the landlord for rent. If it had been delivered up to the plaintiff on the CHAP. VIII.] BURROUGHES V. BAYNE. 483 day appointed, when he was entitled to have it, this would not havo happened. I think that this was evidence to go to the jury of a conver- sion. I myself should have directed the jury to find a verdict for the plaintiff, if they believed the evidence adduced on his behalf. For these reasons, I think the rule ought to be discharged. CnANNELL, B. I am also of opinion that this rule ought to be dis- charged. My brother Martin has gone so fully into the law which applies to the case, that I propose very shortly to state the grounds oa which I agree in the opinion which he has expressed. First, it was said that there was no evidence which ought to have been submitted to the jury. I cannot think that there is any good ground for the rule in that respect. The case of the plaintiff did not exactly tally with that of the defendant ; because the evidence on the part of the defendant, though in many respects consistent with that on the part of the plain- tiff, qualified, in some degree, the case of the plaintiff ; but that was for the jury. On that ground, however, the application entirely fails. The next ground for setting aside the verdict is, that the finding is against the evidence. I am not called upon to say, if the jury had found a different verdict, that I should have felt myself at liberty to set it aside ; all I say is, there was evidence to warrant the finding of the jury. I desire to be understood that I do not mean to state or suggest that every detention is a conversion ;- I guard myself against any such supposition. Every asportation is not a conversion ; and therefore it seems to me that every detention cannot be a conversion. If it were, the mere removal of a chattel, independently of any claim over it in favor of the party himself, or any one else whatever, would be a conversion. The asportation of a chattel for the use of the defend- ant or third persons, amounts to a conversion, and for this reason, whatever act is done inconsistent with the dominion of the owner of a chattel, at all times and places over that chattel, is a conver- sion. On the other hand, the simple asportation of a chattel, without any intention of having further use of it, though it may be a suffi- cient foundation for an action of trespass, is not sufficient to establish a conversion. I apply to the case of detention somewhat the same rule as was laid down in Fouldes v. Willoughby with reference to a mere asportation. Now, what are the facts ? The billiard table, which is admitted to be the property of the plaintiff, was taken by the defend- ant under a claim to exercise some dominion over it, because he claimed a right and power to detain it, independently of the interest of any other person, viz., under a claim as owner inconsistent with the right of the actual owner. Then, when the billiard table was in his posses- sion, under a claim of right, the plaintiff applied for it. It is said that on that occasion there was no formal demand and refusal. I agreo 484 BURROUGHES V. BAYNB. [CHAP. VIII. that is so ; but the defendant at first said that the property was his, and that which afterwards passed, in my judgment, amounted to a de- mand and refusal. The defendant was not satisfied, and a second interview took place. Then the plaintiff's son produced a document, and the defendant, having inspected it, at first said that it was a hiring only ; but, on the other side, there was something which might possibly amount to a sale, and accordingly he claimed to exercise some right over the table, namely, a right to consider for himself, till the next day, whether he would detain it; but down to that moment he had detained it as a matter of right. It is said he did not neglect to de- liver the billiard table, because in fact he had not got it, but it was at another place, and that he did no more than to require, for himself, further time to consider. Supposing that down to this time there had been a conversion, I cannot say it was waived by the notice. On the contrary, the notice strengthens the plaintiff's right to recover. Put- ting it most in favor of the defendant, it seems to me it may have amounted to an intimation on the part of the plaintiff to this effect: " You shall have till to-morrow, when I will send some one to receive my property. Till then you may consider whether you will give it up." It was the defendant's duty to have some person on the spot to deliver it up. The plaintiff had done all that he could be reasonably expected to do. He did not get his property, and therefore brought this action. I think. we may also connect the lapse of time between the unconditional application on the part of the plaintiff and the issu- ing of the writ ; and, putting all these circumstances together, I am clearly of opinion that there was evidence which warranted the jury in finding a conversion. It may be this view is not satisfactory to my brother Bramwell, who tried the cause. But, though he says he would have adopted the view of the defendant, so far as it differs from the view presented on the part of the plaintiff, yet he wishes that, if we are of opinion upon the facts stated in the evidence of the defendant that there was a conversion, we should say so, and not act on his im- pression that he would have found a different verdict. I think, there- fore, on the several grounds made, there is no reason for sending the case down for a new trial, and that this rule should be discharged. Bkamwbll, B. I think, if any thing was necessary to show the im- policy of this form of action, and of using words in any other than their primary signification, it would be the difference of opinion which has arisen as to the meaning of the term " conversion." It seems to me that, after all, no one can undertake to define what a conversion is. Some decided cases may enable one to come to a conclusion, but in cases not similar there will always be a difficulty. As to this particular case, I think there was no misdirection ; certainly, in a technical sense, CHAP. VIII.] BURBO0GHE8 V. BAYNE. 485 there was not ; because, if the plaintiff's account is true, there was evi- dence of a conversion, — he demanded the goods, and could not get them. But, I thiuk, if the jury acted upon that, they acted upon erroneous evidence, and that they ought to have acted on the evidence of the defendant ; and, therefore, if my learned brothers had taken the same view of the evidence as I do, I should have thought a new trial ought to have been granted. But I protest against the notion that, because the judge who tried the cause says he is dissatisfied with the verdict, therefore a new trial should be granted. That ought not to be unless there are reasonable grounds for that dissatisfaction. Inas- much as I have not been able to persuade my brothers that my grounds are reasonable, I think that they are right in discharging the rule. But I confess I think the verdict was against the evidence. I cannot say there was not evidence to go to the jury of a conversion of the goods, but I think the verdict was against the evidence. It certainly is not every detention of goods (although there is no right to detain them) that is a conversion, in my judgment at all events. Parke, B., in Clark v. Chamberlain, 1 said : " If, instead of insisting Upon salvage being paid, the defendant had said, ' I do not know whether salvage is due or not ; I shall keep them until that is ascertained,' he would not have been guilty of a conversion." In such cases, it would be mon- strous to hold that a man had not a right to make reasonable inquiries. It cannot be that, if I pick up a watch in the street, and another per- son says, " that is mine," I am bound at once to deliver it up. I may say, " It may be, but I will not give it to you before you tell me the name of the maker;" and, if he thereupon walked away, it cannot be that he would have a right of action against me simply because I exer- cised a sound discretion. If such were the law, I should be sorry for it ; but I do not believe it is. The result is, you must in all cases look to see, not whether there has been what may be called a withholding of the property, but a withholding of it in such a way as that it may be said to be a conversion to a man's own use. I confess that there are some cases of a simple wrongful withholding, which may, according to the construction put upon that word, be called a conversion to a man's own use ; because, what matters it, to one who may be the owner of the goods, how or why he is deprived of them ? If a person detains a sheep belonging to me, what matters it to me whether he does so because he means to eat it, and does eyentually eat it, or makes any other use of it. He has claimed a dominion over it inconsistent with mine. Suppose a man detains a picture for the pleasure of looking at it, and in order that it may form one of the ornaments of his dining- i 2 M. & W. 78. 486 BUKROUGHES V. BATNE. [CHAP. VIII. room, and does nothing to it but let it hang there : that is, to all in- tents and purposes, a conversion, according to law and good sense. Now, in the present case, the defendant got possession of the billiard table, not wrongfully, because it was let on hire to a person who had lawful possession of it, and who might hand it over to the defendant without the defendant being a trespasser or wrong-doer therein. There was no suggestion that he got possession of it wrongfully ; but, having got possession of it iawfully, and never having removed it from the place where it was originally placed, and, in truth, having nothing more than what might be called nominal possession of it, the plaintiff comes and says, " The billiard table is mine, give it to me." The de- fendant says, " Show me how it is yours ; bring the contract of hiring." The contract of hiring is brought ; the defendant sees a writing on the back of it, which tends to show it was a sale ; and then asks for a copy, in order that he may take advice upon it ; the plaintiff, instead of doing as he properly ihight have done according to my view, says : " I shall not ; the table is mine ; you may give it to me or not > but I shall treat it as a refusal." It turns out that he himself put the true color on the transaction, by sending a formal notice, and going the next morning for the billiard table, not treating it as an absolute refusal, but saying, "I will come and take it away with the proper means for doing so." The next morning, when he did come, it unfor- tunately happened that the defendant had .given up the nominal pos- session ; and the person who had the actual custody had locked up the room, and the plaintiff could not get the table ; he went away, and five or six days afterwards the table was distrained for rent. It seems to me the more reasonable view of the case that this was not a conver- sion of the table to the defendant's own use. An attempt was made by my brother Martin to render this word "conversion" intelligible. But it ought to be borne in mind that in the forms of pleading given in the appendix to the Common-law Procedure Act of 1852 (the 15 & 16 Vict. c. 76), this is the form of the count in trover: " That the de- fendant converted to his own use, or wrongfully deprived the plaintiff of the use and possession of the plaintiff's goods, that is to say," &c. So that the legislature has put a meaning on the word " conversion." If the complaint had been that the defendant wrongfully deprived the plaintiff of the use and possession of his goods, the answer might well be, " I did not continue to detain them; you might have had them, but you would not wait. If I am to be.considered as having wrongfully de- tained them, though you went away and sent for them the next morn- ing, your damages are a farthing." Instead of which, by the use of the word " conversion," the defendant is made liable for the value of the billiard table, which he cannot recover from anybody else. There- CHAP. VIII.] FOTHERGILL V. LOTEGROVE. 487 fore, on consideration of all the facts, had I been one of the jury, I should have found that there was not an assertion of dominion in- consistent with the title of the plaintiff; that the whole affair was matter of discussion up to the time when the plaintiff was informed the goods were at his service; and that, so far as the defendant was concerned, there clearly was no conversion. For these reasons I think that the verdict was against the evidence; but, in so saying, I desire to add that in my opinion it is not merely because the judge who tried the cause comes to a different conclusion from the jury upon the facts, that a new trial should be granted ; but that where it appears to the court that the view taken by the judge is wrong he should be set right, as on the present occasion, by being overruled. Rule discharged. FOTHERGILL v. LOVEGROVE. At Nisi Peius, cobam Keating, J., Trinity Teem, 1860. [Reported in 2 Foster Sf Finlason, 132.] Teovee and detinue. Pleas : Not guilty, non detinet, and not pos- Keane for the plaintiff. Petersdorff, Serjt., for the defendant. The plaintiff had lodged in a house of the defendants, kept by a female housekeeper for him. Having resolved to give up letting lodg- ings and to eject the housekeeper, she resisted, and had recourse to the plaintiff, who supported her in her resistance. Thereupon the defend- ant expelled her and the plaintiff, and proceeded to sell the furniture, which was removed by an auctioneer. Among the furniture thus re- moved were some articles belonging to the plaintiff, who claimed them, and having pointed them out, they were struck out of the catalogue ; but in point of fact they had never been returned to the plaintiff, al- though he had repeatedly demanded them, and they remained at the auctioneer's. For the defence, it was not denied thatf the articles were the plain- tiff's, but it was contended that there had been no conversion by the defendant. It was replied, on the part of the plaintiff, that it was for the defend- ant to return the articles, having wrongfully removed them, and that the proper course for him to take, after action brought, was to have taken out a summons to stay proceedings upon delivery of the goods, with some trifling sum for damage. Keating, J. (to the jury) . Did the defendant detain, or cause to be 488 PILLOT V. "WILKINSON. [CHAP. VIII. detained, the goods so as to deprive the plaintiff of them ? If ne did not intend to do so, why did he not return them. ? The proper course even after action, would have been to take out a summons to stay it upon delivery of the goods. 1 Verdict for the plaintiff? PILLOT v. WILKINSON. In the Exchequer, Mat 7, 1863. [Reported in 2 Hurlstone $■ Coltman, 72.] In the Exchequer Chamber, June 20, 1864 [Reported in 3 Hurlstone §■ Coltman, 345.] Trover. For that the defendant converted and wrongfully deprived the plaintiff of the use and possession of his goods, that is to say, forty-nine cases of champagne, whereby the plaintiff was prevented from selling the same. Pleas : first, not guilty ; secondly, a denial that the goods were the plaintiff's, as alleged. Issues thereon. This action was tried before Pollock, C. B., at the London sittings after last Michaelmas term, when the following facts appeared : The defendant was a warehouseman and wharfinger, and the cases of wine which formed the subject of the action had been deposited by Messrs. Bennett & Co., at his warehouse. A warrant for the wine, in the ordinary form, was given to Messrs. Bennett & Co., deliverable to them or their order by indorsement thereon, which was signed by Grueber the warehouse-manager, and Oram, a clerk in the employ of the defendant. The wan-ant was subsequently indorsed by Bennett & Co. to Henry & Co., who on the 5th of July sold the wine to the plaintiff, received payment for it, and delivered to the plaintiff the warrant generally indorsed. The plaintiff sent to the defendant's wharf on the 7th of July, and again on the 14th, for samples of the wine. The warrant was upon each occasion produced at the wharf; and, on its production, the clerk Oram gave samples, according to the ■usual practice, and indorsed upon the warrant a memorandum of the number of bottles withdrawn, to which he subscribed his initials. The evidence was conflicting upon the question whether a sampling order, signed by a clerk of the plaintiff, had been sent along with the i Peacock «. Nicholls, 8 D. P. C. 367. « See Cox v. Cook, 14 All. 165 ; Cargill v. Webb, 10 N. H. 199 ; Dwell v. Mosher, 8 Johns. 445; Mitchell v. Williams, 4 Hill, 13. — Ed. CHAP. Till.] PILLOT V. WILKINSON. 489 warrant. It did not appear, however, that the defendant, or any of his clerks, were in fact aware either that the wine had been sold to the plaintiff, or that he was the holder of the warrant. On the 22d of July, the following notice of attachment, issued the same day out of the Lord Mayor's Court, was served at the defendant's wharf: — "22dday of July, 1862. " To Mr. Thomas Wilkinson : "Take notice, that by virtue of an action entered in the Lord Mayor's Court, London, on the 22d day of July, 1862, against John Henry, trading under the name, style, or firm of J. Henry & Co., defendant, at the suit of Richard MacIIenry, plaintiff, in a plea of debt upon demand of £50, I do attach all such moneys, goods, and effects as you now have, or which hereafter shall- come into your hands or custody, of the said defendant, to answer the said plaintiff in the plea aforesaid, and that you are not to part with such moneys, goods, or effects, without license of the said court." " (Signed) Serjeant at Mace. " Lord Mayor's Court Office." The notice of attachment was served by the Deputy Serjeant at Mace. The clerk to the attorney of the plaintiff in the Mayor's Court accompanied the Deputy Serjeant at Mace, and indorsed upon the back of the notice of attachment, before it was served, the particulars of the goods which form the subject of the present ' action, and the attention of the manager Grueber was directed to the indorsement. Another notice of attachment, issued on the 16th from the Lord Mayor's Court against the goods of the same defendant in an action at the suit of one Aaron, was also served at the same time, but no partic- ulars were indorsed upon it. On the 24th of July, the plaintiff and his attorney called at the defendant's wharf, and saw the manager Grueber, to whom they pro- duced the warrant, and explained that the plaintiff had purchased the wine, which he had come to demand. Grueber informed them that the wine was stopped on account of an attachment, but, upon search- ing for it, he was unable to find it, or to tell them against whom it had issued. He stated, however, that Mr. Wilkinson had gone to Lloyd's, and had probably taken the papers with him. The plaintiff's attorney then told him that the plaintiff had already lost one customer for the wine, and if he did not have it that day, it would be a loss. Grueber offered to accompany them to Lloyd's. They went there, but found that the defendant had left and gone home. On the same day the plaintiff's attorney wrote to the defendant as follows : — 490 PILLOT V. WILKINSON. [CHAP. Tin. " 1 Circus Place, Finsbury Circus, E. C " Thomas Wilkinson, Esq., " 24 July, 1862, "Botolph Wharf, Lower Thames Street. " Sir, — We are instructed by Mr. Pillot, the holder of warrant No, 7115, for forty-nine cases of wine, to request the immediate delivery of such cases of wine, and to apply to you for compensation for the loss he has sustained by your retaining the same. Our instructions are to adopt immediate proceedings, and we shall therefore feel obliged by your communicating with us by eleven o'clock to-morrow morning, so that, if satisfactory, our further intervention in the matter may become unnecessary. Should you still decline to deliver the goods, please send us the name of your solicitor, to whom we may send process. " We are, Sir, &c, "DlGBT & SHAEP." On the morning of the 25th, but at what exact time did not appear, Grueber, having seen the defendant in the interval, called upon the plaintiff's attorney, and told him that the matter required considera- tion, and the defendant would consult his attorney. The plaintiff's attorney received the same day the following letter from the defendants' attorney : — " Sussex Chambers, Duke Street, St. James's, "July 25th, 1862. " Gentlemen, — Mr. Wilkinson, of Botolph Wharf, has sent us yoaf letter of yesterday's date with instructions to communicate with you re- specting it. The matter appears complicated, and we are not yet fully acquainted with the circumstances. We trust you will allow time for inquiry, as Mr. Wilkinson's only desire is to do What is right. " We are, Gentlemen, &c, "F. Millee & Son." The writ had been issued at twelve o'clock the same day this letter was received. The plaintiff had lost a customer by the detention of the wine. On the 28th of July a scire facias was issued from the Lord Mayor's Court in the action of MacHenry v. Henry, calling on Mr. Wilkinson, the present defendant, to show cause why the plaintiff in the Lord Mayor's Court should not have judgment against him for the appraise- ment of the goods therein described, theretofore attached in his hands as the goods and chattels of J. Henry, trading under the name, style, or firm of J. Henry & Co. The goods described in the body of the scire facias were the cases of wine forming the subject of the present action. The scire facias was served on the 31st, but it did not appear CHAP- Till.] PILLOT V. WILKINSON. 491 that any further proceedings had keen taken in the attachment. No step appeared to have been taken in the other attachment subsequent to the service of the notice of attachment. The goods had since remained in the possession of the defendant, who had never made any offer to give them up. A verdict was entered, under his Lordship's direction, for the plain- tiff, leave being reserved to move to enter the verdict for the defend- ant ; the court to have power to draw inferences of fact. Montague Smith, in last Hilary term, obtained a rule nisi accord- ingly, upon the ground that the goods were subject to an attachment in the Mayor's Court, and were in custodia legis, and that there was no conversion by the defendant under the circumstances proved. Bovill and Prentice showed cause. The goods were never in the custody of the law. The notice of attachment could only affect the interest of the defendant in the Mayor's Court. Smith v. Goss. 1 But his interest had ceased by the transfer to the plaintiff before the notice issuedi The goods remained, notwithstanding the notice, in the possession and under the control of the defendant* Mallalieu v. Laugheri fto custom was proved to attach specific goods. The terms in which the notice is couched show that it has no such object. It purports merely to be a notice of attachment of " all such moneys, goods, and effects, as the garnishee now hath, or which shall hereafter come into his hands or custody,' of the said defendant." The memo* randum indorsed by the attorney's clerk cannot alter the effect of the attachment. But, further, it is clear that an attachment cannot be pleaded in bar to an action for the recovery of the property attached, until judgment has been obtained in the attachment, and execution thereon executed. Brandon on Foreign Attachments, p. 189. The defendant's right course was to appear in the Mayor's Court, and plead nil habet. On behalf of the defendant, the case of Verrall v. Robin- son * will be relied on. That case may, perhaps, be supported on the ground that the facts there proved did not establish a conversion ; but the opinion expressed in the judgment that the property attached was in custodia legis, is, it is submitted, without foundation. The facts of the case are, moreover, distinguishable. Secondly, the facts here establish a conversion. The warrant gave notice to the defendant, that the defendant in the Mayor's Court had parted with his property in the goods, and to that warrant the defend- ant attorned. A wharfinger detains goods, when demanded by the true owner, at his peril. Wilson v. Anderton. 8 The refusal to deliver on the ground of the attachment was clearly a wrongful act. 1 1 Camp. 282. * 2 C, M. & K. 495. a 1 B. & Adol. 460. 492 PILLOT V. WILKINSON. [CHAP. Vin. Montague Smith and Freeman, in support of the rule. First, as to custody of the law. If the ground of the judgment in Verrall v. Robinson * can be supported, that case is decisive. The process in the Mayor's Court is directed against specific goods. The particulars of the goods, though merely indorsed on the notice of attachment, are specified in the body of the scire facias. But the main point is, that upon the facts proved there was no con- version. The defendant had no notice that the plaintiff was the owner of the goods. The circumstances under which the samples were deliv- ered did not constitute an attornment. The refusal to deliver was not absolute, but qualified in such a way as to afford no evidence of con- version. Clark v. Chamberlain. 2 It was a mere request of time for inquiry. A bona fide hesitation on the part of the defendant was reasonable. Gunton v. Nurse ; a Alexander v. Southey. In Vaughan v. Watt, on a similar state of facts, Parke, B., said : " It was a question for the jury, whether the defendant meant to apply the goods to his own use, or assert the title of a third party to them, or whether he only meant to keep them in order to ascertain the title to them, and clear up the doubts he then entertained on the subject, and whether a reasonable time for doing so had not elapsed, without which it would not be a conversion. It ought, therefore, to have been left to the jury, whether the defendant had a bona fide doubt as to the title to the goods, and if so, whether a reasonable time for clearing up that doubt had elapsed." The court will infer that a bona fide doubt here existed in the mind of the defendant. In Verrall v. .Robinson, 1 the refusal to deliver up a chaise to the owner on the ground of an attachment from the Sheriffs' Court was held to be no conversion, although the defendant in the Sheriffs' Court, who had hired the chaise and placed it at livery with the defendant, was present when the plaintiff de- manded it, and admitted the plaintiff's title. In Burroughes v. Bayne, Channell, B., in his judgment, expressly guards himself against the supposition that every detention is a conversion. No claim incon- sistent with the plaintiff's title was set up by the defendant either in himself or in any other person. They also referred to Com. Dig., Attachment, A. Cur. ado. vult. The learned judges having differed in opinion, the following judg- ments were now delivered : — Beamwbll, B., said : I am of opinion that this rule should be made absolute, on the ground that there was no evidence of a conversion. The faets are shortly these: Certain goods, which belonged to the plaintiff, were lying in the warehouse of the defendant. The plaintiff » 2 C, M. & E. 495. 2 2 M. & W. 78. s 2 B. & B. 447. CHAP. VIII.] PILLOT V. WILKINSON. 493 on applying for them there, was referred to the defendant's warehouse- man, who told him that, in consequence of a foreign attachment, there was a difficulty, and that he did not know whether he ought to deliver up the goods. He proposed, however, that they should go to Lloyd's in search of Mr. Wilkinson, the defendant. They accordingly went to Lloyd's, but when they got there Mr. Wilkinson had gone home, and in consequence nothing was done. The plaintiff's attorney wrote the same day to the defendant, demanding possession of the goods by eleven o'clock the next day. The defendant's attorney replied the next day, stating that there was a question about a foreign attachment, and asking for time to make inquiries, and ascertain the actual facts. But before this letter was received, the writ in this action was issued. The facts as to the foreign attachment are as follows : An officer from the Lord Mayor's Court came to the defendant's warehouse, and there produced a notice of attachment directed to the defendant, com- manding him to detain the goods, not of the plaintiff, but of some third person, whom it specified. The person who served the process informed the defendant that it related to certain goods which he de- scribed, and which are the goods forming the subject of the present action. Now, I am clearly of opinion that there was nothing in the mode in Which this process was served, to constitute a defence to the present action. It has never yet been claimed as part of the custom of foreign attachment, that process directed to A., informing him that B.'s goods are attached, will justify A. in detaining goods belonging to C, merely because the server of the process tells him that those particular goods form the subject of the attachment. The only color for such a con- tention is to be found in the language of Lord Abinger, and Mr. Bardn Alderson, in the case of Verrall v. Robinson, 1 who are there reported to have said that the goods were in " the custody of the law," and that, consequently, the defendant was justified in not delivering them up. The expression so used was, I think, inaccurate, but the decision was perfectly correct. The defendant was justified in taking time for consideration, and to obtain advice. But neither in that case, nor the present, was there any actual custody of the law. The officer did not here remain in possession; he merely served an attachment against the goods of one person, and stated that it attached goods which belonged to another. I am, however, of opinion that the rule should be absolute, on the ground that there was no evidence of a "conversion." This word, when used in its natural sense, is open to no objection. Thus, for instance, where the defendant either drinks the plaintiff's wine, or i 2 C, M. & R. 495. 494 PILLOT V. WILKINSON. [CHAP, vin burns his wood, or fires off his gun, or even detains a picture belong- ing to the plaintiff, and hangs it up in his drawing-room to enjoy the pleasure of looking at it ; there is, in such cases, a conversion to the defendant's use, But, unfortunately, the meaning of this word has beep: extended, from its natural signification, to acts which are in no sense an actual conversion. Now, where this is the case, it invariably causes great difficulty in administering the law, and is very likely to lead — as in this form of action it has led —r to serious injustice. Still if on the authority of decided cases the facts of this case established a conversion, I should feel bound to defer to their authority. They are, however, diametrically opposed to any such view. The defend- ant never refused to give up these goods. He did not assert any title or right to detain them in himself, or in any other person ; nor did he deny they were the plaintiff's. All that took place was, that the defendant's clerk said he was in some difficulty about the matter, and proposed they should go and consult the defendant. They were unr able to find the defendant at the time, and the next day the defend- ant's attorney wrote to the plaintiff's attorney, asking him not to be precipitate, but to allow time to make some inquiry into the circum- stances. If the plaintiff had refused to give any time, and had insisted on a distinct answer, the defendant might very probably have surrendered the goods. There was, in fact, no conversion in any sensp of the word, neither from the plaintiff nor to the defendant. But* notwithstanding this, the defendant will, in this form of action, be liable for the full value of the goods. In my judgment there is no evidence of a conversion, and this rule should be made absolute, Martin, B., said : In this case I think there was evidence to go to the jury of a " conversion." I retain the opinion which I expressed in Burroughes v. Bayne, where, a similar question having arisen, I stated what in my opinion was the meaning which the law has assigned to this word. My brother Channell also there expressed a similar opinion. In my judgment, where one person detains from another goods, which he either actually knows or has the means of knowing, and which, by instituting proper inquiries, he might have ascertained to be that person's property, that detention the law deems a " conver- sion." The term may not be a strictly appropriate one, but it was used in this sense in the time of Lord Holt, who says, "The very denial of goods to him that hath a right to demand them, is an actual conversion, and not only evidence of it ; for what is a conversion bat the assuming upon one's self the property and right of disposing of another's goods ? And whoever detains another man's goods from him without cause takes upon himself the right of disposing of them. The term " conversion " has, in truth, a technical and conventional CHAP. Till.] PILLOT V. WILKINSON. 495 meaning, which was originally given to it in order to make the action of trover applicable to what was more properly the subject of an action of detinue, and by this means prevent the defendant from avail- ing himself of the right of waging his law, to which he was entitled in the latter form of action. By long practice it has been established that where one person withholds from another his goods without law- ful reasoii or excuse, the action of trover lies. To that practice I think it better to adhere, than enter into an inquiry as to what the strictly accurate meaning of the word " conversion " is. Pollock, C. B. I entirely agree with the opinion expressed by my brother Martin. The facts are shortly these : The plaintiff was the buyer of some champagne, which was in the custody of the defendant, who was a wharfinger. Having bought the champagne and obtained a warrant for it, the plaintiff sent his clerk with the war- rant to the defendant's wharf to obtain a sample of the wine. The defendant attorned to the warrant and gave a sample; and subse- quently he gave another. He had thus ample means of knowing that the plaintiff had bought the champagne, had taken samples of it, and was entitled to have the bulk when he demanded it. When, how- ever, the plaintiff demanded the bulk, he was informed by the defend- ant that a foreign attachment had issued from the Court of the Lord Mayor against this champagne, and, when he urged that the defend- ant knew it to be his property, the defendant told him, in effect, that he would not give it up, and that he required time for consideration on .account of this process. Now, the law has been long established, that when a man knows or has the means of knowing that goods are the property of another, and declines to give them up, he is liable in an action of trover for the conversion. Then the plaintiff also complains that the defendant wrongfully deprived him of the use of these goods. Now, that the defendant deprived him of the use of the goods is undoubted. Did he do so wrongfully ? Certainly ; for when the plaintiff went with the warrant and demanded his goods, the defendant would not give them up. The plaintiff is therefore, in my opinion, entitled to recover. 1 regret that my brother Bramwell is of a different opinion, but, as the majority of the court are in favor of the plaintiff, the rule must be discharged. Bramwell, B., added : If the view which I take of the facts had coincided with that of the Lord Chief Baron, I might perhaps have been of the same opinion. This was an appeal against the decision of the Court of Exchequer in discharging a rule to enter the verdict for the defendant, pursuant 496 PILLOT V. WILKINSON. [CHAP. Till. to leave reserved at the trial. The pleadings and facts fully appear in the report of the .case in the court below. 2 H. & C. 72. Montague Smith {IT. Matthews with him) argued for the defendant. 1 The argument was, in substance, the same as in the court below. The following additional authorities were cited: Catterall v. Kenyon ,a Brandon on Foreign Attachment, p. 10. Prentice appeared for the plaintiff, but was not called upon to argue. Williams, J. We are all of opinion that the judgment of tho Court of Exchequer should be affirmed. The points for our consid- eration arise in this way : At the trial the defendant's counsel ob- jected that the wine was in custodia legis by the attachment, and that under the circumstaribes there was no proof of conversion. The jury, under the direction of the learned judge, found a verdict for the plain- tiff; no question being left to them. The points are, first, whether the fact of an attachment having issued is of itself sufficient to prevent there being a conversion ; secondly, if it is not of itself sufficient, whether that, with other circumstances, affords evidence of a conver- sion, — not a mere scintilla, but evidence on which the jury might find one way or the other. We think there was some evidence for the jury. Upon the first point we were pressed with the case of Verrall «. Robinson. 8 There, goods having been attached by process out of the Sheriffs' Court, London, the Court of Exchequer considered that they were in custodia legis, and that prevented the defendant from giving them up. That case was adverted to in Catterall v. Kenyon, 4 where expressions are used which create some doubt whether the opinion of the court in Verrall v. Robinson was correct. According to the report of Catterall v. Kenyon, 6 Lord Denman said with reference to Verrall v. Robinson : "The judges there considered the chattel, the subject of the action, to have been in the custody of the law by force of a spe- cific attachment of it, and that the defendant had no power to give it up." There is therefore a distinction between Verrall v. Robinson and the present case. There, if the officer had actually got the goods in his possession, that prevented the defendant from being guilty of a conversion, because he could not give them up without the risk of coming into collision with the officer, and causing a breach of the peace. Here there was no seizure of the particular goods by the officer, and there was nothing to prevent the defendant from giving them up. All 1 Before 'Williams, J., Crompton, J., Willes, J., Byles, J., Blackburn, J, and Bhee, J. 2 3 Q. B. 310. a 2 C, M. & R. 495. * 8 Q. B. 310; s. c. 2 Gale & Dav. 545. « In 2 Gale & Dav. p. 545. CHAP Till.] PILLOT V. WILKINSON. 497 that appeal's is that notice was given of a general attachment of all goods belonging to Henry & Co. in the hands of the defendant. It seems to us, therefore, that Verrall v. Robinson does not govern this case ; and, according to the case of Catterall v. Kenyon, the fact of the goods being attached is a circumstance to be considered by the jury in forming their conclusion as to whether there has been a con- version. Then, looking at all the circumstances, was there any evidence for the jury of a conversion? We think the law is correctly laid clown in Vaughan v. Watt, by Parke, B., who said : " It ought therefore to have been left to the jury, whether the defendant had a bona fide doubt as to the title to the goods, and if so, whether a reasonable time for clearing up that doubt had elapsed." Here, assuming the defend- ant entertained a bona fide doubt as to whether the goods belonged to the plaintiff, the question remains whether a reasonable time for clear- ing up that doubt had elapsed. The same view of the law was taken by the Court of Common Pleas in Towne v. Lewis. The marginal note to that case is calculated to mislead. The statement, " this is not evidence of a conversion," does not accord with the report, because Wilde, C. J., left it to the jury to say whether, when the demand was made, the defendant meant to dispute the plaintiff's right to the bill, or whether he really meant to send it to him when he could obtain it. When the case was before the court in banc, Wilde, C. J., said : " No doubt the conduct of the defendant was evidence whence the jury might infer whether or not he had been guilty of a conversion." It seems to me that the evidence was properly submitted to the jury, and that they found a correct verdict. As observed by Coltman, J., "there was nothing more than evidence from which the jury might, if they pleased, have found a conversion, if they had been satisfied that there had been wilful and unreasonable delay on the defendant's part in complying with the plaintiff's demand." The law being established by the authorities which we have cited, it remains to apply it to the present case. The defendant is not in the position of an ordinary person ; he is a wharfinger, and bound to act with promptitude in his business, otherwise he may do great injury to the property of those who deposit goods at his wharf ; and that is a circumstance which the jury would be entitled to take into consideration. Certainly a very short time elapsed between the at- tachment and the commencement of the action ; but a considerable time had passed since the defendant became aware that Henry & Co. had parted with all their interest in the goods; and any reasonable man would have at once inquired whether the plaintiff's claim was valid or not. It was a question for the jury not only whether the 32 498 HEUGH V. LONDON AND N. W. RAILWAY CO. [CHAP. 7m defendant entertained a bona fide doubt as to the plaintiff's title to the goods, but also whether a reasonable time had elapsed for clearing ud that doubt, and if the jury were satisfied that there was unreasonable delay on the part of the defendant, they would be warranted in finding a conversion. Without giving any opinion whether the verdict is sat. isfactory, it is sufficient to say that there was evidence of a conversion proper to be admitted to the jury. The other judges concurred. Judgment affirmed} HEUGH v. THE LONDON AND NORTH-WESTERN RAIL- WAT COMPANY. In the Exchequer, January 12, 1870. [Reported in Law Reports, 5 Exchequer, 51.] This was an action brought by the consignors of goods by the defendants' line to recover damages from the defendants for deliverino the goods to a person who obtained the delivery by fraud, after the goods had been forwarded to the consignees' address and there re- fused. 2 The cause was tried before Kelly, C. B., at the sittings for London after Trinity term, 1869. It appeared that the South wark India Rubber Company had formerly had dealings with the London house of the plaintiffs, but had ceased to carry on business in August, 1866, and their premises were left in charge of a Mr. and Mrs. Tyler. On the 30th of July, 1867, an order for goods was received by the plaintiffs, purporting to come from the Southwark India Rubber Com- pany, but which had in fact been sent by G. F. Nurse, a person formerly in their employment as traveller. In pursuance of this supposed order, the plaintiffs, on the 10th of August, despatched one bale of cotton duck by the defendants' line, consigned to the company at their old place of business. The bale arrived on the 12th of August, and was forwarded to the company's premises ; but Mrs. Tyler refused to take it in. On the 13th Nurse wrote to the defendants a letter signed by him for the company, stating that instructions would be given for delivery of the goods. Ou the 14th the defendants, in accordance With, their usual practice, addressed to the company an advice note in the following form : — i See Leighton v. Shapley, 8 N. H. 359; Corey v. Bright, 68 Penn. 70. — Ed. 2 The declaration contained seven counts ; seventh count, trover for the bale!. Plea : Not guilty. — Ed. CHAP. VIII.] HEUGU V. LONDON AND H. W. RAILWAY CO. 499 " Camden Station, Aug. 14, 1867. " Advice of goods. Messrs. The India Rubber Company. "The undermentioned goods, consigned to you, having arrived at this station, I will thank you to instruct our agents, Messrs. Pickford & Co., as to their removal hence as soon as possible, as they remain here to your order, and are now held by the company, not as common carriers, but as warehousemen, and at owner's sole risk of loss or dam- age by deterioration or fire, and subject to the usual warehouse charges in addition to the charges now advised. When you send for the goods please send this note." At the foot of the note the particulars of the goods and the charges were stated. On the 16th Nurse brought to the defendants' station the advice note, and a letter signed by him for the company, requesting the defend- ants to deliver the goods to the bearer. On the production of these documents the defendants delivered the goods to Nurse. A second bale similarly consigned by the plaintiffs arrived on the 16th of August, and was similarly forwarded and refused ; and on the 21st Nurse brought to the defendants' station a delivery order similar to the former one, and obtained this bale also. No advice note had been sent on this occasion by the defendants. All the communications from Nurse, both to the plaintiffs and to the defendants, were written on the company's paper, headed with their printed name and address. The Lord Chief Baron, with the assent of the counsel for the plain- tiffs, left to the jury in substance the question whether the defendants acted reasonably, properly, and without negligence in the course they took with respect to the goods, and in ultimately delivering them to Nurse. The jury answered this question in favor of the defendants, and a verdict was entered for them, with leave to the plaintiffs to move to enter a verdict for £122, if, on the facts proved, they were entitled to have the verdict entered for them. Prentice, Q. C, having, on the 5th of November, obtained a rule accordingly, and for a new trial, on the ground of misdirection and that the verdict was against evidence, Jan. 12. Giffard, Q. C, and IPIntyre showed cause. The duty of the defendants as carriers was ended by their tender of the goods at the consignees' address, and their duty afterwards could not be more than that of warehousemen or depositaries. Great Western Ry. Co. v. Crouch. 1 But the obligation of a depositary of goods is not like that of the carrier to insure the right delivery of the goods, but only to use reasonable care and diligence, and it is only for neglect of that care 1 8 H. & N. 188. 500 HEUGH V. LONDON AND N. W. RAILWAY CO. [CHAP. Vm. that he can be made answerable. Green v. Hollingsworth. 1 For theft in particular he is never answerable unless his own gross neglect has caused it : Story on Bailments, § 444 ; 2 and here it was by a theft that Nurse obtained delivery of the goods. Under such circumstances, therefore, it must be a question for the jury whether the defendant has been guilty of gross neglect : Doorman v. Jenkins ; " and this issue the jury have found in favor of the company. In two cases, under cir- cumstances in some degree resembling the present, Stephenson w.Hart 4 and Duff v. Budd, 5 the jury found a verdict adverse to the defendants, and the court refused to interfere with it ; but those cases are no war- rant for the position that, as a matter of law, a violation of duty was to be inferred ; rather from the fact that the question was there left to the jury, the contrary may be inferred. Here, also, the question was rightly left to the jury, nor was any other question submitted at the trial on behalf of the plaintiffs. [They also contended that the verdict was not against the evidence.] Prentice, Q. C, and Murray, in support of the rule. After the tender of the goods the defendants were in the position of warehousemen, and though not, like carriers, answerable for theft, they were answerahle for a misdelivery : Story on Bailments, §§ 450, 536-539, 543, 545 i; and misdelivery, not theft, is the character of the transaction in ques- tion, for they were voluntary and acting parties in the delivery to Nurse ; but the theft spoken of is an act done without their knowledge or privity. The distinction between an act and a mere omission is drawn in Willard v. Bridge, 6 and in Lichtenhein v. Boston & Provi- dence Ry. Co.' [Chaistnell, B. It is admitted that the defendants were not car- riers ; but is it true that they were warehousemen ? Did they not occupy an intermediate position, that of unwilling bailees? Mae- tdt, B. The law on this point appears to be correctly stated in Redfield on Carriers, § 25, which entirely agrees with what was laid down in this court and affirmed in the Exchequer Chamber in Great Western Ry. Co. v. Crouch. 8 ] • In Stephenson v. Hart 4 and Duff v. Budd, 5 the defendants were in the same position as in the present case ; and these cases, and the expressions used in them, are strongly in favor of the present plaintiffs. But here the plaintiffs' case stands on higher ground, for the defendants had by their notice claimed warehouse rent, and were therefore not gratuitous bailees, but were within the cases of Cairns v. Robins 9 and White v. Humphery. 10 [Kelly, C. B. In those cases a contract existed between the parties; » 6 Dana, 173. 2 See also Giblin v. McMullen, Law Rep. 2 P. C. 317. 3 2 A. & E. 256. * 4 Bing. 476. 6 3 B. & B. 177. 6 4 Barb. 367. 1 11 Cush. 70 8 3 h. & N. 183. » 8 M. & W. 258. w 11 Q. B. 43. CHAP. VIII.] HEUGH V. LONDON AND N. W. RAILWAY CO. 501 but Low could the defendants here become entitled to a rent merely because they claimed it by a note sent after the goods were in their possession, and which was not even addressed to the plaintiffs, and was never communicated to them ?] [They also contended that the verdict was against the evidence.] Kelly, C. B. This rule must be discharged. The question is, whether, under the circumstances, the delivery to Nurse by the defen- dants amounted in law to a conversion, or whether the defendants were only bound to act, and did act, with reasonable care. On the arrival in London of the goods consigned by the plaintiffs to the South- wark India Rubber Company, the defendants, in strict accordance with then - duty, sent the goods to the place to which they were addressed. The person in charge of the premises refused to take them in, and at that moment the question arose, what duty was imposed upon the de- fendants in relation to the goods? They could not deposit them on the pavement, and they were not permitted to bring them into the house ; they were, therefore, under the necessity of taking them back to the station. Now it is their practice when goods are refused at the address to which they are consigned, to deposit the goods in safety, and to send an advice note to the consignees, informing them that the goods remain at their risk and charges, and requesting them to give instructions for their delivery, and on sending for them to produce the advice note. This course was adopted by the defendants on the pres- ent occasion ; the advice note was sent, and a few days after it was brought to the defendants' premises by Nurse, a person formerly em- ployed by the India Rubber Company, and the goods were, on his demand in the name of the company, delivered to him. A second bale of goods was delivered to him under similar circumstances. The plaintiffs contend that this was a misdelivery on the part of the defendants amounting to a conversion ; but no sufficient authority has been cited in support of this position. It is true that a misdelivery by a carrier has been held to amount to a conversion ; but the defend- ants' character of carriers had ceased, and whatever character they filled it was not that. Their position has been not inaptly described as that of involuntary bailees ; without their own default they found these goods in their hands under circumstances in which the character of earners under which they received them had ceased. Did they, then, as such involuntary bailees, become subject to an absolute duty to de- liver to the proper person, so as to be liable for a misdelivery, though without negligence ? The only authorities in the courts of this country cited in support of that proposition are Stephenson v. Hart 1 and Duffs. Budd ; 2 but in neither case was it held, or even contended, that the 1 i Bing. 476. 2 3 b. & B. 177. 502 HEUGH V. LONDON AND N. W. RALWAY CO. [CHAP. Till. misdelivery amounted as a matter of law to a conversion; but in both cases it was admitted to be a question for the jury — and the question was, in fact, left to them — whether, under all the circumstances, the defendants had acted with reasonable care. It is plain, then, on the authority of those cases, that misdelivery under such circumstances is not, as a matter of law, a conversion, but that it is a question of fact for the jury whether the defendants have exercised reasonable and proper care and caution. The jury have answered this question in favor of the defendants, and they are therefore entitled to keep their verdict. I may add that it was from the plaintiffs' act in giving credit to Nurse that the whole difficulty arose, and that this was a matter which the jury were entitled to take into account in considering ■whether the defendants had discharged the duty cast upon them with respect to the delivery of the goods. Martin, B. I am of the same opinion. Two objections are made by the plaintiffs. First, that there was a misdirection by the Lord Chief Baron; second, that the verdict was against evidence. With respect to the first (assuming that it is open to counsel to contend that there is misdirection when the judge puts to the jury the very question which he is asked to leave to them), I am of opinion that there was no misdirection. A fraudulent order for goods was sent to a firm at Man- chester, purporting to come from a company which had, in fact, given no authority for the order, and the goods were forwarded by the defend- ants' line to be delivered accordingly. Under ordinary circumstances there would be no contract by the defendants with the consignors, but only with the consignees, for whom the consignors would be presumed to have acted as agents. But here, there being no such sale, the pro- perty remained in the plaintiffs, and the defendants' duty was to obey their orders. This the defendants did, or rather were ready and willing and offered to do, and they thus performed the duty that was laid upon them. But there was no one who could or would receive the goods, and the defendants were thus in the position — I know of no better term — of involuntary bailees. By reason of a mistake not made by them they found the goods on their hands. Now, as is laid down in the passage I have quoted (Redfield on Carriers, § 25), when the carrier accepts the goods he becomes an insurer; but when he has done all that he contracted to do, then his relation of carrier ceases, and a duty is, under such circumstances as the present, cast upon him of acting as a reasonable man. What, then, did the defendants do ? They carry the goods back to their station and send an advice note to the con- signees. Soon after Nurse comes, bringing the advice note, and claims the goods and obtains delivery. Upon my Lord's direction, which, even if it were without the sanction of plaintiffs' counsel I should hold CHAP. Till.] FOWLER V. HOLLINS. 503 to be right, the jury have found that the course adopted by the defend- ants was reasonable and proper, and that verdict is approved of by my lord who tried the cause, and is also in my own judgment right. It is impossible to suggest any substantial ground for imputing want of care to the defendants, who were misled by the same person who had misled the plaintiffs. Channell, B. I am of the same opinion. As to the correctness in fact of the verdict, I think it right; and it has the sanction of the Lord Chief Baron, who tried the cause. The only question is, whether the delivery to Nurse, under the circumstances, amounted in law to a conversion, for the plaintiffs' argument must go that length. Some American cases were cited in support of this proposition, but they fail to satisfy me that any such duty was cast upon the defendants as to produce this legal result, or that any duty was imposed upon them to do more than they have done. They acted as reasonable men, and were misled without any default of their own. 1 FOWLER and Othees v. HOLLINS and Othees. In the Exchequeb Chambeb, June 14, 1872. [Reported in Law Reports, 7 Queen's Bench, 616.] Appeal from the decision of the Court of Queen's Bench, making a rule absolute to enter a verdict for the plaintiffs. The action was in trover to recover thirteen bales of cotton. Pleas : Not guilty, and not possessed. The cause was tried before Willes, J., at the Liverpool spring assizes, 1870. 1. The plaintiffs are merchants carrying on business at Liverpool, and the defendants are cotton brokers at that place. 2. Early in December, 1869, the plaintiffs instructed their brokers, Messrs. Rew & Freeman, to sell for them thirteen bales of cotton ; and shortly before the 18th of December a person named Hill, a clerk in the service of H. K. Bayley, came to the brokers of the plaintiffs and offered to purchase the cotton. The plaintiffs' brokers, however, re- fused to sell, unless the name of a responsible person were given as purchaser. Hill thereupon stated that H. K. Bayley was buying as broker for Thomas Seddon, of Bolton. 3. The plaintiffs' brokers, having made inquiries as to Thomas Sed- 1 don, agreed to sell the thirteen bales of cotton to him. 1 See M'Kean v. M'lvor, L. R. 6 Ex. 36 ; Aurentz v. Portei, 66 Penn. 115 ; A. &' T. R. R. v. Kidd, 35 Ala. 209. — Ed 504: FOWLER V. HOLLINS. [CHAP. Ylll. 4. Accordingly, on the 18th of December, 1869, the plaintiffs' brokers forwarded to the plaintiffs a sold note " for thirteen bales American cotton, ex ' Minnesota,' at 12c?. per lb. — buyer, Thomas Seddon, per H. K. Bayley — payment in cash within ten days less one and a half per cent discount.'' The plaintiffs' brokers also sent to Bayley a bought note addressed to " Thomas Seddon, per H. K. Bayley, for thirteen bales American cotton, ex ' Minnesota,' at 12c?. per lb., subject to the rules and regulations of the Liverpool Cotton Brokers' Association. Payment in cash within ten days less one and a half per cent dis- count." 5. On the same day Bayley sent to plaintiffs' brokers a sampling and delivery order for the " thirteen bales cotton, ex ' Minnesota,' bought this day for Thos. Seddon, at 12c?." 6. Bayley accordingly obtained, on the same day, delivery of the goods, and they were removed to his warehouse. 7. H. K. Bayley had no authority from Thomas Seddon to buy for him, but the plaintiffs did not discover this until the time and in the manner mentioned in the 18th paragraph of this case. 8. On the 23d of December, H. K. Bayley saw the defendant, Fran- cis Hollins, and showed him some samples of cotton, ex " Minnesota." F. Hollins offered to give ll^d. per pound for the thirteen bales, and the defendant then stated that he would send in the name of his prin> cipal in the course of the day. He also bought in like manner, on the same day, other twenty-five bales of cotton from Bayley. Immediately after the agreement to buy, Bayley handed to the defendants the fol- lowing memorandum: "We sell you 13 B/s. 11^, 25 B/s. 11£. Cash to-day, per H. K. B. & Co." 9. The defendants proceeded to sample the cotton. For this purpose they sent to Bayley the following note : " Liverpool, 23d December, 1869. Please allow the bearer to sample thirteen bales cotton, ex ' Min- nesota,' fa) llj per lb., bought this day.'' This note Bayley indorsed with the requisite authority to his warehousemen, and the defendants' servants at once sampled the cotton. 10. The defendants, on the morning of the 23d of December, had received a message from Micholls, Lucas, & Co., cotton spinners at Stockport, for whom the defendants were in the habit of purchasing cotton, stating that they were coming over to Liverpool on the 23d of December to purchase cotton through the defendants. The defend- ants had had no other communication with Micholls & Co. as to the buying for them on this day of this or any cotton. 11. The cotton which the defendants bought of H. K. Bayley was such cotton as the defendants were in the habit of buying for Micholls, Lucas, & Co., and at the time the defendant, F. Hollins, agreed to pur- CHAP. Yllf.] FOWLER V. HOLLINS. 505 chase the cotton from Bayley, he intended to buy it as a broker, and intended it for Micholls & Co., believing that it was sich cotton as they were coming to buy, and that it would suit them, and that on their arrival at Liverpool they would take it. 12. About half an hour after the defendants had agreed with Bayley, Mr. Micholls came to the defendants' office, and samples of the cotton having been obtained, he examined them to judge of the quality of the cotton ; he inquired as to the quantity and price, and, being satisfied as to these, he agreed to take it. 13. The defendants have a large number of customers, and frequently, without any definite instructions, buy cotton which they, knowing their trade and requirements, believe will suit them, and, feeling satisfied, they will take it ; but if it happens that a customer for whom they intended to buy such cotton will not take it, they trust to be able to place it with some other customer. 14. Later in the same day the defendants sent to Bayley a delivery order for the delivery to bearer of. the " thirteen bales of cotton, ex ' Minnesota,' at 11£ per lb., bought for Micholls, Lucas, & Co." This order was crossed, " To Joseph Thompson, H. K. Bayley, per R. Hill," and indorsed, "Delivered the within thirteen bales, Joseph Thomp- son." This was the first document which mentioned Micholls, Lucas, & Co.'s names to H. K. Bayley. Bayley also sent in on the same day to the defendants an invoice addressed " Francis Hollins & Co. — Bought from H. K. Bayley thirteen bales of cotton, ex ' Caledonia,' at ll£ per lb., amounting to £244 19s. 8c?." 15. This delivery order was taken to the warehouse of H. K. Bay- ley by one of the defendants' clerks, and thirteen bales of cotton were, under the supervision of the defendants' clerk, delivered by Bayley's warehouseman into the cart of a carter employed by the defendants. The cotton was conveyed in the cart to the railway station, whence it was forwarded to Micholls, Lucas, & Co.'s mill, at Stockport. 16. These thirteen bales were the thirteen bales obtained by H. K. Bayley from the plaintiffs as mentioned in par. 6. 17. The invoice price of the cotton, £244 19s. 8d., was paid by the defendants to H. K. Bayley, and the same sum, with £1 4s. lOd. added for the defendants' commission, and 6s. 6c?. for porterage, was paid by Micholls, Lucas, & Co. to the defendants. The defendants' course of business is to charge their customers Qd. per bale for carterage or por- terage. The carter carrying for the defendants on certain agreed terms, — the 6s. Qd. mentioned represents the 6d. per bale on the thirteen bales. 18. The plaintiffs not having been paid for the cotton in clue time, their brokers applied to Thomas Seddon for a settlement, and were in- 506 FOWLER V. HOLLINS. [CHAP. Vm. formed by him, as the fact was, that he had never authorized H. I£ Bayley to purchase cotton for him. 19. They thereupon made inquiries, and learned that the cotton had been sojd and delivered by H. K. Bayley to the defendants. A demand (stating the fraudulent nature of Bayley's transaction) was made on the 10th of January, 1870, by the plaintiffs' attorneys on the defendants for the cotton. 20. This was the first intimation which the defendants received that the cotton was not, as they believed it to be, the property of Bayley. They replied to the demand of the plaintiffs' attorneys as follows: "The cotton was bojught by one of our spinners, Messrs. Micholls, Lucas, & Co., for cash, and has been made into yarn long ago ; and, as every thing is settled up, we regret we cannot render your clients any assistance." Upon these facts, the learned judge left to the jury the questions, whether the thirteen bales were bought by the defendants as agents in the course of their business as brokers, and whether they dealt with the goods only as agents to their principals. The jury found a verdict for the defendants; the learned judge re- served leave to the plaintiffs to move to enter the verdict for them for the value of the thirteen bales. A rule was afterwards obtained pursuant to the leave reserved. 1 The rule was argued on the 21st and 26th of November, 1871, and the court (Mellor, Lush, and Hannen, JJ.) made it absolute, on the ground that the defendants, in effect, bought as principals, and would have been liable to Bayley as vendees, and having dealt with the cot- ton as if the property were in them by assigning it to Micholls, Lucas, & Co., were liable to the plaintiffs for a conversion, on its turning out that no property had passed from the plaintiffs to Bayley. The case of Greenway v. Fisher did not apply, and the case was not distinguish- able in principle from Hardman v. Booth. 2 Feb. 14. Holker, Q. C. (Herschell, Q. C, with him), for the defend- 1 The terms of the leave reserved did not appear in the statement of the case for the Court of Appeal ; but it was reserved in writing and was handed to the court, and was as follows : If the defendants, having acted throughout honestly, in the ordi- nary course of business, having bought and paid for the cotton only as agents for Micholls, Lucas, & Co., and having dealt with the goods only as agents to forward them, were answerable for the value of the thirteen bales of cotton as having con- verted them to their own use. The defendants to be at liberty to argue, if necessary, that the sale by Bayley under the circumstances gave a good title to a bona Jide pur- chaser for value without notice. The rule was moved on three grounds : 1. That the verdict was against the evi- dence ; 2. Misdirection ; 3. On the point reserved. The court refused the rule on the first and second grounds. 2 1 H. & C. 803; 32 L. J. (Ex.) 105. CHAP. VIII.]- FOWLER V. EOLLINS. 507 ants, contended, first, that the defendants, having purchased the goods in the name of undisclosed principals, Messrs. Micholls, who had after- wards ratified the contract, the property in the goods passed to them ; and the action ought to have been against Messrs. Micholls. Foster v. Bates ; 1 Bird v. Brown. 2 Secondly, that the defendants, having acted merely as brokers in negotiating the sale, their acts did not amount to a conversion. On this point, in addition to the cases mentioned in the judgment, they cited Pillot v. Wilkinson ; Heald v. Carey ; Greenway v. Fisher. Kay, Q. C. ( G. Russell, Q. C, with him), for the plaintiffs, contended, first, that the defendants purchased the cotton from Bayley as princi- pals, and not as agents. Secondly, assuming they purchased as agents, that the asportation of the cotton by the defendants, for their own use, or for the use of a third person, amounted to a conversion. Bac. Abr. Trover (B) ; Baldwin v. Cole; M'Combie v. Davies ; Higgons v. Burton ; 8 Hardman v. Booth. 4 Thirdly, that every intermeddling with the property of another, with the intention to exercise dominion over it, was a conversion, and the acts of brokers, agents, or servants were not exemptions from this rule : Story on Agency, §§ 308, 309 ; Perkins v. Smith; Cranch v. White; 6 Tinkler v. Pojole; Hardman v. Booth; 4 but that it is otherwise in the case of carriers and wharfingers. Ross v. Johnson ; Lee v. Bayes. 6 Cm: adv. vult. June 14. The following judgments were delivered : — Brett, J. In this case the plaintiffs, merchants in Liverpool, sued the defendants, cotton brokers in the same place, in an action of trover to recover the value of thirteen bales of cotton. The cotton had, under the circumstances set forth in the case on appeal been, in 1869, fraudulently bought by one Hill, a clerk of Bayley, a cotton broker, from the plaintiffs' brokers, Messrs. Rew & Freeman. The defendants, in 1869, bought, under the circumstances further stated in the case, and without notice of any fraud, the same cotton from Bayley, and ob- tained his signature to a delivery order for it, and took delivery of it from Bayley's warehouse into the cart of a carter employed by them, and conveyed it in the cart to the railway station, whence it was for- warded to Messrs. Micholls, Lucas, & Co.'s mill at Stockport, where it was spun into yarn by them. In 1870, after the cotton had been so used by Messrs. Micholls, Lucas, & Co., the plaintiffs demanded the cotton from the defendants. The learned judge, Mr. Justice Willes, before whom the case was tried, left to the jury the questions, whether the thirteen bales were bought by the defendants as agents in the » 12 M. & W. 226. 2 4 Ex. 78G. 3 26 L. J. (Ex.) 342. 4 1 H. & C. 803 ; 32 L. J. (Ex.) 105. * 1 Bing. N. C. 414. « 18 C. B. 599; 25 L. J. (C. P.) 249. 508 FOWLEB V. HOLLINS. [CHAP. VIII. course of their business as brokers, and whether they dealt with the goods only as agents to their principals. The jury found a verdict for the defendants. The learned judge reserved leave to the plaintiffs to enter a verdict for £244 19s. 8d., the value of the cotton, if the de- fendants having acted throughout honestly, in the ordinary course of business, having bought and paid for the cotton only as agents for Micholls, Lucas, & Co., and having dealt with the goods only as agents to forward them, were answerable for the value of the thirteen hales of cotton, as having converted them to their own use. The defendants to be at liberty to argue, if necessary, that the sale by Bayley, under the circumstances, gave a good title to a bona fide purchaser for value without notice. An application was made to the Court of Queen's Bench to set aside the verdict as being against evidence, and to enter the verdict for the plaintiffs in pursuance of the leave reserved. The rule to set aside the verdict was refused ; but a rule to enter the ver- dict for the plaintiffs was granted, and afterwards made absolute. According to the interpretation put upon the findings of the jury hy the leave reserved, assented to by both parties, it must be taken, I think, that the defendants, in making the contract and paying the con- tract price, acted only as brokers and agents for Micholls, Lucas, & Co., and that, in obtaining the signature to the delivery order and in for- warding the goods to the railway station, they acted only as forward- ing agents to forward goods to their principals. Upon the leave reserved, it appears to me that neither was the court below nor is this court at liberty to enter upon any other interpretation of the facts proved at the trial. If any other complexion is to be given to facts proved at a trial at iVm Prius than that put upon them by the judge in the leave which he reserves, parties will not consent to that valuable mode of raising and determining questions of law. The question then is whether, if this interpretation be accepted, the defendants have been, in point of law, guilty of a conversion of the plaintiffs' goods so as to be liable in an action of trover. It seems necessary, in the first place, to consider and analyze the real import of the findings of the jury. They have first found, then, that the defendants acted only as brokers. It seems desirable, in order to appreciate that finding, to consider the mercantile characteristics and thereupon the legal duties and liabilities of such an agent. The true definition of a broker seems to be, that he is an agent employed to make bargains and contracts between other persons in matters of trade, commerce, or navigation. Properly speak- ing, a broker is a mere negotiator between the other parties. If the contract which the broker makes between the parties be a contract of purchase and sale, the property in the goods, even if they belong to the supposed seller, may or may not pass by the contract. The prop- CHAP. Till.] FOWLER V. HOLLINS. 509 erty may pass by the contract at once, or may not pass until a subse- quent appropriation of goods has been made by the seller and has been assented to by the buyer. Whatever may be the effect of the contract as between the principals, in either case no effect goes out of the broker. If lie sign the contract, his signature has no effect as his ; but only be- cause it is in contemplation of law the signature of one or both of the principals : no effect passes out of the broker to change the property in tlie goods. The property changes either by a contract which is not his, or by an appropriation and assent, neither of which is his. In modern times, in England, the broker has undertaken a further duty with regard to the contract of purchase and sale of goods. If 1fhe goods be in existence, the broker frequently passes a delivery order to the vendor to be signed, and on its being signed, he passes it to the vendee. In so doing, he still does no more than act as a mere inter- vener between the principals. He himself, considered as only a broker, has no possession of the goods, no power, actual or legal, of determining the destination of the goods, no power or authority to determine whether the goods belong to buyer or seller or either ; no powers, legal or actual, to determine whether the goods shall be delivered to the one or be kept by the other. He is throughout merely the negotiator be- tween the parties. And, therefore, by the civil law, brokers " were not treated as ordinarily incurring any personal liability by their interven- tion, unless there was some fraud on their part." Story on Agency, § 30. And if all a broker has done be what I have hitherto described, I apprehend it to be clear that he would have incurred no personal liability to any one according to English law. He could not be sued by either party to the contract, for any breach of it. He could not sue any one in any action in which it was necessary to assert that he was the owner of the goods. He is dealing only with the making of a contract, which may or may not be fulfilled, and making himself the interme- diary passer-on or carrier of a document, which may or may not be obeyed, without any liability thereby attaching to him towards either party to the contract. He is, so long as he acts only as a broker in the way described, claiming no property in or use of the goods, or even possession of them, either on his own behalf or on behalf of any one else. Obedience or disobedience to the contract, and its effect upon the goods, are matters entirely dependent upon the will and conduct of one or both of the principals, and in no way within his cognizance. Under such circumstances, and so far, it seems to me clear that a broker cannot be sued with effect by any one. If goods have been delivered under a contract so made and a delivery order so passed, still he has had no power, actual or legal, of control either as to the delivery or non-delivery, and probably no knowledge of the delivery, and he haa 510 FOWLER v. HOLLINS. [CHAP. Till. not had possession of the goods. It seems to me impossible to say that for such a delivery he could be held liable by a real owner of the goods as for a wrongful conversion to his, the broker's, own use. But then in some cases a broker, although acting as an agent for a princi- pal, makes the contract of purchase and sale in his own name. In such case he may be sued by the party with whom he has made such con- tract for a non-fulfilment of it. But so also may his undisclosed prin- cipal. And although the agent may be liable upon the contract, yet I apprehend nothing passes to him by the contract. The goods do not become his. He could not hold them, even if they were delivered to him, as against his principal. He could not, as it seems to me, in the absence of any thing to give him a special property in them, maintain any action in which it was necessary to assert that he was the owner of the goods. The goods would be the property of his principal. And although two persons, it is said, may be liable on the same contract, each as sole contractor, yet it is impossible that two persons can each be the sole owner of the same goods ; although the agent may be held liable as a contractor on the contract, he is still only an agent, and has acted only as an agent. , He could not be sued, as it seems to me, merely because he had made the contract of purchase and sale in his own name with the vendor, — even though the contract should be in a form which passes property in goods by the contract itself, — by a third person, as if he, the broker, were the owner of the goods. As, for instance, if the goods were a nuisance, or were an obstruction, or, as it were, trespassing, he would successfully answer such an action by alleging that he was not the owner of the goods, and by proving that they were the goods of his principal, until then undisclosed. If he could not be sued for any other tort, merely on the ground that he had made the contract in his own name with the vendor, it seems to me that he cannot be successfully sued merely on that ground by the real owner of the goods, as for a wrongful conversion of the goods to his own use. It may be well here to notice that in the present case the broker, although he did not give the name of his principal at the time of the bargain, expressly reserved the right of naming his principal in the course of the day, and that he did so. It may be well said, there- fore, that in this case he did disclose his principal. But however that may be, if all that the defendants had done in this case was to make the contract and pass the delivery order, I should have thought it clear that they would not have been guilty of a conversion of the goods in question. But the defendants in this case did more ; they, through an agent of theirs, took actual possession of the goods and carried them from the warehouse to the railway station in order to forward them to Messrs. Micholls, Lucas, & Co. A question arises as to what CHAP. VIII.] FOWLER V. HOLLIN9. 511 was the nature of that asportation. Such an act might have been done with an actual intention of depriving one person of his property in the goods and of vesting the property in them in the other ; as, for instance, if the defendants had had notice of the plaintiffs' claim, and had passed, the goods on to the principals in the contract after such notice. In such case they would clearly be guilty of a conversion. But the jury have found that they dealt with the goods only as agents for their prin- cipals. And the judge who tried the cause has, by the form of the leave reserved, fixed the meaning of that to be that the defendants acted only as agents to forward. That must mean, as it seems to me, that they forwarded the goods without any actual intention with regard to, or any consideration of, the property in the goods being in one person more than another.' The real question in this case is, whether such a possession of the goods, and such an asportation, put any liability on the defendants different from their liabilities, if any, by reason of having, as brokers, made the contract and passed the delivery order. That question depends upon what is the legal definition of the term " con- version " in an action of trover. The leading authority is the note in Williams' Saunders, to the case of Wilbraham v. Snow. 1 As in all other questions arising upon the application of legal principles to facts, there are some cases about which there is no doubt. Where one, with intent to make them his own, actually takes as his own, or actually destroys or actually uses as a man uses his own, the goods of another, it is not difficult to determine that he has done an act intentionally in- consistent with the dominion of any one but himself as real owner of the goods, and has been guilty of a wrongful conversion of the goods. It is easy to understand how it was held that in such cases the inno- cence of the defendant, in the sense of his not knowing who the real owner was, or that the person from whom he immediately took the goods was not the real owner, was immaterial ; the defendant has taken the goods with intent that they should be his own, or has used them as if they were his own. Such acts must necessarily be contrary to the rights of a real owner who has not authorized him so to take or so to use. So if one be in possession of goods under the belief that he has a right to maintain possession, and they be demanded of him and he absolutely refused to deliver them, he has intentionally exercised over them a dominion intentionally inconsistent with the alleged right of him in whose name they were demanded, and in such case it is not difficult to say that the defendant, if the demand was made on behalf of the real owner, has been guilty of a wrongful conversion. But it is where one has dealt with goods as if they were his own without having 1 2 Wma. Saund. 47 d. 512 FOWLER V. HOLLINS. [CHAP. VIII. had possession of them, or where one has taken goods into his posses- sion, but not with intent that they should be his own, or without refer- ence to their being the property of one person or of another, or having goods in his possession has not used them as his own, and where no demand has been made on him for a delivery of the goods to or on be- half of the real owner whilst they were in his, the defendant's, posses- sion, that the real difficulties arise. As to the first, I think it may be rightly said that in no case can a man be guilty of a conversion who has not by himself or his agent had possession of the goods in dispute. A man might, I apprehend, be guilty of a conversion, though he had had possession only by his agent ; as if he had authorized' an agent to take goods for him, or to use or destroy them, and the agent had obeyed his commands ; 1 but if the order had been given and had not been obeyed, I apprehend that the mere order would not be a conver- sion. So if one -enters into a contract to sell, as if they were his own, the goods of another, whether the form of the contract be such as would assume to pass the property at once, or such as could only pass the property on a subsequent delivery, I apprehend that the mere fact of making such a contract is not a conversion. These propositions seem to me to be assumed or decided in the first point decided in Lancashire "Wagon Co. v. Fitzhugh. 2 The real difficulty is where the defendant has had the goods in his actual pos- session. It is clear that he is not in such case always liable for con- version, and equally clear that in some such cases he is liable. He is clearly not liable, though he has had actual possession of goods, if he has held them or has assumed to hold them for the real owner. He is clearly liable, as has been said, if he has taken the goods as his own, or has used them as if they were his own, or has, upon demand by or on behalf of the real owner, refused to give them up. The more ma- terial cases in the present case are those in which the defendant has been held not guilty of a conversion, although he has had actual posses- sion of the goods, not as agent for the real owner, but as agent for others. These cases require careful attention. In Bruen v. Roe 8 the proposition is thus stated : " If in trover and conversion an actual taking of goods is given in evidence, that is sufficiently good without proving a demand and denial, as the taking of my cap from my head; for that is actual conversion ; but when the thing comes by trover there ought to be an actual demand and refusal." The actual taking there described is a taking intentionally without or against the consent of the person in possession. The trover implies an actual possession, but is held to be insufficient to constitute a conversion, because con- l See Hilbery v. Hatton, 2 H. & C. 822, ace. — Ed. HE&N. 502. « Sid. 264. CHAP. VIII.] FOWLER V. HOLLINS. 513 sistently with it the defendant may not be claiming any thing more than the mere custody of the goods. In Ross v. Johnson, the defend- ant, a 'wharfinger, had had actual possession of the plaintiff's goods without the authority of the plaintiff. But Lord Mansfield held that the mere fact of such a possession was not evidence of a conversion. "It is impossible," he said, "to make a distinction between a wharf- inger and a common carrier. They both receive the goods upon a contract. Every case against a carrier is like the same case against a wharfinger. But in order to maintain trover there must be an injuri- ous conversion." The phrase hardly seems to help ; but the decision upon the facts seems to me to be, that a mere custody of goods without any intention as to the property in them is not a conversion. In Greenway v. Fisher, one- of the defendants was a packer, who in the regular discharge of his duty had, according to directions from per- sons wrongfully in possession of the plaintiff's goods, packed and shipped the goods. Lord Tentei-den held that there was no conver- sion by such defendant, although he had had actual possession of the goods and had packed and shipped them. These were acts surely in- consistent in fact with the plaintiff's right of dominion. " On the part of Woodward" (one of the defendants), says Lord Tenterden, "reli- ance is placed, and I think properly, on the circumstance of his acting in the ordinary course of his business, and I am of opinion that the course of trade in this instance furnishes an exception to the general rule. The distinction between this case and that of a servant is, that here there is a public employment ; and, as to a carrier, if, while he has the goods, there be a demand and a refusal, trover will lie ; but while he is a mere conduit pipe in the ordinary course of trade, I think he is not liable." The terms of this judgment seem to me to be hardly satisfactory. The mere fact that the defendants' employment was a public one cannot be the reason. Almost every trade is a public em- ployment. But the butcher who should kill and cut up the plaintiff's beast, or the spinner who should spin his cotton into yarn, would be guilty of a conversion, although the trade would be equally a public employment as that of a packer. The meaning of the expressions must be gathered from the facts of the case. It is that the known nature of the employment ofa packer, like that of a carrier or wharfinger, known because it is public, shows that, although he has had actual possession of and has made an actual asportation of goods, yet his possession was only a custody, and his asportation was made without reference to or consideration of the question of whose property the goods were. In Fouldes v. Willoughby, the defendant took the horses from, the plaintiff, who was holding one of them by the bridle, against the will of the plaintiff, and put them on shore. The judge at 514 FOWLEB V. HOLLINS. [CHAP. VI11, the trial told the jury that the defendant, by taking the horses from the plaintiff and turning them out of the vessel, had been guilty of a conversion. But the court held that he was wrong. "In my opinion,'' says Lord Abinger, " he should have added to his direc- tion, that it was for them to consider what was the intention of the defendant in so doing. It is a proposition familiar to all law- yers, that a simple asportation of a chattel, without any intention of making any further use of it, although it may be a sufficient founda- tion for an action of trespass, is not sufficient to establish a conversion. It has never yet been held that the single act of removal of a chattel, independent of any claim over it, either in favor of the party himself or any one else, amounts to a conversion of the chattel." In Burroughes v. Bayne, Martin, B., gives a definition of the word " conversion." " It means detaining goods so as to deprive the person entitled to the possession of them of his dominion over them." But by the words " so as to deprive " must, I think, where there has been nothing but a detention, be intended " with intent to," or the defini- tion includes the cases of a carrier, wharfinger, packer, and a mere ser- vant acting only as such without notice or demand. Channell, B, distinguishes .between an "asportation" and a "simple asportation," and distinguishes them according to the intention of the defendant. This judgment seems to me to show that mere actual possession, if only with the intent to have custody of the goods, without reference to the question of property in them, is not a conversion ; and that an asporta- tion or actual removal and delivery of goods, if it be only a simple asportation, i. e., if it be done with intent only to be a carrier of the goods, without reference to the question of property in them, is equally no conversion. In Lancashire "Wagon Co. v. Fitzhugh, it was held that the mere sale of goods by a sheriff, who had seized them, and who sold bona fide and without notice, was not a conversion. The new assignment was sustained because it averred that the sheriff not only delivered the goods, but caused the purchasers to use and damage the wagons. That allegation goes further than a mere asportation and delivery as a mere means of conveyance ; and if it rested only on the delivery, as I think it might, it is because the delivery under a sale by a sheriff or by an auctioneer is a delivery with intent to pass the property, and so more than a simple asportation or delivery. The true proposition as to possession and detention and asportation seems to me to be, that a possession or detention, which is a mere cus- tody or mere asportation made without reference to the question of the property in goods or chattels, is not a conversion. This seems to me to be the proposition also to be deduced from the American cases CHAP. TI1I.J FOWLER V. HOLLINS. 515 which are ably set forth in the 3d vol. of Robinson's Practice of Courts of Justice, pp. 452-462. "The idea of property," he says (p. 459), "is of the essence of a conversion. He then quotes the judgment of Wardlaw, J., in the case of Nelson v. Whatmore. " This action was brought to recover the value of a slave named Prank, a man of doubt- ful color, who was passing as free in a public conveyance, and was taken as his servant by the defendant ; and the case turned upon the inquiry whether the defendant knew Prank to be a slave. ' If he did not, the treatment of Frank as a servant, and consequent facilities of escape afforded to him, may,' said Wardlaw, J., ' have been acts in themselves lawful, certainly did not indicate an assertion of property.' " In this case there were, as must be seen when it was proved that in fact Frank was the plaintiff's slave, possession and use by the defend- ant ; but under the circumstances, that is, on account of the want of knowledge that the man was a slave, a possession and use without refer- ence to any question of property in the plaintiff, the defendant, or any one else. On the whole, therefore, I come to the conclusion that a broker who, acting only as such, negotiates a bargain of purchase and sale, and passes a delivery order, is not thereby guilty of a conversion, so as to be liable in an action of trover ; and that in this case the asportation, which we are bound to consider, according to the leave reserved, as a simple asportation, without reference or intention as to whose was the property in the goods, is likewise not a conversion. In my opinion the judgment of the Court of Queen's Bench ought to be reversed. Byles, J. I concur in the judgment of my brother Brett. I have had the advantage of reading the judgment of my Lord Chief Baron, and, as it is impossible for me to add any thing to it, I merely wish to state that I agree with the reasons on which it is founded. Maetin, B. My brother Channell concurs in the judgment I am about to deliver. This is an appeal from a judgment of the Court of Queen's Bench, and the question is whether certain acts of defendants, done under cer- tain circumstances to thirteen bales of cotton, are, in law, a conver- sion within the meaning of that term in an action of trover. The origin of the action of trover is, I believe, correctly stated in Burroughes v. Bayne; it was founded on a fiction which at one period it was deemed within the authority of courts of law to invent, and further, to prohibit any contradiction of. The object of this fiction was to get' rid of wager of law, which existed in the action of detinue. Bramwell, B., in the above case, much objected to the word " conversion," and when there is a word in common and ordinary use, with a well-understood popular meaning, it is to be lamented that it should be used in a legal 516 FOWLER V. HOLLINS. [CHAP. VIII sense with an artificial and "conventional" meaning. But as regards the action of trover, I think it is well settled that the assumption and exercise of dominion — and asportation is an exercise of dominion — over a chattel inconsistent with the title and general dominion which the true owner has in and over it is a conversion, and that it is imma- terial whether the act done be for the use of the defendant himself or of a third person. This is stated to be the legal meaning of the term " conversion " by Alderson, B., in the case Fouldes v. Willoughby. I believe all the cases that exist were cited in the argument by the learned counsel, but it is unnecessary to refer to them, as they are col- lected in a note (a) by Sir E. V. Williams in his last edition of Saunders's Reports, vol. ii. p. 108, Wilbraham v. Snow ; and the result is what I have stated. The case of the carrier was referred to as inconsistent' with the above definition. The trade of a common carrier is one of few occupations which the person carrying it on is bound by law to exercise upon the requirement of a person bringing him goods to be carried, and it would be unjust that he should be bound by law to do an act which the law, in the event of the person bringing the goods not being the true owner, declared to be an unlawful act ; it has, therefore, been deemed that the carrying of goods by a carrier from terminus to ter- minus, upon the requirement of a person wrongfully in possession of them, is not a conversion, although, if the true owner intervenes before the goods be delivered and demands them, and the carrier refuses to deliver them, he is liable in an action of trover. But the case of Green- way v. Fisher was mainly relied on for the defendants. It was trover for calico. The plaintiff had intrusted it for sale to Messrs. E. & Co., and they had pledged it to two of the defendants for money lent ; but the defendants had employed one Woodward (a third defendant), a packer, to pack it, and he had done so, and shipped it at the custom- house, making an affidavit that he was the real owner; it was objected that Woodward was not liable, as he had only acted in the regular discharge of his duty. Abbott, C. J., is stated to have said that the circumstance of Woodward acting in the ordinary course of business, and in the course of trade, made an exception to the general rule ; and that the distinction between the case and the case of a servant was that this was a public employment ; he referred to the case of the carrier, and said he was a mere conduit pipe.' A verdict was taken for Woodward. It does not appear that this ruling has ever been acted upon except in the present case ; there was no opportunity of taking the opinion of the court above upon it, as there was a verdict against the other defendants ; and, notwithstanding the high authority of Abbott, C. J., should a similar case occur, I think it would be a mat- ter to be reconsidered. I do not think that the employment of a packer CHAP. VIII.] FOWLER V. HOLLINS. 517 is a public employment like that of a common carrier for hire. Nor is lie bound by law to exercise his employment except at his own pleasure. The facts of the present case are these : The plaintiffs were the true owners of thirteen bales of cotton ; the possession of them had been obtained by a person called Bayley by a fraud. On the 13th of De- cember, 1869, the defendants bought the cotton from Bayley, for cash payable the same day, and proceeded at once to sample it, i. e., to take a portion out of each bale, which their servants did ; and about half an hour afterwards they exhibited these samples to, a Mr. Micholls, who examined them, in order to judge of the quality, and, having in- quired as to the quantity and price, agreed to take the cotton. It is not stated that Bayley's name was mentioned to Mr. Micholls, but the price was stated, and he agreed to buy it, and afterwards paid the price, with the addition of £1 4s. 10« 5 Stew. & Port. (Ala.) 383. " 7 Port. 466. •» 5 Hill, 456. » 5 Bosw. 311. 20 45 N. Y. 34. 21 1 Cow. 330, 333. » 1 Keyes, 329. M 5 Bosw. 311. 21 2 Mason, 80. 25 15 Abb. 53. 26 44 Barb. 504, 514, 515. 27 2 Bam. & Cress. 310. 28 5 Hurl. & N. 179. i9 12 Pick. 139. 30 20 Pick. 90. CHAT. VIII.] M'CORMICK V. PENNSYLVANIA CENTRAL R.R. CO. 578 Cochran ; * Bell v. Cummings. 2 "Whether the facts constitute a waiver, is a question for the jury. Lucas v. Trumbull. 8 Folgek, J. Was there a conversion of the property by the defend- ant so as to warrant this action ? The defendant claims that there is no conversion unless there was an appropriation of the goods to its own use, and puts it in part upon the ground that the defendant was a common carrier. In the first place, the defendant does not in this action hold the place of a c'ommon carrier of plaintiff and his goods. If there is a cause of action, as at pres- ent before us, it is because the plaintiff would not consent to take on with the defendant the relation of passenger with his baggage. He refused to do so, and demanded return to him of his goods. His trunks and their contents were then no longer to be treated in the transaction as baggage of a passenger in the hands of the defendant as a common carrier of him and them, but as property of one in the possession of another, delivery of which to the owner had been demanded and been refused. Again, a common carrier is not always excused in an action for conversion, because he has not in fact applied to his own use the goods committed to him in his public capacity. Dewell v. Moxon. 4 It is doubtless correct to say, as a general proposition, that demand and refusal are not conclusive evidence of conversion. There may be such a state of facts shown in opposition as fully to rebut. But such may be the case also, as that demand and refusal shall be enough. If one have the power to deliver or to retain the article demanded, a demand and a refusal to deliver is sufficient evidence of a conversion. Bristol v. Burt. A refusal, however, may be accompanied with such reasona- ble qualification as to furnish an excuse for retention, and then there is no conversion shown merely by proof of demand and refusal. Mc- Entee v. N. J. Steamboat Co. 6 In the case before us, the qualification was, that the prearranged moment for the starting of this fast express through passenger train was so right upon the defendant, that to take the measures needed to get at in the baggage crate the trunks of the plaintiff, and removing them therefrom, to put them again in his pos- session, would take so long, as to derange the time table, insure delay, and incur the hazard of accident and damage. As to this, the business of the defendant as a common carrier of persons is an element in the case. We are not prepared to say that, under the usual circumstances of one taking passage with ordinary baggage, and at the last moment for his own convenience changing his purpose, it would not be a good excuse for a refusal to deliver it, so as to repel the conclusion of a con- 1 27 Ala. 228. 2 3 Sneed (Tenn.), 286. 8 15 Gray, 309. « 1 Taunt. 391 ; Anon., 2 Salk. 655. » 45 N. Y. 34. 574 m'cormick v. Pennsylvania central r.r. co. [chap. viii. version of the goods, that the delay needed therefor would throw out of gear the arrangements for the running of the train, and thus risk he incurred to the passengers and property carried. There would he, to be sure, the physical power to delay the train and to overhaul the hag- gage and to find and deliver to him his own. But there would be, on the other hand, the duty to others, of heeding all salutary and neces- sary arrangements for a safe journey for them. Does not the presence of this fact in any case, presenting the duty of a railroad company to be thoughtful of the safety of the passengers under its care, put a weighty consideration in the scale over against the evidence of conver- sion of baggage furnished by* the simple fact of a demand and refusal to deliver it ? There is, however, an important circumstance in this case, which is to be borne in mind in the consideration of this question. It was one of the regulations of the defendant that no baggage should be checked until the passenger tendering it should have bought his ticket. On the plaintiff offering his trunks for checks, he was required by the baggage- man, in obedience to this rale, to first provide his tickets. During his absence for them, the baggage-man weighed the trunks, put checks upon them, and placed them in the baggage crate, and upon the top of them was placed other baggage. After this was done the plaintiff returned with his tickets. The baggage agent then enforced upon the plaintiff another rule of the defendant. Inasmuch as the weight of the trunks was apparently more than the number of tickets bought would entitle the passengers going under them to carry as ordinary baggage, there was demanded of the plaintiff payment of a charge for the excess. It was the enforcement of this rule that caused the plaintiff to yield his purpose of travel by that train, and to demand possession of his bag- gage again. Had the baggage-man adhered to the rule not to check and load baggage until tickets were bought, a rule of which he had demanded observance from the plaintiff, the trunks might have been beside the car, and surrender of possession to the plaintiff would have been easy. Had the man in the first instance, before requiring the pur- chase of tickets, asked for the extra charge for overweight, and had the plaintiff declined, then return to him of his property could have been easily made. No doubt but that the defendant had the right to neg- lect observance of any or all of these rules, they being made for its convenience and protection. But it had no right to first enforce one upon the plaintiff and then itself disregard it, and inflict the incon- venient result of vacillation upon him. It insisted that he should act up to it. While he was so doing, it neglected it, and in that neglect so placed his baggage, as that when it came to demand of him the observance of another rule of which he had not been therefore notified, CHAP. VIII.] M'COHMICK V. PENNSYLVANIA CENTRAL E.B. CO. 575 and he refused and demanded his property, the practical difficulty arose of the'inability to meet the changed aspect of affairs. It does not appear but that he would have refused to pay the extra charge had it been made before he was sent to procure his tickets, and thus his trunks never have gone out of reach. It is said that the baggage-master could not know that there was an excess of baggage until the number of tickets was apparent to him. He did know, how- ever, that apparently there was but one passenger, with his wife, to whom it belonged, and if there was to be on his part an enforcement of all the rules of the company before the plaintiff was to be allowed to take his place as passenger carrying his trunks with him, it was 1 this agent's duty to keep matters in such a state as that it should be pos- sible to meet the contingency of a refusal on the part of the plaintiff to comply, and of the consequent necessity of surrendering to him his property. This deviation by the defendant from the rule which the plaintiff was obeying, may have been the cause of the inability of the defendant to comply with his demand for the delivery of his property. Again, the plaintiff, after payment of the charge for extra baggage was required of him, first demanded the checks for his trunks; and it was not until the refusal of them that he made demand for the deliv- ery of the trunks themselves. So that the defendant had the option of giving the checks or giving the trunks ; and if the circumstances which it had brought about made the latter impracticable, the former might have been done. Thus there is another element in the inquiry as to the reasonableness of the excuse. And was, then, that inability stated as an excuse for not making delivery a reasonable qualification of the refusal so to do ? It is not for the court, in this case, to pass upon this as a question of law, whether there was or was not a conversion. Whether or not the qualification of the refusal to deliver was reasonable in this case, is a question of fact for the consideration of the jury under proper instruc- tions from the judge. Mount v. Derick ; 1 Watt v. Potter ; 2 Alexander v. Southey ; Delano v. Curtis. 8 And in this view the testimony in the case, as to an arrangement between the plaintiff and Thompson, the president of the defendant, for the retention and delivery of the trunks to the plaintiff at Pitts- burgh, and what took place between the plaintiff and the defendant's agent at Pittsburg as to the trunks having passed on to Chicago, and the arrangement for him to receive them there, was proper to have been submitted to the jury as bearing on the question of a conversion. ' 5 Hill, 455. 2 2 Mason, 80. 3 7 Allen, 470. 576 m'coemick v. Pennsylvania central e.r. co. [chap. vm. Hayward v. Seaward. The defendant is understood to claim that this testimony tended to show what should be termed a waiver: Lucas v. Trumbull, 1 Trayner v. Johnson ; 2 or a ratification of the act of the defendant in sending forward the baggage : Hewes v. Parkman • a or an affirmation of the act and a treating of the defendant as the agent of the plaintiff in doing it : Brewer v. Sparrow ; 4 or as a satis- faction for the wrongful act : Lythgoe v. Vernon ; 6 or as testimony tending to rebut the evidence of conversion furnished by the demand and refusal, and so going to show that there was no conversion by the defendant to its own use of the property of the plaintiff. As the authorities are in this State, the last is the better view of it. See Hanmer v. Wilsey, 6 Otis v. Jones, 7 which hold that a mere tender will not bar a tort, nor take away a right to a full compensation in damages ; and Reynolds v. Shuler, 8 where it is laid down that trover lies for the conversion of a chattel, though it be restored before suit brought, the restoration going only in mitigation of damages. The testimony should have been submitted to the jury on the issue of a conversion. And see Carver v. Nichols. 9 And the learned justice erred at the circuit in taking these questions from the jury, and passing upon them as matters of law for his deter- mination. It follows that there must be a new trial. All concur upon questions discussed, save on question of conversion. Allen, J., concurs with opinion. Church, C. J., and Rapallo, J., are of opinion that, as matter of law, there was no conversion. Geovee and Peckham, JJ., are of opinion that, as matter of law, there was a conversion, and they dissent from result. For reversal, Chuech, C. J., Folgee, Allen, and Rapallo, JJ. For affirmance, Geovee and Peckham, JJ. Judgment reversed. 1 15 Gray, 306. 2 1 Head, 61. 8 20 Pick. 90. * 7 B. & C. 310. * 5 H. & N. 179. 6 17 Wend. 91. i 21 Wend. 394. » 5 Cow. 323. » 10 Gray, 369. CHAP. IX.] HALL V. HENNESLEY. 577 CHAPTER IX. DEFAMATION. SECTION I. Publication. HALL v. HENNESLET. In thb Queen's Bench, Michaelmas Teem, 1596. [Reported in Crake's Elizabeth, 486.] Action for words. Whereas he was robbed by persons unknown of divers parcels of linen cloth ; that the defendant prcemissa sciens, in slander of the plaintiff, spake these words in the presence of divers others, viz. : " Hugh Hall " {innuendo the plaintiff) " hath received three pieces of his cloth again of the thief, and beareth with the thief, and if I have any hurt hereafter, I will charge him with it." After ver- dict for the plaintiff, it was moved ia arrest of judgment that an action lies not for these words ; for when he saith that he was robbed by per- sons unknown, then the saying that he received his goods of the thief is not any offence ; for it is not alleged that he knew who was the thief from whom he received his goods. And to say that he bare with the thief is no offence ; for one may bear with a thief, as to bear with him that he shall not prosecute him, which is not any offence in law ; and one may receive his goods again which were stolen without offence, 1 unless it be done on purpose to conceal the offender and to help him to escape. It was moved, also, that this declaration was not good ; for it is that he spake those words in prwsentia diversorum, and doth not say in auditu, and if none heard, it is not a slander ; and as to it, non allocatur. For it shall be necessarily intended that it was in auditu, when it was in prcesentia, &c. But for the words them- selves, they all held, for both reasons alleged, that they were not actionable. Wherefore it was adjudged for the defendant. 2 1 Sed vide 4 Geo. I. e. 2, and 25 Geo. II. c. 36, by which a penalty is inflicted on this offence. 1 McGowan u. Manifee, 7 Monr. 314 ; Brown v. Brashier, 2 P. & W. 114; Bur- bank r. Horn, 89 Me. 235, ace. See Curtia v. Moore, 15 Wis. 137. — Ed. 37 578 PRICE V. JENKINGS. [CHAP. IX. TAYLOR v. HOW. In the Common Pleas, Michaelmas Teem,. 1601. [Reported in Croke's Elizabeth, 861.] Action for these words: "He" (innuendo the plaintiff) "is not worthy the office of a constable, for he and his company, the last time he was constable, stole five of my swine and ate them." After verdict for the plaintiff, it was moved by Yelveeton that the declaration was not sufficient ; for the words " he is not worthy," &c, may be spoken of any other, and the innuendo will not help it ; also he doth not say that he spake the words in prcesentia et auditu aliorum, and if it were otherwise it is not any slander. But all the court held that the action well lay, for hie et ille make a demonstration what person he intended ; and it is also alleged that he spake de querente those words, &c. The words also quod palam et publice promulgavit imply quod fuit in prcesentia et auditu, &c. ; for it is not palam unless it be in prcesentia et auditu aliorum. Wherefore it was adjudged for the plaintiff. 1 PRICE v. JENKINGS. In the Exchequee Chambee, Michaelmas Teem, 1601. [Reported in Croke's Elizabeth, 865.] Action for words. And declares that the defendant spake these words in Welsh (reciting them particularly), signifying hcec Anglicana verba, " Thou has murdered thy wife." After verdict and judgment for the plaintiff, error was brought and assigned in hoe, that it is not averred that the words were spoken in the company of Welshmen, or of such who understood the Welsh tongue ; but it is alleged that they were spoken in prcesentia et auditu quamplurimorum subditorum dominm regince. And the action was brought in the county of Mon- mouth, which was once parcel of Wales, but was now an English county. And all the justices and barons held, that for this cause it was erroneous ; for it shall not be intended that any there understood the said tongue, unless it had been shown ; and inen it was not any slander, no more than if one spake slanderous words in French or Italian, and action lies not, unless it be averred that some there present 1 Ware v. Cartledge, 24 Ala. 622 ; Goodrich v. Warner, 21 Conn. 432; Burton v. Burton, 3 Greene, 316; Watts v. Greenlee, 2 Dev. 115; Hurd v. Moore, 2 Oreg 85; Duel v. -Agan, 1 Code Reporter, 134 ; Warstei v. Holman, 2 Hall, 172, ace — Ed. SECT. I.J BALDWIN V. ELPHINSTON. 579 i understood those languages ; as' it was held in the case of Jones v. Davers. But because the damages were found to £50, and if the plain- tiff should begin de novo, he might not have peradventure so great damages, they moved him to accept of £10, and to make an end without further proceedings; and so it was done, and no judgment entered. 1 ♦ BALDWIN v. ELPHINSTOISr. In the Exchequer Chamber, Trinity Term, 1775. [Reported in 2 Blackstone, 1037.] Error in the Exchequer Chamber from a judgment in the King's Bench. The declaration was in an action on the case, first, for printing and publishing in the " St. James's Chronicle " a libel grossly traducing the plaintiff in his capacity of a captain in the navy ; second, for print- ing and causing to be printed another similar libel. The defendant pleaded the general issue, and on the trial the jury found a general verdict for the plaintiff, with damages £500, on which judgment was accordingly entered. The special error assigned was, that in the second count the defendant is only charged with the printing, and not the publication, of the libel, which is insufficient to maintain the action. This case was argued this term by Davenport for the plaintiff, and Lee for the defendant in error, and in the end of the term De Gre5t, C. J., delivered the opinion of himself and Smythe, C. B., and all the rest of the justices and barons, viz. : — We are all of opinion to affirm the judgment ; for, though we agree with the counsel for the plaintiff in error in the two propositions he has stated, — viz., 1. That where there are two counts in a declaration, one perfect and the- other not so, general damages cannot be regularly given (see Dyer, 309 b; 5 Co. 108; 10 Co. 31; Cro. Car. 127) ; and 2. That in actions for libels, if no publication is stated in the declaration, the count is bad (see Hob. 62, 215), — yet we apprehend there is a publication sufficiently stated in the present case. There are various modes of publication, and no technical words are necessary to describe it. Words may be published by preaching, teaching, or advised speaking, even where the consequences are highly penal. A written libel may be published in a letter to a third person. 1 Jones v. Davers, Cro. Eliz. 496 ; Amann v. Damm, 8 0. B. n. s. 597 ; Wormouth v. Cramer, 3 Wend. 394, ace. See Bechtell v. Sliatler, Wright (Ohio), 107. Con?. Anon., Moore, 182; Gibbs v. Jenkins, Hob. 191 ; Zenobio v. Axtell, 6 T. R. 162 ; Jenkins v. Phillips, 9 C. & P. 766 ; Hickley v. Grosjean, 6 Blackf, 351 ; Kernholtz u. Becker, 3 Den. 346 ; Rahauser v. Barth, 3 Watts, 28 ; Zeig v. Ort, 3 Chandl. 26 ; K. v. H., 20 Wis. 239; Filber v. Dauterman, 26 Wis. 618. —Ed. 580 SMITH V. WOOD. [chap. IX. The word palam has been held testate a publication sufficiently. Cro. Eliz. 861. There are in Rastall's Entr. tit. Action sur le Case, 13 a, two instances of constructive publications, by delivering letters to A. and B., and by fixing them on the door of St. Paul's Church. See also 3 Cro. 327, Penson and Gooday ; and 2 Lev. 193. It is therefore sufficient if there be stated in the declaration such matter as amounts to a publication, without using the formal word published, and the jury are upon the evidence to decide whether a publication be sufficiently proved or no. Printing a libel may be an innocent act; but, unless qualified by circumstances, shall prima facie be understood to be a publishing. It must be delivered to the compositor and the other subordinate work- men. Printing in a newspaper, as laid in the declaration, admits of no doubt upon the face of it. It shall be intended a publication, unless it be shown that the newspaper so printed by the defendant was suppressed and never published. It is stated that he caused to be printed. This confirms the fact of publication, because it calls in a third person, as agent, to whom the libel must have been communicated. The introduction to this count states that it was so printed with a malicious intent to in- jure the plaintiff as aforesaid, which connects it with the introduction to the first count, which speaks of publishing the several libels thereinafter mentioned in the plural number. This is the legal, as well as gram- matical, construction of the words. The conclusion of the whole declaration states that, by means of the printing and publishing of the said several libels, the plaintiff is greatly injured. In short, the count does not state generally, as it might have done, that the libel was pub- lished, but it expresses the particular mode of publication, viz., by print- ing in a newspaper. It thereby puts the publication in issue, and the jury have found it so. By such finding, they have excluded the idea of innocent printing, for they have found it to be done maliciously, to the infamy and damage of the plaintiff. Therefore, per tot. cur., Judgment was affirmed. 1 SMITH v. WOOD. At Nisi Peius, coram Lobd Ellenboeough, C. J., January 20, 1813. [Reported in 3 Campbell, 323.] This was an action for a libel upon the plaintiff in the shape of a caricature print, entitled, " The inside of a parish workhouse, with all abuses reformed." 1 See Watts v. Fraser, 7 A. & E. 223. —Ed. SECT. I.] CLUTTERBUCK V. CHAFFERS. 581 A witness stated that, having heard the defendant had a copy of this print, he went to his house and requested liberty to see it. The de- fendant thereupon produced it, and pointed out the figure of the plain- tiff and the other persons it ridiculed. Loed Ellenbobough ruled that this was not sufficient evidence of publication to support the action, and Tlie plaintiff was nonsuited. 1 CLUTTERBUCK v. CHAFFERS. At Nisi Peius, coeam Loed Eixenboeough, C. J., December 14, 1816. [Reported in 1 Starhie, 471.] This was an action for the publication of a libel. The witness who was called to prove the publication of the libel (which was contained in a letter written by the defendant to the plaintiff ) stated on cross-examination that the letter had been delivered to him folded up, but unsealed, and that without reading it, or allow- ing any other person to read it, he had delivered it to the plaintiff him- self, as he had been directed. Loed Ellenbobough held that this did not amount to a publication which would support an action, although it would have sustained an indictment, 2 since a publication to the party himself tends to a breach of the peace. Verdict for the defendant." 1 See Gordon v. Spencer, 2 Blackf. 286. — Ed. 2 " In the case in the Star-chamber between Edwards, a physician, plaintiff, and Wooton, a doctor in physic, defendant. " The case was, ' that Dr. Wooton writ to Edwards, an infamous, malicious, scandal- mis, obscene letter, to which he subscribed his name ; and this he sealed and directed, To his loving friend Mr. Edward Speed, this ; and after, the said doctor published and dispersed to others a great number of copies of the said letter.' " And it was resolved by the Lord Chancellor Egerton, the two Chief Justices, et per totam curiam, that this was a subtle and dangerous kind of libel ; for inasmuch as the writing of a private letter to another, without any other publication, the party to whom it is directed cannot hare an action sur le case for this, that no action lies ; but when it is published to others to the scandal of the plaintiff, as it hath been often- times adjudged, an action lieth. " The doctor thought that this could not be punished in any manner ; but it was re- solved that the said infamous letter, which in law is a libel, shall be punished (although it was solely writ to the plaintiff without any other publication), in the Star-chamber, » Phillips v. Jansen, 2 Esp. 624 ; Ward o. Smith, 4 C. & P. 305 ; Mcintosh v. Matherly, 9 B. Monr. 119 ; Lyle v. Clason, 1 Caines, 581 ; Waistel v. Holman, 2 Hall, 172 ; Eonville v. McNease, Dudley, 303, ace. — Ed. 582 WATTS V. FRASER. [CHAP. IX. DELACROIX v. THEVENOT. At Nisi Peius, coram Loed Eltjenborotjgh, C. J., Maech 4, 1817. [Reported in 2 Starkie, 63.] This was an action for a libel and slanderous words. The libel was contained in a letter directed to plaintiff. A clerk of the plaintiff proved that he had received the letter; that it was in the handwriting of the defendant ; and that in the absence of the plaintiff he was in the habit of opening letters directed to him. which were not marked " private." He further stated that defendant, who was well acquainted with the plaintiff, was aware of the nature of his (the clerk's) employment, and that he believed defendant knew that witness was in the habit of opening plaintiff's letters. Lord Ellenbokoitgh said that there was sufficient evidence for the jury to consider whether defendant did not intend the letter to come to the hands of a third person, which would be a publication. Verdict for plaintiff. Damages, £100. 1 WATTS v. FRASER and MOTES. At Nisi PRius r coram Lord Desman, C. J., December 5, 1835. [Reported in 7 Carrington §• Payne, 369.] Case for two libels contained in a periodical work called " Fraser's Magazine," of which the defendant Fraser was the editor, and the defendant Moyes the printer. Plea : General issue. for that it is an offence to the king, and is a great motive to revenge, and tends to the breaking of the peace and great mischief; and for that reason it was necessary that it should be punished either by indictment or in the Star-chamber, to prevent such occasions of mischief. But in the case at the bar the dispersing of copies of it, or the publication of the effect of it, aggravates the offence, and makes it a new offence ; for, for that also the party may have an action sur le case. "Note, that by the civil law, if any person hath (to disable himself to bear any office, or for any other purpose) made a libel against himself, he shall be punished for it. And so it seems to me lie should be in the Star-chamber ; for this is an offence to the king and tbe commonwealth ; and without question, although that the doctor subscribed his name to the said letter, yet the said letter importing the scandalous matter of a libel, is in the law a libel. " Nota, the law of the Lydians was, that he who slanders another shall be let blood in the tongue, and he who hears it and assents to it, in the ear, &c." Edwards v. Wooton, 12 Hep. 35. Peacock v. Eaynel, 2 Brownl. 151 ; Barrow v. Lewellin, Hob. 62; Hick's Case, Hob. 215; Rex v. Burdett, 4 B. & Aid. !»!>, ace— Ed. l Wyatt v. Gore, Holt, 299 ; Wenman v. Ash, 13 C. B. 836 ; Kiene v. Euff, 1 Iowa, 482 ; Schenck v. Schenck, Spencer, 208 ; Adams v. Lawson, 17 Gratt. 25Q, ace. See Callan v. Gaylord, 3 Watts, 321. —Ed. SECT. 1.] DAT V. BREAM. 583 It appeared that a part of one of the libels was a lithographic print of the plaintiff, which was alleged to be intended to hold him up to ridi- cule. This print was executed by Mr. Hulmandel, and it appeared that the defendant Moyes had nothing to do with the striking it off. It however appeared that this print was referred to in the letter-press part of one of the articles. Erie, for the defendants. I submit that, at all events, the defend- ant Moyes is not to be made answerable for the print, and that there- fore he must be acquitted. He is a printer ; and though he, as such, may be answerable for what comes from his own office, he ought certainly not to be made liable for a print which comes from the litho- graphic printing office of Mr. Hulmandel, and is never joined to the letter-press till after the work has entirely left Mr. Moyes's office. Lord Denman, C. J. As the print is referred to by the letter-press, I think that the case must go on as to both the defendants. Verdict for the plaintiff. Damages, £150. 1 In the ensuing term, Erie applied for a new trial, upon the ground that a part of one of the libels was a lithographic print, with which it was shown that the defendant Moyes had nothing to do, although it was referred to by the letter-press of part of one of the libels. The court refused the rule. DAT v. BREAM. At Nisi Pbit/s, coram Patteson, J., July 17, 1837. [Reported in 2 Moody Sf Robinson, 5i.] Case for a libel. Plea : Not guilty. The libel complained of was a printed handbill, containing impu- tations on the plaintiff clearly libellous. The plaintiff lived at Marl- borough ; the defendant was the porter of the coach-office at that place, and it was his business to carry out and deliver the parcels that came by the different coaches to the office. For the plaintiff it was shown that the defendant had delivered on the same day paper parcels, tied up and containing a large quantity of the hand- bills in question, to two or three inhabitants of the place, to whom the parcels were directed. No carriage was marked or charged, 1 Only so much of the case is given as relates to the question of publication. —Ed. 584 DUKE OP BRUNSWICK AND LUNEBERG V. HARMER. [CHAP. IX. nor any thing charged for porterage. Nothing was shown to prove that the defendant was aware of the contents of the parcels. Bere submitted that no case was made out to go to the jury. Patteson, J., ruled that there was enough to call upon the defend- ant to show how he became possessed of the parcels. "Witnesses were then called for the defendant, who proved that the parcels in question were some of five, which came by the London coach, inclosed in a large parcel directed to the defendant, each of the inclosed parcels being directed to some inhabitant of the place. The defendant was not charged with any carriage for the parcel, because it was usual to brifig things gratis for the servants of the coach proprietors ; and he was directed by a proprietor, who happened to be in the office when the parcel arrived, to deliver the inclosed parcels to the persons to whom they were directed. Patteson, J., in summing up, left it to the jury to say whether the defendant delivered the parcels in the course of his business with- out any knowledge of their contents ; if so, to find for him, observing, that prima facie he was answerable, inasmuch as he had in fact deliv- ered and put into publication the libel complained of, and was there- fore called upon to show his ignorance of the contents. Verdict for the defendant} THE DUKE OF BRUNSWICK AND LUNEBERG v. HARMER. In the Queen's Bench, Novembee 2, 1849. [Reported in 14 Queen's Bench Reports, 185.] Case. The declaration was dated 27th April, 1848. The first count stated that defendant, to wit, on 19th September, 1830, falsely, wick- edly, and maliciously did print and publish, and cause and procure, &c, in a newspaper called " The Weekly Dispatch," a false, &c, libel, containing the false, &c, matter following, of and concerning plaintiff, that is to say, &c. (setting out the alleged libel). 2 i See Maioney v. Bartlett, 3 Camp. 210 ; Chubb u, Flannagan, 6 C. & P. 431 ; 4 M. & Ry. 312 (a) ; Dexter v. Spear, 4 Mason, 115 ; Layton v. Harris, 3 Harringt. 406 ; Smith v. Ashley, 11 Mete. 367 ; Viele v. Gray, 10 Abb. Pr. 7. Conf. Koxn. Broderick, 14 Ir. C. L. 453 ; Weir v. Hoss, 6 Ala. 881— Ed. 2 See supra, p. 583, note 1. — Ed. SECT. I.J DUKE OF BRUNSWICK AND LUNEBEEG V. HAEMEE. 585 Plea : Statute of Limitations. Replication : That the several griev- ances in that plea mentioned, and each and every of them, were com- mitted by defendant within six years next before the commencement, &c. Issue thereon. On the trial, before Lord Denman, C. J., at the sittings in Middlesex, after last Trinity term, the publication of the numbers of the news- paper by the defendant was proved. As to the first plea, so far as related to the first count, two copies of the newspaper containing the libel set out in that count were produced. It appeared to have been published in 1830. One copy was from the British Museum; the other had been purchased before the commenement of the action, in 1848, at the newspaper office of defendant, by a witness, who, on cross- examination, stated that he had been sent by plaintiff to make the purchase, and had handed the paper, when purchased, to plaintiff. For the defendant it was contended that this was not such a publica- tion as would support the issue taken by the plaintiff on the first plea with respect to the first count. The Lord Chief Justice overruled the objection. Sir F. Thesiger now moved x for a new trial on the ground of mis- direction, and also upon affidavit. This being a civil action, in which the plaintiff complains of being injured by the publication, no publi- cation which he has intentionally caused can support the complaint. It would be otherwise in the case of an indictment, where the question would be whether the public had been injured by an act tending to provoke a breach of the peace. The publication proved was, in law, a publication to the plaintiff himself, which cannot be the foundation of a civil action. Nor is this like the case of a newspaper lately published, where, from a single publication on a particular day, it may be inferred that the newspaper has been recently in circulation elsewhere. Cur. adv. vult. Coleridge, J., in this term (November 16th), delivered the judg- ment of the court. In this case we reserved for consideration two points on which' it was urged that Lord Denman had misdirected the jury. Sir Frederick Thesiger contended that Lord Denman should have told the jury no publication of the libel in the first count was proved within six years. It appeared that the publication relied on was a sale of a copy of the newspaper to a person sent by the plaintiff to procure it, who, on receiving it, carried it to the plaintiff. It was said that this was a sale to the plaintiff himself, and, therefore, not a sufficient pub- lication to sustain a civil action for damages. And, in some sense, it is 1 Before Coleridge, Wightman, and Erie, 33. 586 SNYDER V. ANDREWS. [CEUP. IX. true that it was a sale and delivery to the plaintiff; hut we think it jwas also a publication to the agent. The question arises as on a plea of not guilty in an ordinary case. The defendant, who, on the appli-» cation of a stranger, delivers to him the writing which libels a third person, publishes the libellous matter to him, though he may have been sent for the purpose of procuring the work by that third person. So far as in him lies, he lowers the reputation of the principal in the mind of the agent, which, although that of an agent, is as capable of being affected by the assertions as if he were a stranger. The act is complete by the delivery ; and its legal character is not altered, either by the plaintiff's procurement or by the subsequent handing over of the writing to him. Of course that this publication was by the pro- curement of the plaintiff is not material to the question we are now considering. "We see no ground, therefore, for thinking there was any misdi- rection. Rule refused. SNYDER v. ANDREWS. Supreme Court, New York, March 5, 1849. [Reported in 6 Barbour, 43.] This was an action on the case for a libel. The defendant pleaded the general issue, and gave notice of special matter. 1 The cause was tried at the Saratoga circuit in November, 1847, before Justice Paige. On the trial the defendant admitted that he wrote the letter containing the alleged libel, sealed the same, and put it into the post-office at Saratoga Springs, directed to the plaintiff at his residence. The plaintiff proved by John R. Brown that the letter was read to the witness by the defendant at his office in the presence of a young man who was a clerk of the defendant. The defendant's counsel then moved for a nonsuit, on the ground that a publication of the libel had not been proved. The judge denied the motion. The jury found a verdict for the plaintiff of |250. And the defend- ant, upon a bill of exceptions, moved for a new trial. A. JBokes, for the plaintiff. D. Wright, for the defendant. "Willard, J. The fact that the defendant read the letter to a stranger, before it was sent to the plaintiff, was not questioned on the trial, and is assumed to be true by the form of the objection ; but it is insisted that such reading did not amount to a publication of the libel. No man incurs any civil responsibility by what he thinks or even writes, unless he divulges his thoughts to the temporal prejudice of 1 See supra, p. 583, note 1. SECT. I.J SHEFFILL V. VAN DEUSEN. 687 another. Hence, a sealed letter containing libellous matter, if com- municated to no one but to the party libelled, is not the foundation for a civil action, although it may be of an indictment. Lyle v. Clason ; 1 Hodges v. The State ; 2 Phillips v. Jansen. 8 But where the defendant, knowing that letters addressed to the plaintiff were usually opened by and read by his clerk, wrote a libellous letter and directed it to the plaintiff, and his clerk received and read it, it was held there was a sufficient publication to support the action. Delacroix v. Thevenot. And in Schenck v. Schenck, 4 a sealed letter addressed and delivered to the wife containing a libel on her husband was held a publication suffi- cient to enable the latter to sustain an action. Reading or singing the contents of a libel in the presence of others have been adjudged a publication. 2 Starkie on Slander, 16 ; 5 Rep. 125 ; 9 id. 59 b ; 1 Saund. 132, n. 2. The reading of the letter in question by the de- fendant in the presence of Brown was a sufficient publication to sustain this action. New trial denied! 1 SHEFFILL and Wife v. VAN" DEUSEN and Wife. Supreme Judicial Coukt, Massachusetts, September Tebm, 1859. [Reported in 13 Gray, 304.] Action of tort for slander. Trial in the Court of Common Pleas, before Briggs, J., who signed this bill of exceptions : — The words claimed to have been slanderous, were spoken, if at all, at the dwelling-house of the defendants, and in that part thereof called the bakery, where bread and other articles were sold to cus- tomers, and were spoken by Mrs. Van Deusen to Mrs. Sheffill. The defendants asked the court to instruct the jury that, if the words alleged in the plaintiffs' declaration were spoken to Mrs. Sheffill, and no other person but Mrs. Sheffill and Mrs. Van Deusen were pres- ent, there was no such publication of the words as would maintain the action. The court declined so to instruct, but did instruct the jury that, if the words were publicly uttered in the bakery of the defendants, there was a sufficient publication, though the plaintiff has not shown that any other person was present at the time they were spoken but Mrs. Shef- fill and Mrs. Van Deusen. The jury returned a verdict for the plain- tiffs, and the defendants except. 1 1 Caines, 581. 2 5 Humphrey, 112 ; 1 Wms. Saund. 132, n. 2. 8 2 Esp. 626 ; 2 Starkie on Slander (Wend, ed.), 14. i 1 Spencer, 208. 5 M'Coombs 1: Tuttle, 5 Blackf. 431 ; Van Cleef v. Lawrence, 2 City H. Rec. 41, ace. — Ed, coo ° MASON V. JENNINGS. [CHAP. IX. M. "Wilcox, for tbe defendants. W. K. Peck, of Connecticut, for the plaintiffs. The instructions given were correct and sufficient. The plaintiffs are not bound to prove, as a distinct fact, that some third person heard the words; those who heard them may be absent or dead. The words having been spoken in a public place, and in a public manner, the presumption is that they were heard by other persons, and so the jury must have thought. Bigelow, J. Proof of the publication of the defamatory words alleged in the declaration was essential to the maintenance of this action. Slander consists in uttering words to the injury of a person's reputation. No such injury is done when the words are uttered only to the person concerning whom they are spoken, no one else being present or within hearing. It is damage done to character in the opinion of other men, and not in a party's self-estimation, which con- stitutes the material element in an action for verbal slander. Even in a civil action for libel, evidence that the defendant wrote and sent a sealed letter to the plaintiff, containing defamatory matter, was held insufficient proof of publication ; although it would be otherwise in an indictment for libel, because such writings tend directly to a breach of the peace. So, too, it must be shown that the words were spoken in the presence of some one who understood them. If spoken in a foreign language, which no one present understood, no action will lie therefor. Edwards v. Wooton; 1 Hick's Case; 2 Wheeler & Appleton's Case;' Phillips v. Jansen ; * Lyle v. Clason ; 6 Hammond N. P. 287. It is quite immaterial in the present case that the words were spoken in a public place. The real question for the jury was, were they so spoken as to have been heard by third persons ? The defendants were therefore entitled to the instructions for which they asked. Exceptions sustained. 1 SECTION II. Libel. MASON v. JENNINGS. In the King's Bench, Michaelmas Teem, 1680. [Reported in T. Raymond, 401.] In a special action upon the case. The plaintiff declares that he is a hackney-coachman, and that the defendant with an intent to dis- l 12 Co. 35. 2 Pop. 139, and Hob. 215. 3 Godb. 340. « 2 Esp. R. 624. 6 1 Caines, 581. 6 Anon., Sty. 70; Force v. "Warren, 15 C. B. n. s. 808; Desmond v. Brown, 38 Iowa, 13; Broderick v. James, 3 Dalj, 481, ace. — El>. SECT. II.] AUSTIN V. CULPEPPER. 589 grace him did ride Skimmington, and describes how, thereby surmising that the plaintiff's wife had beat the plaintiff, and by reason thereof persons who formerly used him refused to come into his coach and to be carried by him, ad damnum. Upon not guilty pleaded a verdict for the plaintiff; and upon motion in arrest of judgment judgment was given quod quer nil capiat per billam ; and a judgment in the like case in C. B. was cited Trin. 14 Car. II. C B. Rot. 1461 ; in the case of Lumley and Baddenley. AUSTIN v. CULPEPPER. Ik the King's Bench, Michaelmas Teem, 1683. ' [Reported in 2 Shower, 813.] Case wherein the plaintiff declares that, whereas there was a cause depending in the Court of Chancery between the said parties, and wit- nesses sworn and examined on the behalf of the plaintiff, the defendant, to scandalize the plaintiff, did forge and counterfeit an order of the said Court of Chancery, that Sir John Austin should stand committed, unless cause, &c, and this did cause to be written and published as an order of the said court; and afterwards, viz., the same day, did make the picture or representation of a pillory, and under the same did write these words : " For Sir John Austin, and his suborned, for- sworn witnesses," &c. Mr. Pollexfen moves in arrest of judgment. This declaration con- sists of two parts, viz., the forgery of the order and the figure with the words underwritten, and the damages are entire ; now, if either of them be not actionable, the plaintiff ought not to have judgment. Sup- pose a man should bring an action for a malicious prosecution of a crime, and for words imputing the same crime, and dam- ages given entirely, if the words happen not to be actionable, it will be naught. Then, for the words themselves, if they had been spoken, they had not been actionable; for to call a man "forsworn'' is not actionable, unless it appear that it was in a court of justice. Now, the forgery itself is not actionable, for he lays no damage or trouble accrued to him thereby. Mr. Holt, e contra. It is all but one complicated act, and the action is for libelling him in that manner. Now, supposing the words them- selves were not actionable, yet, being published by way of libel, they are so. There was the case of Col. King v. Lake, 1 before Lord Hale, where the action was for printing a petition, which he delivered to i Mod. 58. 590 CBOPP V. TILNEY. [CHAP. IX. several members of the House of Commons (having a complaint there against him), containing scandalous matter concerning him, as that he was dishonest and unjust, and had abused him; and, although none of these words printed would have borne an action if spoken, yet the action was held to lie, and judgment was affirmed upon a writ of error. An action lies for a libel as well as an indictment ; and a libel may be either per scripta or per signa. And here was the case of Mingey v. Moodie, where an action was brought for riding Skimmington, as it is called. Per Curiam. It is but one complicated act ; and an action lies for scandalizing a man by wtiting those words, which will not, being spoken, bear an action. Here was the cause of Sir William Bolton v. Deane, for carrying a fellow about with horns, and bowing at his door, &c. And by the whole court, Judgment was given for the plaintiff} CROPP v. TILNET. In the King's Bench, Michaelmas Teem, 1693. [Reported in 3 Salkeld, 225.] Upon a writ of error on a judgment in an action on the case, where- in the plaintiff declared that he stood to be elected for a member of Parliament, and that the defendant caused a libel to be printed of him with these words, as spoken by the plaintiff, viz., " There is a war with France, of which I can see no end, unless the young gentleman on the other side of the water " (innuendo the Prince of Wales) " be restored," per quod he lost his election, ad damnum, &o., there was a verdict for the plaintiff, and judgment in C. B. ; and now, upon a writ of error in B. R., it was insisted that an innuendo cannot beget an action, nor make that certain which was uncertain before, and that here was no scandal ; and if so, this was not a libel. i " Every infamous libel aut est in scriptis, aut sine scriptis ; a scandalous libel in ecriptis is, when an epigram, rhyme, or other writing is composed or published to the scandal or contumely of another, by which his fame and dignity may be prejudiced. And such libel may be published : 1 . Verbis aut cantilenis, as where it is maliciously repeated or sung in the presence of others. 2. Traditione, when the libel or any copy of it is delivered over to scandalize the party. Famosus libellus sine scriptis may be : 1. Picturis, as to paint the party in any shameful and ignominious manner. 2. Signis, as to fix a gallows, or other reproachful and ignominious signs at the party's door or elsewhere." The Case de Libellis Eamosis, 6 Rep. 125 J; King v. Lake, Hardr. 470, ace. — Ed. SECT. II.] TILLERS V. MONSLET. 591 Sed per Holt, C. J. Scandalous matter is not necessary to make a libel; it is enough if the defendant induces an ill opinion to be bad of the plaintiff, or to make him contemptible and ridiculous, as, for in- stance, an action was brought by the husband for riding Skimmington, and adjudged that it lay, because it made him ridiculous and exposed him. Every man understands who is meant by the young gentle- man on the other side of the water. If words are false, the defendant may justify in an action, but not in an indictment. VILLERS v. MONSLET. In the Common Pleas, Easter Tekm, 1769. [Reported in 2 Wilson, 403.] Action upon the case against the defendant for maliciously writing and publishing a libel upon the plaintiff in the words following, viz.: — " Old Villers, so strong of brimstone you smell, As if not long since you had got out of hell ; But this damnable smell I no longer can bear, Therefore I desire you would come no more here. Tou old stinking, old nasty, old itchy old toad, If you come any more you shall pay for your board ; You'll therefore take this as a warning from me, And never more enter the doors, while they belong to J. P. Wilncoat, December 4, 1767." The defendant pleaded not guilty. A verdict was found for the plaintiff and sixpence damages, at the last assizes for the county of Warwick. And' now it was moved by Serjeant Burland in arrest of judgment that this was not such a libel for which an action would lie; that the itch is a distemper, to which every family is liable; to have it is no crime, nor does it bring any disgrace upon a man, for it may be innocently caught or taken by infection ; the small-pox or a putrid fever are much worse distempers ; the itch is not so detestable or so contagious as either of them, for it is not communicated by the air, but by contact or putting on a glove or the clothes of one who has the itch; and although it be an infectious distemper, yet it implies no offence in the person having it, and therefore no action will lie for saying or writing that a man has got the itch. It is not like saying or writing that a man has got the leprosy, or is a leper, for which an action upon the case will lie, because a leper shall be removed from the society of men by the writ de leproso amovendo (1 Roll. Abr. 44 ; x Cro. Jac. 144; Hob. 219), although it be a natural infirmity. SECT. U.~\ BELL V. STONE. 593 would not lie ; but if he should write those words of anolfher, and pub- lish them maliciously, as in the present case, I have no doubt at all but the action well lies. What is the reason why saying a man has the leprosy or plague is actionable ? it is because the having of either cuts a man off from society ; so the writing and publishing maliciously that a man has the itch and stinks of brimstone cuts him off from society. I think the publishing any thing of a man that renders him ridiculous is a libel and actionable, and in the present case am of opinion for the plaintiff. Judgment for the plaintiff, per tot. cur., without granting any rule to show cause. BELL v. STONE. In the Common Pleas, November 19, 1798. [Reported in 1 Bosanquet $■ Puller, 331.] Action on the case for defamation. The first count of the declara- tion, after stating that the plaintiff was a land-surveyor, averred that the defendant, intending to injure him in his reputation and hurt him in his profession,* wrongfully and maliciously wrote and published a certain scandalous, malicious, and defamatory libel in the form of and as a letter addressed to one N. B., to whom the defendant was indebted in a large sum of money, in which letter was contained, of and con- cerning the plaintiff, the following matter : " After the communication I had with your son in your absence, I but little thought you would have been made the dupe of one of the most infernal villains that ever disgraced human nature ; but I suppose you were deceived by those whom you thought well of, and whom he will deceive if they will give him an opportunity ; I am told they are respectable ; and how they can be connected with him is the most astonishing thing to me. Mr. H. writes me you called upon him (meaning the plaintiff) on the subject of your account, for which the villain gave you his note at five months;" that the defendant, in further prosecution of his said malice, sent the said letter to the said N. B., to the great hnrt, prejudice, and injury of the plaintiff, and to his great discredit and disgrace. There were other counts on words spoken in derogation of the plaintiff's professional character, and of his ability to pay his debts. The conclusion, referring to all the counts, stated that the plaintiff suffered special damage in consequence of publishing the said libel and speaking the said words, viz., that he was arrested by the said N. B. for the sum which he owed to him, and that he lost his business, &c. Plea: The general issue. 88 594 THORLET V. LORD KERRY. [CHAP. IX. This came'on to be tried at the Bedford summer assizes, when, the plaintiff having failed in proving the special damage laid, Macdonald C. B., was of opinion that the letter on which the first count proceeded unsupported by proof of special damage, was not actionable, and directed a verdict for the defendant. The counsel for the plaintiff, however, contending that the letter itself was actionable, the Chief Baron asked the jury what damages they would give, supposing the plaintiff entitled to a verdict in point of law. The jury answered Is. Sellon, Serjt., on a. former day obtained a rule to show cause why the verdict for the defendant should not be set aside, and a verdict be entered on the first count for the plaintiff for Is., on the ground that .•though the words in the first count might not be actionable, if only spoken, yet that being committed to writing, they were so. Be Blanc, Serjt., was this day to have shown cause, but the court expressing themselves clearly of opinion that any words written and published, throwing contumely on the party, were actionable, Be Blanc declined arguing the point, and the Mule was made absolute. 1 THORLET v. LORD KERRY. Ik the Exchequer Chamber, Mat 9, 1812. [Reported in 4 Taunton, 365.] This was a writ of error brought to reverse a judgment of the Court of King's Bench. " This was an action for a libel contained in a letter addressed to Lord Kerry, and sent open by one of his servants, who became acquainted with its contents. The libel charged his Lordship with being a hypocrite, and using the cloak of religion for unworthy purposes." 2 Upon not guilty pleaded, the cause was tried at the Surrey spring assizes, 1809, when the writing of the letter by the defendant was proved, and that he delivered it unsealed to a servant to carry, who opened and read it ; a verdict was found for the plaintiff with £20 damages, and judgment passed for the plaintiff without argument in the court below. The plaintiff in error assigned the general errors. Barnewall, for the plaintiff in error, in Trinity term, 1811, argued, that there were no words in this case for which, if spoken, the action i HUlhouse v. Duning, 6 Conn. 391 ; Gage v. Robinson, 12 Ohio, 250. — Ed. 2 This short statement of the case, taken from 3 Camp. 214, has been substituted for the declaration which is set out at considerable length in the original report. — Ed. SECT. II.] TH0HU5Y V. LORD KERRY. 595 would be maintainable, and he denied that there was any solid ground, either in authority or principle, for the distinction supposed to have prevailed in some cases, that certain words are actionable when written, which are not actionable when spoken. He contended that all actionable words were reducible to three classes : 1. Where they impute a punishable crime ; 2. Where they impute an infectious dis- order; 3. Where they tend to injure a person in his office, trade, or profession, or tend to his disherison, or produce special pecuniary damages. 1 Roll. Abr. Action sur Case pur parols passim ; Co. Dig. Action upon the Case for Defamation, passim. And these words do not come within either of those classes. Neither of those books recognize the distinction between written and unwritten slander. All the older cases treat them on the same footing. Brook v. Watson. 1 " He is a false knave, and keepeth a false debt-book, for he chargeth me with the receipt of a piece of velvet which is false." The words were held not to be actionable, and no such distinction was there taken. So Boughton v. Bishop of Coventry and Lichfield. 2 The words, " he is a vermin in the commonwealth, a false and corrupt man, a hypocrite in the church of God, a false brother amongst us," were held not actionable. There is also a material distinction, which has been overlooked in all the cases, between those words which, tending to irritate and vilify, are indictable, because they conduce to a breach of the peace, and those which are of themselves actionable, the latter class being by no means so extensive as the former. Comyns, in his Dig., Libel, A, 3, when he cites Fitzg. 121, 253, that it is a libel if he publishes in writing, though in words not actionable, is considering this matter wholly in a criminal point of view. The last-mentioned distinc- tion must necessarily exist, because the ground of action is the amount of the civil injury sustained by the plaintiff, not the immorality of the act of the defendant. In the case of King v. Lake, 8 indeed, which was an action for words in an answer to a petition preferred by the plaintiff to the House of Commons against the defendant, Hale, C. B., held, that although general words spoken once, without writing or pub- lishing them, would not be actionable, yet there, they being writ and published, which contains more malice than if they had been once spoken, they were actionable. And the court being all of that opinion, judgment was given pro querente nisi causa, &c. But in that case, this ground was unnecessary to support the decision, for the words imputed violence, seditious language, illegal assertions, ineptitudes, imperfections, gross ignorances, absurdities, and solecisms, and were laid to be spoken to the plaintiff's damage in his good name and credit, and profession as a bar- 1 Cro. Eliz. 403. 2 Anderson, 119. 3 Hardr. 470. 596 THORLEY V. LORD KERRY. [CHAP. IX. rister at law. And in 2 Vent. 28, another action -was brought within five years after, between the same parties, for a letter written by the same defendant to the Countess of Lincoln, damnifying the plaintiff in his pro- fession of a barrister ; but although Vaughan, C. J., contrary to Wyld, Tyrrell, and Archer, JJ., held that the action lay not, the court did not at all advert to the distinction between written and unwritten slander, in support of their judgment. The distinction was indeed noticed in Harman v. Delany ; but the same case is reported by Strange, vol. ii. 898, who was of counsel in the cause, and who puts it merely on the ground of its being spoken of the plaintiff in his profession. In Onslow v. Home, it is held that even words imputing a crime are not actionable, unless the punishment be infamous. In Savile v. Jardine, it was held that the word " swindler," when spoken, was not actionable ; and the distinction was there, indeed, assumed, and the case is there- upon argued to be reconcilable with JAnson v. Stuart, 1 where the same word written was held actionable; but in the latter case is an innuendo, that the defendant intended an obtaining money under false pretences, which incurs an infamous punishment, and is therefore clearly actionable, without recurring to the support of this disputed distinction. In the precedents in Rast. 12, 13, Robins. Ent. 72, the words are not stated as a libel ; it seems the distinction was unknown. In Crop v. Tilney, the words were certainly seditious, if not treason- able. The reason assigned, that the printing or writing indicates a greater degree of malice than mere speaking, is a bad one ; for it is not the object of an action at law to punish moral turpitude, but to compensate a civil injury ; the compensation must be proportionate to the measure of the damage sustained : but it cannot be said that pub- lication of written slander is in all cases attended with a greater damage than spoken slander; for if a defendant speaks words to a hundred persons assembled, he disseminates the slander and increases the damage a hundredfold, as much as if he only wrote it in a letter to one. Dumpier, in affirmance of the judgment. This action is maintain- able, first, because the plaintiff is a peer of the realm; and many things are actionable when spoken of a peer, which are not actionable if spoken of a private person ; as in the Marquis of Dorchester's Case : 3 " He is no more to be valued than that dog that lies there." So in the case of the Earl of Peterborough v. Stanton: 8 "The Earl of Peterborough is of no esteem in this country ; no man of reputation has any esteem for him; no man will trust him for two-pence; no man values him in the country; I value him no more than the dirt 1 1 T. R. 478. J Mich. 24 Car. H. B. R. Bull. N. P. 4. * Ibid. SECT. II.} THOELET V. LORD KERRY. 597 under my feet." It does not appear that either of these was an action of scandalum magnatum. The case of the Earl of Peterborough v. Williams, 1 is indeed there said to be scandalum magnatum. The principle on which actions may be sustained for words is rather nar- rowly laid down in the argument for the plaintiff in error, when the causes of action are said to be only crime, pecuniary damage, and infectious disease. The gist of the last is, that the imputation deprives the plaintiff of society. But what can more deprive a man of society than this imputation of being one " who, under the cloak of religion and spiritual reform, hypocritically and with • the grossest impurity deals out his malice, uncharitableness, and- falsehoods?" If this is not a leprosy of the mind as much to be shunned as that of the body, the loss of society is not much to be regretted. If Lake's Case had gone upon his loss as a barrister, there would have been no room for all the discussion that took place; and especially Hale's judgment, taking the distinction between speaking and writing. [Heath, J. It appears by Skin. 124, that the judgment in the case of King v. Lake was affirmed in error.] Austin v. Culpepper. The same distinction is taken in Shower, 314, though it is not taken in Skinner, where the libel imputed perjury, and was therefore clearly actionable. 1 Ford, MS. 49, the case of Harman v. Delany, is reported more fully than in the printed report; and it is there said that it was so agreed by the court. 2 Ford, 78, 79, Bradley v. Methuen ; it there appears that Lord Hardwicke recognized the distinction, though it was not abso- lutely necessary to the judgment, which there passed for the plaintiff There is another principle upon which the action for slander is to be maintained beyond that of penalty and punishment, viz., of disgrace and discredit; and whether that be produced by writing, or by words,, if it is punishable by indictment as tending to a breach of the peace, it is also the subject of a civil action, which may be brought to recover a compensation for the .injury the plaintiff sustains by being deprived of society, as for a temporal damage. Villars v. Monsley. Bathurst, J., held that writing and publishing any thing of a man that renders him ridiculous is a libel, and actionable ; and fully recognized the distinc- tion between written and spoken slander. This case continues the chain from the time of Hale, C. B., 1670, to the time of Wilmot, C. J., within living memory. Bell v. Stone. The court, in the absence of Eyre, C. J., clearly held that written words of contumely were action- able. [Macdonald, C. B. Villain was the word there.] This brings us down to Kaye v. Bayley, 2 where the amount of damages made 1 Comb. 43 ; 2 Show. 605. 2 One of the parties in that case having died pending the writ of error, no judg- ment ever was given. 598 THORLEY V. LORD KERRY. [CHAP. IX. the question of importance, and it was thrice fully argued. If this series of one hundred and fifty years' decisions (and it was a very learned person, Le Blanc, then serjeant, who refused to argue the point in Bell v. Stone) will not suffice to warrant the opinion that an action 'will lie in such case, there is no reliance to be placed on authority. If words imputing a dereliction of every duty of imperfect obligation cannot be made the subject of an action, the law of libel very imper- fectly guards society. Barnewall, in reply. The court will not be disposed to extend the principle laid down in all the books, limiting the cases in which words are actionable. In 1 Boll. Abr.*Case for Slander, and Co. Dig. Action on the Case for Defamation, the written and spoken slander are treated of under one title ; and in the older entries there is no difference made in the declarations between written and unwritten slander, except using the word " spoken " instead of " written." In Villars v. Mons- ley, the words imputed an infectious disorder. In Harman v. Delany the words were spoken of the plaintiff in his trade as a gunsmith. De Grey, C. J., in Wils. 187, says that to impute to any man the mere defect or want of moral virtue, moral duties, or obligations, which render a man obnoxious to mankind, is not actionable. The case in Anderson is in point, that the words here used are not actionable. The injury consists in the evil done to the plaintiff in the minds of others; and if the words, when spoken, be not an injury, they cannot be when written. To hold otherwise would be to make the immo- rality, and not the damage, the ground of action. Our. adv. vult. Mansfield, C. J., on this day delivered the opinion of the court. This is a writ of error, brought to reverse a judgment of the Court of King's Bench, in which there was no argument. It was an action on a libel published in a letter which the bearer of the letter happened to open. The declaration has certainly some very curious recitals. It recites that the plaintiff was tenant to Archibald Lord Douglas of a messuage in Petersham ; that, being desirous to become a parishioner and to attend the vestry, he agreed to pay the taxes of the said house, that the plaintiff in error was churchwarden, and that the defendant in error gave him notice of his agreement with Lord Douglas ; and that the plaintiff in error, intending to have it believed that the said earl was guilty of the offences and misconducts thereinafter mentioned (offences there are none, misconduct there may be), wrote the letter to the said earl which is set forth in the pleadings. There is no doubt that this was a libel, for which the plaintiff in error might have been indicted and punished ; because, though the words impute no punish- lble crimes, they contain that sort of imputation which is calculated to vilify a man, and bring him, as the books say, into hatred, contempt, SECT. U.J THOELET V. LORD KERRY. 599 and ridicule ; for all words of that description an indictment lies ; and I should have thought that the peace and good name of individuals was sufficiently guarded by the terror of this criminal proceeding in such cases. The words, if merely spoken, would not be of themselves sufficient to support an action. But the question now is, whether an action will lie for these words so written, notwithstanding such an action would not lie for them if spoken ; and I am very sorry it was not discussed in the Court of King's Bench, that we might have had the opinion of all the twelve judges on the point, whether there be any distinction as to the right of action between written and parol scandal ; for myself, after having heard it extremely well argued, and especially, in this case, by Mt. Barnewall, I cannot, upon principle, make any difference between words written and words spoken, as to the right which arises on them of bringing an action. For the plain- tiff in error it has been truly urged, that in the old books and abridg- ments no distinction is taken between words written and spoken. But the distinction has been made between written and spoken slan- der as far back as Charles the Second's time, and the difference has been recognized by the courts for at least a century back. It does not appear to me that the rights of parties to a good character are insufficiently defended by the criminal remedies which the law gives. and the law gives a very ample field for retribution by action for words spoken in the cases of special damage, of words spoken of a man in his trade or profession, of a man in office, of a magistrate or officer; for all these an action lies. But for mere general abuse spoken, no action lies. In the arguments both of the judges and counsel, in almost all the cases in which the question has been, whether what is contained in a writing is the subject of an action or not, it has been considered whether the words, if spoken, would maintain an action. It is curious that they have also .adverted to the question, whether it tends to produce a breach of the peace ; but that is wholly irrelevant, and is no ground for recovering damages. So it has been argued that writing shows more deliberate malignity; but the same answer suffices, that the action is not maintainable upon the ground of the malignity, but for the damage sustained. So it is argued that written scandal is more generally diffused than words spoken, and is, therefore, actionable ; but an assertion made in a public place, as upon the Royal Exchange, concerning a merchant in London, may be much more extensively diffused than a few printed papers dispersed, or a private letter ; it is true that a newspaper may be very generally read, but that is all casual. These are the arguments which prevail on my mind to repudiate the distinction between written and spoken scandal ; but that distinction has been established by some of the greatest names 600 T'HORLET V. LORD KERR?. [CHAP. IX. known to the law, Lord Hardwicke, Hale, I believe Holt, C. J., and others. Lord Hardwicke, C. J., especially has laid it down that an action for a libel may be brought on words written, when the words, if spoken, would not sustain it. Com. Dig. tit. Libel, referring to the case in Fitzg. 122, 253, says there is a distinction between written and spoken scandal ; by his putting it down there as he does, as being the law, without making any query or doubt upon it, we are led to suppose that he was of the same opinion. I do not now recapitulate the cases, but we cannot, in opposition to them, venture to lay down at this day that no action can be maintained for any words written, for which an action could not be maintained if they were spoken ; upon these grounds we think the judgment of the Court of King's Bench must be affirmed. The purpose of this action is to recover a compen- sation for some damage supposed to be sustained by the plaintiff by rea- son of the libel. The tendency of the libel to provoke a breach of the peace, or the degree of malignity which actuates the writer, has nothing to do with the question. If the matter were for the first time to be decided at this day, I should have no hesitation in saying that no action could be maintained for written scandal which could not be maintained for the words if they had been spoken. Judgment affirmed. 1 1 Woodard v. Dowsing, 2 M. & Ry. 74 ( Oppressive conduct) ; Churchill words would have well maintained the action ; for the truth of the case was that, in an action between Martin and Wright, the state of the controversy was, whether the said stake stood upon the land of the one or of the other, or indifferently, as a boundary betwixt them. And in that action the plaintiff was sworn as a witness, and, by the pretence of the defend- ant, had in his deposition perjured himself; but this special matter was not showed, and therefore it was adjudged quod querens nihil capiat per billam. 1 MINORS v. LEEFORD. In the Ejng's Bench, Hilary Teem, 1606. [Reported in Crolce's James, 114.] Action for these words: "Thou art a thief, and hath stolen Mr. St. George's tree." After verdict for the plaintiff, it was moved in arrest of judgment that the words are not actionable ; for to say, "thou hast stolen a tree," an action lies not ; for it is not any felony, for it is arbor dum crescit. The court was of that opinion. And then when he saith, " Thou art a thief, and thou hast stolen a tree," that shows the reason of his speech which is not any slander ; so no action lies, &c. Taneteld. In Stanley's Case, in the Common Pleas, this difference was agreed: "Thou art a thief, for thou hast stolen such a thing," the stealing whereof appears to be no felony, an action lies not ; for the subsequent words show the reason of his calling him thief: but when he saith, " Thou art a thief, and thou hast stolen such a thing," which in itself is not felony ; yet the action lies for calling him thief generally ; and the addition, " and thou hast stolen," is another dis- tinct sentence by itself, and is not the reason of the former speech, nor 1 Lewis v. Acton, Yelv. 34; Waggoner v. Richmond, Wright (Ohio), 173; Willis ft Patterson, Tappan, 275, ace. — Ed. 640 SKELTON v. EARTH. [CHAP. IX. any diminution thereof, but an addition thereto, and so he conceived here. Fenneb and Williams were of that opinion, but Yelvebton doubjed thereof; and (absente Popham) it was adjudged for the plaintiff. 1 HOLT v. ASTGRIGG. In the King's Bench, Michaelmas Teem, 1607. [Reposed in Croke's James, 184.] Action upon the case for words : " Sir Thomas Holt struck his cook on the head with a cleaver, and cleaved his head ; the one part lay on the one shoulder, and another part on the other." The defendant pleaded not guilty, and it was found against him. It was now moved in arrest of judgment that these words were not actionable ; for it is not averred that the cook was killed, but argu- mentative. The court was of that opinion (Fleming, C. J., and Williams, absentibus) ; for slander ought to be direct, against which there may not be any intendment; but here, notwithstanding such wounding, the party may yet be living; and it is then but trespass. Wherefore it was adjudged for the defendant. SKELTON v. EARTH. In the Ufpee Bench, Eastee Teem, 1658. [Reported in 2 Siderfin, 71.] Action on the case for these words : " Thy husband was the death of Jo. Parret, and had it not been for thee and. thy husband, he had been alive unto this day." It was now moved in arrest of judgment at the bar. Gltn, C. J., said that he might be the occasion, yet not the cause, as by sending the said J. P. on a journey, by reason of which, &c. ; or by ousting him from his estate, so that he occasionally languished ; or by means more trivial than these. See Burton's Melancholy. 2 1 Benson v. Morley, Cro. Jae. 153, ace. ; Clearke v. Gilbert, Hob. 331 ; Goddard v. Gilbert, Winch, 3, 10 ; Coote v. Gilbert, Hob. 77 ; Ogden v. Riley, 2 Green, 186, contra. — Ed. 2 Miller v. Buckdon, 2 Bulst. 10, ace — Ed. SECT. III.] BAYLY V. MAYNARD. 641 WARD v. POOL. In the Common Pleas, Easter Teem, 1610 or 1611. [Reported in Godbolt, 167.] An action upon the case was brought for speaking these words: " Thou mayest well be richer than I am, for thou hast coined thirty shillings in a day; thou art a coiner of money,'' &c. I will justify it. It was moved in arrest of judgment that the words were not action- able, because he might have a good authority to coin money ; for men who work in the mint are said to coin money, and are called coiners of money; and so it was adjudged, quod querens nihil capiat per bil- lam} HOLLAND v. STONER. In the Excheqtteb Chamber, Michaelmas Teem, 1612. [Reported in Crolce's James, 315.] Error of a judgment in the King's Bench in an action for these words: "Thou art a lewd fellow; thou didst set upon me by the highway, and take my purse from me ; and I will be sworn to it." The error assigned was, because an action lay not for these words ; for he doth not charge him with felony, nor with robbing of him, or with any felonious taking away his purse ; and it may be he took it away in jest, or for some other cause, and it is not any direct slander. And all the judges and barons were of that opinion; wherefore the judgment was reversed. 2 BAYLY v. MAYEARD. In the King's Bench, Michaelmas Term, 1614. [Reported in 2 Bulstrode, 134.] In an action upon the case for words, upon non culp. pleaded, a verdict was found for the plaintiff. It was moved in arrest of judg- 1 Mill's Case, Godb. 375, ace. But see Speed v. Perry, Salk. 697 (oyerruling Ward v. Pool) ; and Walfin v. Beaver, 3 Lev. 166 ; Brittain v. Allen, 3 Dev. 167 ; s. o. 2 Dev. 120 ; Naden v. Micoche, 3 Lev. 166 ; Thirroan v. Matthews, 1 Stew. 884 ; Howard v. Stephenson, 2 Mill's C. R. 408. Conf. Church v. Bridgman, 6 Mo. 190 ; Pike v. Van Wormer, 5 How. Pr. 171. —Ed. 2 Latham v. Humphrey, Cro. Eliz. 890, ace. ; Lewis v. Cawardly, Cro. Jac. 312, contra. See Lawrence v. Woodward, Cro. Car. 277 ; Gold v. Bobbins, Yelv. 145. — Ed. 41 642 CROFORD V. BLISSE. [CHAP. IX, ment that the words were not actionable. The words were these, spoken by the defendant of the plaintiff: " Thou art a roguish knave and a thief." Cur. Notwithstanding this be spoken in the adjective sense, yet the word (thief) here is a distinct word by itself, and scan- dalous, and so these words, as they are spoken, are scandalous and actionable; and so by the rule of the court judgment was given, and so entered for the plaintiff. 1 CROFORD v. BLISSE. In the King's Bench, Michaelmas Teem, 1613. [Reported in 2 Bulslrode, 150.] In an action upon the case for words, by the defendant spoken of the plaintiff to another, who first said unto him, "If it had not been for such a man's oath" (meaning, the plaintiff) "at such a court baron, I had not been cast ; " upon this, the defendant said unto him, " I marvel that you, being a wise man, will marry your daughter to such a for- sworn man " (meaning the plaintiff). For these words an action brought, and upon non culp. pleaded, a verdict was found for the plaintiff. Thomas Crew moved the court in arrest of judgment, that these words were not actionable ; the rule and difference in law in such cases is this : if one calls another a perjured man, these words are actionable, and it shall be intended that the same was in a court of justice, and to have a necessary reference unto this; but for these words, "forsworn fellow," no action lies ; but if these had reference to a judicial court, they are then held to be actionable, and this is the general difference in law touching these and the like words. But it doth not appear by any thing that is showed that there was any cause to keep a court baron, and if no court, then it is no other but to call one generally a forsworn fellow. Here it is said, in curia baronis socm domini regis, apud Sommercotes, and doth not say, apud socam prcedictam. Coke. C. J. This is not good ; for swearing, in a court amounts unto perjury; but there, if he forswear himself in a matter not material, he is not to be punished for perjury, because in a matter impertinent to the issue; 1 Painter v. Warn, 2 Bulst. 141 ; Norman's Case, Gold. 56 ; Gold v. Robins, Yelv. 145 ; Brown v. Worsley, Cro. Eliz. 282 ; Steeneman v. Richardson, 2 Bulst. 145 ; Par- ret v. Parret, 3 Bulst. 303 ; Anon., Hutt. 110 ; Gardner v. Atwater, Say. 265 ; Char- nel's Case, Cro. Eliz. 279 ; Stamp v. White, Cro. Jac. 600 ; Waineright v. Whitly, Sty. 115; Yearworth o. Pierce, Aleyn, 81; Wetherly v. Wills, Winch, 6; Fleming v. Jales, 2 Brownl. 280, ace. ; Brugis v. Warenford, Dy. 75, pi. 21; Wheeler v. Apple- ton, Godb. 389, contra. — Ed. SECT. III.] STEWARD V. BISHOP. 643 and so no party is by this grieved, and therefore he which will have benefit by an action for slanderous words for perjury (saying that he was perjured), he ought certainly to show this to be in a court, and in a matter pertinent to the issue ; also, if the words were, that he was forsworn, dando evidentiam ad exitum, this is good ; and so if in a judicial court forsworn, this doth amount unto perjury; but if no court, then the same is coram non judice ; and so, because it was not here certainly laid to be within the Soake, the court was all clear of opinion that the same was not good. Coke, C. J. Non refert quid notum sit judicii, si totum non sit in forma judicii, as Bracton observeth ; and so the whole court was clear of opinion that the decla- ration here was not good, and therefore the rule of the court was quod querens nil capiat per billam. 1 STEWARD v. BISHOP. In the King's Bench, Trinity Teem, 1616. [Reported in Hobart, 177.] James Steward brought an action of the case against Bishop, for saying of him, "James Steward, innuendo, &c, is in Warwick gaol for stealing of a mare and other beasts ; " and after a verdict for the plaintiff upon divers motions in arrest of judgment, the whole court gave opinion seriatim, that the words would not bear action ; for they do not affirm directly that he did steal the beasts, as if he had said that he stole them and was in gaol for it ; but they do only make report of his imprisonment, and the supposed reason of it ; and it may very well be that the warrant or mittimus was for stealing expressly, and it is the common form of making of the calendars of the prisoners for the justices of assize, or the like. 1 Skinner v. Trobe, Cro. Jac. 190 ; Hall v. Montgomery, 8 Ala. 510 ; Mahan ». Berry, 5 Mo. 21 ; "Ward v. Clark, 2 Johns. 10 ; Muchler v. Mulhollen, Hill & D. 263 ; Bullock v. Koon, 9 Cow. 30 ; Bullock u. Koon, 4 Wend. 531 ; Boling v. Luther, 2 Tayl. 202 ; Sluder v. Wilson, 10 Ired. 92 ; Power v. Miller, 2 McCord, 220 ; Dal- rymple v. Lofton, 2 McMull. 112; Dalrymple v. Lofton, 2 Speer, 588; Sanderson v. Hubbard, 14 Vt. 462, ace. See also Shaw v. Tompson, Cro. Eliz. 609 ; Pierce v. Howe, 1 Leon. 131 ; Commons v. "Walters, 1 Port. 377 ; Clark v. Ellis, 2 Blackf. 8; Weston v. Lumley, 33 Ind. 486; Hamilton v. Dent, Hayw. (N. Car.) 117; Morgan v. Livingston, 2 Rich. 573 ; Gibbons v. Tarter, 5 Sneed (Tenn.), 644. Conf. Dalton v. Higgins, 34 Ga. 433 ; Harvey v. Boies, 1 Pen. & W. 12, aec. — Ed. 644 SERLE V. MANDER. [chap. IX. TURNER v. CHAMPION. In the King's Bench, Michaelmas Teem, 1618. [Reported in Crohe's James, 442.] Action for these words : " Thou hast stolen my corn and carried it to market." It was moved in arrest of judgment that the action lav not, for it might be corn growing, and then it is no felony ; and words shall be taken in mitiori sesfisu. Sed non allocatur ; for it shall be intended, according to the com- mon sense, corn in the barn, not in sheaves, whereof a quantity cannot be taken and carried to market. Wherefore it was adjudged for the plaintiff. 1 SERLE v. MANDER. In the King's Bench, Hilaet Teem, 1619. [Reported in Popham, 150.] Seele brought an action upon the case against Mander for these words, to wit, " I arrest you upon felony ; " and after verdict for the plaintiff it was moved in arrest of judgment by Richardson that the words were not actionable, for he doth not say that the plaintiff had committed felony ; but it was resolved by the court, and so adjudged, that the action lieth. 2 1 Smith v. Ward, Cro. Jac. 674 ; Gibbs v. Dunn, Sty. 135 ; Aris v. Higgins, Hurt. 65 ; Male v. Ket, 1 Brownl. 2 ; Dr. Sybthorp's Case, Cro. Car. 417 ; Kellan v. Man- esby, Cro. Jac. 39 ; Petty v. Waight, 1 Bulst. 173 ; Anon., Cro. Eliz. 363; Barton v. Holmes, 16 Iowa, 252; Hume v. Arrasmith, 1 Bibb, 165; Wheatley v. Wallis, S Har. & J. 1 ; Johnson v. Dicken, 25 Mo. 580 ; Maybee v. Fisk, 42 Barb. 326, ace. Conf. Welsh v. Eakle, 7 J. J. Marsh. 424; Stitzell ». Reynolds, 67 Pa. 54.— Ed. 2 Smith v. Hogshead, W. Jones, 302; Tempest v. Chambers, 1 Stark. 67; Blizard v. Kelly, 2 B. & C. 283 ; Hill v. Miles, 9 K. H. 9, ace ; King v. Merrick, Poph. 210; Poland v. Mason, Hob. 305, 326, contra. Conf. Harrison v. King, 7 Taunt. 431. —Ed. SECT. III.] WILLIAMS V. BICKEBTON. 645 FOSTER v. BROWNING. In the Common Pleas, Hilary Term, 1623. [Reported in Croke's James, 688.1 Action for these words : " Thou art as arrant a thief as any is in England ; for thou hath broken up J. S.'s chest, and taken away forty pounds.'' After verdict it was moved in arrest of judgment, because he doth not aver that there was any thief in England, and the last words do not import any felony; for he showeth not that he stole any money, or robbed him of any money. And therefore all the justices held that the action lay not ; for it is not to be maintained by intendment, but by express words ; for the first words without an averment will not maintain an action. And the words do not prove any felony to be committed ; for the money may be taken away, and the chest broken open upon pretence of title, and in the mid-day, and presence of divers ; and then it is not any felony. Hobart, C. J., put the case : if one saith, " Thou art a thief, for thou hast taken away my corn," action lies not ; for the taking may be law- ful. But if he had said, " For thou hast stolen my corn," action lies ; for it shall be intended corn threshed, and not in the sheaves. Wherefore it was adjudged for the defendant. 1 WILLIAMS v. BICKERTON. In the Common Pleas, Michaelmas Term, 1627. [Reported in Hetley, 03.] Williams brought an action upon the case against Bickerton for saying, " He hath forsworn himself, and I'll teach him the price of an oath, for I will have his ears cropt." And it seemed that it lay ; for although it was not said at the beginning where it was that he forswore himself, yet by the circumstance it shows that he was in such a place, for which it was punishable. And M. 29, 30 Eliz., Dantsley's Case. "Thou art a pillory knave; remember that thou hast deserved the pillory;" and the action maintainable. And the plaintiff paid the box for his judgment. 2 1 Wittam's Case, Noy, 116 ; Sparham v. Pye, Cro. Jac. 530; Thompson v. Knott, Yelv. 144 ; Upton v. Pinfold, Com 267 ; Dacey v. Clinch, 1 Sid. 53 ; Ratcliffe v. Slm- brey, Cro. Eliz. 224; Heake v. Moulton, Yelv. 90; Bush v. Smith, T. Jones, 157, ace. — Ed. i Ireland v. Goodale, Cro. Elis T30 ; Crone v. Angell, 14 Mich. 340 ; Pelton v. 646 CEELY V. HOSKINS. [CHAP. IX. CEELY v. HOSKINS. In the King's Bench, Hilaet Teem, 1637. [Reported in Crake's Charles, 509.] Error of a judgment in the Common Pleas in an action for these words : " Thou art forsworn in a court of record, and that I will prove." After verdict, upon not guilty, and found for the plaintiff, the defend- ant there moving that these words were not actionable, and judgment being there given for the defendant, a writ of error was brought and assigned in point of judgment. Roixe, for the plaintiff in error, moved to have the judgment reversed, because the words are very slanderous, and as much as if he had said, "He was a perjured person." But Maynard, for the defendant in error, said that it had been much debated in the Common Pleas, and the court there agreed that the action would not lie ; and he conceived the reason to be because he did not say in what court of record he was forsworn, nor that he was forsworn in giving any evidence to any jury; and it may be that he intended only that he was forsworn, not judicially, but in ordinary dis- course in some court of record. But Jones, Berkley, and myself held clearly that the action well lay ; and such foreign intendment as Maynard pretended shall not be conceived ; and it shall be taken that he spake these words maliciously, accusing him of perjury, and for a false oath taken judicially upon judicial proceedings in a court of record, and shall be understood according to the common speech and usual intendment : as to say such a one is " a murderer" (not speaking whom he murdered, or when), an action lies ; and it shall not be intended that he was a murderer of hares, unless such foreign intendment be discovered or shown in plead- ing. Wherefore they all held that the judgment is erroneous ; but because Brampston was absent, they would advise. And afterwards the judgment was reversed, and the plaintiff recovered. 1 "Ward, 3 Caines, 73 ; Gilman v. Lowell, 8 Wend. 573 ; Rundell v. Butler, 7 Barb. 260 ; Phincle v. Vaughan, 12 Barb. 215 ; Thompson v. Lusk, 2 Watts, 17, ace. — Ed i "Wyld v. Cookman, Cro. Eliz. 492 ; Marshal v. Dean, Cro. Eliz. 720 ; Broake v, Doughty, 1 Leon. 127 ; Heard v. Reed, Sty. 335 ; Jones v. Ballard, Godb. 444 ; An- onymous, Cro. Car. 337 ; Brumrigg v. Hanger, Hardr. 151 ; Coombs v. Rose, 8 Blackf. 155, ace. ; Ramey v. Thornberry, 7 B. Mon. 475 ; Dedway ». Powell, 4 Bush, 77 Powle v. Robbins, 12 Mass. 498; Perselly v. Bacon, 20 Mo. 330; Cole o. Grant, S Harr. (N. J.) 327 ; Kern v. Towsley, 51 Barb. 385; Spooner v. Keeler, 51 N. Y. 527 Hamilton v. Dent, Hayw. (N. Car.) 117 ; Rineheardt v. Potts, 7 Ired. 403; Bricker v. Potts, 12 Pa. 200. Conf. Cass v. Anderson, 33 Vt. 182. —Ed. SECT. ITI."] NEWTON V. MASTERS. 647 ERING v. STREETE. In the King's Bench, Hilary Teem, 1665. [Reported in 1 Levinz, 166.] Case for saying to the plaintiff, " Thou hast stole as much lead out of my master's house as is as big as a house;" moved in arrest of judg- ment, that it might be lead fixed to the freehold ; like the case in Croke, 1 " Thou hast stolen iron bars out of my master's windows," intended to be the iron bars fixed, and here it might be the covering of the house. But by the court, it might have been so intended, if the words had been " stole off my master's house ; " but the words being " out of my master's house," it shall be intended lead there lying. ANONYMOUS. In the King's Bench, Eastee Teem, 1676. [Reported in Freeman, 277.] " Thou hast picked my pocket," without it be said, " feloniously," or " I will hang thee," or some such subsequent explanation, not action- able ; for, as Wylde said, it is a common saying, " The lawyers have picked my pocket." 1 Roll. 68, 73. 2 NEWTON v. MASTERS. In the Common Pleas, Michaelmas Teem, 1678. [Reported in 2 Levinz, 233.] Case by Baron and Feme for saying of the wife, she is a strumpet and a bawd, and kept a bawdy-house. After verdict for the plaintiff, it was moved in arrest of judgment that none of these words are action- able save the last, scil., she kept a bawdy-house, and they are spoke in the preter tense, and so it may be intended that she kept a bawdy- house before the general pardon. But per curiam. The scandal 1 Powell v. Hutchins, Cro. Jac. 204. —Ed. 2 Bradshaw v. "Walker, Hob. 249; Mason v. Thompson, Hutt. 38; Poland u. Mason, Hob. 305, 326; Stent v. , Sty. 127; Watts v. Rymea, 1 Vent. 213; Dromant v. Westofer, Yelv. 136, contra. See Russell v. Wilson, 7 B. Mon. 261. — Ed. 648 SOMERS V. HOUSE. t [CHAP. IX. remains, and it shall not be intended of keeping a bawdy-house before the pardon, unless it fully appears it was the meaning of the party, and that he so intended. 1 GURNETH v. DERRY. In the Common Pleas, Eastee Teem, 1684. f Reported in 3 Levinz, 166.] Case for saying, " Thou art a forsworn man, and didst take a false oath against me before Justice Scawen," innuendo, John Scawen, a justice of peace; and after verdict for the plaintiff, judgment was stayed ; for, by the whole court, though to say that one is forsworn- before a justice of peace is actionable, yet here it does not appear that Scaweu was a justice of peace, except by the innuendo, which is not sufficient : Rutliche's Case ; * and it may be the name of a man is Jus- tice Scawen. SOMERS v. HOUSE. In the King's Bench, Michaelmas Teem, 1693. [Reported in Skinner, 364.] " You are a rogue, and broke open a house at Oxford, and your grand- father was forced to bring over £30 to make up the breach." After a verdict for the plaintiff, it was moved in arrest of judgment, because " rogue " is not actionable, and breaking open the house was but a tres- pass, and making up the breach might be repairing. But the court seemed e contra; for, upon all the words together, a man who heard them could not intend other than that he meant a felonious breaking of the house ; for the breaking as a trespasser could not make him a rogue. And though in the old books the rule was to take the words in mitiori sensu, yet, per Holt, C. J., they would give a favor to words, and would give a satisfaction to them who are hurt in their reputation, and would take words in a common sense according to the vulgar intendment of J T. B. 27 H. Vin. fol. 14, pi. 4 ; 1 Roll. Abr. 44, pi. 8 ; Simpson v. Brook, 1 Bulst. 1S8; Chambers v. Ryley, March, 212; Garland c. Yarrow, Sty. 322, 326; Grove ». Hart, Say. 33 ; Huckle v. Reynolds, 7 C. B. n. b. 114 ; Martin v. Stillwell, 13 Johns. 275 ; Wright v. Paige, 3 Keyes, 581, ace. See Gavell v. Burket, 1 Vent. 53 ; Brayne v. Cooper, 5 M. & W. 249 ; Dodge v. Lacey, 2 Ind. 212 ; Peterson v. Sentman, 37 Md. 140 ; Eaton v. White, 2 Pinn. 42 ; Anon., Cro. El. 643, contra. Conf. Hobson v, Blackwel, 2 Sid. 15; Pitts v. Pace, 7 Jones, (N. Ca.) 558.— Ed. * 2 4 Coke, 17. SECT. III.] BAKER V. PIERCE. 649 the by-standers; and the rule de mitiori sensu is to be understood where the words in their natural import are doubtful, and equally to be understood in the one sense as well as the other; and after it was ad- judged for the plaintiff; for the breaking of a house is felony without clergy, by the Statute of 1 Edw. VI. 13, par. 10, and it is in a common acceptation to be understood of such a breaking which is felony. 1 BAKER v. PIERCE. In the Queen's Bench, Trinity Teem, 1703. [Reported in 2 Lord Raymond, 959.] In an action on the case for words, " John Baker stole my boxwood, and I will prove it." After a verdict for the plaintiff, Serjeant Darnall moved in arrest of judgment that those words are not actionable, for they shall be taken to mean wood growing or the like, whereof only a trespass can be committed. So' to say, " You are a thief, and have stolen my timber, or my apples, or my hops," is not actionable. For where words may import either a felony or a trespass, they shall be taken in the mildest sense, unless there be other words to determine them in the worst sense. As to say, "He stole my timber out of my yard, or my hops in a bag." Clerk v. Gilbert ; 2 Herbert v. Angell. 3 So Mason v. Thompson. 4 ' " I charge thee with felony for taking forth from J. D.'s pocket and I will prove it ; " the words were held not to be actionable, because it should not be intended to mean a felony, not being directly affirmed. [But Holt, C. J., and the court denied that ease to be law, for the taking out of a man's pocket must be intended a felonious taking.] In this case the words may be taken to mean boxwood growing; and although the defendant might mean them in the worst sense, yet the intent of the speaker shall not make the words actionable unless the words express it sufficiently. Suppose the de- fendant had said, " He stole my coppice-wood." Mr. Broderick, for the plaintiff. These words are actionable, and the difference is founded on this rule, Arbor dum erescit, lignum cum orescere nescit, and therefore boxwood in this case must be intended wood cut down, whereof a felony may be committed. Higges v. Austen. 5 " Thou hast stolen as much wood and timber as is worth twenty shillings," adjudged actionable. Short's Case ; 6 1 Roll. Action, 70, n. 47, 48;Lifford v. Stamp;' 2 Cro. 166; Lo and Sanders, 674 ; 8 1 Harris v. Adams, 1 Brownl. 3, contra. — Ed. 2 Hob. 331. 3 Hutton, 113. 4 Hutton, 38. 5 Yelv. 152. 6 Noy, 114. 1 March, 211. 8 Cro. Jac. 116. 650 BAKER V. PIERCE. [CHAP. IS. Smith v. Ward ; l Coote v. Gilbert ; 2 3 Cro. 471. The words in this case, according to common parlance, import a thing of which felony may be committed, and therefore he prayed judgment for the plaintiff. Holt, C. J. I have heard Twisden, J., say, he knew no rule to go by in actions for words. Gould, J. So said my Lord Hale ; for all words stand on a differ- ent bottom. Holt, C. J. In most cases where such words as these have been held actionable, there are other words of an ill sense to explain them; as "I charge you with felony," or "You are a thief." And stealers of coppice-wood are called in common parlance stealers of wood. Powell, J. No action will lie for saying, " You have stole my cop- pice-wood," for that must be intended growing ; but to say generally, " You have stole my wood," that must be intended wood cut down ; and there are many cases founded on the difference in that verse cited by Mr. Broderick. Holt, C. J., agreed the difference. Powell, J. To say, " You are a thief, for you have stolen," or " You are a thief and have stole," must mean both the same. And though it was formerly held that there was a difference between them, yet of late it has been taken otherwise ; for " for " or " and " are explan- atory, and mean both the same thing. Holt, C. J. It has gone both ways. Afterwards the court gave judgment for the plaintiff that the words are actionable, notwithstanding the opinion in 2 Cro. 166, to the con- . trary. And Holt said, Sure the plaintiff must have judgment. It is not worth while to be very learned on this point ; but where words tend to slander a man and take away his reputation, he shall be for supporting actions for them, because it tends to preserve the peace. I remember a story told by Mr. Justice Twisden of a man that had brought an action for scandalous words spoken of him, and upon a motion in arrest of judgment the judgment was arrested; and the plaintiff being in court at that time said, that if he thought he should not have recovered in his action, he would have cut his throat. Pow- ell, J. This case in 2 Cro. 166, cited by my brother DarnalL is so; but the later books are contrary, and I will stick to the latter authori- ties, being grounded on so much reason. Gould, J., said that in the 10 Car. II., Mich, term, it was adjudged that these words, " Thou hast stole my wood," were actionable. 8 l Hob. 77. 2 Sty. 9. s Lo v. Sanders, Cro. Jac. 166 ; Higges v. Austen, Yelv. 152 ; Whitacre v. Hilli- dell, Aleyn, 11 ; Short's Case, Noy, 114; Paulin v. Forde, March, 211; Anon., Sty. 9; Burbank v. Horn, 39 Me. 233 ; Phillips v. Barber, 7 Wend. 439, ace. ; Robins » Hildredon, Cro. Jac. 65 ; Lisard v. Stamp, 2 Bulst. 81, contra. — Ed. SECT. III.] HARRISON V. THORNBOROTJGH. 651 TURNER v. OGDEN. In the Queen's Bench, Hilaet Teem, 1705. [Reported in 2 Salkeld, 696.] " Thou art one of those that stole my Lord Shaftesbury's deer," held not actionable; for though imprisonment be the punishment in those cases, yet, per Holt, C. J., it is not a scandalous punishment. A man may be fined and imprisoned in trespass ; for there must not only be imprisonment, but an infamous punishment ; it is true, calling " papist " has been held actionable, but that was only in respect of the times. 1 HARRISON v. THORNBOROTJGH. In the Queen's Bench, Hilaet Teem, 1714. [Reported in Gilbert, 114.] In an action for words, the plaintiff declared that whereas he was a dyer, and there was a suit depending between him and B., and a trial was had, at which one Bell was a witness, and the defendant tiel jour et anrH quoddam colloquium habeus cum quodam Hugone Raio, of the trial and Bell's evidence, and of the plaintiff, said these words, viz., "Harrison got a poor fellow, Bell, to forswear himself" {innuendo at the trial, et tunc alloquendo prce/at' Hug 1 Haw), " you or he" (innuendo quer 1 ) "hired him" (innuendo Bell) "to forswear him- self." 2 Verdict for the plaintiff. Mr. Solicitor and Mr. Lutwyche moved in arrest of judgment, that the action did not lie, that the words, " Harrison got a poor fellow to forswear himself," does not import a charge of subornation ; for though it was alleged that they were spoke with relation to the evidence he gave at the trial, yet it was not shown that that evidence was material ; and if he did forswear himself in an immaterial matter, that would not be perjury in him, and consequently not subornation in the plaintiff ; but they insist that if these words taken by themselves would be actionable, yet the subsequent words (which appear to be spoken at the same time) had rendered them wholly uncertain. "You or he hired him," this explains the first words, and reduces them to this: "You or Harrison got a poor fellow to forswear himself," which 1 See Onslnw v. Home, 3 Wila. 186, per Lord De Grey. Conf. Barnabas v. Traun- ter, 1 Vin. Abr. 396, pi. 15. —Ed. 2 Only so much of the case is given as relates to the first count. — Ed. 652 JONES V. HERNE. [CHAP. l£ is so uncertain, that it cannot be a scandal upon either. Roll. Lib. 81 ; 3 Cro. 497 ; Carter, 55. But the court held that the first exception to the first count was only an exception to the form of laying the slander, that the speaker had not alleged the charge with such precise certainty as it ought to have been in an indictment, which was a rule they would never admit ; that as to the words, " you or he hired him," they were a distinct slan- der, and only related to the payment of money, which was not material, and could not render the first words uncertain. Per curiam, judgment for plaintiff , DAVIS v. MILLER. Ik the King's Bench, Tbinity Teem, 1741 oe 1742. [Reported in 2 Strange, 1169.] These words, "You cheated the lawyer of his linen, and stood bawd to your daughter, to make it up with him ; you cheat everybody; you cheated me of a sheet ; you cheated Mr. Saunders, and I will let him know it," — were held not actionable, without a colloquium of the plaintiff's trade or profession. 1 JONES v. HERNE. In the Common Pleas, Easteb Teem, 1759. [Reported in 2 Wilson, 87.] Action of slander for these words, viz., " You " (meaning the plain- tiff) " are a rogue, and I " (meaning the defendant) " will prove you a rogue, for you forged my name." No special damage was laid in the declaration ; there was a verdict for the plaintiff upon not guilty ; and it was now moved by Nitres, Serjt., in arrest of judgment, that these words are not actionable, to prove which he cited 3 Leon. 231, pi. 313, where the words, " Thou hast forged my hand," were held not action- able. But, per totam curiam, the saying a man is a forger, or has 1 Anon., Dall. 45, 35; Anon., Moore, 29; George's Case, Cro. Eliz. 95; Somers- tailer v. , Gold. 125. 12 ; v. Gilbert, Ow. 47 ; Middlemore's Case, 3 Leon. 17 ; Gittings v. Redserye, Hutt. 13 ; Walcot v. Hind, Hutt. 14; Ludwell v. Hole, Stra. 696; Bellamy v. Barker, Stra. 304; Osborn v. Poole, Ld. Ray. 236; Welden v. Johnson, 1 Sid. 48; Tiverton v. , W. Jones, 308; Killiek v. Barnes, 2 Bulst, 138 ; Hopton v. Baker, 2 Bulst. 228; Tut v. Kerton, 1 Bulst. 172, ace.; Anon., Dal!. 43. 26, contra. — Ed. SECT. III.] BEATOR V. HIDES. 653 forged one's hand, is actionable ; and they overruled this 'case in 3 Leon. Willes, C. J., also said that, if it was now res Integra, he should hold that calling a man a rogue, or a woman a whore, in public company, were actionable. Judgment for the plaintiff. 1 BEAVOR v. HIDES. In the Common Pleas, Eastee Teem, 1766. [Reported in 2 Wilson, 300.] Action for scandalous words. Five sets were laid in the declara- tion, and upon the general issue there was a general verdict for the plaintiff upon the whole declaration. One of the sets of words were these, viz., "He" (meaning the plaintiff) "was put into the round- house for stealing ducks at Crowland," which were alleged to be spoken of the plaintiff by the defendant falsely and maliciously. And it was moved in arrest of judgment that the words were not actionable, for the defendant doth not say expressly that he stole the ducks, like the case in Cro. Eliz. 234. " I have served thee with the Queen's letter for stealing ducks in my mother's house," were held not actionable. " Thou art a false knave ; thou wast arraigned for two bullocks," held not actionable. Cro. Eliz. 279. And it was said if the words had been, " Thou art a false knave, thou wast arraigned for stealing two bullocks," these words would not have been actionable, for a man may be arraigned for felony, and yet no felon. " James Steward is in War- wick jail for stealing a mare and other beasts ; " after verdict the whole court gave their opinion seriatim that these words would not bear an ac- tion, for they do not affirm directly that he did steal the beasts. Hob. 177. In answer, it was said for the plaintiff that these words are alleged to be falsely and maliciously spoken of the plaintiff by the defendant, and the jury have found that they were so maliciously and falsely spoken, like the case in Cro. Car. 263. " He was arraigned at War- 1 Twaites v. Shaw, Gilb. 246; Sale v. Marsh, Cro. El. 178; Anstie v. Mason, Cro. El. 554 ; Goodale v. Castle, Cro. El. 554 ; Reynolds u. Briton, T. Ray. 4 ; "Wade v. Buzzard, Cro. El. 607; Stone v. Smalcombe, Cro. Jac. 648; Andrews v. Bird, Hetl. 31; Morse v. Read, Ow. 47; Reynill u. Saekfield, 2 Bulst. 132; Baal v. Bag- gerly, W. Jones, 325; Motley v. Slaney, 1 Keb. 273 ; "Wiltshire v. , Yelv. 146 ; Nicholls v. Hayes, 13 Conn. 155; Atkinson v. Reding, 5 Blackf. 39; Drummond v. Leslie, 5 Blackf. 453 ; Hotchkiss v. Olmsstead, 37 Ind. 74 ; Arnold v. Cost, 3 G. & J. 219; Gay v. Homer, 13 Pick. 535 ; Gorham v. Ives, 2 Wend. 534 ; Harmon v. Carring- ton, 8 Wend. 488 ; Alexander v. Alexander, 9 Wend. 141 ; Dorland v. Patterson, 23 Wend. 422 ; Ricks v. Cooper, 3 Hawks, 587, ace. Conf. Feise v. Linder, 3 B. & P. 872; Mills v. Taylor, 3 Bibb, 469 ; Jackson v. "Weisyer, 2 B. Mon. 214; Atkinson v. Scammon, 22 N. H. 40; Andrews v. Woodmansee, 15 Wend. 232; Pearis v. Harrah, Tapp.254. — E». 654 BEATOE V. HIDES. [CHAP. IX. wick for Stealing of twelve hogs, and if he had not made good friends, it had gone hard with him ; " ubi re vera he never was arraigned for felony. After a verdict these words were held to be actionable, being laid to be spoken falsely and maliciously. " Thou art a clipper, and thy neck shall pay for it," after a verdict, held actionable, though the word " clipper " be ambiguous. Skin. 183. " You are a rogue, and broke open a house at Oxford, and your grandfather was forced to bring over £30 to make up the breach," held actionable, though the word " rogue " is not, and breaking opeD a house is only a trespass. Skin. 364. " He was sent to prison for running wool," held to be actionable by Lee, C. J., at Guildhall. " He was whipped about Taunton Castle for steal- ing sheep," were held actionable. 1 Roll. Abr. 50, ph 9. This motion in arrest of judgment was made in Michaelmas term last, when the court thought the cases cited for the defendant were in point, that these words are not actionable. Loed Camden said, If we should judge these words actionable, many actions would arise at every assizes in the kingdom, where the common topic of conversation is that such a man was sent to jail for such a crime, and such a one was arraigned and tried, &c, and if such words are true, where is the slander saying " a man was whipt," if the words are true, is no slander. Bathurst, J., also inclined to think the words were not actionable, but thought that if this particular set of words were not proved at the trial, the postea (upon the judge's certificate that they were not proved) migrht be amended, and a verdict for the defendant entered as to this set of words, if any precedent for it could be found ; for, he said, if they were not proved, the plaintiff ought not to have had a verdict upon them; but if this cannot be done, he thought the cases cited for the defendant so strongly in point that the court were bound by them. Gould, J., was of the same opinion, and said the case in Hob. 177, was so strong for the defendant, and so solemnly determined, that he could not well go over it. Loed Camden, in answer to Mr. Justice Bathtjest, said it would be very dangerous, after a verdict of twelve men recorded by the court, to refer to the judge's notes, in order to alter it; and he thought there was no precedent of such a case, and that a verdict cannot be varied. And the court at this time pronounced that the judgment must be arrested, unless cause the last day of the term (Hilary term last). But at that day they adjourned it for further consideration ; and after hav* ing taken time till this term, the court changed their opinion, and gave judgment for the plaintiff, that the words were actionable. Loed Camden. Upon considering this case more fully, we are now all of opinion that these words, being laid in the declaration to be spoken ' falsely and maliciously of the defendant, are actionable; we must take BECT. III.] OLDHAM V. PEAKE. ' 655 it upon this record that the plaintiff was really not put in the round- house or imprisoned for stealing of ducks, because the jury have found that the words were falsely spoken ; the words clearly import that the plaintiff had been guilty of a crime, and, if the fact had been true, the defendant might and ought to have justified ; if we should arrest the judgment, the malevolent would think the plaintiff had been guilty of the crime falsely imputed to him, and the good-natured could not help suspecting him to have been so. We lay great stress upon the word "false ; " if words are true, they are no slander, but may be justified. The objection here is that the words do not expressly allege that the plain- tiff stole ducks; but words are to be taken according to the common parlance, and to be spoken in the worst sense, according to the common understanding of the by-standers. Cro. Jac. 154 " I know what I am, I know what Snell is, I never buggered a mare," it was objected these words were not actionable, for they do not charge the plaintiff with buggery ; but the court said they implied a charge of buggery, and gave judgment for the plaintiff. 2 Lev. 150. The words in the present case must be taken to be false, and to throw a stain upon the plaintiff's character. Judgment for the plaintiff per totam curiam. 1 OLDHAM v. PEAKE. In the Common Pleas, Michaelmas Tekm, 1774. [Reported in 2 Blackstone, 959.] Action for words. The plaintiff declares that, on a colloquium con- cerning the death of one Daniel Dolly, the defendant said to the plain- tiff, " You are a bad man, and I am thoroughly convinced that you are guilty " (meaning of the murder of the said Dolly), " and rather than you should want a hangman, I would be your executioner." And being told the words were actionable, and being asked how he could prove what he said, he answered, " I will prove it by Mrs. Harvey." 2. " You are a bad man, and I am thoroughly convinced that you are guilty " (innuendo as before), " and rather than you should want a hangman, I would be your executioner." Being asked how he could prove the plaintiff guilty of the murder, he said, " I can prove it by Mrs. Harvey." 1 Roll. Abr. 50, pi. 9, ace. ; Nuttal v. Page, T. Ray. 17 ; Halley v. Stanton, Cro. Car. 268 ; Heynes v. Sprot, Cro. Jac. 247 ; Showel v. Haman, Cro. Jac. 154 ; Gainford v. Tuke, Cro. Jac. 536 ; Anon., Moor, 866 ; Willymote v. "Wetton, Cro. Eliz. 904 j Carpenter v. Tarrant, Cas. temp. Hard. 339 ; Searle v. Maunder, 2 Rolle, R. 141 ; Royal v. Peckham, Cro. Eliz. 786 ; Brown v. Audley, Yelv. 68; Snell v. Webling, 2 Lev. 100; Rcdfern w.,.Todd, Cro EJiz. 589. — Ed. 656 OLDHAM V. PEAKE. [CHAP. IX. 3. "You are guilty" (innuendo as before), " and I will prove it." 4 "I am thoroughly convinced that you are guilty " {innuendo, of the death of the said Dolly), " and rather than you should go without a hangman, I would hang you." 5. " You are guilty " {innuendo, of the murder of the said Dolly). By reason whereof, and to clear his character, the plaintiff was obliged to procure, and did procure, an inquest, in due form of law, to be taken on the body of the said Daniel Dolly. On not guilty pleaded, the jury found a general verdict on all the counts for the plaintiff, with considerable damages. Glyn, Walker, and Grose moved in arrest of judgment that none of the words were actionable in themselves without special damages assigned, and that the special damage here assigned was not sufficient to maintain the action. Davy, Sill, and Adair showed for cause that every one of the counts contained matter actionable. " Guilty of the death," implies such a death as is effected by guilt. '• Thou hast killed a man," or " killed thy wife," held actionable. Godfrey v. Moor ; 1 Talbot v. Case ; Wilner v. Hold; 3 1 Roll. Abr. 77, pi. 2, 3, s. p. " I am thoroughly convinced " is a direct assertion. It affects a man's character, " I am persuaded in my conscience, " held actionable. Syden- ham v. Man ; ° 1 Roll. Abr. 79. "I think." Cro. Eliz. 348. "I dreamt it," held actionable in Scan. Mag. " For aught I know." Sty]. 142. It is objected that the innuendo of murder is overstrained, there be- ing no colloquium laid of murder, but only of the death. But if words are actionable in themselves, the impertinence of an innuendo will not vitiate the action. 3 Bulst. 227. But here the innuendo is warranto ble from the colloquium. In support of the rule they relied on Miller v. Buckdon. 4 "You was the cause of the death of Dowland's child, and I will swear it on a book ; " not actionable, being too general. It was also said to be suffi- cient, if any one count cannot be supported ; and the fifth cannot, being only, " You are guilty ; " and the rest supplied by an innuendo, which introduces new matter, and does not apply to the colloquium. Gould and Blackstone, JJ. (absentibus De Geey, C. J., and Naees, J.), were of opinion that this declaration would support the action. If the fourth and fifth counts can be supported, all the rest certainly may, these being the weakest of any. 1st. As to the certainty of the charge. I am thoroughly convinced is equal to a positive averment ; for a man only avers a thing because he is convinced of the truth of it. 2d. Death must be understood to mean murder, because it is such a death as the plaintiff might be liable 1 Cro. Eliz. 317. 2 Cro. Car. 489. ' Cro. Jac. 407. « * 2 Bulst. 10. SECT. HI-] COUffAN V. GODWIN. 657 to be hanged for. By the statute of the 3 Edw. I. st. 1, persons taken for the death of a man are not bailable. So in Christian v. Adams, 1 " He did conspire the death of I. S.," held actionable. As to Miller v. Buck- den, " Thou wast the cause of the death," very different from, " Thou art guilty of the death ; " for a man may be an innocent cause. 3d. The in- nuendo of murder is warrantable, though the colloquium is laid to be of the death. Death is the genus, and murder the species. When the conversation was of the death of Dolly, and the defendant says the plaintiff is guilty of it, he must mean such a species of death as would infer guilt. Murder is such a species. It is not, therefore, contradic- tory, but explanatory ; not introductory of new matter, but ascertain- ing the meaning of the old, and limiting the general word " death " to one particular species of it, — murder. The innuendo is therefore sufficiently regular. Whether it was true or not that such was the defendant's meaning was a fact for the jury to decide upon. They have affirmed it; and it is now too late to object to it. Mule discharged. 3 COLMAN v. GODWIN. In the King's Bench, Mat 4, 1782. [Reported in 3 Douglas, 90.] This was an action for words charging the plaintiff with sodomitical practices. The declaration contained several counts, one of which, reciting that there was a suspicion of one Hooper being guilty of sodomitical practices, stated a colloquium about him and the plaintiff being guilty of such practices, and that in that discourse the defend- ant spoke the following words : " I have seen Colman go into Hooper's house and stay there all night instead of going home to his wife." Innuendo, that the plaintiff had been guilty of sodomitical practices with Hooper. The jury found a verdict for the plaintiff with £500 damages ; and the defendant having moved in arrest of judgment, Lee, 8. G., Wilson, and Piggot, showed cause. It has been long held that the sense of the words is a matter to be left to the jury ; it was properly so left in this case, and they have found that the words were spoken with the meaning attributed to them by the plaintiff. The most innocent words may be spoken in such a manner as to be actionable. The finding of the jury is conclusive, be the words what they may, otherwise there is an end of the office of an innuendo. Wallace, Bearcroft, and Baldwin, contra. The words themselves 1 4 Leon. 64. 2 Affirmed on error to King's Bench, see Cowper, 275. — Ed. 42 658 CHRISTIE V. COWELL. [CHAP. IX. must afford a strong suspicion of the sense put upon them by the innuendo ; and the innuendo will not carry the meaning of the words any further, or render them actionable, when without the innuendo they would not be so. King v. Bowen. 1 Actions of this kind are only maintainable where the words imply a criminal charge ; but no indict- ment would lie for " sodomitical practices." Lord Mansfield. It is objected that the law knows no such crime as sodomitical practices ; but the real question is, whether the words spoken do not, in vulgar parlance, signify an offence which in law is termed an assault with intent to commit sodomy. The colloquium renders this plain. All words depend for their meaning on the subject- matter, and that is to be left to the jury. Willbs, J., of the same opinion. Ashhurst, J. I am of the same opinion. The effect of the words on the hearers is what is to be considered. The determinations in the old books are a disgrace to the law. Buller, J. Could these words bear the meaning that the defendant intended to impute sodomy ? They certainly may. The meaning of the words is to be gathered from the vulgar import, and not from any technical legal sense. Rule discharged. CHRISTIE v. COWELL. At Nisi Pritts, coram Lord Kenton, C. i., Mat 26, 1790. [Reported in Peake, 4.] This was an action for words. The words proved were, "He is a thief, for he has stolen my beer." It appeared in evidence that the defendant was a brewer, and that the plaintiff had lived with him as servant ; in the course of which service he had sold beer to different customers of the defendant, and received money for the same, which he had not duly accounted for. Lord Kenton directed the jury to consider whether these words were spoken in reference to the money received and unaccounted for by the plaintiff, or whether the defendant meant that the plaintiff had actually stolen beer ; for if they referred to the money not accounted for, that being a mere breach of contract, so far explained the word "thief" as to make it not actionable. Thus if a man says to another, " You are a thief, for you ' stole my itree,' " it is not actionable, for it shows he had a trespass and not a felony in his contemplation. The jury found for the defendant. i Hutt. 44. SECT. III.J SAVILE V. JARDINB. 659 SAVILE v. JARDINE. In the Common- Pleas, June 22, 1795. [Reported in 2 Henry Blachstone, 531.] In this action for words the declaration contained five counts. The first, second, and fourth were for words spoken of the plaintiff in his trade or business as an auctioneer, and were clearly actionable. The third and fifth counts, without any colloquium of the plaintiff's trade, stated the words to be, " You are a swindler," and special damage was laid by reason of the speaking, which said several words in the declara- tion, &c. Plea : General issue. Verdict for the plaintiff on the whole declaration, with one shilling damages. A rule having been granted to show cause why the prothonotary should not tax the plaintiff his full costs, though the damages were under 40s. Adair, Serjt, showed cause, insisting that if the words in any one count were in themselves actionable, and the damages were under 40s., the plaintiff was entitled to no more costs than damages, accord- ing to the Stat. 21 Jac. c. 16, § 6, nor would the addition of special damage vary the case. Collier v. Gaillard. 1 Besides, to call a man a swindler is actionable. Clayton, Serjt., in favor of the rule, argued that to call another a swindler was not actionable. The word " swindler " has no definite mean- ing. In common acceptation it only imports cheating, dishonesty, or fraud. It is indeed libellous if written and published. I'anson v. Stuart. 2 But many words are libellous if written that are not action- able if spoken ; such, for instance, as those which tend to make a man ridiculous, or to cause him to be avoided in society as having a noisome disease. Villers v. Monsley. To say to a man, " You are a swindler," is no more than saying, " You are a cheat, or a dishonest person ; " and those words, not applied to an office or trade, are not actionable. Tamlin v. Hamlin ; 8 Todd v. Hastings ; Davis v. Miller. The verdict being general, some damages must be intended to be given on each count, and as the words in the third and fifth counts are not action- able, the damages in respect of those counts were given for the special damage. Eyre, Ld. C. J. If the "swindler "be not actionable, my brother Clayton has established his point. I think it only equivalent to cheat ; it cannot be carried further, and that is not actionable. I cannot well nccount for the decisions that the calling a man a thief is actionable ; » 2 Black. 1062. 2 1 Term Rep. B. E. 748. » 2 Salk. 694. 660 HOLT V. SCHOLEFIELD. [CHAP. IX. but the calling Mm a cheat is not so, unless it be that thief always implies felony, but cheat not always. Bullek, J. The word " cheat " has always been holden not to he actionable, and " swindler" means no more ; when a man is said to be swindled, it means tricked or outwitted. Heath, J., and Rooke, J., of the same opinion. Mule absolute} HOLT v. SCHOLEFIELD. * Ik the King's Bench, Mat 30, 1796. [Reported in 6 Term Reports, 691.] In an action for slander, the declaration stated that the plaintiff was a person of good name, and never was guilty, nor, before the uttering of the words hereinafter mentioned, suspected to have been guilty, of perjury; yet the defendant, maliciously intending to injure the plain- tiffin his good name, and to bring him into public infamy and disgrace, and to subject him to the punishment provided by the laws of this realm against persons guilty of wilful and corrupt perjury, on, &c, spoke and published of and concerning the plaintiff these false, scan- dalous, and malicious words, viz., " Tim Holt " (meaning the plaintiff) " has forsworn himself" (meaning that the plaintiff had committed wilful and corrupt perjury) ; " and I " (meaning the defendant) " have three evidences that will prove it." The second count charged the defendant with uttering these words to another person, of the plaintiff: " Toil know he is perjured." The third count was that he (the plaintiff ) was perjured. The fourth count was, " You " (the plaintiff) " are perjured ; you have forsworn yourself." To which the general issue was pleaded, and the plaintiff obtained a verdict for £50 damages. Topping and Holroyd in the last term obtained a rule calling on the plaintiff to show cause why the judgment should not be arrested for a defect in the first count, contending that as the damages were entire if one count were bad the judgment must be arrested generally. The words in the first count, " he has forsworn himself, and 1 have three witnesses to prove it," are not in themselves actionable, because they do not necessarily imply that the plaintiff had forsworn himself in l Richardson v. Allen, 2 Chitty, 657 ; Wilby v. Elston, 8 C. B. 142; Ford v. John- son, 21 Ga. 399 ; Lucas v. Flinn, 35 Iowa, 9 ; Caldwell v. Abbey, Hardin, 529 ; Winter v. Sumvalt, 3 H. & J. 38 ; Stevenson v. Hayden, 2 Mass. 406 ; Odiorne v. Bacon, 6 Cush. 185 ; Chase v. Whitlock, 3 Hill, 139 ; Weil v. Altenhofen, 26 Wis. 708, ace. ; Marshall v. Addison, 4 H. & McH. 537, contra. — Ed. SECT. III.] HOLT V. SCHOLEPIELD. 661 a judicial proceeding, which alone will constitute the crime of perjury; and the meaning of them cannot be varied by an innuendo, unless with reference to some colloquium (which is not here stated) from whence it might appear that the words were spoken concerning some judicial proceeding that had before taken place in which the plaintiff had given testimony, and which ought to have been averred in order to warrant the innuendo. And they cited 1 Roll. Abr. 39 ; 3 Inst. 166 ; 4 Co. 17 b ; Hardr. 151 ; 3 Lev. 166 ; 2 Bulst. 140 j Cowp. 684. ErsMne, Bayley, and F. Vaughan now showed cause against the rule. The obvious and known meaning of the word " forsworn " is an imputation of perjury upon the party concerning whom it is spoken ; and such is the sense in which it is explained not only in Johnson's Dictionary, but in a case expressly adjudged upon the subject of Smale v. Hammon, 1 where the words were, " Thou wert forsworn, and I can. prove thee forsworn when I will ; " which were held actionable upon a motion in arrest of judgment, Williams, J., saying that the rule was, that where the words spoken tend to the infamy, discredit, or disgrace of the party, they are actionable. The case of Croford v. Blisse was very different from the present, for the words " forsworn man," applied by the defendant to the plaintiff, were considered by the court as spoken generally of him ; because, although there was a previous colloquium of a cause in a court baron, it did not appear to be such a cause wherein perjury could be committed. Besides, at that period the rule prevailed that words should always be construed in mitiori sensu, which is now exploded. But if a word will bear two different inter- pretations, it may be shown by introductory matter or by innuendo to have been used in the sense imputed to it, according to the principle laid down by De Grey, Ld. C. J., in delivering the opinion of the judges on the case of the Bang v. Home,' in the House of Lords. In the case of a libel, says he, which does not in itself contain the crime without some extrinsic aid, it is necessary that it should be put upon the record by way of introduction, if it be new matter, or by way of innuendo if it be only matter of explanation. And this kind of ex- trinsic matter, he says further, may be introduced upon the record cither by direct averment, or by recitals, or by general inference. Now here there is no new matter necessary to be introduced ; for it must be admitted that if the defendant had charged the plaintiff with be'ng perjured, it would have been sufficient, and the word "forsworn," in its most usual though not necessary sense, meaning the same thing, it is sufficient by way of innuendo to affix that meaning to it. If the jury, on the trial of this case, had not been satisfied of the truth of the 1 1 Bulst. 40,. 2 Cowp. 684. 662 HOLT V. SCHOLEFIELD. [CHAP. IX, innuendo, and that " forsworn " meant wilful and corrupt perjury, they ought to have found a verdict for the defendant. Still stronger is it when that word is coupled with the introductory matter in the first count, where it is stated that the words imputed to the defendant were littered by him with intent to bring the plaintiff into public infamy and disgrace, and to subject him to the punishment provided by the laws of this realm against persons guilty of wilful and corrupt perjury; which could not be, unless the charge were of such a nature of false swearing as comes within the legal definition of perjury. The innu- endo, therefore, does not enlarge the sense of the word spoken, but merely explains and gives it its proper signification. In Oldham v. Peake, the plaintiff declared that on a colloquium concerning the death of one Daniel Dolly, the defendant said to the plaintiff, "I am thoroughly convinced that you are guilty," innuendo, of the murder of the said D. D., which innuendo was held good ; and yet the crime of murder could less easily be afiixed to the sense of the word "death" than the word " forsworn " may mean perjured; and at all events the phrase " guilty of the death " might as well be applied to the crime of manslaughter as to that of murder. But the court there said that the colloquium was not contradictory but explanatory, not introductory of new matter, but ascertaining the meaning of the old; so the same ob- servation will apply with equal force to the innuendo in this case. Secondly, the other counts, and especially the last two, are at all events good; and, therefore, judgment cannot be arrested in toto, according to Grant v. Astle, 1 but there must be a venire de novo; or the verdict may be amended by the judge's notes, and entered up on the good counts. Lord Kenton, C. J. The only case that warrants this mode of declaring is that in 1 Bulstrode ; but that seems to be against the cur- rent of authorities. Either the words themselves must be such as can only be understood in a criminal sense, or it must be shown by a col- loquium in the introductory part that they have that meaning, other- wise they are not actionable. I remember a case here many years ago where the judgment was arrested on an information for a libel on some justices in Suffolk, because there was no averment that the libel was of and concerning the justices in Suffolk. 2 Grose, J. There is a distinction in the books between being per- jured and being forsworn : the former means false-swearing in a judicial proceeding, but the other has not the same meaning. Lawrence, J. The plaintiff wishes us to consider the introductory part of this declaration in the nature of a colloquium / but if that l Dougl. 722. 2 Tid. R. v. Alderton, Say. 20. SECT. Ill .J WOOLNOTH V. MEADOWS. 663 could be done, none of the objections in the books could have pre- vailed, because the same sort of introduction is inserted in almost all the declarations. With regard to the case in 1 Bulstrode, I think that Williams, J., goes too far in saying that words that "tend to the infamy, discredit, or disgrace of the party" are actionable. That rule is too general ; the more correct rule is laid down in Onslow «. Home. 1 " The words must contain an express imputation of some crime liable to punishment, some capital offence, or other infamous crime or mis- demeanor." There is also a case in 1 Sid. 48, that is directly contra- dictory to the case in Bulstrode. And if the words here are not actionable in themselves, their meaning cannot be extended by an innuendo. 4 Co. 17 b. That case is an express authority to show that " forsworn " cannot be explained by an innuendo to mean false swearing in a court of justice. The court were of opinion that there should not be a venire de novo, and that as the damages were entire the judgment must be arrested in Mo? And Lawkence, J., said that the plaintiff ought not to be at liberty to amend by the judge's notes in this case, because the evidence applied as well to the bad as to the good counts. 8 Judgment arrested.* WOOLNOTH v. MEADOWS. In the King's Bench, November 13, 1803. [Reported in 6 East, 463.] In an action on the case for slander, the plaintiff declared, that whereas he had never been guilty nor suspected of the detestable crime of buggery, or of any other such detestable crime, or of any attempt or disposition to commit the same, &c, but had obtained the good opinion of divers subjects, and had been proposed as a volun- teer for the defence of the country at a certain society, &c. ; yet the defendant, knowing the premises, but maliciously intending to injure the plaintiff, and to subject him to the pains and penalties of the law, &c., and to cause it to be believed that he was a person of i 3 Wils. 186. 2 Sed vid. Auger v. "Wilkins, Barnes, 478 ; and Eddowes v. Hopkins, Dougl. 377. 3 Vid. Eddowes v. Hopkins, Dougl. 377. 4 Stanhope v. Blith, 4 Rep. 15 ; Danell's Case, 1 Sid. 48 ; Anon., Cro. Eliz. 609 ; Wyson v. Fenton, Cro. Eliz. 788 ; Hawkes v. Hawkey, 8 East, 427 ; Hall v. Weedon, 8 D. & Ry. 140, ace. ; Morton v. Leedell, 1 Brownl. 4; Smale v. Hammon, 1 Bulst. 40, contra. — Ed. 664 WOOLNOTH t. MEADOWS. [CHAP. IX. unnatural passions, and guilty of the crimes aforesail, or some of them, and to cause him to be rejected as a volunteer by the said society, and to be abhorred and shunned by all mankind, as a per- son unfit for and unworthy of all society, on, &c, in a certain discourse which the defendant had with divers subjects, members of the said society, &c, wrongfully, falsely, and maliciously spoke these false, scandalous, and malicious words of and concerning the plaintiff having been proposed as a volunteer as aforesaid, viz. : " His " (meaning the plaintiff's) " character is infamous. He would be disgraceful to any society. Whoever proposed him must have in- tended it as an insult. I will pursue him and hunt him from all society. If his name is enrolled in the Royal Academy, I will cause it to be erased, and will not leave a stone unturned to publish his shame and infamy ; delicacy forbids me from bringing a direct charge, but it was a male child of nine years old who complained to me" (meaning that a male child of nine years old had complained to the defendant of some unnatural crime committed by the plaintiff upon such male child). And then the plaintiff averred that the words were so uttered and published by the defendant with intent and meaning to convey, and that the same were by the said persons in whose presence they were so uttered and published, understood and believed to convey, a charge against the plaintiff, that he was a person of un- natural passions and appetites, and was capable of committing, and had committed, the abominable crime of buggery, and was thereby rendered infamous, and unworthy of all society, &c. There were sev- eral other counts, laying the same charge in different ways. To this the defendant pleaded, first, the general issue; secondly, as to the words laid in the first count, that before the speaking and publishing them, to wit, on, &c, a certain male child of nine years old, to wit, one A. B., did complain to the defendant of an unnatural crime before that time committed by the defendant upon such male child. And so the defendant justifies speaking the words. To this there was a gen- eral demurrer ; and to this and a third plea to the same count, in sub- stance the same, there were assigned as special causes of demurrer, that the defendant had not justified or answered the special matter of the first count, nor had averred that the complaints in those pleas respec- tively alleged to have been made to the defendant were true, or that the defendant believed the same to be true ; and that the matter of those pleas do not amount to a traverse of the first count, but are con- sistent therewith, &c. ; and that the matters attempted to be put in issue by those pleas are immaterial, &c. The same causes of demurrer ■were assigned to the fifth plea, which contained a similar justification of the words as laid in the other counts of the declaration. And to SECT. III.] WOOLNOTH V. MEADOWS. ' 665 the fourth and sixth pleas, the one applying to the first, and the other to all the counts, alleging, by way of justification, the fact of the plain- tiff's having committed the crime imputed to him as well as the rela- tion of A. B.'s complaint to the defendant before the uttering of the words, the plaintiff replied de injuria sua propria absque tali causa. Scarlett, in support of the demurrer, relied on the authority of the rule in Lord Northampton's Case, recognized in Davis v. Lewis, 1 that if one speak slanderous words, without naming at the same time the person from whom he heard them, he cannot afterwards justify it by naming the original slanderer. The reasons for which are, that, by naming the person at the time, he gives the party injured an action against such slanderer, and is himself a witness to prove it ; and he also does not pledge his own credit to the slander, but merely that of the first relator of it, which so far abates the injurious effect of it. Upon this ground the justifications demurred to, where the name of the original author of the slander is first mentioned, are bad. But further, it would not be enough for the defendant even to name the author if, as in this case, he repeat the slander in such a manner as to signify his own belief of and intention to act upon it. As in Maitland v. Gold- ney, 2 it was considered by Lord Ellenborough that one who repeated slander, after knowing it to be unfounded, could not justify it by having named his author at the time. Bwrrough, contra, contended that the declaration itself was bad, be- cause there was no direct negative of the boy's having made the com- plaint, as in Meggs v. Griffith, 8 which accounts for the question of justification having been there entered into upon the plea of not guilty, which put in issue the fact of the defendant having heard the slander from another before he repeated it. And Crawford v. Middle- ton ' is in point to this, where the plaintiff having declared for slan- derous words charging him with felony, said by the defendant to have been spoken of the plaintiff by a person whom the defendant met on the road, judgment was arrested by the opinion of three judges for want of an averment that in truth nobody had said such words to the defendant ; against the opinion of Twisden, J., who thought that the words being laid to be spoken falsely and maliciously, and so found by the verdict, was a proof that nobody had said so to him. [Lobd Ellenboeough, C. J. The rule in Lord Northampton's Case, con- firmed in Davis v. Lewis, is, that slanderous words can in no case be justified upon the report of another, unless the name of the original slanderer be given at the time.] Those cases only apply where au 1 7 T. R. 17. 2 2 East, 426. 8 Cro. Eliz. 400. * 1 Lev. 82. G66 WOOLNOTH V. MEADOWS. [CHAP. IX. action would lie upon the words against the original speaker. But here no action could have been maintained against the boy upon any words imputed to him. And where words are uncertain in themselves,- as those spoken by the defendant, they cannot be rendered more cer- tain by an innuendo, without first introducing prefatory matter to which they may be applied, as was settled in Rex v. Home. 1 An in- nuendo cannot enlarge the sense, which is attempted to be done, bj introducing under it that the words spoken, which were merely that a male child had complained to the defendant, meant that such male child had complained to the defendant of some unnatural crime. [Lokd Ellenboeough, C. J. Consider the case, then, as if the innu- endo were struck out, and attend to the words themselves, whether, when taken altogether, they do not naturally import a charge of this sort. Geose, J. We must read the words in the same sense as com- mon people who heard would understand them. J The words are certainly abusive ; but they do not in themselves necessarily point to the particular crime, though they might have been shown to have done so by introductory matter. If the plaintiff had been before charged with having been guilty of indecency to a woman, these words would have been equally applicable. Scarlett, in reply, observed, that the opinion of the three judges in Crawford v. Middleton went upon the ground that the defendant might have justified the slanderous words upon the report of another, without naming him at the time, which was contrary to the rule in Lord Northampton's Case, now settled to be law. That from the frequency of actions for slander in former times the judges were accus- tomed to construe the words in mitiori sensu, where they would in strictness admit of different constructions ; but since the case of Baker v. Pierce a more sensible rule has prevailed, namely, to construe words in the sense in which they are commonly understood, as applied to the subject-matter. And Phillips v. Kingston 2 is to the same effect. [Laweence, J. Many of the old cases on slander went to a very absurd length. There is one 8 where the charge was, that the plaintiff " had struck his cook on the head with a cleaver, and cleaved his head ; the one part lay on one shoulder, and another part on the other;" and yet the judgment was arrested after verdict, because it was not directly averred that the cook was killed, but only argumen- tatively. But all those cases have been long set at rest.] Then as to the objection that the words do not point at any certain crime, it is impossible to read them without understanding what sort of crime was l Cowp. 684. 2 1 Vent. 117. * This is the case of Sir T. Holt v. Astgrigg, Cro. Jac. 184. SECT. III.] WOOLNOTH V. MEADOWS. 667 meant to be imputed. The only use of the innuendo was to fix the defendant's intention to be to use the words in the common acceptation of them. The words state that the plaintiff is unfit for all society ; that he is unfit for the society of men ; that the defendant would pub- lish his shame and infamy ; that he was restrained by delicacy from bringing a direct charge, and that the complaint wag made to him by a male child of nine years old. Lokd Ellenboeough, C. J. (after stating the pleadings). The pleas demurred to are bad, because they fall directly within the rule laid clown in Lord Northampton's Case, which was confirmed in the late case of Davis v. Lewis, 1 that in order to enable a defendant to jus- tify slanderous words upon hearsay he must disclose at the time of uttering the slander the name of the person from whom he heard it, and it is not sufficient to name him for the first time by his plea ; the object of which is to give the plaintiff his action in the first in- stance against the original author of the slander. The pleas, then, being out of the way, the question arises upon the sufficiency of the words laid in the declaration to maintain the action. And it is first objected that it should have been averred that nobody had made the complaint stated to the defendant. But that objection is founded upon the sup- position that, if it had been so averred, the defendant would have been let into proof that such complaint had in fact been made to him, and that he could have thereby justified speaking the words. Lord North- ampton's Case, however, is an answer to that. If there had been such an averment, it would have been wholly immaterial to the defend- ant's justification, because he did not name the party at the time from whom he received the complaint. That brings it to the second ques- tion: whether the words spoken, unassisted by the innuendo at the conclusion of them, — which, it must be admitted, can only explain and cannot extend the meaning of the antecedent words, — do in their plain obvious meaning import the charge of any certain crime ; and upon that I think there can be but one opinion. The defendant begins by saying that the plaintiff's character is infamous. That of itself might only import general infamy ; that he would be disgraceful to any society; that whoever proposed him must have intended it as an insult, meaning to the particular society of which he was proposed as a member; that is somewhat stronger, but might still be general. Then he says, he will pursue and hunt him from all society. That shows that he intended to speak of some crime which rendered him unfit for society. Then he says that delicacy forbids him from bringing a direct charge. That points to some sj>ecies of infamy, i 7 Term Eep. 17. 668 WOOLNOTH V. MEADOWS. [CHAP. IX. mixed with the intercourse of the sexes ; and of what nature that was he alludes in a manner not to be mistaken, when he adds that it was a male child of nine years old who complained to him. What else could the defendant mean by these expressions but to charge the plaintiff with some infamous crime which would expel him from all society, and that crime relative to a male child, which delicacy forbade him to make the subject of a direct charge. Applying our under- standing to these words like any common persons, can we give them any other meaning than that which the pleader meant to give them by the innuendo at the conclusion. But it does not stop here, for the count goes on to aver " that the words were so uttered and published by the defendant with intent and meaning to convey, and that the same were by the persons in whose presence they were so uttered understood and believed to convey, a charge of an unnatural crime against the plaintiff." Now, upon a count so framed, the plaintiff must have gone into other proof than that of the mere speaking of the words, and he must have not only shown that the defendant's meaning was to impute a crime of that nature to the plaintiff, but that the words were so understood by the hearers. Therefore, not only upon the words themselves, but followed as they are by the last-mentioned averment, we must take them to have been spoken in the sense im- puted. Geose, J. We are first to consider whether the declaration be bad ; and if that be sufficient, whether the pleas in question be an answer to it. As to the declaration, I agree that the innuendo cannot extend the meaning of the words ; and then the question is, whether the words be in themselves actionable. Now a court of justice must read the words in the same sense in which the hearers would, at the time they were spoken, understand them. When I first read them I had no idea that any serious doubt could be entertained of the sense meant to be conveyed by them ; namely, an imputation of an unnatural crime. I think so still, and therefore must consider the declaration as sufficient. Then as to the sufficiency of the pleas demurred to, I cannot say, under the authority of the late determinations, that those pleas can be sup- ported. The question having been so lately under consideration, it is unnecessary to enlarge upon it ; it is sufficient to say that I adhere to the rule laid down in Maitland v. Goldney, 1 as collected from the former cases, that, in order to justify the repetition of slanderous words spoken by another, the defendant must give a certain cause of action against that other by naming the author of the slander, and giving the very words which he used. 1 2 East, 437. BSCT. III.] WOOLNOTH V. MEADOW3. 669 Lawrence, J. On the authority of Lord Northampton's Case, and the subsequent cases, I agree that the pleas demurred to are bad ; and I think that the rule on which they proceed is a good one, — that if a party will repeat slanderous words which he hears another say, he ought to do so in such a manner as will give the person injured an opportunity of bringing his action against somebody. But here no action could have been maintained upon these words against the boy. "Whereas, if the defendant had named the boy at the time, and repeated truly what he had said to him, the plaintiff would have had his action against the boy. The only question, then, is this, whether the decla- ration be sustainable. And I agree with the defendant's counsel, that if the words as laid would not, in the ordinary understanding of man- kind, bear the meaning imputed to them, the innuendo will not help them. In Peake v. Oldham, Lord Mansfield lays down the rule that, "where words from their general import appear to have been. spoken with a view to defame a party, the court ought not to be industrious in putting a construction upon them different from what they bear in the common acceptation and meaning of them." The argument, then, goes too far, when it is contended that the words must be such as must necessarily bear a criminal import, and no other, in order to maintain an action upon them. For then, if the words had been a direct charge of an unnatural crime by using those very words, it might be argued that no action would lie upon them without some explanation of what was meant by an unnatural crime, as it might be said that all crimes . are against the order of nature ; and so they are in a general sense. But-the true question is, whether, in the ordinary acceptation of the words, any person can reasonably doubt of their signification. No such doubt can, I think, be entertained in this case, and therefore the declaration is good. Le Blanc, J. It is clear that the pleas cannot be supported upon the cases which have been decided; because a person who reports slanderous words, which he heard from another, must give the name of the person from whom he heard it at the time he reports it ; and it is not sufficient to do so for the first time in his plea to an action for those words. Then as to the sufficiency of the declaration, if the words themselves do not convey to all persons who hear them what the sense of the speaker was, I admit that they cannot be extended by an innuendo. But nobody can read these words without seeing what they meant to impute against the plaintiff. It is not sufficient to show by argument that the words will admit of some other mean- ing ; but the court must understand them as all mankind would under- stand them, and we cannot understand them differently in court from what they would do out of court. And it would be impossible for a 670 ROBERTS V. CAMDEN. [CHAP. IX. number of persons, indifferently assembled, not to agree in the meaning which has been imputed to these words in the declaration. Judgment for the plaintiff upon the demurrers to the second, third, and fifth pleas} ROBERTS v. CAMDEN". In the King's Bench, November 25, 1807. [Reported in 9 East, 93.] In an action on the case for slander, the plaintiff, after stating by way of introduction that at the time of the slanderous words spoken he was a practising attorney of the Court of Great Sessions for the county of Flint, and had conducted himself with integrity, &c, de- clared in the third count that the defendant, intending to injure and aggrieve the plaintiff in his good name, character, &c, and profession, and to cause it to be believed that the plaintiff was guilty of perjury, and that a prosecution for the crime of perjury was about to be com- menced against him, afterwards, &c, in a certain discourse, &c, falsely and maliciously, &c, said and published these false, scandalous, and malicious words following, of and concerning the plaintiff, viz. : " He " (meaning the plaintiff) " is under a charge of a prosecution for per- jury. G. Williams" (meaning one G. W. an attorney) "had the At- torney-General's directions " (meaning the directions of his Majesty's Attorney-General for the county palatine of Chester) " to prosecute " (meaning to prosecute the plaintiff) " for perjury. By reason whereof the plaintiff was injured and prejudiced in his good name, &c, and profession, and lost great gains which he would otherwise have ac- quired by his profession of an attorney." There was a fourth count for a written libel. After a general verdict, with joint damages on the whole declaration, Burrough moved in last Trinity term, in arrest of judgment, and after- wards argued the case, together with Topping, for the defendant ; and the Attorney-General and Scarlett were heard against the rule for arresting the judgment. The cases cited for the plaintiff, to show that the words were in themselves actionable, were Haley v. Stanton; 2 Heynes v. Sprot ; b Showell v. Hayman ; i Gainford v. Tuke. 5 And i Kennedy v. Gifford, 19 Wend. 296 ; Poturite v. Barrel, 1 Sid. 220 ; Harper v. Delp, 3 Ind. 225 j Ausman v. Veal, 10 Ind. 355 ; Goodrich v. Woolcott, 3 Cow. 231 ; s. c. 5 Cow. 714 ; Hays u. Brierly, 4 Watts, 392, ace. ; Harper v. Delp, 3 lad. 225, contra. — Ed. 2 W. Jones, 299, and Cro. Car. 268. 3 Cro. Jac. 247. * Cro. Jac. 164. 4 Ibid. 536. SECT. III.] ROBERTS V. CAMDEN. 671 his counsel contended that at any rate, if the third count were bad, the court would not arrest the judgment, but only award a venire de novo to have the damages severed by another jury. On the other hand were cited Holt v. Scholefield ; Steward v. Bishop ; Powell v. Wind ; * Bayly v. Churington ; * Weaver v. Cariden, 8 to show that the words were not actionable, as not conveying any opinion of the speaker upon the truth of the charge. And the innuendo, as to the Attorney-Gen- eral of Chester, was objected to as not warranted by any antecedent colloquium. This case stood over for consideration till this term, when Lord Ellenborough, C. J., delivered judgment. This was a mo- tion in arrest of judgment in an action for words, in which a general verdict was found, with joint damages, upon the whole of the declara- tion. One of the counts (the third) which it contained has been argued on the part of the defendant to be bad on two grounds : first, that the words therein stated are not actionable, as not imputing to the plaintiff with sufficient certainty the crime they point at, namely, that of perjury ; and, secondly, because as there is no colloquium re- specting the Attorney-General of Chester, the innuendo, stating that " the Attorney-General " meant the Attorney-General for that county, vitiates the count, as being introductive of new matter. But we think that there is nothing in this last objection ; for, admitting most clearly that new matter cannot be introduced by an innuendo, but that it must be brought upon the record in another way, when neces- sary to support the action, yet where such new matter is not, as here, necessary to support the action, an innuendo, without any colloquium, may well be rejected as surplusage, as it can have no effect in enlarg- ing the sense of the words used. If, then, the innuendo be struck out of this count, — as for the reason above given we think it may, — the foun- dation of the second objection is removed. The first objection turns upon the meaning of the words spoken of the plaintiff by the defendant. The words are these : " He is under a charge of a prosecution for per- jury. Griffith Williams" (meaning an attorney of that name) "has the Attorney-General's direction " (meaning the Attorney-General of the county palatine of Chester) " to prosecute " (meaning to prosecute the plaintiff) "for perjury." As it has been settled, ever since the case of Underwood v. Parkes, that the truth of the words cannot be given in evidence upon not guilty, but must be specially pleaded, the words, not having been so justified, must be assumed to be false ; and the words not being accompanied by any qualifying context, nor appear- ing to be spoken on any warrantable occasion, as in a course of duty, or the like, so as to rebut the malice which . is necessarily to be in- » Hob. 305, 827. » Cro. Eliz. 279. " i Rep. 16. 672 ROBERTS V. CAMDEN. [CHAP. IX. ferred from making a false charge of this kind, provided the charge itself is to be considered as a charge of the crime of perjury, the ques- tion amounts simply to this, whether the words amount to such charge ; that is, whether they are calculated to convey to the mind of an ordinary hearer an imputation upon the plaintiff of the crime of perjury. The rule which at one time prevailed, that words are to be understood in mitiori sensu, has been long ago superseded ; and words are now construed by courts as they always ought to have been, in the plain and popular sense in which the rest of the world naturally understand them. What, then, is the plain and popular sense of these words; and what is the imputation meant to be conveyed by a person speaking them untruly of* another? They must mean that he was ordered by the Attorney-General to be prosecuted (and it is imma- terial for this purpose whether the Attorney-General of the county palatine or of England were meant), either for a perjury which he had committed, or which he had not committed, or which he was supposed only to have committed. Iu the first sense they are clearly actionable. In the second, they cannot possibly be understood con- sistently with the context. And if the defendant had used the words in the last sense, the jury might have acquitted him, according to the doctrine in the case of Oldham v. Peake, both in the Court of Common Pleas and in this court ; in which case, when in the Common Pleas, Mr. Justice Gould laid it down "that what was the defendant's mean- ing was a fact for the jury to decide upon." And Lord Mansfield afterwards, when that case was brought into this court by error, said : " If (the words had been) shown to be innocently spoken, the jury might have found a verdict for the defendant ; but they have put a contrary construction upon the words as laid." And, certainly, if the sense of the defendant in speaking these words had varied from that ascribed to them by the plaintiff, he might, by specially pleading, have shown them not actionable, had he not chosen to have rested his de- fence merely on the general issue. It appears, therefore, that these words must fairly be understood in the first of these three senses ; namely, that he was ordered to be prosecuted for a perjury which he had committed : and so understood, they are unquestionably action- able. These words are not less strong in effect, than the words which were held actionable in one of the later cases, that of Carpenter v. Tarrant, 1 via, " Robert Carpenter was iu Winchester gaol, and tried for his life, and would have been hanged had it not been for Leggat, for breaking open the granary of farmer A., and stealing his bacon." And without adverting to the long bead-roll of conflicting cases which 1 Rep. temp. Hardw. 339. SECT. III.] FOED V. PEIMBOSB. 673 have been cited on both sides in the course of this argument, it is sufficient to say that these words, fairly and naturally construed, appear to us to have been meant, and to be calculated to convey, the imputa- tion of perjury actually committed by the person of whom they are spoken, and that, therefore, the rule nisi for arresting the judgment must be discharged. THOMPSON v. BERNARD. At Nisi Pbius, coeam Loed Ellenboeough, C. J., Decemeee 9, 1807. [Reported in 1 Campbell, 48.] Case for slander. It appeared that the defendant had used the fol- lowing words, which were laid in the declaration : " Thompson is a damned thief, and so was his father before him, and I can prove it ; " but that he added, " Thompson received the earnings of the ship, and ought to pay the wages." The witness to whom these words were addressed had been master of a ship belonging to a person deceased, who had left the defendant his executor, and at the time was applying to him for payment of his wages. Loed Ellenbokough directed a nonsuit, observing that the word "thief" was used without any intention in the defendant to impute felony to the plaintiff, which must appear to support the declaration. 1 FORD v. PRIMROSE. In the King's Bench, November 9, 1824. [Reported in 5 Dowling $• Ryland, 287.] Slandee. The declaration alleged that the defendant, intending it to be believed that the plaintiff had been guilty of murder or man- slaughter, in a colloquium, of and concerning the death of plaintiff's wife, used these words : " I think the present business ought to have the most rigid inquiry, for he " (meaning the plaintiff) " murdered his first wife, that is, he administered, improperly, medicines to her for a cer- tain complaint, which was the cause of her death." On not guilty, the 1 Smith v. Carey, 3 Camp. 461 ; Robertson v. Lea, 1 Stew. 141 ; Abrams v. Smith, 8 Blackf. 95 ; Thompson v. Grimes, 5 Ind. 385 ; Hotchkiss v Olmstead, 37 Ind. 74 ; Hawn i). Smith, 4 B. Monr. 385; Brown v. Piner, 6 Bush, 518 ; Allen v. Hillman, 12 Pick. 101 ; Colbert v. Caldwell, 3 Grant, 181. See Upham o. Dickinson, 50 111. 97 ; Taylor v. Short, 40 Ind. 506, ace. —Ed. 674 TOMLINSON V. BRITTLEBANK. [CHAP. IX. jury, at the last assizes for the county of Suffolk, before Gazelee, J., found a verdict for the plaintiff, damages £20. /Storks now moved to arrest the judgment, for that these words, taken together, were not actionable, inasmuch as they did not import any crime punishable by law. The word " murdered " is fully explained by what follows, which shows that the death was caused by the ad- ministration of improper medicines for a certain complaint, whereof the woman died. Now, if medicines were improperly administered, either from accident or ignorance, and death ensued, it would be neither murder nor manslaughter. The words declared upon, therefore, do not import any offence in law, and consequently are not actionable. Abbott, C. J. Admitting it to be doubtful whether these words import the charge of a crime upon the plaintiff, that doubt has been removed by the verdict ; for the declaration alleges that the defendant uttered these words with an intention to cause it to be believed that the plaintiff was guilty of murder or manslaughter, and if the jury were of opinion that they were uttered with that intention, we cannot say that the plaintiff is not entitled to a verdict. But I cannot say that these words may not, in reasonable construction, import a charge of murder or manslaughter, especially after the finding of the jury. Bayley, J. I take it that, if a man, by the improper administra- tion of medicines to another, cause his death, that would be man- slaughter. And if he administers medicines with an intent to produce death, it would be murder. I think the words declared upon import at least a charge of manslaughter. Holeoxd and Littledaie, JJ., were of the same opinion. Mule refused} TOMLINSON v. BRITTLEBANK. In the King's Bench, April 19, 1833. [Reported in 4 BarnewaU erjury, the same necessarily being a charge of violating the promissory oath taken by the plaintiff as one of the overseers of highways of the town of Washington, in the county of Cayuga aforesaid. 4. That the verdict was general, and that the first and second counts being obviously vicious, judgment could not be rendered for the said plaintiff, for which causes, and for others apparent on the declaration, the defendant insisted the judgment ought to be arrested. 1 "Williams v. Cawley, 18 Ala. 206 ; Wright v. Lindsay, 20 Ala. 428 ; Parmer v. Anderson, 33 Ala. 78 ; Ayers v. Grider, 15 111. 37; Carmichael v. Shiel, 21 Ind. 66 ; McCaleb v. Smith, 22 Iowa, 242 ; Desmond v. Brown, 33 Iowa, 13 ; Brite v. Gill, 2 Monr. 65; Gill u. Brigt, 6 Monr. 130; Dunnell v. Fiske, 11 Mete. 551; Norton e. Ladd, 5 N. H. 203 ; Quinn v. O'Gara, 2 E. D. Smith, 388 ; Perry v. Man, 1 E. I. 263 ; Shecut v. M'Dowell, 8 Brer. 38, ace. See Pegram v. Styron, 1 Bail. 595. See also Torbitt v. Clare, 9 I. L. E. 86.— Ed. 688 STAFFORD V. GREEN. [CHAP. IX. The case being submitted without argument, the opinion of the court was now delivered by Kent, J. This is a motion in arrest of judgment. The verdict was general. It is urged, on the part of the defendant, that the words in the first and second counts are not actionable, and that it is not alleged that any oath was taken by the plaintiff before any person competent to administer it. It is further urged, that the charge in the third count relates only to the promissory oath of office, for which an indictment for perjury will not lie. We are of opinion that the objection to the first and second counts is well taken. Swearing to a lie does not necessarily imply that the party has, in judgment of law, perjured himself. It may mean that he has sworn to a falsehood, without being conscious at the time that it was a falsehood. Actionable words are those that convey the charge of perjury in a clear, unequivocal manner, and which ad- mit of no uncertainty. The charge is defective in not stating any court, or competent officer before whom the plaintiff swore. It may mean extrajudicial swearing, and therefore it is held that a charge that one is forsworn is not actionable, because it shall not be intended in a case where perjury may be committed. On the other hand, a charge that one is perjured, is actionable, for that implies the direct legal crime. With respect to the third count, we are of opinion that it is sufficient, to sustain an action ; but as the verdict is general, the judgment must be arrested ; the plaintiff, however, on application, might have been entitled to a venire de novo, on payment of costs. Judgment arrested. 1 STAFFORD v. GREEN". Supreme Court op Judicature, New York, August, 1806. [Reported in 1 Johnson, 505.] Foot moved in arrest of judgment in this cause, which was an action of slander. There were several counts in the declaration, in one of l Carlock v. Spencer, 7 Ark. 12 ; M'Gough v. Khodes, 12 Ark. 625 ; Blair v. Sharp, Breese, 11 ; Roella v. Follow, 7 Blackf. 377 ; Shiloub v. Ammerman, 7 Ind. 347 ; Watson v. Hampton, 2 Bibb, 319 ; Martin v. Mellon, 4 Bibb, 99 ; Beswick v. Chappel, 8 B. Monr. 486 ; Small v. Clewley, 60 Me. 262 ; Sheely v. Biggs, 2 H. & J. 363 ; Palmer v. Hunter, 8 Mo. 512 ; Harris v. Woody, 9 Mo. 113 ; McManus v. Jack- son, 28 Mo. 56 ; Vaughan v. Havens, 8 Johns. 109 ; Browne v. Dula, 3 Murphey, 574 ; Jones v. Jones, 1 Jones (N. Car.), 495 ; Packer v. Spangler, 2 Binn. 60 ; Tipton v. Kahle, 3 Watts, 90 ; Barger v. Barger, 18 Pa. 489 ; Jones u. Marrs, 11 Humph. 214 ; Fitz- simmons v. Cutler, 1 Aiken, 83 ; Kimmis v. Stiles, 44 Vt. 351 j Hogan v. Wilmoth, 16 Gratt. 80, ace. Conf. Sanford v. Gaddis, 13 111. 329. — Ed. SECT. III. J BROOKER V. COFFIN. 689 which the words charged were, " He swore false before Squire An- drews, and I can prove it." There was no colloquium stated, but a mere innuendo, that it was in a certain cause depending before a jus- tice, &c. There was a general verdict for the plaintiff, and it was objected that the above words did not amount to a charge of perjury, which consisted in swearing falsely in a matter material to an issue, or point in question, before some court. A person might swear falsely, yet not be guilty of the crime of perjury. It was contended that the count was bad, and not helped by the innuendo, nor could the verdict be amended. Van Vechten and Shepherd, contra, contended that the old and strict rule of construction had been done away ; that words are to be taken in their natural sense, and as they would be understood by the hearers. Though the meaning of the words, in themselves, be uncer- tain, yet, if, from the circumstances and manner in which they were spoken, it is obvious they were uttered maliciously, and with a view to disparage another, the jury and the court may make the inference as to their meaning, here put in the innuendo. They cited various cases in which the words were equally uncertain, yet held sufficient. Yet, if this count were bad, still the verdict might be amended by the notes of the judge, so as to apply it to the good counts. Per Curiam. The count in question is certainly bad ; but as it ap- pears from the judge's certificate that the evidence did not particularly apply to that count, we are of opinion that the judgment ought not to be arrested, but that the plaintiff have leave to enter up his judgment on the good counts, on payment of costs. Motion denied. 1 BROOKER v. COFFIN. Supreme Court of Judicature, New York, November, 1809. [Reported in 5 Johnson, 188.] This was an action for slander. The declaration contained two counts. 2 The first charged that on the 1st of January, 1808, at Schagticoke, in the county of Rensselaer, &c, for that whereas the plaintiff being a person of good name, &c, the defendant falsely and maliciously did speak and utter of and concerning the plaintiff, the fol- lowing false, scandalous, and defamatory words : " She " (meaning the plaintiff) " is a common prostitute, and I can prove it." 1 Ashhell v. Witt, 2 N. & McC. 364, ace. ; Canterbury v. Hill, 4 St. & Port. 224; Hue v. Mitchell, 2 Dall. 58, contra. See Ireland v. Goodale, Cro. Eliz. 780. — Ed.. 2 Only so much of the case is given as relates to the first count. — Ed. 44 690 BROOKEE V. COFFIN. [CHAP. IX. There was a general demurrer to the first count. Wendell, in support of the demurrer. In England there are various statutes for the punishment of disorderly persons. But the decisions in support of the action have been where the party shows a special damage, as for calling a woman a whore, whereby she lost her mar- riage. Notwithstanding the statutes against disorderly persons, it has never been held that those words were actionable, without alleging a special damage. It is true, that by the act for apprehending and punishing disorderly persons, a common prostitute is declared to be a disorderly person, and therefore liable to punishment ; but, by the same act, vagrants, beggars, jugglers, pretenders to physiognomy, palm- istry, or such crafty sciences, fortune-tellers, discoverers of lost goods, persons rnnning away from their wives and children, vagabonds, and wanderers, and all idle persons not having visible means of livelihood, are also declared to be disorderly persons, and are equally liable to be apprehended and punished under the act. If, then, to call a woman a common prostitute is actionable, without alleging special damage, on the ground of a liability to punishment under this act, then to call a person a juggler, fortune-teller, or physiognomist, would also be action- able, which will hardly be pretended. Sedgwick, contra. The numerous cases to be found in the books relative to the action of slander, and as to what words are actionable, and what are not, are so contradictory and absurd as to afibrd no satis-' factory rule on the subject. Resort must, therefore, be had to the principle on which the action of slander is founded. Where the words spoken impute to a person an act of moral turpitude or crime which may subject him to punishment, they are actionable. Here the words, besides imputing great moral turpitude, and tending to ren- der the person odious in the opinion of mankind, may, if true, also subject the party to an infamous and disgraceful punishment. Com- mon prostitutes, by the act which has been cited, are declared disor- derly persons, and may be sent to bridewell or house of correction, and be kept to hard labor for sixty days, or even for six months; and, moreover, may be whipped at the discretion of the general ses- sions of the peace. The first set of words charged in the declara- tion are, according to the general principle I have stated on this subject, actionable. Wendell, in reply, observed, that if to say of a person what, if true, might subject him to an indictment, would render the words action- able, without alleging special damage, then to say of a person that he had committed an assault and battery on another, would be action- able. Spencee, J., delivered the opinion of the court. The first count is SECT. III.] BEOOKER V. COFFIN. G91 for these words, " She is a common prostitute, and I can prove it;" and the question arises, whether speaking these words gives an action without alleging special damages. By the statute (1 R. L. 124), com- mon prostitutes are adjudged disorderly persons, and are liable to commitment by any justice of the peace, upon conviction, to the bridewell or house of correction, to be kept at hard labor for a period not exceeding sixty days, or until the next general sessions of the peace. It has been supposed that, therefore, to charge a woman with being a common prostitute, was charging her with such an offence as would give an action for the slander. The same statute which author- izes the infliction of imprisonment on common prostitutes, as disor- derly persons, inflicts the same punishment for a great variety of acts, the commission of which renders persons liable to be considered dis- orderly ; and to sustain this action would be going the whole length of saying, that every one charged with any of the acts prohibited by that statute, would be entitled to maintain an action for defamation. Among others, to charge a person with pretending to have skill in physiognomy, palmistry, or pretending to tell fortunes, would, if this action is sustained, be actionable. Upon the fullest consideration, we are inclined to adopt this as the safest rule, and one which, as we think, is warranted by the cases. In case the charge, if true, will subject the party charged to an indictment for a crime involving moral turpitude, or subject him to an infamous punishment, then the words will be in themselves actionable ; and Baron Comyns considers the test to be, whether the crime is indictable or not. 1 Com. tit. Action on the Case for Defamation, F, 20. There is not, perhaps, so much uncer- tainty in the law upon any subject as when words shall be in them- selves actionable. From the contradiction of cases, and the uncertainty prevailing on this head, the court think they may, without overleaping the bounds of their duty, lay down a rule which will conduce to cer- tainty, and they therefore adopt the rule I have mentioned as the criterion. In our opinion, therefore, the first count in the declaration is defective. The defendant must, therefore, have judgment. 1 1 Hillhouse v. Peck, 2 St. & Port. 395 (Breaking open and reading letters sent by mail) ; Heath v. Devaughn, 37 Ala. 677 (Trading with slaves) ; McCuen v. Ludlum, 2 Harr. 12 (Breaking open letters), aec. For cases recognizing the general rule suggested in the principal case, but hold- ing actions to be maintainable, see Perdue v. Burnett, Minor, 138 ("You have altered the marks of four of my hogs ") ; Miller v. Parish, 8 Pick. 384 (Fornication) ; Woodbury v. Thompson, 3 N. H. 194 (Fornication), semble; Todd v. Rough, 10 Serg. &R. 18 (Removing a landmark), where crimes were imputed punishable only by fine. Frisbie v. Fowler, 2 Conn. 707 (TJnchastity) ; Hoag v. Hatch, 23 Conn. 585 (Bribery at elections) ; Pledger v. Hathcock, 1 Ga. £50 (TJnchastity) ; Richard- eon v. Roberts, 23 Ga. 215 (Fornication) ; Burton v. Burton, 3 Greene, 316 692 DEXTER V. TABEB. [CHAP. IX. DEXTER v. TABER. SUPREME COTTKT OF JuDICATUBE, New ToEK, Mat, 1815. [Reported in 12 Johnson, 239.] This was an action of slander, and was tried at the Herkimer cir- cuit, the 30th of May, 1814, before Mr. Justice Van Ness. The words charged were, " Tou " (the plaintiff) "are a thief; you" (the plaintiff) u are a damned thief." The words proved at the trial to have been spoken by the defendant were: "You" (the plaintiff) "are a thief; you stole hoop poles and saw logs from off Delancey's and Judge Myers's land." The witnesses said that they supposed the words spoken alluded to the cutting of standing timber, but they did not know the defendant's meaning. The judge told the jury that it was for them to decide whether the words, as proved, amounted to a charge of theft, or of trespass merely; that if, by the words, the defendant meant to charge the plaintiff with secretly taking timber already cut into hoop poles and saw logs, it was a charge of theft; but if they meant only that. the plaintiff had secretly cut and carried away timber from off the land, in order to make hoop poles, &c, it amounted to a charge of trespass only ; and, in that case, the words were not actionable ; and that this was his impression as to the meaning of the words. The jury found a verdict for the de- fendant. (Malicious killing of a cow) ; Mills v. Wimp, 10 B. Mon. 417 (Attempt to poison) ; Bissell v. Cornell, 24 Wend. 354 (Aiding in procuring an abortion) ; Young v. Miller, 3 Hill, 21 (Removing a landmark); Crawford v. Wilson, 4 Barb. 504 (False declaration of right to rote) ; Johnson v. Brown, 57 Barb. 118 (Procuring an abor- tion) ; Andres v. Koppenheafer, 3 Serg. & R. 255 (Libeller) ; Beck v. Stitzel, 21 Pa. 522 (Secreting and smuggling property by an administration) ; Klumph v. Dunn, 66 Pa. 141 (Adultery) ; Dial v. Holter, 6 Ohio St. 228 (Removing landmarks) ; Gage v. Shelton, 3 Rich. 242 (Malicious killing of a horse); Smith v. Smith, 2 Sneed, 473 ( Selling liquor to slaves) ; Murray v. McAllister, 38 Vt. 167 (Malicious destruction of another's fruit-trees) ; Ranger v. Goodrich, 17 Wis. 78 (Adultery) ; Filber v. Dau- termann, 26 Wis. 518 (Attempt to procure an abortion) ; Thirman v. Matthews, 1 Stew. 384 ; Kinney v. Hosea, 3 Harringt. 77 ; Giddens v. Mirk, 4 Ga. 364 ; Johnson t>. Shields, 1 Dutch. 116 ; Widrig v. Oyer, 13 Johns. 124 ; Martin v. Stilwell, 13 Johns. 275 ; Demarest v. Haring, 6 Cow. 76 ; Case v. Buckley, 15 Wend. 827 ; Quinn <,. O'Gara, 2 E. D. Smith. 388 ; Wright v. Paige, 3 Keyes, 581. See, as recognizing the same rule, Shaffer v. Kintzer, 1 Binn. 542; Bloom v. Bloom, 5 Serg. & R. 392 ; Gos- ling v. Morgan, 32 Pa. 273, semble ; Alfele v. Wright, 17 Ohio St. 238, semble; Hollings- worth u. Shaw, 19 Ohio St. 430, Semble; McAnally v. White, 3 Sneed, 26; Poe a. Grevor, 3 Sneed, 666 ; Redway v. Gray, 31 Vt. 292 ; Montgomery v. Deeley, 3 Wis. 709, where crimes were imputed punishable both by fine and imprisonment. — Ed. SECT. III.] DEXTER V. TABEB. 693 A motion was made to set aside the verdict, and for a new trial. H. Bleecker, for the plaintiff. He cited Cro. Jac. 166 ; Yelv. 152 ; L,d. Raym. 959. Storrs, contra. He cited 1 Johns. Cases, 279. Per Curiam. The motion for a new trial must be denied. The slanderous words charged in the declaration are, that the defendant said to the plaintiff, " You are a thief." The witness who proved the speak- ing of these words went on to explain in what connection and in reference to what subject the words were spoken, to wit, " You are a thief, you have stolen hoop poles and saw logs from off Delancey's and Judge Myers's land," alluding to certain woodlands belonging to those persons. The charge thus made may be equivocal and somewhat doubtful ; and, had the whole charge as made and proved been set out in the declaration, and if this was a motion in arrest of judgment, it might well be contended that the words import a charge of felony. But it was correctly stated to the jury that if the defendant intended to charge the plaintiff with taking hoop poles and saw logs already cut, it was a charge of felony. But if he only meant to charge him with cutting and carrying them away, it was only charging him with having committed a trespass. And in what sense the words were intended to be used was for the jury to determine. This point is well settled, both in our own and in the English courts. 1 Johns. Cas. 279 ; Wm. Black. Rep. 959 ; Cowp. 278 ; 9 East, 96. The terms " hoop poles " and " saw logs," in common parlance, are used indiscriminately, as applicable both to standing and felled timber of these descriptions. And the jury have found that the words were used in the former sense, and, of course, not amounting to a charge of felony ; and the facts in the case fully war- rant the finding of the jury. Spencek, J., dissented. The words laid are, " You " (the plaintiff meaning) "are a damned thief;" the proof was, that the words spoken were, " You " (the plaintiff) " are a thief; you stole hoop poles and saw logs from off Delancey's and Judge Myers's lands." The judge, without any proof explaining the words, other than an imagination of the wit- nesses, that the words related to cutting standing timber, though they said they did not know what the defendant's meaning was, left it to the jury to determine their meaning, with an intimation that it was intended to charge the plaintiff with a trespass. The jury found for the defendant. In Van Rensselaer v. Dole, the words considered slanderous were proved to have been understood by the witnesses to relate to a trans- action the day before, and used in reference to it. This was held to qualify the words, and that if understood in the qualified sense, they Were not actionable ; but here there is no qualification, and we must 694 DEXTER V. TABER. [CHAP. IX. construe the words in their ordinary sense. The words, " You are a thief," unaccompanied with any explanation, are actionable. It is not necessary to add the particular thing stolen, for it is to be intended that the words import a stealing of something which could be the subject of larceny. It has not been urged as an objection that the additional words proved ought to have been stated in the declaration ; and it could not be urged with success, unless, indeed, the additional words did qualify those alleged. In Lo v. Saunders, 1 the words were, "Thou hast stolen my wood;" on demurrer, it was adjudged for the plaintiff; for, say the court, it shall be taken in the worst part ; and wood is to be intended of thgt which is cut down, according to the ancient rule, arbor dum crescit, lignum dum erescere nescit. In Higgs v. Austen, 2 the words are, " Thou hast stolen as much wood and timber as is worth £20." The jury found the words, with this addition, "off my landlord's grounds;" and it was adjudged for the plaintiff, for the words found by the jury more than were in the decla- ration do not qualify the first words. In Baker v. Pierce, the words were, "John Baker stole my box- wood, and I will prove it." There was a verdict for the plaintiff, and a motion in arrest of judgment, and judgment for the plaintiff. Holt, C. J., said, Where words tend to slander a man and take away his reputation, he should be for supporting actions, because it tends to preserve the peace ; and that in most cases where such words have been held actionable there are other words of an ill sense to explain them. Admitting that the words, " You stole hoop poles and saw logs," are equivocal, and that they do not import absolutely that the poles were cut or the trees felled ; yet, when connected with the posi- tive charge, " that the plaintiff was a thief," I think we must intend that the poles and trees were cut down. Properly speaking, hoop poles and saw logs are severed ifrom the land ; they are neither whilst growing. If a man will charge a felony, and attempt to escape the effects of the charge, by additional words, these words ought to qualify the first charge, by showing that a felony was not committed. These additional words do not, for they are, at least, equivocal. I think the learned judge incorrect in leaving the cause, as he did, to the jury. There was no local meaning in the words; nothing pecul- iarly for the jury to pass on. The sense of the words being collected, as far as could be, the construction of slanderous, or not slanderous, belonged to the court. I am of opinion that a new trial ought to be granted, with costs to abide the event of the suit. New trial refused? l Cro. Jam. 166. 2 Yelr. 152. » Guildeslew v. Ward, Cro. El. 225, contra. See Burbank v. Horn, 39 Me. 233. — Ed. SECT. III.] JONES v. m'dowell. 695 JONES v. M'DOWELL, Couet op Appeals, Kentucky, October 7, 1815. {Reported in 4 Bibb, 188.] Opinion of the court by Owsley, J. This was an action for slander- ous words brought by the appellee against the appellant in the court below. The declaration contains two counts. 1 The first charges the appellant of having said that " he saw the appellee take corn from Aaron Rainy's crib twice, and look round to see if any person saw him measuring," &c. Demurrer and judgment for the appellee. From this judgment the appellant has appealed to this court. The first question made by the assignment of errors is, Are the words laid in the first count actionable ? Whether they are actionable or not turns exclusively upon the con- struction which may be given to them. If they imply a felony in taking of the corn, then, as they tend to subject the appellee to crim- inal punishment, they are most clearly actionable; but if they import nothing but a bare trespass, the appellee cannot be said to have been put in danger of legal punishment, and no action can be maintained for the speaking of them. According to the old rule of construing words in mitiori sensu, the latter meaning would prevail ; for the words laid may be true, and nothing but a trespass have been committed. But that rule of construction, as justly observed in the case of Logan v. Steele, 2 " has long since been exploded, and has given way to one which accords more with reason and the common sense of mankind, — that of construing words in that sense in which they would be under- stood by those who hear or read them." If the words laid in the first count are tested by this rule, and taken in their usual acceptation, they obviously import a charge of felony. That the words mean something more than a naked trespass is evident; for, if that had been the only meaning intended to be conveyed, the simple charge of taking the com would have affected the object ; but when the charge of taking is connected with expressions of the manner the appellee acted in the taking, it shows clearly the speaker of the words intended to com- municate the idea (and that the hearers must so have understood them) that the corn was taken with a felonious intent. The judgment must be affirmed with costs and damages. 8 1 Only so much of the case is given as relates to the first count, and the statement of the case has been slightly abridged. — Ed. 2 1 Bibb's Rep. 594. 3 Hess v. Foekler, 25 Iowa, 9; Dixon v. Stewart, 33 Iowa, 125; Hamilton v. SHERWOOD V. CHACB. [CHAP. IX. SHERWOOD v. CHACE. SrjPEEME Cc-UBT OP JuDICATUEE, New YoEK, OcTOBEE, 1833. [Reported in 11 Wendell, 36.] Eeeoe from the Yates Common Pleas. Sherwood sued Chace for slander, and stated in his declaration that he was of good fame, and not suspected of the crime of perjury, until, &c. ; that before the speaking of the words complained of, a certain action had been depending before W. Bassett, Esq., a justice of the peace in and for the county of Yates, ■wherein one James L. Sherwood was plaintiff, and Richard P. Brown was defendant, which had been tried, and on such trial the plaintiff, William B. Sherwood, had been examined on oath, and had given evi- dence as a witness for and on the part and behalf of the plaintiff in that suit; that the defendant, knowing the premises, but contriving to injure the plaintiff, and to cause it to be suspected that he had been guilty of perjury, in a certain discourse which he had with the plaintiff, of and concerning him the plaintiff, in a religious meeting, in the presence and hearing of divers good and worthy citizens, spoke these false, scanda- lous, and defamatory words : " I cannot enjoy myself in a meeting with Sherwood, for he has sworn false, and I can prove it ; and if you " (mean- ing the by-standers) " do not believe it, you can go to Esquire Bassett's and see it, in a suit between James L. Sherwood, plaintiff, and Richard P. Brown, defendant." The defendant pleaded non cul., and gave notice of special matter ; the cause was tried and the plaintiff had a verdict, but the judgment was arrested by the Common Pleas for the insufficiency of the declaration. A judgment pro forma was ren- dered against the plaintiff at his request, and he sued out a writ of error. E. Van Buren, for the plaintiff. R. N. Morrison, for the defendant. By the court, Savage, C. J. A charge of false swearing is action- able when it necessarily conveys to the mind of the hearer an impu- tation of perjury; otherwise it is not. In Hopkins v. Beedle, the words were, "You have sworn to a lie, and I can prove it." The court say that swearing to a lie does not necessarily imply that the party has, in judgment of law, perjured himself; the words are suscep- Smith, 2 Dev. & Bat. 274; Davis v, Johnston, 2 Bail. 579; Morgan v. Livingston, 2 Rich. 673 ; Cregier v. Bunton, 2 Rich. 395 ; Marshall v. Gunter, 6 Rich. 419 ; Gallo- way v. Courtney, 10 Rich. 414 ; Mayson v. Sheppard, 12 Rich. 254, ace. See also Born- man v. Boyer, 3 Binn. 515 ; M'Kennon v. Green, 2 Watts, 352 ; M'Almont v. M'Clelland, 14 Serg. & R. 352 ; Dottarer v. Bushey, 16 Pa. 204 ; M' Adams v. Reney, 4 Hayw. 252; Watson v. Nicholas, 6 Humph. 174; Hancock v. Stephens, 11 Humph. 607. — Ed. SECT. III.] SHERWOOD V. CHACE. 697 tible of an innocent meaning: they may mean extra-judicial swearing; and it was held that the charge was defective, in not stating any court, or competent officer, before whom the plaintiff swore. In Pel- ton v. Ward, 1 the words were, " You swore to a damned lie, and you knew it, for which you now stand indicted ; " the court said that the words in this instance could mean nothing less than perjury, for it was an allegation that the plaintiff had sworn to such a lie as rendered him obnoxious to an indictment. The cases of Fox v. Vanderbeck 2 and Gilman v. Lowell 8 were also decided on the same principle. In Staf- ford v. Green, the words were, " He swore false before 'Squire Andrews, and I can prove it." There was no colloquium nor averment that a cause was pending before a justice. The court said the count was bad ; there was nothing to show that a judicial proceeding was referred to- In Ward v. Clark, 4 the wordss were, " He has taken a false oath in 'Squire Jamison's court." There was no colloquium or averment that ' Squire Jamison was a justice of the peace ; and the court held these words insufficient; they did not necessarily convey a charge of perjury; it did not appear that Jamison had authority to hold a court, or admin- ister an oath. The court add, that for a charge of false swearing no action lies, unless the words had reference to a judicial court or proceed- ing. In McClaughry v. Wetmore, 5 it was held that the words were actionable. There it was averred that while the plaintiff was giving material testimony in a suit before a justice who had jurisdiction, the defendant said, " that is false." In Niven v. Munn, 6 after verdict for the plaintiff, the defendant moved in arrest. The declaration stated, that in a certain discourse about a trial between Munn and Wilson,, before a justice of the peace, and concerning the testimony of the plain- tiff, who was a witness, the justice having power to administer an oath, the defendant said, " What he has sworn is a damned lie." The court held the declaration good, and Mr. Justice Piatt says, All that was wanting to render this a complete and formal definition of perjury was, that it was not averred that the justice had jurisdiction of the cause, and that the testimony was upon a point material. The words here, however, were held sufficient after verdict. In Chapman v. Smith,' the court observe, that charging a person with false swearing before a jus- tice, without a colloquium, showing that it referred to a trial or other legal occasion, was not actionable ; but that charging a person with taking a false oath in a court was actionable ; they refer to 6 Johns. R. 82, in which it was averred that the plaintiff was testifying to a point material, but judgment would not have been arrested if that averment 1 3 Caines, 73. 2 5 Cowen, 513. 8 8 Wendell, 573. * 2 Johns. K. 10. 5 6 Johns. R. 82. 6 13 Johns. U. 48. ' 13 Johns. E. 80. 698 SHEBWOOD V. CHACE. [CHAP. IX. had been omitted ; for after verdict it must be intended tbat malice was proved. In Pangburn v. Ramsay, 1 this court recognize the doctrine that where the declaration contains a defect which would have been fatal on demurrer, yet, if the issue be such as required on trial proof of the facts defectively set out, and without which the ver- dict could not regularly have been given, such defect is cured by the verdict at common law. This doctrine is applied in Chapman v. Smith to that case, and the verdict cured the defects in the declaration, which were the want of averments that the testimony was material, and that the justice had power to administer an oath. If a "verdict is sufficient to cure the want of the averments of materi- ality in the testimony, and of jurisdiction in the justice to administer an oath, it will also cure all the defects in this count. The words are not aided by the matter stated in the inducement, because the colloquium is not of that matter, but the words themselves relate to a trial in a court before a justice of the peace in a civil cause, when an oath was administered. There can be no trial before a justice where false swear- ing to a material point would not be perjury; the words cannot relate to an extra-judicial oath, for they allude to an oath on a trial at law. And where the defendant alleged that the plaintiff swore false, — so false that the defendant could not enjoy himself in a religious meeting with him, — he negatives the idea that the oath was false by mistake ; of coui'se it was wilful and corrupt ; in other words, perjury. In my opinion the words import a charge of perjury ; and if the count does not state it with all proper precision, still the verdict cures all these defects, as all the facts which should have been averred must have been proved upon the trial. The judgment in the court below should not have been arrested, and the judgment of the Common Pleas must therefore be reversed with costs, and a venire de novo must issue. 2 i 11 Johns. E. 142. 2 Magee v. Stark, 1 Humph. 506, aoc. See also Spooner v. Kee'.er, 51 N. T. 627. — Ed. BECT. III.] EOBERTS V. CHAMPLIN. 699 ROBERTS v. CHAMPLIN. Supreme Couet of Judicature, New York, July, 1835. [Reported in 14 Wendell, 120.] Eeeob from the Yates Common Pleas. Roberts sued Champlin in an action of slander. The plaintiff alleged that he had been sworn and testified as a witness in a suit before a justice of the peace, in which Champlin was the plaintiff and one Burtch was defendant, and that in a conversation respecting the plaintiff and the testimony given by him in that suit, the defendant charged the plaintiff with having sworn false and perjured himself. There was also a count charging the de- fendant with imputing to the plaintiff the crime of perjury generally, without reference to any particular suit. On the trial of the action of slander it was proved that the suit of Champlin against Burtch was an action of trespass quare clausum fregit, that Roberts was sworn as a witness on the trial of that suit, and testified that Champlin had said that he would sue Burtch from Starkey to Benton, *'. e., from one town to another, which was the whole amount of his evidence. Several witnesses proved the words alleged in the declaration, but testified that the false swearing imputed to the plaintiff had reference to the testimony given by him on the trial between Champlin and Burtch. The counsel for the defendant insisted that the evidence given by Roberts on the trial of the suit of Champlin against Burtch was not material to the issue then tried, and that therefore the words for the speaking of which this action was brought were not actionable, and moved that the plain- tiff be nonsuited. The court granted a nonsuit, and the plaintiff sued out a writ of error. C. P. KirMand, for plaintiff in error. I. L. Wendell, for defendant in error. By the court, Savage, C. J. False swearing in a cause, unless to some fact material to the issue, is not perjury, and is not the subject of indictment or punishment; and as this class of slanderous words are actionable in themselves only when they impute a crime punishable by law, it follows, that to charge a man with false swearing simply is not actionable, unless reference is made at the time to testimony given wherein the crime of perjury might have been committed. In an action of this nature, where the words spoken do not necessarily im- port perjury, the plaintiff is bound to show that he swore under such circumstances that he might have, been guilty of the crime. He must therefore prove that the testimony alluded to by the defendant and charged as false was material. In this respect the plaintiff failed, in the court below, in sustaining his action upon the words which impute 700 BOBERTS V. OHAMPLIN. [CHAP. IX. false swearing. Whether the plaintiff had said he would sue Burtch from Benton to Starkey or not, was totally immaterial to the issue then on trial. It did not prove nor disprove that Burtch's children or cattle or geese had trespassed upon the plaintiff, nor could it affect the damages. Thus far, therefore, the court below were clearly right. To some of the witnesses the defendant added, that the plaintiff had per- jured himself. When this was said, and explained to mean the testi- mony alluded to, the charge carried with it its antidote. It was impossible that perjury could have been committed in the testimony to which allusion was made; the words, therefore, are not actionable any more than those of false swearing. To say that A. B. committed perjury in an extrajudicial affidavit, or any oath not sanctioned by law, is not actionable, because the legal technical crime of perjury could not have been committed. The same consequence must follow where the charge is made of immaterial testimony. The facts sworn to by the plaintiff were no more legal material testimony in the cause, than if the oath had been taken out of court, or before a person not author- ized to administer it. The materiality of the testimony is as essential an ingredient in the crime of perjury as the legality of the oath itself. I am aware that this doctrine is liable to serious objections. The same injury may be done to the character of the accused by a charge of false swearing or of perjury, when perjury could not be committed, as if it could ; and it may produce the same or even greater tendency to a breach of the peace. But we find the law settled that words of this description are not actionable unless they import a charge of per- jury. It is also settled that any words imputing a crime in terms may be so qualified and explained by concomitant circumstances as to become not only neutralized but even innocent. From the application of these principles to this case it results that the words spoken were not actionable. The court below decided correctly, and their judgment must be affirmed. 1 1 Croford v. Blisse, supra, p. 642 ; Michell v. Brown, 1 Roll. Abr. 70, pi. 45 ; Myan v. Okey, Freem. 17 ; Browne v. Brinkley, Ow. 58 ; Horn v. Foster, 19 Ark. 346 ; Darling v. Banks, 14 HI. 46; Sibley v. Marsh, 7 Pick. 38; Palmer v. Hunter, 8 Mo. 512; Harris v. Woody, 9 Mo. 113 ; Bullock v. Koon, 9 Cow. 30 ; Ross v. Rouse, 1 Wend. 475 ; Bullock v. Koon, 4 Wend. 531 ; Power i>. Price, 12 Wend. 500 ; Wilson v. Oli- phant, Wright (Ohio), 153 ; Studdard v. Linville, 3 Hawks, 474 ; Wilson v. Clous, 2 Speer, 1 ; Cannon v. Phillips, 2 Sneed (Tenn. ), 185 ; Vliet o. Rowe, 1 Pinn. 413, ace. In Coons v. Robinson, 3 Barb. 625, and Dalryrmple u. Lofton, 2 Speer, 588, it was held that the onus was upon the defendant to prore the immateriality of the plain- tiff's evidence. Conf. M'Claughry v. Wetmore, 6 Johns. 82 ; Niven o. Munn, 13 Johns. 48 ; Chapman v. Smith, 13 Johns. 78 ; Hutchins v. Blood, 25 Wend. 413 ; Howard v. Sexton, 4 N. Y. 157; Palmer v. Bogan, 2 McMullan, 122; s. c. Cheres, 62. — Ed. SECT. III.] CORNELIUS V. VAN SLTCK. 701 CORNELIUS v. VAN SLYCK. Supreme Court of Judicature, New York, January, 1839. [Reported in 21 Wendell, 70.] Demurrer to declaration. The plaintiff declared in slander, for that the defendant in a discourse had with the plaintiff, in the presence and hearing of divers citizens, uttered these words, " You will steal, and I can prove it," adding, " thereby meaning and intending to have it understood and believed by those citizens last aforesaid, that the said plaintiff had been guilty of stealing, or larceny." There was a second count, charging the words to have been spoken of and concerning the plaintiff in the third person, " he will steal," &c, with a like averment as in the first count. The defendant demurred, for that the words did not impute a crime ; that they imputed only a disposition to steal, and therefore were not actionable. S. Stevens, for the defendant. An action does not lie for words charging an intent to commit a crime, unless the intent be made pun- ishable by statute. If the words were spoken under circumstances which would authorize a jury to find that the object of the defendant was to impute a crime, the circumstances should have been stated, and the plaintiff ought specially to have averred that such was the object of the speaker, as was held in Andrews v. Woodmanse. 1 Here is a mere innuendo, and that is not sufficient. 5 Johns. R. 211 ; 16 Wen- dell, 9. J). Wright and M. T. Reynolds, for the plaintiff. By the court, Cowen, J. Taking all the words together, you or he "will steal, and I can prove it," we think they may very well be taken to import a charge that the plaintiff had stolen, and may therefore be laid with an innuendo to that effect. How could the defendant prove that the plaintiff would steal without showing an act of larceny, and seeking to infer the propensity from that? Other modes of proof might perhaps be conceived of, but not very easily. It must require an effort of the mind, which few by-standers would exert. One inquir- ing the character of another, and receiving for answer " he will steal," would, it seems to me, of itself, and without any thing more, be at once understood by the inquirer as equivalent to saying he had stolen. Words should be taken in the sense in which they would probably be understood by the hearers. Where they plainly import a charge of mere intention to do a criminal act, or only amount to an assertion that the plaintiff will do it at a future time, they are not actionable ; » 15 Wend. 233. 702 JACOBS V. FYLER. [CHAP. IX. yet a party cannot protect himself from an action by the mere gram- matical structure of his phrase. Goodrich v. Woolcott * is certainly an authority for saying that words of more equivocal meaning than these will sustain a verdict, there being an averment that they were meant and understood to charge a crime ; and I collect from the reasoning of the court that they would have held the declaration good against a demurrer. A man says of another, he will get drunk, he will lie, or use profane language ; would the hearer doubt that a charge of his being habitually addicted to such vices was intended? And sup- posing them to be slanderous, which they would be in some cases, as if uttered of a clergyman, who would deny that such an import might be directly affixed to them by a mere innuendo ? A fortiori, if fol- lowed by stating that the vices insinuated in such a form could be proved ? We think the demurrer is ill taken ; and that judgment must be for the plaintiff 2 JACOBS v. FYLER. Supreme Court, New York, October, 1842. [Reported in 3 Hill, 672.] Slander, for words imputing perjury, tried before Moseley, C. J., at the Onondaga circuit, September 30th, 1841. The action was brought by Amasa Jacobs against Asa Fyler. The declaration set forth a suit tried at a Circuit Court in Onondaga County, between Matthew L. Winne, plaintiff, and the said Asa Fyler, defendant, aver- ring that Jacobs was there sworn and gave material testimony on the part and behalf of the said Winne, &c, and that the words complained of were spoken of and concerning the said Jacobs and his testimony so given in said suit, &c. On the trial, the proof was of a suit in which Matthew L. Winne was plaintiff, and Asa Fyler and Orrin Fyler were defendants ; and that the present defendant, in speaking of the suit after it had been tried, said, that Jacobs (the present plaintiff) had sworn false, and ought to be dealt with in the church. On another occasion he said to one Ayls- worth, referring to the same suit, that Jacobs had sworn false to his injury of six or seven hundred dollars. The defendant objected, 1. That the proof varied from the declaration in respect to the suit in i 8 Cowen. 231. a Conf. Gibson v. Williams, 4 Wend^ 320; Ex parte_$a.ily, 2 Cow. 479. — Ed. SECT. III.] JACOBS V. FYLER. 703 •which the plaintiff's alleged testimony was given ; 2. That there was no sufficient evidence of his having been sworn in the suit mentioned in the declaration ; 3. That the materiality of the testimony, if any had been given, was not shown. The circuit judge overruled these ob- jections, and submitted the cause to the jury ; .whereupon the defend- ant's counsel excepted. Verdict for the plaintiff. The defendant now moved for a new trial on a bill of exceptions. J. A. Spencer, for the plaintiff, insisted that the several objections taken at the trial were well founded, and should have been allowed. He cited 3 Stark. Evid. 1143 (3d Am. ed.) ; Bullock v. Koon; 1 M'Claughry v. Wetmore ; 2 Crookshank v. Gray ; 8 Ross v. Rouse ; 4 Chapman v. Smith ; 6 Power v. Price. 6 B. D. JVbxon, contra, cited in answer to the first point, 2 Saund. PI. &Ev. 796, 7; id. 807 to 809; May v. Brown; 7 Potter v. Hopkins; 8 The East Boston Timber Co. v. Persons. 9 In answer-to the second and third points, he cited Power v. Price ; I0 Stone v. Clark ; n Carter v. Andrews. 12 By the court, Cowen, J. If it was necessary to show the fact that the plaintiff was sworn as a witness, the slander itself impliedly ad- mitted it. That is sufficient. There was no objection that the proof was secondary in degree. As a general rule, it is to be intended that what a witness has sworn to is material ; and when he is charged with having sworn falsely in a judicial proceeding, the charge imports perjury. Power v. Price ; 18 Stone v. Clark. 11 If the defendant mean to escape on the ground that the plaintiff's testimony was in truth immaterial, and so not perjury, he must show that fact on his part. Indeed, he must go much further. He must prove that the slanderous words themselves were so qualified as to come short of imputing the crime of perjury. The injury consists in the fact that the defendant ostensibly charged the plaintiff with perjury. The hearer can know nothing of what actually passed in court to qualify the real nature of the falsehood imputed. Of what possible effect by way of exculpation or mitigation can it be, after telling the plaintiff's neighbors that he had been guilty of a crime, to go further and show that he was innocent ? The proposition comes to that. The plaintiff is sworn as a witness. The defendant says he 1 9 Coweu, 30. * 6 John. Eep. 82. » 20 id. 344, 349. 4 1 "Wend. 475. 6 13 John. Rep. 78, 81. 6 12 Wend. 600 ; 16 id. 450, s. c. on error. 7 3 Barn. & Cress. 113. 8 25 Wend. 417. 9 2 Hill, 126 ; 2 R. S. 843, 344 (2d ed.) ; id. 328. W 16 Wend. 450. " 21 Pick. 61. 12 16 id. 1. 18 12 Wend. 500, 502; 16 id. 450, s. c. on error. " 21 Pick. 51. 704 JACOBS V. FTLEB. [CHAP. IX. swore falsely. No hearer can presume that he had been telling an idle story having no connection with the cause, for no court would listen to such a story ; and therefore the charge must be interpreted as one of perjury. How then can it take from the slander that the plaintiff in fact swore to nothing material ? If the defendant said so, very well ; then there was no slander ; but the whole comes down to the words themselves. 1 Stone v. Clark ; 2 Carter v. Andrews. 8 It is not even necessary to prove that a suit was pending, or to show that the colloquium referred to any suit in particular, where the words in them- selves amount to a charge of perjury, as it appears to me they did here. Sherwood v. Chase, 4 and the cases there cited; Gilman v. Lowell. 6 Take the words addressed to* Aylsworth : " He has sworn false to my injury six or seven hundred dollars." No one would understand this to be extrajudicial swearing, or telling a white lie. The words, per se, import peijury. A pending suit and a colloquium concerning it are necessary in those cases only where, without them, the hearer would be left in doubt whether the oath might not have been voluntary. Gilman v. Lowell. 6 If the words are incompatible with its being so, the slander is only aggravated by the defendant going behind them, and showing that the plaintiff took a legal or judicial oath, and stated facts which throughout were utterly immaterial and necessarily innox- ious. The case of Bullock v. Coon " related to a charge in the face of the arbitrators and audience while the plaintiff was testifying, that he was swearing to a lie. The case turned wholly on the degree of proof which was received, at the circuit to show the jurisdiction of the arbi- trators. When it was said that materiality should also have been shown, it may have been true of the particular case for reasons not ap- pearing ; but it was going beyond the general rule, and beyond the point on which the new trial was granted. Even in respect to the latter, it would, I apprehend, have better accorded with the course of modern and well-considered authority, to have held that ostensible jurisdiction was enough to render the words legally pernicious, and that the bond of submission need not have been produced. If the words in the case before us were actionable independently of the suit and oath recited, and the colloquium alluding to that suit, then the question of variance is unessential. It can hardly be said 1 Harris v. Purdy, 1 Stew. 231 ; Harbison v. Shook, 41 111. 141 (Statutory) ; Fowle v. Robbins, 14 Mass. 498 ; Stone a. Clark, 21 Pick. 51 ; Wood v. Southwiek, 97 Mass. 354 ; Lewis v. Black, 27 Miss. 425 ; Butterfield ;-. BufEum, 9 N. H. 156 ; Power v. Price, 16 Wend. 450 ; Spooner v. Keeler, 61 N. Y. 527 ; Shroyer v. Miller, 3 W. Va. 158, ace. — Ed. 2 21 Pick. 51. 8 16 id. 1. * 11 Wend. 38. 6 8 Wend. 573, 577. « 9 Cowen,. 80. SECT. HI.] JACOBS V. FYLER. 705 that here was any variance. The declaration recites a suit of Winne v. Asa Fyler. The suit proved was in truth between those parties ; but Orrin Fyler was also defendant. There is no doubt, however, that if this was a misrecital, the pleading was amendable within the statute, and, according to our settled course of practice, if the statute were inapplicable. New trial denied} i Coons v. Robinson, 3 Barb. 625, ace. ; Mebane v. Sellars, 3 Jones (N. Car.) 199, contra. — Ed. 46 706 ANONYMOUS. [OHAP. IX. Slander — (continued). (6) woeds disparaging a person in his trade, business, office, ob Profession. KEMPE'S CASE. In the King's Bench, Michaelmas Teem, 1552. [Reported in Dyer, folio 72 6, placitum 6.] Memorandum. That for these words, " William Kempe will within these two days be a bankrupt," an action upon the case was brought in B. R., and a demurrer in law, and an argument whether it lies, Qucere. And, as I was informed, judgment was given in that case for the plain- tiff. See action upon the case for words, " A. B. is infected with such a robbery and murder, and doth smell of it." x ANONYMOUS. In the King's Bench, Eastee Teem, 1584 [Reported in Moore, 179.] An action was brought in the Queen's Bench for calling the plain- tiff, who was an innkeeper, " a caterpillar, for he liveth by robbing of his guests." And all the judges held clearly that the action would not lie ; for this is the same as if he had said, " He liveth by powling and pilling," which is incidental to this trade ; but if he had said, " He is a caterpillar, and liveth by robbing in the highway," it would be other- wise. I Allen v. Swift, Hutt. 46; Hawkins v. Cutts, Hutt. 49; Johnson v. Lem- tnon, Palm. 63 ; Leycroft o. Dunker, Cro. Car. 317 ; Walkenden v. Haycock, Sty. 425 ; Willison o. Crow, Sty. 75 ; Cook v. Tucker, Carth. 330 ; Browne v. Robin- son, Freem. 18 ; Hill's Case, Latch, 114 ; Garret v. Shelson, 2 Show. 295 ; Harrison v. Thornborough, 10 Mod. 196 ; Read v. Hudson, 1 Ray. 610 ; Simpson v. Barlow, 12 Mod. 591 ; Vivian's Case, 3 Salk. 326 ; Hall v. Smith, 1 M. & S. 287 ; Robinson v. Marchant, 7 Q. B. 918 ; Brown v. Smith, 13 C. B. 596 ; Babonneau v. Farrell, 15 C. B. 360 ; Daines v. Hartley, 3 Ex. 200 ; Gostling v. Brooks, 2 P. & F. 76 ; Turner v. Foxall, 2 Cranch C. C. 324 ; Mott v. Comstock, 7 Cow. 654 ; Sewall v. Catlin, 3 Wend. 291 ; Ostrom v. Calkins, 5 Wend. 263 ; Else u. Ferris, Anthon's N. P. 36 ; Carpenter v. Dennis, 3 Sandf . 305 ; Calkins v. Wheaton, 1 Edm. Sel. Cas. 226 ; Lewis v. Chapman, 16 N. Y. 369. — Ed. SECT. III.] HILLIARD V. CONSTABLE. 707 BIRCHLEY'S CASE. In the Queen's Bench, Michaelmas Term, 1585. [Reported in 4 Reports, 16 a.] Biechley being one of the attorneys or clerks of B. R., and sworn to deal duly without corruption in his office, the defendant, speaking of the manner of Birchley's dealing in his profession, said to Birchley, " You are well known to be a corrupt man, and to deal corruptly." It was resolved that the said words ex causa dicendi imply that Birch- ley had dealt corruptly in his profession ; also it was said, quod sertno relatus ad personam, intelligi debet de conditione personce. And the plaintiff had judgment for two reasons : 1. Because the said scandal touches the plaintiff in his said oath. 2. The said words scandalize him in the duty of his profession, by which he gets his living. Skinner, a merchant of London, said of Man wood, C. B., that "he was a corrupt judge," and it was adjudged that the words were actionable. Vide 4 E. 6, Action sur le Case, 112. But it was resolved in the principal case that, if the precedent speech had been that Birchley was a usurer, or that he was another's executor, and would not perform the will, &c, and thereupon the defendant had spoke the said words, then no action would be maintainable for them, which agree with the resolution in the Lord Cromwell's Case. 1 HILLIARD v. CONSTABLE. In the Queen's Bench, Michaelmas Teem, 1593-94. [Reported in Crake's Elizabeth, 306.] Action for these words : " Sir Christopher Hilliard is a blood-sucker, and sucketh blood ; but if any man will give him a bribe, as sheep, or l Smith v. Andrews, Sty. 183 ; Dison v. Bestney, 13 Rep. 71 ; Gibs v. Price, Sty. 231; Anon., Moore, 180; Box v. Barnably, Hob. 117; Starkey a. Taylor, Hetley, 139, 143, ace. See Thornton v. Jebson, Hob. 140 ; Anon., Moore, 61 ; Jenkinson v. Wray, Moore, 401 ; Roberts v. Lord, Ley. 70 ; Carye's Case, Poph. 207 ; Shire v. King, Yelv. 32 ; Cuttes v. , Gold. 85 ; Yardly u. Ellice, Moo. 855 ; Anon., Godb. 214 ; Smayles a. Smith, 1 Brownl. 1, 16 ; Stephens v. Battyn, 1 Brownl. 3 ; Jenkins v. Smith, Cro. Jac. 586 ; Love v. Playter, Cro. Car. 40 ; Dawburn v. Martyn, Latch, 20 ; Mead v. Perkins, Cro. Car. 261 ; Litman u. West, Hetley, 123 ; Webb v. Meholls, Cro. Car. 459; Anon., Cro. Car. 516; Joffryes v. Payhem, Cro. Car. 510; Annison v. Blofleld, Cart. 214 ; Rush o. Cavenaugh, 2 Pa. 187. Conf. Phillips v. Jansen, 2 Esp. 624; Reeves v. Templar, 2 Jur. 137; Foot v. Brown, 8 Johns. 64 — Ed. 708 POB V. MONDFORD. [CHAP. IX. a couple of capons, he will take them." Upon not guilty pleaded, it was found not guilty as to all the words except " he is a blood-sucker, and sucketh blood ; " and for them he was found guilty. The opinion of the court was, upon motion in arrest of judgment, that the last words not being found, an action did not lie for the first ; for though he alleged in his declaration that he was a justice of the peace, and one of the council in the North, yet the first words cannot be any slander, for it 'cannot be intended what blood he sucked. And by the advice of the greater part of all the justices of England, it was adjudged for the defendant. 1 PARRAT v. CARPENTER. In the Queen's Bench, Eastee Teem, 1596. [Reported in Croke's Elizabeth, 502.] Action upon the case for words. And declares, whereas he was parson of D., and a preacher, that the defendant spake these words: " Parrat " (innuendo the plaintiff) " is an adulterer, and hath had two children by the wife of J. S., and I will cause him to be deprived for it." After verdict it was moved that an action lay for these words ; for they be very slanderous to the plaintiff, and touch him in his credit and profit, and are cause of deprivation, if they be true. But the court held that it is a slander examinable only in the spiritual court, and not here. Wherefore it was adjudged for the defendant. 2 POE v. MONDFORD. In the Queen's Bench, Michaelmas Teem, 1598. [Reported in Croke's Elizabeth, 620.] Action for words. Whereas the plaintiff was and is a physician, and the defendant, intending to defame and prejudice him in his art, false et malitiose, spake of him these words : " Mr. Poe " (innuendo the plaintiff) "hath killed Mr. Pasfield, of the Old Jewry, with physic" (quendam Johannem Pasfield, late inhabiting within the Old Jewry, 1 This case was reconsidered, and judgment for the defendant affirmed. Cro. Eliz. 433. 2 Nicholson o. Lyne, Cro. Eliz. 94; Anon., Sty. 49, ace. ; Demarest k. Haring, 6 Cow. 76, contra. See Payne v. Beuwmorris, 1 Lev. 248. — Ed. SECT. III.] CBOOK V. AVERT. 709 and now deceased, innuendo), " which physic was a pill, and the vomit was found in his mouth; and Doctor Atkins and Doctor Paddy" (guosdam JHenricum Atkins et Jbhannem Paddy, doctors in physic, innuendo) "were there, and found it so, and it is true;" ubi revera neither the said Doctor Atkins nor Doctor Paddy, nor any other, ever found any such thing to be committed by him; et ubi revera he never administered any physic unto him in pills or otherwise, &c. The de- fendant pleaded a concord in bar, which plea was ill pleaded (as it was agreed on both sides) ; whereupon the plaintiff demurred. And now Coke, Attorney-General, moved that an action lay not for these words ; for it is not any slander to a physician to say of him that he killed one with physic; for he might do it involuntarily, in not knowing the disease, and no discredit unto him. Popham and Fennee held that the action lay not ; for it cannot be any discredit to a physician to say that he killed one with physic ; it is a usual and common expression, and it may be without any default in him ; for they may mistake the diseases in their own bodies, much more in others, and apply wrong medicines, which may be the cause of the patient's death, and yet no discredit unto them ; but if it had been that he, scienter et voluntarie, ministered physic to one to kill him, that toucheth him in his profes- sion, and the words had been actionable, but not here ; and although it be said that he never administered any physic unto him, that is not material ; wherefore they, without any argument on the plaintiff's side (Clench, repugnante, and Gawdy, absente), adjudged it for the de- fendant. 1 CEOOK v. AVERY. In the King's Bench, Eastee Teem, 1614 oe 1615. [Reported in 2 Bulslrode, 216.] In an action upon the case for scandalous words spoken by the de- fendant of the plaintiff, upon non culp. pleaded, a verdict was given for the plaintiff. It was moved for the defendant in arrest of judgment that the words were not actionable. The words were these, spoken by the defendant of the plaintiff, being a merchant : " Mr. Crook came into Cornwall with a blue coat on his back ; but hath now gotten together a great quantity of wealth by trading with pirates, cozening in the sale of pilchars, and by extortion." These words, super quoddam col- 1 Anon., 1 And. 268 ; Watson v. Vanderlash, Hetley, 69, contra. See Smith v. Tay- lor, 1 N. R. 196 ; Tutty v. Alewin, 11 Mod. 221. — Ed. 710 FLEETWOOD V. CURLET. [CHAP. IX. loquium de prmdicto Carolo propalavit : it was urged that these words are too general, and so not actionable. Coke, C. J. The best man in the world may trade with pirates ; the best merchants of England may have such trading ; but this was un- known unto him. 2. Cozening in the sale of pilchars : this goes to merchants, and this is only by mistelling ; these words not actionable. 3. He hath extorted. Extortion is colore officii ; these are very bad words, and do sound in slander ; but we are not to give too much way to such actions upon the case for any words, unless here be express authority for the same, or very apparent slander by the words spoken. In the time of King Henry I., and in part of King Edward III., there were no actions upon the case for words, nor assumpsits ; but these have very much increased of late times ; too much way not to be given to them. Doddeeidge. These words, as they are laid in this declaration, are not actionable, they being too general ; they ought also to be express words, and scandalous, and not so by implication. The whole court agreed herein, that these words are not actionable, and so the plaintiff ought not to have his judgment; and therefore the rule of the court was that judgment should be stayed, et quod querens nil capiat per billam. FLEETWOOD v. CUKLEY. In the , Hilary Teem, 1619. [Reported in Hobart, 267. J Miles Fleetwood, knight, brought an action upon the case against Francis Curley, Esq., and declared, that whereas the king, by his let- ters-patents, An. 7, did make him general receiver of the court of wards during his life, which office he had justly executed ever since; that the defendant, the 16 of K. Jac, having speech with one Whore- wood of the plaintiff, did speak of the plaintiff these words, "M. deceiver " (innuendo the plaintiff) " had deceived and cozened the king, and dealt falsely with him, and I have him in question for it, and I doubt not but to prove it ere it be long." Upon issue not guilty, it was found for the plaintiff before me at Guildhall ; in arrest of judg- ment it was said, that it doth not appear by the words spoken, that they were spoken of the plaintiff; for "M. deceiver" had no propriety to that purpose ; and then the innuendo will not make it certain, when it appeareth to the court that the words will bear no certainty. SECT. III.] FLEETWOOD V. CURLEY. 711 Secondly, it was objected that he did not say that the plaintiff did deceive the king in his office. Yet the court, after divers arguments, gave judgment for the plaintiff. And as to the first exception it was agreed, that if a man should say, looking upon three persons, " One of these three murdered a man," no innuendo will help this uncertainty, no more in the person than in the matter of the scandal. P. 13 Jac. Harvy brought an action against Ducking, for saying that he had forged a writing, innuendo a bill of debt, setting down in the innuendo all the circumstances; and though he had a verdict, yet could have no judgment. But here it is said, that at the time of the words the defendant had speech of the plaintiff, and expressly that he spake these words of the plaintiff. And then the word " deceiver," though in propriety it doth not import receiver, yet the allusion and ironical resemblance of the name doth very well bear the application of the innuendo ; and if such a slight evasion should be admitted, it would be a common practice with crafty wits, to slander safely. And if he had said "M. receiver," there had been no doubt. And as to the second point, it was likewise agreed that words of an ambiguous sense shall receive the best sense ; as pox, not the French pox. And 12 Jac. Miles brought an action against Jacob, for saying he had poisoned one Smith, and had judgment in the King's Bench; but we reversed it, because it might be against his will. It was also" agreed, that if the plaintiff should have added an innuendo that the deceit was in his office, it would have been nothing available. But the court resolved, that upon the whole case here, the words must be understood of themselves, by construction of law, of his office ; for words ambiguous must also be of indifferent sense that shall be indif- ferently taken. But when there is a pregnant, violent, and certain sense that may lead the court and hearers to take it one way, that shall be taken, and not another imagined, whereof there is no appearance. So here, when you say of the king's receiver that he deceived the king, it must be understood in that wherein it appeareth that he may deceive him, and not to take it at large when no other meaning appears ; and there- fore not like the case of pox, or poisoning before mentioned ; other- wise if he had said, that he had been a common deceiver, without applying it to the king certainly, whose officer he is. Mic. 11 Jac. Yardly being an attorney, brought an action against Ellis, and declared whereas he was retained by one Bancroft against the defendant, he said of him to Bancroft, "Your attorney is a bribing knave, and hath taken twenty pounds of you to cozen me," and had judgment; for it shall be taken 3poken of him as an attorney. And Mich. 14 Jac. Box, an attorney, brought an action against Barnaby for calling him 712 SQUIRE V. JOHNS. [CHAP. IX. champerter, and had judgment. And it is not material that it is not alleged in this case and the others, that the hearers did know him to be the king's receiver, and the others to be attorneys ; and yet it were not actionable, if it were not so ; and the slander and damage consist in the apprehension of the hearers ; and therefore slanderous words in Welsh bear no action, except you affirm that they were spoken in the hearing of them that understood the Welsh tongue. But when slanderous words are spoken, which are a wrong, the doers are answerable for all evil events and damages. Now the hearers may come to the knowledge, or others to whom they shall report the words may know, that they are persons of that condition that make the words actionable, which in the case of Welsh words cannot be so understood in any reasonable possibility. 1 SQUIRE v. JOHNS. In the King's Bench, Michaelmas Teem, 1620. [Reported in Croke's James, 685.] Eeeoe of a judgment in the Common Pleas, in an action for words brought by Johns against Squire, wherein he declares, whereas, he is and for ten years last past was a dyer, and during all the said time used to get his living by buying and selling, that the defendant spake of the plaintiff these words, " Thomas Johns, of Hertford " (innuendo the plaintiff) "is a bankrupt knave, and is not worth three-half-pence." After verdict, upon not guilty, and judgment for the plaintiff, error was assigned that these words were not actionable, because they are spoken adjectively; and a dyer, being a mechanical trade, shall not 1 Townsend v. Barker, Sty. 394 ( Church-warden) ; Strode v. Homes, Sty. 338 (Church-warden) ; Woodruff v. Weoley, Cart. 1 (Church-warden) ; Hopton v. Baker, 2 Bulst. 228; Nile v. Swanson, Yelv. 142 (Town-clerk); Lee b. 'Swan, Godb. 157 (Town-clerk) ; Curie's Case, Winch, 33, 39 (Auditor) ; Corbin v. Merson, 1 Sid. 342; Henly v. Baynton, Sty. 436 ; Greenfield's Case, March, 82 ; Prinn v. Howe, 1 Brown Pari. C. 97 (Privy Councillor) ; Woodard v. Dowsing, 2 M. & Ry. 74 (Overseers of Poor) ; Harle v. Catherall, 14 L. T. N. s. 801 (Way-warden) ; Forrest v. Hanson, 1 Cranch C. C. 63 (Bank Director) ; Craig v. Brown, 5 Blatchf. 44 (Postmaster) ; Johnson v. Stebbina, 5 Ind. 364 (Postmaster) ; Dodds v. Henry, 9 Mass. 262 (Town- clerk) ; Johnson v. Shields, 1 Dutch. 116 (Director of a Company) ; Dole v. Van Benssaler, 1 Johns. Cas. 330 (Sheriff); Lansing v. Carpenter, 9 Wis. 540 (Court Commissioner); Wilson v. Noonan, 23 Wis. 105 (Senator), ace; Hutton v. Bech, Cro. Jac. 339 (Church-warden) ; Willis v. Shepherd, Cro. Jac. 619 (Church-warden), contra. — Ed. SECT. III.] BARKER V. KINGBOSE. 713 have any action for these words ; and it was cited to have been ad- judged that a weaver shall not have an action for such words, but no record was shown thereof. 1 But in the principal case, all the court resolved that the action is maintainable ; for being alleged that he obtained his living by buying and selling, it is sufficient cause to bring the action ; and they held a dyer to be such a trade, that for such words he may well maintain the action. Wherefore judgment was affirmed. 2 BARKER v. RINGROSE. In the King's Bench, Michaelmas Teem, 1626. [Beported in Popham, 184.] Barker brought an action upon the case against Ringrose, and de- clared that, whereas he was of good fame, and exercised the trade of a wool- winder, the defendant spake these scandalous words of him, " that he was a bankrupt rogue;" and it was moved in arrest of judgment that these words were not actionable, for the words themselves are not actionable, but as they concern an office or trade, &c, and it appeareth by the statute of 27 Edw. III., that a wool-winder is not any trade, but is but in the nature of a porter, so that the plaintiff is not defamed in his function, because he hath not any ; also it is not averred that he was a wool-winder at the time of the words speaking. Jones, J. If one saith of a wool-winder that he is a false wool- winder, action upon the case lieth ; and it was demanded by the court what a wool-winder was ; and it was answered that in the country he was taken to be a wool-winder that makes up the fleece and takes the dirt out of it; and a wool-winder in London opens the fleeces, and makes them more curiously up, and in London they belong to the mayn of the staple. Doderidge. If one saith of a sher-man that he is a bankrupt, action lies, and so it hath been adjudged of a shoemaker ; and note that if one saith of any man, who by his trade may become a bankrupt within the statute, that he is a bankrupt, an action lies, as of a tailor, fuller, &c. And the court seemed to incline that in this case, being spoken of a wool-winder in London, the action lies. But Mich. 3 Car., the case being moved again, the court was of opinion that the action could not lie, and would not give judgment for the plaintiff. 8 1 See Garret v. Shelson, 2 Show. 295, contra. — Ed. 2 Meade v. Axe, March, 15, contra. — Ed. 3 York v. Cecil, 1 Brownl. 18 (Tanner), ace. — Ed. 714 BILL V. NEAL. [CHAP. IX. CAWDRY v. HIGHLET. In the King's Bench, Michaelmas Term, 1632. [Reported in Croke's Charles, 270.] Action for words. "Whereas the plaintiff was of good conversation, and exercised in the practice of physic as well in London as in the county of Lincoln and other places, and by reason of his knowledge in the said art was, about twenty years since, made doctor of physic in Cambridge, according to the course of the university, and practised and ministered physic to divers noblemen and others fortwenty-one years last past ; that the defendant, prcemissorum non ignorus, out of malice, to scandalize him with his patients, and to withdraw them from meddling with him, said of the plaintiff, and to the plaintiff, in the presence and hearing of divers, " Thou art a drunken fool and an ass ; thou wert never a scholar, and art not worthy to speak to a scholar, and that I will prove and justify." After not guilty pleaded, and found for the plaintiff, Sutton moved that the action lies not ; for he doth not show there was communication with any concerning his skill in physic, or his practice therein ; and the first words, " Thou art a fool and an ass," are but words of scorn, and the other words touch him only in scholarship, and not in his art, and a physician may be no good scholar, and yet a good physician. And it was compared to Buckley's Case, for saying of an attorney that he " is a corrupt man ;" unless there be conference of his profession, the action lies not. Richardson, C. J., said he was of that opinion, but he would advise. Afterwards, in Trinity term, 9 Car. I., it was adjudged for the plain- tiff. 1 BILL v. NEAL. In the King's Bench, Hilary Term, 1662. Reported in 1 Levinz's Reports, 52. Action on the case, for that the defendant saith of him, being a jus- tice of peace, "He is a fool, an ass, a beetle-headed justice." After verdict, it was moved in arrest of judgment, that the words are not actionable, for they found only in disability and not criminally. But l Goddart v. Haselfoot, 1 Vin. Abr. Act. Words, S, a, pi. 12 ; Dr. Brownlow's Case, Mar. 116 ; Moises v. Thornton, 8 T. R. 303 ; Bergold v. Puchta, 2 N. Y. Su- preme Ct. 11. 532, ace. Conf. Foster v. Small, 3 Whart. 138. —Ed. SECT. III.] SEAMAN V. BIGG. 715 on the other side it was said, that the words are scandalous of him, and import his unfitness to be a justice of peace, and are a cause to remove him from his office ; and they cited Peard v. Jones, 1 "Dunce of a lawyer, and he will get little by the law," which were ad- judged actionable. And in the same book, Cawdry v. Highley, words spoken of a physician, "He is a drunken fool, an ass, never was a scholar, nor fit to speak to a scholar," adjudged actionable; and here those words charge the plaintiff with indiscretion, and render him in- capable of the office of a justice of peace. But it was adjudged by Foster, C. J., Wyndham and Twysden v. Mallet, that those words are not actionable, and cited Biscoe v. Hollis, 2 as a stronger case than this, and Hammond and Kingsmill's Case in this court, 8 where, for saying of a justice of peace, "He is a debauched man, and unfit to be a justice," it was adjudged no action lay ; and Justice Twysden said, that words which found in disability only are not actionable, except they are spoken of one who gains his living by that thing (profession) wherein the words do disable him. Mallet held these words action- able, being spoken of a magistrate. But all agreed that the defendant deserved to be bound to his good behavior for his sauciness of a mag- istrate. Whereupon the counsel of the plaintiff moved immediately that he might be bound to his good behavior ; but thereto the court answered that the court could not do it without a supplicavit first made, and before the supplicavit there ought to be a bill of the com- plaint filed. But Foster, C. J., said, That if any would sue to him for a warrant for the good behavior, he would grant it ; but as to the action, they gave judgment for the defendant. SEAMAN" v. BIGG. In the King's Bench, Michaelmas Term, 1637. [Reported in Crake's Charles, 480.] Action for words. Whereas the plaintiff was servant in husbandry to J. S., and was his bailiff, and in great trust with him, and thereby got his means and maintenance ; that the defendant, to disgrace and discredit him with his master and others, spake of him these words, " Thou art a cozening knave, and hast cozened thy master " {innuendo the said J. S.) " of a bushel of barley." The defendant makes justifica- tion, and it was found against him. Farrar now moved in arrest of judgment, that these words are not i Cro. Car. 382. 2 Cro. Jac. 58. 3 Sty. 22, 210. 716 DOD V. ROBINSON. [CHAP. IX. actionable ; for no action lies for calling one " cozening knave," or " cheating knave." But all the court (absente Brampston) held, that true it is generally an action will not lie for calling one " cozening knave," yet where the words are spoken of one who is a servant and accountant, and whose credit and maintenance depend upon his faithful dealing, and he by such disgraceful words is deprived of his livelihood and means of maintenance, there is good reason it should bear an action, that he might have recompense for loss of his credit and means. Wherefore it was adjudged for the plaintiff. 1 DOD v. ROBINSON. In the King's Bench, Trinity Teem, 1647. [Reported in Aleyn, 63, s. c. Style, 49.] Slander. The plaintiff declares that the last of March, 13 Car., he was instituted and inducted into a parsonage in Ireland, and executed the office of a pastor in that church by the space of four years after; and the defendant said of him, "He was a drunkard, a wboremaster, a common swearer, and a common liar, and hath preached false doc- trine, and deserves to be degraded." And after a verdict for the plain- tiff, it was moved by Hale in arrest of judgment, 1. That the words in themselves are not actionable, because the crimes charged impute no civil or temporal damage to the plaintiff for which he may have action. But the opinion of the court was clear for the plaintiff in that point ; for that the matters charged are good cause to have him degraded, whereby he should lose his freehold, which is a temporal damage to him. Then it was objected that he did not say that he was parson when the words were spoken ; to which it was answered by the court, that it should be intended he continued parson, because he had a freehold in the parsonage during his life. But it was further urged, that inasmuch as he hath laid a special time, during which he exercised the office of a pastor, it shall not be intended that he con- tinued so longer than himself hath laid it ; and of this the court doubted, but inclined for the plaintiff. 2 1 Wright v. Moorhouse, Cro. Eliz. 358 ; Reignalds' Case, Cro. Car. 563 ; Connors v. Justice, 13 I. C. L. R. 451 ; Ware v. Clowney, 24 Ala. 707 ; Butler v. Howes, 7 Cal. 87 ; Anon., Mar. 1, ace. ; Raynolds v. Blanchett, Freem. 275, contra. — Ed. 2 Bishop of Norwich u. Pricket, Cro. Eliz. 1. See Drake v. Drake, Sty. 363 (Liar) ; Pope v. Ramsey, 1 Keb. 542 (Knave, &c.) ; Cranden v. Walden, 3' Lev. 17 (Liar); McMillan u. Birch, 1 Binney, 178 (Drunkenness); Chaddock v. Briggs, 13 Mass. 247 (Drunkenness) ; Demarest v. Haring, 6 Cow. 76 (Incontinency), ace. — Ed. 6ECT. III.] BAKER V. MORFUE. 717 TERRY v. HOOPER. In the King's Bench, Michaelmas Teem, 1663. [Reported in T. Raymond, 86.] The plaintiff declares that he is a lime-burner, and gets his living by buying and selling thereof; and the defendant said of the plaintiff in arte sua, " John Terry is a runaway, and he is a base cheating rogue, and John Terry shall never think to bring John Webb where he is himself, and rather than so I will spend £20." On not guilty pleaded and found for the plaintiff, it was moved in arrest of judgment, because he doth not say that the defendant spoke of the trade of lime-burning, but de arte sua generally, and he may have another trade. Jones, for the plaintiff. In ancient time it was the constant course in declarations to lay a colloquium of the plaintiff; and it was a grand doubt if it was good without it, until Smith and Ward's Case. 1 And there resolved de quer 1 supplies the colloquium. Cro. Car. 515. Words of an attorney in his profession. And lime-burner is such a profes- sion of which he may be scandalized. Wtndham, J. 1. Lime-burning is such a trade of which a man may be scandalized, and so in any lawful occupation whatsoever, for it is his livelihood. 2. The flourishes in a declaration are of no effect, but only to aggravate damages. 3. The saying here de arte sua are applicable to his profession ; and a man may speak occasionally to the prejudice of the plaintiff without having discourse of his profession : as if two are speaking together of another, and a third person comes in and affirms a scandal of him ; this is commonly the worst scandal, and therefore judgment for the plaintiff. Twisden to the same intent. Kelyng, J., for the defendant. That de arte sua cannot be applied to his profession of lime-burning. Hide, C. J., for the defendant. Buying and selling is not incident to the art of lime-burning ; and he cited a case in C. B. 1655, accordingly, and because the court was divided no judgment was given. BAKER v. MORFUE. In the King's Bench, Easter Teem, 1668. [Reported in 1 Siderfin, 327.] In an action on tne case, the plaintiff declares that he, being an attorney, and the defendant speaking of him and of his profession, said i Cro. Jac. 673. 718 EEDMAN V. PYNE. [CHAP. IX. of him, " He hath no more law than Mr. C.'s bull." After verdict for the plaintiff it was moved in arrest of judgment, because the words were not per se actionable, and even if they were generally, yet they were not so here, since it is not avowed that C. has a bull. But it seemed to the court that the plaintiff should have judgment, because to say, "He hath no more law than a goose," has been adjudged action- able ; and although C. has no bull, it is still a slander. Quaere, as to saying, " He hath no more law than the man in the moon." 1 WHARTON v. BROOK. In the King's Bench, Eastee Teem, 1669. [Reported in 1 Ventris, 21.] In an action for words, the plaintiff declared that she was and had been a long time a midwife, and got divers gains ; and that the defend- ant, to scandalize her in her profession, said of her, " She is an ignorant woman, and of small practice, and very unfortunate in her way: there are few that she goes to but lie desperately ill, or die under her hands." The court held the action maintainable. But Twisden said, This hath been adjudged, where one brought an action, declaring she was a school-mistress, and taught children to write and read, by which she got her livelihood ; and that the defend- ant said of her, " She was a whore, and that J. S. kept her as his whore;" that to slander one in such a profession was not maintainable without special damage. 2 REDMAN v. PYNE. In the King's Bench, Michaelmas Teem, 1669. {Reported in 1 Modem Reports, 19.] An action upon the case was brought for speaking these words of the plaintiff, being a watchmaker : " He is a bungler, and knows not how to make a good piece of work;" but there was no colloquium laid of his trade. 1 Martyn v. Burlings, Cro. Eliz. 589 ; Giddye v. Heale, Moo. 695 ; Palmer's Case, Ow. 17 ; Peard v. Jones, Cro Car. 382 ; Powell v. Jones, 1 Lev. 297, ace. — Ed. 2 Gyles v. Bishop, Freem. 278; Flowers' Case, Cro. Car. 211; Whitehead v. Founes, Freem. 277, ace. See Anon., Skin. 86, contra. — Ed. SECT. III.] TODD V. HASTINGS. 719 Pemberton. The jury have supplied that, having found that he is a watchmaker. And it is true that words shall be taken in mitiori sensu ; but that is when they are doubtful. Cawdry v. Highley. Twisden, J. I remember a shoemaker brought an action against a man for saying that he was a cobbler; and though a cobbler be a trade of itself, yet it was held that the action lay, in Glyn's time. Saunders. If he had said that he could not make a good watch, it would have been known what he had meant; but the words in our case are indifferent, and perhaps had no relation to his trade. The judgment was ordered to be stayed. 1 TODD v. HASTINGS. In the King's Bench, Hilary Term, 1671. [Reported in 2 Saunders, 307.] Action on the case for slanderous words. The plaintiff declares that he was of good fame and credit, and that he was a draper, and got his living by buying and selling of cloths and other merchandises, and that the defendant, intending to slander him in his good name and credit, spoke to the plaintiff these scandalous words, to wit, " You are a cheating fellow, and keep a false book, and I will prove it ; " whereby the plaintiff had lost his customers, to his damage, &c. On not guilty pleaded, a verdict was found for the plaintiff, and damages 'assessed. And now it was moved in arrest of judgment that the words are not actionable, because it is not averred in the declaration that the defend- ant at the time of speaking the words had any communication con- cerning the plaintiff's trade or dealing by way of buying and selling, and so it does not appear that they were spoken in relation to it, and therefore they do not touch him in his trade. And the keeping of a false book does not imply that the plaintiff had kept a false debt-book ; for it may be any book which is falsely printed as well as a false shop- book ; and the words " cheating fellow " do not imply that he cheated in his trade, unless the words had been spoken on a communication concerning it ; for perhaps the plaintiff may be a cheating fellow at play, or gaming, or the like, and not in his dealing. And here the words being spoken generally without relation to any thing in par- ticular, they cannot be applied to the plaintiff's trade any more than to any other thing. And of such opinion was the whole court ; and the judgment was arrested. 2 1 See Fitzgerald v. Redfield, 51 Barb. 484. — En. 2 Godfrey v. Owen, Poph. 148 ; Anon., Godb. 40; Eglinton v. Aunsell, Godb. 88 j 720 WETHERHEAD V. ARMITAGE. [CHAP. IX. NEWMAN v. KINGERBT. In the King's Bench, Eastek Teem, 1672. [Reported in 2 Levinz, 49.] A prohibition was prayed and granted upon a suit in the ecclesi- astical court by a parson, for calling him fool, ass, and goose, for these are only words of heat, and do not touch him in his profession. SOUTHAM v. ALLEN. In the King's Bench, Michaelmas Teem, 1673. [Reported in T. Raymond, 231.] The plaintiff is a keeper of livery stables and an inn at the Bel- savage ; and the defendant had other stables for the same purpose in the same yard. A stranger comes with a wagon into the. yard, and demands of the defendant which is Belsavage-Inn. The defendant replied, " This is Belsavage-Inn : deal not with the plaintiff, for he is broke, and there is neither entertainment for man nor horse ; " and after verdict for the plaintiff, and great damages, judgment was given for the plaintiff .after much debate. 1 WETHERHEAD v. ARMITAGE. In the King's Bench, Michaelmas Teem, 1678. [Reported in 2 Levinz, 233.] Case by the plaintiff, a woman, and declares that she, per diversos annos (not saying ultimos elapsos) was skilled in dancing, and taught young women to dance, whereby she gained a livelihood ; and the de- fendant to injure her said, " She is as much a man as I am, she got J. S. with child, she is a hermaphrodite ; " by which she lost divers scholars, but Anon., Gold. 84; Ryle's Case, Cro. Eliz. 171; Brooke's Case, Hutt. 14; Loyd v. Pearce, Cro. Jac. 424; Bray v. Hayne, Hob. 76; Bronker's Case, Godb. 284; Betts v. Trevaman, Cro. Jac. 536 ; Coles v. Ketle, Cro. Jac. 204 ; Bell v. Thatcher, Ereem. 276 ; Harvy v. Martin, T. Kay. 75 ; Walmsley v. Kussel, 2 Salk. 696 ; Savage v. Bobery, 2 Salk. 694, ace. — Ed. i Nuton's Case, Freem. 25, ace. Conf. Jones v. Joice, 1 Vin. Abr. Act. Words, U, a, 7. — Ed. SECT. III.] POX V. LAPTHOENE. 721 does not mention any in particular. Verdict for the plaintiff; but after divers motions, pro and cow.., judgment staid; for hermaphrodite is not actionable, nor is it any scandal to her profession, for young women are taught to dance more frequently by men than women ; and no special damages are laid. And therefore the court held the words not action- able in themselves, without regard to the exception of its being diveraos annos (omitting ultimos elapsos). 1 -" PEACOCK v. LEACH. Ik the King's Bench, Hilary Teem, 1681. [Reported in T. Jones, 140.] The plaintiff declared quod emendo et vendendo mercimonia uberri- mam sibi et familice acquisivit vivendi sustentationem (without men- tioning any certain trade), and that the defendant said to him, and of him, " Thou art a pitiful beggarly-broken fellow." After verdict (on not guilty) for the plaintiff, an exception was taken, that it was not alleged that the plaintiff was of any certain trade, but not allowed. 2 FOX v. LAPTHORNE. In the King's Bench, Teinity Teem, 1681. [Reported in T. Jones, 156.] The plaintiff declared that he was terrm tenens (Anglice) a renter of lands, and that by buying and selling de tritico siliyine hordeo,&c, he had gained grandia lucra, and that the defendant said of him that he hath cheated in corn. After verdict for the plaintiff, adjudged quod nil capiat per billam, for, per cur., every common farmer is as well entitled to the action as the plaintiff, the words of inducement being no more than a description of a farmer. But by Pemberton, C. J., if no men- tion had been made of renting of lands, or if he had alleged that he was a badger, &c, the action perhaps would lie. 8 1 See Buck v. Hersey, 31 Me. 658. — Ed. 8 Boyer ». Shale, 1 Vin. Abr. Act. Words, U, a, 11, ace. ; Nichols v. Catsey, 1 Vin. Abr Act. Words, U, a, 38 ; Allen v. Swift, 1 Vin. Abr. Act Words, U, a, 42 ; Cockaine v. Hopkins, 2 Lev. 114, sembh contra. See Charter v. Hunter, Hurt. 14; Emerson u. , 1 Sid. 299 ; Hill's Case, Latch, 114 ; Anon., Mar. 119 ; Anon., Godb. 40. — Ed. 8 Phillips v. Phillips, Sty. 420 ; Eathbun v. Emigh, 6 Wend. 407, ace. — Ed. 46 722 CHAPMAN V. LAMPHIEE. [CHAP. IX. DOBSON v. THORNISTONE. In the King's Bench, Teinitt Term, 1686. [Reported in 3 Modern Reports, 112.] The plaintiff was a husbandman, who brought an action against the defendant for these words : " He owes more money than he is worth ; he is run away, and is broke ; " and he had a verdict. It was moved now in arrest of judgment that the words, being spoken of a farmer, are not actionable. To say that a gentleman is " a cozener, a bankrupt, and has got an occupation to deceive men," though he used to buy and sell, yet, being no merchant, it was the better opin- ion of the court that the words were not actionable. Anon. 1 So to say of a farmer that he is " a whoreson bankrupt rogue," and it not appearing that he got his living by buying and selling, or that the words were spoken of him relating to his occupation, it is not actiona- ble. Phillips v. Phillips. 2 For it must not only appear that the plain- tiff hath a trade : Hawkins v. Cutts ; s but that he gets his living by it : Emmerson's Case ; * otherwise the words spoken of him will not bear an action. But the court held the words to be actionable. The like judgment was given in the case of a carpenter, in Michaelmas term, 3 Jac. II., for words, viz., " He is broke and run away." B CHAPMAN v. LAMPHIRE. In the King's Bench, Hilary Teem, 1687. [Reported in 3 Modern Reports, 155.] An action on the case was brought for scandalous words spoken of the plaintiff, who declared that he was a carpenter, and a freeman of the city of London, and that he got great sums of money by buying of timber and materials, and by building of houses ; and that the defendant, having discourse of him and of his trade, spoke these words, viz., "He is broken and run away, and will never return again." There was a verdict for the plaintiff. A motion was now made in arrest of judgment, for that a carpenter i Godbolt, 40. 2 Styles, 420. 3 Hutt. 49. 4 1 Sid. 299. * Phillips v. Hoeffer, 1 Pa. 62, ace. ; Kathbun v. Emigh, 6 Wend. 407, contra. See Baine v. , March, 115. — Ed. SECT. III.] ASTON V. BLAGRAVE. 723 was not a trade within the statute of bankrupts ; and a day being given to speak to it again, Mr. JPollexfen, for the plaintiff, argued that, before the statutes made against bankrupts, words spoken reflecting upon a man in his trade were actionable even at the common law, because it might be the occasion of the loss of his livelihood ; and therefore it was actionable to say of a scrivener that "He is broken and run away, and dares not show his face;" and yet a scrivener was not within the statutes of bankruptcy before the act of 21 Jac. I. c. 19 ; therefore the action must lie at the common law, because these words disparage him in his trade. But the counsel for the defendant said that these words were not actionable, for they do not tend to his disparagement ; he may be broke, and yet as good a carpenter as before. Fox v. Lapthorne. The case of one Hill, in 2 Car. in this court, was much stronger than this ; the words spoken of him were these : " Hill is a base broken rascal, and has broken twice already, and I will make him break the third time;" the plaintiff had judgment, but it was arrested. Hill's Case. 1 A carpenter builds upon the credit of other men ; and so long as the words do not touch him in the skill and knowledge of his profession, they cannot inj ure him. The Chief Justice. The credit- which the defendant has in the world may be the means to support his skill, for he may not have an opportunity to show his workmanship without those materials with which he is intrusted. The judges were divided in opinion, two against two, and so the plaintiff had his judgment, there being no rule made to stay it, so that he had his judgment upon his general rule for judgment; but if it had been upon a demurrer or special verdict, then it would have been adjourned to the Exchequer Chamber. 2 ASTON v. BLAGRAVE. In the King's Bench, Michaelmas Teem, 1724. [Reported in 2 Lord Raymond, 1369.] In an action on the case for words, the plaintiff, after the usual char- acter of his good behavior, set out that, whereas the first of October in the fifth year of his Majesty's reign, and for many years before, he was and yet is a justice of the peace for the county of Berks, and behaved himself justly and honestly in that office; that the defendant intended i Latch, 114. 2 Rggins v. Cogswell, 3 M. & S. 369, ace. — Ed. 724 ASfoN v. bLaG&ave. [cbap. ix. to scandalize him and bring Mm into disrepute, the said first of Oc- tober, at Wantage, in Berks, having a discourse with divers of the king's subjects de prmfato Ricardo, et de executions sua officii suijus- ticiarii ad pacent proedicli XnMuwc et ibidem in prmsentia et audiiu quamplutwiorum died domini regis nunc subditdfum tunc ibi prce- sentium, faiso et malitiose dixit et prGpala/oit, et alta voce publltavvt, de prcedicto Ricardo adtunc uno justiciarvdrum pads ut prdefertur exist- ente, et de executions sua officii •smi prwdicti, heea fictd scandalosa et defamatoria vet-'ba AngUaa sequential viz., " Mr. Aston " (innuendo the plaintiff ) " is a rascal, a villain, and a liar ; " ad damnum £20. On not guilty pleaded, verdict was §>und for the plaintiff, and damages given £2 10& And after several motions in arrest of judgment, that these words were not actionable, because they were general words of an uncertain signification ; and words of heat Only otight to be took in mitiori sensu, and could not be properly applied to the plaintiff as in execution of his office ; for which purpose 'Gifdler, Serjt., for the de- fendant, cited Bill «. Neal, 1 in an action for words spoke of a justice of peace, " He is a fool, an ass, and a beetle-headed justice." After verdict for the plaintiff, judgment was arrested by Foster, C. J., Wind- ham and Twisden, JJ., contrary to the opinion of Mallet. Sir John Hollis v. Briscow, 2 " Your master is a base, rascally villain, and is neither nobleman, knight, nor gentleman, but a most villainous rascal, and by unjust means doth most villainously take other men's rights from them, and keeps a company of thieves and traitors to do mischief," &c, spoke of a justice of peace, held notr actionable by three justices against two. Price v. % Devall, 8 But he admitted the defendant might have been bound to his good behavior for speaking the words in the declaration. But, November 26, this term, Pratt, Ld. C. J., my brothers Powys and Fortescue, and myself, gave our opinions that the words were actionable, they being laid to have been spoken of the plaintiff in the execution of his office, and so found ; so that it is the same as if the defendant had said that the plaintiff is a vil- lain in the execution of his office, a rascal in the execution of his office, and a liar in the execution of his office; which carry with them a great scandal, and in common understanding import a great imputation against the plaintiff's integrity and behavior in that office ; and therefore none of the cases cited come up to this case. And judg- ment was given for the plaintiff. 4 i 1 Lev. 52. 2 Cro. Jac. 58. 3 Cases in Pari. 12. 4 Stuckley v. Billhead, 4 Rep. 16 a; Ware v. Pawlet, Moo. 409; Lassele v. Xassels, Moo. 401; Stafford v. Powler, Moo. 704; Marriner v. Cotton, Moo. 695; Kemp v. Housgoe, Cro. Jac. 90 ; Burton v. Tokin, Cro. Jac. 143 ; Beamond v. Hastings, Cro. Jac 240 ; Chetwrad v. Meeston, Cro. Jac. 308 ; Caesar v. Curseny, Cro. Eliz. SECT. IH.J STANTON V. SMITH. 725 STANTON v. SMITH. In the King's Bench, Eastee Teem, 1727. [Reported in 2 Lord Raymond, 1480.] In an action upon the case for words, the plaintiff declared that he was a person of good name and condition, and now is, and at the time pf speaking the words after mentioned, and for seven years before was, a brewer, and in that trade got his livelihood and great gains, and always paid his debts to the full without any compounding; the defendant, maliciously intending to bring the plaintiff into discredit, and to bring him into disgrace with all the king's subjects to whom he was known, the defendant, the 4th of October, 13 Geo., at, &c, spoke several false and scandalous words (mentioning them particularly in the declaration, and laying them several ways) of the plaintiff, ad damnum £200. The defendant, as to all the words in the declaration, except these, viz., " He is a sorry, pitiful fellow, and a rogue ; he compounded his debts at five shillings in the pound," pleaded not guilty ; whereupon issue was joined ; and as to those words the defendant demurred, and the plaintiff joined in demurrer. Mr. Theed, for the defendant, argued that these words were not actionable, for there is no colloquium laid of his trade. He cited Marshall v. Allen, 1 " He is a base, broken rascal, and hath broken twice, and I will make him break a third time." The court seemed to be of opinion that the words were not actionable; and a rule was made for judgment for the defendant, unless cause, &o. [See the same case, Latch. 114, by the name of Hill's Case, where it is said the plaintiff had not alleged he was a tradesman, but that he was an honest subject, and got his livelihood by buying and selling only, and for that all the judges agreed that judgment should be arrested; but otherwise it had been if he had been a tradesman.] He cited also Savage v. Eobery, 2 " You are a cheat, and have been a cheat divers years," spoke of a tradesman, and judgment was arrested. But we were all of opinion that such words spoke of a tradesman must greatly lessen the credit of a tradesman, and be very prejudicial to him, and therefore that they were actionable. Judgment was given for the plaintiff May 9. 305 ; Bleverhasset v. Baspoole, Cro. Eliz. 313 ; Isham v. York, Cro. Car. 15 ; Masham v. Bridges, Cro. Car. 223 ; Kerle v. Osgood, 1 Ventr. 50 ; Walden v. Mitchell, 2 Ventr. 285 ; Haraond v. Kingsmill, Sty. 210 ; Rouse v. Wilcocks, Comb. 72 ; Alleston v. Moor, Iletl. 167; Boughton v. Bishop, 1 And. 119; Newton v. Stubbs, 3 Mod. 71 ; Kent v. 1'ocoek, 2 Stra. 1168 ; Adams v. Meredew, 3 Y. & J. 219 ; Robbins v. Treadway, 2 J. J. Marsh. 540 ; Lindsey r. Smith, 7 Johns. 359 ; Hook v. Hackney, 16 Serg. & K. 385, ace. See Hollis v Briscow, Cro. Jac 58 ; Geeve v. Copshill, Cro. Eliz. 854. — Ed. l Noy, 77. - 2 Salk. 6iJ4. 726 HARMAN V. DELANT. [CHAP.'lX. LANCASTER v. FRENCH. In the King's Bench, Eastee Teem, 1728. [Reported in 2 Strange, 797.] The plaintiff, being a carpenter, brought an action for these words, " He has charged Mr. Andrews for forty days' work, and received the money for the work, that might have been done in ten days, and he is a rogue for his pains." After verdict for the plaintiff the judgment was arrested, the words not being actionable. HARMAN v. DELANT. In the King's Bench, Easter Teem, 1731. [Reported in 2 Strange, 898.] In an action upon the case for a libel, the plaintiff declared that he was gunsmith to his Royal Highness the Prince of Wales, and that it having been inserted in the " Craftsman," that he had had the honor to present him a gun of two feet six inches long, which would shoot' as far as one of a foot longer, and had kissed the prince's hand on being appointed his gunsmith ; the defendant, intending to scandalize him in his trade, published an advertisement in these words : " Whereas there was an account in the ' Craftsman ' of John Harman, gunsmith, mak- ing guns of two feet six inches to exceed any made by others of a foot longer (with whom it is supposed he is in fee), this is to advise all gentlemen to be cautious, the said gunsmith not daring to engage with any artist in town, nor ever did make such an experiment (except out of a leather gun), as any gentleman may be satisfied of at the Cross Guns in Longacre." After not guilty pleaded, there was a verdict for the plaintiff and £50 damages. It was moved in arrest of judgment that this is no libel, and that if one tradesman will pretend to be a greater artist than others, it is law- ful for them to support their own credit in the same way. Etper curiam, That is certainly so, and if the defendant had gone no further, he would not have been chargeable ; they might advertise that they make as good as he, but they ought not to say he is no artist, which they plainly do by saying he dares not engage with any artist, and by advising gentlemen to be cautious of him. The law has always been very tender of the reputation of tradesmen, and therefore words spoken of them in the way of their trade will bear an action, that will SECT. III.] DAY V. BULLER. 727 not be actionable in the case of another person ; and if bare words are so, it will be stronger in the case of a libel in a public newspaper, which is so diffusive. 1 Mod. 19 ; 1 Roll. Abr. 63, pi. 30 ; Cro. Eliz. 343 ; 1 Roll. Abr. 62, pi. 28; Hetley, 71; Brownl. 151; 2 Mod. 118; 5 Co. 125 ; Hard. 470 ; 1 Keb. 293 ; 1 Roll. Abr. 37, pi. 15 ; Skinner, 123 ; Hob. 225 ; Mo. 627 ; 2 And. 40 ; Hutt. 125. The plaintiff had judgment, the court being of opinion, that it tended to discredit him in his business. MUSGRAVE v. BOVEY. In the King's Bench, Hilaet Term, 1733. [Reported in 2 Strange, 946.] A prohibition was granted to a suit for these words, spoken by one clergyman of another, " You are an old rogue and a rascal, and a con- temptible fellow, despised and hated by everybody." 1 DAY v. BULLER. In the Common Pleas, Easter Term, 1770. [Reported in 3 Wilson, 59.] Action for slandering the plaintiff in his profession of an attorney, by saying of him these words, " What, does he. pretend to be a lawyer? He is no more a lawyer than the devil ! " Verdict for the plaintiff. And now Davy, Serjt., moved in arrest of judgment, alleging that it was not actionable to say of an attorney he was no lawyer, any more than f .o say of an apothecary that he was no physician ; that it was no more K icessary for an attorney to be a lawyer than for an apothecary to be a physician. But, per curiam, to say of an attorney he is no lawyer, is a great reflection upon him, and means that he does not understand his business ; besides, they said, an attorney must have a competent knowledge of the law, or he cannot draw a common writ or declaration. And per Yates, J., the words are as great a slander upon the plaintiff, and as injurious to him, as any words possibly can be. So the serjeant took nothing by his motion, and plaintiff had judg- ment. 2 1 See Collins v. Harvey, Gilb. 98; Pocock v. Nash, Comb. 253; Coxeter v. Parsons, 2 Salk. 692; Hall v. Dowries, Com. 309. —Ed. 2 Hardwick v. Chandler, 2 Stra. 1138, ace. — Ed. 728 ONSLOW V, HOENE. [CHAP. IX. ONSLOW" v. HORNE. In the Common Pleas, Easter Teem, 1771. [Reported in 2 Blackstone, 750.] Case for a libel, and also for malicious and scandalous words spoken of the plaintiff. The libel was set forth in hcec verba, in four several counts. The fifth count 1 set forth that the plaintiff, being knight of the shire for Surry, the defendant, on the 26th of June, 1769, at Epsom, in the presence of many freeholders assembled to consider of measures to be taken in support of the right of election, when it was proposed to instruct their members to take measures on that behalf, falsely and maliciously spoke the words following : " I expected to have met George Onslow, but find he is not here ; for which I am rather sorry, as I came here with an intention to have told him my opinion of him. And if he would have waived his privilege, I would have waived my gown. I know him very well. I have carried letters from Mr. Onslow to Mr. Wilkes, full of professions of friendship and service, which were never kept. Nor indeed is it to be wondered at, since it is notorious he never kept his word unless where his own interest was concerned. As to the instructing our members to obtain redress, I am totally against that plan ; for, as to instructing Mr. Onslow, we might as well instruct the winds ; and should he even promise his as- sistance, I should not expect him to give it us." The sixth count charged only the words in italics, without the introductory ones. On not guilty pleaded and issue joined, the jury, at Kingston summer assizes, 1770, found their verdict for the defendant on the first four counts, and for the plaintiff on the last two with £400 damages. In Michaelmas term, 1770, Glyn moved in arrest of judgment, that the words were not actionable, especially those in the sixth count; and, the verdict being taken generally on the fifth and sixth, if one fails the action is gone, and was supported by Jephson. Whitaker and Leigh showed cause, and the court took time to consider, till Hilary term, 1771, when De Grey, C. J., and Nares, J., being come into the court, vice Wilmot, C. J., who had resigned, and Bathurst, J., made Lord Chancellor, it was again argued in that term. For the defendant it was insisted, first, that the words taken sub- stantively, and without relation to persons or circumstances, were not actionable ; second, that, if not actionable in themselves, the plaintiff's character as a member of Parliament would not make them so ; third, that, if actionable in themselves, the occasion of speaking them would 1 The fifth and sixth counts are inserted at length in 3 Wils. 178. SECT. III.] ONSLOW V. HORNE. 729 excuse them, being at a public county meeting, where freedom of debate is necessary. All which propositions were strenuously denied on the part of the plaintiff. And the cases relied on by both sides were Har- rison v. Thornborough ; l Aston v. Blagrave ; Clarges v. Roe ; 2 How v- Prynn ; 8 Pinchbeck v. Warwick ; * Walden v. Mitchell ; B Palmer t>. Edwards ; 6 Moore v. Foster ; 7 Stawel v. Cawne ; 8 Duval v. Price ; * Kent v. Pocock ; 10 Beavor v. Hides. The court took time to consider till the second day of this term; and then De Geey, C. J., delivered the opinion of himself, Gould, Blackstone, and Nares, JJ. It is in vain to inquire whether the fifth count can be maintained unless the sixth can. For, as a declaration may consist of many counts, so damages may be given either jointly or distinctly. But if they be given generally and jointly, then if one count fails, the whole is at an end ; for some of the damages shall be construed to be given on every count. Dyer, 369 b; 5 Co. 108 a; 10 Co. 130 a; 1 Roll. Abr. 576. If words actionable and not actionable are laid in the same count, the damages shall be applied to those words which are action- able. 10 Co. 131. But it is otherwise when insufficient words, are laid in a count by themselves. As, therefore, we think the action cannot be maintained on the second count, we give no opinion with respect to the first. And as we think the words in the last count are not actionable, either in themselves, or as applied to a member of Parliament, we shall give no opinion how far such an occasion as the meeting stated in the declaration would or would not justify speaking such words as would otherwise be clearly actionable. The grand consideration for the court at present is, whether the words laid in the last count will support an action. There are two general rules for determining whether words are actionable. 1, The imputation of crimes which would make the party obnoxious to punishment. Yet here there must be precision in the charge. A general charge of wickedness, &c, would not be sufficient. And the punishment to be incurred must not be light or trivial. Mere impris- onment only will not be always sufficient. Ogden v. Turner, per Holt, C. J. Though he, perhaps, goes rather too far. 1 Roll. Abr. 46 ; Finch, Law, 135, show that his principle is too general. But the present case certainly does not fall under this head. 2. The other gen- 1 10 Mod. 196. 2 8 Lev. 30 ; 3 Mod. 26 ; Skinn. 88 ; Raym. 482. 3 2 Salk. 694 ; 1 Roll. Abr. 56, pi. 29 ; Cro. Eliz. 306, 433. 4 1 Roll. Abr. 57 5 2 Vent. 265. « M. 13 Geo. II. Coke's Notes, 160; Cro. Jac. 839, 619. 1 Cro. Jac. 65 ; Yelv. 62. 8 3 Lev. 50 ; 1 Roll. Abr. 43, 44, 45. 9 Show. P. C. 12. 1° Stra. 1168. 730 , ANONYMOUS. [CHAP. IX. eral rule is, if the words may be of probable ill consequence to a person in a trade, a profession, or an office; such as the cases of Kent v. Pocock and Aston v. Blagrave. A distinction was made at the bar between offices of credit and of profit : that words which affect the latter may be actionable ; but not so if they only affect the former. We do not now give our sanction to this distinction in the latitude contended for by the counsel. In How v. Prinn, Lord Holt acquiesced in it only where the words conveyed a charge of ignorance, not of dishonesty. And Mar. 82, 2 Vent. 266, seem to hold a contrary doctiine. In Duval v. Price, whatever might induce the House of Lords to determine that case (which does not appear), the judges thought it was actionable to say of a justice of peace that he was dis- affected to the government. Neither do we give any opinion how far opprobrious words spoken of men in office are actionable. Some may be and others not. The cases of imputation of popery (2 Vent. 265 ; Salt 696) class by themselves. The circumstances of the times, perhaps, influenced the opinion of the court. But mere opprobrious words, which subject to no punishment or temporary loss, do not seem to be actionable when spoken of men in office. No imputation of the breach of legal or moral obligation, unless enforced by temporal sanc- tions ; no charge of the want of chastity, unless under special circum- stances (1 Lev. 134), — will be sufficient to found an action. The length of argument, and the many cases cited, has made it necessary to distinguish with accuracy what we do not determine. What we do determine will fall within a narrow compass. We con- ceive that the words laid in the last count amount only to a charge of insincerity, and that only in the opinion of the speaker. For, as to his disregarding the instructions of that meeting, it might (for any thing that appears to us) be upon laudable motives, as well as culpable ones. He might differ from them in judgment without any imputation of blame. The only charge is want of sincerity, and such a charge is not a sufficient ground to maintain this action. Judgment arrested per totam curiam. ANONYMOUS. In the King's Bench, Michaelmas Teem, 1772. [Reported in Lofft, 322.] Declaration stated, that whereas the plaintiff is a wool-comber, and a person had agreed with him for a certain quantity of wool, the defendant well knowing of the premises, and in order to bring him SECT. III.] ANONYMOUS. 731 into discredit with persons buying and selling with him, and deprive him of his livelihood, spoke the words laid in the declaration : " He " (innuendo the plaintiff) "is not worth a penny, and he will run away." 2 Shower's Reports, cited, " He- is an idle rascal, and not worth a groat;" actionable if spoken of a trader. Rolle's Abridgment, in the very case of a wool-comber, "Buy no more wool of him, for he is not worth a penny." It was said as to the averment, it was sufficiently averred for the court to see that the plaintiff was a wool-comber, and got his money by buying and selling in that trade; as in the case in Brownlow's Reports, plaintiff states, that whereas he is a judge, defendant not being ignorant of the premises : held a good averment. Davy, Serjt., e contra, that the words were not actionable ; for that wherever a man not necessarily lives upon his trade, or so as to be liable to the statutes of bankruptcy, slander lies not for saying, " he is not worth a groat." Chapman v. Lamphire. A carpenter describes himself to be such, and then states that he got much money by buying of timber and materials, and building of houses, and that the defendant spoke of him as follows, " He is broken and run away, and will never return again," which is much the same as stated here, and the judges were divided, two against two, whether these words were actionable or not. Anderson v. Fairfax. Action lies not for such words spoken of a farmer, unless he de- clares specially that he gets his living by buying and selling. They would not be actionable if said of a vintner, nor of a shoemaker (this last the court denied), because not liable to the bankrupt laws. In the case, 2 Shower, 295, the words were spoken of a weaver ; and the case stated specially that he got his living by buying and selling. It is not sufficiently stated here that anybody traded with him, or he with anybody. The court thought otherwise ; and that a wool-comber, not stated to be a laborer, must of necessity be intended to buy wool to work with. A farmer, the court observed, was no trade at all ; which must have been the reason of the decision cited above. The court further said, that they would not disturb the case, espe- cially after verdict. 1 * Anon., 1 Bulst. 40 (Grazier); Stanley v. Osbaston, Cro. El. 268 (Shoemaker) ; Ellis v. Hunt, 1 Vin. Abr. Act. Words, U, a, 8 (Shoemaker) ; Collis u. Malin, W. Jones, 304 (Drover) ; Lewis v. Hawley, 2 Day, 495 (Drover) ; Calkins v. Whea- ton, 1 Edm. Sel. Cas. 226 (Drover); Ostrom e. Calkins, 5 Wend. 263 (Distiller); Delaporte v. Cook, 1 Vin. Abr. Act. Words, U, a, 4 (Weaver) ; Best v. Loit, 1 Vin. Abr. Act. Words, U, a, 6 (Scrivener), ace. — Ed. 732 HARRISON V. STRATTON. [OHAP. IX.. HARRISON v. STRATTON, At Nisi Pbius, coram Loed Ellenboeough, C J., November 30^ 1802. [Reported in 4 E$pims$e h 218.J This was an action for slanderous words. Plea of not guilty. The plaintiff was a surveyor, and the defendant a tinman and brazier. The defendant had set up a hot kitchen, with the other apparatus, for a Mr. Angerstein, for which he had charged £90. The payment had been disputed, as being a considerable overcharge. The defend- ant brought an action to recover the amount, and the cause was tried at Guildhall. Harrison, the present plaintiff, had been employed by Mr. Anger- stein as a surveyor, to estimate the value, in order to ascertain how much ought to be paid, and to give evidence at the trial, as a witness, of the value he put on the work, which was £60. The cause was tried, and the plaintiff was examined as a witness on behalf of Mr. Angerstein. The defendant recovered £90, being the whole of hia demand. The defendant afterwards speaking of Harrison, said, " Harrison is a scoundrel. If I would have found him an oven for nothing, and bad given him after the i"ate of £20 per cent upon the amount of the charges for the work and materials, he would have passed my account." These were the words laid in the declaration, as imputing dishon- esty in the plaintiff in the course of his business and profession as a surveyor. The first witness called for the plaintiff proved the words, " Hani- son is a scoundrel ; and if I had allowed £20 per cent, he would have passed my account." The second witness proved the words, " Harri- son is a scoundrel ; and if I had deducted £20 per cent, he would have passed my account." These were the only witnesses called by the plaintiff. Upon those words, being so proved, Loed Ellenboeough gaid, He thought the plaintiff must be called. He said, that on the face of the record, the words seemed to him to be scarcely actionable ; they imputed rather an inclination to the plaintiff to do that which was wrong, than the actual doing of it ; and that imputing evil inclinations to a man, which were never brought into action, was not actionable, Words to be actionable should be unequivocally so, and be proved as laid; but that as the words were proved, they did not support the SECT, -III,] HUNT „. BELLl 7S3 declaration. The words of the declaration were, " If he would give me £20 per cent ; " that might mean something to himself, by which he would be himself benefited, to the prejudice of his employer; but the words proved were, " If he would allow, or if he Would deduct, £20 per cent." These words might import an allowance or deduction from the plaintiff's bill, for the benefit of his employer ; and were of a different meaning and import. The plaintiff was nonsuited. HUNT v. BELL. In the Common Pleas, June 8, 1822. [Reported in 1 Bingham, 1.] This was an action on the case for a libel against the plaintiff, in regard to his conduct as proprietor of a building called the Tennis- court, which, the declaration stated, he had himself appropriated, and had permitted others (for money therefor paid to him) to appropriate, for (amongst other lawful purposes) the exhibiting from time to time therein of sportive and amicable contests, or matches in the art of pugilism, or boxing with padded gloves, commonly called sparring, by and between persons skilled in such art, for the amusement of any persons desirous of being spectators thereof, and paying for their admis- sion into such building a certain sum of money per head. The general issue was pleaded. At the trial before Dallas, C. J., Middlesex sittings after Easter term last, the above statement as to the nature of the exhibitions at the Tennis-court was fully made out, and also, that those exhibitions, consisting of sparring, chiefly by professors of pugilistic science, had always been conducted in the most orderly manner. There was no evidence that they were designed as a train- ing or preparation for regular prize-fighting. The publication of the matter complained of was admitted by the defendant, and it appeared to be clearly libellous ; but the defence was, that the purpose to which the plaintiff had appropriated the Tennis-court was illegal, as being, if not an absolute training for, preparatory to and promotive of, regular prize-fighting ; and the preamble of the statute 25 Geo. II. o. 36, § 2, was referred to, as indicatory of the views entertained by the legislature on such matters. Daiaas, C. J., first put it to the jury to consider whether the plain- tiff's exhibitions were not illegal as tending to form prize-fighters, declaring such to be his opinion at the moment, although he was 734 HUNT V. BELL. [CHAP. IX. unwilling to decide the point without further time for deliberation, and he then recommended the jury to find a verdict for the plaintiff, which the defendant might afterwards move to set aside, and so fully discuss the question; but the jury found a verdict for the defendant. Whereupon JBosanquet, Serjt., now moved for a new trial on the following grounds: The verdict was given under the supposition that the plaintiff's vocation was illegal ; but there was no evidence that his exhibitions were designed as a training or preparation for regular prize-fighting ; and a mere exercise of pugilistic skill, divested of vio- lence by the use of padded gloves, is not illegal, such exercise being not only unaccompanied with breach of the peace or danger, but being highly beneficial as promotive of bodily strength and agility, and as furnishing means of defence against unprovoked attacks. Prize-fight- ing has always been interrupted and repressed by the magistrates, but they have never interfered to prevent exhibitions of sparring, as they must have done if such exhibitions had been unlawful ; and this is the first time the legality of them has been questioned. If it be unlawful in the way of exhibition, or otherwise, to give and receive instruction in the art of pugilistic attack and defence, those instructions being unaccompanied with violence or danger except from accidents, which might equally occur in tennis, cricket, or other games, a fortiori must all instruction or practice in fencing, broad-sword exercise, or archery, be illegal ; yet exhibitions of, and practice in the two former, have never been interrupted, though publicly carried on. There are numer- ous enactments for the encouragement of archery; and in Rex v. Handy, 1 Lord Kenyon must be taken to have spoken of fencing as not illegal. The price demanded for admission would prevent exhibitions of this kind from occasioning idleness in the poorer classes of society ; though if it were otherwise, Lord Coke says, 2 " When King Edward III., in the 39th year of his reign, commanded the exercise of archery and artillery, and prohibited the exercise of casting stones and bars, and the hand and' foot balls, cock-fighting, et alios vanos ludos, yet no effect thereof followed till divers of them were prohibited upon a penalty by divers acts of Parliament." But there is no act of Parlia- ment which forbids sparring exhibitions, and they do not fall even within the preamble of 25 Geo. II. c. 36, § 2. Stage representations they cannot be called, with more propriety than the feats of tumblers, which latter have been holden not to be stage representations within that act. Rex v. Handy. Dallas, C. J. When this cause was tried, I certainly delivered an 1 6 T. E. 286. 2 11 Eep. 87, case of Monopolies. SECT. III.] HUNT V. BELL. 735 opinion, such as I could form at the moment, and under some diffi- culty ; for I think there may be difficulty in this question, and I have ■wished for further time to consider it. Without going into matters foreign to the point under discussion, we know that, in the early peri- ods of their history, it has been the practice of all civilized nations to train up their population to exercises of activity and courage ; and, with a view to national defence, to promote emulation in amicable contests of strength. I stated to the jury the difficulty of distinguish- ing between fencing and boxing. Many persons now present can recollect the exhibitions of skill by Angelo, Roland, St. George, and others ; and yet, is not fencing the art of attack as well as of idefence, and is it not more dangerous than boxing ? But is fencing illegal ? or is it illegal to attend a fencing-school ? is it illegal to practise the how and arrow? are archery meetings illegal? On all these views of the subject I felt considerable difficulty. But, on the whole, when I con- sider that these sparring exhibitions are conducted by professors of pugilism ; that they are meetings which may tend to encourage an illegal vocation, and to form prize-fighters, — I see no reason for disturb- ing the present verdict. Park, J. If it were necessary for us to decide whether exhibitions, such as those in which the plaintiff" was engaged, are illegal, I should wish for more time before I came to a conclusion, because exercises of such a kind have long existed. The argument drawn from the sup- posed legality of fencing exhibitions would be stronger in favor of sparring exhibitions, if persons who learned fencing were trained to prize-fighting, as pugilists notoriously are : but such is not the case ; and it having been put to the jury whether the plaintiff's exhibitions did not tend to form prize-fighters, I see no reason for disturbing the verdict. BtrEROTjGH, J. I am of opinion that the practice in question is illegal. The chief object for which persons attend these exhibitions is to see and judge of the comparative strength and skill of parties, who may be afterwards matched as prize-fighters, and that, frequently, to the loss of life ; for there can he no doubt that the skill acquired in these schools enables the combatants to destroy life, in some instances by a single blow ; and it is notorious that persons assembled at these exhibitions engage in illegal bets on the issue of such encounters. RicnAEDSON, J. If the question were merely whether it is lawful or unlawful for persons to learn the art of self-defence, whether with artificial weapons or such only as nature affords, there can be no doubt that the pursuit of such an object is lawful; but public prize-fighting is unlawful, and any thing which tends to train up persons for such a practice, or to promote the pursuit of it, must also be unlawful. The 736 THOMAS V. JACKSON. [CHAP. IX. jury have found that the exhibitions in question have such a tendency, and I see no reason for disturbing their Verdict. Hide refuseS. 1 THOMAS v. JACKSOtf. In the Common Pleas, Mat 14, 1825. [Reported in S Bingham, 104.] The declaration stated that the defendant was a husbandman, and- farmer of a certain large farm of arable and other lands, with the ap- purtenances, and a vendor of the corn by him raised and grown in and upon his said farm and lands, and carried on the business of a husband- man and vendor of corn with great integrity, and with the good opin- ion of his neighbors and other good subjects; and that the defendant slandered him by saying to him and of him, as such husbandman, farmer, and vendor of corn, in the presence and hearing of others, " You are a rogue and a swindling rascal ; you delivered me one hun- dred bushels of oats worse by sixpence a bushel than I bargained for;" whereupon one Marr, who, before the speaking of the words, was about to make a purchase of the plaintiff, refused to do so. The defendant pleaded the general issue, and justified the change of selling oats six- pence a bushel worse than those bargained for. At the trial before Bayley, J., last York assizes, the plaintiff proved the speaking of the words as alleged in the declaration, but failed in establishing the existence of the special damage. Whereupon the learned judge told the jury that, unless special damage was proved, the action could not be maintained; and that therefore they must find a verdict for the defendant. But, in order to save the parties the expense of coming to trial again, in case the court above should dissent from his direction touching the special damage, they might also say what damage they thought the plaintiff had sus- tained by the speaking of the words only. The jury found a verdict for the defendant, and said they could find no damages for the plaintiff, " because he had not substantiated the charge." ■ JBosanquet, Serjt., obtained a rule nisi to set aside this verdict and enter a verdict for the plaintifij or to allow him a new trial, on the 1 See Morris v. Langdale, 2 B. & P. 284 ; Yrissarri v. Clement, 3 Bing. 440 ; Man- ning v. Clement, 7 Bing. 362 ; Johnson v. Simonton, 43 Cal. 242, ace. See Spall v. Mersey, 2 Stark. 159 ; Groville v. Chepman, 6 Q. B. 731. — Ed. SECT. III.] WHITTINGTON V. GLADWIN. 737 ground that the words alleged in the declaration, having been spoken of the plaintiff in his business or calling of a corn vendor, were action- able, and entitled him to a verdict without proof of special damage. Vaughan, Serjt., showed cause ; but The Couet were clearly of opinion that these words spoken of a corn- factor were actionable, without proof of special damage; and Best, C. J., said, that such would be the case with any words which imputed to a man fraudulent conduct in the business whereby he gained his bread. The rule, therefore,, for a new trial was made absolute, unless the defendant consented within a week to allow a verdict to be entered for the plaintiff with 40s. damages. 1 WHITTINGTON v. GLADWIN. In the King's Bench, Hilary Teem, 1826. [Reported in 6 BarnewaU $• CressweU, 180.] Declaration stated that the plaintiff was an inn and tavern keeper, and carried on that trade and business with integrity, &c, always punctually paying and discharging his just debts ; by means whereof plaintiff had acquired and was honestly acquiring great gains and profits in his said trade and business; yet defendant, well knowing, &c, spoke of and concerning the plaintiff in the way of his said trade and business the following words : " You have been a pauper ever since you have lived in the parish ; you are now a pauper. I have paid £20 a year towards your maintenance ; you will be in the bank- 1 Wolverston v. Meres, Cro. Eliz. 911 ; Dawe u. Palmer, Hutt. 124; Selby v. Car- rier, Cro. Jac. 345 ; Blunden v. Eustace, Cro. Jac. 504 ; s. c. 2 Roll. R. 72 ; Ireland «. Lockwood, Cro. Car. 570 ; Crawfoot v. Dale, 1 Ventr. 263 ; Viccarye v. Barnes, Sty. 217; Reeve v. Holgate, 2 Lev. 62 ; Davies v. Jones, T. Ray. 62; Read v. Hudson, Ray. 610; Burnet o. Wells, 12 Mod. 420; Anon., Mar. 8; Langley o. Colson, Godb. 151 ; Fothergill a. Jackson, Gilb. 314 ; Nuton's Case, Freem. 25 ; Davis v. Lewis, 7 T. R. 17; Wood v. Brown, 6 Taunt. 169; Anon., 1 Bulst. 40; Nichols v. Catsey, 2 Bulst. 262 ; Bryant v. Lozton, 11 Moo. 344 ; Griffiths v. Lewis, 8 Q. B. 841 ; Simpsey v. Levy, 2 Jur. 776 ; Beardsley v. Tappan, 1 Blatchf. C. C. 588' ; Obaugh n. Finn, 4 Ark. 110 ; Ware v. Clownoy, 24 Ala. 707 ; Butler v. Howes, 7 Cal. 87 ;. Prettyman v. Shockley, 4 Harringt. 112; Nelson v. Borchenius, 52 III. 236; Orr v. Skofleld, 56 Me. 483 ; Gay v. Homer, 13 Pick. 535 ; Odiorne v. Bacon, 6 Cush. 185 ; Joraleman v. Pomeroy, 2 Zab. 271 ; Backus v. Richardson, 5 Johns. 476 ; Burtch v. Nickerson, 17 Johns. 217 ; Brown v, Orvis, 6 How. Pr. 376 ; Herr v. Bamberg, 10 How. Pr. 128; Fowler v. Bowen, 30 N. Y. 20; Davis v. Davis, 1 N. & McC. 290;. Hoyle v. Young, 1 Wash. 150, ace. ; Broke's Case, Moo. 409, contra. — Ed. 47 738 LUMBT V. ALLDAY. [CHAP. IX. rupt list in less than twelve months." The plaintiff having obtained a verdict, Marryat now moved in arrest of judgment, on the ground that the words, at the time when they were spoken, were not actionable, inas- much as an innkeeper was not then liable to the bankrupt laws. He cited Collis v. Malin ; 1 S medley v. Heath ; z and Viner's Abr. tit. Ac- tion for Words, U, a, pi. 18, in margin, where it is said by Wray, C. J., that to call a man a bankrupt generally is not actionable ; but to call a merchant so is actionable. Abbott, C. J. The plaintiff's right of action in this case is founded on the principle that the words alleged in the declaration are injurious to him in his special character of an innkeeper. The single question, therefore, is, whether words imputing an inability to pay debts be injurious to a person who seeks his living by buying provisions upon credit and selling them again to his guests at a profit, he not being liable to the bankrupt laws. Now such an imputation is calculated to prevent him from having that credit which is at least useful, if not necessary, in his business ; the words, therefore, are likely to be injuri- ous to him. In Southam v. Allen, the following words spoken of an innkeeper were held, after verdict and much debate, to be actionable : " Deal not with the plaintiff, for he is broke, and there is neither enter- tainment for man nor horse." According to all the principles upon which such an action for slander is maintainable, and upon that author- ity, I am of opinion that this action is well brought. Bayley, J. Read v. Hudson 8 is an authority to show that words imputing to a tradesman insolvency and not bankruptcy, are action- able. There, the words were spoken of a laceman, but it was not averred that he was subject to the bankrupt laws. Mule refused!* LUMBY v. ALLDAT. In the Exchequer, Hilajbt Teem, 1831. [Reported in 1 Cromptim $• Jem's, 801.] Action for words. The first count of the declaration, after the usual inducement of the plaintiff's good conduct, stated that, before the time of the speaking and publishing the several false, scandalous, malicious* and defamatory words by the defendant, the plaintiff was, and from thence hitherto had been and still was, clerk to a certain incorporated - Cro. Car. 282. « 1 Lev. 250. » 1 Ld. Eaym. 610. * Conf . Alexander v. Angle, 1 Cr. & J. 143. — Ed. SECT. III. J LUMBT V. ALLDAY. 739 company, to wit, the Birmingham and Staffordshire Gas Light Com- pany, and as such clerk had always behaved and conducted himself with great diligence,, industry, and propriety, by means whereof he was acquiring gain and profits, &c. ; yet, defendant intending, &c, and to cause it to be believed by the neighbors and subjects, and the persons composing the said company, that the said plaintiff was of a bad char- acter, and unfit for his situation of clerk to the said Birmingham and Staffordshire Gas Light Company, and an improper person to be employed by the said company, and to cause him to be deprived of and lose his situation, &c, to wit, on, &c, at, &c, in a certain dis- course which the said defendant then and there had with the said plaintiff, of and concerning the said plaintiff, and of and concerning the premises, in the presence and hearing of divers good and worthy sub- jects of this realm, then and there, in the presence and hearing of the said last-mentioned subjects, falsely and maliciously spoke and pub- lished to, and of and concerning the said plaintiff, and of and concern- ing the premises, these false, scandalous, malicious, and defamatory words following (that is to say) : " You" (meaning the said plaintiff) " are a fellow, a disgrace to the town, unfit to hold your " (then and there meaning the said plaintiff's) " situation " (then and there meaning the said situation of clerk to the Birmingham and Staffordshire Gas Light Company), " for your conduct with whores. I will have you in the 'Argus,' "You" (then and there meaning the said plaintiff) "have bought up all the copies of the' Argus,' knowing you" (then and there meaning the said plaintiff) " have been exposed. You may drown yourself) for you" (then and there meaning the said plaintiff) "are not fit to live, and are a disgrace to the situation you" (then and there meaning the said plaintiff) " hold " (then and there meaning the said situation of clerk to the Birmingham and Staffordshire Gas Light Company). Plea : Not guilty. At the trial, before Alexander, Ld. C. B., at the last assizes for the eodnty of Warwick, the plaintiff proved the material part of the words charged in the first count. The counsel for the defendant submitted that the words were not actionable, and that the plaintiff ought to be nonsuited. The learned judge refused to nonsuit the plaintiff, and told the jury that, if they thought the words might probably have occa- sioned the loss of the plaintiff's" situation, to find a verdict for the plaintiff; and the jury having found a verdict for the plaintiff, he gave the defendant leave to move to enter a nonsuit. Adams, Serjt., in Michaelmas term last, obtained a rule to set aside the verdict, and to enter a nonsuit; against which Goulburn, Serjt., showed cause. The rule is, that words which may probably occasion the loss of the plaintiff's situation are actionable, 740 LUMBY V. ALLDAY. [CHAP. IX. ■where the situation is one of profit. This was laid down by De Grey, C. J., in Onslow v. Home, and is in accordance with the direction of the Lord Chief Baron at the trial. Mr. Starkie, adopting this rule, observes that " words are actionable which directly tend to the preju- dice of any one in his office, profession, trade, or business." 1 Starkie SI. 117. And in another passage he adds, "When his office is lucra- tive, words which reflect upon the integrity or capacity of the plaintiff render his tenure precarious, and are, therefore, pro tanto, a detriment in a pecuniary point of view." 1 Starkie, SI. 118. Now the plaintiff was proved to hold a lucrative office, and imputations which would put that office in jeopardy come within the rule upon this subject; at all events, the objection, if good, is upon the record ; and, as all the material words were proved, there was no ground for entering a non- suit at the trial ; and therefore this rule must be discharged. Adams, Serjt., contra. In an action for words, the plaintiff must be nonsuited if the words are not actionable, for the jury cannot assess the damages when there is no cause of action. [Batlby, B. The rule is, that, if the facts alleged in the declara- tion be proved, it is the duty of the jury to find for the plaintiff; and if those facts do not disclose a sufficient cause of action, the defendant must mdve in arrest of judgment. Where a defendant is satisfied that the allegations if proved do not establish a cause of action, he ought to demur. The judge is not at liberty to nonsuit on the ground that the facts alleged in the declaration do not amount to a cause of action.] It cannot be contended that the Words are actionable per se ; and they are clearly not actionable as spoken with reference to the plain- tiff's situation. The imputation does not affect him in his situation of clerk, and are equally actionable whether they were spoken of the plaintiff in his situation or in his private capacity. Words, to be ac- tionable by reason of an imputation upon the plaintiff's trade, must be spoken of him in his trade, and with reference to his trade. They must either impute some misconduct in his trade, which renders him unfit for his situation, or be calculated to injure him in his trade. It is con- sistent with this imputation that the plaintiff might have conducted himself honestly to the company, and have faithfully and efficiently performed his duty ; and therefore the words cannot be actionable as spoken of the plaintiff in his trade. • Cur. adv. vutt. The judgment of the court was now delivered by Batlet, B. This case came before the court upon a rule nisi to enter a nonsuit. The ground of motion was that the words (in slander) proved upon the trial were not actionable. Two points were discussed upon the motion : one, whether the words were actionable or not ; and the other, whether this was properly a ground of nonsuit. SECT. III.] LUMBY V. ALLDAT. 741 The declaration stated that the plaintiff was clerk to an incorporated company, called the Birmingham and Staffordshire Gas Light Com- pany, and had behaved himself as t,uch with great propriety, and thereby acquired, and was daily acquiring, great gains ; but that the defendant, to cause it to be believed that he was unfit to hold his situ- ation, and an improper person to be employed by the company, and to cause him to be deprived of his situation, spoke the words complained of in the declaration. The objection to maintaining an action upon these words is, that it is only on the ground of the plaintiff being clerk to the company that they can be actionable ; that it is not alleged that they are spoken of him in reference to his character or conduct as clerk ; that they do not, from their tenor, import that they were spoken with any such refer- ence ; that they do not impute to him the want of any qualification such as a clerk ought to have, or any misconduct which would make him unfit to discharge faithfully and correctly all the duties of such a clerk. The plaintiff relied on the rule laid down by De Grey, C. J., in Onslow v. Home, " that 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, and business, and do or may probably tend to their damage." The same case occurs in Sir Win, Bl. Rep. 753, and there the rule is ex- pressed to be, " if the words be of probable ill consequence to a person in a trade or profession, or an office." The objection to the rule, as expressed in both reports, appears to me to be, that the words " probably " and " probable " are too indefi- nite and loose, and unless they are considered as equivalent to " having a natural tendency to," and are confined within the limits, I have ex- pressed in stating the defendant's objections, of showing the want of some necessary qualification, or some misconduct in the office, it goes beyond what the authorities warrant. Every authority which I have been able to find, either shows the want of some general requisite, as honesty, capacity, fidelity, &c, or connects the imputation with the plaintiff's office, trade, or business. As at present advised, therefore, I am of opinion that the charge proved in this case is not actionable, because the imputation it contains does not imply the want of any of those qualities which a clerk ought to possess, and because the imputation has no reference to his conduct as clerk. I say as at present advised, for the reason which I am about to state. The next question is, whether this is properly a ground of nonsuit ; and 1 am of opinion that, under the circumstances of this case, it is not. The words proved are nearly all the words which the first count con- 742 AYKE V. CKAVEN. [CHAP. IX. tains ; and if the words proved are not actionable, none of the other words contained in that count are. When the general issue is pleaded to a count, it puts in issue to be tried by the jury the question, whether the facts stated in that count exist. The legal effect of those facts, whether they constitute a cause of action or not, is not properly in question. The proper mode to bring that legal effect into consideration is, before trial, to demur; after trial, to move in arrest of judgment. The duty of the judge, under whose direction the jury try questions of fact, is not to consider whether the facts charged give a ground of action, but to assist the jury in matters of law, which may arise upon the trial of those facts. As the defendant, therefore, in this case puts in issue the allegations in the declaration, and those allegations were proved upon the trial, we are of opinion that the rule for a nonsuit ought to be discharged j and, notwithstanding the lapse of time, that there ought to be a rule nisi to arrest the judgment, if the defendant be advised to take such rule. Mule discharged. 1 AYRE v. CRAVEtf. In the King's Bench, Michaelmas Teem, 1834. [Reported in 2 Adolphus §■ Ellis, 2.] Action for slander. The declaration contained four 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 pro- fession of a physician at H., and that before, and at the time, &e., there was a rumor and report in and about H., and the neighborhood 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 rumor and report, the defendant, falsely and mali- ciously contriving and intending to have it believed that the plaintiff had been guilty of a criminal connection with a married woman, in the l Alexander v. Angle, 1 Cr. & J. 143 ; Sibley v. Tomlins, 4 Tyrwh. 90 ; Doyley v. Roberts, 3 B. N. C. 835 ; Brayne v. Cooper, 5 M. & W. 249 ; James v. Brook, 9 Q. B. 7; Hogg v. Dorrah, 2 Porter (Ala.), 212; Oram v. Franklin, 5 Blackf. 42; Buck v. Hersey, 31 Me. 558; Oakley v. Farrington, 1 Johns. Cas. 129; Van Tassel a. Cap- ron, 1 Den. 250 ; Ireland v. McGarvish, 1 Sandf. 155, ace. Conf. Ware v. Clowney, 24 Ala. 707; Butler v. Howes, 7 Cal. 87; Fowles i\ Bowen, 30 N. Y. 20. — Ed. SECT. III.] ATBE V. CKAVEN. 743 presence, &c, spoke and published the several false, &c, words follow- ing, of and concerning the said plaintiff, so carrying on such profes- sion as aforesaid, and of and concerning him in his said profession, and of and concerning the said rumor 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?" (meaning the said rumor 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 connection with a married woman, and that he was the person alluded to in such rumor and report). By means of the committing, &c, the said plaintiff has been greatly injured, &o. Here followed a statement that divers per- sons, not named, had refused to have acquaintance with the plaintiff, or to have any transactions with him in the way of his said profession, as they were before accustomed to have, and otherwise would have had. On the tiial 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 plain- tiff to show cause why the judgment should not be arrested. In Trinity term last (June 10th), J?. Pollock, Wightman, and Haines, showed cause. 1 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 pro- fession, which is the only safe criterion that can be suggested, and which will be found to agree with the decisions. Thus, it is not actionable to say of a counsellor, "he has no more wit than a jack- anapes," but it is actionable to say of him, " he has no more law than a jackanapes;" 2 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 con- tended 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. 1 Before Lord Denman, C. J., Littledale, Taunton, and Williams, JJ. * Prr Cur., in Cawdrey and Tetley's Case, Godb. 441, citing Palmer's Case (Palmer v. Boyer), Cro. Eliz. 342. 744 AYRE V. CRAVEN. [CHAP. IX. Alexander and Follett (with whom was H. IRldyard), contra. 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 carrrying 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 without special damage. This was held after verdict in Parrat v. Carpenter, 1 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, 2 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 a 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. 8 In Lumby v. Allday, 4 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 im- proper person to be employed by the company, and to cause him to be deprived of his situation, used words which charged him with incon- tinence; 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 connects the imputation with the plaintiff's office, trade, or business. As at present advised, therefore, I am of opinion that the charge proved in this case is not actionable, because the imputation it contai»s does not imply the want of any of those qualities which a clerk ought to possess, and because the imputation has no reference to his conduct as clerk." Words, which may injure a 1 Cro. Eliz. 502; s. c. Noy, 64; and see Gascoigne v. Ambler, 2 Ld. Eayiu. 1004. * Page 1260 to page 1267 (8th ed. 1831). 3 As " thou art a quack salver." Vin. Abr. Actions (for words), S, a, pi. 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. pi. 11, Cawdry v. Chickley ; ». c. Cro. Car. 270; and Godb. 441, pi. 509. "He is an emperic and mountebank, and a base fellow." Viner, ut sup. pi. 12, Goddart v. Hasel- foot. * 1 Cr. & J. 301 ; s. c. 1 Tyrwh. 217. SECT. ITI.] ATBB V. CRAVEN. 745 man in his profession, but which do not necessarily do so, are not actionable without special damage : they must be spoken with refer- ence to the actual trade. A maid-servant would undoubtedly be less likely to obtain a place if charged with prostitution, yet such a charge would not of itself be actionable. A school-mistress probably would suffer in her calling by being charged with incontinence, yet such a charge is not actionable without special damage. 1 And the words, if not actionable for want of special damage, cannot be aided by an averment that they were spoken of the plaintiff in his profes- sion, or even that they charged him with having committed the act imputed in his particular professional character. Abstaining from acts of incontinence cannot be put as part of the profession of a physician ; and, consequently, the committing or not committing them has noth- ing to do with, the exercise of the profession. The abstinence is a duty not peculiar to a physician. Morally speaking, it is the duty of all men ; but the question is, whether a charge of its non-observance affords a legal ground of complaint. A merchant might be under the necessity of frequenting a house in the exercise of his trade ; but it would not be sufficient, without special damage, to aver that, in doing so, he had obtained access to a female living in the house, and had been criminally connected with her; yet this is precisely analogous to the extreme case suggested on the other side as -provable consistently with the present record. In Hartley v. Herring, 2 where incontinence was imputed to a licensed preacher at a dissenters' chapel, the whole argument on both sides assumed the necessity of special damage. A similar remark applies to Moore v. Meagher 8 and Hunt v. Jones. 4 Unless this limitation be adhered to, that the words must refer to the actual exercise of the calling, it is impossible to say what imputation may not be held to be injurious to a man in his profession. Cur. adv. vult. Lord Deuman, C. J., in this term (Nov. 24th), delivered the judg- ment of the court. There are obvious and very good reasons for the jealousy with which the courts have always regarded actions of slander, particularly those in which no indictable offence has been imputed ; but here the plaintiff states the grievance as affecting him in his business, office, or profession, without charging that any actual damage has accrued to him from the words spoken. Some of the cases have proceeded to a length which can hardly fail 1 Per Twisden, J., in Wharton v. Brook, 1 Ventr. 21 ; and see Wetherhead v. Armitage, 2 Lev. 233 ; s. c. Freern. 277, as Witherly v. Hermitage ; and 2 Show. 18, as Wetherhead v. Brookborne. 2 8T.E. 130. 3 1 Taunt. 39. 4 Cro. Jac. 499. T46 JONES V. LITTLER. [CHAP. IX. ;to excite surprise : a clergyman having failed to obtain redress for the imputation of adultery ; 1 and a schoo'l-mistress having been declared incompetent to maintain an action for a charge of prostitution. 2 Such words were undeniably calculated to injure the success of the plain- tiffs in their several professions, but, not being applicable to their con- duct therein, no action lay. The doctrine to be deduced from the older cases was recently laid down, after a full discussion, by Mr. Baron Bayley : 8 "Every authority which I have been able to find, either shows the want of some gen- eral requisite, as honesty, capacity, fidelity, &c, or connects the impu- tation with the plaintiff's offiqp, trade, or business." In that case, accordingly, where a verdict had been recovered by the •clerk of a gas company, on a declaration alleging that the defendant, wishing to cause it to be believed that the plaintiff was unfit to hold his situation, and to .cause him to be deprived of it, had said to him, " You are unfit to hold your situation,'' and then imputed incontinence as the reason of his unfitness, the Court of Exchequer thought the judgment ought to be arrested. In the present case, much doubt was entertained whether the words were not actionable within the rule just adverted to. For, being laid as spoken of the plaintiff as a physician, in which character he may have opportunities of abusing the confidence reposed in him, to com- mit acts of criminal conversation, the statement must be thought large enough to admit such proof to be adduced on the trial, in which case the necessary proof would be presumed to have been given, and the judgment ought not to be arrested. But, after full examination of the authorities, we think that, in actions of this nature, the declaration ought not merely to state that such scandalous conduct was imputed to the plaintiff in his profession, but also to set forth in what manner it was connected by the speaker with that profession. For this defect the judgment must be arrested. Mule absolute. JONES v. LITTLER. In the Exchequer, January 16, 1841. [Reported in 7 Meeson &■ Welsby, 423.] Slander. The declaration stated that the plaintiff was a brewer, and that the defendant falsely and maliciously spoke and published of 1 Parrat v. Carpenter, Noy, 64 ; s. c. Cro. Eliz. 502. 2 Per Twisden, J., in Wharton v. Brook, 1 Ventr. 21. 3 In Lumby v. ALlday, 1 Gro. & J. 305; s. c. 1 Tyrwh. 224. J5ECT. III. J JONES V. LITTL*ER. 747 and .concerning him in the way of his trade as a brewer the false, scan- dalous, . malicious, and defamatory words following : " I'll " (meaning that he, the defendant, would) " bet £5 to £1, that Mr. Jones " (mean- ing the plaintiff) "was in a sponging-house for debt within the last fortnight, and I can produce the man Who locked him up ; the man told me so himself." Whereupon the said Henry Pye then asked the defendant, " Do you mean to say that Mr. Jones, brewer, of Rose Hill " (meaning and describing the plaintiff), " has been in a sponging-house within this last fortnight for debt?" and thereupon the defendant then replied to the said Henry Pye, and the said other persons then present, " Yes, I do." The cause was tried before Rolfe, B., at the last Liverpool assizes, when, no special damage having been proved, it was objected, on the authority of Ayre v. Craven, that the words could not be considered as spoken of the plaintiff in the way of his trade, and therefore that he ought to be nonsuited. The learned judge refused to nonsuit, and the jury returned a verdict for the plaintiff. Kelhj, in Michaelmas term last, applied for a rule to show cause why a nonsuit should not be entered, or why the judgment should not be arrested. The court refused a rule on either of those grounds, but granted a rule to show cause why there should not be a new trial, on a suggestion that the learned judge ought to have left it as a question to the jury whether the words were spoken of the plaintiff in the way of his trade, and did not. Cresswell and Wightman now showed cause. The jury have found that the words were spoken of the plaintiff in the way of his trade, and in so doing they have come to a right conclusion. The words alleged to have been spoken amount to an allegation that the plaintiff was insol- vent; and if so, it must apply to him in the way of his trade as a brewer. The case of Ayre v. Craven was a different case altogether. If the words there laid had been alleged to have been, that in the plaintiff's character of physician he had been incontinent, they would have been actionable in themselves, as necessarily affecting him in his professional character. That case was decided on the au- thority of Lumby v. Allday, where it was held that the words charged as slanderous must show the want of some general requisite, as honesty, capacity, fidelity, &c, or connect the imputation with the plaintiff's office, trade, or business. [Parke, B. The case of Stanton v. Smith is directly in point. It was there held that it was actionable to say of a tradesman, " He is a sorry, pitiful fellow, and a rogue ; he compounded his debts at five shillings in the pound," though there was no collo- quium of his trade ; but if the question was put to the jury, and they found it to have been spoken of the plaintiff in his trade, there is an 748 JC&ES V. LITTLEB. [CHAP. IX. end of the matter.] Insolvency is necessarily connected with trade. If a man cannot pay his debts, he cannot pay his mercantile debts. The damage is the same, whether the defendant happens to be speak- ing of him in his trade of a brewer or not. [Aldekson, B. Doyley v. Roberts J seems to be an authority to the contrary. There the follow- ing words were spoken of an attorney, " He has defrauded his creditors, and has been horsewhipped off the course at Doncaster;" and it was held that they were not actionable, unless they were spoken of him in his profession.] The words, to be actionable, must either necessarily affect the plaintiff in his trade, must be spoken of him in his trade, or must be shown to have affeeted him injuriously. In Doyley v. Rob- erts 1 and Ayre v. Craven, the words did not necessarily affect the party in his trade. In Com. Dig., Action upon the Case for Defamation, D, 22, the following is put as an instance of words which are actionable : " If he say of a counsellor, ' Thou art no lawyer ; canst not make a lease ; they are fools that come to thee for law.' " Alexander, in support of the rule. There was no evidence to show that the words were spoken of the plaintiff in the way of his trade, and that question was not properly left to the jury. [Rolfe, B. I am sure I put the question to the jury, whether the words were spoken of the plaintiff in his trade, and they found that they were.] The rule was granted on that ground. Pakke, B. It is quite clear that this rule ought to be discharged, for the only ground on which it was granted has failed, inasmuch as the learned judge did leave the question to the jury, whether the words were spoken of the plaintiff in his trade; and, indeed, it is plain that the words were so used, from the fact that in the conversation in question the plaintiff was spoken of as a brewer. Independently of that, however, and even if they were spoken of him in his private character, I think the case of Stanton v. Smith is an authority to show that the words would have been actionable, because they must neces- sarily affect him in his trade. It is there said, " We were all of opinion that such words spoken of a tradesman must greatly lessen the credit of a tradesman, and be very prejudicial to him, and therefore that they were actionable." That case is distinguishable from Ayre v. Craven and Doyley v. Roberts. 1 In the latter of those cases the words were not spoken of the plaintiff in his business of an attorney ; and in the former it did not appear in what manner the immorality was connected with the plaintiff's profession of a physician; and it was possible that such imputations of incorrect conduct, out of the line of their respective professions, might not injure their professional characters. But this i 3Bing. N. C. 835; 5 Scott, 40. SECT. III.] BELLAMY V. BURCH. 749 case is distinguishable, because here the^ imputation is that of insol- vency, which must be injurious; for if a tradesman be incapable of paying all his debts, whether in ox out of trade, his credit as a trades- man, which depends on his general solvency, must be injured. The case of Stanton v. Smith, as it appears to me, is good law, notwith- standing the observations of Coltman, J., in Doyley v. Roberts. Alderson and Rolfe, BB., concurred. Hide discharged} BELLAMY v. BURCH. In the Exchequer, February 10, 1847. [Reported in 16 Meeson §■ Welsh), 590.] Case. The declaration stated that the plaintiff, heretofore and before the commencement of the suit, and before and at the time of the committing of the grievances by the defendant as thereinafter mentioned, was the lessee and renter of certain turnpike tolls, and, amongst others, of certain tolls arising and payable upon and in respect of a certain road, to wit, at Tewkesbury, in, &c. ; and he, the plaintiff, had always well and truly and punctually paid the rent of such tolls, and had never been a defaulter in payment of any such tolls, at Tewkesbury or elsewhere ; and whereas, also, at the time of the committing of the grievances by the defendant, &c, to wit, on, &c, a public meeting was held by the trustees of certain turnpike roads, to wit, in the city of Worcester, for the purpose of letting by public auction, among others, the tolls arising and payable in and upon certain turnpike roads, called, to wit, the Powick and Malvern districts, at which said meeting the plaintiff then attended for the pur- pose of bidding at the said auction, in order that he, the plaintiff, might become the lessee and renter from the said trustees of the said last-mentioned tolls; yet the defendant, well knowing, &c, but con- triving, . Thatcher, Freem. 276 ; Bryant ». Loxton, 11 Moo. 344 ; Taylor n. Church, 1 E. D. Smith, 287 j Fowles v. Bowen, 30 N. Y. 20. — Ed. 750 BELLAMY V. BUECH. |[CHAP. IX. said business of renter and lessee of tolls, &c, heretofore, and before the commencement of this suit,- to wit; on, &c, at the said' meeting so holden as aforesaid, he the defendant, in a certain discourse which he the defendant then had of and concerning the plaintiff, and of and con- cerning him as such lessee and renter of tolls as aforesaid, falsely and maliciously spoke and published at such meeting, in the presence and hearing of divers and many persons, of and concerning the plaintiff, and of and concerning him as such lessee and renter of tolls as afore- said, the false, scandalous, &c.,- words following, that is to say, " He " (meaning the plaintiff) " was wanted at Tewkesbury ; he " (meaning the plaintiff) " was a defaulter there ; " whereby and by means of the committing of which said several grievances the plaintiff was not only greatly injured in his credit and reputation, but also thereby, and on no other account whatsoever, the said trustees wholly refused to receive any biddings from the plaintiff at the said auction,, for any of the said tolls so put up to auction as aforesaid, or to suffer or permit the plaintiff to bid at the said auction for the same, or to become or be the renter or lessee of any such tolls, as they otherwise might and would have done ; and he the plaintiff was thereby hindered and prevented from becoming and being the renter and lessee of the said tolls arising and payable on the said roads so called, to wit, the Powick and Mal- vern districts, as he otherwise might and would have been ; whereby he the plaintiff hath lost and been deprived of great gains and profits, amounting in the whole to a large sum of money, to wit, £200, which might and would have arisen and accrued to him therefrom ; and the plaintiff, by means of the premises, hath been and is, as such renter and lessee of tolls as aforesaid, and otherwise, greatly injured and damnified, to the plaintiff's damage of £200. Pleas, 1st, not guilty ; 2d, that the plaintiff was not the lessee or renter of the said turnpike tolls in the said declaration first mentioned, or any or either of them, or any part thereof respectively, in manner and form, &c. ; 3d, as to so much of the causes of action mentioned in the declaration as relate to or are connected with the plaintiff's attend- ing the alleged public meeting alleged to have been held by the trustees of certain turnpike roads, to wit, in the city of Worcester, for the alleged purpose of letting by public auction, amongst others, the tolls arising and payable in and upon certain turnpike roads called the Powick and Malvern districts, for the purpose of bidding at the alleged auction, in order that he might become and be the lessee and renter from the said trustees of the said last-mentioned tolls, as above in that behalf mentioned, the defendant saith, that the plaintiff never attended that meeting for that or any other purpose, in manner and form, &c. ; iih, as to so much of the causes of action as relate to or are connected SECT. III.] BELLAMY V. BtlRCH. 751 -with the public meeting therein mentioned, the defendant said that such public meeting never was held, in manner and form, &c. ; 5th, as to so much of the causes of action in the declaration mentioned as relate to or are connected with the auction therein mentioned, defend- ant saith that there never was such auction as therein alleged, in man- ner and form, &c. Issues thereon. At the trial, before Gaselee, Serjt., at the last assizes for Worcester- shire, the chairman of the meeting of trustees for the Powick and Malvern district of turnpike roads proved that the plaintiff bid for the tolls there, and that the witness did not reject or prevent his bidding, but said he would take care he should, by his sureties, be a responsible person. Neither the plaintiff nor the defendant was the highest bidder, or became the renter of the tolls. The words were proved as laid. The learned serjeant told the jury they must be satisfied that the words were spoken of the plaintiff as a renter of tolls arising on roads at Tewkesbury. Verdict for the plaintiff, damages, 40s., leave being given to move to enter a verdict for the defendant on the first and second issues. A rule having been obtained accordingly, Gray {Allen, Serjt., with him) showed cause. The only question in this case is, whether the introductory averment in the declaration was material. The plaintiff contends that it was not. The declaration certainly begins by stating that, at the time of committing the griev- ances, the plaintiff was lessee and renter of certain turnpike tolls, &o. ; but the words spoken by the defendant imputed to the plaintiff that, when on a former occasion he was a renter of tolls on the Tewkesbury road, he was a defaulter, viz., had not paid his Tewkesbury rent. As the plaintiff here had previously procured his living by renting of tolls, the words must be taken as used with respect to that renting, as they would in case of a profession or trade ; and though at the time when the slander was uttered he was not a lessee of tolls, still, as he was about to become a renter of others, and was accustomed to do so, and procured a livelihood thereby, the cases respecting slander of a man in bis profession or trade apply. Vin. Abr. tit. Actions for Words, XT, a, pi. 16, p. 474 ; Tuthill v. Milton. 1 [Paeke, B. How does it appear that the plaintiff was going to become a renter of other tolls ? Tuthill v. Milton goes on the presumption of the plaintiff's continuance in trade as a linen-draper. A profession is a continuing thing, but contracting to become a lessee of tolls is not a profession, and the habit of taking tolls is nothing. Nor is a taking of tolls as lessee an office.] i Yelv. 158. 752 BELLAMY V. BUECH. [CHAP. IX. Whiimore, in support of the rule. These words were not action- able per se, without proof of sjsecial damage. The cases for slander of a man in his calling show that that calling, whatever it might be, had continued, either actually or by intendment, to the time of the speak- ing of the words. Moore v. Synne ; ' Collis v. Malin. 2 The latter case is as follows : " Action for words. Whereas the plaintiff had used, per magnum tempus, the trade of buying and selling cattle, and divers times bought upon his credit, that defendant said of him, ' Thou art a bankrupt.' Defendant pleaded not guilty, and found against him ; and because he did not say that he used the trade at the time of the speaking the words, h\iA per magnum tempus uses fuit, which may be divers years before, and the action lies not unless at the time of speaking, therefore it was adjudged for the defendant." Here any person might bid at the auction, and if he bid highest, and found good security, would have become the lessee of the tolls. Paeke, B. I am of opinion that this case does not fall within that class of decisions referred to on behalf of the plaintiff, which relate to trades or professions within the legal acceptation of those terms, viz., as conditions which by law are presumed to continue and not to be altered. A farmer's occupation' may be a business, in respect of his skill in cultivating land. In the case cited from Yelverton, it did not appear that the plaintiff had ceased to be of the trade of a linen-draper, and the court said they would intend that he continued to be so. Here the plaintiff was bound to prove that he exercised the so-called pro- fession both before and at the time the words were spoken. But the jury have found that the plaintiff's profession, so called, did not con- tinue at the time the words were spoken ; that excludes all presump- tion on the subject; the defendant's act was nothing more than speaking of the plaintiff as a former contractor. If these words had been spoken of the plaintiff at the time when his contract for hiring the tolls existed, it is doubtful whether the action could have been maintained ; I incline to think that it could not. The verdict must be entered on the second issue for the defendant ; and as the plea of not guilty denies that the words were spoken in the sense laid in the declaration, of and concerning the plaintiff as lessee, and it is found that they were not spoken of him as an existing or continuing lessee, of tolls, the defendant is entitled to a verdict on that issue also. Aldebson, B. The effect of slanderous words spoken of a man in a trade is to render him less able to carry on that trade ; but words i 2 Roll. Rep. 84. 2 Cro. Car. 282. SECT. III.] PEMBERTON V. COLLS. . 753 spoken of a man's conduct as to a past contract do not affect or injure his future conduct of another. Rolfe, B., and Platt, B., concurred. Rule absolute} PEMBERTON v. COLLS. In the Queen's Bench, Apeil 15, 1847. [Reported in 25 Law Journal Reports, 403.] Case for slander. The declaration stated that, before and at the time of the committing of the grievances thereinafter mentioned, the plaintiff had been and was a clergyman of the united church of Eng- land and Ireland as by law established, in holy orders, and then was the vicar of Wandsworth in the diocese of Winchester, in England ; that the plaintiff had always conducted himself in his said function and character of a clergyman with piety, honesty, and morality ; that the defendant then was also a clergyman of the said united church of Eng- land and Ireland; yet the defendant, well knowing the premises, but contriving and maliciously intending to injure the plaintiff, and also the character of the plaintiff, and to degrade him in his said character of a clergyman, theretofore and after the passing of a certain statute made and passed in the fourth year of the reign of our Sovereign Lady the Queen, intituled " An act for the better enforcing church discipline," to wit, on, &c, in a certain discourse then had with one G. W. C, and divers other good and worthy subjects of this realm, of and concerning the plaintiff, and of and concerning him in his said profession of a clergyman, and relating to himself the defendant, in the presence and hearing of the said G. W. C, falsely and maliciously spoke and pub- lished of and concerning the said plaintiff the several false, scandalous, malicious, and defamatory words following, of and concerning the plaintiff, and of and concerning him in his said profession of a clergy- man of the said united church, and relating to himself the said defend- ant, that is to say, " The very day I " (meaning the defendant) " came into residence, Dr. Pemberton " (meaning the plaintiff) " sent for me " (meaning the defendant); "I" (meaning the defendant) "went and 1 Collis v. Malin, W. Jones, 304 ; Watson v. Vanderlash, Hetl. 71 ; Moore v. Syne, 2 Roll. E. 84; Gibbs v. Price, Sty. 231 ; Windsor v. Oliver, 41 Ga. 538 ; Dieken u. Shepherd, 22 Md. 399 ; Allen v. Hillman, 12 Pick. 101 ; Harris v. Burley, 8 N. H. 216 ; Forward v. Adams, 7 Wend. 204 ; Edwards v. Howell, 10 Ired. 211 ; Wilson v. Bunyon, Wright (Ohio), 651, ace. See Mordant v. Bridges, Moo. 686; Jordan a. Lyster, Cro. El. 273; Hammond v. Kingsmill, Sty. 210; Smayles v. Smith, 1 Brownl. 1, 16 ; Jones v. Stevens, 11 Price, 235. — Ed. 48 754 PEMBERTON V. COLLS. [CHAP. IX. dined with him " (meaning the plaintiff), « and the wine'must have been drugged, for I" (meaning the defendant) "took but two glasses, and was quite stnpefied; while in this condition, Dr. Pemberton" (meaning the plaintiff) "put a bill into my hands, and requested me" (meaning the defendant) " to sign it, saying. Colls " (thereby meaning the defend- ant), "just put your name to this; I wish to have it as a security for the payment of £130 per annum for reading for you at the new church. I " (meaning the defendant) " answered, Well, give me a pen, and I will sign it ; but I thought I had sufficiently satisfied you " (meaning the plaintiff). " Immediately I " (meaning the defendant) " had signed it, Dr. Pem- berton " (meaning the plaintiff) " snatched it up, and walked to the fire in order to dry the signature, and, laughing, said, This will be quite safe; I" (meaning the plaintiff) "will take care of this. The bill, I " (meaning the defendant) " think, was drawn for J 2500, but, having been stupefied with the wine, I " (meaning the defendant) " do not rightly remember." And in another part of the same discourse which the de- fendant then had with the said G. W. C. of and concerning the plaintiff, the defendant, in the presence and hearing of the said G.W. C.,.falsel,y and maliciously spoke and published of and concerning the plaintiff the other false, scandalous, malicious, and defamatory words following, of and concerning the plaintiff, and of and concerning him in his said profession of a clergyman, as aforesaid, and of and relating to himself the defendant, that is to say, " You eannot suppose that I " (meaning the defendant) " can visit a man " (meaning the plaintiff) " who so cheated me" (meaning the defendant) "at my first coming" (thereby meaning that the plaintiff had fraudulently obtained the said bill here- inbefore mentioned from the defendant, whilst he, the defendant, was stupefied with drugged wine). Second count. That afterwards, and after the passing of the said statute hereinbefore mentioned, to wit, on the day and year aforesaid, the defendant, further contriving and maliciously intending to injure the plaintiff, and to degrade him in his said character of a clergyman, in a certain other discourse which the defendant then had with a cer- tain other person, to wit, one C. EL, and divers other good and worthy subjects of this realm, of and concerning the plaintiff, and of and con- cerning' him in his said profession of a clergyman of the said united church, and relating to himself, the defendant, in the presence and hearing of the said C. H., and in the presence and hearing of the said other good and worthy subjects of this realm, falsely and maliciously spoke and published of and concerning the plaintiff, and of and con- cerning him in his said profession, the several false, scandalous, malicious, and defamatory words following, of and concerning the plaintiff, and of and concerning, him in his said profession of a clergy- SECT. III.] PEMBERTON V. COLLS. 755 man, as aforesaid, and relating to himself the defendant, that is to say ■ "Dr. Pemberton " (meaning the plaintiff) " placed before me " (mean- ing the defendant) ♦' a bill ; " I " (meaning the defendant) " signed ; I " (meaning the defendant) " do not know for wha,t amount it was, whether for £2000 or £3000, for I " (meaning the defendant ) " was completely pigeoned by Dr. Femberton " (meaning.the plaintiff), there- by meaning that the plaintiff had, obtained .the said bill from defendant by fraud. There was a third count, which is not material, and an allegation of special damage. Pleas : first, not guilty ; second, a denial that the special damage in the declaration mentioned occurred by reason of the premises therein .mentioned. Issues thereon. At the trial no proof was given of the special damage laid in the declaration, and the plaintiff had a verdict for £200 on the issue raised on the first and second counts. In Easter term, 1846, a rule nisi was obtained, calling upon the plaintiff to show cause why the judgment should not be arrested, or why a venire de novo should not be awarded, ,or a new trial :had, against which Montagu Chambers and Peacock showed cause. 1 The judgment cannot be arrested unless both the first and second counts are bad ; and a venire de novo can only be awarded if one or other of these counts are bad. But both the counts are good without any allegation of spe- cial damage. The first charges a giving of drugged wine to the plain- tiff, for the purpose of defrauding him ; this amounts to a cheat, and is .indictable at common law. Hawk. Pleas of the Crown, b. 1, ch. 71, § 1. Secondly, the words impute an offence for which the plaintiff would be liable to suspension or deprivation as a clergyman ; and so they are defamatory. Parergon Juris Canonici Anglicani, p. 208, 238. But another view may be taken ; the plaintiff falls within the class of persons filling a particular office, and words spoken of him with reference to that office are actionable, though they would not be so otherwise. The plaintiff is averred to be a clergyman and vicar of Wandsworth, and the words are alleged to have been spoken of him in that character. Thus it is actionable, per se, to say of a physician that "he is no scholar." Cawdry v. Highley. But it is not necessary that the words should be spoken of the plaintiff in any particular char- acter, if he in fact fills that character, and may be injured in it by them. 1 Starkie on Libel, p. 153. " Where an office, profession, or employment of the plaintiff requires great talent and high mental attainments, general words imputing want of ability are actionable, 1 Before Lord Demrian, C. J., Patteson, Wightman, and.Erle, JJ. 756 PEMBERTON V. COU,S. [CHAP. IX. without express reference to his particular character ; " on this ground it is actionable to say of a clergyman that he is immoral, as morality and integrity are necessary for him, just as it is actionable to say of a trader that he is insolvent. [Patteson, J. Imputing insolvency to a trader necessarily applies to his trade, and so is actionable ; but it is not so to say he has com- mitted a fraud ; and yet honesty is as necessary to a trader as to a clergyman.J Blunden v. Eustace 1 shows that it is slanderous to say of a surveyor that " he is a cozening, shifting, cheating knave ; " for such words touch him in his profession. In Lord Townsend v. Dr. Hughes 2 it is said that it is actionable to say of a bishop, " he is a wicked man ; " or of a justice of the peace and deputy-lieutenant, " He is a Jacobite, and will bring in popery." How v. Priun. 8 [Patteson, J. Your argument is that the words "of and con- cerning him as such clergyman " may be struck out, #nd that it is enough if the words were spoken of him when he was a clergyman.] There is a case in. Roll. Abr. 55, cited in Com. Dig., Action upon the Case for Defamation, D, 25, where it was held actionable to say of an attorney, " he has the falling sickness ; " for that disables him in his profession. Shee, Serjt., and JBovill, in support of the rule. The first point made on the other side is, that the words set out in the first count impute an indictable offence at common law ; and Hawkins's Pleas of the Crown is cited as an authority ; but that dictum has been again and again overruled. 2 East's Pleas of the Crown, p. 818 ; 3 Burn's Justice, tit. Cheat, p. 127. The distinction now recognized is between a cheat which may affect the public, and one which merely affects an indi- vidual. The King v. Wheatley. 4 In Savile v. Jardine, Eyre, C. J., says that it is not actionable to call a man a cheat merely. In 2 Rus- sell on Crimes (3d ed.), p. 282, cheats and frauds, punishable at com- mon law, are defined as " the fraudulent obtaining the property of another by any deceitful or illegal practice, or token short of felony, which affects or may affect the public." The King v. Haynes. 6 In The King v. Py well, 6 it was laid down that, in order to render such a cheat as this indictable, there must be a conspiracy. Then the other ground for supporting the declaration is, that the words are alleged to have been spoken of the plaintiff in his profession of a clergyman. But there is nothing on this record which shows that these words were spoken of the plaintiff in that character, which is essential, according l Cro. Jac. 504. 2 2 Mod. 159. s 2 Salk. 694. ♦ 2 Burr. 1129. 6 4 Mau. & Selw. 214. • 1 Stark. N. P. C. 402. SECT. III.] ROBERTS V. CHAMPLIN. 757 to Ayre v. Craven, where Lumby v. Allday and Parrat v. Carpenter were cited. There is nothing to connect the words with the office of clergyman. [Patteson, J. The words are alleged to have been spoken in the course of a transaction between the plaintiff and the defendant as clergyman.] But it does not appear that the transaction had any reference to the plaintiff's character of vicar of Wandsworth ; and it is not enough that it refers merely to him as a clergyman, according to Ayre v. Craven. [Lord Denman, C. J. That was a general imputation of immo- rality.] There is no averment that there was any transaction between the plaintiff and the defendant as clergymen, and therefore an innuendo to that effect will not extend the natural meaning of the words. Angle v. Alexander ; x Goldstein v. Foss ; Day v. Robinson ; 2 Gompertz v. Levy. 3 [Patteson, J. Suppose it all fiction as to the new church, and the plaintiff's reading there, would not the statement that the plaintiff drugged the defendant's wine, in order to get him to sign a bill for £2000, for reading for him at a new church, be a matter of ecclesiastical cognizance ?] It probably would ; but an imputation of an offence of ecclesiastical cognizance is not actionable per se. Starkie on Libel, 24 : " It seems also to be clearly established that words imputing an offence merely spiritual are not in themselves actionable ; and the reason assigned for this is, that the person slandered may, for such words, institute a suit in the spiritual court ; and that if an action were to be entertained in a temporal court, the party would be twice punished for the same words." This distinction was taken in Evans v. Gwyn. 4 This is clearly not an offence within the Church Discipline Act. There is no authority cited for such an imputation being actionable, except the dictum of Scroggs, C. J., in Lord Townsend v. Dr. Hughes, which is of light authority. Cur. adv. vult. May 8. Loed Denman, C. J. Without entering into a lengthened examination of the decisions on the questions raised, we think it enough to say that the imputation cast on the plaintiff, by the words set forth in the first count, appear to us to reflect on the plaintiff in his profes- sional character ; and that cast on him in the seoond count does not so '- 1 Bing. 119. ^ 1 Ad. & El. 554; ». c. 3 Law J. Rep. (n. 8.) Exch. 381. 3 9 Ad. & El. 282 ; a. c. 8 Law J. Rep. (n. s.) Q. B. 5. * 5 Q, B. Rep. 844; s. c. 13 Law J. Rep. (n. s.) Q. B. 222. 758 GALLWEY V. MARSHALL. [CHAP. IX. affect him within the meaning of the cases. 1 The consequence is, as the damages were taken on the two jointly, that a venire de novo must be awarded, that the damages may be assessed on the good count Only. Venire de novo. GALLWEY v. MARSHALL. In the Exchequer, December 8, 1853. [Sep 1 dried in 9 Exchequer Reports, 294.] The declaration stated, that1>efore and at the time of the malicious speaking hereinafter mentioned, the plaintiff was in holy orders as a clergyman of the Church of England ; and before the malicious speak- ing, and whilst he was in holy orders and was residing in Buckingham- shire, he had been accused of having been guilty of incontinency with a certain woman, and of being the father or putative father of a cer- tain bastard child, and had been summoned to show cause why he should not contribute to the maintenance of the said child; and, on the hearing of the summons, had been adjudged not to have been guilty of incontinence with the said woman, and not to be the father of the said bastard child ; yet the defendant, in a conversation about the premises with a certain person, to wit, one A. Horncastle, falsely and maliciously spoke and published of the plaintiff in his character of a clergyman of the Church of England, the words following, that is to say, " If Mr. Appleton knows nothing against Mr. Gallwey " (mean- ing the plaintiff), "the bishop" (meaning the Lord Bishop of Lin- coln) " does." And, in answer to a question by the said A. Horncastle, what the said bishop knew against the plaintiff, the defendant falsely and maliciously spoke and published of the plaintiff, as such clergy- man, the further words following, that is to say, " Why, that great affair in Buckinghamshire " (the defendant meaning thereby that the conduct of the plaintiff, in and with respect to the said matter, had been of a gross and scandalous nature, and that the defendant had been guilty of incontinence with the said woman, and was the father of the said bastard child). Demurrer and joinder therein. Turner argued in support of the demurrer (in Michaelmas term, Nov. 16, 21). The action is not maintainable. In Ayre v. Craven, which decided that words imputing adultery to a physician are not actionable without special damage, Lord Denman, C. J., in delivering 1 Hopwood v. Thorn, 8 C. B. 293 ; McDowell v. Bowles, 8 Jones (N. Car.), 184, ace. — Ed. SECT. III.] GALLWEY V. MARSHALL. 759 the judgment of the court says, "After full examination of the author- ities, we think that, in actions of this nature, the declaration ought not merely to. state that such scandalous conduct was imputed to the plain- tiff in his profession, but also to set forth in what manner it was- con- nected by the speaker with that profession. The doctrine there laid down was recognized and adopted in James v. Brook. 1 In Parrat v. Carpenter, it was held not actionable to say of a beneficed clergyman that he is an adulterer. It was argued, that an action lay for those words, " for they be very slanderous to the plaintiff, and touch him in his credit and profit, and are cause of deprivation if they be true ; " but the court held, that it was a slander examinable only in the spir- itual court. [Paeke, B. That case is overruled by Dod v. Robin- son.] Numerous authorities are collected in Com. Dig. tit. Action upon the Case for Defamation, F, 20, showing that words are not actionable if they " do not charge with an offence for which the party shall have a temporal damage, though they are contra bonos mores." In Starkie on Slander, p. 126 (2d ed.), it is said : " The action extends to words spoken of men in their profession as barristers, attorneys, physicians, and clergymen. But it may be doubted whether words spoken of a clergyman would be actionable, unless he held some ben- efice or preferment, of which he might be deprived if the words were true." Hopwood v. Thorn decided, that words imputing dishonesty to a dissenting minister were not actionable, the words riot having been spoken of the plaintiff in reference to his office of minister, and there being no proof of special damage. [Platt, B. The offence imputed would, if true, subject the plaintiff to punishment under the Church Discipline Act. 2 [That act does not authorize temporal punishment, but only regulates the former mode of proceeding, which was by spir- itual censure, under the 1 Hen. VII. c. 4. In Pemberton v. Colls, the declaration stated that the plaintiff was a beneficed clergyman ; but this declaration contains no allegation to that effect, and there is noth- ing to connect the imputation with his professional character. [Al- derson, B. In Dod v. Robinson, the declaration alleged that, in the 13 Car. II., the plaintiff was instituted and inducted into a parsonage, and executed the office of a pastor for four years. The action was brought in the 23 Car. II., and the court doubted whether it could be maintained, because the plaintiff had alleged a special time during which he exercised the office ; and therefore it should not be intended that he continued longer than himself had laid it. That is an author- ity in favor of requiring an averment that the plaintiff was a beneficed clergyman, and that the words were spoken of him as such.] i 9 Q. B. 7- 2 3 & 4 Vict. o. 86. 760 GALLWEY V. MARSHALL. [CHAP. IX. WiUes, contra. First, it is not necessary to allege that the plaintift ■tfas a beneficed clergyman, since the words were calculated to injure him in his office. The doctrine, that a charge of incontinence is not of itself actionable, because incontinence is only the subject of spir- itual censures, does not apply to the case of a clergyman ; for such a charge, if true, would subject him to deprivation of his office. Rogers's Ecclesiastical Law, tit. Deprivation ; x Burgoyne v. Free ; * Oliver v. Hobart. 8 Whether beneficed or not, it is an injury to him to be degraded from his order, and precluded from administering the sacred rights of the Church. That difference between the case of a person in holy orders and a layman was recognized by the statute 1 Hen. VII. c. 4, and subsequently by the 31 Hen. VIII. c. 14, § 10, by which a priest keeping a concubine forfeited his goods, chattels, and promotions, and was to suffer imprisonment at the king's will. Burns's Ecclesiastical Law, tit. Deprivation. 4 Again, the proceedings under the Church Discipline Act, 3 & 4 Vict. c. 86, are not of a mere spiritual nature pro salute animce, but essentially in pcenam. In 1 Roll. Abr. tit. Action sur Case, T, it is said, that an action lies for saying of a churchwarden, in reference to his office, that he had cheated the parish ; for he is a spiritual officer as well as a temporal ; also that it is action- able to say of a beneficed clergyman, "he preacheth lies in the pulpit ; " for that is cause of deprivation, by which he might have tem- poral damage. The distinction between slander of this kind, spoken of a person in holy orders and of a layman, is adverted to in Ireland v. Smith. 6 Parrat v. Carpenter is no authority for the proposition which it professes to decide, and is overruled by Dod v. Robinson. Secondly, as the words necessarily affect the plaintiff in his office of clergyman, it need not be alleged that they were spoken of him in his office. The case of Ayre v. Craven is an extreme case. [Alderson, B. There are certain professions, the proper exercise of which depends on morality ; and except for the case of Ayre v. Craven, I should have thought that that of a physician was one of them.] There are, no doubt, certain branches of the medical profession in which a charge of incontinence would be destructive to the professors; but it does not necessarily follow that such an imputation would injure a physician in the particular branch in which he practised. It is different, however, with a clergyman, for. without morality he cannot conscientiously exercise his sacred functions. [Pollock, C. B. A disposition to falsehood would be equally improper in a clergyman, and yet no action would lie for saying of a clergyman that he was a common liar. If we were to relax the rule, actions of this kind would be innumerable.] i Page 340 (2d ed.). 2 2 Hagg. 456, 662. 8 1 Hagg. 43. * Page 141 d (9th ed.). 8 2 Brown, 166. SECT. III.] GALLWET V. MARSHALL. 761 It is actionable per se to say of a merchant that he is insolvent, for the imputation directly affects him in his business. Jones v. Littler. The same principle applies to charges made against a clergyman, which would subject him to deprivation. In Pemberton v. Colls, the defam- atory words stated in the second count did not impute an offence which necessarily affected the plaintiff in his office, and led to depri- vation. The case of a dissenting minister is also different, because he does not hold an office of which the law takes cognizance. But, at all events, there is a sufficient statement in the declaration to connect the imputation with the plaintiff's office ; for, in the conversation, the bishop of the diocese is referred to as having knowledge of the offence. Thirdly, since the 15 & 16 Vict. c. 76, § 61, 1 it is a question for the jury at the trial to say in what sense the words were used. Turner, in reply. The authorities cited show that the action will not lie unless it is alleged that the plaintiff was a beneficed clergy- man; and, moreover, it must appear that the words were spoken of him as such. It was never intended by the 15 & 16 Vict. c. 76, to dispense with allegations which were material in order to show a cause of action, but only that where words would bear a double mean- ing it should be sufficient to allege that they were used in a defamatory sense. Cur. adv. vult. The judgment of the court was now delivered by Pollock, C. B. (after stating the pleadings, his Lordship pro- ceeded). We should have had no doubt in the present case of the plaintiff's right to recover, if the declaration had averred that the plaintiff was beneficed, or was in the actual receipt of professional temporal emolument, as a preacher, lecturer, or the like, at the time of the speaking of the words, as the charge, if true, would have been a cause of deprivation of the benefice in the first case, and also of degradation from, orders, and consequently of the loss of the emol- uments in the other cases. This point was decided in Dr. Sibthorpe's Case, 2 Dod v. Robinson, in effect overruling the case relied upon for the defendant, Parrat v. Carpenter ; in which case the court held that the slander was examinable in the spiritual court only; and the reason assigned in Dod v. Robinson is, that the matter charged is good cause to have him degraded, whereby he should lose his freehold, which is a 1 " In actions of libel and slander, the plaintiff shall be at liberty to aver that the words or matter complained of were used in a defamatory sense, specifying such defamatory sense without any prefatory averment to show how such words or matter were used in that sense, and such averment shall be put in issue by the denial of the alleged libel or slander; and where the words or matter set forth, with or without the alleged meaning, show a cause of action, the declaration shall be sufficient." * Sir W. Jones, 366. 762 GALLWEY V. MAESHALL. [CHAP. IX. temporal damage to him. And the reason given in 1 Roll. Abr. is that he could have temporal damage by the speaking of slander. To the same effect is the dictum of Lord Holt, as to an imputation of a want of learning being actionable, in Coxeter v. Parsons. 1 In the case of Dod v. Robinson, the words imputed to the plaintiff not only incontinence, but preaching false doctrine, both of which were causes of degradation, and consequently of deprivation ; and the latter charge implied misconduct in his office. But we think it clear that the charge of incontinence made against a beneficed clergyman, and alleged to have been committed whilst he is beneficed,- i^ of that nature that necessarily tends to do him injury in his professional character, and to endanger him in the enjoyment of his office of parson, and is there- fore actionable. In this 1 respect, the charge differs from that which was the subject of the second count in the case of Pemberton v. Colls. But in the absence of any averment of the plaintiff having any office or employment of temporal profit, we are not satisfied that this action will lie. There is no authority to be found that we are aware of, in support of the position that it will, where there is no actual damage ; and we ought not to extend the limits of actions of this nature beyond those laid down by our predecessors. The words are actionable in the spiritual court, as they import incontinency, and in- continency may be punished there, and there only ; and if the plain- tiff be in orders merely, and not being injured in respect of temporal profit, the only remedy appears to be in the ecclesiastical courts If incontinence was a crime punishable by temporal punishments, the words spoken might fall within the ordinary rule, that words are actionable which charge an offence liable to temporal punishment. But the statute 1 Hen. VII. c. 4, gives jurisdiction to punish inconti- nence in ecclesiastics to the archbishop, bishops, and ordinaries only. The Clergy Discipline Act, 3 & 4 Vict. c. 86, does not make such an offence punishable by temporal punishment. Both of these statutes are for giving additional power to ecclesiastical tribunals only. We therefore think that we ought to hold that the action will riot lie. Platt, B., added. I must own that during the argument I enter- tained considerable doubt on the subject. Incontinency is a sufficient ground for deprivation a beneficio or ab officio, the latter being appli- cable to the case of an incontinent clerk in orders merely, and without a benefice. It therefore seemed to me, that if the offence imputed was, if true, a sufficient ground for depriving the clergyman of his status as such, the slander would be actionable per se, inasmuch as the degradation from his order would be a temporal damage. If the slander had been of a barrister, imputing to him such misconduct as l 1 Ld. Raym. 423; 1 Salk. 692. SECT. III.]. f&WlS V. BBANDWOOD. 763 would justify his being disbarred, it might be a good cause of action against the slanderer, although the slandered person never held a brief, or his profits were merely honorary. Other instances may be readily suggested ; but I do not feel so strong upon the point as to induce me to differ from the other members of the court. Judgment for the defendant} IRWIN v. BRAND WOOD. In the Exchequer, January 28, 1864. [Reported in 2 Hwlsione $• Coltman, 960.] Declaration. That before the speaking of the words hereinafter mentioned, the plaintiff had duly obtained such certificate of compe- tency as is required by the Merchant Shipping Act, 1854, to be obtained by persons intending to become masters of foreign-going ships, and, possessing the said certificate, commanded a ship or vessel called the " Nelson," being a foreign-going ship within the meaning of the said act, as the master of the said ship for hire and wages payable to him in that behalf, during a foreign voyage, in the course of which the said vessel sailed to and stayed at Nassau, within her Majesty's dominions in the West Indies, under the command of the plaintiff as such master as aforesaid ; and at the time of the speaking of the said words the plaintiff still retained such certificate as aforesaid, and exer- cised the employment or profession of a certificated master mariner, and sought his livelihood thereby. Yet the defendant Jane, then being the wife of the defendant William, falsely and maliciously spoke and published of the plaintiff, as such master mariner as aforesaid, the words following, that is to say : " During his stay at Nassau he was frequently drunk, and in that state he had to be carried to his boat to reach his vessel, which was standing out several miles " (meaning that the plaintiff, whilst he was master of the said ship or vessel as afore- said, contrary to his duty as master of the said ship or vessel, during the stay of the said ship or vessel at Nassau, had been frequently drunk, and had been guilty of a gross act of drunkenness) : whereby the plaintiff's character and reputation as a master mariner as afore- said have been injured, and the plaintiff's said certificate became liable to be suspended or cancelled if the said charge had been true. De- murrer, and joinder therein. l In Payne v. Beawmorris, 1 Lev. 248, the declaration alleged that the plaintiff was chaplain to a peer, and that the defendant falsely alleged of him that he had had a bastard, whereby he lost the chaplainship ; and the action was held maintainable, on the express ground that the chaplainship was a temporal preferment. 764 IRWIN V. BRANDWOOD. [CHAP. IX. Baylis argued in support of the demurrer (January 25). 1 Words imputing drunkenness to a master mariner are not actionable without special damage. In Ayre v. Craven, Lord Denman, in delivering the judgment of the court, said : " There are obvious and very good rea- sons for the jealousy with which the courts have always regarded actions of slander, particularly those in which no indictable offence has been imputed." [Martin, B. Suppose it was said of a coachman that he was habitually drunk. Pigott, B. Or that he was drunk when about to mount the box.] Words spoken of a person in his office are not actionable, unless they are spoken of him with reference to his character and conduct in such office, and impute to him the want of some qualification for or misconduct in his office. Lumby v. Allday. The Merchant Shipping Act, 1854 (17 & 18 Vict. c. 104), § 239, only speaks of the drunkenness of a master whilst engaged in the perform- ance of his duties. [Pigott, B. Must we not assume that when he got on board the vessel he would be in command ?] There is no im- putation of drunkenness on board the ship. The words must neces- sarily tend to injure him in his employment. As in the case of a clergyman, no action will lie for a verbal imputation of incontinence unless he is beneficed or holds some clerical office or employment of profit. Gallwey v. Marshall. Day, contra. The declaration contains a sufficient allegation that the words were spoken of the plaintiff whilst in the discharge of his duty as master; for it states that the vessel sailed to and stayed at Nassau under the command of the plaintiff as such master. In one sense the captain of a ship is as much in command whilst on shore as on board of her. It would be actionable to impute to the driver of a stage-coach that he left it outside a public-house whilst he was drunk within ; for although not upon the box he would be in charge of the coach. A master mariner is within the rule laid down in Starkie on Libel, p. 126 (2d ed.), as to words spoken of men in their profession or employment by which they gain their livelihood. In Gallwey v. Mar- shall the plaintiff had no office or employment of temporal profit which could be affected by the slander ; and in that respect the case differs from Pemberton v. Colls. Here the slander tends to prejudice the plaintiff in his employment, for by the 242d section of the Merchant Shipping Act, 1854, the Board of Trade may suspend or cancel the certificate of a master if, upon investigation, he is reported to have been guilty of drunkenness. In Starkie on Libel, p. 130 (2d ed.), it is said : " The only question arising upon this point seems to be this, — Do the words in any degree prejudice the plaintiff in his office, profession, l Before Pollock, C. B., Martin, Channell, and Pigott, BB. SECT. III.] FOULGER V. NEWCOMB. 765 or employment ? If they do, they are actionable : the quantum of damage being a mere question of fact for the consideration of the jwy." Baylis, in reply. Reading the 242d section of the Merchant Ship- ping Act, 1854, in connection with the 239th, drunkenness is not an offence within the act, unless it tends to the loss or damage of the ship, or endangers the life or limb of persons on board. A jury may find that words which are prima facie actionable were not spoken in a slanderous sense, but they cannot make words actionable which are not so in point of law. [Channell, B. If words are actionable per se, no innuendo is wanted. If they are not actionable, an innuendo cannot make them so. But there is an intermediate case, viz., where they may or may not be actionable, and then it is for the jury to say in what sense they were spoken. Pollock, C. B. In Weatherhead v. Armitage, it was held not actionable, without special damage, to say of a woman who taught young women to dance, " She is as much a man as I am ; she got J. S. with child ; she is an hermaphrodite."] That case is an authority that the slander must directly affect the plaintiff in his employment. Cur. adv. vult. Pollock, C. B., now said, This was an action for slander uttered by the defendant's wife, who imputed drunkenness to the plaintiff, a certificated master mariner, while in command of a vessel at sea in the West Indies. We are all of opinion that such words spoken of the plaintiff, while the master and in command of the vessel, are action- able without special damage. Therefore the judgment of the court will be for the plaintiff. Judgment for the plaintiff \ 1 FOULGER v. NEWCOMB. In the Exchequer, June 17, 1867. [Reported in Law Reports, 2 Exchequer, 327.] Declakation. First count: that the plaintiff was a warrener, gamekeeper, horse-slaughterer, and grease manufacturer; that he car- ried on these businesses in the neighborhood of Ridler's Wood ; and that he was accustomed to be employed in his business of gamekeeper and warrener by occupiers of land in that neighborhood ; that many of the persons who so employed' him were accustomed to hunt foxes, and it was considered by them a very improper act to kill or destroy foxes in the neighborhood ; and a person who should be guilty of so 1 See Ingram v. Lawson, 6 B. N. C. 212. — E». 766 FOULGER V. NBWOOMB. fCHAP. IX. killing and destroying foxes would be looked upon by them with dis- favor and suspicion, and would ,not be employed by them ; and the plaintiff was always employed as such warrener and gamekeeper upon the terms and understanding -that he should not nor would kill foxes ;in the neighborhood; that the plaintiff had been employed as such warrener and gamekeeper upon the terms aforesaid by one of the said occupiers, and had by reason of such employment to perform his call- ing in Ridler's Wood, but not to kill foxes there, and it would have been a gross breach of his duties as such warrener and gamekeeper, and in his said employment, had he killed foxes in the wood, of all which premises the defendant at the lime, &c, had notice ; yet the defendant falsely and maliciously spoke and published of the plaintiff, and of him as such warrener and gamekeeper, and r of his conduct whilst he was so employed, the words following : " It is no wonder we did not find any foxes in Ridler's Wood, because Foulger trapped three foxes. I can prove it myself;" meaning thereby that the plaintiff, whilst he was so employed as aforesaid, in breach of his duty, killed and destroyed three foxes in the said wood ; whereby ,the plaintiff has been greatly injured in his credit, reputation, and circumstances, and in his said occupations and businesses of a gamekeeper, warrener, horse-slapghterer, and grease manufacturer; alleging special damage from the refusal of divers of the said occupiers of land and others to employ him in the way of his said occupations and businesses. Second count, repeating the allegations of the first count, except that it omitted the allegation as to plaintiff's employment by one of the occupiers, and the subsequent allegations, and in lieu .thereof alleged that the defendant falsely and maliciously spoke and published of the plaintiff, and of him as such warrener and gamekeeper, and of his conduct whilst in those occupations, the words, " Foulger trapped three foxes in Ridler's Wood," meaning that the plaintiff, whilst he was employed as such warrener and gamekeeper, wrongfully, unlaw- fully, and without the authority, leave, or license of the occupier or person in possession of the wood, or any other person, broke in, entered, and trespassed. in the same, for the purpose of killing, and had killed, foxes there, contrary to the will of his employer and the terms of his employment, whereby the plaintiff has been and is damaged in the manner and to the extent in the first count mentioned. Demurrer to both counts, and joinder. Hance, in support of the demurrers, contended that the words were not actionable per se, since they only imputed to the plaintiff the kill- ing of animals regarded by the law as vermin ; and that they did not become actionable because the doing so was a breach of contract ; that the special damage was not a natural result of the words, and was 768 FOULGER V. NEWCOMB. [CHAP. IX. his business may apply, it is necessary that the words (being capable of having reference to the business) should in fact be spoken of him in respect of his business. This is alleged in the present case, and for the present purpose the allegation must be taken to be true. Next, it must appear that they tend to prejudice him in that business. This, as well as whether the words are capable of having reference to the business, must, of course, depend upon the nature of the business. Now, we think that the rule as to words spoken of a man in his office or trade is not necessarily confined to offices and trades, of the nature and duties of which the court can take judicial notice. The only limita- tion of which we are aware is, that it does not apply to illegal callings ; as, for instance, to the keeping*open rooms for pugilistic encounters, as in Hunt v. Bell ; see also Morris v. Langdale, 1 a case relating to stock- jobbers, in which the decision proceeded on the ground that stock- jobbers were at that time of two classes, one honest, the other practising what the legislature by the statute then in force called " the infamous practice of stock-jobbing; " and that there was not in the declaration any averment of which business the plaintiff carried on, or whether the contracts he was unable, or said to be unable, to carry out, were legal or illegal contracts. On the same principle, that words having a par- ticular meaning in a particular trade, or a particular locality, may be explained by averment and innuendo in the declaration, we think that the nature and duties of the trade or business may be explained by averment in the declaration, so as to show how the words spoken affect the business. In the present case we could not, we think, take judicial notice that it could be the duty of a gamekeeper not to trap foxes, or that it would be a disparaging thing to say of him that he trapped foxes. It is, how- ever, alleged, not only that the plaintiff was a gamekeeper, but that it was his duty as such gamekeeper not to kill foxes ; that he was em- ployed on the terms of his not doing so ; and that the defendant knew all this. So far, then, it is clear that, this being the true nature of the plain- tiff's business and employment, to hear that he trapped foxes would prejudice him with respect to his business, at all events, with all persons who knew the real nature of his employment. It is not, however, quite clear that, where the nature of the business would not be generally understood, it might not be necessary to show that the hearers were aware of the facts necessary to give the words their defamatory sense. Here the declaration does not appear to contain a distinct allegation that the hearers knew that the plain- i 2 B. & P. 284. SECT. III.] FOULGER V. NEWCOMB. 769 tiff's duty was not to kill foxes. It does set forth something as to what the people of the neighborhood knew and thought, but it does not state that the slander was uttered to people of the neighbor- hood. It does, however, contain an innuendo that the words imputed a breach of duty. We think that this may be taken to be equivalent to an allegation that the words would convey that meaning to the hearers, and, taking it with the rest of the declaration, we think it is sufficient to make the declaration good without special damage. In Ayre v. Craven, the physician's case, which was the principal authority relied on in support of the demurrers, the decision proceeded on the ground that the declaration did not set forth in what manner the misconduct was connected with the plaintiff's profession. Here the declaration does set forth that it was the duty of the plaintiff, in his employment, not to do that which the words complained of charged him with doing. Therefore the objection which was successful there does not arise here. On the whole, therefore, we think that the pres- ent declaration shows a good cause of action, independently of special damage. It is, however, clearly shown on the declaration that the words are capable of bearing a defamatory sense, viz., the imputing a breach of duty to the plaintiff; and it is alleged that the defendant, knowing the circumstances that made the words defamatory, falsely and maliciously used them in the defamatory sense. That being so, even if the law will not imply damage under the circumstances, still the words are action- able, and the defendant is responsible if they cause, as their legal and natural consequence, actual damage. Here actual pecuniary damage in the plaintiff's business or employment generally is alleged, and we think that this allegation at all events makes the declaration good. Of course, if the plaintiff should only prove damage in the horse-slaugh- tering or grease manufacturing departments of his trade, that would not help his case ; but, as it is alleged in his business as a whole, we must take it that he means to prove damage in the other branch of his business, in which case it may well be the legal and natural conse- quence of the words. There is a second count, alleging that the words imputed a trespass as well as a breach of duty ; this does not appear to differ substan- tially from the other. We therefore hold both counts good. Judgment for the plaintiff. 49 770 GARB V. SELDEN. [CHAP. IX. GARR v. SELDEN. Supreme Court, New Yoke, Mat 7, 1848. [Reported in 6 Barbour, 416.] Demurrer to declaration. The action was for a libel. The decla- ration alleged that the plaintiff was an attorney and counsellor-at-law and a solicitor in chancery ; that having been concerned in the pros- ecution of divers suits, &c, for the defendant Selden and one Richards, upon their retainer, he commenced an action in this court against them for the recovery of moneys claimed by the plaintiff to be due from them to him, for his work, labor, and services as such attorney, coun- sellor, and solicitor, in and about the prosecution of those suits, &c. ; that the defendant and said Richards pleaded the general issue in the said action, and annexed thereto a notice of special matter, a part ot which was in these words : — " And these defendants will further prove on the trial of this cause, that the said plaintiff conducted the prosecution and defence of the several suits, and attended to the other professional services of attorney, solicitor, and counsellor in said declaration, in so careless, negligent, unskilful, undue, and improper mode and manner, as ' to render such professional services, and every part thereof, wholly abortive, and of no value to the said defendant." That the plaintiff made a motion to the court to strike out that part of the notice, as false and slanderous ; that in opposition to said motion the defendant Selden made an affi- davit, and read and published the same in open court, on the hearing thereof, and placed the same on the files of the court, containing among other things the following irrelevant, impertinent, false, scandalous, defamatory, and libellous matter, to wit : " David Selden, one of the said defendants, deposes and says, that the said plaintiff revealed and disclosed confidential communications which deponent had made to said Garr as the attorney of the deponent and said Richards, relative to a portion of the professional business for which this suit is brought. And that said Garr revealed said communications for the purpose of aiding, assisting, and abetting an individual who had an interest adversely to the deponent and said Richards. That said Garr combined and col- luded with that individual to devise plans to injure deponent and said Richards, and prejudice their pecuniary and other rights. And depon- ent means to be understood that said Garr made use of and revealed the said confidential communications, as one of the means by which he and the said individual were to accomplish the said object; and that the said Garr has grossly violated his duty to the deponent and the said Richards, in the transaction of the said litigations and business." SECT. III.] secor v. HARRIS. 771 To this declaration the defendant demurred, and assigned the fol- lowing causes of demurrer : 1. That it does not appear that the libel was ever published. 2. That the declaration charges no specific offence against the defendant. 3. That the affidavit alleged to be libellous was part of a judicial proceeding, and was relevant and pertinent thereto. 4. That it does not appear by the declaration that the matter alleged to be libellous was published with malice, nor that it was false, nor that it was not pertinent and relevant. 5. That the affidavit was a privileged communication, and cannot by any possibility be a libel. 6. That the plaintiff's only remedy is by a special action on the case, in the nature of an action for malicious prosecution. C. W. Sandford, for the plaintiff. P. Y. Cutler, for the defendant. By the court, Edmonds, J. To impute to a professional man igno- rance or want of skill in a particular transaction is not actionable. To be actionable, words of that character must be spoken or written of him generally. It is not so, however, of words which impute want of integrity. They are actionable, whether used generally of his profes- sion, or particularly as to some one transaction. The words in this case impute want of integrity, and are actionable per se. It is averred that they were pertinent to the matter in hand, and therefore privileged. But in the mean time the court avers that they were used maliciously, and were not pertinent. If so, they were not privileged, but actionable ; and we cannot hold, as the demurrer claims, that these words, thus used maliciously and not pertinent, are not actionable. The demurrer must be overruled, with leave to amend, on payment of costs. 1 SECOR v. HARRIS. Supreme Cottbt, New Yoek, September, 1854. [Reported in 18 Barbour, 425.] Motion by the plaintiff for a new trial, upon a bill of exceptions. F. U. Fen/io, for the plaintiff. W. B. Hawes, for the defendant. Mason, J. This is an action for slander. Upon the trial of the cause the plaiutiff proved the following words, which were also alleged in the complaint : " Doctor Secor killed my children." " He gave them teaspoonful doses of calomel, and they died." " Dr. Secor gave them teaspoonful doses of calomel, and it killed them ; they did not live 1 Sumner v. Utley, 7 Conn. 257, ace. — Ed. 772 SECOB V. HARRIS. [CHAP. IX. long after they took it. They died right off, — the same day." The plaintiff was proved to be a practising physician, and the evidence shows that he had practised in the defendant's family, and had pre- scribed for the defendant's children, and that the words were spoken of him in his character of a physician. The plaintiff claimed that the words were actionable, and that he was entitled to have this branch of the case, upon the words, submitted to the jury. The judge at the circuit held that the words were not actionable, and took them from the consideration of the jury. These words, spoken of the plaintiff as a physician, are actionable per se, whatever may be said upon the question, whether they impute a criminal offence. They do not impute a criminal offence, unless there is evidence, arising from the quantity of the calomel which the defendant alleged that the plaintiff gave these children, from which a jury Would be justified in finding an intention to kill them. One of them was three years of age, and the other one year and a half. If the natural result, which should reasonably be expected from feeding children of such tender years full teaspoon doses of calomel, would be certain death, then it is not a forced con- struction of the words to say that the defendant intended to charge the plaintiff with an intention to kill these children, in giving them such doses. It is not necessary, however, to say that the judge should have submitted this case to the jury upon the question, whether the defendant did not intend to impute to the plaintiff, by these words, a criminal offence. I am quite inclined to think, however, that had the judge submitted the case to the jury upon the imputation of a criminal intent in these words, and had the jury found that such intent was imputed, we should not be justified in setting aside their verdict. It is not necessary, however, to place the case upon this ground ; for it is certainly slanderous to say of a physician that he killed these childern of such tender years, by giving them teaspoonful doses of calomel. The charge, to say the least, imports such a total ignorance of his pro- fession as to destroy all confidence in the physician. It is a disgrace to a physician to have it believed that he is so ignorant of this most familiar and common medicine, as to give such quantities thereof to such young children. The law is well settled that Words published of a physician, falsely imputing to him general ignorance or want of skill in his profession, are actionable, in themselves, on the ground of pre- sumed damage. Starkie on Slander, 100, 110, 115, 10, 12; Martyn v. Burlings ; 1 Bacon's Abr. title Slander, B ; Watson v. Van Derlash ; 2 Tutler v. Alwin ; 8 Smith v. Taylor ; 4 Sumner v. Utley. 6 I am aware 1 Cro. Eliz. 689. z Hetl. 69. a 11 Mod. E. 221. « 1 New R. 196. » 7 Conn. R. 257. S1CT. III.] SECOR V. HARRIS. 773 that it was held, in the case of Poe v. Mondford, that it is not action- able to say of a physician, "He hath killed a patient with physic ; " and that, upon the strength of the authority of that case, it was decided in this court in Foot v. Brown, 1 that it was not actionable to say of an attorney or counsellor, when speaking of a particular suit, " He knows nothing about the suit ; he will lead you on until he has undone you." These cases are not sound. The case of Poe v. Mondford is repudiated in Bacon's Abr. as authority, and cases are referred to as holding a contrary doctrine (vol. ix. pages 49, 50). The cases of Poe v. Mond- ford, and of Foot v. Brown, were reviewed by the Supreme Court of Connecticut, in the case of Sumner u. Utley, 2 with most distinguished ability, and the doctrine of those cases repudiated. In the latter case it is distinctly held, that words are actionable in themselves, which charge a physician with ignorance or want of skill in his treatment of a particular patient, if the charge be such as imports gross ignorance or unskilfulness. To the same effect is the case of Johnson v. Robert- son, 3 where it was held that the following words spoken of a physician in regard to his treatment of a particular case, " He killed the child by giving it too much calomel," are actionable in themselves ; and such is the case of Tutler v. Alwin, 4 where it was held to be actionable to say of an apothecary, that " he killed a patient with physic." See also 3 Wilson's R. 186; Bacon's Abr. title Slander, letter B, 2, vol. ix. page 49 (Bouv. ed.). The cases of Poe v. Mondford and Foot v. Brown have been repudiated by the highest judicial tribunal in two of the Ameri- can States, while the case of Poe v. Mondford seems to have been repudiated in England ; and I agree with Clinch, J., that the reason upon which that case is decided is not apparent. I do not go the length to say that falsehood may not be spoken of a physician's prac- tice, in a particular case, without subjecting the party to this action. A physician may mistake the symptoms of a patient, or may misjudge as to the nature of his disease, and even as to the powers of medicine, and yet his error may be of that pardonable Mnd that will do him no essential prejudice, because it is rather a proof of human imperfection than of culpable ignorance or unskilfulness ; and where charges are made against a physician that fall within this class of cases, they are not actionable, without proof of special damages. 7 Conn. R. 257. It is equally true, that a single act of a physician may evince gross ignorance, and such a total want of skill, as will not fail to injure his reputation, and deprive him of general confidence. When such a i 8 Johns. 64. 2 7 Conn. R. 257. 3 8 Porter's E. 486. 4 11 Mod. E. 221. 774 SECOE V. HARRIS. [CHAP. IX. charge is made against a physician, the words are actionable per se. 7 Conn. R. 257. The rule may be laid down as a general one that, when the charge implies gross ignorance and unskilfulness in his pro- fession, the words are actionable per se. This is upon the ground that the law presumes damage to result, from the very nature of the charge. The law in such a case lays aside its usual strictness ; for when the presumption of damage is violent, and the difficulty of proving it is considerable, the law supplies the defect, and, by converting presump- tion into proof, secures the character of the sufferer from the misery of delay, and enables him at once to face the calumny in open court. Starkie on Slander, 581. It was well said by the learned Chief Justice Hosmer, in Sumner v. Utley, 1 that, " As a general principle, it can never be admitted that the practice of a physician or surgeon in a particular case may be calumniated with impunity, unless special damage is shown. By confining the slander to particulars, a man may thus be ruined in detail. A calumniator might follow the track of the plaintiff, and begin by falsely ascribing to a physician the killing of three persons by mismanagement, and then, the mistaking of an artery for a vein, and thus might proceed to misrepresent every single case of his practice, until his reputation should be blasted beyond remedy. Instead of murdering character by one stroke, the victim would be cut successively in pieces, and the only difference would consist in the man- ner of effecting the same result." It is true, as was said by the learned Chief Justice Hosmer in that case, the redress proposed, on the proof of special damage, is inadequate to such a case. Much time may elapse before the fact of damage admits of any evidence ; and then the proof will always fall short of the mischief. In the mean time the rep- utation of the calumniated person languishes and dies ; and hence, as we have before said, the presumption of damage being violent, and the difficulty of proving it considerable, the law supplies the defect by con- verting presumption of damage into proof: Starkie on Slander, 581 ; in other words, the law presumes that damages result from the speaking of the words. In the case under consideration, the words proved impute to the plaintiff such gross ignorance of his profession, if nothing more, as would be calculated to destroy his character wherever the charge should be credited. It would be calculated to make all men speak out and say, as did the witness Richard Morris, " that it was out- rageous, and the plaintiff ought not to be permitted to practise." The law will therefore presume damages to result from the speaking of the words, and consequently hold the words actionable in themselves. The i 7 Conn. R. 257. SECT. III.] SECOE V. HARRIS. 775 judge at the circuit erred in taking this branch of the case from the consideration of the jury, and a new trial must be granted ; costs to abide the event of the action. Ceippejst, J., concurred. Shajstkxand, J., dissented. New trial granted} 1 Johnson v. Robertson, 8 Port. (Ala.) 486 ; Sumner v. Utley, 7 Conn. 257, ace. See Watson v. Vanderlash, Hetl. 71 ; Edsall v. Russell, 4 M. & Gr. 1090. Foot v. Brown, 8 Johns. 64, contra. Conf. Camp v. Martin, 23 Conn. 89. — Ed. 776 TAYLOR -V. PERKINS. [CHAP. IX. Slander — (continued). (c) Words imputing a Loathsome Disease. AUSTIN v. WHITE. In the Queen's Bench, Hilaet Teem, 1591. [Reported in Croke's Elizabeth, 214.] Action for these words: "Thou wert laid of the French pox," adjudged actionable. And Fennee said it was adjudged in this court that for these words, " thou wert laid of the pox," action did lie ; for it cannot be intended but of the French pox. 1 BURY v. CHAPPELL. In the , Hilaet Teem, 1601. [Reported in Goldsborough, 135.] BtrET brought an action upon his case for words against Chappell, viz., " Pie hath been in Fowler's tub " {innuendo the tub of one Fowler, a chirurgeon, in which tub no person had been but those which were laid of the pox) ; " I will not say of the pox, but he lay in the tub that time that Lagman his wife was laid of the pox ; and tell thy master his hair falls from his head, and he is a pilled knave, and a rascal knave, and a villain, and no Christian, and thinks there is neither heaven nor hell;" and adjudged that the action is not maintainable. 2 TAYLOR v. PERKINS. In thi, King's Bench, Hilaet Teem, 1607. [Reported in Croke's James, 144.] Action for these words: "Thou art a leprous knave." It was demurred upon the declaration, because the defendant conceived an i Anon., Ow. 84; Hobson v. Hudson, Sty. 199, 219, ace— Ed. 2 Hunt v. Jones, Cro. Jac. 499 ; Califord v. Knight, Cro. Jac. 514 ; James v. Kut- lech, 4 Kep. 17 a, ace — Ed. SECT. III.] SMITH „ # hobSON. 777 action lay not for these words. But upon the first motion all the court held, that the action well lay, for they are as well actionable as if he had said, " Thou wast laid of the pox." Wherefore, without argu- ment, it was adjudged for the plaintiff. SMITH v. HOBSON. In the King's Bench, Trinity Teem, 1647. [Reported in Style, 112.] Smith, an innkeeper in' Warwick, brought an action upon the case against Hobson for speaking these words : " Colonel Egerton had the French pox, and hath set it in the house " (meaning the plaintiff's house), "and William Smith and his wife" (meaning the plaintiff and his wife) have it, and all you." The plaintiff hath a verdict. The de- fendant moves in arrest of judgment, and for cause shows, that the words are not actionable ; for the words are, that Colonel Egerton hath set the French pox in the house, which is impossible ; for the •house could not have the pox, and the words, " William Smith and his wife have it," shall not be meant that they have the pox, but the house, for that is the next antecedent to the words, to which they shall refer. And also where words are spoken doubtfully, whether they be spoken true or false, they shall be taken to be true ; and it may be here the words are true, and then no action lies for speaking of them ; also the baron and feme ought to join in the action, if they be actionable, for they are spoken to both their prejudice, and the action is not to be brought by the husband alone, as here it is. Also, in this case the words being spoken of a house, the writ of inquiry of damages must be what damages is come to the house, which cannot be. Roll, J., If an action be brought for words, and part of them be actionable, and part are not, yet an action lies for them which are actionable. And in this case the husband alone may bring the action for damages to himself, and he may afterwards bring another action for the damages done to his wife ; and he held the words here action- able, and bid the plaintiff take his judgment, if cause were not shown to the contrary Saturday following. Judgment was afterwards given accordingly. 1 l Daviea v. Taylor, Cro. EI. 648 ; Garford v. Clerk, Cro. EI. 857 ; Miller's Case, Cro. Jac. 430; Crittal v. Horner, Hob. 219; Elyott v. Blagen, Sty. 283; Marshall v. Chiekall, 1 Sid. 50; Comrning's Case, 2 Sid. 5, ace.— Ed. T78 CARSLAKE V. MAPLEDORAM. [CHAP. IS, LYMBE v. HOCKLY. In the King's Bench, Hilaey Teem, 1667. [Reported in 1 Levinz, 205.] Case for saying of the plaintiff, " He has got the pox of a yellow- haired wench in Moorfields." After verdict for the plaintiff, it "was moved in arrest of judgment that saying one has got the pox is not actionable, because not scandalous, it being intended the small-pox.' 4 Co. 17. But, 3 Cro. 214, laid of the pox, is actionable ; and so is rotted of the pox, 3 Cro. 648, because intended the French pox. But by The Court, it being here said that he had got them of a yellow- haired wench, it is actionable ; for wench in common speech is taken for a whore, and therefore it shall be intended the French pox. And Twisden and Moeeton held, that so it would be if the words had been that he had got them of a yellow-haired woman. 1 TAYLOR v. HALL. In the King's Bench, Teinity Teem, 1743. [Reported in 2 Strange, 1189.] The Cotjet held that it was not actionable to say the plaintiff had had the pox. For it is avoiding him for fear of contagion, and re- fusing to keep him company, that is the legal notion of damage ; and when he is cured, those inconveniences will not attend him. And judgment was arrested. 2 CARSLAKE v. MAPLEDORAM. In the King's Bench, Apkil 27, 1788. [Reported in 2 Term Reports, 473.] The defendant libelled the plaintiff in the Archdeacon's Court of Exeter, for speaking the following words of her : '■'■ I have kept her common these seven years ; she hath given me the bad disorder, and three or four other gentlemen besides ; " thereby meaning that the said 1 Brook v. Wife, Cro. El. 818; Grimes v. Lovel, Ray. 446; Clifton v. Wells, Bay. 710 ; Whitfield v. Powel, 12 Mod. 248, aec. — Ed. 2 Smith's Case, Noy, 157 ; Dutton v. Eaton, All. 31, ace. — Ed. SECT. III.] CAESLAKE V. MAPLEDOEAM. 779 Mapledoram was a whore. A prohibition was moved for in the last term after sentence, on the ground that the words spoken were action- able. Gibbs now showed cause against the prohibition. This application is made after sentence ; and therefore, unless it appear on the face of the proceedings that the court below had no jurisdiction over the sub- ject-matter, a prohibition ought not to be granted. Now these words are not actionable in themselves, even if the charge related to the present time ; and a declaration without innuendos to explain the meaning of them would be bad. For there are many disorders which may be termed bad disorders, but the having of which would not render the person an unfit person of society, or be any imputation on him ; a bad disorder does not necessarily mean a contagious one. But even supposing that it did, still these words only refer to a time past, and therefore are not actionable. There are two grounds on which words are actionable, as producing a temporal damage : first, charging a person with having committed a crime, for which he may be after- wards punished ; and, secondly, charging a person with having at the time a contagious disorder. Charging a man with the first of these at a time past is actionable, because he is liable to punishment at any dis- tance of time ; but the latter charge does not subject the person making it to an action, unless it be confined to the present time, since the having had a contagious disorder is no reason why his society should be avoided in future. Franklin, in support of the rule. The words are actionable without any innuendo ; they sufficiently import a contagious disorder, since the plaintiff below is charged with having communicated it to the de- fendant himself, and to three or four other persons. In answer to the second ground of objection, it cannot be collected that this charge relates to a time past ; it is not that the plaintiff below had had this disorder, but the words charge her with having it at the time. But even if the charge did relate to a time past, still these words are action- able. In Austin v. White, these words, " thou wert laid of the French pox," were adjudged actionable. In Miller's Case, 1 Backter's Case is mentioned, where the words, " thou wast laid of the pox," were held actionable. So in Hob. 219, " that he had caught it, and had carried it home tq his wife." In these cases the words clearly refer to a time past. So that it appears upon the libel itself that the court below had no jurisdiction. Ashhursx, J. No sufficient ground has been laid before the court to induce us to interpose in this case, and grant a prohibition. This is an i Cro. Jao.430. 780 CARSLAKE V. MAPLEDORAM. [CHAP. IX. application after sentence has been pronounced in the court below; and it seems, on the whole, that the court below had a jurisdiction over the subject-matter. If the plaintiff had called the defendant a whore, such a charge would have given the court below a jurisdiction ; and these words, " he hath kept her common these seven years," are tantamount to it. Then, notwithstanding the latter words, if' the Archdeacon's Court had a jurisdiction as to part of the charge, these latter words would not make any difference. As to those, the distinc- tion has been properly taken. Charging a person with having com- mitted a crime is actionable, because the person charged may still be punished ; it affects him in his^ liberty. But charging another with having had a contagious disorder is not actionable ; for unless the words spoken impute a continuance of the disorder at the time of speaking them, the gist of the action fails ; for such a charge cannot produce the effect which makes it the subject of an action, namely, his being avoided by society. Therefore, unless some special damage be alleged in con- sequence of that kind of charge, the words are not actionable. That seems to be the case in all the instances mentioned except one, where the words were, " thou wert laid of the pox ; " but that seems unintel- ligible from the report of the case, which is very loosely reported, and therefore it is not much to be relied on. But, on principle, these words are clearly not actionable, if spoken with a reference to time past; and in this case I think they do relate to past time. Bullek, J. After sentence, it is incumbent on the party making this application to show clearly that the spiritual court had no juris- diction. If, therefore, it be doubtful, it is an answer to the applica- tion. Now, in this case it is taking the words against their natural import to suppose that they were spoken of the present time. If they relate to time past, I do not think they are actionable. There is no distinction between a charge of this sort, and a charge of the leprosy, which is to be found in the old books. In those cases, it is said that a charge of having had such a disorder is no imputation on another, since it does not subject him to any of the inconveniences attending the having such a disease ; so of all other diseases which are contagious. The reason why the making of such a charge is actionable is because the having a contagious disorder renders the person an improper mem- ber of society ; but there is no reason why the company of a person who has had a contagious disorder should be avoided, and therefore such a charge is not actionable. The case in Cro. Eliz. which has been cited is too loosely reported to be relied on. Grose, J., of the same opinion. Mule discharged? l Nichols v. Guy, 2 Ind. 82 ; Pike v. Van Wormer, 5 How. Pr.- P.. 171 ; Irons v. Field, 9 R. I. 216, ace — Ed. SECT. III.] BLOODWORTH V. GRAtf. 781 BLOODWORTH v. GRAY. Its the Common Pleas, Apeil 19, 1844. [Reported in 7 Manning #■ Granger, 334.] Case for defamation. The first count, after stating the intention of the defendant to be to cause it to be suspected and believed that the plaintiff, at the time of the committing, &c, was infected with the French pox, otherwise called the venereal disease, laid the words as follows: "He" (meaning the plaintiff) "has got that damned pox" (meaning the French pox, otherwise called the venereal disease), " from going to that woman on the Derby Road." In the second count the words alleged were, " Ah ! that damned fellow Bloodworth ! I am credibly informed that he has got the pox." In the third count, " He has got it " (meaning, &c). The declaration laid as special damage that one Palmer, who had been surety for the plaintiff for the rent of his farm, had, in conse- quence of the slander, withdrawn from his suretyship ; and that, by means of the premises, the plaintiff's wife died, whereby the plaintiff had lost her comfort, assistance, and services ; and the plaintiff fell sick and underwent great pain of body, &c. Plea : Not guilty. At the trial of the cause before Gurney, B., at the last Leicestershire assizes, it appeared that the plaintiff, who was a fanner, was the son- in-law of the defendant, a 'major-general on half pay, and that the mar- riage had taken place without his consent. The words were proved as laid, but the proof of special damage wholly failed. It was contended, on the part of the defendant, that the words were not actionable per se; but the objection was overruled, and plaintiff recovered a verdict with £50 damages ; leave was, however, reserved to the defendant to move to enter a nonsuit. Channell, Serjt., now moved accordingly; but he admitted the au- thorities were against him. He referred to Com. Dig. tit. Action upon the Case for Defamation, D, 29, and Carslake v. Mapledoram. Tindal, C. J. This case falls within the principle of the old author- ities. P er curiam. Mule refused. 1 1 "Watson v. McCarthy, 2 Ga. 57 ; Nichols v. Guy, 2 Ind. 82 ; Golderman v. Steams, 7 Gray, 181 ; Williams v. Holdross, 22 Barb. 396 ; Hewit v. Mason, 24 How. Pr. 366 ; Irons v. Field, 9 K. I. 216, ace. — Ed. 782 " GEORGE, THE COUNT JOANNES " V. BURT. [CHAP. IX. "GEORGE, THE COUNT JOANNES" v. BURT. Supreme Judicial Court of Massachusetts, January Term, 1863. [Reported in 6 Allen, 336.] Tort brought in the name of " George, the Count Joannes," seeking to recover damages of the defendant for slander. The declaration was as follows : — " First count. And now comes the plaintiff, and avers and declares that he is by professional vocations a public author of historical and other literary works, and a public lecturer, and public oratorical illus- trator of the sacred Scriptures, and the works of Shakespeare, for reputation, income, profits, and emoluments, as exemplified by the an- nexed exhibit A ; x and also special attorney, counsellor, and advocate, practising by special authority, and by the laws, in the Supreme Judi- cial Court and the Superior Court of Massachusetts, also, for reputation, income, profits, and emoluments ; and in any and all of said intellec- tual employments ; the unimpaired reason and the reasoning powers of plaintiff are a condition precedent for plaintiff's said public employ- ments ; their continuance ; and for his reputation, his income, profits, , and emoluments. And the plaintiff further avers and declares that the defendant is an attorney and counsellor-at-law of Massachusetts, and a justice of the peace for the county of Suffolk, of great practice in his legal profession, and learned in the law, and of enlarged influence in public and in society. And the plaintiff further avers and says that defendant is an avowed enemy of the plaintiff upon a vital question of this republic. The treasonable motto of defendant's political and abo- lition creed, to wit, ' The constitution of the United States is a com- pact with hell,' plaintiff has denounced in three public orations at Faneuil Hall, Boston (and before several thousands of his fellow-citi- zens), as traitorous to the constitution and to the government of this republic ; and thence the abolitionists are the avowed and malicious enemies of plaintiff; and of which abolitionists the defendant is one, and a public supporter of that ultra and sanguinary creed. And the plaintiff further says that the defendant, at Boston, in the county of Suffolk, on or about the fifth day of February, a.d. one thouasnd 1 This was a printed circular, addressed " to committees of lyceums," &c, stating in detail the "Public Orations and Discourses, written and pronounced in Europe and America by ' George Jones,' the Count Joannes, Imperial Count Palatine," and offering to pronounce them in the New England States for one hundred dollars each, and bis travelling expenses, and giving a list of gentlemen who had signed letters of invitation to him. SECT. III.] " GEORGE, THE COUNT JOANNES " V. BURT. 783 eight hundred and sixty-two, and in the presence and hearing of a large assembly of citizens, did publicly, falsely, and maliciously, and without reasonable and probable cause, and not being pertinent to the judicial inquiry at issue, accuse the plaintiff with being insane ; with being possessed in his own proper person with the contagious disease of in- sanity; by words spoken publicly by defendant of and concerning plaintiff, and substantially in matter as follows, to wit, 'I' (meaning defendant) ' now, gentlemen of the jury, shall speak upon a delicate subject ; and will say that, for which I run the hazard of legal proceed- ings on the part of the plaintiff in this action' (meaning the action Joannes v. Nickerson, then being tried in the Superior Court, county of Suffolk; and by the word 'plaintiff,' meaning the present plaintiff). 'It is, that he' (pointing and looking at and meaning this plaintiff) 'is insane. I' (meaning defendant) 'can liken him' (meaning plaintiff) ' only to Pratt and Mellen, two madmen well known in this commun- ity.' (Here followed by defendant a description of the said citizens, Pratt and Mellen, one or both of whom had been secured and placed in a lunatic asylum for insane persons, as being confirmed and danger- ous madmen.) ' If the plaintiff' (meaning this plaintiff) ' had justice done him, a jury' (meaning a jury sworn to inquire into any case of lunacy) ' would consign him ' (meaning plaintiff) ' to an insane hospital, and not find a verdict in this action in his favor, and against my client ' (meaning the then defendant, Joseph Nickerson, Esq., in the action then being tried). " Second count. And the plaintiff says that the defendant, at Bos- ton, in the county of Suffolk, on or about Wednesday, the fifth day of February, a.d. one thousand eight hundred and sixty-two, in the pres- ence and hearing of a large public assembly of citizens, to wit, two hundred (more or less), did publicly, falsely, and maliciously, and with- out reasonable and probable cause, and not pertinent and material to the issue upon the aforesaid judicial trial (but maliciously impertinent to said issue), accuse, charge, and publicly denounce the plaintiff with being insane; with being diseased and possessed in plaintiff's own proper person with the most terrible of God's inflictions upon mankird, that of the infectious and transmissible physical and mental disease of insanity ; which accusation, if true, as falsely and maliciously slandered by defendant, would deprive plaintiff of his personal liberty; of all personal, legal, and social rights whatever ; of all income and emolu- ments from his professional employments ; of all future public advance- ments and domestic happiness ; casting desolation, misery, and sorrow upon plaintiff, and increasing his sufferings by the sad reflection that the slander upon the father also slanderously taints the mental condition of plaintiff's children ; and to give additional force and injury to the 784 " GEORGE, THE COTTNT JOANNES " V. BURT. [CHAP. IX. wounded feelings of the plaintiff, and as a climax to the malice of the defendant, he publicly made the said accusation, even in the pres- ence and hearing of the wife of the plaintiff, and which false and malicious accusation the defendant well knew, when he uttered it, to be totally untrue, atrocious, actionable, and most malignant in its mendacity. " In consideration, therefore, of the foregoing premises, the plaintiff brings this action of tort ; and 6laims to his damage the sum of ten thousand dollars. " Respectfully^ "George, the Count Joannes, " Plaintiff in person." To this declaration the defendant demurred, as not setting forth any legal cause of action, as containing irrelevant and improper matter, and as having annexed to it a printed exhibit not pertaining to the cause of action. At the hearing in this court, before Hoar, J., the demurrer Was sus- tained, and judgment rendered for the defendant; and the plaintiff appealed to the whole court. The plaintiff and the defendant both appeared pro sese. Hoar, J. This case comes before us by an appeal from a judgment tendered by a justice of this court on a demurrer. This is irregular; the proper mode, in actions at common law, being by bill, of excep- tions, where the case is not reserved. But, the appeal having been allowed by the justice who rendered the judgment, we have examined the questions presented, and are of opinion that the judgment sustain- ing the demurrer was light. The declaration is in tort for slander, by orally imputing insanity to the plaintiff. We are aware of no authority for maintaining such an action, without the averment of special damage. The authorities upon which the plaintiff relies are both cases of libel. The King v. Harvey ; 1 Southwick v. Stevens. 2 An action for oral slander, in charging the plaintiff with disease, has been confined to the imputation of such loathsome and infectious maladies as would make him an object of disgust and aversion, and banish him from human society. We be- lieve the only examples which adjudged cases furnish are of the plague, leprosy, and venereal disorders. In addition to this vital objection in matter of substance, the decla- ration fails to set forth the supposed cause of action in substantial conformity with the requirements of the statute ; and contains many superfluous allegations, which are manifestly irrelevant, impertinent, and scandalons. Appeal dismissed. » 2 B. & C. 257. * 10 Johns. 443. SECT. III.] DAYIS j,. GAEDNER. 785 Slander — (continued), (d) Defamatory Words not Actionable per se, but causing Special Damage. DAVIS v. GARDNER. In the Common Pleas, Trinity Teem, 1593. [Reported in 4 Reports, 16 6.] The plaintiff declared that she was a virgin of good fame, &c, and free from all suspicion of incontinency, &c. And whereas Anthony Elcock, citizen and mercer of London, of the substance and value of £3000, desired her for his wife, and had thereupon conferred with John Davis, her father, and was ready to conclude it, the defendant (prce- missorum non ignarus) to defame the said Anne, and to obstruct the said Anthony's proceeding, uttered and published of the said Anne these words: "I know Davis's daughter well {innuendo prcea' An- narri) ; she dwelt in Cheapside, and there was a grocer that did get her with child (and the defendant being there then admonished that he should be advised quid dixerat de prafata Anna) ulterius de eadem dixit : " I know very well what I say, I know her father and mother, and sister, and she is the youngest sister, and had the child by the grocer : " by reason of which words the plaintiff was greatly defamed, et ratione inde diet Anthonius ipsam Annarn in uxor 1 ducere penitus recusabat; and the defendant pleaded not guilty, and by Nisi Prius in the county of Bucks, the jurors found for the plaintiff, and assessed damages to 200 marks. And it was now moved in arrest of judgment by the defendant's counsel, that the said defamation of incontinency concerned the spiritual and not the temporal jurisdiction ; and therefore as the offence should be punished in the spiritual court, so her remedy for such defamation should be there also ; for cognitio pauses non spectat ad forum regium ; so if a man is called bastard, or heretic, or miscreant, or adulterer (forasmuch as these belong to the ecclesiastical jurisdiction), no action lies at the common law; and in proof thereof, 12 H. 7, 22, a, b, and 27 H. 8, 14, a, b, were cited. But it was answered by the plaintiff's counsel, and resolved per totam curiam, that the action was maintainable, for two reasons : 1. Because if the woman had a bastard, she was punishable by the statute of 18 Eliz. c. 3. And although fornication or adultery is not examinable by our law, because they are done in secret, and peradventure are indecent to be openly examined, yet the having of a bastard is a thing apparent, and examinable and punishable by the said act.. 2.. It was 60 786 SHEPPABD V. waajuuaa. VJ1A4 ■ .LA resolved, if the defendant had charged the plaintiff with bare incon- tinency, yet the action should be maintainable ; for in this case the ground of the action is temporal, that she was to be advanced in mar- riage, and that she was defeated of it, and the means by which she was defeated was the said slander, which means tending to such end, shall be tried by the common law. So if a divine is to be presented to a benefice, and one to defeat him of it says to the patron " that he is a heretic, or a bastard, or that he is excommunicated," by which the patron refuses to present him (as he well might if the imputations were true), and he loses his preferment, he shall have his action on the case for those slanders tending to such end. And if a woman is bound that she shall live continent and chaste ; or if a lease is made to her quamdiu casta vixerit, — in these cases incontinency shall be tried by the common law. And Popham, C. J., said, that if one says of a woman that keeps an inn, that she has a great infectious disease, by which she loses her guests, she shall have an action on the case. Trin. 25 Eliz. in B. R., inter Banister & Banister, it was resolved, that where the defendant said of the plaintiff (being son and heir to his father) that he was a bastard,, that an action on the case lies; for it tends to his disinherison of the land which descends to him from his father; but there it was resolved that if the defendant pretends that the plaintiff was a bastard, and that he himself was the next heir, there no action lies, and that the defendant may show by way of bar, if the plaintiff omits it in his declaration ; which agrees with the resolution in Anne Davis's Case, and with the Lord Cromwel's Case. 1 SHEPPARD v. WAKEMAN. In the King's Bench, Hilary Teem, 1662. [Reported in 1 Leidnz, 58.] Case where the plaintiff was to be married to such a one who intended to take her to his wife ; the defendant falsely and maliciously, to hinder the marriage, wrote a letter to the said person, that the plain- tiff was contracted to him, whereby she lost her marriage. After ver- dict for the plaintiff, it was moved that the action did not lie, the defendant claiming title to her himself, like as Gerrard's Case, 4 Co, for slander of title. But after divers motions, the plaintiff had judg- l Dame Morrison's Case, Jenk. 316 ; Matthew v. Crasse, 2 Bulst. 89 ; Sell v. Facy, 2Bulst. 276; s. o. 3 Bulst. 48; Nelson v. French, Cro. Jac. 422; Tomson's Case, Bendl. 148 ; Countess of Salop's Case, Bendl. 155 ; Taylor v. Tolwin, Lateh, 218 ; Wicks v. Shepherd, Cro. Car. 155 ; Southold v. Daunston, Cro. Car. 269, ace. See Bridge v. Taylor, Litt. 193; Norman v. Simons, 1 Vin. Abr. Act. Words, D, o, 12.— Ed. SECT. III.] KELLY V. PARTINGTON. 787 ment, for it is found to be malicious and false; and if such an action should not lie, a mean and a base person might injure any person of honor and fortune by such a pretence. KELLY v. PARTINGTON. In the King's Bench, November 14, 1833. [Reported in 5 Barnewall $• Adolphus, 645.] Slander. The declaration began with the usual averment of the plaintiff's good conduct and character, and stated that the defendant, contriving and intending to injure the plaintiff in her good name, &c, as a shopwoman and servant, falsely and maliciously spoke certain words mentioned in the first count. The second count stated that the defendant, further contriving and intending as aforesaid, falsely and maliciously spoke and published of and concerning her, as such shop- woman and servant, these other false, scandalous, malicious, and defamatory words following, that is to say, " She " (meaning the plaintiff) " secreted Is. 6d. under the till, stating, these are not times to be robbed." The declaration concluded with an allegation of special damage, that one Stenning, by reason of the speaking of the words, refused to take the plaintiff into his service. 1 The jury found a general verdict for the plaintiff, with Is. damages. Sir James Scarlett obtained a rule nisi for arresting the judgment, on the ground that the words in the second count, taken in their grammatical sense, were not disparaging to the plaintiff, and therefore that no special damage could result from them. The Solicitor- General, in Hilary term following, showed cause. The words in the second count (as the court has already decided) are not actionable without special damage. The question is, whether they are actionable, even with special damage. [Denman, C. J. It is con- tended that the words import that the plaintiff secreted her own money from excessive caution.] The words may not be actionable of them- selves; but such words, if a jury find them to have been spoken with a malicious intent to injure the plaintiff, as charged in this declaration, are actionable by reason of special damage. Gomyns, C. B., in his Digest, tit. Action on the Case for Defamation, D, 30, after having stated, under the previous heads, many instances of words actionable in themselves, says that an action may be maintained " for any words by which the party has a special damage." Even, therefore, if the words in question bore the sense ascribed to them, yet being spoken falsely and maliciously with intent to injure, and followed by special 1 See Kelly v. Partington, 4 B. & Ad. 700. 788 KF.LLT V. PARTINGTON. |_CHAP. IX. damage, they are actionable. And these were in foot not innocent, but disparaging words, or at all events equivocal ; and it was for a jury to find in what sense they were used. The word " secreted " is used in a bad sense; it usually imputes some bad motive. If the words, "stat- ing, these are not times to be robbed," apply to the plaintiff, they are ambiguous ; they may have been used by her as a pretence for secret- ing money belonging to another, and that question was for the jury. [Littledale, J. Suppose a man had a relation of a penurious dis- position, and a third person, knowing that it would injure him in the opinion of that relation, tells the latter a generous act which the first has done, by which he induces the relation not to leave him money, would that be actionable?] If the words were spoken falsely with intent to injure, they would be actionable. At all events, if the words are not laudatory, but will bear a bad sense, and a jury might find (as they did here) that they were used in that sense, and an injury is stated to have ensued in consequence, they are actionable. Sir James Scarlett, contra. It does not appear by the words them- selves, or by any innuendo, whose property the Is. 6d. was. It may have been that of the plaintiff; and if so, it is clear that the words do not import a charge of felony. They cannot amount to such a charge, unless it be assumed that the property meant was that of the defend- ant or some third person. It is not true that an action may be main- tained for words of praise (not used ironically), if followed by special damage. No case can be cited to that effect. An action is only maintainable for special damage when it is the natural result of a wrongful act. The uttering of words not defamatory of another is not wrongful, and, therefore, even when followed by special damage, gives no ground of action. The words being innocent in themselves, there is no ground for presuming malice, and a jury cannot infer it. Denman, C. J. The declaration alleges that the defendant, intend- ing to injure the plaintiff, maliciously spoke these words: "She" (the plaintiff) " secreted Is. Qd. Under the till, stating that these are not times to be robbed ; " by reason whereof a damage ensued to the plaintiff. The words do not of necessity import any thing injurious to the plaintiff's character; and we think that the judgment must be arrested, unless there be something on the face of the declaration from which the court can clearly see that the slanderous matter alleged is injurious to the plaintiff. Where the words are ambiguous, the mean- ing may be supplied by innuendo ; but that is not the case here. The rule for arresting the judgment must therefore be made absolute. Littledale, J. I cannot agree that words laudatory of a party's conduct would be the subject of an action if they were followed by special damage. They must be defamatory or injurious in their nature. SECT. III.] MILLER V. DAVID. 789 In Comyns's Dig. tit. Action on the Case for Defamation, D, 30, it is said generally that any words are actionable by which the party has a special damage ; but all the examples given in illustration of that rule are of words defamatory in themselves, but not actionable, be- cause they do not subject the party to a temporal punishment. In all the instances put, the words are injurious to the reputation of the per- son of whom they are spoken. The words here are extraordinary ; if they had stood merely, " she secreted 1*. Qd. under the till," they might perhaps have been actionable ; but, coupled with the subsequent words, which appear only to import great caution on the part of the plaintiff, I think we cannot say that they impute any thing injurious to the plaintiff. Taunton, J. I am of the same opinion. The expression ascribed to the plaintiff, " these are not times to be robbed," seems like saying that times are so bad I must hide my money. If Stenning refused to take the plaintiff into his service on this account, he acted without reasonable cause ; and in order to make words actionable, they must be such that special damages may be the fair and natural result of them. Patteson, J. I have always understood that the special damage must be the natural result of the thing done. The words here are, " The plaintiff secreted Is. Qd. under the till, stating, these are not times to be robbed." There is no innuendo stating whose money it was that she secreted ; it might be her own. Then it is said that the words are actionable, because a person after hearing them chose in his caprice to reject the plaintiff as a servant. But if the matter was not in its nature defamatory, the rejection of the plaintiff cannot be con- sidered the natural result of the speaking of the words. To make the speaking of the words wrongful, they must in their nature be defama- tory. 1 Rule absolute? MILLER v. DAYID. In the Common Pleas, January 20, 1874. [Reported in Law Reports, 9 Common Pleas, 1187.] The first count of the declaration stated that the plaintiff was, at and during the times of the committing by the defendant of the griev- ances in the several counts mentioned, a working stone-mason residing 1 See Vicars v. Wilcocks, 8 East, 1. n Ilallock v. Miller, 2 Barb. 682, semble, ace. ; Bentley v. Reynolds, 1 McMull. 16, sernble, contra. — Ed. 790 MILLER V. DAVID. [CHAP. IX. at Llanelly, in the county of Carmarthen, and sought and earned his livelihood by working as a stone-mason for wages as servant of build- ers and others employing masons in Llanelly or the neighborhood of Llanelly, and was at the time of the committing of the grievances in that count mentioned so employed in certain works carried on under the management of a person surnamed Mayberry, and before the times of the committing of the grievances in the several counts mentioned three public meetings had been held at Llanelly aforesaid of divers masons, with the object of promoting the adoption in Llanelly afore- said of a system of labor amongst masons employed there, called " the nine hours system," consisting in, amongst other matters, the dimi- nution of the hours of labor per week theretofore established and in use for masons in Llanelly aforesaid ; and the said nine hours system was at the said times considered by the defendant and Mayberry and divers employers of masons in Llanelly aforesaid as inexpedient and prejudicial to divers trades carried on in Llanelly aforesaid, and injuri- ous to the public welfare of Llanelly ; and at the said times persons known or suspected to be ringleaders or agitators of the movement in favor of the nine hours system were looked upon with disfavor and suspicion by such employers, who would not readily employ them; and such persons found their means of obtaining employment dimin- ished, — all which the defendant at the said times well kuew : yet the defendant falsely and maliciously spoke and published of the plaintiff to Mayberry the words following, that is to say, "He" (meaning the plaintiff) "was the ringleader of the nine hours system;" whereby and by means of which premises the plaintiff was injured in his occu- pation of a stone-mason, and was discharged from his said employment at the said works, to wit, the Old Castle Iron and Tin Plate Works, and was without and could not obtain employment for a considerable time, and could get no employment but one of less value to the plain- tiff, the place of employment being distant from his place of abode, and his necessary meals thereby becoming more costly, and such place of employment being exposed to wet weather. Second count, for that the plaintiff repeats and reaffirms the said matters of inducement applicable to this count, and says that the defendant falsely and maliciously spoke and published of the plaintiff to one Iiees Jenkins, an employer of stone-masons as aforesaid, the following words, that is to say, "He" (meaning the plaintiff) "has ruined the town by bringing about the nine hours system, and he " (meaning the plaintiff) "has stopped several good jobs from being carried out, by being the ringleader of the system at Llanelly;" whereby the plaintiff was injured in his occupation of a stone-mason, and the said Kees Jenkins refused to take him into his employment as SECT. III.] MILLER V. DAVID. 791 a stone-mason, and the plaintiff was without and could not get employ- ment, &e., as in the first count. The fifth and sixth counts were similar to the first and second, but alleging the words to have been spoken in the Welsh language. Demurrer, on the ground that the words were not in themselves defamatory, and that special damage consequent thereon, therefore, gave no action. Joinder in demurrer. Nov. 20, 1873. IT. Oiffard, Q. C, in support of the demurrer. The words alleged in the counts demurred to to have been spoken of the plaintiff, not being defamatory in their nature, are not actionable, even though followed by special damage. In Lumby v. Allday, where the declaration stated that the plaintiff was clerk to a gas company, and that the defendant spoke of him words imputing to him incontinence and consequent unfitness to hold his situation, Bayley, B., delivering the judgment of the court, said : " The objection to maintaining an action upon these words is, that it is only on the ground of the plain- tiff being clerk to the company that they can be actionable ; that it is not alleged that they are spoken of him in reference to his character or conduct as clerk; that they do not from their tenor import that they were spoken with any such reference ; that they do not impute to him the want of any qualification such as a clerk ought to have, or any misconduct which would make him unfit to discharge faithfully and correctly all the duties of such a clerk. The plaintiff relied on the rule laid down by De Grey, C. J., in Onslow v. Home, ' that words are actionable when spoken of one in an office of profit, which may prob- ably occasion the loss of his office ; or when spoken of persons touch- ing their respective professions, trades, and business, and do or may probably tend to their damage.' The same case occurs in Sir W. Bl. 763, and there the rule is expressed to be, 'if the words be of probable ill consequence to a person in a trade or profession, or an office.' The objection to the rule as expressed in both reports appears to me to be, that the words 'probably' and 'probable' are too indefinite and loose ; and, unless they are considered as equivalent to ' having a nat- ural tendency to,' and are confined within the limits I have expressed in stating the defendant's objections, of showing the want of some necessary qualification, or some misconduct in the office, it goes be- yond what the authorities warrant. Every authority which I have been able to find either shows the want of some general requisite, as, honesty, capacity, fidelity, &c, or connects the imputation with the plaintiff's office, trade, or business. As at present advised, therefore, I am of opinion that the charge proved in this case is not actionable, because the imputation it contains does not imply the want of any of those qualities which a clerk ought to possess, and because the imputa- 792 MILLER V. DAVID. [CHAP. IX. tion has no reference to his conduct as clerk." In Kelly v. Partington, the words were, " She " (meaning the plaintiff) " secreted Is. Gd. under the till, stating, these are not times to be robbed ; " and it was held, on motion in arrest of judgment, that the words were not defamatory in their nature, and therefore not actionable, even though followed by special damage. Patteson, J., there says : " I have always understood that the special damage must be the natural result of the thing done. The words here are, ' The plaintiff secreted Is. 6d. under the till, stat- ing, these are not times to be robbed.' There is no innuendo stating whose money it was that she secreted ; it might be her own. Then it is said that the words are actionable, because a person, after hearing them, chose in his caprice to reject the plaintiff as a servant. But, if the matter was not in its nature defamatory, the rejection of the plaintiff cannot be considered the natural result of the speaking of the words. To make the speaking of the words wrongful, they must in their nature be defamatory." So, in Ayre v. Craven, words imputing adultery to a physician, though alleged to have been spoken of him in his profession, were held not to be actionable without special damage. In the recent case of Foulger v. Newcomb, the law is assumed to be as above stated. The judgment distinguishes that case from Ayre v. Craven on the ground that there " the declaration did not set forth in what manner the misconduct was connected with the plaintiff's pro- fession ; " whereas, in the case in hand it did. The only case which bears a contrary aspect is Moore v. Meagher, 1 where it was held that, if, in consequence of words spoken, the plaintiff is deprived of sub- stantial benefit arising from the hospitality of friends, this is a sufficient temporal damage whereon to maintain an action. Heath, J., there says, " Undoubtedly all words are actionable, if a special damage follows." That clearly could not be maintained at the present day. Bray, contra. The words are charged to have been spoken mali- ciously, they are in their nature defamatory, and they are alleged to have caused special damage to the plaintiff; consequently they are clearly actionable. [Denman, J. Cox v. Cooper, 2 cited in Day's Common Law Proced- ure Acts(4th ed.), p. 98, seems to be against you. It was there held that section 61 of the Common Law Procedure Act, 1852, does not relievo the plaintiff from showing in his declaration by proper innuendos that words not in themselves actionable were used with a specific actionable meaning.] 1 1 Taunt. 39. 2 12 W. R. 75. SECT. HI.] MILLER V. DAVID. 793 " Any words by which a party has a special damage " are actionable. Com. Dig. Action upon the Case for Defamation, D, 30. [Lord Coleeidge, C. J. In Starkie on Slander (3d ed.), p. 97, it is said : " In the early part of the reign of Queen Anne, Holt, C. J., ob- served that, whenever the words tended to take away a man's reputa- tion, he would encourage actions for them ; because so doing would much contribute to the preservation of the peace. 1 And Fortescue observed on this ruling in a subsequent case, 2 that it was also Hale's and Twisden's rule ; and he thought it a very good one."] In Ayre v. Craven the action failed because the declaration did not show how the words spoken were connected with the plaintiff's pro- fessional conduct. In Kelly v. Partington, Littledale, J., says that, to make defamatory words the subject of an action, they must be followed by special damage ; and he goes on : " In Com. Dig. Action upon the Case for Defamation, D, 30, it is said generally that any words are actionable by which the party has a special damage; but all the examples given in illustration of that rule are of words defamatory in themselves, but not actionable, because they do not subject the party to a temporary punishment. In all the instances put, the words are injurious to the reputation of the person of whom they are spoken. I think we cannot say that the words here impute any thing injurious to the plaintiff." The judgments of the other three judges proceed upon the ground that the special damage alleged was too remote. Green v. Button is not distinguishable from the present case. There the defend- ant falsely and maliciously set up a claim of lien, and thereby induced a third person not to deliver to the plaintiff certain goods which he had purchased and paid for ; and it was held that the special damage alleged, viz., the non-delivery of the goods, was sufficiently connected with the wrongful act of the defendant to support the action. Then, the words are defamatory in themselves : they impute to the plaintiff a violation of his moral duty towards his employer. [Loed Coleeidge, C. J. The plaintiff is alleged to have done no more than that which Parliament has expressly sanctioned.] That the words were spoken of the plaintiff in the way of his trade "of a mason, is matter of law to be inferred from the circumstances. [Loed Coleeidge, C. J. That might and ought to have been averred, but it is not.] Nobody can doubt that the word "ringleader" is one which is capable of being used in a defamatory and injurious sense; and whether or not it is so used is a question for a jury, not for the court. Jenner v. A'Beckett. 3 i Baker v. Pierce, 6 Mod. 23. 2 Button v. Heyward, 8 Mod. 24. » Law Bep. 7 Q. B. 11. 794 MILLEB V. DAVID. [CHAP. IXl [Denmast, J. In that case there was an innuendo giving the words a defamatory sense.] Lord Campbell, C, in the course of the argument in the House of Lords in Lynch v. Knight, 1 says: "It must not be laid down as a universal rule that a man cannot maintain an action if he is induced by false representations to do an act which occasions him damage. The real question is, whether under the circumstances his conduct is reasonable, not simply whether it is wrongful." And Lord Wensley- dale, in giving his judgment in the same case, says: 2 "Upon this question I am much influenced by the able reasoning of Mr. Justice Christian. 3 I strongly incline to agree with him, that, to make the words actionable by reason of special damage, the consequence must be such as, taking human nature as it is, with its infirmities, and having regard to the relationship of the parties concerned, might fairly and reasonably have been anticipated and feared would follow from the speaking of the words, not what would reasonably follow, or we might think ought to follow. In Vicars v. Wilcocks, 4 I must say that the rules laid down by Lord Ellenborough are too restricted. That which I have taken from Mr. Justice Christian seems to me, I own, correct. I cannot agree that the special damage must be the natural and legal consequence of the words." [Brett, J. That view does not appear to have been assented to by the majority of the judges.] Cur. adv. vult. Jan. 20. The judgment of the court (Lord Coleridge, C. J., and Keating, Brett, and Denrrian, JJ.), was delivered by Lord Coleridge, C. J. In this case time was taken to consider our judgment, from the wish entertained by at least one member of the court to hold, if there were authority for the proposition, that a statement false and malicious made by one person in regard to another, whereby that other might probably, under some circumstances, and at the hands of some persons, suffer damage, would, if the damage re- sulted in fact, support an action for defamation. No proposition less wide in its terms than this would support the present declaration ; for to call a man "the ringleader of the nine hours system," and to say of him that he " had ruined a place by bringing about that system," could not under many circumstances and at the hands of many people do the subject of such statement any damage at all. But we are unable to find any authority for a proposition so wide and general in its terms as would alone support this action. The rule, as laid down by De Grey, C. J., in Onslow v. Home, that i 9 H. L. C. 577, at p. 583. 2 9 H. L. C. at p. 600. 8 See 4 Irish Jur. n. s. 284. * 8 East, 1. SECT. III.] MILLER V. DAVID. 795 words are actionable if they be of probable ill consequence to a person in a trade or profession, or an office, is expressly disapproved of by the Court of Exchequer in Lumby v. Allday. Bayley, B., there says: " Every authority which I have been able to find either shows the want of some general requisite, as honesty, capacity, fidelity, or the like, or connects the imputation with the plaintiff's office, trade, or business." In that case, the words proved were a very strong imputa- tion on the morality of the plaintiff, who was a clerk to a gas company. But the court held them not actionable, because the imputation con- veyed by them did not imply the want of any of those qualities which a clerk ought to possess, and because the imputation had no reference to his conduct as clerk. That case and the language of Bayley, B., in delivering the judgment of the court, have since been repeatedly approved of, and are really decisive of this case. The words before us are not actionable in themselves. No expres- sion in them was argued to be so except the word " ringleader ; " and, as to that, it is sufficient perhaps to say that Dr. Johnson points out the mistake of supposing that the word is by any means necessarily a word of bad import ; for, amongst other authorities, he cites Barrow as calling St. Peter the " ringleader " of the Apostles. 1 Neither are the words connected with the trade or profession of the plaintiff either by averment or by implication ; so that, on neither ground can the declaration be supported. There is no averment here that the con- sequence which followed was intended by the defendant as the result of his words ; and therefore it is not necessary to consider the question which was suggested on the argument, whether words not in them- selves actionable or defamatory spoken under circumstances and to persons likely to create damage to the subject of the words, are, when the damage follows, ground of action. The judgment of Lord Wens- leydale in Lynch v. Knight 2 appears in favor of the affirmative of this question. But it is not necessary for us, for the reasons given, to express any opinion upon it ; and upon this demurrer there must be judgment for the defendant. Judgment for the defendant. 1 " It may be reasonable to allow St. Peter a primary of order, such a one as the ringleader hath in a dance." Barrow's Treatise of the Pope's Supremacy, Oxford edition of Works, 1830, vol. vii. p. 70. In Fox's Preface to Tyndall's Works, " these three learned fathers of blessed memory, William Tyndall, John Frith, and Robert Barons," are styled "chief ringleaders in these latter tynies of tlvys Church of England." i 9 H. L. C. at p. 600.