complained of is in some transaction of more than six years' standing, but the damage to the plaintiff within that time.[1]

In such an action(a) against an attorney, the negligence imputed to him by the declaration was, that an annuity having been granted to the plaintiff, he had been employed as his attorney to prepare the securities, and to enrol the memorial. It then charged, that he had so negligently and improperly caused the memorial to be enrolled, that by reason of a defect in such memorial, the securities had been set aside by rule of court, and the *plaintiff had lost the benefit of his an- [*101] nuity, and the money paid for the same. The defendant pleaded, first, not guilty; and, secondly, the statute of limitations, that the cause of action did not accrue within six years. The plaintiff had assigned the annuity to one Kirkby. The annuity had been set aside; and Kirkby had brought an action

(a) 4 Esp. 18.

[1] In the case of Howell vs. Young, Gent. one, &c. (5 Barnew. & Cress. 259;) it appeared at the trial, that in the year 1814, the defendant had been retained by the plaintiff to ascertain whether a certain warrant of attorney and mortgages were a sufficient security for the sum of £3000 and interest, and that at the time he represented they were so; and in consequence of such representation the plaintiff lent that sum of money, on that security. In the year 1820, (the interest to that time having been regularly paid,) it was discovered that the warrant of attorney and mortgages were not a sufficient security: Held, That the misconduct or negligence of the Attorney constituted the cause of action, and that the Statute of Limitations began to run from the time when the de fendant had been guilty of such misconduct, and not from the time when it was discovered that the securities were insufficient. In giving his opinion BAYLEY, J. said, "It appears to me that there "is not any substantial distinction between an action of assumpsit "founded upon a promise which the Law implies, that a party will "do that which he is legally liable to perform, and an action on the "case which is founded expressly upon a breach of duty. What"ever be the form of action, the breach of duty is substantially the "cause of action." And HoLROYD, J. said, "I think it makes no "difference in this respect, whether the plaintiff elects to bring an "action of assumpsit founded upon a breach of promise, or a spe❝cial action on the case founded upon a breach of duty." & vide. 2 Carr. & Payne's Rep. 238, Same case.

against the plaintiff for the consideration money, which he had recovered back: this had taken place within six years.

Lord Kenyon said, as to the plea of the statute of limitations, he had not made up his mind on it; but the inclination of his opinion was, that the plea was insufficient: that in the case of an action of trover, if goods are left in the hands of another, the statute of limitations does not begin to run from the time of delivery, but from that of the demand and refusal.[1]

Slander of title is not within the limitation of actions for slanderous words, because it is not actionable unless a special damage have arisen; and the limitation of two years on slanderous words applies only to words actionable at the time of speaking them.

Error of a judgment in Windsor, (a) in an action on the case for slander of title. The plaintiff declared that he was seised in fee of lands, and the defendant said he had no title. And the error assigned was, that he did not show by his declaration, that by the occasion of those words he had any prejudice.

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*The court agreed, that the declaration was not good, and so the judgment erroneous, because the action is not maintainable, without showing special prejudice, no more than for calling one whore or bastard, without showing special cause of temporal damage; and was not like

[1] In an action of indebitatus assumpsit, for money had and received, it was Held, that where the Legislature, with the assent of a town, has granted a portion of the avails of the School Lands in such town, to another town, an action will not lie to recover such portion, until after demand made, and consequently, until demand, the Statute of Limitations does not begin to run against the right of action. The town of Poultney vs. The town of Wells, Aik. Rep. 180.

words spoken which imply slander and temporal loss, as thief or bankrupt, or such like. But slandering of one's title does not import in itself loss, without showing particularly the cause of loss, by reason of the speaking the words, as that he could not sell or let the lands; but being general words they are not sufficient and that it was out of the statute, as well for the time of limitation as for the costs. Nor is scandalum magnatum (a) within the statute.

"In all actions upon the case for slanderous words, if the jury upon the trial of the issue in such action, or the jury that shall inquire of the damages, do find or assess the damages under forty shillings, then the plaintiff or plaintiffs in such action shall have and recover only so much costs as the damages so given or assessed amount unto, without any further increase of the same."

The following cases will exemplify the principle that regulates the construction in actions for words, both as to the time and limitation of costs. In those cases in which no more costs than damages are given, the time of limitation is two years: where full costs are allowed, although the damages be under forty shillings, the action is out of the limitation of two years, but still within the limitation of six years; which runs from the time of the consequential injury.

*In an action (b) for words, for calling the plaintiff a [*103] thief, and for procuring him to be indicted and imprisoned for felony, until he was acquitted. Upon not guilty pleaded, it was found for the plaintiff, and ten shillings damages; (so under forty shillings.) It was moved, that he should have but ten shillings for costs; but the court conceived, forasmuch as this was not an action for words only, but also an action upon the case, in nature of a conspiracy, and the defendant

was found guilty of both, he shall have judgment for his ordinary costs, and that it was out of the statute.

So, where the declaration(a) charged that the defendant, falso et malitiose, spake of plaintiff these words, "that the plaintiff committed felony," and procured him to be arrested for felony, and to be imprisoned for three days: the defendant pleaded not guilty, and found against him generally, and damages to twenty shillings. It was moved that he might have no more costs than damages, the damages being under forty shillings. But because there was a precedent shown in the above case of Edwards v. Topsall, it was resolved here to be out of the statute.

But where the plaintiff(b) counted that he was a clerk of the enrolment office, and the defendant crimen feloniæ ei imposuit, by which he had liked to have lost his office; the defendant pleaded, that as to the imposition of felony, otherwise than by speaking of scandalous words, not guilty; and as to the speaking of the words, non infra duos annos; to which the plaintiff demurred.

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*On the trial, Wild, for the plaintiff, said that this was not within the statute of limitations no more than slander of title. Jones, for the defendant, said, that the imposition of felony is actionable by itself, and then the other words are within the statute. Wild answered, that crimen feloniæ imponere, cannot be by words alone, but by some act, as carrying him. before a justice of peace, &c. Twisden, J. If the words were actionable at first, then the damages after do not give cause of action; and the first plea is a bar, and the other fruitless; and of that opinion was the whole court; and judgment was given for the defendant.

In an action on the case(c) for words spoken of the wife by

(a) Cro. Car 306. (b) Raym. 61.

(c) Ld. Raym. 831.

the defendant, viz. "Mrs. Brown is a whore, and has done as all whores do;" per quod the plaintiff, being a tradesman, lost such and such, viz. A, B, &c. from being his customers, who were his customers before, &c. Upon not guilty pleaded, the defendant at nisi prius gave evidence by way of mitigation of damages, that Mrs. Brown was a whore. And the evidence was very strong; upon which the jury gave damages but twenty shillings to the plaintiffs. And it was moved that the plaintiffs might have their full costs; which was opposed by Serjeant Darnall. And the court held, that this action was not an action for slanderous words within the meaning of the statute, because the special damage is the gist of the action, without which it would not lie: and therefore such an action lies for the husband alone, without joining the wife, which is otherwise in a common action for words. And Law v. Horwood, Cro. Car. 140. was cited, and allowed by the court to be a case in point.

And Powell, Ch. J. said, that if the master brought [*105] an action of battery against J. S. for a battery committed upon his servant, per quod servitium amisit, if the jury, upon not guilty pleaded, gave damages under forty shillings, the plaintiff should have full costs, notwithstanding the statute of 22 & 23 Car. II. c. 9, which allows, in common actions of battery, no more costs than damages, where the damages are less than forty shillings. And the plaintiff in the principal case had full costs.

And by the court, in Phillips v. Fish, (a) which was an action on the case for these words, spoke of the plaintiff, viz. "Thou art a villain and thief;" quorum quidem verborum propalatione, the plaintiff was not only much damnified in his fame and reputation, verum etium arrestat fuit, by procurement of the defendant, and carried before a justice of the peace, and there imprisoned. If the fact that comes under the verum etiam was only laid in aggravation of damages, so that the words are the git of the action, then the plaintiff can have no more costs than dam

(a) 8 Mod. 372..