ages; but if it be laid as a distinct fact, for which another action might be brought, then he shall recover full costs. Actions of scandalum magnatum, and for slandering a man's title, are actions for words, and yet not within the statute of 21 Jac. I. c. 16. for the statute intended only to prevent frivolous actions for words. It is true, where a trespass is laid with a per quod, &c. as for instance, "per quod servitium," &c. or "per quod consortium uxoris amisit," there, whatever comes under the per quod

must be proved, otherwise the plaintiff cannot have a [*106] verdict, because that is the git of the action. But *in the principal case, the action is founded on the words spoken, and the procuring the plaintiff to be arrested for felony is laid in a different count, and the defendant is found guilty generally; the court therefore inclined that the plaintiff should ' have full costs.

So, where the declaration(a) went on quorum quidem falsorum verborum propalationis prætextu idem. Carolus non solum in bonis, nomine, et in negotiis suis honesis, multipliciter læsus et deterioratus existit, verum etiam occasione verborum prædictorum per procurationem of the defendant, he was taken up and carried before a justice; (the words charging him with stealing a hen ;) there was a verdict for the plaintiff, and one shilling damages; and it was moved in Trinity term, 12 Geo. I. for full costs: and by the opinion of the court, that the plaintiff should have full costs, because this was not laid as an aggravation, but as a distinct fact; he spoke the words, and he procured him to be carried before a justice.

But in an action(b) for words, the plaintiff set out in his declaration, that he was a house-smith by trade, and that the defendant spoke the words of him, (which words were actionable in themselves,) by reason of the speaking of which words the plaintiff had lost several customers, naming them particularly, to his damage of 1001. On the general issue pleaded, the jury

found for the plaintiff, and gave him only five shillings damages. And it was moved, that the plaintiff might have full costs, though the damages were found under forty shillings, because he had received a special damage, viz. the loss of his customers; so that if the words had not been actionable of *themselves, this action would have been maintainable, [*107] by reason of the special damage. And the two cases

between Phillips and Fish and Carter and Fish were cited. But, per Curiam, Where the words are not actionable, but the action is maintained by reason of special damages the plaintiff has sustained upon account of the words, the plaintiff shall have full costs, though the damages are under forty shillings; for it is not the words, but the special damage is the cause of the action. But where the words are actionable of themselves, as in the present case, and special damages are laid by way of aggravation, and damages are under forty shillings, there shall be no more costs than damages, for that is properly an action for words within the statute of 21 Jac. I. c. 16. And as to the cases cited of Carter v. Fish and Phillips v. Fish, upon considering that declaration the court held, that as it was laid, it was not barely laid in aggravation of damages, but was a distinct cause of action, importing crimen feloniacei imposuit, and therefore the plaintiff there had full costs. In this principal case the court directed the plaintiff should have no more costs than damages.

In the case of Surman v. Shelleto, (a) Mr. Harvey made a motion for full costs; though the jury had found only one shilling damages, they had given forty shillings costs. It was an action for words: and there was a colloquium laid about the plaintiff's trade; and also a special damage laid, of his having lost his business by reason of the speaking of the words. The words in question were contained in the third count, on which third count the verdict was taken; and they were these: "Thou art a rogue, and thou hast cheated me of several pounds." The rule, *he said, was, "that where [*108]

(a) Burr. 1688.

the words are not actionable in themselves, there shall be full costs, if special damages are laid; though the damages found be under forty shillings." And to show that these words are not in themselves actionable, he cited Hardr. 8. Wakev. Chapman et Ux. and 5 Mod. 398. Savage v. Robury. Indeed, if the words spoken are in themselves actionable, and less damages found than forty shillings, there shall not be full costs except there be a colloquium, and special damages laid as a substantive and independent injury. But the court held the latter words, "thou hast cheated me of several pounds," to be actionable; and told Mr. Harvey he must be content with forty shillings costs.

Case for words. (a) The declaration stated, that at a public auction, on the 29th April, 1775, a small glass bottle being missing, the defendant said, first, "That man [pointing to and meaning plaintiff] has put one in his pocket. I saw him take it he has got it"-meaning to impute to plaintiff that he had feloniously stolen it. Secondly, that he said, "That man has put one in his pocket. I saw him take it; and he has got it." Thirdly, that the words were, "I saw him take it :" by means whereof he was publicly searched, and exposed to great disgrace; and one John Woolgar, and others, have since refused to trust the plaintiff. On not guilty and issue thereon, a general verdict was for the plaintiff. Damages, one shilling.

Davy moved that the prothonotary, should allow full costs. He agreed the rule to be (as laid down in Burry v. Perry, [*109] 2 Ld. Raym. 1588. and recognised by two cases *in Barnes, 18 and 25 Geo. II.) that where there are special damages laid in the declaration, and the words are in themselves actionable, then, if the jury find a verdict for less than forty shillings, there shall be no more costs than damages; for the special damage is only laid as a matter of aggravation, and not as the cause of action. But if the words are not in themselves actionable, then the special damage is the only cause of

[(a) 2 Bl. 1062.

action; and that will carry full costs, of whatever amount the verdict may be. In the present case, he allowed the words in the first count to be actionable, as imputing the crime of felony: but those in the second or third count, not being laid as a charge of felony, are not actionable. And this being a general verdict, some of the damages must be intended to be given upon each of those counts, which (though it be but a farthing) would carry costs, as it could only be given for the special damage.

Walker, for the defendant, insisted on the same rule, and that all the words in every count were equally actionable, being all under the same introduction and conclusion.

And of that opinion was the court, (absente De Grey, Ch. J.,) that all three sets of words being under the same introduction, stating the good character of the plaintiff, and the intent of the defendant to cause him to be suspected of stealing, and being under the same conclusion, were all equally actionable.

And, by Gould, J. that the distinction, as stated by Davy, between words actionable and not so, with regard to their carrying costs, when coupled with special *dam- [*110] ages, and the verdict under forty shillings, was a clear

and settled distinction: there must be no more costs than damages.

Blackstone, J. said, that he must yield to the weight of authorities which had settled this distinction, though he thought it was too artificial and refined. In his own plain understanding he could only conceive, that the smallness of the damages ought to exclude full costs, even though the plaintiff complained of a special injury, whether the words are actionable or not; and. therefore he had no scruple in discharging the present rule. But he could not so well reconcile it to his own mind, that, cæteris paribus, the plaintiff should recover full costs if the words be innocent, but not so if they are highly scandalous.

Nares, J. said, the rule was certainly as stated by Davy at the bar, and then by his brother Gould, therefore the rule was discharged.

Trespass is within the words of the statute. With respect to trespass to lands, it is enacted, that in all actions of trespass quare clausum fregit, wherein the defendant shall disclaim in his plea to make any title or claim to the land in which the trespass is by the declaration supposed to be done, and the trespass be by negligence, or involuntary, the defendant shall be admitted to plead a disclaimer, and that the trespass was by negligence or involuntary, and a tender or offer of sufficient' amends before the action brought whereupon, or upon some of them, the plaintiff shall be enforced to join issue; and if the issue be found for the defendant, or the plaintiff shall be non[*111] suited, the plaintiff shall be clearly *barred from the said action or actions, and all other suit concerning

the same.

Trespass quare clausum fregit, and to personal property, must be brought within six years: the statute; therefore, may(a) be pleaded to trespass for mesne profits, and the defendant may by that mean protect himself from all but the last six years.[1]

(a) Run. Eject. 444.

[1] In the case of Murphy vs. Guion, (2 Hayw Rep. 145.) TAY-LOR, J. delivering the Opinion of the Court, said; "The action for mesne profits does not accrue till after a recovery in ejectment, "and possession obtained: then the defendant by relation, is a "trespass against the plaintiff's possession ab initio; consequently, "if the action be commenced within three years after that time, "the act of Limitations will not bar." & vide same case, Ibid. 162, the like Opini n by JOHNSTON, J. & vide Murphy vs. Guion's Executors, 1 North Car. Law Rep. 95, the like Opinion by HALL, J.

In the case of Pitman vs. Casey, (2 Hayw. Rep. 293,) TAYLOR, JUDGE delivered the Opinion of the Court in the following terms; "The trespass complained of first commenced above three years "before the institution of this action, and has been continued to the time of the action, which was within three years. The act

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