AN action may be maintained for words written, for which an action could not be maintained if they were merely spoken.

Thorley v. Lord Kerry.

4 Taunton, 355-366 (s. c. 13 R. R. 626).

Defamation. Libel. Slander.

Written words tending to vilify a man and bring him into hatred, [355] contempt and ridicule, are libellous, although the same words would not be actionable if they had been merely spoken.

This was a writ of error brought to reverse a judgment of the Court of King's Bench. The plaintiff below declared that he was a good, true, honest, just, and faithful subject of the realm, and as such had always behaved, and considered himself, and until

VOL. IX. -1

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No. 1.Thorley v. Lord Kerry, 4 Taunt. 355, 356.

the committing of the several grievances by the defendant thereinafter mentioned, was always reputed, esteemed, and accepted by and amongst all his neighbours, and ather good and worthy subjects of this realm, to whom he was in anywise known, to be a person of good name, fame, and credit, to wit, in the parish of Petersham in the county of Surry, and also that he had not ever been guilty, or until the time, &c.; been suspected of the offences and misconduct thereinafter mentioned to have been charged upon and imputed to him; or of any such offences or misconduct, by means of which premises he had before the committing of the several grievances deservedly obtained the good opinion and credit of all his neighbours, and other good and worthy subjects of this realm, to whom he was known, to wit, at Petersham: and also, that before and at the time of the committing of the grievances by the defendant below as thereinafter mentioned, the plaintiff below was tenant to the Right Hon. Archibald Lord Douglas of a messuage and premises, with the appurtenances, situate in the parish of Petersham, and he being desirous and intending to become a parishioner of the same parish, and to qualify himself to attend the vestry of and for such parish, as such parishioner, agreed with Lord Douglas to pay the taxes of and for the said house, which he so inhabited as tenant to Lord Douglas, and also that before

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and at the time of the committing of the grievances by the [* 356] defendant below in the 1st count * mentioned, the defendant below was the churchwarden of and for the parish of Petersham, and the plaintiff below, so being desirous and intending to attend such vestry of such parish as such parishioner, had thereupon, by his certain note in writing, given notice to the defendant below of his agreement with Lord Douglas, yet the defendant below, well knowing the premises, but greatly envying the happy state and condition of the plaintiff below, and contriving, and wickedly and maliciously intending to injure him in his said good name, fame, and credit, and to bring him into public scandal, infamy, and disgrace with and amongst all his neighbours, and other good and worthy subjects of this kingdom and to cause it to be suspected and believed by those neighbours and subjects, that he had been, and was guilty of the offences and misconduct thereinafter mentioned to have been charged upon and imputed to him, and to vex, harass, and oppress him, at Petersham aforesaid, falsely, wickedly, and maliciously did compose and publish, and

No. 1.Thorley v. Lord Kerry, 4 Taunt. 356, 357.

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cause and procure to be published of and concerning him, and concerning such agreement with Lord Douglas, and concerning the said note in writing, a certain false, scandalous, malicious, and defamatory libel in the form of a letter to the plaintiff below, containing, amongst other things, the false, scandalous, malicious, and defamatory and libellous matter following (accompanied with the following amongst other innuendoes), that is to say, My Lord, I conceive, as churchwarden (meaning as churchwarden of the parish of Petersham), I have nothing to say to any private agreement with Lord Douglas and yourself; your note (meaning the note sent to the defendant below by the plaintiff below), and the manner it was conveyed to me, shows your lordship still possesses that perturbed spirit which I had hoped for your own sake, after the composition and publishing of the scurrilous address of the 26th August,* would have been at rest. I [* 357] had before read the virulent, disrespectful, and ungentlemanlike letters to the Rev. Mr. Marsham: I sincerely pity the man (meaning the plaintiff below) that can so far forget what is due, not only to himself, but to others, who, under the cloak of religious and spiritual reform, hypocritically, and with the grossest impurity, deals out his malice, uncharitableness, and falsehoods. N. B. It was my intention never to have held or had communication with a writer of anonymous letters, (meaning that the plaintiff below, was a writer of anonymous letters), but it appears I cannot now avoid it" (thereby meaning that the plaintiff below had been and was guilty of hypocrisy and dishonourable conduct). There were other counts setting out parts only of the same letter: and the plaintiff below concluded by averring that by means of the committing of the grievances by the defendant below, the plaintiff below had been and was greatly injured in his good name, fame, and credit, and brought into public scandal, infamy, and disgrace, with and amongst all his neighbours and other good and worthy subjects of this realm, insomuch that divers of those neighbours and subjects, to whom the innocence, candour, truth, integrity, reverence and respect of the religion of the plaintiff below was unknown, had, on occasion of the committing of the said several grievances by the defendant below, from thence hitherto suspected and believed, and still did suspect and believe the plaintiff below to have been guilty of the offences and improper conduct imputed to him as aforesaid, and to have been, and still to be guilty of hypocrisy,

No. 1.-Thorley v. Lord Kerry, 4 Taunt. 357–359.

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malice, uncharitableness, and falsehood; and had, by reason of the committing of the several grievances by the defendant below, from thence hitherto, and still did refuse to have any acquaintance, intercourse, or discourse with the plaintiff below, as they were before used and accustomed to have, and otherwise would have had. And the plaintiff below had been and was by [* 358] means of the premises otherwise greatly injured, to wit, in the parish of Petersham, to his damage of £2000. Upon not guilty pleaded, the cause was tried at the Surry 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 would be maintainable, and he denied that 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 disorder; 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 Ro. Ab., 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, Cro. El. 403. "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, Anderson, 119. The words, "he is a vermin in the commonwealth, a

false and corrupt man, an hypocrite in the church of God, a [* 359] 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.

No. 1.Thorley v. Lord Kerry, 4 Taunt. 359, 360.

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. Comyn, in his Dig., Libel, A. 3, when he cites Fitzgibb. 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 distinction 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, indeed, Hardr. 470, 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 publishing 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 barrister-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 profession 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 [* 360] v. Delany, Fitzg. 254, 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. Horne, 3 Wils. 186, it is held that even words imputing a crime are not actionable unless the punishment be infamous. Savile v. Jardine, 2 H. Bl. 531 (3 R. R. 502), it was held that the word " swindler" when spoken was not actionable, and the distinction was there, indeed, assumed, and the case is thereupon argued to be reconcilable with J'Anson v. Stuart (post,