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No. 1. — Thorley v. Lord Kerry.- Notes.
Some slanders are however actionable per se, that is, without proof of special damage. For instance, accusing a person of a criminal offence is actionable per se. The offence imputed must be one which is punishable with imprisonment and not merely with fine. It is not further necessary that the offence should be indictable. It may be capable of being dealt with in a Court of Summary Jurisdiction. Webb v. Beavan (1883), 11 Q. B. D. 609, 52 L. J. Q. B. 544, 49 L. T. 201.
Charging a person with the commission of forgery, Baal v. Baggerley (1632), Cro. Car. 326; Jones v. Herne (K. B. 1759), 2 Wils. 87; or of burglary, Somers v. House (1694), Holt, 39; or of murder, Button v. Heyward (1722), 8 Mod. 24; or of perjury, Roberts v. Camden (1807), 9 East, 93, 9 R. R. 513; or of larceny, Tomlinson v. Brittlebank (1833), 4 B. & Ad. 630, 1 N. & M. 455; is a slander actionable per se. So is also a general accusation of crime, Tempest v. Chambers (1815), 1 Starkie, 67; Francis v. Roose (1838), 3 M. & W. 191, 1 H. & H. 36; Webb v. Beavan (supra). But if a word like thief, swindler, murderer, forgerer, &c., is used as a term of vulgar abuse and without any intention of imputing a crime, an action for slander does not lie without proof of special damage, or unless the word is in writing. Barnett v. Allen (1858), 3 H. & N. 376, 27 L. J. Ex. 412.
Saying of a person that he is suffering from a contagious disease is a slander actionable per se ; for such an accusation may secure the expulsion of the person from the society of his fellows. For instance, saying that A. is suffering from leprosy, Taylor v. Perkins (1607), Cro. Jac. 144; or from the plague, Villars v. Monsey (1769), 2 Wils. 403; or from a venereal disease, Bloodworth v. Gray (1844), 7 M. & G. 334, gives A. a right of suing for slander without proving any damage. Small-pox has been held not to be a contagious disease for this purpose. James v. Rutlech (1599), 4 Co. Rep. 176.
Saying something of a person which is calculated to injure or pre. judice him in his trade, profession, or business is another species of slander actionable per se. "There is a distinction between that which is actionable in the case of offices of Honour or Credit as compared with the case of an office of Profit." Per Lord HERSCHELL in Alexander v. Jenkins (1892), 1892, 1 Q. B. 797, at p. 801 (61 L. J. Q. B. 634, 66 L. T.391, 40 W. R. 546). “In offices of profit, words that impute either defect of understanding, of ability, or integrity, are actionable; but in those of credit, words that impute only want of ability are not actionable; as of a justice of the peace. • He is a Justice of the Peace. He is an ass, and a beetle headed Justice. Ratio est, because a man cannot help his want of ability, as he may his want of honesty; otherwise, when words impute dishonesty or corruption, as, in this case, where
the office is one of credit, and the party charged with inclinations and principles which show that he is unfit and ought to be removed, which is a disgrace.” Per Curiam in How v. Prinn (1702), 2 Salk, at p. 694. The judgment for the plaintiff was affirmed by the House of Lords. 7 Mod. 113, 1 Bro. P. C. 97.
To impute insincerity to a member of parliament is not actionable without proof of special damage. Onslow v. Horne (1771), 3 Wils. 177, 2 W. Bl. 750.
To accuse a beneficed clergyman of preaching false doctrine, Dr. Sibthorp's Case (1628), W. Jones, 366; or of immorality, Evans v. Gwyn (1844), 5 Q. B. 844; Gallwey v. Marshall (1853), 9 Ex. 299, 23 L. J. Ex. 78; Highmore v. Countess of Harrington (1857), 3 C. B. (X. S.) 142; or of misappropriation of the sacrament money, Highmore v. Countess of Harrington, supra, is actionable, for it is likely to procure the clergyman's removal from office. But merely to accuse him of fraud, Pemberton v. Colls (1847), 10 Q. B. 461, 16 L. J. Q. B. 403; or of intemperance, Cucks v. Starre (1633), Cro. Car. 285, is not actionable without proof of special damage. If a clergyman is not beneficed, immorality &c., imputed to him is not slander actionable per se. Hartley v. Herring (1798), 8 T. R. 130, 4 R. R. 614; Hopwood v. Thorn (1850), 8 C. B. 293, 19 L. J. C. P. 94.
Again to say of a doctor that he is a quack, Allan v. Eaton, 1 Roll. Abr. 54 ; or professionally ignorant, Collier v. Simpson (1831), 5 C. & P. 73; or negligent in the treatment of his patients, Edsall v. Russell (1843), 4 Man. & Gr. 1090, 5 Scott N. R. 801, 2 Dowl. (N. S.) 641, 12 L. J. C. P. 4; or unskilful, Southee v. Denny (1848), 1 Ex. 196, 17 L. J. Ex. 151, is calculated to prejudice him in his practice, and therefore actionable without proof of special damage.
So, to speak of a solicitor that he has betrayed the secrets of his clients, Martyn v. Burlings (1597), Cro. Eliz. 589; or cheated in his profession, Jenkins v. Smith (1621), Cro. Jac. 586; or that he is ignorant of law, Day v. Butler (1770), 3 Wils. 59; or that he has acted in an unprofessional way, Phillips v. Jansen (1797), 2 Esp. 624, is a slander actionable per se; but not an accusation of cheating persons who are not professionally connected with a solicitor. Doyley v. Roberts (1837), 3 Bing. N. C. 835.
Similarly, to accuse a barrister of ignorance of law, Bankes v. Allen, 1 Roll. Abr. 54; or of deceiving his clients, Snag v. Gray, 1 Roll. Abr. 57; or of giving bad advice, King v. Lake (1672), 2 Vent. 28, is actionable without proof of special damage.
To accuse a justice of the peace of corruption, Caesar v. Curseny (1593), Cro. Eliz. 305; Beamond v. Hastings (1610), Cro. Jac. 240; Masham v. Bridges (1632), Cro. Car. 223; or of dishonourable or disNo. 1. — Thorley v. Lord Kerry. — Notes.
graceful conduct, Harper v. Beaumont (1605), Cro. Jac. 56, is actionable per se; but not to accuse him of mere stupidity. Bell v. Neal (1662), 1 Levinz, 22.
Unworthiness or cheating in office imputed to a clerk of a city company, Wright v. Moorhouse (1594), Cro. Eliz. 358; or to a churchwarden, Strode v. Holmes (1651), Styles, 338, Jackson v. Adams (1855), 2 Bing. N. C. 402; or to an officer of the Court of Justice, Stanley v. Boswell (1598), 1 Roll. Abr. 559; Moor v. Foster (1606), Cro. Jac. 65; or to a constable, Taylor v. Howe (1601), Cro. Eliz. 861, is actionable per se.
A tradesman accused of adulteration of goods, Jesson v. Hayes (1636), Roll. Abr. 63: or of being in financial difficulties, Barnes v. Holloway (1799), 8 T. R. 150, Whittington v. Gladwyn (1825), 5 B. & C. 180, 2 C. & P. 146; Brown v. Smith (1853), 13 C. B. 596, 22 L. J. C. P. 151; or of insolvency, Robinson v. Marchant (1845), 7 Q. B. 918, 15 L. J. Q. B. 136; or of dishonesty in the conduct of his business, Thomas v. Jackson (1825), 3 Bing. 104; or of using false weights or measures, Griffiths v. Lewis (1846), 7 Q. B. 61, 15 L. J. Q. B. 249, may sue for slander without proving special damages.
Incapacity attributed to a land agent, London v. Eastgate, 2 Roll. Abr. 72; or to a veterinary surgeon, Hirst v. Goodwin (1862), 3 F. & F. 257; or to a schoolmaster, Hume v. Marshall (1878), 42 J. P. 136; or to an architect, Botterill v. Whytehead (1879), 41 L. T. 588, is actionable per se.
In Alexander v. Jenkins (1892), 1892, 1 Q. B. 797, 61 L. J.Q. B. 634, 66 L. T. 391, 40 W. R. 546, the plaintiff was elected the town councillor of a borough. The defendant said of him, “He is never sober, and is not a fit man for the Council. On the night of the election he was so drunk that he had to be carried home.” It was held that the words were not actionable, for the office was not one of profit, and the charge, if true, would not have resulted in his dismissal from the office. The result would have been different had the accusation been of misconduct in office, and not merely of unfitness for office.
Words imputing dishonesty or malversation in a public office of trust are actionable per se, though the office be not of profit. Booth v. Arnold (C. A. 1895), 1895, 1 Q. B. 571, 64 L. J. Q. B. 443, 72 L. T. 310, 43 W. R. 360.
Imputation of unchastity to a woman or girl is by the Slander of Women Act 1891, (54 & 55 Vict. c. 51) rendered actionable per se.
The principal case is cited in Townshend on Slander and Libel, and its doctrine adopted on the ground that written words have “a greater capacity
for injury than is attributed to language spoken” (sect. 18). This distinction is recognized in Newell on Defamation, sect. 16, “when the words by being written can no longer be considered as the results of transitory passion or venial levity, but therein gain the shape and efficacy of a mischievous malignity. The act of writing is in itself an act of deliberation and the instrument of a permanent mischief.”
The principal case is cited in Tillson v. Robbins, 68 Maine, 295; 28 Am. Rep. 50, where it is said: “Much which if only spoken might be passed by as idle blackguardism, doing no discredit save to him who utters it, when invested with the dignity and malignity of print, is capable, by reason of its permanent character and wide dissemination, of inflicting serious injury." Citing McCorkle v. Binns, 5 Binney (Penn.), 340 ; 6 Am. Dec. 420; Dexter v. Spear, Mason (U. S. Sup. Ct.), 115; Obaugh v. Finn, 4 Arkansas, 110; 37 Am. Dec. 773; Dunn v. Winters, 2 Humphreys (Tennessee), 512; Clark v. Binney, 2 Pickering (Mass.), 113; citing the principal case, Hillhouse v. Dunning, 6 Connecticut, 391; citing the principal case, Shelton v. Nance, 7 B. Monroe (Kentucky), 128; Mayrant v. Richardson, 1 Nott & McCord (So. Car.), 347; Colby v. Reynolds, 6 Vermont, 489; 27 Am. Dec. 574; Steele v. Southwick, 9 Johnson (New York), 214; Dole v. Lyon, 10 Johnson (New York), 449.
In Colby v. Reynolds, supra, the Court said: “A distinction has long been known and recognized between verbal and written slander. Words, when committed to writing and published, are considered as libellous, which if only spoken, would not subject the person speaking to any action. Perhaps it is to be regretted that any distinction was ever made between oral and written slander, and if it was a new question, no distinction would now be made. The reasons which have been given for the distinction, have been questioned both by writers and Judges of eminence. It has been made, however, and has become a part of the law, and as such we must receive it. There can be no question but that a slander written and published evinces a more deliberate intention to injure, is calculated more extensively to circulate the accusation and to provoke the person accused to take the means of redress into his own hands, and thus to commit a breach of the peace, than mere oral slander, which is spoken and soon forgotten. The report in circulation in relation to the defendant, while it was a mere report, was confined to the neighborhood, and could not have been very extensively known. Whereas had it been published, as was the slander of which the plaintiff complains, it would have been known to every reader of the paper, and have circulated as extensively as the paper circulated, and have excited the curiosity of many who never had heard of the parties before.
“Words spoken must impute some crime so as to endanger the person to whom they relate, or they must impute to him something which would tend to exclude him from society, and lead one to avoid him. But a publication which renders the person ridiculous merely, and exposes him to contempt, which tends to render his situation in society uncomfortable and irksome, which reflects a moral turpitude on the party and holds him up as a dishonest and mischievous member of society, and describes him in a scurrilous and No. 1. — Thorley v. Lord Kerry. — Notes.
ignominious point of view, — which tends to impair his standing in society, as a man of rectitude and principle, or unfit for the society and intercourse of honorable and honest men, is considered as a libel.”
In a note to Clurk v. Binney, supra, the reporter (apparently) observes : “ This distinction between written and verbal slander has not the least foundation in principle," an opinion from which the present writer may be allowed to dissent — " although it seems firmly established by decisions both in England and in this country.” In Dole v. Lyon, supra, Chief Justice Kent pronounced “printed slander" “much more pernicious” than oral slander. In Obaugh v. Finn, supra, the Court said that the distinction “is too well established to be now questioned or departed from." “ The presumption that words are defamatory arises much more readily in cases of libel than in cases of slander.” Collins v. Desp. Pub. Co., 152 Pennsylvania State, 187 ; 34 Am. St. Rep. 636. See note, 15 Am. St. Rep. 333.
The principal case is extensively noticed and followed in Cooper v. Greeley, 1 Denio (New York), 362.
The principle under discussion has been held to justify actions of libel in the following peculiar cases : for calling a man a swine, Solverson v. Peterson, 64 Wisconsin, 198; 51 Am. Rep. 607; or a miserable fellow, Brown v. Remington, 7 Wisconsin, 462; or a rascal, Williams v. Karnes, 4 Humphreys (Ten. nessee), 9; or insane, Moore v. Francis, 121 New York, 199; 18 Am. St. Rep. 810; or an anarchist, Cerveny v. Chicago, &c. Co. 139 Illinois, 345; 13 Lawyers' Rep. Annotated, 864; or for charging a woman with neglecting her sick husband, Smith v. Smith, 73 Michigan, 445; 16 Am. St. Rep. 594; 3 Lawyers' Rep. Annotated, 52 ; or for charging a man with being threatened with a suit for breach of promise of marriage, Morey v. Morning J. Ass'n, 123 New York, 207; 20 Am. St. Rep. 730; or for charging that a woman said her mother acted like a cat, Stewart v. Swift S. Co., 76 Georgia, 280; 2 Am. St. Rep. 40. (In this last case the CHIEF JUSTICE said, “ It is rather difficult to read it without a sort of pity, which explodes in laughter, when the old woman is mewing like a cat and fixing to spring upon rats and mice.” So where a governor was charged with having pardoned his brother out of prison, State v. Brady, 44 Kansas, 435; 9 Lawyers' Rep. Annotated, 606; or an actor was charged with discourtesy. Williams v. Davenport, 42 Minnesota, 393; 18 Am. St. Rep. 519. So of a coarse and blotted imitation of the plaintiff's handwriting in a newspaper, expressing his views on the tariff. Belknap v. Ball, 83 Michigan, 583; 21 Am. St. Rep. 622.