to have laid the particular words spoken, Com. Dig., Action on the Case for Defamation, (G. 6), and that for this defect the Court after verdict would arrest the judgment. And for a like defect in Hale v. Cranfield, Cro. Eliz. 645, after verdict, judgment having been entered for the plaintiff without the privity of the Court, the Court commanded that the roll should be amended. Also in Newton v. Stubbs, 2 Show. 435; 3 Mod. 71, which was since the stat. of jeofails, 16 & 17 Car. II. c. 8, the words being laid ad effectum sequentem, the Court for that very reason after verdict stayed the judgment. And though the report in Show. adds a quære, yet it appears that it was moved afterwards, and again judgment given for the defendant. Cur. adv. vult.

*Lord ELLENBOROUGH, C. J., on this day delivered the [* 113] judgment of the Court.

This is an action of slander, which was tried at the last assizes for the county of Devon. On not guilty pleaded, a general verdict was found for the plaintiff on all the counts of the declaration, with 40s. damages. A motion has been made in arrest of judgment, on an objection to the last count, as to which the declaration is as follows: the plaintiff states himself to be a baker, never to have been suspected of insolvency, and to have carried on his business with profit; that the defendant, contriving to injure him, and to make it be believed that he was in bad and insolvent circumstances, and unable to pay his just debts, in a certain discourse which he held in the presence and hearing of certain subjects, at the time and place mentioned in the declaration, in the presence and hearing of the same subjects, falsely and maliciously charged and asserted, and accused the said plaintiff of then and there being in bad and insolvent circumstances, by which the plaintiff is injured in his said business, has sustained loss generally, and has also lost one customer particularly named. The objection is, that in a count for slander by words, the words themselves should be set out, in order that the defendant may know the certainty of the charge and may be able to shape his defence, either on the general issue or by plea of justification accordingly, and that this defect is not cured by verdict. On the other hand, it is said that this is no great inconvenience to the defendant, as he might certainly have demurred to the declaration with success; but it is contended, that this defect is cured by the verdict; that the charge of having

No. 8. - Cook v. Cox, 3 M. & S. 114, 115.

[* 114] spoken words injuring the plaintiff in his trade is *well laid in substance, and though the particular words are not set out, yet it must be presumed, after verdict, that such words or acts were proved, as if specially alleged would have supported that charge; otherwise the verdict could not have passed for the plaintiff. The first thing to consider is, what the allegation is, and by what evidence it might have been proved. The complaint is, that in a discourse held in the hearing of many, the defendant charged and asserted and accused the said plaintiff of being in bad and insolvent circumstances. The insertion of the word "asserted" is not very grammatical. This charge might certainly have been proved by evidence of words only, but if the words had not been actionable in their ordinary import, but only by reference to some act or gesticulation, such as holding up an empty purse, or the like, it would have been open to the plaintiff to have maintained this allegation, made in such terms, by evidence of acts giving a slanderous meaning to words which in themselves might import no slander. If the allegation had been, that he charged and accused the plaintiff of insolvency by word or act, the count would undoubtedly have been bad; and yet the same answer would apply, that one of the alternatives must have been proved, or the verdict could not have passed for the plaintiff, and that either mode of slander is actionable. As this count is expressed, it could not have been proved by evidence of a slander by acts alone not accompanied with words; but it might have been proved either by words alone, or by words coupled with acts. The allegation then amounts to this, that the defendant by words, or by words coupled with acts, slandered the plaintiff in his trade; and there

fore it is bad, and not cured by verdict, as a charge in the [*115]* alternative. But supposing it to be taken as a charge of

oral slander only, the weight of authorities is against the setting out words by their effect only. This count is equivalent to an allegation that the defendant used certain words to the effect of imputing insolvency to the plaintiff. The case of Newton v. Stubbs, 2 Show. 435, which was moved twice, and was settled after much debate, is an express authority that a count for using words to the effect following, &c., is bad after verdict: the Court there admit that it must be taken for granted that the defendant "spoke the sense of the words mentioned in the declaration," which, as no words were there set out, must mean that he spoke words to the

This case was de

sense and effect mentioned in the declaration. cided since the stat. of Car. II., though this does not seem to be a case within that statute. This doctrine is very much confirmed by the case of Zenobio v. Axtell (p. 87, ante), 6 T. R. 162 (3 R. R. 142), which was an action for a libel written in the French language, and "which said libel is, according to the purport and effect following, in the English language, that is to say," &c.: after judgment by default, the judgment was arrested on the objection that the paper, as written in the French language, should have been set out; Lord KENYON says, " that this objection must prevail is evident from the uniform current of precedents, in all of which the original is set forth;" and the judgment was arrested. It is true, that that was a case where the judgment was by default, and there are some çases where a defect is cured by a verdict, which is fatal on such a judgment; but that was not one of those defects: no evidence before the jury could have operated so as to supply the want of the allegation of the words in the original language. This case *also furnishes another objection to the count in the [*116] present case, that the allegation, as expressed in the count, might have been maintained by the proof of words in any language. Ten judges in Dr. Sacheverell's case, 5 State Trials, 828, delivered an unanimous opinion (no others being present) that "by the law of England and constant practice, in all prosecutions by indictment or information, for crimes or misdemeanors by writing or speaking, the particular words supposed to be criminal ought to be expressly specified in the indictment, or information." There seems to be no reason for any difference in this respect between civil and criminal cases, the action arises ex delicto. The words supposed to be used by Lord HARDWICKE in Nelson v. Dixie, Cas. temp. Hardw. 305, were merely thrown out at nisi prius, and not material to the point ruled by him in that cause; and they are evidently founded on a mistake, as there are no such precedents in Rastall as he supposes. Unless the very words are set out, by which the charge is conveyed, it is almost, if not entirely impossible to plead a recovery in one action in bar of a subsequent action for the same cause. Identity may be predicated with certainty of words, but not of the effect of them as produced upon the mind of a hearer. It has been said, that this is not like the case of a defective title, but is more analogous to that of a title defectively set out. If, however, the authorities cited are law, and they are supported by

more ancient ones, it is of the substance of a charge for slander by words that the words themselves should be set out with sufficient innuendoes and a sufficient explanation if required to make them. intelligible it is of the substance of a charge of slander of [*117] any sort that it should not be laid in the alternative. Upon the whole, we think that this count is so defective

:

in substance, that no intendment can be made, to supply its defects, from what can be presumed to have passed at the trial ; and consequently that the judgment must be arrested.

ENGLISH NOTES.

It is not enough to give the substance of the alleged libel or slander. Newton v. Stubbs, 3 Mod. 71; Wood v. Brown (1815), 6 Taunt. 169, 16 R. R. 597. In the last mentioned case, the plaintiff's declaration was that the defendant wrote something concerning the plaintiff "pur porting that the plaintiff's beer was of a bad quality and sold by deficient measure, and that his other liquors and the treatment of his guests were bad, &c." The Court gave judgment for the defendant. In Wood v. Adam (1830), 6 Bing. 481, the words complained of by the plaintiff as imputed to him by the defendant, were "That he had three or four cargoes of oranges on the way from Gravesend." The witnesses proved only that the defendant alleged the plaintiff to have given out that there were three or four ships coming up with fruit. The variance was held to be fatal. In Harris v. Warre (1879), 4 C. P. D. 125, 48 L. J. C. P. 310, 40 L. T. 429, 27 W. R. 461, Lord COLERIDGE decided that, in spite of Ord. XIX. rules 4 & 24, the precise words of the libel must be set out in the statement of claim.

In Reg. v. Bradlaugh (1878), 3 Q. B. D. 607, 48 L. J. M. C. 5, the defendant was found guilty upon an indictment for publishing an indecent libel in his book called the Fruits of Philosophy. The indecent passages were not set out in the indictment. The Court for Crown Cases quashed the conviction on the ground that the obscene passages charged were not set out. Now by section 7 of the Libel Law Amendment Act 1888, obscene passages need not be set out. It is sufficient if the book, newspaper, &c., is deposited in Court and the objectionable passages are clearly indicated.

If the slander was in the form of a question, the very question must be set out with an innuendo. It will not do to turn the question into a fact affirmed. Barnes v. Holloway (1799), 8 T. R. 150.

So if a libel is contained in two or more successive letters, and neither of them is complete without the others, all the letters must be set out. Solomon v. Lawson (1846), 8 Q. B. 823, 15 L. J. Q. B. 253.

The whole of a libellous article in a newspaper must be produced if the passages alleged to be libellous are not clear, or where the rest of the article would vary the meaning. Cartwright v. Wright (1822), 5 B. & Ald. 615, 24 R. R. 495; Buckingham v. Murray (1825), 2 C. & P. 46. But if the omitted parts would not vary the meaning, the omission is not fatal. Rutherford v. Evans (1830), 6 Bing. 451. There the libel charged the plaintiff with being the most artful scoundrel that ever existed, and with being insolvent, but the writer added that he had never disclosed the matter, nor ever would, except to the person whom he addressed. The declaration for libel omitted this addition. TINDAL, C., J., said, "We take the rule to be that if the omission of any part makes a material alteration in the sense of the part inserted, such omission is fatal. And if, in this case, the part of the letter which had been omitted had contained any qualification of the meaning of the part set out, or if any real substantial difference of construction would have arisen upon the whole of the letter when set out on the record, we should have held the omission of such part constituted a variance which might be taken advantage of by the defendant. But upon the consideration of the whole letter, it appears to us that the charge imputed by it remains precisely the same as that which is contained in the part set out." The omission was held to be immaterial.

In Rainy v. Bravo (1872), L. R., 4 P. C. 287, 27 L. T. 249, 20 W. R. 873, the defendant had, after the publication of a libel, but before the action was brought, destroyed the letter containing the libel. It was held that secondary evidence of the contents of the letter by witnesses who heard it read was admissible, but that the actual words as laid in the declaration must be proved, and not the substance or impression the witnesses received of the words.

If the plaintiff cannot otherwise discover the exact words used, the defendant may be interrogated. Atkinson v. Fosbroke (1866), L. R., 1 Q. B. 628, 35 L. J. Q. B. 182, 14 L. T. 553, 14 W. R. 832. The interrogatory is allowed only after delivery of the statement of claim, except in special circumstances. Strange v. Dowdney (1874), 38 Justice of the Peace, 724, 756.

When a libel in a foreign language is translated the exact translation. may be given, and care should be taken not to translate actionable into non-actionable words, as happened in Ross v. Lawrence (1651), Styles, 263.

AMERICAN NOTES.

Mr. Townshend cites both principal cases to the doctrine that the complaint should set out the very words published, and cites Whitaker v. Freeman, 1 Devereux Law (Nor. Car.), 271; Lee v. Kane, 6 Gray (Mass.), 495; Taylor