had a horse or no." And in the subsequent case of Stamp v. White,* the defendant's wife said, "Thou art a thievish rogue, for thou hast stolen my fagots!" Although it was objected that the words were without meaning; since a married woman could not have property of her own, yet it was held, that the words were actionable; and it was to be understood according to common intendment, that the defendant charged the plaintiff with stealing her husband's fagots.

So where the defendant said, "These guineas are Mr. Bendish's (the plaintiff's,) and were given me to vote for him." It was urged, on motion in arrest of judgment, that the words are insensible; for that when the plaintiff has given money to the defendant, it cannot be the plaintiff's money; but judgment was given for the plaintiff.

The older cases, indeed, carried the doctrine of repugnancy to a very unreasonable extent; and the courts arrested judgments, not only on the ground that an actual inconsistency appeared on the face of the record, but even where no inconsistency appeared, because such might by possibility exist.

The rule, however, seems to be now established, that no inconsistency, or want of grammatical propriety, will prevent the words from being actionable, where the intention to charge the plaintiff with the commission of a crime plainly appears.(1)

II. The CRIMINAL QUALITY of the matter charged must appear with certainty.

*Cro. Jac. 600.

† 11 Mod. 174.

(1) Cited, recognised, and the rule said to be well established, in Walton v. Singleton.

This may appear,

1st. From the use of general terms of known legal import.

2dly. From circumstances explaining the meaning of terms otherwise doubtful, or innocent.

3dly. From the mere description of the circumstances constituting the offence.

1st. From the use of terms of known legal import.

It seems once to have been understood, that no charge was actionable, when conveyed in terms, which did not particularize the circumstances of the offence. So that to say a man was "a traitor,* or a thief," did not afford him a ground of action, unless he had sustained special damage from the words. And to such an extent was the nicety carried, that even in cases where the words did state some of the circumstances, it was held to be incumbent upon the plaintiff to prove that facts connected with the charge were partially true, in order to render it the more probable that he migh have been placed in jeopardy by the accusation. And this affords reason to suppose that, originally, the only ground of allowing such an action, without proof of special damage, was, the danger to which the party was exposed of a criminal prosecution, to which he could scarcely have been subjected by a bare general charge, unsupported by any facts or circumstances which might give it colour.

Thus, in the case of Jacob v. Mills. It was held, that for the words, "He hath poisoned J. S. and it shall cost me 100l. but I will hang him," no

*Bro. Action sur le cas. 27 H. 8. 11.

+ Cro. J. 331. 313. 1 Vent. 117.

action was maintainable, because the plaintiff' di not aver (and of course prove) that J. S. was dea at the time the words were spoken.

The defendant said, "Sir Thomas Holt struck his cook on the head with a cleaver, and cleaved hi head; the one part lay on the one shoulder, and ano ther part on the other." After verdict for the plain tiff, judgment was arrested, upon the ground that it did not appear that the cook was killed.

But in other cases, both prior and subsequent to the former, the same objection was overruled. In the case of Webb v. Poor,* the words were, "I will call him in question for poisoning my aunt, and I make no doubt to prove it." It was moved, in arrest of judgment, that the plaintiff had not averred that his aunt was poisoned; but the court would not allow the objection, saying, that the plaintiff's credit was impeached, whether she was poisoned or not. And the same point was ruled in Talbot v. Case,† where it was said, that the death of the person alleged to have been murdered would be intended, unless the contrary appeared. Still, however, it was held, that if it appeared that the person said to have been murdered was in fact living, no action could be maintained. The plaintiff showed in his declaration, that the defendant had a wife yet living; and that he said of the plaintiff, "Thou hast killed my wife; thou art a traitor !" and it was held that no action lay; and a distinction was taken between the case where the person stated to have been murdered was still alive, and where he was dead; that, the

*Cro. Eliz. 569.

↑ Cro. Eliz, 823. -. v. Gee, 4 Rep. 16. 9. Cro, Car. 489.

wife being alive, no action lies, although the defendant says that the plaintiff has murdered her; since it appears that no murder of her can have been committed, nor the plaintiff in any jeopardy: and so the words are vain, and no scandal or damage to the plaintiff.

To require the plaintiff to prove, that the party, with whose murder he is charged, is actually dead, would be highly unreasonable and inexpedient; since the slanderer might secure impunity by fixing either upon a fictitious person as the supposed victim of the murder, or upon some real person whose death the plaintiff might not be able to prove.

In the case of Snag v. Gee (cited by Sir E. Coke,* in his fourth report,) it appeared upon the record, that the wife, alleged to have been murdered, was still alive; and the action was held not to be maintainable, because the plaintiff was not put in jeopardy by the words.

It cannot, however, fairly be inferred from this, that the plaintiff is in all cases precluded from recovering, although the person alleged to have been murdered should be still alive; since the plaintiff's life may have been placed in jeopardy in consequence of the injurious report, though, in fact, at the time of pleading, or upon the trial, the defendant may be able to prove the person alleged to have been murdered to be still living. The words, if actionable without special damage, must be so immediately when spoken; and their actionable quality must then depend upon the fact, whether the hearers were aware that the person alleged to be mur

* 4 Rep. 16. 9.

dered was really alive; if they did not know th fact, then all the consequences (the probability which renders a charge of murder in any case ac tionable) may follow; since, unfortunately, sever: melancholy instances may be cited where an a cused person has suffered for the supposed murde. of one who survived him.

Should it, however, precisely appear, upon the plaintiff's own statement, that the person charged to have been murdered was alive when the words were spoken, perhaps it would be presumed that the hearers knew that fact.

The plaintiff declared that the defendant said of him, "He is a base gentleman, and had three or four children by A. S. his maid-servant; and after killed them or caused them to be killed; and then averred, that he never was guilty of any incontinency with A. S. nor any other, nor of any such felony or murder. After verdict for the plaintiff, it was objected, in arrest of judgment, that inasmuch as he had averred that he never was guilty of any incontinency with A. S. it was all one as if he had averred that he never had any child by A. S. and that if he had so averred, no action would lie; for then it would appear to the court, that there was no such thing in rerum natura as is supposed to have been killed. But it was adjudged for the plaintiff; because it was not specifically averred that he had no child by A. S. but only generally, that he was not incontinent with-her.

And the like degree of particularity has been required in other cases where felony has been charged.

* 1 Vin. Ab. 409. pl. 4. Poph. 187. Jo. 141. Lat. 159. Cart. 55. Comb. 132.