is an universal remedy, given for all perfonal wrongs and injuries without force; fo called because the plaintiff's whole cafe or caufe of complaint is fet forth at length in the original writ 2. For though in general there are methods prescribed and forms of actions previously settled, for redreffing those wrongs which moft ufually occur, and in which the very act itself is immediately prejudicial or injurious to the plaintiff's perfon or property, as battery, non-payment of debts, detaining one's goods, or the like; yet where [123] any special confequential damage arifes which could not be foreseen and provided for in the ordinary course of justice, the party injured is allowed, both by common law and the statute of Weftm. 2. c. 24. to bring a special action on his own cafe, by a writ formed according to the peculiar circumstances of his own particular grievance. For wherever the common law gives a right or prohibits an injury, it also gives a remedy by actions; and therefore, wherever a new injury is done, a new method of remedy must be pursued. And it is a settled diftinction, that where an act is done which is in itself an immediate injury to another's perfon or property, there the remedy is ufually by an action of trespass vi et armis: but where there is no act done, but only a culpable omiffion; or where the act is not immediately injurious, but only by consequence and collaterally; there no action of trefpafs vi et armis will lie, but an action on the fpecial cafe, for the damages confequent on fuch omiffion or act.

5. LASTLY; injuries affecting a man's reputation or good name are, first, by malicious, fcandalous, and flanderous.

words, tending to his damage and derogation. As if a man, maliciously and falfely utter any flander or false tale of another; which may either endanger him in law, by impeaching him of fome heinous crime, as to fay that a man hath poisoned another, or is perjured'; or which may exclude him from fociety, as to charge him with having an infectious difeafe; or which may impair or hurt his trade or livelyhood, as to call a tradefman a bankrupt, a phyfician a quack, or a lawyer a knave(3). Words fpoken in derogation of a peer, a judge, or other great officer of the realm, which are called fcandalum magnatum, are held to be ftill more heinous ; and, though they be fuch as would not be actionable in the case of a common perfon, yet when spoken in disgrace of such high and refpectable characters, they amount to an atrocious injury: which is redreffed by an action on the case founded on many

(3) When words, that are actionable in themselves if unexplained, are accompanied by qualifications and allufions, which prove that the meaning of them is fuch, that even if they were true, they would not subject the person of whom they are spoken to any punishment or penalty, they are not flanderous; as to fay a man is a thief because he has stolen a cat, the stealing of which is not a felony; or to charge a lady with theft or murder, where the accufation is intended as a compliment, and alludes only to the fafcinating or fatal influence of her beauty. There are only three diforders which the law deems it fcandalous to report that a perfon labours under, viz. the plague, the leprofy, and the lues ve Com, Dig. Act. Def. D. 28. These three maladies in ancient times were fo contagious and alarming that the person afflicted was obliged to be abandoned by his friends; and when the leprofy prevailed in this country, there was a peculiar writ de leprofo amovendo to remove a leper from fociety. The probability that this inconvenience may refult from fuch a charge being the principle which conftitutes the flander, it has agreeably thereto been decided that it is not actionable to say a person has had such a a diforder, the infection of which may long have been removed. 2 T. R. 473.

nerea.

antient ftatutes'; as well on behalf of the crown, to inflict the punishment of imprisonment on the flanderer, as on behalf of the party, to recover damages for the injury fuftained (4). Words alfo tending to scandalize a magistrate, or person in a public truft, are reputed more highly injurious than when spoken of a private man. It is faid, that formerly no actions were brought for words, unless the flander was such as (if true) would endanger the life of the object of it'. But, too great encouragement being given by this lenity to falfe and malicious flanderers, it is now held that for fcandalous words of the feveral fpecies before-mentioned, (that may endanger a man by fubjecting him to the penalties of the law, may exclude him from fociety, may impair his trade, or may affect a peer of the realm, a magiftrate, or one in public truft) an action on the cafe may be had, without proving any particular damage to have happened, but merely upon the probability that it might happen. But with regard to words that do not thus apparently, and upon the face of them, import fuch defamation as will of course be injurious, it is neceffary that the plaintiff should aver fome particular da❤ * Lord Raym. 1369. 12 Vent. 28.

iWeftm. 1. 3 Edw. I. c. 34. 2 Ric.

II. c. 5. 12 Ric, II. c. 11.

(4) This action or public profecution, for it partakes of both, for fcandalum magnatum is totally different from the action of flander in the case of common perfons. The fcandalum magnatum is reduced to no rule or certain definition, but it may be whatever the courts in their difcretion fhall judge to be derogatory to the high character of the perfon of whom it is fpoken; as it was held to be fcandalum magnatum to fay of a peer, "he was no more to be "valued than a dog;" which words would have been perfectly harmless if uttered of any inferior perfon. Ball. N. P. 4. This action is now feldom or never reforted to. By the two firit ftatutes upon which it is founded, (3 Ed. I. c. 34. and 2 R. II. ft. 2. c. 5.) the defendant may be imprifoned till he produces the first author of the fcandal, hence probably is the origin of the vulgar notion that a person who has propagated a flander may be compelled to give up his author,

mage

mage to have happened; which is called laying his action with a per quod. As if I fay that fuch a clergyman is a baftard, he cannot for this bring any action against me, unless he can fhew some special lofs by it; in which cafe he may bring his action against me, for saying he was a bastard, per quod he loft the presentation to fuch a living". In like manner to flander another man's title, by fpreading fuch injurious reports, as, if true, would deprive him of his eftate (as to call the issue in tail, or one who hath land by defcent, a bastard) is actionable, provided any special damage accrues to the proprietor thereby; as if he loses an opportunity of selling the land". But mere fcurrility, or opprobrious words, which neither in themselves import, nor are in fact attended with, any injurious effects, will not fupport an action. So fcandals, which concern matters merely spiritual, as to call a man heretic or adulterer, are cognizable only in the ecclefiastical court; unless any temporal damage enfues, which [125] may be a foundation for a per quod. Words of heat and pasfion, as to call a man rogue and rafcal, if productive of no ill confequence, and not of any of the dangerous fpecies before-mentioned, are not actionable: neither are words spoken in a friendly manner, as by way of advice, admonition, or concern, without any tincture or circumstance of ill will: for, in both these cases, they are not maliciously spoken, which is part of the derinition of flander? (5). Neither (as was former

(5) The words fcoundrel, rafcal, villain, knave, mifcreant, liar, fool, and fuch like general terms of fcurrility, may be used with impunity, and are part of the rights and privileges of the vulgar. To conflitute legal flander, the words muft impute a precife crime; hence it is actionable to fay a man is a highwayman, but it is not fo, to fay he is worse than a highwayman. G. Cooke, 160. 3 Wilf 184. This fubject has been fully difcuffed by C. J. De Grey, who lays down this pofition, "that there must be some certain or "probable temporal lofs or damage to make words actionable:

ly hinted) are any reflecting words made use of in legal proceedings, and pertinent to the cause in hand, a sufficient caufe of action for flander. Alfo if the defendant be able to justify, and prove the words to be true, no action will lie', even though special damage hath enfued: for then it is no flander or falfe tale. As if I can prove the tradesman a bankrupt, the physician a quack, the lawyer a knave, and the divine a heretic, this will deftroy their refpective actions: for $ 4 Rep. 13.

4 pag. 29.

Dyer. 285. Cro. Jac. 90.

"but to impute to a man the mere defect or want of moral virtue, "moral duties or obligations, which renders a man obnoxious to "mankind, is not actionable." And therefore he and the court determined, that the following declaration concerning a member of parliament at a county meeting, did not amount to a legal flander, viz. "As to inftructing our members to obtain redress, I am totally against that plan, for as to inftructing Mr. O. we might "as well inftruct the winds, and fhould he even promise his affistance, I should not expect him to give it us." 3 Wilj. 177.

66

A verbal charge of incontinence and proftitution against a woman of modefty and honour, is not a flander cognizable in any temporal court except in the city court, where the cause of action arifes within the jurifdiction of the city of London. See i vol. p. 76. n. 9.

No action can be maintained for words even attended with a fpecial damage, if they are spoken from friendship or justice to another, and not from malice towards the person who is the subject of them; as if upon an enquiry being made a master is obliged to give an unfavourable character of a discarded fervant. 1 T. R. 110.

The principal diftinctions between actions for words, which are actionable in themselves, and actions for words, which are not so without a fpecial damage, are thefe, viz. the first by 21 J. I. c. 16. must be brought within two years, and if the damages are under 40s. the plaintiff thall recover cofts only to the extent of the damages, but the latter may be brought at any time within fix years, and a verdict with any damages whatever will entitle the plaintiff to full cofts. Bull. N. P. 11. Seę Efpinaffe tit. Slander.

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