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the said action, which had been so depending as aforesaid (h), and of FOR LIBELS, and concerning the evidence by him, the said A. B. given on the said trial, as such witness as aforesaid (h), a certain false, scandalous, malicious (i), and defamatory libel (j), containing, amongst other things (A), the false (2), scandalous, malicious, defamatory, and libellous matter following (m), of and concerning the said A. B. (n) and of and concerning the said action (0), and of and concerning the evidence by him, the said A. B. given on the said trial, as such witness as aforesaid, (that is to say,) (†) he (meaning (q) the said A. B) was forsworn on The libel and innuendos.

[308]

(h) See infra, n. o.

said trade, &c." 8 East. 427. 1 Saund.

(i) As to these words, ante, 306. 242.3. n. 3, 4. 2 Saund. 307, n. 1. 6 T. R.

n. y.

(j) As to what is a libel, see Com. Dig. and Bac. Ab. tit. Libels. 2 Wils. 403. Any false imputation, though merely tending to subject the party slandered to disgrace, ridicule, or contempt, when reduced into writing is actionable, such as the terms "swindler, villain, cheat, rogue, rascal, &c." See 1 Bos. and Pul. 331. 2 Wils. 404. Hardr. 470. 1 T. R. 748. 2 East. 430. Though it is otherwise in the case of verbal slander, id. ibid. 2 H. Bla. 532. 6 East. 471. (4) This allegation "inter alia" is sufficient. Vin. Ab. Libel. E. pl. 1.

() As to the words false and malicious, see ante, 306. n. y. and 1 Saund. 242. n. 2. 2 East. 436.

(m) This seems the proper mode of stating the libel, and it would be sufficient to prove that it was in substance correct, 2 Salk. 660–1. It would be im. proper to state that the libellous matter was "to the effect following." 2 Salk. 417. 11 Mod. 78 84. 95. Vin. Ab. tit. Libel, E. 3 Mod. 72. 2 Show. 436.

(n) This is necessary, unless the libel he stated to have been addressed to the plaintiff, and written in the second person, "You, &c." 1 Saund. 242. a. n. 3. Cro. Jac. 231. Com. Dig. Action on the Case for Defamation, G. 7.

(0) Whenever an inducement of extrinsic matter is necessary, (as to which, ante, 305. n. w.) it is equally necessary here to aver, that the libel related thereto, as that the libel or words were pubfished of the plaintiff, " in the way of his

'694. Com. Dig. Action on the Case for Defamation, G. 8. See the exceptions, Ld. Raym. 1480. 2 Lev. 62. and Cro. Car. 270.

(p) The libel may be set out either in words or in substance, 2 Salk. 660-1. 11 Mod. 78. 84. 95. If the libel, or words, were in a foreign language, it must be set forth in the original, 6 T. R. 162. and though a translation is usual, it is unnecessary, and frequently not advisable, 1 Saund. 242. n. 1.—In the case of a verbal slander, when in a foreign language, it must be averred that the hearers understood it, unless in the case of Welch words, and the action is brought in one of the courts of Great Sessions in Wales, when it will be intended the hearers understood the words, 1 Saund. 242. n. 1. and Com. Dig. Action Case for Defamation, G. 4, 6; but the plaintiff need not state the signification of any English words, though unusual, or peculiar to a particular county, Com, Dig. Action, Case for Defamation, G. 6. 1 Roll. Ab. 86. pl. 1. As to the statement of the words in general, id. ibid. Any materal variance will be fatal.

(q) As to the nature and use of an innuendo, 5 East. 467-9. 8 East. 427. See Rex. v. Horne, Cowp. 684–5-6. 1 Saund. 243. n. 4. 6 T. R. 691. 4 Co. 17. b. 2 H. Bla. 123. 2 B. and P. 287. 2 Salk. 513. Com. Dig. Action, Case for Defamation, G. 10. Bac. Ab. tit. Slander. S. 4. It is said, that an innuendo is only explanatory of some matter already expressed, it serves to point out where

FOR LIBELS. the trial (r), (meaning the said trial, and thereby then and there meaning, that he the said A. B. in giving his evidence as such witness, on the said trial as aforesaid, had committed wilful and corrupt perjury.)

Second count (3).

[309]

Third count

And the said A. B. further saith (t), that the said C. D. *further contriving and intending as aforesaid, heretofore, to wit, on, &c. aforesaid, at, &c. aforesaid, falsely, wickedly, and maliciously did publish a certain other false, scandalous, malicious, and defamatory libel, of and concerning the said A. B. and of and concerning the said action, which had been so depending as aforesaid (u), and of and concerning the evidence by him, the said A. B. given on the said trial as such witness as aforesaid, containing, amongst other things, the false, scandalous, malicious, defamatory, and libellous matter following, of and concerning the said A. B. and of and concerning the said action, and of and concerning the evidence given by him the said A. B. on the said trial, as such witness as aforesaid, that is to say, [vary the statement of the words and innuendos as may be advisable, under the particular circumstances of cach case.]

And the said A. B. further saith, that the said C. D. further confor a libel, con- triving and intending as aforesaid, afterwards, to wit, on, &c. aforetaining a direct charge of per- said, at, &c. aforesaid, falsely, wickedly, maliciously, wrongfully, and jury or other crime (w).

there is precedent matter, but never
for a new charge; it may apply what is
already expressed, but cannot add or
enlarge, or change the sense of the
previous words. See 1 Saund. 243. n. 4.
5 East. 467-9. 471. 473. where the na-
ture of an innuendo is fully explained,
and see 9 East. 93.

(7) If distinct passages are set out
in the same count, see the mode, 1
Campb. 352.

(s) If there be any doubt either as to
the precise terms of the libel, or as to
the evidence of the defendant's inten-
tion in the different parts of it, it is ad-
visable to insert different counts, vary
ing the statement of the libel and in-
nuendos according to the supposed
facts, and the evidence which it is ex-
pected may be adduced in support of
them.

(t) If the second count commenca
“And whereas also," &c. it will never-
theless be sufficient, 2 Lev. 193. 3
Lev. 338.

(u) Though the second count may
refer to matter stated in the first, or

the inducement thereto, (see 2 H. Bla. 131. 2 Wils. 114-5. Cro. Cir. Ass. 76. Cro. Eliz. 240. 2 Lev. 193.) yet it is necessary when the libel is not actionable in itself, as stated in the second or subsequent count, that the inducement, ante, 305. n. w. should extend to such counts, and that it be averred that the libel was published, or the words uttered, with reference to the matter stated in such inducement.

(w) If there be any direct charge of perjury, or of any other offence obviously actionable, without any inducement or explanation, one or more counts should be inserted in the de. claration as above, in order to avoid the necessity of proving the matter stated in the inducement, and in such case it should be merely stated, that the libel was published, or the colloquium was had of and concerning the plaintiff, generally, without any allegation that the same related to the action, or to the examination of the plaintiff as a witness, as in the preceding counts.

[310]

unjustly, did publish, and cause and procure to be published, a certain FOR LIBELS. other false, scandalous, malicious, and defamatory libel, of and concerning the said A. B. containing, amongst other things, certain other false, scandalous, malicious, defamatory, and libellous matters, of and concerning the said A. B. as follows, that is to say, he (meaning the said A. B.) *is perjured. By means of the committing of which said several griev- General dam ances by the said C. D. as aforesaid, he the said A. B. hath been and age (x). is greatly injured in his said 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 and integrity of the said A. B. in the premises were unknown, have on occasion of the committing of the said grievances by the said C. D. as aforesaid, from thence hitherto suspected and believed, and still do suspect and believe the said A. B. to have been, and to be a . person guilty of perjury, and have, by reason of the committing of the said grievances by the said C. D. as aforesaid, from thence hitherto wholly refused, and still do refuse to have any transaction, acquaintance, or discourse with him the said A B. as they were before used and accustomed to have, and otherwise would have had. And also Special dam, by reason thereof one E. F. who before, and at the time of the comage (y). mitting of the said grievances, was about to retain and employ, and would otherwise have retained and employed the said A. B. as his servant, for certain wages and reward to be therefore paid to him the said A. B. afterwards, to wit, on the day and year aforesaid, at, &c. afore

[311]

(x) This statement of general dam- ken, 8 East. 3. and it should seem, that age is not traversable.

(y) As to the statement of special damage, see vol. i. Index. tit. Damages. Com. Dig. Action Case for Defamation, G. 11. When the libel, or verbal slander is not in itself actionable, and the action is sustainable merely in respect of special damage, the declaration would be defective, if such damage were not correctly stated, 1 Saund. 243. n. 5. but if the libel or words be of themselves actionable, the plaintiff may recover, though no special damage be stated or proved; id. ibid. 3 Esp. 133. In either case, however, the plaintiff cannot give evidence of any special damage, unless it be stated in the declaration. Bul. N. P. 7. 1 Stra. 666. 1 Saund. 243 n. 5. 3 Esp. R. 134. The special damage must be the legal and natural consequence of the words spo

VOL. II.

if the plaintiff might have his action
over against the third person in re-
spect of his refusal to complete a con-
tract, &c. which he had entered into
with the plaintiff, the damage is not
sufficient; therefore care must be ta-
ken in the statement of the damage. 2
B. & P. 289. 3 B. & P. 272. The spe-
cial damage must be particularly speci-
fied in the declaration; therefore in a
declaration by a victualler, for calling
his wife whore, whereby several cus-
tomers left off dealing with him, with-
out naming any one in particular; this
was held not to be a sufficient statement
of special damage. Bul. N. P.7.1 Saund.
243. c. n. 5. 8 T. R. 130. 1 Roll. Ab. 58.
2 B. & P. 288-9. Sir W. Jones, 196,
Loss of visiting of certain specified
friends is sufficient damage, and see
how to state it, 1 Taunt. 39.
2 G

FOR LIBELS. said, wholly refused to retain and employ the said A. B. in the service and employ of him the said E. F. and the said A. B. hath from thence hitherto remained and continued, and still is wholly out of employ; and the said A. B. hath been, and is, by means of the premises, otherwise greatly injured, to wit, at, &c. aforesaid. To the damage, &c. [Conclusion as ante, 287.]

FOR VERBAL

SLANDER.

For a verbal

jury-First count, for words spoken to the plaintiff (2).

[The declaration in an action for VERBAL SLANDER, may be framed as the last precedent, as far as the †, page 306. and to which prececharge of per- dent, and the notes, the reader is referred. The greater part of the rules stated in those notes, namely, with respect to the general inducement of the plaintiff's good character—his innocence of the particular charge-the general consequences of such good character-the necessity for the statement of a special inducement of extrinsic matter, and of the defendant's malicious intention, are for the most part applicable to declarations for VERBAL slander, and will explain the points to be attended to in the formation of such declaration. From the † proceed as follows in a certain discourse which he the said C. D. then and there had with the said A. B. of and concerning him the said A. B. (a) in [312] the presence and hearing (6) of divers good and worthy subjects of our lord the now king, then and there (c) in the presence and hearing (d) of the said last-mentioned subjects, falsely and maliciously (e) spoke and published to (ƒ) and of and concerning the said A. B. (g) [and if the words be actionable only with reference to the inducement of some

(z) See the precedents of declarations for libels, and for words referred to, 8 Wentw. Index, page iv. to xii.

(a) The statement in this place of the colloquium, "of and concerning the plaintiff," will not in general dispense with the necessity for the subsequent statement, that the slanderous words were of and concerning the plaintiff. 1 Saund. 242. a. n. 3. 2 Saund. 307. n. 1.

(b) As to the statement of a publication of a libel, &c. ante, 306. and infra, note d.

"hearing" also; Cro. Eliz. 486. Nov. 57. Cro. Jac. 39 Cro. Car. 199.

(e) As to the statement of the defendant's malicious intention, ante, 306. ny; the declaration, may be either that the defendant "falsely spoke" the words, or that he spoke "the false words;” 1 Keb. 273.

(f) See post. note k.

(g) These words are very material. 1 Saund. 242. a. ante, 307. and when the words are actionable only in respect of the slander affecting the plaintiff in

(c) Neither the time nor the place the way of his trade, &c. or with reare material,

(d) As to the statement of the pub. lication, ante, 306, and 1 Saund. 242. n. 1. Com. Dig. Action Defamation, G. 4. -The statement that the words were spoken in the "presence," of divers persons, is sufficient, without stating the

ference to some prior inducement in the declaration, it must be alleged that they were spoken "of and concerning” such trade, &c. 2 Saund. 307. a. n. 1. Com. Dig. Action Case for Defamation, G, 3. 8 East. 427.

SLANDER.

extrinsic matter, say," of and concerning" such matter; see ante, 307. FOR VERBAL and 2 Saund. 307. a. n. 1.] these (h) false (i), scandalous, malicious, and defamatory words following, that is to say, You (k) (meaning (1) the said A. B.) are perjured.

[*313]

*And afterwards (n), to wit, on, &c. aforesaid, at, &c. aforesaid, in Second count, a certain other discourse which the said C. D. then and there had, for words of the plaintiff in the presence and hearing of one E. F. (o) and of divers other good (m). and worthy subjects of this realm, he the said C. D. further contriving and intending as aforesaid, then and there in the presence and hearing of the said last-mentioned subjects, falsely and maliciously spoke and published () of and concerning the said A. B. [and if the words be actionable only with reference to the inducement of some extrinsic mat

(h) Verbal slander should be stated in this manner, and it would be improper to state that the words were "in substance and to the effect following." Rep. T. Hardw. 306. 11 Mod. 78 84, 95. 2 Salk. 660. Com. Dig. Action Defamation, G. 6. Vin. Ab. tit. Libel, E. These words, "vel consimilia," would be too uncertain; Cro. Eliz. 645.

(i) This allegation is a sufficient averment of malice, ante, 306. n. y. 1 Saund. 242. a. n. 2. 1 East. 563.

(k) Proof of words spoken in the third person, will not support a declaration for words spoken in the second, and vice versa; 4 T. R. 217. Bul. N. P. 5. [8 Johns. Rep. 75.] Sed vide Rep. T. H. 306. [Vide etiam 1 Binney 395 n.]— Nor will words spoken by way of interrogation, support a charge of words spoken affirmatively. 8 T. R. 150. The plaintiff need not prove all the words laid, 2 East. 438. acc. Willes. 444 semb. cont. And the addition or omission of a word, will not, in the case of verbal slander, be material, unless it alter the sense, B. N. P. 6. and it is sufficient for the plaintiff to prove the words to have been spoken in substance, as stated, and a variation in the order of the words will not vitiate, Bac. Ab. tit. Slander, S. 1. Rep. T. Hardw. 305-6. and Com. Dig. Action Defamation, G. 6.; and proof of words equivalent would suffice, 2 East. 438. [It has been held that a declaration charging that the defendant spoke certain words, in sub

stance as follows, was good. 1 Binney 393.] Though some of the words spoken may not be actionable, yet if they be spoken at the same time as those which are actionable, they may all be stated in one count. 10 Co. 131. a. 2 Saund. 307. a. n. 1. 3 Wils. 185. Dyer. 75. a. But if words which are not actionable, be stated by themselves in a distinct count, and entire damages be given, judgment will be arrested, id. ibid. It has been held that words not stated in the declaration, may, though actionable in themselves, be given in evidence, in aggravation of damages. Peake, C. N. P. 125 22. 166. Bul. N. P. 7.-1 Campb. 48, 9.

(1) As to the nature and use of the innuendo, ante, 308. n. q. and 1 Saund. 243. n. 4.

(m) See the notes to the preceding count, which are in general applicable, and note k.

(n) The words, " And whereas also," would not be demurrable, ante, 308.

n. t.

(0) It is said, that if the words are laid to be spoken before E. F. and others, it is sufficient to prove that they were spoken in the presence of others only. Bul. Ni Pri. 6.

(p) The omission of the statement of the publication of the words in a second, or subsequent count, may be aided by the statement of it in the first, 2 Lev. 193, 2 Wils. 114. ante, 309, n. u.

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