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PART IV.

of a person in respect of his profession, office, trade, or CHAPTER VI. Calling (provided it be not an unlawful one), and have a tendency to injure him in respect thereof, the law implying in such cases "actionable damage" without proof of any :(a) à fortiori, if the injurious imputation is conveyed by writing or printing, the defamation being in this case punishable criminally as well as by action.

Office one of honour only.

Any unfounded imputation against a person who is in the enjoyment of an office, either public or private, whether of honour, profit, or trust, which imports a charge of unfitness to administer the duties of that office, is a libel. (b)

If the office is merely one of honour, as that of justice of the peace, the oral imputation, according to the old authorities, (c) must be of want of integrity, or charge a criminal breach of duty an allegation of incompetency or want of ability is not of itself sufficient to ground an action of slander.

:

Where the defendant said of the plaintiff, a justice of the peace, "He is a fool, an ass, a beetle-headed justice," it was held by Foster, C.J., Wyndham and Twysden, JJ. (dissentiente Mallet, J.), that the words were not actionable, citing Briscoe v. Hollis (d) as a stronger case than this, and Hammond v. Kingsmill, (e) where for saying of a justice of the peace, "He is a debauched man, and unfit to be a justice," (f) it was adjudged that no action lay; and Twysden, J., said that words which sound in disability only are not actionable, except they are spoken of one who gains his living by that thing (profession) wherein the words do disable him. (g) It does not follow, however, that an action of libel would not lie in these cases, if the words, instead of being spoken, had been written or printed and published.

The reason for making the above curious distinction has been given by Lord Holt, C.J., thus:(h) "It has been adjudged that to call a justice of the peace blockhead, ass, &c., is not a slander for which action lies, because he was not accused of any corruption in his employment, or any ill design or principle; and it was not his fault that he was a blockhead, for he cannot be otherwise than his Maker made him; but if he had been a wise man, and wicked principles were charged upon him when he had not them, an action (a) See per Channell, B., Foulger v. Newcomb (L. Rep. 2 Ex. 330; 16 L. T. N. S. 596; 36 L. J. Ex. 169). (b) See Buller, N. P. 4, 5. (c) Bill v. Neal (1 Lev. 52); per Holt, C.J., How v. Prin (Holt, 652; 3 Salk. 694). (d) Cro. Jac. 58. (e) 7 Jac. 1. (f) This action, according to Twisden, J. (Kerle v. Osgood, 1 Vent. 50), was held not maintainable because spoken of the time past: if the words had been, "he is debauched," he said the action would lie.

(g) Bill v. Neal (ubi supra).

(h) How v. Prin (ubi supra).

PART IV.

would have lain; for though a man cannot be wiser, he may be honester than he is. If a person be in a place of profit, CHAPTER VI. and he is accused of insufficiency, he shall have remedy by action; 'tis otherwise if he be only in a place of honour; though even there, if he is charged with ill principles, and as disaffected to the Government, he shall have an action for such scandal to his reputation." In this case it was held actionable to say of the plaintiff, who was a justice of the peace and deputy-lieutenant of the county of Surrey, and a candidate for Parliament, that he was a Jacobite, and for bringing in the Prince of Wales and Popery to destroy the nation, &c.

The words "You are a rascal, a villain, and a liar," applied to a justice of the peace, were held actionable, "for though rascal and villain were uncertain, yet, being joined with liar, and spoken of a justice of peace, they did import a charge of acting corruptly and partially." And so were the words "He is a foresworn justice, and not fit to be a justice of peace; if I did see him, I would tell him so to his face." (a)

In one case (b) it was held actionable to say, "When thou wert justice, thou wert a bribing justice;" (c) in another, to say, "I have been often with Sir J. J. for justice, but could never get any at his hand, but injustice;"(d) in another to say, "Mr. S. covereth and hideth felonies, and is not worthy to be a justice of peace ;"(e) and in another case(f) it was said, "that where a man had been in an office of trust, to say that he behaved himself corruptly in it, as it imported great scandal, so it might prevent his coming in to that or the like office again, and therefore was actionable." But the authority of the two latter cases is much weakened by what De Grey, C.J., says in Onslow v. Horne:(g) "I know of no case where ever an action for words was grounded upon eventual damages which may possibly happen to a man in a future situation, notwithstanding what the Chief Justice throws out in 2 Vent. 266. . . . . I think the Chief Justice went too far." There is no doubt, however, that an action of libel would lie, if such an imputation as the above were written or printed and published.

(a) Kerle v. Osgood (1 Vent. 50).

(b) See Yelv. 153. The reason assigned for this decision is, "Car
coment il referre a chose passe, 'uncore il defame luy a touts jours en
l'opinion d'auters, et fait lui d'estre account unworthy a porter office
enapres."
(c) Aston v. Blagrave (Str. 617).

(d) Isham v. York (Crò. Car. 15).
Stuckley v. Bulhead (4 Rep. 16).
(f) Walden v. Mitchell (2 Vent. 266).

(g) 3 Wils. 188.

PART IV.

To say of a judge that a particular sentence pronounced CHAPTER VI. by him "was corruptly given" is actionable, () or that he was "a corrupt judge." (b)

rofessions, &c.

Imputations contained in a newspaper of partial and corrupt conduct on a person who occupied the office of mayor and justice of the peace for a borough are libellous, whether the public or private capacity of the person be regarded. (c)

It is laid down as a general rule by De Grey, C.J., in Onslow v. Horne, (d) "that words are actionable when spoken of one in an office of profit, which may probably occasion the loss of his office, or when spoken of persons touching their respective professions, trades, and business, and do or may probably tend to their damage;" or, as reported in Sir W. Blackstone's Reports (p. 753): "if the words may be of probable ill consequence to a person in a trade, a profession, or an office." The rule, as thus expressed, is, according to Bayley, B., (e) objectionable, the words " probably" and "probable" being too indefinite and loose, and-unless considered as equivalent to having a natural tendency to, and confined within the limits of showing the want of some necessary qualification, or some misconduct in the office-not warranted by the authorities. Every authority," he says, "which I have been able to find, either shows the want of some general requisite, as honesty, capacity, fidelity, &c., or connects the imputation with the plaintiff's office, trade, or business."

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The law is the same in the case of imputations made against a member of any of the professions, having a tendency to injure him in respect thereof, whether the imputation be want of integrity or want of ability.

Thus it has been held actionable to say of a physician, "Thou art a drunken fool and an ass; thou wert never scholar, and art not worthy to speak to a scholar, and that I will prove and justify;"() or to say of a surgeon and accoucher, "I wonder you had him to attend you. Do you know him? He is not an apothecary; he has not passed any examination; he is a bad character; none of the medical men here will meet him. Several have died that he has attended, and there have been inquests held on them."(g) The court were of opinion, though it was not necessary to (a) Cæsar v. Curseny (Cro. Eliz. 305).

(b) See 4 Rep. 16 (Birchley's case).

(c) See Alderson, B., Parmiter v. Coupland (6 M. & W. 109).
(d) 3 Wils. 186.
(e) Lumby v. Allday (1 Cr. & Jer. 305).

(f) Cawdry v. Highley (Cro. Car. 270; 1 Roll. Abr. 54)
(g) Southee v. Denny (1 Exch. 196).

so decide, that the words, "he is a bad character; none of the medical men here will meet him," were of themselves actionable. In the case of a libel they would no doubt be held to be so.

But it was held to be no libel to publish in a medical paper (the Lancet) of a physician that he had met homoeopathists in consultation, though it was alleged that, in the opinion of the profession, meeting homoeopathists in consultation was improper and against etiquette. (a) It was held actionable to say of a barrister, "He is a dunce, and will get little by the law; "(b) or, "Thou art no lawyer, thou canst not make a lease; thou hast that degree without desert; they are fools that come to thee for law;" (c) or, "Thou art a daffidowndilly," with an averment that the words signify that he is an "ambidexter."(d)

So to say of an attorney that he is no lawyer was held to be actionable, such a statement, meaning that he does not understand his business, being a great reflection him.(e)

on

It has also been held actionable to say of an attorney, "Thou art a false knave, a cozening knave, and hast got all that thou hast by cozenage; and thou has cozened all those that have dealt with thee;"(/) or that he is a "common barrator." (g)

A publication headed, "An honest lawyer," and stating that the plaintiff (an attorney) had been reprimanded by one of the Masters of the Queen's Bench, " for what is called sharp practice in his profession," was held to be a libel, whether the plaintiff had his name still on the roll of attorneys or not.(h)

A libel may be contained in the heading to the report of a case in one of the Superior Courts. Thus it was ruled by Byles, J., at Nisi Prius, that proof that an attorney treated his client badly in a particular case would not justify a heading to the report of that case "How lawyer B. treats his clients." "The libel," said his Lordship, "is in general terms. It is not how he treated them in this particular case, but how he treated them generally; and even if you succeed in proving that the report is correct, so as to justify the inference that in this instance he treated his (a) Clay v. Roberts (8 L. T. N. S. 397; 9 Jur. N. S. 580; 11 W. R. 649). (b) Peard v. Jones (Cro. Car. 382).

(c) Bankes v. Allen (Roll. Abr. 51). (e) Day v. Buller (3 Wils. 59).

(d) Roll. Abr. 35.

(f) Jenkins v. Smith (Cro. Jac. 586. See also Birchley's case (4 Rep. 16).

(g) Taylor v. Starkey (Cro. Car. 192).

(h) Boydell v. Jones (4 M. & W. 446).

PART IV.

CHAPTER VI.

PART IV. CHAPTER VI.

client ill, that would not answer the implied charge in the libel that he so treats his clients generally."(a)

It has been observed that if one say to a counsel, “Thou didst disclose my counsel," or to a counsel or attorney, "Thou didst deliver my evidence to my adversary," an action lies. (b) The publication of a charge of disgraceful conduct in having disclosed, at an election, confidential communications which he had acquired professionally, would be libellous. (c)

Imputations which reflect on a clergyman in his professional character are per se actionable. (d) A letter published in a newspaper stating that the vicar of the parish came to the performance of divine service in a towering passion, and that his conduct was calculated to make infidels of his congregation, was held to be a clear libel.(e)

A letter charging the clerk to the justices of a borough with corruption, even though written to the Secretary of State by an inhabitant of the borough, is a libel.(ƒ)

To say of a midwife, "She is an ignorant woman, and of small practice, and very unfortunate in her way; there are few that she goes to, but lie desperately ill, or die under her hands," was held actionable.(g) Also to say, "many have perished for her want of skill."(h)

An imputation of insanity on a governess would be libellous.(i)

So in a variety of other cases, as saying of a churchwarden, "Thou art a cheating knave, and hast cheated the parish of 401.;" (j) of a town clerk, "He hath taken 40s. for a bribe;"(k) of a constable, "He is not worthy the office of a constable; for he and his company, the last time he was constable, stole five of my swine and eat them ; " (7) (a) Bishop v. Latimer (4 L. T. N. S. 775). Cf. Clement v. Lewis, in error (7 Moore, 200; 2 Brod. & Bing. 297).

(b) Per Anderson and Bramond, JJ., Wright v. Moorhouse (Cro. Eliz. 358). Sed vide Brown v. Kennedy (33 L. J. 342, Ch.).

(e) Moore v. Terrell (4 B. & Ad. 870).

(d) Pemberton v. Colls (10 Q. B. 461; 16 L. J. Q. B. 403).

See also

Drake v. Drake (1 Vin. Abr. 463); Hearne v. Stowell (12 A. & E. 719):

Kelley v. Sherlock (L. Rep. 1 Q. B. 686; 35 L. J. 209, Q. B.).

(e) Walker v. Brogden (19 C. B. N. S. 65).

(f) Blagg v. Sturt (10 Q. B. 899).

(g) Wharton v. Brook (1 Vent. 21).

(h) Flowers' case (Cro. Car. 211).

(i) Morgan v. Lingen (8 L. T. N. S. 800).

(j) Strode v. Holmes (Sty. 338; 1 Vin. Abr. 463). See also Woodruț

v. Weoley (1 Vin. Abr. 463).

(k) Yelv. 142; 1 Vin. Abr. 463. See 1 Roll. Abr. 56.

(Cro. Eliz. 861; 1 Vin. Abr. 464.

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