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Third count—that the plaintiff, before and at the time, &c. was an apothecary, and the profession and business of an apothecary used and carried on with skill and integrity. Yet the defendant, further contriving as aforesaid, to wit, on &c. in a certain other discourse, &c., falsely and maliciously spoke and published of and concerning the plaintiff, and of and concerning him as such apothecary as aforesaid, the false, &c. words following, that is to say, “Mr. Pilcher told me (meaning the defendant) that he (meaning the plaintiff) had given my child (meaning the said child of the defendant) too much mercury, and poisoned it, (meaning the said child) otherwise it (meaning the said child) would have got well,” (meaning thereby that the plaintiff had, either from ignorance or inattention and want of caution, administered to the said child of the defendant thereinbefore mentioned, such an excessive quantity of mercury that the said mercury acted as a poison, and caused the death of the said child). By means, &c., concluding with an averment of general damage.

Pleas; fifthly, as to the speaking and publishing the following words in the first count mentioned, that is to [1093] say,“ he killed my child, it was the saline injection that did it," actio non; because before the speaking and publishing of the several words in the introductory part of that plea referred to, to wit, on, &c., he, the plaintiff, professed himself to be an apothecary, duly entitled and qualified to act as such, and the defendant, on the faith of his, the plaintiff's, being so duly entitled and qualified, and knowing nothing to the contrary, did suffer and permit the plaintiff to attend the said child of the defendant, who was then sick and disordered, for the purpose of administering to the said child such medicines as might, under the circumstances, be proper, and the plaintiff did then injudiciously, indiscreetly and improperly, and contrary to his duty in that behalf, administer a certain saline injection to the child of the defendant; and the said child thereupon, and immediately after the aforesaid injection had been administered as aforesaid, was thrown into violent convulsions, and then lost and was deprived of his speech, sight and hearing, and effusion upon the brain and locked jaw then also supervened, so that the aforesaid child shortly after died; and that the death of the said child was then caused and occasioned, or greatly accelerated, by the aforesaid saline injection so administered to him by the plaintiff as aforesaid; wherefore the defendant did afterwards, to wit, on the day and year in the first count mentioned, speak and publish the said words of and concerning the plaintiff in the introductory part of that plea referred to, as he lawfully might for the cause aforesaid.— Verification.

Sixth, as to the speaking and publishing so much of the words in the second count mentioned as imputes to the plaintiff the having administered to the child of the defendant improper medicines, actio non; because before the speaking and publishing, &c., he, the plaintiff, professed himself to be an apothecary, &c. (as [1094] in the fifth plea); and the plaintiff did then improperly, and contrary to his duty in that behalf, administer to the aforesaid child of the defendant, divers large quantities of medicine, the same being then of an injurious nature and unfit for the complaint under which the said child then suffered, as in the said second count mentioned; wherefore the defendant did afterwards, to wit, on, &c. speak and publish, &c. Verification.

Seventhly, as to the speaking and publishing of so much of the words in the last count mentioned, as imputes to the defendant the having given to the aforesaid child too much mercury, actio non; because before the speaking and publishing, &c. the plaintiff professed, &c. (as in the fifth plea); and the plaintift did then wrongfully, &c. administer to the said child of the defendant divers large quantities of mercury, to wit, fifty grains, the same being an excessive quantity thereof, having reference to the then state, condition and disorder of the said child ; wherefore the defendant did afterwards, to wit, on, &c. speak and publish, &c. Verification.

Demurrer to the fifth plea, assigning for causes—that the said fifth plea was no answer to the first count, or to the speaking and publishing of the words therein mentioned, in the sense and meaning therein and thereby imputed; but that the said fifth plea assumed to answer the words to which it was pleaded in a different sense from that in which in the first count they were alleged to have been spoken; that the defendant could not, by the rules of pleading, sever and disjoin the sense and meaning imputed in and by the innuendo therein contained from the words themselves, to which that innuendo was annexed ; that the first count charged the defendant with having imputed to the plaintiff the crime of manslaughter by administering certain medicines with gross ignorance and gross want of caution ; whereas the [1095] said

fifth plea did not justify such charge, but set up as answer only the alleged circumstance of the said medicines having accelerated the death of the child therein mentioned, &c.

Demurrer to the sixth plea, assigning for causes, that it was not pleaded to, nor did it assume to justify, the words mentioned in the second count in the sense and meaning in which they were therein alleged to have been spoken; that the charge in the said second count mentioned was not divisible, and the defendant could not, by the rules of pleading, assume to answer a part thereof only; that the said sixth plea did not in any way justify the speaking of the words in the said second count mentioned, or the complaint of the plaintiff therein contained; and that such complaint could not be split and severed in the mode attempted in and by the said sixth plea, &c.

There was a similar demurrer to the seventh plea, assigning also for causes, that the complaint of the plaintiff in the said last count, was, not that the defendant spoke and published that the plaintiff had given to the child of the defendant too much mercury, but that the defendant falsely spoke and published that the plaintiff gave to the said child of the defendant so much mercury that the said child was poisoned ; that the said last plea did not confess that the words mentioned in the introductory part of it were spoken of and concerning the plaintiff as such apothecary as therein mentioned, &c.

Joinder in demurrer.

Channell Serjt. for the plaintiff. It is perhaps intended to be urged as an objection to the first count, that it is not stated therein that the plaintiff was an apothecary at the time he administered the saline injection to the defendant's child; but such an averment was not necessary, as the words impute a distinct charge [1096] of manslaughter. [Talfourd Serjt., For the defendant, intimated that he should not raise any objection to the first count.] Then the fifth plea contains no answer to that count.

It justifies using the words in a sense different from that attributed to them by the innuendo. If the words were not used in the sense imputed by the plaintiff

, the defence would be open to the defendant under the general issue; Mountney v. Watton (2 B. & Ad. 673).

The sixth plea to the second count attempts to justify only a portion of the words which does not charge the plaintiff with any crime punishable by law. It may be argued indeed that the whole of the words in the second count do not charge any such crime;

that the words therefore are not actionable per se, and that there is no special damage of which the court can take notice. But it is submitted that it does charge an offence of which the law will take cognizance ; for it states in substance that the plaintiff knowingly and wilfully made up and administered to the child wrong medicines. It is true it is not stated in that count that the child died in consequence. (Tindal C. J. It is not even said that the child got worse. Maule J. For any thing that appears, it may have got better. The administering a wrong medicine even with a wrong intention, may have done no harm; for the child's condition may have altered, and the medicine may have done good. There is no distinct charge, indeed, of any administering in the second count; it speaks only of a making up of the medicine.] It is submitted that, taking the innuendo and the introductory averments together, the second count does charge the plaintiff both with the making up a wrong medicine and administering it. [Coltman J. Would that be a crime punishable at law? How could the party be indicted for it?] Perhaps technically it might be treated as an (1097) assault, though the patient consented; Rex v. Rosinski (1 Moo. C. C. 19). If death had ensued from a wilful, or even a negligent, administering of a wrong medicine, the plaintiff would have been indictable for manslaughter; an attempt, therefore, to commit that offence would be a misdemeanor ; or even an attempt to commit a misdemeanor is a misdemeanor ; Rex v. Meredith (8 C. & P. 589). The wilful administering of a wrong medicine is therefore indictable, though death may not be the consequence.

The direct consequences of an act cannot be the proper criterion of its criminality. [Maule J. There is no averment of any intention to do mischief. A warehouseman, who carelessly lets fall a bale of goods into the street, whereby a passer-by is killed, might be indicted for manslaughter; but would he be indictable at all, if no one was passing by, and no harm was done by the bale ?] Probably not; but here, an intentional breach of duty is charged. A wrong

C. P. XII.-15

administering is alleged, in a case where the law requires competent skill; and that amounts to the allegation of a wrong.

The seventh plea does not profess to answer the gist of the charge in the third count, which is a charge of poisoning; and it is bad, as giving the words a different sense from that laid in the innuendo.

Talfourd Serjt., for the defendant. The words in the first count are sufficiently justified in the fifth plea. They amount to no more than charging the plaintiff with causing the child's death by administering the saline injection. (Tindal C. J. The words are “he killed my child.” The word killed of itself might be of doubtful import, but as explained by the innuendo, it means a felonius killing. And this is admitted by the fifth plea.] A justification may be good without refer-[1098]-ence to the sense ascribed to the words by the innuendo; Cromwell's case (4 Co. Rep. 12 b.), where it is said, “sensus verborum ex causâ dicendi accipiendus est, et sermones semper accipiendi sunt secundum subjectam materiam ;” and again, “although he (the defendant) varies from the plaintiff in the name and quality of the words, yet it is no cause to drive him to the general issue; as in maintenance, the plaintiff charges the defendant with unlawful maintenance, the defendant may justify by reason of a lawful maintenance.” [Tindal C. J. Cromwell's case was an action for scandalum magnatum, in which it was not necessary to allege the exact words. If the words do impute a felony, they are justified by the plea. For it would be manslaughter to administer a medicine so indiscreetly that death was occasioned thereby ; Rex v. St. John Long (4 C. & P. 398, 423).

The second count is clearly bad, as the words there alleged do not charge any offence punishable by law. No indictment could be maintained on such a charge. If that count is considered good, it is submitted that the sixth and seventh pleas are also good, as it is not necessary to justify the whole of the slanderous matter; Clarkson v. Lawson (6 Bingh. 266, 587; 3 M. & P. 605 ; 4 M. & P. 356). [Maule J. No cause of complaint is admitted by those pleas, unless they are considered as admitting that it is a cause of action to charge the knowingly administering of improper medicines.]

Channell Serjt. was heard in reply.

TINDAL C. J. The objection raised to the first count in the declaration has not been insisted on. The words alleged to have been spoken, as explained by the innuendo, clearly amount to a charge that the plaintiff had been guilty of manslaughter, in causing the death of the [1099] defendant's child by administering an injection with gross ignorance, and with culpable want of caution. Then the question is, whether the answer set up by the fifth plea is sufficient, whether it confesses and avoids the use of the words in the sense suggested by the plaintiff. I think the defendant must be taken to admit that he used the words in the sense imputed by the plaintiff, that is, as conveying a charge of manslaughter. Now to justify such a charge, it is not sufficient to shew mere want of care and caution ; there must be gross negligence and want of that degree of skill which every one, who undertakes the exercise of any particular art or profession, is bound to bring to each particular case. But all that the plea here charges is, that the plaintiff “injudiciously, indiscreetly, and improperly, and contrary to his duty,” administered the saline injection; and “that the death of the child was caused and occasioned, or greatly accelerated, by the aforesaid saline injection.” Now this is no more than a simple statement of, at most, want of judgment on the part of the plaintiff; and does not amount to the crime with which the defendant has charged him. The plea is therefore bad as confessing the use of the words in the sense imputed to them by the plaintiff, and not avoiding or justifying them in the same sense, by shewing the truth of the charge.

I have had considerable doubt whether the words alleged in the second count amount to the charge of a crime, or a legal offence. Perhaps, by construing them very closely, they might be considered as approximating to a criminal charge-but that is not sufficient; for where a party makes a charge of slander, it is for him to shew that the words bear a slanderous sense. Upon the whole I do not think that the words in the second count convey any charge of an indictable offence. The words are," he made up the medicines wrong through jealousy, [1100] because I would not allow him to use his own judgment.” There is no innuendo that the defendant meant to impute that the medicines occasioned any injury to the child ; so that whether they were noxious or perfectly innocent is left entirely in doubt. An indictment for mala praxis could not be supported without shewing that there had been gross and culpable negligence, or that the party knew that great mischief would be likely to result from what he did, or from the medicines he was about to exhibit. I think, therefore, that the defendant is entitled to judgment on the second count.

As to the third count, the charge contained in it is either negligence or want of proper knowledge of medicine. No objection is made to this count. In the plea to it (the seventh), the defendant does not sever one distinct portion of the slander from another, and profess to answer such portion, as in Clarkson v. Lawson ; but he abstracts certain words found in the third count, and only professes to answer the charge conveyed by those words, namely, the administering of an excessive quantity of mercury, but not such an excessive quantity as poisoned the child. The plea is bad, therefore, as neither confessing nor avoiding the alleged slander.

Upon the whole, therefore, the plaintiff is entitled to judgment on the demurrers to the fifth and seventh pleas, and the defendant, on the demurrer to the sixth plea, by reason of the insufficiency of the second count.

COLTMAN J. I am of the same opinion. Cromwell's case, upon which it is sought to support the fifth plea, is very different from the present. In that case the court could see that the words were not used in the sense charged; but here the defendant must be taken to admit that he imputed felony to the plaintiff; and all that he alleges in his plea to justify that charge is, that [1101] the plaintiff treated the child injudiciously. As to the second count, I cannot see that any thing was imputed which could legally subject the plaintiff to a criminal charge, and the court cannot add to the meaning of the words.

ERSKINE J. I also am of opinion that the fifth plea is no answer to the first count, which is admitted to be good, as containing a charge of manslaughter. The plea must be taken to confess the speaking of the words in the sense attributed to them by the plaintiff; and it justifies the use of them, because the plaintiff had injudiciously, indiscreetly, and improperly, and contrary to his duty, administered a certain medicine to the defendant's child, by means whereof it died. The words impute felony ; but the plea shews nothing to justify such a charge. In Cromwell's case it was shewn that the words were not spoken in the sense imputed by the declaration. There is nothing in the plea to rebut the interpretation which the plaintiff had given to the words by his innuendo. I think, therefore, the plea is bad.

The second count does not shew that the defendant meant to impute any intention to injure the child by administering the medicines, or that any injury resulted from administering them. To make this a good count, some fact should have been stated shewing that the plaintiff was liable to an indictment.

There is no objection to the third count, and I agree that the plea to it is bad, as affecting to justify only so much of the words charged in that count as does not amount to a cause of action.

MAULE J. I am of the same opinion. As to the first and third counts, it is not necessary to add any thing to what has already fallen from the court.

I also think the second count bad. It only states that [1102] the defendant charged the plaintiff with making up the medicines wrong, through jealousy; and the innuendo is, that the defendant thereby meant that the plaintiff had intentionally, and from jealousy and improper motives, made up the medicines which he had administered to the child in a wrong and improper manner. And I am disposed to think that the charge of making up the medicines, coupled with the innuendo, may in effect amount to a charge of administering the medicines. But that is all. It is not said that the plaintiff did, or intended to do, any harm to the child ; and if no harm was either done or intended, I do not see how it would be an offence to make up and administer medicines in a wrong and improper manner. A wrongful act, without any intention to injure, and where no injury results from it, is no offence. It has been argued that the administering of medicines improperly might be considered as an assault; but I cannot agree to that as a general position; as the administering does not necessarily imply any personal contract.

With regard to the fifth plea, how does it profess to answer the words alleged to have been spoken in the first count, amounting to a charge of felonious killing? It does not even profess to answer them in the sense in which they are used ; and upon that ground it is clearly bad. Indeed, as it is pleaded, it does not set out any thing contained in the first count, which amounts to a cause of action; and it would, in my opinion, be bad upon that ground. The rule in Cromwell's case, it may be observed, is not very consonant to the rule of pleading in modern times. The plea there seems to be of that species which is considered to give implied colour. But the plea in this case is of a very different character. It professes to justify a charge of manslaughter by administering improper medicine. It alleges merely a want of judgment and discretion on the part of the (1103] plaintiff. But an injudicious and indiscreet administering of medicine will not make a man guilty of manslaughter. There must at least be gross negligence on his part; and the plea does not allege that. It is therefore, I think, clearly bad.

The seventh plea is also, I think, bad. It merely selects a part of what is charged by the words set out in the third count, namely, the giving of too much mercury, and is pleaded to that. There might be nothing in that amounting to an offence; and it appears to me that a defendant in an action for defamation cannot pick out of a slanderous sentence certain words, which have no slanderous effect, and justify them alone. It is not stated in the plea that any wrong was done in reference to the then state of the child.

I agree with the rest of the court, therefore, that judgment should be given for the plaintiff upon the demurrers to the fifth and seventh pleas, and for the defendant upon the demurrer to the sixth plea.

Judgment accordingly (a).
End of Michaelmas Term.

[1104] IN THE HOUSE OF LORDS.

(In Error.)

JONES v. WAITE. July 1, 1842. [S. C. 9 Cl. & F. 101 ; 8 E. R. 353 (with note); 5 Scott, N. R. 951.) A promise to pay money if the promisee will execute a deed of separation between

himself and his wife, is not void for illegality of consideration. Error, upon a judgment in the Exchequer Chamber, affirming a judgment of the court of Common Pleas.

The declaration stated that, on the 19th of October 1833, Jones, the defendant below, signed a memorandum in writing, whereby he agreed to pay Waite, the plaintiff below, 1601. by eight half-yearly payments, towards Horne and Gates's demand of 366). 4s. 9d., Waite taking the whole of such demand on himself; and to pay 201. towards liquidating certain outstanding debts, and 2201. towards certain household expenses, one half at Michaelmas day then next, and the other half at Lady day 1835 ; and by the said memorandum it was stated that Jones agreed to the above in consideration of Waite's executing a certain deed of separation between Waite and his wife, and agreeing to pay H. and G. the outstanding debts and the household expenses in full. Mutual promises. Averment: that Waite, confiding in the agreement, was induced to, and did execute the deed of separation; and agreed to pay H. and G. their said demand of 3661. 4s. 9d., and the said outstanding debts and household expenses, in full, and then took upon himself the payment of the said demands, debts, and expenses ; whereof Jones had notice; yet Jones neglected and refused (although often requested so to do) to make the first payment of the said sum of 220L., so agreed to be paid by the defendant towards the household expenses, which first payment thereof, amounting to a certain sum of money, to wit, 1101. under and by virtue of the said memorandum be-[1105]-came due, and ought to have been paid by Jones, at Michaelmas day last, and the same still remained wholly unpaid ; and Waite, by reason thereof, was forced and obliged to pay the same out of his own moneys.

Pleas :—first, the general issue; secondly, that at the time of the signing by the defendant of the memorandum, and before and at the time of the commencing of this

(a) The judgment for the defendant though founded upon pleadings terminating in a demurrer and joinder, would be expressed to be, in respect of the insufficiency of the count and not in respect of the sufficiency of the plea as asserted by the defendant in his joinder in demurrer.

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