ficient or not a. It is unnecessary to prove the due execution of the bond, though averred in the declaration b. the liability of the sheriff. With respect to the amount of damages for which the sheriff Extent of is liable in this action, the decisions are by no means uniform. It has been held in some cases, that the sheriff was liable to the amount of the rent in arrear, and also the costs in the replevin suit ; in other cases, that as the verdict in replevin was only for a return of the goods, the damages should not exceed the value of the goods ; yet it was decided in one case, that the plaintiff might recover damages beyond the penalty in the bond, that is, for more than double the value of the goods. But the court of Common Pleas afterwards held that the good sense and justice of the case was, that the sheriff should be liable no farther than the sureties would have been if he had done his duty under stat. 11 Geo. II. c. 19, viz., to the amount of double the value of the goods distrained, but no farther f. And this decision was recognized and acted upon in a very recent case 8. So that it seems to be now settled, that the liability of the sheriff is restricted to the amount of the penalty in the bond, i. e., double the value of the goods distrained. a 1 Saund. 195. Barnes v. Lucas, R. & M. 264. Scott v. Waithman, 3 Stark. 168. * Gibson v. Barnett, cited in 4 T. R. 434. Prowse v. Pattison, B. N. P. 39. In this case the value of the goods exceeded the damages given. Perreau v. Bevan, 8 D. & R. 72; here the damages were less than the penalty in the bond. Scott v. Waithman, 3 Stark. 168. Yea v. Lethbridge, 4 T. R. 433. e Concannen v. Lethbridge, 2 H. Bl. 39. And see Baker v. Garrett, 3 Bing. 56, where Best, C. J., said, that cases might occur where the plaintiff might recover all the costs he f Evans v. Brander, 2 H. Black. Paul v. Gudluck, 2 Bing. N. C. 220. 1 Hodges, 370. VOL. II. TT What words are actionable. SECTION I. WORDS ACTIONABLE IN THEMSELVES. AN action on the case lies against a party for falsely and maliciously uttering or publishing words imputing to another any crime or misdemeanour, for which corporal punishment may be inflicted in a temporal court of criminal jurisdiction, or charging him with having an infectious disease, the imputation of which may exclude him from society. To support such action, the words must contain an express imputation of some crime liable to punishment, some capital offence, or other infamous crime or misdemeanour; and the charge upon the person spoken of must be precise. a "Malice, in common acceptation, means ill-will against a person, but, in its legal sense, it means a wrongful act done intentionally without just cause or excuse." Per Bayley, J., in Bromage v. Prosser, But to impute to any 4 B. & C. 255. "Where the law implies such malice as is necessary to maintain the action, it is the duty of the judge to withdraw the question of malice from the consideration of the jury." Id. man the mere defect or want of moral virtue, moral duties, or obligations, which render a man obnoxious to mankind, is not actionable a It has been held, that an action may be maintained for calling a person a traitor b, murderer, sheep-stealer 4, pickpocket; or for charging another with felony, perjurys, forgery1, robbery i. So the words, " you have done an act for which I can transport you," are actionable *. So, calling a woman residing in the city of London, or in the Borough, "a whore," is actionable, for she is liable to be carted for such offence, in those places'. So, to say of a person "he keeps a bawdy-house" m, or to charge a brewer with selling unwholesome beer, is actionable; for they are indictable offences". So an action will lie for charging a person with having the leprosy °, or a venereal disease P, or the falling sickness 9; if the charge imputes a continuance of the disorder at the time of speaking". It would be inconsistent with the limited design of this work, to enumerate all the decisions as to what words are actionable, and what are not. It is observable, however, that the principle which governs all the cases, appears to be the degradation of the party in society, or his liability to criminal punishment. tiente). Tomlinson v. Brittlebank, 4 B. & Ad. 630. But in a subsequent case, the words "you have robbed me of one shilling tan money," were considered not to be actionable without an innuendo; for the court could not know "that tan money could be the subject matter of robbery." Day v. Robinson, 1 Ad. & Ell. 558. * Curtis v. Curtis, 10 Bing. 447. 1 1 Vin. Ab. 395. Sid. 97. Brand v. Roberts, 4 Burr. 2418. Id. 2032. m Cro. Eliz. 643. General words of abuse. It is not necessary, however, in order to enable the plaintiff to maintain this action, that the imputation against him might, if proved, subject him to any future penalty; for where the defendant said, "C. (the plaintiff) was in gaol, and tried for his life, and would have been hanged, had it not been for Leggatt, for breaking open the granary of farmer A. and stealing his bacon." a So where the words were, "Thou wast in Launceston gaol for coining," to which the plaintiff replied, "If I was there, I answered it well." "Yes," said the defendant, "you were burnt in the hand for it." b It was held, in both cases, that the words were actionable, for they were injurious to the plaintiff's reputation, though they imported that the plaintiff had been acquitted in the one, and punished in the other; and therefore that the plaintiff in either of the cases could be exposed to future punishment. instances the presumption of prejudice to the plaintiff in society is a ground of action, yet it may be laid down as an established rule, that no charge or imputation upon the plaintiff, however foul, (except that of having an infectious disease,) will be actionable, unless it be of an offence punishable in a temporal court of criminal jurisdiction d. Words imputing an offence which is cognizable only in an ecclesiastical court; as imputing incontinence to females, and the like, are not actionable; for they concern matters merely spiritual, and the party defamed has a remedy in the Spiritual Court. But though in some General words of abuse, as calling a man a rogue, a rascal, a swindler, and the like, are not actionable, as they do not import any offence punishable in a temporal court. But the words, "You are a rogue, and I will prove you a rogue, for you forged my name," are actionable, for they import a punish с able offence. Though an imputation of perjury is actionable, Forsworn. yet, to accuse a person of having forsworn himself is not actionable, unless it appear from accompanying circumstances that the defendant meant such forswearing as would constitute the offence of perjury; as where reference is made to a particular court, or some judicial proceeding, in which false swearing would amount to perjury b. Calling a man a thief is Thief. actionable, if it be thereby intended to impute a felony; as where the words were, "He is a thief, and robbed me of my bricks." But where the words were, "You are a bloody thief. Who stole my pigs? You did, you bloody thief, and I can prove it; you poisoned them with mustard and brimstone." The jury having found that the words were not intended to impute felony; it was held, that the plaintiff was not entitled to recoverd. If it appear from the context, or the plaintiff's own showing, that the word " thief," was not used in a felonious sense, the plaintiff will be nonsuited; otherwise it lies on the defendant to shew that the word was not used in a felonious sense f. Whether a charge of "stealing" be actionable, depends Stealing. upon the subject matter to which it is applied. If it appear that the term was not capable of being used in a felonious sense, it is not actionable. Thus, to accuse a man of stealing a tree, is not actionable, for the offence is a trespass, and not a felony. So where the words spoken in respect of a churchwarden were, "Who stole the parish bell-ropes?" innuendo, meaning that the plaintiff did; it was held, that they were not actionable; for the churchwarden has possession of the goods of a Jones v. Herne, 2 Wils. 87. Holt v. Scholefield, 6 T. R. 691. Hall v. Weeden, 8 D. & R. 146. 1 Roll. Ab. 39. 4 Co. 17. b. Croforde v. Blisse, 2 Bulst. 140. Shaw v. Thompson, Cro. Eliz. 609. "The reason is, because, forsworn' is applicable not only to perjuries punishable at law, but also to offences of the same description which incur no temporal punishment." Per Lord Denman, C. J., in Tomlinson |