Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

sheriff, in such an action, to show that the sureties are appa- responsi
rently persons of responsibility, although they were not actually ble, it is
such; unless it be shown that the sheriff had notice of the fact, sufficient.
or neglected the means of information within his power, and
*did not act under the circumstances, and considering the in- *1348
formation he had obtained, with a reasonable degree of caution
and the general reputation as to the want of credit of the sure-
ties, in the neighborhood of their respective residences, is evi-
dence against the sheriff.a

But it seems that if the sureties reside out of the sheriff's bailiwick, he should search the office of the sheriff in whose bailiwick they reside, to ascertain whether any process had been sued out against them, before the bond is taken.b This action is maintainable even after the avowant has taken an assignment of the replevin bond, and sued the principal and sureties thereon, if, through their insolvency or otherwise, he has not been able to obtain satisfaction; for the assignment of the bond is no waiver of any proceedings against the sheriff, as it is in the case of a bail bond. (1)

The declaration in this action should set forth the distress The deand replevin, and the proceedings in the suit, and state that it claration. was the duty of the sheriff to take sufficient pledges, and that he neglected to do so, and that the plaintiff had not obtained a return of the goods, or their value. Where the declaration stated that the sheriff, instead of taking a bond from the plaintiff in replevin, and two sufficient sureties, took a bond from the plaintiff, and one surety, who was alleged to be insufficient; it was held ill for not alleging that the plaintiff in replevin was + The insufficient. If the replevin be for damage feasant, the de- diss claration should show that a writ of retorno habendo had been remet. issued, and elongata returned thereon. A count against the sheriff for not restoring the goods is bad, for his duty under stat. Westm. 2, is only to take pledges for that object.

Some evidence must be given by the plaintiff of the insuf- Evidence. ficiency of the pledges; but very slight evidence is sufficient to throw the onus of proof on the sheriff. The sureties themselves are competent witnesses to prove whether they are suf*ficient or not. It is unnecessary to prove the due execution *1349 of the bond, though averred in the declaration.'

[merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small]

(1) (Where an assignment was made by a sheriff of a replevin bond to the defendant in the replevin, who brought suit against the obligors and obtained judgment by confession against one of them, who was an inhabitant of another state, it was held that the remedy against the sheriff was suspended during the continuance of the proceedings upon the bond; and that a suit could not be maintained against him after such assignment without judicial evidence of the insolvency of the obligors. Commonwealth v. Rees, 3 Wharton, 124. The mere taking an assignment of a replevin bond does not discharge the sheriff. Ibid.)

[ocr errors]

Extent of

sheriff.

With respect to the amount of damages for which the sheriff the liabili- is liable in this action, the decisions are by no means uniform. ty of the 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. And this decision was recognised and acted upon in a very recent case. 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.

Prowse v. Pattison, B. N. P. 39. In damages given. Perreau v. Bevan, 8 damages were less than the penalty in (14 Eng. C. L. 176.)

Gibson v. Barnett, cited in 4 T. R. 434. this case the value of the goods exceeded the D. & R. 72; (11 Eng. C. L. 230;) here the the bond. Scott v. Waithman, 3 Stark. 168. Yea v. Lethbridge, 4 T. R. 433. Concannen v. Lethbridge, 2 H. Bl. 39. And see Baker v. Garrett, 3 Bing. 56, (11 Eng. C. L. 27,) where Best, C. J., said, that cases might occur where the plaintiff might recover all the costs he had incurred in consequence of the insufficiency of the sureties. But the court there held, that the plaintiff could not recover as for spe cial damages, beyond the penalty in the bond, the costs incurred by him in suing the sureties without effect, unless notice of his intention to sue thereon had been previously given to the sheriff.

Evans v. Prander, 2 H. Black. 547.

Paul v. Gudluck, 2 Bing. N. C. 220. (29 Eng. C. L. 314.) 1 Hodges, 370.

*CHAPTER XXI.

SLANDER.

I. Words actionable in themselves.

PAGE

II. Words spoken in respect of office, profession, &c.
III. Words actionable only by reason of special damage
IV. Slander of title

1355

1357

1359

[blocks in formation]

An action on the case lies against a party for falsely and What maliciously uttering or publishing words imputing to another words are any crime or misdemeanor, for which corporal punishment actionable 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 misdemeanor; and the charge upon the person spoken of must be precise. But to impute to any *man the *1351 mere defect or want of moral virtue, moral duties, or obligations, which render a man obnoxious to mankind, is not actionable.b

It has been held, that an action may be maintained for calling a person a traitor, murderer, sheep-stealer, pickpocket; or

a 66

sense,

" Per "Where

Malice, in common acceptation, means ill-will against a person, but, in its legal it means a wrongful act done intentionally without just cause or excuse.' Bayley, J., in Bromage v. Prosser, 4 B. & C. 255. (10 Eng. C. L. 321.) 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. Per De Grey, C. J., in Onslow v. Horne, 3 Wils. 177, recognised by Lawrence, J., in Holt v. Scholefield, 6 T. R. 691. Where the penalty for an offence is merely pecuniary, it does not appear that an action will lie for charging it, even though in default of payment imprisonment should be prescribed by the statute. Stark. on Sland.

43.

Dal. 17. Lewis v. Roberts, Hard. 203.

d 1 Roll. Ab. 72. Mo. 29.

11 Mod. 255.

3 Bulst. 303.

*1352

for charging another with felony,a perjury, forgery, robbery.a 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," 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, or the falling sickness; 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.(1) *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."'m 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." 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 neither of the cases, could be exposed to future punishment. But though in some instances the presumption of prejudice to the plaintiff in society is a ground of action, yet it may be laid down as an

Cro. Car. 276.

b 1 Roll. Ab. 39. 1 Vin. Ab. 405.

Jones v. Herne, 2 Wils. 87.

d Cro. Jac. 247. The words "he robbed J. W." were held to be actionable, (Littledale, J., dissentiente). Tomlinson v. Brittlebank, 4 B. & Ad. 630. (24 Eng. C. L. 128.) 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. (28 Eng. C. L. 151.)

Curtis v. Curtis, 10 Bing. 477. (25 Eng. C. L. 206.)

f 1 Vin. Ab. 395. Sid. 97. Brand v. Roberts, 4 Burr. 2418. Id. 2032.

Cro. Eliz. 643.

[blocks in formation]

m

[blocks in formation]

1 Carslake v. Mapledoram, 2 T. R. 473.

Carpenter v. Tarrant, Rep. temp. Hard. 339.

n Gainsford v, Tuke, Cro. Jac. 536.

See also Boston v. Tatham, id. 622, and 1 Stark. Sland. 19.

(1) (An action for slander will not lie in Pennsylvania for words spoken in another state, when the offence charged by those words is not indictable in that state, although indictable in Pennsylvania. Barclay v. Thompson, 2 Penna. 148.)

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. Words imputing an offence which is cognisable 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."

General words of abuse, as calling a man a rogue, a rascal, General a swindlers and the like, are not actionable, as they do not words of import any offence punishable in a temporal court. But the abuse. words, "You are a rogue, and I will prove you a rogue, for you forged my name," are actionable, for they import a punishable offence. Though an imputation of perjury is action- *1353 able, yet, to accuse a person of having forsworn himself is not Forsworn. 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."(1) 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 recover. 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 show that the word was not used in a felonious sense.i

a See 1 Stark. 21.

106.

Parratt v. Carpenter, Cro. Eliz. 502. Graves v. Blanchet, Salk. 696. 12 Mod. 4 Co. 20.

e Saville v. Jardine, 2 H. Bl. 531. 3 Bl. Com. 124. 1 Vin. Ab. 417. In Jones v. Herne, 2 Wils. 87, Willes, C. J., said, that "if it were now res integra, he should hold, that calling a man a rogue, or a woman a whore, in public company, was actionable."

[blocks in formation]
[ocr errors]

Holt v. Scholefield, 6 T. R. 691. Hall v. Weeden, 8 D. & R. 140. (14 Eng. C. L. 340.) 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 v. Brittlebank, 4 B. & Ad. 632. (24 Eng. C. L. 128.)

B. N. P. 5.

Sloman v. Dutton, 10 Bing. 402. (25 Eng. C. L. 182.) B. N. P. 5.
Sibley v. Tomlins, 4 Tyr. 90. See Christie v. Cowell, Peake, 4.
Thompson v. Bernard, I Camp. 48. i Penfold v. Westcote, 2 N. R. 335.

(1) (Sherwood v. Chase, 11 Wend. 38. Dayton v. Rockwell, 11 Wend. 140. Gilman v. Lowell, 8 Wend. 573. Harvey v. Boies, 1 Penna. 12. Tipton v. Kahle, 3 Watts, 90. If the charge, however, be not palpably unfounded on the face of it, the risk of a prosecution which it induces shall be compensated in damages. Deford v. Miller, 3 Penna. 105.)

« ΠροηγούμενηΣυνέχεια »