Marshall v. Addison , 4 H. & McH. 537 ( 1773 )

This was an action of Slander. The declaration contained three counts. The jirsi and second counts, for saying the plaintiff was “a rogue and villain, and that he had ruined many families, and the curses of the widows and children were on him,” &c. “that he had wronged the defendant’s father’s estate, and cheated the defendant’s brother Thomas ” The third count was as follows: «‘And afterwards, to wit, on,” &c. “at,” kc. “the said John having discourse with him the said James, of and concerning him the said James, aiid of and concerning his the said James’s dealings and transactions as a merc|lantj ^Ie tlie said James then, and for a long time before, being a merchant, and gaining his livelihood by buying anil selling,) in the presence and hearing of very many other,” &e. similar words. Demurrers to the 1st and 2d counts, and general issue as to the 3d count.

The jury were sworn, the following oath being administered to them, viz. “You shall well and truly try the issue joined between James Marshall, plaintiff, and John Jlddison, defendant, and a ti*ue verdict give according to your evidence. You shall also well and truly try and assess the damages on the demurrer in the said action depending between the said James Marshall, plaintiff, and John Mdison, defendant, and a true verdict give according to your evidence. So help you God.”

Bilis of Exceptions.

cited 2 Wils. 114. Law JV. P. 8,

The Court, \ITepbnrn and Leeds, J.] were of opinion, and so directed the jury, that the words in the third count were sufficient to support the action of the plaintiff against the defendant, without proving that he the plaintiff was a merchant at the time when the said words were spoken, and notwithstanding it was proved to the jury that the plaintiff was not a merchant when the said words were spoken. The defendant excepted.

Verdict for plaintiff on the first count, and damages assessed to 41. Maryland currency; on the. second count, and 4h liiaryiand currency contingent damages assessed^ and on the third count, ami 4=1, Maryland currency contingent damages assessed, (lucre — If the contingent damages should not have been on the Jirsi and second counts?

An artion does not lie for the word rogue — 4 Bac. Ab. 488. T. Ray. 169. 1 Stra. 304. 2 Wits. 87. Nor for calling a man villain — 4 Bac. Ab. 488. 4 Co. IS. b. Or cheat, unless spoken generally of a tradesman in a colicqnium concerning his trade — 4 Bac. Ab. 494. T. Ran» 62, 169. 2 Salk. 694. 5 Mod. 398. 1 Stra. 696. *2 Ray. 14'7. 12 Mod. 420. 1 Leon. 250. Hard. 8. 2 Stra. 1169. Sir Tho. Jones, 156.

If a tradesman brings an action for words spoken of him in his trade, it must appear from the pleadings he was in trade at the time of speaking them — 4 Bac. Ab, 493. Cro. Car. 282. Felv. 21, 2 Sound. 157.

If the colloquium alleged be necessary to maintain the action it must be proved at the trial — Law of JV*. P. 5„

As to an action of slander where there is a variance between the words laid and those proved, cited Hard. §• Lee, 306. Upon non cul pleaded, general questions as to the plaintiff’s credit may he asked — 8 Vin. Jib. 159, 160.

There are three heads under which the law may be divided with respect to actions of this nature.

1st. Words are actionable which charge aperson with any offence which would ¡subject him to corporal punishment.

2d. Words are actionable spoken of a person in his trade or profession, which would not be so if .spoken of other persons, from a jealousy the law entertains, founded on public utility, in their favour.

3d. Words are actionable, which otherwise would not he so, if they have occasioned any special or particular damage to the party.

Rogue or villain are so indefinite, ambiguous and in-certain, that they are always deemed words of heat, and not subjecting the person to any particular penalty; no action will lie. Cheat is equally so; for like rogue, a man may cheat in a thousand different ways without being subject to any action — as by charging goods at a greater price than agreed on — turning tobacco into money, and so again in tobacco — -not allowing one man the general current prices for his tobacco, which are allowed to others. All these are cheats, and yet not punishable by corporal penalty.

Judgment entered nisi for the plaintiff, upon the verdict.