persons registered are not necessarily so; the register acts were not passed for this purpose; and the question of ownership, as it regards the liability for repairs, must be considered as it would have been before those acts were passed.

The registered owner of a ship is not liable for repairs, unless actually done upon his credit. Legal ownership is prima facie evidence of liability, which may be rebutted by proof of the beneficial interest having been parted with, and of the legal owners having ceased to interfere with the management of the shipd. As where A., the managing owner of a ship, mortgaged his share to B., who procured the transfer to be duly indorsed on the certificate of registry, but A. continued in the management as before, and gave orders for repairs and stores, and B. did not take possession or interfere in the concerns of the ship; it was holdene, that B. was not liable for such repairs and stores so ordered by A. So where a steam vessel was let by charter-party for twelve months, the registered owners engaging to keep the engine in repair, but the charterer binding himself to do all other repairs, to pay all wages, and charges of navigating, &c. and to indemnify the owners against all debts, costs, damages, expenses, &c. incurred in respect of the charter-party and employment of the vessel. The owners were to appoint the engineers. The charterer, who acted as captain, had repairs done to the vessel by persons unacquainted with the contract: it was holden1, that no action lay, in respect of those repairs, against the registered owners. A party who takes a share in a ship, under a conveyance, void for want of conformity with the provisions of the registry acts, is not liable for articles furnished to the ship, unless credit be given to him individually, or he holds himself out as owner. The owner of a ship is noth liable for money advanced to the master, although it has been properly expended by the master for the purpose of the ship, unless the money was borrowed by the master expressly for that purpose.

d Jennings v. Griffiths, 1 Ry. & M. 42. e Briggs v. Wilkinson, 7 B. & C. 30. f Reeve v. Davis, 1 Ad. & Ell. 312. 3 Nev. & M. 873, recognizing Briggs v. Wilkinson.

g Harrington v. Fry, 2 Bingh. 179.
h Thacker v. Moates, 1 M. & Rob. 79.

CHAP. XXXVI.

SLANDER.

I. Scandalum Magnatum.

II. Of the Action for Slander, and in what Cases it may be maintained.

III. Of the Declaration, and herein of the Nature and Office of the Innuendo.

IV. Of the Pleadings-Evidence-Costs.

I. Scandalum Magnatum.

SLANDER spoken and published of a peer is termed scandalum magnatum. The stat. 3 Edw. 1. Westm. 1. c. 34. commands, "that none be so hardy to tell or publish any false news or tales, whereby discord, or occasion of discord, or slander, may grow between the king and his people, or the great men of the realm; and he that doth so, shall be taken and kept in prison, until he hath brought him into the court which was the first author of the tale" (1). And by stat. 2 R. 2. c. 5. "None shall devise or speak false news, lies, or other such false things of the prelates, dukes, earls, barons, and other noble and great men of the realm, and of the chancellor, treasurer, clerk of the privy seal, steward of the king's house, justices of the one bench or the other, and other great officers of the realm, and he that doth shall incur the pain of the stat. Westm. 1. c. 34." And by stat. 12 R. 2. c. 11. "When any such [person, as is described in the foregoing statutes,] is taken and imprisoned, and cannot find him by whom

(1) See Sir Edw. Coke's exposition of this statute, 2 Inst. 225.

the speech be moved, he may be punished by the advice of the council, notwithstanding the statute of Westm. 1. c. 34. and 2 R. 2. c. 5." The foregoing statutes do not expressly give an action, yet it has been holden, that the party injured may maintain an action on the stat. 2 R. 2. c. 3. upon the principle of law, that an action lies on a statute, which prohibits the doing an act to the prejudice of another. Though the dignity of viscount was not created at the time when this statute was made, yet it has been holden, that such dignity is within the statute; and a peer of Scotland, since the union, may also take advantage of the statute (2). The form of declaration is, tam pro domino rege quam pro seipso (3), concluding contra formam statutia. The stat. 2 R. 2. c. 5. is a general law, and consequently need not be pleaded; but if the party undertake to recite it and fail in a material part it will be fatals. must appear on the face of the declaration, that the party injured was unus magnatum at the time when the words were spoken. Special bail is not required in this action1, and the venue cannot be changed upon the common affidavitk. Neither can a writ of error be brought upon it in the Exchequer Chamber', for it has been holden that this action is not an action on the case within the meaning of the stat 27 Eliz. c. 8. which gives the writ of error in Exchequer Chamber in certain actions. There is a dictum in 2 Show. 506. that in a scand. mag. the plaintiff obtaining a verdict will not be entitled to costs. It has been holden, that certain

a 2 Inst. 118. 10 Rep. 75. b.

b Visc. Say and Seale v. Stephens, Cro. Car. 135.

c Visc. Falkland v. Phipps, Comyns R. 439.

d Vid. Entr. 74.

e Doct. Plac. 339. 4 Rep. 13 a.

f Lord Shaftesbury v. Lord Digby, 2

Mod. 98.

g 4 Rep. 12. b. for instances of mis

It

(2) Some of the old precedents state the plaintiff to have vocem et locum in parliamento. See Vid. Ent. 74. and Bohun, 319, 320.; but these words are unnecessary, and they are omitted in two precedents in Herne, 200, 201. Vid. 61, 3.

(3) An action upon a statute which prohibits a thing, but does not give any penalty, must be brought tam pro rege quam pro seipso because in such case the king is to have a fine. Waterhouse v. Bawd, Cro. Jac. 134. See the precedents cited in n. (2).

words are actionable in the case of a peer, which would not have been deemed so in the case of a common person; as in Lord Townshend v. Hughesm, where the defendant said of the plaintiff, "he is an unworthy man, and acts against law and reason."

II. Of the Action for Slander, and in what Cases it may be maintained.

IN former times, the action for slander was very rare; the first action for words to be found in the books was in the 30th year of Edw. 3. Lib. Ass. fo. 177. pl. 19. and from that time to the reign of Queen Elizabeth, these actions were few in number, and not brought on frivolous causes; during the reign of Queen Elizabeth and King James, they began to increase, and in modern times the action has been more frequent. Actions for words should not be brought upon slight and trivial occasions; and where the words are merely words of heat, anger, or passion, spoken suddenly or without deliberation, such actions should be discountenanced; at the same time it has been truly said (by Wray, C. J.) that unless the party injured by false and malicious scandal had a remedy at law, it would be a verbis ad verbera, and the consequences might be fatal. It would exceed the limits prescribed to this work to enumerate with particularity all the cases which have been adjudged, as to what words are actionable, and what are not so. It may be sufficient for the present purpose to observe, that an action on the case lies against any person for falsely and maliciously speaking and publishing of another, words which directly (4) charge him with any crime, for the

m 1 Mod. 232. 2 Mod. 150. S. C.

(4) The words must contain an express imputation of some crime, &c. and the charge upon the person spoken of must be precise." Per de Grey, C. J. in Onslow v. Horne, 3 Wils. 187. "Words to be actionable must be unequivocally so. Imputing to a person an evil inclination, which is not carried into effect, is not actionable." Per Ellenborough, C. J. in Harrison v. Stratton, M.T. 1803. 4 Esp. N. P. C. 218. The charging another with a crime of which he cannot by any possibility be guilty, as killing a person who is then living, is not actionable, because the plaintiff cannot be in any jeopardy from such a charge. Snag v. Gee, 4 Rep. 16. a.

commission of which the offender is punishable by lawn (5), as treason, murder P, larceny 9, perjury, keeping a bawdyhouses, or with having (6) any contagious disorder, the imputation of which may exclude him from society, as leprosyt, plague, French pox," &c. There are two sorts of malice*; one denoting an act done from ill will towards an individual, the other a wrongful act, intentionally done, without just cause or excuse. In ordinary actions for slander, malice in law may be inferred from the publishing the slanderous matter, the act itself being wrong and intentional, and without just cause or excuse; but in actions for slander, primâ facie excusable on account of the cause of publishing the slanderous matter, malice in fact must be proved.

In order to sustain this action, it is essentially necessary that the words should contain an express imputation of some crime liable to punishment, some capital offence, or other infamous crime or misdemeanor. An imputation of the mere defect or want of moral virtue, moral duties, or obligations, is not sufficient. To call a man a swindler is not actionable; so to call a man a thief is not actionable, unless it be intended to impute felony to him. Hence, where that expression is accompanied with other words, which clearly denote that the speaker did not intend to impute felony to the party charged, no action can be maintained. No action lies for these words, "I will take him to Bow Street on a charge of forgery." In an action for words, the words proved were", "He is a thief,

n Finch, B. 3. C. 2.

o Lewis v. Roberts, Hard. 203. p 1 Roll. Abr. 72. pl. 4.

q Aleyn, 31.

r 1 Roll. Abr. 39. 1. 25.

s 1 Roll. Abr. 44. 1. 15.

t Taylor v. Perkins, Cro. Jac. 144. u 1 Roll. Abr. 66. 1. 38.

x Bromage v. Prosser, 4 B. and C. 247.

y Per de Grey, C. J. delivering judg

ment in Onslow v. Horne, 3 Wils.
177. recognised by Lawrence, J. in
Holt v. Scholefield, 6 T. R. 694.

z Savile v. Jardine, 2 H. Bl. 531.
a Harrison v. King, in error, 7 Taunt.
431. post. 1278.

b Christie v. Cowell, Peake, N. P. C. 4.

(5) That is, by common law or statute; for charging a man with an offence examinable only in the spiritual court, unless special damage ensues, is not actionable. Parrat v. Carpenter, Cro. Eliz. 502. Graves v. Blanchet, Salk. 696.

(6) But charging a person with having had a contagious disorder, is not actionable; for unless the words spoken impute a continuance of the disorder at the time of speaking them, the ground of the action fails; for such a charge cannot produce the effect which makes it the subject of an action, namely, his being avoided by society. Per Ashhurst, J. in Carslake v. Mapledoram, 2 T. R. 475. 2 Str. 1189. S. P.