1853. BROWN v. SMITH. No objection was made that the words were not proved as laid; the Lord Chief Justice having intimated, that, if any difficulty were raised on that score, he would allow the declaration to be amended. His lordship then left it to the jury to say, whether the words were spoken by the defendant, whether they resulted in the damage alleged, and what fair amount of compensation the plaintiff was entitled to; and that this would depend upon Stringer's evidence. The jury returned a verdict for the plaintiff, damages 1501. Bramwell now moved for a new trial, on the grounds of misdirection and excessive damages, or to arrest the judgment. The words spoken were not in themselves a ground of action; they were not spoken of the plaintiff in the way of his trade: the statement, in effect, is,— Before Brown commenced business, he contracted a debt with me, and I will enforce the law against him. Even if they had been spoken of the plaintiff in the way of his trade, they are not actionable. [Cresswell, J. Is it not actionable to impute insolvency to a trader? When Smith says, "If he does not come and make terms with me, I will make a bankrupt of him, and ruin him," does he not mean to impute that he is insolvent and cannot pay his debts?] It is not a statement of general insolvency. No special damage was proved. The allegation, in the declaration is, that one Stephen Stringer, who was before in the habit of dealing with the plaintiff in his said trade on credit, refused any longer so to do, and refused to deliver to the plaintiff certain goods which the plaintiff had purchased of the said Stephen Stringer, until the plaintiff had paid for them." That is no legal damage. The plaintiff had his remedy against Stringer for his breach of contract. [Jervis, C. J. Stringer said, that, in consequence of the statement made by Smith, he refused to execute an order for the plaintiff which he had been about to do. No contract in writing was proved; no payment, or part delivery. What remedy, then, could the plaintiff have had against Stringer?] At all events, the damages should have been expressly limited to the injury resulting from the non-execution of Stringer's order. [Cresswell, J. Why is general damage to be excluded, because there is special damage?] Without special damage, there is no general damage. [Jervis, C. J. It was a very bad case: it certainly seemed to me, that, if general damages could be given, 150l. was by no means too large a sum.] As to the arrest of judgment,―The declaration merely discloses a bonâ fide assertion that the plaintiff was indebted to the defendant, and that he would enforce his legal rights against him. [Cresswell, J. There is no assertion of any debt upon the record.] CRESSWELL, J. I think there ought to be no rule in this case. Whether we take the words as they are alleged upon the record, or the words proved, they clearly are actionable words when spoken of a man in his trade. That they were spoken of him in his trade, cannot be disputed for, to speak of making a man who is a trader a bankrupt, must be speaking with reference to his trade. There is no assertion here of any debt due from Brown to Smith. And, when the defendant says to the witness, -"You know Brown. He has bought Grace's business; and, if he does not come and make terms with me, I will make a bankrupt of him, and ruin him,”—I think there can be no doubt that the words were spoken of him in his trade, that they were defamatory,and sufficient to sustain an action. It is quite unnecessary to consider whether any special damage was proved, or whether the damages ought properly to have been limited in the way suggested. But I think the special damage was 1853. BROWN บ. SMITH. 1853. BROWN v. SMITH. proved as alleged. The statement is, that "one Stephen Stringer, who was before in the habit of dealing with the plaintiff in his said trade on credit, refused any longer to do so, and refused to deliver to the plaintiff certain goods which the plaintiff had purchased of the said Stephen Stringer, until the plaintiff had paid for them." Stringer said he was about to execute an order for the plaintiff, but that he declined to do so in consequence of the statement of the defendant. It was not suggested that there was any binding contract, which could have been enforced against Stringer. The amount of damages was for the consideration of the jury; and I think it is impossible to say that these words spoken of a man in trade did not justify them in awarding compensation to the extent of 150%. I think there should be no rule. WILLIAMS, J. I also think there should be no rule; although, if the words proved had not been actionable without special damage, I should have thonght the rule ought to go, because the question of damages was left at large to the jury, without telling them to limit it to the probable loss resulting from the non-execution of Stringer's order. The question, therefore, resolves itself into this, whether or not the words proved were actionable in themselves, without special damage. I think they were. To say of a tradesman,-" if he does not come and make terms with me, I will make a bankrupt of him, and ruin him,"-must necessarily be highly prejudicial to him in his business. The words are clearly defamatory in their nature: and there is no pretence for disturbing the verdict. TALFOURD, J. I am of the same opinion. The words proved were clearly actionable without special damage. When one says of a trader, "If he does not settle with me, I will make him a bankrupt," that necessarily implies that he has the power to carry his threat into execution. JERVIS, C. J. I think I was wrong in this case. I told the jury that the questions for their consideration were, whether the words were spoken, whether the damage alleged resulted from the speaking of them, and what damages the plaintiff was entitled to,-and that this would depend upon Stringer's evidence. I think I was wrong in so limiting it. The jury, however, have set that right and I agree with the rest of the court in thinking that there is no ground for disturbing their verdict. Rule refused. 1853. BROWN ข. SMITH. RAMSDEN v. SKIPP. May 6. clined to think that the affidavit in support of an application for a spe DEBT for goods sold and delivered. The venue was The court inlaid in London. On the 24th of March, 1853, an order was made by Platt, B., at chambers, at the instance of the defendant, to change the venue from London to Gloucestershire, upon the common affidavit "that the plaintiff's cause of action, if any, arose in the county of Gloucester, and not in the city of London, or elsewhere out of the said county of Gloucester." On the 6th of April, the defendant pleaded never indebted; and, on the 16th, application was made by the plaintiff to Maule, J., at chambers, to change the venue from Gloucester to Middlesex, where it was alleged the delivery of the goods took place. The learned judge, however, declined to interfere, but referred the party to the court. cial order to change the venue, since the new rule of Hilary Term, 1853, r. 18, must be founded upon an affidavit dis closing special circumstances. from which it common affi davit, if unanswered, will suffice.] 1853. RAMSDEN v. SKIPP. Ball, on a former day in this term, moved for a rule nisi to rescind the order of Platt, B., and to change the venue from Gloucestershire to London, upon an affidavit stating "that the cause of action did not arise in the said county of Gloucester either wholly or in part, but in the county of Middlesex, and not elsewhere out of the said last-mentioned county, except so far as the same may have partly arisen in the said city of London, the said goods having been purchased by the defendant of the plaintiff within the said city; that the witnesses in the plaintiff's behalf in this cause reside in London or the immediate neighbourhood thereof; and that considerable additional expense will be incurred, should the trial of this cause take place in the county of Gloucester, instead of the city of London or county of Middlesex." [Williams, J. Why did you not answer the matter before my Brother Platt?] The attorney was under an impression that the 18th rule of Hilary Term last, which provides that "no venue shall be changed without a special order of the court or a judge, unless by consent of the parties," required that special grounds for changing the venue should be laid before the judge, as was formerly the case where the application to change the venue was made after issue joined. [Jervis, C. J. If you have made a mistake, you must at all events pay for it.] A rule nisi having been granted, Atherton now shewed cause. The order of Mr. Baron Platt was made without any substantial resistance on the part of the plaintiff. He now comes with a sort of double appeal against that order, and against the refusal of Maule, J., to interfere with it. The plaintiff, by applying to Mr. Justice Maule, not to rescind the former order, but to change the venue to Middlesex, must be taken to have acquiesced in the decision of Platt, B. And the affidavit now presented to the court shews no |