*

As, if a patron intend to present a divine to a benefice, and the defendant say of him, ،، He is an heretick, or a bastard;" for which reason the patron refuses to present him, and he loses his preferment, an action is maintainable.

So, if the defendant say of a candidate for an

is prevral office, that he is an ignorant man and unfit for the place, by means of which he s it, an action lies t.

nieeding

So, where a servant or bailiff is prevented from getting a place ‡.

Loss of marriage seems to have been always considered as a temporal damage §, although the words themselves have imputed matter of mere spiritual cognizance.

In Matthews v. Crass ||, which was an action for words, occasioning loss of marriage; after verdict. for the plaintiff, it was urged, on motion in arrest of judgment, that this was the first case where loss of marriage was ever laid for words spoken of a man, and therefore was not warranted by Ann Davis's case. But the court conceived it to be

4 Co. 16.

+ March. Rep. pl. 217. 1 Buls. 138.

‡ Shepp. Coll. 192.

§ Davis v. Gardiner. 4 Co. 16. Poph. 36. 1 Roll. Rep. 34, 35. 109. Mo. 409. Cro. Car. 155.

Gerald's bailiff. Bull. N. P. 7.

|| Cro. Jac. 323.

f 4 Co. 11. vide infra.

Case of Sir C.

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immaterial, in case of loss of marriage, whether the plaintiff is a man or a woman.

In order to support an action grounded upon the loss of marriage, it is necessary for the plaintiff to allege and prove that a marriage with some specific person was in contemplation, and was hindered by the speaking of the words.

The necessity of proving a specific loss, falls with peculiar hardship upon unmarried females, who are thereby frequently debarred from maintaining actions for imputations most unfounded and injurious. In no other case can it be more fairly presumed that the scandal, if believed, will produce detriment, than where an unmarried female is charged with incontinence; and therefore, in no other case is the plaintiff better entitled, in reason and good sense, to the benefit of that presumption, in order to obtain a remedy for the scandal, and, which is of infinitely more importance, an opportunity of fairly meeting and rebutting the calumny.

No species of slander can be more cruel and malicious in its origin, none more pernicious in its consequences; yet, unless some specific damage can be proved, or the charge be committed to writing, the suffering party, whose peace of mind is destroyed, and prospects ruined, has no

† 1 Roll. 36. 1. 15. 1 Com. Dig. tit. Defam. D. 30.

appeal but to courts, whose powers, limited as they are, to the infliction of penance for the spiritual benefit of the wrongdoer, can administer no substantial relief or protection to the party wronged.

Yet it is this very jurisdiction of the ecclesiastical courts, which has frequently been assigned as a reason (though surely an inadequate one) why the temporal courts should not interfere to give a remedy in damages.

It has been said, that were the courts of law in such cases to entertain an action, it would be productive of hardship to the defendant, who would be twice punished for the same offence, by an award of damages in the temporal, and by the infliction of penance in the spiritual court.

This reasoning is evidently fallacious: if a man contrive, by one and the same act, to offend against religion, and to do a serious temporal injury to his neighbour; though the act be one and the same, it unites and comprehends offences wholly distinct, and it is absurd to say that the spiritual offence shall protect the offender from consequences merely temporal, and that, by rendering himself liable to a trifling penance, he shall rid himself of a load of temporal responsibility.

The objection, too, falsely assumes, that the payment of damages is in the nature of punishment; by the law of England, the amount of damages is in all cases to be measured by the tem

poral prejudice sustained by the plaintiff, and they are awarded without any regard to the penal correction of the defendant, or the reformation of his manners; the reason, at all events, is a strange one to have weighed in a court of law, whose records abound with cases, which prove, that for the same act a person may be both civilly and criminally responsible.

Such, however, is the law upon this point, though formerly much doubt was entertained upon it.

In Ann Davis's case, the plaintiff declared that she was a virgin of good fame, &c. and that one Anthony Elcock, citizen of London, of the substance of £3000, desired her for his wife, and had thereon conferred with John Davis her father, and was ready to conclude it, when the defendant, knowing the premises, but intending to injure the said Ann, and to obstruct the said Anthony's proceedings, published of the said Ann these words: "I know Davis's daughter well, she dwelt in Cheapside, and there was a grocer there that did get her with child;" by which the said Anthony refused to take her to wife.

After verdict for the plaintiff, it was moved in in arrest of judgment, that the words were not actionable, because the defamation was spiritual. But it was resolved by the whole court, that the action was maintainable:

* 4 Co. 16,

1. Because, if the woman had a bastard, she was punishable by the statute of 18 Eliz. c. 3.

2. That if the defendant had charged her barely with incontinence, the action would have been maintainable, since the ground of the action was temporal, namely, that she was defeated of her marriage.

But in subsequent cases, the first of the reasons given in Ann Davis's case was denied to be law; and it was said, that the sole reason on which the judgment rested was the loss of marriage.

In Baldwin and his wife v. Flower †, it was held, that an action lay for calling the wife" whore," because, by such means, she might lose the communication and society of her neighbours.

In Medhurst v. Balaam ‡, the plaintiff declared she had several suitors to marry her; and that the defendant said of her, "She is with child, and hath taken physic for it ;" by which she became in disgrace, and lost the society of her neighbours. And it was adjudged that the action lay, though no loss of marriage was alleged.

This has, however, been overruled in a variety of cases §.

In Ogden v. Turner, Holt C. J. observed, "To

§ 1 Lev. 261. 2 Keb. 451. 1 Sid. 396. Lord Ray. 1004,

Holt. R. 40.