The libel act 32 G. 3. c. 60. has not taken from the court the power of deciding that the words laid in a declaration, indictment, or information do not amount to a libel. (c) Therefore the court may decide upon demurrer, without the intervention of a jury, or upon motion in arrest of judgment, after verdict delivered, that the words laid do not amount to a libel.

(c) Hearne v. Stowell, 12 Adol. & E. 730.

PRIVATE slanders differ from private libels in the gravity of the charge made, as well as in the method. of communicating it. Any written communication, injurious to a man's fame or dignity, is a libel; but a spoken communication is not a slander (a) in the legal meaning of the word, unless it amount to a charge of having been guilty of a crime, or of having one of certain contagious disorders; or unless it be spoken prejudicially of a person in relation to his office, or his profession or trade, or his inheritance; or unless the words spoken, being in themselves disparaging (b), have been the occasion of a specific damage to the party charged by them.

(a) This, like every other rule in our decision-formed law of defamation, oscillated for a long while before it became fixed. The curious reader may consult the early cases, 1 Bulst. 40; 3 Bulst. 167; Cro. Eliz. 6;

4 Co. 15; 6 Mod. 24; 6 Mod. 104. 200; 2 Salk. 696; Holt, 40; 8 Mod. 24; Hob. 81; 9 East, 93.

(b) Kelly v. Partington, 3 Nev. & M. 117; 5 B. & A. 645; 4 B. & A. 700.

SECT. 2.- Of the Charge of Crime.

As to the charge of crime, it is now fully established that it must be such an offence as is punishable in a temporal court of criminal jurisdiction.

The words "traitor," "murderer," "thief," "sheep"stealer," "pickpocket," "felony," "perjury," "sub"ornation of perjury," forgery," "robbery," when used in such a manner as to convey an imputation of these crimes, amount to slander. (c)

The offence charged, also, must be clear and well defined; cozening, cheating, bloodsucking, companion of cut throats, are too indefinite. (d) Thus to say of a man that he is a rogue or a swindler is not slander. (e) In Jackson v. Adams (f), the matter charged as slanderous was, "Who stole the parish bell ropes?" with an inuendo, that defendant meant that the plaintiff when churchwarden had stolen the parish bell ropes. It was held that this was not slander; for that the possession of the parish bell ropes is in the churchwarden, and. that therefore he could not have been guilty of a felony of them. But this case, as well as several others of a similar tendency (g), seem to have been so decided upon the ground that the impossibility of the felony was so notorious that the bystanders could not understand that felony was intended to be imputed.

In the recent case of Heming and Wife v. Power (h) the words charged were, "It has been ascertained be

(c) Dal. 17; Bro. Ac. sur le Cas. pl. 2; 27 H. 8; 14 Mo. 29; 1 Camp. 48; 3 Bulst. 303; Cro. Car. 276; 1 Vin. Abr. 405; Cro. Eliz. 308: 2 Wils. 87; Cro. Jac. 247; 11 Mod. 255.

(d) 3 Lev. 171; Cro. Eliz. 95. 554; 2 Salk. 694; Nev. 64. (e) Savile v. Jardine, 2 H.

Blac. 531; To write of a man that he is a swindler is, of course, libellous, J'Anson v. Stuart, 1 T. R. 748.

(f) 2 Scott, 599; 2 Bing. N. R. 402; 1 Hodges, 339. (g) 4. Rep. 16; 1 Cr. & M.

675.

(h) 10 M. & W. 564.

« yond doubt that Mr. Alleyne and Mrs. Dempster "Heming are not only not brother and sister, but

man and wife;" inuendo, that the said R. M. C., being married to H. L. Alleyne, had afterwards feloniously married the plaintiff Dempster Heming; the said H. L. Alleyne being still alive. There was an introductory averment in the declaration, that Mrs. Heming and Alleyne were brother and sister, and this by the plea was admitted on the record. In arrest of judgment it was urged, that there was no indictable offence charged by the words; for if Mrs. Heming and Alleyne were brother and sister, (and this was admitted on the record,) any marriage between them must be void ab initio, and consequently she could not be guilty of bigamy by her marriage with Heming. This argument was, however, held to be without foundation; Parke, B., observing, "Here the fact of Mrs. Heming being "Mr. Alleyne's sister was not known to the parties “who heard the slander; and the words which impute felony must be taken to have been so understood."

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It would appear therefore that the rule which has been generally laid down as requiring that the slanderous words must be such as to put the plaintiff in peril (i) must be understood to mean that the slanderous words must be such as the bystanders may consider to put the plaintiff in peril; and we must now extend the rule even further, since it has been held to be slanderous to say of a man that he is a returned convict; and it appears now to be well established that it is the contumely and not the peril which gives the cause of action. (j)

It has been held that a declaration by a married woman "You robbed me" is a slander, for she might (i) 4 Rep. 16; B. N. P. 5.

(j) Fowler v. Dowdney, 2 M. & R. 119.

have been robbed of the goods of her husband, or some one else. (k) The words "He robbed J. W." are slander, for they primâ facie impute an offence punishable by law; and if they were used in any other sense, it is for the defendant to show it. (1) The words "You have done an act for which I could transport

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you" are slander, without the necessity of colloquium or inuendo (m); so are the words "He is a “thief, and robbed me of my bricks." (n) But it is a question for the jury, whether by the words used the defendant intended to charge the commission of an indictable offence. (0)

In a late case it was held that the words, "He made "up the medicines wrong through jealousy, because "I would not allow him to use his own judgment," spoken of a surgeon, were not actionable in themselves. Tindal, C. J., observed, "As to the second count I "have had very considerable doubt whether the words alleged in it do or do not amount, legally speaking, "to a charge of crime. Perhaps by spelling them out very closely they might be considered as approxi"mating to a criminal charge; but when a party makes 66 a charge of libel, it is for him to make out that the "words bear a libellous sense; and on the whole I "do not think that the words used in the second "count convey to my mind a charge of crime. It is "not alleged that the medicines occasioned in fact any

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(k) Rowcliffe v. Edwards, 4 Jur. 684; overruling Sir Harbert Crofts v. Brown, 3 Bulst. 167, where" He keepeth men to "rob me were held by Coke, C. J., not to be scandalous; and see Stamp v. White, Cro. Jac. 600.

(1) Tomlinson v. Brittlebank,

4 B. & Adol. 630; 1 Nev. & M. 455, per Denman, C. J., & Parke, J.; Littledale, J., dubitante.

(m) Curtis v. Curtis, 4 M. & Scott, 337; 10 Bing. 447. (n) Slowman v. Dutton, 10 Bing. 402.

(o) Sibley v. Tomlins, 4 Tyr.90.