ANDREWS V. THORNTON.

1832.

May 12.

be no justificaalthough there tion, and no special da

is entitled to

SLANDER. The declaration, after the usual aver- In an action
ment of the Plaintiff's good name, his innocence of of slander,
such misconduct as that imputed to him by the Defend-
ant, and the good opinion of his neighbours, stated, that
before the committing of the grievances by Defendant,
mage alleged,
as thereinafter mentioned, Plaintiff had been, and then the Plaintiff,
was, a mariner, and the employment of a mariner had if he recovers,
used and exercised with great credit and profit to him- the expense of
self, to wit, at, &c.; that Plaintiff, in certain parts be- witnesses ne-
yond the seas, to wit, at Sincapore, had shipped himself cessary to
in and on board of a certain ship or vessel called the ducement ex-
Vittoria, as a mariner and chief mate for a certain planatory of
voyage, to wit, from Sincapore aforesaid to London,
of which said ship or vessel Defendant had been, and
then was, a freighter, to wit, at, &c.; that before, &c.,

and before the arrival of the said ship or vessel at Lon-
don, to wit, on the high seas, a mutiny of divers of the
crew of said ship or vessel had broken out in and on
board of said ship or vessel, and the master or com-
mander and divers mariners belonging to the crew of
said ship or vessel had been killed, and divers large
quantities of the cargo of said ship or vessel had been
thrown overboard by the mutineers, to wit, at, &c.; that
said Plaintiff, being employed as a mariner in and on
board of said ship or vessel as aforesaid, having, with the
assistance of certain of the crew of said ship or vessel, re-
covered the same from the power and control of said
mutineers, and having taken upon himself the command
and navigation of said ship or vessel, had proceeded with
the
same to a certain port in parts beyond the seas, to

prove an in

the slander,

and his professional reputation.

1832.

ANDREWS

ข.

wit, the Mauritius, the same being the most eligible port to proceed to after such mutiny as aforesaid, to wit, at, &c.; that Plaintiff, at the Mauritius aforesaid, had neTHORNTON. cessarily been obliged to discharge and unload the cargo of said ship or vessel, and to reload the same in and on board said ship or vessel, at a very considerable expense, and in so doing, had employed one William Aiken as agent for said ship or vessel for that purpose, and having done so, said Plaintiff had safely and securely navigated and brought said ship or vessel, together with her cargo, so reloaded as aforesaid, to her port of delivery, to wit, at, &c. Nevertheless said Defendant, well knowing the premises, but greatly envying the happy state and condition of said Plaintiff, and contriving, and wickedly and maliciously intending to injure said Plaintiff in his good name, &c., on, &c., at, &c., in a certain discourse which said Defendant then and there had of and concerning said Plaintiff, and of and concerning his said employment as a mariner in and on board of said ship or vessel, and of and concerning said cargo of said ship or vessel, in the presence and hearing of divers good and worthy subjects of this realm, then and there, in the presence and hearing of said last mentioned subjects, falsely and maliciously spoke and published of and concerning said Plaintiff, and of and concerning his said employment as a mariner in and on board of said ship or vessel, and of and concerning said cargo of said ship or vessel, these false, scandalous, malicious, and defamatory words following, that is to say," There was no reason for discharging the cargo. I do not believe more than 100%., or at most 200l. worth of the cargo was thrown overboard by the mutineers; and I believe that Andrews has connived with Mr. Aiken, the agent at the Mauritius, in creating expense, for the purpose of putting money in his pockets; he ought to be tried at the

bar

bar of the Old Bailey, and no respectable merchant will ever employ him."

1832.

ANDREWS บ.

There were several other counts; and in the tenth, the only words alleged to have been uttered were, "He THORNTON. ought to be tried at the bar of the Old Bailey." To the damage, &c.

The Defendant pleaded the general issue; and at the trial in London, a verdict having been found for the Plaintiff, the prothonotary, on the taxation of costs, had allowed, among other charges, 231. for the expense of a witness from Liverpool, to prove the Plaintiff's skill and character as a mariner; and 127. for the expense of a witness called to prove the circumstances of a mutiny on board the Vittoria.

Spankie Serjt. obtained a rule nisi to review the taxation as to these charges, on the ground that the Defendant not having pleaded a justification, and there being no allegation of special damage, no question could properly arise as to the Plaintiff's character or the circumstances of the mutiny, the only point in issue being, whether or not the Defendant had spoken the words. with which he was charged.

Wilde Serjt. shewed cause. Without proof of the introductory allegations the sting of the slander could not have been understood; and without proof of the estimation in which the Plaintiff was held, the jury would have been at a loss as to the proper measure of damages.

Spankie. The assertion, "That the Plaintiff ought to be tried at the bar of the Old Bailey," is sufficiently explicit, and needs no explanation in the way of introductory allegations. The witnesses objected to can only have been called for the purpose of harassing the Defendant with costs.

1832.

ANDREWS

บ.

THORNTON.

TINDAL C. J. I agree in one observation which has been made on the part of the Defendant, that when there is no justification in an action of slander, in general the expense of witnesses ought not to be allowed who might have become necessary if a justification had been pleaded. But it would be looking too narrowly at this record to take that proposition without qualification; for the words complained of in the tenth count are not actionable of themselves, but only become so on the proof of the circumstances to which they were intended to apply, — "He ought to be tried at the bar of the Old Bailey.” There could not be a more vague imputation of misconduct; and it was necessary, therefore, for the Plaintiff to state and prove the inducement which gives it a meaning. The question is, then, whether he has abused his privilege by calling more witnesses than were necessary. Surely, to explain the extent to which he might be injured, and the meaning of the words, it was competent to him to shew that he gained his livelihood as a captain of a ship; that a mutiny broke out; that goods were thrown overboard; and the residue carried to the Mauritius: the more so, as it was insinuated that this was not the fact, and that the goods had been improperly disposed of. We ought not to be too nice in cutting down the Plaintiff's proof to the exact amount, at which, under bare poles, he may conduct his vessel into port. Rule discharged.

SMITH V. HARDY.

1832.

May 12.

TO debt on judgment, the Defendant pleaded a re- To debt on a lease, bearing date December 1831, but destroyed judgment, the

by accident.

Wilde Serjt., upon an affidavit that the plea was false, obtained a rule nisi to sign judgment as for want of a plea.

Defendant
pleaded a
release of De-
cember 1831,
destroyed by
accident.
Upon affidavit
that the plea

was false, the
Court allowed
the Plaintiff to

Adams Serjt., who shewed cause, relied upon Smith v. Backwell (a), where the Court reviewed all the pre- sign judgment ceding cases, and refused to set aside upon affidavit of as for want of its falsehood, a plea of acceptance by the plaintiff of a plea. twenty pipes of port wine in satisfaction of his demand; intimating, that in future, similar applications should be discharged with costs.

Wilde. That case only decides that the Court will not interfere where the plea, though false, is in the usual form, and does not create perplexity, or raise more than a single issue; but where, as in the present instance, the plea occasions perplexity by raising several issues, the Court will interfere. The result of all the cases was stated by Gaselee J., who said, "Where the plea has raised different issues, has been exceedingly intricate, or has been a mockery of the proceedings of the Court, a discretionary power has sometimes been exercised by the Judges; but that cannot be done with respect to a single plea, which has nothing improper on the face of it."

(a) 4 Bingh. 512.