which is all that is alleged in that regard in the case before the court. Hartley v. Herring, 8 Term, 133; Addison on Torts, 805; Hilliard on Remedies (2d ed.), 622; Beach v. Ranney, 2 Hill, 309.

Tested by these considerations, it is clear that the decision of the court below, that the declaration is bad in substance, is correct.

Judgment affirmed.

§ 563. Words actionable per se.— Where the declaration stated that the defendant falsely and maliciously said of the plaintiff that he "saw her in bed with Captain D.." held, that the words were not actionable per se. Pollard v. Lyon, 13 Alb. L. J., 94; 1 Otto, 225 (§§ 558–62). § 564. Words falsely spoken of another which import a charge that the party has been guilty of a criminal offense involving moral turpitude, or that the party is infected with a contagious distemper, or if they are prejudicial, in a pecuniary sense, to a person in office, or to a person engaged for a livelihood in a profession or trade, are actionable; but in all other cases the party who brings an action for words must show the damage he has suffered by the false speaking of the other party. Ibid.

§ 565. Action for slander in calling plaintiff, who was a bank director, "a liar and a swindler." Held, that the words, by reason of their being spoken of the plaintiff in his official character, are actionable. That a breach of trust proven, accompanied by falsehood, does not prove a swindling," unless an intent to defraud be shown. Forrest v. Hanson, 1 Cr. C. C., 63.

99 66

§ 556. It is not actionable to say of a white man that he is "a yellow negro," a villain and a liar," although his marriage with a white woman, had he been a negro, would have been a criminal offense. Neither the constitution of Maryland, nor any statute of that state or of the United States, deprives a colored person, merely as such, of any civil rights of a citizen. And held, that mere words of disgrace, unless written and published, are not actionable. Johnson v. Brown,* 4 Cr. C. C., 235.

$567. The words " He gets his living by thieving" are actionable; also, held, that actionable words spoken in the second person will not support an averment of words spoken in the third person. Rutherford v. Moore,* 1 Cr. C. C., 388.

568. In the District of Columbia to charge a person orally with having committed fornication is not actionable per se, there being no acts in force for the punishment of fornication. At common law, words to be actionable per se must be such as, if true, would subject the accused to infamous punishment, or to an indictment for a crime involving moral turpitude. Pollard v. Lyon,* 1 MacArth., 296. See $§§ 558-62.

$569. When special damage must be alleged.—Charging a single woman with incontinence not actionable without an averment of special damages. Keiler v. Lessford,* 2 Cr. C. C., 190.

§ 570. Slander - When a ground of action.- The plaintiff was a shareholder with others in building a boat. He brought suit for slanderous words alleged to have been spoken by the defendant to the detriment of his credit as well as his personal character, whereby he was excluded from a further share of the boat adventure and deprived of the profits accruing therefrom. The court charged the jury that words spoken in relation to the credit of a holder of shares in the joint stock of a boat are actionable if special damage thereby be alleged in the declaration; but the averment of such special damage is not sufficient to support the action without the averment of a colloquium respecting the plaintiff as a shareholder in the boat, and that it was a business requiring credit. Turner v. Foxall,* 2 Cr. C. C., 324.

§ 571. In mitigation of damages the defendant may give evidence of the general reputation of the plaintiff's want of punctuality in payment of his debts. Ibid.

§ 572. Defendant may show the grounds of his belief in mitigation of damages. Cooke v. O'Brien,* 2 Cr. C. C., 17.

§ 573. Justification.

It is no justification in slander that the defendant stated at the time he spoke the words that he had received information from his slave. Atkinson v. Patten, 1 Cr. C. C., 46.

§ 574. In an action for slander where it was proved that defendant said he had heard a third party say that a fourth party had told said third party that plaintiff had killed a man in Ireland and had fled for it, the court refused to instruct the jury that the words proved were in substance the same as those charged in the declaration, which were, "You stuck a pitchfork into a man in Ireland, and murdered him, and fled;" and held, that in an action for slander if it appears from the plaintiff's testimony that at the time of speaking the words the defendant named his author, who was a responsible man, the defendant may avail himself of that testimony without pleading the matter as a special justification. Hogan v. Brown,* 1 Cr. C. C., 75.

§ 575. Evidence of good character, when admissible.- Where no direct evidence in proof of the charge has been offered, but evidence merely tending to prove the general character of the plaintiff bad in the particular in question, the plaintiff may encounter it by proof of good general character. Wright v. Schroder,* 2 Curt., 548.

§ 576. Plaintiff was the manager of defendant's calico works. It was alleged that he had always enjoyed a good reputation and had never been guilty or suspected of the vice of drunkenness. While employed in defendant's calico works, defendant charged him with drunkenness. Defendant offered evidence showing that the plaintiff had been frequently drunk at the works, and that he kept spirits at his boarding-house, where he drank them. This evidence was admitted by the court as tending to prove the charge circumstantially. The plaintiff offered evidence showing his general reputation for sobriety, which was objected to, but admitted by the court as having an effect upon the damages. Held, that the evidence given by the defendant must have a legitimate tendency to affect the general character of the plaintiff in reference to the subject-matter of the charge for which damages are demanded. Ibid.

$ 577. Extension of innuendo beyond the sense of the words. The declaration alleged that the plaintiffs were merchants, etc.. and the defendants, to injure their good name, etc., published falsely, etc., that the plaintiffs had been sued; that Beardsley's wife was about to sue for divorce and alimony; that he had put his property out of his hands; if so, their store would be closed soon,- meaning thereby to have it suspected and believed that the plaintiffs were not worthy of credit and would not pay their debts. A demurrer to this alleged that the innuendo subjoined materially varied, enlarged and extended the sense of the words. Held, that the office of the innuendo is to explain the words contained in the libel and annex to them their proper meaning. It cannot enlarge or extend the sense of the expressions beyond their usual and natural import, unless something is put upon the record by way of introductory matter, with which they can be connected. Then words which are equivocal or ambiguous, or fall short in their natural sense of importing any libelous charge, may have fixed to them a meaning certain and defamatory, extended beyond their ordinary import (Rex v. Horne, Cowp., 682; Hall v. Blandley, 1 Youn. & Jerv., 486; Van Vechten v. Hopkins, 5 Johns., 211; Miller v. Maxwell, 16 Wend., 9.) In order to ascertain whether an innuendo has been improperly extended, the whole and every part of the libel must be looked at. The court cannot say, as matter of law, that the words declared upon do not convey or could not have been intended to convey to those in whose presence they were published the meaning imputed to them. On the contrary, they have been published in a way that would naturally convey to the hearer that meaning, especially if published with an intent to affect the credit of the plaintiffs as merchants, as charged in the declaration. Beardsley v. Tappin, 1 Blatch., 588.

§ 578. Joint slander. Where it is alleged that defendants jointly slandered the plaintiffs, words spoken of one of the plaintiffs only cannot be proved, and words spoken by one defendant, not in the presence of the other, cannot be proved. Davis v. Sherron,* 1 Cr. C. C., 287.

§ 579. Miscellaneous.—Where plaintiff, a milliner, was charged with being a swindler and a cheat, and brought an action for slander, and made an affidavit that the words were maliciously uttered, and that defendant is a transitory person about to leave the jurisdiction, bail will be required of him. Doyne v. Barker, 4 Cr. C. C., 475.

$580. Judgment for plaintiff must be rendered on demurrer to a declaration for slander, averring actionable words. Edds v. Waters, 4 Cr. C. C., 170.

§ 581. In an action for slander the plaintiff cannot give evidence of special damage not stated in his declaration. Kelly v. Huffington,* 3 Cr. C. C., 81.

§ 582. He may recover although he has not proved the special damage laid in the declaration. Ibid.

VIII. FALSE IMPRISONMENT.

SUMMARY — Arrest for non-payment of illegal tax, § 583. — Proceedings before a United States commissioner, § 584. — Court or magistrate without jurisdiction, § 585.- When an action on the case is the proper remedy, § 583.- Where the proceedings are void for want of jurisdiction, § 587.— Mitigation of damages, § 588.

§ 583. Trespass lies where a person is illegally assessed and arrested for non-payment of a tax. Five hundred and five dollars damages in favor of such person against the tax officer who arrested him are not so excessive as to warrant the court in setting the verdict aside and ordering a new trial. Thurston v. Martin, §§ 589, 590.

§ 584. The defendant appeared before a commissioner of the circuit court of the United States for the southern district of New York, and charged the plaintiff with forgery at Havana. He thereupon procured the commissioner's warrant for the arrest of the plaintiff, upon which he was taken before the commissioner, and for several days restrained of his liberty. The plaintiff brought suit on two causes of action; the first cause being for false imprisonment, and the second for malicious prosecution. Held, on demurrer, that an action would lie against the defendant, as the subject-matter, the offense and the person were within the magistrate's jurisdiction. Castro v. De Uriarte, §§ 591-595.

585. Where the court or magistrate has issued a warrant wholly without jurisdiction of the subject-matter or of offense charged, an action of malicious prosecution will lie against the prosecutor who set on foot such illegal proceedings. Ibid.

$ 586. Where the arrest complained of arose in the course of legal proceedings and there was no doubt of malice and the want of probable cause, and no question existed concerning the jurisdiction or legal validity of the proceedings themselves, the pleader is necessarily confined to an action on the case for malicious prosecution. Ibid.

$ 587. Where the proceedings are void for want of jurisdiction, trespass for false imprisonment is the ordinary remedy, since no other proof is requisite than the proof of the arrest or detention and of the illegality of the proceedings. Upon this proof the plaintiff is entitled to compensatory damages. Ibid.

§ 588. A. sued B. and C. for falsely imprisoning him on the ground of attempting to obtain bounty-money from the United States, and to induce desertion from the federal army. Held, that B. and C. could give in evidence, in mitigation of damages, depositions of deserters and others to whom A. had developed his plan of desertion and bounty swindling. Beckwith v. Bean, 596-602.

[NOTES.-See $$ 603-638.]

THURSTON v. MARTIN.

(Circuit Court for Rhode Island: 5 Mason, 497-504. 1830.)

STATEMENT OF FACTS.- This was an action of trespass for false imprisonment, brought against the defendant, who was collector of taxes for the town of Newport, R. I. The defendant pleaded not guilty, with leave to give special matter in evidence.

At the trial it was proved that the defendant had arrested and imprisoned the plaintiff for the non-payment of a town tax, assessed on him for the year 1827, and that he was discharged upon payment of the tax. The real controversy at the trial turned upon the point whether the plaintiff was an inhabitant of Newport, and so liable to be assessed for taxes there. It appeared in evidence that the plaintiff was born in Newport and had lived there until the year 1815 or 1816, and that his mother still resides there. In 1815 or 1816, being then of age, he went to reside as a trader at Georgetown, South Carolina, and from that time to the time of the suit he had continued his occupation there. He usually went to Georgetown every autumn, in October, and remained there until June, and kept a store or shop of goods there, and performed such patrol and other duty as was required of him there and paid taxes there. The sickly season coming on in June he came northward every year at that time, and usually passed his summers and autumn until October at Newport, making purchases at the northward, principally for sale at Georgetown. It is usual for the inhabitants, during the sickly season, to leave Georgetown for the north and return back in the manner the plaintiff did. The plaintiff is a single man and has no family. Several of the inhabitants of Newport are in the habit of keeping shops of goods in Georgetown and going there in the autumn and returning in June, at the time when the sickly season comes on, and of paying taxes at Georgetown. Some of these have families at Newport and consider it as their home. The plaintiff was first taxed in Newport after his removal in 1816. For one or two years the tax, being

small, was paid by the plaintiff. He afterwards objected; and in some years the tax was remitted, and in some years he was not taxed. He resisted payment of taxes for several years before 1827, and refused performance of military duty as an inhabitant of Newport; and being sued for a militia fine was successful in his defense, setting up his non-inhabitancy as a defense. From the time of his first removal to Georgetown, in 1815 or 1816, he never acted in any public business as an inhabitant of Newport; and for the last ten years he had constantly spoken of himself in public and private as an inhabitant of Georgetown. These were the principal facts upon which the question of domi

cile turned at the trial.

The court instructed the jury that if, upon the whole facts, they were of opinion that the domicile of the plaintiff was at Georgetown, he was entitled to recover in this form of action, and such damages should be given as the jury thought a fair compensation for the loss and injury to the plaintiff; but it was not a case for vindictive damages. The jury found a verdict for the plaintiff for $505.

Opinion by STORY, J.

The motion for a new trial is founded upon two grounds: first, of excessive damages; and secondly, that an action of trespass does not lie against the defendant, who is a mere ministerial officer, for collecting the tax.

§ 589. Verdict not set aside for excess where not large enough to imply prejudice by jury.

The first question may be disposed of in a few words. The damages are certainly higher than what, had I sitten on the jury, I should have been disposed to give; and I should now be better satisfied if the amount had been less. The charge of the court directed the jury, if they found for the plaintiff, not to give vindictive damages; but to give (if the jury thought proper) such a compensation as would indemnify the plaintiff for the necessary expenses incurred in the suit, beyond what he would receive in the shape of costs. The jury were, however, left at liberty to consider all the circumstances of the case which might, in their opinion, enhance the right to damages, such as the arrest and imprisonment.

It is one thing for a court to administer its own measure of damages in a case properly before it, and quite another thing to set aside the verdict of a jury merely because it exceeds that measure. The court in setting aside a verdict for excessive damages should clearly see that they are excessive; that there has been a gross error; that there has been a mistake of the principles upon which the damages have been estimated, or some improper motives, or feelings, or bias, which has influenced the minds of the jury. If the verdict be not subjected to some such imputations it is not the practice of the court to disturb the verdict. It is an exercise of sound discretion, which in some. degree interferes with the conclusiveness of verdicts, and ought not to be resorted to except in clear cases. Upon a mere matter of damages, where different minds might, and probably would, arrive at different results, and nothing inconsistent with an honest exercise of judgment appears, I, for one, should be disposed to leave the verdict as the jury found it. The doctrine of adjudged cases seems to me to support this view of the matter, and it instructs us to be very slow in listening to applications of this sort.

Now, I cannot say, judicially speaking, that the damages, taking all the circumstances together, are excessive, though they are larger than I should have given. The arrest and imprisonment, and the nature of the contest between

the town and the plaintiff, as to the right to tax him, compelled him, after other efforts were exhausted, to resort for a vindication of his rights to a suit. He had been harassed from year to year by taxes, and no disposition, notwithstanding a long continued struggle on his part to resist them, was evinced by the assessors, to relieve him from the burthen. The jury probably looked to this and deemed the suit absolutely indispensable, and at the same time very onerous upon the party. Under these circumstances I am not disposed to interfere with the verdict.

§ 590. Trespass lies against a tax collector enforcing payment of an illegal tax by arrest.

The other is a question of more importance. The general principle to be extracted from the authorities is this: Where a mere ministerial officer acts under the authority of a court, or other board or tribunal, of a limited jurisdiction, there, if the act be beyond their jurisdiction, he is, or may be, liable in trespass. But where there is jurisdiction over the person and the subjectmatter, there he is not liable for any irregularity or mistake in the exercise of that jurisdiction. This was so decided upon full consideration in the case of The Marshalsea, 10 Co. R., 686, 76. In that case (which was trespass) a writ of execution had issued against the plaintiff, as bail, in a suit decided in the court of the Marshalsea, upon which he was arrested and imprisoned. The defendants pleaded the judgment and execution in their defense, and the plaintiff replied that neither the plaintiff nor the defendant in the original suit were servants of the king. And upon demurrer it was holden a good replication, and that trespass well lay against the defendants. The doctrine of this case has never been departed from, though there may have been in some few cases a misapplication of it. Com. Dig., Imprisonment, H., 8, H., 9; id.; Pleader, 3 M., 23, 24. See, also, Hill v. Bateman, 1 Str., 711; Shergold v. Holloway, 2 Str., 1002; Papilon v. Buckner, Hard., 478; Terry v. Huntington, Hard., 480; Perkins v. Procter, 2 Wils., 382; Brown v. Compton, 8 Term R., 424; 1 Chitty, Plead., 183.

In relation to taxes, where a party has been illegally assessed, there are other authorities directly in point to establish that trespass lies. If the person taxed, or the subject-matter of taxation, be not within the authority of the officers who make the assessment, all subsequent proceedings by mere ministerial officers, under a warrant to enforce the tax, are deemed utterly void, the original assessment being coram non judice. The case of Nichols v. Walker, Cro. Car., 394, was trespass brought by an inhabitant of one parish who was rated in another, not being liable to be rated there. The rate was allowed by two justices of the peace in the manner prescribed by law; and upon a warrant by three justices the goods of the plaintiff were distrained and sold to pay the rate. Upon an exception taken that trespass did not lie against the defendants, who were mere ministerial officers acting under the warrant, the court held that the action was well brought, for, the rate being unduly taxed, the warrant of the justices for the levy thereof will not excuse, for the justices have but a particular jurisdiction to make warrant to relieve rates well assessed, and so the plaintiff had judgment. This case was fully recognized as sound law in Perkins v. Procter, 2 Wilson, 382, 384, where the whole subject was most elaborately considered. And the cases of Harrison v. Bulcock, 1 H. Bl., 68, and Williams v. Pritchard, 4 T. R., 2, and Mayor v. Knowler, 4 Taunt. R., 635, and Lord Amherst v. Lord Somers, 2 T. R., 372, silently proceed upon the admission of its correctness.