CASES

ARGUED AND DETERMINED

IN THE

COURT OF KING'S BENCH,

AND

UPON WRITS OF ERROR FROM THAT COURT

TO THE

EXCHEQUER CHAMBER,

IN

Michaelmas Cerm,

IN THE FIFTH YEAR OF THE REIGN OF WILLIAM IV.-1834.

Gillaspir

The Judges who usually sat in Banc this term were,

Lord DENMAN, C. J.
TAUNTON, J.

PATTESON, J.
WILLIAMS, J.

MEMORANDA.

He was

SIR John Leach, Master of the Rolls, died in Trinity vacation. succeeded by Sir Charles Christopher Pepys, Knight, his Majesty, SolicitorGeneral; and Robert Mounsey Rolfe, Esquire, one of his Majesty's Counsel, was appointed Solicitor-General in lieu of Sir C. C. Pepys.

In the same vacation, William Erle, Esquire, and Frederick Thesiger, Esquire, both of the Inner temple, *were appointed King's Counsel, and Matthew Davenport Hill, of Lincoln's Inn, Esquire, received a patent of precedence, to rank next to F. Thesiger, Esquire.

[ *2

Subsequently, in the same vacation, Cresswell Cresswell, of the Inner Temple, Esquire, and, early in Michaelmas term, Richard Preston, of the same Inn, Esquire, were appointed King's Counsel.

AYRE against CRAVEN.

Declaration for slander alleged, that defendant used words imputing adultery to plaintiff, a physician; and the words were laid to have been spoken "of him in his profession." No special damage was laid.

After verdict for plaintiff, judgment was arrested, because such words, merely laid to be

spoken of a physician, are not actionable without special damage: and if they were so spoken as to convey an imputation upon his conduct in his profession, the declaration ought to show how the speaker connected the imputation with the professional conduct.

ACTION for slander. The declaration contained four counts, of which the third only was proved at the trial. The inducement to the first count stated, that the plaintiff exercised and carried on the profession of a physician at H., and that before, and at the time, &c. there was a rumour and report in and about H., and the neighbourhood thereof, that a physician residing at H. had been criminally connected with a married woman, and had been and was guilty of adultery. The third count charged, that in a discourse had in the hearing of divers, &c., and particularly J. B and C. H. P., of and concerning the said plaintiff, so carrying on the said profession as aforesaid, and of and concerning the said rumour and report, the défendant, falsely and maliciously contriving and intending to have it believed, that the plaintiff had been guilty of a criminal connexion with a married woman, in the presence, &c., spoke and published the several false, &c. words following, of and concerning the said plaintiff, so carrying on such profession as aforesaid, and of and con[ *3 cerning him in his said profession, and of and concerning the said rumour and report, that is to say, "Have you heard that it is out who are the parties in the crim..con. affair that has been so long talked about?" (meaning the said rumour and report that a physician at H. had been criminally connected with a married woman.) And the said C. H. P. demanded who it was; and the said defendant falsely, &c. answered, " Dr. Ayre," (meaning that the said plaintiff had been guilty of a criminal connexion with a married woman, and that he was the person alluded to in such rumour and report.) By means of the committing, &c., the said plaintiff has been greatly injured, &c. Here followed a statement that divers persons, not named, had refused to have acquaintance with the plaintiff, or to have any transactions with him in the way of his said profession, as they were before accustomed to have, and otherwise would have had. On the trial before Taunton, J. at the York Spring assizes, in this year, a verdict was found for the plaintiff on the above count.

In Easter term last, Alexander obtained a rule calling on the plaintiff to shew cause why the judgment should not be arrested. In Trinity term last (June 10th),

F. Pollock, Wightman, and Raines shewed cause. (a) An action lies for imputing adultery to a medical man, such imputation being made concerning him in his profession. It directly injures him in his profession, which is the only safe criterion that can be suggested, and which will be found to agree with the decisions. Thus it is not *actionable to say of a counsellor, "he has no [ *4 more wit than a jackanapes," but it is actionable to say of him, "he has no more law than a jackanapes:" (Per Cur. in Cawdrey and Tetley's case, Godb. 441, citing Palmer's case, Palmer v. Boyer, Cro. Eliz. 342:) the reason of which distinction evidently, is, that wit is not, but that knowedge of law is, essential to the profession of a counsellor. The cases are collected in Comyns's Digest, Action upon the Case for Defamation, D. 13, to D. 27, and F. 8, to F. 10, and the same principle will be found to prevail in them. It cannot be contended that an imputation of unchastity may not be so applied to a physician, as to render it highly improbable that he should be treated with that confidence which is essential to his practice. The words may be supposed to have been spoken of him so as to convey an imputation that, by taking advantage of the access allowed him to a female patient, he had intrigued with her and after verdict, the charge set forth in the declaration may be interpreted in any way not inconsistent with the words.

:

(a) Before Lord Denman, C. J., Littledale, Taunton, and Williams, Js.