Bayley, B.[[443]] This case came before the court upon a rule nisi to enter a nonsuit. The ground of motion was that the words (in slander) proved upon the trial were not actionable.
Two points were discussed upon the motion: one, whether the words were actionable or not; and the other, whether this was properly a ground of nonsuit.
The declaration stated that the plaintiff was clerk to an incorporated company, called the Birmingham and Staffordshire Gas Light Company, and had behaved himself as such with great propriety, and thereby acquired, and was daily acquiring, great gains; but that the defendant, to cause it to be believed that he was unfit to hold his situation, and an improper person to be employed by the company, and to cause him to be deprived of his situation, spoke the words complained of in the declaration, viz.: “You are a fellow, a disgrace to the town, unfit to hold your situation, for your conduct with whores. I will have you in the ‘Argus.’ You have bought up all the copies of the ‘Argus,’ knowing you have been exposed. You may drown yourself, for you are not fit to live, and are a disgrace to the situation you hold.”
The objection to maintaining an action upon these words is, that it is only on the ground of the plaintiff being clerk to the company that they can be actionable; that it is not alleged that they are spoken of him in reference to his character or conduct as clerk; that they do not, from their tenor, import that they were spoken with any such reference; that they do not impute to him the want of any qualification such as a clerk ought to have, or any misconduct which would make him unfit to discharge faithfully and correctly all the duties of such a clerk.
The plaintiff relied on the rule laid down by De Grey, C. J., in Onslow v. Horne, 3 Wils. 177, “that words are actionable when spoken of one in an office of profit, which may probably occasion the loss of his office; or when spoken of persons touching their respective professions, trades, and business, and do or may probably tend to their damage.” The same case occurs in Sir Wm. Bl. Rep. 753, and there the rule is expressed to be, “if the words be of probable ill consequence to a person in a trade or profession, or an office.”[[444]]
The objection to the rule, as expressed in both reports, appears to me to be, that the words “probably” and “probable” are too indefinite and loose, and unless they are considered as equivalent to “having a natural tendency to,” and are confined within the limits, I have expressed in stating the defendant’s objections, of showing the want of some necessary qualification, or some misconduct in the office, it goes beyond what the authorities warrant.
Every authority which I have been able to find, either shows the want of some general requisite, as honesty, capacity, fidelity, &c., or connects the imputation with the plaintiff’s office, trade, or business. As at present advised, therefore, I am of opinion that the charge proved in this case is not actionable, because the imputation it contains does not imply the want of any of those qualities which a clerk ought to possess, and because the imputation has no reference to his conduct as clerk. I say as at present advised, for the reason which I am about to state.
The next question is, whether this is properly a ground of nonsuit; and I am of opinion that, under the circumstances of this case, it is not. The words proved are nearly all the words which the first count contains; and if the words proved are not actionable, none of the other words contained in that count are. When the general issue is pleaded to a count, it puts in issue to be tried by the jury the question, whether the facts stated in that count exist. The legal effect of those facts, whether they constitute a cause of action or not, is not properly in question. The proper mode to bring that legal effect into consideration is, before trial, to demur; after trial, to move in arrest of judgment. The duty of the judge, under whose direction the jury try questions of fact, is not to consider whether the facts charged give a ground of action, but to assist the jury in matters of law, which may arise upon the trial of those facts.
As the defendant, therefore, in this case puts in issue the allegations in the declaration, and those allegations were proved upon the trial, we are of opinion that the rule for a nonsuit ought to be discharged; and, notwithstanding the lapse of time, that there ought to be a rule nisi to arrest the judgment, if the defendant be advised to take such rule.
Rule discharged.[[445]]