George Harris vs. Gordon Burley, 8 N.H. 216

The opinion of the court was drawn up by Richardson, Chief Justice. There are two counts in this declaration. The ground of action stated in the first count is, that the plaintiff, being a trader, the defendant said of him that he was dishonest. The injury stated in the second count, is that the plaintiff, being a trader, the defendant said of him that he had fraudulently got money of Currier. There are no special damages laid in the declaration. 10 Johnson 281, Herrick vs. Lapham; 2 Chitty's Pl. 261; 1 Saunders 143, b, note 5. Some words are actionable in themselves.

This is the case with all words which must, from the nature of the case, be injurious to the reputation of the person of whom they are spoken. Words which contain an express imputation of some crime liable to punishment, belong to this class. 1 Caine's Rep. 347, Hopkins vs. Beedle; 5 Johnson 188, Brooker vs. Coffin. In a suit for words actionable in themselves, it is unnecessary to allege any special damage. Words which naturally tend to injure a man in his office, trade, business or profession, are actionable in themselves, without alleging any special damage.

Thus to say of an inkeeper, he is a bankrupt, is actionable. 7 D. & R. 649, Whitaker vs. Bradley. So to say of a corn-dealer, you are a rogue. 3 Bingham 104, Thomas vs. Jackson. So to charge a clergyman with drunkenness. 13 Mass. R. 248, Chaddock vs. Briggs; 8 D. & E. 130, Hartley vs. Herring; 1 Binney 178, McMillen vs. Birch. So to say of a trader, he keeps false books. 5 John. 476, Backus vs. Richardson. So to charge a public officer with mat-practice. 1 John. Cases 330, Dole vs. Van Renselaer. So to say of a merchant, that a debt will be lost because he is unable to pay. 7 Cowen 564, Mott vs. Comstock.

Words not actionable in themselves may become so by reason of some special damage resulting from them to the person of whom they are spoken. But in such cases, in order to maintain an action, some special damage must be alleged in the declaration. Thus the words — He is a rogue and a swindler ; I know enough about him to hang him — do not contain any chtrge of a legal, definite crime, and when not spoken of a person in the way of some office, profession, trade or business, are not actionable in themselves ; and to maintain an action, some special damage must be alleged and proved. 7 Bingham 211, Ward vs.

Weeks; 2 H. Bl. 531, Savile vs. Jardine; 8 John. 64, Foot vs. Brown; 1 Taunton 39, Moore vs. Meagher; 2 John. 115, Buys vs. Gillespie; 8 East 1, Vicars vs. Welcocks. In this case, the words laid in the declaration are not actionable in themselves, unless the plaintiff was a trader at the time of speaking the words. In order to maintain the action, then, it was necessary to prove that the plaintiff was a trader. And the question is, whether it was sufficient to prove that trading had been the business of the plaintiff previously, although he was not actually in trade at the time ? In the case of Walden vs.

Mitchell, 2 Ventris 265, the chief justice said that where a man had been in an office of trust, to say that he had behaved himself corruptly in it, as it imported great scandal, so it might prevent his coming into that or the like office again • and therefore was actionable. But this is denied to be law by Lord Chief Justice De Grey, in Onslow vs. Horn. 3 Wilson 188, who says that he knows of no case where ever an action for words was grounded upon eventual damages which may possibly happen to a man in a future situation.

And Starkie says, if the publication affects the plaintiff in a particular character, it must be proved that the character belonged to him, or that he filled the office or situation at the time of the publication complained of. 2 Starkie's Ev. 859. And from the very nature of the case, what possible damage could the words laid in this action do to the plaintiff as a trader, when at the time they were spoken he was not in trade ?

The reason why words imputing fraud in his dealings to a trader are actionable in themselves, is because from the nature of the case the imputation must have a tendency to affect his business as a trader. But here the plaintiff had no business, as a trader, to be affected. We are, therefore, of opinion that the jury were misdirected, and that there must be A new trial granted.