need not be proved; if the charge be false, malice will be implied. The existence of express malice is only a matter of inquiry, where the injurious expressions, which are the subject of complaint, are uttered upon a lawful occasion (t). In an action for slander of title, it must appear that the words were spoken maliciously: it is not necessary for the defendant to plead specially; but the plaintiff must prove malice, which is the gist of the action (u). Where in the declaration it was alleged, that the plaintiff was a physician, and exercised that profession in England, and on that account was called doctor, meaning doctor of medicine, and that defendant slandered plaintiff in his character of a physician, and denied his right to be called a doctor of medicine; it was held, that the plaintiff must prove that he was entitled to practise as a physician in England: it was not sufficient to show that he had in fact so practised; nor that he had received the degree of doctor of medicine at the University of St. Andrew's in Scotland (x). It is not competent for the defendant, under the general issue, to offer, in mitigation of damages, evidence that the specific facts in which the slander consists, and for which the action is brought, were communicated to him by a third person (y). In an action for words imputing felony, with a count for maliciously charging the plaintiff with theft before a justice, to which the defendant pleaded the general issue, and also pleas of justification, evidence of general good character is not admissible for the plaintiff (≈). Where words are given in evidence in order to prove malice, which are not stated in the declaration, the defendant may prove the truth of such words; as, not being on the record, the defendant has had no opportunity of justifying them (a). Where the words are not actionable in themselves, and the only ground of action is the special damage, such special damage must be proved as alleged (b). Where the words are actionable without the inducement, the insertion of what is not material and not proved, does not occasion a variance of which advantage can be taken (c). The court refused to grant a new trial on the ground that the damages were excessive, where the jury had given 750l. in an action for defamatory words spoken of a beneficed clergyman to his curate (d). Where one of several counts in a declaration for slander is bad, and some of the defamatory words in it are proved, and the jury find (t) Per Tindal, C. J., Hooper v. Truscott, 2 B. N. C. 464. See ante, p. 1063, and Padmore v. Lawrence, and the other cases cited, ante, p. 1255. (u) Smith v. Spooner, 3 Taunt. 246, ante, p. 1258. (x) Collins v. Carnegie, 1 A. & E. 695; 3 Nev. & M. 703. (y) Mills v. Spencer, Holt's N. P. C. 533. (z) Cornwall v. Richardson, Ry. & M. 305, Abbott, C. J. (a) Warne v. Chadwell, 2 Stark. N. P. C. 457. (b) Ward v. Weeks, 7 Bingh. 211. (c) Cox v. Thomason, 2 Cr. & J. 361; 2 Tyrw. 411. (d) Highmore v. Lord and Lady Harrington, 3 C. B., N. S. 142. a verdict generally with damages for the plaintiff, the court will award a venire de novo (e). But where the matter alleged in the declaration constitutes one count only and general damages are found, judgment will not be arrested on the ground of some of the matter charged not being actionable (f). Costs. By 21 Jac. I. c. 16, s. 6, "In all actions upon the case for slanderous words, if the jury upon the trial of the issue, or the jury that shall inquire of the damages, assess the damages under forty shillings, then the plaintiff shall recover only so much costs as the damages so assessed amount to " This statute does not extend to actions founded on special damage only, because, properly speaking, they are not actions for words, but for the special damage (g). But where words are actionable in themselves, and special damage is laid in the declaration only by way of aggravation, although the special damage be proved, yet if the damages recovered are under 40s., there shall be no more costs than damages (h). In Baker v. Hearne (i), B. R., H. 1767, argued by Dunning for plaintiff, and Ashhurst for defendant, the distinction was not controverted by plaintiff's counsel; the court being of opinion that the words were actionable as relating to plaintiff in his way of trade, they allowed no more costs than damages, the damages being under 40s., notwithstanding the special damages laid in the declaration. If some of the counts in the declaration be for words that are actionable, and others for words not actionable, and special damage be laid referring to all the counts, and there be a general verdict for plaintiff, he is entitled to full costs, though he recover less than 40s. damages (k). In a case where the declaration embraced two distinct objects, viz. a charge for speaking words actionable in themselves, and a charge that defendant procured plaintiff to be indicted, without probable cause, for felony; it was held, that such an action, not being merely an action for words, but also an action on the case for a malicious prosecution, was not within the statute; and, therefore, although plaintiff recovered damages under 40s, yet he should be entitled to full costs (l). In cases within the statute, if damages are under 40s., plaintiff cannot have more costs taxed than the damages, notwithstanding defendant has justified (m). By 58 Geo. III. c. 30, s. 2, in actions or suits for slanderous words, (e) Empson v. Griffin, 11 A. & E. 186, recognizing Angle v. Alexander, 7 Bingh. 119; and Day v. Robinson, 1 A. & E. 554. See Solomon v. Lawson, 8 Q. B. 823; Pemberton v. Colls, 10 Q. B. 461. (f) Alfred v. Farlow, 8 Q. B. 854. (g) Lowe v. Harewood, Sir William Jones, 196; Collier v. Gaillard, 2 Bl. Rep. 1062; Goddall v. Ensell, 2 C. M. & R. 249; Grenfell v. Pierson, 1 Dowl. 406; Kelly v. Partington, 5 B. & Ad. 645. (h) Lord Raym. 1588; Burry v. Perry, 2 Str. 936, S. C.; Turner v. Horton, Willes, 438, S. P. (i) MSS., Chambre, J. (k) Savile v. Jardine, 2 H. Bl. 531. (1) Topsall v. Edwards, Cro. Car. 163; Blizard v. Barnes, Cro. Car. 307, S. P. (m) Halford v. Smith, 4 East, 567, S. P. said, per Clive, J., in Bartlett v. Robbins, to have been determined in the Court of B. R., 2 Wils. 258, E. 5 Geo. I. in courts not holding plea to the amount of 40s., if the jury assess the damages under 30s., the plaintiff shall recover costs only to the amount of the damages. See, as to costs, the statute 3 & 4 Vict. c. 24, ante, p. 37. As to costs where part only of a divisible plea of justification is found for the defendant, see Reynolds v. Harris, 3 C. B., N. S. 267. CHAPTER XXXVI. STOPPAGE IN TRANSITU. Nature of this Right, Who shall be considered as capable of exercising it Where determined How far the negotiation of the Bill of Lading may tend to defeat the Right PAGE 1272 1274 1276 1285 1292 Nature of the Right of Stopping in Transitu.-When goods are consigned upon credit by one merchant to another, it frequently happens that the consignee becomes a bankrupt or insolvent, before the goods are delivered. In such case the law, deeming it unreasonable that the goods of one person should be applied to the payment of the debts of another, permits the consignor to resume the possession of his goods. This right which the consignor has of resuming the possession of his goods, if the full price has not been paid, in the event of the insolvency of the consignee, is technically termed the right of stopping in transitu. The doctrine of stoppage in transitu owes its origin to courts of equity (a), but it has since been adopted and established by a variety of decisions in courts of law, and is now regarded with favour as a right which those courts are always disposed to assist. This right is paramount to any lien against the purchaser (b). The following cases will illustrate the nature of this right. B., at London, gave an order to A., at Liverpool, to send him a quantity of goods. A. accordingly shipped the goods on board a ship there, whereof the defendant was master, who signed a bill of lading to deliver them in good condition to B. in London. The ship arrived in the Thames, but B. having become a bankrupt, the defendant was ordered, on behalf of A., not to deliver the goods, and accordingly refused, though the freight was tendered." It appeared, by the plaintiff's witnesses, that no particular ship was mentioned, whereby the goods should be sent, in which case the shipper is to be at the risk of the perils of the seas. An action on the case, upon custom of the realm, having been brought against the defendant as (a) See D'Aguila v. Lambert, 9th June, 1761; 2 Eden, 75, and Amb. 399, S. C., where the doctrine was first recognized; the and per Lord Abinger, C. B., 8 M. & W. 338. (b) Morley v. Hay, 3 Man. & Ry. 396. a carrier, Lord Mansfield, was of opinion that the plaintiffs were not entitled to recover; and said, he had known it several times ruled in Chancery, that where the consignee becomes a bankrupt, and no part of the price has been paid, it was lawful for the consignor to seize the goods before they come to the hands of the consignee or his assignees; and that this was ruled, not upon principles of equity only, but the laws of property. The plaintiffs were nonsuited (c). "What the effect of stoppage in transitu is, whether entirely to rescind the contract, or only to replace the vendor in the same position as if he had not parted with the possession, and entitle him to hold the goods until the price be paid down," was, in a recent case, considered to be a point not yet finally decided, the majority of the Court of Exchequer however strongly inclined to the latter supposition (d). Lord Kenyon held it to be an equitable lien adopted by the law, for the purposes of substantial justice. Hence the circumstance of the vendee having paid in part for the goods will not defeat the vendor's right of stopping them in transitu; the vendor has a right to retake them, unless the full price of the goods has been paid; and the only operation of a partial payment is to diminish the lien, pro tanto (e), for "though a vendor of goods may have been paid part of the price, he has all the rights of an unpaid vendor, until the whole has been paid" (f). The unpaid vendor may stop in transitu before the goods come to the hands of the vendee's factor, although the factor has the bill of lading, indorsed to order, in his hands, and is under acceptance to the vendee on a general account; wherefore, in such case, where the vendee became bankrupt, and the factor also became bankrupt, and the messenger under the factor's commission, upon the arrival of the ship, went on board and seized the cargo, the agent of the vendor having previously given notice to the captain to deliver the cargo to him, and the captain having agreed thereto; it was held, that the trover would lie by the vendor against the assignee of the bankrupt factor (g). The cases which have been decided on this subject may be arranged under the following divisions:-1st, Who shall be considered as capable of exercising the right of stopping in transitu; 2ndly, Under what circumstances the transitus shall be considered as continuing; 3rdly, When the transitus shall be considered as determined; and, lastly, Where the right of the vendor has been defeated by the negotiation of the bill of lading. (c) Assignees of Burghall v. Howard, London Sittings after Hil. T. 32 Geo. II., coram Lord Mansfield, C. J., 1 H. Bl. 366, n. (d) Wantworth v. Outhwaite, 10 M. & W. 452. See Clay v. Harrison, 10 B. & C. 99; Stephens v. Wilkinson, 3 B. & Ad. 323; Edwards v. Brewer, 2 M. & W. 375. (e) Hodgson v. Loy, 7 T. R. 440, recognized in Feise v. Wray, 3 East, 93, and infra, cited and distinguished in Nicholls v. Hart, 5 C. & P. 179, Tindal, C. J. (f) Per Parke, B., in Van Castel v. Booker, 2 Exch. 702; and in Edwards v. Brewer, supra. (g) Patten v. Thompson, 5 M. & S. 350. |