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ROoke brought an Action upon the case against Smith for speaking these words of him, Thou art a poor fellow,* 1.1 and art not able to pay 2s. in the pound, and art not able to pay thy debts. Vpon an Issue joyned, and a Verdict for the Plaintif, the Defendant moved in Arrest of Iudgement, that the words are not actionable; for 1. the Plaintif is not by them charged
with the crime of being a Bankrupt, and so there is no particular losse to him. 2ly. It is not showed that the Plaintiff got his living by buying and selling, or that he is indebted, and 11. Iac. Brook and Clarks case, was cited. Twisden on the other side answered, that the Plaintiffs credit was impaired by the words, and by his credit his livelyhood is in part mainteyned. And he cited Viccary and Barns case. Adjourned to the next Term. Wild afterwards moved again for Iudgement, because the words being spoken of a tradesman, he conceived them to be actionable. Maynard on the other side held them not actionable, because there is no particular da∣mage alleged to grow to the Plaintif by speaking of them, and because there is no crime objected against the Plaintiff; for poverty is no crime; but a man may be poor and honest at the same time, and he cited two cases to be adjudged, that a particular damage ought to be alleged. And said that these Actions are not favoured in Law, and therefore if the words be not cleerly Actionable, it was not reason to make a forced construction of them to make them so. Next the Plaintiff hath not averred, that he was able to pay all his debts for all the things bought; but only of a debt contracted by the buying of the Oyl mentioned. Twisden denyed the cases put by Maynard of the particular damage, and held the words actionable. Roll chief Iustice said, a man may be a Bankrupt, and yet be honest, for he may become so by accident,* 1.2 and not of purpose to deceive his creditors. But here is no need for the Plaintiff to shew he had a particular losse by the words, for it is enough that he is generally scandalised by them, neither is it necessary for him to averr, that he was able to pay all his debts as Maynard hath alleged, Therefore let the Plaintiff have his Iudgement nisi. Antea.
Arrest of Iudgement in an Action up∣on the Case for words.
Averment.