Falkner v Cooper
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1823 |
| Date | 01 January 1823 |
| Court | Court of Common Pleas |
English Reports Citation: 124 E.R. 821
COURT OF COMMON PLEAS
[55] tbrmino hillakij, 17 & 18 car. 2, com. bang. falkner wrsus CoorER. Action upon the case for scandalous words. The plaintiff declares she is a pure virgin and a loyal subject, and of good fame and behaviour, &c. and that the defendant 20 June, 15 Car. 2, spake these scandalous words of her: she (meaning the plaintiff) had a child, and either she (innuendo the plaintiff) or some body else made it away. Verdict for the plaintiff and 51. damages. Newdigate. I conceive the words are too general, and that it is only a charge that she was incontinent, and she is punishable in the Spiritual Court, arid the last words (she or some body else made it away) are too uncertain, and no special damage is laid. Earl, contra. I conceive the action will lie: for if a woman hath a bastard, she is punishable by the statute 18 Eliz. cap. 3, 4 Co. f. 17, Ann Davies case, and in Dratot and Siblies case, the words were, She play'd the whore for a white smock, and ruled that they would not bear an action, for nothing is charged but incontiuency; but in our case it is, she had a child i.e. a bastard (for she lays she is a virgin) which is punishable in our law ò. Latch, f. 159. Keyrnar is a base gentleman, he hath had four or five children by his servant Anne, and hath either killed them, or procured them to be killed; action was adjudged to lie for these words. Mich. 12 Car. 2, Mascals case, Thou art an whore and a pocky whore, adjudged actionable. Term. Mich. 1658, Pye and fPallis case, one said of a maid, she was a man and not a woman, and special damage laid, the action will lie. These words carry damage in themselves, though no special damage be laid. Bridgman Chief Justice. If it had been thus, Sbe had a child and she made it away, ft doth clearly constare de persona, it is fixt upon her. In cases of scandal I am not satisfied to go by presidents, because I hold that scandalous now, which was not twenty years ago; it is use which makes words have force, and the words which are now actionable, hereafter may not be so: this is, She hath made away her child, now what construction can we make of these words, she...
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