1 H. & C. 152. PARKINS V.

SCOTT 839
ownership in other personal property, and is far more extensive than the control of
copying after publication in print, which is the limited meaning of copyright in its
common acceptation, and which is the right of an author to which the statute of Anne
relates. Thus, if after composition the author chooses to keep his writings private,
he has the remedies for wrongful abstraction of copies analogous to those of an owner
of personalty in the like case. He may prevent publication; he may require back
the copies wrongfully made; he may sue for damages if any are sustained." This
case is analogous to that of Prince Albert v. Strange (1 Mac. & G. 25), where all the
authorities are reviewed by Lord Cottenham.
The Court then called ou
Montague Smith and Aspland, to support the rule. Unless the plaintiff has some
right in the nature of copyright, the first count cannot be supported. The right to
an injunction depends on the 79th section of the Common Law Procedure Act, 1854,
which provides that where the party injured is entitled to maintain and has brought
an action, he may claim a writ of injunction against the repetition or continuance of
such injury. That enactment confers on Courts of law a new remedy by injunction
where there is a legal right, but it does not create any new equitable right. Then
what legal right has the plaintiff apart from his right to maintain detinue 1 He is
entitled to a return of the goods, or their value; and if he recovers damages, he can
maintain no further proceeding. But by claiming an injunction the plaintiff is in
effect attempting to obtain two [152] causes of action out of one transaction.
[Pollock, C. B. Suppose the owner of a celebrated statue lent it to a friend, would
the latter have a right to copy it? It is an injury so to deal with the property of
another as to lessen its value.] If the defendant pays the damages the photographs
become his property; therefore the claim to the injunction is too large, for it sqeks to
restrain the defendant from selling his own property. [Pollock, C. B. It is essential
not only that the defendant should not make copies, but also that he should not sell
them. If a person surreptitiously copied a picture, a Court of equity would interfere
to prevent him from availing himself of it in any manner whatever. The right of a
person as against another who has surreptitiously copied his work is distinct from the
right of copyright, which is the creation of the statutes.] The plaintiff has no copy-
right in these photographs; Eeede v. Conquest (9 C. B. N. S. 755). [Bramwell, B.
The wrongful act of which the plaintiff complains is a compound one, namely, copying
the plaintiff's works and selling the copies. The plaintiff claims damages for the
injury done to him by taking the copies, and an injunction to restrain the defendant
from doing further injury by selling them. If the plaintiff had recovered substantial
damages on the first count, we might, as in the case of a penalty, in our discretion
have refused an injunction.(J)]
POLLOCK, C. B. The damages on the first count were merely nominal, and only
in respect of the infringement of the plaintiff's right. The question of copyright
does not arise. The rule ought to be discharged, and the injunction must issue.
MARTIN, B., and BRAMWELL, B., concurred.
Eule discharged.

[153] PARKINS AND MATILDA his Wife v. SCOTT AND SARAH his Wife. May 8,
1862.Where slanderous words are not actionable per se, no action will lie
against the original utterer of the slander for damage resulting from a repetition
of it unauthorized by him.Therefore where the defendant imputed adultery to
the plaintiff's wife in his absence, and she.voluntarily repeated the slander to her
husband, whereby he refused to cohabit with her: Held, that no action was
maintainable against the defendant.Quaere, whether the loss of consortium is
ground of special damages.
[S. C. 31 L. J. Ex. 3 3 1 ; 8 Jur. (N. S.) 593; 10 W. R. 562; 6 L. T. 394. Referred
to, Biding v. Smith, 1876, 1 Ex. D. 96. Followed, Clarke v. Morgan, 1877,
38 L. T. 355.]
Slander. The declaration stated that the defendant, Sarah, falsely and maliciously
spoke and published of the plaintiff, Matilda, the following words : " Go in, you nasty

(6) See Carnes v. Nesbtit, 7 H. & N. 778.

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840 PARKINS V. SCOTT 1 H. & C. 134.

slut, and I'll tell you what you are; you have been a whore from your cradle" (meaning
thereby that the plaintiff, Matilda, had been and was then an unchaste woman, and
had after her intermarriage been guilty of adultery). Whereby the plaintiff, Matilda,
was not only greatly injured in her credit and reputation, but by reason of the
premises also her husband refused any further to cohabit or live with her, and ceased
therefrom any longer so to do, and thence hitherto has ceased to live, reside, or cohabit
with her; whereby the plaintiff, Matilda, was deprived of the fellowship, comfort,
and support of her said husband, which she had heretofore enjoyed, and is still
deprived thereof. *
Plea. Not guilty.
At the trial, before Williams, J., at the last Leicestershire Spring Assizes, it was
proved that the slanderous words set out in the declaration were addressed by the
defendant, Sarah, to the plaintiff, Matilda, in the presence of her mother and other
persons, but in the absence of her husband, he being then from home. On his return,
the plaintiff, Matilda, repeated to him the slanderous words, as well as some language
of a similar description which had been addressed to her by other persons. The
husband gave evidence as f o l l o w s : " I was so much hurt that after consideration Ic
thought they would not have dared to charge her with such foul abuse, that I deter-
mined to leave her till the matter was cleared up." On cross-examination he said,
" I left her [154] in consequence of the bad language used by all, more particularly
by Mrs. Scott." !
It was submitted, on behalf of the defendant, that the words were not actionable
without proof of special damage, and that the damage alleged was not sufficient legal
damage: that it was not the wife's duty to tell her husband of the slander, and as he
only knew it by her repetition without any authority from the slanderer, the action
was not maintainable : Ward v. Weeks (7 Bing. 211).
The learned Judge reserved leave to move to enter a verdict for the defendant or
a nonsuit; and directed the jury that in order to find a verdict lor the plaintiff they
must be satisfied that the husband refused to live with his wife in consequence of the
slander uttered by the female defendant. The jury found a verdict for the plaintiff,
with 40s. damages.
Hayes, Serjt., in the following term, obtained a rule nisi accordingly, on the
ground that the alleged special damage did not arise from the speaking of the words
by the female defendant, but from the voluntary communication by the female plaintiff
to her husband of those words, and of other abusive language; or why the judgment
should not be arrested, on the ground that the action was not maintainable, the words
not being actionable in themselves, and the alleged special damage not being sufficient
legal damage to render the words actionable.
O'Brien and Cockle now shewed cause. The authority of Ward v. Weeks is
not disputed. That case decided that the original utterer of slander is not responsible
for damage resulting from an unauthorized repetition of it by a third person.
But here the slander was addressed to a person whose duty it was to inform her
husband of it. The case there-[155]-fore falls within the principle of Keiidillon v.
Maltby (Car. & Marsh. 402), where a police officer was dismissed by the Commissioners,
in consequence of a report duly made to them of a censure uttered on him by a magis-
trate acting in his judicial capacity; and it was held that, in the absence of malice,
no action would lie against the magistrate, for it was his duty to express his opinion
of the conduct of police officers. [Wilde, B. Is it the duty of a wife to communicate
to her husband any vulgar abuse addressed to her1?] Here there was an imputation
of adultery, whichit was the duty of the wife to communicate tocher husband, for it
affected not only her reputation but himself also; and therefore he had an interest in
ascertaining whether it was true. The consequences might have been more serious
if the slander had reached him from another source. [Martin, B. The question is
whether the alleged damage was the natural consequence of the slander. No legal
wrong was done at the time when the words were spoken.] Secondly, there was
sufficient special damage to render the action maintainable. In consequence of the
slander the husband refused to cohabit with his wife. [Martin, B. This question
was lately before the House of Lords in a case of Lynch v. Knight (Dora. Proc. July 17,
1861).] There no actual adultery was imputed to the wife, and on that ground it
was held that the loss of the husband's consortium was too remote a damage to support
the action. [Martin, B. Was the husband justified in refusing to cohabit with his

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1H.&C.156. PARKINS V. SCOTT 841

wife ?] That is immaterial; it is sufficient if the special damage is the natural and
probable consequence of the slander. [Bramwell, B. Suppose a person said some-
thing to a master about his servant, in consequence of which the master dismissed
him, would an action lie against that person 1] According to Lumley v. Gye (2 E. & B.
216), wherever, either from the relation between the parties or by express contract,
[156] a right accrues to one party and a duty is imposed on the other, any wrongful
act which prevents the performance of that duty affords a ground of action. Upon
that principle actions for criminal conversation and seduction were founded; because
a husband has a right to the consortium of his wife and a master to the servitium of
his servant. Wilton v. Webster (7 C. & P. 198) shews the nature of the loss of con-
sortium which affords ground of damage. [Bramwell, B. In Hall v. Wright (E. B.
& E. 746), Lord Campbell considered that supervening bodily infirmity did not put
an end to a contract of marriage. Martin, B. In Moore v. Meagher (1 Taunt. 39) it
was held that the loss of hospitality of friends was a sufficient temporal damage
whereon to maintain an action.] It is conceded that a wife has no right of action for
the false imprisonment of her husband, whereby she lost his consortium, but there a
wrong is done to the husband for which he may recover damages. Where slanderous
words are spoken of a wife a damage ensues to her. [Wilde, B. If words are spoken
of a person which injure his character, is he bound to communicate them to all his
friends; and could he recover damages for every friend he lost? With regard to a
servant, the wrongful act prevents the performance of a duty. Martin, B. In the
case of a servant, the foundation of the action is that the master is deprived of that
species of property which he has in the service of his servant] If the slander came
to the knowledge of the husband from some other source, the wife's condition would
be worse from having refrained to communicate it. They also referred to Lynch v.
Knight (Dom. Proc. July 17, 1861).
Hayes, Serjt., and Field, in support of the rule. If this action is maintainable,
any slanderous words spoken to a sister, a brother, or any other relation, though not
actionable [157J in themselves might be rendered actionable by reason of their repeti-
tion of them. A woman, in a quarrel with a neighbour, might have offensive language
addressed to her, and upon repeating it to her husband, he might refuse to cohabit
with her, and so create a cause of action. If it is the duty of a wife to communicate
to her husband slander uttered against her, it is equally the duty of a husband to
communicate to his wife slander uttered against him. By exercising this supposed
moral duty actions for slander might be indefinitely multiplied. If a person said of
a tradesman that he used false weights and he told that to a customer, who in conse-
quence ceased to deal with him, could the tradesman maintain an action1? The true
principle is thus stated by Tindal, C. J., in Ward v. Weeks (7 Bing. 211, 215):
"Every man must be taken to be answerable for the necessary consequences of his
own wrongful acts ; but such a spontaneous and unauthorized communication cannot
be considered as the necessary consequence of the original uttering of the words."
Moreover, the special damage was not the necessary and legal consequence of the
slander. Allsop v. Allsop (5 H. & N. 534) was an action by husband and wife for
slander imputing incontinency to the wife, by reason whereof she became ill, and was
unable to attend to her necessary affairs and business, and her husband was put to
expense in endeavouring to cure her; and it was held that the action was not main-
tainable. Pollock, C. B., there said : " We ought to be careful not to introduce a
new element of damage, recollecting to what a large class of actions it would apply,
and what a dangerous use might be made of it." In Lynch v. Knight, Lord Wensley-
dale was of opinion that a wife has no right of action for the loss of the consortium of
her husband, in consequence of the slander of her character. They also referred to
Vicars v. Wilcocks (8 East, 1).
[158] POLLOCK, C. B. I am of opinion that the rule ought to be absolute to enter a
nonsuit. I cannot help expressing regret that we should have to discuss such a matter
where the words can scarcely be called slander, but are rather mere vulgar abuse, the
result of ill-temper and bad manners. The point, however, having been reserved for
our consideration, we must dispose of it. The authority of Ward v. Weeks (7 Bing.
211) is not disputed; and I am not disposed to say more than is necessary to get a
safe resting place for a decision. Ward v. Weeks decided that where the words are
not actionable per se the original utterer of the slander is not liable, unless either the
person who was influenced by them was present and heard them spoken, or the
Ex. Div. x i v . 2 7 *

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842 NASH V. ASH 1 H. & C. 159.

utterer authorized their repetition. It is said that in consequence of the slander the
husband deprived the wife of his consortium. I do not stop to inquire whether he
was justified in so doing, because the slander was not uttered in his presence, nor was
it communicated to him by authority of the defendant. Therefore on the authority
of Ward v. Weeks the rule must be absolute.
MARTIN, B. I am of the same opinion. We could not discharge this rule without
acting contrary to the law as laid down in Ward v. Weeks; and if that decision is to
be overruled it must be done by a Court of error. I agree with the observation of
Lord Campbell in Lynch v. Knight,(b) that the law on this subject is in a very unsatis-
factory state; and if the matter were de novo, I might express a different opinion,
but I think we are bound by the authority of Ward v. Weeks.
BRAMWELL, B. I am also of opinion that the rule ought to be absolute. I rest
my judgment entirely on the case of [159] Ward v. Weeks. If a man makes a
slanderous statement to another, and he thinks fit to communicate it to a third
person, it is not reasonable to hold that the first speaker is responsible for the ultimate
consequences. If I make a slanderous statement to a, man, and do not desire nor
authorize him to repeat it, but nevertheless he does so, he ought to do it upon his
own responsibility, and I ought not to be liable for the consequences of his wrongful
act. Mr. O'Brien contends that the repetition of the slander to the husband was the
natural and inevitable consequence of uttering i t ; and that it was the duty of the
wife to communicate it to her husband. 4 think not; and, without going more fully
into the matter, it seems to me that .Ward v. Weeks is an authority in point.
W I L D E , B. I am of the same opinion. It seems to me that the rule laid down
in Ward v. Weeks is the true rule. It is attempted to distinguish that case from the
present, on theground that there the person who heard the slander was under no
obligation to repeat it. But the Court decided that ease on this principle, that the
person who brings an action of slander must be the person who heard it uttered, or
to whom it has been communicated by the authority of the original utterer. It would
be a dangerous innovation if the doctrine contended for were introduced, and it would
be difficult to say where the action for slander would stop. The case has been put on
the high moral duty of a wife to communicate to her husband any imputations upon
her character; but in my opinion there is no obligation whatever on a wife to repeat
to her husband whatever is said of her in his absence. In this case the words used
were nothing more than a missile in the course of the vulgar abuse of one woman by
another.
Rule absolute to enter a nonsuit.

[160] N A S H V. ASH.(<J) Jan. 31, 1862. In 1802, by indenture, reciting an intended

marriage between L. and M., and that after the death of certain relations L. was
entitled under the will of his uncle ,to five messuages; in consideration of the
intended marriage, and of 5s. paid, L. granted, bargained, sold, assigned, and set
over unto R. and J. the reversion, or such other estate as he was entitled to under
the will of his uncle, "upon the trusts and to and for the uses" thereinafter
declared, i.e. upon trust to "permit and suffer M." and her assigns, during her
life, to receive the issues and profits for her sole use, her receipts alone to be
sufficient discharges for the same; and after her death in trust for L . ; and after
the decease of the survivor, in trust for such one or more of the children of L.
and M. as they should by deed jointly appoint. In 1829, L. and M., by deed,
executed the power, and granted, bargained, sold, and released the reversion in
the messuages to such uses as P., their son, should by deed appoint. In 1839,
P., by deed, conveyed the reversion to N. M. received the rents during her
life, and L. after her death. No rent was received by P. or N. In ejectment by
N . : Held: First, that the deed of 1802 was admissible in evidence against the
defendant, although neither P. nor the plaintiff had been in receipt of the rents.
Secondly, that the trusts of the deed of 1802 were executed by the statute
(with the exception, perhaps, of that for the wife), and therefore P. took a legal
estate by the appointment under the deed of 1829.Thirdly, that the deed of
1802 was not a bargain and sale properly so called, but a conveyance to uses.

(b) The judgment of the late Lord Campbell was read by Lord Brougham.
(a) Decided in Hilary Term.

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