charge a woman with fornication or adultery, or incontinence in any shape, is not actionable at common law, the offences not being punishable in the temporal *courts, but cognizable in the ecclesiastical [*90 courts only;(1) except in London, and some particular places, where by custom, the offence is summarily punishable, and where the imputation is therefore actionable; (2) and this is the law of several States in this country, where those offences have not been made indictable by statute;(3) and was the law of others, before statutes were passed to make such charges actionable;(4) but in those States in which fornication and adultery have been made indictable by statute, such charges are held to be actionable, as in Pennsylvania, Massachusetts, Connecticut, and Georgia;(5) [but if the word have any meanings besides its strictly legal one, it will depend on circumstances, of which the court will judge whether the legal sense is bad; hence, for a church pastor, acting in pursuance of an order of an ecclesiastical court, to allege that a certain person who had been tried by the court had " clearly violated the seventh commandment" when in a subsequent part of the sentence, he spoke of the sin of fornication and uncleanness has been held not to be actionable as a charge of legal "adultery;" there being an adultery in scripture separate from the sort of adultery punished by law;(6)] and in New Jersey, where fornication and bastardy constitute a punishable offence, an imputation thereof is actionable, though an imputation of fornication alone is not;(7) and in several States, statutes have been passed making the charge of fornication or adultery slanderous and actionable.(8) In Ohio, and in Iowa, by an innovation on the common (1) Byron v. Elmes, Salkeld, 694; Graves v. Blanchet, Id. 696; Wilby v. Elston, 8 Man., Gr. & Scott [65 E. C. L.], 142.

(2) Brand and Wife v. Roberts and Wife, 4 Burrow, 2418.

(3) Buys and Wife v. Gillespie, 2 Johnson, 115; Stanfield v. Boyer, 6 Harris & Johnson, 248; Woodbury v. Thompson, 3 New Hampshire, 194; Linney v. Maton, 13 Texas, 449.

(4) Boyd and Wife v. Brent, 3 Brevard, 241; Robert W. and Wife v. E. L., 2 Nott & McCord, 204; Berry v. Carter et ux., 4 Stewart & Porter, 387; Elliott v. Ailsbury and Wife, 2 Bibb, 473.

(5) Walton v. Singleton, 7 Sergeant & Rawle, 449; Harker v. Orr, 10 Watts, 245, 248; Beirer v. Bushfield, 1 Id. 23; Miller v. Parish, 8 Pickering, 384; Frisbie v. Fowler, 2 Connecticut, 707; Pledger and Wife v. Hathcock, 1 Kelly, 550.

(6) Farnsworth and Wife v. Storrs, 5 Cushing, 412.

(7) Smith v. Minor, Cox, 16.

(8) For example, in North Carolina, St. of 1808; See McBrayer v. Hill, 4 Iredell's Law, 136; Watts v. Greenlee, 2 Devereux, 115; Kentucky, St. of 1811, sec. 9; See Morris *. Barkley, 1 Littell, 64; Philips v. Wiley, 2 Id. 153; Indiana, Ind. Terr. Statutes, 1833, p. 110; acc. Ind. St., 1823, p. 296, and Ind. R. S. 1838, p. 452; See Alkorn v. Hooker, 7 Blackford, 58; Worth v. Butler, Id. 251; Shields v. Cunningham, 1 Id. 86; Wilcox v. Webb, Id. 258; South Carolina, St. of 1824, p. 28; See Freeman v. Price, 2 Bailey, 115; Illinois, R. S., 522; Elam ». Badger, 23 Illinois, 500; See Regnier v. Cabot, 2 Gilman, 34; Patterson et al. v. Edwards et al., Id. 720; Alabama, St. of Feb. 2d, 1839; See Williams and Wife v. Bryant and Wife, 4 Alabama, 44.

law, it is held that to charge want of chastity on a female is actionable, on account of the probable injury to her social position and prospects.(1) Indeed in Ohio this principle has been pushed to a very irrational extent; for in a late case (2) the court said, "We hold it a sound principle of law(!) that words spoken of a female, which have a tendency to wound her feelings, bring her into contempt, and prevent her from occupying such position in society as is her right as a woman, are actionable in themselves;" and the defendant in that case *91] having called the woman an hermaphrodite, instead of the judg ment "Risu solventur tabellæ, tu missus abibis," being entered, the words were decided to be actionable! See Wetherhead v. Armitage, 2 Levinz, 233, and Robertson v. Seevers, 3 Iowa, 281, where the case is denied, and is said not to have been followed by any other court.

The imputation of any felony is actionable: and we may consider separately the most prominent instances that have occurred.

1. A felonious killing.-A general charge of having killed another, without explanation or limitation, is actionable; (3) because "every homicide is judicially, as well as to the common apprehension of mankind, deemed felonious, unless the circumstances of justification or excuse appear;" per Minor, J.,(4) accordingly, the following expressions have been held actionable: "You have killed my brother;"(5) or "You killed a negro;"(6) or "You are a gang of murderers—you killed T., and you know it ;" (7) or " He killed my child-it was the saline injection that did it," innuendo of felonious killing;(8) or "I think the present business ought to have the most rigid inquiry, for he murdered his first wife, that is he administered improperly medicines taken for a certain complaint, which was the cause of her death."(9) The imputation of an intent to kill, as by saying, "She put poison in a barrel of drinking water to poison me," is also slanderous. (10)

2. Arson. At common law, it is actionable to charge a man with any

(1) Goodenow v. Tappan, 1 Ohio, 60; Sexton v. Todd, Wright, 817; Wilson v. Runyon, Id. 651; Dailey v. Reynolds, M. S. case cited in Abrams v. Foshee, 3 Iowa, 280; but not fully understood as appears by the printed report in 4 Iowa, 356. However, in Smelt v. Silence, 4 Id. 424 (a felicitously named defendant in an action for words), and in Wilson v. Bieghler, 35, 429, the court adopt the principle fully; independently of authority, regarding the innovation as a mark of the "progress of enlightened sentiment." (2) Malone v. Stewart and Wife, 15 Ohio, 319.

(3) Johnson v. Robertson and Wife, 8 Porter, 486, 489.

(4) Taylor v. Casey, Minor, 258, 261.

(5) Johnson v. Robertson.

(6) Hays and Wife v. Hays, 1 Humphreys, 402.

(7) Chandler v. Holloway, 4 Porter, 18.

(8) Edsall v. Russel, 5 Scott's New, 801; S. C. 2 Dowling's N. S. 641.

(9) Ford v. Primrose, 5 Dowling & Ryland, 287.

(10) Mills and Wife v. Wimp, 10 B. Monroe, 417; see, however, Langdon v. Young, 33 Vermont, 139.

burning of a house which amounts to arson, but not where the burning is not arson; to say, therefore, "G. burnt the camp-ground," referring to certain houses owned by a corporation, is actionable;(1) but to say, "the plaintiff burnt his (the defendant's) house," where the conversation showed that he alluded to an out-house not parcel of a dwelling house, is not actionable;(2) In Kentucky and Maryland, however, where statutes have made the wilful burning of any house arson, it is actionable to charge a man with burning a school house or barn;(3) and in Alabama, to charge one with burning a cotton-house or gin-house (a house to store cotton in), a statute making the offence arson, is actionable.(4) To charge a man with burning his own house, or that of his wife, the husband being in possession, (5) is not actionable, because the act is not unlawful unless the house were contiguous to others, or the burning were with intent to defraud the insurance officers, which should be averred;(6) but a charge of burning one's own house, where a statute made that arson in the third degree, has been decided to be actionable.(7) In Bloss v. Tobey, 2 Pickering, 320, the words "he burnt his store; he would not have got his goods insured if he had not meant to burn it," were held not to be *actionable, because burning one's [*92 own property, unaccompanied by injury to others or a design to injure, is not actionable; such a charge was therefore said not to be actionable, unless there be in the declaration an averment that goods belonging to another were in the store, or goods belonging to the plaintiff in the store were insured: but the words used in this case do seem sufficiently to impute an intention to cheat the insurers by the burning of the store.

3. Felonious stealing or larceny.-There are several kinds of taking which are unlawful, but it is only a felonious taking, the charge of which is actionable; the cases therefore go upon a distinction between larceny on the one hand, and a mere trespass, or a mere breach of trust, on the other. A charge of stealing matters which are of such a nature that there may be a felonious stealing of them, is actionable; therefore to say "he stole my sugar and coffee;"(8) or "you did steal my brother's cotton;"(9) or "there is the man that stole my horse, and fetched him home yesterday morning ;"(10) or a charge of stealing a key, for that, (1) Giddens v. Mirk, 4 Georgia, 364, 374.

(2) Brady v. Wilson, 4 Hawks, 93.

(3) Wallace v. Young, 5 Monroe, 155; Jones v. Hungerford, 4 Gill & Johnson, 402; House v. House, 5 Harris & Johnson, 125.

(4) Waters v. Jones, 3 Porter, 442.

(5) Redway v. Gray, 31 Vermont, 298.

(6) Sweetapple v. Jesse, 5 Barnewall and Adolphus, 27.

(7) Case v. Buckley, 15 Wendell, 327.

(8) Gill v. Bright, 6 Monroe, 130.

(9) Stokes v. Stuckey, 1 McCord, 562.

(10) Bonner v. Boyd, 3 Harris and Johnson, 278.

66

though in the lock of the door of a house, is the subject of larceny ;(1) or for an employer to say of an overseer that he stole his wheat and corn, for that may be a ground of felony ;(2) have been held actionable, even though the larceny be alleged to have been committed in another State, and even though from special circumstances as the infancy of the person slandered he should be exempt from punishment.(3) Taking clothes, animo furandi, from the dead body of a man drowned in the wreck of a vessel and driven on shore, is a felony, and the imputation of it is a slander.(4) And a charge of taking things accompanied with circumstances showing that the taking was secret and blamable, has been held to amount to an imputation of felony.(5) And, in a general way, to call a man a thief," without more, is actionable, because ex vi termini, it imports a felony ;(6) and so is a charge of "pilfering ;"(7) and of being a "thieving person."(8) But if one be charged with stealing, under such circumstances as show that a felony was not capable of being committed, or at least was not committed, but that the act was either a trespass or a breach of trust, the charge will not be actionable. A charge of stealing something which is part of the freehold; for example, a charge of stealing, understood to relate to standing timber;(9) as to say, "he stole my bee-tree ;"(10) or, a charge of stealing earth, as to say "he stole my marl ;"(11) is not actionable: nor is a charge of stealing a dog, that not being a felony;(12) or a charge, "you have stolen a file of bills out of *my desk," that not being larceny.(13) In like *93] manner, the following expressions, "those two rascals killed my hogs and converted them to their own use," innuendo of felonious stealing;(14) and "H.'s boys did frequently come to our house and hire our negroes and take the dogs and go down into the river bottom and kill cattle no more theirs than mine;"(15) have been held not actionable, as

(1) Haskins v. Torrence, 5 Blackford, 417.

(2) Wheatley v. Wallis, 3 Harris & Johnson, 1.

(3) Stewart v. Howe, 17 Illinois, 71.

(4) Wonson v. Sayward, 13 Pickering, 402; and see Bash v. Somner, 20 Penna. State, 162.

(5) Bornman v. Boyer, 3 Binney, 515; McKennon v. Greer, 2 Watts, 352; Jones v. McDowell, 4 Bibb, 188.

(6) Fisher v. Rotereau and Wife, 2 McCord, 190; Dudley v. Robinson, 2 Iredell's Law, 141; Parker v. Lewis, 2 Greene's Iowa, 311; Penfold v. Westcote, 2 New, 335; see also Slowman v. Dutton, 10 Bingham, 402.

(7) Becket v. Sterrett, 4 Blackford, 499, 500.

(8) Alley v. Neely, 5 Id. 200.

(9) Dexter v. Taber, 12 Johnson, 239.

(10) Idol v. Jones, 2 Devereux, 162; Cock v. Weatherby, 5 Smedes & Marshall, 333 (11) Ogden v. Riley, 2 Green, 186.

(12) Findlay v. Bear, 8 Sergeant & Rawle, 571.

(13) Blanchard v. Fisk, 2 New Hampshire, 398. (14) turgenegger v. Taylor, 2 Brevard, 480.

(15) Porter et ux v. Hughey, 2 Bibb, 232.

merely imputing a trespass: see however, Yearly v. Ashley, 4 Harris & Johnson, 314. And the case is similar, if the imputation amount merely to a breach of trust; as to charge one with stealing wool-filling sent to his own house to be woven, which would not be a felony ;(1) or, to say, "J. M. was an United Irishman, and got the money of the United Irishmen into his hands and ran away with it, and is now a rich man at P.;"(2) or to charge one with embezzling goods, because that implies the wrongful appropriation and use of what came rightly to possession;(3) these are not actionable in themselves, because they import a breach of trust. To charge a church-warden with stealing the bell-ropes of the church of which he was warden, is not actionable, because in law the possession is in him; but a charge of stealing bell-ropes generally, is.(4) To say that "library has been plundered by C.," is not in itself. actionable, because though denoting a wrongful acquisition, it does not sufficiently charge a felony ;(5) and the same may be said of an expression like this: "D. must settle for some of my logs he has made away with."(6) With regard to charges of robbery, see cases cited below.(7) A charge against a post-master of taking money out of a letter, put into the post-office by the defendant, and appropriating it to his own use, and of keeping and embezzling letters is actionable, because the offence is indictable by statute and imparts moral turpitude;(8) and for the same reason, a charge of robbing the United States Mail, is actionable.(9)

4. Forgery.—A general charge of forgery, or a distinct imputation of that which is forgery at common law, or by statute, is actionable;(10) but a charge of forging that of which the forgery is not indictable, as of a letter, is not actionable;(11) in Alexander v. Alexander, 9 Wendell, 141, however, it was held that a charge of forgery, understood to relate,

(1) Hawn and Wife v. Smith, 4 B. Monroe, 385.

(2) McClurg v. Ross, 5 Binney, 218; see also Thompson v. Bernard, 1 Campbell, 48. (3) Caldwell v. Abbey, Hardin, 529; Taylor v. Kneeland, 1 Douglass' Michigan, 68. (4) Jackson v. Adams, 2 Bingham's N. C. 402. See also Hall v. Hawkins, 5 Humphreys, 357, 360.

(5) Carter v. Andrews, 16 Pickering, 1, 9.

(6) Brown v. Brown, 14 Maine, 317.

(7) Rowcliffe v. Edmonds and Wife, 7 Meeson & Welsby, 12; Slowman v. Dutton, 10 Bingham, 402; Tomlinson v. Brittlebank, 4 Barnewall & Adolphus, 630; Russell v. Wilson, 7 B. Monroe, 261.

(8) Hays v. Allen, 3 Blackford, 408.

(9) Jones v. Chapman, 5 Id. 88.

(10) See Jones v. Herne, 2 Wilson, 87; Nichols v. Hayes, 13 Connecticut, 156, 162; Arnold v. Cost, 3 Gill & Johnson, 220; Atkinson v. Reding, 5 Blackford, 39; Andrews e. Woodmansee, 15 Wendell, 232.

(11) Jackson v. Weisiger, 2 B. Monroe, 214; and see Cramer v. Noonan, 4 Wisconsin,

287.