CHAPTER III.

THE TWO SPECIES OF DEFAMATION.

The Scope of Slander.

FINDLAY v. BEAR.

8 S. & R. 571 (Pa.). 1822.

This was an action of slander brought by Daniel Bear. The declaration set forth that the defendant uttered and published, of and concerning the plaintiff, the following words: "Daniel Bear pilfered a dog, and peddled the dog through the country, and then sold him to John Levingood for $5." The jury found a verdict in favor of the plaintiff for $37; and a motion in arrest of judgment having been overruled by the court, the defendant took out this writ of error.

TILGHMAN, C. J. This is an action of slander, and the only question is whether the words laid in the declaration are actionable. The words were, "That the plaintiff stole a dog." The objection is, that a dog is not a subject of felony, and, therefore, it was impossible the plaintiff should steal one. It is conceded by the counsel for the plaintiff that, by the common law, a dog is not that kind of property of which there can be a felony. It is so laid down by Hale and Hawkins, who have been followed by all subsequent writers on criminal law. But it is contended, that a dog is included in the general words, "goods and chattels," made use of in "the act to reform the penal laws of this state," passed the 5th of April, 1790, 2 Sm. L. 531. By the fourth section of this law, it is enacted, that "if any person shall feloniously steal, take and carry away any goods or chattels, under the value of twenty shillings, and be thereof legally convicted, he shall be deemed guilty of petty larceny," &c. But there is no reason for supposing that it was intended by this act to extend the crime of larceny beyond its ancient limits. That would be a regular construction of a law, and the object of which was to mitigate the penal code. By the words "any

goods or chattels," we are to understand any such goods or chattels as have been esteemed subjects of larceny. This will be clear enough when we consider that, in another section of the same act, it is provided, that robbery or larceny of any bonds, bills, &c., shall be punished in the same manner as robbery or larceny of any goods or chattels. Bonds, bills, &c., are goods or chattels; and yet it was thought necessary to declare them subjects of felony, by a special provision; which shows that the words "goods or chattels" before mentioned were to be taken, not in their most extensive signification, but according to their usual import in the criminal law.

Constructive felonies are odious and dangerous. It is time enough for the court to say that a thing is a felony, when the legislature has plainly declared it. The owners of dogs are not without remedy, against those who take them away. They may recover ample damages in a civil action. It is the opinion of the court, therefore, that there can be no felony of a dog. Consequently, the words laid in the declaration in this case, are not actionable; and the judgment must be reversed.

WHITTAKER v. BRADLEY.

7 Dowl. & Ry. 649 (Eng.). 1826.

Case for words of and concerning the plaintiff as an innkeeper: "He is a bankrupt; he will be in the Gazette in twelve months; he is a pauper." Plea, the general issue, and verdict for the plaintiff at the sittings before Abbott, C. J., in London, after last term.

Marryat now moved to arrest the judgment, upon the ground that an innkeeper, as such, not being liable to the bankrupt laws, these words were not actionable, and he cited Collis v. Malin, Cro. Car. 282; Arundel v. Mare, 1 Vin. Ab. 472; Anonymous, Bulst. 40; Walgrave and Agars, 1 Leon. 335; Emerson v. Fairfax, 1 Sid. 299.

ABBOTT, C. J. The single question is, whether language importing that a man who gets his living by buying liquors and other articles fit for the entertainment of man, and furnishes his house with them in order that he may be ready to supply his guests, is unable to pay his debts, is actionable; or, in other

words, whether such a man may be prejudiced by slander of that description, he not being subject to the bankrupt laws. May not a man be as much prejudiced by such words as if he were actually subject to the bankrupt laws; if his credit be affected by such an imputation on his solvency? I think, according to all principles on which actions of slander lie, this action is maintainable, though the plaintiff be not liable to the statute concerning bankrupts.

BAYLEY, J. The principle on which this species of action is maintainable is, that the slander has the effect of producing temporal damage to the party complaining. It is upon this principle that an imputation of ignorance upon a councillor or an attorney is actionable, because it has a tendency to prejudice him in his profession. So if a man seek his living by keeping an inn, is he not likely to be affected by an imputation upon his credit? In Southam v. Allen, Sir T. Raym. 231, the plaintiff being an innkeeeper, the defendant said of him, "deal not with him, for he is broke, and there is neither entertainment for man or horse," and it was held that these words were actionable. Whatever words have a tendency to hurt, or are calculated to prejudice a man who seeks his livelihood by any trade or business, are actionable. Reid v. Hudson, 1 Ld. Raym. 610, the plaintiff being a laceman, declared in case for these words: "You are a rascal, you are a pitiful sorry rascal, you are next door to breaking;" and being laid to have spoken of the plaintiff in his trade, they were held actionable, without any averment of special damage.

Rule refused.

OAKLEY v. FARRINGTON.

1 Johns. Cas. 129 (N. Y.). 1799.

This was an action of slander. The plaintiff in the declaration was stated to be a justice of the peace, and the slanderous words were charged to have been spoken of him in relation to his office. Among others the following words were charged, and on the trial before Mr. Justice Benson, at the last Westchester circuit, were proved to have been spoken by the defendant: "Squire Oakley (meaning the plaintiff) is a damned rogue." It did not appear from any circumstance that these

words were spoken of the plaintiff in his official capacity. The appellation of "squire" was intended to designate him merely, and was that by which he was usually distinguished from others of the same surname in the part of the country where the parties resided. The defendant on the trial moved for a nonsuit, on the ground that the words so spoken were not actionable; which motion was overruled for the purpose of taking a verdict and referring the question. A verdict was accordingly taken for the plaintiff, subject to the opinion of the court; and it was agreed if that opinion should be against the plaintiff, that a nonsuit should be entered.

PER CURIAM. These words spoken of a common person are held not to be actionable. Although in this case they were spoken of a magistrate, they had no relation to his official character or conduct. They are therefore not more actionable than if he was not in office, or if they were spoken of any other individual.

Judgment of nonsuit.

LODGE v. O'TOOLE.

20 R. I. 405, 39 Atl. 752. 1898.

Trespass on the case for slander. Heard on defendant's motion in arrest of judgment after verdict for the plaintiff.

MATTESON, C. J. The slander complained of is that the plaintiff was intoxicated to such a degree as to amount to a violation of decency. The offence of intoxication amounting to a violation of decency is not an offence at common law or by statute. It is made such merely by ordinances of the several towns and cities. In Seery v. Viall, 16 R. I. 517, it was held that, though words charging an offence involving moral turpitude and liable to punishment at common law or by statute are actionable per se, a charge of drunkenness, as it does not involve moral turpitude and is not an offence either at common law or by statute, but only by ordinance, is not actionable per se. We are of the opinion that the present suit is within this decision, and, consequently, that, as the declaration alleges no special damages, the motion in arrest of judgment must be sustained. Judgment arrested, and case remitted to the Common Pleas Division.

TILLINGHAST, J. (concurring). I concur in the foregoing opinion, as it doubtless states the law correctly; but, while this is so, I can but express regret that there is practically no redress for such a wrong as that which is set out in the plaintiff's declaration. It alleges that the defendant publicly, falsely, and maliciously accused the plaintiff, who is a married woman and the mother of a family of children, of being drunk in a liquor saloon in North Providence, in such circumstances as to amount to a violation of decency; and the jury have found the defendant guilty as charged in said declaration. But as it is not an offence, either at common law or under our statute, for a person to be intoxicated, even though it be in a public place and in such circumstances as to violate the rules of common decency, it is, therefore, not actionable per se to falsely and maliciously accuse a person of being in such a condition. In other words, so long as it is only by virtue of a town or city ordinance and not by virtue of any statute of the state that one can be punished for drunkenness, it is no legal wrong to falsely and maliciously accuse a person, even though that person be a married woman and the mother of a family, with the offence of being indecently drunk in a public saloon, unless special pecuniary damages (Sedgwick on Damages, 6th ed. 675, note 3) result therefrom, which could seldom be proved. It seems to me that such a state of things may, without impropriety, be called to the attention of the legislature of the state.

MORGAN v. KENNEDY.

62 Minn. 348, 64 N. W. 912. 1895.

Appeal by defendant William Kennedy from an order of the district court for Ramsey county, Otis, J., overruling his demurrer to the complaint.

*

COLLINS, J. It is further contended in appellant's behalf that the words set out in the complaint as those spoken by Mrs. Kennedy are not actionable per se. They were as follows: "He has been drunk throughout Thanksgiving week. He has not retired any night during that week other than in a state of drunkenness. He has drunken people in his