McKee v. . Wilson

Smith, C. J., after stating the above. It is well settled on authority that words spoken of a person in respect to his office or employment and actionable only by reason thereof, must be spoken, while he is holding such office or pursuing such employment, and riot afterwards. 1 Stark, on Slander; 123. “ If must appear,” says the writer, when the words were spoken of a barrister or physician, “ that he practiced as such at the time the words were spoken,” and to the same effect is 5 Wait Act. and Def., 7-12. This is expressly ruled as a correct statement of the law-in Edwards v. Howell, 10 Ired., 211; Collis v. Malin, Cro. Chas., 282; Ferevard v. Adams, 7 Wend., 204. 2. To constitute oral slander, the words must impute to the plaintiff the commission of an infamous offence, an of-fence the conviction and punishment whereof involves moral turpitude and social degradation. The malversation in office, that is, the corrupt and fraudulent failure to account for and pay over the public taxes, is declared to be punishable as for a felony by imprisonment in the penitentiary by the act of 1868-69, ch. 74, §§ 35 and 38;-while by the subsequent act of 1871-72,' ch. 49, §§ 38 and 41, the same of-fence is made a misdemeanor to be punished by fine or imprisonment. This enactment took effect on January 17th, 1872, and covers any defalcation that occurred during the last year of the office. Ibid. § 21.- *303 If this latter statute does not annul the preceding act, being in pari materia, the complaint does not show to which period of time the imputed official misconduct is to be referred, and therefore it cannot be seen that an offence higher than a misdemeanor is charged, and such a charge is clearly not actionable according to all the authorities, when only a fine or imprisonment can be imposed. Says DaNiel, J., delivering the opinion in Skinner v. White, 1 Dev. & Bat., 471: “ It seems to us that the rule laid down by Lord Holt, that the words, if true, must not only subject the party to imprisonment but au infamous punishment, is the rule in this state.” See also Shipp v. McGraw, 3 Murph., 463; Brady v. Wilson, 4 Hawks, 93. There being no averment of special damage, the case is not relieved from the operation of the general rule applicable to slander, actionable per se. There is error and the judgment must be reversed. This will be certified that the action may proceed in the court below'. Error. Reversed.