Little v. Barlow

By the Court. McDonald, J. delivering the opinion. [1.] The old rule, that words spoken in disparagement of the character of a person, which are susceptible of two constructions, are to be understood in their milder sense, is ex [425] ploded. They are now to be interpreted in the sense that a person of ordinary capacity who heard them spoken, would understand them. They must, generally impute a crime to the person of whom they are spoken, indictable and punishable in a temporal Court of criminal jurisdiction, or charge him with having an infectious disease, to be actionable of themselves. To charge a person with stealing, imports a felony. To charge a person with being a thief, is actionable, because a thief is one who steals. To say of him, that he is a thieving wretch; or a thieving puppy, is actionable, for it imports a felony, and so, any one of ordinary understanding'hearing the words would interpret them. [2,] If the words were used in relation or connection, which would negative the presumption, that the person speaking them intended to impute a crime, but it does not so appear on the declaration; the defendant must avail himself of it by plea hi defense,-unless it appears in the plaintiffs evidence on the trial. The declaration in this case contains nothing to repel the presumption that the words were maliciously spoken. We think that the Court ought to have overruled the demurrer in respect to the charge of thieving, made against the plaintiff. [3.] The inartificial manner, in which the declaration is drawn, shows great haste in the experienced draftsman. There certainly ought to have been a colloquium, so far as relates to the charge of bribery, which itself must be made out, if made out at all, by inuendo, applying the words to the person as well as the circumstances alluded to by the Speaker. These averments ought regularly to appear as inducement in the plaintiff’s declaration, for it is necessary to establish by proof the extrinsic matter in reference to which the words were spoken, and to admit the proof, there must be averments. The declaration in this respect is amendable. Judgment reversed.