Van Tassel v. Capron

By the Court, Bronson, Ch. J. It is not necessary to consider the questions of form which have been made; for I am of opinion that the declaration is bad in substance. It is the privilege of the vulgar, to use coarse and abusive language; and no action will lie for calling a man such opprobrious names ás liar, cheat, rascal, swindler, blackleg, and the like. Nor will such words be actionable though spoken of one who holds an office, or exercises some trade or profession, unless they are spoken of, and touch him in his office or calling. It .is not enough that the words may tend to injure him in his-office or calling, unless they are spoken of him in his official or business character. In Oakley v. Farrington (1 John. Cas. 129,) the plaintiff was a justice of the peace, and the words were, “ ’Squire Oakley is a damned rogue.” The plaintiff was nonsuited on the ground, that although the words.were spoken of a magistrate, they had no relation to his official' character or conduct. In Ayre v. Craven, (2 Ad. & Ellis, 2,) the words were laid to have been spoken of thé plaintiff in his .profession as a physician, and imputed adultery. After verdict for the plaintiff, the judgment was arrested. The court said, that after full examination of the authorities, they thought the declaration ought not merely to state that such scandalous conduct was imputed to the plaintiff in his profession, but also to set forth in what manner it was connected by the speaker with that profession.. Chief Baron Comyn -says, “ Words not actionable in themselves, are not actionable when spoken of one in an office, profession or trade, unless they touch him in his office,” &c. (Action upon the case for Defa. D. 27.) This doctrine was fully approved in Dorley v. Roberts, (2 Bing. N. C. 835,) where it was said of an attorney, that “ he has defrauded his creditors, and has [253] been horsewhipped off the course at Doncaster.” The jury found that the words had a tendency to injure the plaintiff morally and professionally; but they also found that the words were not spoken of him in his business of an attorney. And for that reason the court ordered a nonsuit. Tindal, C. J. said, the words, though spoken of an attorney, do not touch him in his profession, any more than they would touch a person in any other trade or profession. In Dole v. Van Rensselaer, (1 John. Cas. 330,) the words were spoken of the plaintiff in his office of sheriff, and affected him in his official character. Now what is this case ? The words do not charge the plaintiff with doing any act whatever-—either good or bad—as a justice of the peace. Nor do they impute to him the neglect or refusal to perform any duty incumbent upon him as such officer. Saying that “ there is a combined company here, to cheat strangers, and ’Squire Yan Tassel has a hand in it,” does not impute this misconduct to- him as a magistrate; but only as a man. “ Squire ” is merely a description of the person. It means no more than would be signified by the use of the plaintiff’s baptismal name in the same place. In Oakley v. Farrington, the plaintiff was a justice of the peace, and the words were, “ ’Squire Oakley is a damned rogueand yet it was held that the action would not lie, because the words did not relate to his official character or conduct. What official delinquency is charged upon the plaintiff? The words are, “ I don’t see why ’Squire Yan Tassel did not tell me that the execution had not been returned in time, so that I could sue the constable and his bail.” It can hardly be said that these words impute the neglect of any moral or social duty;. for it is not charged that the plaintiff had ever been requested to give informatiori on the subject, or that there had been any opportunity to give it. Indeed, it does not appear that the plaintiff had any information to impart. But if the words contain an implied censure on the plaintiff as a- man, they do not touch him in his official' character. They do not impute to him the neglect of any duty pertaining to, or imposed by his office. The word" “ ’Squire ” in this connection means no more than it did [254] when speaking of the “ combined company to cheat strangers.” It is merely a descriptio persones. I do not see how this action can be maintained. Judgment for defendant.