M'Kennon v. Greer

The opinion of the Court was delivered by Gibson, C. J. The principle deducible from the decision in Bornman v. Boyer, 3 Binn. 515, was attempted to be ascertained in Thompson v. Lusk, at the last term for the Sunbury district (ante, p. 17); according to which it would seem, that where the words, when considered in connexion with facts and circumstances alleged by the words themselves to be known by the hearers and understood by them, imp ute the existence of guil t w hich can arise but from a specific offence, the charge supposed to result from them may be laid by an innuendo, without recourse to a colloquium. Such, to a certain degree, was the case of Thompson v. Lusk, where, though a colloquium of judicial swearing was in fact laid, there was no express charge of false swearing to be coupled with and explained by it; but an accusation of false swearing was held to be implied by saying, “1 have made the charge and I will go on with it,” because to go on with a charge, in the popular sense, is to prosecute for a criminal offence which, when committed in the violation of a judicial oath, can be no other than perjury. Such, too, wras emphatically the case of Bornman v. Boyer, where there was no colloquium at all; yet words which implied a taking in a secret and blamable manner, were held to convey an imputation of theft. Do not the v'ords in both the counts here equally imply a secret and blamable taking? “Who gave you orders to feed my straw to your cattle ? You did take it, for it could be seen at the back of the barn.” The tone of both these sentences is expressive of blame for a taking accompanied with concealment, and one which was expected to be denied. The direct iteration of the charge in an imperious manner, and the allusion to the traces of the fact at the back of the barn, leave no doubt of what was meant. The accusation in the second count is still more pointed. “ You fodder your cattle upon my straw. What have you done, you old scoundrel? You have went and made a slaughter-house of my barn, and are acting dishonestly in every thing you are doing about the place.” Now the allegation of dishonesty is more properly referable to the foddering of the cattle than to the making a slaughter-house of the barn; because to turn it to such a use, though an improper one, could not well be called dishonest. But to act dishonestly in foddering a man’s cattle with his neighbour’s provender, is to act corruptly, and certainly implies a secret and blamable taking of the fodder; and on the principle of our own [354] decisions, it is not to be doubted that words which impute it are actionable. ' Judgment affirmed.