Billings v. Wing

— 444 — The opinion of the court was delivered by Collamer, J. The words in this" declaration are not attended with any colloquium or innuendo, to give them any criminal character further than the words necessarily imply, and no special damage is alleged. It is not to be disguised that there is much contradictory decision on the point of what words are in themselves actionable. In many modern cases this circumstance has been much commented upon by the courts. Nor does it appear wholly redeemed from uncertainty by the most recent cases, though courts seem to have labored at certainty in their decisions. The court have examined the authorities as extensively as our time and appliances here would permit, and without taking time now to collate them, the result is as follows. By the cases in England as collected by Mr. Starkie in his work on slander, and especially by the governing cases of Onslow vs. Horne, 3 Wills. 186, and Holt vs. Scholefield, 6 T. R. 691, sustaining the case of Ogden vs. Turner, 6 Mod., words, to be actionable, must charge a crime which is indictable and which subjects the offender to infamous punishment, at least corporal punishment. Much is said in the books as to the crime or its punishment being infamous, scandalous, or involving moral turpitude. The latter expression is adopted by Spencer, C. J. in the case Brooker vs. Cofin, 5 John. Rep. 188, yet these expressions are undefined and have no certain, technical signification ; and although in the case last mentioned the offence subjected to punishment, that is to imprisonment, and imputed female prostitution, yet even that was not considered moral turpitude. It is most consistent with certainty, and probably best sustained by authority, to say with Mr. Starkie, “ to impute any crime or misdemeanor for which corporal punishment may be inflicted in a temporal court, is actionable.” — Starkie on Slander, 41¡ Imprisonment is corporal punishment, but it must be as a punishment for the offence, and not follow on a default or inability to pay.—6 Mod. 104. The words in this case charge simply an assault and battery. Its being on a feeble woman, or a mother, gives it no different legal character, as it would, had it been charged as committed with intent to kill. By our statute assault and battery simply is punishable only by fine, though by the statute of 1826 the court are empowered to imprison where there is an inability to pay the fine. This, as already shown, leaves the legal character of the offence .only matter of fine, and therefore not an offence for which corporal — 445 — punishment can be inflicted, and therefore not actionable. To sustain this action we must hold every set of words which charges an assault or breach of the peace actionable, which would be without precedent or authority, and of dangerous tendency ; or we must leave each set of words to be held actionable or not. not by the offence charged, but to depend on the nature and circumstances of aggra*-ration, which is too uncertain to be adopted as a rule and is equally unsustained by authority. We consider this declaration as not sustained by any case either in England or this country. Judgment affirmed.