
    Matthias Smith & ux. vs. William Wyman & ux.
    
    An instruction to the jury, on the trial of an action of slander, — that the speaking of words importing a criminal offence might ho considered as having been maliciously uttered, unless it should be made apparent that they were uttered otherwise, or that they were true ; that this was for their consideration from the evidence; that the attempt to prove the truth of the words, if without success, might be regarded as evidence of express and continued malice; and that it was not every act of illicit intercourse on the part of a female which would authorize individuals to call her a whore, — was held justifiable.
    Exceptions from the Court of Common Pleas, Whitman C. J. presiding.
    The action was slander, for words alleged to have been spoken by the Wife of William Wyma?i of Clarissa Ratcliff, while sole, now tlic wife of Matthias Smith, the brother of Mrs. Wyman. The exceptions do not state what the pleadings were. In the declaration the following words were alleged to have been spoken. “ You are a thief, a liar, and a whore, and I can prove it.” The speaking of the words, and the frequent repetition of them was proved. The defendants proved that Mrs. Wyman said to Clarissa, “ you have told me, that one Mrs. Jones had charged you with stealing,” to which Clarissa replied, “ I did not expect to hear this from you.” The exceptions state, that “ the defendants to show probable cause for believing that Matthias and Clarissa did not conduct as they should do, proved that Clarissa had a child in four months after she was married.” The exceptions also state, “ that the defendants to disprove malice and in mitigation of damages offered evidence of her general loose character for chastity, and proved by several witnesses, that she had when from ten to thirteen years of age lived in a house notoriously of ill fame, and that twice since she had lived as a hired girl at the same place for about a fortnight at each lime; also that Clarissa did tell Mrs. Wyman, that Mrs. Jones did accuse her of stealing ; and that Mrs. Wyman after all this had recommended her to her present husband as a very worthy girl. Upon this evidence it was contended, that there being probable ground for believing wliat Mrs. Wyman said about being in whoredom she should be excused; also that it went to disprove malice and in mitigation of, damages; and that it being true, that Clarissa did tell Mrs. Wyman, that Mrs. Jones charged her with stealing, this was a defence to this part of the action.”
    The Judge instructed the jury, that as the witnesses on both sides had testified to the speaking of the words, they might be considered as having been uttered as alleged ; that importing a criminal offence, they might be considered as maliciously uttered, unless it should be made apparent, that they were uttered otherwise, or that they were true; that the jury would consider from the evidence, whether they were true, or had been proved to have been uttered otherwise than maliciously; that the attempt here to prove the truth of the words, if without success, might be regarded as evidence of express and continuing malice; and that it was not every act of illicit intercourse on the part of a female which would authorize individuals to call her a whore. The verdict was for the plaintiffs, and the defendants filed exceptions.
    
      Vose and Lancaster, for the defendants,
    contended, that the ruling of the Judge was erroneous, and cited 1 Johns. Cas. 279; Wharton’s Dig. 555, 556 ; 1 Camp. 48; 12 Pick. 163; 2 Stark. Ed. 369, note 1; 2 Marsh. Kentucky R. 372.
    
      E. Fuller and May, argued for the plaintiffs,
    and contended, that the instruction of the Judge was correct, as applicable to the facts in the case. They cited Jackson v. Stetson, 15 Mass. R. 50; Spaulding v. Alford, 1 Pick. 33; Wyman v. Hook, 2 Greenl. 337; Colley v. Merrill, 6 Greenl. 50 ; Commonwealth v. Stephens, 14 Pick. 370; 3 Pick. 376 ; 3 Mass. R. 546; 1 Pick. 1; 14 Mass. R. 275; 8 Wend. 602; 13 Johns. R. 475 ; 3 Pick. 379; 1 Fairf. 224.
   The case was continued for advisement, and the opinion of the Court was afterwards prepared by

Emery J.

In this case, after the merits of the action of slander have been considered by a jury, with the utmost latitude of examination as to all subjects calculated to affect the character of one of the plaintiffs, from ten years of age, in qualifying the proof of malice and in mitigation of damages; exceptions are taken to the opinion of the court, that it was not every act of illicit intercourse on the part of a female which would authorize individuals to call her a whore. And that the attempt here to prove the truth of the words, if without success, might be regarded as evidence of express and continuing malice.

We think that the Judge upon the facts reported was justified in the instructions given. And the exceptions should be overruled.  