
    John Pierson in error vs. Andrew Steortz.
    The rule which excludes testimony in relation to communications made to Counsel has never been extended further than to embrace disclosures made to practising attorneys for obtaining professional advice.
    The exemption must be confined to cases of striet professional intercourse.
    To call another “thieving” is actionable.
    This was an action of trespass on the case for slander. The declaration alleged that the defendant had uttered the following scandalous and opprobrious words of and to the plaintiff, to wit: “ You are a dirty, trifling, thieving puppy; you will steal, and the whole set of you,” (meaning the said plaintiff and his family relations.) The second count charges the first part of the same words. The third charges the same as the first. The fourth count alleges the defendant to have said, I know him from Ms cradle, he is a thief, and always would steal. The fifth charges the words “he is a thief” The defendant pleaded not guilty. Verdict guilty.
    The defendant moved for a new trial for the following reasons:
    
      First. Because the testimony of William Griffey was improperly admitted to fhe jury.
    
      Second. Because the court instructed the jury that the plaintiff was entitled to recover for words spoken in the heat of passion and on account of provocation from the plaintiff, and refuses to instruct them that in such case the plaintiff was entitled only to nominal damages if any.
    
      Third. Because the court instructed the jury that the words “you are a dirty, trifling, thieving puppy,” were actionable per se.
    
    
      Fourth. Because the evidence did not support and correspond with the allegations in the third and fourth counts — upon which counts the jury found their verdict.
    
      Fifth. Because the evidence under the fourth count was as follows: “ In May or June last I was riding with Mr. Pierson, towards Augus“ta. On our way there Pierson got to talking about what he had lost
    
      " since he came to this country and began to talk 'about losing by Steortz “ being on his places and said he is a tnie£ be had stolen my timber; he “ always would steal; he knew him from a boy.’’ That this evidence does not support said fourth count.
    
      July, 1841.
    
      Sixth. Because under the: third count the evidenoo was as follows: “I “ was in the timber when Pierson came there. Pierson.ásked who has “ cut. my timber.” Steortz replied to him. Pierson then said “you are a dirty, trifling, thieving puppy, and that such evidence does not support the count; and the verdict on this count is contrary to law and evidence.
    
      Seventh. Because after proof that the words were spoken in the heat of passion, or if the defendant had received provocation, if the defendant was speaking of plaintiff's entry and trespass upon his land, that in such case the burden of proof of malice was upon the plaintiff.
    
      Eighth. The verdict was against law and evidence.
    Motion for a new trial overruled; and thereupon the defendant excepts- to the opinion of the court.
    There was also a motion in arrest of judgment, for the same causes as. above. And overruled.
    On the trial of the cause before the jury in the District Court, William Griffey was called upon to testily,, who stated that he was an acting magistrate, and that he usually did the business of the defendant; that Griffey frequently gave advice and counsel. That Pierson came to him and spoke as follows. And the declarations, of Pierson at that time to Griffey were called for by the plaintiff, -The defendant objected and his objection was overruled. Whereupon Griffey said “became into the office and said he had another troublesome case; that Steortz was cutting and stealing his timber. I advised him to let him alone and not sue him at present.
    Now the ease was afgued at length by Grimes for the plaintiff in error, and by Rarer for the defendant in error.
    GniM'Es, The court erred in admitting the testimony of William Griffey.
    There seems -to be a great deal .of confusion in the law and many contradictory decisions as to the admissibility of the testimony of attorneys, agents and other persons to prove facts coming to their knowledge professionally or officially, and perhaps resort should be immediately had to the principle upon which the rule on this suhjeet is founded.
    “It is ^contrary to the policy of the law to permit any person to betray a secret with which the law has intrusted him.” Bulleras N. P. 284j Brown vs. Payson tí N. H. Rep. 443,- Riw vs. Withers 2 Camp. R. 578,-WUsm vs. Rasiall 4 D. Sr E. 760.
    • la Bran vs, 'Quimby 5, JV. H. Rep. 94, the court held that the privilege ef clients to have their communications to counsel kept- secret, extends not only to communications made to professional men, but to those made to any one employed to conduct or manage a suit* Griffey wag consulted officially and gave his advice as counsel. Ho Was consulted as much in the character of- counsel as in that of magistrate, for this court cannot be insensible to the faot that Justices of the Peace.act in small cases in both capacities in this country. But we hold that in whichever light he is regarded, the law would exclude his disclosures. True it is, the case of’ Bran and Quimby was decided on the ground that any one in New Hampshire had the right to appear as counsel. Such is the case here before magistrates, and communications made in small cases are sometimes of as great importance as in larger ones.
    But regarding Griffey as a magistrate alone does not as great reason exist for the inviolability of parties’confidence and secrets communicated to him as a magistrate as there would be to him as an attorney, if he was one. In both cases advice is sought and given in an official character. Both are known in the community as giving it when called on; and why, we ask are related secrets more inviolable to one than the other? But it may be said that Pierson was not justified in slandering even before his attorney. We admit it when willfully done and done merely for the purpose of giving his enemy a bad name. But this is widely different from a case of that kind. The words used before Griffey were just such ones as would be used by almost any man under the circumstances and in an excited state of mind.
    The court erred in refusing to grant a new trial. We are aware that this is a matter usually left to the discretion of the court; but a person or a court invested by law with a discretion cannot act according to his arbitrary will. The discretion is in law a sound legal discretion. It is says Lord Coke a “straight line,” and means discernere per legem quod sit justum. 2 Co. Ins. 289.
    But it is contended that this court cannot correGt the decision of the court below because it is not conusant of the facts of the case. We admit thatif the facts were not embodied in the motion for a new trial, and that motion overruled and signed by the judge below, there would be force in the objection; but the facts are admitted as set out.' The judge in signing a bill of exceptions, signs nothing but what he knows to be true as it regards facts; but he holds a different view of the law arising from those facts to the one excepting. The same rule holds in the case at bar as in all other cases coming up on a bill of exceptions — -the issue is upon the law arising from the facts. The simple question then is, ought the court to have granted a new trial or arrested the judgment admitting the facts set out in those motions to be correct?
    1. As to the testimony of Griffey we have examined that point under the first bill of exceptions.
    2. The court instructed the jury that the plaintiff below was entitled to recover for words spoken in the heat of passion, and refused to instruct them that in such case- the plaintiff was entitled to only nominal damages. This instruction we believe to be wrong, and the refusal of the one asked, to be error, upon general principles. The law always makes allowances for the frailties and imperfections of human nature. As we see in the case of killing in the heat of passion, and numerous other instances which might be cited. And we know no good reason why the same principle will not extend to the case at bar.
    3. The verdict of the jury is general upon the third and fourth counts in the declaration The third count is clearly defective, but might be cured by our statute were it not that the two charges and the times of uttering them are different. The statute says that when one of two or more counts is good and the others insufficient, and a general verdict is rendered, that no advantage shall be taken of the defects. This statute is evidently intended to cover cases where the same cause of action is contained in all the counts, but differently set out, and not to cases where the causes, words and times of uttering are different. Where the statute reverses the common law it is to be construed strictly. Where the times of uttering words are different and the verdict is general the court should arrest the judgment. Starhie on slander 304, Jim. ed. — and see cases there cited.
    Now we admit that had the same words been set out in the two counts and intended to cover the same charge, and one of them had been defective, the defect would be remedied after verdict by our statute; but surely a construction cannot be given to the statute broad enough to cover charges made at different times and of different natures. It was the duty of the plaintiff below to have his damages assessed severally upon the two counts or to take a verdict upon only one. Borden vs. Fitch 15 John. 121; Cheethamvs. Tillotsony5 Johns. R. 435,
    
      4. The court instructed the jury that the words “you are a dirty, trifling, thieving puppy” were actionable per se.
    
    To render words actionable there must be conveyed in them a charge of some positive crime punishable by imprisonment. Broolcer vs. Coffin, 5 ¿fotos. R. 188; Martin vs. Stilwell, 13 Johns. R. 275; Gibbs vs. Denny, 5 Cowen, R. 503; Fox vs. Vandd/eck, 5 Cowen R. 513; Walker vs.
    
    
      Winn, 8 Mass. R. 248; Dodd vs. Henry, 9 Mass R. 262. Do these words convey a charge of this character? Terms of disparagement and censure they unquestionably are; but even unexplained by the context it would seem to be a forced and arbitrary construction of the law, to say they are actionable. The three epithets are not to be separated, but the two preceding ones are to qualify and govern the last. But admit the word thieving stood alone; what charge would it convey? That the plaintiff had committed, or was committing, or would in future commit the crime of larceny? The counsel on the other side attempts to draw a distinction between the words thieving and thievish; but it seems te be a distinction without any preceptible difference so far as it regards this case. But we contend that the ambiguity existing about the legal meaning of that participle is explained by the preceding ones.
    5. The court was asked to instruct the jury that after proof that the words were spoken in the heat of passion, or that the defendant had received provocation from the plaintiff, or if the defendant’s conversation and charges were connected with defendant’s conversation about plaintiff’s entry and trespass upon his (defendant’s) lands, then the plaintiff should prove malice on the part of defendant in uttering the words. We hold there Was manifest error in refusing this instruction. Scnsus ver-borum ex causa dicendi accipiendus est, is an acknowledged maxim of the law- It matters not how harsh the word or heavy the charge made, if by extraneous circumstances it is explained into an innocent meaning. Starhie on Slander, 58. “ Where words, otherwise actionable in themselves, are explained by extrinsic cireumetanees or by reference to a particular transaction known at the time, they are to be construed accordingly: and, being so explained as not to import a charge of felony, they will not sustain an action. Dexter vs. Taber, 12 Johns. R. ~239; Bloss vs. Tobey, 2 Pick. 320; Brown vs. Lamberían, 2 Bin. R. 34; Starkic on Slander, 54. If the words, then, were spoken in relation to a trespass upon defendant’s land, by cutting and carrying off timber, was it not. proper, was it not the duty of the court, to instruct the jury that the plaintiff ought to show motive?
    Roiiexi for the defendant.
    
    As to the first and second eauses of error assigned by the plaintiff, in substanoe, that the words charged in the third and fourth counts are not actionable, see StarMe on Slander,p. 49. “An action has been held maintainable for the words traitor, murderer, thief, sheep stealer.1’
    The fourth eount alone sufficiently ehaTges slanderous words in the language “/ knew him from. Ms cradle, he is a thief and always wmld steal.” The words “he is a thief,” if used alone, would be actionable. Their actionable character is not diminished or restrained, hut rather enlarged by the additional words connected with the same sentence. The charge as so enlarged embraces the past tense as well as the time of speaking. The language is, “álways would steal” — and not only charges, in substance, a theft, but negatives all possibility of palliating circumstances by the broad declaration that “iie always would steal.”
    
    The third count charges that the defendant below used of the plaintiff among others the words, “you, are a dirty, trifling, thieving puppy.”, To say of one he is thieving, certainly imports no less a charge than that of stealing, which, being unqualified, would, by all the books, be deemed actionable. It is not necessary, in order to render words actionable, that there should be the same certainty in stating the Crime imputed os in an indictment for the same crime. Miller vs. Miller, 8 Johns. R. 76.
    In slander the doctrine that words arc to be taken in mitiori sensu, has long been ex-ploded. The rule now is, that words are to be taken and understood in the sense in which they were understood by the bystanders. See Hoyle vs. Young, 1 Wash. 150; and in Howe vs. Prinne, 2 Lord Raymond, 812, it was decided that to charge a man with evil principles was actionable. To say of one he is thievish or thieving, is to charge him with evil principles. In the case of Walton vs. Singletotf., 7 Serg. and Ramie’s Penn. R. 449, brought for speaking these words, uHe is a whoring fellow, and it is with difficulty he can keep a girl about the house, he is continually riding them,” it Í3 said by the court that to say of one he is a whoring fellow, is a charge of whoredom. “The distinction (says the court) is between words merely adjective, as thievish, and participles, as thieving. The latter are actionable, because they import an act done; the former are not, because they import only an intention.” In the case before the court, the third eount charges the words spoken to be, “you are a dirty, trifling, thieving puppy,” &e. clearly meaning to charge the plaintiff with having beengnilty of stealing. The same rule is not observed as heretofore in construing words, for the rule now adhered to by all the courts is, to understand them in their usual and obvious sense. Ibid., and also 1 Bibb’s (Ky-) Rep. 165, Hume vs. Arrowsmith. In the case of Saicton vs. Cordray, Wright’s Ohio R. p. 101, it is said by the court, that an action may be sustained for charging another with being a thief or having stolen, but not for imputing a 'mere intention to steal, or with having an evil disposition. In 7 Bac. Abr. 292, title Slander, it is said that, “however agreeable- it may be to the general tenderness of the English law, (general tenderness of English law! ) that doubtful words should be construed in mitiori sensu, yet such construction is only to .be made when the meaning' of the words in the usual acceptation thereof is doubtful: for if, in the usual acceptation of the words, they are slanderous, a forced construction shall not be put upon them in order to render them not .aetionable,”' as, for instance, to take a given case from the books, if the words “he is a healer of felons” are published of J. S. in one of the western counties of England, wherein the words “a healer of felons” signify a conceder of felons, an action lies. And it is unnecessary to introduce the meaning or local signification of the words by an averment. For- it is to be presumed that the judge before whom the action is tried understands the meaning of such English words; and if he does not, it tnay be learned from the witnesses. Anon, case, Hob. 126; 1 Roll. Abr. -86; 7 Bac. Abr. 280. In Root vs. Molyn, 1 Roll. Abr. 66, it is said an action lies- for these words, “She lay with a weaver in a ditch, and Ids breeches viere down, and they were at it.” So for saying to J. S. “ Thou art apockey rogue, and the pox haunts thee twice a year.” Buckingham’s case, 1 Roll. Abr. 67; 7 Bac. Abr. 288. An action lies for publishing of J. S. these words, “he is perjuredfor the intention of the publisher must be to charge J. S. with having sworn falsely in a court of justice. An action lies for speaking these words of a woman, “ I have had the use of her body,” for it shall not be intended that the words'mean the use of her body as a physician, or that she had done some bodily labor for the speaker; but the words shall be Construed in their usual sense, which is very slanderous. 7 Bac. Abr. 294; Morrison vs. Code, Cro. Jac. 162. So an action will lie for speaking these words of a woman, “She hath had a child, and if she hath not a child she hath made it away;” for they import a charge of murder. 7 Bac. Abr. 286. So by the same rule to say of one, “he is a thief — he is thieoing-^he always would steal,” as in the present case, either charge equally imports a charge of larceny: So for saying to A. “go tell B. he is a thief.” 7 Bac. Abr. 286; 1 Roll. Abr. 80. So the words, “thou art a buggering rogue, and I could hang thee,” are adjudged to be actionable, because the words import a charge of having committed the act of buggery. Collier vs. Burrill, Sid. 373, and 7 Bac. Abr. 294. And by a like rule, in the cause under consideration, the words “thieving puppy” and thief must be adjudged to import a charge of larceny, and the action is therefore well sustained by the authorities.
    In Speed vs. Perry, H. Term, 1702, see. 2, Salk. 697, the court of King’s Bench held that words imputing felony, when they imputed the act as done, as the words, “In Blackball Yard you could procure bad money for gold and clip it,” are aetionable. Iu 14 Petersd. Rep. in anote to p. 681, the rule, as laid down by Lord Hobart, is, that “slander and damage consist in the apprehension of the hearers;” and in Gilbert’s.Cases of Law 
      
      and Equity, 117, the principle is enforced that words shall be taken in the sense dn which the hearers understand them. See also Clark vs. Mappledosarn, 2 T. R. 473; Roberts vs. Camden, 9 East. R. 93; Woolworth vs. Meadows, 5 East. 463; Gardner vs. Spurdand, 1 Roll. Jlbr. 71.
    In regard to the third and fourth causes of error assigned, referring to the two bills of exceptions taken on the trial below, defendant insists, first — That the particulars stated are embodied in the form of a mere motion, and do,not-, by any bill of exceptions, appear to .have been true. That said bills- of exceptions show no fads from which this court can aet. They embody the mere ipse dixit of counsel, which may or may not have been true. Second — That granting or refusing a new trial is matter of discretion in the court below, and a foundation for a writ of error, and if it were, and the facts stated in the motions on file appeared in regular bills of-exceptions to be true, they do not show a suitable cause for a new trial. A new trial, on,the ground of verdict being against evidence, should be granted “only in the case of a plain deviation, and not in a doubtful one. Ross vs. Overton, Call. 309. A motion for a new trial, oh the ground of the court giving erroneous instructions to the jury, is irrregular and improper- — “exceptions should be taken to the erroneous instruction itself.” Johnson vs. Macon, 1 Wash. R. 4; Gordon vs. Frazer, 2 Wash. 130. But the subject is a matter for the sole discretion of the court below. See Barr vs. Gratz, 4 Wheat. 213; 4 Cond. R. 430; United States vs. Daniel, 6 Wheat. .542; 5 Cond.R. 170.
   BY THE OOUBT,

The first point raised in this case is in relation to the admissibility of Griffey’s testimony. He was an acting magistrate and usually did the business of the defendant below, and frequently gave advice and counsel. His testimony was thereupon objected to on account of the confidential nature of the communication made to him by Pierson.

The circumstances of the case as above detailed would not have justified the exclusion of the testimony. The rule of exemption within which it is sought to include thi,s case, has never, we believe, been extended farther than to embrace disclosures made to practising attorneys for Jhe purpose of obtaining professional advice. Such a latitude of construction as is now contended for would operate very prejudicially to the public welfare by affording to crime most important facilities for its consummation, and in many cases an impenetrable shield against detection. It would enable malefactors to plot with impunity — to communicate their nefarious designs or exhibit their enticements without restraint to every person who will state that he is accustomed to give them counsel and advice. A single glance is sufficient to show the propriety of confining the exemption to eases of strict professional intercourse.

But the testimony of Griffey as detailed in the bill of exceptions was applicable to neither of the counts on which the defendant was found guilty, and could therefore have had nothing to do with sustaining the action. At the most it only operated as a circumstance to aggravate the malice of the defendant below in uttering the actionable words. They went to the jury with all the accompanying circumstances. If they believed the words to have been spoken bona fide with the intention of obtaining advice they did not, of course, regard them as evidence of malice, and therefore gave them no weight.

Another act of the court below which forms an alleged ground of error was the overruling of the motion in arrest of judgment. If the declaration were'sufficient to support the verdict we see nothing in the reasons on which the motion was founded nor in the arguments of counsel which would justify us in interfering with the judgment already rendered.

The third count is that which is regarded as peculiarly defective. The question of the sufficiency of that count turns principally upon the fact of whether the words “you are a dirty, trifling, thieving puppy'” are actionable m themselves. It is contended that the words “theiving and theivish” are nearly synonymous. We think otherwise. The former implies action. The latter mere propensity. The mere ungratified inclination to steal renders one thievish. But he cannot be properly denominated a “thieving puppy” unless practical exercise has been given to that inclination. To call^ another a sheep stealing rogue has been held actionable, 7 Bason’s Mr. 297, and we see no substancial distinction between these words and those set forth in the third count.  