
    James B. Davis vs. D. F. Ruff.
    In an action of slander, words affecting the pecuniary credit of a merchant need not be averred nor proven to have been used in relation to his occupation as a merchant; for, in their nature, they strike at the root of mercantile character.
    Plaintiff in slander, who participates in the risks of a mercantile concern, but does not share in the profits, shall not recover for injury to his character as a merchant, without showing special damage.
    It is no slander of a firm to say that one of the partners is broke. The right of action on such words accrues to the individual.
    A verdict in slander, although much larger than the discretion of the Court would have awarded, will not be disturbed on that account alone.
    Before O’Neall, J., at Fairfield, Fall Term, 1839.
    This was an action for slanderous words. They are charged in the first count, to have been uttered of the plaintiff, “as a merchant.” The second count alleges that the plaintiff was a merchant, and charges that the words were spoken of and concerning him, without adding “ as a merchant.” The declaration also averred special damage.
    The words proved were “ he was broke, or he considered him broke, and he could not pay more than fifty cents in the dollar, probably not more than ten cents in the dollar.”
    “ Dr. Davis’s note would not do, he was broke, and the defendant had known this for some time.”
    “ Dr. Davis was regarded as, or reported to be insolvent, and had been for some time.”
    The defendant on being offered a note on some person, declined buying it; the person offering it commended it, saying the maker was good; and the defendant replied saying, “ So every one would, twelve months ago, have thought Dr. Davis good: he had a note on him for which he would willingly take less than the amount.”
    On sale day, in May, 1838, the defendant repeatedly said, “A report had come to the village of Winnsborough that Davis had made an assignment, mortgage, or confession of judgment to his father to the amount of seventy-two thousand dollars.
    
      To one of the witnesses, Woodward, he said he had made inquiries, and, from Daniel Kirkland, he found that it was confirmed. He said Kirkland or some other person had mentioned it to Dr. Davis, and he did not deny it.
    The plaintiff was a planter, resident in Fairfield district, and connected' at the time with the mercantile firm of W. B. Thompson &' Co.: — whether strictly a partner or not, was disputed; and the presiding judge remarks,—
    “ The question on this part of the case was carefully submitted to the jury. They were told, unless the plaintiff was a merchant, he • could not maintain his action without proof of special damage, which was, I thought, very slight. They were told, if the plaintiff had no share in the profits of the mercantile copartnership of which he was a member, that then, notwithstanding his liability for the debts, he was not a merchant to be affected by the publication of the slander.”
    • The charge of an assignment or confession by plaintiff to his father, the judge considered to have been only the repetition of a report already prevalent, and says' “ The only matter connected with it which could make him (defendant) responsible, is his communication to Dr. Woodward, in .which he said that ‘ he had made inquiries, and from Daniel Kirkland found it was confirmed.’ He said, Kirkland, or some other person ‘ had mentioned it to Dr. Davis, and he did not deny it.’ The latter part of this communication, about the report being communicated to Dr. Davis and his not denying it, was contradicted by Kirkland, the person referred to.” “ As to the other charges,” the Court observed, “ there was no proof that they hffd been in circulation .before the defendant spoke of them. In a conversation with Dr. Jennings, some time before the speaking of the words, the plaintiff told him he had been much embarrassed by being indorser, perhaps -to the amount of seventy-two thousand dollars, but he had freed himself from most of it, at least one half. This witness spoke of this conversation. General Means said, in March, 1838, he had heard it said by a neighbor, as a rumor from Chester, that the plaintiff was in debt to the amount of sixty thousand dollars. A. B. Williams said that in 1835 or 1836, Mr. Marshall, of Columbia, was uneasy on account of indorsing for the plaintiff. Col. John Glenn, (an uncle of the plaintiff by marriage,) said he had heard from the plaintiff’s relatives that he was much involved. Dr. Furman said .the people regarded the plaintiff as lavish and extravagant.”
    The jury found for the plaintiff, thirty-five hundred dollars.
    The defendant moved for a nonsuit,—
    Because the colloquium in the first count, averring that the words were spoken of the plaintiff in his capacity of a merchant, was not sustained by the proof; and because the second count did not contain this averment, which was essential.
    And for a new trial.
    1. Because the plaintiff was not a merchant at the time the words were spoken; or, if he was, the words did no] freíate to his occupation as a merchant, and therefore are not actionable.
    2. Because, if he was a merchant, and the words did relate to such his occupation, the action should have been in the name of himself and partners ; the more, as special damages were laid in the declaration and evidence was offered in relation to them.
    3. Because the damages were excessive and out of all proportion to the nature of the offence; especially as injurious reports were in circulation before the alleged words were spoken, and had originated in the declarations of the plaintiff himself.
   Curia, per O’Neall, J.

The general rule is, as stated in 1 Saund. 242 a. note 3, that where the words are only actionable because they are spoken of a tradesman, the plaintiff must aver and prove that the words were spoken in relation to his trade. But to this rule, there is one plain and well recognized exception; that where the words are such as affect a man’s credit, then it is neither necessary to aver, nor to prove that they were spoken in reference to the particular trade or business which the party was pursuing. The reason assigned by Starkie, (St. on Sl. 134,) is that of common sense: “ A general charge, of a want of credit, necessarily includes the particular one, and is equally pernicious with a more precise, allegation.” Nor is there any artificial rule which prevents us from adopting this reasonable view. , Indeed, all the authorities acknowledge and sustain it, with the exception of the dista in Serjt Williami notes to 1 Saund. 242, a. 3, and 2 id. 307. In these, it is manifest that the learned, and, in general, very accurate editor, did not advert to the distinction which Mr. Starkie has pointed out, and which seems to be well supported by very ancient decisions. In Read v. Hudson, (Ld. Raym. R. 610,) the plaintiff declared in one count that he was a laceman, and that the defendant, speaking of his trade said, See., in another count he says that the defendant, ex ulte-riori malitia sua, de statu of the plaintiff colloquium habens, said these words, “You area rascal; you are a pitiful sorry rascal; you are next door to breaking.” The question arose on this last count. The Court, in the absence of Holt, C. J., gave judgment for the plaintiff, declaring that he was a tradesman, and that, where the words were spoken de statu, 'suo, it is equivalent to arte sua, and to be intended of his trade. The words in that case imported a want of credit, they affected his condition, and hence applied to him in his trade as well as any other capacity in which he stood. So in Stanton v. Smith, (Ld. Raym. R. 1480,) it was held to be actionable to say of a tradesman “ he is a sorry, pitiful fellow and a rogue, he compounded his debts at five shillings in the pound,” though there is no colloquium of his trade. That would seem to be in point to this case upon the second count, in which, as in that, there is no colloquium about bis trade. In Cawdrey v. Highly, (Cro. Car. 270,) these words, — “Thou art a drunken fool and an ass, thou wert never a scholar, and art not worthy to speak to a scholar, and that I will prove and justify,” spoken to a physician, were held to be actionable, without any colloquium concerning his profession. The fact that the words were in that case addressed to the physician, cannot of itself dispense with the colloquium. The same words spoken of him would have had the same effect. They imputed a want of knowledge, which, like a want of credit, attached to the person, and went with him in every business, and .affected him therein. After these authorities, it cannot be necessary to pursue further the defendant’s grounds for nonsuit: they cannot avail him.

Ciarle and M’Call, for the motion;

Gregg and Player, contra.

As to the 'grounds for new trial, the Court held that, on the. first, which was a question of fact, the jury had been properly charged, and their decision was final: and that, as to the second, it was no slander of a firm to say that one of the partners was broke. Such words went, not to the particular business, but to the general mercantile character of the individual. In regard to the damages, the Court adhered to the opinion of the judge below, that, although they were much larger than, according to his view of the case, he would have found, yet if there was deliberate malice, then the verdict was none too high; and that was a question for the jury,- which should not be disturbed on a mere difference of opinion.

Motion dismissed; Richardson, Evans, and Earle, JJ., concurring. Gantt and Butler, JJ., dissented. 
      
       See 1 MoM. 19 ; 1 N. & McC. 290. An.
      
     
      
       Com. Dig. action on the case for Defamation, D ; Tom, Law. Diet. Action, ii., 1.
     