
    Jennett Miller versus Daniel Parish.
    An action of slander lies for charging an unmarried female with having commiutxa fornication.
    A declaration in slander, after averring a colloquium concerning the plaintiff and A, charges the defendant with saying that A thinks it a hard matter to commit fornication with “ his niece (meaning the plaintiff.),> This was held sufficient, with out any averment that the plaintiff was A’s niece.
    This was an action of slander. The declaration containea five counts. The jury found the defendant guilty as to the first, third and fifth. The defendant moved in arrest of judgment on the ground of the insufficiency of the three counts above specified.
    The first count, after averring a colloquium concerning the plaintiff and Hiram Bagg, charges the defendant with speaking the following words, to wit: “ Bagg (meaning the said Hiram) thinks it a hard matter for any one to have intercourse with (meaning to commit fornication with) his niece (meaning the said Jennett) ; but I know ; (meaning that he the said Parish had committed fornication with her the said Jennett.)”
    The third count was for different words, but amounting to a similar charge of the plaintiff’s having committed fornication with the defendant.
    The fifth count was a general one, which averred that the defendant had publicly accused and charged the plaintiff wi'th having committed the crime of fornication.
    
      J. H. Jlshmun, for the defendant.
    An action of slander does not lie for charging the plaintiff with the crime of fornication. At common law no action lies for such a charge. And the statute of 1785, c. 66, which makes fornication a crimina. offence, does not alter the common law in this respect, because the punishment which it provides, the payment of a fine, is not an infamous punishment. And though the woman who commits this offence is liable to be committed to prison or the house of correction, if she does not pay the fine, this does not change the character of the punishment. The punishment does not differ from that of assault and battery ; yet it will not be pretended, that to charge one with having committed an assault and battery is actionable. In New York it is held not to be actionable to charge a woman with being a common prostitute. Brooker v. Coffin, 5 Johns. R. 188.
    
      
      Sept. 21st.
    
      The first count is bad, because it does not contain a direct averment that the plaintiff was Bagg’s niece. 1 Chit. Pl. 381; Gidney v. Blake, 11 Johns. R. 54; James v. Rutleck, 4 Coke, 17; Foxcroft v. Lacy, Hob. 89; Van Vechten v. Hopkins, 5 Johns. R. 211; 1 Vin. Abr. 530; Slocomb’s case, Cro. Car. 442.
    The third count is bad for its generality.
    
      Bates, for the plaintiff,
    contended that an action lay for charging a female with having committed fornication, and cited Woodbury v. Thompson, 2 N. Hamp. R. 194; Frisbie v. Fowler, 2 Connect. R. 707; Bloss v. Toby, 2 Pick. 327, 328.
    The first count is sufficient, especially after verdict. Wilner v. Hold, Cro. Car. 489; Stark, on Sland. 298; Shalmer v. Foster, Cro. Car. 176.
    
      Sept. 24th.
    
   Parker C. J.

delivered the opinion of the Court. It is objected, that a false and malicious charge of fornication against a female will not sustain an action of slander, because fornication is not a crime at common law, and is not punishable by statute with ignominious punishment. We do not think that the objection is valid ; for whenever an offence is charged, which, if proved, may subject the party to a punishment, though not ignominious, but which brings disgrace upon the party falsely accused, such an accusation is actionable.

It seems to have been determined otherwise in New York, as in Brooker v. Coffin, 5 Johns. R. 188, though such a case falls within the rule for supporting such actions, as stated by the judge who delivered the opinion.

It has always been the law in this Commonwealth, and is so neld in New Hampshire and Connecticut. Woodbury v. Thompson, 2 N. Hamp. R. 194; Frisbie v. Fowler, 2 Connect. R. 707.

It is objected also, that the first count is defective in not averring distinctly, that the plaintiff was a niece of Hiram Bagg ; and that, as the damages are general upon all the counts, judgment must for this cause be arrested. But we think the count sufficient. There is a colloquium of and concerning the plaintiff, and of and concerning one Hiram Bagg; and then it is averred, that the defendant, speaking of the plaintiff, said, “Hiram Bagg’s niece.” This is quite sufficient for common understandings ; and indeed it requires a great stretch of technical ingenuity to raise a doubt of the person intended.

This hypercriticism in actions of slander was carried much beyond, the bounds of common sense in former times. The .struggle used to be, to find, if possible, some way of avoiding a natural and necessary inference. At present, a distinct averment in regard to the' person spoken of, and a clear reference of the calumnious words to that person, is all that is required, without multiplying averments and innuendos, so as to obscure instead of throwing light upon the subject of investigation. Starkie on Slander, 285, 298.

Judgment according to verdict.  