
    
      John Gage, Jr. vs. Joseph S. Shelton.
    
    Slander. Words charging- the plaintiff with having docked or cut off the tail of defendant’s horse, are not actionable per se.
    
    The Act of 1789 against “ marking, branding or disfiguring” horses, cows, &c. applies only to such fraudulent marking, branding or disfiguring, as is intended to prevent the owner" from knowing his property.
    The stables of one Norris were burnt down, and some time after the defendant said to the plaintiff; “Some time ago Mr. Norris’ stables were burnt, and I lost my horse, and public opinion says you was the author of it; and what public opinion says, I believe to be right.” Held, that if the stables were within the curtilage, as alleged in the declaration, the words imputed arson to the plaintiff, and were therefore actionable.
    The proof was, that the stables were situated on the lot in the -village of Union, on which Norris lived, about sixty yards from his dwelling house, and were separated from it by a fence. Held, that if the stables \s ere so near the dwelling house that the burning of them would probably endanger the dwelling, then it might be arson to burn them ; and that it was a question of fact for the jury to decide* whether they were so situated.
    Any out house contributary to the mansion, as a' kitchen, stable, barn, &c. if so situated that the burning of it would probably endanger the mansion, is within the protection -of the law against.arson. •
    Words charging the plaintiff with having killed defendant’s horse in the night time, • are actionable per se, because for such an offence the plaintiff might be punished under the statute 22 and, 23 Ch. 2, c. 7, making it felony, maliciously, unlawfully and willingly, to kill or destroy any horse, &c. in the nighttime.
    Words are in themselves actionable if they impute to the plaintiff a crime involving moral turpitude, or which would subject him to in-iamous punishment.
    The office of an inuendo is to explain what was said before, and which, without it, would be uncertain.. Where, therefore,, the sense and meaning are perfect without it, it is useless, and may be rejected as surplusage.
    Plaintiff, in his declaration, alleged the speaking of words by the defendant, which plainly imputed to the plaintiff the crime of maliciously killing (burning to death in the stable) a horse in the night time, and by inuendo alleged that defendant intended to charge him, the plaintiff, with arson. Held, that the inuendo might be regarded as surplusage, and the declaration sustained, although the words alleged and proved did not impute arson to the plaintiff
    
      Before Martin-, J. at Union, Bpring Term, 1832.
    The report of his Honor, the presiding Judge, is as follows :
    “The words charged in the plaintiff’s declaration, were, in the first count, “some fitne ago Mr. Norris’ stables were burnt, and I lost my horse, and public opinion says you was the author of it, and what public opinion says, I believe to be right.” Second count. That in speaking to plaintiff in relation to burning the stables and docking the horse, the defendant said to plaintiff, “ public opinion says you did it, and I am not sure but what public opinion is right.” In both these counts, the plaintiff, by inuendo, alleged that defendant intended to charge him with arson. The third count contained the same charge as to the horse. The fourth the same as to the burning the stable. The fifth, that public opinion charged plaintiff with burning the stable; inuendo that he intended to charge him with arson. It appeared that Norris’ stables, which were situated on the lot upon which he lived, about sixty yards from the mansion, and, as the witness thought, with a fence between, had been burned in the night time; and . the night before the speaking of the words for which the action was brought, the defendant’s horse, with others, had been swabbed (as the witness termed it) in Norris’ stables. The defendant came into the plaintiff’s house, and in presence of witness and another, said, with some agitation, to plaintiff, “ I have something to say which may hurt your feelings. Some time ago Norris’ stables were burnt, and I lost a horse; last night my horse was docked, and public opinion charges you with it.” The plaintiff asked if he charged him with the offence; defendant answered hedid not. The plaintiff then asked what he meant by public opinion, and defendant replied : “ what every body says, and I am not so sure but what public opinion is right.” The witness understood defendant as speaking in reference to the burning the stables, and docking or swabbing the horse ; and he regarded it as tantamount to charging plaintiff with both those acts. But the question propounded by plaintiff to defendant,- when the charge was made, was, “ do you charge me with docking your horse?” to which the defendant answered by reference to public opinion, as before stated. The defendant, in another conversation, with Bates, in the presence of McJunkin, concerning the burning of Norris’ stable, and the docking of his (defendant’s) horse, said “ it was the general opinion,” or public opinion, that plaintiff did it. He (defendant) did not charge plaintiff with’ it, or express any- opinion as to the correctness of the charge. McJunkin, in relating the conversation alluded to by Bates, said that defendant said public opinion charged plaintiff with it, and he understood him to allude to the burning of the stable, for he heard nothing as to the docking of the horse. There was a great variety of testimony as to the good character of the plaintiff, to shew malice in defendant — that public opinion had never charged him with this offence, &c. — and there was much testimony on the part of defendant, in answer to all that plaintiff proved. But as the grounds of appeal do not seem to render this testimony necessary for the court, I forbear to detail it. On the close of the plaintiff’s testimony, the defendant moved for a non-suit.
    
      First. Because the burning of the stable, even if charged by the defendant, was not arson, with which, it was alleged by plaintiff’s declaration, the defendant intended to charge the plaintiff.
    
      Second. That it appeared by the evidence, that the horse had only been disfigured by swabbing his tail; and that this is not such a disfiguring as is punishable by indictment under the Act.
    
      Third. That the plaintiff had failed to prove any cause of action against defendant, since the latter expressly denied that he charged plaintiff with the offence.
    “ As to the first ground. The Act of 1670, 2 Brev. Dig. 35, makes it felony to burn or cause to be burnt any ricks of hay, barns or other houses or buildings. If, therefore, the plaintiff had burnt Norris’ stables, he was guilty of felony under that statute; and the charge, if false, I could not doubt was actionable. The objection, however, was that plaintiff, by his declaration, had alleged that defendant had charged him with arson, when the words, if proved, did not amount to arson. There can be no doubt that giving character to the offence charged, will not make the words actionable, if they be not so without it; and I conceive it equally true, that if the words spoken charged the plaintiff with an offence for which he may be indicted, and if convicted, rendered infamous, they are actionable, although they do not impute an offence of the technical character, or subject the plaintiff to the punishment which had been intended or understood. Thus, if one say you stole A’s horse, and the plaintiff in declaring on the these words, were to allege that defendant intended to charge him with felony, without benefit of clergy, this would not prevent his recovery, for the words spoken were actionable, and it is the inuendo only which is erroneous. If it were otherwise, then it would follow that the plaintiff was bound to prove to the letter every inuendo in his declaration. The words proved in this case imputed, as I supposed, a felony to the plaintiff; on that ground they were actionable. If, as alleged by plaintiff, the defendant intended to charge him with arson, when the words used did not fix on him an offence of so high a grade, it was an aggravation of which the jury were to judge, although the language was not so strong as the defendant might have intended it to be. If one say to another, you are guilty of burglary, for you stole goods from A’s store, it would surely be actionable, although the stealing, as charged, did not amount to burglary. So, here, if the defendant charged plaintiff with felony, it was actionable, although it was not arson, as the defendant, according to plaintiff's declaration, intended to make it. The motion for a non-suit was therefore overruled on this ground : ,
    ' “I did not think the words charged as to the docking of the horse actionable, becausé not a disfiguring within the Act, and so charged the jury. The third ground was entirely for the jury, and therefore the motion was overruled on-that ground. In relation to the grounds now relied on for a nonsuit, I would remark first as to the
    “ Second. The witness was very clear as to his understanding that defendant charged plaintiff with-both offen-ces, but I stated to the jury that if they, after all they had heard, believed the defendant alluded only to the docking of the horse, they should find for defendant.
    “ Fourth. The same remark is applicable to this ground of appeal. . ' .
    •“ Fifth and Sixth. The counsel is mistaken in supposing that I refused' the nonsuit on the ground that the words proved amounted to a charge of arson. I stated that I was not prepared - to, say this -was not a building so far “contri-butáry to the mansion,” as.said by the court in 1 N. and McO..584, 'as to make the burning arson. But I refused the motion , entirely on- the ground that, whatever difference-of opinion might exist as to the charge of arson, the words of themselves imputed a felony to the plaintiff. The plaintiff had a verdict.-”
    The defendant appealed, and: renewed his motion fora nonsuit, on grounds with which the Reporter has not been furnished. . • ■
   'Curia, per

Johnson, J.

Before I proceed to consider the leading questions in this case, I propose to. dispose of that class of yrords which go to charge the plaintiff with cutting off the'tail, or swabbing defendant’s, horse. These are clearly not actionable in themselves, because they do not impute to plaintiff any crime which would have subjected him to legal punishment. At common law a civil action, would lie for that injury,'and it is insisted that under the Act of 1789, P. L. 486^ it is an offence for which an indictment would lie. That Act provides that if any person, shall be convicted of wilfully and knowingly mark- ingi branding, or disfiguring any horse, mare, colt, (fee., cow, bull, steer, (fee., he shall forfeit £20 for each, and in case of non-payment shall be publicly whipped. The same Act also provides against stealing of horses, cattle, sheep, goats, and for marking, branding, or disfiguring them. At that time the raising of stock was a general object of pursuit in the country, and constituted a considerable portion of the revenue of the citizens. The stock of each was distinguished from the other by their natural or such artificial brands and marks as the owner, might think proper to place upon them, and to prevent the alteration of these marks for the purpose of defrauding the owner, was evidently the object of this provision of the Act. Notv there is certainly nothing in the mere cutting off the hair of a horse’s tail that is of itself calculated so to disfigure him that the owner would not know him again ; nor was there anything in the manner of speaking the words calculated to. convey the idea that defendant imputed that intention to the plaintiff. They therefore import no crime for which plaintiff could have been indicted.

In considering the other questions which have been raised it will be necessary to premise that this is a motion for a nonsuit only, and upon a question put by the court to the counsel, he has declined to accept a new trial, although the court might be of opinion that there were grounds to authorize it. It is therefore unnecessary to euquire whether the witness, W. K. Clowuey, was or was not properly permitted to give his own construction to the words spoken, and whether the judge on circuit misdirected the jury as to matters of law or fact, for these have never been allowed as grounds of nonsuit, but for a new trial. The. case is then resolved into the questions : 1st. Whether the words laid in the declaration are actionable, and 2d. Whether they are sufficently proved. The colloquium on the first count in the declaration states : “ That a certain stable, being one of the out-houses on the premises and within the curtilage of the dwelling-house situated thereon belonging to one Joseph Reed and others, and then occupied by one James Norris, had been burnt down in the night time, in which was consumed a horse belonging to the said Joseph (the defendant,) and that in a conversation concerning the burning of the said stables, <fcc., the defendant said to the plaintiff, Mr. Gage, some time ago Mr. Norris’ stables were burnt, and I lost my horse, and public? opinion says you was the author of it, and what public opinion says I believe to be right” (inuendo that he was guilty of arson.) The words were proved precisely as laid ; and, when connected with the colloquium, amount in terms to the common law definition of arson — the burning of an out-house within the curtilage of the mansion-house — and, so understood, it is not denied that the words are actionable: but it is insisted that the proof does not sustain the averment that the stable was within the curtil-age of the dwelling-house. The. proof is that the stable burnt was situated on the same lot with the dwelling-house in the village of Union, at the distance of about sixty yards from it, and was separated from it by a common fence. I have not been able to ascertain that there is any precise rule by which to distinguish between out-houses that are or are not under the same protection which the law affords to dwelling-houses considered apart from them. Hawkins says that the dwelling-house and the out-buildings, as barns and stables, adjoining thereto, and also barns full of corn, whether they be adjoining to the house or not, are the subject of arson. 1 Hawk. P. C. ch. 38. East says that it extends not only to the dwelling-house, but to all out-houses that are parcel thereof, though not adjoining thereto, East P. C. 1020, and refers to his chapter on the subject of burglary, lb. 492, as being identical in this respect to the crime of arson, and as furnishing illustrations of the subject. He then observes that the term mentioned “ not only includes the dwelling-house, but also the out-houses, such as barns, stables, cow-houses, dairy-houses, and the like, if they be parcel of the messuage, though they be not under the same roof or joining contiguous to it.” But it is difficult to reconcile the cases which he puts by way of illustration. In one.place it was held to be burglary to break a back-house eight or nine yards distant from the dwelling-house and united to it only by a paling. Whilst in Garland's case the breaking of an out-house used in common with the dwelling-house, and separated only by a passage of eight feet, was held not to be burglary, on the ground that it was not within the same curtilage or common fence and so, in Eggington’s case, lb. 494, it was held not tO' be burglary to break into a centre building in which trade-was carried on, although it was under the same roof with the dwelling-house, because there was no internal communication between them. But in Graydon’s case the breaking of a barn was held to be burglary, although it was. separated from the dwelling-house by a stable, a cottage: and cow-house, because it was under the same roof. Ib.. 493. In Ginns’ case, 1 N. and McC. 585, Judge Nott remarks that to constitute an out-house parcel of a mansion-house it must be some how connected with or contributory to it, as a kitchen or smoke-house, or such other as is-usually considered as a necessary appendage to a dwelling-house. There is then great difficulty in prescribing any rule by which we will be able to distinguish between such houses as do and such as do not come under the protection of the dwelling-house, and in case of difficulty we are from necessity obliged to resort to principle. In Ginns’ case Judge Nott remarks that the laws against burglary — and the same reason applies to those against arson — were designed as a personal protection to the owner and his family — an immunity afforded to a man’s dwelling or mansion-house, which is considered as his castle and a sanctuary to all who are within it. Without such a protection the repose of a man would be liable to be disturbed by the burglar : he might be despoiled of his goods and his life perilled by a rencounter with the midnight robber, and so by the still more desperate deeds of the incendiary. I apprehend, therefore, that whatever act is in itself calculated to produce these consequences, consummates the offence. Out-houses, such as kitchens, stables, barns, tfec., are indispensably necessary to our comfort and convenience, and renders it necessary that they should, even in country places, be located contiguous to the dwelling-house ; and, in towns and villages, they must, in general, be so located, for the want of space; and when an out-house, thus necessary to a dwelling-house, is so situated that the burning of it ■would probably endanger the dwelling-house, whether i$ be under the same roof or within the same common fence, all the evils intended to be guarded against are involved to the same extent as if the dwelling-house itself had been set on fire, and for that reason the same protection ought to be extended to them ; and that appears to me to be the only true rule. If the building set on fire is one appropriated to ordinary domestic uses, and is situated so near to the dwelling-house as probably to endanger it, then it is arson to burn it, and not otherwise. Whether the house charged to have been burned in this case was so situated or not, is a question of fact, which the court are not competent to determine, and one indeed on which the jury have not passed, because it was not submitted to them ; and although that might be good on a motion for a new trial, it clearly is not for a nonsuit.

There is another ground on which this motion must be refused. The words charged impute another crime to the plaintiff. The killing of the defendant’s horse in the night time — burning him in the stable. The statute 22 and 23 Car. 2, ch. 7, P. L. 80, made of force in this State, makes it felony for any one, in the night time, maliciously, unlawfully, and willingly to kill any horse, (fee., and to avoid the sentence of death allows the offender to elect transportation for seven years. In Kirkpatrick's case, 2 Brev. Dig. 35, note, it became a question whether, as transportation was not authorized by our laws, the offender could be punished at all; and, although it was not directly decided, Judge Brevard indicates very clearly his own opinion that the offender was notwithstanding punishable ; and I recollect also the case of one Donevant, who was convicted, before the late Mr. Justice Waties, at Union Court-House, for maliciously killing a horse in the night time. He was in doubt as to that question, and reserved it for the consideration of the Constitutional Court, and by the advice of all the Judges, Donevant was sentenced to fine and imprisonment. The rule laid down in Brooker vs. Coffin, 5 Johns. R. 191, is that words are in themselves actionable if they impute to the plaintiff a crime involving moral turpitude, or subject him to infamous punishment; and it will not be questioned that moral turpitude enters into the offence of maliciously killing a horse in the night time. It may be said that the burning of the horse does not support the in-uendo that plaintiff was guilty of arson. The office of an inuendo is to explain what was said before, and which without it would be uncertain, and is useless where the sense and meaning is perfect without it, and may be regarded as surplusage. 1 Ch. PI. 383. If then the colloquium and the words spoken are taken together, they contain a plain and direct charge against the plaintiff of killing the defendant’s horse in the night time, and in the absence of any thing else the law implies that it was wilfully and maliciously done, thus making the charge of the of-fence complete without the aid of the inuendo.

Motion dismissed.

O’Neall, J. concurred.

Harper, J.

I concur, on the ground that the words as laid sufficiently import a charge of arson, and that on that ground there was evidence enough to go to the jury.  