
    Charles Cock vs. Allen Weatherby.
    A general charge of stealing, unaccompanied with any explanation, is actionable, because it imports a felony ; but if, from the application of the' charge, a felonious stealing could not have been meant, it will not support a verdict.
    It does not amount to the charge of the felony of theft, to charge a person with having stolen a “bee tree ; ” that phrase having reference to the wild, un-reclaimed insect and a standing tree, neither of which is a subject of larceny.
    Slanderous words spoken in the second person will not support counts for words spoken in the third person, and vice versa.
    
    Where a declaration in slander contained five counts, a general verdict, assessing the plaintiff’s damages at a certain sum, is not responsive to any count in the declaration.
    In error from the circuit court of Tallahatcbee county, Benj. F. Caruthers, judge.
    This action of slander was commenced by Allen Weatherby in the circuit court of Yalabusha county against Charles Cock.
    The declaration contained five counts.
    The first count charged the defendant below, Cock, with saying in the presence of many good citizens, &c. to Weath-erby, plaintiff below, “ You (meaning said plaintiff) are a damned rogue. You (meaning said plaintiff) intended to steal and did steal, and I (meaning said defendant) can prove it, and that his (meaning plaintiff’s) was a damned trifling family, and he (meaning said defendant) wished it was out of the settlement.”
    The second count charged defendant below with saying in presence of others, “You (meaning plaintiff) are a damned rogue; you intended to steal, and did steal (meaning that plaintiff intended to steal and did steal) a bee-hive, and I (meaning said defendant) can prove it, and your’s (meaning plaintiff’s) is a damned trifling family, and I wish it was out of the settlement.” Thereby, then and there, meaning that he,'the said plaintiff, has stolen a bee-hive, &c.
    The third count charged defendant below with saying, “ He (meaning plaintiff) is a damned rogue; he (meaning said plaintiff) intended to steal, and did steal, and I (meaning said defendant) can prove it.” Meaning thereby that plaintiff had stolen a bee-hive, and that defendant could prove it.
    The fourth count charged defendant below with saying, “You (meaning the plaintiff) are a damned' rogue; you intended to steal, and did steal, a bee-hive, and I (meaning said defendant) can prove it. Your’s (meaning plaintiff’s) is a damned trifling family, and I (meaning defendant) wish it was out of the settlement.”
    The fifth count charged defendant with using words of insult that lead to violence and breach of the peace. To wit: “You (meaning plaintiff) are a damned rogue; you intended to steal, and did steal, and I (meaning defendant) can prove it. Your’s (meaning plaintiff’s) is a damned trifling family, and I (meaning said defendant) wish it was out of the settlement,” contrary to the form of the statute, &c.
    To the declaration was plead the general issue, and leave given by plaintiff’s counsel to give in special matter by way of justification or in mitigation of damages.
    A trial was had, the verdict by consent set aside, and the venue changed to Tallahatchee county; where the case was again tried, and the following verdict rendered:
    “The jury find the issue in favor of the plaintiff, and assess his damages at four hundred dollars.” A judgment was rendered accordingly. A motion for a new trial was made and overruled, and the evidence embodied in a bill of exceptions.
    The bill of exceptions shows that the plaintiff’s witness, Matthew Wilson, proved that defendant said at his house that Allen Weatherby was a damned thief, and he could prove it; that he did steal a bee tree; that, if Jeremiah Weatherby undertook to clear him, he would undertake to clear a damned thief, for he stole the bee tree, and he could prove it. That they (referring to plaintiff’s family) were a damned trifling pack or set, and he wished they were out of the neighborhood. On cross examination, stated that Cock always used the words 
      bee-tree, and never hee.-hive. The plaintiff below was not present.
    Felix Shipp proved the same words and facts as Wilson.
    Plaintiff proved that Cock was executor of Allen Weather-by’s father’s will, which was objected to, which was all the testimony offered.
    The defendant asked the court to instruct the jury:
    1st. That to say of a man that he stole a bee-hive was not slander at common law.
    2d. That plaintiff must prove his words as they were laid in his declaration.
    That a count containing words spoken to in the second person is not supported or proved by words spoken in the third person.
    That a count containing words spoken to the plaintiff is not proved by proof of words spoken of the plaintiff.
    All of which were given by the court.
    The defendant below prosecuted this writ of error.
    Waul, for plaintiff in error.
    This is an action of slander consisting of five counts, four for slander at common law, and the fifth on the statute of the state.
    An action for slander at common law could not be sustained without the words imputed some crime for which the party slandered, if guilty, could be punished, or where actual damage was proved as resulting from the false and slanderous words. 1 Chit. Gen. Pr. 44; Starkie on Slander.
    Thus, if a man say you are a thief for you stole my tree, it is not actionable, as it shows that the party had a trespass, and not a felony, in contemplation. 1 Wh. Lib. 1269; Thompson v. Bernard, 1 Camp. 48.
    Here the words proved show the offence, if any, totally different from the offence charged in the declaration.
    The declaration charges the theft of a bee-hive, which was larceny at common law. While the proof is that a bee tree was charged as being stolen, which could not be the subject of larceny; for though the tree was on defendant’s land, yet the bees, being of the description Jera, natura, were not subject to the dominion of, and no one could have the property in them; and the cutting the tree was a trespass only.
    Again, the words must be proved as laid in the declaration. And if the words are laid as being spoken to the plaintiff, it will be a variance if they were spoken to a third person concerning him, and vice versa. 2 Sand, on PI. & Evid. 79S; 4 Phil. Evid. (Cow. & Hill) 236; Rex v. Biny, 4 Term Rep. 217; McConnell v. McCoy, 7 Serg. & R. 226.
    . Although the words proved might be actionable under the statute, yet there being no count informing the court that his case is within the statute, a recovery cannot be had. Scott v. Peebles, 2 S. & M. 556.
    Why a new trial was not granted cannot be surmised, without we conclude that the verdict of the jury satisfied the judge that he had misstated the law. And though he might advise, he could not supervise their verdict.
    
      Fisher, on same side.
   Mr. Justice Thacher

delivered the opinion of the court.

Writ of error to Tallahatchee county circuit court.

This is au action of slander. The declaration contains five counts, — four at common law, and the fifth under the statute. The first count lays the words as having been spoken of the plaintiff below in the second person, and containing a general charge of stealing; the second count also lays the words as having been spoken of the plaintiff below in the second person, and containing a specific charge of stealing a bee-hive; the third count lays the words as having been spoken of the plaintiff below in the third person, and containing a charge of stealing, with reference to a bee-hive as the object of the larceny; the fourth count is similar to the second; and the fifth count, under the statute, lays the words as having been spoken of the plaintiff, and containing a charge of stealing. The evidence, upon the trial, shows that the words were spoken of the plaintiff below in the third person, and that they contained a charge of stealing a bee-tree.

A general charge of stealing, unaccompanied with any expla.-nation, is actionable, because, ex vi termini, it imports a felony. If, however, from the application of the charge, it could not have meant to impute a felonious stealing, it will not support a verdict. Starkie on Slander, 54. The term bee-tree relates to the wild, and not to the reclaimed, insect — the insect ferce naturae, and not yet reduced to property, and the term tree is applicable to standing timber only — “arbor dum crescit, lig-num dum crescere nescit? Neither of these articles are subjects of larceny. The words proved upon the trial qualify the charge, and consequently it appears that a felony was not committed. Dexter v. Saber, 12 John. 238.

The above view of the law covering the whole case, it becomes unnecessary to add that proof of slanderous words spoken in the second person will not support counts for words spoken in the third person, and vice versa.

The verdict is not a proper response to any count in the declaration.

Judgment reversed, and new trial awarded.  