
    Joseph Hugley v. Lydia Hugley.
    Words which convey a charge of stealing goods are actionable per se, although it appear, that they were spoken in reference to goods of an estate, oí’ which the party charged was a distributee, and of which he subsequently obtained administration ; and it should be left to the jury to determine, whether the words were to be understood as charging a felonious taking, or only an improper intermeddling with the estate.
    
      In actions for slander the words proved must be construed in the popular sense,, in which the rest of the world naturally understand them; and a forced construction is not to be put upon them, in order to relieve the defendant from the action.
    Tried before Mr. Justice Martin, at Abbeville, Fall Term,., 1831.
    This was an action of slander, for saying of the plaintiff,. “ he stole three middlings of bacon, and when he was detected brought them back ;” and that he had “stolen a piece of cambric, find a piece of silk.” The words laid were fully proved, and if was also proved, that the charge conveyed by them had been repeated by the defendant, at different times, and to different persons. It appeared,' however, from the evidence introduced by the plaintiff,' that the words were spoken in reference to goods of the plaintiff’s father,’ who had recently died intestate, and of whose estate the plaintiff shortly afterwards obtained administration ; and that the charge made by the defendant, who was the widow of the intestate, and step-mother of the plaintiff, related, in point of time to a period subsequent to the death of the intestate, but prior to the grant of, administration. It was distinctly proved, that the words were spoken before the plaintiff administered, as well as afterwards. No special damage was' laid or proved ; and the defendant moved for a nonsuit, on the ground, that the weirds proved did not, under the circumstances, amount to a charge of felony. The intermeddling of a distributee, before administration granted, might be fraudulent, but could not be brought within the definition of larceny : and if it could, the subsequent grant of administration to the same distributee purged the illegality of his acts. The presiding Judge refused the motion, but left it to the jury to determine, whether the words were to be understood as conveying a charge of felonious taking, or merely an improper intermeddling with the' estate; and the jury found a verdict for the plaintiff.
    The defendant gave notice of appeal; and the presiding Judge made the following report, to the Court of App'eals, of the reasons of his decision.
    
      il I understand the rule now to be, whatever it may have been formerly, that the words used are to be construed iti the populai Sense, in which the rest of the world naturally understand them ; and that a forced construction is not to be put upon them, in Order to relieve the defendant from the action. Selw. N. P. Wheaton’s edition, 967. Bac. Abr. Slander. (L.) In Baker v. Pierce, 2 Ld. Raym. 959, this principle was recognized by Holt, C. J. and the other Judges of the Queen’s Bench. To the same effect is the case of Hogg ads. Wilson, in this State,' 1 N. & M. 216, In Christie v. Cowell, Peake’s N. P. C. 4, the words were, “ he is a thief, for he has stolen my beerand it appeared, that the plaintiff was the defendant’s clerk in a
    
      brewery, and was in the habit of selling beer for money, on the defendant’s account, and had not accounted for the money. Lord Kenyon left it to the jury to determine, whether the defen^a)lt intended to charge the plaintiff with having stolen beer, or only with not accounting for the sales ; the latter of which amounted to nothing more than a breach of contract. This case is so strikingly analogous to the present, that I feel confirmed in the propriety of having refused the nonsuit. It was proper that it should be left to the jury to determine, whether a servant, or clerk, was charged with stealing the beer, or only with not accounting for the sales : it was therefore proper, in the present case, that the jury should decide, whether the defendant intended to charge the plaintiff with an improper use of his rights, as a distributee, and nothing more, or whether she intended to charge him with a larceny. In the case of Sawyer ads. Eifert, 2 N. & M. 511, it is laid down, that “ words are to be construed by a Court and jury, in the same manner as they were, or ought to be construed, or understood, by the person to whom they were spoken.” On the same principle, in Stokes v. Stuckey, 1 M’C. 562, it was held, that to say of the plaintiff, “you did steal my brother’s cotton,1’ was actionable ; although the words were spoken in reference to cotton, which the plaintiff had to gin for the defendant’s brother. This last cited case seems to me decisive. It is, certainly, far more questionable, whether one could be convicted of larceny, for appropriating to his own use cotton which had been delivered to him to gin, than whether the distributee of an estate, who should secretly, and fraudulently, and with a felonious intention, convert to his own use, a part of an estate in which he is interested, but which is in the possession of another, may be convicted of the like offence.
    “ If larceny may be committed of goods obtained from'the owner by delivery, when it is done animo furandi, and of this, there can be no doubt, 3 Ch. Cr. Law, 923, 2 N. & M. 90, 1 Bay, 242, there can be no question, but that it may be committed, when one takes goods, in which he may have an inchoate interest, if the taking be with an intention to steal. That it was proper, therefore, for the jury to determine, whether the defendant intended to make the charge against the plaintiff in this case, I cannot doubt: nor can I doubt, but that the plaintiff might have been indicted for larceny in this instance, if the words were true, and the taking felonious, as the defendant intended it should be considered.
    “That the grant of administration has relation back to the death óf the intestate is true in many instances, there can be no doubt: but it is a rule introduced for useful purposes, and is limited to them. It can never avail to legalize a larceny. If, therefore, the former positions be true, this ground, I apprehend, cannot avail the defendant.”
    The defendant now moved to set aside the verdict, and for a nonsuit, or new trial, on the ground, that the plaintiff was not intitled to recover, for the reasons urged in the Court below.
   O’Neall, J.

We concur in opinion with our brother Martin, and for the very satisfactory reasons which he has assigned.

Johnson, J. concurred.

Motion refused.  