
    MARIE A. N. POLLARD vs. JACOB E. LYON.
    At Law.
    No. 7981.
    I. On the trial of an action of slander the plaintiff must prove that the defendant uttered the words set out in the declaration, or expressions of substantially the same meaning.
    II. Words which if true would subject the plaintiff to an indictment for crime involving moral turpitude, are iu themselves actionable without averment or proof of special damage.
    III. Since the act of Maryland of 1749 removing the infliction of corporal punishment for fornication, and that of 1786 repealing all proceedings against that offense, words spoken of an unmarried woman imputing to her that act are not actionable in themselves.
    IV. When the words complained of in the declaration are not actionable, and no special circumstances are set up, and there is a verdict in favor of the plaintiff, the judgment will be arrested.
    STATEMENT OR THE CASE.
    This is an action of slander, and the words alleged in the first count of the declaration to have been spoken by the defendant of and concerning the plaintiff are, I saw her in bed with Captain Dentyand in the second count, •“ I looked over the transom-light and. saw her in bed with Captain Denty.” There was no averment that the plaintiff was a married woman, nor was there any statement of special damage, or that the defendant had charged the plaintiff with adultery. At the trial of the case the court charged the jury that they “ ought to find a verdict for the defendant unless they are satisfied from the proof that the defendant used of and concerning the plaintiff the words set out in the declaration, or language substantially identical; and evidence showing that the defendant had spoken the precise language in the declaration, or that he had caught her in bed with Captain Denty, or that she was in bed with Captain Denty, or that he accused her of being in bed with Captain Denty, may properly be considered by the jury for the purpose of sustaining the declaration, as in the opinion of the court such expressions are substantially like those in the declaration. But, on the other hand, evidence to the effect that defendant only-said to the witness that he had caught them together, or caught her with him, or had seen her with him, or had seen her in Denty’s room, are not competent to be considered by the jury as proof of the alleged slander, for they do not conform to the words set out in the declaration.” This instruction was given as a substitute for that ashed for by defendant’s counsel, who excepted to the same. The jury returned a verdict in favor of the plaintiff for the sum of $10,000. A bill of exceptions was made, and a motion in arrest of judgment, on the ground that the words complained of in the declaration are not actionable, and because the declaration does not state a case entitling the plaintiff to a recovery; and, therefore, judgment cannot properly be entered on the verdict.
    The case is now here on the bill of exceptions and the motion in arrest of judgment, which was ordered to be heard at the general term in the first instance.
    
      Drew and J. H. Bradley, jr., for plaintiff.
    
      Davidge and Cox for defendant.
   Mr. Justice Humphreys

delivered the opinion of the court:

We think that in the ralingof the circuit judge there was no error.

The motion in arrest of judgment is heard in general term now in the first instance. The words spoken by the defendant and charged in the declaration are, “ I saw her (the plaintiff) in bed with Captain Denty.” It has been settled, that, at common law, words which if true would subject the accused to infamous punishment, or to an indictment for a crime involving moral turpitude, are in themselves actionable without averment or proof of special damage. The rule must have been so settled on the ground that, as between men, a charge made by one against another could result in no serious injury, as a general rule, unless the charge if true would subject the party of whom the words were spoken to the inconvenience and danger of an indictment in which, the public would be arrayed against him. It may be true that a man suffers no real damage from words which, if true, would not and could not be followed by an indictment and punishment. Be the reason what it may, we find the rule and cannot depart from it. Rude as the generation that established the rule may be thought to have been, it probably did not occur to them that the same rule would come to be applied in a more refined age so as to protect the defamer of woman’s character from responding in damages for the looseness of his tongue. Or it may not have entered the mind that the time would come when men could wantonly assail the reputation of woman’s chastiy. But we are bound by the stubborn rule of authority, and the remedy is by legislative action.

The words in this case import nothing else, legally or according to the common acceptation of those words, than a modest way of charging illicit intercourse between a man and a woman. The more delicate and covert the charge, the keener the injury. When the defendant said, "I looked over the transom-light and saw Mrs. Pollard in bed with Captain Denty,” who would doubt his meaning? If the charge was true, defendant could have justified; if untrue, he should be held to answer for the wrong committed. It is to be regretted that the rule in Ohio and Iowa is not the rule of the common law in governing us.

But we are bound by the rule that the charge must be in words which, if true, would subject the accused to an indictment. There is moral turpitude in the charge made; but the plaintiff could not be indicted even if the truth of the charge was established. The act of Maryland of 1719 removed the infliction of corpora! punishment for fornication, and the act of 1786 repealed all proceedings for the punishment of fornication. We think that we are forced, however reluctant to do so, by the mandate of authority, to'arrest the judgment.  