
    Thomas Stevenson versus Samuel Hayden.
    To charge one with swindling is not actionable
    This was an action of the case for words. The declaration contained three counts. The first alleges that the plaintiff is a constable of the town of Boston, and that the defendant, “ contriving and maliciously intending to hurt, injure, and degrade, the plaintiff in his aforesaid good name, character, and reputation, and in his said office, and to cause it to be believed that he had acted unjustly, deceitfully, and dishonorably, in his said office, and to subject him to the pains and penalties by the laws of this commonwealtn provided against those who commit any kind of cheating, deceit, or fraud,—did, in the presence of divers good citizens, in a certain discourse of and concerning the plaintiff, in his said office, falsely and maliciously speak and publish these false, scandalous, and defamatory words of and concerning the plaintiff, so being a constable of the town as aforesaid, viz., he (meaning the plaintiff) is a swindler, (meaning thereby that the plaintiff, under color of his office, had conspired with others for the purpose of deceiving, cheating, and defrauding, and had acted unjustly, deceitfully, and dishonestly, in his said office.”) The second count lays the same words as spoken of the plaintiff, without reference to [ * 407 ] his office. * The third count alleges that the defendant, “ with the malicious intention and contrivance aforesaid, and for the several purposes aforesaid, did falsely and maliciously, openly and publicly, charge the plaintiff with swindling, in the presence and hearing of the good citizens aforesaid.”
    After trial before Parlcer, J., at the last November term, and a verdict for the plaintiff, the defendant moved in arrest of judgment, for that the words laid in the declaration are not actionable.
    
      Heard, for the defendant,
    contended that, from all the authorities, it was not actionable to call a man a cheat unless he is a trader, and the words are spoken of him in relation to his trade. 
      Swindler is a word lately come into use, and is synonymous with cheat. 
       This can have no relation to the defendant’s office of constable. It is never applied to any one but a trader or dealer. As a constable, his whole duty is to execute and return such precepts as are delivered to him. But if the first two counts are sufficient, it will be impossible to support the third, which contains a naked charge of swindling, without any reference to his office, and the damages being given on the whole declaration, if one of the counts is bad, judgment cannot be rendered. 
    
    
      Everett,
    
    on the other side, insisted that none of the cases' cited by the opposite counsel militated with the general principle, that words are actionable which expose a man to legal punishment. Formerly it was held that no words were actionable but such as, if true, would endanger the person’s life ; but later authorities are otherwise, and at this day any words which endanger a man in law are actionable. .The principles of law remain fixed, although new words are introduced into the common language of the coun try, or ancient words change their signification. Thus, heretofore, lenave was merely a diminutive term, tantamount to lad or boy, but now it is used as a term of harsh reproach. Villain formerly meant no more than one employed in rustic labors, but it is now a word of strong opprobrium.
    * A swindler is defined by the best lexicographer, [ * 408 j “ one who cheats under pretence of trade ; ” “ one who gets or procures money under false pretences.” We have a statute which provides that persons convicted of any gross frauds or cheats may, at the discretion of this Court, be sentenced to seven years’ confinement to hard labor.  To call a man a cheat is, then, actionable, as it exposes him to a prosecution, the issue of which may be so severe.
    And this charge of cheating may well apply to the improper exercise of the constable’s office. Part of the duty of that office is to attach the goods of debtors, upon mesne process, and to sell them at auction upon execution. He may, in performing these services, be guilty of many cheats and fraudulent practices ; as, for instance, entering false prices of the articles he sells, by which either the debtor, the creditor, or the purchaser, might be cheated
    
      
      
        Ludwell vs. Hole, 2 Lord Ray. 1417. — Savage vs. Robury, 5 Mod, 398.—2 Salk. 694, S. C.— Todd vs. Hastings, 2 Saund. 307. — Wake vs Chapmon & Ux Hardres, 8.
    
    
      
      
         Savile vs. Jardine, 2 H. Black. 531.
    
    
      
      
        Onslow vs. Horne, 3 Wils. 177
    
    
      
       Passed November 1, 1785.
    
   The opinion of the Court was delivered by

Sedgwick, J.

(After reciting the substance of the declaration, he proceeded.) The words “ swindler, swindling,” &c., have been very lately adopted into the English language, and are as yet of indefinite meaning; and it is sufficient to determine the question before the Court that they do not, with certainty, import an indictable offence. These terms were imported into this country from England, and into that from Germany. In their passage hither, when first used in the English language, and before they became naturalized here, they obtained a meaning, and what that meaning was, we learn from the report of the case' of Savile vs. Jardine, by which it appears that the word “swindler means no more than cheat; cheat has always been holden “not to be actionable, and swindler means no more.” We may safely, I think, consider that as the meaning of the word; and if so, this case is brought within the authority of several of the cases which have been cited, and which have always been considered as good law. Whatever, then, might have been our judgment, if the first two counts only had been in the declaration, we are all satisfied that for the insufficiency of the third, the judgment must be arrested.

Judgment arrested. 
      
      
         Vide Harding vs. Brooks, 5 Pick. 244.— Turner vs. Horton, Willes, 438.—] Saund. 246.—2 Saund. 307, a; notes, 5th ed.— Chaddock vs. Briggs, 13 Mass Rep. 248.
     