
    WATERS versus JONES.
    QUESTIONS-IK THIS CASE.
    
      Relative to what words are actionable, per se.
    
      As to evidence of the general character of a plaintiff, in slander.
    
    1. To charge one with having burned a gin house, is actionable,per se.
    
    2. To say of one, “ I believe you are guilty,” &c. of a crime, is-equivalent to a positive charge of it.-
    ■3. So, it is a good cause of action, in slander, to say of a perj son, “it is the general opinion of the people in J’s neighborhood, that he J, burned C’s gin house.”
    4. To say of a person, “ I can prove that J burnt the gin house of C, by H, or that J was in a condition about the gin house, previous to the burning of it, which caused every person in J’s settlement to believe J did burn the gin house” are likewise actionable.
    5. To say of J, “ he has been at different times, close about .where C’s gin house was burnt, in disguise with a sheep skin or bear skin,” is not actionable.
    6. In the action of slander, evidence of the general character of the plaintiff, is admissible.
    This was an action of trespass on the case, instituted by Jones against Waters, in the Circuit Court of Butler.
    The declaration consisted of six counts; and, after the usual inducement, alleged, that before the commitment of the said grivances, by the said defendant, a certain Francis Coleman, then of said county of Butler, was lawfully possessed of a certain cotton gin house, situated in the said county, stored with cotton; that afterwards, to-wit, on the 15th July, 1835, the said cotton gin house, with the cotton there-1 in stored, were wholly burned and consumed by fire: that the defendant well knowing the premises, and contriving wickedly and maliciously to injure the plaintiff in his good name, and reputation; and to cause it to be believed that he was guilty of the crime of arson — spoke and published of and concerning the plaintiff, these following false, scandalous, and defamatory words, to-wit:
    First-“jHe [meaning plaintiff] burnt the gin house of Francis Coleman.”
    
    Secondly — “ It is the general opinion of the people in his (Jones) neighborhood, that he (Jones,) burnt Colemaris gin house, and it is not denied by said Jones in his settlement; and in consequence of which, /¿e(Jones) could not get but two or three votes, in his settlement”— meaning, for the representative branch of the Legist lature.
    Thirdly. — “ I. can prove that Jones burnt the gin house of Coleman, by Edward II. Herbert, and Hardy Herbert; or that he was in a condition about the gin house, previous to the burning of it, which caused every person in Ms settlement to believe that he (Jones) did burn the gin house.” -
    
    
      Fourthly. — “Jones has been seen two or three times, and at different times, close about where Mr. Frank Coleman's gin house was burnt, in disguise with a sheep skin, or bear skin; and that he (defendant) could prove it, by Edward Herbert, and Hardy Herbert, and the Colemans.”
    
    Fifthly. — “ It is the general opinion of the people of his (Jones) neighborhood, that Jie (Jones) burnt the gin house of Coleman.”
    
    
      Sixthly. — V I believe that he (Jones) knew of the burning of the gin, and was concerned in it,” &c.
    
      The defendant demurred to five of the counts in the declaration ; and the demurrer was sustained, by the Court below, to the sixth count alone. The record recites, that a jury then came, and-upon pleas and issue .joined, rendered a verdict in favor of the plains tiff for the sum of fifteen hundred dollars. .
    A bill of exceptions, taken in the progress of the trial, relates, that during the examination of witnesses on the part of the defendant, the counsel for defendant wras about to'ask of the witnesses questions going to prove the general character of the plaintiff. The Court remarked, that it had rather hear authorities produced to support the propriety of the motion ; to which it was replied, that there were no books at hand. The Court did not decide the point, as it. was no.t further pressed. The counsel also offered a hand bill to a witness, and asked him if such a paper was seen by him in circulation; to which he replied, he had seen the same, or one similar; but such handbill was not read to the jury, nor in the hearing of the Court. The Court refused afterwards to let the counsel for defendant allude to the contents of said hand bill in any way.
    In charging the jury, the defendant’s counsel asked the Court to charge, that if defendant had offered any proof going to show, that the words uttered by him were a current report in his neighborhood, and pnly repeated by him, should go in mitigation of damages ; which charge the Court refused.
    Argued by Porter, for the plaintiff in error.
   Collier, J.

The defendant in error, (who was plaintiff below,) brought his action for slander, in the Circuit Court of Butler. The declaration contains six counts: to the first, the plaintiff in error pleaded “ not guilty;” and to the second, third, fourth, fifth and sixth, he demurred, separately. The Court sustained the demurrer to the sixth, and overruled it as to all the others. Judgment was entered upon the demurrer as to the sixth : and, to the other counts, the record informs us, there were pleas and issues; but what the character of those pleas was, we are not informed.

The first count alleges, that the plaintiff in error charged the defendant in error, with having falsely and maliciously, burnt the gin-house, (a house in which cotton was stored,) of Francis Coleman. The other counts all refer to this.

The second and fifth counts allege, in substance, that the plaintiff in error said of the defendant in error, that it is generally believed, in his neighborhood, that he burnt Francis Coleman’s gin-house; in addition to which, the second count alleges, that such general belief was not denied; and that the defendant in error could not get more than two or three votes for the house of representatives of the legislature of this State.

The third count alleges, that the plaintiff in error said, of the defendant in error, that he could prove, by Edward H. and Hardy Herbert, that the defendant in error bu rnt Francis Coleman’s gin house, or was in such a condition, previous to the burning of it, as caused every person in his settlement,, to believe that he burnt it.

The fourth count sets forth, that the plaintiff in error said, of the defendant in error, that he had been seen, two or three times, and at different times, closó about where Frank Coleman’s gin-house was burnt, in disguise, covered with a sheep, or bear-skin; and he, (the plaintiff in error,) could prove it, by Edward H. and Hardy Herbert.

It will be unnecessary to say any thing about the sixth count, in as much ás the demurrer was sustained, to it.

It appears, from a bill of exceptions, accompanying the transcript first, that the plaintiff in error proposed to inquire into the general character of the defendant in error.- The Court remárked, that it had rather hear authorities, on the point: to which it was replied, that there were no books at hand.— The proposition not being further pressed, it was not decided upon, by the Court. Secondly — the Court refused to allow the counsel for the plaintiff in error, to allude in any way, to a hand-bill,, (which was shewn to a witness, who answéred, that he had seen it, or one similar, on the ground, that it was not read in evidence. Thirdly — the Court refused, on motion, to instruct the jury, that if the plaintiff in error had offered any evidence, to show the currency of the imputations in his neighborhood, which he was charged with having made, and he merely repeated what was current, such evidence should go in mitigation of damages.'

The jury found a verdict for the defendant in error, and judgment was rendered accordingly. And we are now asked to revise the questions of law, arising upon the bill of exceptions, and the demurrers to the second, third,.fourth and fifth counts.

In reference to the second and fifth counts, they allege, substantially, that the plaintiff in error, has said, of the defendant in error, that the general be* lief, in his neighborhood, imputes to him, the burning of Francis Coleman’s gin-house.

To burn a cotton house, is made arson, by statute; an offence, involving a great degree of moral turpitude. According to the rule, laid down by this Court, to ascertain whether words are actionable, in themselves, to charge one with having been guilty of the crime, subjects the author of the charge, to an action for damages. So, to charge one with having'burnt a house, of the description of any one of those designated by the statute, is equally slanderous, as if the offence was mentioned by name. Nor is it necessary to employ the precise designation which the statute uses : any other terms, of equivalent ’meaning, in popular understanding, are quite sufficient. The statute does not make a gin-house, eo nomine, a subject, touching which arson may be committed; but the terms “ cotton house,” are em.ployed. Now, as a gin-house is a house in which cotton is usually stored, every one understands, that, by a charge of burning it, is intended a house in which cotton is kept; though there might be a gin there, also. We can, then, discover no difference, so far as arson is concerned, between a gin-house and cotton-house.

To maintain an action for slander, it is not necessary that the charge of a crime should be direct and positive — -the imputation may be inferred from an indirect communication. Where a defendant expresses a suspicion, or institutes a comparison, or delivers the words as matter of hear-say‘, or by way of interrogation, or answer, or exclamation, or uses disjunctive or adjective words, or speaks ironically; or, in, general, where the statement virtually includes or assumes the commission of the principal act,or- a strong suspicion of it.”

.,, _ . .. , . ^ To say of one, “ 1 believe, or “ in my opinion, you are guilty of arson,” is clearly actionable. In Logan vs. Steele, it was held, that an action lay a--gainst the defendant, for having said of the plaintiff, “ I have every reason to believe that he burnt my barn." So, in Miller vs. Miller, the defendant said, of the plaintiff, “ My watch was stolen out of the widow Miller’s [plaintiff’s] bar-room; and I have reason to believe Tina Miller took it, and her mother, [plaintiff,] concealed it. The Court decided that the assertion, “ he had reason to believe, that the one took, and the other concealed it, is equivalent to the charge, that the one stole, or took it, and the other concealed it;” and that, the allegation, that his 'watch had been stolen, and he had reason to believe,&c., amounted to a positive averment; for a man only alleges a thing to be so, because he has reason for so believing it.

To the same effect are the cases of Oldham vs. Peake, and Stick vs. Wisdome. See, also, Brown vs. Lamberton, and Bonham vs. Boyer, and Nye vs. Otis.

To say of one, “ I have been informed, you are guilty of arson,” without disclosing the name of the Author, are words, for which an action will lie.-Now, as belief is the result of evidence, to say, “ I believe you are guilty of the crime,” &c., is equivalent to saying “ I have such evidence as convinces me, you have committed the crime,” &c.; and is equivalent to a positive charge.

To charge the commission of a crime, upon hearsay, is actionable, as we have already seen. Here, the defendant in error is charged with having been guilty of arson, according to the general belief of his neighborhood. They could not believe,- without proof, nor could the plaintiff in error have known their belief, had they not expressed it. The meaning of the imputation, then, is, the people of the neighborhood, of the defendant in error, generally, say of him, that they have reason to believe, that he burnt Francis Coleman’s gin-house. 'Thus interpreted, the words spoken, furnish a good causeof action.

In regard to the third count, the words are charged to have been spoken in the disjunctive, and come within the rule, as laid down, in Starkie on Slander, 58; so, if a part be actionable, and are not explained away, by the other words, used, it is enough. — • The first branch of the imputation contains words, indisputably actionable. The second branch charges the belief of the neighborhood, founded upon the condition of the defendant in error, previous to the burning, to be, that he burnt Francis Coleman’s gin house. This is certainly tantamount to charging, that it is said and believed, that the plaintiff below, has committed arson, without furnishing the name of any individual to whom'he may resort, for redress; and, according to the view taken of the second and fifth counts, the plaintiff in error is legally chargeable, upon either, or both branches of the imputation.

The fourth count imputes no crime directly, nor does it allege a state of facts, from which the com- . mission of one can be necessarily inferred. The words spoken merely charge the defendant in error, with having been in a suspicious place, under suspi-ciouo circumstances. These words, more especially when considered with reference to other parts of the declaration, do not charge directly or indirectly, positively or upon suspicion, any act or crime.

In respect to the assignments, founded on the bill of exceptions, we think the Circuit Court should have allowed the proposed inquiry to be made, into the general character of the defendant in error. That such inquiry was proper, on principle, we have no doubt. A rpan, whose general character is bad, as having been remarkable for a “great want of moral principle, &c. certainly should not receive from a jury, the same amount of damages, [as be, whose conduct through life, has continually presented an example of moral beauty.

We find, too, that authority tolerates the admission of such proof.

The proposition, to inquire into the general char-of 'the defendant, seems to have heen arrested by the Court, mero motu, and a desire expressed to hear some authority upon the point. The Court roust, then, be understood to have arrested the exa-róinati°n, unless authority were offered, to shew its propriety. . No authorities being at hand, and the Court so informed, the counsel had a right to consi-der its opinion against them, unless they were directed to proceed; and it would not, perhaps, have been quite courtious, to have proceeded in the inquiry, without a favorable intimation from the Court.

To the refusal of the Court to permit the paper, identified by a witness, to be referred to in argument, by the counsel for the plaintiff in error, there can bs ik> valid objection. — The. paper was not before the jury, -and could only become evidence, by being read to them; unless its reading was dispensed -with.

The bill of exceptions discloses nono of the evidence. We cannot, therefore, know whether the instruction asked of the Court, was portinont. And, according to the repeated decisions of this Court, we are bound to consider the point presented, as abstract from the merits, and consequently immaterial.

For the refusal of the Circuit Court., to sustain the demurrer to the fourth count of the declaration, and for arresting, the examination into the general ■character of the defendant in error, the judgment is reversed, and the cause remanded. 
      
      A Stark, on Slander 58
     
      
       1 Bibb, 593
     
      
       8 John. 58
     
      
       2 Bla R 961
     
      
       Cro.E.348
     
      
       2 Binn. 34
     
      
       3 Binn. 515
     
      
       8 Mass. 122
     
      
       2 Stark. Ev 879
     
      
       Anth. N.P 185;2Cow.811; Root354; ib.459 2 ib.149; 2 Hayle,222 2N.&M'C 511; 3Mass 546; 6ib. 275; 2 Mar. 372; 2 Mar.372; 3 Con. 463 1 Binn. 92; H holt's C 534
     