
    William Dodds versus William Henry, Jun.
    tt is incident to the office of town clerk to receive and count the votes given in for a moderator of a town meeting.
    It is no justification of a slander published of a town officer, relative to his official conduct, and while in the exercise of his office, that the slanderer was a legal voter in the town, and so one of the constituents of such officer.
    The declaration was in case for slander, and, after the usual allegations of the plaintiff’s good name, &c., sets forth that, in March, 1808, he was chosen town clerk of the town of Rutland, in this county, and duly sworn into office, and has ever conducted himself, in his said office, with integrity ; that, on the 6th day of March, he was engaged in the legal discharge of that office in a meeting of the inhabitants of said town, and, among other things, did faithfully and impartially receive and assort the votes of said inhabitants for a moderator of said meeting, and did not partially or illegally reject, nor wickedly or corruptly conceal or destroy, any vote given in or offered by any of said inhabitants, but faithfully, and in obedience to the oath of his said office, received, assorted, and declared the same; that the defendant, well knowing the premises, and intending to injure, &c., the plaintiff in his good name and in his said office, &c., did then and there falsely and maliciously, openly and publicly, in the presence and hearing of divers good citizens of this commonwealth, charge the plaintiff, then acting in his said office, and discharging the duties thereof, with fraudulently, privately, and corruptly, and in violation of the duties of his said office, taking and destroying a vote legally tendered and deposited, by a. legally-qualified voter in said town, for a moderator of said meeting; that afterwards, on the same day, in a certain * other discourse, which the defendant had with divers other good citizens, of and concerning the plaintiff in his said office, with the malicious contrivance and intention aforesaid, the defendant did falsely, &c., in presence, &c., charge the plaintiff with fraud and corruption in his said office; — by means whereof the plaintiff has been greatly injured, &c.
    A verdict having been found for the plaintiff by the jury, who assessed his damages at 216 dollars, the defendant .moved that judgment be arrested thereon,—
    1. Because the supposed slander, mentioned in the plaintiff’s declaration, is alleged to have been uttered by the defendant against the plaintiff, in the discharge of his duty as town clerk of Rutland, in receiving, sorting, and counting, votes for the moderator of a town meeting, which, by law, is no part of the official duty of the clerk.
    2. Because the defendant was a constituent of the plaintiff in his said office of town clerk, and was a legal voter in said meeting; and the supposed slander is alleged to have been uttered of the defendant in the discharge of the duties of his said office. •
    
      Lincoln,
    
    in support of the motion, insisted that the words charged are not actionable. It is laid down,  as a general rule on this subject, that, to make words actionable, there must be some certain or probable temporal loss or damage. No imputation of the breach of legal or moral obligation, unless enforced by temporal sanctions, will be sufficient to found an action. The charge, in the case at bar, did not expose the plaintiff to any temporal loss; for it was no part of his duty to count the votes for moderator, which properly belonged, at that time, to the chairman of the selectmen. Such, at least, was the general practice before the late statute of 1811, c. 9, which passed since the speaking the words complained of. Indeed, the express provision, in this last act, that town clerks shall preside in the election of the moderator, shows strongly that such was not their official duty before. By the statute in force at the time of the town meeting referred to in this case, *(1786, c. 75,) the only duties assigned to a town clerk are, to record all votes of town meetings, and to administer the oaths to the other town officers.
    But, if the plaintiff was in the legal exercise of his office, he was amenable to his constituents, and it was as well their duty as their right to watch his official conduct, and to censure it when, in their view, it should be improper. Words which import the charge of a crime may, notwithstanding the falsity of them, be justified, if they have been only published in a course of justice,  as by a barrister or a witness. The same reason applies to words spoken by a legal voter, in animadverting on the conduct of an officer in town meeting. If he would correct it, then was his only time.
    
      Bigelow and Blake for the plaintiff.
    
      
       6 Gwillim’s Bac. Abr. 205 cites 3 Wils. 186. — 2 W. Black Rep. 752. — 6 D & E. 694.
    
    
      
      
        Cro. Eliz. 230, 248.
    
   By the Court.

It has been argued that, in an action of this impression, some special damage must be alleged or proved, or the words must impute a crime. As the first of these was not attempted, it is contended that "the latter cannot apply, for that the words do not respect any conduct to which the plaintiff was bound in virtue of his office as town clerk. We have considered this last Doint, and are satisfied that, as it is the duty of the clerk to record the choice of a moderator, he cannot duly execute this duty unless he first sort and count the votes given in. It was, therefore, necessarily incident to his office; and the motion fails on this ground.

It was objected, then, that the defendant, as a voter in the meeting, had a legal right to scrutinize into, and to animadvert upon, the plaintiff’s official conduct; and the circumstance was likened to legal proceedings in a course of justice. But we perceive ho such analogy. If a citizen, observing the town clerk, or other officer, swerving from the line of his duty, decently suggests his error to him, there could certainly be nothing censurable in such conduct. But it would be mischievous in a high degree, if a citizen could, with impunity, falsely charge an officer *with wilful misconduct, before the assembly of his fellow-citizens. No man of character would be willing to accept an office, if, in consequence, he ceased to be protected by the law from the calumnies of his fellow-citizens who might be disposed to slander him. It is observable, too, in the present case, that the slander was repeated. It had not the apology of sudden impulse, nor could it have been uttered for a lawful or an innocent purpose

Judgment on the verdict.  