ment, or imprisonment only as a means of compelling payment of the fine, is the punishment. But though this decision was undoubtedly correct, the weight of authority in this country is altogether against the accuracy of this definition as a principle, and in favor of that laid down by De Grey in Onslow v. Horne, which is expressly approved of by Lawrence, J., in Holt v. Scholefield, 6 Term, 691, 694, and by Tilghman, C. J., in Shaffer v. Kintzer, 1 Binney, 537, 542, and Andress & Wife v. Koppenheafer, 3 Sergeant & Bawle, 255; and is adopted and repeated in Bloom & Wife v. Bloom, 5 Id. 391, 392, and in Chipman v. Cook, 2 Tyler, 456, 464. [Indeed Mr. Starkie's rule is now rejected even in Vermont; Redwood v. Gray, 31 Vt. 298, where the court declared itself hardly satisfied with it; since tested by its requirements it would be actionable in Vermont to charge one with having committed an assault; assaults in Vermont being punishable directly by a year's imprisonment.] Mr. Starkie's rule is erroneous in two respects; it is not always necessary that the offence should be punishable by a corporeal infliction, and that circumstance will not always be sufficient to render the imputation of an offence slanderous.

The case of Brooker v. Coffin, appears to have reached the true principle applicable to this subject, and thereby to reconcile the conflicting definitions in the earlier English cases. According to the criterion there established, the circumstance of an offence being penal, and of infamy attaching either to the offence or to the punishment, will render an imputation of that offence slanderous.

The offence must be punishable, either through process of indictment, or by summary proceeding; and in addition to that, there must be something infamous, either in the offence, or in the punishment of it. The rule, as laid down by Spencer, J., it will be observed, is in the following language: "In case the charge, if true, will subject the party charged to an indictment for a crime involving moral turpitude, or subject him to an infamous punishment, then the words will be actionable in themselves."

That branch of the rule which relates to the infamy of the punishment, is but little applicable in this day and country; but it is, no doubt, valid and operative as a principle of law. The court seems to have proceeded upon it, in the case of Miles v. Oldfield, 4 Yeates, 423, which decided, that to call one a "vagrant was slanderous, under an Act of Assembly, which provided that persons legally convicted of vagrancy, before any justice of the peace, should be sent to the workhouse, or common gaol of the county, to be kept there at hard labor, for any time not exceeding one month. "To charge a person with an offence, which subjects him to punishment of this kind," said Tilghman, C. J., "is, in the opinion of the court, actionable."

[*87

*The criterion involved in the other part of the rule, which is the only part of much practical application at present, viz., that the imputed offence should be indictable, or otherwise punishable, and should involve moral turpitude, has ever since been adhered to in New York and is expressly approved of, and applied, in Widrig v. Oyer, 13 Johnson, 124; in Martin v. Stillwell, Id. 275; Case v. Buckley, 15 Wendell, 327; Bissell v. Cornell, 24 Id. 354; and Young v. Miller, 3 Hill's N. Y. 21, in which last the rule is examined, and it is declared to be unnecessary that legal infamy should attach to the offence, provided it be indictable either at common law or by statute, and be infamous or disgraceful in a general or moral sense; and this is confirmed in Crawford v. Wilson, 4 Barbour, S. Ct. 505, 511; see also Van Ness v. Hamilton, 19 Johnson, 349, 367. The rule in Brooker v. Coffin, is approved in Alabama, and the test of being indictable, and of involving moral turpitude, has there been applied to sustain an action for slander where the offence was indictable only by statute, and was punishable by fine, and not by infamous punishment, but was morally base and wicked.(1) The same case and rule have been approved and adopted in New Jersey, Delaware, Michigan, Georgia and Pennsylvania ;(2) and in Pennsylvania it has been decided that the imputation of an offence-removing landmarks which was punishable by pecuniary penalty only, but was of an infamous character, was actionable. (3) In South Carolina, also, although the test of infamous punishment was mentioned in Howard v. Stephenson, 2 Mill's Const. R. 408, the definition in Brooker v. Coffin is adopted in Gage v. Shelton, 3 Richardson, 243. The same test [under a qualified application for words] seems to prevail in Massachusetts and in Iowa. In Miller v. Parish, 8 Pickering, 384, the court said "whenever an offence is charged, which, if proved, may subject the party to a punishment, though not ignominious, but which brings disgrace upon the party falsely accused, such an accusation is actionable:" and this was considered by the Supreme Court of Iowa, to be as correct and at the same time as brief a statement of the general rule as had been given.(4) In Dunnell v. Fiske, 11 Metcalf, 551, it is said, that words to be actionable in themselves must charge "some crime or offence punishable by law." [But the punishment in Massachusetts-" however else it may be elsewhere"-need not be infamous. Hence in that State it is slan(1) Coburn v. Harwood, Minor, 93; Perdue v. Burnett, Id. 138; and is again approved in Hillhouse v. Peck, 2 Stewart & Porter, 395; Johnston v. Morrow, 9 Porter, 525. (2) McCuen v. Ludlum, 2 Harrison, 13; Kinney v. Hosea, 3 Harrington, 77; Taylor . Kneeland, 1 Douglass, 68, 72; Giddens v. Mirk, 4 Georgia, 364, 368; Andres and Wife *. Koppenheafer, 3 Sergeant & Rawle, 255, 257; see also Shaffer v. Kintzer, 1 Binney, 537; McClurg v. Ross, 5 Id. 218.

(3) Todd v. Rough, 10 Sergeant & Rawle, 18, 22; and see Diel v. Holter, 6 Ohio State,

(4) Abraham v. Foshee, 3 Iowa, 277; and see Burton v. Burton, Id. 317.

derous to charge a woman with drunkenness; drunkenness, if habitual, being there punishable with confinement in the house of correction; and if not habitual, by fine, and punishment for either offence bringing disgrace. Brown v. Nickerson, 5 Gray, 11. In Missouri, where the rule. in Brooker v. Coffin has been said to want certainty and that of Mr. Starkie to omit the element of indictability, the court give as a rule superior in accuracy to either "that the words impute an indictable of fence for which corporal punishment may be inflicted as the immediate punishment and not as the consequence of a failure to satisfy a pecuniary penalty." Birch v. Benton, 26 Mo. 161.] In Indiana, they do not seem to have decided between Mr. Starkie's rule and that in Brooker v. Coffin. In some cases they have gone upon both; Wilcox v. Edwards, 5 Blackford, 183; in others, the latter criterion seems to be adopted; Hays v. Allen, 3 Id. 408, while in Illinois, the court attempted, perhaps unnecessarily, to establish Mr. Starkie's, from a mistaken impression that the rule of Brooker v. Coffin would not cover a case of enormity before them. Stewart v. Howe, 17 Ill. 73. In New Hampshire, the imputation of "a crime punishable by law;"(1) and in Maryland of "a crime which subjects the plaintiff to punishment,"(2) is stated to be the test; but in Maryland, an offence punishable by fine, as adultery is not within the rule, Wagaman v. Byers, 17 Maryland 187. In the later English cases, similar language is used; "the words, to be actionable, must impute a criminal offence," says Alderson, B., in Heming v. Power, 10 Meeson & Welsby, 564, 570,"that is, the words, if true, must be such that the plaintiff would be guilty of a criminal offence," and in Edsall v. Russell, 5 Scott's New, 801; S. C. 2 Dowling's N. S., 641, it is said to be well known that words are not actionable unless they impute some crime or indictable offence. These definitions are *88] quite the same as that of De Grey in Onslow v. Horne; and understanding the word crime, as denoting something inherently immoral, which is no doubt the sense in which it is intended, they agree with Brooker v. Coffin.

To illustrate the general principle stated and adopted in Brooker v. Coffin, it may be expedient to refer to some cases, which will show that the imputation of an indictable or punishable offence is not actionable unless the offence involve moral turpitude; that the imputation of an offence of moral turpitude is not actionable unless the offence be indictable; and that the imputation of any offence of moral turpitude which is indictable by statute, though only a misdemeanor, is actionable.

It is agreed that a charge of assault and battery, or forcible entry and detainer, is not actionable, though indictable and punishable by fine and imprisonment, because there is no moral turpitude in such (1) Tenney v. Clement, 10 New Hampshire, 52, 57.

(2) Sheely v. Biggs, 2 Harris & Johnson, 363.

acts;(1) not even charging an assault and battery by a man on his wife, so that he made her miscarry.(2) It has been held, also, that a charge of "breaking open and reading a letter" sent by mail is not actionable, though the offence is indictable; because it is not inherently a crime, nor infamous, and the law rendering it indictable, is intended rather to protect the post-office department than to punish a crime.(3) A charge of drunkenness, or profane swearing, is now actionable, it is said, because punishable only by fine; but the true reason appears to be because they are not acts of moral turpitude.(4) On the other hand, an imputation of breach of trust is not slanderous, because the offence, though morally base and disgraceful, is not indictable; (5) and to charge a man with being a “swindler" or "cheat," or to use words which import a cheat in a private transaction, and not in a course of public dealing, is not actionable, because the thing is not an offence known to the law, and is not indictable;(6) nor to say of one that he is a rebel, unless it be said in a treasonable sense, which must appear on the record (1 Kerr, New Brunswick, 246). In Alabama, a charge of marking another person's hogs was held not to be actionable, because though civilly punishable, it was not indictable.(7) Upon the same distinction, in New York, where the crime against nature is indictable by statute, it has been decided that such a charge is slanderous and actionable ;(8) but in Alabama, it has been decided not to be slanderous, because though of the highest moral turpitude, it is not indictable by common law, nor is made so by the laws of that State. (9)

And the rule seems to be general, that any act, though not felonious, yet if *indictable by common law or by statute, and inferring [*89 moral or social degradation, is actionable. Accordingly a charge of keeping a bawdy house is actionable, because the offence is a common nuisance, and the person guilty of it is indictable, and it obviously involves moral turpitude;(10) a charge of soliciting a person to commit

(1) Dicta per Tilghman, C. J., and Gibson and Duncan, Js., in Andres and Wife v. Koppenheafer, 3 Sergt. & Rawle, 255, 256, 258, 261; and per Hornblower, C. J., and Dayton, J., in McCuen v. Ludlum, 2 Harrison, 13, 17.

(2) Dudley v. Horn, 21 Alabama, 379.

(3) Hillhouse v. Peck, 2 Stewart and Porter, 395.

(4) Warren and Wife v. Norman and Wife, Walker, 387; Elliott v. Ailsberry, 2 Bibb, 473; Buck v. Hersey, 31 Maine, 558.

(5) McClurg v. Ross, 5 Binney, 218; Shecut v. McDowel, 1 Const. Rep. 1st ser. 35. (6) Savile v. Jardine, 2 H. Blackstone, 531; Wilby v. Elston, 8 Man., Gr. & Scott [65 E. C. L.], 142; Stevenson v. Hayden, 2 Massachusetts, 406; Winter v. Sumvalt, 3 Harris Johnson, 38; Chase v. Whitlock, 3 Hill's N. Y. 139; Weierbach v. Trone, 2 Watts & Sergeant, 408.

(7) Johnston v. Morrow, 9 Porter, 525.

(8) Goodrich v. Woolcott, 3 Cowen, 231, 239; S. C. on error, 5 Id. 714.

(9) Coburn v. Harwood, Minor, 93.

(10) Martin v. Stillwell, 13 Johnson, 275; Brayne v. Cooper, 5 Meeson & Welsby, 249.

102

SLANDER.

Andress & Wife v. Koppenheder, 3 Sergeant & Rawle, 255 (but see the remarks on this case in Proper v. Luce, 3 Penrose & Watts, 65, 66); a charge of embracery, which is indictable both by statute and common law; (2) a charge of removing landmarks, in New York and Pennsylvania, being, by statute, punishable, in the former State by fine and imprisonment, and the later by fine alone, but clearly involving the crimen foly(3) and in Alabama, a charge of altering the marks on hogs, being by statute indictable and punishable, though by fine only ;(4) in Indiana, a charge of malicious trespass, being by statute indictable and punishable, by fine and imprisonment, and being an offence infamous in its character;(5) and in South Carolina, a charge of killing the defendant's horse in the night-time, being indictable by statute;(6) have all been decided to be slanderous. In New York, where a statute made it a misdemeanor, punishable by imprisonment in the county jail, to make wilfully a false declaration of a right to vote at a district meeting, upon being challenged, it has been decided that words charging a person with having wilfully made such false declaration, are "actionable in themselves; as they impute a misdemeanor involving moral turpitude, for which the person against whom the charge is made can be proceeded against by indictment;"(7) [In Pennsylvania it has been held that charging an administrator with fraudulently secreting his testator's assets (of which by law he is bound to make a true return on oath), is actionable; and the rule would seem to be that damages are presumed where the slander involves a charge of both legal and moral turpitude; though it does not involve a danger of punishment. "And the legal turpitude," the court said, "need not be very great. Here the moral turpitude is very gross, consisting of a positive and fraudulent breach of an official oath. The legal turpitude is marked by the fact of a violation of an official oath, which is a good cause for a disgraceful dismissal from office and possibly for an indictment for misdemeanor."(8) But the court had a good deal of difficulty in this case, and the Chief Justice dissented. Indeed it is difficult to understand what is meant by legal turpitude, in contrast to moral, except such as the law certainly takes notice of.]

murder, which is a high a charge of making a libel;

In England, it is well settled that, unless special damage is shown, to

(1) Demarest v. Haring, 6 Cowen, 76, 87.

(2) Gibbs v. Dewey, 5 Cowen, 503.

(3) Young v. Miller, 3 Hill's N. Y. 21; Todd v. Rough, 10 Sergeant & Rawle, 18, 22. (4) Perdue v. Burnett, Minor, 138.

(5) Wilcox v. Edwards, 5 Blackford, 183.

(6) Gage v. Shelton, 3 Richardson, 242.

(7) Crawford v. Wilson, 4 Barbour's Supreme Court, 505, 510. See other similar instances in Widrig v. Oyer, 13 Johnson, 124; Bissell v. Cornell, 24 Wendell, 354.

(8) Beck v. Stitzel, 21 Penna. State, 522.