7 Vt. 439 (Vt. 1835), Billings v. Wing

Citation:7 Vt. 439
Opinion Judge:COLLAMER, J.
Attorney:Upham for defendant. Merrill and Spalding for plaintiff.
Court:Supreme Court of Vermont

Page 439

7 Vt. 439 (Vt. 1835)




Supreme Court of Vermont.

March, 1835

          This was an action of slander. The declaration was in three counts. The first count was on these words: " It is a pity Montpelier should be represented by a man who snaked his mother out of doors by the hair of her head. It is a fact, and was seen by two men."

         The second count was on the same words, with this addition: " It was the day before she died." Third count, the same.

         General demurrer.

         In the county court judgment was rendered that the declaration was insufficient; from which the plaintiff appealed.

         Upham for defendant. --This is an action of slander, and comes before this court on general demurrer to the declaration.

         The declaration contains three counts, all charging in substance, that the defendant said and published of the plaintiff, that he had committed an assault and battery upon his mother. No special damage is alleged as resulting from the publication of the words. And the question is, are the words charged of themselves actionable?

         We take the rule to be, that where 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 are in themselves actionable.

          Ogden vs. Turner, 6 Mod. Cas. 104. S. C. 2 Salk. 696. Starkie on Slander, 16-19. Onslow vs. House, 3 Wils. 177. Brooker vs. Coffin, 5 John. Rep. 188. Widric vs. Oyer et al. 13 John. Rep. 134. Van Ness vs. Hamilton, 19 John. Rep. 367. Horcout vs. Harrison, 1 Hale's N. Y. Rep. 474. Shalffer vs. Rintzer, 1 Binney 542. Ross vs. McClung, 5 Binney 218. Andrews et ux vs. Koppenheaffer, 3 Serg. and Rawle, 255. Chapman vs. Gillett, 2 Conn. Rep. 61, Gould, J. Elliot vs. Ailsbury, 2 Bibb's Rep. 473. Hammond's N. P. 298-9-300. 1 Comyn's Dig. 371-2. Demarest vs. Haring, 6 Cowen's Rep. 76. Holt vs. Scholefield, 6 T. R. 691-4.

          In Ogden vs. Turner, the court said, " that words to be actionable in themselves must either endanger the party's life, or subject him to an infamous punishment, and that it is not sufficient that the party may be fined and imprisoned; for that, if any one be

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found guilty of any common trespass, he shall be fined and imprisoned; and yet, no one will assert, that, to say one has committed a trespass, will bear an action." And in the same case it was held, that where the penalty for an offence by a statute was of a pecuniary nature, an imputation of such an offence would not be actionable, even though in default of payment the statute should direct the offender to be set in the pillory, since the sitting in the pillory was only for the want of money, and not the direct penalty given by the statute.

         In Andrews vs. Koppenheaffer, (3 Serg. and Rawle, 255,) the supreme court of Pennsylvania recognized the rule as laid down in Brooker vs. Coffin, " that the charge, if true, must subject the party to an indictment for a crime involving moral turpitude, or that would draw after it an infamous punishment." The judges concurred in opinion, that it must be either a felony or misdemeanor affecting reputation. And therefore, to charge a man with having committed an assault and battery, a nuisance, or the offence of forcible entry and detainer, though the party would be subject to an indictment and imprisonment, would not be actionable. Indeed, the whole current of authorities, English and American, show that the words charged in this declaration are not of themselves actionable. If they had been published in a newspaper, perhaps they would have been libellous. However, it is not necessary here to decide that question....

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