| N.Y. Sup. Ct. | Aug 15, 1826
Curia, per
(After stating the facts.) With regard to the motion in arrest, the enquiry is, whether the words, as laid, are actionable; for, on this motion, we are to take it for granted that they were proved as laid ; and with the intention imputed.
The doctrine of construing words in mitiori sensu, has been exploded • and a more rational rule now prevails: that words are to be understood according to their plain and natural import; according to the ideas they are calculated to convey to those to whom they are addressed. (Goodrich v. Woolcott, 3 Cotoen, 239-40, and cases there cited.) Mr. Starkie, in his valuable treatise on slander, (p. 44,) states the rule as follows: “Bothjudges and jurors shall understand words in that sense which the author intended to convey to the minds of the hearers, as evinced by the whole circumstances of the case. It is the province of the jury, where doubts arise, to decide, whether the words were used maliciously and with a view to defame ; such being matter, of fact, to be collected from all concomitant circumstances; and for the court to determine, whether such words, taken in the malicious sense imputed to them, can alone, or by the aid of the circumstances stated upoiuthe record, form the legal basis of an action.” Courts and juries will understandYhem in the same way that other people would. (Walton v. Singleton, 7 Serg. & Rawle, 451.)
What idea, then, do we, and all persons of common understanding, receive from the charge, that the plaintiff wished the defendant to make away with a bastard child, of which he was the father, and standing in the relation of brother-in-law to the mother ? What must have been his motive, but to prevent entirely, and in the most effectual manner, a public exposure of his misconduct; that he might avert disgrace and infamy ? I apprehend the plain meaning is, that the plaintiff wanted the defendant to destroy this infant child as soon as born. Does this charge, then, amount to an offence which is punishable, and one involving moral turpitude ? It is not necessary, here, to say whether it be actionable, in general, to impute evil inclinations or wishes. It is sufficient to take the rule as established, that the charge must impute some act constituting a crime or misdemeanor, for which corporal punishment may be inflicted in a temporal court. (Starkie on Slander, 41.)
Is it not a high misdemeanor, for one person to apply, to ¡another; and solicit him to commit murder ? There is, in such an act, something more than wickedness of intention. There is an act tending to carry such evil intention into effect. (Passie v. Mondford, Cro. Eliz. 747. Preston v. Finder, id. 308.)
According to my understanding of this charge, in the declaration, the words are actionable in themselves, whether spoken of a clergyman or any other person.
There are other words, however, laid, which, spoken of individuals in general, would not be actionable; and it is objected that they are not so, when spoken of a clergyman.
The words convey a direct charge of incontinency.
It is familiar to all, that words not actionable in themselves, become so by being spoken of persons engaged in a particular calling or profession. Thus, to call a lawyer a knave, or a physican a quack, is actionable. So, also, to
It has been contended, that this rule does not extend to clergymen; and there are some cases which look that way; but there are also cases and dicta of learned men in favor of the action.
The oldest case to which we have been referred, is Dod v. Robinson, (Aleyn, 63;) in which it was held, that, to say of a clergyman, “ he is a drunkard,” was actionable ; drunkenness being an offence for which a clergyman is lia» ble to be deprived of his preferment. So, he is a rogue and a dog. (Pocock v. Nash, Comb. 253.) So, he is a rogue and a contemplible fellow. (Musgrave v. Bovey, Str. 946.) These cases are cited by Starkie, in his Treatise on Slander, 107. Hammond, in his Treatise on the law of nisiprius, (p. 300,) says, To charge a man with seduction, adultery and such like, or to impute to him criminal inclinations, is not defamatory, and the reason assigned is, because he is not thereby exposed to the vengeance of the law. He further states, that words actionable in relation to one’s profession or trade, are such as impute to him the want of those qualifications which are essential. As to attribute knavery to a lawyer, ignorance to a physician, profligacy to a divine, cowardice to a soldier, or dishonesty to a tradesman. In McMillan v. Birch, (1 Bin. 184,) Tilghman, Ch. J. says, “ The reason why certain expressions are actionable, when applied to persons of certain professions, is this; that from the nature of the case, it is evident that damage must ensue. So, to say of a clergyman, that he is a drunkard ; because these words, if believed, must deprive him of that respect, veneration and confidence, without which he can expect no hearers as a minister of the gospel.” The temporal damage arising from a loss of reputation for moral rectitude, in his profession, is as great to the clergyman as to a lawyer. Then, ivhy is it, that the former should not be equally protected
Being of opinion that the words are actionable, a part in themselves, and a part in respect to the plaintiff’s profession, it is useless to consider the nature and office of an innuendo; or to inquire whether special damages are laid as to more than one count.
The judge correctly dbcided, that the sense in which the words were used, was proper to be determined by the jury.
In my judgment, both the motion in arrest,and for anew trial, must be denied.
Motions denied.