#### ALPHEUS WALL vs. JOSEPH HOSKINS.

To charge a man with having stolen bank notes in South Carolina, is not ae-tionable in this State, unless it be shewn by proof, that, by the laws of South Carolina, such stealing is subject to an infamous punishment.

No such presumption can be made by the court, as by the common law the stealing oí bank notes was not indictable, nor was it indictable in this State until the passage of a statute in 1811.

The cases of Brady v. Wilson, 4 Hawks. 93. Skinner v. White, 1 Dev. & Bat. 491, and Shipp v. McCrrno, 3 Murp. 466, cited and approved.

Appeal from the Superior Court of Law of Randolph County, at the Fall Term, 1844, his Honor Judge Battle presiding.

This was an action for words spoken, charging the plaintiff with taking — inuendo, stealing — some bank notes from the defendant at a place in the State of South Carolina. Plea— not guilty. On the trial, the speaking of the words both in South Carolina and this State, was proved; and the counsel for the plaintiff contended, that they were actionable of themselves in the courts of this State. But the court held, that the action could not be sustained, unless the plaintiff proved, that by the law of South Carolina stealing bank-notes was a crime, which subjected an offender to infamous punishment. Under that instruction the jury found for the defendant, and from the judgment the plaintiff appealed.

Badger and Mendenhall for the plaintiff.

J T. Morehead for the defendant.

The case of Shipp v. McCraw, 3 Murp. 466, cited by the plaintiff is an authority to sustain the charge of the Judge: In that case it was proven, that by the laws of Virginia, bank notes were the subjects of felony. In this case no such proof was offered as to the law of South Carolina, and the court could not judicially notice the law without proof. It is said that the gravamen, in an action of slander, is social degradation. That is true; but here arises the inquiry, what words impute social degradation ? *178In Onslow v. Horne, 3 Wil. 186, the court lays down the rute ; “ The words must contain an express imputation of some crime liable to punishment, some capital offence, or other infamous crjme or misdemeanor.” In Halt v. Scholefield, 6 T. R. 691, the court approve of the decision in Onslow v. Horne, and follow it.

Bank notes are not the subject of larceny at the common law, and were not so in this State until the passage of the act in 1811; Rev. Stat. chap. 34, section 23. Hence, prior to the act of 1811, to charge one with stealing a bank note in this State was not actionable, because, if true, the charge did not impute an offence liable to punishment. To charge one with the commission of a felony, in taking a thing not the subject of felony, is not actionable; Jones v. Idol, 2 Dev. 162. /Skinner v. White, 1 Dev. & Bat. 471.

In a legal point of view, there can be no social degradation without liability to infamous •punishment, which led to the passage of the act of 1808, to protect the character of females. Rev. Stat. chap. 110: And it is not now actionable to charge a man with being the' father Of his daughter or sister’s child; because, if true, the offence would not subject him to infamous punishment, yet, in society, he would be more degraded, than he who commits the highest ielony.

Ruffin, C. J.

The court is of opinion, that the judgment should be affirmed. Every imputation, derogatory to the character of another, is not actionable. A rule as loose as that could not be tolerated. It would be the fruitful source offriv-olous litigation, and supply a notable example of the uncertainty of the law, or, rather, of the results of law-suits. It is indispensable that a rule, having more precision, should be laid down; by which the rights and liabilities of persons may be learned with some reasonable certainty. And it is highly proper that a rule, once adopted, should be observed, that as much; uniformity as possible may be attained in the administration of the law. We think the principle has been expressed by the court with sufficient precision to be easily understood; *179and that as expressed) it is conformable alike to authority and reason* Following Lord Holt in Ogden v. Turner, Salk. 696; the court said in Brady v. Wilson, 4 Hawks. 93, “that although the acts charged upon a person, might be such as flow from a wicked and depraved heart, and involve great guilt ' in foro conscientiae, yet if the words did not impute to him a felony or other crime, the temporal punishment of which is legally infamous, the action of slander could not be supported at common law.” In Skinner v. White, 1 Dev. & Batt. 471, the cases in England and this county, are reviewed, and the rule, “that the words, if true, must subject the party to an infamous punishment,” is declared to be the settled law of this State: the punishment to be such as involves social degradation by occasioning the loss of the libera lex. That rule is fatal to the plaintiff’s case. Unless the stealing of bank-notes be a crime in South Carolina, and an infamous crime, the words impute to the plaintiff no act required by the rule; and upon that point, the law of that State is the subject of proof to us here. It was, indeed, said at the bar, that it was an act of such turpitude, so pernicious to individuals, and to the committing of which, if not punishable, there is such strong temptation, that the court should presume, that, like murder, it is punishable in every civilized nation of this age, and especially in each of the States of the Union, in which so much of that, which circulates for money, is bank paper, as imperatively to call for this kind of protection. But we cannot venture on such a presumption. In Shipp v. McCraw, 3 Murp. 466, the law of Virginia was given in evidence. It is not a case for . presumption ; or, if it be, it is for a contrary presumption. For we know, that by the common law of England, stealing banknotes was not indictable. In this State it was first made an offence in 1811 — the same year, that stealing growing com and some other crops was created a felony. If taking bank-nótes be a larceny in South Carolina, it must be by statute and of that the courts here can take no notice without proof.

Per Curiam, Judgment affirmed.