#### Shipp v. M’Craw.

1 {■ From Wilkes. J

A. charged 15. with having stolen a note from him “ in the county of ITa- “ lifax, in Virginia.” These words are actionable.-

It was proved on the trial, that the stealing of a note was a larceny by the laws of Virginia, at the time to which the charge referred. It -would seem, that the Plaintiff can recover without proof of this fact — Por.

Although the crime may have localitj'-, tiie effect of the imputation will follow a man wherever he goes ; and therefore the law gives a remedy for imputations, which if believed, and even proved, cannot subject the accused to any future prosecution. As where a pardon is granted after the commission of the offence, but before the speaking- of the words.

The gravamen in an action of slander, is social degradation, and not the risk of punishment: and the rule to test the question, whether the words be actionable or not, ro-wit, Does the charge impute an infamous crime ? is resorted to, to ascertain the fact, whether it be a social degradation, and not whether the risk of punishment was incurred. And this rule is the test of that.- for those who are punished for infamous crimes are degraded from their rank as citizens, they lose their privileges as freemen, their liberam legem and are no longer boni el legales homines.

This was an action of slander, ami the slanderous words charged in the declaration were, “ That Ship]) had stolen >s a note from the Defendant, in the county of Halifax, in *464« Virginia? and presented the note to J. Unthank, and “ tried to draw the money. That if Shipp did not make “ a fair settlement with him, the Defendant, he would put Shipp in the Penitentiary: that he could, and would: “ that he had spoken to a Lawyer and was advised he e( could do so.” It was given in evidence upon the trial, that the stealing of a note, as charged in the declaration, was a larceny by the laws of Virginia, at the time to which the charge referred. There was a verdict for the Plaintiff, and the presiding Judge sent the case to this Court for the opinion of the Judges, whether the Plaintiff was entitled to judgment.

Taylor, Chief-Justice

The case states that it was given in evidence upon the trial, that stealing1 a note is larceny in Virginia j and we know that it is so in this State. Although it be true, that for such a larceny committed in Virginia, a man could not be liable to punishment here, yet to impute that crime to a man, tends not less to Ids degradation and loss of cast in society, than if it exposed him to a prosecution. A person cannot escape from the odium and disgrace fixed upon his character by the charge, because he is no longer in the state where he is punishable : for although the crime may have locality, the effect of the imputation will follow a man wherever he goes. It would seem to be a great defect in the law, if words which are so calculated to injure a man’s character, should cease to be actionable, because the slanderer added something to them which shewed that the Plaintiff was not liable to prosecution in the Stale where the words were spoken. Such a principle would tend most effectually to withdraw from character the protection which the law now justly affords it; and would operate most injuriously in the United States, where the people are frequently seeking new settlements, with a view of improving their fortunes, when a fair character is not unfrequently the most cherished portion of the capital they bear with them. Fortu*465nately tlie law does not sanction such a doctrine : for the hooks furnish many cases of unquestionable authority, in which a remedy has been given on account of imputations, which, if believed, and even proved, could not subject the Plaintiffs to any future prosecutions.

In Caddington v. Wilkins,* a pardon was granted after the commission of the offence, but before the speaking of the words ; and the Plaintiff was held entitled to his action.

In Carpenter v. Tennant,† the Defendant said, “ Robert “ Carpenter was in Winchester jail, and tried for his life, “ and would have been hanged had it not been for Liggett, “ for breaking open the granary of Farmer A. and steal- “ ing his bacon.”

In Gainsford v. Tuke‡ the words were, “ Thou wast “ in Lancaster jail for coining.” The Plaintiff replied, “ If i was there, I answered it well enough.’5 “ Yea,” said the Defendant, “ you were burnt in the hand for it.”

In Boston v. Tatham,§ the action was brought for saying, the Plaintiff was a thief and had stolen the Defendant’s gold. It was contended in arrest of judgment, that the words not being certain as to time, they might be taken to refer to the time of Queen Elizabeth, since which there had been divers general pardons, in which case no loss could happen from the scandal. But the Court said, it is a great scandal to be once a thief; and that although a pardon may discharge the punishment, yet the scandal of the offence remains.

In neither of the preceding cases, could the Plaintiff have been liable to a future prosecution : for in one he had been pardoned, in another acquitted, and in another punished. And in Boston v. Tatham, the Court expressed an opinion, that even allowing that the words fixed the offence to a period, since which the liability to the punishment must have been discharged by a general pardon, yet that the words were actionable, as the scandal of the offence remained. The same doctrine has been affirmed in the *466Supreme Court of New-York, where it was held that an action of slander would lie for charging the Plaintiff with a crime committed in another State, although the Plaintiff would not be amenable to justice in the State where the words were spoken.*

I am very clearly of opinion that the words laid in this declaration, accompanied with the proof made in the case, that they imputed a crime amounting to larceny in Virginia, are actionable; and consequently that the Plaintiff is entitled to judgment. •

*

Hob. 81.

†

Rep. Temp. Hard. 339.

‡

Cro. Jac. 536.

§

Ho. 622.

*

14 Johns. 234.

Henderson, Judge.

I concur in the opinion delivered by the Chief-Justice. The gravamen in an action of slander, is social degradation. The risk of punishment, and the rule to test the question whether the words be or be not actionable, to wit: does the charge impute an infamous crime, is resorted to, to ascertain the fact, whether it be a social degradation, and not whether the risk of punishment be incurred. And this rule is the test of that; for those who are punished for infamous crimes are degraded from their rank as citizens, they lose their privileges as freemen, their liberam legem, and are no longer boni el legales homines. No other degradation will give an action, for no other degradation is a social loss; arid it matters not where the offence be charged to be committed, or what may be the laws of a foreign country, where the act is charged to have been done. The words were spoken here of a man under the protection of our law. The gravamen is the loss of character here, and the transaction shall be judged of by our law, the lex lod.

The cases (which are numerous in our books) where the words impute a crime, and at the same time state a pardon or acquittal, fully prove that the degradation, and not the danger of punishment, is the basis of actions of slander. This ground is also fortified by the precedents. The complaint there, is always for the loss of character, and *467not the danger of punishment; nor is it ever charged that the Defendant alleged the criminal act to he committed in this or any other particular government; only that the words were spoken at some place within the jurisdiction of the Court, merely to give a venue for their trial, if denied. And it is a maxim, founded on common sense, that you need not prove more than you ought to state; but you must prove every thing which you ought to state: for the pleadings are nothing but the alleged legal facts. As it is not required to be stated that the Defendant imputed the commission of a crime within the government, it is not required to be proven. It is, therefore, quite an immaterial circumstance. I am of opinion that judgment should be given for the Plaintiff.

Hall, Judge, contra.

No special damage is charged to have been the consequence of speaking the words charged in the declaration : they must, therefore, be words actionable in themselves, or the Plaintiff is not entitled to judgment, although the evidence on the trial established facts, which, had they been inserted in the declaration, would have clearly made out his case.

Words, in themselves actionable, are such as would, if true, bring a man into danger of legal punishment. At Common Law, to charge a man with stealing bonds, bills, notes, &c. which concern choses in action, was not actionable, because they were such goods that larceny could not be committed of them. In this State, the Common Law-continued unaltered in that respect until the act of 1811, ch. 11, was passed, which act declares the stealing of bonds, bills, notes, &c. to be a felony. Since the passage of that act, it is as actionable to charge a person with stealing that species of property as any other.

In England, formerly, to charge a person with being guilty of an act of witchcraft, was to charge him with a capital crime: but since it has been declared by statute to he no offence, to -make that charge against an individual is not actionable.

*468Iii the present case, the Plaintiff is charged with having stolen the note in the State of Virginia j but whether or not the stealing of a note in that State was an offence or not, the declaration doth not set forth, if the Legislature of that State have passed no law making it an offence to steal a note, to charge a person with stealing one is not actionable. If there be such a Jaw, it ought to have been stated in the declaration. The Court ex officio cannot take notice of it.* It matters not that that fact was proved on the trial: whether the Plaintiff has a good cause of action or not, must appear from a view of his declaration.

*

1 Chitty’s Pleadings, 221, and, the cases there cited.