drunkenness on licensed premises an offence which exposed the person committing it to punishment corporally. The plaintiff under sec. 1 of the Licensing Act, 1902, was liable to be dealt with corporally on the spot, and therefore this was a slander which was actionable per se." It appears, therefore, that the argument which has been raised here was also raised in Michael vs. Spiers & Pond, Ltd., but A. T. LAWRENCE, J., apparently did not find it necessary to decide the point, for he held that there was no imputation of an offence within sec. 1 of the Licensing Act, 1902, but he used these words: "As, therefore, there is no imputation of an indictable offence or of an offence for which a person can be made to suffer corporally by way of punishment, I think special damage is necessary." That is a dictum that the corporal suffering must be by way of punishment. I cannot find in the books a trace of authority for saying that words imputing that the plaintiff has done an act for which he may be arrested, but which is only punishable by a fine, are actionable without proof of special damage, or that a mere liability to arrest is sufficient to make the crime one for which the offender can be said to suffer corporally. Strictly speaking, it is incorrect to say that a person who commits a breach of the peace can be made to suffer corporally. The arrest in that case is not a punishment; it is merely a method of preventing the continuing of the offence.

I am of opinion that it is not desirable to extend the list of actionable wrongs, and for the reasons which I have given I come to the conclusion that the statement of the claims discloses no actionable wrong, and the action must therefore be dismissed with costs.

Webb vs. Beavan, 11 Q. B. Div. 609. Queen's Bench

(1883).

Demurrer to statement of claim. Action for slander. The statement of claim alleged that the defendant maliciously and falsely spoke and published of plaintiff the words following: "I will lock you (meaning the plaintiff) up in Gloucester jail next week. I know enough to put you (meaning the plaintiff) there (meaning thereby that the plaintiff had been and was guilty of having committed some criminal offense or offenses)." Defendant demurred on the ground that the statement of claim did not allege circumstances showing that the defendant had spoken or published of the plaintiff any actionable language, and that no cause of action was disclosed.

POLLOCK, B.: I am of opinion that the demurrer should be overruled. The expression "indictable offense" seems to have crept into the text books, but I think the passages in Comyn's Digest are conclusive to show that words which impute any criminal offense are actionable per se. The distinction seems a natural one, that words imputing that the plaintiff has rendered himself liable to the mere infliction of a fine are not slanderous, but that it is slanderous to say that he has done something for which he may be made to suffer corporally.

Brown vs. Nickerson, 5 Gray, 1. Massachusetts (1855).

Brown said of Mrs. Nickerson, "She drinks rum and gets drunk, and she got drunk and laid drunk a week. She is mad with the neighbors because they will not let her have liquor. She will get drunk whenever she can get liquor." Held, that a charge either of habitual drunkenness, punishable by confinement, or of drunkenness in a single instance, being punishable by a fine, is actionable, as either punishment would bring disgrace upon the person so charged.

METCALF, J.: By the law of this Commonwealth (however it may be elsewhere), it is actionable to charge a person falsely and maliciously with an offence that may subject him to a punishment which will bring disgrace upon him, though the punishment be not in itself infamous. Miller vs. Parish, 8 Pick. 385. In that case it was decided that a charge against a woman, of an offense that was then punishable by a small fine, was actionable; a punishment of that offense necessarily bringing her into disgrace. And that case is decisive of this. For whether the charge, which this demurrer admits, that the defendant falsely and maliciously made against the female plaintiff, be that she was a common drunkard, punishable by confinement in the House of Correction (Rev. Sts., ch. 143, sec. 5), or only that she was once drunk by the voluntary use of intoxicating liquor, and punishable by a fine of five dollars (Rev. Sts. ch. 130, sec. 13), the charge is actionable; for the punishment of a woman for either offense must bring disgrace upon her.

Shafer vs. Ahalt and His Wife, 48 Md. 171 (1878).

Shafer told some one that Mrs. Ahalt had committed adultery with him. Hearing of this imputation upon her made Mrs. Ahalt very ill, and her husband was compelled to expend money for doctors and nurses. At that time in Maryland adultery was a criminal offence, but punishable only by a fine. This action was brought by Mr. and Mrs. Ahalt to recover damages for the slander of the wife.

Held, that the plaintiff could not recover, because,

1st. The misconduct ascribed to Mrs. Ahalt, being punishable only by a fine and not by imprisonment or other corporal punishment, was not one of the offences the false imputation of which is actionable per se: and,

2nd. The illness of Mrs. Ahalt and the expense thereby occasioned were not special damage, such consequences not being reasonably to be anticipated as flowing from the slander uttered by the defendant.

ROBINSON, J.: In suits for slander, pecuniary loss to the plaintiff is the gist of the action. * * * The court at an early time recognized a distinction between words actionable and words not actionable in themselves. In the former, the law presumed pecuniary loss, while in the latter, it was necessary in addition to the words, to prove special damage to the plaintiff. Whatever difficulty there may be in defining the precise line of demarcation between these actions, it is well settled, that where one charges another with the commision of an offense, it must be

such an offense as subjects the party to corporal punishment, in order to render the words actionable per se. *** In this State, adultery is punishable by a pecuniary fine, and to charge one with the commission of the offense is therefore not actionable per se.

This is a suit*** to recover damages

and the question is

whether the sickness of the wife resulting from the slanderous charge is sufficient to prove special damages. In cases of this kind special damage is that which is naturally the consequence of the words spoken. Allsop vs. Allsop, 2 L. T. Rep., N. S. 290. Now it can not be said that sickness is the natural consequence of defamatory or slanderous words. Such might or might not be the result, depending in a great measure upon the sensibilities and temperament of the person.

The rule of law in regard to special damage was adopted with reference to common and usual effects and not such as are occasional and accidental.

Pett-Morgan vs. Kennedy, 62 Minn. 348 (1895).

In view of the moral sentiment of the people of this State on the subject of drunkenness, so pronounced as to lead to the enactment of the Scheffer Law in 1889, we do not hesitate to say that moral turpitude is involved in the charge that a man has been getting other people drunk, and has himself been on a drunken debauch lasting for a week. The words uttered, according to the complaint, were actionable per se.

Davis vs. Carey, 141 Pa. St. 314 (1891).

CLARK, J.: Upon the question what words containing the imputation of a crime are actionable, without proof of special damages, the cases in this court are in some apparent confusion. They are not contradictory. The course of decision is entirely consistent; the confusion arises from what has been said, not what was decided. The cases are in accord that such words are not actionable unless they import an offence indictable and punishable either at common law or by statute. Harvey vs. Boies. 1 P. & W. 12; Lukehart vs. Byerly, 53 Pa. 418; but this is not a criterion; Klumph vs. Dunn, 66 Pa. 141.

In Miles vs. Oldfield, 4 Yeates, 423, the words were, "You are a vagrant." It was objected that these words were not actionable, but this court said: "The Act of February, 1767, defines the nature of vagrancy, and authorizes a justice of the peace to commit vagrants to the common jail, there to be kept 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 is, in the opinion of the court, actionable." This case may, however, be distinguished from others in this, that it was not only averred in the declaration, but it was proved, in the nature of a special injury, that in consequence of the words spoken the plaintiff was apprehended and taken before the justice of the peace as an idle and disorderly person, and thereby suffered damage. In Shaffer vs. Kintzer, 1 Binn. 542, CHIEF JUSTICE TILGHMAN says: "With regard to words which will support an action of slander, I take

the rule to be as laid down by C. J. DEGREY, in the case of Onslow vs. Horne, 3 Wils. 186, in the year 1771, which is an authority in this court. They must contain an express imputation of some crime liable to punishment, some capital offence, or other infamous crime or misdemeanor. But in Brown vs. Lamberton, 2 Binn. 34, the crime charged was adultery, and in Walton vs. Singleton, 7 S. & R. 449, it was fornication merely. No special damage was laid in either case, and it was held that the words were actionable. To the same effect are Reier vs. Bushfield, 1 W. 23; Vanderlip vs. Roc, 23 Pa. 82; Klump vs. Dunn, 66 Pa. 141; Rhoads vs. Anderson, 12 Cent. R. 727, 12 Atl. 823. To call a woman a whore or an adulteress is actionable; the punishment is not infamous, but it is actionable, because it is a charge of impurity, depravity and moral turpitude. *

The

From this reference to a few of the cases, it is clear that when MR. JUSTICE CHURCH, in Gosling vs. Morgan, 32 Pa. 273, said that the undis. turbed authority of the leading cases of Shaffer vs. Kintzer, 1 Binn. 537; McClurg vs. Ross, 5 Binn. 218, and Andres vs. Koppenheafer, 3 S. & R. 255, establishes the principle, that words spoken of a private person are only actionable when they contain a plain imputation, not merely of some indictable offence, but one of an infamous character or subject to an infamous and disgraceful punishment, the word "infamous" could not have been used in its technical but rather in its popular sense. only crimes which work infamy and consequent incompetency as a witness, are treason, felony, and every species of the crimen falsi, such as forgery, perjury, subornation of perjury, attaint of false verdict, and other offences of like description, which involve the charge of falsehood and affect the public administration of justice: Commonwealth vs. Shaver, 3 W. & S. 342; Schuylkill Co. vs. Copley, 67 Pa. 390. The profession would certainly be greatly surprised to learn that slanderous words are, in Pennsylvania, actionable only when they impute a crime of this class. Our books are full of cases to the contrary.

The English rule is spoken words, which impute that the plaintiff has been guilty of a crime punishable with imprisonment, are actionable, without proof of special damage: Ogder on Sland. & L. 54, and cases there cited. But, in the American cases, importance is attached to the inherent nature of the indictable act, and also to the punishment which the law assigns to it, upon the principle that social degradation may result from either.

The plaintiff in this case was charged with burning his own mill, to defraud the insurance companies. The offense involves moral turpitude; it is of a base, and in a popular sense infamous character. It is punishable by separate and solitary confinement at labor in the penitentiary, for a period not exceeding seven years, which is a disgraceful punishment, inflicted on infamous offences. The words alleged to have been spoken were therefore, without doubt, actionable per se, and upon this ground.

Fowler vs. Dowdney, 2 Moody & R. 119. Nisi Prius (1838).

Slander for saying of the plaintiff, "He is a returned convict.”

The declaration averred as special damage the loss of a customer to whom the words were spoken, the plaintiff being a tradesman. The proof of the special damages failed, and thereupon, Erle, counsel for the defendant, contended that the words were not actionable in themselves, inasmuch as they imputed no present liability to punishment; for, conceding that an offense, for which transportation was the punishment, was imputed, the words imply that the party had already suffered that punish

ment.

LORD DEN MAN, C. J.: My opinion is that the words are actionable, because they impute to the plaintiff that he has been guilty of some offence for which parties are liable to be transported. That is, I think, the plain meaning of the words as set out in the declaration; they import, to be sure, that the punishment has been suffered, but still the obloquy remains. Verdict for the plaintiff.

Crittal vs. Horner, Hobart, 219.

Common Pleas (1618).

Crittal brought an action of the case against Horner for saying that he had caught the French pox and had carried them home to his wife, and had judgment; the slander is not in the wicked means of getting them, but in the odiousness of the infection, as a leper: 2 Cro. 144; 1 Roll. 44.*

*"In early times, when a person became afflicted with leprosy, he was deemed to be legally dead and lost the privileges of citizenship. The Church took the same view, and, on the day when the sufferer was consigned for life to the lazar house, performed over him the various solemn ceremonies observed in the burial of the dead: As the leper was subject to the writ de leproso amorendo, the accusation of leprosy, as well as the accusation of crime, might be held actionable, and upon the same ground. Persons suspected of having the plague were likewise removed to pesthouses and confined. To account for the charge of having syphilis is more difficult. Whether, upon the appearance of this disease in the fifteenth century, it was regarded as contagious, and so exposed the sufferer to a writ like the writ de leproso, or whether the disease was so similar in its outward manifestations to the form of leprosy then prevailing in England, can only be conjectured. It was a disease quite prevalent among the clergy, and there is abundant evidence to show that it was considered no more disgraceful than any other severe disorder." Veeder, History of the Law of Defamation, Columbia Law Rev., v. 4, p. 33.