prostitute, was charging her with such an offence as would give an action for the slander. The same statute which authorizes the infliction of imprisonment on common prostitutes, as disorderly persons, inflicts the same punishment for a great variety of acts, the commission of which renders persons liable to be considered disorderly; and to sustain this action would be going the whole length of saying, that every one charged with any of the acts prohibited by that statute would be entitled to maintain an action for defamation. Among others, to charge a person with pretending to tell fortunes, would, if this action is sustained, be actionable. Upon the fullest consideration we are inclined to adopt this as the safest rule, and one which, as we think, is warranted by the cases. In case 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 will be in themselves actionable; and Baron Comyns considers the test to be whether the crime is indictable or not. 1 Com. tit. Action on the Case for Defamation, F. 20. There is not, perhaps, so much uncertainty in the law upon any subject, as when words shall be in themselves actionable. From the contradiction of cases, and the uncertainty prevailing on this head, the court think they may, without overleaping the bounds of their duty, lay down a rule which will conduce to certainty, and they therefore adopt the rule I have mentioned as the criterion. In our opinion, therefore, the first count in the declaration is defective.

The second count is for saying of the plaintiff, "she was hired to swear the child on me; she has had a child before this when she went to Canada; she would come damned near going to the State prison." These words are laid as spoken at one time; if, then, any of them are actionab'e, it is sufficient. The innuendoes enlarge their meaning, and are not justified. One of them avers that the defendant meant that the plaintiff was hired, falsely and maliciously, to swear the child on the defendant; and another innuendo, in explaining the words, "she would come damned near going to State prison," alleges that the defendant meant that the plaintiff was guilty of such enormous crimes as would, if punished according to the laws, &c., condemn her to infamous punishment in the State prison. Now I do not perceive that the charge at all warrants the inference that the plaintiff

had been guilty of perjury; and the cases of Hopkins v. Beedle, 1 Caines, 347; Stafford v. Green, 1 Johns. Rep. 505; and Ward · v. Clark, 2 Johus. Rep. 11, infra, are authorities against sustaining this case.

The defendant must, therefore, have judgment.

WARD v. CLARK.

(2 Johns. 10. Supreme Court, New York, November, 1806.)

Imputation of Crime. To say of a person, "he has sworn falsely," or " he has taken a false oath against me in Squire Jamison's court," or "he has falsely and maliciously charged and imposed on me the crime of perjury," is not actionable.

THIS cause came before the court on a return to a writ of error, directed to the Court of Common Pleas of the county of Ontario. The defendant in error brought his action of slander, against the plaintiff in error, in the court below. The declaration contained two counts. In the first, the words charged to have been spoken are," he has sworn falsely; he has taken a false oath against me in Squire Jamison's court." The second count was for "falsely and maliciously charging and imposing, on the plaintiff below, the crime of perjury." There was a plea of not guilty; and a general verdict for ten dollars damages.

Mumford, for the plaintiff in error. The words laid in the first count are merely that the plaintiff swore falsely, and do not amount to the crime of perjury. There is no averment that Squire Jamison was a justice of the peace, or that he was competent to administer an oath. These words, therefore, are not actionable. 1 Caines, 347, Hopkins v. Beedle; 3 Levinz, 166, Gurneth v. Derry; 6 Term, 691, Holt v. Scholefield; 3 Wilson, 186, Onslow v. Horne; Bac. Abr. tit. Slander, B. 3. 2. The second count states the charge of perjury generally. It ought to have specified the words spoken, for it is impossible that the defendant can come prepared to defend so general and uncertain a charge. Still, if this count be good, and the first bad, there being a general verdict, the judgment must be reversed. 1 Caines, 347; Douglas, 730; 1 Term, 153; 2 Term, 125.

Sedgwick, contra. No doubt, if none of the words contained in the first count be actionable, the judgment must be reversed; but if any set of them are actionable, it is sufficient to support the verdict. Where some of the words are actionable, and others not so, the court will not arrest the judgment. Willes, 443, Lloyd v. Morris. To say of a person, he is forsworn on record, or he is forsworn before a justice of the peace, is actionable. 1 Comyns's Digest, Action for Defamation, D. 5, 6, 7; 6 Bac. Abr. 207, Slander, B. 3. Now the words in the first count appear equally definite, and import the crime of perjury.

The second count states a general charge of perjury. This is sufficiently precise for the purpose of pleading. Where the words were quia crimen felonic imposuit, they were held sufficient to support an action. 1 Ventris, 264.

TOMPKINS, J., delivered the opinion of the court.

The plaintiff in error relies on the insufficiency of the declaration in the court below, for the reversal of the judgment rendered there.

No colloquium, or averment of special damages, is contained in the declaration. The words in the first count, then, are not actionable, unless they must necessarily be understood as conveying a charge of perjury. This is not to be collected from them, because it does not appear that Jamison had any authority to hold a court known in law, or to act judicially, or to administer an oath; and, therefore, a charge of having taken a false oath before him does not necessarily impute any crime for which a person may be indicted and punished. Even if the court referred to by the words were known and recognized by this court, there is no colloquium of any cause there depending, without which the declaration is insufficient; for the words may have been spoken in common discourse. Hartwel v. Cole, Freem. 55; Yelverton, 27, Core v. Morton.

These words, "thou art forsworn in Collet Court," without showing any action pending there, and without further description of the court, were held not to be actionable. Skinner v. Trobe, Cro. Ja. 190. In Page v. Keble, Cro. Ja. 436, a similar judgment was given, upon a declaration upon these words, "thou art perjured, for thou art forsworn in the Bishop of Gloucester's court." The doctrine recognized in this court, in the cause of Hopkins v. Beedle, 1 Caines, 347, goes the length of determining the ques

tion upon the count now under consideration. It was there adjudged that, to convey the charge of perjury, the words must be certain and unequivocal, and state the court, or a competent officer, who administered the oath; and in a more recent case, Green v. Stafford, a count for words similar to those in the first count in this declaration was held to be defective. The rule in relation to these and similar words is, that where one person calls another a perjured man, it shall be intended that the same was in a court of justice, and to have a necessary reference to it; but for a charge of false swearing no action lies, unless the declaration shows that the speaking of the words had a reference to a judicial court or proceeding. 2 Bulstr. 150, Croford v. Blisse; Yelverton, 27, Core v. Morton.

The second count appears to me to be equally defective. It is not alleged what particular words were spoken; nor does the plaintiff pretend to set forth the substance of the expressions of which he complains. No precedent, ancient or modern, warrants this form of pleading. The plaintiff contents himself with drawing his own inference from the declaration made, and alleged such inference, without apprising the defendant of the words, or substance of the words, spoken. The rule of evidence in actions of slander formerly was, that the plaintiff must prove the precise words; and that rule has been no further relaxed than to admit proof of the substance of the words laid. With respect to declaring, it has been repeatedly resolved that it is not sufficient to set forth the tenor, effect, or import of the words used. Newton v. Stubbs, 3 Mod. 72, and 2 Show. 436; Hale v. Cranfield, Cro. Eliz. 645; ib. 857. No precedent for this count was cited upon the argument, and my researches have furnished me with none. In Morgan's Precedents, 268, is to be found the only form which bears a resemblance to this count. It was for charging and imposing upon the plaintiff the crime of arson, before a magistrate, to wit, of maliciously and feloniously setting fire to a certain house, particularly described therein. In 2 Richardson's Practice, K. B. 108, is the form of a declaration, charging the substance and import of the particular words used. Without questioning the correctness of these precedents, it is evident that the same objections do not lie to them as are presented by this count. The generality and uncertainty of the charge is a decisive objection to it. By this mode of declaring, the defendant

is deprived of an opportunity of pleading matter which he might properly set up (if he was apprised, by the declaration, of the specific words), as that they were spoken with reference to a different subject, or in a different sense, than that in which the plaintiff thinks proper to apply them. Cromwell's Case, 4 Rep. 13. This he cannot do if the mode of declaring adopted by the plaintiff, in the second count, is allowed. Besides, the defendant may thereby be deprived of the advantages which might result to him from a motion in arrest of judgment, or upon a writ of error. Upon the whole, we are of opinion that the second count violateş the rule of correct pleading, and leads to unnecessary surprise and vexation. The judgment below, must, therefore, be reversed for the insufficiency of both counts in the declaration.

Judgment reversed.

CARSLAKE v. MAPLEDORAM.

(2 T. R. 473. King's Bench, England, Easter Term, 1788.)

Contagious Disease.

These words spoken of a woman, "I have kept her common these seven years; she hath given me the bad disorder, and three or four other gentlemen," are not actionable, because they may refer to a time past. And no prohibition will be granted to a spiritual court in which a sentence has been pronounced on a libel for this charge. Charging a person with having had a contagious disorder is not actionable, because it is no reason why the company of a person so charged should be avoided.

THE defendant libelled the plaintiff in the archdeacon's court of Exeter, for speaking the following words of her: "I have kept her common these seven years; she hath given me the bad disorder, and three or four other gentlemen besides;" thereby meaning that the said Mapledoram was a whore. A prohibition was moved for in the last term after sentence, on the ground that the words spoken were actionable.

Gibbs now showed cause against the prohibition. This application is made after sentence; and, therefore, unless it appear on the face of the proceedings that the court below had no jurisdiction over the subject-matter, a prohibition ought not to be granted. Now, these words are not actionable in themselves, even if the charge related to the present time; and a declaration, without