author: By the Court :

text:
    Lucky v. Brandon and Others.
    Debtor imprisoned within the jail limits may go into private houses, or labor on private ground within such limits, without being guilty of an escape.
    Monuments not necessary to define the prison limits. It is sufficient to describe them by definite mathematical lines.
    This was an action of debt upon a prison bounds bond, originally prosecuted in the common pleas of Stark county, and brought before the Supreme Court by appeal. It was reserved for decision upon a statement of facts agreed and subscribed by the counsel as follows:
    It is agreed between the parties in this cause, that James Brandon, after giving the bond as mentioned in the declaration of the plaintiff, and before the sheriff liberated him, to wit, between the 27th August and 20th September, 1819, went off of the public grounds and streets in the town of Canton, and frequently wrought by days together on private property; that he was often in Tuscarawas street as far as the center thereof during the period aforesaid. It is further agreed that the affidavit writ hereto attached was made by said Brandon before James Williams, Esq., a justico of the peace, on 25th August, 1819, as certified by said justice; that notice of such affidavit and oath was given to the counsel of Lucky within a short period thereafter, who furnished money on his own account to the amount of ten dollars, -to support said Brandon in prison, which was expended for that purpose at the rate prescribed by law; and that when that was so expended, the counsel refused *to furnish any more funds for that purpose, but did not, on-the part of his client, permit or authorize the discharge of said Brandon, nor did he, in any wise on behalf of his client, refuse to support the said Brandon. And that Lucky, the plaintiff, never had notice of said oath or affidavit until after the discharge and enlargement of the said Brandon. And that Lucky, the plaintiff, lived in Wayne county, twenty-two miles from Canton, and his counsel lived at Steubenville, Jefferson county, fifty-eight miles from Canton.
    The affidavit referred to was made by Brandon, and alleged that he had not the means of supporting himself in prison.
    The certificate of prison rules was as follows:
    The court affix the following as the jail bounds of Stark county:
    South of the jail to Tuscarawas street inclusive.
    West of the jail to Poplar street inclusive.
    North of the jail as far as the in-lots of the town of Canton extend.
    East of the jail as far as Walnut street in Canton inclusive.
    Goodenow, for plaintiff:
    On the facts agreed, the plaintiff will contend that he is entitled to judgment for the amount of the penalty of the bond.
    1. Because the plaintiff was entitled to personal notice of the prisoner’s having taken the oath that he was unable to support himself in prison, before he could be made chargeable with his support, or could be charged with the consequences of a neglect or refusal to support him. This point I will dismiss with one observation only. It seems to me absurd to say, that a plaintiff shall forfeit his right to hold the body of his debtor in restraint — a right guarantied to him by the common law of the land, the common consent of mankind, and the constitution of the state, by a mere implication of law, arising, out of a statutory provision, made in derogation of that law which jurists call the substratum of all our laws; for it is certainly repugnant to common sense to say, a man refuses or neglects to do that which he could not have known it' was necessary for him to do, otherwise than by supposing he was bound to know what it is agreed he did not know.
    2. That James Brandon committed an escape between the 26th August and the 20th September, 1819, by “going without the limits of the liberties of the jail,” as the same were fixed during said time. It will here become necessary to decide, what were the limits of the liberties of the jail. Under this head I shall inquire.
    *1. 'Whether the court of common pleas can extend the walls of the prison over private property, so as to make it a part of the prison, that the debtor in prison, who has given bonds, can “ work for days together ” thereon, and still be “ within the limits of the liberties of the jail ” — within its walls. If by an j fiction the affirmative could be supposed, it would be a fiction against the truth and against the legal legitimate results flowing from the fact. By & fiction, the walls are extended, when in fact they are not; but the intention of the law is thereby effected, while that fiction travels not inconsistent with the law; when it does run repugnant to the law, as it does the moment it encroaches upon private property, it creates uncertainty, confusion, and injustice.
    The rules of the King's Bench prison in England never include private property, unless it be that over which the marshal has a control and possession, as will be seen by examining the rules. 6 Term Rep. 305, 778. Yet there would be more propriety in embracing private property in those rules than in our limits, for the prisoner there is at the risk of the marshal, and every moment at bis mercy and control, and can not, as he can here, claim the liberties as a right on giving bond: there the marshal may or may not allow the rules to his prisoner, and when once allowed, he may put a period to the indulgence when he pleases, and imprison the debtor in stronghold. The rules are merely an indemnity to the marshal, excusing him for thus indulging his prisoner. Besides, his prison is changeable : he may locate it where he pleases, with the assent of the court, and it is not always a particular spot or building exclusively belonging to the public.
    Not so here: our jails are county property exclusively, occupied by the state in some instances only; and how it can be supposed that their walls can be, by fiction of law, mingled, or rather jumbled, with private property, houses, outhouses, gardens, private walks, and the utmost retired recesses of our domestic firesides, for the purpose of extending those walls to accommodate a prisoner — ■ and yet the sheriff, or jailer, dare not step a foot upon such private domain without leave — is to me incomprehensible on legal principles.
    What are the provisions of our laws on the subject? Our constitution provides that a man’s body shall not be confined in prison after delivering up his estate, unless on strong presumption of ■fraud. This is a clear recognition of the creditor’s right, as it existed at the formation of that instrument, to coerce payment by imprisonment. Our act of the general assembly, passed *January 12, 1805, provides that every person imprisoned on mesne process or execution shall be permitted and allowed the privilege of prison bounds, which are or may be laid off and assigned by metes and bounds around and adjoining each county jail, by the judges of the court of common pleas, etc. The condition of the prisoner’s bond is for his “ safe continuing in the custody of the jailer within the limits of his prison bounds,” until legally discharged. Can this law be construed as giving the court power to assign private property — to say that the walls of the prison shall extend over my garden, lands, or houses? I think not; and should the court transcend their power, their acts would be, ipso facto, void. Baxter v. Taber, 4 Mass. 361. But let me ask, how the court can establish “ metes or bounds ” upon my land, or run a line across it for that purpose; or how can a lot owned by me exclusively, separated by a dozen lots of other men, be said to adjoin, or to be around, the county jail ? Can they run an ideal line, and send the prisoner upon it, when neither they nor any other officer in the county dare follow ?
    What shall we take as a guide; what data, by which to determine whether, upon this act of the assembly, the court can cover private property with the 11 huge walls of a prison,” or even give it the character of a prison ? Had the legislature intended any such thing, and the court had pursued such intention, it would be a violation of the constitution. Baxter v. Taber. But we have no reason to infer that the legislature had any such intention. It is manifest they had not, from the language they have used; and, besides, the known and settled principles and doctrines of the common law of the land must have been present to the legislative mind, when the act was passed, as they are now to the 'court, and if any such innovation was intended, it would have been ox-pressed, and not left to implication. A reference to the laws, usages, and decisions of our sister states, will enlighten this subject, perhaps, to advantage.
    In New Jersey, “ the inferior courts of common pleas are empowered and required to make and lay out the bounds and rules of the prisons in their several counties, not exceeding three acres of land adjoining such prison.” The condition of the bond is, that the “prisoner keep within said bounds,” and on giving the bond, “he shall have liberty to walk therein.” Laws of New Jersey, Trenton edition, 1821, 426.
    In North Carolina, the county courts have power to make out such a parcel of land as they shall think fit, not exceeding six acres, adjoining to the prison, for the rules thereof;” and every prisoner, *etc., on giving bond, “to keep within the said rules, shall have liberty to walk therein, out of the prison, for the preservation of his health.” Laws of North Carolina, 150.
    In New York, the law provides, that “ It shall be lawful for the court of common pleas to appoint a certain reasonable space of ground adjacent to the jail of the county, to be denominated the liberties thereof, etc.; and such court shall cause the same liberties and their limits to be designated by inclosures and posts, or other visible marks placed on the outer lines of said liberties ;” and the condition of the bond for the liberties, is, “that such prisoner shall remain-a true and faithful prisoner, and shall not at any time nor in any wise escape or go without the limits of the liberties aforesaid, until discharged by due coui’se of law.” 1 N. Y. Laws, 428.
    In Massachusetts, “the court of general sessions of the peace shall fix and determine the jail yards to the several jails appertaining to their several counties;” and the condition of the bond is, that “ from the time of executing such bond, ho will continue a true prisoner in the custody of the jailer and within the limits of the prison, until- he be lawfully discharged, without committing any manner of escape. Laws of Mass. 1784, M. 41.
    It appears from the laws of the different states; — and I have referred to such as came most conveniently to my hand — and the decisions of their courts, and long and uniform usage, that the liberties of the prison, the prison bounds, or the yard of the jail, or by what other name soever the same may be called, is but an extension of the walls of the prison; and the lines, posts, marks, or in

      closures of such yard or liberties, are those walls. Peters and Gedney v. Henry, 6 Johns. 121; Baxter v. Taber, 4 Mass. 361. See also Bonafous v. Walker, 2 Term Rep. 126. And such has been the decision of this court on the statute of Ohio, allowing liberties to debtors in prison.
    Hence I would again inquire: Can private property, upon which it is agreed that James Brandon “wrought for days together,” be considered within the walls of the prison ? I think not, even should it be decided that the limits of the liberties, as assigned by the court of Stark county, extend around any private property. The court, in the case last cited from Massachusetts, say, that they “ can not admit that the sessions can, by any order of theirs, make the private property of others, of which by law they have the exclusive use, a part of the county prison; ” and where is the discrepancy between their prisons and the powers of their sessions, and our prisons *and the powers of our courts of common pleas ? There is none in law or reason, whatever the devious practice of either may have been; and none can be created without a departure from the long and inveterately settled doctrines of the common law, distinguishing between public and private rights, and between the rights of creditors and those of debtors. And I can not find a case in any of the reports of the states, where the question was directly presented for decision, wherein it has not been unhesitatingly and unanimously decided that private property can not become a part of a public prison. “ It is urged,” continues the enlightened court of Massachusetts, in the case above cited, “ that by virtue of this clause [the clause of the law which has been cited, giving power to the sessions] the sessions may extend the limits of the jail yard at its pleasure, including within its limits a whole town, and making every man’s house and land a part of the prison, of which the sheriff has the custody.” “We are satisfied, however, that no opinion could have less foundation.” “ To give a power of this extent to the sessions, could not have been within the intent of the statute; and if the legislature had intended it, it is manifest that the execution of. the power would have been unconstitutional, as it would have been an appropriation of private property to public uses, without compensation to the proprietor.”
    Should a distinction be attempted to be drawn between the “ prison yards ” of Massachusetts and our “prison bounds,” I think the attempt will be abortive, as to the question now before the court-It is not arguing soundly or legitimately, to say, that although th& limits of the liberties, embracing or including within their lines private property, do not give the prisoner a right to go upon such pri vate property at his own will and pleasure, yet permit him to go if the owner will give him license. If the law does not give him the right to go upon private property, he is out of the custody of the jailer if he steps upon it. This potential right, which may be exercised with the permission of a third person, the owner of the property, is inconsistent with the privilege purchased by his bond, upongiv ing which the law says, he “ shall be permitted and allowed the privilege of prison boundsand is inconsistent with the restraint imposed upon him by the laws of the land. This is an irrefutable answer to all such logic.
    But suppose we inquire a little closer into this matter. What privilege does the prisoner acquire by the bond, and what has been the object of. allowing him that privilege? The object, with all ^legislatures who have passed laws on the subject, has not been to take .away from the creditor his privilege of coercing his unwilling debtor by the restraint of his liberty, or to render that restraint ineffectual; but it has been, in the language of the law of North Carolina, “ to preserve his health ” — for air and exercise. And the privilege acquired by the debtor in prison, is, in the language of almost every statute of the different states on the subject, “ to walk ” within the limits of the prison bounds. But I am willing to be as liberal as the most flexible principle of the law will justify, and say, that.he may go anywhere within the liberties, either in the night season or the day-time, for his convenience, comfort, pleasure, benefit, orreereation. But there should be some limits to these limits of the prison walls, known and certain “ by metes and bounds,” that ¡parties may know their rights, if they have any left. And I beg the court to allow me to refer them to the opinion of the court, -delivered by Chief Justice Parsons, in the case of Baxter v. Taber, before cited.
    Arguments from convenience and common usage under a law— for even twenty years of its open violation, to the infringement of •the long established constitutional rights of parties, it seems, ought ■to be listened to with caution. And I may well ask, can the most ■solemn decision of this court, in support of an illegal usage, render it legal? It is fashionable, I know, at this day, to talk of the liberty of the citizen, and the barbarity of imprisoning a man for debt: but such language ought not to be addressed to judicial tribunals, but to the ear of the legislature; and let it be remembered( that “ inconvenience to individuals can not alter the law, nor bend it to particular cases;” that there is no necessity, even for the legislature to allow the indulgence to prisoners for debt, which are contended for. That imprisonment for debt might be abolished, has been my prayer during my life; but while the legal right remains to the creditor, it must have its legal measure. If the prisoner, who is confined for debt, does not avail himself of the benefit of theinsolvent law, and give up his property; nor take the oath that he is unable to support himself in prison, the presumption is he has the means of support and of paying his debts, but means to defraud his creditors. If he does give up his property, he is beyond the reach of imprisonment; and if he takes the oath, the creditor is bound to support him in prison, and pays the jailer for his food at his table, and for lodgings in his house; and if bond be given for the liberties, the prisoner is entitled to free air and exercise within the limits. *But to say that he shall enjoy the same liberty and privilege as any other man in the town wherein the jail is located, or within the imaginary intended walls of the prison, is at once making a gentleman of him, entirely above his neighbors — enjoying all that others can, “faring sumptuously every day,” and bidding defiance to his creditors. This is taking from the creditor his rights, and is administering partial and unequal justice: the man in town has a privilege that one in the country has not: the law operates as a restraint upon one and not upon the other. This, as the court say in the case of Baxter v. Taber, is stripping the law of that impartiality which is one of its vital principles.
    2. But one other consideration is submitted to the court upon which no argument can be really necessary. There is not, in fact, by the pretended assignment of prison bounds by the court of Stark, any space whatever “ laid off and assigned by metes and bounds around and adjoining said jail.” The wood “ inclusive,” wherever it is used in the copy of the journal of the court of common pleas of Stark county, herewith presented to the court, can claim and receive no other than its appropriate sense, its common acceptation. To extend a point or a line to another point or line, inclusive, is a new expression, or use of terms. But, say it means to include the thing extended to; how much is there included in the first lina drawn by the court of Stark — “ south oí the jail to Tuscarawas street inclusive?” Does it include the intermediate space between the jail and Tuscarawas street — or does it include the width of that street, which would add so much to the extent of that line — or does it include the width of that street, and also its extent east to the intersection of Walnut street, and west to the intersection of Poplar street? This is giving the word “ inclusive” three meanings wherever it is used. My impression is that the court intended to assign as prison bounds that space of ground which is included in a line drawn on the north side of Tuscarawas street, and continued by making a right angle at the junction of Tuscarawas and Walnut streets, and running north on the west side of said Walnut street to the north line of the in-lots of said town, thence on said north line west to the east side of Poplar street, and thence on the east side of Poplar street until this line intersects the aforesaid line drawn on the north side of Tuseai’awas street. No other supposition would allow to them an intention that was rational. If this was their intention and the'court are of opinion they can give that intention effect, by saying that such a line as above described was the *line constituting the limits of the liberties of the jail, “laid off and assigned by metes and bounds,” the plaintiff is entitled to judgment; for the facts agreed show that James Brandon committed an eseape by going into “the middle of Tuscarawas street.”
    Again, how can it possibly be said, that the “ bounds ” assigned by the court run on the south side of Tuscarawas, the east side of Walnut, the west side of Poplar streets, and on the north boundary of the in-lots: such lines can not be made, by any language used by the court, if they had employed the word inclusive twenty times oftener, to meet, so as to include any certain space.

    But the law requires the court to lay off and assign the prison bounds by metes and bounds: have they done this? It would be preposterous to say they had. What do these words, “ metes and bounds,” signify in law, and in what sense are they to be interpreted? They are employed here as describing a certain space of ground to be laid off and assigned by the court; they must be construed to mean visible monuments or marks, designating the distance and outer limits of the prison bounds. Whether any such visible monuments or marks have been placed or erected, I need not ask; nor need I, I imagine, remark, though I can not well refrain from it, that the laying off and assigning merely, is not a completion of the duty of the court, but they must do it by “ metes and bounds."

    Again, the “ prison bounds ” are to be laid off and assigned by metes and bounds around and adjoining the jail. Mo land or space of ground that does not adjoin the jail can be assigned, I suppose, because there is no authority to do so; what, then, is not attached to, or does not belong to, or pertain to the jail, does not adjoin it. If A. and B. each own a lot in Canton, and D. owns one that lies between them, they do not adjoin. D. and B. adjoin; so do D. and A.; but A. and B. no more adjoin than the county of Hamilton adjoins the county of Ashtabula; and it will make no difference whether we apply to Lord Kaimes or Lord Coke, or Jacobs or Walker, for the meaning of the word adjoin.

    These different views, which I have endeavored to present with as little prolixity as possible, will show the danger and uncertainty which must result by a departure from the settled principles and doctrines of the interpretation of statutes; and that to bring private property within the walls of the prison, as a component part of the jail, every species of violence must be committed upon the language of the law, the decisions of courts, and the common sense of mankind.
    *1 will conclude by observing, that if there be no bounds laid off and assigned, it is not the fault of the plaintiff. He is called upon not only to concede all on his side, but must support the defendant into the bargain. It is the sheriff’s and debtor’s business to look to the limits, to know if any are assigned, and to keep within undisputed bounds. Kip v. Brigham, 7 Johns. .168; Bissell v. Kip, 5 Johns. 89. For the inquiry is here, whether the defendant committed a breach of the condition of the bond, which condition is like that of all the bonds required by the statutes of the different states, that the debtor should remain a “ true prisoner in the custody of the jailer, and not go out of the limits.”
    Harris was counsel for defendant,
    but presented no argument.
   By the Court :

The first point made is, that the plaintiff ought to have personal notice that a debtor in prison has made oath that he is unable to support himself, before the prisoner can be discharged. Where the residence of the plaintiff, or his attorney, is known, this notice ought to be given, and it ought to be given in a reasonable manner, so as to produce effect. Whether it were most reasonable to give it to the party, or to the attorney, must depend upon the circumstances of each particular case.

A creditor can not be said to neglect or refuse to support the prisoner, when he has no knowledge that such support is required of him. This notice, therefore, can not be dispensed with, unless it is impossible to give it, as where the residence both of plaintiff and attorney, or other agent, can not be ascertained, which can seldom 'happen. In this case, the notice was given to the attorney. The attorney acted upon it, and furnished support for a time. This was an acceptance of notice, and it is too late for the plaintiff to object to the want of it.

The second point made is, that the prison bounds can not be extended over private property, so as to authorize the prisoner to enter private houses, or labor on private grounds, within the condition of his bond. The court can not adopt the reasoning by which it is attempted to sustain this position, and the rejection does not include the proposition that the prisoner acquires a right to go where he pleases upon private property, without the consent of the owner. The prisoner acquires, within the limits of the prison bounds, no other right than that enjoyed by every other citizen, to associate where admitted, and to labor where employed. The ^public assumes no other control over the property or persons within the bounds than over the property and persons of other citizens. Within the bounds prescribed, the rights of the prisoner are the same that he would enjoy were he not imprisoned. This is what the law intended to confer, and the practice under it has been uniform in adopting this interpretation.

It was not the object of the law to permit air and exercise only. It intended to afford an opportunity to labor, to employ himself if he could, for the support of himself and family. Any other construction would make him a mere idle saunterer in the streets, exposed to the temptation of vicious indulgence, and setting an evil example to others.

The statute directs that bounds may be laid off and assigned around and adjoining the prison, so that these bounds shall not extend more than four hundred yards in any direction from the jail. A subsequent law extends the prison bounds to the corporation limits of the town in which the jail.is situate, or if the town be not incorporated, then to the limits of the recorded town plat. According to the plaintiff’s argument, the prisoner may range within these limits anywhere upon the public ground, and the public streets-and alleys, but he can go nowhere else. He must retire to the jail to sleep, to eat, and to perform all the offices of nature, or these must be attended to in the public streets. Such a construction was never thought of by our legislators ; it therefore could not have been intended by them. The court have not looked into the authorities cited by the plaintiff on this point; they could not adopt them if they sustain his position. The question stands too clear upon principle and sound practical good sense, to be decided against these, in deference to any authority.

The third point is, that the rules assigned by the court of common pleas are not defined by metes and bounds, and therefore do not so exist as to warrant the prisoner going at large. If this point is well taken, it can not entitle the plaintiff to recover upon the prison bounds bond. If no bounds were assigned, the bond was taken without authority, and against law. The sheriff might be liable for an escape, but the bond could not be sustained. The point, however, is not well taken. The assignment of limits or bounds is clear and certain. These bounds are mathematical lines, not visible actual monuments. It never was intended that the bounds around the jail, extending in each direction four hundred yards, should be wholly inclosed by visible actual monuments. Upon the ^plaintiff’s argument, these must be continuous around the whole area of the limits. If monuments be set up at certain points, and the line between described only mathematically, it would not be sufficient. The space between the monuments would not be designated with that certainty which is contended for. This consequence of the argument would seem sufficient to show that it is not tenable.

It is lastly contended for the plaintiff, that Tuscarawas street is not included within the bounds as assigned by the court. These bounds are extended “ south of the jail to Tuscarawas street indu~ sive.” This term includes Tuscarawas street-and establishes the southern line of that street as the southern limits of the bounds. The bounds further extend west of the jail to Poplar street, inclusive. East of the jail, as far as Walnut street in Canton, inclusive. Tuscarawas street, from its intersection with Poplar street, west, and Walnut street, east, is thus clearly included within the bounds. The prisoner was not out of the bounds when upon Tuscarawas street, anywhere between its intersection with Poplar and Walnut streets. The case agreed does not show that he was on that street, east or west of this intersection. It does not therefore show him out of the bounds.

Judgment must be for the defendant.


source: Caselaw Access Project

license: Public Domain

text:
    Goodenow v. Tappan.
    Plea in abatement misnomer in plaintiff’s baptismal name; replication that the plaintiff is known by one name as well as the other, good.
    Words spoken in discharge of official duty not actionable.
    If spoken under pretense of official duty, wantonly and with malice, words are actionable; the intention with which spoken to be left to the jury.
    Words actionable spoken of an attorney.
    This cause came before the court upon a motion in arrest of judgment, reserved in Jefferson county, and certified to this court for determination. As two important points were ruled in the previous proceedings, and as the cause is of importance to the two respectable gentlemen who are the parties, and who are now both members of the profession, a brief history of the case is here presented.
    The declaration was as follows:

      1st Gount. “ For that whereas the said G-oodenow is a good citizen, and has always maintained a good character from his youth *to the present time, and for divers years has been an attorney and counselor at law of the several courts of judicature of the State of Ohio; yet the said Tappan, well knowing the premises, but contriving and maliciously intending to injure the said G-oodenow in his good name and professional character, and to bring him into public scandal and disgrace, and to destroy his practice as a lawyer, and to harass, oppress, and impoverish him, heretofore, to wit, on the 31st day of December, in the year of our Lord one thousand eight hundred and sixteen, at the county of Jefferson aforesaid, in a certain discourse which he, the said Tappan, then and there had, of and concerning the said G-oodenow, and of and concerning his said profession and standing as an attorney and counselor at law, as aforesaid, in the presence and hearing of divers good and worthy citizens of this state, then and there, in the presence and hearing of those citizens, falsely and maliciously spoke and published of and concerning the said Goodenow, and of and concerning his said profession and standing as an attorney and counselor as aforesaid, these false, scandalous, malicious, and defamatory words following, that is to say: ‘He (meaning the said Goodenow) fled his country to escape from justice, and now disguises himself (again meaning the said Goodenow) under a borrowed name; he (again meaning the said Goodenow) is unfit to be trusted.’ ”

      2d Count. Same inducement as in the first. Words charged: “He is of infamous character — he broke jail in New England and fled from justice.”

      3d Count. Same inducement as in the first. Words charged: “He is a d-d rascal, and an immoral and base man, and unless ignorance of the law makes a lawyer he is no lawyer — he is an ambidexter and a disgrace to his profession.”
    4fA Count. “And whereas, also, the said Goodenow is a good citizen and of upright character, and as such has always conducted himself from his childhood to the present time; and now is, and for divers years has been, an attorney and counselor at law of the courts of judicature in this state; and whereas, also,'before the committing of the several grievances by the said Tappan, as hereinafter mentioned, a certain appointment was pending, in the power and disposal of the court of common pleas of the county of Jefferson, to the office of prosecuting attorney of the State of Ohio for said county; and whereas the said Goodenow was proposed and considered of as a candidate for said appointment, nevertheless, the said Tappan, well knowing the premises, but contriving and wickedly and ^maliciously intending as aforesaid, heretofore, to wit, on the first day of January, in the year of our Lord one thousand eight hundred and seventeen, at the county of Jefferson aforesaid, in a certain other discourse which he, the said Tappan, then and there had and held with divers other good and worthy citizens of this state, of and concerning the said Goodenow, and of and concerning his profession and character as an attorney and counselor at law as aforesaid, and of and concerning the appointment of prosecuting attorney as aforesaid, then and there, to wit, on the •day and year last aforesaid, falsely and maliciously spoke and published of and concerning the said Goodenow, and of and concerning his said profession and character as an attorney and counselor at law as aforesaid, and of and concerning the appointment aforesaid, and in the presence and hearing of the said last mentioned citizens, these other false, opprobrious, malicious, and defamatory words following,that is to say: “He” (meaning the said Goodenow) “ is a man of immoral character. He ” (again meaning the said Goodenow) “broke jail in his own country, and fled from justice.”

      5th Count. Same inducement and colloquium as in the fourth. Words charged: “He is destitute of character; he broke jail in New England, and fled to escape the lash of the law, and now wears a borrowed name.”

      6th Count. Same inducement and colloquium as in the fourth count. Words charged: “It won’t do to appoint such a man; he is of bad character; a man that broke jail and fled from justice is unfit for any office.”

      7th Count. Without any inducement. Words charged : “He. is a runaway — he broke out of jail in New England and fled from justice.”
    The defendant, by consent of the plaintiff, obtained leave to plead at the same time, both in abatement and in bar, as many several pleas as he might deem necessary for his defense, without the pleas in bar being considered a waiver of the pleas in abatement.
    He then pleaded in abatement that said “Goodenow is named and called by the name of Milton Goodenow, and by the name of Milton Goodenow from the time of his baptism hitherto hath always been called and known, without that he now is, or at the time of suing out the said writ was, or ever before had been called or known by the name of John Milton Goodenow,” etc., and verified the plea by affidavit as the statute required. He also pleaded the general issue upon which issue was joined.
    *To the plea in abatement the plaintiff replied that “the said John Milton Goodenow long before, and at the time of suing out the said writ, and of filing his said declaration, was and still is called and known as well by the name of John Milton Goodenow, as by the name of Milton Goodenow,” etc. To this replication the defendant demurred.

      The question upon the demurrer was argued in Jefferson county, at the October term of the Supreme Court, 1819, before Judges Pease and McLean — when the demurrer was overruled, and the cause continued to be tried upon the issue.
    A trial was had at November term, 1822, before Judges Pease and Hitchcock, and a struck jury. The testimony to prove the speaking of the words was as follows:

      Alexander Sutherland, Esq. — At the F. and M. Bank, in Steuben-ville, in the winter of 1817, after Mr. Goodenow had been elected .a justice of the peace the second time, there was a conversation between Judge Tappan, Thomas Scott, the cashier of the bank, and witness. Judge T. began boring witness for having supported the plaintiff for the office of justice of the peace, he having, -as witness understood, opposed said Goodenow’s election. Tappan said, “ Where he came from, it required the best men to be elected to office, but here it made no odds.” Witness then observed, “ Some time since a lawyer could not have been elected; ” upon which defendant replied, “As to Goodenow’s law knowledge, God knows, that ought to be no objection to him.” Witness further stated, that plaintiff had always been known in his practice as a lawyer by the name of John M.
    On his cross-examination, he stated that plaintiff had been •elected a justice, and the election set aside on Mr. Wright’s remonstrance, on account of the votes not having been opened agreeably to law, and a new election ordered.

      Samuel M'Elroy, Esq., late an associate judge. — Before the appointment of Mr. Hallock, prosecuting attorney, but whether while the office was vacant, or before it became so, witness could not recollect which, in a conversation with Judge Tappan con•cerning the appointment of a prosecuting attorney — there being several candidates, and among others the plaintiff was spoken of— he said, that Goodenow had left his own country privately, that he was not a law character, and that his Christian name was not .John M., but Milton. This conversation was at defendant’s house, and considered by witness as private and confidential, and had not ■before the present moment been divulged.

      * Thomas Turner’s deposition. — That a short time after Judge Moores’ return from the legislature in the month of February, he, with Judge Moores and James Moores, Jr., were at Judge Tap-pan’s, James Moores, Jr., having an intention of offering for the clerk’s office. Judge Tappan asked Judge Moores who he thought a proper person for state’s attorney; Judge Moores observed, he-knew of no person but Goodenow. Judge Tappan said, “ Go ode-now won’t do — he is an immoral character — he broke jail for debt or otherwise — ran away and changed his name.”

      Col. James Moores, Jr. — Witness’ father, Thomas Turner, and himself were at Judge Tappan’s in February, 1817, when the subject of appointing a prosecuting attorney was introduced. Judge Tappan said, “It won’t do to appoint Goodenow — he is an immoral character — he broke jail — fled his country, and changed his name.”

      James Moores, Sen., Esq., associate judge. — The 3d or 4th of. February, 1817, he was in Steubenville, with his son, and son-in-law Turner; his son, having some intention of applying for the office of clerk of the courts, which was then vacant, asked him to walk down to Judge Tappan’s. He went with his son and son-in-law, and after some little conversation, Judge Tappan turned himself full in the face of the witness, and said, “It won’t do to appoint Goodenow prosecuting attorney.” Witness asked, why ? He replied, “He is an immoral character (or an immoral man) — he broke jail and fled his country (or fled from justice) — changed his name, and now wears a fictitious one.” On the day before, defendant had been conversing with witness about the appointment, of a prosecuting attorney, when defendant spoke in favor of Mr. Hallock — said he was a better draftsman, etc., and stated to witness that Judge Anderson was agreed to Halloek’s appointment; to which witness replied, if that was the case his assent was not necessary, for the defendant and the other judges would overrule him. Defendant replied, he wanted no overruling about it. At that time witness was in favor of Goodenow’s appointment; but when, on the next day, the judge made the charges before stated, he gaveGoodenow up. Witness stated further, that the plaintiff had-always been known, in his practice at the bar, by the name of John M. and none other.
    On his cross-examination, witness said he had, some time in the-fall season of 1816, conversed with the plaintiff about the office of prosecuting attorney, and asked him if he would accept it if it became vacant. He said he would, but not to the prejudice of Mr. Wright, the then incumbent.

      *The plea in abatement, and the affidavit attached to it, and the certificate of plaintiff’s admission by the Supreme Court to practice as an attorney and counselor at law, were then read.
    A number of depositions taken in New England were read, by which it was most clearly established that the plaintiff was baptized by the name of John Milton Goodenow, but had generally transacted business and been known by the name of Milton 'Goodenow only. It also was placed beyond all doubt that he had always sustained a fair character, though he had been unfortunate in trade, and that he left New England publicly, and brought with him to this country most respectable'testimonials of the rectitude of his moral principles, of his integrity, intelligence, and -ability.
    On the part of the defendant, John C. Wright, Esq., and William Lowiy, Esq., were introduced, with sundry documents, to prove that plaintiff had borne the name of Milton Goodenow before and after his coming to Steubenville to reside. The plaintiff’s counsel •conceded, and wished it to be understood, that they did not deny that the plaintiff had generally used the Christian name of Milton only, before and after he came to Steubenville, which was in 'September, 1812, until he was admitted to the bar in August, 1813. Mr. Wright also stated that the plaintiff brought letters of introduction from his brother, and perhaps from others, to him, when he came to Steubenville; that he then used the name of Milton only ; that he read law with him awhile; and that he gave him a certificate of good moral character, by the name of John Milton Goodenow, upon which he was admitted to an examination before the Supreme Court. Witness further stated, that when •plaintiff first came to Steubenville he invited him into his family, where he resided for some time, and his conduct was fair and ‘honorable.
    The case was opened to. the jury by Mr. Root, for the plaintiff; but the counsel for the defendant declined arguing the cause to that tribunal. They moved the court to instruct the jury that the plaintiff was not entitled to recover on the words proven, because:
    1. The words were not in themselves actionable.

    2. That if intended to be made so, by reference to the professional character of the plaintiff, they would not support an action, because they related to a time anterior to the plaintiff’s admission to the bar.

      3. That, if the words were spoken, as he contended they were, in confidence, they were not actionable, without express malice were-pi’oven: and,
    *4. That, if spoken by the defendant in discharge of his-official duty as president judge, he was protected by the law, and no-action would lie.
    This motion was ax’gued by Mr. Wright for the defendant, and Mr. Doddridge for the plaintiff; and when the argument on the-motion was closed, Mr. Silliman proposed to conclude the case by an ax’gument for the plaintiff to the jury: but it was objected to by the defendant, and ruled by the court, that the practice had long been settled, that where the counsel for the plaintiff had made an argument to the jury (the testimony being closed), to which the defendant’s counsel declined to reply, he is not permitted to address-the jury a second time.
    The court instructed the jury upon the law governing the action, and — “that words, although not actionable in themselves, may become so wheix spoken of a man in his professional or official" character, if they impute to him dishonesty, want of skill, or any other matter that renders him unfit for the profession or occupation which he fills. That malice is the gist of the action, and that, malice is implied from the untruth of the charge ; but that this implied malice may be done away by circumstances; that it is necessary for public good that judicial officers-, as well as others in* whom an appointing power is lodged, should be protected in a free- and unrestrained communication on the qualifications of candidates before them; but this should be exercised in good faith, and ought, not to be used as a cloak to cover malicious or wanton attacks upon those who may offer themselves for public employment. If, in the case submitted, the jury should be of opinion that the words-were spoken in the discharge of the defendant’s official duty, as presiding judge of the court before whom the plaintiff was a. candidate for an office which was in the power of that court to bestow, and that the words were spoken in confidence, and without, malice, they would then be stripped of that malice which constitutes the legal character of slanderous words, and the defendant would be entitled to a verdict. But this was a question of fact to be left, to the jury to decide; and if they should not find the situation of the parties, and the circumstances under which the words were spoken — the time, manner, and place of speaking — such as to divest. them of their natural malicious import, the defendant would not stand excused.”
    The jury found the defendant guilty, and assessed the plaintiff’s-damages at six hundred dollars.

    The defendant filed reasons for a new trial, and also in arrest of ^judgment. The reason for a new trial was as follows:
    The verdict is against the law and evidence in this, that the only evidence upon which the verdict could be rested, is evidence of consultations and conversations held by the defendant to and with Judges M’Elroy and Moores, his associate judges of the court of common pleas of Jefferson county, of and concerning the appointment of a prosecuting attorney for said county, for which office the plaintiff was a candidate, and that by the law of the land no action of slander will lay, or can be sustained upon and for words so spoken in the discharge of an official duty.
    In arrest of judgment, it was alleged that the third, fourth, fifth, and sixth counts in the declaration were not actionable.
    The motion for a new trial was argued for the defendant by Hallock and the defendant himself, and by Silliman for the plaintiff.
    For the defendant, it was insisted that the nature of malice in reference to slanderous words was to be determined:

      First. By the nature and character of the words: as where words are actionable in themselves, if false, there malice is absolutely inferred.

      Second. Where words are not actionable in themselves, but are made so by circumstances, as by proving malice expressly.

      Third. Where from the occasion of speaking the words, the law does not permit malice to be inferred.
    In this ease the words belong to the second or third class.
    Malice must be proven aliunde or expressly in all cases where words are spoken in confidence. Bul. N. P. 8.
    No action lies in such cases, unless there should be “extraordinary circumstances of express malice.” 4 Bur. 2425 ; 1 Term Rep. 110. Such as there was in the case of The King v. L. Abington, 1 Esp] 226.
    If this case be of the second class there is no evidence to support it. No evidence was given of express malice.
    No action lies for words written or spoken, however false and scandalous, if such matter were written or spoken in a course of justice, and before those who have power to examine it. Buckley v. Wood, 4 Co. 14; Croke Eliz. 230, 248; Lake v. King, 1 Saund. 132, and note 1; Astley v. Young, 2 Bur. 808; Weatherston v. Hawkins, 1 Term Rep. 110; Barbauld v. Hookham, 5 Esp- N. P. 109; Johnston v. Evans, 3 Esp. 32; Thorn v. Blanchard, 5 Johns. 508.
    Case stronger for the defendant than any in the books.
    *1. He was in the discharge of an official duty, consulting with his associates as to the appointment, of prosecuting attorney.
    2. He spoke the words to none but the associate judges, and to them only when the appointment was the subject of conversation.
    3. He had no reason to suppose that words thus spoken would be repeated or divulged.
    There is nothing in the testimony to warrant the jury in finding that the words were not spoken in good faith, or to justify them in saying that the official occasion was used to cover a malicious or wanton attack upon the plaintiff. The court placed the defendant’s liability upon this ground, and the verdict is against the fact, if the court were right. But it is insisted that, upon the authorities quoted, it is clear that for words spoken in the performance of official duty, no action can be sustained, even if the words are both false and malicious; for the question of malice can not be examined. It can not be inferred, neither can it be proved.
    Mr. Silliman, for the plaintiff,
    maintained:
    That the testimony supported the verdict in finding the fact of malice. He insisted also that the just inference from the whole testimony was, that the words were not spoken in confidence to the associate judges, because spoken to one of the judges in the hearing of others. The testimony of Sutherland also proved malice. He maintained that the law was stated correctly in the instruction of the court, and that the verdict of the jury conformed to it.
    No argument was bad on the motion in arrest, and both motions were held under advisement. At the sitting of the Supreme Court in Franklin county, December term, 1822, the motion for a new trial was overruled, and the motion in arrest certified back to Jefferson, that the defendant might have an opportunity to argue it.
    At September term, 1823, at Jefferson county, the defendant obtained leave to amend his motion in arrest, and then extended his exceptions to all the counts in the declaration. The determination •of this motion was reserved for decision by all the judges.
    Hammond, in support of the motion:
    The declaration in this case contains seven counts, upon which entire damages have been assessed by the jury. If any one of the counts be bad, the judgment must be arrested. 3 Wilson, 185; Douglas, 722; 6 Term Rep. 691; 8 Johns. 119.
    The inducement to the three first counts sets out, that the plaintiff *is an attorney and counselor at law of the several courts of this state; that in a conversation of and concerning the plaintiff and of and concerning his profession and standing as an attorney and counselor, the defendant falsely and maliciously spoke and published of and concerning the plaintiff, and of and concerning his profession and standing as an attorney and counselor, the following words:
    “ He fled his country to escape from justice, and disguises himself under a borrowed name. He is unfit to be trusted.
    “He is of infamous character. He broke jail in New England, and fled from justice.
    “ He is a damned rascal and an immoral and base man; and unless ignorance of law makes a lawyer, he is no lawyer. He is an ambidexter and a disgrace to his profession.”
    The inducement to the fourth, fifth, and sixth counts charges that the office of prosecuting.attorney was about to be filled, and that the plaintiff was a candidate, and alleges the words to have been spoken of and concerning the plaintiff and his profession and' character as an attorney and counselor, and of and concerning the appointment of prosecuting attorney. The words are:
    “ He is a man of immoral character. He broke jail in his own country, and fled from justice.
    “He is destitute of character. He broke jail in New England, and fled to escape the lash of the law, and now wears a borrowed name.
    “ It won’t do to appoint such a man. He is of bad character. A man that broke jail and fled from justice, is unfit for any office.”
    The inducement to the seventh count says nothing of the profession of the plaintiff, and the words are alleged to be spoken of •him without any reference to a special character or profession, They are these : “ He is a runaway. He broke out of the jail in. New England, and fled from justice.”
    The words charged in the third count are; unquestionably actionable. But I maintain that, upon established principles, action can be sustained upon either of the sets of words in the other counts.
    The general rule, as to what words are actionable, is very distinctly laid down by Lord Chief Justice De Grey, in Anslow v. Horne, 3 Wils. 186 :
    “ The first rule is, that the words must contain an express imputation of some crime liable to punishment. Some capital offense, or other infamous crime or misdemeanor, and the charge upon the-person spoken of, must be precise.”
    *“ The second general rule is, that words are actionable when spoken of one in an office of profit, which may probably occasion the loss of his office; or when spoken of persons touching their respective professions, trades, and business, and do or may probably tend to their damage.”'

    Courts universally agree in recognizing the validity and correctness of these rules. Of the first, in McClurg v. Ross, 5 Binney, 219, Chief Justice Tilghman says : “ I will not say that the cases to be-found on this point are in perfect unison. But from a full consideration of them, I think myself warranted in laying it down, that (with certain exceptions as to persons in office, special damage, etc.) words are not actionable unless they contain a plain imputation of some crime liable to punishment. Such was my opinion in the case of Shaeffer v. Kintzer, 1 Binney, 542, and I have found, no reason for altering it.”
    The Court of Appeals of Kentucky, 2 Bibb, 473, after examining the cases in the English books, say : “ The rule, therefore, evidently deducible from the whole of the adjudged cases, is, that words to be actionable must charge an offense subject to corporeal or other infamous punishment.” The same doctrine is held in the-same book, page 319, and in Hardin, 529.
    None of the words charged in the declaration are actionable-within this rule. Indeed, the declaration is not predicated upon the principle that the tendency of the words is to subject the plaintiff to punishment. It proceeds altogether upon the rule, that the words are actionable, because spoken “touching his profession,” and tend “ to destroy Ms practice as a lawyer, and to harass,, oppress, and impoverish him."

    Words to be actionable within the second rule, must be spoken “ touching the profession." Though the tendency of the words may be to injure a man in his professional pursuits, they are not actionable unless spoken in reference to, or, in the words of Chief Justice De Grey, touching that profession.

    In Hutton v. Beech, Cro. Jas. 339, it was alleged that the plaintiff was constable and church-warden, and by reason of those offices, expended divers sums of money for the use of the inhabitants. The defendant said of him : “ Thou hast beguiled and deceived the-town, upon thy accounts, of four pounds, and it is no marvel thou growest rich, when thou deceivest the town.” Adjudged not actionable, because the action was not in point of office.
    Brunkard’s case, Cro. Jas. 427, charged that the plaintiff was *one of the privy chamber of the king; and defendant said : “ Thou art a cozening knave and livest by cozening.” Held not actionable.
    In Willis v. Shephard, Cro. Jas. 619, plaintiff alleged that he-was steward of Lord Arundle’s courts in the county of Dorset; that he was parishioner of Gillingham, and church-warden there, and had received one hundred pounds by virtue of his office, and made a just account; that he was collector of the poor, and received money as such, and made a just account; that he was feoffee of lands for the parish, and received and accounted for money; that, he was steward of the king of the manor of Gillingham, and received and accounted for money. And defendant, speaking of him and of his offices, said: “ Charles Willis is a notorious liar and a cozener,, and bath deceived and cozened the parishioners of Gillingham of five hundred pounds, and he will teach thee to cozen me of my house.” And because they “ were not such words whereof the law takes cognizance nor to his loss of life or goods, or otherwise to touch him in his prof ession,” these words were adjudged not actionable, after an inquiry of damages upon nil dicet.

    In Tod v. Hastings, 2 Saund. 307, the plaintiff alleged that he was a draper, and got his living by buying and selling clothes and other merchandise ; and defendant said of him, “ You are a cheating fellow, and keep a false book, and I will prove it.” It was objected in arrest of judgment, that it was not averred in the declaration that the words were spoken in relation to the plaintiff’s buying; ,and selling, and therefore did not touch him in his trade ; and the whole court were of that opinion and arrested the judgment.
    The note upon this case asserts that the .declaration must aver that the words were spoken of the particular profession, and that at the trial the plaintiff must prove “ that the words were spoken of him in relation to his profession, office, or trade, according to such allegation, otherwise he will fail in his action and he nonsuited.” Sir T. Ray. 75; 6 Mod. 202; 2 Salk. 696, are cited. Many other authorities are referred to in Salkeld. I will only add Ld. Ray. 1417.
    The authority of these cases has been recognized by the Court of Appeals of Kentucky. Mills v. Taylor, 3 Bibb, 469. The words charged to have been spoken in this case are as follows: u You are a damned rogue and a swindler ; you say you were authorized by Price and M’Cutchin, of Philadelphia, to draw bills on them, and if you have any letters from them, you forged them. I •can prove you are a damned rogue and a swindler. I can prove you never had a letter from Price and M’Outchin, to authorize you *to draw bills on them. You are a damned refugee from Canada, and you came from Canada to swindle the people of Kentucky •out of their property.” Of these words the court say: “ They are not charged in the declaration to have been spoken of the plaintiff in relation to his trade; and it is a settled rule, where words are ■not actionable in themselves, but are so only because they are spoken of a person in his profession, office, or trade, they must be alleged in the declaration to have been spoken of him in relation 'to such, his profession, office, or trade, otherwise the declaration will contain no cause of action.”
    All these authorities are full and conclusive to the point, that the last count in the declaration is defective. It contains no suggestion that the words were spoken in relation to the plaintiff in his profession ; that profession is not even named in the colloquium. This lays a sufficient'ground for arresting the judgment. But I maintain further, that the principle fairly dedueibie from these authorities, when applied to the ease before us, demonstrates that no action can be sustained upon any other than the third count.
    It is clear that the words in the first, second, fourth, fifth, and ■sixth counts are not actionable in themselves. And it is also clear, that although charged to be spoken of the plaintiff, and of his profession and standing as an attorney and counselor, he can have na action against the speaker, unless they relate to or touch his profession.
    In Foot v. Brown, 8 Johns. 64, the suit was brought for saying of the plaintiff, an attorney, “ Foot knows nothing about the suit, and he will lead you on until he has undone you.” After verdict for the plaintiff, and upon a motion in arrest, the counsel for the defendant asserted that “ the cases in which it has been held that art action lies for words reflecting disgrace on a man in his trade or profession, may be divided into three classes: 1. Where the words charge the person with a want of fidelity or integrity in his trade or profession generally, as to say of a lawyer, he is a common barrator. 2. Where the words charge a person with dishonesty, corruption, or want of integrity, in a particular case. 3. Where the words impute ignorance or want of skill in general terms.” The court recognized the correctness of these positions and arrested the judgment, and I think the soundness of the opinion can not be successfully controverted.
    All the cases agree that the words spoken must relate to or touch the profession. It is not enough that the profession be the subject *of conversation, nor that the words reflect upon the general character of the party. Their tendency must be to affect directly professional skill or professional integrity, otherwise they are not actionable.
    This action is not given to professional men and to tradesmen for the purpose of extending to them and to their characters a. higher protection than is secured to other citizens; but for the. purpose of affording equal security to all. He who follows a profession or trade for a living, may be assailed by defamation in that-profession or trade. He is, therefore, exposed to an attack to-, which men engaged in no particular pursuit are not vulnerable. When he is thus attacked, this action is given as a means of redress. But he can no more sue it for terms of general obloquy-arid reproach applied to him as a citizen,, than if he did not follow' a profession or trade.
    The words, to be actionable upon this ground, must have an appropriate application to the profession or trade of the party of whom they are spoken. The same set of words spoken of a lawyer, a physician, or a merchant can not give an action to each;, for they can not touch the profession of all, however they may alike affect their general reputation as men. To say of a physi- • ■cian, that he is a bankrupt, a cheat, a swindler, and a fomenter of strife and litigation, would not be actionable, because none of these things touch his skill or conduct as a physician. Yet for the three first a merchant could have an action; and if spoken of a lawyer, all but the first would be actionable.
    Habitual intoxication progressively disqualifies a man for the pursuit of any profession or trade. Yet to say of a lawyer, physician, ■or merchant, that he is a drunkard, is not actionable. Were it a '.fact, it does not directly touch his integrity or skill in his business. But to say of a clergyman that he is a drunkard, is actionable; because if it be true, the congregation or other authority by which he was constituted, would, for that offense, degrade him from his ■office.
    In the case of Dr. Blodget, tried at the Supreme Court in Dayton, June, 1823, before Judges Pease and Burnet, the declaration •charged the words to have been spoken of the plaintiff in his professional character; and the words set out imputed to the plaintiff ■such a habit of intoxication, that, in consequence" of it, his business as a physician was declining. Upon the principles here stated, the court charged the jury that the’words were not actionable, and there was a verdict for the defendant.
    This decision is in strict conformity with the cases I have cited, *and with the cases generally as found in the books. There is, in Comyn’s Digest, title Action upon the Case for Defamation, an extensive collection of words upon which the different descriptions of actions can be sustained. Those which relate to a counselor .are collected under D. 22 and D. 24. With a single exception, they relate directly to the profession. One case is cited from 1 Roll. 55, in which the words “he hath the falling sickness” were held actionable. The reason given is, “for that disables him in his profession.” It is evident that this case can not be law. The imputation for which the action is given, must be of something reprehensible in the individual conduct and demeanor of the party. To attribute to him a disease proceeding from no act of his own, .and attaching to him nothing immoral or discreditable, and operating only partially to affect his capacity, can not be actionable. If actionable of an attorney, the same imputation cast upon every man of business must be actionable, and must extend to various other diseases besides that named. The charge of drunkenness presents a much stronger case.

      I assume, then, the rule to be, that words to be actionable, because spoken of an attorney and counselor at law, must be spoken of his professional character and conduct, and must be of such description as directly to touch that professional character and conduct. If the words themselves be .not of this description and character, no finding of a jury or explanation by innuendo can make them actionable. I will proceed to examine the different sets of words contained in the declaration, by the application of this rule.
    “ He fled his country to escape from justice, and disguises himself under a borrowed name. He is unfit to be trusted.”
    These words touch not the skill or information of the party. If they be actionable, it is because they reflect generally upon his professional conduct; and it is most evident that they can not, and do not, relate to any act that was or could be done by the plaintiff in his profession as an attorney or counselor. The misconduct imputed to the plaintiff is not an abuse or neglect of any professional trust or employment, but the doing of an act inconsistent with his duty as a good citizen, and which is just as reprehensible in any other citizen as in an attorney. The act charged to have been done, is not one which his profession put it in his power to commit, or with which his profossion could have any possible ■connection. Any man, with or without trade or profession, could do the same act. It would be as discreditable in a tailor as in an attorney. *The imputation, if false, would injure all men ■seeking employment from others alike. The day laborer, in proportion to his wants and his wages, would feel it as sensibly as a counselor at law; and if one man can have an action for these words, every man ought to have it. The justice of this argument is strongly enforced by the very facts of this case. It is notorious that the plaintiff was not admitted an attorney and counselor at the time the words charge him with committing the facts. How can words touch his professional character and conduct, which ■speak of facts done before that character commenced?
    P ossibly the last clause in this count, “ He is unfit to be trusted,” might be held actionable in itself. It is not necessary to examine this point, because there is nothing of this kind in the second count. "
    “He is of infamous character. He broke jail in New England land fled from, justice.”

      The first clause in this set of words does not import that the-plaintiff was of infamous character in his profession. It is a general charge against him as a man, that his character was infamous.. Now the general character of a man may be infamous, and yet he may discharge professional duties with integrity and ability. The-fact that a lawyer pays little regard to principles of right and wrong, does not affect his practice and business, if he be looked, upon as a man that will not betray his professional trusts. If it were said that his conduct as an attorney was infamous, or that his-professional character was infamous, the words would touch his profession, and might affect his practice. But a general allegation of infamous character stands upon different ground. There is no-more reason why a lawyer should have an action for these words, spoken of him generally, than that every citizen should have an action for the same words.
    It may be thought that the distinction I take is too refined and unsubstantial: and it may be said that if a man be of infamous character, that infamy must attach to him in everything he is concerned with. A proper attention to the cases decided, and to the principles upon which the decisions stand, will show that I am right. It were idle waste of time and labor to require in the declaration an allegation that the words were spoken in reference to the profession, and to require proof that the words were so spoken, upon the trial, if the action could be sustained upon words of opprobrium spoken in reference to the general character of the-man only — words which, in their natural interpretation, refer to-general individual ^conduct, and not to professional acts. A man may be an open profligate with regard to women, and may spend his nights in stews and brothels — he may be a contemner of all religion, a profane swearer, and open violator of the Sabbath. In all these particulars he may be deemed of infamous character, yet in the profession either of law or medicine, he may be in the highest degree intelligent, diligent, and upright. If an action may be sustained by a lawyer, for saying of him that he is of infamous character, every tradesman, merchant, and person in office must have an action for the same words. Thus the rule of law, that the words must touch a man in his peculiar profession, is subverted,, and a new principle is introduced, by which terms of general reproach are made actionable, in all cases, when spoken of professional men, tradesmen, and officers. It will, then, no longer be> necessary to allege or prove that words were spoken of the particular business of the party. It will be enough to set out that the plaintiff followed a profession or trade, and that the words were spoken of him generally. The decisions upon this point, as I have shown, are uniform, and it seems clear that they proceed upon the position that an action can not be maintained unless the words, in their plain and natural import, apply to, touch, and affect the plaintiff’s professional conduct and character.
    The words in the fourth, fifth, and sixth counts are less strong than those upon which I have been commenting, and can not be actionable unless made so in consequence of being spoken of a candidate for office.
    The plaintiff alleges that he was a candidate for the office of prosecuting attorney, and that defendant, in reference both to his profession and to the appointment, said: “He is a man of immoral character. He broke jail in his own country and fled from justice. He is destitute of character. He broke jail in Now England and fled to escape the lash of the law, and now wears a borrowed name.. It won’t do to appoint such a man. He is of bad character. A' man that broke jail and fled from justice, is unfit for any office.
    Not one of these sets of words naturally import that they were spoken of the plaintiff’s professional character. They contain no imputation that the plaintiff was ignorant of his profession, or unfaithful in professional conduct. His profession or professional character is not named. The words are spoken of him generally as a man, not particularly as an attorney and counselor at law. It won’t do to appoint him. Not, however, because he is not a-lawyer, or because confidence can not be reposed in his professional integrity, *but because he is a man of bad character, that broke jail and fled from justice. This, if true, could not touch-him in his profession, otherwise than indirectly, as any other charge of immorality or bad conduct might affect him, and is therefore no foundation for an action.
    I do not see that the plaintiff’s case is strengthened or varied-by the fact that he was a candidate for the office of prosecutor. Words not actionable in themselves, do not become so when spoken of’a candidate for office, unless they have the effect of preventing-him from obtaining the office. Nothing of this kind is alleged. The fact that he was a candidate might be material to show the-circumstances under which the words were spoken, but it can have no bearing upon the character of the words themselves. They must be actionable independent of that fact, or they are not actionable at all.
    The Plaintim? himself submitted an argument in support of the action and against the motion in arrest. He suggested, first, that the seventh count was actually abandoned at the trial; and upon that point presented an affidavit, and the following remarks:
    The plaintiff, in the first place, submits to the court, whether their honors, Judges Pease and Hitchcock, who tried the cause, or even the court in bank, can not amend the record so far as to direct the seventh count to be stricken out. Indeed, it is a question whether the abandonment of a count has any place in the record. The count is withdrawn and the record stands as if no such count had ever belonged to the declaration; surely, then, no record of the abandonment need be made. Suppose, also, the clerk had neglected to enter the verdict, or had entered it wrong, could not the court, being acquainted by their own observation of the fact, correct the mistake of the clerk? The court are not sitting in bank as an appellate court; the record of every cause — for they have none but their own causes — is as much under their inspection and control now as it was at the proper county. Whether the seventh •count was abandoned or not, is not a fact to be litigated. What object is there to be effected or arrived at by sending the cause to .Jefferson coupty to correct that which the court know to be true, and which could not there be controverted. Mr. Leavitt’s affidavit •can not be disputed by negative testimony, even if the court should not distinctly recollect the abandonment.
    I think I am entitled to some consideration on this point; the •cause has been years in court, and was never continued, either before or since the trial, at my instance, but always against my wishes. It was taken under advisement in 1822 on motion for ■new trial and in arrest — the motion for a new trial was overruled at Columbus last year, and the motion in arrest continued to the last term in Jeffei’son county. At that term the defendant had leave to amend his motion by inserting all the counts, having only made his motion apply originally to the third, fourth, fifth, and sixth counts, not including the most deficient one, as he now contends, because he well knew it had been abandoned. I knew not but the abandonment was entered in the journals, or the more correct course pursued by the withdrawal of the seventh count, until I saw the defendant’s argument a few days before I left home for Columbus, in November last. I would by no means be considered in these remarks as complaining of the court, but merely showing why I think this cause ought to be no further delayed to my injury.
    If the court make a final decision of the cause at this time, should that decision render the question a legitimate one, I would ask the court to consider, whether the struck jury was not requisite in the cause, and that they would make an order on the subject of their charges as allowed by the statute relating to juries.
    Upon the merits the plaintiff presented the following:
    In the absence of my counsel, who was expected to attend at Columbus during the court’s sitting in bank, I can not even attempt an argument, not having bestowed any attention whatever on the questions arising under the motion in arrest, and having at the present scarcely a moment’s time to spare from public duties. I will, however, suggest a few considerations to the court which presented themselves to my mind on reading the argument of the defendant’s counsel.
    In the first place, the decisions or dicta of courts, in actions for words touching one’s official character, ought to be laid aside— they can have no connection with the doctrines that govern the action in the shape it assumes in this cause.
    “The second general rule,” as quoted by the defendant’s counsel from 3 Wilson, 186 (to which authority as well as to all others by him cited, I can not now reYer), is unquestionably agreeable to the current of authorities; “ that words are actionable when spoken of one in an office of profit, which may probably occasion the loss of his office, or when spoken of persons touching their respective professions, trades, and business, and do or may probably tend to their damage.” On this principle it seems no difference of opinion could *exist between any two gentlemen of the profession, as to its application to the words contained in the six first counts of the declaration. The declaration alleges that the words were spoken by defendant “ of and concerniag the profession and character of the plaintiff as an attorney and counselor at law.” The jury have found this allegation to be true. But the counsel for the defendant answers, that although these words were spoken of and concerning the plaintiff as an attorney and counselor^ yet they “ are not such words as naturally import that they were spoken of his professional characteror, in other language, they are not in themselves such words as the court will construe to be actionable when spoken of the profession of the law. So that were A. B. to say to E. D., who is a practicing lawyer, “You,.sir, as a lawyer, broke jail, and fled from justice, and now wear a borrowed name,” he would not be liable in an action for words, because “ the misconduct imputed to the plaintiff is not an abuse or neglect of any professional trust or employment, but the doing of an act inconsistent with his duty as a good citizen, and which is just as reprehensible in any other citizen as an attorney. The act charged to have been done is not one which his profession put it in his power to commit, oi’’with which his profession could have any possible connection.” The jury say the words were spoken of, and concerning the plaintiff’s profession and character as an attorney. But the court are called upon to say it’s not true; because the words themselves do not technically convey an idea of an act professionally done. The result of this doctrine is this, that a man having been admitted to the practice in this state, may be charged with all the crimes and offenses known to our law, or to our system of ethics, and if the charge does not in itself convey the idea that the act done, or the defection of principle, necessarily or entirely rose out of, or attaches to his professional conduct, no action lies. A member of the profession is like a scissors-grinder or bellows-mender; if he can sharpen a knife, or make the bellows blow a good blast, it is all that is requisite to gain business, and make a profit in his profession : an argument might not ever be better suited to a client and his cause; nevertheless I do not believe it to be the law of the land.
    In truth the argument of defendant’s counsel is wholly dependent upon this doctrine, that the profession of the law is the mere business of the head, the tongue, and the pen; -that the heart, the soul, and the good feelings of human nature have nothing to do with it. That he may be a beast, a brute, a scoundrel, a liar, a profane swearer— all these and even more, and yet be an “upright” lawyer. If such *ideas are entertained by any enlightened gentleman in this country, I desire he may not be discovered among my friends. Our statute law admits no man to an examination for admission to practico law, un Less he produces a certificate of his good, moral character and yet the counsel says moral character has nothing to do with a laioyer’s character. Such an idea may flow from the' crudities of the common law, but not from common sense.
    In the case in 8 Johns. 64, the doctrine which the counsel relies upon, is in brief this: that a charge of want of fidelity, want of honesty, or want of skill in the profession is actionable, agreed. And will not this support the verdict of the jury in the present cause? So, also, the case cited from Bibb; the language used by defendant in that case was less strong than that used in this. Tet it seems the court would have had no doubt of sustaining the verdict in that case, if the words had been charged as spoken of plaintiff in Ms profession.

    It is said that these words, in the second count, “ he is of infamous character,” do not import that the plaintiff was of infamous character in his prof ession. The declaration states that these words were spoken of the plaintiff, and of and concerning Ms profession and standing as an attorney and counselor at law." I know not how to understand the counsel; would he have the pleader say, that “ the defendant spoke and published these words of and concerning the profession of the plaintiff — that he was of infamous professional character ?” Such is the doctrine he advances, because as the words “infamous character” do not import in themselves that a man is professionally infamous, they can not be spoken “ of and concerning a man’s profession ” so as to be actionable, unless the speaker conjoins to the word infamous the word designating his profession ; so that the most bitter tongue of slander could play until it had no further power or motion, and not only endamage, but destroy a fair professional reputation, without subjecting its possessor to an action of slander.
    A reflection is here excited which often involuntarily and almost imperceptibly arrests the career of the mind when pursuing a course of technical reasoning. How wide is the difference between a legitimate argument upon truth and fact, and an argument built upon deductions techanically drawn from such truth and fact. The one is the production of logic, to the other I give no name. In the declaration under examination, it is alleged that the plaintiff was an attorney and counselor at law — that the defendant, contriving and maliciously intending tó injure the plaintiff in his good name and professional character, spoke and published of and concerning the *said plaintiff, and of and concerning Ms said profession and standing as an attorney and counselor at law, “ he is of infamous character.” In what, and as to what? In his character as an attorney and counselor, and as to his profession and standing as such attorney and counselor. This is the response which the jury have given, and it is therefore beyond contradiction. Can sound logic, common sense, or right reason, give any other construction to this allegation of the declaration and the finding of the jury, than that the slander was “toucMng the plaintiff’s professional character?”
    But another important consideration deserves the attention of the court. An attorney in this country depends very much for his professional emoluments on the reputation which he bears, not only as to moral character, but as to his safe pecuniary standing. And whatever technical disguise may envelope the real motive and truth of the matter, it is known to all men of observation, whether learned in the law, divinity, or physic, or not learned at all, that the reputation of not being punctual in paying over money — of not being morally honest — of not being of fair unimpeachable standing in the community — will either of them sink an attorney’s business, and perhaps make him a beggar.
    It is true the inducement in the fourth, fifth, and sixth counts, relative to the plaintiff’s being a candidate for the appointment of prosecuting'attorney, was not inserted on account of the failure of the plaintiff to obtain that appointment. Ho never sought that appointment, and felt not even a regret that another more worthy was preferred. But he would have evinced an apathy of feeling belonging only to him who has a character with which “suspicion” does “ affiliate,” had he permitted the foul defamation to rob him of his professional reputation, and to make him “ poor indeed,” without an attempt to repel. This inducement was inserted to show more directly that the slander touched his profession. The appointment was of a professional nature, and if the doctrine be correct that a lawyer may be “ intelligent, diligent, and upright in the highest degree in his profession,” and yet “ be deemed of infamous character,” where was the object of the learned judge, the defendant, in using the language he did, at the time he did; and what means the finding of the jury 1 Here are absurdities and contradictions opposed by the truth of the case and the common sense of mankind, as well as souucl legal principles, too glaring to cause the mind even to hesitate.
    But, I submit to the court whether the declaration, stripped of all the inducement and colloquium, does not contain actionable words ♦sufficient to support the declaration, even in the last count, which was abandoned.
    The words charged in the most exceptionable counts are, “he broke jail and fled from justice.”
    The breaking of jail in itself is a crime in almost all countries in Christendom; and although the crime is charged as having been committed in a foreign country, the words are still actionable.
    But the being a “fugitive from justice,” subjects every man to arrest by the law of the United States, and on the governor’s warrant he may at any time be apprehended and conveyed in chains to the jurisdiction from whence he escaped. I should like to be informed if there be an authority in all the reports in England from the Year-Books down to Maulé and Selwyn; or in this country from the earliest decision to be found in Dallas, down to the latest in Johnson, that will protect the slanderer in charging an innocent man with being a “ fugitive from justice!”
    From some law memoranda I have in my pocket-book, I make the following references.
    What is the use of a colloquium ? It is to point such words to the plaintiff or his profession as do not of themselves naturally and necessarily apply to the plaintiff or his profession. C. Gidney v. Blake, 11 Johns. 54; Cave v. Shelor, 2 Mun. 193; Lindsey v. Smith, 7 Johns. 359; and in the case of Foot v. Brown, 8 Johns. 64, cited by defendant’s counsel, I have a note which says, the law gives an action for words that affects a man’s credit in his profession. Breach of prison, see 4 Bl. Com. 130, on words being actionable which charge a crime committed in a foreign jurisdiction, or where the statute of limitations bars a prosecution, see Van Ankin v. Westfall, 14 Johns. 234.
   The court were unanimously of opinion that the seventh count was bad. Judges Pease and Hitchcock were of opinion that all the other six counts were good. Judges Burnet and Sherman were of a different opinion as to some of the counts. The court, therefore, being equally divided on the motion in arrest, it failed; and the cause was certified back to Jefferson county, that examination might be had as to the abandonment of the seventh count. If the fact of abandonment is made out, judgment to be entered for the plaintiff on the verdict—otherwise, judgment arrested.