#### *McGowan vs. Manifee.*

Slander.

Case 62.

Error to the Bath Circuit; Silas W. Robbins, Judge.

*Actionable words. Colloquium. Evidence. Confidential communications.*

First, second, and third counts, ruled to be insufficient'bythe circuit court.

Fifth and seventh counts, held, by the circuit judge, tobe insufficient.

June 10.

Chief Justice Bibb

delivered the Opinion of the Court.

The first, second, and third counts, state a colloquium between the plaintiff and one Charles Day, of and concerning a charge which liad been made against the plaintiff, of stealing banknotes from Bryan & Co. in which the plaintiff was interrogating said Day, whether he had made such •charge against him, of stealing the money. The •first count, in reference to this colloquium, states, that the defendant said, “you did take it;” *the*second count charges, that the defendant said, in reference to said colloquium, and to the plaintiff, in presence of divers persons, “I suspect you;” the third count charges, that the defendant said, in reference to said colloquium, and to the plaintiff, “I suspect you of.taking it.”

The court instructed the jury to disregard these counts, as being insufficient.

Without the colloquium, the words charged in these counts would be unintelligible; but if spoken, as alleged, in reference to *the subject of the*conversations between the plaintiff and Day, then, they •did import a charge of felony, and were actionable.

The fifth count charges, that tbe defendant spoke of and concerning the plaintiff, these words: He stole a large sum of money of Joseph T. Bryan, and that the defendant would way-lay and search .the plaintiff, on his way to Flemingsburg. The seventh count charges, that the defendant, in speaking of and concerning the money which Bryan had lost, did publish of and concerning the plaintiff, these words, “He stole the said money of said Bryan, and the defendant would way-lay and search the plaintiff, on his way to Flemingsburg.” These counts were also declared by the judge *to be*insufficient, and the jury were instructed to disregard them.

The decision of the court was probably influenc*315ed, as to these latter counts, by the determination in Barham’s case (4 Co. 20). But the cases of Hume vs. Arrasmith, (1 Bibb, 165,) and Logan vs. Steele, (same, 593,) will furnish the reasons for not applying the old and rigid rules, which formerly required that the words themselves spoken should designate the person, and contain a direct charge of felony. Words are to be taken, neither in the milder, nor in the more grievous sense, but in that sense in which they would be understood by those who heard them; the judge ought not to torture them, into a charge of guilt, nor explain them into innocence, contrary tí) their obvious import.

In counts in slander, tbe words are to be taken in neither tbe milder nor-more grievous sense, but in. that the hearers would understand them.

Expressions of suspicion, or opinion, may amount to slander.

Formerly the words themselves must designate the person; now the colloquium may do it.

Confidence-between witness and defendant, injunction of secrecy, and the like, no objection to the proof o£ the publication of the slanderous word?.

With respect to all these counts, so withdrawn from *the*jury, the cases of Logan vs. Steele, and Hume vs. Arrasmith, will be found to contain a refutation of any objection to either, because the expressions were only of suspicion or opinion, and not positively charging a felony, or because the name of the plaintiff was not mentioned.

The court excluded the testimony of George Owings, because of the confidence and friendship which had existed between the witness and the defendant, from their childhood, and because the conversations detailed were desired by the defendant not to be mentioned for fear the plaintiff would get intimation of the defendant’s plan, of having the plaintiff searched for the stolen money, on his way to Flemiugsburg. The testimony of Bryan, the owner of the store, and person from-whom the money had been stolen, after being detailed, was, on motion, also excluded, because the defendant was the clerk and servant of said Bryan. The testimony of Ch’s. A. Day was excluded, on motion of defendant, because the frequent expressions by the defendant, as to his suspicion and belief that the plaintiff had stolen Bryan’s money, were never, to his recollection, made openly in the street, but only in the store and at Bryan’s house, and because this witness and the defendant were both clerks in the store of Bryan. That the judge erred in these several opinions, hardly need be said. The communications made to these witnesses severally, by the defendant, were of *316a very slanderous character, as charged in the declaration, they were not made by the defendant to his counsellor and attorney at law, nor under any such circumstances as the law regards as sacred and inviolable.

Instructions, as in case of a nonsuit erroneous

Judgment and mandate.

The bill of exceptions, in addition to the statements which had been made by those three witnesses whose testimony had been so heard and excluded, proceeds to state the testimony of Mr Jeremiah Spur-gin, and of Mr Fisher. After these witnesses were examined, (the testimony of the witnesses, Owings, Bryan, and Day, having been, as aforesaid, excluded) “the defendant moved the court to instruct the jury to find as in case of a nonsuit, on the ground that the foregoing evidence was insufficient to support any one of the counts in the plaintiff’s declaration, which instruction the court gave; to all of which decisions the plaintiff excepts.” The testimony of Spurgin ancl Fisher detailed very slanderous charges, made by the defendant against the plaintiff, which were more precisely applicable to those counts, which had been excluded from the consideration of the jury, but were also applicable to the sixth count. It would be tedious to detail all the evidence given by the five witnesses. Suffice it to say, that they did prove the slanderous words, substantially, as charged in the declaration, and in manner and under circumstances which could leave no doubt as to the obvious meaning of the defendant, to charge upon the plaintiff, that he had stolen Bryan’s money.

The plaintiff has declared for a grievious slander; he proved it on the defendant by five witnesses; it was circulated in an insidious *manner, and repeated*at various times; but after all, by a series of blunders, the case has been arrested from the jury by the court, and upon the plea of not guilty, the defendant has judgment against the plaintiff for costs.

It seems to this court that the circuit court erred in each and all of the opinions set down in the bills of exceptions taken by the plaintiff. It is therefore considered by the court that the judgment of the *317circuit court be reversed, and that the naanded for a *venire-facias de novo.*case be re-

*Chiles, Haggin*and *Loughborough*for plaintiff.

Plaintiff to recover his costs.