#### Filber vs. Dautermann.

SlandbR : *Whether certain words were actionable*per se.

1. In slander, tlie question whether the words charged impute to plaintiff a criminal offense, is a question *of laxo.*

3. Inducement: That one F. assigned to plaintiff a mortgage for $750, in 1803, the consideration of the assignment being that plaintiff agreed in writing to support F. during his natural life; and that F. died in 1806, leaving orphan children. The words charged are: “ You have cheated and robbed orphan children out of fourteen hundred dollars.” *Inuendo: “*That by the speaking of the words aforesaid, defendant intended to have it understood that the plaintiff had cheated, and stolen the property of, F.’s orphan children, and was liable to be prosecuted for the crime of larceny.” *Reid,*

(1.) That the words charged, taken in connection with the facts alleged as inducement, cannot be considered as imputing the crime of *la/reeny;*neither can they be interpreted as charging such a taking with force and violence as constitutes in law a *robbery,*but only a taking by fraud and wrong.

(3.) That the words are therefore not actionable *per se.*

*135APPEAL from tbe Circuit Court for *Washington*County.

Slander. Tbe plaintiff appeals from an order sustaining a demurrer to tbe complaint, as not stating a cause of action. Tbe averments of tbe complaint will be found in tbe opinion.

*Frisby &*Weil, for appellant,

argued tbat if there is any ambiguity about tbe alleged slanderous words, it should be left to tbe jury to determine their meaning *(.Kennedy v.*Gifford, 19 Wend., 296, 299; *Gibson v. Williams,*4 id., 320; *Fx parte*Baily, 2 Cow., 479; *Goodrich v.*Woolcott, 3 id., 231); tbat a charge of “robbery” is actionable *per se*(Townsbend on S. & L., § 170 and note 470) ; and tbat tbe coupling of this charge with tbat of “ cheating ” did not necessarily destroy its ordinary force.

*Thorp &*Frisby, for respondent,

contended tbat in ascertaining tbe meaning of tbe words in tbe complaint, they will be interpreted by tbe court as they would be ordinarily understood by mankind *(Goodrich v.*Hooper, 97 Mass., 1-6 ; *Carter v.*Andrews, 16 Pick, 1-5); and tbat while tbe term “robbed” may be used in an actionable sense to charge a crime, yet here it necessarily appears, from its connection and tbe subject matter to which it is applied, not to charge a felony. *Carter v.*Andrews, 16 Pick, 1, 9; *Allen v.*Hillman, 12 id., 101; *Van Bensselaer v.*Dole, 1 Johns. Cas., 279 and note (a) on page 280; *Roberts v.*Ghamplin, 14 Wend., 120, 122.

LyoN, J.

Tbe action is for slander, and tbe alleged slanderous words, charged in tbe complaint to have been spoken to tbe plaintiff in tbe presence and bearing of others, by tbe defendant, are: “You have cheated and robbed orphan children out of fourteen hundred dollars.” Tbe complaint contains an averment, or a statement by way of inducement, to the effect that one John Ereling assigned to the plaintiff a mortgage for seven hundred and fifty dollars, in 1863, the consideration of such assignment being that the plaintiff agreed in writing to support and maintain Ereling during bis natural life, and tbat Ereling *136died in 1866, leaving several orphan children. The *innuendo*stated in the complaint is, that, by the speaking of the words aforesaid, the defendant intended to have it understood that the plaintiff bad cheated and stolen the property of said John Ere-ling’s orphan children, and was liable to be prosecuted for the crime of larceny.

Other words are charged in the complaint to have been spoken by the defendant to the plaintiff at the same time; but it is unnecessary to notice them, inasmuch as it seems to be conceded that they are not actionable *joer se,*and no special damage is alleged.

The circuit court sustained a demurrer to the complaint on the ground that it does not contain facts sufficient to constitute a cause of action. The plaintiff appeals to this court from the order sustaining the demurrer.

The question whether the words spoken impute a charge that the plaintiff had been guilty of a criminal offense, and that such words are therefore actionable, is one of law, to be determined by the court. *Carter vs.*Andrews, 16 Pick., 1.

The alleged slanderous words here charged to have been spoken by the defendant, taken in connection with the *averment*and *innuendo*in the complaint, amount to this: that by taking an assignment of such mortgage from John Ereling as the consideration for his agreement to support said Ereling during his natural life (Ereling having since died leaving orphan children), the plaintiff committed the crime of *larceny.*

Of course no argument is necessary to show that the speaking of the words in that sense cannot possibly impute a criminal offense. The most that can be claimed in that direction is, that they charge that the plaintiff obtained an assignment of such mortgage by some fraud, the character of which is entirely unexplained.

It is insisted, however, by the counsel for the plaintiff, that the wo’ iken are actionable of themselves. It is doubtless actiona,. u say of another that he *“ robbed*” any person, unless *137tbe words were used in a connection wbicb shows tbat tbej were not intended to impute tbe crime of robbery. And independently of tbe averment, we think. tbe word *“ robbed*” was bere used to indicate, not a taking by force and violence, but rather a taking by fraud and wrong, tbe charge being tbat tbe plaintiff *cheated and robbed*orphans *“out of" a*certain sum of money. Tbe *innuendo*seems to go upon tbe hypothesis tbat these words do not import a charge of *robbery;*for it attributes to tbe plaintiff only an intent to charge tbe crime of *larceny.*And considered in tbe light of tbe explanatory statement contained in tbe inducement, it is perfectly clear tbat tbe words impute neither a charge of robbery nor of larceny

Tbe order of tbe cbcuit court sustaining tbe demurrer must be affirmed.

*By the Court.*— Order affirmed.