#### Jonathan Allen *versus*Robert Hillman.

The words *u*the treasurer of the masonic lodge who robbed the treasury of a sum of money and bought a farm with it,” impute only a breach of trust, and are not in themselves actionable.

The same words spoken after the office of treasurer had ceased to exist, concerning a person who had been treasurer, were *held*not to be actionable on the ground of having been spoken of him in relation to an office of honor or profit.

Action on the case for slander. The declaration contained seven counts. It recited that the plaintiff was treasurer of a masonic lodge in New Bedford, called the Washington Remembered Lodge, and that he conducted himself honestly and faithfully in that office and justly accounted for all moneys which came into his hands ; and in each count it was alleged, that the words were spoken, and the charges were made, of and concerning him in his capacity of treasurer. In the first count the words alleged to have been uttered were, “If the *105gentlemen wish to know who is to pay the expense, I can tell them we can call on the treasurer who robbed the treasury of fifteen hundred dollars and bought a farm with it.” In the second and third counts the words, “ I mean Jonathan Allen,” were alleged to have been uttered in reference to the words in the first count. In the fourth count the plaintiff alleges that the defendant charged him with the crime of cheating and swindling ; in the fifth, with stealing ; in the sixth, with robbery ; and in the seventh, with cheating and defrauding.

The defendant pleaded the general issue.

At the trial, before *Morton*J., one West testified, that the defendant told him, that the treasurer of the old lodge took $ 1500 from the treasury and bought a farm with it. The witness could not say that the word *robbed*was used, but he understood the defendant to mean that the money was improperly taken from the treasury.

Z. Hillman testified, that he told the defendant he had heard he accused the plaintiff of robbing the old lodge of $ 1500 and buying a farm with it; that the defendant said he did; that the word *robbed*was used, but the witness understood the defendant to mean that the plaintiff had received money of the lodge, had failed to account for $ 1500 of it, and had converted that sum to his private use.

One Dunbar testified, that the defendant said, “they would call on the one who robbed (or stole) from the treasury $1500.” The witness was uncertain whether *robbed*or *stole*was the expression, but he understood the defendant to mean that the plaintiff had received money as treasurer of the lodge and had failed to account for it, and had fraudulently used $ 1500 of it to buy a farm for himself.

Three other witnesses testified that the defendant spoke of the plaintiff as the treasurer of the lodge who robbed the treasury of $ 1500 and bought a farm with the money.

It appeared that there was formerly a lodge in New Bed-ford, called the Washington Remembered Lodge; that the plaintiff had been treasurer of it, and the last treasurer ever chosen by it, but that the charter of the lodge had been surrendered before December 1828 ; and that the alleged slander was uttered after the lodge had ceased to exist.

*106*Oct 25th.*

*Oct. 21th.*

The defendant contended, that the words sworn to have been used, taken together and understood in their ordinary acceptation, did not import the charge of any crime, and therefore did not support any count in the declaration.

A nonsuit was entered, subject to the opinion of the whole Court.

*W. Baylies*and *Coffin*

argued that the words spoken imputed to the plaintiff a crime ; *2*East’s P. C. 564 ; *Van An-kin*v. *Westfall,*14 Johns. R. 232 ; but that if they did not, they were nevertheless actionable, because they were spoken of the plaintiff in respect to his office of treasurer. Bac. Abr. *Slander, B*3; *Chaddock*v. *Briggs,*13 Mass. R. 248 ; Starkie on Slander, 100, 106, 107, 110; *Walden*v. *Mitchell, 2*Ventr. 266.

*L. Williams*and *Russell,*

*contra,*said that the words imported only that the plaintiff had committed a breach of trust, and were not in themselves actionable; *Van Rensselaer*v. *Bole,*1 Johns. Cas. 279; *Cristie*v. *Cowell,*Peake’s Rep. 4 ; *Thompson*v. *Bernard,*1 Campb. 48 ; 2 Wheaton’s Selwyn’s N. P 429; *Harding*v. *Brooks,*5 Pick. 247 ; 3 Bl. Com. 125, Christian’s note; *Onslow*v. *Horne,*3 Wils. 177; *Brooker*v. *Coffin,*5 Johns. R. 188; *Brown*v. *Lamberton,*2 Binn. 34; *Chaddock*v. *Briggs,*13 Mass. R. 248; that it was questionable whether the office of treasurer of the lodge was an office of honor or profit; but that if it were, still the words were not actionable as having been spoken of the plaintiff in reference to that office, for he had ceased to be in office before the words were uttered.

Shaw C. J.

delivered the opinion of. the Court. The question is, whether the evidence is sufficient to support the action, and we are of opinion that it is not. The purport of the words, as proved, is, that the plaintiff was the treasurer of a masonic lodge, and as such received money of the lodge, which he had failed to account for, but converted the same to his own use. The use of the word “ robbed,” which the evidence leaves a little doubtful, would make no difference, if, as we think the conversation taken together proves, the term was applied to the plaintiff, as having appropriated and converted the money intrusted to him as treasurer, to his own use, *107It would be like the common case put to illustrate the rule, that the words must, all taken together, charge an indictable offence, “ he is a thief, he has stolen apples from my trees.” The first clause in the sentence charges a felony ; but taken in connexion with what immediately follows, it shows that the defendant imputed only a trespass.1

*2.*As to the fact, that the misconduct charged upon the plaintiff was imputed to him as misconduct in an office, under the circumstances, we think it makes no difference. There are two modes in which words not actionable in themselves may become so, by charging misconduct in office.

1. Where an act done by one in office, would be punishable by indictment, which would not be so, if done by a person not in office. In such case, imputing such act to a person in office, and in reference to his office, would be actionable, when words imputing the same conduct to one not in such office would not be so.

*2.*Where the slander tends to disgrace and disparage one, in an office of profit or honor, and to deprive him of it.

Without deciding whether the office of treasurer of a lodge, being a private and voluntary association, is an office of profit or honor, within the meaning of the rule, because it is immaterial to the decision of this case, we think the rule cannot apply, because the holding of the office in question did not render the conversion of the money by the treasurer who had been intrusted with it, for himself and his associates, an indictable offence ; and it could have no tendency to deprive him of his office, because the lodge had long since been dissolved, and the office of course had ceased to exist.2

*Plaintiff nonsuit.*

1

*Jackson*v. *Adams, 2*Bingh. N. R. *402; S. C. 2*Scott, 599. See *Carter*v. *Andrews,*16 Pick. 1; *Tomlinson*v. *Brittlebank, 4*Barn. & Adol. 631; *Gardiner*v. *Williams, 2*Crorapt. Mees. & Rose. 78; *M‘ Clurg*v. *Ross,*5 Binn. 518. By Rev. Stat. c. 126, § 29, if an officer of any corporation shall embezzle or fraudulently convert to his own use any property which shall be under his care by virtue of such office, he shall be deemed to have committed the crime of simple larceny.

2

 See Com. Dig. *Action on the Case for Defamation, G*3; *Forward,*v. *Adams,*7 Wend. 204.