#### R. H. Gove *vs.*H. K. Blethen.

Oct. 10, 1874.

Slander of Person Holding Office. — In order to render defamatory words actionable, in themselves, when spoken in reference to the official character or action of a person holding an office of profit, it is not necessary that they should charge a crime; it is sufficient if they charge incapacity, or want of integrity, or corruption in the officer.

Slander of Justice of Peace. — -In an action for slander, the complaint alleged that the slanderous discourse was “ of and concerning said plaintiff in the execution of his said office of justice of the peace, and of and concerning a decision the plaintiff had then recently made, in a, suit before him'as such justice of' the peace, wherein O. P. W. was plaintiff, and the said defendant was defendant, etc.” *Held,*on demurrer to the complaint, that these allegations of the-complaint import that the plaintiff, as a. justice of the peace, had jurisdiction of the action mentioned therein, and had made the decision therein refevredto as such justice of the peace.

Same. — Spoken of the plaintiff as a justice of the peace, and in the execution of his office, the following defamatory words, laid in the complaint with proper averments and innuendoes, are actionable in themselves, to wit: “Goveperjured himself in deciding the suit of 'Whitcomb against mo, * * * *■ and I will be d — d if I will believe him under oath, for ho has decided against me contrary to all law and evidence, and it is the G — d d — est erroneous-decision I ever saw any justice give, and it was a d — d outrage, and it was done for spite.” These words charge the plaintiff, (1) with having violated his official promissory oath, (2) with having made a corrupt and malicious decision against the defendant in the case referred to.

Appeal by defendant from an order of the district court, for Olmsted county, overruling a demurrer to the complaint.

*P. M. Tolbert*and *R. A. Jones,*for appellant.

*Charles M. Start,*for respondent.

McMillan, C. J.

This is an action for slander. The defendant demurred to the complaint, upon the ground that it does not state facts sufficient to constitute a cause of action. The demurrer was overruled, and the defendant appealed from the order overruling the demurrer.

There are two classes of defamatory words for which an action may be sustained: *first,*words which are actionable in themselves; *second,*those which become so, in consequence of some special damage which they have caused.

Whether words are actionable in themselves, or not, de*81pends, among other things, upon whether they are spoken of a person individually, or spoken of him in relation to his-business, profession or office.

Without entering upon a consideration of the distinctions-which may exist between persons holding offices of emolument, and those in mere honorary official positions, it maybe laid down as the settled rule, that slanderous words-spoken of a person in an office of profit, and relating to him in such office, importing a charge of unfitness, either in respect of morals or capacity, for the duties of such office, or a want of ixxtegrity, or corruption therein, are actioixablo *per se.*Bacon’s Abr. Slander, B, 3 ; 3 Bl. Com. (Cooley,) 123, note; 1 Starkic oxx Slander, 118; Stephen’s Nisi Prius, 2555 ; *Dole*v. *Van Rensselaer,*1 John. Cas. 330 ; *Hopkins*v. *Beedle,*1 Caines’ Rep. 347; 2 Chitty Pl. 641, note *l.*

This rule is to be applied to the case under coxxsideratioix, ixx determining the sufficiency of the complaint. The complaint, after alleging that at the several times thereinafter mentioned, aixd for a long time prior thereto, the plaintiff was,, and still is a justice of the peace, etc., axxd the xisxxal matter of inducement, proceeds : “ Nevertheless, the said defexxdant, well knowing the premises, but contriving aixd maliciously intending to injure the said plaintiff in his good name, credit axxd reputation, and to bring the plaintiff iixto disgrace and scandal as justice of the peace, as aforesaid, amongst his xxeiglxbors and friends, and other good citizexxs of this state, oxx December 30, 1872, at Rochester ixx this state, in a certaixx discourse which tlxe defendaxxt thexx axxd there had, of axxd coxxcerxxixxg tlxe said plaintiff, axxd of and concerning the said plaixxtiff ixx tlxe executioxx of his said office'of justice of the peace, axxd of axxd coxxcerning a decision tlxe plaixxtiff" had thexx recexxtly made, ixx a suit before him as such justice of tlxe peace, whereixx oxxe O. P. Whitcomb was plaixxtiff', and the said defendaxxt was defendaxxt, ixx the presence axxd hearing of A. J. Wright, axxd divers other worthy citizexxs of this state, falsely axxd maliciously spoke and published of axxd concerning him, in the exercise of his office of justice of the *82peace, as aforesaid, and of and concerning the plaintiff’s decision of the said suit of Whitcomb against the defendant, these false, scandalous and malicious words following, that is to say: ‘Gove (the plaintiff meaning) perjured himself in deciding the suit of Whitcomb (the said O. P. Whitcomb meaning) against me (the defendant meaning.)’ [We omit here a portion of the discourse which has no bearing upon the question now before us. ] ‘And I (the defendant meaning) will be d — d if I (the defendant meaning) will believe him (the plaintiff meaning) under oath; for he (the plaintiff meaning) has decided against me (the defendant in the suit of O. P. Whitcomb against the defendant meaning) contrary to all law and evidence, and it is the G — d d — est erroneous decision (the decision of the plaintiff as justice of the peace, in the suit of O. P. Whitcomb against the defendant, meaning) I (the defendant meaning) ever saw any justice give, and it was a d — d outrage, and it (the decision meaning) was done for spite,’ (meaning that the plaintiff, as such justice, had decided the said suit of O. P. Whitcomb against the defendant corruptly and for spite.)” ® * *

The defendant’s counsel objects that the complaint does not aver that the decision of the suit between Whitcomb and the defendant was made by the plaintiff as a justice of the peace, nor that the suit was one of which the plaintiff, as such justice of the peace, had jurisdiction, nor that the decision spoken of was one he might have made in the execution of his office.

There are many respectable authorities which hold that an averment of jurisdiction, in a case like the present, is not necessary. *Niven*v. *Munn,*13 John. 48 ; *Crookshank*v. *Gray,*20 John. 344; *Wilson*v. *Harding,*2 Blackf. 241; *Dalrymple*v. *Lofton,*2 McMullan, *112; Harris*v. *Purdy,*1 Stew. 231; *Canterbury*v. *Hill,*4 Stew. & P. 224.

But assuming, for the purpose of this case, that jurisdiction must be alleged, we think the allegations of the complaint are sufficient upon that point. '

The language of the complaint is that the slanderous dis*83'course was ‘ ‘ of and concerning the said plaintiff, and of and ■concerning the said plaintiff in the execution of his said office of justice of the peace, and of and concerning a decision the plaintiff had then recently made, in a suit before him as such justice of the peace, wherein one O. P. Whit-comb was plaintiff, and the said defendant was defendant,” ■etc.

This *colloquium*applies all parts of the discourse, which refer to acts of an official character, to the plaintiff as a justice of the peace, and in the execution of his office. If the plaintiff had not jurisdiction of the suit, it was *coram non judice.*The suit referred to could not, therefore, have been before him as a justice of the peace, unless he had jurisdiction ; and if the suit was before him as a justice of the peace, no decision could be made therein by him, except in his official capacity, and a decision by him in such suit, in the exercise of his office, must be a decision by him as a justice of the peace.

The allegations of the complaint, therefore, import that the plaintiff, as a justice of the peace, had jurisdiction of the action mentioned therein, and, as such justice of the peace, had made the decision referred to. *Shellenbarger*v. *Norris, 2*Carter, (Ind.) 286, and authorities cited; *Sharp*v. Wilhite, 2 Humph. 434.

“ It is not necessary to make a formal averment of juris•diction, if it appears to exist from the facts stated.” *Cannon*v. *Phillips, 2*Sneed, 185, citing *Chapman*v. *Smith,*13 John. 78. The case of *Ayres*v. *Covill,*18 Barb. 260, relied on by the appellant, is not in point. The defamatory words in that case were spoken of an individual. In order to render the words actionable, it was necessary to show that they charged an indictable offence, for which purpose it was essential that certain averments should have been made which the complaint did not contain.

The defendant claims that all the words, taken together as charged, do not impute crime to the plaintiff, as an officer *84or otherwise, for which an action can be maintained without averment of special damage.

The substance of'the discourse claimed to be slanderous, stating it mildly, is that the plaintiff perjured himself in deciding the suit of Whitcomb *v.*defendant adversely to tlm defendant, that he decided it against him contrary to all law and evidence, that it was an erroneous decision, an outrage,, and done for spite. We have already seen that in order to render words actionable *per se,*when spoken in reference to the official character or action of a person holding an office of profit, it is not necessary that they should import a crime, but that it is sufficient if they charge incapacity, or want of' integrity, or corruption, in the officer. The reason for this-rule seems to be this: when an office is lucrative, words which reflect upon the integrity or the capacity of the officer render his tenure precarious, and are therefore a detriment in a pecuniary point of view. 1 Starkie on Slander, 118.

There can be no doubt, we think, that the words stated in the complaint are in themselves actionable, and are within both the reason and the letter of the rule. The charge that the xilaintiff perjured himself in deciding the suit referred to against the defendant, while it does not charge a technical perjury, does charge that the plaintiff violated his official promissory oath. Gen. Stat., ch. 9, § 2. A charge of this nature is in itself actionable. *Hopkins*v. *Beedle,*1 Caines' Rep. 347*; Aston*v. *Blagrave,*Strange, 617 ; *Rex*v. *Pocock,*Id. 1157 ; *Kent*v. *Pocock,*Id. 1158 ; 3 Burns’ Justice, 18th Ed. 29. But the words spoken in this case go further. They charge against the plaintiff, not only a violation of his official oath, but that the decision was erroneous, contrary to all law and evidence, and rendered against the defendant, for spite. A decision of this character must necessarily be corrupt and malicious. If made by a justice of the peace in a case of which he had jurisdiction, it would constitute an offence against public justice, for which he would be liable to indictment and removal from office. 4 Bl. Com. 1411 *85Russell on Crimes, 45, 135 ; *People*v. *Coon,*15 Wend. 277; Cren. Stat. ch. 91, § 8; cb. 9, § 2.

The words, therefore, charge not only corruption, and a want of integrity, against the plaintiff, but also a criminal >offence.

The order overruling the demurrer is affirmed.